Background
Portland General Electric sought a conditional use permit to upgrade utility poles, power lines, and related infrastructure along a 5.9-mile corridor on Stafford Road in Clackamas County. The project would add transmission capacity, replace many wood poles with taller steel poles, and remove some trees. A county hearings officer approved the application with conditions after finding, among other things, that the project satisfied Clackamas County Zoning and Development Ordinance 1203.03(D).
Save Stafford Road, an organization of area property owners, appealed to the Land Use Board of Appeals. LUBA rejected the organization’s challenges concerning whether the project would alter the area’s character in a manner that substantially limited, impaired, or precluded surrounding residential uses. LUBA nevertheless remanded for further findings on whether the project was consistent with comprehensive-plan policies governing rural scenic roads. Save Stafford Road petitioned for judicial review of the rulings it lost, and PGE cross-petitioned from the remand.
The Court’s Holding
The Oregon Court of Appeals affirmed LUBA on Save Stafford Road’s petition. The court held that LUBA neither mischaracterized the organization’s visual-impact argument nor improperly treated any change in neighborhood character as legally irrelevant. Although the ordinance requires consideration of whether the proposed use alters the surrounding area’s character, an alteration violates the criterion only if it substantially limits, impairs, or precludes the primary uses of surrounding properties.
The court also rejected the argument that LUBA applied a mere “continued use” test or conflated impairment with preclusion. Read as a whole, the hearings officer’s findings and LUBA’s order applied the full ordinance, including its distinct references to substantially limiting, impairing, and precluding primary uses. The ordinance did not separately protect “enjoyment,” and the findings addressed the project’s anticipated visual and aesthetic effects on residences and views.
The court further held that LUBA did not shift PGE’s burden of proof to Save Stafford Road. LUBA’s observation that the organization had not connected the visual changes to a substantial impairment concerned the adequacy of its appellate theory, not an evidentiary burden. On PGE’s cross-petition, the court upheld LUBA’s remand because the hearings officer’s decision did not show that it considered the overarching rural-scenic-road policies, Policies 5.I.1 and 5.I.2, as required when evaluating consistency with the comprehensive plan.
Key Takeaways
- A change to an area’s visual or rural character does not by itself violate ZDO 1203.03(D); the change must substantially limit, impair, or preclude a primary use of surrounding property.
- An appellate tribunal does not shift an applicant’s burden of proof merely by finding that an opponent failed to develop a theory connecting identified impacts to the governing approval criterion.
- A general finding of comprehensive-plan consistency cannot substitute for findings showing consideration of applicable overarching policies, particularly when the decision discusses only subsidiary provisions.
Why It Matters
The decision clarifies both sides of conditional-use review in Oregon. Opponents must explain how acknowledged visual changes substantially affect a protected primary use, while local governments must demonstrate that they considered all applicable comprehensive-plan policies rather than relying on a generalized consistency conclusion. PGE’s approval therefore survived the challenges under ZDO 1203.03(D), but the county must still make further findings concerning the project’s consistency with rural-scenic-road policies.