Oral Argument 2025-080 Landwatch Lane County v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=mxBFPpmHV80). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Luba number 2025-080, Land Watch Lane County versus Lane County. I'm Board Chair Zamudio. Board members Basham and Wilson are also present. Please mute your audio when you're not speaking. That will help us our recording. Thank you. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention? Seeing shaking heads, no. No, thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? 3 minutes, please. Okay. Uh I will keep track of time and ask that you also keep track of your own time. And intervener, you'll have a total of 15 minutes for your response. So, with that, petitioner, please state your name Good morning. Shawn Malone on behalf of petitioner Lane Washington County. Uh the facts the most relevant facts here is that uh there's tax lot 200 and tax lot 302 and that these two tax lots became a tract after January 1st, 2019. Uh this is important because the way in which they became a tract was through a process that is identified in the legislative history as this notion of deed shuffling, uh conveying the properties back and forth, uh adding um and renaming the the individuals on the deeds uh through a variety of of very similar but somewhat different um spellings and using ampersands instead of and and and a a variety of ways um with the effect that the title is different but the underlying individual still owns the property. Um And so, at issue here is obviously ORS 215.750 sub 5 sub H. Uh this is related to the first assignment of air and it's really the bulk of of the briefing. Uh the first issue that we just sort of have to address and that uh uh intervener referred to as sophistry, which is somewhat ironic because that originates with the Greeks and philosophy and uh you know, a conditional statement is something that is integral to logic, symbolic logic to this day. One of the more difficult classes I've ever taken in my life, but nonetheless, the idea of a conditional statement is a very straightforward uh principle in logic and symbolic logic. And it it really only comprises two parts, an antecedent, that's the if clause, and a consequent, the then clause. So, we don't need to um act like this is some difficult thing that the board can't understand or that we can't understand. It it's it's readily discernable. Um and because the hearing officer uh determined that just the subsection H in and of itself is a conditional statement and that um you know, we we need to dive into what that means. What what is a conditional statement? And you know, interestingly enough, the broader 5A through H is itself is also a conditional statement. Um with the consequent, you know, the then clause coming first in subsection 5 in section 5, and then subsection A through H contains all of the uh antecedents, the if clauses. So, I think that's pretty straightforward stuff. Uh we don't have to you know, it it's not that difficult to ascertain. Um Land Watch's conclusion as far as the text goes is that collective collectively 5H is a conditional statement. Section 5 is the consequent, that is, you get a template dwelling, you are entitled to a template dwelling, and subsection H is the antecedent, that is, if you satisfy three separate clauses, all of which are conjoined by the word and, and uh those are related to the date certain of January 1st, 2019. Here, because the applicant did not satisfy all three clauses or criteria or prongs or whatever you want to call them in subsection H, uh then the applicant is not entitled to that consequent, that is, the template dwelling. Uh in our opinion, that that's sort of a very straightforward reading. But hearings official, on the other hand, concluded without a lot of analysis uh that subsection H is a is its own conditional statement, and somehow that the the first clause uh that begins with an if, and again, we'll get to this other notion that you know, there was an if immediately preceding that the end of section five, um that that subsection H is its own uh conditional statement with with the first clause being apparently the antecedent, and then the two subsequent clauses being the consequence. But if you if you read it, if you read subsection H, it's list it's just listing things that you have to have. Think criteria that that must be satisfied. It's not couched in in terms of how a um a conditional statement normally operates. If you do this, then you get this. The second two clauses in subsection H just are not couched as something that you get, something that that results from uh satisfying the the antecedent. And so, that's that that's where the the basic difference in the interpretations uh comes from. And the hearings official, again, in in his uh in the the the proper part of his decision, doesn't really get into the analysis, but again, the this this hearings official has done it several times, incorporated and adopted findings from uh a non-attorney uh applicant's consultant that it appears were not intended to be findings in and of themselves. And those findings make several blatant mistakes. And we'll just to get to those quickly, uh the first one is this notion that all if-then statements, all conditional statements result in limitations or prohibitions. That's just simply not the case. Um a conditional statement operates on whatever the language of the conditional statement is. So this notion that there's a limitation or a prohibition every time there's a conditional statement is just simply not true. You look to the You look to the language of the conditional statement here. Um it's not a limitation or prohibition, it's that you get a template dwelling. It's actually um something that you get, something that's uh positive or something that's that's desired, I guess. Um the second one is that uh that non-attorney's adopted findings um related to legislative history said something along the lines of the intent of HB 2225 was to prevent double dipping. Double dipping. Uh it's not even clear what that is, and a review of the legislative history does not indicate anyone saying that phrase double dipping, and there's zero citation from the applicant's non-attorney's consultant uh that were adopted. There's no zero citation of any actual legislative history. So the hearing official's being a little loose in terms of adopting findings without any support or citation. And we'll get into that legislative history a little later here, but again, another thing that's yeah, that's implicated in the second assignment of error is that on two occasions and and it's pretty lengthy uh within those adopted findings, they just get the tax lots completely wrong. They say these two tax lots are not contiguous to each other." In fact, they are. That's what makes them attract and they're within the same uh you know, complex kind of deed shuffling uh deed titles. And that's what again makes them attract. And that happens in both of the sections that are adopted by the hearings official from that non-attorney consultants. Uh the next thing that those adopted findings get wrong is this notion that a conditional statement uh results in uh you know, if you don't satisfy the antecedent, then it's just something that doesn't apply. But that's not the case. Instead, you Here you get a dwelling. That's what the antecedent says. You get a dwelling only if you know, you satisfy these other criteria. And so, saying that it this notion of just not applying, that that in and of itself is inserting language that doesn't exist in the statute. Um you know, again, you you look at these conditional statements and you just you just uh apply them according to their language. And there's no language that says this conditional statement {quote} {unquote} does not apply. So, um in our opinion, obviously, it it you get a condition you get a uh template dwelling. An applicant is entitled to a template dwelling as the antecedent. Um antecedent of the consequent, if you satisfy all the antecedents, those being the three criteria, the three prongs, clauses, requirements of subsection H. Um and those those one of them then is not satisfied here. Yeah, two of them are satisfied, I agree with that. Um but because it's all conjoined by the word and, that means you have to satisfy all three of those statements or all three of those prongs. And and that's just not what is happening here. Um Just like this notion of not applying is coming out from sort of left field in in a similar fashion as this notion of double dipping. It's just coming out of left field. We don't really see any textual or legislative support for these these phrases and how these conditional statements are being applied. Um and then also on on on page 13 of of the response brief, there's an allegation about this alternative finding that the hearings official made and that alternative finding is kind of irrelevant again because it's just saying, oh well, you know, in the alternative, they are satisfying two of those three criteria in subsection H. But again, the because they're joined by the word and you have to satisfy all three. So, that sort of alternative finding identified on page 13 of interveners brief, um it's it's irrelevant if, you know, if you only satisfy two of the three, if you only satisfy one of the three, you haven't satisfied the whole thing. And you got and you have to satisfy those those antecedents, those if clauses to get to the consequent, which is the entitlement to a forest template dwelling. Um and the next sort of incorrect notion coming out of these adopted findings is that subsection H is not in itself a conditional statement. And looking at the adopted findings, they are focusing as a conditional statement on subsection H. And the hearings official again in the in the sort of body of its own findings doesn't really address the idea of of of the fact that it's the broader 5 H and 5 A through G are all conditional statements because subsection 5 ends with the word if, so making all of those A through G and H um the antecedents to the consequence of again being entitled to a template dwelling. So, you got to satisfy uh A through H to to uh to get the get what they're entitled to. Um there's this double if oddity, and I am not uh alleging that basically what I'm coming down to. And again, hearing official did not really analyze that double if at all. And the question I have is what does the double if add to it materially, significantly? I I can't really see it cuz if you take away one if, you still have an if there. It's not like this notion of uh double negatives where double negative makes a positive, etc. Um it it it's a little different. If you take away that if, that subsection still begins with if if you take away either one of them. So, um it appears to be a redundancy. It's difficult to apply any significance. Uh I see that I'm generally speaking at my time here, but I'm going to press this. >> Mr. Wollin, before we run out of your time, um about the legislative history, um like Mr. uh Representative Helm makes clear that he's sort of worried about gaming the system. Um but I think the the statute would address that at least in some extent either with your interpretation or Mr. Reader's interpretation. What about the legislative history specifically goes to your position that basically you have to have been a tract by 2019? What what in there specifically address that part of your argument? Well, for me it's it's the plain text. I I I But, you know, going to the legislative history, uh Mr. Reader has identified what he refers to as three principles there. Um and um I think that Mr. Representative Helm is clear when he states that uh let me I have it here. Uh he said Helm says, "And gaming the system took two forms." Again, that's this notion of um uh, deed shuffling and then this notion of multiple property line adjust adjustments uh, taking place. And so, there's no other third one, you know, that the sponsor of the bill Helm is talking about. Um And then that that's obviously reinforced by individuals like um uh, Derzan and Malky, Land Use Attorney. Um, and I think the real thing there in the terms of legislative history is look at what Jeremy Keepers is saying. He's He wants subsection H removed. He's saying all these other people already deed shuffled. I haven't deed shuffled and I haven't done it by January 1st, 2019 and because of that, I'm going to be prevented from doing something later on because of that date certain deadline. And I'll try to preserve 10 seconds for uh, rebuttal if I may. Does that answer your question, Commissioner Wilson? Sure. Sorry. Questions? Okay. Uh, you will have 1 minute for your rebuttal remaining and we will turn to intervener for your responsive argument. Good morning. Mike Reader for the intervener respondent. Uh, I'd like to address a couple of preliminary items. First, just want to correct some actual scrivener's errors in the uh, response brief. Page 7, line 5, ORS 215.215 should say ORS 215.750. Uh, page 10, line 8, country should read uh, contrary. And page 18, line 12 should say the the citation is a there's a missing sub five. And so, it should be ORS 215.750 sub five, sub C, D, and H. Okay. With that, uh, the Lane County Hearings Official affirmed the Planning Director's decision to approve the forest template dwelling in the F2 zone on a tract comprised of two parcels as Mr. Malone talked about tax lot 200 and tax lot 302. It was not until 2005 that tax lot 200 and 302 became a tract. Um, tax lots 200 and 302 are each individual legal lots, lawfully established units of land, and together comprise of over 80 acres, and that's found in the record at 413. Um, it's acknowledged that tax lots 200 and 302 were not a tract as defined by the statute on January 1st, uh, 2019. And, uh, there were no dwellings on either parcel as of January 1st, 2019, and there are no dwellings on the tract now. So, let me get I think it might be easier to understand, uh, all of the arguments today if we understand if we were to take petitioners' interpretation and omit the second if out of the statute, which I'll talk about you cannot do, but let's suppose you did. Let's say you did that. In effect, what that would mean is that a property owner uh, on January 1st, 2019 that owns a lot a lawfully established unit of land, a lot or parcel. Let's say that parcel is 80 acres. There's one Otherwise qualifies for a forest template dwelling, meets all the other criteria. Because that property owner on January 1st, 2019 did not also own another lot or parcel, that property owner would be prohibited from having a forest template dwelling under the interpretation posited by the petitioner. I am not arguing that the absurd results maximum applies here because it doesn't need to because the text and the context and the legislative history support the hearings officials interpretation of the statute. However, if you understand what is being argued the practical effect of what is being argued by petitioner, you'll understand why the double if has meaning. Okay, so think about that again. There would be no planning purpose for requiring a property owner as of January 1st, 2019 who doesn't also own another lawfully established unit of land from obtaining a forest template dwelling if they otherwise meet all the other criteria of House Bill 2225. And I'd like you to think about that and let that sink in because that's the absurd So >> I'm just trying to understand where petitioner is coming from as a policy matter and I'm not asking you to make petitioner's argument, but in terms of how these two parcels were combined, um, what purpose did that serve? Cuz there's an allegation that there's deed shuffling happening that is what the legislature intended to avoid with this subsection H. Can you just explain to us why these lots were combined and what for what purpose? Yes, that is a good question, uh, chair. Uh, the purpose of combining the two parcels to become a tract under the statute House Bill 2225 in effect in 2025 and now to 2026 was to I was not representing the applicant at the time, but if you look at the record, it was to create a template a set the centroid of the template that would qualify the property for a forest template dwelling under the rules in existence in 2025. So, as I understand it by the record, if the if the applicant were to only use tax law, I think it's tax law 200, but the the tax law on which the dwelling the the parcel on which the dwelling will be located, if there was no attached other parcel creating a tract, I don't believe that they would qualify for a forest temple dwelling. And on the record, is it because and this is purely out of curiosity, but also trying to understand the policy purpose of subsection H? Is that because it wouldn't have captured enough existing legal lots if it were further west? >> I believe so. So, if you look at a you know, just the individual parcel and you look at the centroid, you know, you your template would only capture so many dwellings. If you then acquire another legal parcel and create a tract, the centroid moves capturing different parcels. I separate parcels and separate dwellings that is required in order to get a forest temple dwelling. So, in terms of the policy purpose of this provision, I understand earlier subsections are looking at not using property line adjustments to approve that would result in the um parcel qualifying for a dwelling. I think petitioners argument is this is the same kind of effect because it's qualifying the parcel. Why is that not policy-wise um supported either by the legislative history or the or the text or context? Because it's not. There's not I mean we we briefed that that is a policy consideration that the legislative sponsors could have brought forward to the legislature, but did not. The test >> So, if I understand you're saying petitioners argument is essentially policy-wise overburdening subsection H with a policy determination that the legislature the legislative history shows that the legislature rejected and in terms of the actual text is not supported by the text. That is 100% correct. Thank you. Yes. The interpretation of ORS 215 sub five and sub five H, the double ifs, uh if has to have meaning. Okay? So, when you look at the dictionary definition, Webster's Third International Dictionary page 1124, if has the definition of in the event that, in case, on condition that. So, House Bill 2225 included two Fs. I'm sorry, two ifs. Okay? Uh under sub five and under sub H. Essentially, what petitioners are arguing is that the hearings official erred by giving meaning to both ifs. In other words, we call it in the briefing, we call that a double negative. And it's similar to when someone says says you're not wrong, they're really saying I agree with you. That's really what was going on. This this this notion that there's redundancy is not born out either by the context or by the legislative history. So, the Let me put it to you this way. The if if the the the Supreme Court, the Oregon Supreme Court has said that the job of a judge is to give meaning and effect to all provisions. And we know from ORS 19174010 that judges may not insert what has been omitted or omit what has been inserted. That that if in subsection H was purposely uh in inserted in the in the language. When you look at the legis- when you look at the legislative format of House Bill 2225 that's in our appendix, you will see that it was added and there were iterations of House Bill 2225. In addition, and I think really importantly, is the the the the OAR that implements the forest template dwelling statute. Uh OAR 660-06-0027 uses the exact same if, the double if. So, that went through the process of adopting regulations and no one may Nobody said, "Hey, wait. Time out. There's a double if here that doesn't make any sense." You know, it's conceivable that the, you know, DLCD could have said, "Oh, wait a second. This double if doesn't make sense. Let's interpret the statute." But, they didn't. The It's not the role of LUBA or the courts to erase the the if because petitioners don't like the So, we posit that it's not a scrivener's error, but it was purposeful uh uh part of the statute. It doesn't suffer from anything other than perhaps it's a bit confusing. Yeah, I agree. If I were to write the statute, I probably would have written it differently. But, you cannot omit that that second if. It has to have meaning. And that's, you know, Friends of Nab Hill versus uh Filomath, courts must harmonize apparent conflicts if possible. I I actually posit that the easiest way to read the statute is the way that the the intervener responded and the hearings official read it, which is it it is it is conditional. If you don't have a tract and so I would invite the LUBA when you when you're looking at this and writing your opinion, highlight in the statute everywhere where the statute talks about lots and parts lots and parcels. Highlight tracks. And highlight the ifs. And it will become clear that this was a statutorily put together the way that it's supposed to. Uh >> Explain for me that where the double dipping comes from and what that means in your understanding of the hearing officer's understanding. Yes, so the double dipping I you know I have got to be honest, the double dipping argument is somewhat irrelevant. I again, I did not represent the applicant below. Uh double dipping I I think I understand what they're saying. I think it's irrelevant. I think the legislative history does not support the position of the petitioner. If if the legislature wanted to say property owners who qualify for forest template dwellings must have a tract as of January 1st, 2019. It easily could have done so. Instead, what the the the legislature was concerned about was if you have a tract on January 1st, 2019 you can't also have a dwelling on on that tract. Even if even if you even if the applicant is proposing a dwelling on another parcel in that tract, if that tract has another dwelling you you have to look at that tract. You don't get to deed shuffle. You don't get to say cuz prior to the statute you prior So is that what the double dipping is? It's looking at the tract and saying if you divide the land, if you create new properties that then could be qualified for a forest template dwelling you have to look at the whole picture of the tract and you can't do that as of after January 1st, 2019. And I think what you're arguing and what what the petitioner's view of this is is there's also an opposite side of that where you can't add parcels together to create a new tract that would then be qualified for a forest template dwelling. Your argument is H is going towards the first scenario and not the second scenario. Correct. And the the legislature actually they contemplated what petitioner is advocating and advocating and they rejected it and we cite that in our brief about how Mr. Representative Helm wanted to have that stricter snapshot. Like basically, you can't go create a tract that then qualifies the parcel for a forest template dwelling. The legislature specifically rejected that policy issue. Okay, so then in terms of double dipping is shorthand for the purpose of what subsection H is getting at. >> Yes. It's not necessarily irrelevant for our analysis because we need to figure out what is H getting at. Yeah, H is getting at the fact that if you in 2000 in January 1st, 2019, you take a snapshot. If there is a a a tract and that tract has a dwelling on it as of January 1st, 2019 or or no dwelling exists or has been approved on another lot or parcel that was part of the tract you do not qualify for a forest template dwelling. It doesn't say anything about afterwards if there's a it doesn't say anything about our situation here where the the parcel isn't a tract. It's just a parcel and they afterwards acquire a a property that is a legal lot or parcel that doesn't have a dwelling on it to to move the centroid. That is a policy decision that could be tackled by the legislature, was not tackled in 2025. >> And you're saying the legislative history reveals that the legislature was aware of this problem and chose not to address it. I think well, I I don't think it's super explicit. I don't think it really I don't think the issue was directly on point at the legislature. The legislature was looking at other things. And citation to Jeremy Keepers, Jeremy Keepers was is not a legislator. Uh and he's not an and he's not an attorney. So, I don't I don't give any stock to Jeremy Keepers' legislative comments. Okay, we're getting to the close of your time, so I just want to make sure there any questions the board members on this. Okay, so if you could wrap up in the last 10 seconds. Want to say anything? >> Sure. Sure. State v. Pierson states that reading the statute to the contrary would require omission of words that the legislature chose to insert. And the Supreme Court under State v. KP 32401, we may not omit a part of the wording of the statute in our interpretation of it. Instead, we are to give effect to all of the all of that wording. essentially what petitioners are asking Luba to do is to omit that if, don't give it conditional meaning, and that is the Not only is it incorrect under uh PGE and Gaines and 174010, it's also the incorrect interpretation of the statute. Thank you. Uh we'll return to petitioner for your 1-minute rebuttal, petitioner. Go ahead. Mr. Reader, discounting the testimony of Mr. Keepers cuz he's a non-legislator, he's a non-attorney, but he cites McKenzie Bowerman's testimony as indicating the purposes of what's going on here. Again, a non-legislator, non-attorney. Uh a lot of the sites that the respondents in appendix and excerpts of regular difficult because it actually omits all even pages page numbers in there. I only have odd page numbers in my um my copy of the interveners' brief. Uh The other issue is that there we know there's a clear determination about stopping this deed shuffling that's going on in order to qualify for a template dwelling, and that is exactly what Mr. Reeder said occurred here. That that is an admission that that these people deed shuffled in order to get a template dwelling, and that is exactly what the legislative history says not to do or was to hopefully be prevented by this statute. Um as for the double ifs, I'm not saying omitted. Um my interpretation exists with one if or two ifs. The problem is no one's um put together any sort of meaningful or significant notion of what the second or first if does. Um the respondents' argument would still exist because if you took away one if because it would still say if. They would still argue that, you know, subsection H is a conditional statement then. Um I say it's redundant because it actually is redundant. They're using two things right in a row. The the real issue is what is the meaning behind that redundancy. The hearings official never attributed anything specific to that, and and and neither to my knowledge has um intervener here except to say that it it it results in some sort of interpretation that that um conflicts with our interpretation of it being three times >> Thank you. That we've exceeded your time for rebuttal, so I will stop you there. And um we will get to wrestle with the double ifs in our decision. So, our decision in this matter is uh the statutory deadline is May 13th. Uh we'll ask the parties in advance to agree that we issue our decision no later than June 3rd. Is that okay with these parties? No objection. Thank you so much, and have a good remainder of your day.

Summary: Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Luba number 2025-080, Land Watch Lane County versus Lane County. I'm Board Chair Zamudio. Board members Basham and Wilson are also present. Please mute your audio when you're not speaking. That will help us our recording. Thank you. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention? Seeing shaking heads, no. No, thank you. Oral argu…


OA 2025-053 Eisenberg et al v. City of Ashland
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=0adkobBMQF4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning, everyone. Just wait 1 minute till 11:30. Get started. Good morning. Right. Good morning again. This is the time set for oral argument in Luba number 2025-053, Eisenberg versus the City of Ashland. I'm Board Chair Smudio. Board Member Wilson is also present today. Board Member Basham is not present and will not be participating in the decision in this appeal. Uh, please mute your audio when you're not speaking. That will help with the recording quality. And I'm not aware of any pending motions in this appeal. or there that the parties need to bring to our attention. I don't believe so. Okay, thank you. Nothing from the parties. So, oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? I would like to reserve 5 minutes, please. Thank you. Yes, of course. And I will keep track of time and ask that you keep track of your own time, too. Just so you know, the clock, which is really out of view on our screen today, is not there for specific timekeeping purposes, but just for reference. An intervener, you'll have a total of 15 minutes for your response. And again, I'll I'll keep track of time and ask that you keep track of your own time, too. Be mindful of that. So, with that, petitioner, please state your name for the record and begin. Do you want me to list the petitioners? No, go ahead. Just just you and go ahead. Thank you. Thank you. Good morning. Uh Petitioners already think articulated their position fairly clearly in the both the petition and the reply briefs, but I just want to touch on some key issues on appeal and then, of course, answer any questions that the board might have. Uh first off, on addressing the first assignment of error, um the that decision, well, the decision overall was was in fact made by the planning commission and not the city council. And as the board well knows, it does not have to defer to interpretations of local land use regulations that are made by a planning commission under the Gage v. City of Portland decision. But even if this was a city council decision, it wasn't a I mean, the LUBA can't defer to an interpretation that's is simply inconsistent with the express language or purpose or or policy. And in this case, I think we have shown on a number of points that the decision does violate the Ashland land use ordinance by allowing some development a residential development on unbuildable slopes where there is otherwise adequate building area or buildable area on the subject property. is very clear. It says, "No development shall occur or or all development shall occur on lands that defined as having buildable area and slopes greater than 35% shall be considered unbuildable except as allowed below. Um exceptions may be granted to this requirement only as provided under subsection H. An an exception wasn't sought under subsection H. Um rather, the the commission, despite the fact that the map that was provided, the topographical map, shows most of the site is actually less than 35 and there are areas where certainly a buildable uh residence could have been placed or shrunk down to conform with the 35% uh requirement. Um and but that didn't happen here. The applicant did not seek an exception under subsection H. Instead, the city approved the the the site plan and and well, and the application based on its finding that the uh subject property, and I'm quoting from the record at seven, um does not have adequate building area of less than or equal to 35% when considering the need to minimize broader disturbance by limiting development of the site to an area as near the existing driveway location as possible while also providing for site access and vehicle circulation. But that that qualifying language isn't in the code. And so, what the commission did in effect was insert language that it isn't there. I mean, the city council could amend its code to include that type of exception or consideration, but it hasn't done so. And and in in a quasi-judicial proceeding, um the commission is simply not in a position to interpret the in code. >> What? So, I mean, the phrase adequate is uh I'm curious how adequacy of the buildable area is determined by the city. First of all, like what do you think is the proper way for the city to determine what adequate buildable area is? That's my first question. I'll have a follow-up depending on your answer. >> Uh sure. Well, it's a good it's a good question. I mean, adequate is certainly would suggest the building itself with, you know, sufficient bedrooms and kitchens and whatnot to accommodate a single family need. Um but here, the the the adequate building area, I mean, could have been with actually even maintaining the same square footage of the of the home itself into areas that were less than 35%. Um I mean, if you look at I think it's page 12 of our brief, there's a map that shows the site with all the various um slope percentages on it and clearly uh there is plenty of area that is less than 35%. Um but they but the applicant chose to place the building footprint along with the terraces, the swimming pool, the patios, etc., um which are another assignment of error, um and not not building in a in the strict sense of of the residence itself on the areas that include the 35% slope, notwithstanding the fact that they could have relocated that or shrunk it to an area that did not violate the the plain language of the code. So, if I understand your answer, adequate buildable area can and should be interpreted with reference to a specific building plan. So, the applicant can decide, "I want a 5,000 square foot building or I want a 1,500 square foot building." This criterion can shift determine on the specific building plan that's in front of the city. >> Absolutely. I think that's a that's a fair um And then, your argument is that you have to take that building plan and look where else on the property it could be located. And if it can be located where there's not steep slopes or the 35% slopes, then the city has to require that. That's right. Yep. Yep. Um and here that could have occurred and but they but the city didn't do that based on its on its its insertion of this need to minimize broader disturbance and locate the the building next to the existing driveways for site access and vehicle circulation. Well, okay, but those aren't criteria. Those aren't standards by which you can violate the 35% minimum. Um but I think I think it sounds like the the board understands the argument. So, um I will I will interject that there isn't substantial evidence to back it up, either, because of that. Uh Why why couldn't they have done it? Um there's no finding that really explains that. Second of assignment of error that I'd like to um focus on is the flag lot exceeding the 18% maximum grade. Um the the variance language allows for no exception beyond the 15% except for the 18% absolute minimum lots that are of this nature. So, here it's pretty clear that the slope of the driveway averages 24% and and again, that's an average. There are portions that exceed 30%. Um so, there simply isn't a basis for the city to variant apply a variance to the variance the maximum specified by the code. And because the commission failed to provide any valid justification for this exceeding this significantly exceeding this maximum variance, um this decision has to be we argue remanded or reversed because there's simply no evidence that would allow for a an exception to the exception, if you will. Um the city also ignored its 200-ft maximum driveway limitation. Um there's no doubt that the driveway exceeds 200 ft, which is why they've sought the variance. And here, the um there's not adequate findings to justify anywhere in the decision how how that um proposed variance to the maximum length of the flag driveways is consistent with the non-negotiable cap of of 200 ft as set forth under Um I see that I'm I think at my 10 minutes. Is that No, you've got another minute in your 10 minutes for your primary argument if you want to continue. And if board member Wilson has any questions, I'd encourage him to ask them now. Yeah. Yeah, yeah, Mr. Sherlock. If we agree with you that the the slope is greater than 18% and that and variance is not allowed, do we need to reach the fourth assignment of error where where you go through the the variance approval criteria? I I think it would be there are there are well, the fact that the I don't think so. I mean overall, but I would argue that the conditions that were discussed in the in in that assignment of error, the city's failure to well, and the applicant's failure to address the relevant criteria might be worth taking a look at that. Because we do feel like there it's a somewhat of a different argument, although clearly related because it's the variance, but overall I I Commissioner referee Wilson, I I think it's I think you're right. I mean it's generally if this if this assignment two is sustained pretty much answers the question as to whether that can be whether it can be allowed. So. Okay, thank you. >> the remainder of my time for rebuttal. Thank you. You will have 4 and 1/2 minutes for your rebuttal and we'll turn to the intervener for your argument. Intervener, please state your name for the record and begin. I Chris Hearn 515 East Main Street, Ashland for intervener respondents Brian and Stephanie DeBoer. We disagree obviously. We believe the planning commission's findings found on page 7 through 9 and 10 through 12 of the record have reflect substantial evidence supporting the variance granted and the other aspects of the criteria necessary for the application to be approved with the conditions that were applied. Um With regard to the first assignment of error, the commission found the parcel does not have adequate building area under the 35% slope when considered in the context of access and minimum site disturbance. This is a pre-existing legal lot created in 1996 not by the applicant. It was approved by the city and platted. And on their city's buildable lands inventory having it buildable, you know, supports needed housing. And the slopes have to be considered in the context of minimum site disturbance. Located where it is on a very steep lot, it's located in the bottom quadrant of the parcel. That's all the slope analysis reflects anyway is that area. And by being located at the end of the only feasible driveway access, it results in minimum site disturbance. Which is critical to what the petitioners propose is that you could drive you could excavate the driveway further through the 35 plus percent slopes deeper into a patchwork of 27 to 30% slopes and overall you'd have greater site disturbance than you would if you located the residence and building pad down at the corner of the parcel where it meets the driveway. Also, the public benefit associated here is the condition offered up by the applicants of providing that long sock trail easement. And that pulls the home furthest away from the trail easement located in the upper portion of the parcel. The planning >> your argument. Your overarching argument is that adequate buildable area allows the city some discretion to consider things like overall site disturbance, easement usage Agreed. I mean I think the interpretation made by the planning commission for both the variance criteria and the to the extent they apply the hillside development standards was appropriate under these circumstances. Those standards are supposed to take into account or the whole physical and environmental constraints portion of the code is if you look at the purpose and intent is to find ways to mitigate sites which might otherwise be unbuildable due to the topography and and other issues and allow you know, some give and take to allow those sites to be buildable within the confines of the code. A L O U 18.3.10.090.8.11A is within that under that purpose umbrella is what your argument is. I'm trying to understand your argument is specifically with respect to the language of this criterion. I understand your overarching argument, but I'd like to focus on adequate buildable area and what that means. And I think I understand your argument is that the city should look at all of the things when they're determining what is adequate buildable area, whereas petitioners argument is under the slope steep slopes provisions, they should the city should only look at is there another area that avoids a 35% slopes. So there's a very >> I I think the interpretation here is you look at the topo maps that were submitted by both sides, which only are again that that lower quadrant of the property, not the entire property, which is extremely steep in the upper part. Yeah, there's some patches of 27 to 30%, but to get to those you'd have to excavate the driveway further into the parcel resulting in much greater site disturbance. So that's that's our argument on that. Um We think the findings of course are supported by adequate evidence. Second assignment of error, there's there's just a factual disagreement. The driveway was measured by our engineering staff at 197 ft. The petitioners, they claim it they claimed it was over 200 ft. That's just a factual controversy. Evidence on both sides was submitted. And using the substantial evidence rule, it was reasonable for the planning commission to to choose the 197 ft rather than the 200 ft. It's a difference in in you know, measurements provided by two opposing sides. And that's just a conflict in the evidence. It's not a a lack of application of the criteria on the part of the planning commission. What is the what is the finding on the average grade? I think it was 24% and I I say that by the way on page 32 of my brief, there was a typo that was pointed out by petitioners on page 17 where I said it was 15.23. That was meant to be 24%. But I mean that's the whole reason for the variance. I typed it >> only allows up to 18%. So why if the fact is that the grade is 24%, why does that not negate the ability for the city to allow a variance at all? Cuz the variance standard allows up to 18. So if the fact is that it's 24, how can the city do this? Well, because the commission found the driveway is 197 ft in length with an average slope of 24% and that no feasible alternative access exists, which is an important part of the code. Those those driveway, by the way, those the driveway standards are directly under the new lots and partitions portion of the code. So if you're going in with a new lot or partition with a flag flag lot, you know, you can't show those greater slopes on the driveway, but we're talking about a pre-existing >> allow for an exception for a pre-existing lot so that this variance to criterion does not apply? Um Where did the city apply that exception? Um Well, I don't know that it specifically has an exception for pre-existing, but it does the portion of the code that has a standard is no lot line adjustment. I believe it says no lot line adjustments or partitions shall be allowed unless the flag drive meets these standards. And you know, it was applied >> didn't find that this criterion does not apply. The city found that this criterion was satisfied, right? So those are two really different issues. If the criterion applies and it allows only up to an 18% grade for a variance, how can the city ever approve a 24% grade? I I think if it's a type one variance, that's true, but a type two variance I think can exceed that. Where in the city code Where in the code is that supported? 18.5.3.060 F allows for variance for driveway grades exceeding 15% provided the variance criterion 18.5.5 are met. And the length of the driveway does not exceed 200 ft. The staff report explains the proposed driveway configuration meets those criteria and the type two variance approval is therefore consistent with So 18.5.3.060 F is where I believe it is. Right, which provides no greater than 18%. So what you're arguing is that 18% cap doesn't apply because this lot preexisted the adoption of that code provision. I don't think that the city found that this provision doesn't apply. I think the city found that the variance is allowable. So, what's your argument that the city has authority to allow a greater than 18% grade even under this variance provision? Flag drive shall not exceed 15% grade. This is 18.5.30 of the F. A variances may be granted for flag drives for grades in excess of 15% but no greater than 18% provided the cumulative length that a bank commission finds the proposed driveway is via an existing shared access easement to utilize an existing long steep privately paved roadway. The proposed driveway extension to service subject property is 197 ft in total length and the terminus of the existing driveway has an average slope of 24%. And the commission found lot configuration, site topography, and existing driveway grade natural features constituted unique circumstances that prevented the lot the existing lot from meeting the standard. Um and that adjacent properties to the east exceed 15% grade average existing property grade before the driveway construction is 27% and there's no feasible area to mitigate the driveway grade configuration. Uh and the location to access easement so the commission found that no alternative driveway access was available. And that this is otherwise a landlocked parcel which would be undevelopable if a Okay, thank you. >> It sure looks like this the findings find that you need a variance but you can't get one but because it's there's no alternative means we're going to give you one anyway. Am I missing something there? Well, I think they found you know, it was an exception for a preexisting parcel that was approved prior to the adoption of the standards. How does that allow you to not have to meet the variance criteria I I I I can't tell you exactly. I'd have to circle back. Okay, okay. >> I I I think that the purpose of a variance for a preexisting landlocked lot that was created before the standards existed in the type two context allows a little more leniency if the if the other variance criteria are met. I mean, if the variance criteria are solidly met which they are in this case. Okay, thank you. And it's not a self-imposed situation. The partitions went through the variance criteria and felt this was self-imposed. If you look at the variance criteria self-imposed, it says for example, if the applicant had previously done a partition or lot line adjustment that created the situation. So, it specifies in the variance criteria code that an example of self-imposed would mean the applicant his or herself had imposed had led to the had done a lot line adjustment or partition which led to the And on the fire turnaround, petitioners are arguing there was no finding of feasibility that a turnout would satisfy the fire standards and you point to a an email from the uh fire marshal saying that all considered turnout design to Jackson County development standards. Petitioner argues that doesn't show that the fire marshal approves that or that it's feasible. It just shows that the fire marshal would consider proposal for a turnout. What's your argument that that is a feasibility finding or that is adequate to satisfy the feasibility issue? >> and the pool will be equipped for outflow to help suppress fire equipment. I mean, fire wildfire in the event that the that happens. Um The fire official, you know, said they'd consider that. I mean, it was adopted then as a condition of approval. There's adequate space for the Jackson County style turnaround which is you know, there's adequate space for the applicant to do that. >> Did the city find that there's adequate space for that or did the city just find we can wait for this until we are approving the site plan to have the fire marshal sign off on that? Um Petitioners are arguing there's no feasibility findings and that the underlying the city needs to make feasibility findings on this alternative fire Um I think that you know, the the fire marshal's submittal along with the engineer's report which I put down that there was feasible space that could be developed up there to do Jackson County style turnaround if necessary. Can you point to where in the record that that is or where the city relied on that? It seems like >> find that specific >> Okay, you don't have any Okay, so we are uh at your 15 minutes also. So, unless there's further questions from the board for intervener um just a couple sentences to wrap up your argument. Counselor Hearn. Um yeah, I mean, we believe that really if if you if the board focuses on pages 7 through 9 of the record 10 through 12 and looks at the planning commission's findings along with the record uh that there's substantial evidence to support the finding in light of the fact that this is a preexisting lot with no other access available in a very steep area of town that's you know, in the needed housing concerns for having a inventory of housing and and utilizing urban infill um to make lots developable when they're created historically. Thank you. Uh we'll return to petitioner. You'll have 4 and 1/2 minutes for your rebuttal, petitioner. Thank you. Just a few points here. One um there is nothing in the code that that carves out an exception um for preexisting lots. Uh You know, under the variance criteria um that would simply create a a rather um inconsistent application of the code to various development proposals given that there's plenty of lots in the city that are still vacant or subject to redevelopment um and there just isn't a there isn't a a isn't code language that would allow for um the board to um adopt the interpretation proposed by applicant which because it's just there's no there's no legal justification for that. Uh on the 200 ft length question, the city itself the city staff determined that the length of the driveway is {quote} well exceeds both the 200 ft limit and the 18% grade threshold based on the applicant's own materials and we cited that in our brief but it's at record 426 and at 415 um where I mean, the applicant the applicant admitted that the proposed driveway exceeds 200 ft in length which is why they sought the variance for that driveway length. There there wasn't just a variance for the the slope the steepness of the driveway. Um it was also exceeding the 200 ft and that's so, it's inconsistent now to say that well, we didn't uh we didn't have to abide by the the 200 ft crutch standard because it it doesn't it's not on 200 ft. Well, that's it is that's not what they say in in their application materials. It's not what's clearly indicated in the record and it doesn't make sense that they would have applied for a variance for that to that condition. So, what I'm hearing today is essentially the grade is 24%. That exceeds 18 the 18% cap. So, it can't be given. You've asked for a reversal based on this criteria. Is the evidence such that there is no way to design a driveway that would be under that 18% cap or it's just the driveway as proposed is not under that 18% cap? Uh we according to the applicant, there is no other way. >> the only way to get to this parcel. >> to get to that parcel. To the buildable area. Yep. And where is that in the record? Uh The The planning The planning commission found that that's why the planning commission approved this is because this is the only way to get to the buildable area. So, that should be in the planning commission decision. Yes, and I and I and I think I mean I think it's fair to say that that Mr. Hearn just basically conceded that in his argument that this is the only way to get there. Uh along this this I mean there's easements coming from from Granite Street and then um and then it's a straight shot up to the um the flag portion of the of the parcel. Um and so it's uh you know, I don't I don't I don't think the easements that are are in existence would allow for anything other at this point. Um that's not you know, I mean I suppose they could try and get easements from other access points elsewhere, but um at this Based on the record, uh I I think it's fair to say and I I My question is really about the proper disposition. If we agree that this variance criterion is not satisfied and you're asking for a reversal, I'm essentially asking what's your best argument that reversal is the best disposition here. And I think I hear you saying, "Well, maybe there's a different way to get there, you know." Maybe, but um I don't I don't I I think based on the record, there's no evidence um that I'm aware of that that shows there was any ability or attempt um to do anything other than this tr- attempt to slam through this this variance um of the 18% um because I I think that I mean there's certainly no findings to that effect in the in the decision. And there may be findings that this is the only way to get there. I believe there are. Um I I I think I think that is I don't I don't think that's disputed. Okay. Yeah. Uh any further questions from the board on this? Okay. Uh that does complete your rebuttal time, but since I gave intervener a couple of sentences to wrap up, I'll also give you a couple of sentences to wrap up your argument. >> Oh, thank you. Thanks. Yeah, there's no other >> intervener. No, no, I'm not inviting the intervener. I'm allowing petitioner to complete their argument. Thank you. Uh I I I I think I think we've we've set forth you know, our arguments um pretty pretty straightforward in our our plea our briefs. I think the board seems to have a uh pretty good grasp of the arguments and at issue. Um we would ask the decision be reversed um given that there's absolutely no way to avoid um violating the the variance statutes uh variance ordinance. Um both as far as the 18% in particular, but also the the 200-ft length. Um and and for the other reasons um that we set forth in our our petition, um at the very least the decision should be uh remanded. Thank you. Thank you. Thank you. Thank you for your arguments both of the parties um and for answering our questions. That will conclude oral argument. The statutory due date for our decision in this appeal is April 8th. Uh we'll ask the parties to agree to an extension so that we issue our decision by April 29th. Is that okay with these parties? That's fine with the petitioner. Okay, and I see a nod from intervener. Thank you for that and uh have a good remainder of your day.

Summary: Good morning, everyone. Just wait 1 minute till 11:30. Get started. Good morning. Right. Good morning again. This is the time set for oral argument in Luba number 2025-053, Eisenberg versus the City of Ashland. I'm Board Chair Smudio. Board Member Wilson is also present today. Board Member Basham is not present and will not be participating in the decision in this appeal. Uh, please mute your audio when you're not speaking. That will help with the recordin…


Oral Argument 2025-081

Oral Argument 2025-081
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=aNDwbwkVw3I). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Northwest American Indian Coalition versus Curry County Luba number 2025-081. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking, which will help with our uh recording. I'm not aware of any pending motions. Do the parties have anything to bring to Nothing for me. Negative. Negative head shaking. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Um yes, I'll plan to reserve around 3 minutes. Okay. Um I'll keep track on my end, but ask that you also keep track yourself and just note that the clock that is on the screen is not keeping exact time. And intervener, you also have a total of 15 minutes and again, I'll ask that you keep track of your own time. So with that petitioner, please state your name for the record and begin. Good morning board members. My name is Kelsey Dunn. I'm an attorney at Crag Law Center in Portland, Oregon. I'm here representing petitioners Northwest American Indian Coalition, Oregon Shores Conservation Coalition, and Dr. Diane Hennessy Powell. I plan to begin with petitioners interpretation arguments in the first two assignments of error and we'll cover the rest of our time at the end. Petitioners first two assignments of error address the county's approval of the RV park in the marine activity zone and shoreline overlay zone respectively. The county conditionally approved the RV park in the marine activity zone as a water dependent use and in the shoreline overlay zone as a water related use. The crux of petitioners argument is that the county's interpretations of both water dependent and water related are contrary to and prohibited by the text of the code and state law and that because these interpretations form the basis of the county's approval of the RV park, petitioners position is that reversal would be appropriate. As a threshold matter for both assignments of error, petitioners argue that the county's interpretation of these provisions are not entitled to deference under ORS 197.829D because they implement or appear to implement the water dependent shorelands protections of goal 17 and its implementing regulations. Regardless, the interpretations are contrary to the plain text of the ordinance itself and are not owed With respect to the first assignment of error, the county's interpretation of water dependent cannot be squared with the text of the ordinance or the state law it implements. Both the ordinance and the state planning goals define water dependent as quote a use or activity which can be carried out only on, in, or adjacent to water areas because the use requires access to the water body for water-borne transportation, recreation, energy production, or source of water, end quote. It can also include non-water dependent uses that are in conjunction with and subordinate to a water-dependent use subject to several additional restrictions. So, I just want to pause there. That definition that you just quoted, where does that come from? That comes from the statewide planning goals um definitions in we provided a link to the uh document that contains all of those, the 2019 guidelines. Um that definition also has been frequently cited by Luba in cases that deal with this question of what a water-dependent or water-related or non-water dependent use is. Um and then that definition also that identical that definition is also in the Curry County zoning ordinance at Okay, so can you walk me through your argument that the county is not entitled to deference for their interpretation of their local code definition, why this is So, for the interpretative um question of whether the county is owed deference, Luba has previously looked to whether the code implements or appears to implement the statewide planning goals. And so, I'd point to Oregon Shores Conservation Coalition versus um Curry County, that 51 OR Luba 500 case um that looked to that language and found that where it appeared to be implementing the goal 17 definition of water-dependent, um the county was not owed deference to that for its interpretation of that provision. Um I would also point to White Fe Lane which which um pointed out that even where the county didn't specifically intend to implement state the state wide planning goals or other state law um but it appears to implement it then uh then the county or the county or the local government was not owed deference and here um petitioners point to places in the comprehensive plan where it's clear that the marine activity zone is intended to implement these shore land protections and that was um uncontested in the response from intervening respondents. Additionally, we point to just the fact that these definitions have exactly identical language which is different from in the case of White Fe Lane where in some of these other um situations where there were slight differences in the definitions, we don't even see that here. Is there um statutory or rule based direction on for DLCD to adopt the guidelines and what their import is in our interpretation of the guidelines? I am not aware um of that. I wouldn't be able to respond to that right now. Um but I think I would step back and just say that really for this question of deference the issue of whether what the issue of whether um the planning goals or the state law here is directly binding on the county isn't what petitioners are arguing or really what the relevant analysis is. This is just whether the county is owed deference on its um interpretation. It's just kind of that threshold question. Thank you. Um So I would then point to the goal 17 at regulation regulations which do include a few specific definitions of terms within that definition that help narrow in on what exactly a water dependent use is. Um it states that requires is defined to mean that quote either by their intrinsic nature or at the current level of technology the use cannot exist without water access. Access means quote physical contact with or use of the water and quote. And recreation means water access for fishing, swimming, boating, etc. where quote use of the water is an integral part of the activity and quote. In essence a water dependent use must by its intrinsic nature require physical contact with or use of water to exist. And in Oregon Shores versus Curry County Luva confirmed that the state regulations define recreation and access in a manner that establishes water dependent uses must require access to fit access to physical contact with or use of the water areas. In the challenged decision the county interpreted water dependent in a way that essentially erases all of that restrictive language. Specifically the county found that the RV park is water dependent because it directly supports water related tourism activities and amenities that themselves require access to the river but nothing that about how the RV park use itself does. The county also basically overrode the definitional criteria by interpreting that the rebuttable presumption in the definition of water related applies to the analysis of water dependence and that functional dependence was sufficient to rebut that presumption even though that term appears nowhere in the code or state regulations. The county's interpretation of water dependent uses is incompatible with the text of the local ordinance and state law because it evades those most restrictive limiting criteria including the requirement that the use can only be carried out on, in, or adjacent to water. Instead, under the county's reading, any use that could gain some advantage from being near water, or that purports to target water-based tourism, could be designated as outright water dependent. This goes to a key flaw in the county's interpretation, which is that it looks beyond the requested RV park use itself to consider other existing uses on the site. And by doing so, the county conflated water dependent uses with non-dependent and water-related uses, both of which apply to uses that themselves do not directly depend on water areas. If the county's interpretation is correct, then the non-water dependent use category and the water-related category would be meaningless. All uses that could be tangentially connected to water recreation could be approved as water dependent. The second assignment of error follows the same logic. The county's interpretation of water related cannot be squared with the context of the ordinance or the state law it implements. Both the ordinance and the state planning goals define water related in a an identical way as uses which are not directly dependent upon access to a water body, but which provide goods or services that are directly associated with water dependently and or waterway use, and which if not located adjacent to water would result in a public loss of quality in the goods or services offered. The definition also identifies several categories of uses that are presumed non-water related unless rebutted by a showing of necessity. The county interpreted water related essentially the same way it interpreted water dependent, finding that any use which supports river-based recreation or is aimed at serving water recreation tourists cannot be equivalently accommodated on an upland site, and therefore must be designated maybe designated as water related. However, the county's interpretation is incompatible with the text of the code and state law implements. Among other inconsistencies petitioners raised in the petition for review, the interpretation ignores the first clause of the definition that water-related uses do not directly depend on water access, but also fails to reconcile that it found that the use was water-dependent for purposes of the marine activity zone. It also ignores the requirement to show necessity in order to rebut the presumption that RV parks aren't water-related, instead interpreting that support or enhancement of water-based recreation is enough to overcome the presumption. And finally, it ignores that the goods or services relevant to the definition are those directly associated with the requested use, here the lodging services provided by the RV park, not services provided by other uses or amenities on the property. Under the county's interpretation, any use that is at all related to water-based amenities or branded for water recreational tourism could be water-related. As with the county's water-dependent interpretation, the county's interpretation of water-related vastly expands the uses that could qualify beyond what is expressly contemplated in the text of the ordinance and state law. So, overall, for the reasons that petitioners have stated in briefing and in argument, the county's interpretations of water-dependent and water-related are prohibited by the plain text of the ordinance and by the state law it implements. And because these interpretations form the basis of approval of the RV park in their respective zones, um petitioners would argue that reversal is appropriate. And and I understand your argument to be this RV park doesn't qualify as a water-dependent or water-related use. Is there any version of a water-dependent facility such as a marina or boat launching ramp facility that could include a component of an RV park as a component. Um so as petitioners were about to describe in the reply brief, that sort of reasoning, which I think comes up in the response brief, um sounds a lot more like a non-dependent non-water dependent use that maybe could be approved in conjunction with or subordinate to a water dependent use like a marina or a boat launch if it addressed and complied with those additional criteria for non-water dependent uses. Um Does that answer your question, sir? Okay. You're good enough. Thank you. No further questions from the board? Okay, thank you. We'll turn to intervener for your argument. Please state your name. Hey, good morning. Garrett West on behalf of the intervener. First of all, loving the new background where you're all sitting, so that's a lot of fun. For this, you know, I wanted to start with the deference issue and like the the definition that's in the guidelines that DLCD published. Um you know, maybe I'm making a silly argument. I had never heard of these definitions in the guidelines or or the handbook that petitioner kindly put in the in their brief. Um And so I felt I was just a bit confused with with where the the train of logic was going. Um and then I I tried to dig, you know, into whether these had been promulgated by DLCD at all. Um and I had I wasn't able to find them. Uh and so that was kind of like the first, I guess, gloss on where I was going in my brief of if they're not promulgated by DLCD, I can't find this definition holistically in statute, you know, this looks like it was promulgated by the county. Um and you know, I I said in my brief, you know, it kind of looks Frankenstein's. They grabbed something over here talking about some examples of water dependent use and they put that in their own definition. Um so it it just seemed to me that, you know, the county made uh a legislative promulgation with this definition uh trying to fill kind of a gap in state law. Um and it makes sense that this would be entitled to deference. Um you know, as to petitioner's point that, you know, this zoning is trying to implement state law. Yeah, I mean, the the zoning is trying to implement the goals. Uh a lots of zoning around the state are trying to implement the goals. But when we get like certain narrowing downs like this definition and how the local government's trying to go about making their policy, that's kind of where the nuance of the argument is, I guess, that uh they were the ones saying, "This is the definition we're going to use locally." Um and as to the the argument that um you know, the the county used the term, you know, functional dependence when they're engaging in this kind of interpretation of the code, I didn't really see a big gap between, you know, needs access and functional dependence. Um you know, throughout their findings they talk about need and the access and being close to the river, you know, repeatedly. Um and when I looked at functional dependence, I just interpreted it as, "Okay, guys, in real life, like is this actually go Does this need to be near the water?" Um and so that's that that was kind of the analysis that I interpreted the county was engaging in. Um when we're looking at the proposed use holistically, um not just are people going to be sleeping in, you know, these RVs nearby, but what's going to be going on here? Do they actually need to be near the water? Uh and that was the factual finding that the county made. They said, "Yeah, you know, not all RV parks are are going to meet this definition, but this one does because of uh just the the components of it that are that are being put in." Um you know, I cited that Shamrock case in one of my footnotes, um and I forgot to put it in the table of contents. So, my apologies on that. But, that Shamrock case kind of interpreted a similar set of circumstances in which it said, you know, not every you know, not every bridge is going to be water dependent. But, some bridges are. And I think the kind of same logic flows here. Mr. West, how do you respond to the petitioner's argument that if you can use this this interpretation that that pretty much any use could be related could be rendered water related by claiming it's marketed towards water recreation tourism. Is there any limiting principle on that? Well, yeah. I mean, you still have to there still has to be an attenuation to water. I think there's lots of uses that just would never fit in here. But, yeah, it's I think it comes down to the analysis, right? Are we doing a factual analysis about how are people going to engage with the water? Right? If if people are No one's going to go to Gold Beach, honestly, to just hang out in RV away from away from the water. Gold Beach's draw is the water. That's what people want to do there. It's like the big thing they've got. And so, I don't think it destroys the goal. Maybe that's the kind of the line of inquiry like, will this destroy the goal? The goal in my mind is we want to set this area aside so that the water is made use of. It's just not an afterthought. And that includes the recreation, right? That's specific in the goal. We want people to recreate with the water. And that's that's what this does. So, I hope that kind of answers your question about, you know, limits and what kind of analysis that we're hoping to engage in. Yeah, okay. Thank you. Under the county's theory, why couldn't a motel or hotel be water dependent use? I think it would be coming to the close being close to the water. I think it's more than just being close to the water, right? When we have the the boat launch, we want to have facilities for fishing. Like it needs to engage with the water more than just being like it's over there and we're close by. Um, so you know, just having a hotel there, that's not going to cut it. The hotel needs to have additional amenities to have that kind of engagement. And if I understand correctly, the boat launch here is concrete slab that you can launch a kayak on? Uh, that's my understanding. I haven't been down to it myself to give a better description than that. And is there a fishing pier or people just fish along the shore? Yeah, so what we have an embankment. It's a pre-existing embankment. It's kind of like a wall that's on the shore. So where you just basically it just drops off into the water. And so you know, it's not pretty, right? This is a used to be an industrial site, but this is right like the water is right there. So I could Why couldn't the uh tenants of a motel room just walk down to the water and and fish from the bank or launch their kayak from the bank? How's it different from this proposal? I mean, I mean they they they could go down and launch it. I mean if the facilities were provided there, right? So if it's just a hotel with nothing else, yeah, you're not going to meet the standard. But if you're getting a boat launch, if you're going to have areas for fishing, engaging with the water, I think that overcomes the test and really gets to the goals reasoning of hey, we want people to engage with the water and have water recreation. So, yeah, a motel with just a giant wall next to the water, that's definitely not not going to cut it. Um on the water related front, I think there's you know, an argument from petitioners that oh, well they said it was water dependent over here and over here they said it was water Um, you know, thinking back in my brief, I should have done a diagram where I considered water-related to be a big circle, and inside that circle you have water-dependent. So, if you're water-dependent, you're automatically water-related in my mind, but not vice versa. Um, and I, you know, the county had already made the determination that this is a water-dependent use. And yeah, they went out of their way and they said, "But, hey, let me tell you why it's water-related as as well." I didn't think they needed to do that, but they went ahead and did that. Uh, that's kind of how I was was interpreting their findings with that. Um, so, and then on the the trailer park issue, I I do want to, you know, just briefly touch on that. Um, there's not a categorical prohibition on having RVs in this area. The the the language in the code is much more nuanced than that. You know, and it talks about, you know, generally an RV park isn't going to satisfy the standard, uh, and things along that nature. And with the the county interpreting that as a rebuttable presumption, I think that makes sense. Um, you know, generally this isn't allowed, but if there's factual findings that show um, why it could be, then then that that meets the standard. Um, so, hopefully I've conveyed like the holistic uh, understanding of kind of what the the proposed use is uh, for the site. Uh, if you have any questions, I'd be happy to answer them, but otherwise Thank you for your argument. No questions for intervener from the board. We will return to petitioner uh, for Thank you. Um, so, to start first again with the deference question, um, we do think that in the petition for review we've articulated the correct analysis that something that appears to implement um, state law that does implement or appears to implement state law um isn't owed deference, but I would also just um flag again that we also make the argument that the county's um interpretation is just inconsistent with the text of that definition itself. I think that's why the analysis in the um petition for review just sort of get collapsed in that way because a lot of the same textual arguments apply under both um standards and we also do uh make that argument in the that that this uh interpretation is just impossible under the scoring standard, so I would point the board to that point um and then second on this issue of is this a categorical exclusion? What What are these definitions really trying to do? Do they set up um kind of this case-by-case analysis or is it about categorical exclusions? Um we would argue that both the water-dependent and water-related definitions do identify categories of uses that generally aren't going to meet those standards. The Goal 17 regulations at OAR um 3740 do actually say at 6C that there are uses such as hotels, motels that just aren't going to be um water-dependent. And then in the water-related definition, it also sets up this these categories of uses that generally aren't going to be presumed um water-related uses. So, we think it is kind of appropriate to look at it at the use level and at the sort of categorical level as petitioners have outlined outlined in their briefing. And finally on sort of what the scope of um review scope of analysis in terms of uses on the site would be we would ask LUBA to look really closely specifically at the RV park use itself. That is how the water-dependent and water-related um definite criteria set up this analysis. They are looking at the proposed use, not sort of all of the uses on the site taken together. Um and I would point to Oregon Shores versus Curry County again, where Luba was asked to review a decision um approving a large project that involved many uses across multiple phases and see if it met the ratio test. And to do that, uh Luba had to look at each use requested use on the site and see if and determine whether it was actually water dependent or non-water dependent, even though it was in one proposal. So, when we're looking at these designations, the appropriate um level of analysis is each use itself, not sort of this like general overall picture. If we were to sustain the first or second or first and second assignments of error, what does that mean for the remainder of your assignments of error? Do those need to be decided or would those um go away? Those would not need to be decided. Those are in there for if Luba um finds it more appropriate to remand this decision, um those are other inconsistencies, conclusory statements, issues of inadequate findings that would be um appropriately covered in the scope of a remand, but if the first two are sustained, I don't I don't know that they would have to be um decided, but we would ask we petitioners would request that if the board does go in the direction of remand, they would consider um consider those. Okay, and then in terms of the requested relief of remand versus reversal, what is your argument for reversal? The argument for reversal here is that um if under the correct interpretation of water dependent and water related um and the undisputed facts in the record, which again petitioners haven't really disputed, that evidentiary issue, um petitioners' argument or position is that the RV park couldn't be um approved, couldn't meet the approval criteria that is outlined in the the first sections of both the first and second assignments of error, and I would point to the McKay case it from 1992. Okay. Thank you. Any other questions? No. Okay. Uh that will conclude oral argument. The statutory due date for our decision in this appeal is May 5th. We'll ask the parties to agree to a 21-day extension so that we issue our opinion by May 26th. Is that okay with these parties? Yes. Yes. Thank you. Uh have a good remainder of your day. Thank you.

Summary: Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Northwest American Indian Coalition versus Curry County Luba number 2025-081. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking, which will help with our uh recording. I'm not aware of any pending motions. Do the parties have anything to bring to Nothing for me. Negative. Negative head shaking. Thank you. Oral argu…