No. 34 January 24, 2024 247

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Dennis TYLKA,

Petitioner,

v.

CLACKAMAS COUNTY,

Respondent.

Land Use Board of Appeals

2022093; A182331

Argued and submitted November 6, 2023.

Andres Mulkey argued the cause for petitioner. Also on 

the brief was 1000 Friends of Oregon.

Caleb Huegel argued the cause for respondent. Also on 

the brief was Stephen L. Madkour.

Before Tookey, Presiding Judge, Egan, Judge, and 

Kamins, Judge.

TOOKEY, P. J.

Affirmed.
248 Tylka v. Clackamas County

TOOKEY, P. J.

Petitioner seeks judicial review of an order of the 

Land Use Board of Appeals (LUBA) upholding an order of 

the Clackamas County Board of Commissioners approving 

an application for a dwelling permit on a lot adjacent to the 

Salmon River and in a principal river conservation area 

(PRCA) within a River and Stream Conservation Area overlay zone, asserting that the order is legally flawed and is not 

supported by substantial evidence. We review LUBA’s order 

for whether it is “unlawful in substance,” ORS 197.850(9)(a), 

and for whether LUBA correctly applied the substantial evidence standard. Stevens v. City of Island City, 260 Or App 

768, 772, 324 P3d 477 (2014). A LUBA order is unlawful 

in substance if it represents a mistaken interpretation of 

applicable law. 1000 Friends of Oregon v. Clackamas County, 

320 Or App 444, 452-53, 514 P3d 553 (2022). With respect 

to a substantial evidence challenge, “where LUBA properly 

articulates its substantial-evidence standard of review ***, 

we will not reverse its determination unless there is no evidence to support the finding or if the evidence in the case is 

‘so at odds with LUBA’s evaluation that a reviewing court 

could infer that LUBA had misunderstood or misapplied its 

scope of review.’” Stevens, 260 Or App at 772 (citing Younger 

v. City of Portland, 305 Or 346, 359, 752 P2d 262 (1988)). 

We conclude that LUBA’s order is not unlawful in substance 

and is supported by substantial evidence, and we therefore 

affirm.

The subject property is located within a Recreation 

Residential (RR) zone and borders the Salmon River. The 

property is approximately 20,500 square feet and is bisected 

by a road. On the river side of the road, the lot is approximately 5,000 square feet. Clackamas County Zoning and 

Development Ordinance (ZDO) 316.03(A) allows a detached 

single-family dwelling as a permitted use in the RR zone. 

The disputed permit will allow construction of a dwelling on 

the river side of the road and a septic system on the other 

side of the road.

The proposed dwelling is in an area subject to ORS 

197.307 (2019), which focuses on the development of needed 

housing. ORS 197.307 (2019) provides, in part:
Cite as 330 Or App 247 (2024) 249

“(1) The availability of affordable, decent, safe and 

sanitary housing opportunities for persons of lower, middle 

and fixed income, including housing for farmworkers, is a 

matter of statewide concern.

“(2) Many persons of lower, middle and fixed income 

depend on government assisted housing as a source of 

affordable, decent, safe and sanitary housing.

“(3) When a need has been shown for housing within 

an urban growth boundary at particular price ranges and 

rent levels, needed housing shall be permitted in one or 

more zoning districts or in zones described by some comprehensive plans as overlay zones with sufficient buildable 

land to satisfy that need.

“(4) Except as provided in subsection (6) of this section, 

a local government may adopt and apply only clear and 

objective standards, conditions and procedures regulating 

the development of housing, including needed housing. The 

standards, conditions and procedures:

“(a) May include, but are not limited to, one or more provisions regulating the density or height of a development.

“(b) May not have the effect, either in themselves or 

cumulatively, of discouraging needed housing through 

unreasonable cost or delay.”

ORS 197.307(4) is among the provisions applicable to the 

development of the subject property and requires that “a 

local government may adopt and apply only clear and objective standards, conditions and procedures regulating the 

development of housing.”

Clackamas County’s zoning ordinance establishes 

setback requirements for development adjacent to the river, 

included the subject property. ZDO 704.04(A) provides:

“The following minimum setbacks shall apply to structures exceeding 120 square feet or 10 feet in height:

“A. Structures shall be located a minimum of 100 feet 

from the mean high water line of a principal river. This 

minimum setback may be increased up to 150 feet from the 

mean high water line to lessen the impact of development. 

In determining the minimum setback, the following shall 

be considered:
250 Tylka v. Clackamas County

“1. The size and design of any proposed structures;

“2. The width of the river;

“3. The topography of the land between the site and 

the river;

“4. The type and stability of the soils;

“5. The type and density of existing vegetation between 

the site and the river;

“6. Established recreation areas or areas of public 

access; and

“7. Visual impact of any structures.”

(Emphases added.)

The ordinance thus establishes a setback for structures of “a minimum of 100 feet from the mean high water 

line of a principal river,” but provides that a setback may be 

increased “up to 150 feet from the mean high water line” 

to lessen the impact of development. The ordinance also 

requires that the minimum setback be determined under 

the criteria listed in ZDO 704.04(A)(1) to (7).

The applicant’s site plan showed a setback for the 

proposed dwelling of 128 feet from the river, with a deck 

setback of 118 feet from the river. The county’s planning 

director approved the application with a 128-foot setback 

from the mean high water line of the river. In adhering to 

the 128 foot setback, the planning director explained that, 

because the application was for a dwelling, ORS 197.307(4) 

required that only the “clear and objective” setback standard of “a minimum of 100 feet from the mean high water 

line of a principal river” set forth in the first sentence of 

ZDO 704.04(A) could apply, and that the county could not 

consider the “subjective” criteria listed in ZDO 704.04(A)(1) 

to (7), to extend the setback requirement to 150 feet.

Petitioner, a neighbor, disagreed with the 128-foot 

setback and requested a hearing, contending that a setback 

of 128 feet was not sufficient, because the criteria listed in 

ZDO 704.04(A)(1) through (7) required a setback of 150 feet.

The hearings officer upheld the planning director’s 

approval of the application at the location proposed on the 
Cite as 330 Or App 247 (2024) 251

site plan, with a setback of 128 feet from the river. The hearings officer’s order quoted ZDO 704.04(A)(1) through (7). The 

hearings officer agreed with the planning director’s determination that, because the proposed development is a dwelling, ORS 197.307(4) required application of only the 100-foot 

minimum setback, as a “clear and objective” standard:

“I point here to the word ‘shall’ with respect to the minimum 

100-foot setback, as opposed to the word ‘may’ with respect 

to considering an increased setback (a discretionary standard) beyond the 100-foot setback that ‘shall’ be imposed. 

The County correctly asserts that the 100-foot minimum 

setback is a clear and objective standard, whereas imposing a greater setback necessarily imposes a subjective 

analysis of the stated criteria. ORS 197.307(4) specifically 

provides that a local government (here, Clackamas County) 

may adopt and apply only clear and objective standards 

in regulating the development of housing. [ORS 197.307] 

supersedes Goal 5 and related provisions of the County’s 

Comprehensive Plan to the extent such provisions allow 

the County to apply discretionary or subjective criteria 

rather than ‘clear and objective’ standards for housing 

development. Further, the County has in fact adopted a 

clear and objective standard that it is applying: the minimum setback of 100 feet from the mean high-water line of a 

principal river that ‘shall’ be required.”

But despite concluding that the criteria of ZDO 704.04(A)(1) 

through (7) were “subjective,” the hearings officer also made 

findings that addressed those criteria:

“I also note with respect to this setback requirement that 

the proposal actually has a 128-foot setback from the mean 

high water mark of the Salmon River to the structure. 

This setback appears required by the topography of the 

site as there is persuasive and uncontradicted testimony 

concerning an escarpment or ‘cliff’ towards the river side 

leaving a buildable area that is roughly 61 feet deep on a 

lot that is 50 feet wide and 100 feet deep. [ZDO 704.04(A)(3) 

(topography)] The house shown on the application is 30 feet 

wide by 41 feet 6 inches deep and two stories tall, with a 

10-foot deck off the back, built right up to the 10-foot side 

setbacks. Thus, the proposed house will be just under 2500 

sq ft in size and is consistent in size with other singlefamily home development in the area. [ZDO 704.04(A)(1) 

(size and design)] With the required 20-foot setback to the 
252 Tylka v. Clackamas County

front property line, increasing the setback to the maximum 

150 feet would effectively prohibit development of the site 

with a house that is consistent with the other single-family 

homes in the vicinity. There is no public access or established recreation areas at this location [ZDO 704.04(A)(6) 

(public access)], and no evidence that any of the other abovelisted factors [ZDO 704.04(A)(2), (4), (5), (7)] would suggest 

requiring a greater setback than the required minimum 

100 feet or the proposed 128 feet. Thus, after considering 

the above factors, I find requiring the minimum 100-foot 

setback sufficient to meet these criteria, and find that the 

proposal meets or exceeds this standard.”

Petitioner appealed to LUBA, arguing that the 

county had erred in failing to determine that ZDO 704.04(A) 

required a setback of 150 feet. Petitioner argued that ZDO 

704.04(A) is part of the county’s comprehensive plan that, 

under ORS 197.175(2),1

 must be applied, irrespective of 

ORS 197.307(4). Petitioner argued that three of the criteria of ZDO 704.04 ((ZDO 704.04(A)(2) (width of river); ZDO 

704.04(A)(3) (topography of the land between the site and 

the river); and ZDO 704.04(A)(5) (type and density of existing vegetation between the site and the river)), required a 

setback of 150 feet.

Petitioner also argued that the hearings officer 

improperly considered whether a setback of 150 feet would 

“prohibit development of the site with a house that is consistent with the other single-family homes in the vicinity.” 

1 ORS 197.175(2) provides:

“Pursuant to ORS chapters 195, 196 and 197, each city and county in this 

state shall:

“(a) Prepare, adopt, amend and revise comprehensive plans in compliance with goals approved by the commission;

“(b) Enact land use regulations to implement their comprehensive plans;

“(c) If its comprehensive plan and land use regulations have not been 

acknowledged by the commission, make land use decisions and limited land 

use decisions in compliance with the goals;

“(d) If its comprehensive plan and land use regulations have been 

acknowledged by the commission, make land use decisions and limited land 

use decisions in compliance with the acknowledged plan and land use regulations; and

“(e) Make land use decisions and limited land use decisions subject to an 

unacknowledged amendment to a comprehensive plan or land use regulation 

in compliance with those land use goals applicable to the amendment.”
Cite as 330 Or App 247 (2024) 253

Petitioner asserted that, whether the house would be consistent with other single-family homes in the vicinity is not a 

criterion under ZDO 704.04(A), and that the hearings officer 

therefore erred in considering that criterion.

The county responded that the hearings officer’s 

order shows that, despite the hearings officer’s statement 

that ZDO 704.04(A) listed “subjective” considerations, the 

hearing officer nonetheless actually addressed the criteria 

listed in ZDO 704.04(A), including the lot’s topography, ZDO 

704.04(A)(3), the lack of established recreation areas, ZDO 

704.04(A)(6), and the proposed house design, ZDO 704.04(A)(1), 

and concluded that they did not require a setback greater 

than 128 feet.

LUBA upheld the county’s approval. LUBA did not 

address or decide whether ORS 197.307(4) prohibited consideration of the criteria of ZDO 704.04(A)(1) through (7). 

LUBA agreed with the county that the hearings officer’s 

order shows that the hearings officer did in fact consider 

those criteria. Thus, LUBA rejected petitioner’s contention 

that the hearings officer erred in failing to consider them. 

LUBA also held that the county’s approval was supported by 

substantial evidence.

In his first assignment of error on judicial review, 

petitioner challenges LUBA’s determination that the county 

adequately considered the criteria of ZDO 704.04(A) and 

contends that LUBA’s order is not supported by substantial evidence.2

 Our reading of the hearings officer’s order is 

consistent with LUBA’s that, despite the hearings officer’s 

statement that ORS 197.307(4) did not permit consideration 

of the “subjective” criteria of ZDO 704.04(A), the hearings 

officer did in fact consider them, specifically identifying several criteria and also stating that the other factors did not 

require a setback greater than 128 feet. The record supports 

LUBA’s understanding of the hearings officer’s order. Thus, 

we reject petitioner’s contention in his first assignment that 

2 Petitioner’s first assignment states: “LUBA’s conclusion that the hearings 

officer ‘in fact applied the subjective provisions’ of ZDO 704.04(A)(1)-(7) is based 

on a misapplication of law and not supported by the facts in the record.” In his 

first assignment petitioner combines various contentions that do not seem to 

fall within that assignment. We nonetheless address the arguments that are 

preserved.
254 Tylka v. Clackamas County

the record requires a remand to the county for a more complete consideration of the criteria of ZDO 704.04(A).3

In his first assignment of error, petitioner continues 

to assert, as he did before LUBA, that the hearings officer 

also erred in noting that a setback of 150 feet would “prohibit development of the site with a house that is consistent with the other single-family homes in the vicinity,” contending that ZDO 704.04(A) did not permit consideration of 

the size of other homes in the vicinity. As LUBA correctly 

reasoned in rejecting that argument, there is nothing in 

ZDO 704.04(A) that prohibited the county from considering 

whether the proposed dwelling would be consistent with surrounding homes. In fact, it is arguable that consistency with 

surrounding homes would be considered in addressing the 

size and design of the proposed structure, ZDO 704.04(A)(1), 

as well as its visual impact, ZDO 704.04(A)(7). Consideration 

of whether the proposed development would be consistent 

with surrounding homes is a plausible construction of ZDO 

704.04(A), and we therefore conclude that LUBA did not err 

in deferring to the county’s construction of the ordinance 

to permit consideration of whether the proposed dwelling 

would be consistent with surrounding homes. See Siporen 

v. City of Medford, 349 Or 247, 261, 243 P3d 776 (2010) (A 

local government’s interpretation of its own land use standards will be affirmed if it is a plausible construction of the 

express language of the provision or provisions at issue.).

As noted, petitioner’s first assignment of error on 

judicial review also includes a contention that LUBA’s affirmance of the hearings officer’s order is not supported by substantial evidence. He contends that substantial evidence, 

along with a proper consideration of the criteria in ZDO 

704.04(A)(1) through (7), require the conclusion that a 150-

foot setback would not prevent development of the site. He 

argues that LUBA erred in upholding the county’s approval 

3 We agree with the county that petitioner failed to preserve before LUBA 

the contention that LUBA erred in affirming the county’s approval because the 

hearings officer could not simply summarily address the remaining factors listed 

in ZDO 704.04(A) but was required to provide explicit factual discussion and 

analysis with respect each of the factors set out in ZDO 704.04(A). See Willamette 

Oaks, LLC v. City of Eugene, 295 Or App 757, 437 P3d 314, rev den, 365 Or 192 

(2019) (preservation requirements apply to petitions for review from a LUBA 

order). 
Cite as 330 Or App 247 (2024) 255

in light of the county’s failure to address evidence that, before 

this application, the county had always required a 150-foot 

setback for properties adjacent to rivers and that the home 

could be built on the portion of the site that is across the road. 

The county responds that, the county having concluded that 

a setback of 128 feet was sufficient to lessen the impact of the 

development, there was no requirement for the county to also 

consider whether a further setback, to 150 feet, was required. 

LUBA concluded that substantial evidence supported the 

county hearings officer’s order that a setback of 128 feet was 

sufficient to lessen the impact of development. We conclude 

that LUBA’s order shows that it correctly applied the substantial evidence standard in its review of the hearings officer’s order. Younger, 305 Or at 358 (“[W]here LUBA has properly understood and applied the ‘substantial evidence’ test 

of ORS 197.835(8)(a)(C), a reviewing court should affirm its 

order, notwithstanding the reviewing court’s disagreement 

with LUBA as to whether the evidence is ‘substantial.’”). We 

therefore reject petitioner’s first assignment of error.

In his second assignment of error on judicial review, 

petitioner contends that “LUBA erred in concluding that 

petitioner had failed to challenge the hearings officer’s application of ZDO 704.04(A) * **, and LUBA erred in failing to 

address petitioner’s assignments of error that challeng[ed] 

the county’s application of that provision.” Petitioner’s second assignment appears to repeat or follow from his first 

assignment of error, asserting that a remand is necessary 

in light of the county’s failed application of ZDO 704.04(A). 

Having rejected petitioner’s first assignment of error, we 

also reject the second assignment.

We now address petitioner’s third assignment. 

ZDO 704.02(C) defines the “mean high water line” as “[t]he 

bank of any river or stream established by the annual fluctuations of water generally indicated by physical characteristics such as a line on the bank, changes in soil conditions, or vegetation line.” Before LUBA, petitioner argued 

that, because the river meanders past the subject property, 

the mean high water line was required to be measured in 

more than one location, and that substantial evidence in 

the record fails to show that the mean high water line was 
256 Tylka v. Clackamas County

determined in more than one location. Petitioner argued, 

additionally, that the record does not show that the mean 

high water line was measured by a licensed hydrologist, 

that the county failed to make a determination as to the 

location of the mean high water line, and, further, that the 

county’s determination of a mean high water line of 128 feet 

was not supported by substantial evidence. LUBA rejected 

the contentions, agreeing with the county that the hearings 

officer’s conclusion regarding the location of the mean high 

water line was supported by the site plan and other materials in the record and that petitioner did not produce any evidence to undercut that evidence. LUBA further concluded:

“Nothing in the definition of mean high water line requires 

its location to be established by a licensed hydrologist or by 

unnamed county personnel, or requires it to be established 

in more than one location relative to the river. Petitioner 

has not explained why the site plan and other applicant 

materials are not evidence of the line’s location, or pointed 

to any evidence in the record that undercuts that evidence.”

Petitioner’s third assignment of error challenges LUBA’s 

determination:

“LUBA’s conclusion that the county’s definition of ‘mean 

high water line’ in ZDO 704.02(C) does not ‘require it to 

be established in more than one location relative to the 

river’ misinterprets and misapplies that provision of law. 

Moreover, LUBA misunderstood its standard of review, 

by failing to adequately address petitioner’s assignment 

of error that the county’s findings regarding the location 

of the mean high water line are inadequate and not supported by substantial evidence in the record.”

As we understand petitioner’s assignment, he contends that 

LUBA erred as a matter of law in concluding that ZDO 

704.02(C) does not require that, when a river meanders, the 

mean high water line must be measured from more than 

one location. We agree with LUBA that the requirement for 

measurement of the mean high water line at more than one 

location does not appear in ZDO 704.02(C); thus petitioner 

has not established legal error.

Petitioner further challenges LUBA’s determination that the county’s order was supported by substantial 
Cite as 330 Or App 247 (2024) 257

evidence, specifically with reference to evidence of the mean 

high water line of the river. We review LUBA’s order to 

determine whether it correctly applied the substantial evidence standard. See Younger, 305 Or at 358 (stating standard). Our review of LUBA’s order leads us to conclude that 

LUBA correctly understood its role in conducting its review 

for substantial evidence. We therefore reject petitioner’s 

third assignment of error.

Affirmed.