543 P.3d 743
Or. Ct. App.2024Background
- Dennis Tylka challenged Clackamas County’s approval of a dwelling permit near the Salmon River, in a principal river conservation area.
- The subject property is in a Recreation Residential (RR) zone and is split by a road; the proposed dwelling would be 128 feet from the river, with a deck at 118 feet, and a septic system across the road.
- Clackamas County ZDO 316.03(A) allows single-family dwellings in the RR zone; ZDO 704.04(A) requires a minimum 100-foot river setback for structures, which can be increased up to 150 feet based on seven listed criteria.
- The planning director approved the 128-foot setback, interpreting state law (ORS 197.307(4)) as requiring application only of the clear and objective minimum setback, not the more discretionary criteria allowing for a greater setback.
- Tylka appealed through the county process and LUBA, arguing the criteria required a 150-foot setback; LUBA and the Court of Appeals both upheld the county’s approval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of ZDO 704.04(A) setback criteria | County should have applied all subjective criteria for a 150-foot setback | Only the clear and objective 100-foot setback should apply | County properly considered criteria; 128-foot setback upheld |
| Consideration of consistency with surrounding homes | Not a listed criterion in setback ordinance | Consistency with surroundings is part of design/visual impact | County may consider consistency with nearby homes |
| Measurement of mean high water line | Must be measured at multiple points, by a hydrologist | No such requirement in ordinance | No error in how the mean high water line was established |
| Sufficiency of substantial evidence | County did not adequately justify setback decision | Substantial evidence supported decision | Substantial evidence standard was met |
Key Cases Cited
- Younger v. City of Portland, 305 Or 346 (Or. 1988) (standard for review of substantial evidence in LUBA appeals)
- Stevens v. City of Island City, 260 Or App 768 (Or. Ct. App. 2014) (rules for substantial evidence review of LUBA orders)
- 1000 Friends of Oregon v. Clackamas County, 320 Or App 444 (Or. Ct. App. 2022) (interpretation of clear and objective housing standards)
- Siporen v. City of Medford, 349 Or 247 (Or. 2010) (deference to local government's plausible interpretation of its own land use standards)