LUBA overturns county ruling on zoning change

A state land board this week overturned a zone change on a 340-acre property near John's Peak after determining Jackson County misapplied its own planning laws.

The Oregon Land Use Board of Appeals upheld a challenge filed in November by the land-use watchdog group Rogue Advocates after the county allowed the property near Jacksonville to be divided into 10-acre lots.

Rogue Advocates claimed the county's action circumvented state land-use law to allow an easier way to change the zoning on a property.

The landowner, Edward Cox, has attempted to develop the land near Jacksonville for years, and was among those who filed a claim under Measure 37, a property rights initiative that was later weakened by voters.

He then applied for a zone change from forest to rural use, a new county zoning designation that allows 20-acre minimum lot sizes if it can be proved the original zoning was incorrect.

Later, Cox asked Jackson County to change the property from forest zone to another category known as rural residential, which would allow it to be divided into smaller 10-acre lots. After hearing Cox's arguments why the property should not be classified as forest land, the county approved the request.

In reversing the decision, LUBA cited the county's own planning rules that say a zone change to rural residential cannot be made until the applicant goes through state planning review process to show why the property should not be forest zone.

Jimmy MacLeod, executive director of Rogue Advocates, said the net effect of the county's zoning approval on the Cox property would be to encourage sprawl by opening up more rural land for development.

He said the county ultimately could rewrite its ordinance as a result of the LUBA ruling to find a way to allow more residential development in rural areas.

"I think the important thing to keep in mind is it isn't over," he said.

MacLeod said if the county does propose a revision for rural development, it would involve a rigourous public review process.

Frank Hammond, attorney for the county, said the county is considering its options in light of the LUBA decision. "We're still studying it to see if there are grounds for appeal."

Mark Bartholomew, a Medford attorney representing Cox, said no decision had been made on a possible appeal by his client, but he still thought the county was correct in its legal position.

"The general law is the local government can interpret its own ordinance in the event of an ambiguity," he said.

The county created the rural use zone classification in 2006 after planning officials, county commissioners and local cities clashed over minimum lot sizes for rural properties. They eventually reached a compromise intended to be less disruptive to wildlife and less likely to strain police and fire services in nearby communities.

When the rural use zone was first approved, the Board of Commissioners adopted a 10-acre minimum, but the Oregon Court of Appeals upheld a challenge to that minimum by local cities. After much debate, commissioners finally adopted the 20-acre minimum.

In its decision on the Cox case, LUBA said the county was allowing too much latitude for property owners to choose between a rural residential zone and a rural use zone without taking into account state laws.

The net effect of the county's position would nullify the much-debated rural use zone, the LUBA decision stated.

Reach reporter Damian Mann at 776-4476, or e-mail

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