Burgermeister v. Tillamook County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 05-15-2017
  • Case #: 2016-121
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under TCLUO 6.040(4), conditional uses must not “substantially” limit, impair, or prevent use of surrounding property for permitted uses. This standard may be satisfied notwithstanding minor limitations or impairments.

Petitioner appeals a board of county commissioners’ decision granting conditional use approval for four wind turbines on top of a restaurant in unincorporated Netarts, Tillamook County. Nearby residences are 50,150, and 250 feet away. The restaurant is zoned NC-T1, which does not list turbines as a permitted or conditional use. The county approved the disputed turbines under TCLUO 2.040 as a use that “is of the same general character, or has similar impacts” as conditionally allowed uses including communication towers, utility substations, and transmission lines. Under TCLUO 6.040(4), conditional uses must not “substantially” limit, impair, or prevent use of surrounding property for permitted uses.

On the first assignment of error, petitioner contends that the turbines will generate enough noise to violate the TCLUO 6.040(4) standard, and that the county failed to provide substantial evidence showing that TCLUO 6.040(4) would be met. LUBA first deferred to the board of county commissions interpretation of TCLUO 6.040(4), which defines “substantially” to set a high bar that may be satisfied notwithstanding minor noise impacts. Here, the county adopted eleven findings on potential noise impacts of the turbines. LUBA agreed with petitioner that several findings were not supported by substantial evidence. However, petitioner neither acknowledged nor challenged three of the findings that were supported by substantial evidence. Accordingly, LUBA denied the first assignment of error.

On the second assignment of error, petitioner contends that the county’s findings failed to address the significance of moving propellers, a main distinction between condition uses like communications tower and the disputed turbines. The county found that “the proposed wind turbines have moving parts, but . . . the effect . . . is likely to be insubstantial.” LUBA concluded that these findings were adequate and supported by substantial evidence. AFFIRMED