King v. Clackamas County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 09-21-2015
  • Case #: 2015-022
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

Pursuant to OAR 660-004-0020(2)(c), a local government is not required to evaluate specific alternative sites for a proposed use unless parties identify specific alternative sites and provide evidence that developing those sites with the proposed use would have significantly fewer adverse impacts than the originally proposed site.

The Forest-zoned subject property totals 158 acres and includes three parcels: (1) the former Portland General Electric (PGE) Bull Run Powerhouse, (2) the former PGE day-use park, and (3) the former Bull Run Elementary School. Pursuant to Statewide Planning Goal 5, the school and powerhouse were respectively designated as county historic landmarks in 1994 and 1995. Powerhouse Re Gen LLC, intervenor-respondent, applied to the county for comprehensive plan and zoning amendments, and conditional use permits, to use the historic structures at the three sites for a variety of educational, cultural and commercial uses. The plan would change the property from Forest to Rural zoning. Mollie King, James King, Marshall Christensen, Joyce Christensen, and Beth Willhite (collectively, “petitioners”) appealed the proposed “adaptive reuse” and rezoning of the property to allow for new uses of the structures to generate revenue for maintenance of the historic sites.
Petitioners claimed in their first and fifth assignments of error that the county misconstrued the applicable law in concluding that “adaptive reuse” of historical structures to generate revenue for their maintenance was justified. See OAR 660-004-0020(2)(a). Petitioners further alleged that the county failed to identify a “demonstrated need” for adaptive reuse of the historic structures, or that the proposed use “has special features or qualities that necessitate its location on or near the proposed exception site” within the meaning of OAR 660-004-0022(1)(a)(B). LUBA held that petitioners failed to demonstrate that the county erred in concluding that preservation of the historic structures through “adaptive reuse” was a sufficient reason to justify an exception to Goal 4, which essentially limits use of forestry land to forestry operations. LUBA denied the remaining assignments of error for failure to demonstrate how the county’s findings were inadequate or unsupported by substantial evidence. The county’s decision was AFFIRMED.