Oral Argument 2024-082/083/085 Redside Restoration v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=yUiLc5RO_Vc). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

You're fine. I don't mind I won't feel waiting on the county. Is the county waiting to be let go. Good morning. This is the time set for oral argument in Redside Restoration Project 1 LLC versus Dashuites County Luba numbers 2024-082 083 and 085. As you'll probably notice, we're trying a new format for oral argument today. So, please bear with us if we have any technical difficulties. We can see the attorneys for all of the parties on our screen. And I am board chairs and with me today are board members uh Wilson and Basham. Please mute your audio when you're not speaking. And I'm not aware of any pending motions in this matter. Is there anything the parties need to bring to our attention? See none. None. Uh oral argument is a total of 30 minutes. Um petitioners and intervenor petitioner will share 15 minutes. Have you decided among yourselves how you'll share your time? Yes, we have. This fineman, am I audible for you? Yes. Okay. I think Mr. Katzoff, you were shaking your head. Can you hear uh Mr. Kleinman? He's quite soft for me. I'm not sure if he can turn it up at all. Trying to turn it up. Is this any better? Yes, it is. so we have uh decided to divide time between Mr. Hley and me and uh we'll each take five minutes on rebuttal. It's possible that one of the other attorneys uh on this side. Okay. So, my understanding is uh there will be two fivem minute presentations and then the petitioners want to reserve five minutes for rebuttal. Exactly right. Thank you. Thank you. And thank you for deciding that in advance. and county and intervening respondents attorney. You'll share your 15minute uh response. Have you decided among yourselves how you'll share your time? Yes. Yes, we have, your honor. Um Stephanie Marshall, senior assistant legal counsel at Dashuites County. Um I will be taking approximately five minutes and the remainder of the time will be allocated to the intervenor respondents attorney, Mr. Katzro. Okay. Thank you. Thank you everyone for your briefing and for being here today. And with that, uh, whomever from the petitioners wants to start, you may state your name for the record and begin. Go ahead. Okay. Uh, this is Jeff Fineman uh, on behalf of the Buchanan and Keystone. I think it's important uh, for the purposes of this case to bear in mind the and keep some perspective on the on the legal framework. So planning statewide planning goal three is to preserve and maintain agricultural lands. Uh while all of statutory agendy's policy is important, O RS 2152432 is especially relevant and provides that the preservation of the maximum amount of the limited supply of a land is necessary um to the conservation of the state's economic resources and preservation of such land in large blocks is necessary goes on from there. Uh the definition of uh which the legislature defined broadly whether land is within the goal three definition of a land and relatedly whether land is suitable for farm use as defined by RS 2152032A are questions of state law. Other words, there are legal questions under KGI versus Fanton County 152 or act 131. Um, we have cited the board to Clo versus Tamo County 43 or Yuba uh 4. Uh, and this is the 2002 decision, not the 2005 decision. Um and uh in that case the board held that if property has some value as farmland if used in conjunction with a neighboring commercial farm or ranch um then under the rule uh that prohibits a finding that the property is generally unsuitable for farm uses. Um that case arises under the non-farm dwelling um provisions of the ORS. However, that's the only place in the OAR that the in conjunction with language uh appears. But um and again, the way the test is stated, it's a question of law. Uh if a reasonable farmer or rancher can make use of the property in conjunction with their adjacent or nearby land, it doesn't matter how many witnesses an applicant can round up to contend otherwise. Um, Luba adopted the in conjunction with language uh in uh both Landwatch versus Lane County 77 or Luba at 371 and Weather versus Douglas County 5 or Luba at 186 to 187. under the farmland statute generally uh reading OAR 66033 sub3 uh to require an analysis as to whether the suitability for farm use inquiry well it it it explained that the suitability for farm use inquiry must consider the potential for use in conjunction with adjacent or nearby land. So it doesn't matter whether uh whether it's a non-farm dwelling case or a case like this involving a five papa Um very quickly uh the state agencies with expertise in this uh area uh in particular ODA, ELCB and OBFW uh submitted joint written testimony uh that stated that according to the landowner's own estimates of grazing potential the 7 central property is the productive norm for native rangeand in the region and uh represents average rangeand pastures down in central Oregon uh that have been successfully managed for livestock grazing since cattle and sheep were introduced and that's at pages 190 and 191 of the record. That is precisely the use that's proposed and intended by Keystone making use of Mr. Buchanan's uh lifelong ranching experience and the market that the Buchanan have successfully developed in central Oregon and metro Portland for their beef uh which is derived from their breeding or crossbreeding Angus and cattle. Um and I will stop there and uh hand off to Mr. Howley. Thank you. Good morning. For the record, Jamie Hley on behalf of petitioner redside. Groundwater, especially on the east side of the Cascades, is an infinite finite resource. 71 houses will consume considerable portion of that resource. The decision here first admits that all four properties in the study area rely on groundwater for irrigation and the Buchanan rely on groundwater for stock watering as well. That's at the record on 71. In addition, the the Johnson's uh the Mayo Phillips and Redside Farms are also adjacent and nearby, but the applicant and decision focus squarely on the Buchanan. The decision itself concludes that after a review of the expert evidence related to water impacts, we find that the existing resource designation and zoning is not necessary in order to allow existing farm practices in the study area and beyond to continue. Again, that's at record 71. But 1,00 friends is correct that whether groundwater consumption will allow farm practices to continue is not the correct standard for 00201 small a big C. The question is whether or not the land is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. So declining groundwater levels may not permit irrigation to be undertaken on nearby agricultural lands due to the cost of drilling and deepening those irrigation wells. So where's the evidence here? On the substantial evidence question, the decision relies on evidence about uh one domestic well costing approximately uh $6,537 for for deepening that domestic well. That's at the record at page 75. But the criteria uh regard impacts the surrounding wells used for irrigation. The only evidence in the record here is the cost of deepening an irrigation well uh from Mr. Long and the CWM where the the cost ranges between 60,000 to over $150,000 to do that. That is at the record 16.97. that is a 9 to 22 time uh increase in the cost of deepening uh of a domestic well. The the decision neither explained why Mr. Long's cost estimate is incorrect nor cited an alternative estimate. The decision never found that an irrigation welldeening would not adversely impact farm profits here. No reasonable decision maker would rely on evidence regarding one small domestic well when evaluating farming practices that involve irrigation. So in summary, uh goal three and its implementing rules require the preservation of agricultural land in large blocks to essentially avoid a domino effect of non-farm uses taking over uh within an area. Carried to that logical end, grazing lands would never be protected and therefore available for ranchers like Mr. Kleman's clients, the Buchanan. Without designating and protecting these lands, there's nothing to prevent their continuing loss. And with that, uh, I'll stand unless there's any questions and look forward to rebuttal. No questions from the board. So, you will have your full five minutes for rebuttal. And we will turn now to uh the county intervening respondent, whomever's going to start on that side. Um good morning, your honor. Stephanie Marshall, senior assistant legal counsel for Dashets County. I will uh start on the respondent side. Um and thank you for um for hearing uh oral argument today. Um we uh the county believes that um the issues raised by the petition petitioners and uh intervenor petitioners it are adequately addressed in the briefs but there are a few things that I wish to highlight uh very briefly and then turn it over to um intervenor respondents attorney uh Kim Katzaroth. Um this appeal uh is a decision of the county board on the specific issues remanded by Luba in 2023. uh petitioners did get a second bite of the apple to essentially uh put more evidence into the record uh to bolster their arguments with respect to the sustainability 6603300201 AC and the water and traffic issues that um um Mr. Hy briefly touched on the water issues uh but no one except the applicant and to some extent the Buchanan um submitted additional evidence for the board's consideration. I do want to make a very brief statement on um the the deepening of the wells argument that uh Mr. Hley just uh mentioned and that uh that argument uh presupposes that the wells will need to be deepened and there is expert evidence um in the in the record that shows that there will not be a significant enough impact or significant impact period to the um groundwater uh as a result of um potentially developing the 710 properties in the future with um with residential uses. Um I have notes that we're going to be addressing the exparte and bias um allegations the first and second the evidence that you're referring to about the uh expert evidence that the domestic walls will not require well deepening on agricultural land. Does you have record citation for that? Um I do not in my notes. Um I will defer to Mr. Katzarov and he can provide a pinpoint site for that. Do you know? Do you refer to it in your brief? Um, we uh we Yeah, real quick. We refer to it in our brief and I believe it's at exhibit. Sorry, it's record citation 2374. It's from the original record also in the original decision and I wasn't challenged. I'm sorry. What was the record citation? I believe it's 2374. Um, but it was also in the 2023 record. I don't have that pin site in front of me, but it is certainly cited in our briefing um and addressed both in the 2020 previous decision and in this decision. There's also additional expert testimony which I will try to touch on, but I don't want to take any more of Miss Marshall's time. Thank you. All right. Um thank you. So, so um as I was just stating um my notes for our oral argument today, um address the first and second assignments of error uh presented by Redside. um we've not heard any oral argument on those issues. I think that um our time uh collectively is best spent um on the issues that um petitioners and intervenor petitioners presented in their testimony. So um I I really just kind of want to summarize and state that um just one note on the exparte and bias allegations. Um really what I wanted to drill down on are these uh workaround um statements that were allegedly made by Commissioner Dabone. Um because the record um now includes the transcript of the testimony at the LCBC hearing. Um the context is clear. What Mr. Dabone was not seeking uh was a workaround to approve this application. The application is decided on the law as it exists um under the goalpost rules at the time of the application. the workaround is is future-looking. Um, you know, how do we best h how can the state best address these these lands that were mischaracterized as a lands um in the future so that they're not, you know, it's not an eitheror. either they have to stay designated as a lands in error or maybe there's a different designation like an open space designation that would um essentially prevent u future reszone or not all prevent um not prevent all future reszone applications but would would have a middle ground where they can retain as as open space areas. So I just wanted to provide that additional note on that. It's evident in the um transcript um that is in the record now. And um if there are no questions on that, I would like to turn over the remainder of the time to Mr. Katzarov. Okay. Uh Ken Kather Schwab Williamson and Wyatt for the interview to respondents. I'm going to first address the well deepening and the water question more thoroughly. Um and I will try to be brief because I know we've had a lot of issues and not a lot of time. Um though I first want to uh mention that although the decision says one domestic they looked at the domestic well in terms of the actual cost of deepening at you know roughly $6,000 $6,500 the actual evidence of the records at page 689 and it doesn't distinguish between uh a domestic well or otherwise it's a 731 ft deep well it doesn't specify domestic the decision says domestic I don't think it is doesn't matter but more Go ahead I encourage you to slow down you're speaking Okay. I know you want to cover a lot, but it's hard for us hard for me. I won't speak for the full board to follow at the rate that you're speaking. And also, if you could give us that record citation again, 689 is the actual well estimate for deepening and cleaning a well at over 731 ft, which is similar to the wells in the area as is shown in the other reports and analysis. The original analysis uh that made the conclusions from the original decision is found at uh uh 2377. And I'm going to just read that really quickly. And what it says is, and this is from GSI Water Solutions several years ago with no contrary evidence in the record, still says based on the published literature, well logs and ground level hydrographs of the steady area. It said keeps going and going. is a long-term groundwater effects in the area declining at a rate of less than half a foot a year. Not based upon general use here and using very conservative estimates of aquaer parameters and pumping rates. Measurable interference with existing wells is unlikely to occur due to the high permeability of the aquifer materials and the low pumping rates for domestic wells. And this looked at a much broader use at 71 domestic wells at a very high level of use. And what Redside continues to ignore, as they did with our traffic analysis, is that there's a conditions of approval agreement as part of this decision that even further restricts the amount of water that you can use. So, not only is it the the expert evidence say you not you're not going to have an impact at all, but we even further reduced it. There's also an additional uh letter from this goround that we provided during the open record period and redside chose not to respond to it and that's from Cascade Geoengineering which made similar findings in response to their expert. Their expert didn't provide any rebuttal testimony. You only have the lay testimony of Mr. Hley unfortunately and their expert didn't even say that there would be significant impact. What he said is that water is finite and that there may be an impact downstream in the river which has nothing to do uh with this particular test which is again not a farm impacts test but whether or not this it's necessary for this property to remain in the agricultural designation due to a presumed lack of impacts. Okay. So the water issue what they're arguing is that water is going to have an impact no matter what. what the actual expert evidence is and none contrary to that is that it's unlikely to have any interference. And so we're looking at this very high standard of necessary that this property remains the same. Not just it would be nice, not that it would be great, but as the court of appeals and this board determined, it has to be truly necessary that a redesignation based upon the presumed last lack of impacts uh wouldn't permit farm practice on surrounding lands. Okay. umation for that Cascade Geo report that was submitted. 938 is the start of it and it goes for several pages. Um but it starts at page 938. Um and the original one is at uh 2377 and the well deepening estimate on a different property that's not a domestic well is 689. Thank you. Okay. Um I want to uh talk about a couple other things. Um, I think it's really interesting that the petitioners in this case, including climman to start, um, uh, are trying to bring this back up to the 30,000 foot level and argue that the rules were misapplied again as opposed to actually looking at what the decision did, citing to it, and addressing the findings and the evidence that that were relied upon by the county. Because if they actually do that, you have a really long decision with detailed findings that specifically cites the evidence and addresses all the standards correctly. But if instead you can try to pull us up to 30,000 just said, "Hey, they did it wrong." Again, we may have a problem. But I don't think we did. Let's be clear here that this is in fact a substantial evidence standard. 66033 sub 2 even says. It says in order to make this determination, you have to have substantial evidence in the record. You have to make findings, substantial evidence on the factors. Okay? So even the rule directs us to that this is a substantial evidence standard and we've addressed all those factors and rather than challenge those findings in their briefs or an oral argument today we're just saying oh no let's just pretend it's a different uh standard of review it's not it's substantial evidence um I want to address thousand friends real briefly because one of the issues that I think there's perhaps uh battling evidence or it's under substantial evidence is the quality of this property for dryland grazing. I understand uh petitioner Buchanan to point to evidence that this property is uh average for dryland grazing quality and I think there's other evidence or will you please clarify that issue for me? Is this of average quality? Is it less than average? What were the findings on that? It is it is exactly not average. It is significantly worse than average. That is the original letter that was submitted by a joint uh tri- agency letter DLCD, ODA uh and uh ODFNW. There's not any new evidence arguing that. They say it's in in that letter they say, oh, it may be average, but then they they provide a number that they believe you could support in terms of cow calf pairs and it's five in a dry year and 10 in a wet year, which if you actually were to produce that amount on an entire 710 acres, you wouldn't even be able to pay for the property taxes. Okay, that's we're, you know, not looking at any other cost. um it's just if you were going to try to support five or 10 cow calf pairs, you couldn't even produce enough beef to pay for the property taxes. And that was part of the findings that were originally made in the 2022 decision and reaffirmed by the county in this decision. However, on remand, we also looked at what Luba asked us to do, which was to look at if you were going to import feed um and what that would do to this analysis and essentially you would lose your shirt. And no party submitted any contrary evidence to that. There is substantial analysis provided by several ranchers including Mr. Rand Campbell that looked at the cost of feed, how much it would cost based upon the actual aums that you could produce on the property and then what it would cost to bring in hay, etc. and you would lose your shirt. Um, on that same point, I'll just say DLCD in this record asked for a specific conjunctive analysis in between the Buchanan property and this 710 acre piece of property. We're the only Buchanan refused to provide us any information. And so that analysis is based upon uh OSU extension service data for how many aums you could produce on their irrigated pasture and all of the other factors based upon their land and our property. That was submitted by Mr. Campbell. It's cited too well in our briefs. Um and it shows that you could not make money. You would lose more money by trying to add this property and in fact uh supplement it with outside feed. Um so that analysis is done. DLCD apparently accepted it because they didn't appeal or otherwise participate in this particular uh goround uh after remand. So again, no other party challenged that. All we have is Mr. Buchanan stating, "Oh yeah, I could make money there with while refusing to provide us other information um and in fact contrary to testimony uh also submitted by the Buchanan about them making money." So that has been well briefed. It is clearly a substantial evidence challenge and the board of county commissioners looked at the seven plus ranchers who have walked this property and testim and testified that they would not try to add this property for dryland grazing because you would lose your shirt. Okay? There's no way to make money here. This is not a first goound. This is a second goound. They had the opportunity to try to find different evidence. They didn't because they can't get people to say you could except for Mr. Buchanan who refuses to provide any other information. I have to address thousand friends before my time is up. Um, we believe that a lot of their arguments are waved, but we neglected to cite a very important rule, very important statute, which is OS 1976 622. And what that law says, it's only a couple years old, but what that law says is uh it relates to amendments to comprehensive plans, which after remand from Luba, which is exactly what this is. And what it says is when a local government adopts a change to an acknowledged comprehensive plan or land use regulation and the land use board of appeals remands all or a portion of that decision based solely on inadequate findings or evidence. If the local government adopts the same changes following remand with revised findings and additional evidence to the remand, then a party may not raise new issues that could have but were not previously raised before the board, but may only challenge the revised findings or additional evidence. And if you look at what this board said in their remand previously, it said, quote, "The county must consider evidence and adopt findings addressing the impacts of redesation of the property related to water, wastewater, traffic, and whether retaining the property's agricultural designation is necessary to permit farm practices on adjacent or nearby lands." That's exactly what we have here. And so these new issues 197622 cited in the response briefs. No, that's what I said. We neglected to cite that. So oral argument is only for issues that are raised in the briefs. The board won't consider new issues raised for the first time at oral argument. Uh my understanding is that's from a petitioner side and not for a defensive posture. I don't think the board has ever made a decision different than that. And so we're raising it now because although it codifies the rest of the waiver standards, it still applies in this instance. So there's nothing in luba rules or past case law that applies it to a county or a respondent responding to arguments made. Thank you. You've uh you've met the 15 minutes time. Thank you for your argument today. We will return to the petitioners for rebuttal. Thank for and east. Um the reason we provided the legal perspective that we did on oral argument is that the briefs addressed the decision in full and addressed the record in detail. Um with respect to the comment that council made about DLC's letter uh the multiple state agency letter um if uh the reading espoused by the applicant is correct then um the state agencies are conceding that you cannot possibly uh use any of the range land in climman we're losing like every third word. If you could get the microphone closer to your mouth or I'm so sorry. Is that better? That's better. Thank you. Okay. Um so as I said the briefs addressed the uh decision and the findings in full and we provided some perspective um from a higher altitude as has been suggested uh because that's the framework within which rules must be read if their reading of the LCB's letter is correct uh then all the out. Mr. Buchanan has testified that there is no need to import feed for that property. He has ranched uh more difficult property in Jefferson County profitably recently. So um and there is no point in speculating on why the state did not participate council is the evidence that there that this is uh average for dryland grazing I understand you're you're supporting that with the multiple state agency letter and evidence from uh petitioner Buchanan. Is there contradictory evidence that the county relies on in finding this is below average or is the issue that average dryland grazing uh can't make a profit so it's not a farm use? Um I I don't think there is contrary evidence except um well I don't think there is to answer your question. Um and bear in mind uh land and capability classes other than 1 through6 that is adjacent to or intermingled with lands in those classes shall be inventory of this agricultural lands even though the land may not be crop or grazed. There's 200 acres minimum of class six on this property and Mr. Buchanan testified at length on how that can be enhanced with additional dryland press. So with that, I'm sorry um so I want to start from the proposition on page 30 of our brief. Uh it mentions that Kyle Gorman of O the Oregon Water Resources Department concludes that the the aquafer is declining here. And while that's important is on page 29 of our brief, it shows that the applicant here instead of focusing on what impacts would be on surrounding agricultural lands narrowed the study did not include our clients and the others that I mentioned at the outset and and focus on a very small study area with exempt wells. quite frankly um if you look to their own evidence page 689 which is an invoice and page 690 they're invoices for domestic wells and so again they're they're looking at an orange here when they should be looking at an apple and there's no analysis of how these 71 exempt wells sticking straws into the plateau will not have uh an impact on the adjacent farming activities for irrigation purposes. And with that, I'll Now further questions from the board. Uh thank you all for your oral argument today. That will conclude oral argument. The statutory due date for our decision and these appeals is May 9th. Uh we'll let the parties know in advance that we plan to issue our decision no later than May 16th.

Summary: You're fine. I don't mind I won't feel waiting on the county. Is the county waiting to be let go. Good morning. This is the time set for oral argument in Redside Restoration Project 1 LLC versus Dashuites County Luba numbers 2024-082 083 and 085. As you'll probably notice, we're trying a new format for oral argument today. So, please bear with us if we have any technical difficulties. We can see the attorneys for all of the parties on our screen. And I am…


Oral Argument 2025-005 Oregon Coast Alliance v. Coos County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=obY2mSg4rg0). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

So either we're having more technical difficulties on our end or I was unmuted. There you are. Okay. Would you like to reserve any time for rebuttal? You may reserve to five minutes. Uh three minutes, please. Okay. I will keep track of time on my end, but ask that you also keep track on your own end. And without further delay, please say your name for the record and begin. Good afternoon to the board and Mr. Clouse. Uh Sean Malone on behalf of petitioner Oregon Coast Alliance. Uh the first assignment of error deals with the issue of incorporation. Uh the response brief just highlights how ambiguous the incorporations are. The decision could very easily have been done in a manner that doesn't make a puzzle or a game out of determining what the findings are. Uh the ambi ambiguities here include the fact that the uh findings essentially just state that uh they're incorporating the staff reports. they don't identify whether that includes the exhibits or not. Um, typically when I review a staff report, staff report uh includes exhibits and I would review those exhibits as well. I tend to think of those things as the staff report. Uh there's also ambiguities about uh things submitted from staff not technically named a staff report but you defined as or identified as a supplemental report from uh the planning director or a memo from Jill Rolf who is the planning director. Uh so it's it it becomes difficult to exec exactly know what the decision is. Um, in the response, the applicant alleges that the staff reports apparently do not include the exhibits. Uh, why that is is not clear. Uh, and we're also not hearing from the, uh, county on this, which is the one that which is the per the entity that adopted the decision uh, who would actually know this. So, we've only heard from the applicant. Um, so the applicant just seems to be picking one side of this. Uh, we we we're acknowledging that it is ambiguous. uh the applicant seems to find some certainty in there. Uh it's not uncommon to incorporate the applicant's narrative and expert reports that are part of the staff report as exhibits, which is the case here. Um also, yes, I have a question. Um I'm I'm trying to understand how this is an independent basis for remand. This isn't a case where there are no findings. I mean, there's plenty of findings from the board. There's findings from the planning commission that are that no one seems to dispute or incorporate it. It seems that you know if if if there's any arguments that we have here that are relying on something in those staff reports or perhaps the attached exhibits that this would come into play. So I guess but I don't I'm unaware if that's the case. So let me know if if that is. But it seems like even if you're right, that would just mean that the staff report is not part of the incorporated findings and then we just go on to look to see whether things are supported by substantial evidence or not. So maybe if you could explain to me how this is an independent basis for Mand. Well, in response, I would say look to the two cases that we cited, Central Oregon Land Watch as well as the Gonzalez case. uh in those cases uh Luba appeared to um remand based on those arguments in those cases not only this notion of clearly identifying what is incorporated into the findings um but also sort of the the extreme amount of pages that could potentially be within the findings. In central Oregon land watch case, I think it was like 700 pages out of a 2500 page record. Here we have roughly 300 uh 64 pages out of a 513 page record. Um, right. But in both those cases, I think the the county is in both of them. The the local government was to satisfy an approval criteria and the only findings they could point to were findings that were in these incorporations. There weren't any independent findings to meet those approval criterion. So the question was whether is this approval criterion met and they were county was relying on oh look at the stuff we incorporated and then we're like well we can't tell what you incorporated so you can't rely on it here and I think we're missing that first step. What are we arguing about that we have to look at to what's being incorporated or not. So so that's that kind of gets back to so even if you're right why does that matter? What approval what approval criterion is are they relying on something in the staff reporter exhibits to satisfy? Well, I think that question sort of assumes that I know what the the the what is incorporated. I mean, if it's ambiguous, then clearly we have a clear incorporation as to the planning commission's decision. We also have a clear identification of uh you know the the actual adopted findings you know how many other pages of that there was um it it it it's a difficult question to answer because you if I don't know what is incorporated into the into the findings and um and then you're asking me a question of well are do any of these things have to do with any of those incorporated findings if I don't know the answer to what is incorporated into the findings, then it's I find it difficult to be able to provide you an an accurate answer if I don't know uh what else is incorporated into the findings. Am I going to get a response brief that says, "Oh, he didn't challenge this little thing over here uh you know, in this this this exhibit to the staff report." And that very well could have happened, but they're taking a position that the exhibits weren't uh incorporated, which is completely ambiguous from the findings themselves. So I I I think it's I'm I'm being presented with a question that can't have a clear answer because it's ambiguous as to what was incorporated. But yes, I do concede that there are some findings that are clearly part of the decision. But when challenging a decision, you kind of want to know what all of the decision entails. Um I don't know if I have a better answer than that. Okay, that's good. Thank you. So just to move on to these uh I want to delve into that a little bit further. So I think you're arguing that when there is an overincclusive incorporation or unclear incorporation of findings that's kind of a per se procedural error because a petitioner is then in a position to have to identify what the decision is to then assign error. So the after the fact that if the red brief does not rely on findings that are not that are unambiguously incorporated that doesn't solve the initial error or create a harmless error situation. I think that's accurate and let me let me illustrate it in this way. Uh the response brief points to uh this statement that is on page uh record page seven appendix page four. They say similarly there were staff reports issued in the course of this application and appeal. Each address standards for the decision based on the record and now they're saying well those standards are only found in the the sort of body of the staff report. But if we then go to the exhibits which contains all the public testimony, public opposition testimony, applicants testimony, all of the all of that testimony addresses the standards. So even the incorporation statement says well it's clear because we're you just have to look to where they're addressing the standards. Well that's the whole thing what we're doing here in land use is addressing the standards. All the testimony address those standards and all that testimony is part of the exhibits. So it's it it it's this very difficult situation someone finds themselves in and the cure is so easy just accurately uh concisely identify what is in the findings. If it's ambiguous, it becomes a puzzle. It becomes a game. And that really frustrates uh our obligations uh to, you know, try and challenge this decision. And beyond that, it frustrates our ability to even comply with the procedural rules of LUBA to, for example, attach the decision uh to the uh to to the petition for review. And when the potential decision is 530 pages uh or or some or excuse me 400 and some pages excuse 364 pages sorry uh out of a 513 page record it becomes unwieldy. It becomes almost impossible. Um but obviously I'm running out of time. Jump to the third assignment of error. Uh housing's not allowed. That seems very straightforward. Housing was included in this. Doesn't matter if it's existing. doesn't matter if it's proposed. Um there's there's dwellings on the property that are part of the golf course. Uh so that that seems to be a very clear violation. Uh the second sub assignment of air and the third assignment of error is is one that I I I find to be very compelling. Um the rule obviously we're we're dealing with a rule that's sort of a generality. 120 to 150 acres is what your golf course can be. The Oregon Coast Alliance v Curt County case established that that's not a strict rule and I I I understand that. I concede that in that case 198 acre golf course was allowed to go through uh based on sort of like the Scottish style lengths um type of golf course. But here we're dealing with something much more significant. We're we're dealing with something almost twice that size at about 3 42 acres. Uh so the concern here is that we are dealing with something that you know a generalized rule which has to have some upper limitation. It's not it's not that it's not that that rule has no effect or no teeth. It has to it should have something despite this being a sort of generality. But um when we uh more than double the size of that general rule, are we are we stretching this rule so far that we're breaking the rule? Uh that's the concern here. And then obviously with the background we always have when we're dealing with uh cases on a land agricultural land uh that there's an agricultural land use policy set by the legislature to preserve this stuff and um if we are just sort of willy-nilly with these rules and expanding these um these uh the acreage beyond significantly beyond what the rule says, then I I think we're we're getting into the territory where we're actually violating ating that rule. Um I see my clock says 12. I'm not really sure there if if we started at at 10 and a half right now. Okay, thank you. That makes sense. Um okay, address those two pretty quickly. Uh so we can go back to the sort of second assignment of error. The notion that these structures as location is unknown is another difficulty for someone trying to uh pin down impacts to adjacent farm uses under the farm impacts test. uh the findings can see that the geohhazards can't be known because the structures locations are not known but somehow we can know the impacts to farm uses even though the location of the structures is not known obviously that's contradictory and the farm impacts test should be deferred uh when the loc once the locations are actually known so what is an opponent to do when the locations of the buildings are not known we cannot define the baseline for form impacts test uh if the locations are not known we have a lack of specificity in favor of generalizations. There's allegations that the argument is not sufficiently developed, which obviously I find ironic because the locations aren't even known. Um and and we've identified these various impacts. You know, what what are your number of visitors? We don't know. Amount of garbage coming off of these these uh the clubouses, that's unknown. How much traffic? Uh potential for trespass, attraction of corridors and crows, which come along with human activity. Um and then we have uh the findings and the response alleged that these are all things that typically occur in proximity to a farming operation. You're welcome to continue on into your rebuttal or you can reserve your time. I just finished this thought. Uh you know along with a golf course comes comes a lot of things but uh for example crows birds are preying on a lot of the grubs and so forth. We presented that information in the record. So, so these these aren't aren't just something normal in in proximity to any sort of commercial operation. Uh, and I'll turn it over to Mr. Close. Thank you. Two and a half minutes for your rebuttal and we'll turn to the intervenor for your argument. Thank you, Bill Close on behalf of the intervenor. Um, uh, it's been a long time since I've been at I um I think I'll I'll start with the first assignment of error and the question of the findings. I I think uh referee Wilson put his finger on the the soft point here. I mean our our brief explains why we think what constitutes the findings are clear and I I won't hash through that again but I I think the critical question is um in order to make this an independent um assignment of error I think Orca needs to be able to point to a different assignment of error and explain why resolving that assignment of error depends on resolving some genuine ambiguity about what constitutes the findings and and we really don't have that here. Um there's really nothing else in this uh petition that requires resolving some real or even imagined ambiguity about what constitutes findings. Um and so I think that's all I need to say about that. So the cases that petitioner relies on stand for the proposition that uh failure to clearly incorporate ambiguous incorporation or over incorporation by reference of material in the record is findings as part of the decision is some sort of a per se procedural error that prejudices the petitioner's um right to a hearing at Luba. Is there anything in those two cases that support that? I I I don't I disagree with that, of course. But if you um where is the prejudice that it's fully within Mr. Malone's capabilities to identify some substantive issue and then explain why a perceived ambiguity in what constitutes the findings whether those findings are small, medium or large um and explain why that ambiguity is relevant to the merits of the assignment of error. And we just don't have that here. um that was present in the two cases here and I know Gonzalez is one of them and the other one um central land watch your position is that those cases have those characteristics and this case does not. That's right. That's right. Oh, sorry. I'm done. Sorry. Um is there any place in the second or third assignment of air where you're relying on anything in the staff reports to uh Um, I I can't answer that question off the top of my head. I'll assure you that we're not relying on exhibits that were attached to the staff reports. Um our position is the county uh board's finding is that they're relying on this on the staff reports uh that address um the standards and exhibits attached behind that is not analysis of it's not findings. Um it's really evidence you know ex generically the exhibits tend to be evidence. They're not findings. But again, I think you put your finger on the critical question. Is there a sub a substantive assignment of error here that hinges on the um uh an alleged ambiguity and what constitutes the findings? And the answer here is no. Um jumping to the third assignment of error on the question of uh trespassing housing and uh golf course size. uh the the house issue is is very interesting to me. I think that the simplest response to that I mean it's a pre-existing house. We're stuck with it until it gets scraped. Um I I think the simplest answer to this is that the definition of accessory use and I'm kind of cribbing here. All these words are in the definition but I'm kind of shortening it. Assessor use is one that is incidental to the operation or is necessary to the operation or maintenance or provides goods and services. I've left some words out there, but those are the operative phrases in the definition of an accessory use. And there is nothing about the house that meets the definition of accessory use. It's just there. It's pre-existing. Um it doesn't relate to the operation. it's not necessary for the operation. It doesn't service the golf course population and so it's just not in the category of accessory use. I think that's the main point we we're trying to make. Um then the question of size and golf courses I we're we're smaller than the golf course size for the nap ranch. I think that um the important issue here is that there the size the size of the golf course in the state law is is a generalized statement. There just is no bright line about this. And um my hope would be that Luba doesn't um um draw a bright line uh to resolve an allegation about um a use that comes with just the most general um parameters statute that I don't that's just not called for in the language of the the rule itself. And um uh it's true that this golf course is on a larger tract of land. Uh you you you know you you you put your golf course on the um on the tract of land that you have, not the tract of land that you wish you had. And this tract of land is 342 acres give or take. Uh and um what's not in the 175 acre golf course which is mapped. It's got clear clear lines around it uh is you know leftover stuff. I mean it's flood hazard zone. It's wetlands. It's uh sand dunes. It's scrub. We we we I mean we I can't imagine a situation where we I don't know how we get rid of that. you know, if if the board were to say all of that constitutes a golf course and so you you you can't have more than 100 whatever 150 acres and so you're you you can't have a golf course on something that an attractive land that's bigger than 150 acres. I think the the reasonable approach to this is to look at what is mapped as a golf course, what is approved as a golf course, and uh ignore what's what's beyond that. And we're at 175 acres, and that's in the ballpark of the general parameters of the of the of the rule. That's really all I have to say about um uh in defense. I've got a question. Yeah, I do too. You go ahead. I wanted to jump back to the second assignment on air for a minute. Could you just walk me through your I don't know if it's a waiver or a miles or exhaustion like how I think you're saying we don't even have to get to like the substantial evidence because they didn't challenge the findings that they didn't develop their argument well enough before. Yeah, that's right. I I think this comes back this comes back to the peculiarities of the requirements in the code for u stating an issue on appeal to the county board. This code unlike a lot of codes requires specificity in your um in your statement of your appeal issue. So maybe that requires a little more work than is required in other counties. You know, so be it. Um and with respect to this issue, um the uh petitioner made a very generalized argument in their uh letter of appeal and um and the county board responded to that with, you know, five or six pages of findings and pretty confident set of findings. And now the petitioner is coming back here and really challenging those findings. They're making the they're they're they're making an argument that in at a level of detail that they really had an obligation under the code to make in the context of the appeal that they filed. That that's really it. So I think we use the phrase um in our partic in our response um you know uh undeveloped argument. Well that's really um an argu that's really making the point that this code requires an unusual level of specificity in making your um raising your issue to the board. and they missed that mark and coming to Luba is not the place to to be as specific as the code requires making the appeals issue in the first instance. So your argument is also that because petitioner doesn't challenge the county's finding that that the issues that are raised in the second assignment vera were undeveloped during local appeal. those issues are also not before us for review. Is that right? That's right. That's right. Okay. Putting that aside for a second, if those issues are before us for review, I'd like a little to understand a little bit more the burden of proof for the for the applicant on the farm impacts. Under the rule, the applicant needs to establish no no significant farm impacts. Correct. That's right. And what does the applicant what did the applicant do here? Did they identify impacts? identified the applicant had expert witnesses who presented a factual case as to why there would be no significant impacts to farm uses. And that the crankshaft of that argument was based on the topography and the distance of the farming uses from the golf course. So the activities that will be undertaken on the golf course that could potentially have some farm impact uh will not because of their distance from farming activity in the surrounding properties. That that that's right really world and and the findings are very detailed about this. The uh findings take take the uh the southeast, east, and north perimeter of the uh property, golf course site, and they document the footprint of each farming operation. And they describe the distance in terms of thousands of feet that that farming operation is from the golf course. And then they describe the topographical buffer which is really a a large berm sand probably ancient sand dune or something. The the the um height of that topographic barrier uh in that intervening distance with respect to each farm and it changes a little bit by 10 15 feet or so. And and the basic conclusion is based on the thousands and thousands of feet distance between the golf course and each farm and that topographic barrier uh the find the impacts are not going to be significant. Okay. And then there was it sounds like there was some dispute over what the impacts would be. It doesn't sound like the applicant identified traffic garbage and corvids as potential impacts. Is that accurate? I forget whether there's a mention of those pesky crows anywhere, but the second question I have about that is there seems to be a dispute here about okay, the applicant presented their case on this petitioner arguing that's insufficient because there's no experts in farming activities. They're experts in golf courses but not farming activities. I understand that part of the argument, but the kind of internal waiver argument. Um the issue of where the the buildings will be located, petitioner is arguing, uh they can't know what the farm impacts are. The county can't know what farm impacts are because we don't know where the buildings are located. I think the county reasoned well the petitioner didn't actually say what other impacts there would be that would be affected by the location and so we're concluding that the generalized location is sufficient for us to determine that given the distance from the farming activities there will be no significant impacts. My question is what is then the burden of proof or persuasion once the applicant has made its initial showing on farm impacts for a petitioner to allege additional impacts or present evidence that controverts the applicant's evidence on impacts? What is your view of what the petitioner needed to do in order to raise that issue sufficiently? Well, initially and most importantly, it's our position and the county's position that attorney speculation is not enough to get you into the door for um uh factual allegations. Um attorneys have some fine qualities, but they are they are not fact witnesses. Um uh and is there evidence? Is there any farmer evidence or other expert evidence on these additional impacts that petitioner is arguing there? No farmer uh showed up and said an alleged impacts to a farming operation as far as I know. Uh there's also a a distinction to be drawn between um the um uh generalized location of the buildings uh and um the um you the record shows that the um exact footprint of the buildings is not known. The main buildings are within about a 10 acre cir circumference 10acre circle. Um with respect to geotechnical impacts and geotechnical suitability, um that generalized location means that the geotechnical issue needs to be um resolved in the future, you know, with opportunity for appeal and hearing because when you're looking at geotechnical issues, you need to know the exact footprint. I mean the question could be simply put when you finally settle on a footprint for the club clubhouse are you are you putting it on quicksand you know so you got to know the exact location we run out of time so if you could uh with respect to farm impacts you don't need to know the exact in uh location of the buildings because you're talking about thousands of feet distance and um and intervening intervening topographic barrier. So it's the exact location is relevant for geotechnical and this could be a future hearing on that but it's not relevant for drawing confident conclusions about farm impacts. And I do want to pin you down on an answer before we end your argument on what did the petitioner need to present in order to overcome what the applicant already presented. They needed to have some counterveailing non-ater attorney opinion about the impacts. Is that where your position is? some some evidence, factual evidence from a non- attorney that relates to this proposal on this site, you know, um general, I think generalized textbook information about how life goes on in our world is not adequate when you have on the other side of the balance um the applicants, expert witnesses or if you don't want to consider them experts, the the applicants witnesses providing factual evidence about how this golf course is going to operate um based on their area of expertise or based on their personal experience with how a different golf course operates in the same county. Thank you. There any further questions? Okay. Uh thank you for your argument. appreciate your answers to the questions and we will return to uh petitioner. We went over there on answers for interveners. So, we'll add another minute. You'll have two and a half minutes for your rebuttal. Thank you. Uh I have the Jefferson C the Central Oregon Land Watch B. Jefferson County case in front of me here. I'm just quoting from page nine, slip opinion, starting at line six says, "The board of commissioners decision approving exceptions to goals three and 14 includes some findings of fact and conclusions of law explaining why it concludes that the applicable exception criteria are met. Uh the decision adopts by reference multiple documents containing various findings of fact in staff reports and and intervenor submitt." So there were, you know, some legit actual findings of fact in that case just like there are here. But then there were also all these incorporations. So I don't see that case as something that says there were no sort of explicit findings of fact and the only findings were all these confused incorporations. So I think uh Central Oregon Land Watch is on point there. Uh another point just to get it home is that is there some finding I'm supposed to challenge? And I'm not really going to know that until I get a response brief that that seizes upon these ambiguities and says, uh, you didn't challenge this because we actually did incorporate the exhibits because that's what I meant by saying the staff report. So, it's it's a game that is played and uh I think that it is not difficult to clearly identify what the decision is and that shouldn't be, you know, a whole new game. Um, so if we agreed with you that there's some kind of per se procedural error here, um, would we just remand on the first assignment of error for clear incorporation and not reach the second and third assignments? Well, that's something I thought about obviously and you know my initial reaction is yes so I can identify the actual decision that would make it very that that would be clear. Um, obviously I don't want to sacrifice all my other assignments of air because I think they're pretty good, but um, you know, in the Jefferson County case, obviously the Luba went on to address other assignments of error. Um, I think it most it makes the most sense to if if you agree to remand on that first assignment of error uh, in order to, you know, on remand they could address these other assignments of air in a in a better way or something like that. But, uh, I think that makes the most sense. Uh it's it's the most efficient way to deal with this case. Although I do like my other substance of air. Um we all tend to like the things that we write. Okay. Uh well, we've reached the end of time. Um thank you both for your argument today. That will conclude oral argument. Um the statuto due date for our decision in this appeal is June 13th. We'll let you know that we intend to issue that

Summary: So either we're having more technical difficulties on our end or I was unmuted. There you are. Okay. Would you like to reserve any time for rebuttal? You may reserve to five minutes. Uh three minutes, please. Okay. I will keep track of time on my end, but ask that you also keep track on your own end. And without further delay, please say your name for the record and begin. Good afternoon to the board and Mr. Clouse. Uh Sean Malone on behalf of petitioner O…


Oral Argument 2025-034 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=lkGiS6t0Ods). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for oral art in central Oregon land watch versus shoots county luba number 2025-034. I'm board chairs moodio. Board members Wilson and Basham are also present. Please mute mute your audio when you're not speaking which will uh limit background noise for us and uh we do not see intervenor on video. So if you're intending to join us video wonderful we can see you now. I'm not aware of any pending motions. Is there anything the parties need to bring to our attention? Nope. Nothing from either party. Okay. Petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Yes, I'd like to reserve those those minutes for rebuttal. Thank you. >> Five minutes. >> Yes. Uhhuh. >> Okay, great. Uh I'll watch the clock here, but ask that you keep track of your own time. And the clock on the screen is just for general purposes is not keeping track of uh your time specifically. So with that, uh please state your name for the record and begin. Petitioner. >> My name is Carol McBth and I'm a staff attorney for petitioner Central Oregon Lamb Watch. I'd like to begin by reiterating our uh denial of allegations of waiver and then move on to two further points from our petition for review. We deny the allegations of waiver presented. We believe that we gave fair notice as required by bolt for for the the lack of compliance with goal three and goal five and goal 14 beginning in April of 2023. Bolt requires no more than fair notice to the developer or the respondent and we provided that to them. Bolt also provides that we need not have made the exact same arguments below that we present here. And following up on Bolt, this board said in Tieleook Public Utility Commission that we need not have named the same exact regulation below that we're arguing here as long as we have the material substance of what we're arguing is clear uh about what regulation we're referring to. So we we did preserve all of our arguments under Bolt, which is the interpretation of OS197.7971, the the preservation standard here. We'd also point out that while we were consistently making our arguments that there's no no goal three, no goal five, and no goal 14 compliance here, developer's position was a moving target beginning in April of 2023 when developer advanced a theory that goal 5 did not have anything to do with this case and Lwatch responded to that. In July of 2024, there was another theory from developer about goal 5 and LWatch responded to that. In August of 2024, there was another theory of Gulf 5 compliance from the developer and for a third time language responded to that and then the county has now advanced in its decision and its cursory goal five findings is advanced yet another theory and we have responded to that. So we've tried to keep up with what developers latest theory about go five was in doing so we have preserved and certainly given fair notice on all three of the goals and we deny all allegations of waiver. My first point is about the adequacy of the county's findings for goal 14. This is another goal in which they only devoted a half a page or so to their findings. In order to be adequate, as you know, they needed to have factual references to the record and they needed to have the legal reasoning that they applied to those facts to come to their conclusion. but they don't mention facts and they don't mention their legal reasoning which leaves this board with no option but to either reverse or a remand because there's nothing there that's adequate for review under RS197.835 835. If there were such facts or reasoning in the record, then that might be relied upon. But the record also lacks that information. So there isn't any other option. And pursuant to West Coast Media, when the court of appeals reiterated this board's own determination about its authority for review, West Coast Media holds that this board has to review the decision that is presented to it, not one that could have or should have been presented to it. In that case, uh, the appellant was asking this board to rewrite a decision below and review that instead of the decision that was presented. And you said that your review authority did not permit you to do that. And the court of appeals upheld your your reasoning, saying that's true, that your your uh review authority will not allow you to make up findings that the county didn't have. The counties seems to be relying on a law of the case theory. But the law of the case doctrine transcends Oregon's boundaries and not in Oregon or any other common law country. The law of the case doctrine does not extend to cases outside this case. This case is on its original decision. There is no law of the case. So if that's what the county was trying to do when they referred to some other case, presumably that other case did have facts, did have legal reasoning and this board might have affirmed that. But in the absence of facts, in the absence of legal reasoning, as we have here, pursuing to West Coast Media, there isn't anything for this board to review, can only reverse or remand or it will be forced to make up findings that the county could have or should have made but did not. And I will move on now to our final point, which is we specifically request, as we did in our petition for review, that this board apply the Court of Appeals decision in Noral. In in Noral, the court of appeals explained that we as as appearing in the local proceeding, we had the right to a full and fair process and the right to prevail below. And we had the right to have arguments that we raised in detail be fully addressed by the decision maker below. But we did raise the argument that goal 14 compliance must be shown in the present. And we explained the 40-year-old presidents from Lewick and from Jackson County. And we asked the county to take those and see those as binding presidents and find that or 197.1752A requires the county to show compliance with the goals in the present every time it amends its plan. Every time a city or county amends or adopts a plan, they have to show compliance not referring to some other event. And the court of appeals made that very clear in Lewig, Jackson County, and now in DLCD versus Clackmus County last year. But when we raised that to the county, they just didn't look at it at all. Pursuant to Norll, that was unfair to us. It makes us come here. We're spending our donors money to come before you. The taxpayers are spending their money making you make a decision that the county should have made. If the county had taken the time to address this issue, we believe we would have prevailed before because there isn't any way for the county or the developer to show compliance with goal 14 in the present. it it won't be able to meet the Schaefer factors. There won't be a possibility of showing an exception to goal 14. That's our belief. But we were denied that opportunity because once Lewig in Jackson County are applied, they have to show compliance now by applying the Schaefer factors that Schaefer and its progyny have said are required every time that an industrial use is proposed outside of a UGB. That has been your consistent position, but they didn't do it here. again appearing to rely on some law of the case that wouldn't apply because this is the original decision and from there I'll reserve my um my time for rebuttal. I'd be happy to of course answer any questions that you all may have. >> I did have a question about the goal five first assignment of error. Did this county adopt the easy analysis that the innovator submitted as >> I don't think they didn't say that they adopted it. They they referred to it but they didn't incorporate it as part of their decision. They said we agree with what they said and they might have adopted it into the decision but they didn't. They it's in the record but it's not part of their decision itself if that's what you mean sir. Um on the the Gulf 14 issue, uh Intervenor cites the the Asetti cases and say that those are pretty much on point saying that don't have to to get into those issues. Um and didn't have to do the Schaffefer factors. Um why is that wrong? >> Um thank you for that question. Yeah, I was there in the Asetti cases and the Asetti cases um they they were required to show the Schaefer factors but they weren't able to and that that issue was pushed to the side when instead there was reliance on a past amendment and we're saying that uh unfortunately we didn't know that that argument was coming. We didn't know that that would be predominant and we didn't cite either Lwig or Jackson County to lube at that time and we've never seen a a decision maker reconcile Lewig, Jackson County and DLCD versus Clakamus County with the decision in a SETI. We don't think that those things can be reconciled um and they certainly they didn't even address it here but um because because it's required to be shown in the present and a SETI requires going back into the past to a former acknowledgement and and a SETI is sort of this case is sort of a poster child for why we think that in general a county should not rely on the a zone being in compliance with the goal in order to say that this plan amendment is in compliance with the goal Because beginning when when the very first when the the RA zone was invented, it was invented because there were grandfathered areas of industrial use and in order to do something with them, they invented the RAR zone. But the RAI zone was limited by the plan to just those four places. So the the RARI zone and the RARI plan were all were both in com they're in said the same thing. They all complied to those four areas. So, just like the EFU zone, when a county talks about the EFU zone, they can either be talking about the zoned lands or the zone itself because they're co-terminates. And that's how it used to be with the rural industrial zone. It used to mean rural industrial rural industrial zoned lands because the only lands were those four industrialized areas. And that was the same as where that zone applied. But then several years ago, the amendment moved forward to the plan moved forward and now instead of 0.00 01% of the county being regulated by the RAR zone. 100% of the county, all 2 million acres are available. So, the plan has moved forward in what it allows, but the rural industrial zone has stay stayed back here. Its goal 14 compliance hasn't occurred since there was only four areas that it applied to. So, by by saying, oh, well, the goal 14 the zone complies with goal 14 that it's not they're not in the same place. It's not as though these were co-terminus. that the compliance with goal 14 shown for the zone is out of step with what is required here because these lands, this type of land was never shown to be in compliance for the zone. That wasn't contemplated at the time because again the zone was created only for four industrialized areas. Nothing prevented the county from expanding it. But when >> you're entering into your rebuttal time, you're welcome to continue. >> They were just saying they left the RAR zone and the plan out of sync. So that not only this is the poster child for it and we think that intervenor is is advancing a similar theory here that goal five that that the landscape management zones compliance with goal five somehow means that this plan amendment complies with goal five but resorting to what a zone does is is not acceptable because the zone may have been found to be in compliance for completely different reasons than are needed to show plan amendment compliance if that makes sense. And I'd be happy to answer any follow-up questions on that. >> Okay. No, thank you for answering that. appreciate that. >> Okay. And you'll just have a little over four minutes for your rebuttal. No further questions from the board. >> We will return or we will turn to intervenor for their argument. Uh please state your name for the record. >> Good morning chairs and board members. My name is Carrie Richter. I'm a lawyer at the firm Baitman Sidell and I represent intervenor respondent and the applicant below last ranch LLC regarding the first assignment of air and preservation and just preservation generally. Um the petitioner talked a lot about bold. Um, I think that misrepresents the petitioner's obligation when it comes to to making a presentation at Luba in Rosewood Neighborhood Association and more recently in the Central Oregon Land Watch case known as Markin. Luba reaffirmed that a petitioner has an affirmative obligation to establish a preservation of error in the petition for review. Waiting until filing a reply brief or saying that all the issues were raised in bolded oral argument is prejuditial to the parties. The pages referenced in the preservation portion of the first assignment of error are directed to the EC analysis. Um petitioner does not challenge the EC analysis in this appeal. In addition, the pages referenced in the reply brief do not establish the issues that are now of concern. Um, there is no discussion of excessive interference being an independent standard. There's no discussion of uh comprehensive plan policies that talk about public need. Um, petitioner claims ignorance of the interpretation that the county would adopt. talking today about how the county change or the applicant changed its position along the way. Um the approach to goal 5 that the county ultimately adopted was outlined in detail by me in a letter dated August 18th in the record at page 326 as well as in a lengthy submittal by Adam Smith starting at page 380. That was part of the initial open record period after the public hearing. Petitioner submitted a written rebuttal on September 4th. So two weeks after that, 3 weeks after that, petitioner submitted a written rebuttal at record 26 or 260, excuse me. And um and nowhere in that rebuttal do they challenge the new uses approach that the county ultimately adopted. Um, as for the merits of petitioner's first assignment of error, petitioner didn't raise that today, but I'd like to point out something that I think is really important. Um, Luba's decision in Landwatch versus Dish County LBNW LLC, which is where this goal five issue came up before in 2023. Luba rejected the goal five analysis uh because the propo the because there was nothing in the record to indicate that the previous EC analysis considered the use that was proposed and that was from root versus clackamus or clamoth county. So um that in other words in 1992 when the landscape management overlay was proposed there was nothing to show that rural industrial uses were considered. What the county did in this case was they produced the information in the record to show that there were RI zoned areas in 1992 when the LM zone was created. So there was no new there is no new use introduced at this time. What is also important about the 1992 materials is that there is um that the focus is not on use. It's not about whether it's a rubber factory or a plastics plant. It's not about that. It's about sighting and design. And what the >> a couple of questions about what the decision says about the Gulf 5 issue. Did the county adopt the intervener's EC analysis into its findings? >> They say they agree with it. >> They agree with it, but they don't adopt it as its own. Did they find that they needed to do an EC analysis or did they find they didn't need to do anything? >> They found they did not they found they did not need to do an EC analysis because there were no new uses introduced because the new uses were considered in 1992. And so does the decision rely on the LM overlay as resolving the goal five issue? >> They do. >> What where's the record citation for that? >> Uh 57. >> Thank you. >> Oh, I have a quick question about the EC analysis. Also, um like the decision the findings to say the board further finds that because the proposal would not introduce new conflicting uses, a sightspecific EC analysis is not required. But under like the uh the actual ordinance it says uh the board also incorporates in its findings in support of this decision among other things the sight specific EC analysis attached as exhibit H. So is how do how do how do we reconcile that if if it comes down to whether or not that the board adopt is relying on the EC analysis. What's the answer to that? >> I think that the fact that the board uh acknowledged and agreed with the EC suggests that it adopted the EC in the alternative. So where do where I know it says the board agrees with the applicant that they will not introduce new uses that would conflict. Is that the same thing as agreeing with the EC analysis >> in the alternative? I'm reading at the bottom of page 57. The applicant submitted an easy analysis to anal to analysis to evaluate which uses in the proposed RAIU should be allowed, which uses should be allowed with restrictions and which uses should not be allowed. The board agrees that the applicant that the RA zone will not introduce new uses that would conflict. Consequently, the board finds the comprehensive plan amendment complies with goal 5. I mean, I think it I mean they t make findings about the acknowledgement of the EC. I believe that that establishes that the EC was adopted by reference. >> Okay. Thank you. >> Um I want to quickly point in in my remaining couple minutes, I want to point to um one of the things petitioner says is that the design standards don't apply to RARI zones. That is patently untrue. Uh the shoots county code 18.84.080 080 talks about preserving ex existing tree and shrub cover and that applies to all uses in all uses within the landscape management overlay. All structures have to be finished muted have to be finished with muted earth tones. Um and the planning director hearing body may require screening uh to assure a and a substantial exterior alteration to assure compatibility. This suggests that even the rubber plant will be compatible with the scenic values of the LM overlay. Um, in my remaining time, I'd like to talk a little bit about goal 14 since that's where petitioners spent most of their time. Um, in Lewig versus Jackson County, the court said that goal compliance cannot be achieved by measuring a plan amendment against the acknowledged plan. here. There is no evaluation of whether the proposed rural industrial zone complies with the plan. We're ne we didn't the county didn't measure it up against the plan. Rather, the county applied the zone that everyone has determined on multiple occasions by Luba and the court of appeals complies with goal 14. There was no need for more ink to be spilled about this. I mean, I don't have to tell you, Chair Zamoodio, that you've talked about this. The Lwig and Jackson counties decisions talk about inconsistencies created by only applying the plan, but there is no inconsistency created in this case because the RI zone authorized uses will not be urban. They are limited by size. 7500 square ft on-site well and um well on-site septic and wellwater connections. These are all determinations that Luba made in the Aseti 5 case. Uh the court of appeals affirmed Luba did it again in LBNW. There is no reason for the county to make additional findings. And if there's dispute about that, more recently in the uh central Oregon Land Watch Destiny court case, um Louva talked about the relationship between Lewig and Jackson County, pointing out there may be situations where conducting the Curry County Schaffefer obligations would be entirely redundant. So if the county had done had done Curry County Schaefer, the the the findings would have been yes, we're limiting the footprint to 7500 square feet um to achieve rural proportions. There are no urban extensions of facilities. It would make no sense to demand ex expansive findings on this question when this has been determined multiple times. There's no reason to revisit it. The petitioner is is just I mean it's denial is the best I can I can I can figure. So um goal 14 is satisfied uh not because of the acknowledgment but because this analysis has been done and the courts have Uh in my remaining time I'll talk quickly about the third and fourth assignments of air. Um, I want to point out that all of the facts that petitioner relies on about past farming use, none of the past evidence of past farming use indicates that it was done for profit. And in Markin, Louva held that photographs showing grass growing on property is not conclusive evidence that the property is suitable for farm use. Given that the definition of farm use includes farm activities undertaken for the purpose of obtaining a profit, there's no evidence in anything the petitioner relies on that suggests anybody was it was in an effort of making a profit. And all of the evidence from farmers and neighbors today was that they could not farm it for profit. The evidence is also that the poor soil conditions, the shallow soil depth on rocky on on volcanic rocks makes the land unsuitable for farming even if it was irrigated. This was determined by a soils expert, the only party who conducted on-site bore testing of the conditions. The property is completely cut off from neighboring farms uh with Highway 97 to the west and south and double railroad tracks to the east. This is all evidence that a reasonable person could rely on in supporting a finding that this property is unsuitable. Uh in conclusion, the petitioner has not established any heir and the county's decision should be affirmed. I'm happy No further questions from the board. Thank you for your argument. We will return to petitioner for rebuttal. You will have four minutes for rebuttal. Petitioner. >> Thank you. I'd like to begin by saying that um in the decision from the county, they said that an EC analysis is not required. They also said that if there was any contradiction between the um the decision of the hearings officer or the board that the board would control. And so we were under the they didn't adopt the EC analysis and they said one is not required and we interpreted that to mean reasonably that there there is no EC analysis on the table here. So we didn't address it. Had we thought that it would be we would have addressed it. So if the county meant to include the EC analysis and they should have told us because we can't be expected to come before Luba when they specifically say it's not required then how would we be alerted that we needed to argue about that EC analysis to the board on on appeal. I would like to follow up on um what we believe is intervenor's mistaken interpretation of the EC analysis process. Intervenor and the county appear to be to the extent that they are addressing goal 5. They appear to be looking at this EC analysis as though we were talking about an ephemeral resource like an eagle's nest. As you know the goal five resources can vary significantly and eagle's nests move around. beaver dams move around and so an EC analysis has to be conducted on the spot. If there's a house that's going to be built or an airport in a recent case is going to be built near a new golden eagle's nest. Well, that's going to require sort of an easy analysis on the fly. That's not what's required here. Here, the goal five resource was identified in November of 1992. The conflicting uses were identified in 1992. There's an acknowledged program to achieve goal five for a fixed resource with a fixed program. And as we explained beginning on record of 1073 where we were trying for I believe it was the third theory but I'm not sure where we were trying to explain that the conflicting uses have already been identified and that there already is all you know ordinance 52 and ordinance 33 from the past 92.033 those already have happened and that this has to fit into that. It's not a case where you just start off and start doing an EC analysis is what they seem to be arguing now. Although again, there was no EC analysis in this case. The landscape management zone is much less protective than the plan requires. And if there's going to be a conflict between the plan and the zone, the plan requires vegetative cover. It requires scenic view from the road. The landscape management zone doesn't do that. that all of the the vegetation on the site could be raised and people could buy trees from Home Depot and put them up and that would still sub that would still satisfy the landscape management zone but not the plan requirements in at at policy 4 as we explained in our petition for review. It is not as protective and it isn't a substitute with respect to goal 14. Um again, the intervenor is going to the law of the case from other cases which presumably had facts and had legal reasoning in the county's decision that this board could affirm. Moreover, on although we said this in our petition for review, Intervenor apparently didn't follow what we said. The court of appeals has never accepted this reasoning. They have never shown reconciliation between Lwick and um DLCD versus Clakamus County or Jackson County and the Asetti line of decisions. No decision-making authority, woe is us, has ever done so. Luba hasn't done so and neither has the court of appeals. We would love to get just one, you know, forum, the county or Luba or the court of appeals to do so. the court of appeals, you know, against our strong that it it can't be reconciled with those. And um with that, I will um be happy to answer any remaining questions No further questions from the board. Thank you. That will conclude oral argument. The statutory due date for our decision in this appeal is September 12th. Uh we'll ask the parties agree to a 21-day extension so that we issue the opinion no later than October 3rd. >> Alex has no objection. >> Intervener.

Summary: Good morning. This is the time set for oral art in central Oregon land watch versus shoots county luba number 2025-034. I'm board chairs moodio. Board members Wilson and Basham are also present. Please mute mute your audio when you're not speaking which will uh limit background noise for us and uh we do not see intervenor on video. So if you're intending to join us video wonderful we can see you now. I'm not aware of any pending motions. Is there anything…