Oral Argument 2025-036 Lane County Public Works v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=96BOPPCIUiI). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for Lane County Public Works versus Lane County. I'm board chair Zamudia. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Uh, thank you for muting your speaker when you are not speaking. I'm not aware of any pending motions or matters. Um, before we enter into oral argument, anything from the parties? Nope, nothing from the parties. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? And I and uh, Council So, I cannot hear you when you just spoke. You're not on mute, but I can't hear you. >> Can you hear me now? >> I hear you now. Yes. And how much time would you like to reserve for rebuttal? >> Apologies. I tested the audio before and >> worked. Uh, three minutes, please. >> Okay, three minutes. And I will keep track of time on my end and al that you also keep track on your end. And just to note, the clock that is in the screen is not keeping exact time. And then um interviewing our respondents, have you determined how you will share your 15 minutes? >> Uh, yes, we have. Mike Carter is here on behalf of Santa Pac. Uh we've agreed to split our time roughly half. Uh and I'll go first. I hopefully won't even use half my time and then I'll turn it over to Miss Kellington. >> Okay. Thank you. And thank you for figuring that out in advance. Um again, I will keep track of time on my end, but we'll leave it to you to uh share your time. So with that, petitioner, if you will please state your name for the record and begin. >> Thank you and good morning members of the board. My name is Josh Soer on behalf of petitioner and applicant Lane County Public Works. This appeal concerns an application for an innovative resource recovery facility in Lane County. And the issues on appeal all relate to the use categorization of the facility. I structured my brief in terms of the different use categories at issue and the assignments of error that are relevant to each. I think it might be helpful to come at this from a different angle. And so this morning I want to uh structure my presentation in terms of what uh the most significant assignments of error are and how they relate to the overall outcome of the decision. So the first one I want to focus on is the failure to apply the framework in lane code 16.280 sub3 for determining which activities of the proposal are primary versus accessory uses. uh lane con uh lane code 16280 sub3A says that the use category the overall use category is based on the primary use or uses in the proposal. So the first step has to be to determine which uses are primary and that's b that's done using the criteria in lane code 16280 sub3b. Only once those primary activities the primary uses are established can the overall category for the proposal be determined based on those primary uses. This is a a complex proposal with many component parts. And so there was significant briefing below by the applicant um dedicated to which aspects of the proposal are primary versus accessory uses. The hearings officer's failure to first apply that framework to determine which uses are primary versus accessory therefore undermines the rest of the decision because that is the premise on which those determinations about the use categorization have to be made and that therefore necessitates a remand to allow the decision maker to take that threshold step of determining which activities are primary uses and which are accessory uses. there uh there is no dispute that I can discern that the hearings officer did not at any point apply the factors in lane code 16280 sub3b the interveners have pointed to other aspects of lane code 16280 sub3 that the decision applied um but they ultimately appear to concede that sub3b factors were not applied and that's in the lane county uh garbage and recycling association brief page 20 footnotes six. And so then they uh focused their argument on uh this idea that applying those factors was not necessary. To address that, I want to take a step back and uh acknowledge that this section of the code involves uh what I'll refer to as a bit of unusual drafting in that the uh the code uses the same list of factors for two different purposes. It uses them to determine whether a given activity is a primary or an accessory use. And then it also uses those same factors to determine based on the primary use which use category applies. And for that second task of determining based on primary uses which use category applies, the code says that the factors only need to be used when the category is quote not clearly identifiable. and the interveners uh cite that in their briefs. But there is no similar limiting language for using those factors to determine primary versus accessory use. And the code instead simply says that those listed factors are to be considered for making those determinations. So it's our position that the hearings officer was therefore required to apply those factors to make those determinations and then only once those determinations have been made about which uses are primary uh can a proper determination be made about which use category applies and that the board should remand uh with instructions to the decision maker to perform that The second category of assignments of error that I want to focus on are those that relate to the bases for the determination that the proposal is not a government facility and those rely on uh misconstruing the code and inadequate and conclusory findings. Uh I want to also clarify that this provides an independent basis for remand and changes the outcome of the case on its own. Even if the board were defined against petitioner on the primary versus secondary or primary versus accessory use argument that I was just discussing um because uh as I'll discuss further if the facility is properly classified as a government facility it doesn't matter if it could also be classified as a waste related use. So there were three critical errors that I uh discussed in the brief relating to the the findings on this government facility issue. The first is the findings regarding the effect of the examples of government facilities listed in the code. The petitioner argued below um how and why this proposal is similar to the listed examples. The hearings officer's findings said that the proposal is not one of the listed examples or similar to the listed examples but did not include any analysis or explanation of why it is not similar to the listed examples. And this is kind of the quintessential conclusory finding saying this is not this but there's no there's no verbiage whatsoever to connect from point A to point B. Second, the hearings officer's uh findings regarding the code requirement that the public generally is not received. The decision concludes that that requirement is not met because there are components of the facility that are designed to accommodate visits from the public. But that misconrs the code because it reads out the word generally. uh when when the code says the public generally is not received that clearly contemplates that there could be some reception of the public and there's no analysis in the code in the decision about how the public generally is not received just that there is going to be some reception of the public. Third and finally uh the findings regarding whether an otherwise prohibited use can be permitted as a government facility. And this relates back to what I was saying at the beginning about how even if this could otherwise be categorized as a waste related use, if it can be categorized as a government facility, that's still permissible. Um, this is evidence from the fact that the code includes several examples of government facilities which would be prohibited uses if that government facility category didn't exist. So in other words, the question is if there were no government facility category in the code at all and somebody were to come in and propose uh one of the listed examples such as a school district bus facility or were to propose a public works yard, how would those proposals be categor categorized and would they be allowed? And the answer is that both would be categorized as vehicle equipment and boat repair rental storage service and therefore not allowed. But they are explicitly allowed as a government facility. They're included as a list of examples of government facilities that are allowed. And the point therefore is that uh if this proposal even if the hearings officer is correct that this could otherwise be categorized as a waste related use and not allowed it can still be allowed as a government facility. And in concluding otherwise the the hearings officer made a couple of errors in uh that hinge on what these other examples would be categorized as if they were not government facilities. Um, first the hearings officer acknowledged that those uses involve a primary function of repair of vehicles, but said that they could be categorized as towing and vehicle storage or contractor business, neither of which involve vehicle repair rather than the use category that specifically entails vehicle repair. And that's contrary to the plain language of the code. And the hearings officer does not explain that uh part of the decision. Second, the hearings officer found that the examples, the um public works facility or school bus facilities are not public facing while vehicle equipment and boat repair rental storage service is public facing and contractor business and towing and vehicle storage are not public facing. There's no basis in the code for that uh that conclusion and I think we all know that contractors and towing companies are very much public facing. Um so that was a misconstruction of the code. I want to clarify the point isn't whether this proposal itself is public facing. It's not but that's not the point or whether it involves vehicle repair. The point is is that because those other examples listed in the code um would otherwise be categorized as an impermissible use in the zone um that means that this use is as well uh because even if it could be categorized as waste related and therefore prohibited can be permissible in the zone. Um those three errors that I just discussed in the government facility analysis as I mentioned uh independently necessitate a remand so the decision maker can reanalyze whether this proposal qualifies as a waste as a government facility based on the correct There were uh quite a few other assignments of error in um in the position for review. I'm happy to answer questions about any of those, but I wanted to focus on those two categories uh today because those are the the most significant ones and the ones that provide that independent basis for remand. If there aren't any questions, I look like I'm done about a minute early, but I'll see the rest of my time. >> Thank you. No questions from the board. So, we will turn to um interveners for your argument and uh please state your name for the record and begin. >> Thank you. Good morning. >> Uh my name is Mike Connors and I'm presenting on behalf of Interviewer Santaac, Inc. And as we indicated, I'll go first and Miss Kellington will follow after my uh statements. Um the hearings officer's decision denying petitioner's application must be affirmed unless petitioner demonstrates that each and every basis supporting the denial is erroneous. It's long-standing lube precedent. The fundamental flaw with their appeal is that petitioner failed to sign error or challenge the primary basis for the denial. The hearings officer denied the application on the grounds that the proposed facility is in whole or in part a waste related use which no dispute is prohibited in the LI zone consistent with the plain language of lane code 162803A and C. The hearings officer determined that the proposed facility has multiple primary uses and each primary use must qualify as an allowed use in the LI zone. petitioners don't contest that interpretation of the code. In this case, hearings offer officer determined that the primary uses of this facility include the receipt and processing of up to 20 225,000 annual tons of solid waste, the transfer of most of that solid waste to a landfill, approximately 64.45%, and the biological decomposition of organic material for the production of methane gas. Consistent with the plain language of lane code 16283A, the hearings officer determined that the waste related use category quote most closely describes the nature of the primary uses. That's the language from the code and therefore the facilities prohibited in the LI zone officer's determination is clearly consistent with the plain language of the definition of a waste related use. That definition includes any uses that quote receive solid liquid waste for disposal on the site or for transfer to another location or uses that manufacture or produce goods or energy from the biological decomposition of organic material. It's all directly quoted from the land code. Since the primary uses are specifically included in the waste related category definition, the hearings officer rejected petitioner's attempt to classify the facility under the more subjective and open-ended government facility industrial services or similar use categories based on the plain language of 16283 and this board's decision in uh SRT versus city of Lake Asiggo. petitioner appears to be presenting a new argument in or oral argument today uh which is not permitted under your rules that essentially says well if it qualifies as a government facility then it is allowed even if it also qualifies as a related use excuse me waste related use uh the hearings officer specifically addressed that relied on SARTT and there's nothing in the petition or the reply brief that challenges that or even cites that case so we believe that that has been waved. And this argument regarding 16.2803b. Uh the key language there is that that those factors only apply when a uses category is not clearly identifiable. The hearings officer specifically found that this clearly qualifies as a waste related use and petitioner didn't challenge that finding. Instead, what petitioner did is challenge a bunch of ancillary findings, rejecting petitioner's arguments on alternative grounds. Uh there's some mischaracterization of uh the hearings officer's decision. Uh failed to challenge relevant findings even on those alternative findings. Uh and Ray's New Organ is not preserved below. uh we'll rely on our brief for the details on that because really regardless of how you decide these ancillary appeal issues that petitioners raise the hearings officer's decision must be affirmed because petitioner failed to assign error or challenge any of the key findings and conclusions that provide the central basis for the decision that this is a waste related use based on the plain language of the code and petitional likely didn't challenge it because there's really not a reasonable or legitimate basis for challenging that conclusion. you know, petitioners started this project out with a zone change because they repeatedly acknowledged that this is a waste related use that's prohibited in the LI zone and we're seeking a new zone and for reasons that were unclear to us, they changed tact and then suddenly raised an argument that it's not waste related. um that that prior statement prior position is very um in indicative that even petitioner recognize that this clearly is a waste related use. So on that basis um since the hearing officer's primary basis for the denial was this is waste related use it's clearly supported by the plain language of the code and the uh undisputed evidence in the record. Uh we ask that the board affirm uh the uh deny the appeal and affirm the hearings officer's decision. And I'll go ahead and turn it over to Miss Kellington unless you have any questions. >> No questions from the board for you. Uh And you're you're on mute, Council Kellington. >> Thank you, Wendy Kellington. May it please the board representing Lane County Garbage and Recycling Association. We concur wholeheartedly in Sanipac's arguments by not challenging key factual findings, legal conclusions, and preservation failures. The petitioner has provided no basis for reversal or remand, and Luba should affirm the hearings officer's denial decision. Concerning preservation, the petition did not attempt to demonstrate preservation of the issues petitioner raised in the petition that interveners briefs argued were not raised below. For example, the petition record pages cited a petition for review 14 did not raise the issue that only a certain dictionary can be used to interpret the county's code and did not raise the issue that visitors to the nearly 7,000 square ft visitor and education facility are not customers within the meaning of LC16284A Romanet I Instead, petitioner improperly attempts to use its reply brief as a deacto amendment of its petition to site wholly new record pages to demonstrate preservation of those issues. However, under this board's decision in Rosewood versus City of Lake Asiggo, a petitioner may not mitigate its failure to demonstrate preservation in its petition by adding citations for the first time in a reply brief. As Luba explained, doing that is contrary to Luba's long-standing rules and prejudices interveners substantial rights to prepare and present their case, effectively shifting the burden to interveners to search the record for preservation after their briefing period has closed. Rose governs and petitioners not preserve the issues raised in the petition that interveners argued are not raised below. On the merits, petitioner conceds that LC16283 establishes the process for determining which of the use categories applies to a particular use and conceds that 16280 sub8 concerning similar uses only comes into play when none of the enumerated use types in the code apply. Contrary to petitioner's argument today, the hearings officer applied that framework repeatedly over at least 10 pages of the challenged hearings officer decision. Other key issues are not challenged by petitioner. There's no dispute that the LC expressly states that uses are to be assigned to the category whose description most closely describes the primary use. There's no dispute that the LC expressly states that uses with multiple primary uses must have each primary use classified into its applicable category and be subject to the regulations for that category. That framework defeats petitioner's argument raised for the first time here today that if the proposed use can be shoehorned into the government service use that the board should ignore other primary uses proposed uh in the application that are expressly prohibited in the zone. I just want to make sure I understand there's clearly to me an analytical distinction between the petitioner's position today. I'm not sure whether it's in the review and your position about the operation of lane code 16 283A. I think I understand your position is the analysis is determine which category it most closely describes. And so you a decision maker needs to decide what category it falls into. It's not a decision of this is waste related and government. There's a dichotomy there. So they need to choose one or the other. They don't choose both and then they say well this is nests within the government use. >> Yes. That that's what sub A says. Sub C though recognizes that there may be proposed developments that have multiple primary uses and in that situation each primary use is assigned the appropriate use category. Here the hearings officer of course decided that all three primary uses are waste related and prohibited. So hopefully that answers your question. You're you're correct that you you start with deciding is is is the proposal one for a use whose category can be clearly identified. If the answer to that is yes, then you don't proceed to the 3B uh an analysis to look through the factors and that's what the hearings officer expressly said he was doing here and he correctly decided that the the primary uses of the proposal are clearly identified. He didn't have to go applying factors to figure out what they are. Again, you know, here the facility will receive and process uh you know 225 tons of solid waste. It will transfer most of that waste, about 64% of that waste to the short mountain landfill and will biologically decompose uh material organic material to create >> Thank you. >> Yes. And on that there is no dispute that the prohibited waste related use uh that the proposal fits into categories of specific waste uh related uses. The the proposal again it will receive solid and liquid waste from others uh for transfer to another location. There's no dispute about that. There's no dispute that the proposal will involve the manufacturer production of goods or energy from the biological decomposition of or of organic material. The petitioner doesn't challenge the hearings officer's determination that the facility cannot be approved under general open-ended categories like industrial service or government facility because the facility includes waste related uses that are specifically prohibited. petitioner doesn't challenge the findings at record page 24 that the majority of the building square footage is designed to accept process and transfer waste or to produce bio gas or that 84% of the vehicle trips to and from the facility involve the transport of waste. So standing alone, the unchallenged legal framework and unchallenged factual findings support the hearings officer's determination that the proposed use is in whole or in part a prohibited waste related use and the application must be denied. Petitioner also fails to challenge key findings that support the hearings officer's conclusions that the proposed facility is not a government facility where the public is generally not received or an industrial service use where few customers especially the general public come to the site. petitioner on that doesn't challenge the decision's finding. The proposal includes a nearly 7,000 square foot visitor and education center or the finding that the proposal includes 10 additional parking spaces for visitors and two parking spaces for full-size buses. The proposed trip cap doesn't aid petitioner because a single bus load of visitors or two bus loads can bring scores of visitors to the site in a single bus trip. far more people than a few. One final point, petitioners arguments ignore the express wording of LC162803B, which states that it applies only when a use category is not clearly identifiable. The hearings officer didn't by not addressing 3B because the hearings officer properly concluded the use category was clearly identifiable. The hearings officer correctly decided the proposed use as a whole is not a waste related use and alternatively that several of the proposed primary uses constituted prohibited waste related uses because they just match expressly the definition of a waste related use even if there are multiple uses. the 283C comes into play and each primary use is classified in its category and is subject to the regulations for that category. As a result, the proposal must be denied because it includes multiple waste related uses. The hearings officer did not and uh the Lane County Garbage and Recycling Association respectfully request LUBA deny petitioners assignments of error and affirm the decision. >> Thank you. No further questions from the board. We will return to petitioner. You will have your three minutes for rebuttal. Please go ahead. >> Thank you. Uh I want to start by responding to this idea that the argument that if it's allowed as a government facility, it's allowed even if it's waste related. The idea that that's a new argument. Uh, in response to that, I want to quote the 11th page of the petition for review where I wrote, "The government facility use type also allows uses that would otherwise be prohibited in the LI zone." That same argument also appears in the record at page 35, uh, and probably other places in the record as well, but that was the one that I was able to pull up quickly during uh, posing council's argument there. Uh the I I I also want to say that um we a we agree that the petitioner does not contest some of the things that opposing council says that petitioner does not contest. Uh we do not contest that if the uses that the hearings officer determined to be primary uses are in fact the primary uses and if those primary uses are in fact properly categorized as waste related uses and cannot be categorized as a government facility then the overall facility is a waste related use and it's not permitted in the zone. But what we do contest is that those are in fact the primary uses in the first place. And what we also contest is that they are properly classified as waste related uses and that it cannot be categorized as a government facility. I also want to respond to the arguments about the uh Sarti case. uh the way I read the reference to that case in the decision and the way I read that case uh is that it says that there is an inference in those instances that the more general category does not apply. It is an inference but it does not conclusively demonstrate and petitioner does not dispute that that that's what that case stands for and that that is the law. Uh but in this case um that inference is not sufficient for the reasons that we've argued both below and in the petition for review which is that the code explicitly and and and clearly allows uh uses that would otherwise be prohibited if they are categorized as a government facility. And that's because some of those uses that are provided as examples of government facilities would themselves otherwise be prohibited. And the only way that makes sense is if that government facility category is intended uh by the county to allow uses that It's about my three minutes, but I have a few seconds if any there any further questions. >> Not from any no questions from the board. Thank you for your argument. That will conclude oral argument and the statutory deadline for our decision in this appeal is December 3rd. will ask in advance for an extension to issue the opinion no later than December 24th. Is that okay with these parties? >> Okay. Yes. Objection. Thank you and have a good remainder of your day. Thank you.

Summary: Good morning. This is the time set for Lane County Public Works versus Lane County. I'm board chair Zamudia. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Uh, thank you for muting your speaker when you are not speaking. I'm not aware of any pending motions or matters. Um, before we enter into oral argument, anything from the parties? Nope, nothing from the parties…


Oral Argument 2025-062 Friends of Marion County v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=4-zu0XJG7hs). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for oral argument in Friends of Marian County versus Marian County Luba number 2025-062. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Please uh continue to mute your audio when you are not speaking and I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring to our attention? I see three heads nodding now. Thank you. Oral argument is a total of 30 minutes. Uh petitioner, you have 15 minutes. May I reserve up to five minutes for rebuttal? Would you like to reserve any time? >> Yes, I'd like to reserve five minutes, please. >> Okay, I will keep track of time here and ask that you also keep track of your own time. And just to note, the clock on the screen is just for reference. It's not keeping exact time of your argument. And respondent and intervenor, you have a total of 15 minutes. Have you discussed how you'll share your time? >> Uh, yes, we have. The county will yield it time to intervene. >> Great. Thank you. Thank you for being available for questions. And um with that, we can go to petitioner. Please state your name for the record and begin. >> Good morning board members. John Butterfield for petitioner friends of Marian County. I thought I would start with the substantive issues and then dive into our procedural concern later on. And I think a good place to start is where this case left off when it was last year in 2021. The county had taken an irrevocably committed exception based on a finding that resource use on the subject property was impracticable. This board reversed because the evidence did not support that finding. In fact, Luba found at the time that what the evidence did show was that any alleged conflict between rural and residential use had long been present in the area. The subject property was being farmed. Other land owners in the area were farming and no relevant imminent land use change in the area had been identified. This is from page 29 of the slip opinion in Finnig one on remand here. None of the evidence has changed and yet the county has once again approved an irrevocably committed exception. Respondents claim in their joint brief that the county's new findings are bolstered by concrete details. These supposed concrete details all reference testimony from Mr. Fenick. But Mr. Fenick told the county that he doesn't live on the property and hasn't for many years. He has someone else growing a cover crop on the property. And in all the time since he turned over the cover cropping to someone else, no conflict has risen to the level of litigation or even a complaint. This is concrete evidence that in reality the alleged conflicts are not actively occurring and even if they were, they are not disruptive to farming. And [clears throat] I want to pause here and talk briefly about cover cropping. Respondents try to claim that this board's decision in Finnig one that the cover cropping that occurs on the subject property is farm use was somehow an evidentiary finding. What phen one actually held was that farming does not need to be at a commercial scale in order to be protected as farm use. Citing uh O 660 0040028 subsections 2 and six. Uh that's it at page 18 of the slip opinion. So respondents suggest that the county can now find that the subject property is not being farmed because of Mr. Finne's declared lack of income from the property. But that's not the legal standard and it's not a change from Fenig 1. In fin one, nobody relied on income from the cover crop to find that the subject property was being farmed because the state of the ferris on the ground was exactly the same as it is today. So law of the case under Spurber vous county should apply here to again find that cover cropping is a farm use that is ongoing on the property. As we mentioned in our reply brief, the evidence in the record shows that the property can be farmed and is in fact being farmed. If you look at the aerial photographs on record pages 178 and 179, the alleged conflicts are speculative and decades old, and the board should again remand the county's irrevocably committed exception. At this point, uh, I'd like to turn to the way the county structured the findings because this is a change from what happened in Finnig one. As we discussed in our brief here, the county said, "Our factual findings are in exhibit A and exhibit B." And exhibit B said essentially, "These are are Trump findings. If anything here is different than exhibit A, these findings control." But the county didn't go back and say which of the exhibit A findings it was disavowing. And that's problematic for a number of reasons. First, at least petitioner and this board to sort out whether something is different enough to be trumped by the findings in exhibit B. That should not be a burden that the county can place on those reviewing a decision. That's exactly why we have the higher standard. The county has to set out clearly what it is finding and what evidence it believes supports that finding and including findings or evidence that the county later on disavows maybe should not be a permissible strategy to avoid review. And it's especially troublesome here where only exhibit A lists the required criteria. So exhibit B is sort of free floating facts and conclusions that the county then can pull from to support any right required criteria it wants later on. That's not an explanation of how the evidence led to the conclusion that the criteria is met. A and even beyond exhibit B's additional untethered findings. The county then purports to incorporate anything that Mr. Fenig or his attorney submitted to the county throughout the whole permit process. This this apparently gives the county another 77 pages of adoptive findings to pull from later on to try to justify the exception here. That's a clear violation of Gonzalez and provides another reason for remand. At this point, I would be happy to answer questions about anything I've covered or other assignments of air and and otherwise I would uh reserve the >> Nope. No questions from the board. Um we will turn now to intervene. You'll have your full five minutes for rebuttal and we'll turn now to intervenor for your argument. Please state your name for the record and begin. >> Morning chair, members of the board. My name is Isaac Heland. I represent Lois Fenning, applicant below, and intervenor respondent here. The Fenics are a family of farmers who are intimately familiar with the subject property, which has essentially been their backyard since the 1950s. But despite their experience with farming and their knowledge of the property, they have been unable to make farming practicable in large part due to the surrounding residential parcels with small setbacks. This board should allow the property to be put to a productive use and affirm the county's decision to make an irre to take an irrelyably committed exception to goal three resz on the property and allow the partition into two lots. And that is a difference from the last time that this application came before this board. The application now seeks only two parcels 10 acres and 10.46 acres in size rather than 2 acre parcels. um eliminating the requirement for a go 14 exception. In response to the first assignment of error, the county's incorporation of the hearing officer's findings and the testimony and affidavit of uh Wallace Lee and Larry Fen uh doesn't make a decision too unclear under Hiler to make a decision. Uh first, there isn't really a conflict between exhibit A and exhibit B. Um the petitioners speculate that there could be and that there could be a problem, but they really only point to one supposed uh contradiction um between exhibit A finding 17 and exhibit B finding 8. Um but those just reference two different areas. Exhibit A finding 17 referring to the larger area between Mle Road southeast and Culver Road. Um and while exhibit B finding aid is referring to the 13 adjacent parcels that actually touch the subject property. Um and other than that the petitioners have been unable to point to any actual contradiction between exhibit A and exhibit B that would warrant this concern. Um even if there was a contradiction, findings are clear because the county has told us exactly how to handle any such conflict. exhibit B controls. And that particular alleged discrepancy between exhibit A and exhibit B um had to do with how many parcels are in tax deferral. But both of the study areas on this record and the study area that was on the previous record um both list just one property one adjacent parcel in uh tax referral and that's been unchallenged and undefeated. Second, the intent of the county regarding the incorporation of the testimony and evidentary facts submitted by Mr. Lee and Mr. Fenig um it is obvious. um under Gonzalo's standard has been met to clearly define what's being incorporated which um the petitioner today here at oral arguments had no problem identifying it's the testimony and the affidavit submitted by Mr. Lee and Mr. Fenig. Um, now the petitioner may object to the scope of that because they don't like the facts that are that are in the record that have been incorporated, but the county may express findings that they found Mr. Lean and Mr. um testimony to be credible and that they are incorporating them. That meets the standard under Gonzalez. And even if it didn't meet the Gonzalez standard, the uh remedy, so to speak, would be simply to not find an intent to incorporate. Um, but the county specifically and separately names Larry Fenix affidavit and testimony as being adopted as factual findings. So that at least is obviously incorporated in this case hinges a lot more on Mr. Fenick's affidavit than it does on Mr. Leans. Uh in response to the second assignment of error, the county findings appropriately address both the adjacent lands and the neighborhood and regional characteristics. And the petitioners have been kind of unable to make up their mind as to how large they'd like the study area to be. Um previously before the spore, this board remanded and instructed the county to take a stronger look at specifically the adjacent land. Now the petitioner is saying that the study area is too narrow and ought to include parcels that are not actually adjacent. Uh they have no authority for that contention and it in fact runs against fire case law from this board for example lavinger versus slain county in which this board used the terms adjacent lands and adjacent parcels equivalently. Um and at any rate, the old study area still stands to provide the uh neighborhood characteristics and characteristics of the surrounding area. What those characteristics show by the way is that the land use patterns in the area have remained stable. Meaning that generally in the broad area that the residential and farm uses have coexisted meaning that the um finding that this parcel has been irrevocably committed is unlikely to therefore irrevocably commit other parcels west and south. Um, in response to the third assignment of error, the record has substantial evidence to show that the property has been irrevocably committed. And contrary to the petitioner's claim that nothing has really changed between the two record, the county actually substantially retoled its analysis and the applicant actually submitted an entirely new application based off of this board feedback in Fenic one. And so now the analysis really focuses on the effect of the residential uses to the east on the subject property primarily as a result of these really small setbacks, sometimes as small as 20 ft. Uh Mr. Fenny's declaration detailed that he specifically experienced overspray from the six residential um parcels in the eastern boundary. both uh residential overspray, um water or residential irrigation, and also chemical overspray. And both of these have destroyed attempted crops on the subject property. And the chemical overspray is particularly problematic because those chemicals can actually stay in the soil for a long time. And the residential users are not licensed or trained to apply the chemicals. They're not taking wind direction and other things into account when they apply these chemicals. they're drifting onto the subject property which is just 20 ft away. Um and then as far as water availability and fire hazards, the evidence in the record also supports that um you know the subject property has no water rights and if it were to acquire them and drill a well that could contribute to offer fragility in the area which only exacerbates the fire issues. There have been fire issues of um the residential uses have burn barrels and backyard barbecues um and even children playing with matches just a few feet away from the property line which has burned several acres of attempted crops in the past that compounded with trespassers. Um these are all issues where the residential uses have made the subject property impracticable for farming. And then lastly, in response to the fourth assignment error, the dividing the property into just two large parcels will not fundamentally change the character of the surrounding area. And in fact, um 10 acres is much larger than the average parcel size in the area of 3.45 acres. The median parcel size is just over 2 acres. These are going to be two ac 10 acres and 10.45 acre lots. Um this held in Anderson that you know adding one additional dwelling unlikely in area already concentrated was rural development. is unlikely to emit adjacent properties. And here adding two much larger properties with much larger setbacks than currently exist means that these types of residential issues that are coming from the east are not going to spread from the subject parcel to the west and south. I'll take any questions. Council, does the record reflect u when or if whether the properties to the east are are subject or developed according to an exception area or within an exception area? >> I think that there is um an exception area to the east um that is mentioned in the um in the record. Um I I don't recall the the number of the exception area off the top of my head, but there is residential development and subdivisions to the um east and the kind of northeast area and then primarily the actual uh special agriculture farm use lots are to the south and the west. >> Okay. No further questions from the board. So, we will return to petitioner for uh you have five minutes for your rebuttal. >> Thank you. I'll start with uh board member Bashion's question. I believe that the the properties to the east predate uh land use planning. So, they were uh set they were residential already. So, then they got um the zoning was applied to them that way. Um and and I I want to touch on three points that respondents made. first this discussion about uh you know the the large study area versus the narrow study area and I think you know respondents um acknowledge that if if you look at the neighboring characteristics sort of the area in general I guess what we're calling the larger study area um it demonstrates that that farming and residential use have coexisted um for for a long time and respondents uh you know wanted to use that point to say that well if this property becomes residential use. It won't have a cascading effect. But I think what it actually demonstrates is that uh the conflicts that sort of have been identified here don't prevent anybody else from farming next to residential property. And so the there's nothing special about uh this property that makes it somehow different from other farming properties in the area that are bordered by residential property. And I think that's sort of something that the court of appeals has identified, you know, that we're going to have properties on the border between residential and resource use. And if the mere presence of residential use on, you know, on an adjacent property irrevocably commits the resource property next door, then we're not going to be able to have these established borders. And so the the irrevocably committed standard is a demanding one. That's that's something that this board has found. And so it's a high bar to demonstrate that that something specific about this property um it makes it irrevocably committed and and the conflicts identified by the respondents simply don't meet that bar. They they haven't happened in in the past um decades at least. Mr. defend says they haven't had complaints or litigation. So, we're talking about old conflicts that um you know, apparently aren't ongoing and and could be remedied by offense or a setback as as the respondents sort of acknowledge when they say, well, if these properties uh if this property is split into two, partitioned and turned into residential use, it won't lead to further irrevocably committing of the properties to the west because there will be these setbacks. Well, that demonstrates that a setback could address the conflicts that they've identified on the subject property. You simply don't farm right next to the adjacent properties. Um, but in fact, you actually can farm right next to the adjacent properties. That's what we see in the aerial photograph that it is being farmed. And so that was my second point was that the residential uses to the east aren't preventing farming because the cover cropping is occurring and if you look at those aerial images it should you know it's occurring across the width of the property and there hasn't been a fire or chemical overspray and the farmer who it's not Mr. Fin. We understand it's a non-monetary arrangement, but there's a farmer out there who finds it worth his time or her time uh to do this cover cropping, and that's a farm use of the property, demonstrating that it's not virtually impracticable. And so that >> I have a question about the your view of what the proper remedy is in this case. As you've mentioned, this is the second time this um matter is before us. I understand the application and evidence was significantly revised. Your view is that the evidence doesn't satisfy the criteria. You ask for reversal and in the alternative remand. Um tell me your best argument for what the resolution should be. >> Sure. I I would actually I disagree that the evidence has is has significantly changed. um you know respondents cl um classified as a new application but the conflicts that they set out are the same ones that they mentioned in the previous case that was remanded where this board you know held that that didn't show an impracticable an irre an impracticability of farming uh or meet the standard. So um certainly you know the the case uh should should certainly be remanded um for I think to to correct the the procedural issue that we identified and then also potentially to to offer another opportunity for additional evidence. But I think at this point we we've seen what the evidence is, what's there on the ground and and the county has approved it again despite this board's direction the first time. And so that's where I think reversal might be appropriate in in a situation where there there isn't anything that could be put into the record on remand that would change the decision because respondents already had that respondent intervenors already had that chance to put in anything else that they have and and this is where we are. So >> thank you and that uh you've used your full five minutes. So appreciate you answering the question. That will conclude oral argument. The statutory due date for our decision this appeal is February 20th. Uh we'll ask the parties to agree to an extension so that we issue our decision by March 13th. Is that okay with these parties? >> No objection from petitioner. >> No objection from the respondent. >> No objection from the county. Thank you. Thank you and thank you uh for appearing

Summary: Good morning. This is the time set for oral argument in Friends of Marian County versus Marian County Luba number 2025-062. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Please uh continue to mute your audio when you are not speaking and I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring…


Oral Argument 2025-077 Landwatch Lane County v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=a4VI90TCCzE). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for oral argument in land watch Lane County versus Lane County. Luba number 2025-077. I'm board chairio. Board members Wilson and Basham are also present. They're not present. They're present today. Please mute your audio when you're not speaking. Uh and I'm not aware of any pending motions in this appeal or part of anything to bring to our attention. >> None. But I've responded. >> Thank you. >> Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? And if so, how much? >> Three minutes, please. >> Right. I will keep track of time here, but ask that you also keep track of your own time. And just note that the clock that's on the screen is not keeping exact time. and uh intervenor you will have a total of 15 minutes for your response. So with that petitioner please state your name for the record and begin. >> Good morning Sean Malone on behalf of petitioner landwatch lane county. Uh here we have a sort of unique situation um a uh lane county processed application that is within the metro plan boundary but outside of the urban growth boundary and city limits. So we are sort of in a unique uh marginal lands type of situation that Luba has not seen before. Whenever Luba has seen a marginal lands case at least arising out of Lane County, it's always been fully within the county under the uh Lane County's rural comprehensive plan. Again, here we have this particular case arising under the uh cities of Springfield, Eugene, and Lane county's metropolitan plan. Uh with that turning to the first assignment of error uh regarding uh misconstruing or former OS97247 and inadequate findings. Um the issue here is sort of one of is sort of a logical conclusion. Um the language of former RS197247 repeatedly refers to a designation. Petitioner argued that that required a plan amendment to change the plan designation of marginal land. here as we pointed out the metropolitan the metrop plan does not contain a marginal lands designation. Um you know which is again uh sort of contrary to uh all other marginal lands cases that have arisen out of Lane County where the R the Lane County RCP real comprehensive plan has a marginal lands designation. Here we have the metro plan without a marginal lands designation. Uh so it sort of becomes an impossibility in petitioners's view to have a plan amendment uh that would change the plan designation as in every other case from either forest lands or agricultural to marginal lands. And the the conclusion of the hearings official sort of hinges on a sort of small uh issue and that is the inclusion of the phrase that I've emphasized only in in that concluding sentence that the HO concluded nothing in OS 197247 or the cases LWLC sites limits the term designate to only comprehensive plans. Now, if you argue that a plan amendment is necessary and you say it's not only limited to comprehensive plans, well, that begs the logical question of, well, what what is it then? The hearings official, as I pointed out in the in the briefing, sort of took a position, well, it could it could be this and it could be it could be plan amendment or it could be plan designation. And if the hearings official concludes that it's not only a plan designation and does not conclude that it's not that it's only a a zoning designation, then we still have uh an unresolved issue that is that a plan amendment may still be necessary. If for example the uh you know the interpretation the correct interpretation is that uh a designate refers both to a plan designation as well as a zoning designation. Typically I I I usually see uh designation is referred to plan designation. Here we even have it in the metro plan talking about uh you know a marginal lands um something becoming marginal lands within the metro plan. And we'll get to that in a second second assignment of error. But I think this one's very sort of plain on its face. Uh the hearings official left it open. That's why it's an adequate findings, you know, in the preservation section we point to. Uh those are all the arguments as to why designate is a uh plan amendment in our view. So I think that one's pretty straightforward inadequate findings. Uh the second sub assignment of error in there is that the marginal that state law or former RS 197247 uh does does not indicate or the hearings official's interpretation that it is remains a resource designation that is marginal lands remains a resource designation is inconsistent with the statute uh former RS197247. Um again every other case that you see here you have a you're going from a traditional resource designation in the form of forest or agriculture to marginal lands. Uh and so if if it if it is not a nonre if it is a resource designation then I suppose you could have an agricultural designation as as your um as your plan designation. But if marginal lands is nonresource then you can't have a agricultural designation or forest designation on the property. It would have to be just as it has been in every other case from Lane County. The the planet plan designation would have to change from uh agricultural or forest to marginal lands consistent with the change of the zone so like I said if if it is non-designation then it would be inconsistent with the metrop plan's designation of agricultural. Why what requires us to conclude that the marginal land designation can't be a zone that implements an agricultural comp plan designation? Why is marginal lands necessarily not a resource or incons inconsistent with a resource comp plan designation? Well, there's a variety of reasons and we cover them in the briefing there. And just to point out, the first thing is that, you know, the the type of smallcale single family dwellings on small lots uh are is not something that's allowed in agricultural zones uh or or these forest zones. And so it's that that's the first reason why it would be inconsistent. Um you know there is this marginal lands training book which again was never uh adopted by the board doesn't have any force and effect of law. Um >> there's certain there are types of dwellings that are allowed on forest and a land. So why does the allowance of dwellings and marginal lands make it so that marginal land zoning is not consistent with resource zoning? >> Sure. And so if I mean none of those are allowed outright is my understanding. Right. So you don't under the marginal land zone, you get you have outright allowed allowances for particular single family dwellings on particular sized lots or parcels. Um under the uh under the allowances for uh dwellings in uh statute for forest lands and agricultural lands. I'm not under I'm not under the understanding that there are outright allowed uh dwellings in the same nature or manner as in marginal lands. Those are all required, you know, additional processes are required whether it's like type two processes or or so forth. Um, you know, we also have >> your argument, I just want to make sure I understand your argument is that the marginal lands zone is inconsistent with the resource comp plan, metrop plan designation because the type of development that is allowed outright in a marginal land zone is inconsistent with agriculture and forest comp plan designation. >> Correct. I think you can't, you know, you know, I want to be honest here. I can't deny that the the marginal land zone also allows for some resource use, but it also allows for nonresource single family dwellings and that's been identified by Thousand Friends case that went to the that was before Luba. Uh it was an older case. We cite it in our brief where they refer to um hereto for resource lands as marginal lands. So lands that used to be resource lands are now marginal lands. uh we have DLCD's guidance which refers to these as non-resource lands. So um if marginal lands is a non-resource designation let's say zoning designation and then you have a plan designation of agricultural i.e or resource designation or forest forest. Uh then that would appear to be inconsistent under the Baker uh case that we've uh cited to. Um moving on to uh >> oh before you move on just um on your argument that marginal lands aren't resource lands. Why is marginal lands not sort of the flip side of high value farmland? Like they say okay it's farmland but it's really good farmland so we're have extra protections. how is marginal lands like yeah it's farmland but it's not really good farmland so we're gonna have less protections like basically low value farmland I understand what you're saying marginally productive uh farmland essentially and I the most straightforward way I can answer that question is to say it's not marginally agricultural land it's marginal land it's something else you know and so whether the existence of nonresource single family uses on marginally productive resource land renders that still resource or still not or non-resource. Uh petitioners come down on the side that that's nonresource. Um you know again we've cited to to a variety of things in there um including case law DLCD's guidance and so forth. Um so I think that it it it's an ambiguous issue. I have to concede. Um but we we think that the existence of something that is nonresource smallcale rural parcels renders that nonresource. Um and then you know second sub I'm I'm running out of time obviously. >> Thank you. >> Thank you. Um we'll just move on to the second assignment of error there. Inconsistency with the policies. I think this is a these arguments are are are are are pretty good in the sense that um the policies seem to assume that there would be a plan designation for marginal lands and they also seem to say okay marginal lands are agricultural lands and that's what the interpretation of the hearings official was by adopting that from the uh applicant's consult non-attorney consultant and essentially what that would do is render a you know automat atic provision for creation of a plan designation when there is no such plan designation in existence and the closest sort of um analog that I can find in the case law regarding that was this neighbors for livability case when there was the court of appeals said you can't have an automatic reversionary plan amendment that's not allowed that asserts the pop-up process that asserts legislative authority and I think that's the same thing here by saying oh well it doesn't matter that there's no plan designation marginal lands are agriculture lands. So, it seems like you need something else. Uh, one final point with regard to the third assignment of air. You know, there there's simply a a a a dismissive attitude towards towards the neighbors, the notion that they are not members of the public. Um, and u that's that's just simply wrong. And then to say that uh for example um the neighbor's testimony is not evidence uh about the public or the public interest and then concluding that the um non-estimony of all these other people uh is evidence in support of a public interest finding. Uh that's sort of just pure sophistry and it's difficult to to to swallow. Um issue of natural resources and it seems to be just missing the point. Um na the idea that natural resources could be projected under the public interest standard is not precluded by that standard. Um the conclusion that well you just look at what's in inventoried in the metro plan. Well that doesn't really pertain specifically to the public interest standard. Uh and I see I'm almost out of time. So I >> I have a quick question about the second assignment. Um, so if I understand your argument, you're saying that you can only have marginal lands uh with if you have a comp plan designation for marginal lands. And since the metrop plan doesn't have a comp plan designation for marginal lands, there's no way to have marginal lands, at least in this in the donut. Is that right? >> Correct. >> Okay. And so, but the metrop plan, it has these policies that talk about how you can be designated as marginal land. if if you're not allowed to have marginal lands at all, why do they have these policies that appear to allow for marginal lands in some manner? >> Yeah. And like like I said, uh I think there was an assumption there that maybe they would do a plan designation and they made these policies. Um and [clears throat] you know, it's I'm I'm not sure why they included these, but assuming they assuming they were intending to create some plan designation, they didn't do it. Maybe they, you know, again, like we pointed out, uh, this only applies to counties pretty clearly. Uh, the plan designation or the the OS97247 only refers to counties. And so there's pretty clear um, you know, evidence that you can't just automatically create a plan designation through a policy by simply saying marginal lands are agricultural lands. Uh, you have to actually do the work to do that. that is enact legislatively enact a plan designation that would be able to support that that papa. But here um that didn't occur and like we've said once these lands came into the metro plan the possibility of um having this occur you know a plan designation zoning zone change for margin lands became precluded. That's sort of our position on that. >> Okay. Thank you. See? Yeah. I see I'm out of time pretty much, so I'll >> We have 30 seconds for your rebuttal. So, >> I'll hold [laughter] on to that. Thank you. >> I want you to say after uh council close is gone. You'll have time to get one last word in. So, we'll uh turn now to uh intervenor respondent for your argument. And you're muted still. Uh >> Okay. Bill Close for the intervenor here. Um, I was curious, is there always a 30 second rebuttal period for folks? I I totally support that. Um, uh, so the first assignment of error, um, deals with the meaning of the statute and the second assignment of error deals with the meaning of the plan. Um I I guess I'd like to say I think the meat of this case is in the first assignment of error and not the second. But let me dispose of the second assignment of error initially because we finished the questioning on that point. Um the issue there is really what does the presence of these two policies saying anybody can go forth and get a marginal land designation in the um egg or u forest plan areas if you meet the standards. Um what does that say about the need for a u plan designation in the metrop plan that authorizes um marginal lands? I I I think applying our basic rules of construction um which would say those policies need to be given meaning and in order to give them meaning you need to jump to the second step which is well uh you don't really need a we don't really need a marginal lands plan designation the metrop plan um because marginal lands is a type of resource land and we have egg plan designations and we have forest plan designations. So if you meet the standards for a um a marginal lands zoning, then you can tuck in under one of those existing plan designations. So that's a way of saying there's just no need in the metrop plan to go forth to to to amend the plan uh to allow call out marginal lands before you can um go ask for um marginal lands designation. Um the first assignment error is a question of uh you know state law. What the heck does that um um statute mean? Uh when it says designated land as marginal land, [snorts] um that um the hearing [clears throat] official of course agreed with the applicant that designate can mean uh designate with a plan designation or designate with a zoning designation. It is not defined in the statute. Um and so let's go to the dictionary and uh the dictionary would support it uh saying meaning uh you can use your zoning uh regulations or your plan regulations to uh to the hard part of the statute. I mean the statute the the statute says it talks generally about designating um which is not very specific but it talks very particularly about what you need to do to get that um marginal lands medallion. you have to go meet very specific standards. So, um this is a situation where the legislation is general about uh what buckets a local government can use or what labels they can put on uh the process, but it's very specific about what standards have to be applied to qualify. And um uh that's that is the um interpretation of the statute we think is appropriate. I think the the threshold the most important question I think for the board is um does getting which is related to the point I just made does getting a marginal land designation require first getting a marginal um uh does marginal land getting marginal land zoning first require getting a marginal land um plan designation? And um uh and the answer to that really turns on how you characterize uh what marginal lands is. You know, if marginal lands is um akin to or a surrogate or you know another meaning for non-resource land as the petitioner argues then we're in trouble you know but it it it there's no read to read so um narrowly. the correct meaning to give marginal lands is that it's a um a lesser type or um you know poor cousin of you know better agricultural land. I I think the topology you know petitioner was saying well the problem with treating it as a resource land is it allows development. Well sure it allows development any resource land allows some development. There's really a hierarchy. Um if you um just taking agricultural land as an example, you've got high value farmland. You then got um non- highv value farmland. You've got marginal land. You've got committed lands. You've got non-resource land. As you know, you you go from the best land to the crummiest land. and as but but you can get development in any of those um in any of those um different categories. It's just a question of how much development and what standards you have to meet to um get some development and what the densities are and what the impacts on the surrounding property are. Um but some development is allowed in all of those different categories. I might have missed this in the brief, but I'm wondering is the term marginal lands defined in statue or is it defined in the metrop plan? Uh I I I think I think marginal land I'm not aware of a discreet definition of marginal end in the statute. I think it's uh defined in functional terms. >> Right. in the care and whether it satisfies the >> Exactly. That's right. That's right. And I I don't think it's defined in the metro plan either. Um I'm not I haven't revisited the Lane County Rural Comprehensive Plan recently, so I my my answer is allowed. I don't know. Um so I I guess that's really you my main point. um you know is marginal land a type of uh resource use or is it not? And I think if you agree that it is uh then it's easy to reach the conclusion that we that the the the thrust the crankshaft of petitioners argument that we can't get where we got to without uh having a plan designation. That means amending the metro plan to include a marginal lands plan designation and then um amending um uh the plan to allow this property to be redesated to marginal plan uh marginal land plan designation. um uh and and so I think that's the central question in this case and if we um if you can if you can get comfortable with the idea that marginal lands is a type of um resource land then I think that issue pretty much is put to bed. I think that is pretty much the major points I want to make unless there are any >> No questions from the board. Thank you for your argument and we will return to petitioner for a 30 second rebuttal. >> Thank you. Uh just to address the uh policies again uh I didn't quite fully answer it. You know marginal lands are marginal lands. They're not uh identified or defined as you know subprime or u marginal agricultural lands. Those statements in the pol policies just sort of mirror what's in the statute that that's why they're found under a and forest because that's what you have to go from first to get to marginal. Um and then beyond that they're they're analogous to our our lands rural residential lands. um that allow some sort of resource uses but they're not resource lands and uh that'll do it for my side. [clears throat] >> Thank you. Uh any further questions from the board? No. Okay, that will conclude oral argument. Uh thank you for your argument. The statutory due date for our decision in this appeal is February 25th. We'll ask that the parties agree to an extension so that we can issue our decision no later than March 4th. >> Of course. Good. Thank you.

Summary: Good morning. This is the time set for oral argument in land watch Lane County versus Lane County. Luba number 2025-077. I'm board chairio. Board members Wilson and Basham are also present. They're not present. They're present today. Please mute your audio when you're not speaking. Uh and I'm not aware of any pending motions in this appeal or part of anything to bring to our attention. >> None. But I've responded. >> Thank you. >> Oral argument is a total…


Oral Argument 2026-010 Anderson Woods, LLC v. Wallowa County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=QHP4kbVtJzY). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Mhm. >> Are we on? Are we good? Good morning. This is the time set for oral argument in LUPA number 2026-010, Anderson Woods LLC versus Latah County. I'm Board Chair Zamudio. Board Member Wilson is also present. Board Member Basham is not present and will not be participating in the final decision. Um We I think we have an attorney for petitioner on the line. If you could go on screen and unmute, that would be helpful. We're not hearing or seeing anything on our end other than a screen with an Anderson Woods LLC. I'm assuming that's the attorney for petitioner. If you could please um go on screen or unmute so we could Now we see a name for petitioner's attorney, but we still cannot hear or >> This is Ron Hostetter. >> Hello. Good to see you. >> Uh sorry, hey. We're from Enterprise. It takes us a little bit to get make this happen. >> It's all right. It's a lovely lovely part of the state. I've been fortunate enough to be out there. Uh we also had in the waiting room um attorneys for the county. The county did not file a brief in this appeal, so they may view oral argument that we live stream on YouTube, but they will not be able to present oral argument today. So we're only getting oral argument from the petitioner on your petition for review. I don't see any pending matters in this appeal. Is Is you need to bring to our attention? >> Well, I I do I get 15 minutes to argue the case, is that correct? >> Yes, I'm just saying there's no there are no pending motions. We have the substance before us. Nothing >> No preliminary matters, no. >> No preliminary matters, okay, thank you. You do have 15 minutes since you are the only one presenting oral argument today, you'll have that full 15 minutes. Um and whenever you're ready, please state restate your name for the record and begin. Thank you. >> Thank you. This is Ron Hostetler representing the petitioner Anderson Woods LLC. And by the way, you've advised that apparently attorneys for the county are in the room. Um also in my room are the members of Anderson Woods. Four of the five, and so they're listening in as well. Okay, well, to proceed um back in August of 2025, Anderson Woods, through me, applied for four discrete parcels for the acknowledgement of four discrete parcels located outside of the city of Joseph. Um and about a month later, that application was deemed complete. The part of the application that's salient for this day and this argument can be found at the record at page 66-3. I cited in my brief to 66 um {dash} one one through 16 because that's the full application. But the reference to this 10-acre parcel, which is the subject of this appeal, can be found at page six record 66-3. It can also be found at the record at 38-36 where the planning department acknowledged that the application sought approval, that is verification of four parcels, not three parcels. And including the 10-acre parcel that is a subject of this matter. Okay, so there was the application. Then skipping to the decision you'll find at the appendix to the petition um appendix one page seven. And maps are all I think maps are the best way to describe what's going on here. It's actually very straightforward. Um but on page seven of appendix one, you'll see a map of what the county commissioners did approve. That is three discrete parcels. And they did so based on the historical record of homestead patents that were pres- presented throughout title company. So, that's what they approved. Then if parcel four which is a 10-acre parcel. And that's the parcel that they didn't address. They didn't approve it. They didn't Well, they by not >> Uh Mr. Hostetler, um >> Um, I'm having trouble I don't know our connection is not great, but could you maybe walk me through the history of tax lot 8600, all the different parcels are involved? >> Sure. Sure. Uh, so understand that Vernon and Rita Anderson, who are the grandparents of those sitting in my in the room here, >> So, we are, um, >> And the deed is in the >> or on their connection. We are breaking up, uh, Council Hofstetter, you're breaking up. So, maybe if you could turn off your video stream and just go pure audio, we could not lose any of your argument. Turn off my video stream. Somebody help >> So, we're just going to shut her video off, but they can still hear you. And that was >> And we can we can still hear you. Just you were breaking up and we lost some of those words. So, if you could start again, please, on the history. Is that what the question is? We're going to listen. >> Yes. Okay. So, all the the the important part of the history is that in 1952, Vern and Rita Anderson, who are the grandparents of those sitting in the room here, uh, purchased all but 10 acres of the property that's shown on, uh, page seven, uh, of appendix one. Those, uh, and when they purchased that property, then, uh, those discrete parcels had already been formed as part of earlier, um, conveyances from the United States under the Homestead Act >> Are those 10 acres that you're referring to that were omitted from that, um, transfer? Is that parcel four or are those 10 acres what is on the dash line on your app two map? >> It's what's on the dash line of the app two map. >> That's the 10 acres that was omitted from that transfer. >> Yes. >> In 1952. >> Correct. >> Okay. Go on, please. >> All the rest of the property was The 10 acres had already been separated out and belonged to a third party whose names appear on the deed that can be found at at 64-17, which is a conveyance in 1955 when Vern and Rita Anderson then supplemented what they purchased in 1952 by purchasing this extra 10 acres from Stephen Kahn and Ruth Kahn. And again, that deed, that conveyance can be found at the record at 64-17. >> And again, just for clarity, that is the 10 acres that's within that dashed area in tax lot 8600, or is that the 10 acres >> On appendix two, is that what you're looking at? >> No, that you just described a 1955 conveyance that conveyed 10 acres, is that what created parcel four, or was that just the remaining the 10 acres that was within the dashed area? >> That's uh it didn't create parcel four. >> Okay, so what you're talking about is they got the remainder of what is in tax lot 8600 through that 1955 conveyance. We described what created what you're describing as parcel four. What How was that parcel created? And when? >> Oh, I see. >> She's talking this dash up here. It's not a dash. >> Oh. If you're looking up at the Okay, you're looking up at the dashed parcel in the northwest corner. >> Right. >> Okay. Yeah, that was created in 1986 when Vern and Rita Anderson applied for a partition. Um and the reason it's dashed and then bold line is they applied for a partition for the 10 acres that are shown in that dashed line. And then for whatever reason, the county in 1986 Uh no, that's not quite true. The county approved that 10-acre partition, and then the subsequent deed uh just months later or a year later um deeded it in the form of the bold line that is less than 10 acres. >> Okay, so when you were talking about a 1952 conveyance that omitted 10 acres and a 1955 conveyance that conveyed 10 acres, where is that 10 acres that you're describing in the 1952 and the 1955 conveyances? >> Okay, so that 10 acres is if you look at appendix two and on appendix two I have uh parcel four designated. That's the 10 acres that were that was conveyed to the Andersons in 1955. >> Okay. So, before they have applied for the partition in '85, '86, how many discrete parcels were there? Were there four or five? >> There there were four. >> Okay, cuz in your the the brief you submitted to the planning or to the Board of Commissioners on appeal said there were five, so I was confused about that. So, there really just four. >> Yeah, there uh no, I'm not sure. In my application I said there were four. Uh in the brief to the Board of I didn't submit a brief to the Board of Commissioners. I made an oral >> Memorandum. >> Uh oh, memorandum. Yes. Um I may have referred to five in the form that there's uh that there's now as a result of their decision, the Commissioners' decision they would have resulted in four parcels because of that if you include the five or so parcels that parcel that was split off in '86 then there would be five. >> Okay. >> All right, this this is sort of a long way of getting to to my point of like what was going on before the '86 partition. So, correct me if I'm wrong. When you when they applied for the partition in '85, '86, there is what is I'm looking at your that page seven of app one, there was what's parcel one, and it also included that five .7 river part that's separate now, but there was that parcel one, there was parcel two, there was parcel three, and you're saying there was also a parcel four that's that's inside of what they've labeled as parcel three. Is that correct? >> That is correctly stated. >> Okay. >> Thank you. You deciphered what I was saying accurately, yes. >> And then so it seems to me this all sort of comes down to what actually occurred in that 86 partition. Um and the So, it's again, correct me if I'm wrong, but it sounds like the application was to partition 10 part 10 acres off of that parcel one. And then that was approved. And then when they filed the deeds, they only actually partitioned five something acres of it. Is that correct? >> All All of that was back in '86, yes. >> Right. Okay. And it seems to me that the planning commission decided when they did that partition that all that was left afterwards was the 10 acres, which eventually became five, but it was partitioned off of what was looks like parcel one, and then everything that was in parcel one, two, and three, and your four is now just one parcel. That's what the planning commission decided, right? >> Yes. And yes, that is what the planning commission decided. >> Okay. And then this gets me to the crux. And then the board of county commissioners on your appeal, they said, I'm quoting from this is page three of the decision, page three of your app one. It says, "The board interprets the outcome of that partition creating tax lot 8601 from two discrete parcels identified and then it describes them. In this case, the property line separating separating those discrete parcels was vacated because a new parcel was created from area subtracted from both." So, it sounds like they thought that 10 acres was getting created from two separate parcels and I don't understand that cuz it I thought that was just parcel one or parcel A. Yeah, parcel >> So what So what was going on there? I don't understand. >> Okay. So the planning commission, indeed the planning department and then we appealed to the planning commission and both of those bodies said that back in 1986 that 10 acre partition which ended up being a 5 acre partition vacated uh all of the rest of the whatever parcels existed in the larger 270 acre piece. That's what they said. We appealed that and the county commissioners said, "No, it did not. It did not vacate anything." Um and so they said that we are going to approve parcels one, two, and three that you find on page seven of appendix one. They didn't explain why since they ruled that the partition in '86 did not vacate any of the other parcel lines and then caused them then to approve and verify three parcels that existed after that why they didn't explain why they didn't add and approve that additional 10 acre piece that's shown on appendix two. >> Right, so do you have any idea why they did that cuz I don't understand. >> an idea. Um they uh they had a a report from Wallowa Title Company which routinely in our county does do what they call lot of record explorations and they just go back to the homesteads and pull out discrete parcels from there. And so the report from uh well, our title company and I I've explained this in my petition uh only referred to did not include the 10-acre piece because the 10-acre piece was not part of the homestead um conveyances. The 10-acre piece happened sometime between 1900 and 1952 1955. But we know by 1955, however that 10-acre piece was created, we know in 1955 it existed because it was conveyed to Vernon and Rita Anderson separately from the rest of the parcels. >> Were they not aware that you'd pointed out that that 10-acre parcel was its own discrete parcel? >> One commissioner was uh John Hillock saw the light and said we should approve all four. The other two commissioners well, and then uh Commissioner Hayward said I don't see any reason why not. And then without an explanation, Lisa Collier Commissioner Collier moved to approve three of the four discrete parcels and Commissioner Hayward voted along with her and Commissioner Hillock stuck to his guns that it should be four and voted no. But there was no explanation as to why she uh Miss uh Commissioner Collier uh moved to approve three. >> No more questions. >> One last then. Okay, okay. Okay, so I think I'm following all that, but I'm I'm going to go back to my question about the board's decision. It sure seems like they thought that 10-acre parcel that eventually became 5-acre parcel that was created out of two separate parcels, cuz that's what they say. As far as I can tell, it was only created out of one parcel, parcel one. Am I missing something? >> Oh, I see what I know what you're referring to. Um that part of that irregular 5 acres or so that you're referring to does arguably uh intrude not on it intrudes into uh two dis- separately distinct parcels. So, they therefore uh yes, uh >> Which two parcels? >> Um if you look at Uh your question is a good one, and I Okay. Look at uh page eight of appendix one. >> Okay. >> And you'll see this is uh the report from Wallowa Title Company where it's set out the different conveyances and colored maps of the dis- different dis- discrete parcels. And if you'll see in the northwest 40 acres where that irregular 5 acres was split off, that just a really small portion of it intrudes into the 40-acre discrete parcel that is to the east of of the western 40-acre piece. Do you see that? Just a small piece intrudes into it. >> Will you Will you use which lot number you're referring to? >> Oh, no. Sorry. Uh the the the this um tax assessor's map refers only to 8600. So, the the tax lot has been combined long ago to just one tax lot. But, what I refer to is this. If you see in that um at the uh the northwest 40, you'll see F handwritten in. F five something. Do you see that? >> Yes. >> Okay. So, that 40-acre piece is a discrete parcel. Was in 1986. Then uh if you look to the east, you'll see one marked E {slash} six. >> Right. So, you're talking about that little jog that goes across the line towards the E {slash} E. >> Correct. >> Right. >> And that's why the commissioners referred to the impact of that partition >> So, when they the 86 partition occurred, that northwest section and the northeast section, those were two separate parcels at the time? >> Yes. >> Okay, cuz I was looking at page seven, parcel one, those were combined as parcel one. But, is that Is that what was them eliminating lot lines? Is that >> Yeah, what they did was they they decided that those dis- those two discrete parcels that I've just described, uh that they were both impacted by the partition, so they made it into one. >> Okay, thank you. That was that was not clear before. >> So, we we've gone well over time, but I do have one more question. I'm trying to understand really the crux of the nature of your argument and the relief that you're requested requesting, so rather than state my assumption about that, will you please clarify? >> Yes. Um so, the relief we're requesting, if you'll look at the decision that uh well, you if you look at appendix three, that sets out the relief we're requesting, and that is to ask you to reverse the county commissioners who did not award or did not verify the existence of parcel four that you see on on appendix three. We're asking Luba to reverse that decision and to award the uh or to verify, in addition to parcels one and parcel two, that parcel three and and now the requested parcel four are themselves two distinct parcels, and reverse and uh verify that and send it back to the commissioners, the county commissioners, to then issue a decision that awards the four parcels that are shown on appendix three. >> So, you don't you So, now that I understand what they did when they were eliminating the lot lines between the northeast and northwest section, you're okay with that. You're just saying they should have included another parcel that you what you call parcel four that's in parcel three. >> Yep, we're not challenging that they found a vacation of those two discrete parcels and made them into parcel one. We're not challenging that. >> Okay, thank you. >> for your requested remedy, we would have to find as a matter of law that parcel four exists in order to reverse and remand with an order or reverse with an order to approve that verification. Your petition for review states a lot of different standards of review and arguments. What's your alternative if we don't find that parcel four is is exists as a matter of law cuz that's a pretty high standard. >> Um the alternative would be to uh remand uh for uh exponent uh for findings of fact that would justify why they didn't address our application for parcel what we call parcel four and to support that with substantial evidence in the record. And the reason I argue you should reverse it is because you won't you won't find any evidence in the record as to the evidence in the record is that parcel four exists and there's no evidence in the record to support any decision that says it does not. >> Thank you. And that will conclude our oral argument. Uh our final the statutory due date for our final decision in this appeal is May 27th. We'll ask that you uh agree to an extension so that we can issue our opinion by June 17th. Is that okay with you? >> No objection. >> Thank you. Have a good remainder of your day.

Summary: Mhm. >> Mhm. >> Are we on? Are we good? Good morning. This is the time set for oral argument in LUPA number 2026-010, Anderson Woods LLC versus Latah County. I'm Board Chair Zamudio. Board Member Wilson is also present. Board Member Basham is not present and will not be participating in the final decision. Um We I think we have an attorney for petitioner on the line. If you could go on screen and unmute, that would be helpful. We're not hearing or seeing a…