Agenda - Planning Commission - 09/05/1995

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Page 4 -- August 1995 Z.B. The turning radius ordinance did not prohibit construction of the airstrip. The mountain was not a "building or structure" because it was not man made. Therefore, it could not violate the ordinance's height restrictions. Conditional Use -- Farmer Challenges Golf .Course Construction Von Lubken v. Hood River County, 891 P. 2d 5 (Oregon) .1995 A developer wanted to operate a golf course in an agricultural zone of Hood River County, Ore. It asked the county for a conditional use permit to build and operate the course. The county approved the ~teveloper's application three times. Following each approval, Von Lubken, who operated a farm in the area, appealed to the Land Use Board of Appeals. Some of the boar'd's decisions were reviewed by courts. After each appeal, the board or the deciding court returned the matter to the county. The county would make another decision, and an appeal would follow. While all the appeals were taking place, the developer built the entire golf course and then started o~erating it. Von Lubken claimed the construction increased the cost of his farming operations because of the dust created. In its decision regarding the third approval, the state appeals court sent the case to the county again. The court told the county to decide whether the golf course was consistent with a state law. The statute said such uses could be approved only if the county found they would not "[f]orce a significant change in" or "[s]ignificantly increase the cost of" accepted farming practices on sur- rounding farm land. After considering the application again, the county granted the developer's permit for the fourth time. Von Lubken appealed again, and the board sent the case back to the county. It found that the county did not adequately consider Von Lubken's alleged increase in operating costs. Both parties asked a court to review the board's decision. Von Lubken claimed the board should have reversed the county's decision instead.of send- ing it back for further consideration. He said his changes in farming practices and the costs he incurred as a result were already documented. The developer said the state statute was not in effect when the dust was created. The developer also said it needed approval only to [tse the land as a golf course, not to complete the preparatory work. Therefore, the state law did not apply to any impact the dust had on Von Lubken's costs. DECISION: Affirmed. The board Properly returned the case to the county for further consider- ation of Von Lubken's costs. The developer's preparatory work was not separate from its use of the land as a golf course. The state law could still a. pply to the "dust costs" that came before its enactment because the developer did not yet have final approval for the golf course .~ such an application of the statute would not be retroactive. The county had allowed the developer to continue building while the county's approvals were being appealed, The county could not then avoid applying the state statute by disregarding the prior costs to Von Lubken that the construction caused.