Five-year-old Crook County law challenged and mediation unsuccessful, prompting possible withdrawal

A five-year-old Crook County ordinance associated with mapping big game habitat was the subject of a recent public hearing.

Ordinance 259, which was passed in December 2012, was an amendment to the county's comprehensive plan that changed the local big game habitat overlay.

"The intent of that ordinance was to provide additional protection to big game and to clarify property owner rights when their property is located within one of the wildlife overlays," explained County Counsel Jeff Wilson. "To some degree, it was intended to more precisely identify big game habitat in Crook County because in the past, there was really a pretty broad-brush approach to identifying big game habitat in Crook County. Essentially, most of the county was identified as being within big game habitat."

The ordinance primarily addressed what can be developed on property in the wildlife overlay as well as what farm and nonfarm dwelling property owners in the overlay can build.

Wilson noted that the ordinance created two distinct areas within the overlay. The "west county area" was comprised primarily of Prineville and Powell Butte, and most of the remainder of the county fell into the "greater county area." Because development is more prevalent in the west county area, the ordinance reduced the minimum parcel size for development on the wildlife overlay from 160 acres to 80 acres.

In addition, Ordinance 259 included a residential density calculation, Wilson said, which looked at the number of dwellings and structures within a mile radius of a property. If the density was low enough, a property owner within the wildlife overlay may be allowed to develop a parcel smaller than 80 acres.

While the county approved the ordinance, it didn't take long for other organizations to challenge it. In 2013, Central Oregon Land Watch, the Department of Land Conservation and Development (DLCD) and Oregon Department of Fish and Wildlife (ODFW) appealed the adoption of the ordinance to the Land Use Board of Appeals (LUBA).

Central Oregon Land Watch disputed the reduction in minimum parcel size because the larger parcel size typically provides more area free of development within a property. DLCD and ODFW, meanwhile, objected to the inclusion of the ordinance's density calculation.

"The case was then transferred into mediation," Wilson said. "The parties all agreed to voluntarily mediate to try to resolve the issues without further appeal."

The mediation lasted three years, finally concluding in 2016 when the case was reinitiated by LUBA because the parties could not reach an agreement. Wilson said the case is still pending before LUBA, although the county tried within the past couple of months to file a motion with the agency to remand the case back to the county.

"So rather than move forward with the appeal, the county requested that LUBA send the case back to the county, and the county could conduct further hearings and decide whether or not to modify Ordinance 259, leave it the way that it is or rescind it altogether," he said.

LUBA did not agree to the request and, according to Wilson, decided to treat the request as a motion to withdraw the decision and reconsider the ordinance. Consequently, the county held a public hearing Wednesday regarding reconsideration of the ordinance and is planning to hold another discussion about it on July 19.

"At that time, the court will likely make a decision and then that decision will go back to LUBA," Wilson said. "Then the parties will have an opportunity to decide if they agree with that decision or if they want to continue to appeal."

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