Oral Argument 2025-089 Campean v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=sCpV-Aq_l3s). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Mhm. >> Sorry for the delay. Uh, we were having some technical difficulties getting board member Basham um, online. Um, so I'll just be doing the the oral argument today. Um, so uh, good morning. This is the time set aside for oral argument in case number 2025-089. Um, uh, petitioner is I don't want to mispronounce your name. Is it Campion? Campion. Campion, okay, great. Thanks. So, it's Campion versus Clackamas County. Um, I'm board member Wilson. Um, board member Basham is not going to participate right now, but he will participate in the decision. He'll watch the oral argument. He's read the briefs. Uh, board chair Zamudio is not participating in this decision. Um, Mr. Campion, have you ever been to LUBA before? No, this is the first time. Okay, well, maybe I'll I'll give you a little brief overview of what happens at oral argument. Um, so this is an opportunity for parties to discuss what's in their briefs. Uh, it's not an opportunity to make new arguments or submit new evidence. Um, each side gets 15 minutes. Since you're the petitioner, you get to have the last word, so you have rebuttal after the county and intervener go. People generally reserve somewhere between 3 to 5 minutes for their rebuttal. And I'll ask you about that in a little bit. Um Uh and also when parties are talking, it's really just one side talking and the other side talking. It's not like Law & Order where people are jumping up and objecting or cross-examining or asking questions. Um So, with that, do you have any questions before we begin? Uh no. Okay. Great. Um and I'm not aware of any pending motions or matters that we need to take care of before we begin. Okay, great. Um so, uh if you're not talking, if everybody would just stay on mute when it's not your time to talk, that would be helpful. Um so, petitioner, you have 15 minutes. Would you like to reserve some of that Um so, can I actually start? Y- um yes, so, um you go ahead. That would be great. Just And if you'd state your name for the record so we have it, that would be helpful. Uh yeah, this is Daniel Campion. Good morning and member of the board. Uh can you state one more time your name, please? Okay, it's board member Wilson. And so, again, you have 15 minutes, so the clock up there isn't exactly right. So, you're starting somewhere around two to three minutes. And I I'm sorry, did you want to reserve any time for rebuttal? Uh I I I could eventually, but it's unnecessary. Okay. Well, I'll let you know when you're getting close to your 15 minutes and if you want to reserve any time. So, go ahead. Thank you. Uh This case presents a consistent failure of findings across all five assignments of error. In each instance, the county either failed to engage the actual record record or failed to explain why the evidence in the record does not satisfy the applicable legal standard. This case is not about the re-weighing evidence. It is about the final order's failure to include findings that connect the county's conclusions to the evidence in the record. Um The the the clearest example um it would be assignment of error number five. The county found that the majority of event related activities would occur with within a qualified structure, which is the barn, but did not explain why that satisfies or fails to satisfy the substantial sub- sub- substan- substantiality standard under the ORS 215 448 1C or how any incidental use of other farm related facilities defeats that standard. Uh we we see the same pattern across the other assignments of error. Um For for lighting um assignment one and two uh assignment of error number one and two, the county remained anchored to an earlier staff report snapshot and did not meaningfully addressed later submissions made in direct response to the staff report. So, basically I follow up the staff report with the staff report follow up and I answered the questions. It looks like those were omitted or overlooked or ignored. Or noise >> first time to hear about the lighting. Um the hearing's officer's decision um he says you didn't provide enough information uh so that he could really tell. And then when you're explaining what you did submit, there's there's a couple sentences about bollard lighting, the 12-ft mounting height, uh the stuff you talk about in your your brief. Is Is there more to it than that or is it just a few sentences you put in your brief? I'm wondering if there's any sort of um diagram or explanation or is it just those couple sentences? Uh no, actually that's that's the the key point. The uh hearing officer or the county omitted the detailed plan that I provided after the staff report. So, the county um basically got anchored on a staff report um and omitted my submission of evidence after that. So, and and uh my submission was the staff uh which was a staff report follow up. I provided a detailed uh plan and uh of the lighting and it looks like the respondent's post hoc reframing does not cure the effect. So, it looks like um the the respondent is is to bring that forward, but but does not clarify that the county basically addresses the initial uh submission, which I have in the narrative, which I only referred to the existing lights. So, after the staff report um uh did they findings uh they only referred to existing lights, but then I follow up after the staff report and I provided detail of the lighting, which includes existing lights and um proposed lights. So, that's what I uh provided, but looks like the the county uh overlooked that and went back, got anchored to an earlier um findings from the staff report. So, basically uh I provided uh more evidence to the uh record and those were uh omitted and not considered. So, Okay, thank you. Mhm. So, on a on a noise the county stated there was no evidence, but the record includes meter information with the noise study within the noise study. And actually I provided noise study noise study and then uh the officer asked me to provide supplement noise study and I did that as well. And there uh there's evidence of the meter. And the final order does not explain why the evidence fails to meet the applicable standard. Uh so, I have a question about the the standard. Um it talks about Mhm. how you it's got to be a type one or type two meter as specified in I don't know if it's ANSI or ANSI standard 1.4-1971. The sound level meter shall contain at least an A-weighted scale and both fast and slow meter response capability. And it looks like on your um your your noise study, you have all of those words except the ANSI standard. Um is is Was your type two meter Did it meet ANSI standards? I'm like I'm not familiar with what that exactly means. Yeah, so the the problem is uh the county said that there's no evidence uh even if there is a question about that um uh about the meter you know um it could have uh be addressed in the supplement or ask for additional question. They never raised that. So, why the meter issue was dispo dispos dispositive through though never specifically raised or why any remaining concern could not be addressed by condition. So, what I'm saying um the the county said that there's no evidence, but actually there is evidence in the uh in the noise report. So, did your Does the type two meter you used Does that meet ANSI standards or Are there type two meters that don't meet ANSI standards? The type Yeah, they the type two meets the ANSI standard. Okay. Mhm. Did they ever >> If there are any would have been any questions could have been raised uh uh before one after the hearing uh as the hearing officer doing that meeting asked supplemental information about the noise which I provided but the the uh there there no any questions in regards to the meter. Which >> I think your initial noise study submitted that's the one that had the language about it's a type two meter, fast slow all that stuff. Yeah. So when this issue came up did anyone ever from the county or the hearings officer say oh you need to have an ANSI type two meter or was the first time you ever heard about that? >> report there was not it brought up and actually they say it's it's all good. Uh and uh during the hearing it was never brought up it was not mentioned it was actually just uh asked me to provide additional information. There's a a balcony and there's basically like a barn deck. And say well can you do additional information for additional noise study about that and say no problem. So the meter was never uh raised up or it could have been can you provide a little more detail about that you know. So I did provide all that supplemental and then uh uh I uh I was surprised when I I saw this denied because the meter that there's no evidence but actually there is evidence in the noise study. And I think that could have been addressed with the condition or additional supplementary information. Okay, thank you. Yeah. So even assuming the applicant bears the initial burden without identifying any specific farm or forest practice. Any impact pathway or explaining why any impact would be significant. And I will say any very importantly is the of the final order does not address the evidence in the record that speaks directly to the principal offsite pathways which is basically comes to ambient noise before the property line or by the property line. Lighting controls which was provided and um specified control within the boundaries of the property and also Uh traffic, parking, it's all within the boundaries of the property. No, nor does it explain why the evidence was insufficient to satisfy the criteria. So, in the in the hearing officer's decision on this issue, he he said that uh that you didn't address this criterion beyond stating that event operations are limited, seasonal, and did not interfere with continuing agricultural or forestry activities. Can you point anything else in the record where you submitted stuff that would address you know, what the surrounding farm or forest uses are, what your impacts on them would be, why or why that is not significant? Can can you point to anything else? Uh I will say um is it's uh not about uh the conclusion weighing the the evidence. It is about um why uh the county didn't didn't take into consideration all the um evidence that was submitted to the record, and also why would uh the county not um I got We got a problem here. Um not explain the decision based on the record. So, when it comes to AOE 4 even if the burden was on on the petitioner initially uh the county would have to explain and bring up uh additional information and findings. By just saying that um uh it doesn't meet the criteria or uh there's no evidence that it is not right because I provided all this specific uh evidence, which include the noise studies, uh the lightings and uh the the traffic control and the parking uh and it seems like they were completely overlooked uh in the in the decision in the uh findings. All right, thank you. I just want to let you know you've you've got about two or three minutes left if you want to reserve that for rebuttal. You can keep going if you'd like, but you might want to reserve some of your time to respond to things that the county or intervener might say. Um I'll just say that uh because um uh all this um for the reasons stated in the amendment Lubar should sustain assignments of error one to five and the remainder of Okay. All right, great. Thank you. You have about two minutes left for your rebuttal. All right, now is opportunity for the the county and intervener. Have Have you all decided how you're going to allot Yes, we're going to let interveners take the first 10 minutes and we will back clean up. Okay, thank you. If you just state your name for the record and begin, please. Good morning, board members. John Butterfield for intervener respondents. I plan to briefly cover the farm impacts test before turning to the fifth assignment of error, which concerns the buildings used for the proposed events. So, farm impacts test Clackamas ZDO 406-05-A1 implements ORS 215-296 and county found that the petitioner had not addressed the impacts of farming and forestry. So, the farm impacts test had not been met. And And it sounds like petitioner doesn't dispute that the farm impact test applies and on reply and it sounds like here today petitioner proves to accept that as the applicant he had the burden to do the initial identification of the surrounding lands, the farms on those lands, the practices taking place on each farm, and the impacts of the proposed events on the farm practices. And And In response to board member Wilson's question, he only claims that he submitted some evidence to the record regarding some ways that the events may be less impactful and and attempts to claim that that shifts the burden to the county to identify a farm practice on a surrounding property and and find how an impact would affect that practice. And there's no support for that position in Lub case law. In fact, the the case law is exactly the opposite. Um directly on point is the Friends of Marion County v. Marion County case. We cited it in our brief. It's LUBA number 2021-088. We We short-cited it as Jones, after the intervener there. Uh, LUBA set out where the burden of proof lies, specifies the level of detail required for an adequate farm impacts test. Um, petitioner did not address the Jones case on reply or here today, and it controls. And the fourth assignment of error should be denied. Moving on to the fifth assignment of error, which concerns uh, which buildings may be used in petitioner's proposed home occupation. Operative language is ZDO 806.02 sub C, which implements ORS 215.448 sub 1C. And it requires that home occupations be operated substantially in the operator's dwelling or other buildings normally associated with uses permitted in the applicable zoning district. So, petitioner relies heavily both in his petition and again in the reply on the Green v. Douglas County case. And in our brief, we reviewed the facts of Green, discussed two related holdings in that case, and then the subsequent history of Green at the Court of Appeals. In Green, it was undisputed that the bulk of the proposed events were going to occur in pavilions or gazebos on the property. Basically, structures with a roof but no walls. And so, LUBA was focused on the question of whether a roof with no walls is a building. And the Court of Appeals focused on that question, too. LUBA had said, "No. If it doesn't have walls, it's not a building." And the Court of Appeals reversed, finding, "No. What determines whether something is a building or not is whether it is normally associated with other uses permitted in the zone." And I go through all that setup because the question here is different. The The soon-to-be decommissioned residence and the freestanding bathroom, they clearly have walls. But petitioner appears to argue that as long as the majority of the proposed events happen in the barn when which the county found was normally associated with timber use it doesn't matter whether the residence and the bathroom are qualifying buildings. Now on reply petitioner claims that we misstated his argument, but then he goes on to again say that because the barn is a qualifying building, it was somehow the county's burden to explain why his use of the other buildings defeats the approval criteria. We're putting aside the whole substantially part, why isn't if they decommission the existing house, why isn't that a building normally associated why isn't it doesn't it just become accessory structure? The The reason is because there's no evidence in the record about whether decommissioned residences are normally associated with uses in the county's timber zone. The only evidence in the record is what the petitioner says he's going to do with his decommissioned residence, but that doesn't make a building normally associated with other uses in the zone. There would need to be evidence about other decommissioned residences somewhere else in the zone and whether they are normally associated with uh resource use of property in the zone. Well, doesn't it just work you just need to show if you're going to do a home occupation you're going to be doing it in structures that you're allowed to have before you have a home occupation. Like did you did did he need to submit information showing that barns are used you know, normally associated with uses in the district, too? The county found that the barns were are normally associated with uses in the district. I think the the distinction is because this type of a building is there's a question about whether it's a building normally associated with a with a use in the zone because a second residence on a property is not something that you're otherwise allowed to have. And so >> it wouldn't be a residence anymore if it gets decommissioned. It would just be like any accessory structure, right? Well, if it's being used as an accessory to resource use, but if it's being used for a commercial purpose like an event, then no, it's not something that you would normally be permitted to have in the zone or normally associated with use in the zone. And so I think that's the the key distinction of that it's going to be transitioned into this commercial use and there there wasn't evidence that this that a decommissioned residence is a like a normal other accessory building in the in the EFU zone. Okay. Well, well, turning to the the restrooms, um I know in some of the other cases Luba and the court of appeals found that, you know, that's not buildings normally associated with the use. But in this case, the county didn't the county specifically approve it as a use normally associated in the zone? And isn't that different? It was retroactively approved after it had been built for farm and personal use specifically. And so I think the difference here is that the restroom is being converted to a commercial use. And so it's um it the question becomes is this use of the building the this this freestanding restroom a normally associated building in the zone? And I and I think the answer is no because as the case law points out, the this is we'd essentially be authorizing a building and a use of that building that isn't allowed in the zone and that expands beyond the typical home the the allowed home occupation by authorizing buildings that couldn't be constructed. A a commercial freestanding bathroom as Luba has held it in other cases. But isn't the barn being converted commercially used as two? Don't don't you look to see whether you're allowed to have these buildings to start with in this zone? If you are then you can use them for commercial uses if you're doing a home occupation, right? You don't have to get it approved as a commercial use first, do you? No, the right the the the question is whether the the building that is being used for the home occupation is a building that is normally associated with uses in the zone. So, if it's been permitted for some other reason like if it existed before land use zoning laws, so it's it's just there that doesn't mean that it necessarily is a use normally associated with permitted uses in the zone. So, the fact that the permit that the freestanding bathroom was previously permitted by the county for some other reason doesn't turn that freestanding restroom into a building normally associated with uses in the zone. Wasn't it permitted for for his for workers to use? Yes, I I understand it was it was permitted his statement of use was farm and personal use. And it's but there's there isn't evidence in the record that that's what it's actually being used for and there isn't evidence in the record that freestanding restrooms for farm use are a normally associated use in the zone. That would have to look at other freestanding restrooms, not the specific one that the petitioner has and and what he plans to do with it, what other resource operations in the zone use those buildings for. Okay. Thank you. Okay. I think that we we covered most of what I was going to talk about through our our questions. So, uh I'm happy to answer any other questions or otherwise I'll yield the remaining time to the county. I don't have any more. Okay. Thank you for answering all those. Um Mr. Hugel. Uh Caleb Yeah, Caleb Hugel appearing on behalf of respondent. I don't want to take much time at all. Um uh Mr. Butterfield covered assignments of error four and five. Our brief uh covers first through third. And our responses to those assignments of error pretty much the same as interveners response to the fourth assignment of error. Um we the petitioner is try to shift the burden to the county. Petitioner argues essentially that the hearings officer didn't identify any evidence that the lighting, fire safety, and noise criteria weren't met. The important thing is that it wasn't the hearings officer's job to show why the application doesn't comply with the criteria. It was the applicant's uh job to show why the application does comply with the criteria. And I want to go through each of the issues, lighting, noise, and fire safety very quickly. Um on the lighting issue, I think the hearings officer was aware of the additional uh material that was submitted post-staff report. Uh and the finding remained the same. The additional material wasn't specific enough. You know, reading the first few sentences, board member Wilson, you identified it about bollard lighting where necessary, string lighting. It's not clear to me whether those things where those things will be, how bright they'll be. I couldn't figure out whether those descriptions would be compatible or suitable with the event venue use. So, I think the hearing officer's conclusion uh was supported by substantial evidence and and the findings were adequate. On the noise issue, and and maybe maybe maybe you think well, Mr. Hugel, you are not reasonable. It was the applicant's job in this appeal to demonstrate that no reasonable decision maker could conclude as the hearing officer did, which is that the evidence provided was not specific enough. And I don't think petitioner met that burden. So, on the lighting issue, um the findings they sort of lump I mean, there's six subsections to 1005.04. It It seems to me the hearing officer was saying and the objective ones are met, but the subjective ones are not. I'm assuming the subjective ones are four, shall be suitable for the use, and five, shall be compatible. Is it Is it fair to say that that's the reason you denied it those two subsections? That's my understanding. I agree with your interpretation of the finding. Okay. And I I have a question and this actually goes to all three of the assignments of error. Um it's on page 18 of the decision. I It's probably I'm not sure exactly what it is in the record, 25 or 26 or something. But the hearing officer, when he's going through the conditional use approval criteria, 120303D, he specifically finds that um the hearing officer finds that it's feasible to comply with the noise limits in 80602. He finds The hearing officer finds that the events on the site will not substantially increase the risk of fire in the area. He finds it is feasible to design and install outdoor lighting on the site to comply with 1005.04A, the one we were just talking about. And then at the end of that's his findings there, he says 120303D can be met with conditions. So, if the evidence was enough to satisfy 120303D with conditions, and specifically says he met 100504 and 80602J, why is it not good enough later in the decision? I think I think the response is that the the finding specific to lighting that it is feasible to design and install outdoor lighting is not a conclusion that the application as proposed uh contains enough information to conclude that its proposed lighting would in fact satisfy that criterion. The fact that that it is feasible uh and could be met with conditions does not mean that that specific criterion is met uh as proposed with the information in front of the hearings officer. To the extent that the argument is that the findings are inconsistent, that the finding on right here in the on page 18 at the bottom with respect to lighting is different from the finding uh elsewhere in the record with respect to 806. Uh I can't remember the the the finding is at um record 24 to 25. That was not the uh assignment of error. The assignment of error was not that the findings are inadequate because they are inconsistent with one another. And I don't think it's I don't think it's the board's responsibility to sort of make the argument work. If that was the assignment of error, that should have been presented in the petition for review and we would have had had an opportunity to think about and respond to that in a meaningful way, which we don't right now. Okay. On on the noise issue, and I don't know if we're we're probably getting pretty close to the time here. Do you have a a Yeah, I have I have a quick question and I'm asking a lot of questions. I'll give you a little more time. How do you see exactly how that section works cuz there is the first section says you can you have to meet, you know, the 60 decibel level at certain times and it talks about what noise you count. And then there's a it doesn't say how how you have to do it. And then subsection two says a noise study may be required. And then then it comes in and says you have to have the type two one or two meter ANSI standards, weighted scale, fast and slow. Um, and because the hearing's officer's decision pretty clearly says, "If I could rely on this noise study, it's great. He He sails through." Um, and so it seems to me the only thing that trips him up is that that he didn't put in the ANSI standard language, those magic words. Um, my my first question is is how does subsection two work? A noise study may be required. When when does it determined when it must be required? I I It's my understanding that if if the noise was challenged, if if someone appeared in the in the proceedings and argued, "No, this use is going to be too loud." Then, uh, the hearing's officer might have discretion to require a noise study to to put that, uh, dispute to bed. Um, in this case, I don't think it matters because the argument from petitioner in this in assignment of error, uh, three isn't that the hearing's officer erred in requiring a noise study. That's not the That's not the assignment of error. The assignment of error is the hearing's officer erred in concluding the noise study didn't comply with ANSI standard 1.4-1971. Right, but he's I think petitioner's arguing that his noise study's good enough. And the only reason you could say it's not good enough is he doesn't have the ANSI standard language in there. >> Right, but Right? And you only get to needing the ANSI standard language if the noise study has been specifically required. Right? >> Our our Well, our response is that it's my understanding, like you, I'm not an expert on ANSI standards, but it it it tells you what what what is required for a sound level meter in order to be accurate, what components it has to have, but also in which context a type one is required versus a type two. It's my understanding that type one is supposed to be more precise, more reliable than a type two sound level meter, and one is required for certain circumstances, and the other is required for other circumstances, like field work, but maybe even field work where some of the sound is above a certain uh hertz, requires a type one. And and it was not the hearings officer's job to look at ANSI 1.4-1971 and decide whether the information provided met that standard. It was petitioner's obligation in the first instance to make that connection. Right. What I'm getting at is if he had just submitted his the one he the noise study he submitted and there was no official finding from the county that the noise study must be required, it would probably be fine. There there is a finding. I know. So what So where is that? Oh, I'm sorry. Yeah, yes, it's uh it's in our brief, record 41. A noise study is warranted in this case. >> Is that the hearings officer's decision? Yes. Record 41. >> he's I think Is that where he says it's warranted uh a noise study >> Warranted in this case. Yeah. Well, if that's the first time he's officially required to do one and it's in the final decision, isn't that a little late for him to meet all the standards? What I'm hearing from you, Board Member Wilson, is an argument that did not appear in the petition for review. Well, he's arguing his his noise study is good enough. But but he's not arguing that the hearings officer erred or he he would he should have been required to respond to the the the requirement for a noise study. That's a separate assignment of error. I should have I should have been I should have been allowed to explain why a noise study is not warranted. But he didn't argue that in the petition for review. Where I'm I'm hearing that argument for the first time now. Okay. All right. I've asked you a lot of questions and we've gone over, so uh if you have if you want to wrap up real quick, you can. No, no, I I think the fire safety issue is it should be the easiest for the board to rule on. Petitioner identifies the analysis that was required. The evidence in the record that he cites in the reply brief does not address that standard. And and and it it as this board knows, if it denies any assignment of error, the analysis stops there and the decision should be affirmed. Thank you. Okay, thank you. All right, petitioner uh it's your opportunity for rebuttal. I I asked them a lot of questions and they ran over, so you get a few extra minutes to for your rebuttal. Is it okay now? Yes. Can you hear me? So, what we heard uh today focus on lighting, noise, building, farming facts as if this case turns out on missing evidence, but my point is simpler. The county was required to engage the evidence that is in the record and explain why they does not satisfy the legal standards. It did not do that. For lighting at fire, lighting information was submitted, but the final order does not meaningfully address it. It actually doesn't at all. Uh it's post hoc thing they're trying to make it work, but it will not cure the the problem. For noise, the county points to the meter, but does not explain why it that uh defeats otherwise uncontradicted evidence of compliance. Uh for farmer forest impacts, the county does not identify the actual practices that uh that that actual impact pathways or explain why an impact would be significant and just trying to to make the the con- the gentleman is trying to make uh uh change the the argument that we demand that that the county uh has to do that and that's not the point. That we we didn't do that, but even if we didn't do uh provided evidence the county is still required to to provide which of our off pathways will increase or increase the cost or of of um operating a farm. So they they did not do that and not mention anything. And for the the buildings um the county found that the majority of activities are going occur in the barn but does not explain why that fails the substantiality. standard simply because of incidental use of other structure like the restrooms or the house. So this is not really about lack of evidence. It is about the county failing to connect its conclusions to the evidence in the record and to the standards it was required to apply. For that reason remand remand is required. Um Any questions or And I will I will just want to make sure want to go back to the building the gentleman was saying that that the barn the barn is an approved building related to the farm. Also the bathroom is uh uh incidental to the the the farm. It was approved by by uh by county through permits and stuff. The house as well as so as any one individual even the barn has to be approved by uh by permit and actually the hearing officer mentioned that that is that is the the step as industrial building and as all of them will be. So, I don't see that a point of denying. Okay, so again, we are asking to remand the case. Okay. Thank you, Mr. Campion. Thank you. Any other questions from the board? Okay. All right, with that, that concludes oral argument. Our statutory date for issuing the opinion is April 10th. We anticipate meeting that, but in case we don't, would the parties agree to an extension of 21 days for that, if necessary? Thank you. Thank you. All right, thank you everybody and

Summary: Mhm. >> Mhm. >> Sorry for the delay. Uh, we were having some technical difficulties getting board member Basham um, online. Um, so I'll just be doing the the oral argument today. Um, so uh, good morning. This is the time set aside for oral argument in case number 2025-089. Um, uh, petitioner is I don't want to mispronounce your name. Is it Campion? Campion. Campion, okay, great. Thanks. So, it's Campion versus Clackamas County. Um, I'm board member Wilson.…


Oral Argument 2026-015 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=JTk66Z8PaQ8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

you zoom out so we can get Todd. Good morning. This is the time set for oral argument in luba number 2026-015, Central Oregon Land Watch versus Dashuites County. I'm board chair Zamoodio. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with our recording. And I'm not aware of any pending matters um in this appeal. Are there anything? Is there anything the parties want to bring to our attention before we get into oral argument? >> Nothing from the interven. >> Uh nothing from landwatch. Thank you. >> Okay. Thank you. And petitioner, you have a total of 15 minutes. Oral arguments a total of 30 minutes. You have 15 minutes and you may reserve up to five minutes for rebuttal. Would you like to reserve any time? Uh >> yes, board chairs and media. I'd like to reserve 3 minutes. >> Okay. I will watch uh the clock on my end. And just so you're aware, the clock that's on the screen is not keeping exact time and ask that you also uh be aware of your own time as well. And then intervene respondent, you'll have a total of 15 minutes for your argument. So with that, petitioner, please state your name for the record and begin. >> Yeah. Good morning and may I please the board. My name is Robin Hayakawa. On behalf of the petitioner, Central Oregon Land Watch. Um, the case before you concerns a 240 acre EFU property approximately 1/4 mile from the Bend urban growth boundary. Um, the county proposes to reszone this property from EFU to multiple use agriculture and redesate the property from agriculture to rural residential exception area. Um, this appeal is about the burden carried by land use applicants when they seek to engage in the ad hoc and peacemeal reasoning of Dashes County agricultural land and specifically whether that burden has been satisfied in this instance. Um, in our petition, we asked the board to reverse or remand the land use decision for four principal reasons. Um, and I'll approach these issues in order the same uh as in the petition for review. So starting with my first assignment of error because we believe that that issue alone warrants reversal. Um the first assignment of error has to do with the conflict between in Dashuites County comprehensive plan provision 3.3.1 and the sub 10acre dimensional parcel sizes allowed within the MUA zone. Um at this point you've become familiar with this provision. I believe uh Dashes County um comp comp plan policy 3.3.1 prescribes a minimum parcel size of 10 acres for new rural residential parcels outside the westside transact zone. Policy 3.3 further explains that the purpose of 3.3.1 is to require quote a 10acre minimum lot size for new rural residential lots in order to protect the rural quality of life and its resources. Um, in contrast to these clear instructions from the comp plan, the county's decision approves a zone change that would allow a zone that does not impose a 10acre minimum parcel size for new rural residential parcels. Um, specifically, the UAA zone allows for variable densities within cluster developments and planned developments where, like here, the properties located less than one mile from an acknowledge UGB. Planned and clustered developments are allowed at a fiveacre minimum lot area or equivalent densities. Other provisions of DCC clarify that cluster developments can be granted with a minimum lot area of 2 acres and plan developments do not have a minimum lot area requirement at all. Um this is not a novel issue. Luba addressed a near identical issue during a 2025 appeal known as Destiny court. That's at luba number 2025015. Um in Destiny court, uh Luba remanded after determining that the county's decision did not address the conflict between the plan policies and the MUA 10 zoning. Um we have the same circumstances here. You uh you may hear from intervenor respondent that the land use decision does not request or specifically authorize sub 10acre development and therefore no conflict exists. Um this argument is incorrect. Just like in Destiny court, the decision uh before you does not limit future development of the subject property to parcels of at least 10 acres in size. And as explained before, it does quite the opposite. It allows an MUA zone which allows uh various sub 10acre densities. Um compliance with the comp plan and goal 14 needs to be shown uh during the quasi judicial papa process and cannot be deferred. Um, we think reversal is appropriate because the comp plan language is unequivocal. Uh, the county has had opportunities to uh reconcile the comp plan provisions and the allowances of the MUA zone and um hasn't done so. Turning now to the second assignment of error. Uh, the land use decision misconrs applicable law and lacks an adequate factual base uh to support the conclusion that the property is not agricultural land. Um it does this by failing to consider the suitability of the subject property for the specific farm uses identified by land watch during the local process. Um this assignment of air also really rests on the holding from destiny court. Uh in destiny court the board held that once a participant or opponent identifies specific farm uses common in the area and provides some evidence or argument that the property is suitable for those uses. Considering the listed factors, the applicant is then obliged to evaluate those uses and demonstrate that the property is not suitable. Um, in this case, uh, LandWatch believes we did what Destiny court requires. We identified numerous specific farm uses including um grazing in conjunction, a grazing operation using imported feed and seasonal stocking strategies, solar grazing or agriotics. Um and then raising various forms of livestock including pigs, donkeys, goats, sheep, uh goats for milk, ponies, llamas, and alpacas. And that's generally at record citation 683 and 684. Um in addition in further compliance with Destiny court we also supplied evidence or argument tied to the suitability factors under OR 66033 00201AB um including evidence and argument about the property size the presence of fencing flat cleared terrain the quality and quantity of agricultural soils a history of irrigation on the property and a USDA census from 2022 with evidence showing that uses identified are significant in Dashuites County. Um intervenor respondent did partially respond to our arguments. Um but we believe they disregarded or ignored the farm uses I listed above. Uh so just like in Destiny court, uh remand would be an appropriate remedy for further findings. Um turning to the third assignment of error, uh respondent misconstrued gold 14 and made a decision not based on substantial evidence. Uh the decision potentially allows urban uses on rural land without specifically analyzing in context whether the 240 acre property within a/4 mile of the bend UGB can be reszoned from EFU to MUA uh without resulting in urbanization. Um the county's goal 14 analysis that they did provide uh does not meaningfully apply the Curry County factors to the specific property. provide sort of a general analysis. Um, in terms of the Curry County factors themselves, uh, they do point towards urbanization. I want to talk mostly about density, uh, because of the recent decision out of Luba that, um, we're calling Pohaku Farms, Poeku Farms. Um, that's at Luba number 2024080. um in poeku farms, luba determined that a policy purporting to allow new residential parcels at a minimum density of 2 acres on non-resource land was quote facially inconsistent with the rural residential rule um at OR6600400440 and hence goal 14 that's at slip opinion 31. Luba further found that quote by their nature cluster and planned unit residential developments are inherently more intensive than traditional residential development on large individual lots and therefore have a greater potential to tip the scale toward urban use of rural land contrary to goal 14. Um that's at slip opinion 32. I we believe that uh concerns about urban density are especially acute here. We have a very large property in really close proximity to an acknowledged UGB. Um, and it suggests that the significant amount of dwellings in cluster and plan developments that could be approved on the subject property uh will result in urbanization of rural land. Um, and I'll try to be brief on this one. Um, the fourth assignment of air uh has to do with goal five. We believe that the land use decision errors by authorizing new conflicting uses on the subject property without conducting and adopting the required goal five analysis. Um during the local process we raised uh various concerns and issues with the the intervenor respondent site specific EC that's at record 805. Um, and we argued that the EC did not account for numerous new and conflicting uses allowed outright and conditionally in the MUA zone. Um, moreover, and this is a procedural issue I would say, um, the county aired by failing to adopt the sight specific EC as part of the plan. sub4. um which provides that quote the analysis of the EC consequences shall be adopted either as part of the plan or as a land use regulation. Um this didn't take place here. Uh there's no county findings as to the um sort of incorporating uh the sight specific EC and the relevant portions of the Dashoots County comp plan have not been um amended or updated. So remand is appropriate on that that issue alone. Um, council, how how did what form do you think an appropriate incorporation of the EC analysis into the comp plan would take? Is it enough just to have findings in the decision saying we That could be um I think the best the best way to do it would be to actually update um the comprehensive plan uh goal five section itself. um and add that there's these sight specific ECs for these um these yeah. >> Okay. Thank you. >> Uh so in closing, uh the county approved a reszoning and redesation of a farm property that directly conflicts with its own comprehensive plan. The county failed to correctly apply the holding in destiny court under goal three. Uh the county failed to explain why reszoning and redesating the property in its specific context does not violate goal 14 and it failed to um address our concerns about the sight specific EC and um adopt it as required by uh the re relevant administrative rule. So for those reasons, we do respectfully request reversal of the decision or in the alternate remand uh so that legally adequate findings showing compliance with the statewide goals can be made. Um thank you very much and I welcome any >> No further questions from the board. Thank you. You will have your full three minutes for rebuttal and we will turn to the intervenor for your argument. Please state your name for the record and begin. >> Good morning. Uh, Christopher Kobach, KOB ACK for the intervenor. >> Council Kobach, we're getting a little uh it's a little scratchy. If you could move your mic, we might be able to hear you more clearly. >> Is that better? >> That's better. This Thank you. >> Again, Christopher Kobach on behalf of the intervenor. Thank you for your time this morning. Um, I will also go in the same order as petitioner's arguments. Uh, first assignment of air, we don't believe there is a a conflict between the MUA zone and policy 3.31. uh that we don't believe there's a conflict with the decision and policy 3.31 because the decision doesn't approve any parcel less than 10 acres. Um to respond to petitioner's argumenting about the zoning code, petitioner argued in Paku Farms that policy 3.3 controls over the zoning regulations under the Baker versus Milwaukee uh city Milwaukee case and and I think the board agreed with that and uh that case held that uh a a zoning regulation that is contrary to the comprehensive plan is invalid. So what we believe the applicable law is now in Dashes County is that within the MUA zone, an applicant cannot obtain approval for a parcel less than 10 acres because policy 3.31 is the applicable law. Now what petitioners appear to be making here is kind of another facial challenge to uh the MUA zone. Um and we don't think that's appropriate. I was looking at the Pacu uh decision at at the assignment of Air five uh how the board addressed the facial challenge and the board said that a facial challenge can be made when any application of the the policy um will result in the conflict. And so here, the way I analyze it by analogy is to find that there's an appropriate facial challenge as the petitioner appears to be bringing, you'd have to find that any application of the MUA10 zone would conflict with policy 3.31. And that's just not true because in the MUA zone, there are many, many uses that people could make on their property that have no conflict at all with 3.31 or any other comprehensive plan policy. In fact, there are only three conflicts. There's the density bonus on the with if you're within a close proximity of the UGB. There's the cluster development and there's the plan development. Now, those are invalid under the city of Milwaukee case. So, there there is no conflict. But the rest of his the rest of the uses uh and his own are consistent and and and how I think it has to work then is this does have to be decided in a quasi judicial setting when a applicant comes in for a request and at that point in time uh there will have to be an assessment of whether or not they're seeking something parcel smaller than 10 acres that would be inconsistent with the policy. But we can't do that at this point in time. Now, petitioner made a good point. >> Someone came in for a PUB application. What criteria would make the comp plan policy applicable to that application? I think petitioner's argument is that determination needs to be made at the zone change and wouldn't be applicable in subsequent applications. Why is that not accurate? >> That's a great question. I was just getting to it. That was the point I was going to make. They there I have a that's a a valid observation, but here's how it has to work. If somebody comes in for that application now with the applicable law being policy 3.31, they have to adjoin with that application an application for a text amendment to change policy 3.31 because that's the applicable law and it clearly says 10 acres. So in that post acknowledgement text amendment goal 14 applies all and they and they have to do it under your holding in farms. the county will have to do that applying the specific Curry County Shaper standards. They can't rely on >> How would a How would a planner know that that comp plan amendment is an issue for a subsequent application? >> I think what you're saying is is a a land use lawyer who knows about these cases could say, "Okay, we know we have a comp plan problem." But I think petitioner's argument is, "Well, the comp plan's not directly applicable to those subsequent applications. So, why would that process you're describing happen? >> Well, for one, uh the petitioner would bring it up. Uh but I think the county is very aware of this as the board is is likely aware as well because this has been one of the biggest issues in Dashuites County this policy policy 10.3.1 and and the county is very well in tune with what's going on and and it will probably only come up if the county doesn't take action to address your remand in the last case of farms which I I think we could assume is going to happen. So, there's going to be a period of time perhaps if somebody comes in with an application seeking parcels less than 10 acres that the staff is going to have to say we can't do that. Here's our staff report. We can't do that because we have a binding case here from the land use board of appeals saying 10 acre minimum is the law. And so, I I don't think that's a a significant risk. Uh and really what what what the what we what land watch or petitioner is asking the board to do based on this potential conflict in a limited situation is place a moratorum on all MUA10 zones. So any owner that would like to reszone to MUA10 for any use say they want to do a horse facility or something on 30 acres there would be a moratorum because under uh petitioner's argument it is theoretically or hypothetically possible that there could be a future change in plan to come in with a a a cluster development that's why I think it has to be decided in the later quasa judicial to avoid this moratorum uh result Um, so unless there's questions on that one, I want to move a little bit uh quicker to assignment two. Um, I agree with Destiny Court. No quarrels with what it requires. The applicant has the burden to come in first and and address the u the suitability factors and we did that. Andy Gallagher, it's in the supplemental record or supplemental appendix uh one through 11 or 12. Went through all of them. He even went through and addressed the petitioners claim that there's 92 acres of descamp soil on this site and he explained that the DES camp soil is so isolated and confined by the Rocky Gazny that it cannot be suitable for farming even though it's there. He addressed every one of them. And then in subsequent uh correspondence, here's all Land Watch did. And now Landwatch or or petitioner, I'm sorry, petitioner has the obligation then to raise evidence or argument that a two things. They have to show that a farm use is common in this area, suitable for Dashuites County or the area and some evidence and argument that or argument that it's suitable on the subject property. And and I we think that's where they kind of fell short. So in their main uh ninth opening letter, record 1054, the uh uh petitioner merely said that many horse breeding raising facilities in central Oregon operate on dry, sometimes rocky ground. Um members of central Oregon's uh community supported agricultural may also argue that they create their own soil. nothing about the specific property, just general statements on the first prong of what happens in central Oregon. Later, they just talked about the fact that there is a large section of the property that has de camp soils and could be farmed. Mr. Gallagher responded to that. They didn't raise it again until the board hearing it in their August 20th letter. That's at six record 680 through 6 96. And there we agree they did raise some specific evidence and argument on specific uses. They were also very general. Um, of page 684, all they said was uh sign uh here's what they said is livestock, poultry, and related products are the second most valuable farm used in Dashes County. And they presented some evidence of that, but that's nothing on the specific property. Then they get to the specific property on the same page of the record and they identify horse breeding and training facilities and they and goat farming. And uh the goat farm we didn't respond to because it was a goat farm in North Carolina and we didn't think that was relevant to whether the property here was suitable uh uh for goat farming. But as to the equestrian facility, we submitted detailed expert testimony from Eric Hagertby on not only the specific horse operations but also generally he supported Mr. Gallagher on what is required to have suitability for any farm operation in Dashuites County. And he went through a lot of the specific ones. He went through the poultry, the equestrian. Um we believe he addressed every issue that the that the petitioner raised with any particularity. Um so uh that that's all I have to say on that. think it's a substantial evidence question and I think the uh board has in the past recent cases here in Dashuites County has looked at this type of evidence and found it to be substantial evidence and I would point out that as with respect to Mr. Gallagher's comments and Mr. of Hagerties uh petitioner has no specific responsive evidence, no expert testimony, no specific evidence of suitability for any specific operation other than that one horse facility which we responded to in detail. So on the third assignment of error, I think it's kind of spins off the first one. If if you agree with me that the law now is 10acre minimum, there's very little goal 14 analysis required because under Curry County, I read that case to say 10 acre density is rural and if you can't do anything less than 10 acres under policy 3.31, then there there is really no goal 14 analysis. That is a rural density according to Curry County. Um and that was our initial response. Now I I do acknowledge that petitioner's brief came out before your decision on firearms. I I believe that to be the case. Uh and my response I had the advantage of that case but I don't think respondent has really ever or a petitioner has ever responded to this argument uh in detail and and I don't blame them because of the timing. But I think the fact is the fact there is no more less than 10 acre parcels. goal 14 has been satisfied because there is consistency. Now, we did address how goal 14 would work with 10acre parcels and I believe that we explained how that would not result in urban uses. So, we kind of bootstrapped the Curry County analysis by pointing out how 10 acre parcels in a rur rural area are not going to create urban problems, not going to result in urbanization. Um the one the one element that's really difficult to apply is Schaffefer because Schaefer involved an asphalt plant on a rural area and the question and the focus was well is that going to attract people to that use such that it's going to be an urban use. Well, here the question is if you reszone to allow 10 acre rural parcels, uh petition argues, well that's going to make people from that area come into the city for the hospitals, the libraries, Costco, and all that stuff. Well, they're going to do that irrespective of zoning because those are the uses that have to be in the city. They will never be in a rural area. Our hospitals are where the biggest concentration of people are. Our public libraries are where the biggest concentration. The major retails are where the biggest concentration. So, that issue really is hard to deal with in this context. But I think if you look at it, you you might agree with me that zoning doesn't matter. It's it's really just the location of those services that all people in the rural area have to use. Um so that's how we've addressed that and we think we're correct on it. And the last one, yes, >> if I could ask you quickly, the uh if I recall, the county's goal 14 findings kind of assume that this property will be developed with cluster or PUD development. Um does that and change the goal 14 analysis? Well, not really because it that decision and again it's timing. The decision came out before your your recent decision on cooper. So the county I agree that that analysis is not correct anymore. Uh I think the controlling law now is you can only have 10 acres. So it really simplifies the analysis. Um, and I don't believe the county board could approve right now any kind of cluster development in UA10 until unless and until they get a comp plan that reconciles this facial conflict that you all identified in Paku. >> It does seem that we're kind of out of sync with the county in terms of our decisions and and their legislative responses. Well, well, exactly. And we've got these quite judicial decisions that are coming up often now in in Dashes County that we're trying to balance that because until unless and until the the county does what you instructed on on Reand and Qual Farms, we're all in a little bit of a void. We don't really we, you know, we don't know exactly how this is going to play out. I think the county is going to do something. But for now, what I'm saying is rather than have a moratorum, there's a better way to deal with it. And the applicable law allows that because we can only go to 10 acres. on goal five. Uh this is another one that's kind of recent for us because your decision in destiny court I believe it was uh and then there was another one with the college of cascade or cascade academy or whatever said you can't rely on the 92 uh es e anymore and the program that the county uh uh developed because and I agree with this because the uses on the specific property in '92 are going to change. The county didn't have an opportunity then to evaluate the impact of the scenic corridor on all uses on property today um because they were doing it in 1999. Now having said that though we have responded to it all applicants have by preparing a sightsp specific analysis conflicting use analysis and I don't find a lot of dis there's a little disagreement because we didn't evaluate a helicopter pad or an airport. We tried to take a pragmatic approach. Um, this property is right next to the Bend airport or very close to it. Um, we didn't >> You've approached or you've reached your time. So, if you just take the next seconds. >> Okay. I'll take the next second. There is a regulation in place though that to to get to the main question I wrote down. There is a regulation already in place. MUA10 zones exist all over the scenic corridor. There's two of them right next to us. the the landscape management regulation already has a program for MUA10 uses. So we just identify the conflicts. There is a program and a and a system in place to evaluate how it's consistent with goal five. So thank you. >> Any follow-up questions? Okay. No further questions from the board. Thank you and thank you for wrapping up there. We will return to petitioner for your three minutes of rebuttal. Please go ahead. >> Yeah, thank you board chair Zimio. Um I would like to talk about the issue of the applicability of 3.3.1. Um I our our view of the issue is that just saying that there are no plans to create sub 10acre um parcels is not sufficient in this in this matter. 3.31 3.3.1 is applicable to this land use decision. Um, so we're not asking for some sort of moratorum on MUA zone. Uh, I mean, it's clearly still allowed within the Westside Trans Act and potentially within exception areas. Um, but we're just asking that quas quasi judicial papas comply with the applicable criteria of the comprehensive plan, which in this case is 3.3.1. Um I would also say that uh in intervenor respondents brief they talk they try to sort of draw a distinction between destiny court and the matter in front of you. Um in destiny court the applicant specifically withdrew the land division for the 14 lot PUD. Um and Luba still found uh that remand was appropriate to address um the alleged conflict with 3.3.1. Um turning to one moment. Um I think the significance of Poeku Farms is that the legislative amendments brought forth by Dashutes County for their comprehensive plan update um basically had specific policies that were designed to enable exactly what we have here which is clustered and plan developments being permissible on non-resource land. Um that that's the case at the moment. I don't we don't read um POKU as uh allowing the county to def defer to quasi judicial papas in the future. Um and so we do we do believe that uh there there is a significant conflict. Um and then finally as far as the goal five issue um near the end intervenor respondents uh sort of referenced that the MUA 10 zone has sighting standards in the LM zone, the landscape management overlay zone combining zone. Um addresses the EC uh EC concerns or the concerns about new and conflicting uses for a goal five resource. Um we believe that uh Lubis Holding and Last Ranch sort of disposed of that idea and is the one that introduced that these sight specific um ECS are necessary. Um and so yeah, I I would dispute that idea that the the landscape ma management zone and the MA10 zone sighting standards um protect the goal 5 resource necessarily. And uh with that, I'll rest. Thank you so much. >> Thank you for your argument. No further questions from the board. So that will conclude oral argument. The statutory due date for our decision in this appeal is June 8th. We'll ask the parties to agree in advance uh for an extension so that we issue our decision no later than June 29th. Is that okay with these parties? >> Fine with the intervenor. >> Thank you intervenor.

Summary: you zoom out so we can get Todd. Good morning. This is the time set for oral argument in luba number 2026-015, Central Oregon Land Watch versus Dashuites County. I'm board chair Zamoodio. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with our recording. And I'm not aware of any pending matters um in this appeal. Are there anything? Is there anything the parties want to bring to our att…


Oral Argument 2024-080 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=cCsSaloibf4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Hello, welcome back. This is the time set for luba number 2024-080, Central Oregon Land Watch versus Dashuites County. I'm board chairs Zoodio. Board members Wilson and Basham are also present. I'm not aware of any pending motions in this appeal. There is there anything the parties need to bring to our attention? Seeing none. Uh 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? >> Uh yes. I'd like to reserve three minutes for rebuttal. Thank you. >> And I will keep track of time and ask that you also keep track of your own time. And just note that the screen that or the clock that is on the screen is not keeping exact time. And then the county, you will have 15 minutes uh for your responsive argument. >> Thank you. With that, petitioner, please state your name for the record and begin. >> Uh, thank you and good morning for petitioner Central Oregon Land Watch. I'm Rory Isbel. Uh, I'd like to start today with some framing of the issues. In this case, we ask the board to determine whether Dashuites County's new comprehensive plan complies with goal 14. Under its former plan, Dashes County has increasingly reszoned its rural lands to allow thousands of acres of new residential and industrial uses outside of urban growth boundaries. These zones that the county applies to those lands are zones created to facilitate previously built and irrevocably committed exceptions to the goals. In various cases uh challenging some of those decisions, this board and the court of appeals have held that the acknowledged status of the county's former comprehensive plan alone ensures goal 14 compliance without any further or property specific goal 14 inquiry. In the challenge decision today, Dashes County chose to update its entire comprehensive plan. The plan has new narrative sections, an entirely new organizational structure, chapter numbers, titles. It deletes old policies, adds new policies in every chapter. The county even adopted three brand new policies directly concerning how Go 14 applies to new residential development on rural lands. Yet the county's response brief argues that uh LandWatch's goal 14 arguments are either outside the scope of this PPA or are a collateral attack on the county's former comprehensive plan. Land Watch today is uh seeking our our day in court to determine whether the plan's allowance of unlimited reszoning of its rural lands for new residential and industrial uses complies with goal 14 and whether the plan's uh authorization of zones created to accommodate past goal exceptions to non-resource lands also complies with goal 14. So to describe what we see as the the key legal issue in this case differently the case law tells us that quasi judicial papas for individual properties need not show goal 14 compliance. If that's true, which it is, there's a lot of case law holding that, then when the county amends its entire comprehensive plan, like now is the only time a petitioner may challenge the compliance with goal 14 of the plans policies that dictate any subsequent um determination of compliance with goal 14 for property specific paps. So if not addressed now, the issue of goal 14 compliance um for these uh serial reszonings and authorization of new residential and industrial uses will continue to evade review. So our first assignment of error um addresses a procedural issue that I want to address. the county failed to follow public notice and hearing procedures for papas um under OS 197610 and an OAR that uh mirrors that statute and and add some detail. So the county did this in two ways failed to comply with the the procedural uh statutes in two ways. First, the county proposed three significant new goal 14 related plan policies after its public hearings and also after the written record had closed. Uh the the statute we argue which is RS197610 sub6 governs alterations to proposed papas and it requires local governments to notify DLCD and by extension the public of significant alterations at least 10 days before the final evidentiary hearing. here. These three new policies um that were proposed after the record closed greatly expand where and how the county allows certain types of residential uses on rural lands, cluster and planned developments. Currently, they're not allowed outside of one uh small zone under the county's former comprehensive plan, but these three new policies added after the record had closed in the new plan um allow those uses throughout all of the county's residential zones, including on non-resource lands. Now, the county did reopen its written record about 2 weeks before it proposed these three policies, but that did not satisfy the applicable POPA procedures. Uh the three policies that ended up being adopted are very different than uh what the county reopened the written record for a couple weeks prior. And uh the statute or S197610 sub6 requires a public hearing for alterations of papas such as this as does the Dashuites County code. So, the county's failure to allow any written or oral testimony on these significant three new policies prejudiced LandWatch's substantial rights to prepare and submit its its case to a full and fair hearing. But also, the case law tells us that failure to follow these pop-up procedures and statute is a substantive miscontrol misconr of applicable law as well. That's the Oregon Leasing Incorporated and Northeast Medford Neighborhood Coalition uh cases from the Court of Appeals. If we agreed with you and sustained that assignment of error on that basis, uh would you argue that it's appropriate for us to continue on to the other assignments of error or would this be a remand on a procedural error and then the substance would be likely to change? >> Um I think a a remand on the procedural error would be appropriate because of what these policies attempt to do. They do address um goal 14 issues which of course our other assignments of error are centered around the compliance of the plan >> remand just on the procedural assignment of error. That's what I'm asking. If we sustain the first assignment of error, do you think it would be appropriate for us to continue on to the remaining substantive assignments of error or would there be a likely change in the county's decision on a reopen record so that it would be premature for us to address those substantive assignments? uh you know I I can't really anticipate what the county would do on that remand, right? If if there would be substantive changes. So I I I don't think I can answer that question as framed because it would sort of be up to the county what they would do on remand there if they chose to merely follow the applicable pop-up. >> Okay. So then are you advocating if we did sustain the first assignment of error we reach all of the other substantive assignments of error? Is that what >> Yes, I I believe I am. Yes. >> Thank you. and especially, you know, this this decision has is appealed on reconsideration. So, it's been several years uh that the county has has um worked on this this new plan. So, I believe LandWatch would ask that the board to address the assignments of error to um you know reach finality on some of these issues. And then on the substance, I I think we all here understand that there is a line of cases, the Asetti line of cases. Which zones and plan designations did those cases apply to and which are at issue in this appeal? >> Thank you. Uh the plan designations that those cases apply to are both the county's rural residential exception area plan designation and its rural industrial and rural commercial plan designations. There's two zones uh that implement the rural residential exceptionary plan designation. That's the MUA and RR zone and uh two zones for the rural industrial and rural commercial plan designations that are uh called the same rural industrial and rural commercial. Uh you mentioned the asetti line of cases. There are several other cases that uh hold something similar that the county's uh the acknowledged status status of the county's plan means that any subsequent plan amendments into those zones automatically complies with goal 14. The 710 properties case holds that for uh rural residential exception area. and not only the Aseti cases, but some related case law, including a court of appeals case affirming this board's decision in the last ranch case. Um, just last week, the court of appeals affirmed that the county may rely on the acknowledged status of its plan to find that any subsequent um plan amendment into the rural industrial zone anywhere in the county, any size acreage, um, also complies with goal 14. So assuming that we adhere to our prior decisions and the court of appeals prior decisions addressing these goal 14 issues, what remains at issue in this case? >> What remains at issue in this case? I uh LandWatch believes that this plan itself must um impose some sort of goal 14 uh criteria on its policies that allow those quasi judicial plan amendments. Uh I believe the Supreme Court in the Curry County case back from 1986 was quite clear that uh resonings on rural land uh in order to show compliance with goal 14 requires a sightspecific inquiry. Uh so it's our position that this plan needs to require that goal 14 sightsp specific inquiry if subsequent papas that the plan sort of tease up um don't themselves need to show that sight specific goal 14 inquiry. >> So the county is has responded defending its decision essentially characterizing your position as attempting to relitigate those cases in the situation of a papa. Why is that not the case? And what's different? What's going on with this papa versus what the county has done in um application specific cases? >> Sure. Um so we are not attempting to relitigate those cases. Those are final and closed. They're holding stand. What those cases tell us is that it's it's the county's comprehensive plan uh that shows goal 14 compliance. So now that the county has chosen to update its entire plan which authorizes certain zones to be applied to certain plan designations, we believe now is when the county must show goal 14 compliance of applying those zones anywhere across the county. So, this is not uh >> Did the county need to update its plan in order to do that or could it have continued doing what it was doing on a case-byase basis under those lines of cases? Uh, >> I believe it could have continued. It was under no legal obligation and we stay this we say this state this in the brief. It was under no legal obligation to update its comprehensive plan, but it chose to and its papa notices, its public hearing notices in describing the scope of this papa describe the entire plan. Um, you know, the hearing notices tell the public that all chapters of the plan, transportation, housing, farm and forest lands, economic development, um, all of those issues, all of those, you know, related goals are within the scope of this papa. So I yes I believe they could have continued under the old plan but they chose to update the entire plan and replace it with a new plan. So, we believe that because they chose the county chose to do that, then it needs to show compliance with all of the goals, including goal 14. Uh, and you know, based on past experience, obviously, this uh appeal is somewhat motivated by existing case law under the former plan um about how the county adopts non-resource uh uh plan amendments. Um so uh it because the county chose to update its entire plan, we believe they need to show go 14 compliance um at because individual uh property specific papas have not needed to under the former plan >> and you're at your 12 minutes. You can continue or if the board has any questions otherwise we could reserve your time for rebuttal. >> I will reserve my time for rebuttal if there are no further questions from the board. No further questions. Okay. Thank you. You'll have your three minutes for rebuttal and we'll turn to the county for your argument. Please state your name for the record and begin. >> Good morning. Stephanie Marshall, senior assistant legal counsel for sheets county. Thank you. And um may it please the board. Um uh I've been listening to the questions that um you've uh that the board has presented to petitioners council and um uh I think I will start by focusing in on some of those questions on the procedural question. Um whether or not we call what the county ultimately adopted as a repeal and replace I think is a matter of semantics. Um, what I've not heard from Land Watch uh from the petitioner in this matter is why previously acknowledged plan policies and goals uh that were acknowledged um and were not changed. Why are those now non-compliant with goal 14? Um LCDC or excuse me, DLCD reviewed the plan uh reviewed those policies that have not changed. Again, whether or not we call it a repeal and replacement, I think is almost beside the point. um those plan policies as we've shown in our red line and and uh comparison document were not updated. They were previously acknowledged as compliant with goal 14 and nothing has changed in those policies. So again, um, putting aside the questions and arguments of collateral attack or otherwise, um, I I've not heard that argument from landwatch as to why previously acknowledged policies and those associated goals are now non-compliant with goal 14. Um, I want to turn to the procedural issue. Um our brief uh covers this in in detail as to how um legislative actions are entitled to evolve over time, not necess not necessitating new um new notice. Um those specific policies, first of all, the the 10.1.1 is not a new policy at all. 10.1.2 and 10.1.3 are two new policies. We agree. Um, we also submit, and this is covered in our brief, that LandWatch had an opportunity to c uh to comment on that pol on those policies. Um, and I've got the record sites 1311. These are the recon record 1311, 809 to 811, 821 to 8:23. Um, they had multiple opportunities to submit oral and written um, testimony. Um, the written record was reopened. the policy uh proposal was put out there and it was ultimately divided into two subsections uh 10.1.2 and 10.1.3. um the language itself, you know, we just decided to to to break them out further, but um we submit and again as covered in detail in our brief that LandWatch did have an opportunity to comment on the proposal there and and moreover the proposal is uh basically to incorporate existing state law and all of the policies that are challenged um in petitioners brief have to do with compliance with state law. every single one requires the county to apply state law. Um it's it's I still haven't heard how that is non-compliant with goal 14. Um I think you've just heard from petitioner that that their um their concern, their fears have to do with implementation. um when an actual application comes in uh to reszone and um amend the plan for a specific parcel of property and that again pursuant to state law is is um reviewed and decided on a case- by case basis. Sometimes goal 14 is is found compliant with and every single one of those decisions have been held up um held held uh sorry upheld there's the word upheld by Luba in the court of appeals either on in the first instance or on remand and when it goes back up and um Mr. Isbel just mentioned the last ranch decision which um came out from the court of appeals just a few days ago. Um again upholding Luba's determination that the goal 14 issues were addressed um and and are addressed uh in the asset line of cases. I've not heard um any any reason why or any any explanation as to how this is a plan level um issue before uh the land use board of appeals. um instead of a we don't like what's been happening uh matter and we don't want this to happen in the future. Therefore, the county has to put some sort of additional sidebars even though we have sidebars in the plan that require compliance with state law and in particular that OAR which allows the um clustering and PUD developments. um again with with very specific um uh procedure that's involved with with how those are reviewed and um decided. uh in the petitioner's brief um they actually stated that they were taking issue with uh Luba's decisions and the court of appeals decisions and they came right out and said we're we're challenging these development regulations um that allow for those clusters and PUDs and and that is outside the scope of of Luba's review in this matter and and that's where the county's argument stands is is we have to look at the the plan the plan itself um the fact that that these um that most if not all of these policies were already acknowledged by DLCD as compliant with goal 14. No changes were made regardless of we of whether we call it a repeal and replacement. Um I'm still waiting for the argument as to how previously acknowledged policies are now non-compliant with goal 14. Um council if I can ask you if I understand correctly petitioner is arguing that these policies extend cluster development rural residential road development to non-resource lands is that and he argues that's inconsistent with goal 14 is that the kind of argument that's better addressed at this level of a comprehensive plan amendment >> I think that that's better addressed on a case-byase basis because again the plan is talking you know the plan is the umbrella the plan is the overview it's not talking about anything specific. It's and these policies are in the residential development um section of the co of excuse me uh chapter of the plan. Um they're not talking about specific zones. Um you know it the the policy the previous policy 3.1 3.3.1 was in the um was in the uh resource zone chapter. Um these are now housing policies and um where they are applied will depend on the individual application and and how the county processes that again with the requirement that anything complies with state law and LandWatch will um I suspect and and and I encourage them to continue to uh participate um with respect to these individual or future individual applications when they come up and and the county will then decide, you know, and determine, you know, and and take into consideration, you know, is this is this the appropriate place for a cluster or PUD development under state law. Um the plan is is not addressing the zone in which they're they're um these provisions are um applied other than the fact that that we have those two longstanding since 1992 development regulations that are acknowledged and are outside the scope of this appeal and yet we're were essentially I think if I recall correctly LandWatch says yes we are challenging those development regulations. I could find the site in their brief, but um unless you have a question on that, I'm I'm happy to move on. >> Okay. So, if I understand argument correctly, he's arguing that as applied to any non-resource land, these policies would be in contrary to goal 14. It's not an as applied or this particular location. Is that am I misunderstanding the argument? >> Is right. Right. And what I'm what I'm not hearing from Landwatch is with the requirement in the plan that um that they comply with state law. I I don't I'm not sure what more Land Watch is looking for. I mean, we're not allowed to disregard goal 14 when we apply uh when we review a um a cluster or PUD development. We're not allowed to ignore the OAR. Um, so, so really what what more can be what more can be added? Um, I'm I'm unclear because again, this this really seems to be a a dis dislike disapproval of decisions that the county has made and some sort of uh direction to the county uh from Luba or or or otherwise to to not allow this to to happen at all. And you know the plan is generally stated. The plan is generally um addressing residential development and it is generally saying you know if you can go through if an applicant can go through the OARS and can established that they are compliant with them and they comply with goal 14 etc etc then perhaps that person can get something approved. The plan doesn't drill down to that level of detail. The plan is an overview and and uh and then the development regulations flow from the plan and those development regulations are in place. Um I think also in our brief we we um we addressed the fact that the the impetus for these two new policies um came from uh the the board's ruling in um Destiny court and that was last year uh where uh Luba had um had a question um regarding the inconsistency of the plan with um a potential PUD or cluster development. So, we amended the plan to clarify like this is how it's been. This is how it will continue to be. We still have those sideboards and um those sidebars those side bar boards are not removed. Um, and we're just making it more clear in our plan. And um as I stated in the brief um it was truly a response to the Destiny court um decision from Luba uh to clarify, you know, we we never intended that um that the 10acre minimum lot size in what was then 3.3.1 and is now 10.1.1 uh precludes potential cluster or PUD development to the extent it is uh consistent with state law. Thank you. >> Thank you. Um I'm not sure how many more minutes I have. Um I Let's see. Let me just look at my notes. Um want to make sure that I've covered everything that has come up. Um um let's see here. Um I don't think we need to use the word collateral challenge or collateral attack. Um again, uh the the question that the county has is why previously acknowledged plan policies and goals are now non-compliant with goal 14 um where they were not changed. and th that uh that argument applies to the commercial and industrial uh arguments that land has presented. Um and then um let's see here with uh I and goal 14. Um what what LandWatch is asking ultimately is that they get to reweigh the policy decisions of the board of commissioners and the policy decisions of the board of commissioners in Dashuites County are unique. Um there we're one of the fastest growing counties in the state. There is a great need for housing development. Um there is great pressure in that regard. We also uh are balancing that against, you know, environmental considerations, goal five. Um none of that, of course, is in um in this appeal. Um but we're, you know, when the when the board made their decision, they were weighing multiple considerations and figuring a way to move forward. Um, I think really at the end of the day what what I'm hearing is is a uh a challenge to the concept or the idea of PUD and cluster developments. Um, I'm not minimizing the appeal uh the the appeal issues that relate to commercial rural commercial or rural industrial. Um but with the court of appeals recent decision um just a few days ago um in in last ranch um I think that that issue is is asked and answered and um and and there's nothing more to to say on that. Um with respect to cluster and PUD development potential um this is not anything new either. Um the uh development regulations that have been in place in Dashes County since 1992 um are not up for debate. They are not ch they cannot be challenged um in this in this appeal. And um Luba um cannot make a ruling. I would I would I would submit Lupa's ruling cannot address the legality of those development regulations. um we're only talking about the plan and um and the county submits that LandWatch has been involved and has had multiple opportunities to and and very thoroughly and um uh very much appreciated um has been involved in the um in the development of these plan policies um 10.1.2 2 and 10.1.3 which were a direct um outgrowth from the Destiny court decision. Um but again do not introduce a new type of development or a new manner of reviewing development applications. The plan does not go that far. The plan simply say states that these are permissible. Generally speaking, um if an applicant uh decides to go through that way and they're not limited by the 10.1.1 um 10 acre minimum lot size provided that they can they can comply with state law. And on that I will uh rest and um happy to answer any questions. >> Thank you. Uh thank you for being mindful of your time. No further questions from the board. We will return to petitioner uh for your three minutes of rebuttal. Go ahead. >> Uh thank you. Um so I I heard the county ask a few times uh that they haven't heard Landwatch uh explain why policies that were previously acknowledged as compliant with goal 14 might not be now. Uh well I I uh direct the board to the court of appeals case 1000 friends of Oregon v. Jackson County 79 ORAP 93. It's cited in our reply brief. That case holds that an amendment to one provision of a plan can affect the way in which another provision operates or affect the land uses upon which it operates and that those secondary effects are themselves goal compliance problems. So land watch in this appeal challenges compliance of the entire coordinated plan with goal 14. Uh, the county, as I've stated, updated all chapters of the plan, including certain policies directly related to goal 14 that affects the entire plan's compliance with goal 14, even if some of the language is the same as the past plan. It's an entirely new plan and we do believe that the county needs to uh justify the plan's compliance with goal 14 a new even if a past version of the plan with a different structure, different policies Uh, and I I want to point out that some of those past um property specific decisions uh the the county um in its final decision in some of those has said that either goal 14 does not apply or just flat out that goal 14 is met because the plans and its implementing zones have been acknowledged. Uh so to say that future uh plan amendment decisions will have to show goal 14 compliance a new that's sort of counter to the case law that's guiding the this appeal I suppose um that says that no the county does not have to show go 14 compliance in those decisions and I'll point again to the 710 properties decision the SETI cases last week's last ranch case um we see this as an issue of of evading goal 14 view. If goal 14 compliance doesn't need to be shown now at the comprehensive plan level and also doesn't need to be shown in an individual property specific papa level, then when will it be reviewed? Um, this plan authorizes the county to reszone resource land for residential and industrial uses anywhere throughout the county. We imagine a scenario that this plan authorizes where let's say 10 or 20 properties in a remote corner of the county are reszoned for industrial uses and each of them develops petroleum storage or plastics factories with that concentration of industrial uses outside of urban growth boundaries with no uh real like minimum lot sizes required. These could be 5 acre parcels uh 20 acre parcels. Would that concentration violate goal 14 by with that amount of industrial uses in one spot outside of urban growth boundaries? We believe it would. And and now at the plan update level, the case law tells us is the only time that >> a petitioner like Landwatch can raise that argument about goal 14 compliance. >> Thank you. That uh that is your rebuttal. Appreciate your argument today. That will include oral argument. Uh the statutory due date for our decision in this appeal is March 3rd. We'll ask the parties to agree that we may issue our decision uh by March 24th. Is that okay with these parties? >> That is fine with the county. Thank you. >> Thank you. >> Yes, that's fine. >> Okay. Thank you. Have a good remainder of your day.

Summary: Hello, welcome back. This is the time set for luba number 2024-080, Central Oregon Land Watch versus Dashuites County. I'm board chairs Zoodio. Board members Wilson and Basham are also present. I'm not aware of any pending motions in this appeal. There is there anything the parties need to bring to our attention? Seeing none. Uh oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you l…