Forest Park Neighborhood Association v. Washington County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 04-12-2016
  • Case #: 2015-071
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

Pursuant to Statewide Planning Goal 2 (Land Use Planning), legislative land use decisions must be supported by an "adequate factual base" (functionally equivalent to the substantial evidence standard applicable to review of quasi-judicial decisions), and where a reasonable person could not reach the same conclusion as the local government based on the evidence in the record, LUBA will hold such a decision as lacking the necessary evidentiary support.

Forest Park Neighborhood Association and Carol Chesarek (petitioners) appealed a county decision enacting Ordinance 801, which adopted code amendments to a natural area, or “natural features,” buffer along the northern boundary of the North Bethany Sub-Area study areas for urban development located within the Metro Urban Growth Boundary (UGB) and agricultural land uses outside the UGB in northeastern Washington County. The natural features buffer is required under Condition 6 of the Metro ordinance that expanded the UGB to include the study areas. Under Ordinance 739, the natural features buffer included a non-developable setback area between southern urban and northern agricultural uses with a width that varied from 158 feet to 465 feet. Ordinance 801, in part, reduced that buffer to a 50-foot vegetated buffer consisting of a mix of native trees and shrubs at a prescribed density.

In its first sub-assignment of error under its second assignment error, petitioners contended that the county’s findings were unsupported by substantial evidence and failed to establish that a reduced buffer was compatible with the adjacent Abbey Creek Stables. Petitioners provided detailed testimony from a veterinary behaviorist that suggested, in part, that a narrow vegetated buffer would likely present a higher risk to horses and riders than a wider buffer that did not provide the same visual barrier. In its findings and conclusion that the reduced buffer would ensure compatibility between Abbey Creek Stables and urban uses, the county failed to address that testimony and instead relied on conclusory testimony from a landscape architect in support of the vegetated buffer. LUBA generally agreed with petitioners’ argument under its first sub-assignment of error, and held that the county’s finding that a vegetative buffer had a “far more beneficial impact on reducing visual incompatibility” compared to a distance buffer was not supported by substantial evidence. REMANDED.