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Oral Argument 2025-064 Ryland v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=CB7rbYJ4fWY). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral argument in luba number 2025-064 Ryland versus Clackmus County. Um I'm assuming Council Petroski you are an attorney at one of the law firms involved in this case. I don't see your name on the brief, so I'm I'm confused about your appearance today. Can you come off mute and uh let us know which party you represent? Or maybe the county can give us some information here. [gasps] >> Mr. Petroski uh is an associate at Mr. Stamps Law Firm and I believe he filed a a letter um or maybe Andrew did on his behalf with the board explaining that he would be handling oral argument today for intervenor respondent. >> Great. I did not see that but appreciate that explanation. Um and that would be the right thing to do to to provide a notice of appearance. And uh Petitioner Ryland, I assume you're joining by phone and don't intend to appear by video. Is that correct? Yes. >> Okay. And if you can either get closer to your speaker or um you know if you could turn up volume. I I can't hear you Can we do a test to make sure that when you're start your argument we can hear you clearly. >> Okay. Is that better now? >> That is much better. Thank you. Um so those kind of initial questions out of the way. This is the time set for Ryland versus Clackmus County Luba number 2025-064. I am board chairs Moodio. Board members Wilson and Basham are also present. And uh uh Petitioner Ryland, just so you know, this oral argument is being recorded and live streamed via YouTube. You might not have seen that or heard that joining via phone. I just wanted to let you know that that's happening. So you'll be able to access this on our website afterwards. And anyone else who wants to watch or listen is able to do that as well. And please mute your audio when you're not speaking. I'm not aware of any pending motions um in this matter. Is there anything the parties need to bring to our attention? No. Okay. So, we'll go on. Oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes um to argue and you can reserve up to five minutes for rebuttal and that's the time to respond to intervenor respondent or respondent's argument. Do you want to reserve time for rebuttal, petitioner? Yes, please. >> How much time would you like to reserve? You can reserve up to five, but you don't have to reserve that much if you don't want to. >> Um, five. >> Okay. So, I'll keep track of time here and ask that you also keep track of your own time. Um, and let you know when you're getting into your rebuttal time. And then intervenor, respondent, and respondent. You filed a joint brief. Have you decided how you'll share your time today? Um I intend to use uh the majority of the time if there's any leftover any questions directly for uh Caleb that that's fine. >> Okay. So with that uh petitioner please state your name for the record and begin. >> Good morning. This is Lori Ryland and I really appreciate the opportunity to address the board. >> Go ahead. >> May I start now? >> Yes. Go ahead. Thank you. Okay. So, unlawfully narrowing the scope and mclassification of the project. By misclassification, mclassifying and unlawfully narrowing the scope of the review, the county excluded mandatory standards and produced an approval unsupported by findings. The county treated a substantial structural reconstruction as a DZO1206 alteration and roof repair and unlawfully narrowed the scope of review allowing exclusion of threshold standards for excess fire safety and construction feasibility. I'm asking Luba to decide whether the county applied the correct approval framework. If the wrong approval framework was applied, the decision is unlawful, regardless of how long the structure has existed or what use is allowed outright in the bay zone. This is not just an alteration in roof repair. The county's own record describes work far beyond a m minor alteration. a full new roof over the existing structure and roof approximately 5 feet taller than the existing roof with a total new roof height of 31 ft with new structural work at the foundation and peer level and with renovations. The project results in a 2300 square foot multi-level building on a steep creek creek side slope located approximately 28 ft below the top of the cliff or slope edge. A project of this scale necessarily requires construction staging material handling large equipment such as cranes or equiv equivalent heavy lift methods. The county cannot lawfully discard these impacts by labeling the project a narrow DZO1206 alteration and roof repair and defer all other impacts as ministerial later. The feasibility and access problem the county excluded is straightforward. Even assuming the road, the adjacent slope and the triangular area above the slope function as a public right of way, the project cannot be constructed as authorized without exclusive construction staging, heavy equipment loading, or temporary obstruction of the only fire and emergency access for a 12 home community on Cedar Creek Lane. The Furwood Community Planning Organization to together with fire officials at the Dover Fire Station voted 25 to zero against approval and advised county staff of serious fire access concerns, stating that Cedar Creek Lane is potentially very unsafe should a fire impact this area. Active access is limited and massive amounts of fuel are present. This is a quote in an email to planner Gazner June 6, 2025. That's an exact quote. Yet, the county dismissed these concerns without finding. A local government may not evade mandatory standards by mislabeling the nature of the project. Here, mclassification is the reason access, fire safety, and feasibility issues were excluded as out of scope. The county assumed these off parcel areas within the ride ofway and the triangular-shaped area next to the row may be occupied for exclusive private construction use but made no findings that such use is lawful or feasible or any findings addressing design safety or suitability. The triangular shaped area above the slope or cliff cliff that the house rests on um sits below against the row. The row is a steep slope. The triangle area above it is the only flat usable area for equipment staging or crane setup. The largest area measures approximately 42 feet from the slope edge to the petitioner's fence which is including the narrow single lane dirt and gravel road in between. The county made no findings that this area could physically support heavy equipment ranging 35 feet to 42 feet in length weighing 35 to 50 tons for construction staging staging infrastructure risk that makes this omission material in this same area. There's an existing deep wells serving multiple residences. Heavy equipment such as cranes in the 35 to 50 ton range present foreseeable risk of ground settlement, long-term loss of well integrity or contamination, risks that carry costly re remediation and irres irreversible consequences that the county never evaluated or addressed in findings. These risks are material because the county's approval assumes this area can function like a normal construction site without any findings addressing load limits, protection measures, traffic control, or infrastructure safeguards. Neither county planners or inspectors visited the site with any findings addressing how cranes or heavy equipment operations could occur on a constrained 16 to 20 foot wide road without blocking emergency access. What legal authority, if any, pres permits the specific scope of construction staging and heavy equipment use proposed for the top of the slope area or how the shared well infrastructure in this area would be protected from heavy loads and repeated maneuvering? Instead, the decision relies on a paper plat and legal adjacency theory that does not resolve the physical reality. The platted rideway in front of the dwelling is a steep wooded slope, not a usable access or staging surface. A budding on paper does not create real real world capacity to construct a major project. Even assuming that adjacent cliff or slope area and the triangular area function as a public rideway, public row status does not automatically authorize permanent or exclusive private use such as constructing a driveway or a construction pad, repair or replacement of the deteriorating retaining wall holding up the edge of the road. tree removal for private benefit or conversion of road space into a construction staging area. Such uses must be consistent with the purpose of the rideway authorized by law and supported by findings that they are lawful and feasible in this location. Here the project's construction, access, and staging would require exclusive private alteration of the slope area subject to an encroachment permit. Yet the county made no findings that these uses are permissible or feas physically feasible uses of the rightway for this project as approved. The county's decision to classify this substantial reconstruction as a narrow DZO1206 alteration and roof repair and to use that classification to exclude mandatory feasibility, access, and safety analysis must be reversed. Once the county declared these issues irrelevant, no amount of post hawk permitting can cure the defect. Requested relief. This approval cannot stand because the project cannot be constructed. It's authorized without occupying and exclusively using off parcel land, the row or cliff and the triangle area in between the row and the cliff and the road. Even assuming public right of way status, the county made no findings that such use is lawful or feasible for this project, rendering the approval legally >> Thank you. Are there any questions from the board? >> Yeah, I have a quick question. Uh, Mr. And in your seventh assignment of air, I believe you argue that the non-conforming use was aband or discontinued. And then your brief says the record includes extensive probate evidence establishing that the structure was abandoned, deteriorated, effectively a tear down. We don't really talk about what that evidence is. What what is that evidence? Well, if well, first of all, a physical inspection of the site um would confirm everything that was documented in the 364 pages in the probate record. Plus, I submitted um 106 pages of a quiet title um that I um um filed with the circuit court, which isn't it's more of a land use documentation than quiet title. Um and then those same exhibits were submitted to the hearings officer and the probate um documents of 364 pages describe the structure with the uh why they came to the conclusion as a tear down plus all my photos and if anybody would have visited the site and actually looked at the structure which I have in email in writing by multiple people the planners um everybody body. Um there wasn't anybody and that was one of the reasons that the CPO, the firewood CPO voted 25 to zero is they actually the fire department was in attendance at the meeting. The fire chief was there. Um they actually looked at the building. They documented all that um in an email to Maya Gazner saying that it was deteriorated. Um they >> sorry to interrupt but is >> is there anything in there that talks about whether people were living there during this time >> and were people living there? That's I'm wondering were people living there? Um well there was over two and a half years where um it was um considered uh uninhabitable um per the probate records and there were squatters living in there un illegally. It was vacant for a really long stretch about two and a half years of uh unlawful use and that's all documented in those 364 pages. That's why in my original um appeal to the hearings officer I talked about that um it was not habitable and use was discontinued and the vote from the CPO the 25 members they also came to that conclusion that it it should never have been approved just because of the discontinuation of use. >> Okay thank you. >> Any other questions? No more questions from the board. So, you will have um three and a half minutes for your rebuttal time and we will turn to the intervenor respondent. Please state your name for the record and I also apologize. I do see that there was a notice of appearance filed from the intervenor respondent. So, I appreciate that and apologize for the confusion. Please state your name for the record and begin your argument. >> Thank you. Uh good morning. Uh may it please the board. My name is Spencer Petroski. On behalf of Intervenor Respondent Jennifer Kapnik and Terry Idmo, um as I said before, I intend to utilize uh respondents time, but Caleb is here. Um here, Intervenor asks Luba to affirm the county's decision uh approving this non-conforming structure uh for verification and alteration. Uh it's an existing single family dwelling on RF5 land. Uh before I get started, one thing I want to point out is that uh the board uh should see that in our briefs we said that assignments of error one through nine should be denied for failure to explain the grounds for appeal. Um our statements to that effect should have been directed towards assignments of error 1 through eight um and not included assignment of error 9 as that's a procedural error. Um this appeal uh should be affirmed by the board and I really I really just have four issues that I want to touch on. Uh first I think that uh miles waiver and exhaustion necessitate denial of the first assignments uh of error 1 through 8 uh based on petitioner's defective local appeal statement. Second assignments of error 1 and seven uh fail because they misapply the law for non-conforming use verification uh and should be denied on the merits. Third, assignment of error 9 should be denied because petitioner did not meet their burden to demonstrate a procedural error that prejudiced her substantial rights. And lastly, assignments of error two through six and eight fail because they don't identify approval criterion that's relevant to this application. Um I I I think that miles waiver and exhaustion really is the the key principle here. Uh the ZDO in uh 1307.14b3 requires that the local appeal notice state the nature of the decision and the grounds for appeal. Um it also makes uh completeness of that uh notice of appeal uh and failure to timely file it. uh as a jurisdictional defect. Um and >> did the did intervenor respondent raise this issue during the local proceeding? >> Yes. >> Where in the record is this issue? >> Um uh so oh whether whether it was a jurisdictional defect or whether uh miles waiver affected either or both of them. Uh we did raise the issue regarding um uh Miles waiver but not uh the jurisdictional defects. The hearings officer did obviously uh listen to um we we yeah we we did not raise the jurisdictional defect uh issue that uh that is just something that we are talking about for purposes of uh you know how it it >> where did intervener respondent raise the miles waiver issue and when during the local proceeding. Do you have a citation or was it during the hearing? >> I I believe it was uh in our briefs. I do not believe that it was during the local hearing. Um >> Okay. So, I just want some clarity here. Was this issue before the county? Did intervenor respondent during the local proceedings say the appeal statement is insufficient because it doesn't state the basis for appeal or is that an argument that is coming to us for the first time? >> That is an argument that's coming to you for the first time. >> Okay. And relatedly, council, this was an appeal of a planning staff decision to the hearings officer to a denovo hearing before the the hearings officer. Uh are can you site any cases where Miles waiver has been applied in that circumstance to a hearing? >> So, uh you know, the fact that it's a denovo hearing, I do understand how that changes things. Um but I I would just like to point the board to cases like Zaiton and also Lang. I understand that um those have similar code provisions uh to miles in terms of requiring grounds for appeal to be listed in the local appeal statement. Um and uh you know the the main issue here, the reason why this is really important is uh you know not adequately raising those grounds for appeal in the local appeal statement. It affects our ability to prepare for the hearings officer's hearing uh and uh you know get witnesses ready uh make sure our experts are able to attend if they need to and any rebuttal evidence that we would need to uh prepare for and uh you know uh I I think that waiting weeks after the local appeal statement to try to supplement that local appeal statement uh by the petitioner tried to do that on both August 7th and August 11th uh which is considered outside of that 12-day deadline uh that ZDO 1307.14A requires and that uh you know is considered untimely. It it's it really is a defective local appeal statement. I I do understand that uh the county did not actually rule on on that and that was not an issue that they talked about at uh the hearings officer's decision, but um you know, >> was there an objection from the intervenor respondent below? I understand your concerns about procedural fairness, but it seems to me that it would be incumbent upon the intervenor respondent to say we didn't have notice of these issues because the appeal statement does is not consistent with what the code requires. Did that happen? And if so, where did that happen? I'm still confused. >> Apologies. Um so uh we did uh bring up to the hearings officer and object uh I believe to um not the defective local appeal statement but uh to the lack of notice about uh you know those issues being in in uh >> and is there a citation in your brief to where that occurred where that objection occurred? >> No. >> Okay. Thank you. Go ahead. Um so uh as it relates to the merits uh the first assignment of error that I I would like to talk about is a assignment of error one. Um petitioner tries to flame uh frame this as a lawful establishment um as if the right-of-way encroachment at uh at the construction of the dwelling were to defeat verification under the non-conforming use criteria. Um the correct standard uh is ZDO 12605 and whether the non-conforming aspect existed when zoning restrictions were adopted and whether it was discontinued. Uh the hearings officer here uh relied on the fact that uh the zoning was first applied to this dwelling in 1967. Uh which predates zoning. Uh the hearings officer also relied on the county appraisers assessment that the dwelling was built sometime between 1920 and 49. Um, and also there was a tax jacket that uh he relied upon which showed a bill date of 1930. Um, that was well before the 30-foot setback or any zoning restrictions were applied to this property. Um, another thing that I'd like to point out is that uh the uh platted rightway issue. Uh the hearings officer considered that outside of the scope uh of the non-conforming use and uh noted that there was a engineering uh revocable encroachment permit provided to the applicant. Um you know and that that itself the encroachment permit was not related to the NCU approval. Um and the hearings officer also noted um the the distinction between where the asraveled the asriven road location is and where the encroachment occurs in the right of way. the encroachment into the right of way is occurring in a part of the rightway that is not actually built. It's not actually driven on. Um and so uh as it relates to assignment of arowan petitioner uh identifies no approval standard in zdo 1206 that makes uh any historic encroachment into platted or unopened rightaway a basis to deny verification or alteration. Um the next thing I'd like to talk about is assignment of error 7. Um that's again that's related to abandonment or discontinuence. Uh petitioner here treats the residential use itself uh as the non-conforming use and that argues that it was discontinued. Um I heard the question previously by u uh board member Wilson um uh as it relates to discontinuence. And I I I just want to focus on this that the the hearings officer uh correctly framed this application as one uh dealing with a single family detached dwelling that's an allowed use in the zone. Uh the dwelling itself, the occupancy of the dwelling itself is not at issue here. The discontinuence is primarily related uh to whether or not the encroachment, the non-conforming encroachment has has been changed. So, so a lot of jurisdictions, they make a distinction between non-conforming structures and non-conforming uses and treat them differently. Does the Clackamus County zoning ordinance do that? Does 126 do that? >> Yes. Uh there there is a a a difference between a non-conforming use and uh a a a structure that is not that doesn't conform to things such as setbacks and uh and height and and other criteria. And and that's it. Where where is that in 1206 that talks about the distinguishes between the two? >> It's in the definition section. So that would be two section 202 uh of the ZO. It has a definition that that talks about that. >> Um I I believe it's uh in our brief as well that we talk about it. >> Okay. So So what is so what is your position what the the non-conforming use is here? So, the non-conforming use uh or or I guess you could arguably call it I mean we call it a non-conforming use because that's the section that it's in in 1206, but in reality the distinction is that it's it's a non-conforming structure. It's not a non-conforming use. The use is allowed in the zone. The use is not non-conforming. uh a a detached single family dwelling is allowed to be built in RF5 land, but the actual nonconformity is the non-conforming setback, which again did not apply. The setback did not apply when this building was built in the first place. >> Right. So, so under your the way you're looking at this and the way the hearings officer looked at it, it doesn't matter if that house was unoccupied, nobody lived there for decades, say, right? >> Correct. And so even if even if the house is completely falling down, as long as the part that's in the occupied ride ofway is not falling down, you're still okay. Is that right? >> I I mean, you know, uh I I would say uh that to the extent that the dwelling is in a state that's not, you know, uh not somewhere where everyone would want to live is is not relevant to this uh non-conforming use application. Uh the uh the uh applicants here are attempting and wanting and very willing to make this dwelling very much, you know, a a home for themselves and to uh change the, you know, help the structural integrity of it. And they're doing everything that they can to do that and to clean up the property. Um and and again, that just the the level of uh uh issues with, you know, the structure itself are are not related to the criteria here. So the the residential use was discontinued but the right-of-way occupation was not discontinued. Is that correct? >> I I I would I would push against that in the sense that uh the previous occupant uh previous owner of the property died and it went through probate and that's what led to a delay uh in it getting into the hands of uh Jennifer Kapa and Terry Mo. But uh to the extent that you know that there was any discontinuence uh again it's it's related to the setback and not related to the actual residential use as that's a conforming thing in the zone. >> Okay. If Miss Ryland were correct that not living in the house for 24 months would mean it was discontinued. Was there 24 months of that kind of discontinuence? I I realize you have arguments against that and there we'd have to even get there. procedural things, but if if we did >> and it if being discontinued residential use for 24 months would result in denial, is that what would happen? Or do you have an argument that it wasn't actually discontinued residential use for 24 months? >> Um, I believe uh to the extent that we argued about this um it it was primarily that that is not the type of discontinuence that we're referring to, that's like outside of the scope. Um, and to the extent that we really argued about the level of of discontinuence, I'm I'm not aware uh to what extent we focus on on how long it was not used as a residence um or whether enough whether there's enough evidence in the record to support that uh it had been residentially discontinued if that were applicable. >> Okay. Thank you. >> Yeah. Um so uh just you know as it relates to both assignments of error one and seven uh we uh hold the position that uh those assignments of error misapplied the ZDO uh of what was required by ZDO 126 and what the hearings officer had to decide. Um so if Luba does not agree with our miles waiver analysis these assignments still should be denied on the merits uh as they're not tied to the proper uh standards and in in front of the hearings officer. Um next I wanted to talk about assignment of error 9 which is the only procedural claim here. Um this challenges the 777 open record period. Um and you know this focuses on uh uh a preservation issue uh regarding this procedural error. Uh and you know procedural objections they have to be raised when there's an opportunity to do so. And here uh uh the petitioner agreed to this 777 format. Uh they did not timely object when that issue arose in front of the hearings officer. Uh petitioner did not invoke the statutory remedy that actually addresses her complaint uh regarding the 777 format. Uh found that OS1977976C, which allows her to make a written request for an opportunity to respond to new evidence. Um and she did not request that relief. Um, additionally, uh, there's a prejudice requirement in that statute. Uh, and so even if there is a procedural defect that existed, uh, no remand can, you know, uh, can happen when there's no prejudice to her substantial rights. Uh, she doesn't identify what she would have submitted, what arguments uh, she was prevented from making uh, or how it could have changed the outcome. Um, and you know, another point that I just like to make is that if new evidence was entered into the record during the local proceeding, but didn't play a role in the decision, uh, there is no basis for reverse or remand under OS 19783598. Uh, as it could not have prejudiced or substantial rights. Um, I would point the board to Neighbors for Smart Growth, which we cited in our uh, brief. Um, and the next thing I'd like to talk about is >> you you've reached your 15 minutes, so this is seems like a good place to stop. We will return to the petitioner. Uh, petitioner, you have three and a half minutes for your rebuttal. And go ahead when you're ready. >> The county addressed and decided the issues on the merits of form defects cannot convert decided issues into waiver. Um the set that the setback um I'm sorry encroachment matters because it goes to whether the project is legal legally feasible as approved. Um the issues were raised in the local appeal and the hearings officer ruled on them as out of scope which establishes notice and preservation. Um the statutory remedy 777 um when I submitted my uh evidence um the planner that I was dealing with would not submit it until the very last day of the seven days. Um I was not aware that there was a statutory remedy for the all of the um filings that happened on the very last day of the very last week that I was not allowed to um um that was just um for the last word for the defendants. Uh I was not allowed to say anything there and I was not aware of a statutory remedy to remedy that. Um but it probably occurred because of the 777. Everything was submitted on the last day which gave nobody time to um if they didn't submit it when you submitted it then it didn't give you any time to rebut it. I use all my three and a half minutes. >> Now you still have about a minute and a half. You can continue if you want or you can end there. There's no rule that >> Did you have more argument that you wanted to present? >> I would say one one more thing. Uh procedural error here is the county's unlawful narrowing of scope and exclusionary of exclusion of mandatory standards, not a defect of how issues were labeled. >> [snorts] >> So I think that kind of wraps it up. >> Okay. Thank you. Uh are there any further questions from the board? No further questions. So that will conclude oral argument. Uh thank you to all of the parties for your argument. Our statutory due date for decision in this appeal is February 19th. We'll ask that the parties agree to an extension so that we issue our decision by March 5th. Is that okay with these parties? Seen for agreement and a yes from petitioner.