Hearings Officer: Z0023-26 - May 28, 2026

Notice

File Number: Z0023-26

Appellant/applicant:  Jim McCartan/Nathaniel Torj

Property Owner:  Sustainable Housing LLC

Proposal: Appeal of a time extension for a 12-lot subdivision.

Planning Director's Initial Decision: Approved

Applicable Zoning and Development Ordinance and Comprehensive Plan Criteria: Zoning and Development Ordinance Sections 315, 1105, 1307, and 1310. These criteria may be viewed online.

Site Address and/or Location: 16305 SE Oatfield Road, Milwaukie, 97267

Assessor's Map: T2S, R2E, Section 07CD, Tax Lot(s)  6400, W.M.

Property Size: Approximately 2.63 acres

Zoning:  R 8.5

How to obtain additional information

Staff Contact: Lindsey Nesbitt; 503-742-4505 or lnesbitt@clackamas.us

A copy of the application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost. In addition, a staff report on the application will be available for inspection at no cost at least seven days prior to the hearing. Copies may be purchased at the rate of $2.00 per page for 8 1/2" x 11" or 11" x 14" documents, $2.50 per page for 11" x 17" documents, $3.50 per page for 18" x 24" documents and $0.75 per sq ft with a $5.00 minimum for large format documents, or you may view these materials:

1. By emailing or calling the staff contact; or
2. View online through Accela. After selecting the "Planning" tab, enter the File Number to search. Select Record Info and then select "Attachments" from the dropdown list, where you will find the submitted application.

Community Planning Organization for Your Area: The following recognized Community Planning Organization (CPO) has been notified of this application and may develop a recommendation. You are welcome to contact the CPO and attend their meeting on this matter, if one is planned. If this CPO currently is inactive and you are interested in becoming involved in land use planning in your area, please contact Clackamas Clackamas County Community Engagement at communityinvolvement@clackamas.us. CPO: Oak Grove Community Council, Contact: Joseph Edge (503) 974-6422, land-use@oakgrovecpo.org.

How to submit testimony on this application

• All interested parties are invited to "attend" the hearing remotely online or by telephone and will be provided with an opportunity to testify orally, if they so choose. One week prior to the hearing, specific instructions will be available online.
• Written testimony received prior to the close will be considered by staff prior to the issuance of the staff report and recommendation on this application.  However, written testimony will continue to be accepted until the record closes, which may occur as soon as the conclusion of the public hearing.
• Written testimony may be submitted by email, fax, or regular mail.  Please include the permit number on all correspondence and address written testimony to the staff contact who is handling this matter.  
• Testimony, argument, and evidence must be directed toward the criteria identified above, or other criteria in the Zoning and Development Ordinance or Comprehensive Plan that you believe apply to the decision.  Failure to raise an issue in person at the hearing or by letter prior to the close of the record, or failure to provide statements or evidence sufficient to afford the Hearings Officer an opportunity to respond to the issue, precludes an appeal to the Oregon Land Use Board of Appeals based on that issue.
• Written notice of the Hearing Officer's decision will be mailed to you if you submit oral or written testimony or make written request for notice of decision and provide a valid mailing address.

Procedure for the conduct of the hearing

The hearing will be conducted by one of the Land Use Hearings Officers, who are appointed by the Board of County Commissioners to conduct public hearings and issue decisions on certain land use permit applications. The following procedural rules have been established to allow an orderly hearing:

1. The length of time given to individuals speaking for or against an item will be determined by the Hearings Officer prior to the item being considered.
2. A spokesperson representing each side of an issue is encouraged.
3. Prior to the conclusion of the evidentiary hearing, any participant may request an opportunity to present additional evidence, argument, or testimony regarding the application. The Hearings Officer will either continue the hearing or leave the record open for additional written evidence, argument, or testimony.

Staff Decision

NOTICE OF DECISION ON A TYPE II LAND USE PERMIT

Decision: Approved with Conditions

Permit Type: Time Extension  
File No. Z0023-26
Proposal: Time Extension of Z0334-21
Decision Date: March 26, 2026
Deadline for Filing Appeal: April 7, 2026, at 4:00 pm 
Issued By : Lindsey Nesbitt, Planning Manager, LNesbitt@clackamas.us 
Assessor's Map & Tax Lot(s): T2S R2E Section 07 Tax Lot 06400
Site Address: 16305 SE Oatfield Road, Milwaukie, 97267
Applicant: Jim McCartan / Sustainable Housing LLC. 
Owner of Property: Sustainable Housing LLC
Zoning: R-8.5

Community Planning Organization (CPO) for Area: 
OAK GROVE COM COUNCIL
JOSEPH EDGE (503) 974-6422
land-use@OAKGROVECPO.ORG

Community Planning Organizations (CPOs) are part of the county's community involvement program. They are advisory to the Board of County Commissioners, Planning Commission and Planning and Zoning Division on land use matters affecting their communities. CPOs are notified of proposed land use actions and decisions on land within their boundaries and may review these applications, provide recommendations or file appeals. If this CPO currently is inactive and you are interested in becoming involved in land use planning in your area, please contact the Community Involvement Office at 503-655-8552. 

OPPORTUNITY TO REVIEW THE RECORD: The submitted application is available for review online at https://aca-prod.accela.com/clackamas/Default.aspx. Select the Planning tab and enter the file number to search. Select Record Info and then select Attachments from the dropdown list, where you will find the submitted application. The complete application file is available for inspection at no cost by contacting the Planner listed on the first page of this decision. Copies of all documents may be purchased at the rate of $2.00 per page for 8 1/2" x 11" or 11" x 14" documents, $2.50 per page for 11" x 17" documents, $3.50 per page for 18" x 24" documents and $0.75 per sq ft with a $5.00 minimum for large format documents.
APPEAL RIGHTS: Any party disagreeing with this decision, or the conditions of approval, may appeal this decision to the Clackamas County Land Use Hearings Officer. An appeal must include a completed County Appeal Form and a $250.00 filing fee and must be received by the Planning and Zoning Division by the appeal deadline identified on the first page of this decision.
Please check https://www.clackamas.us/planning for our current hours of in-office operation. Appeals may be submitted in person during office hours. Appeals may also be submitted by email or US mail.  
The County Appeal Form is available at www.clackamas.us/planning/supplemental.html. Any party or parties appealing this decision may withdraw their appeal at any time prior to the hearing or final decision by the Hearings Officer. A party wishing to maintain individual appeal rights may file an individual appeal and pay the $250.00 fee, even if an appeal by another party or parties has been filed.
A person who is mailed written notice of this decision cannot appeal this decision directly to the Land Use Board of Appeals under ORS 197.830.

Clackamas County is committed to providing meaningful access and will make reasonable accommodations, modifications, or provide translation, interpretation or other services upon request. Please contact us at 503-742-4545 or email DRenhard@clackamas.us.
503-742-4545:¿Traducción e interpretación? |Требуется ли вам устный или письменный перевод?翻译或口译？| Cấn Biên dịch hoặc Phiên dịch? | 번역 또는 통역?

CONDITIONS OF APPROVAL

1. The conditions listed are necessary to ensure that approval criteria for this land use permit are satisfied. Where a condition relates to a specific approval criterion, the code citation for that criterion follows in parentheses Approval of this land use permit is based on the submitted written narrative and plan(s) filed with the County on January 22, 2026 and all elements of the previously issued land use decisions (Z0334-21) including conditions of approval. No work shall occur under this permit other than which is specified within these documents, unless otherwise required or specified in the conditions below. It shall be the responsibility of the property owner(s) to comply with this document(s) and the limitation of any approval resulting from the decision described herein.
2. This Decision authorizes a two-year time extension from the original effective date of land use permit no. Z0334-21 (New Approval Period expires March 26, 2028).

APPLICABLE APPROVAL CRITERIA: 
This application is subject to Clackamas County Zoning and Development Ordinance (ZDO) Section(s) 315, 1307, 1370, 1105, and 1310. 

PUBLIC AND AGENCY COMMENTS:
Notice was sent to applicable agencies and owners of property within 300 feet. No comments were received.

NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER.

FINDINGS

The findings below identify the standards and criteria that are relevant to this decision, state the facts relied upon in rendering the decision, and explain the justification for the decision.

1. PROJECT OVERVIEW: The applicant is requesting an extension to the time limit set forth in file Z0334-26. The applicant requests more time finish completing the required conditions of approval for this 12-lot subdivision.
2. ZDO Section 1301.01(A) – Type II Time Extensions
   1. The time extension application shall be submitted prior to, but not sooner than one year prior to, the expiration of the initial approval period for the land use permit. However, if the land use permit was modified pursuant to Section 1309, Modification, the application for a time extension shall be submitted prior to, but not sooner than one year prior to, the expiration of the approval period for the modification;
      
      Finding: The original land use decision expired on January 24, 2026. This land use application was submitted on January 22, 2026. There have been no requests to modify the original land use approval pursuant to ZDO Sec. 1309. This criterion is met.
   2. The proposed development as originally approved, or as modified pursuant to Section 1309, Modification, shall be consistent with the relevant provisions of this ordinance in effect on the date the application for a time extension is submitted, provided that the application is complete when submitted or is made complete pursuant to subsection 1307.07(E)(4)
      
      Finding: The standards subdivisions set forth in ZDO Sec. 1105, dimensional standards in ZDO Sec. 315, Density standards in ZDO Sec. 1012, and all other sections of the 1000s have not changed substantially. In particular, Minimum lot size, minimum and maximum density standards, and subdivision standards have not been changed in any way that would render the proposed lot configuration with Z0334-21 out of compliance with the County ZDO. This criteria is met. These criteria are met.
   3. There shall have been no changes on the subject property or in the surrounding area that would be cause for reconsideration of the original decision 
      
      Finding: Staff has not identified any changes to the subject property or the immediate vicinity. There has been a subdivision approved, north of the subject property, known as Fawn Meadows. However, since there is no definition of "surrounding area," or "clear and objective" criteria to evaluate "cause for reconsideration," and since there are have been no objections raised by any County Divisions, or outside agencies, staff finds that there is no need to reconsider the original decision. This criteria is met.

ADVISORY NOTES

Advisory notes are not a part of the decision on this land use permit. The items listed below are not conditions of land use approval and are not subject to appeal. They are advisory and informational only but may represent requirements of other agencies/departments. As such, they may be required by these other agencies/departments in order to complete your proposed development. 
No Advisory notes to provide.

Actions

Please direct all calls and correspondence to the staff contact indicated below.

Hearing Time: 9:30 a.m.
File Number: Z0023-26
Proposal: Appeal of a time extension for a 12-lot subdivision.
Staff contact: Lindsey Nesbitt; 503-742-4505 or lnesbitt@clackamas.us

Hearings Officer Actions:

X Closed Hearing:
X Closed Record

• Decision expected within 3 weeks.

Decision

BEFORE THE LAND USE HEARINGS OFFICER CLACKAMAS COUNTY, OREGON

Regarding an Appeal of a Planning Director
Decision Approving an Application for a Time Extension of Prior Approval Z0334-21 for a 12-Lot Subdivision

Case File No: Z0023-26 Appeal

FINAL ORDER

1. SUMMARY
   1. The owner of the subject property is Sustainable Housing LLC. The applicant is Jim McCartan, Manager, Sustainable Housing LLC. The property is located at 16305 SE Oatfield Road in Milwaukie, within Clackamas County, and is inside an urban growth boundary. The property is an approximately 2.63-acre parcel split-zoned R-7 and R-8.5. The legal description of the property is T2S, R2E, Section 07CD, Tax Lot 06400, W.M.
   2. The property was the subject of land use application Z0334-21, an application for a 12-lot major subdivision, that was approved on January 24, 2022.1 Among other things the approval provided:
      “iv. Approval Period and Time Extension:
      1. Approval of a preliminary plat is valid for four years from the date of the final decision. If the County's final decision is appealed, the approval period shall commence on the date of the final appellate decision.During this four-year period, the final plat shall be recorded with the County Clerk, or the approval will become void.
      2. If a final plat is not recorded within the initial approval period established by Subsection 1105.06(A), a two-year time extension may be approved pursuant to Section 1310, Time Extension.”
   3. On January 22, 2026 the applicant submitted this application proposing a two-year time extension of the prior approval Z0334-21 for a 12-lot subdivision. The January 22, 2026 date is stamped on theapplication in the County records as the date it was received. The application was apparently deemed complete on February 18, 2026, with Notice of Land Use Application issued by then-County SeniorPlanner Nick Bateman2 to property owners within 300 feet of the subject property, Community Planning Organizations (CPO), and Interested Agencies. Therefore, the 120-day deadline for final action on theapplication pursuant to ORS 215.427(1) is June 18, 2026. The application was approved by County staff on March 26, 2026.

   4. The appellant is Nathaniel Torj, a citizen residing on property adjacent to the subject property. On April 7,2026, Mr. Torj submitted an appeal generally asserting as reason(s) for the appeal: “Many concerns from the neighborhood.”
       

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      1 I acted as County Land Use Hearings Officer in Z0334-21.

      2 Former Senior Planner Nick Bateman partially completed a Tracking of Decision Deadline Sheet with incorrect dates and did notnote the exact date this application was deemed complete. I was persuaded at the hearing that the most likely date the application wasdeemed complete was no earlier than Friday, February 18, 2026, resulting in the Monday, February 23, 2026 mailing and note there were no objections to this finding proposed by the County.

   5. On May 28, 2026, Hearings Officer Carl Cox (the “Hearings Officer”) conducted a public hearing to receive testimony and evidence in the matter. After receiving and considering the evidence and arguments submitted, the Hearings Officer approved the application subject to conditions.
2. HEARING AND RECORD HIGHLIGHTS
   1. The Hearings Officer received testimony and evidence at the May 28, 2026 public hearing about this appeal and related application. All exhibits and records of testimony are filed with the Planning Division, Clackamas County Department of Transportation and Development. The public hearing was conducted virtually over the Zoom platform. Notice of this public hearing was sent to agencies, Community Planning Organization(s) and property owners within 300 feet of the subject property. At the beginning of the hearing, the Hearings Officer made the declaration required by ORS 197.763. The HearingsOfficer disclaimed any ex parte contacts, bias, or conflicts of interest. The Hearings Officer stated that the only relevant criteria were those identified in the County’s staff report, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver of arguments atsubsequent appeal forums.
   2. At the hearing, County Planner 2 Nick Hart discussed the decision approving the application for Time Extension, providing a presentation with related exhibits, discussion of relevant approval criteria in theCounty’s Zoning and Development Ordinance (ZDO) and the County’s recommendation to uphold the decision approving this application. Mr. Hart shared some background information concerning theapplication, noting that the application form is stamped and the planner found in the decision that the application was submitted on January 22, 2026, but also noting that the prior planner recorded 01/26/2026 as the date of submittal and the date the application was complete in the ‘Tracking of Decision’ form, butdid not complete that form until 02/18/2026, with notice being sent the following Monday 02/23/26. He explained that County staff suggest finding that 02/18/26 is the most likely date the planner deemed the application complete, suggesting it is unlikely the planner deemed the application complete on 01/26/2026 but did not take the appropriate procedural steps to complete the relevant form for noticing for another 23 days. (Exhibit 22)
   3. Mr. Hart shared a slide showing the site plan submitted by the applicant for the Whipple Subdivision, the 12-Lot Subdivision proposed in approved land use application Z0334-21, noting the underlying application was subject to County ZDO Sections 202, 315, 1001, 1002, 1003, 1006, 1007, 1010, 1011,1012, 1013, 1015, 1017, 1105, 1310, and 1307. Mr. Hart provided a slide and discussion of ZDO 1310, Time Extension, reviewing the approval criteria for Type II Time Extensions established by ZDO 1310.01(A). He noted that the prior planner found that land use fileZ0334-21 was approved on 01/24/2024 for a period of four years ending on 01/24/2026. He also noted thatthe prior planner found that this application (file Z0023-26) was submitted on 01/22/2026 satisfying the requirement of subsection 1310.01(A)(1). With respect to subsection 1310.01(A)(2), Mr. Hart reports that the prior planner provided only a conclusory finding that there have not been substantial changes to the applicable approval criteria since the original decision and that, accordingly, this criterion is met, He points to supplemental staff findings providing a further analysis of adopted amendments to the ZDO. With respect to subsection 1310.01(A)(3), Mr. Hart points to the prior planner’s identification of oneadditional subdivision approved in the vicinity since the original decision, but no furtherchanges to the subject property of surrounding area. Mr. Hart also notes that the prior planner opines that terms used within this criterion, including “surrounding area” and “cause for reconsideration” are not defined in a clear and objective manner, calling into question the criterion’s applicability to this application for housing, as provided under ORS 197A.400.
   4. Mr. Hart explained that prior land use file Z0334-21 was submitted for review on 07/31/2021 and,therefore, the criteria applicable to that subdivision application were those in effect at that time. He reports that staff reviewed ZDO amendments that occurred between 07/31/2021 and 01/22/2026, finding that the following packages of amendments were adopted that are applicable to this application:
      • ZDO-280 (amendments to ZDO 202, 315, 1003, 1010, 1012, 1105)
      • ZDO-282 (amendments to ZDO 202, 315, 1001, 1002, 1006, 1007, 1010, 1012, 1015, 1105)
      • ZDO-283 (amendments to ZDO 202, 315, 1006, 1007, 1010, 1012, 1105)
      • ZDO-285 (amendments to ZDO 202, 315, 1001, 1006, 1012)
      • ZDO-2863
      • ZDO-287 (amendments to ZDO 315, 1015)
      • ZDO-288 (amendments to ZDO 202, 315, 1001, 1006)
   5. Mr. Hart explained that ZDO-280 amended the requirements for Mass Movement Hazard Review (ZDOSection 1003), ZDO-282 adopted approval criteria for Middle Housing, pursuant to House Bill 2001, andZDO-285 allows for recreational Vehicles as Second Dwellings in LDR zones, subject to approval criteria.He also pointed to staff observations that, of the amendments adopted, while many may pertain to theallowable uses of the subject property and the proposed 12 lots in the subdivision at issue, only the ZDO 1003 amendment may necessitate revised findings while reviewing this Time Extension as directed byZDO 1310.01(A)(2). Specifically, Mr. Hart pointed out that the subject property is entirely underlain by a landslide deposit mapped on the adopted DOGAMI 99 resource, noting also that findings pertaining to this are made in the original decision for land use file Z0334-21 and pointing to a copy of the original decision contained within Exhibit 2 of this record. He also notes that the pre-ZDO-280 text of ZDO 1003is available in this record at Exhibit 7 and the current text of ZDO 1003 is available online at www.clackamas.us/planning/zdo.

   6. Mr. Hart provided additional discussion concerning the changes to ZDO 1003 via ZDO-280, explaining that the effect of the ZDO-280 amendment was to clarify when Type II review is warranted for MassMovement Hazard Review, and to add a provision allowing for findings of compliance with ZDO1003.02(B) to be made in conjunction with another Type II review. He noted that at the time Z0334-21 was decided there was no requirement that Type II review be performed to apply these development standards, and findings of compliance with those standards were made in the body of the Type III decision issued by the Hearings Officer. Mr. Hart also noted that as ZDO 1307.04(C) allows for any Type II application to be reviewed pursuant to Type III procedure upon the applicant’s request, staff suggest that the Hearings Officer’s 2021 findings are acceptable for meeting the new procedural requirement.

       

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      3 The reference to ZDO-286 appears an error as this amendment package concerned creating a framework for local park master plan adoption for parks in the Exclusive Farm Use, Timber, and Ag/Forest zoning districts, or perhaps it changed a definition in ZDO 202 not directly relevant to this applicable.

   7. 
   8. Wayne Hayson, Pioneer Design Group, appeared on behalf of the applicant and provided a presentation and advocacy in support of approving the application. Mr. Hayson noted the site location, pointing out the existing residential development in the surrounding area. He also reviewed the approval criteria for a time extension under ZDO Section 1310, pointing out that case file Z0334-21 was set to expire on 01/24/2026 and the extension request was submitted prior to this date, on 01/22/2026, with the permit application fees and preliminary statements of feasibility also submitted on 01/22/2026, within the requirements of this section. Mr. Hayson shared slides showing the Approved Preliminary Plat per case file Z0334-21 (below left) and the Proposed Final Subdivision Plat (below right), asserting that theproposed final subdivision plat and associated improvements remain in substantial conformance with the approved preliminary plat, with the proposed development remaining consistent with all relevant provisions of the ZDO. (Exhibit 23)
   9. Mr. Hayson addressed the approval criteria in ZDO Section 1310(A)(3) requiring: “There shall have been no changes on the subject property or in any surrounding area that would be cause for reconsideration of the original decision.” He states that the applicant is not aware of any changes on the subject property or in the surrounding area that would necessitate reconsideration of the original decision, also pointing out that County staff have not identified any such changes. Mr. Hayson notes that while site alteration has occurred, he asserts that all work completed on the site following the original decision has been consistent with fulfilling the conditions of approval of Case File Z0334-21. Mr. Hayson further points out that no comments were received in response to the public notice for this application, either from surroundingproperty owners or from relevant public agencies. Mr. Hayson requested that this application for a time extension be approved consistently with the County’s recommendation.

   10. The appellant, Mr. Nathaniel Torj, resides on property directly across the street from the subject property site. Mr. Torj expressed concerns with the development of the subject property and particularly with theowner’s plans to further develop the approved 12-lot subdivision with so-called “middle housing” that may allow the development of each of the 12 lots with multiple homes, increasing the development to provide for 29-30 dwellings.4 Mr. Hart addressed this issue at the hearing, noting that there has been a pre-application conference held for the development of this subdivision as middle housing land divisionswith 30 units as a combination of duplexes and triplexes, but no application has been received by the County. Mr. Hart also explained that such middle housing units would be buildable by right, requiring a building permit but no public notice or local appeal option is allowed.
        

       4 The Oregon State Legislature passed House Bill 2001 (HB2001, also referenced as the “missing middle” housing bill or “Middle Housing Act”) to expand housing options, including duplexes, triplexes, quadplexes, cottage clusters, and townhouses. The law was further expanded in 2025 by the Oregon State Legislature through the passage of HB 2138, requiring cities to allow middle housing on lots zoned for single-detached homes. Among other things, the new reforms expedited land division rules, exempting certain middle housing land divisions from hearing requirements and appeals, with the law becoming operative January 1, 2027.

   11. Mr. Torj asked whether the County had evaluated whether current roads and drainage systems havecapacity for the proposed project, or whether the project will push more water and traffic past the current design limits. Mr. Torj explained that his own property is currently receiving flooding from the projectsite, asserting there is now “way more flooding” than from before this project and there is a lack ofdrainage. Mr. Torj contends there should be some accountability so that his property does not continue to receive the drainage from the project site that is flooding his driveway, asserting major concerns exist with the project including safety issues.
   12. Mark Jeleniewski lives on SE Whipple near the subject property and appeared at the hearing to provide public comment, pointing to issues with current development of the approved 12-lot subdivision site andexpressing concerns regarding development of the site with as many as 30 housing units. Mr. Jeleniewski participated in the prior hearing for application Z0334-21, explaining at the time that the neighborhood understood the proposal as providing for 12 housing units – one on each lot – and this was consistent with the existing development in the neighborhood, and he felt was an improvement. He described the neighborhood as somewhat panicking over the middle housing that may actually result, and states that the neighborhood does not view such development as an improvement, and people are upset about the zoningand middle housing act changes.
   13. Joyce Johnson lives on SE Gordon St. near the subject property and appeared at the hearing to provide public comment, describing concerns with the effects on traffic from the proposed development of the site, particularly concerns with density issues if middle housing is developed. Ms. Johnson notes that the road ends in a “T” and states it becomes left-turn only onto SE Naef Road, with area traffic also impactedby the nearby high school and further stating that many people walk and bike on the road. She questions whether requirements have been met by this development to apply for an extension. Ms. Johnson contends that the existing water issues from the site are a huge concern that has not been solved, with water runoff continuing from the site. Ms. Johnson asserts that local citizens should have input into the development of middle housing in their neighborhood.
   14. Tori Symons lives along the section of SE Whipple facing the subject property and appeared at the hearing to provide public comment. Ms. Symons asserts that this application for a time extension is not made in good faith by the applicant, asserting the applicant has not followed through on promises made. She describes numerous issues with the development of the proposal site, including a “blown up” water main that still has not been cleaned up, changed road heights causing problems for residents in the neighborhood trying to access their own driveways, with repaving of the road still not completed, water issues with multiple creeks flowing down the street with plants now growing on it, and the water detention pond built on the site overflowing. Ms. Symons reports that the applicant ripped out theapproved sidewalks that were installed and asserts they are now preparing the site for middle housing, installing different curbs that are not in accordance with the approved plans. She contends that the applicant is simply waiting for the middle housing act provisions to take effect and the submitted applicationfor a time extension is for an approved subdivision that’s not going to happen. Ms. Symons expressesconcern regarding the safety of the current condition of the street, reiterating that it is a dead-end road and contending that fully developing the site with 30 or 40 or more units per the middle housing provisions will make it unsafe for emergency vehicles and create too much traffic for the location as it has only one route out.
   15. Mr. Hayson provided rebuttal of some of the public comments made at the hearing, noting that the hearingis about the application for a time extension and the approval criteria is in the County code. He asserts thatthe application has demonstrated compliance with the original submitted application, which approves thecreation of 12 lots, and the use of the 12 created lots is not the present issue at the hearing. Mr. Haysondiscussed the “wedge curb” installed on the site, stating it meets County requirements, and reports that the drainage and related development is being constructed pursuant to County permits with all changes approved by County engineering.
   16. There were no requests to keep the record open to submit additional materials. The applicant waivedsubmitting a final argument and the Hearings Officer closed the record at the conclusion of the public hearing.

3. FACTS AND DISCUSSION

   The evidence presented is reliable, probative and substantial evidence upon which to base a determination inthese matters. This application was originally processed as a Type II Permit, pursuant to Clackamas County Zoning and Development Ordinance (ZDO) Section 1307, approved by the Planning Director’s designee, County Planning Manager Lindsey Nesbitt 5, and this appeal followed. Table 1307-01 authorizes the hearingsofficer to hear appeals of planning director decisions. Pursuant to ORS 215.416(11)(a), an appeal of anadministrative decision is reviewed as a de novo matter. The hearings officer is required to conduct an independent review of the record, is not bound by the prior decision of the planning director and does not defer to that decision in any way. The record of the initial proceedings shall, however, be made a part of the record ofthe appeal. New evidence may be introduced in an appeal, and new issues may be raised. Theapplicant/appellant must carry the burden of proof that the application complies with all applicable approval criteria in light of all relevant substantial evidence in the whole record, including any new evidence. This application is subject to Clackamas County Zoning and Development Ordinance (ZDO) Sections 202, 315, 1307, 1105, and 1310, and the County’s Comprehensive Plan. The findings below identify the standards and criteria that are relevant to this decision, state the facts relied upon in rendering the decision, and explain the justification for the decision. This appeal concerns a Planning Director decision approving application File No. Z0023-26 seeking a Time Extension of Z0334-21, an application for a 12-lot subdivision approved on January 24, 2022 following a public hearing pursuant to Type III procedure.

   The appellant, Mr. Torj, and several area neighbors raised concerns at the hearing that the intention of the developer of the site is to wait for implementation of new middle housing regulations that may allowdevelopment of significantly more dwelling units on this property. Neighbors contend that the current time extension application is submitted in bad faith. They contend that the applicant is not proceeding with the 12-lotsubdivision as originally submitted (and/or as understood by neighborhood residents) but is instead waiting for implementation of middle housing regulations that may allow development of the site with substantially more housing units. Neighbors expressed concerns with the potential impacts such middle housing may have on their neighborhood, particularly from increased traffic. Neighbors also raised concerns with respect to existing water runoff and drainage issues, and impacts on the adjacent dead-end street serving several residents. Neighbors also raised concerns with respect to impacts to the neighborhood and to pedestrians and bicyclists related to

   5 See ZDO Table 1307-1. Also See ZDO 1307.03(B), stating that the Planning Director includes “any County staff member authorizedby the Planning Director to fulfill the responsibilities assigned to the Planning Director by the [ZDO].” County Planning Manager Lindsey Nesbitt acted in this capacity.

   increased traffic, particularly if higher density housing is developed pursuant to middle housing regulations, also noting the nearby local high school. Neighbors described significant issues and concerns with on-goingdevelopment activity, describing impacts to their street that include a ruptured water main and associated damage that has not been addressed, changed road heights making it difficult to access driveways, with paving still not completed and the road needing additional gravel, continuing water drainage from the site and overflow from thesite’s detention pond creating “creeks” down the road that have existed long enough to have grown plants. As discussed at the hearing, concerns with Oregon’s Middle Housing Act are legislative in nature. Assuming that the appellant and his neighbors are correct and the owner and applicant of the property intend to develop the site with so-called “middle housing” such as duplexes, triplexes, and quadplexes, this is not a standard or criteriarelevant to this decision. Allowing development of lots zoned for single-family housing with these additional types of housing is a change made by the Oregon State Legislature. The application in Z0334-21 approved creation of a 12-lot subdivision on the existing parcel, but did not review or approve the specific development ofthese 12 lots. With respect to ongoing issues with water drainage, damage from a ruptured water main, and problems with local streets resulting from incomplete development, these are issues that are typically addressed by the County road department or County engineer’s office (or city, depending on location/jurisdiction) and are not issues relevant to this decision concerning a time extension for completion of the approved 12-lot subdivision.

   The findings below identify the standards and criteria that are relevant to this decision, state the facts relied upon in rendering the decision, and explain the justification for the decision.

   Site Plan

4. 
   1. Project Overview: The applicant is requesting an extension to the time limit set forth in file Z0334-26. The applicant requests more time to finish completing the required conditions of approval for this 12-lot subdivision.
   2. ZDO Section 1301.01(A) – Type II Time Extensions: Except as set forth in Subsection 1310.02, a timeextension requires review as a Type II application subject to Section 1307, Procedures, and shall be subject to the following standards and criteria:

      1. The time extension application shall be submitted prior to, but not sooner than one year prior to, the expiration of the initial approval period for the land use permit. However, if the land use permit was modified pursuant to Section 1309, Modification, the application for a time extension shall be submitted prior to, but not sooner than one year prior to, the expiration of the approval period for the modification;

         Finding: The original land use decision (Z0334-22) was approved on January 24, 2022 and had an expiration date exactly four years later on January 24, 2026. This land use application was submitted on January 22, 2026. There were no requests to modify the original land use approval pursuant to ZDO Sec. 1309. This criterion is met.

      2. The proposed development as originally approved, or as modified pursuant to Section 1309, Modification, shall be consistent with the relevant provisions of this ordinance in effect on the date theapplication for a time extension is submitted, provided that the application is complete when submitted or is made complete pursuant to subsection 1307.07(E)(5) 
         Finding: The standards for subdivisions are set forth in ZDO Sec. 1105, dimensional standards are set forth in ZDO Sec. 315, Density standards are set forth in ZDO Sec. 1012, and these standards have not changed materially since land use application Z0334-22 was submitted. Specifically, minimum lot size, minimum and maximum density standards, and subdivision standards have not been changed in any way that would render the proposed lot configuration submitted with Z0334-21 out of compliance with the County ZDO. Several sections of the 1000s are also applicable but have not changed substantially, with the exception being that ZDO-280 amended the requirements for Mass Movement Hazard Review in ZDO Section 1003, Hazards to Safety. The amendments to ZDO 1003 now provide that no developmentor grading shall be allowed in areas of land movement, slump or earth flow, or mud of debris flow, unless approved in a Type II application pursuant to Section 1307, Procedures. The revised ordinanceprovides that, unless the criteria for such development as listed in Subsection 1003.02(B) are satisfied in the review of another approved Type II application pursuant to Section 1307, a mass movement hazard area development permit is required for development in areas of land movement, slump or earth flow, or mud or debris flow. However, as pointed out by staff, the actual underlying approval criteria listed in Subsection 1003.02(B) have not changed and were in fact reviewed in Z0334-21 with specific findings concerning these approval criteria. Specifically, an engineering geologic study was required because development was proposed on slopes of twenty (20) percent or greater, the required engineering studyincluded the elements required by Section 1003.02(B)(3)(a-j), and the final order approving Z0334-21 included appropriate conditions of approval of development consistent with Section 1003.02(B)(2). As noted in the original decision for Z0334-21:

         “The applicant has supplied a highly detailed engineering geotechnical study dated March 9, 2019 andprepared by American Geoservices (Exhibit 3). This geotechnical report covers all items listed in subsections a-j. Furthermore, the report has been prepared by senior engineer Sam Adettiwar, who has provided a professional engineer (PE) stamp, registered in the State of Oregon. Staff notes that the geotechnical report has found that the landslide hazard presented “no obvious slope instability or landslide problems associated with the ancient landslide mass.”

         Furthermore, the report went on to find that there was no evidence of any mass movement activity, and that theinactive nature of the subject property is similar to terrain surrounding the property and in the general vicinity. Still, the geotechnical report recommends construction techniques, construction monitoring, andother engineering techniques be employed to minimize any damages that may result due to future geologic conditions. The Geotechnical investigation makes several recommendations on page 9 and 10 of the study. Staff recommends a condition of approval that construction of the subdivision follow all recommendations set forth on page 9 and 10 of the geotechnical. Staff also recommends listing two explicit conditions of approval in the land use decision: * Continuous or periodic inspections and/or monitoring should be performed by [a geotechnical engineer registered in Oregon]. * A geotechnical engineer registered in Oregon should perform a detailed geotechnical evaluation/report including detailed slope stability analysisand geotechnical design, based on the applicant’s final proposed construction plans. This evaluation/reportshall be submitted to the Planning and Zoning Division, Engineering Division, and Oak Lodge Water Services District, prior to any construction activities. Finally, staff recommends one additional condition of approval: Should any subsequent geological report or geological monitoring reveal that certain areas of the subject property are unsuitable for development, the applicant shall prepare a map showing all areas toremain undeveloped. If any lots cannot be developed, or need to be significantly reconfigured, the applicant shall submit a modification of this land use approval.”6

         The decision included related conditions of approval as recommended by County staff. I agree with the suggestion by County staff that these findings from the January 24, 2022 decision related to the Z0334-21 application are acceptable for meeting the new procedural requirement. I further note, as pointed out by County staff, that applications such as this mass movement hazard area development permit requiring submittal as Type II procedure are commonly reviewed concurrently with applications requiring Type IIIprocedure before the County’s land use Hearings Officer, such as the underlying application for a 12-lot major subdivision submitted here. Thus, the proposed development as originally approved remains consistent with the relevant provisions of this ordinance in effect on the date the application for a time extension is submitted. These criteria are met.

   3. There shall have been no changes on the subject property or in the surrounding area that would be cause for reconsideration of the original decision 
      Finding: Staff did not identify any changes to the subject property or the immediate vicinity that would be cause for reconsideration of the original decision and no such changes were identified by the appellant or other participants at the hearing. Staff reported that there has been a subdivision approved north of the subject property known as Fawn Meadows. However, staff also noted there is no definitionof “surrounding area,” or “clear and objective” criteria to evaluate “cause for reconsideration.” Iconsidered the matter and find no information in the record that suggests approval of the Fawn Meadowssubdivision to the north of the site or any changes in the surrounding area or on the subject property itself are cause for reconsideration of the original decision. Staff further reported that there have been no objections raised by any County Divisions, or outside agencies, and state that these facts support a finding that there is no need to reconsider the original decision. The appellant and several neighbors whoparticipated in the hearing point to the Middle Housing Act’s impact on the number of potential homesthat could be built on the site. I considered this issue and note that the final order in Z0334-21 approveda 12-lot subdivision, and the approval sought in this

      6 Clackamas County Case File No. Z0334-21 Final Order at page 16

      application (Z0023-26) is for a 2-year extension of the deadline for completion of that prior approval.The impact of the Middle Housing Act on the development potential of this approved 12-lot subdivision was created by the Middle Housing Act, and its requirements are imposed by the Oregon State Legislature. This legislation has not resulted in changes on the subject property or in the surrounding area that would be cause for reconsideration of the original decision. Rather, it changes the development potential of the completed subdivision. I note that the surrounding area for the subject property consistsprimarily of single-family dwellings on lots approximately the size of the lots proposed in the underlying application, Z0334-21. Further, I find that the proposed final subdivision plat and associatedimprovements remain in substantial conformance with the approved preliminary plat per case file Z0334-21, with the proposed development remaining consistent with all relevant provisions of the ZDO.This criterion is met.

   4. DECISION

      Based on the findings, discussion, conclusions provided or referenced and incorporated herein, and the public record in this matter, the Hearings Officer hereby APPROVES application Z0023-26 for a time extension of prior approval Z0334-21 for a 12-lot subdivision, subject to the following conditions of approval:

   5. CONDITIONS OF APPROVAL

      The Clackamas County Land Use and Zoning staff recommended approval of this application subject to thefollowing conditions, consistent with the March 26, 2026 Planning Director decision approving this application, reviewed, adopted and/or modified by the Hearings Officer as denoted by boldface type in italics: 

      The conditions listed are necessary to ensure that approval criteria for this land use permit are satisfied. Where a condition relates to a specific approval criterion, the code citation for that criterion follows in parentheses.

      1. Approval of this land use permit is based on the submitted written narrative and plan(s) filed with theCounty on January 22, 2026 and all elements of the previously issued land use decisions (Z0334-21)including conditions of approval. No work shall occur under this permit other than which is specified within these documents, unless otherwise required or specified in the conditions below. It shall be the responsibility of the property owner(s) to comply with this document(s) and the limitation of any approval resulting from the decision described herein.
      2. This Decision authorizes a two-year time extension from the original effective date of land use permit no. Z0334-21 (New Approval Period expires January 24, 2028).

      Dated: June 2, 2026

      Carl D. Cox

      Clackamas County Hearings Officer

      APPEAL RIGHTS

      ZDO 1307.10(F) 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 theperiod within which any appeal must be filed and the manner in which such appeal must be commenced.Presently, ORS 197.830(9) requires that any appeal to LUBA “shall be filed not later than 21 days after the datethe decision sought to be reviewed becomes final.” This decision is “final” for purposes of a LUBA appeal as ofthe date of the decision appearing by my signature.