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Oral Argument 2025-089 Campean v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=sCpV-Aq_l3s). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Mhm. >> Mhm. >> Sorry for the delay. Uh, we were having some technical difficulties getting board member Basham um, online. Um, so I'll just be doing the the oral argument today. Um, so uh, good morning. This is the time set aside for oral argument in case number 2025-089. Um, uh, petitioner is I don't want to mispronounce your name. Is it Campion? Campion. Campion, okay, great. Thanks. So, it's Campion versus Clackamas County. Um, I'm board member Wilson. Um, board member Basham is not going to participate right now, but he will participate in the decision. He'll watch the oral argument. He's read the briefs. Uh, board chair Zamudio is not participating in this decision. Um, Mr. Campion, have you ever been to LUBA before? No, this is the first time. Okay, well, maybe I'll I'll give you a little brief overview of what happens at oral argument. Um, so this is an opportunity for parties to discuss what's in their briefs. Uh, it's not an opportunity to make new arguments or submit new evidence. Um, each side gets 15 minutes. Since you're the petitioner, you get to have the last word, so you have rebuttal after the county and intervener go. People generally reserve somewhere between 3 to 5 minutes for their rebuttal. And I'll ask you about that in a little bit. Um Uh and also when parties are talking, it's really just one side talking and the other side talking. It's not like Law & Order where people are jumping up and objecting or cross-examining or asking questions. Um So, with that, do you have any questions before we begin? Uh no. Okay. Great. Um and I'm not aware of any pending motions or matters that we need to take care of before we begin. Okay, great. Um so, uh if you're not talking, if everybody would just stay on mute when it's not your time to talk, that would be helpful. Um so, petitioner, you have 15 minutes. Would you like to reserve some of that Um so, can I actually start? Y- um yes, so, um you go ahead. That would be great. Just And if you'd state your name for the record so we have it, that would be helpful. Uh yeah, this is Daniel Campion. Good morning and member of the board. Uh can you state one more time your name, please? Okay, it's board member Wilson. And so, again, you have 15 minutes, so the clock up there isn't exactly right. So, you're starting somewhere around two to three minutes. And I I'm sorry, did you want to reserve any time for rebuttal? Uh I I I could eventually, but it's unnecessary. Okay. Well, I'll let you know when you're getting close to your 15 minutes and if you want to reserve any time. So, go ahead. Thank you. Uh This case presents a consistent failure of findings across all five assignments of error. In each instance, the county either failed to engage the actual record record or failed to explain why the evidence in the record does not satisfy the applicable legal standard. This case is not about the re-weighing evidence. It is about the final order's failure to include findings that connect the county's conclusions to the evidence in the record. Um The the the clearest example um it would be assignment of error number five. The county found that the majority of event related activities would occur with within a qualified structure, which is the barn, but did not explain why that satisfies or fails to satisfy the substantial sub- sub- substan- substantiality standard under the ORS 215 448 1C or how any incidental use of other farm related facilities defeats that standard. Uh we we see the same pattern across the other assignments of error. Um For for lighting um assignment one and two uh assignment of error number one and two, the county remained anchored to an earlier staff report snapshot and did not meaningfully addressed later submissions made in direct response to the staff report. So, basically I follow up the staff report with the staff report follow up and I answered the questions. It looks like those were omitted or overlooked or ignored. Or noise >> first time to hear about the lighting. Um the hearing's officer's decision um he says you didn't provide enough information uh so that he could really tell. And then when you're explaining what you did submit, there's there's a couple sentences about bollard lighting, the 12-ft mounting height, uh the stuff you talk about in your your brief. Is Is there more to it than that or is it just a few sentences you put in your brief? I'm wondering if there's any sort of um diagram or explanation or is it just those couple sentences? Uh no, actually that's that's the the key point. The uh hearing officer or the county omitted the detailed plan that I provided after the staff report. So, the county um basically got anchored on a staff report um and omitted my submission of evidence after that. So, and and uh my submission was the staff uh which was a staff report follow up. I provided a detailed uh plan and uh of the lighting and it looks like the respondent's post hoc reframing does not cure the effect. So, it looks like um the the respondent is is to bring that forward, but but does not clarify that the county basically addresses the initial uh submission, which I have in the narrative, which I only referred to the existing lights. So, after the staff report um uh did they findings uh they only referred to existing lights, but then I follow up after the staff report and I provided detail of the lighting, which includes existing lights and um proposed lights. So, that's what I uh provided, but looks like the the county uh overlooked that and went back, got anchored to an earlier um findings from the staff report. So, basically uh I provided uh more evidence to the uh record and those were uh omitted and not considered. So, Okay, thank you. Mhm. So, on a on a noise the county stated there was no evidence, but the record includes meter information with the noise study within the noise study. And actually I provided noise study noise study and then uh the officer asked me to provide supplement noise study and I did that as well. And there uh there's evidence of the meter. And the final order does not explain why the evidence fails to meet the applicable standard. Uh so, I have a question about the the standard. Um it talks about Mhm. how you it's got to be a type one or type two meter as specified in I don't know if it's ANSI or ANSI standard 1.4-1971. The sound level meter shall contain at least an A-weighted scale and both fast and slow meter response capability. And it looks like on your um your your noise study, you have all of those words except the ANSI standard. Um is is Was your type two meter Did it meet ANSI standards? I'm like I'm not familiar with what that exactly means. Yeah, so the the problem is uh the county said that there's no evidence uh even if there is a question about that um uh about the meter you know um it could have uh be addressed in the supplement or ask for additional question. They never raised that. So, why the meter issue was dispo dispos dispositive through though never specifically raised or why any remaining concern could not be addressed by condition. So, what I'm saying um the the county said that there's no evidence, but actually there is evidence in the uh in the noise report. So, did your Does the type two meter you used Does that meet ANSI standards or Are there type two meters that don't meet ANSI standards? The type Yeah, they the type two meets the ANSI standard. Okay. Mhm. Did they ever >> If there are any would have been any questions could have been raised uh uh before one after the hearing uh as the hearing officer doing that meeting asked supplemental information about the noise which I provided but the the uh there there no any questions in regards to the meter. Which >> I think your initial noise study submitted that's the one that had the language about it's a type two meter, fast slow all that stuff. Yeah. So when this issue came up did anyone ever from the county or the hearings officer say oh you need to have an ANSI type two meter or was the first time you ever heard about that? >> report there was not it brought up and actually they say it's it's all good. Uh and uh during the hearing it was never brought up it was not mentioned it was actually just uh asked me to provide additional information. There's a a balcony and there's basically like a barn deck. And say well can you do additional information for additional noise study about that and say no problem. So the meter was never uh raised up or it could have been can you provide a little more detail about that you know. So I did provide all that supplemental and then uh uh I uh I was surprised when I I saw this denied because the meter that there's no evidence but actually there is evidence in the noise study. And I think that could have been addressed with the condition or additional supplementary information. Okay, thank you. Yeah. So even assuming the applicant bears the initial burden without identifying any specific farm or forest practice. Any impact pathway or explaining why any impact would be significant. And I will say any very importantly is the of the final order does not address the evidence in the record that speaks directly to the principal offsite pathways which is basically comes to ambient noise before the property line or by the property line. Lighting controls which was provided and um specified control within the boundaries of the property and also Uh traffic, parking, it's all within the boundaries of the property. No, nor does it explain why the evidence was insufficient to satisfy the criteria. So, in the in the hearing officer's decision on this issue, he he said that uh that you didn't address this criterion beyond stating that event operations are limited, seasonal, and did not interfere with continuing agricultural or forestry activities. Can you point anything else in the record where you submitted stuff that would address you know, what the surrounding farm or forest uses are, what your impacts on them would be, why or why that is not significant? Can can you point to anything else? Uh I will say um is it's uh not about uh the conclusion weighing the the evidence. It is about um why uh the county didn't didn't take into consideration all the um evidence that was submitted to the record, and also why would uh the county not um I got We got a problem here. Um not explain the decision based on the record. So, when it comes to AOE 4 even if the burden was on on the petitioner initially uh the county would have to explain and bring up uh additional information and findings. By just saying that um uh it doesn't meet the criteria or uh there's no evidence that it is not right because I provided all this specific uh evidence, which include the noise studies, uh the lightings and uh the the traffic control and the parking uh and it seems like they were completely overlooked uh in the in the decision in the uh findings. All right, thank you. I just want to let you know you've you've got about two or three minutes left if you want to reserve that for rebuttal. You can keep going if you'd like, but you might want to reserve some of your time to respond to things that the county or intervener might say. Um I'll just say that uh because um uh all this um for the reasons stated in the amendment Lubar should sustain assignments of error one to five and the remainder of Okay. All right, great. Thank you. You have about two minutes left for your rebuttal. All right, now is opportunity for the the county and intervener. Have Have you all decided how you're going to allot Yes, we're going to let interveners take the first 10 minutes and we will back clean up. Okay, thank you. If you just state your name for the record and begin, please. Good morning, board members. John Butterfield for intervener respondents. I plan to briefly cover the farm impacts test before turning to the fifth assignment of error, which concerns the buildings used for the proposed events. So, farm impacts test Clackamas ZDO 406-05-A1 implements ORS 215-296 and county found that the petitioner had not addressed the impacts of farming and forestry. So, the farm impacts test had not been met. And And it sounds like petitioner doesn't dispute that the farm impact test applies and on reply and it sounds like here today petitioner proves to accept that as the applicant he had the burden to do the initial identification of the surrounding lands, the farms on those lands, the practices taking place on each farm, and the impacts of the proposed events on the farm practices. And And In response to board member Wilson's question, he only claims that he submitted some evidence to the record regarding some ways that the events may be less impactful and and attempts to claim that that shifts the burden to the county to identify a farm practice on a surrounding property and and find how an impact would affect that practice. And there's no support for that position in Lub case law. In fact, the the case law is exactly the opposite. Um directly on point is the Friends of Marion County v. Marion County case. We cited it in our brief. It's LUBA number 2021-088. We We short-cited it as Jones, after the intervener there. Uh, LUBA set out where the burden of proof lies, specifies the level of detail required for an adequate farm impacts test. Um, petitioner did not address the Jones case on reply or here today, and it controls. And the fourth assignment of error should be denied. Moving on to the fifth assignment of error, which concerns uh, which buildings may be used in petitioner's proposed home occupation. Operative language is ZDO 806.02 sub C, which implements ORS 215.448 sub 1C. And it requires that home occupations be operated substantially in the operator's dwelling or other buildings normally associated with uses permitted in the applicable zoning district. So, petitioner relies heavily both in his petition and again in the reply on the Green v. Douglas County case. And in our brief, we reviewed the facts of Green, discussed two related holdings in that case, and then the subsequent history of Green at the Court of Appeals. In Green, it was undisputed that the bulk of the proposed events were going to occur in pavilions or gazebos on the property. Basically, structures with a roof but no walls. And so, LUBA was focused on the question of whether a roof with no walls is a building. And the Court of Appeals focused on that question, too. LUBA had said, "No. If it doesn't have walls, it's not a building." And the Court of Appeals reversed, finding, "No. What determines whether something is a building or not is whether it is normally associated with other uses permitted in the zone." And I go through all that setup because the question here is different. The The soon-to-be decommissioned residence and the freestanding bathroom, they clearly have walls. But petitioner appears to argue that as long as the majority of the proposed events happen in the barn when which the county found was normally associated with timber use it doesn't matter whether the residence and the bathroom are qualifying buildings. Now on reply petitioner claims that we misstated his argument, but then he goes on to again say that because the barn is a qualifying building, it was somehow the county's burden to explain why his use of the other buildings defeats the approval criteria. We're putting aside the whole substantially part, why isn't if they decommission the existing house, why isn't that a building normally associated why isn't it doesn't it just become accessory structure? The The reason is because there's no evidence in the record about whether decommissioned residences are normally associated with uses in the county's timber zone. The only evidence in the record is what the petitioner says he's going to do with his decommissioned residence, but that doesn't make a building normally associated with other uses in the zone. There would need to be evidence about other decommissioned residences somewhere else in the zone and whether they are normally associated with uh resource use of property in the zone. Well, doesn't it just work you just need to show if you're going to do a home occupation you're going to be doing it in structures that you're allowed to have before you have a home occupation. Like did you did did he need to submit information showing that barns are used you know, normally associated with uses in the district, too? The county found that the barns were are normally associated with uses in the district. I think the the distinction is because this type of a building is there's a question about whether it's a building normally associated with a with a use in the zone because a second residence on a property is not something that you're otherwise allowed to have. And so >> it wouldn't be a residence anymore if it gets decommissioned. It would just be like any accessory structure, right? Well, if it's being used as an accessory to resource use, but if it's being used for a commercial purpose like an event, then no, it's not something that you would normally be permitted to have in the zone or normally associated with use in the zone. And so I think that's the the key distinction of that it's going to be transitioned into this commercial use and there there wasn't evidence that this that a decommissioned residence is a like a normal other accessory building in the in the EFU zone. Okay. Well, well, turning to the the restrooms, um I know in some of the other cases Luba and the court of appeals found that, you know, that's not buildings normally associated with the use. But in this case, the county didn't the county specifically approve it as a use normally associated in the zone? And isn't that different? It was retroactively approved after it had been built for farm and personal use specifically. And so I think the difference here is that the restroom is being converted to a commercial use. And so it's um it the question becomes is this use of the building the this this freestanding restroom a normally associated building in the zone? And I and I think the answer is no because as the case law points out, the this is we'd essentially be authorizing a building and a use of that building that isn't allowed in the zone and that expands beyond the typical home the the allowed home occupation by authorizing buildings that couldn't be constructed. A a commercial freestanding bathroom as Luba has held it in other cases. But isn't the barn being converted commercially used as two? Don't don't you look to see whether you're allowed to have these buildings to start with in this zone? If you are then you can use them for commercial uses if you're doing a home occupation, right? You don't have to get it approved as a commercial use first, do you? No, the right the the the question is whether the the building that is being used for the home occupation is a building that is normally associated with uses in the zone. So, if it's been permitted for some other reason like if it existed before land use zoning laws, so it's it's just there that doesn't mean that it necessarily is a use normally associated with permitted uses in the zone. So, the fact that the permit that the freestanding bathroom was previously permitted by the county for some other reason doesn't turn that freestanding restroom into a building normally associated with uses in the zone. Wasn't it permitted for for his for workers to use? Yes, I I understand it was it was permitted his statement of use was farm and personal use. And it's but there's there isn't evidence in the record that that's what it's actually being used for and there isn't evidence in the record that freestanding restrooms for farm use are a normally associated use in the zone. That would have to look at other freestanding restrooms, not the specific one that the petitioner has and and what he plans to do with it, what other resource operations in the zone use those buildings for. Okay. Thank you. Okay. I think that we we covered most of what I was going to talk about through our our questions. So, uh I'm happy to answer any other questions or otherwise I'll yield the remaining time to the county. I don't have any more. Okay. Thank you for answering all those. Um Mr. Hugel. Uh Caleb Yeah, Caleb Hugel appearing on behalf of respondent. I don't want to take much time at all. Um uh Mr. Butterfield covered assignments of error four and five. Our brief uh covers first through third. And our responses to those assignments of error pretty much the same as interveners response to the fourth assignment of error. Um we the petitioner is try to shift the burden to the county. Petitioner argues essentially that the hearings officer didn't identify any evidence that the lighting, fire safety, and noise criteria weren't met. The important thing is that it wasn't the hearings officer's job to show why the application doesn't comply with the criteria. It was the applicant's uh job to show why the application does comply with the criteria. And I want to go through each of the issues, lighting, noise, and fire safety very quickly. Um on the lighting issue, I think the hearings officer was aware of the additional uh material that was submitted post-staff report. Uh and the finding remained the same. The additional material wasn't specific enough. You know, reading the first few sentences, board member Wilson, you identified it about bollard lighting where necessary, string lighting. It's not clear to me whether those things where those things will be, how bright they'll be. I couldn't figure out whether those descriptions would be compatible or suitable with the event venue use. So, I think the hearing officer's conclusion uh was supported by substantial evidence and and the findings were adequate. On the noise issue, and and maybe maybe maybe you think well, Mr. Hugel, you are not reasonable. It was the applicant's job in this appeal to demonstrate that no reasonable decision maker could conclude as the hearing officer did, which is that the evidence provided was not specific enough. And I don't think petitioner met that burden. So, on the lighting issue, um the findings they sort of lump I mean, there's six subsections to 1005.04. It It seems to me the hearing officer was saying and the objective ones are met, but the subjective ones are not. I'm assuming the subjective ones are four, shall be suitable for the use, and five, shall be compatible. Is it Is it fair to say that that's the reason you denied it those two subsections? That's my understanding. I agree with your interpretation of the finding. Okay. And I I have a question and this actually goes to all three of the assignments of error. Um it's on page 18 of the decision. I It's probably I'm not sure exactly what it is in the record, 25 or 26 or something. But the hearing officer, when he's going through the conditional use approval criteria, 120303D, he specifically finds that um the hearing officer finds that it's feasible to comply with the noise limits in 80602. He finds The hearing officer finds that the events on the site will not substantially increase the risk of fire in the area. He finds it is feasible to design and install outdoor lighting on the site to comply with 1005.04A, the one we were just talking about. And then at the end of that's his findings there, he says 120303D can be met with conditions. So, if the evidence was enough to satisfy 120303D with conditions, and specifically says he met 100504 and 80602J, why is it not good enough later in the decision? I think I think the response is that the the finding specific to lighting that it is feasible to design and install outdoor lighting is not a conclusion that the application as proposed uh contains enough information to conclude that its proposed lighting would in fact satisfy that criterion. The fact that that it is feasible uh and could be met with conditions does not mean that that specific criterion is met uh as proposed with the information in front of the hearings officer. To the extent that the argument is that the findings are inconsistent, that the finding on right here in the on page 18 at the bottom with respect to lighting is different from the finding uh elsewhere in the record with respect to 806. Uh I can't remember the the the finding is at um record 24 to 25. That was not the uh assignment of error. The assignment of error was not that the findings are inadequate because they are inconsistent with one another. And I don't think it's I don't think it's the board's responsibility to sort of make the argument work. If that was the assignment of error, that should have been presented in the petition for review and we would have had had an opportunity to think about and respond to that in a meaningful way, which we don't right now. Okay. On on the noise issue, and I don't know if we're we're probably getting pretty close to the time here. Do you have a a Yeah, I have I have a quick question and I'm asking a lot of questions. I'll give you a little more time. How do you see exactly how that section works cuz there is the first section says you can you have to meet, you know, the 60 decibel level at certain times and it talks about what noise you count. And then there's a it doesn't say how how you have to do it. And then subsection two says a noise study may be required. And then then it comes in and says you have to have the type two one or two meter ANSI standards, weighted scale, fast and slow. Um, and because the hearing's officer's decision pretty clearly says, "If I could rely on this noise study, it's great. He He sails through." Um, and so it seems to me the only thing that trips him up is that that he didn't put in the ANSI standard language, those magic words. Um, my my first question is is how does subsection two work? A noise study may be required. When when does it determined when it must be required? I I It's my understanding that if if the noise was challenged, if if someone appeared in the in the proceedings and argued, "No, this use is going to be too loud." Then, uh, the hearing's officer might have discretion to require a noise study to to put that, uh, dispute to bed. Um, in this case, I don't think it matters because the argument from petitioner in this in assignment of error, uh, three isn't that the hearing's officer erred in requiring a noise study. That's not the That's not the assignment of error. The assignment of error is the hearing's officer erred in concluding the noise study didn't comply with ANSI standard 1.4-1971. Right, but he's I think petitioner's arguing that his noise study's good enough. And the only reason you could say it's not good enough is he doesn't have the ANSI standard language in there. >> Right, but Right? And you only get to needing the ANSI standard language if the noise study has been specifically required. Right? >> Our our Well, our response is that it's my understanding, like you, I'm not an expert on ANSI standards, but it it it tells you what what what is required for a sound level meter in order to be accurate, what components it has to have, but also in which context a type one is required versus a type two. It's my understanding that type one is supposed to be more precise, more reliable than a type two sound level meter, and one is required for certain circumstances, and the other is required for other circumstances, like field work, but maybe even field work where some of the sound is above a certain uh hertz, requires a type one. And and it was not the hearings officer's job to look at ANSI 1.4-1971 and decide whether the information provided met that standard. It was petitioner's obligation in the first instance to make that connection. Right. What I'm getting at is if he had just submitted his the one he the noise study he submitted and there was no official finding from the county that the noise study must be required, it would probably be fine. There there is a finding. I know. So what So where is that? Oh, I'm sorry. Yeah, yes, it's uh it's in our brief, record 41. A noise study is warranted in this case. >> Is that the hearings officer's decision? Yes. Record 41. >> he's I think Is that where he says it's warranted uh a noise study >> Warranted in this case. Yeah. Well, if that's the first time he's officially required to do one and it's in the final decision, isn't that a little late for him to meet all the standards? What I'm hearing from you, Board Member Wilson, is an argument that did not appear in the petition for review. Well, he's arguing his his noise study is good enough. But but he's not arguing that the hearings officer erred or he he would he should have been required to respond to the the the requirement for a noise study. That's a separate assignment of error. I should have I should have been I should have been allowed to explain why a noise study is not warranted. But he didn't argue that in the petition for review. Where I'm I'm hearing that argument for the first time now. Okay. All right. I've asked you a lot of questions and we've gone over, so uh if you have if you want to wrap up real quick, you can. No, no, I I think the fire safety issue is it should be the easiest for the board to rule on. Petitioner identifies the analysis that was required. The evidence in the record that he cites in the reply brief does not address that standard. And and and it it as this board knows, if it denies any assignment of error, the analysis stops there and the decision should be affirmed. Thank you. Okay, thank you. All right, petitioner uh it's your opportunity for rebuttal. I I asked them a lot of questions and they ran over, so you get a few extra minutes to for your rebuttal. Is it okay now? Yes. Can you hear me? So, what we heard uh today focus on lighting, noise, building, farming facts as if this case turns out on missing evidence, but my point is simpler. The county was required to engage the evidence that is in the record and explain why they does not satisfy the legal standards. It did not do that. For lighting at fire, lighting information was submitted, but the final order does not meaningfully address it. It actually doesn't at all. Uh it's post hoc thing they're trying to make it work, but it will not cure the the problem. For noise, the county points to the meter, but does not explain why it that uh defeats otherwise uncontradicted evidence of compliance. Uh for farmer forest impacts, the county does not identify the actual practices that uh that that actual impact pathways or explain why an impact would be significant and just trying to to make the the con- the gentleman is trying to make uh uh change the the argument that we demand that that the county uh has to do that and that's not the point. That we we didn't do that, but even if we didn't do uh provided evidence the county is still required to to provide which of our off pathways will increase or increase the cost or of of um operating a farm. So they they did not do that and not mention anything. And for the the buildings um the county found that the majority of activities are going occur in the barn but does not explain why that fails the substantiality. standard simply because of incidental use of other structure like the restrooms or the house. So this is not really about lack of evidence. It is about the county failing to connect its conclusions to the evidence in the record and to the standards it was required to apply. For that reason remand remand is required. Um Any questions or And I will I will just want to make sure want to go back to the building the gentleman was saying that that the barn the barn is an approved building related to the farm. Also the bathroom is uh uh incidental to the the the farm. It was approved by by uh by county through permits and stuff. The house as well as so as any one individual even the barn has to be approved by uh by permit and actually the hearing officer mentioned that that is that is the the step as industrial building and as all of them will be. So, I don't see that a point of denying. Okay, so again, we are asking to remand the case. Okay. Thank you, Mr. Campion. Thank you. Any other questions from the board? Okay. All right, with that, that concludes oral argument. Our statutory date for issuing the opinion is April 10th. We anticipate meeting that, but in case we don't, would the parties agree to an extension of 21 days for that, if necessary? Thank you. Thank you. All right, thank you everybody and