OA 2026-029 Schirmer Consulting, LLC v. City of Eugene
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=O6lgM8UXMFg). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. Still a little bit of the morning left here. This is the time set for oral argument in Luba number 2026-029, Shermer Consulting versus the City of Eugene. I'm Board Chair Smudio. Board Members Wilson and Basham are also present. Uh please keep your audio muted when you're not speaking. That will help with our recording. And this oral argument is being recorded and live streamed. Pending matters that we have are the city's motion to dismiss, responses to that motion, and a motion to strike, and a motion to take evidence that are pending. Um we are planning to suspend this appeal so that we can resolve that jurisdictional issue, recognizing that there's some time for the city to respond to those motions that we've recently received, and so we will be issuing an order uh suspending this appeal so that we can resolve that jurisdictional issue, which we may do together with the merits, depending on how we um land with that. So, just wanted to let you know, expect that order coming out. Um 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? >> 5 minutes, please. >> Okay. Uh I will keep track of time here and ask that you keep track of your own time, also. And uh respondent, you will have a total of 15 minutes for your response, also. So, with that, petitioner, um please state your name for the record and begin. >> Thank you, uh members of the board. I'm Bill Kloos on behalf of the petitioner. It's always nice to be back. Um this um started out as a humble little single-issue uh case that then got consumed in a big dust-up over jurisdiction. Um um things are never as Never as simple as you think they're going to be. Uh as for the uh jurisdictional point, um I I kind of did things backwards uh inadvertently. I think the most significant filing I made on jurisdiction was my supplemental. Short short supplemental um um memo on jurisdiction, wherein I just looked at language that was on the face of the city's form for filing for a lot validation. And we all know lot validations are those miracles where you start with the benefit of the statute, you start with an illegal lot, and you come out the back end of the pipe with a uh a validated legal lot. And uh the point is you have to go into the pipe. You have to go into that process with an illegal lot. And the city's form for filing for a lot validation says on its one of first of three pages, "By the way, folks, uh you have to start with an illegal lot, and one of the ways of proving up on an illegal lot is you can go get a legal lot verification from the city, and come out of that process with a determination that you don't have a legal lot. And that qualifies you to then file for one of our lot validations. Now, the city's position, if I understand it correctly, in the um jurisdictional uh briefing, is that the lot validation process at the city um uh is a does result in a land use decision, >> [clears throat] >> but the legal lot verification process at the city does not result in a land use decision. It is just an informal discussion between friendly staff and a curious property owner, which is then reduced to a memo, which looks a lot like a land use decision. Um so, the city's drawn that distinction. This This is saying these are really two different things. You know, legal lot verification, not a land use decision, get out of here. You don't belong in the loop. Uh lot validation, now that's a lot land use decision. The point I make in my supplemental memo is which is actually shorter than my discussion here. [laughter] The point I make in my supplemental memo is that there's no difference between um the legal lot that verification process and documents and the um lot validation process and documents. Neither one of those processes is explicitly provided for in the code. And yet um they both have application forms, they both require fees, they both result in uh decisions by the city. Call it a memo, call it a decision. Um and uh you know, both of them apply the law. Um and so our point is that in the supplemental memo is that right there on the face of the lot validation form, the city is basically conceding that the legal lot verification process and the thing you get at the end of that process, whether it's call it a memo, um call it a spear, call it an arrow, the thing you get at the end of that process uh is something that you can take into as a starting point uh of the um um lot validation process. That makes it a land use decision. Now, uh the bulk of our briefing on the jurisdictional matter, all the bulk all basically all of our evidence, 90% of our evidence that we submitted in support of jurisdiction consists of documentation on three other applications, three other decisions. Um one was a property line adjustment, one was a um uh standard partition, and the third was a middle housing land division. Now, each of those applications, uh as we document the code, requires you have a legal lot to start with. Um none of those action those decisions that we've given you uh partition, property line adjustment, or uh uh middle housing land division, none of those actual decisions addresses the question of whether or not the applicant is starting with a uh legal lot. And the reason for that is logically um we've also given you for each of those few little mini case studies a copy of the legal lot verification that the property owner >> Those legal lot verif- Sorry, Mr. Close. Were those legal lot verifications that you put in the motion to take out? Were those also in the record for those three cases? I couldn't quite tell. >> No. Uh, in one case um I believe it was the property line adjustment. Could be wrong. Um, the um hard copy of the city's uh, property line adjustment decision references at the top on the front page other related decisions. And that listing of other related decisions identifies the legal lot verification associated with that property that came before. The other two >> on that. >> Pardon? >> It's clear that it's relying on that legal lot verification. >> Well, I don't know that. It's It's listing it as a um You really can't tell. Uh, it's listing the legal lot verification as a decision with a number that's related. Now, my point uh, in the kind of extensive briefing on that was that if the city's making just a decision on a partition or a property line adjustment or middle housing land division and the code says all y'all got to start with a legal lot. Um, and it And we've cited the the the the code that says that in each instance. Um, and then you look at the actual decision, the legal [clears throat] lot verif- uh, the um uh, partition property line adjustment or middle housing land division. You look at the decision and it doesn't address the standard. It doesn't make a decision internally as to whether or not these folks started with a legal lot. Um, then >> And it's kind of weird. Both of those that's not actually an approval criterion. If you look at the approval criteria, like one of them it's in the purpose statement, the other one is in the application submittal requirement. So, does that does that change anything? I don't think it changes a darn thing. I mean, uh you you I mean, you can't get through wickets. Uh you can't the city is not whether whether the uh requirement for having a legal lot is stated in the purpose statement or an information requirement or a standard, you the the the gist of the code is you can't get a partition unless you start with a legal lot. You can't get a middle housing land division unless you start with a legal lot. That's it. Um good luck trying. So, I I don't think we want to put uh formatting over substance. You have to start with uh you have to be in good stead with a legal lot status in order to to start the process. And if the city is not if the city is correct that all these legal lot verifications with all the forms and the fees and the formalities really just result in an informal discussion, documentation of informal discussion with the city staff, then you would expect the city in conjunction with making the property line adjustment approval or um um partition would be making a finding that yes, this is a legal lot, we can go further. And they're they're not saying that anywhere. So, what? Um either they're relying on the legal lot verification, which came before, that's the efficient way to do it, or they're just making all these decisions with with a giant glaring hole in each one of them because they are not making the the uh legal lot finding um from the get-go. Um that's about what I can say on that. So, um, so that's, um, a lot on jurisdiction. My I I looked at I reviewed the merits of our brief on this. I I have so little to add to the, um, merits of the of the issue here. Um, I guess I would, um, uh, just pass along to you a question that my client passed on to me. >> [snorts] >> Uh, when all this got started, he said to me, he said, he said, "So, Bill." He said, he says, he says, "If the city's taking the position that they're taking here, then what if what if I buy a fully platted undeveloped subdivision with 20 lots in it that are all still in the same ownership, you know, a plat that was recorded in the mid-50s or something. I buy the whole thing. And the the conveyance to me, the deed conveying that entire undeveloped subdivision to me, could look exactly like the conveyance language that the city has applied here. You know, um, it could just and and just plug in the 20 lots here instead of the north 110 ft of lots 12 and 13 and blah blah blah blah. The same conveyance language could be could be used. And if the city's right in the context of my application now, then the city's position would be that all 20 of those lots get consolidated with that deed and the And I said, "That's a really good question." I said, "I'm sure the city will jump at the opportunity to answer that during the oral argument." So, I leave that question on the table. That's about it for my, uh, opening statement. Thank you. >> So, to make sure I understand your argument, um, under ORS 92.017, if if the if the 19 with 1959 deed, if it had I think you're you're arguing that it could have merged if it had wanted to. Like if it'd been very specific and said, "We started with three legal lots. We've only got one now. Woe would be to any man or woman who says otherwise." That would have merged them and 92.017 wouldn't undo that. If I understand what you're saying is like the 1959 deed did not do that. >> The 1959 deed did not not do that. >> And so so if the deed is under our case law, if the deed is silent about merger basically, the default position is it does not merge them. Is that our assumption? >> That's right. >> Okay. No further questions from the board. Uh, we will turn to the city for their argument. >> Good morning. May it please the board, Lauren Summers representing the city of Eugene. Um, the city does intend to file a response and objections to petitioner's motion to strike and motion to take evidence not in the record related to jurisdiction. So, um, just to let you know that will be coming. Um, and I'll hit a couple of petitioner's points before I launch into the meat of my argument, but um, in terms of petitioner's uh, discussion of the supplemental memo or supplemental response to the city's motion to dismiss and focus on the the language on the lot validation form. First, I'd like to point out that the lot validation form is currently outside the record. That's part of petitioner's motion to take evidence. Um, and but then I would just draw the board's attention to the the language in the lot validation, um, form application form requires evidence of an illegal lot, um, because you can't validate a lot under ORS 92176 unless it is not a lawfully established unit of land. That is part of the statutory requirements. Um the legal lot verification can act as evidence that a lot was not legally established, but so could a lot of other things, deed records, other things. in the motion petitioner um kind of makes a lot of the fact that there's no process or criteria for a lot validation in the Eugene Code just as there's no process or criteria for a legal lot verification, but I would point the board to you the process and criteria in the statute for a lot validation. The city hasn't incorporated those into the Eugene Code, but they do exist. Um and the ORS 97 or I'm sorry, 92176 provides that a decision on a lot validation is uh a permit decision as defined in ORS 227.160. Compare that to the legal lot verification process which does not There's no process in statute, there's no process in the city code, there's no approval criteria in statute or the city code, and um there's no appeal process for a lot verification decisions. They are They are different. Um Similarly when petitioner points to those three kind of sets of legal lot verifications and land use decisions that are also outside the record and are part of petitioner's motion to take evidence not in the record. Um again, the petitioner is correct that the land use decisions, the partition decision, the um middle housing land division, etc. do require that the subject property be a legal lot as defined in the Eugene Code. But again, a legal lot verification is one way, one kind of set of evidence to show that the subject property is a legal lot, but you could also submit a subdivision plat or a partition plat or a lot validation. It's not a requirement to have a legal lot verification prior to a land use decision. And applicant doesn't point or I'm sorry, petitioner doesn't point to any evident any evidence or any board decisions that indicate that evidence submitted in support of a land use application automatically becomes a land use application. Um Okay. So, >> I'll jump in quick. So, your motion, you you say that this is just a preliminary decision. To me, it sort of comes down to whether this is a final decision or not. >> Yeah. >> And you you cite the the Davis I think Davis case. >> Yes. >> And and then you say this is just like that, basically. >> Yeah. >> The Davis case was pretty clear from the language that it was definitely preliminary. And then you say this is like this, and that's what and Mr. Mr. Claus is moving to strike. Is there Is there anything you can point to besides you're telling us that it's preliminary, like anything in the code or your process or anything that would make this like Davis? >> [snorts] >> Sure. Thank you for that question. So, it is the city's position that this is exactly like Davis, except for the fact that the decision in Davis did include language on the face of the decision that said, "Hey, this is a preliminary decision." Um but every other aspect of Davis is reflected in the in what's happening here, in the process here. Um and indeed actually in Davis, the county specifically identified the legal lot verification as a {quote} land use application, which the city does not. Um But what the uh board in Davis looked at were several things. Um that the county code did not contain any standards for evaluation of a legal lot verification. The city code doesn't either. The county code The only thing the county code contained was a definition of a legal lot, just like the city code. Um the county code did not contain a process for making final binding evaluations in terms of the legality of a lot, nor does the city code. Um and the board held in Davis that the legal lot verification approves nothing. That it was just a review of land records to determine whether those records indicate that the lot was legally created. The city's process is the same in all material respects except that express kind of preliminary language. But it's the verification it just simply isn't a final land use decision. There are no approval criteria. There's no process. There's no opportunity for appeal. It's not It It is a staff review of records related to a particular piece of property to determine whether that property meets the definition of legal lot in the Eugene code. >> So it's almost a glorified pre-app for your purposes. >> Yeah, I think the city would take that position. Yes. Um >> Is there a uh city code process for a lot validation? I think your motion um sites to the statute. Is there a Does the code also contain a lot validation? >> No, the city has not incorporated the statutory requirements into the code. Um the statute itself provides that a city or county may approve an application to validate a unit of land that was created by sale that did not comply with the applicable criteria for creation of a unit of land if the unit of land is not a lawfully established unit of land and could have complied with the applicable criteria when the unit of land was sold. Um and then >> not apply if if there wasn't if there's not a assertion that um that was you're not trying to validate what otherwise would be an illegal lot or something that was not lawfully established, but you're trying to determine how many lots you have. Your your position is there's just no process for that. There's no formal >> That's correct other than as part of a formal land use application process. So, you come in for a middle housing land division or a partition or subdivision that requires that the subject property to begin with is a legal lot. And staff says we don't think it is as part of that land use decision, that certainly would be appealable. Or if staff says we do think it is and as part of that land use decision someone else >> Um in terms of Mr. Closson's question from his client about, "Well, what if I bought a an undeveloped subdivision um today today um and would the city just assume that all of you know, if I own the entire subdivision, I own all the lots in the subdivision, would the city just assume that it's one legal lot?" The answer is no because because of ORS 92.017, which took effect in 1985. So, from 1985 onward 92.017 says that a legally created lot stays a legally created lot unless the lot lines are vacated or there's a future uh um another uh or it's further divided via another subdivision or partition. Um but what we're talking about is land transfers that all happened prior to 1985. the uh remember Wilson, as you pointed out the um operative transfer that the city is focusing on is in 1959. So, it was both prior to 1962, which is when the local partition and subdivision regulations were adopted and deed transfers could still function um and prior to 1985 significantly prior to 1985. So, ORS 92.017 did not exist at the time and didn't operate to kind of freeze in time It It appears to be petitioner's position that anytime a lot was created by a deed it's frozen in time regardless of whether that happened prior to or post 1985. It's the city's position that ORS 92.017 is not retrospective in effect and petitioner hasn't pointed to any evidence or text or context or legislative history that would indicate that it was intended to be retrospective. So, the 1959 deed transfer operated to create a single lot and that same lot has been >> So, getting back to Mr. Close's question, so say I think the original lots here were created like in the like pre-World War I, right? And say so say they'd all just stayed together miraculously for 50 years or 40 years, and then they got transferred 1959 with a deed just like this that just described you know, the boundaries and didn't say what the city seems to be consistent the city would say, "Nope, you just got one lot now." Am I missing something now? >> No, I think that's that's right if it was transferred in 1959, but I understood Mr. Close's question to be if it was transferred today. Um and that would be a different story because of ORS 92.017. >> In terms of the [sighs] substance of the appeal, um well I guess we've already talked about that. Um Yeah, I think that's those are the points that the city was really hoping to make. So, unless the board has any further questions that I can answer, um the board would ask the city to or I mean the city would ask the board to uh grant the city's motion to dismiss or if the board does find it has jurisdiction to affirm the city's decision. Thank you. >> So, Mr. Close's position is that if uh the deed is silent to merger, the default position is that it doesn't merge. Do you A disagree with that or B think the deed is not silent as to merger? >> In this case I think the context of the deed indicates that those lots were intended to be consolidated the way that they the various deed transfers happened. the deed transfers were kind of a functional equivalent of a property line adjustment that it was the same owner buying and consolidating a piece of property. And then when that was consolidated, it continued to be transferred as the same piece of property using the same legal description in the future. Um it it is true that the legal descriptions refer back to the original lots. Um and this is speculation, but I assume it's because it was easy um and So yes, in this case because of the external context, it's the city's position that um those lots did merge. >> Okay. And then last question, um if we do agree with petitioner that that it's a final it's a land use decision and that the lots didn't merge, [cough and clears throat] what should our disposition be? Do we remand? Do we reverse? Do we order you to free lots? And I'll ask petitioner this too, but what would what >> So I believe petitioner is asking for a reversal and remand with direction to the city to say, "Hey, this is three you know, it's the city always would prefer remand over reversal, but in this case um you know, if the board completely agrees with petitioner that this is a a decision the board has jurisdiction over and the city got it wrong I'm not I'm not really sure what other findings the city could make if the board is in agreement that in fact it should be three lots instead of one. It seems to be a pretty um just a dichotomy here one way or the other. Um but the city does include in its briefing um in the event of a reversal the reason that petitioner would not be entitled to attorney fees. >> Okay, thank you. >> [clears throat] >> Okay, uh we are at time there for the city. So, we will return uh to Mr. Close for rebuttal and you have uh I think two and a half minutes for your rebuttal. Go ahead. Oh, no, three and a half minutes, sorry. >> [clears throat] >> You're still muted, sir. Uh Counsel Close, you're still muted. I think we missed something funny also. So, if you could come off mute and share [laughter] with us what you said, please. >> I just I'm sorry, I have my my microphone off. It's probably just as well. I just wonder where the time goes when you're having a good such a good time. Uh there's no mention in our brief of attorney's fees. That that's only in the city's brief. Um Uh referee Wilson got it right. Our my question about merger of the vacant subdivision and single ownership, you know, relates back to pre 85 or you know, pre 62. It relates back to 59 when uh the city says my client's property got merged. Um uh >> [clears throat] >> the and you put your finger on it and he says, "Yeah, it's all it all goes away." Um I I just want you all to appreciate too that and I get get a little bit of heartburn every time I say this. I was the attorney that lost Davis. I mean, how how's that >> [laughter] >> How's that for an uh an item for my memorial service? That was very disappointing. But, I understand it. Yeah, I mean, there it is big bold letters in the bottom of that legal lot determination that says, "Hey, this is preliminary. Go apply for something if you want a final decision." We don't have that here. Um I I I guess I uh not to belabor the point, but there are standards to apply here. The definition of legal lot boils down to a standard. You know, you need to look at the deeds and figure out what they say. That's pretty standardish standardly. Um uh And there there there is no um to go back to the question of is there a process in the code for lot validation? There's not. And yeah, sure there's one in the statute, but um I'm not sure the statute language is particularly relevant to whether uh the code uh honors uh a process or enough of a process or you know, everything but a formal process to create a land use decision. This is really about the um code. It's not about the statute. And when you just look at the code's treatment of legal lot verification and lot validation, those things are treated like uh similes, twins in the in the city's code. Um I think that's So, really about it. Um thank you very much. >> I would like to reiterate board member Wilson's question about the proper disposition. Give us your best argument. What we should do. >> Our best argument is uh it really boils down to a question of law applying statute and uh we can do that uh as well as the city and um let's be efficient about it. Uh and I I appreciate the city not wanting to have >> So, I would would translate to that you're asking for a reversal. >> That's right. >> [laughter] >> Yeah, I think we're pretty clear as somewhere in our briefing that that's exactly what we want. So, I think we're the city and I and I are together on that. >> Okay. Uh no further questions from the board. Thank you. That will conclude oral argument. The statutory due date for our decision this appeal is July 30th. Oh, I'm don't need to say any of that because I already said we're going to suspend this case. So, uh look for that order and uh we will look for the response that the city has indicated that they're intending to um file with us. So, thank you. >> it's due this week. Thursday. ish

Summary: Good morning. Still a little bit of the morning left here. This is the time set for oral argument in Luba number 2026-029, Shermer Consulting versus the City of Eugene. I'm Board Chair Smudio. Board Members Wilson and Basham are also present. Uh please keep your audio muted when you're not speaking. That will help with our recording. And this oral argument is being recorded and live streamed. Pending matters that we have are the city's motion to dismiss, r…


Oral Argument 2025-009/010/011 Sattler et al v. City of Beaverton
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=HtCEGp3_GMQ). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Hello. This is the time set for or oral argument in luba numbers 2025- 09, 010, and 011. Satler at all versus the city of Beaverton. I'm board chairsio. Board members Wilson and Basham are also present. Uh, this hearing is being recorded and livereamed. Please mute your audio when you're not speaking, which will help with the recording quality. I'm not aware of any pending motions in these matters. Do the parties have anything to bring to our attention that's pending? Nothing from the parties. Okay. Thank you. Oral argument is a total of 30 minutes. And petitioners, you have 15 minutes to share and may reserve up to five minutes for rebuttal. Have you We have Madam Chair, I'll actually end up speaking on behalf of the petitioners and we're going to reserve five minutes for rebuttal, please. >> Okay. Thank you. Um, just to note, the clock on the screen is just for your reference, not keeping exact track of time. I will keep track of time and ask that you also be mindful of your own time and I'll let you know when you get to your rebuttal period. And for respondent and intervenor, you have a total of 15 minutes for your response. Have you discussed how you'll share your time? I'll be speaking on behalf of the respondents. >> Okay. Thank you. So, um, with that, petitioner, please, uh, state your name for the record and begin your argument. >> Uh, my name is David Golder. I am one of three petitioners uh, on this matter. As mentioned, I will be speaking on this matter, and I just wanted to thank you for your time, madam chair, as well as fellow board members. Today, um, what we're before you is reference to an appeal of order 3019 issued by the city council of Beaverton. This actually denied our appeal as well as affirmed a planning commission decision to approve a design review compliance letter for an 8,500 ft playground cited on Mory Hill Christian Church property. This property is located in a residential zone surrounded by residential homes on all four sides. and the three of us are next door neighbors to this home and are being significantly impacted by the noise that's generated from this um as well as other neighbors. These are the items that were testimony, if you will, that was before the planning commission and some of the issues that were discussed before the city. These are impacts to our livability and appropriate use of our homes. We're not here to relitigate these issues before you. We're here to discuss the errors that are actually occurred by the city when making the decision on order 3019 which again denied our appeal and in the alternative um appears to have a satisfied meaning the application satisfied the approval requirements. Before I go any further though, I did want to ask the board if there were any specific questions or items you would like me to address. >> Uh yes, thank you. So, in terms of denying the local appeal, was there an indication that the there were the city believed that the petitioners didn't have standing prior to the final decision or did that come out in the final decision? >> It came out in two ways. After accepting the appeal, we received a letter from city staff stating that there were some questions about our standing and they stated that that would be resolved by the city council and they would prepare findings as I understood it. um no matter which direction the city council wanted to review. The actual final order though determined our standing. >> And then in terms of process um did that determination have any impact on the process? For example, were you prohibited from submitting anything, any testimony, any argument to the city council? >> We did not have any um prohibited from sending any items or speaking about particular items. What we did have an issue with is the fact that we have to address standing alone. based on the code, we had the ability, we had standing, we assert and during that time to have our full merits uh appeal considered by the council during the time that was allocated as well as to have the council themselves spend the time on the merits itself. Instead, we had to spend considerable amount of time addressing standing both during our time. And if you look at the record, the council themselves spent very little time actually addressing the merits and even in the order itself, it spends considerably more time actually addressing standing than it actually does discussing the merits that were conditional, the decision on it were conditional and in the alternative. >> Okay. And then in terms of your third assignment of error, what thank you for that answer. Um >> yes, >> you argue that the nature of the use is a threshold issue for design review. The respondents respond that whether the use is permitted or conditional, it goes into the design review either way. And so any error in the determination about the nature of the use, it would be harmless for purposes of the design review approval. My first question is what makes the nature of the use a threshold issue for design review. >> Um design review has threshold criteria for the application. It was a question that came up before the planning commission. They had one set of findings. The city removed that set of findings and then inserted additional set of findings which they have the opportunity to do at the council level. The part of the issue that comes up is what they ended up approving um for the threshold portion is, for lack of a better term, the landscaping, the grading, the fencing, the wall. They state that in fact there was no code or any language that dealt with the playground structures. Part of this is an issue as well is it ties back to the second assignment of error because we don't actually don't even know what version of the code this was approved under and the threshold issues under different code versions actually are different. So there's a fair amount of lack of understanding as to okay how are these individual play structures approved in particular when they're citing it that is an incidental cheer uh accessory use of the church when it's a required use for the playground and also being used by the public and the public themselves is what's causing so much of the noise. These issues were never addressed in the order and there is insufficient information in the record and I recognize that some of that is really our second assignment of error, but it does tie together to the third. All right. I'm still not really clear what makes it a threshold issue for design review. I understand the the red brief to respond whether it's a permitted use or conditional use. The design review regulates the physical characteristics and so any error on determining the character of the use would be harmless. What in the code makes it a threshold issue and then what is what difference does it make in terms of design review? >> So we asserted early on that actually this was part of a conditional use for the playground itself. There was a modification for conditional use application to approve retroactively approve and increase enrollment for the preschool. Uh playground is actually a required element for the preschool was not included in that application. Instead, what we were faced with was the design review compliance letter application that appeared after the um neighborhood notice and neighborhood meeting that ended up actually approving the playground itself through the design review. We assert that actually both are needed uh under the code and that's Does the design in your view does the design review approve the use or is it simply regulating the physical characteristics of the structures and the landscaping and the fencing? >> Based on what the city actually described in their order, we don't actually know. It appears that it actually approved the landscaping, the grading, the fence, and any of that. nothing else was actually appears to be approved or as I mentioned they stated in the order that the actual structures themselves there was no code language that applies to it well they're part of the conditional use at that time for the playground um our assertion is that it's actually required as part of that conditional use in the design review is just for how it looks in essence and for the landscaping and items like grading So why would any error in the characterization of the use in the design review matter in terms of remand either there's error in the nature of the use whether it needs a conditional use modification or not that's not before us in the design review. Why is the nature of the use a threshold matter for design review? What in the code makes it a threshold matter or why does it what's the implication that would have significance if we remand it? Say say we agreed with you that there's it's either insufficiently characterized or the characterization is accessory to the church is not supported by substantial evidence. What's the upshot of that on remand? >> Um the upshot is twofold. One, it's not an accessory used for the actual playground or excuse me for the preschool itself. Furthermore, if you actually look into the code and look at accessory use, the definition under the code talks about it being incidental. And as we look it up, it has in essence no impact. Well, this is having a significant impact on the nearby residential homes. It's having an impact for the church itself because they're having to address these issues. What we're getting at in that particular point is none of this was actually addressed actually in the order itself. What in the design review criteria requires the city to address that in the >> The design review approval is actually the structures in addition to the land is what was applied for in this case. The city approved as a threshold issue the landscaping. As I mentioned, they did not address the structures themselves. They did not include them, it appears, in the order itself because they state there was no language in there. All of this is based again, and I'll shift to the second assignment for a second, on an application of a new date that occurred after the planning commission. We do not know what version of the code this was approved under as well. So, the threshold issue actually changes based off of which version of the code is being reviewed here. We actually don't know. >> So if the structures are not approved, the physical characteristics of the structures are not reviewed and approved in the design review, the design review is not approving those structures. So why wouldn't it be, as the red brief argues, an enforcement matter rather than a error in the design review? >> What I'm stating is that the structures themselves actually are part of the playground. You can't separate the structures from the land, its use, and how it's being done. They approved half of it. They didn't approve the other half of it. Yet, they went ahead and approved the design review compliance lever in its totality. We don't know what they actually did because they didn't actually explain it with any sufficient detail in the order itself. Nor did they address the application issues, nor did they address the date on the application issues, nor did they actually address whether the application was complete or not. What we're getting at here in this particular case isn't just the issue of standing, but also the fact that they didn't actually explain what they did on these matters. >> So, Mr. Golder, um the city's decision says that the expanded playground is an accessory use to the church. And I understand you to argue that it's not really incidentally subordinate or at least they didn't explain why it is. And what I want to know is if that's right, why did they have to address that in design review? >> Because I don't think it's one of the approved. Well, okay. Why are they required to? >> So, as part of design review, is my understanding is they're viewing this as an incidental use of the church. Correct. >> Right. So, but where in design review standards or purposes or anything do you is there something that says, "Hey, we have to make sure this is actually some sort of an allowed use before we get to the design review characteristics." >> Okay. Thank you for clarifying the issue pertaining um to the design review. Yes, they're actually able to look at the design and approve the design. That does not approve the use. What we're saying is they didn't even approve the design of the actual structures themselves in this particular case. What they approved was the actual land and the changes to the land itself. Half of the half of what was approved was unressed in the actual order. We don't know how they approved the actual structures even under design review because they didn't sufficiently explain it. Nor do we know the actual criteria under which it was actually approved because of the questions about the application date. >> Okay. >> And and you're at did you have further questions? >> You're at three minutes for rebuttal. You can continue on with your primary argument or you can remain or you can u maintain that time. >> No, I'll go ahead and maintain the time. The one thing I will bring up um as I mentioned before the application issue in this particular case is quite important because we have no idea what they actually approved and under what criteria in addition to the fact that we had standing and could not actually um share our full full merits based appeal. Thank you. >> Thank you. And you'll have two and a half minutes for your rebuttal. So we'll turn to the intervenor for your argument. Please state your name for the record and begin. >> May it please the court and so powers on behalf of intervenor respondent Ash Creek parent cooperative play school. Ash Creek and respondent city of Beaverton filed a joint response brief in this case and I'll be speaking to that brief today. But I want to note that the city's attorney Robin McIntyre is also in attendance and available to answer any questions you might have about the city's interpretation of its own code. The challenge decision in this appeal is a relatively minor one. a type 1 design review compliance letter or DRCL. The decision is both minor in process as a type one and also minor in what it retroactively approves, namely a 2011 expansion of a play area that had long existed at the church where the nonprofit Ash Creek Preschool operates. The expanded play area, in the same form as it is in today, already existed at the church when Ash Creek started operating there in 2015. Indeed, as you've noted, the player is considered by the city to be an accessory used to the primary church use of the site as city records show that the play area predated the 1994 approval of a conditional use permit for a prior preschool at the church. Uh the clearest statement of that accessory use determination is at record 233 to 34. In that context, I'll start with the third assignment of error as you have where petitioners fundamentally conflate design review with use authorization. Luba has already dismissed petitioner's appeal of the conditional use permit for the school and that permit is not in front of you today. Instead, this limited DRCL decision only needed to address the applicable DRCL standards and criteria in the city's code. None of which required the city to determine which use the play area is accessory to. Moreover, as mentioned, the city did determine that the play area is accessory to the church. The church itself is a conditional use and at the time of this DRCL decision. So was Ash Creek's preschool. Therefore, even if the city could have determined that the play area is accessory to the school instead of the church, the same approval criteria for a DRCL decision would have applied. And any error related to which use this is accessory to is harmless at best. The city did not use the DRCL to quote bypass conditional use procedures as petitioners contend. Again, Lewis already dismissed these same petitioners appeal of the conditional use permit. It was approved by the same city council in the same hearing as the DRCL and therefore the conditional use process was not bypassed at all. If petitioners believe there's a violation of the church's conditional use permit or the cities, they can raise that with city code compliance, but this very expensive appeal of a type one design review is not the legal forum for those concerns. >> Was the city required in order to approve the design review, was the city required to determine the nature of the use? No, there's no applicable standards or criteria that require determination of the use. Now, you couldn't get into design review without that determination. Uh, but the only [clears throat] applicable approval criterion for the DRCL that the third assignment of error relates to is subsection C1, which acts about the threshold requirements for a DRCL. And I think that's where the confusion has happened here. There are three levels of design review, DRCL, design review 2, and design review three. And the first approval criterion for each of those levels of design review askked the same question of whether the proposal satisfies the threshold requirements for that design review. Um, and so petitioners pointed out to city council that threshold M, on which pling commission had relied, didn't apply to this project because both the school and the church are conditional uses. >> [clears throat] >> M does speak to whether something's an allowed use or a conditional use. And city council agreed with petitioners that uh the play area still required DRCL, but not under that threshold, under two other thresholds that were triggered. Thresholds are a point, place, or level that marks a limiter boundary. that's consistent with the code's context and structure. And that explicitly refers to the thresholds as standards for when quote an applicant must utilize a DRCL or when an application for a design review 2 or design review 3 quote shall be required. Those thresholds tell you which level of design review are you in. They don't tell you that you need to make findings on a youth use authorization. So, so Miss Powers, um, did I understand you to say that, um, maybe I'll use the word prerequisite instead of threshold, that there has to be a prerequisite that this is an allowed use of some sort before you get to design review. So, I think on like page 32 of your brief, it sort of says that. Um, and so it seems like the decision finds that this is a accessory use to the church. Is is that necessary to then get to design review? >> So under the city's code 402010 2A, all listed all uses listed as conditional uses in the R&B zone where this project is require design review. That's the only place that use sort of comes in. Um but it's in it's not in the approval criteria for the use. It's, you know, do you have to get a design review approval at all? Um, the only possible alternative conclusion is you didn't have to get this decision. So, there'd be no prejudice that they got more process than perhaps they were allowed. >> Well, what if what if petitioners, right? I I understand them to argue that this is not an incidental and subordinate use. It's it's bigger than that. What if they're right about that? How do they how would they make that challenge if you if they can't do it here? >> They certainly could bring that up to code compliance and say that the church is not in compliance with its conditional use permit that initially approved this play area as subordinate to the church. They could say, "Well, now that you have this bigger one, that's no longer incidental and subordinate." But that would be a question about the church's conditional use permit because before the 2011 expansion of the play area, it was approved under the church's conditional use permit. So that's that's where that question lives. >> So theoretically, they could come in and do that and the city would say even though the playground was built to design the design review standards, fine. Turns out they weren't allowed to build it in the first place and petitioner could theoretically win. You wouldn't come back and say, "Oh, no, we had design review. You can't challenge that now." >> No, I I think the design review is fully separate from the use question. Um, and you know, they've argued that this is a playground instead of something subordinate and accessory to one of the other uses of the site. Even if that were true, that would be a conditional use. And all uses listed as conditional uses in the R&B zone have to get this design review approval. So it doesn't change anything in this case. And the use question under the conditional use permit for the church or a playground or the school is not in front of you. >> Okay. So do you like that example you gave in your brief? I think it was for a dance studio in an industrial zone that that if they if you eventually get to the question of whether it's allowed or not, whether it got approved for design review is that's that doesn't matter. >> Right. Exactly. Design review doesn't necessarily approve a use. It approves the physical characteristics of what's being put in. Just serves a very different function under the city's code under most codes. >> Okay. Thank you. >> Yeah. Happy to answer any other questions. I I also want to note that the findings do apply all DRCL standards and criteria to the entire project expressly including in the project description at record five the replacement of play structures and the installation of an additional swing set. So the appeal decision is not as petitioners have implied limited in scope to the aspects of the proposal related to thresholds H and I. They, you know, applied what you might expect from design review, the applicable design standards in chapter 60 and they provided findings on each of those. And petitioners have never identified a design standard or any other approval standard that the structures or this project more broadly fails to meet. So for these reasons, respondents ask that you deny the third assignment of error. I'm going to turn to the second assignment of error unless there's more questions on the third. It's undisputed that on November 22nd, 2024, well before the December 10th, 2024 Denovo City Council appeal hearing, the city received an application form signed by an expressly authorized representative of the property owner church, and the city found that approval criterion C3 was met. All applicable application submitt requirements had been submitted. petitioners agree that the application form was signed by the church and they make no argument that it was defective in substance uh to provide the owner signed application form that's required. Instead, they only argue that the owner signed application form was not in front of the planning commission. And in this context where city council held a denovo appeal hearing, accepted new evidence from anyone who wished to submit it, and provided petitioners with an opportunity to respond to such new evidence, it's not relevant whether the evidence that supports city council's finding was in front of the lower decision-making body. Planning commission's decision is not the final city decision on appeal to Lubath. city councils is and city council's finding of compliance is supported by substantial evidence in the record. To the extent that petitioners try to recast this as a violation of approval criterion C11, uh we believe that argument is waved. They carry the burden of showing preservation of their arguments and have not shown and we could not find anywhere that they or anyone else raised the CL level appro approval criterion with the required specificity. Moreover, the application form is outside the scope of C11, which only applies to applications and documents, quote, which will require further city approval. That plain language shows that C11 is intended to reach applications like the conditional use permit, not an application formality like this one that does not quote require further city approval. And perhaps most importantly, in the context of a denovo appeal, this was the proper sequence. They raised their objection to the owner signature matter in their local appeal of planning commission's decision. They received the duly owner executed application form a full 2 and a half weeks before the December 10th city council hearing and had every opportunity to respond to it in orally and in writing. That's not improper sequence, nor is it prejuditial procedural error. Instead, it's the process working as designed. It cannot be that C11 was intended to prevent parties from adding evidence to the record in a denovo appeal. Finally, under the first assignment of error, petitioners have failed to establish that their substantial rights were prejudiced by the city's determination that they lacked standing to appeal the DRCL to city council because the city nevertheless afforded petitioners exactly the same full denovo city council hearing that they would have received as parties with standing. I'll note that I heard today that they are making an argument about having to spend time addressing standing in front of city council and uh that is an issue that wasn't raised in their briefs and shouldn't be raised for the first time in oral argument. Regardless, not only was city council correct in their code interpretation that petitioners did not have standing, that issue doesn't need to be reached. City Council provided alternative findings on the DRCL approval criteria on the merits and here a remand would not accomplish anything. Petitioners have already received the full denovo hearing, testified orally, submitted the bulk of a written record that runs over a thousand pages. City council considered all of that record and decided the case on the merits. Those merit findings are the subject of the second and third assignment of error. So even if the city were wrong about standing, this DRCL approval would still rise or fall on the same merits findings reviewed in the same appeal. >> So is your after the planning commission decision, if they'd wanted to if if they'd wanted to appeal the the design review, they would have needed to appeal the planning commission decision to us even though there was a local appeal >> I think they could have appealed the planning commission decision to you potentially, [clears throat] but they were given the local process in the alternative to ensure that no matter how that code interpretation issue came out, they were provided the process and the merits Not sure that addressed your question. >> Well, just if if we agree with you that they didn't have standing, that ends the case, right? Correct. >> And so [clears throat] that would mean that what they would have needed to have done was to go straight from the planning commission decision to us, >> right? >> That's true. [sighs and gasps] That would >> they need to do that while Oh, we've still got your appeal going right now. [laughter] Well, it would have then just been an appeal of the conditional use permit and if if they had sort of accepted that proposition from the letter that happened between planning commission and appeal. >> Okay. Thank you. >> Uh in closing, I want to speak to what this case is for my clients. Ash Creek is a cooperative preschool run by its parents. They take turns as classroom assistants and they serve as its board. Church volunteers made this play area larger in 2011 and they did not know that the city required a permit to do it. And when Ash Creek learned years later that city records showed a smaller play area, nobody hid it or tried to take a shortcut. They voluntarily applied for design review the code calls for and went through months of staff planning commission and city council process. What petitioners ask you to do is remand a preschool playground so that a city council that has already heard at length from these petitioners and already decided the merits of this case can say the same thing a second time. We respectfully ask that you deny the >> Thank you. Uh we'll return to petitioners for your rebuttal. You'll have two and a half minutes for your rebuttal. >> I'll touch on a couple of the points that came up. Um first of all uh as it pertains to code compliance we did complain to code compliance that is what resulted in the design review compliance application in the first place as part of that process. That is how it actually originated. Um second of all the prior playground was not approved. It was never approved in any cup record whatsoever that is before you in in the record. Um, when it comes down to it, what we're also asserting here is there's insufficient evidence in the record. There's insufficient support in the order to even explain what the city did as it pertains to the application. It's clear a new application was submitted. What version of the code was it approved under? We have two different versions of the code that are out there. When it comes to the actual decisions that were made, there's insufficient information to explain how they actually got to this point to begin with. We don't know. What we're asking isn't to send this back to redo something that was already done. What we're asking is to send this back and ask them to follow the code and explain what they actually did here. There's considerable um lack of information to even understand as I mentioned what code version how the play structure was approved was it actually incidental and an accessory use how is it actually getting the design approved for the school and is that use required to be understood and approved prior to design review. I understand there's two separate applications here and we're dealing with both separately. And I understand that this is design review, but even within this one, I don't know how we can proceed if we don't even know what section of the code and version that this was approved under because of the errors of the application. [sighs and gasps] With that, I did want to close and also thank the board for your time. We did have standing in this case. Their decision on standing um wasn't supported. Um, and on top of that, we were actually impacted because of the amount of time that had to be allocated to this issue. They should >> Any final questions? >> No further questions from the board. >> Thank you for your time. >> Thank you. That will conclude oral argument. The statutory due date for our decision in these appeals is September 8th. We'll ask the parties to agree to an extension so that we issue our decision by September 29th. Is that okay with these parties? >> We have no objection. >> Yes, that's agreeable. >> Thank you. >> We don't object. >> Thank you. Okay, that will conclude our

Summary: Hello. This is the time set for or oral argument in luba numbers 2025- 09, 010, and 011. Satler at all versus the city of Beaverton. I'm board chairsio. Board members Wilson and Basham are also present. Uh, this hearing is being recorded and livereamed. Please mute your audio when you're not speaking, which will help with the recording quality. I'm not aware of any pending motions in these matters. Do the parties have anything to bring to our attention tha…


OA 2026-016 Friends of Yamhill County v. Yamhill County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=-Pvrnp4zCkw). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for oral argument in Luba number 2026-016 Friends of Yamhill County versus Yamhill County. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. This oral argument is being recorded and live streamed. Uh pending matters that I'm aware of are a motion to take official notice and a response. Those are pending with the board and we will resolve those in the final opinion and order. Is there anything else that the parties need to >> No. >> Thank you. Uh petitioner, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yes, with the board's permission, I would ask to reserve 3 minutes of my time for rebuttal. >> Okay. And uh I will watch the clock here and ask you keep track of your own time. The clock that's on the screen is just for reference. It's not keeping exact time for oral argument. And respondent intervener, you have a total of 15 minutes. Have you decided >> Uh yes, uh I believe the county is going to make a brief remark, but otherwise seed uh time to uh us as intervener. >> Okay. Thank you. Again, I will keep track of time and ask that you keep be mindful and keep track of your own time. Thank you for agreeing in advance how you'll share your time. Um and with that, petitioner, please state your name for the record and begin >> Thank you. Chair Zumudio, board members Basham and Wilson, good morning. My name is Ricky Armendariz. I'm an attorney with Crag Law Center in Portland, Oregon, and I'm here today representing petitioner >> Go ahead. Thank you. >> At issue in this case are two laws. The first is the permitted use on EFU land statute, ORS 215.283. This law allows a farm operator to build themselves a primary dwelling on their land, so they can live where they work while still protecting the agricultural land. The second law is the home occupation statute, ORS 215.448, and its local equivalent. This law allows a person, such as a farm operator, to run a business from within their dwelling, uh to unlock new economic opportunities for that resident. This case comes back before the board to address specific issues in the local proceedings following the most recent remands from both the Oregon Supreme Court and LUBA. In Green Hill 3, the Supreme Court rejected prior interpretations of the term dwelling made by the county, LUBA, and the Oregon Court of Appeals. In doing so, it clarified the meaning of dwelling as it applies to the laws at issue in this case. In Green Hill 4, LUBA confirmed the new approach for determining whether a structure is a dwelling, and remanded the case back to the county. LUBA's remand instructions were clear. The county must determine whether the applicant's structure qualifies as a dwelling under both state and local home occupation laws, and it must determine whether the structure was the home of the farm operator as required for a primary dwelling. Petitioner raised three assignments of error with the county's remand proceedings. I'll begin with petitioner's first assignment of error before moving on to Regarding our first assignment of error, the applicant is applying for a home occupation permit to operate a bed and breakfast in on EFU land. As LUBA recently clarified in its In the Ground case, determining whether the structure is a dwelling allowed in the EFU zone is a prerequisite to approving the home occupation permit. As such, the nature of the structure is once again at issue in this case despite the county's prior approval of the structure as a principal dwelling. When determining whether a structure was a dwelling in its remand proceedings, the county improperly construed the applicable law. Based on the Supreme Court's ruling, LUBA provided clear instructions for how the county was to make this determination. The county was to assess all relevant considerations including design standards and building code regulations. This is a nuanced, fact-based, context-specific inquiry. Petitioner positioned this as weighing all the evidence to decide. Respondents characterized it as a balancing test. While either explanation is correct, the county followed neither approach. The evidence presented by both the applicant and petitioner weighs heavily in favor of the structure being deemed a hotel or motel. Petitioner provided the county with ample evidence to demonstrate that the structure here is intended to be a hotel, not a dwelling. In response, the county did not weigh petitioner's evidence and balance it against the applicant's evidence, as a balancing test would require. Instead, the county did little more than attempt to explain how common hotel features might be construed as lavish amenities of an atypical dwelling. In contrast, the applicant's evidence mostly relied upon an argument regarding this the common atmosphere of the structure's design. There is no legal basis for a dwelling being a structure that has a common atmosphere. The applicant raised this point before with Luba and the Supreme Court, neither found it to be dispositive. Not to mention, hotels also have common atmosphere with their lobbies, dining and seating areas, and shared hallways. Under the Supreme Court's guidance, and >> Commissioners, I'm sorry to to interrupt you. Um, and I'm sorry if this sort of messes up the the schedule for your oral argument, but I really want to talk about the third assignment of error, and I'm afraid we might run out of time if we don't start now. Um, so would you agree that under the Supreme Court's decision, you they, not you, they basically have to go back and get reapproved for a farm dwelling. Is >> I'm not sure that I would characterize that as the issue that the Supreme Court put forward. I might have a different interpretation of it. The Supreme Court just denoted that this dwelling must or this structure must constitute a primary dwelling in order to be approved for a home occupation permit. >> Right. >> So, any issue there? >> In this case, that would be as a farm dwelling, right? So, all the what I'm getting at is the approval criteria for a farm dwelling are back in play, right? And so, looking at those um, those approval criteria, the first thing is they have to satisfy the farm income test. They had to the farm operator had to earn $80,000 in you know certain years. Um and then the third one I think under that is that the person or persons who produce the commodities that satisfy the farm income test have to live there, right? >> [snorts] >> Um do you think that those approval criteria or are prospective looking forward or retrospective looking backwards? And I guess to to clarify what I mean by that is um it seems to me that when you're satisfying the the farm income test it has to be made by the the farm operator has to be the person who actually made that $80,000, right? And it also seems to me that the under the per the person or persons who uh produce that commodities, that has to look backwards, too. And it seems to me that the county is saying we the grain shell can just go out and hire somebody who has like wasn't even with the company and make them the farm operator. And I don't see how that person could have been the person or persons who produced the commodities. And uh my first question is do you agree with that understanding? And B did you raise that issue? Cuz I think you sort of dance around that in some of the the sort of Simon Vera, but I'm not sure it's raised. So, those are my two questions. >> That's a good question. I think I I would agree that the farm income test is looking at the history, so retrospective earnings of the person who resides on the dwelling. And that just represents why the context of these laws and the interplay between them is so important. The primary dwelling statute is intended to allow a farm operator to build on their land. And the home occupation statute is intended to then allow the person who's built on their land to operate a business within it. That's not what was happening here. Here the structure was built with the purpose and intent for it to serve as a hotel, and now the applicant is retroactively trying to identify a farm operator who can live in the dwelling in order to qualify it as a primary dwelling. So, the because this the procedure of this case is so unique and it's not the intent of the laws, it's hard to say how exactly the farm income test would apply in this particular scenario. We didn't explicitly state that the farm income test has to be applied in a different way because of these circumstances. However, the applicant still has to prove that it meets the farm income test in order to qualify the structure as both a primary dwelling and in order to qualify that person as the farm operator. It could be that the law could be construed that a former farm operator could meet the test and that uh satisfactory criteria could carry forward to a new farm operator. I know respondents in their brief characterized our position as you would have to re-evaluate the farm operator and farm income test every time hands changed. We didn't make that point. In fact, the county requires a review of the permit every 2 years, and perhaps it could be in that 2-year review of the permit that the farm operator and the farm income test are re-evaluated. Does that answer your question? >> So, is it your position that cuz there's a condition of approval that says they have to appoint a farm operator, and you argue about whether they have to name that person now or whether it's deferred properly or but is it your position that they could bring in a brand new employee that didn't have anything to do with satisfying the farm income test in the first place, and you think that would be okay to be the the person or persons who >> I wouldn't say that I would characterize it as that. If a new person were being brought in as the farm operator, the applicant would still have to show that they had met the farm income test over the previous 5 years under one of the ways in which it's calculated under the OAR regulations. So, the >> farm operator who satisfied that would be different than the person or persons who would be living in the dwelling, that which would be this new brand new employee? >> It could potentially be a different person, uh and that is why it's important to identify who the particular person was in the past, who it is currently, and who it will be going forward so that you can ensure that the farm income test continues to be met as required. >> Okay, thank you. >> Mhm. So, returning to my point regarding the under the Supreme Court's guidance and Luwa's test, the structure must be primarily intended and designed to be a dwelling. In balancing all relevant considerations, the scale must tip toward the structure being primarily a dwelling to qualify for a home occupation permit. An applicant cannot purpose build a hotel on EFU land and have it qualify as a farm operator's primary dwelling for home occupation. Here, Foley Entertainment Group, a sports, entertainment, and hospitality company, has built the Grange Estate on EFU land next to its other ventures, the Black Walnut Inn and Four Graces. It intended to build the structure to serve as a bed and breakfast inn, not as the home for a farm operator. This is a situation of a hotel in search of a farm operator, not a farm operator in search of a home occupation. If there are no questions about the first assignment of >> Go ahead. >> Under Under petitioner's second assignment of error, the county did not properly address how the structure qualifies as a dwelling under local laws. Given the limitations imposed by the county's definition of both dwelling and family, respondents attempted to provide an explanation for the first time in their response brief, but that does not satisfy the county's requirements to establish adequate findings supported by substantial evidence. LUPA should reject respondents' explanation and require the county to adequately address this issue on remand. >> Didn't the county address it about the same way they did in the in the ground >> I don't think that the way in which the county addressed this case was adequate. The information that the county provided, or I'm sorry, the applicant provided and promised to provide, did not demonstrate that this criterion had been met, and it did not demonstrate that the criterion could feasibly be met. And respondents even admitted in their brief that the job description that was provided to the county was not intended to prove feasibility for this criterion. In order for this criterion to be satisfied, the county would have to ensure that the um Oh, I'm sorry. I I I was missing my point in in talking about the farm operator issue. Um The issue with this particular uh assignment of error, the county did not properly interpret the term family and apply it to this particular situation. So, there wasn't the same findings that were in the >> for rebuttal. You have 2 minutes. You're welcome to use the rest of your time for primary argument, but you will not have time for rebuttal if you don't. Go ahead. >> Thank you. Thank you, Chairwoman Modio. I'll just briefly finish to say in the in the ground case, there were more adequate findings regarding the local code and its meaning and application. In this case, they did not have similar findings. >> Okay, thank you. >> You'll have a minute and a half left for your rebuttal, so short time but still get the last word in. Uh we will turn now to respondent and intervener respondent, whoever's going first, please go ahead. >> Good morning, Your Honors. Uh Jody Gallahan for Yamhill County. Uh the I'm just want to briefly very briefly say county supports and agrees with the intervener respondents' arguments here in their briefs, and therefore we're going to seat our time to them fully. Uh unless there's factual questions specific to the county, I'm always happy to respond to. >> Thank you. We appreciate you being here for that purpose. Any specific questions for the county? No, okay. Go ahead, intervener respondent. >> Great, thank you very much. Good morning. Kevin Kono for intervener respondent Grain Shell LLC. Um I'm going to start by addressing some of the questions and issues that were raised with respect to the farm income test and that line of questioning. First, um I may have misunderstood sort of the framing of the question, but to be clear, there's a primary there's a there's a dwelling permit which authorizes the construction of a primary dwelling, and that permit is not at issue. What the Supreme Court said is that to have a home occupation um under these circumstances, the meaning of dwelling within 215.448 here means a primary dwelling conjunction with farm use. So, the question is whether this structure is a dwelling for purposes of 215.448. And that might be a nuanced distinction, but it's limited to the conditional unit use permit question and not the primary dwelling permit and the ability to build a primary dwelling on the property. With respect to the farm income test, this highlights that um farm operator has a different meaning in different places in the OAR. Um first, we don't think farm income is properly at issue here within the scope of remand, and I'll touch on that um a bit further. But on my point about farm operator uh most of the authority that the petitioner here cites um has related to a farm operator in the context of a relative farm help dwelling, where the question is whether um a a dwelling an additional dwelling is going to be allowed on property where it wouldn't otherwise be allowed. But because it's a relative farm help dwelling, the farm operator necessarily must be a natural person. And then there's questions about what that means in terms of the requirements for a farm operator where you're asking to build an additional dwelling for someone to come in and not take over that role, but provide assistance to someone who still will be operating as the farm operator with that primary responsibility that the regulation describes in the definition of farm operator for that context. In the farm income context, you have a farm operator who is the the person or in almost all circumstances entity who is the one who to whom the income is attributed, who is reporting the income and all of those things, which is not the same necessarily as an individual. Most farms today operate with a a structure where the the actual reporter of the income is an entity, not a natural person, and that's why the rule talks about um individuals uh who participate in producing the commodities residing in the dwelling because an entity can't reside in the dwelling. >> Right, Mr. Conant, I'm to interrupt, but yeah, I see your point. How about sub A says the farm operator. This is the farm dwelling rule. And then sub C says it's person or persons who have to reside in the dwelling. With the Supreme Court's case, they specifically said that you have to show that the farm operator operates or is going to be the person living in the dwelling. How do you square the different language in the rule with the Supreme Court saying the farm operator has to live there? >> So, the Supreme Court also noted that neither it nor the Court of Appeals have construed the meaning of farm operator in this context. It did make a reference to Luba having referred to the definition of farm operator in the relative farm health dwelling context, but it essentially left it open for the county in Luba to determine what farm operator means in this context. And what the >> Speaker, I'll ask you the same question I asked petitioner. Um in for the relative farm dwelling, it doesn't matter what happened in the past. It's kind of going forward. Do you think under establishing a farm dwelling that when you look at farm operator or person or persons who produced commodities, do you think that is purely prospective or is that retrospective looking backwards? >> It It's So, looking the income is clearly looking backward, right? It's It's It's you know, three out of the last five years. And it doesn't matter who the individual farm operator occupying the dwelling for our purposes is cuz that is a role that can change over time. So, um I I may not be fully understanding the retrospective versus prospective aspect of the question, but here that farm operator >> I want to harp on this one is in sub C it talks about the person or persons who are going to live in the dwelling have to be the persons who produced the commodities that satisfied the $80,000 test. So, it seems to me that's retrospective. And so, it has to you you can't just I think there's a good argument that you can't just go hire somebody new that was never part of the company and didn't help produce those goods and then install them as the farm operator. And it seems to me that's what you're wanting to do. And then there's a whole issue where the this issue was raised, too, but just how the stat how the rule works. Uh I want to get your position on I'm assuming you're going to argue that you can do that and I want to know why you think it's okay to have somebody who didn't produce the commodities still be the person a person who lives in the dwelling. I hope that made sense. >> Um I I think it did. Thank you. And so to get to the second comment first, yes, it's absolutely our position that this wasn't raised it wasn't raised on remand, it wasn't raised in the initial proceedings, it wasn't raised in front of the Oregon Supreme Court or on remand here. So, I think I understand the line of questioning for the larger understanding um you know, to to ascertain how to address that where it may be at issue in the future, but in this case, it's not at issue because the Supreme Court's remand uh was narrow. What was before it was the question of is this a dwelling? And it focused in remand on two questions. Design characteristics, is this structure physically a dwelling? And is it occupied by a farm operator? So, there was no question built into the remand that um addressed farm income or this this question at all. So, I submit it's not in front of Luba at this time. But but to your >> not subsumed within the definition of what is a farm operator in this context? >> I'm sorry, could you repeat that, please? >> You're arguing that the scope of you're arguing two things as I understand it. This issue is waived because it wasn't raised in the remand or this issue is waived because it wasn't raised in the initial proceeding. >> It's both. It would hasn't been raised but >> which is a little bit challenging in this context because as you well know the >> [clears throat] >> ideas have morphed significantly from the first time it was before us to the court of appeals to the Supreme Court and back down. But the Supreme Court obviously thought the issue of farm operator was the was the issue before them. So why are the issues of farm impact or farm income and who produced the commodities not live issues under the remand question of whether the dwelling is occupied by a farm operator? >> Yeah, so that's the key focus of the farm operator discussion in the Oregon Supreme Court is occupancy by the farm operator. I understand where the direction of the question of sort of tying in this dwelling is occupied by a person or persons who produce the commodities, but what you're doing is reading into that rule where where it doesn't exist in sub C that that person is the farm operator. In the farm income test regulation, farm operator means the the uh person or I'm going to say or entity that earned that earned the income. And it purposely doesn't say the farm operator is the one who's who is producing the commodities. You can have a farm operator who for purposes of 215448 and I'll note that the Supreme Court was very careful to say it was talking about the meaning of dwelling for the home occupation statute, not for all all purposes. Um and the regulation here for farm income doesn't talk about the farm operator occupying the the dwelling. It talks about the person or persons plural which means that you can have multiple people. Um and you know, we're not talking about having multiple farm operators, but this says person or persons, indicating that we're talking about something different than the farm operator, even in the context of the farm uh income rule, than uh than we are here. So, here the question is, is a farm operator occupying the dwelling? And the board can correctly concluded um that it is. It correctly concluded that it's a dwelling and I'm happy to get in um to to that analysis and those arguments because the county did correctly walk through um all of the aspects of this structure and determine that it it is a dwelling and I would just add um that the uh Sorry, I want to make sure I'm watching my time here. That uh the arguments that petitioner relies on um conflate the the question of what the structure is and the home occupation use within it. And a lot of this boils down to a timing issue. If Grange Hill had built this structure under its primary dwelling permit as it as it has and is entitled to do and did not at that same time uh of construction seek to operate a bed and breakfast home occupation, there can be no question that this structure with its enhanced safety features and all of the things that petitioner argues make it something other than a dwelling, would be a dwelling. It would be occupied as a dwelling. It would be sold, if it were ever sold, as a dwelling because it is a dwelling. And the arguments conflate that use of a home occupation bed and breakfast home occupation with the nature of the structure itself. If Grange Hill were seeking to operate a different home occupation, we use used the example of an embroidered pillow business and use nine of those bedrooms for sewing rooms and and inventory management with five employees. There's no question that that's not a hotel or a motel. It's still a dwelling operating a home occupation. And the fact that the home occupation is a bed and breakfast in which Oregon statute and the county code expressly contemplate doesn't change the nature of of the structure. But getting back to farm operator, that's my response is that this the the dwelling occupancy of person or persons isn't talking about farm operator. Um in this context, farm operator means what the county defined it to mean, which and that definition recognizes the practical realities of farming where um the owner may be someone other than the farm operator, but the owner is may want to retain authority to make uh the highest level decisions about what crops to plant and those sorts of things. But here, farm operator is defined defined to be an on-site person with day-to-day management also participating in the higher-level decision-making, negotiating contracts and the like. And that is entirely consistent with practical realities and what the Oregon Supreme Court um mandated uh remanded for consideration of. Um it left open to the county and this board to to define farm operator in this context. Farm operator can and does have different meanings in different contexts. And here, the definition of farm operator meets the context in which it's being uh used and defined. Um I want to touch briefly, if there aren't further questions on farm income or um design characteristics. Um touching briefly on the county's interpretation of its code. The primary argument there seems to be that uh family wasn't the definition of family wasn't adequately addressed. Uh we've addressed that in our brief, but I want to touch on it briefly here. A family can be a single person. The farm operator is a family. The the um so it meets the occupancy by a farm operator meets that requirement. Um and um so it wasn't necessary to to further address the definition of of family. Um I want to get back, I guess, to the Supreme Court's framing of the issues. Um as I said earlier, it framed the issues as twofold: design characteristics and whether the dwelling would be occupied by a farm operator, um but it also gave some some um guideposts that addressed many of the arguments that petitioners made in its uh its briefing. Um that is it expressly said at 373 OR ORS 805, "Land use provisions do not limit the number of bedrooms or bathrooms that a dwelling can have." And so the arguments that this is a motel because of the number of you know, the size and scope of the building, the Supreme Court expressly rejected. Um arguments about um the the relative proportion of the dwelling that will be used for the home occupation at 806, um the Supreme Court expressly said the legislature contemplated that a building uh can qualify as a dwelling for purposes of ORS 215.448 even when a resident is operating a home occupation large enough to occupy a substantial portion, if not a majority. Um and I see I'm running out of time. Um, so unless the board has additional questions, um, I'll leave it there. We ask that the board uh affirm >> Thank you. No further questions from the board. Uh, we will return to petitioner. You have a minute and a half for your >> Thank you. First, I want to reiterate that the nature of the structure is once again at issue because the applicant here has applied for a home occupation permit. Petitioner is not trying to collaterally attack the approval of the structure as a principal dwelling. We are just adhering to the Supreme Court and LUBA's direction that the structure itself must be assessed to determine if it's a dwelling. Second, the farm income test is necessarily implicated because a primary dwelling must meet the farm income test and a farm operator must meet the pri- farm income test. The Supreme Court noted the person who lives in the dwelling is the farm operator. And while the regulation says person or persons, the applicant has not demonstrated whether there will be multiple persons living within the structure. It only has one innkeeper suite and there's no evidence that a farm operator and somebody else will be living in the structure. The farm income test, I would say, is both retrospective and prospective. Retrospective because you have to make sure you meet those qualifications. Prospective because, as the Supreme Court noted, the issue of the farm operator is once again at issue because of the permit application. It is not something that can be established once and not readdressed when it is implicated. For all the reasons the petitioner has laid out in both its briefs and in the arguments today, we respectfully request that LUBA reverse the county's approval of the applicant's home occupation permit. In the alternative, we request that LUBA remand this case back to the county with clear instructions for how it is resolved to resolve petitioner's assignments of errors. Thank you for taking time to consider this issue. >> Thank you. That will conclude oral argument. The statutory due date for a decision in this appeal is July 23rd. We'll ask the parties to agree to an extension so that we issue our decision by August 13th. Is that okay with these parties? >> Yes, sure. >> Yes. >> Thank you. Uh have a good remainder of your day.

Summary: Good morning. This is the time set for oral argument in Luba number 2026-016 Friends of Yamhill County versus Yamhill County. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. This oral argument is being recorded and live streamed. Uh pending matters that I'm aware of are a motion to take official notice and a response. Those are pending with the boa…