Rest in Peace: Idiot Ridge MX gets the big DENY!

Remember the old saying “Fools and their money are soon parted“?

I’d say there must be something in the Molalla water, because whether it is Idiot Ridge or the ongoing insane money sink called Molalla plannin’, fools are wasting vast amounts of private and public monies on totally ridiculous, sure to fail plannin’ ventures.

I just heard from our fantastic 1000 Friends of Oregon lawyer who confirmed that the DENY findings COULDN’T HAVE BEEN BETTER FOR THE NO MX FORCES! And this great lawyer said that there is ZERO chance Mr. Idiot Ridge could win on appeal to LUBA.

ZERO!

Here’s a salute to Idiot Ridge’s “work” to flush money down the toilet on a LUBA appeal:

“From this perspective, the hearings officer would anticipate that LUBA would find the applicant’s motocross track to have a greater impact on the subject property as a whole than tracks proposed in Tice and Utsey.  For these reasons, I find that in all likelihood LUBA, if confronted with the facts of this case, would adhere to its prior decisions and find that the applicant’s track is not an appropriate use in the forest zone.” Hearings Officer ruling

Update: 1-28: Mr. Idiot Ridge, with his pathetic, weak case will appeal to LUBA. LOL! I hope he understands that ONLY the facts in this original case can be used at LUBA. No new input is allowed. Boy, talk about fools rush in – but hey, when it has anything to do with “Molalla” and “land use” you can be certain that “foolish” is certain to be part of the mix. The only winners in Molalla area land use are lawyers and consultants. I always wanted to be in a LUBA case – there is a god!

By now, we all understand that Mr. Idiot Ridge and his “fans” have zero ability to understand facts. LUBA builds on previous rulings and local land use findings are based on LUBA cases. In essence, the hearing officer has already neatly packaged the outcome of any LUBA appeal. LUBA goes by previous findings and just one finding against MX will kill the appeal. It is a bit hard to understand what part about the fact that DISTANCE OF LESS THAN 3 MILES FROM A CITY LIMIT is a hard cold FACT and enough on its own to kill any private “park” on forestland. DUH!

Here are the significant cases from past LUBA appeals, quoted in the Idiot Ridge County DENY, which all resulted in the great big DENY MX ON FORESTLAND FROM LUBA (again, can anyone connected to motocross read or understand facts? I am starting to doubt it!): quote from the DENY by the Clackamas County hearings officer:

In private parks on forestland, the Land Use Board of Appeals has been asked multiple times which activities are appropriate in a forest environment. . .

f.          Two of LUBA’s rulings directly addressed applications seeking to establish motocross tracks in forest zones.

1.         In Tice v. Josephine County, 21 Or LUBA 371 (1993), the board found that a proposed motorcycle race track was a use that would so dominate and change the character of the forest environment that it was incompatible with nearby forest uses.  In that case, the subject property was 77 acres in size and extensive motorcycle tracks were proposed.  Ticket booths, portable toilets and concession stands were also proposed.  LUBA specifically interpreted the meaning of OAR 660-006-0025(1), which allows recreational uses, stating that amendments to that rule strongly support an interpretation that “in a forest zone only those recreational uses with a relatively low impact on the forest environment are contemplated.”

2.         Similarly, in Utsey v. Coos County, 38 Or LUBA 516 (2000), the board found that a motocross race track was inappropriate for a forest environment, while off highway vehicle or all terrain vehicle paths and trails could be appropriate in the right circumstances.  There, the subject property was 531 acres in size, of which 225 acres would support OHV trails.  A separate 25 acre motocross training and riding area was also proposed.  For the motocross area, the applicants agreed to not allow head-to-head competition or the racing of massed vehicles.  However, despite this limitation, LUBA still found that the motocross track was not appropriate on forest lands.

g.           The applicant does not attempt to distinguish the facts of Tice and Utsey from those of the proposed motocross track.  Indeed, there does not appear to be much difference between the types of use proposed for the tracks in those cases and the type of use proposed here.  Significantly, in Utsey, the track that LUBA denied was on twenty five acres of a 531 acre parcel.  The amount of land disturbed and taken out of forest use would have been only about five percent of the entire parcel.  Even compared to the proposed bike trails on the 225 acre section, the motocross area would have only been about ten percent of the land area.  The facts in Utsey reveal that LUBA considers motocross tracks even on a small portion of forest zoned land to be inappropriate in the forest environment. In the current application there is some dispute about how much of the subject property is improved with the applicant’s motocross track.  The applicant relies on the County tax assessor records which indicate that about 14 acres are planted in trees.  I accept that evidence, but even if only six or so acres is occupied by the track and other associated parking and staging areas, that means that over twenty five percent of the 20 acre parcel is in non forest use.  From this perspective, the hearings officer would anticipate that LUBA would find the applicant’s motocross track to have a greater impact on the subject property as a whole than tracks proposed in Tice and Utsey.  For these reasons, I find that in all likelihood LUBA, if confronted with the facts of this case, would adhere to its prior decisions and find that the applicant’s track is not an appropriate use in the forest zone.

So, given those prior cases, it will be hilarious to see the MX fans get whipped up for another, even bigger DENY. (Note in the County ruling that ZERO weight was given to the “we want to ride” petitions). I am grateful for Mr. Idiot Ridge’s, to put it kindly, naivete, because it will be great to add another LUBA case to the growing number of these NO MX decisions – each LUBA decision against MX helps the next group of Oregonians defeat any MX abuse.

Thanks for helping to build the anti-MX LUBA files, Mr. Idiot Ridge!

How soon can we see the case in the LUBA spotlight? And how soon can Mr. Idiot Ridge lose this pathetic appeal and enrich the coffers of Clackamas County and 1000 Friends of Oregon:

“If you lose your appeal at LUBA, you could be required to pay the winning party’s attorney fees. Under ORS 197.830(14)(b), LUBA is required to order the losing party in a LUBA appeal to pay the prevailing party’s attorney fees and costs if the losing party’s claims were not ´well founded in law or on factually supported information.´ See Fechting v. City of Albany, 150 Or App 10 (1997).
LUBA has required unrepresented parties who presented meritless claims to pay the attorney fees of the prevailing party. If you are unsure about the legal sufficiency of your arguments you would be well advised to consult with an attorney who is familiar with Oregon land use law.”

What part about TOO CLOSE TO THE CITY LIMITS doesn’t Mr. Idiot Ridge understand? I’d say that’s quite a gamble to go to LUBA with that too close to the city limits distance fact on record as a basis for denial; LUBA doesn’t like, per the “legal sufficiency” quote above, to have its time wasted!

Now, let’s cut to the chase for those of you in a hurry to see the the fate of Idiot Ridge, aka Timber Ridge, MX “Park, aka ZDO348-10-C (don’t use that # as your “lucky” lottery pick!):

“E.        DECISION

Based on the findings, discussion and conclusions provided or incorporated herein and the public record in this case, the hearings officer hereby DENIES Z0348-10-C.

And for those MX fans who hoped to party hardy under the old “friend and family” ways of Idiot Ridge, think again:

“6.         It is my conclusion that the County should not have allowed the applicant to construct and use the motocross track for “personal use” without requiring some type of land use approval.  The alterations were not in support of a forest practice, and construction of the track required changes that are something less than temporary . . . The fate of the motocross track and whether it should be allowed to remain on the subject property is beyond the scope of this review. However, based on the above analysis, it is clear that in the absence of a land use permit of some sort, the applicant cannot resume using the track for “personal use” at the magnitude that the record shows has been the case over the past few years.”

Now, for those of you with the time and energy to see why the neighbors prevailed over MX, read the whole case:

BEFORE THE LAND USE HEARINGS OFFICER

OF CLACKAMAS COUNTY, OREGON

Regarding an application for a conditional use permit          )        F I N A L   O R D E R

to establish a private park, campground, BMX course          )                 Casefile No.

horse cart trails, motocross, course and RV parking.             )                 Z0348-10-C

)                   (Thomas)

A.        SUMMARY

1.         The applicant, Michael Thomas, requests approval of a conditional use permit to establish a private park with associated motocross track, BMX bike track, horse cart track, RV parking, and campground.

2.         The subject property is approximately 20.75 acres in size and is zoned AG/Forest which is a forest zone acknowledged under Statewide Planning Goal 4.  The subject property is located approximately 0.45 miles from the intersection of Wilhoit Road and Wildcat Road near the City of Molalla.

3.         On October 21, 2010, and November 4, 2010, hearings officer Kenneth Helm (the “hearings officer”) conducted public hearings to receive testimony and evidence about the application. Multiple parties testified both in favor of the application and in opposition to the application. A detailed summary of the hearings is provided below.

4.         The contested issues in this case are as follows:

a.         Whether the proposed park, motocross track, BMX bike track, horse cart track, RV parking, and campground represent recreational opportunities appropriate in a forest environment consistent with ZDO 1203.01(A) and OAR 660-006-0025(4)(e).

b.         Whether the proposed campground qualifies as a conditional use consistent with ZDO 1203.01(A) and ZDO 407.06(B)(4)(a & d).

c.         Whether the proposed park, motocross track, BMX bike track, horse cart track, RV parking, and campground will not alter the character of the surrounding area in a manner which substantially limits, impairs or precludes the use of surrounding properties in the area consistent with ZDO 1203.01(D).

B.        HEARING AND RECORD HIGHLIGHTS

1.         The hearings officer received testimony at two public hearings held October 21, 2010, and November 4, 2010. All exhibits and records of testimony are filed with the Planning Division, Clackamas County Department of Transportation and Development. At the beginning of each hearing, the hearings officer made the declarations required by ORS 197.763. The hearings officer disclaimed any ex parte contacts, bias or conflicts of interest. The hearings officer stated that the only relevant criteria were those identified in the staff report, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver of arguments at subsequent appeal forums. Additional procedural elements of the hearings are discussed in more detail below.  The following is a summary by the hearings officer of selected relevant testimony.

2.         Prior to the first hearing on October 21, 2010, the applicant made a request in writing for a continuance of the hearing.  At the outset of the hearing, the hearings officer disclosed the request to the public.  Pursuant to ZDO 1303.08, the decision to grant or deny a requested continuance lies solely with the hearings officer.  It has been the hearings officer’s practice to allow a continuance requested by the applicant if there is sufficient public interest and there is some reason to believe that additional public testimony will be likely at a continued hearing.

a.         At the October 21, 2010 hearing, the County hearing room was nearly full, with at least 50 individuals in attendance.  Based on the apparent public interest in the application, the hearings officer granted the continuance.  However, the hearings officer determined that both the applicant and the public should have the opportunity to testify that day.  The hearings officer stated that additional testimony would be allowed at the continued hearing according to the general admonitions described above.

b.         After conferring with staff and the applicant, the hearing was continued to November 4, 2010.  The hearings officer explained that it was his position that an applicant’s request for a hearing tolled the statutory 150 deadline by the number of days necessary to accommodate the continuance.  The applicant voiced his agreement to waive the deadline to allow the continuance.  A tentative goal was set to conclude the public hearings and close the record by December 16, 2010.

3.         At the hearing, County planner Sandy Ingalls, summarized the staff report and identified several key factors related to staff’s recommendation to deny the application.

a.         She explained that pursuant to ZDO 407.06(B), proposed campgrounds could not be located within three miles of an urban growth boundary.  She identified Exhibit 52 which is a map of the area near the City of Molalla UGB.  The map indicated that the subject property is within 2.8 miles of the UGB.  For that reason, staff recommended denial of the campground request.

b.         She noted that approximately 50% of the subject property has been developed or improved and cleared of trees.  Staff found the percentage of developed area to timbered area to be insufficient to be consistent with the AG/Forest zone.

c.         She stated the existing level of noise produced by the motorcycles had drawn a significant amount of negative comments in the record.  In staff’s opinion there was little evidence that the noise could be reduced sufficient to make the use compatible with surrounding allowed uses.

3.         After discussing some of the preliminary issues identified above and the possibility of holding another continued hearing on November 4, 2010, the applicant requested that he be allowed to give a brief history of his involvement with the subject property and the surrounding community.  He acknowledged that his testimony might not have direct relation to the applicable criteria, but felt that it added valuable context to the hearing.  The hearings officer allowed the testimony.

4.         Several parties testified in support of the application.  The comments generally fell into the following categories.

a.         Motocross riding is a safe and family friendly sport.  The existing track on the applicant’s land is well maintained, safe and clean.

b.         Private forest lands are one of the few places that motocross riding can legally occur in Oregon.  Allowing riding on private forest lands helps to keep riders out of public forests where riding is prohibited.  Other motocross parks in the state such as Albany, Eugene and Sandy are of similar acreage as the applicant’s property.  The example of Brown’s Camp in the Tillamook State Forest shows that motorcycle riding is compatible with the forest environment.

c.         The sport helps the local economy.  Allowing the proposal would bring new riders to the area that would spend money on food, gasoline and other necessities while using the facility.

d.         A couple of nearby property owners testified that the noise level from the track is minimal and that the noise buffering around the property is sufficient.

5.         Several parties testified in opposition to the application.  Their comments generally fell into the following categories.

a.         Sue Hansen representing the local CPO and a representative of the South Molalla CPO both testified that their respective organizations voted to oppose the application.  She stated some of the reasons for the CPO’s opposition including an argument that the proposal could not meet ZDO 1203.01(D) due to impacts on surrounding property owners.  Those impacts included noise from the motorcycles, introduction of strangers into the neighborhood, intensive water use, and violations of state wide Planning Goal 4.

b.         Several participants testified that noise levels from the motorcycles are loud and resonate throughout nearby properties.

1.         One party testified that at their home two miles away they could hear the motorcycles as if they were on their own property.  Other opponents testified that peace and quiet are part of the forest environment and a primary reason why they moved to rural Clackamas County.

2.         Many comments were made about the negative consequences of excess noise levels.  Health related problems connected with noise and dust were noted.  One participant claimed that she suffers from migraine headaches which are exacerbated by noise and light.

3.         Other parties testified that they could no longer invite guests to their homes on weekends when the motorcycles were present because the noise level interfered with socializing both inside and outside.  The adjacent property owner testified that her father could not hear his television inside their home.  She noted that when the County Sheriff measured the noise level in connection with a noise ordinance complaint, he did so from her back door and that the measurement was 81 dbs.

4.         This same neighbor testified that she has had significantly less success breeding her miniature horses since the motorcycle track began attracting large numbers of riders.

c.         Several parties testified to high levels of dust generated by the motocross races.  The adjacent neighbor stated that windows must be closed in warmer months because the dust levels are high.  Related to dust, one party testified that the exhaust from the motorcycle engines is a concern and that due to the bowl like shape of the area the fumes may get caught and concentrated in the surrounding properties.  At least one party noted that the Environmental Protection Agency has identified dust as a danger to persons afflicted with asthma.

d.         Many parties testified to concerns about erosion control and stormwater coming off the track and into Rock Creek that traverses the subject property.  Some parties testified that part of the property is sometimes flooded and water must be pumped away from the track.  Other parties were concerned that in the summer months there would be insufficient water for fire suppression and dust control.

e.         Several parties complained that the applicant had built the track without permits and that the current application was asking for forgiveness rather than asking for permission.  Similarly, several parties complained that the applicant does not live on the subject property.  Fears were expressed that similar applications would result if this application were approved.

f.          Many parties testified that traffic would increase in have adverse impacts on residents.  Connected to traffic, some parties testified that emergency vehicles would have a difficult time reaching the track or surrounding properties when needed.

g.         At least two parties testified that they were disappointed and angry with the County for being put in the position of being de facto code enforcement agents for the County.

6.         The applicant made a final comment expressing appreciation for those who came to testify both for and against the application.  He stated that the improvements made to his property to install the track were made with County permission for personal use.  This application is for a commercial use.  He stated that he understood that noise is a problem and that he was working on solutions.

7.         The hearings officer repeated that the hearing would be continued to November 4, 2010.  The audience was reminded that the public would have another opportunity to testify at the continued hearing, and that the applicant, and any other party could submit written information during the interim.

8.         On November 4, 2010 a continued public hearing was held on the application.  The hearings officer reiterated the statements required by ORS 197.763.  The hearings officer noted the large number of participants in the hearing room and requested that the participants attempt to avoid repeating testimony that others had given – while at the same time assuring the participants that everyone who wished to testify would be able to do so.

9.         County Planner Sandy Ingalls once again gave an overview of the proposal and revised staff report.  Staff provided a revised staff recommendation which responded to modifications which the applicant requested.  Exhibit 113.

a.         Staff reiterated the reasons for recommending denial of the original proposal.  Those reasons were:

1.         The proposed motocross track is not a “recreational opportunity appropriate in a forest environment,” and therefore, does not qualify as a conditional use under ZDO 1203.01(A)

2.         The proposed campground is located less than three miles from the Molalla urban growth boundary and does not contain a body of water that qualifies as a reservoir, and therefore, does not qualify as a conditional use under ZDO 1203.01(A).

3.         The proposed track is likely to cause impacts due to increased traffic, dust, surface water problems, fire danger, water usage and air pollution which could substantially limit, impair or preclude the use of surrounding properties for farm and forest uses under ZDO 1203.01(D).

b.         Staff did not find the reduction in intensity of use proposed by the applicant to overcome the above concerns.  These reasons are identified in Exhibit 113.

10.       The applicant made a presentation consisting of several parts.

a.         The applicant made the same opening statement as he did at the October 21, 2010 hearing.  He described his involvement with the local area and his forestry work on the subject property.  He explained the history of developing the track on his property and his intent to work with the County to develop the track and the property for private use.

b.         The applicant explained proposed modifications to the application and intensity of use.[1] Exhibit 77.  These included:

1)         Reducing the number of bikes on the track at the same time from 8                                                 to 4.

2)         Events at the subject property would be limited to 25 persons at                                          one time.

3)         Tent sites would be reduced from 20 to 8 sites.

4)         RV sites would be reduced from 8 to 4 sites.

5)         Daily total participants allowed at the property would be reduced                                       from 250 to 124.

6)         Days and hours of operation would be limited.  Months of                                                   operation would be April – September.  No more than two                                                   weekends per month.  Events allowed the preceding Tuesday and                                      Wednesday.

7)         No camping would be allowed Sunday, Monday, Wednesday or                                          Thursday.

8)         Hours of operation would be 10:00-7:00 all days.

9)         The portion of track adjacent to the Nicholson property would be                                        removed from use.

c.         On the topic of whether a campground could be permitted, the applicant recounted prior discussions with County staff.  The applicant stated that prior to filing the application, County staff had looked at the distance separating the subject property from the Molalla UGB and he was told that it was more than three miles away.  He made the application based on this information.  He was dismayed to find that the County staff had changed their position after reviewing the full application.  In any case, he stated that information and a methodology had been submitted showing that the subject property is 3.03 miles from the Molalla UGB.  Exhibit 74.

d.         The applicant addressed erosion and stormwater concerns by providing comments from Dennis Jurries of the Department of Environmental Quality.  Exhibit 78.  The comments were favorable to the riparian area restoration done on the property.

e.         On the issue of noise the applicant’s expert, Kerrie Standlee, testified on the state regulations that apply to motorcycles.  He stated that the Society of Automotive Engineers provide standards that also extend to motorcycles.  Those standards recommend a maximum sound level of 99 decibels (dbs) at 20 inches from the exhaust pipe.  According to Mr. Standlee, DEQ sets the same standard.  He testified that DEQ rules at OAR 340-035-0030(1)(d) state that ambient noise levels cannot be increased as a result of motorcycles to more than 60 dbs measured at a distance of 1000 feet from the source.

Mr. Standlee stated that 60 dbs is equivalent in sound level to a car going down a road at a distance of 470 feet from the source, or of a person talking in a normal voice at three feet.  He estimated that if the track was removed from the area immediately adjacent to the Nicholson’s property as shown in Exhibit 109, and the number of motorcycles was reduced to no more than four bikes on the course at a time, that the maximum noise level would be 58 dbs measured at a distance of 470 feet.

f.          The applicant wished to respond to comments made by the Salem Chapter of the Audubon Society on the issue of potential erosion on the subject property.  He stated that the letter provided by Dennis Juries disproved that such erosion impacts were likely.  Exhibit 78.

h.         The applicant concluded his initial presentation by explaining the history of development of his property and building of the motocross track.  He said that he started the project in the Spring of 2007 to make a course for family and friends to use.  He stated that at that time County staff informed him that so long as the track was for personal use, that no land use approvals were necessary.  He also notified the Department of Forestry of his intent.  On September 5, 2007 he received a code violation for running a commercial motocross track – and the file was left open for additional information.  On January 19, 2010 the violation file was closed, and he was again informed that the motocross track was allowed for personal use and no other permits were needed until he wished to use the track for commercial purposes.

11.       Once again, many parties testified in favor of the application.

a.         Lance Glivinski presented a petition of support and testified that two other commercial uses are located within one quarter mile of the subject property.  Those uses consist of the Wilhoit quarry and Harvey Burk Logging Co.  He stated that both uses produce a moderate amount of noise which can be heard in the vicinity.

b.         Gary Sargent testified that SB 101 (2008) mandates motorcycle rider education and training.  He said that facilities for conducting the training are in short supply, and that in his opinion the proposed track represented a good opportunity to provide the needed training.

c.         George Latus testified that many riding areas have been closed and that fact has increased illegal riding on lands where off road motorcycles are not allowed.

d.         Steve Corrie testified that he was one of the persons who built the track and that erosion control measures were built into the facility.  He stated that in his opinion those measures had worked.  He stated that in his opinion the subject property is more than three miles from the Molalla UGB.  He noted that when the bikes are travelling downhill they are quieter and that simply changing the direction of travel around the track could decrease sound impacts.

e.         John Burkenbine testified that despite testimony to the contrary, the number of injuries occurring at motocross tracks is low.

f.          Dan Burke stated that a campground is needed in the area because there are insufficient opportunities for camping in a safe and controlled setting.

g.         Keith Wyffels stated that motocross is a sport, not simply trail riding.  Trial riding is recreational.  His son rides and trains hard and wants to be a professional rider some day and the track is an opportunity for him to have a place to train.

h.         Allison Thomas testified that horses will be able to use the track as well, and that she hoped she would have that opportunity.

i.          Jim Newton testified that his experience working as a machinist for Boeing suggested that the noise can effectively be limited.

12.       Two individuals testified as neutral parties.

a.         One party voiced concern that the expectations of surrounding property owners was that farm and forest activities were going to occur on all such zoned property.  If the motocross track were to be allowed in this instance, others would proliferate.  She also stated that the subject property and many other properties in the area are located in a “bowl” and that sound carries and reverberates within the bowl.  She also noted that the applicant had not provided any actual sound measurements to support the claim that noise levels could be decreased to acceptable levels.

b.         Another party requested that the hearings officer look to the purpose of the farm forest regulations and insure those purposes are fulfilled.  This party stated that in his opinion the purpose of the regulations was to protect farm and forest lands for those resource uses.

13.       Several parties testified in opposition to the application:

a.         Sue Hansen stated that even with the accommodations made by the applicant, the proposal still violates ZDO 1203.01(D) because over half the subject property will not be in farm or forest use.  She stated that the applicant’s letter from Dennis Juries does not represent a study on stormwater and erosion on the property.  On the issue of noise, she stated that observers found the sound level from the motorcycles to be deafening.  She related the several court cases targeted the motocross track in Washougal, Washington claiming the track represents a nuisance in the neighborhood.  She stated that the track will sometimes be dry in the winter and dust will result at that time as well as in the summer.  She also testified that no limits have been proposed for creating more such tracks in farm forest zones.

b.         Dave Hunt testified that his home is 700-750 feet from the subject property.  He said that all of his surrounding neighbors are against the motocross track.  He stated that he keeps Arabian horses on his property to train and ride.  There are horse trails on his property and nearby lands that he and his family use.  He claimed that the noise from the motorcycles makes the horses jumpy and impacts their training. He has five drosage horses and when the track is in use the horses become unpredictable and they cannot be trained at that time.

He noted the “bowl” effect of the area amplifies the sounds from surrounding properties.  Because the track produces noise similar in quantity and intensity, he said that in his opinion the subject property is simply not the right place for a motocross track.  Besides the bikes themselves, he asserted that the loading and unloading of the bikes, and the heavy equipment needed to maintain the track will create noise and dust.  In response to the applicant’s sound expert, he stated that the testimony did not account for the constancy of the noise level – like having cars pass by on the road for nine hours per day.  He also stated that the sound expert did not account for peak noise occurrences such as when bikes are started or revved.

c.         Gael Hunt testified that on the day the applicant was cited for a noise ordinance violation, four bikes were subsequently pulled off the track, but the noise level did not audibly decrease.  She claimed that the noise of even a few bikes at a time is enough to interfere with training horses on her property.

d.         Pat Nesbit from the South Clackamas CPO stated that a large number of land owners in the surrounding area have much different expectations for allowable uses on their property.  Even the campground was unanticipated, and she expressed concern about after hours noise at the campground and how it could be regulated.

e.         Joan Zuber stated that even if the recommendations of the applicant’s sound expert could be met, allowing the track to operate as proposed represents consistent hours of noise at levels that are right up to the limit of what is allowed under the County’s noise ordinance.

f.          Sue Heublein testified that dislike uses need to be separated.  She felt that even ambient noise levels near 60 dbs over time would be disruptive to the lives of surrounding residents.

g.         Jeff Eber stated that he lives two miles away and that Wilhoit Road is already in poor repair.  He was concerned about future maintenance of the road.  He also was concerned about the need for a septic system to serve the campground and large numbers of riders proposed.

h.         Nancy Nicholson testified that her parents home is nearly adjacent to the property line of the applicant’s property.  She stated that there was no place for her parents to escape from the noise and dust caused by the motocross track.  She disputed the applicant’s sound expert’s testimony stating that there were no actual measurements of the noise the bikes produce, and no differentiation based on the size of the bikes.  She said that without a schedule for times when the bike would be present, there would be no way to know in advance when the noise would begin and end.

She claimed that the noise produced by the bikes had already decreased her ability to breed miniature horses, which is her business.  The hearings officer asked her to be specific about this testimony.  She stated that in 2002 she had 64 mini horses and in 2003 she bred 26 of which 16 fouls were born.  Between 2000 and 2006, she stated that she only had four or five still births per year.  From 2007 to 2009, she bred between 15 and 22 horses per year and only one or two fouls resulted.  In her opinion, the noise coming from track operations accounted for the decreased productivity of her herd.

She noted that Wilhoit Road has traffic from recreational users which surges on the weekends.  She stated that she felt additional vehicles associated with the motocross track would create problems.  She also questioned where the water needed for dust abatement and fire suppression would come from.  As a final matter she disputed that the track would or could be used for horse cart racing.

i.          Jordan Nicholson is home schooled at the Nicholson’s home and testified that the noise coming from the track has periodically affected his ability to concentrate on school work.

j.          Mike McCord, the district Water Master testified on the current permits and water rights associated with the applicant’s property.  He stated that in 2008, the applicant had made an application to store three acre feet of water on the property.  In late 2009 the water right was issued.  However, the current pond on the property is too small to hold three acre feet of water, and therefore, it cannot be a source of water for the property.  The same was true of a second unpermitted pond on the property.  He stated that about one half acre of the subject property can be irrigated from a domestic well.  In his opinion the three acre feet right is not enough to supply water for dust abatement and fire suppression.  He further stated that no water will be available to the subject property from Rock Creek because that creek is currently over appropriated.

14.       Upon returning to staff, Robert Hixson provided information on the adequacy of the transportation system to serve the proposed use.  He testified that Wilhoit Road in the vicinity of the subject property is flat and straight, and he felt that sight distance was presently adequate.  He stated that traffic volumes measured in 2008 were around 370 daily trips.  To add 125 vehicles would not result in more volume than the road can handle.  In his opinion, if the application were approved Wilhoit Road would still function at level of service D or better.  Finally, he stated that Wilhoit Road is currently 22-24 feet wide and can meet County roadway standards.

15.       The applicant made several final comments.

a.         He stated that more than half of his property is currently forested and both the Department of Forestry and the Clackamas County tax assessor’s office have records of 14 acres being used for growing trees.

b.         He stated that a septic system would not be needed for any of the proposed uses.  The recreational vehicles at the campground must be self contained.

c.         On the issue of water, he stated that the County has paperwork to get the original residential permit for the property acknowledged.

d.         Kerrie Standlee testified again that he estimated that by increasing the distance between the track and the nearest property to 470 feet, that sound levels would be decreased by half.  He also estimated that beyond base sound levels, the audible increase in noise would be in the vicinity of 2 dbs per bike on the track.  The hearings officer asked him about the feasibility of implementing other noise reduction techniques such as requiring mufflers on the bikes.  He stated that all ranges of motorcycles can accommodate a muffler which reduces sound levels, although he did not specify the amount of that reduction.

16.       At the conclusion of public testimony staff and the applicant requested that the record remain open for an addition period of time.  The hearings officer, after conferring with the applicant, set the following schedule:  The applicant and all parties would have until November 24, 2010 to submit additional information.  Staff and all parties would have until December 9, 2010 to respond.  The applicant would have until December 16, 2010 to make a final comment.  Thereafter, the public hearing was closed.

17.       During the period that the record was left open, both proponents and opponents of the application submitted abundant comments.  At the end of the first comment period, the applicant submitted a document stating goals for the proposed park and conditions that the applicant appears to intend to be self imposed regulations for the operation of the park.  Exhibit 110.  On December 9, 2010 the applicant submitted what appears to be a final comment on the application which contains additional evidence, photographs and a CD showing video of existing uses along Wilhoit Road.  Exhibit 112.  On December 9, 2010, staff submitted a revised comment in response to the evidence and testimony provided during the open record period.  Exhibit 113.

18.       The record closed on December 16, 2010.

C.        DISCUSSION

1.         Before addressing the contested issues in this case, it is necessary to identify some of the information and testimony submitted to into the record which the hearings officer could not use in reaching a decision on this application.

As explained above, the hearings officer informed all parties at the beginning of each public hearing that the only criteria that could be in considered in this case are those listed in the staff report.  Specifically, ZDO 1203.01(A-E) and ZDO 407.06 and related development standards.  However, despite this admonition, both proponents and opponents of this application provided a significant amount of testimony and information that does not relate to any of the applicable standards.  The following are examples of the type of information that the hearings officer could not and did not rely upon in reaching a decision on this application.  The list is not intended to be exhaustive, but illustrative.

a.         Many opponents testified that in their opinion the applicant had built the motocross track without permits and that this application is merely an effort to remedy a zoning violation.

b.         Several opponents testified that they believed the applicant had attempted to intimidate them through words and actions around his property.  Exhibit 106.

c.         Several opponents provided information which attempts to show that motocross riders are persons of poor character and that allowing these “strangers” into the area would result in harassment or crime.  Exhibit 107.

d.         Proponents of the application consistently testified that motocross riding is a safe family oriented sport.  The hearings officer has no reason to doubt that this is true.  However, it is not relevant to the applicable criteria.

e.         Proponents of the application testified that opportunities for quality motocross riding and motorcycle training are scarce and that the proposed track would provide additional chances to ride in a legal fashion.

f.          Proponents of the application submitted numerous petitions in support of the park and track.  Exhibit 82.  While such petitions might be relevant to a legislative proceeding where the Board of County Commissioners is considering motocross tracks, this is quazi-judicial review and such petitions do not address any applicable criteria.

By listing the types of information identified above, the hearings officer does not mean to imply that those opinions and concerns are unimportant.  They are simply issues that cannot be resolved in this forum.

2.         The first question to be resolved is whether the proposed park, motocross track, BMX bike track, horse cart track, RV parking, and campground represent recreational opportunities appropriate in a forest environment consistent with ZDO 1203.01(A) and OAR 660-006-0025(4)(e).[2]

a.         ZDO 1203.01(A) requires that five criteria must be met to approve a conditional use.  The subject property is zoned AG/Forest District which is regulated by ZDO Section 407.[3] ZDO 407.04 lists primary uses that are allowed outright in the zone.  A private park with associated recreational uses is not a primary use in the AG/ Forest zone.  For the motocross/BMX track, RV sites and campground to be permitted, they must qualify as a conditional use.  Staff correctly found that ZDO 407.06(B)(4) lists “private parks and campgrounds” as conditional uses in the zone.  Staff also correctly notes that the ZDO does not define “private park” or “park.”  Neither does the County code set forth the uses or recreational activities that may take place in a private park.

b.         To understand the scope of uses that may take place in a private park in forest zones it is necessary to refer to the Department of Land Conservation and Development’s rules governing such uses.  Statewide Planning Goal 4 allows “recreational opportunities appropriate in a forest environment.”  OAR 660-006-0025(4)(e)(A) allows for “private parks and campgrounds.[4] This section is concerned primarily with campgrounds and does not articulate the activities that may be conducted in a private park on forestland.

c.         Because DLCD’s rule is virtually silent as to what specific activities are allowed in parks on forest lands, it is necessary to consult the both the purpose statements for Goal 4 and the general list of uses that are allowed on forest lands.  Generally, the purpose of Goal 4 and DLCD’s rules is to “conserve forest lands.”  OAR 660-006-0000(1).  However, the rules also allow for recreational uses to the extent that those activities are “recreational opportunities appropriate in a forest environment.”[5] Again these “recreational opportunities” are not articulated in any way by the rule.  However, DLCD’s rule does allow the uses identified in OAR 660-006-0025(1) to occur so long as the County can demonstrate that those uses: 1) do not force a significant change in or cost of forest practices on nearby forest lands, and 2) that the private park not increase the risks of fire hazard or the costs of fire suppression.  OAR 660-06-025(5).  These two criteria have been incorporated into the County’s land use regulations at ZDO 407.06(A) (1 & 2).

d.         The upshot of these somewhat incomplete regulations is that the applicant and the local government must show that proposed activities within a private park constitute a recreational opportunity appropriate in a forest environment, and that the proposed use can comply with OAR 660-006-0025(5), or in this case ZDO 407.06(A).

e.         Because the DLCD rules are vague on the activities that may occur in private parks on forestland, the Land Use Board of Appeals has been asked multiple times which activities are appropriate in a forest environment.  In a recent decision, the hearings officer surveyed LUBA’s holdings on this matter.  (Z0531-07-C (Vida)).  The Vida application was for a paintball park in the TBR zone, but the LUBA holdings apply equally to the current application.

f.          Two of LUBA’s rulings directly addressed applications seeking to establish motocross tracks in forest zones.

1.         In Tice v. Josephine County, 21 Or LUBA 371 (1993), the board found that a proposed motorcycle race track was a use that would so dominate and change the character of the forest environment that it was incompatible with nearby forest uses.  In that case, the subject property was 77 acres in size and extensive motorcycle tracks were proposed.  Ticket booths, portable toilets and concession stands were also proposed.  LUBA specifically interpreted the meaning of OAR 660-006-0025(1), which allows recreational uses, stating that amendments to that rule strongly support an interpretation that “in a forest zone only those recreational uses with a relatively low impact on the forest environment are contemplated.”

2.         Similarly, in Utsey v. Coos County, 38 Or LUBA 516 (2000), the board found that a motocross race track was inappropriate for a forest environment, while off highway vehicle or all terrain vehicle paths and trails could be appropriate in the right circumstances.  There, the subject property was 531 acres in size, of which 225 acres would support OHV trails.  A separate 25 acre motocross training and riding area was also proposed.  For the motocross area, the applicants agreed to not allow head-to-head competition or the racing of massed vehicles.  However, despite this limitation, LUBA still found that the motocross track was not appropriate on forest lands.

g.           The applicant does not attempt to distinguish the facts of Tice and Utsey from those of the proposed motocross track.  Indeed, there does not appear to be much difference between the types of use proposed for the tracks in those cases and the type of use proposed here.  Significantly, in Utsey, the track that LUBA denied was on twenty five acres of a 531 acre parcel.  The amount of land disturbed and taken out of forest use would have been only about five percent of the entire parcel.  Even compared to the proposed bike trails on the 225 acre section, the motocross area would have only been about ten percent of the land area.  The facts in Utsey reveal that LUBA considers motocross tracks even on a small portion of forest zoned land to be inappropriate in the forest environment.  In the current application there is some dispute about how much of the subject property is improved with the applicant’s motocross track.  The applicant relies on the County tax assessor records which indicate that about 14 acres are planted in trees.  I accept that evidence, but even if only six or so acres is occupied by the track and other associated parking and staging areas, that means that over twenty five percent of the 20 acre parcel is in non forest use.  From this perspective, the hearings officer would anticipate that LUBA would find the applicant’s motocross track to have a greater impact on the subject property as a whole than tracks proposed in Tice and Utsey.  For these reasons, I find that in all likelihood LUBA, if confronted with the facts of this case, would adhere to its prior decisions and find that the applicant’s track is not an appropriate use in the forest zone.

1.         A second consideration bears on the question of whether a motocross track can be a conditional use in the County’s forest zone.  That is, the decisions in Tice and Utsey have been part of the interpretation of OAR 660-006-0025 since at least the year 2000.  The hearings officer has been unable to find any more recent LUBA or Court of Appeals decisions which would indicate that those rulings are not the current state of the law.  Since Utsey, neither DLCD nor the Clackamas County Board of Commissioners has sought to amend the rules that apply to motocross tracks in forest zones.  The only conclusion that I can draw from that inaction is that both DLCD and the County are content to have the rulings in Tice and Utsey govern this issue.  For this additional reason, I cannot find that the proposed motocross track can be a conditional use in the County’s forest zoned lands.

2.         The record shows, and the hearings officer appreciates the applicant’s modifications to the original application.  The changes in operational hours, allowed numbers of participants, limitations on the number of riders on the track at one time, and the goals for the facility set forth in Exhibits 77 and 110 are all attempts to make this proposal work both for the subject property and surrounding lands.  The hearings officer has also taken note of the management practices and improvements to the tree growing capability of the property that the applicant has achieved.  The photos and testimony in the record fairly reflects the applicant’s desire to have both a model private woodland and a recreational motorcycle track on the same property.   The limitations suggested by the applicant would undoubtedly reduce the impact of the motocross track on the subject property and surrounding lands if they were translated into conditions of approval.  However, even if the hearings officer were to impose such conditions to the management and operation of the track and the subject property generally, it is my opinion that those conditions would still not be sufficient to overcome LUBA’s rulings that motocross tracks are not appropriate in forest zones.

h.         One additional issue must be addressed with respect to whether the applicant’s motocross track may be allowed in the AG/Timber zone if restricted to “personal use.”

1.         As noted above, at the public hearings there was much testimony alleging that the applicant had built the motocross track without permission or proper permits.  There was also testimony about zoning code violations on the property.  As explained above, such testimony is not particularly relevant to the resolution of this application.  Furthermore, the scope of the public hearings held on this application and my analysis does not include a review of whether the applicant did or did not commit a code violations.  However, the question of whether the County’s zoning code allows a property owner to build a motocross track for personal use on AG/Timber zoned land is relevant and bears on how the subject property may be used in the future.

2.         The hearings officer acknowledges that the applicant supplied records of his past interaction with County Code Enforcement.  Exhibit 79.  He also testified and provided evidence of his efforts to comply with the County’s requests.  Part of that testimony described the initial contact between the County and the applicant in 2007.  The applicant testified that the County knew of and allowed construction of the motocross track so long as use of the track was for “personal use.”  That testimony is supported by County Code Enforcement’s written record and compliance letter or November 3, 2009.  Exhibit 79.  The upshot of that information is that the County took the position that the applicant could construct and use his motocross track for personal rather than commercial use without obtaining a land use permit for the use.  Based on the record before me, it appears that the applicant reasonably interpreted the County’s position to allow him to invite large numbers of his family, friends and fellow riders to the track so long as he did not charge for using the facilities.

3.         Based on the above discussion of OAR 660-006-0025, it is clear that LUBA views motocross tracks to be inappropriate for the forest environment.  The precise reasons for that position are not entirely clear other than LUBA’s interpretation that DLCD’s rules contemplate only “low impact” recreational activities in forest zones.  However, the line LUBA appears to draw is not between personal or commercial use, but between activities and uses that support or promote the forest practices and those which do not.  As I noted in Z0531-07-C (Vida), LUBA appears concerned with whether certain uses on forest land will cause significant and potentially permanent changes in the land so as to render future forest uses improbable.[6] That is the conclusion that LUBA has reached for motocross track proposals on forest land.  For that reason, it would be irrational and inconsistent for the County to allow a motocross track in the AG/ Timber zone without a land use permit, when LUBA has said that motocross tracks cannot be even be allowed conditionally  in forest zones.

4.         With the above discussion in mind, it is also important to remember that LUBA held in Utsey that off highway vehicle trails through a forest could be allowed under certain circumstances.  This holding echoes the testimony of several individuals at the public hearings who noted that OHV trails presently exist, and are apparently compatible with, public forest lands in designated areas around the state.  The reason for the distinction between motocross tracks and OHV riding trails is perhaps related to the level of alteration of the land and the physical impacts of the relative uses.  If this is the case, then the County code and DLCD rules can provide guidance as to what level of alteration is allowed in forest zones without obtaining a land use permit.

5.         ZDO 407.04 lists the “Primary Uses” – those permitted outright in the County’s forest zones.  ZDO 407.06(C) states:

Physical alterations to the land auxiliary to forest practices including, but not limited to, those made for purposes of exploration, mining, commercial gravel extraction and processing, landfills, dams, reservoirs, road construction or recreational facilities.

This section parrots the language of OAR 660-006-0025(2)(c) which states that such alterations “shall be allowed in forest zones.”  The use of the word “shall” in this rule indicates that the County must allow such activities and uses and may not condition or otherwise limit those uses through land use permitting.  Which alterations are considered “auxiliary” to forest practices is further defined by both the ZDO and DLCD rule.  ZDO 407.03(A) states:

“Auxiliary” means a use or alteration of a structure or land which provides help or is directly associated with the conduct of a particular forest practice. An auxiliary structure is located on site, temporary in nature, and is not designed to remain for the forest’s entire growth cycle from planting to harvesting. An auxiliary use is removed when a particular forest practice has concluded.[7]

These definitions help circumscribe the types of physical changes to the land that can occur in forest zones without the need to obtain a land use permit.  From these rules, at least two indicators can be used to determine when desired physical alterations to land in a forest zone require a land use permit.  First is whether the alteration is for a purpose other than in support of a forest practice.  Second, is whether the change is not likely to be temporary – meaning that the change would be difficult to reverse in order to return the altered area to forest use.

6.         It is my conclusion that the County should not have allowed the applicant to construct and use the motocross track for “personal use” without requiring some type of land use approval.  The alterations were not in support of a forest practice, and construction of the track required changes that are something less than temporary.  This is unfortunate given the record before me which shows that the applicant has attempted to cultivate a healthy woodland, build a nice, clean and safe track, and to address some of the uncontested code violations on his property.  The fate of the motocross track and whether it should be allowed to remain on the subject property is beyond the scope of this review.  However, based on the above analysis, it is clear that in the absence of a land use permit of some sort, the applicant cannot resume using the track for “personal use” at the magnitude that the record shows has been the case over the past few years.

3.         The second question is whether the proposed campground qualifies as a conditional use consistent with ZDO 1203.01(A) and ZDO 407.06(B)(4)(a & d).

a.         ZDO 407.06(B)(4)(d) states:

Except on a lot or parcel contiguous to a lake or reservoir, campgrounds shall not be allowed within 3 miles of an urban growth boundary unless an exception is approved pursuant to ORS 197.732 and OAR 660 Division 4.

This provision appears to be directly drawn from OAR 660-006-0025(4)(e)(A) which does not provide any more specificity than the ZDO.

b.         Based on the applicant’s revised proposal in Exhibit 77, the proposed campground would consist of eight tent sites, one larger teepee site, and four RV sites.  The applicant testified that prior to filing the application, staff had indicated that the subject property is more than three miles from the Molalla UGB.  Apparently on closer inspection staff found in the initial staff report that the proposed campground could not qualify as a conditional use because the subject property was 2.89 miles from the nearest point of the Molalla UGB.  Exhibit 1.

At the public hearings the applicant testified that his consultant had separately measured the distance from the Molalla UGB to the center of the subject property and found it to be 3.03 miles.  Exhibit 74.  Upon reviewing the applicant’s evidence, staff was unpersuaded that their initial measurements were incorrect.  Based on the County’s GIS program, staff found that the distance was still less than three miles.  Exhibit 52.

c.         Upon reviewing the evidence relied upon by the applicant and staff, I can find little if any difference in the methodology used to measure the distance from the Molalla UGB and the subject property.  Both Exhibit 52 and 74 are no more than GIS maps with a plot line and stated distance.  The only visible difference is that the applicant has chosen to measure the distance from the center of his property to the Molalla UGB which results in a distance just barely farther than the three mile threshold.

d.         Neither the ZDO nor DLCD’s rule addresses the issue of whether a campground may be sited on a lot or parcel of which part of the land is within three miles of the UGB and part is farther than three miles.  However, the DLCD’s rule provides a partial definition that helps clarify the application of the rule.  OAR 660-006-0025(4)(e)(A) states that:

A campground is an area devoted to overnight temporary use for vacation, recreational or emergency purposes, but not for residential purposes and is established on a site or is contiguous to lands with a park or other outdoor natural amenity that is accessible for recreational use by the occupants of the campground.

This definition makes clear that the campground and the “park” that it serves must be on the same lot or parcel or contiguous with each other.  It is also relevant that both the ZDO and DLCD’s rule speak in terms of the “lot or parcel.”  Given the close connection in the rule between the campground and the park with which it must be associated, I find it is appropriate to interpret both ZDO 407.06(4)(d) and OAR 660-006-0025(4)(e)(A) to mean that the entire parcel must be beyond three miles from the relevant UGB.

e.         The present application intersperses the tent sites and RV spaces that constitute the “campground” within the larger subject property.  The proposed park is not limited to any specific component of the property, and the property itself is composed of only one tax lot – tax lot 400.  The application itself and photos at Exhibit 4 show that the entire parcel is improved with components that the applicant conceives of as a park, albeit primarily for the purposes of facilitating the motocross track.  By either the staff’s or the applicant’s measurements, it appears that at least half the land area of the subject property is within three miles of the Molalla UGB.  Based on the above interpretation of ZDO 407.06(4)(d), I find that the proposed campground cannot be allowed on the subject property.

4.         The third question is whether the proposed park, motocross track, BMX bike track, horse cart track, RV parking, and campground will not alter the character of the surrounding area in a manner which substantially limits, impairs or precludes the use of surrounding properties consistent with ZDO 1203.01(D).

a.         Although this application cannot be approved for the reasons set forth above, important considerations connected with ZDO 1203.01(D) received extensive testimony at the public hearings and merit some response in this decision.

b.         The staff reports and public testimony focused on five major issues that could constitute to the substantial impairment to surrounding lands – traffic, dust, surface water control, noise and fire prevention.  Staff found that traffic impacts were minimal and that dust impacts could likely be reasonably controlled by requiring the applicant to water the track regularly.  Staff also found that the record shows that the applicant has worked to control erosion, improve the riparian area on his property and generally protect water quality.  I agree with the staff responses to these issues and adopt those findings as my own.  However, the issues of noise and fire prevention merit closer examination, because even if the application could be found to comply with ZDO 1203.01(A) and ZDO 407.06, the impacts to surrounding lands from noise and insufficient water for fire control would also result in a denial of this application.

c.         Noise.  The record contains abundant complaints about the level and constancy of noise from the motorcycles on the applicant’s property prior to the time this application was filed.[8] At the public hearings, opponents testified uniformly that the noise created by the bikes at the time was unbearable.  The applicant was cited for violating the County’s noise ordinance on one occasion.  The record shows that the sheriff who issued the citation wrote at the time that he issued the citation that he was approximately 100 yards away from the track and stated, “I can write without reservation that the noise level is intolerable.”  Exhibit 79.

1.         At the public hearings the applicant seemed to acknowledge that noise impacts were a problem for the track and pledged to address that issue.  He also provided a noise expert, Kerrie Standlee, to help the hearings officer and the public better understand the noise regulations applicable to motocross bikes and strategies for reducing the noise levels to meet the County’s noise ordinance.[9] Exhibits 73 and 109.  At the November 4, 2011 hearing, the hearings officer questioned Mr. Standlee and asked for information that might assist in creating feasible conditions that could address the noise produced by the motorcycles.  Both the written information and oral testimony from Mr. Standlee concluded that if the motorcycles were adequately muffled to meet DEQ’s standard of 99 dbs at 20 inches, and that a portion of the track was removed to create a distance of 470 feet between it and the nearest residence, that in his opinion, the ambient noise produced would be in the vicinity of 58 dbs.  He explained that 60 dbs is about the same sound level as a person speaking in normal conversation at a distance of three feet or a car passing by on a road 470 feet away.  He also stated that each bike on the track added about 2 dbs cumulatively over the sound level produced by just one bike.

2.         ZDO 1203.01(D) states that in order to allow a conditional use:

The proposed use will not alter the character of the surrounding area in a manner that substantially limits, impairs or precludes the use of surrounding properties for the primary uses allowed in the underlying zoning district.

Here the relevant “Primary Uses” in the AG/Timber zone include residential uses (ZDO 407.04(D & ZDO 407.04(F).  The record clearly shows that there are residential property owners immediately adjacent to and in very close proximity to the subject property.  There was also abundant testimony from property owners in the “surrounding area” complaining of high noise levels. The record also shows that at least two owners raise, breed and/or train horses which is recognized as a farm use under ORS 215.203.

3.         The AG/Timber zone allows residential uses, and there many residences in area surrounding the subject property.  For purposes of determining compliance with ZDO 1203.01(D), an applicant’s agreement to meet County Code 6.05.040(A) is not solely determinative.  Even at levels less than 60 dbs, ambient noise could be so constant and annoying as to interfere with the residential use of surrounding lands.  Stated another way, if the nature and duration of noise impacts is such that it would approximate a public or private nuisance, then the residential use allowed on surrounding lands in the AG/Timber zone will be “impaired.”

4.         The standard for determining whether a use of property constitutes a nuisance is whether the use “substantially and unreasonably interferes with the use and enjoyment” of another property owner’s land.  Penland v. Redwood Sanitary Sewer Service District, 156 Or App 311, 314 (1998).  The test of substantial interference looks at: “1) the location of the claimed nuisance, 2) the character of the neighborhood, 3) the nature of the thing complained of, 4) the frequency of the intrusion, and 5) the effect upon the plaintiff’s enjoyment of life, health, and property.”  While the requirements of ZDO 1203.01(D) are not entirely analogous to the prohibitions of common law nuisance, the two provisions of law seek to avoid significant impacts emanating from the use of one piece of land from adversely effecting nearby property owners.  It is certainly true that it would be irrational and inconsistent with the purposes of the ZDO to find a proposed use to be compliant with ZDO 1203.01(D) which in all likelihood constitutes a common law nuisance.

5.         The record does not contain specific enough information to know whether noise levels at the applicant’s track have historically been in compliance with, or have violated, the County’s noise ordinance.  However, there is unrebutted testimony in the record which shows that noise produced at the track has substantially interfered with the use and enjoyment of surrounding property owners’ land.  For example, Nancy Nicholson testified that her family could not hear their own television inside their home when the motocross track was operating.  Her son, who is homeschooled, testified that he could not concentrate on his homework due to the noise.  Diana Milia testified that the ambient noise forced her family indoors and caused them to replace the windows in their home.  Exhibit 98.  She also testified that the noise contributed to migraine headaches.  David Hunt testified that his family could no longer ride and train their horses because the noise from the motocross track agitated the horses and made them unpredictable. Exhibit 86.  Gael Hunt testified that her family could no longer invite friends to their home on weekends and could not socialize outside due to the noise.  While it is not within the scope of this review for the hearings officer to determine whether the noise from the applicant’s property has in the past constituted a nuisance, the record shows that at a minimum those testifying would be justified in filing an action in circuit court to abate the noise.

6.         Placing the past use of the track aside, the applicant has offered to make changes to the application to reduce noise impacts.  He has offered to limit the numbers of riders on the track to a maximum of four at a time.  He has offered to remove a section of the track which is closest to the Nicholson property.  Exhibit 77.  He has stated that the facility can and will meet all noise standards.  Exhibit 110.  I understand all of these proposed measures to be consistent with the opinions and recommendations of Kerrie Standlee as summarized in his memoranda of November 3 and 24, 2010 and that the applicant would accept conditions of approval implementing those recommendations.  The remaining question is whether there is sufficient evidence in the record demonstrating that if imposed, such conditions would be sufficient to feasibly prevent the track use from altering “the character of the surrounding area in a manner that substantially limits, impairs or precludes the use of surrounding properties.”  For the reasons set forth below, I find that there is not.

7.         In order to impose conditions that will satisfy ZDO 1203.01(D) evidence in the record must show that the adverse noise impacts can in fact be reduced to the point that they do not substantially impair the use of surrounding lands.  Miller v. City of Joseph, 31 Or LUBA 478 (1996).  Here, I find two problems with the evidence provided by the applicant.

a.         First, Mr. Standlee’s memoranda and recommendations are opinions based only on second hand information about the subject property.  His analysis assumes that the motorcycles visiting the applicant’s property already comply with DEQ’s 99 dbs standard or can be made to comply.  However, there is no evidence in the record that proves that each bike is or can be made to meet that noise standard.  In addition, no actual sound measurements were taken to establish baseline noise conditions while the track was operating, or other test measurements to demonstrate that his recommendations will likely reduce noise impacts to below 60 dbs.  To impose a feasible condition the hearing officer cannot simply mandate that noise levels not exceed 60 dbs.  There must be evidence which shows how that condition can be achieved and a likelihood that if it were achieved, that the result would meet the standard set forth in ZDO 1203.01(D).  That evidence is not present in this record.

b.         Second, and more importantly, I am not convinced that measures designed to barely meet the County’s noise ordinance are sufficient to ensure that noise impacts do not create a de facto nuisance for the surrounding area.  In particular, the hearings officer is troubled about the duration of noise from the motocross track even if that noise is just under 60 dbs.  Although the applicant has proposed to limit the hours of operation of the track,[10] the record shows that during those times there will be constant noise at or just below 60 dbs for many of the surrounding residents.  Put more simply, to many of the neighbors the sound level will be like having an annoying person speaking to you at a distance of three feet from 10:00am to 7:00 pm for half the weekends of the spring and summer months – with nowhere on your own property to get away from the noise.

LUBA has held on at least one occasion that some amount of noise comes with the territory in forest zoned lands.  Tennant v. Polk County, __ Or LUBA __, LUBA No. 2007-209 (2008).  However, forest practices produce noise which is intermittent and often temporary.  Once forest operations are complete, noise impacts abate.  Such practices cannot be reasonably anticipated to continue multiple days for multiple weekends and weekdays for an unlimited number of years into the future.

c.         For these reasons, I find that even if conditions could be feasibly be imposed to meet the minimum requirements of the County’s noise ordinance, the resulting circumstances would still very likely alter the character of the surrounding area in a manner that substantially limits, impairs or precludes the use of surrounding properties for the primary uses allowed in the underlying zoning district.

d.         Fire suppression.  Staff analyzed information related to fire suppression under ZDO 1203.01(D) which makes sense as a proposal which cannot show that adequate water and infrastructure are present to protect against wildfire could alter the character of the surrounding area and impair other primary uses.  However, ZDO 407.06(A)(2) also states that conditional uses in the AG/Timber zone may not “significantly increase fire hazard, fire suppression costs, or risks to fire suppression personnel.”  The following discussion applies to both code sections.

1.         The applicant proposes to provide water needed for fire suppression from a reservoir which has been applied for but not yet constructed.  As noted above the District Water Master testified that a water right exists for the property to store three acre feet of water.  However, it appears that the reservoir is not yet built and the current pond on the property is too small to hold three acre feet of water.  Even if the reservoir was present, it was the Water Master’s opinion that three acre feet right is not enough to supply water for dust abatement and fire suppression on the property.  He further stated that no additional water will be available to the subject property from Rock Creek because that creek is currently over appropriated.

2.         The hearings officer is not aware of any information in the record that addresses the Water Master’s testimony or otherwise demonstrates that water for fire suppression will be available at quantities necessary to do the job.  In light of the information that additional water for fire suppression may not be available, it would not be possible to impose a condition requiring the applicant to provide such water.  For these reasons I must find that there is insufficient evidence to show that the proposed uses would not increase fire hazard and fire suppression costs.

D.        CONCLUSION

Based on the above findings and discussion, the hearings officer concludes that conditional use application Z0348-10-C should be denied.

E.        DECISION

Based on the findings, discussion and conclusions provided or incorporated herein and the public record in this case, the hearings officer hereby DENIES Z0348-10-C.

DATED this 26th day of January, 2011.

Kenneth D. Helm

Clackamas County Hearings Officer

ENDANGERED SPECIES ACT NOTICE

The federal Endangered Species Act (ESA) is not a criterion for approval of this application. The County has reviewed the approval standards in light of the requirements of the ESA, believes that the criteria for approval are consistent with the terms of the ESA and has submitted the Development Ordinances for consideration for a “4(d)” programmatic limitation. However, the analysis included in this decision does not include an evaluation by the County of the applications for consistency with the ESA nor does the decision reach any conclusions concerning that federal law. The applicant are responsible for designing, constructing, operating and maintaining the activities allowed by an approval of this application in a manner that ensures compliance with the ESA. Any question concerning this issue should be directed to the applicant, their consultants and the federal agencies responsible for administration and enforcement of the ESA for the affected species.

Appeal Rights

ZDO 1304.01 provides that, with the exception of an application for an Interpretation, the Land Use Hearings Officer’s decision constitutes the County’s final decision for purposes of any appeal to the Land Use Board of Appeals (LUBA). State law and associated administrative rules promulgated by LUBA prescribe the period within which any appeal must be filed and the manner in which such an appeal must be commenced. Presently, ORS 197.830(8) requires that any appeal to LUBA “shall be filed not later than 21 days after the date the decision sought to be reviewed becomes final.” ZDO 1304.02 provides that this decision will be “final” for purposes of a LUBA appeal as of the date of mailing (which date appears on the last page herein).


[1] The applicant provided a written statement to staff in Exhibit 77 articulating all the proposed changes to the proposal.  The hearings officer views this document as being the formal request for changes to the proposal.  The summary of hearing above is just that, a summary of what the applicant discussed at the hearing.  Any disparity between the written and oral requests will be resolved in favor of the document at Exhibit 77.

[2] For the purposes of analysis I have chosen to treat the BMX and horse cart use of the track as ancillary and secondary to the motocross use.  The record contains almost no evidence or testimony regarding the impacts of BMX bike riding or horse cart racing on the subject property.  Those activities are proposed to occur on the motocross track, presumably when motorcycles are not present.  There is no information in the record that addresses BMX and horse carting on other portions of the property.

[3] Opponents and DLCD have argued that because the AG/Timber zone is a mixed agricultural and forest zone and because the subject property is composed of high value soils, that OAR 660-006-0050 prohibits the proposed use.  The AG/Timber zone is a forest zone and the record shows that the zone was acknowledged under Goal 4 not Goal 3.  The AG/Timber zone is not an exclusive farm use zone as the opponents and DLCD suggest, and therefore, the requirements set forth in OAR 660-006-0050 do not apply.

[4]OAR 660-006-0025(e)(A) Private parks and campgrounds. Campgrounds in private parks shall only be those allowed by this subsection. Except on a lot or parcel contiguous to a lake or reservoir, campgrounds shall not be allowed within three miles of an urban growth boundary unless an exception is approved pursuant to ORS 197.732 and OAR chapter 660, division 004. A campground is an area devoted to overnight temporary use for vacation, recreational or emergency purposes, but not for residential purposes and is established on a site or is contiguous to lands with a park or other outdoor natural amenity that is accessible for recreational use by the occupants of the campground. A campground shall be designed and integrated into the rural agricultural and forest environment in a manner that protects the natural amenities of the site and provides buffers of existing native trees and vegetation or other natural features between campsites. Campsites may be occupied by a tent, travel trailer or recreational vehicle. Separate sewer, water or electric service hook-ups shall not be provided to individual camp sites. Campgrounds authorized by this rule shall not include intensively developed recreational uses such as swimming pools, tennis courts, retail stores or gas stations. Overnight temporary use in the same campground by a camper or camper’s vehicle shall not exceed a total of 30 days during any consecutive 6 month period.

[5] OAR 660-006-0025(1): Goal 4 requires that forest land be conserved. Forest lands are conserved by adopting and applying comprehensive plan provisions and zoning regulations consistent with the goals and this rule. In addition to forest practices and operations and uses auxiliary to forest practices, as set forth in ORS 527.722, the Commission has determined that five general types of uses, as set forth in the goal, may be allowed in the forest environment, subject to the standards in the goal and in this rule. These general types of uses are:

(b) Uses to conserve soil, air and water quality and to provide for fish and wildlife resources, agriculture and recreational opportunities appropriate in a forest environment;

[6] See, Donnelly v. Curry County, __Or LUBA__, LUBA No. 96-101 (November 3, 1997) In that case, the board considered whether a full service recreational vehicle park could be permitted consistent with Goal 4.  The proposed park included paved roads, RV pads, sanitary sewer hook ups and electricity.  The board held that unlike a more primitive campground with no sewer and electric hook ups, the proposed campground imposed such significant and permanent changes to the land that future forest operations would be impeded.

[7] See also – OAR 660-006-0025(2)(d).

[8] See Exhibits 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, 45, 46, 47, 48, 51, 63, 79, 99, 103.  I note that at least two parties also testified that they lived nearby and did not notice excessive noise levels.

[9] County Code – 6.05.040 Prohibitions

A. It shall be a violation of this chapter for any person to produce or permit to be

produced, from a sound source either owned and operated by them or under their

control, sound which, when measured at or within three feet of a window or door

of a noise sensitive unit occupied by a person making a complaint under this

chapter, exceeds:

1. 50 dBA at any time between 10 p.m. and 7 a.m. the following day; or,

2. 60 dBA at any time between 7 a.m. and 10 p.m. the same day.

[10] April 1-September 1, no more than two weekends per month and the preceding Tuesday and Wednesday.  Hours of operation 10:00 am-7:00 pm.

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