Plotkin v. Washington County

No. A107171 (Or. Ct. App. January 26, 2000)

ELR Digest

The court holds that a state land use board erred when it failed to affirm a county's preliminary approval of a residential subdivision in an area containing wetlands and designated as a wildlife habitat. The board rejected the county's argument that the wetlands at issue were not subject to the county's community development restrictions because the restrictions require protected areas to be identified and designated as such in the county's comprehensive plan. Instead, the board concluded that the wetlands on the proposed property are riparian zones subject to the restrictions.

The court first holds that the wetlands at issue are not subject to the restrictions. The restrictions apply to wetlands identified in the community plan and adjacent riparian zones, not to all riparian zones regardless of whether they are listed in the community plan. Listing a resource in the community plan both reflects the county's judgment that the resource is significant and provides protection for listed areas against development. If the unlisted water area is not significant enough in the county's view to deserve protection, it is awkward to interpret the county's restrictions to say that an unlisted adjacent riparian zone warrants protection. The county could have chosen to protect riparian zones without regard to whether they are listed, but including the restrictions within a section devoted to protecting listed resources demonstrates that the county's interpretation is correct.

A dissenting judge would have held that the restrictions applied in this case.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-173).

Counsel for Petitioners
Jeffrey M. Batchelor
Law Offices of Jeffrey M. Batchelor
1100 Union Bank of California Tower
707 SW Washington St., Portland OR 97205
(503) 241-0149

Counsel for Respondents
Stuart K. Cohen
Copeland, Landye, Bennett & Wolf
1300 SW 5th Ave., Ste. 3500, Portland OR 97201
(503) 224-4100

[30 ELR 20324]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]