David Petersen Recaps the Oregon Court of Appeal's Decision in Ooten v. Clackamas County

June 4, 2015
David Petersen is a Real Estate and Land Use attorney at Tonkon Torp. He and appellate attorney Robyn Ridler Aoyagi represented the petitioner in Ooten v. Clackamas County, 270 Or. App. 214 (2015). David summarizes the Oregon Court of Appeal's opinion in his article "Statewide Land Use Planning Goal Exceptions Do Not Always Authorize New Uses Without a New Goal Exception, and 'And' Means 'And'," published in the May 2015 issue of the Oregon State Bar's Real Estate and Land Use Digest.

The primary issue in Ooten v. Clackamas County was whether or not Clackamas County was required to take new exceptions to Statewide Land Use Planning Goals for preservation of agricultural and forest land when it authorized new rural industrial uses on land previously designated as Rural in the County's 1980 Comprehensive Plan. The County concluded that this did not require new goal exceptions. Both the Land Use Board of Appeals and the Court of Appeals disagreed, concluding that the County should have, but did not, apply the processes in Oregon Administrative Rule (OAR) 660-004-0018 to determine if new exceptions were required. The matter has been remanded to Clackamas County for further proceedings.

Additionally, the Court of Appeals considered the landowner's argument that a list of four requirements in OAR 660-004-0018(2), separated by the word "and," should be read in the disjunctive; i.e. that only one of the four requirements needed to be met rather than all four. The Court declined to adopt the landowner's interpretation, holding that "and" means "and" not "or," and therefore all four requirements must be met to satisfy the rule.