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Land use panel overturns county rezone near Crawfordsville


May 27, 2020

THE TREE LINE behind the meadow is the Crawfordsville Drive property that was subject to a LUBA reversal on a county-approved rezone.

The Oregon Land Use Board of Appeals has reversed a decision made last year by the Linn County Board of Commissioners allowing the rezoning of 108 acres off Crawfordsville Drive from farm forest to non-resource 5-acre minimum zoning because the majority of the property is designated as big game habitat by Linn County.

The property is located north of Crawfordsville Drive and the Calapooia River, and northeast of Crawfordsville and the intersection of Brush Creek Road and Highway 228.

LUBA hears appeals and reviews land use decisions across the state. It may identify errors and remand decisions to the local level for reconsideration or it may reverse a decision that that is prohibited by law.

Neighbors of the property and 1,000 Friends of Oregon, a Portland-based nonprofit that advocates for land-use planning, appealed the commissioners' decision and were the plaintiffs in the appeal.

Applicants for the proposed rezone and a related map amendment were Ronald and Virginia Henthorne and Lynn Merrill.

Henthorne still holds title on the property, Merrill said, but "it's really my thing now and has been a couple of years now."

Merrill planned to divide the property and build about 15 homes, he said, although that might be more or less, between 10 and 17 homes. The goal was to build homes in a way that would allow the creation of rare oak savanna habitat.

The plaintiffs argued that the proposed zone change was inconsistent with the requirement of Linn County's land use codes protecting big game habitat from conflicting uses and conserving sensitive fish and wildlife habitats.

The applicant argued that protecting the big game habitat and conserving sensitive fish and wildlife habitats is implemented during the development of the property rather than the planning phase, providing that "beneficial management of wildlife habitats can be obtained through careful siting of dwellings and structures."

The three LUBA board members, all attorneys, found that the plain language in the county's land use codes provides that undesirable impacts on wildlife habitats shall be reviewed during the plan amendment, zone amendment and conditional use permit process.

Linn County's codes require resource plan and zone designations for property that is mapped "big game habitat," said LUBA's opinion. "Accordingly, changing the plan and zoning designations of property that (is) mapped as peripheral big game habitat to NR (non-resource) is prohibited as a matter of law."

LUBA sustained the plaintiff's "assignment of error" on that basis.

In a second assignment of error, 1,000 Friends of Oregon and the neighbors challenged the county's findings that the property was not suitable for forest or farm use as required by county land use codes and state administrative rules.

The applicant argued that the issue had not previously been raised, and LUBA agreed, denying the assignment of error.

"The failure of the application was failure to comply with big game management standards," said Andrew Mulkey, an attorney representing 1,000 Friends of Oregon. He also believes the decision was a win for protecting farm and forest lands, although LUBA declined to rule on that.

"I looked at what the applicant provided," Mulkey said. "He didn't show this isn't forestland."

The applicant showed that the productivity was less than 55 cubic feet per acre of production, Mulkey said, but the applicant didn't show that it was below the 40 or fewer cubic feet per acre, which would have shown it was not productive land.

The property is productive farm and forest land, Mulkey said. "The goal was not to use it as farm forest land."

He noted that rules still allow for dwellings to be constructed on farm and forest land, typically on larger parcels.

From 1,000 Friends' perspective, "if you want to build a subdivision, the appropriate place to build it is in an urban growth boundary," Mulkey said. "The protections we have on rural lands, the protections we have on big game, the protections we have on farm-forest lands are important."

There is a way for property owners to say they don't believe their land qualifies as productive farm and forest land, Mulkey said. LUBA didn't say it, "but in my book, this is a win for forestland and big game."

Phillip Callaway, a neighbor of the property, said all he was hoping for was a remand to the county that would require the county to "really take a look at what would be the impact on wildlife."

"I was just stunned when they reversed it and so, so happy. The neighbors were just so, so happy."

"My wife and I just couldn't be more thrilled," said another neighbor, Corby Wilson. "We would've been severely impacted."

Initially, they were concerned about the safety impacts, Wilson said. The potential impacts in terms of wildland fires "were truly frightening," he said. With so many new homes on Crawfordsville Drive, he was concerned about the impact to traffic.

Wilson believes the property is productive forestland, and the big game designation is important as well, noting "the elk roam this valley."

And nearby is a camas prairie and a mineral spring that supports band-tailed pigeons, he said.

Merrill hasn't decided whether to appeal LUBA's decision, he said, noting that it's a multi-year process, and there are other ways to approach it.

"We have the option to reapply and adjust the process," Merrill said. "These things typically take years and lots of planning."

It's not necessarily just a "one and done," he said.

"Oak savanna is a critical habitat for a number of species that are threatened or underserved," Merrill said. The habitat has been in decline since the early days of settlement.

As a complement to farm and forest uses, many people turn productive lands into oak savanna for tax purposes, he said. One of the mechanisms he was looking at was to use low-density residential development, without fences and clustered closely to each other, to provide the oak savanna habitat as an amenity.

The folks who would buy those properties would essentially be supporting the development of the habitat, he said. "It's a site with what was traditionally oak savanna habitat. It's been a failure for farm or forest use.

"The big game overlay doesn't anticipate this type of development and oak savanna," which are mutually beneficial to wildlife.

As a forest, "it's very unproductive," Merrill said. While the soil types might suggest productivity for land across the county, the soils on this particular site are shallow and rockier than other areas, according to his consultant.

"I think the opposition out there is pretty much normal NIMBY stuff," Merrill said. He said the applicants have done everything they can to cooperate with neighbors and stakeholders and to preserve the wildlife.


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