Tolbert v. Clackamas County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Appellate Procedure
  • Date Filed: 12-05-2014
  • Case #: 2014-043/065
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

A standard which requires a county to determine whether a modification is consistent with “all provisions [of the code] in effect on the date the modification request is submitted” does not require assessment of all aspects of the proposal not affected by the modification absent issues that could not have been raised under the previous proposal.

S&H Logging (S&H) as granted a conditional use permit (CUP) for composting and topsoil mining in February 2012. They received both an extension in March 2014, as well as a modification which removed the composting operation in April 2014. Both decisions were affirmed by the county hearings officer. Separate appeals to LUBA were made by Tolbert and Fallow on the modification and extension, respectively, and were consolidated. LUBA denied Fallow’s challenge to the extension, concluding that the local standards did not include state statutory standards. Furthermore, references in the local code to DEQ and Metro regulations were meant to advise that there are other regulations in place, but those regulations did not provide the operative standard.

Tolbert first argued that the modification was inconsistent with the original proposal because of the removal of the composting operation. LUBA disagreed, noting that generally the elimination of a previously approved part will be a consistent modification, short of a material change to the proposed use, and that material change was not present. Tolbert contended that the modification was not consistent with “all provisions in effect on the date the modification request is submitted” because the hearings officer excluded those portions unaffected by the modification. LUBA held that the exclusion was proper to give effect to the previous decision, unless there had existed issues that could not not have been raised under the previous proposal, which were not present. LUBA rejected Tolbert’s blanket assertion of inadequacy of findings, but upheld the specific challenges regarding the ground and surface water findings and noise and screening findings. Extension AFFIRMED. Modification REMANDED.