Scott Swanson
Residents of western Crawfordsville Drive and the county are continuing to battle over the development of a 108.59-acre property located just northwest of Crawfordsville.
Essentially, the Sept. 26 decision requires the county to specify details in writing of how it will ensure that the conditions of approval for the development are complied with in the future.
The Oregon Land Use Board of Appeals (LUBA) on Sept. 26 ruled by a 2-1 margin, following three years of back-and-forth between Linn County, LUBA and the state Court of Appeals, that the case needed to be returned to the county for clarification of how its approval of the original development application fits with its own zoning regulations protecting big game habitat areas.
Applicants Ronald and Virginia Henthorne and developer Lynn Merrill applied in May of 2019 to rezone the parcel, located north of Crawfordsville Drive and the Calapooia River and northeast of Crawfordsville and the intersection of Brush Creek and Highway 228, from farm forest to non-resource five-acre minimum zoning.
The majority of the property is designated as big game habitat by Linn County, which, neighbors argue, disqualifies it for the type of development proposed.
Merrill told The New Era in 2020 that he planned to divide the property and build between 10 and 17 homes.
The project was approved by the Commissioners John Lindsey and Will Tucker – Chairman Roger Nyquist was absent – on Aug. 6, 2019, a fact pointed out by opponents. They approved a zoning change from farm forest to non-resource five-acre minimum zoning
In October of that year, neighbors appealed the decision to LUBA, which reversed the county’s decision.
The plaintiffs, by this time, had gotten help from Thousand Friends of Oregon, a watchdog group for the government agencies whose purpose is to be independent of partisan politics and which is tasked with managing land use issues.
The applicants then took the case to the state Court of Appeals, which reversed LUBA’s decision, determining that “LUBA erroneously failed to defer to the county’s plausible interpretation of its own comprehensive plan.” The court only pinpointed one aspect of LUBA’s decision, and the land use board issued another ruling this past February, that the county must evaluate how the developer’s plans would impact the mapped wildlife habitat on the property and present that analysis in its findings.
Neighbors have submitted written testimony to the county, saying they moved to the area expecting that the county’s planning standards would persist.
The Oregon State Court of Appeals then reversed LUBA’s decision, and it was returned to the County for a remand hearing, held Sept. 21, 2021. The commissioners reaffirmed their decision to approve the project, but the Crawfordsville Drive residents went back to LUBA with more concerns about the approval.
At issue is how the applicants’ proposal to subdivide the property fits into county planning designations that set aside lands for agriculture, forestlands and natural resources, scenic and historic areas, and open space. A majority of the property has been designated as big game habitat by both the county and the Oregon Department of Fish and Wildlife.
In the Sept. 26 decision the three-member LUBA board, all attorneys, split 2-1, with Board Chair Melissa Ryan and Michelle Gates Rudd agreeing in an opinion dated Sept. 26 that, despite some missed deadlines and sloppiness by the petitioners in presenting the appeal, there were elements of the county’s decision that need to be remanded.
Board Member H.M. Ramudio dissented, essentially saying that the petitioners failed to satisfy state legal requirements in submitting their appeal, which created problems for county staff in addressing “main issues” in the appeal and which therefore disqualified the appeal from review by LUBA.
“Assignments of error and supportive arguments form the entire basis for LUBA to complete its review function,” Ramudio wrote. “LUBA does not review the challenged decision and record to identify issues that could potentially lead to reversal or remand of the challenged decision. Instead, LUBA reviews the parties’ arguments challenging the local decision in the briefs submitted to LUBA.”
The appeal failed to include specifics as to how the commissioners erred in their decision, Ramudio added.
Specifically, the majority’s order to remand centers on concerns that the zoning approved by the county for the property allows housing densities that are not consistent with state big game habitat requirements in the area.
The LUBA majority noted that the county has addressed concerns about serial partitions, further subdividing of the property to avoid minimum density as well as open space requirements, but that it had not addressed them in writing.
The LUBA decision stated that the county needed to adopt findings “appropriate to that issue” in writing.
Also, the LUBA decision said, it is “ambiguous” how the county plans to calculate density of proposed residences which, it said, appears to permit “a dwelling density that exceeds (Oregon Department of Fish and Wildlife) recommended density” as described in the county code. The county also needs to clarify that and adopt findings on remand, LUBA said.
Further, the county must “demonstrate” how it will ensure that future applications for land division or land partition and development of dwellings on the property will comply with its conditions of approval for the zone change, the LUBA decision said.