Oral Argument 2026-030 Remington BESS, LLC v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=q8HVbLD4Uv4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Good morning. This is the time set for oral argument >> [clears throat] >> in Luma number 2026-030 Remington Best LLC versus Marion County. I'm board chair Zamudio. Board members Wilson and Basham are also present. In this appeal we have received a motion for filing an amicus brief and an amicus brief. Are there any other pending matters that the parties need to bring to our attention? >> Not that I'm aware of. >> Okay, thank you. Uh, 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? >> Yeah, I'd reserve five, please. >> Okay, and I will keep track of time here, but ask that you also keep track of your own time and just note that the clock on the screen is for reference, but it's not keeping exact time. And then respondent county and intervener, have you decided how you'll share your 15 minutes? >> We have, yes. I'll speak for about five minutes and then I'll leave the remaining time for the county. >> Okay, thank you. And again, I'll keep track of your overall time, but leave it to you to make sure that you're dividing your time as you have agreed. Thank you for agreeing in advance how you'll divide your time. Uh, so with that, petitioner, please state your name for the record and begin. >> My name is Ryan Thomas of Ashurst Perkins Coie on behalf of petitioner Remington Best. Good morning, chair Zamudio, board members Wilson and Basham. This case is about two questions. First, is a battery energy storage system utility facility under ORS 215.283.1c and second, did Remington's alternative analysis satisfy 215.275.2? I'll address of course those two topics and welcome questions from the board at any point. Before I dive in, I want to note that I see this case is both critically important to the state of Oregon and also quite straightforward. Uh it's important because it asks whether a key element of the rapidly evolving utility grid infrastructure will be allowed to be cited where it needs to be in order for Oregon to meet today's climate challenges and statutory requirements. It's straightforward because when the law is applied to the facts of this case, it's apparent that battery storage are utility facilities that can be cited on EFU land. I expect you'll hear from the county and Friends of Marion County this is a complex case surrounded by slippery slopes and I assure you that it's not. The existing legal framework provides clear boundaries and this case falls Okay, on on point one, ORS 215.283.1.c allows utility facilities necessary for public service to be cited on EFU land as a matter of right but does not define utility facility. The term is defined in the most instructive case, Cox v. Polk County, which all parties here have cited extensively. There the course define the court defined utility facility broadly to mean equipment or apparatus standing alone or as part of a structure that functions to perform or provide a service such as production, transmission, delivery, or furnishing of electricity. The record shows that Remington's facility fits squarely within this definition and the county committed reversible error by adding new criteria in finding the best are not utility facilities. BEST collects energy from the grid. It uses an electrochemical process to store that electricity in rechargeable batteries and then furnish that electricity back to the grid to serve residential and commercial customers during peak demand. The project will connect with Pacific Corp's Parish Gap substation and deliver that electricity into the system in the Willamette Valley service area where it will be consumed by residential and commercial customers. This is precisely the kind of equipment functioning to service, to furnish, and deliver electricity that Cox describes. >> Uh Mr. Summers? >> yeah. >> I'm looking at that quote you have from from Cox and your your brief and it starts the part you just quoted it utility facility is something that provides production, transmission, delivery, or furnishing of electricity here. And then at the end of the paragraph it says, you know, at the least it has something that does production, transmission. So, it repeats the first two of that first part and then it just says of or similar functions or service. Is that the same thing as delivery or furnishing? Or my my question is, do you have to show that you're furnishing electricity or can you be doing a similar function or service as well? I know you're saying you do furnish it, but I'm wondering if those are >> Yeah. >> independent bases. >> I I read them as independent. So, I think you can deliver or furnish or you're providing a similar function or service. And I I read the best would would do all of those things. It's it's delivering and furnishing and it's also providing other service such as this credit balancing. It's allowing renewables to be delivered to the grid when they need to. Um it's providing a service by ensuring that during peak demand that power gets to the end customer. We have a you know, transmission is very constrained in the state. Um and as we know with intermittent renewables, this is a necessary function to the modern grid. So, I think it's all of those things. >> Okay. Thank you. >> Mhm. LCDC described utility facility category is covering a wide range of things and the AG's office uh stated this is a general category that's interpreted broadly. The legislative history also shows that this category of utility facility is broad and open, whereas the other I think it's 24 or 25 or so of the categories in 2831 are very specific and narrow. Taken together with Cox, we understand utility facility definition is broad and equipment that provides that service I do think it's important to talk about how best fits within this larger statutory scheme in the modern grid. As I just mentioned to board member Wilson it's essential for utilities to have best in order to meet the energy and renewable targets that are set forth in House Bill 2021 and the storage procurement obligations in House Bill 2193. Pacific Core Zone IRP which is reviewed and approved by the commission the public utility commission identifies this need for a lot of storage 3800 megawatts of new storage resources in the 2025 RFP calls for at least 509 by the end of 2029. Um the need by utility alone does not make something utility facility, but what these show is these are integral parts of the modern grid in the system. So they weren't contemplated perhaps when the statute was first adopted, but they're serving a very similar function or service and they're furnishing electricity in a similar manner to a substation. Today's grid requires best with the increase in renewables, increased electrification and aging and constrained transmission system best provides an essential utility service. Given the broad standard and the functional reality of what this facility does along with the state policy backdrop, the best project is utility facility under 215 2831c and the county committed reversible So that brings me to the second question because best utility facilities the next inquiry is whether Remington showed that it satisfied ORS 215 275 through its alternatives analysis. That statute is the sole method for determining whether utility facility must be cited on EFU land. It requires an applicant to show that reasonable alternatives outside of EFU were considered and the facility nonetheless must be on EFU due to one or more and not all one or more of the six enumerated factors. The one or more language matters. Remington relied on three of the factors, the first three, technical and engineering feasibility, locational dependence, and the lack of urban and non-resource lands. Any one of those standing alone satisfies the test. The county tries to read out the words one or more by focusing on and used later in that list instead of finding that all of the factors must be considered. It treats all of these factors as if they must be weighed or balanced, which is reversible error. The statute clearly says one or more as does the supporting case law. The county cited no authority for a balancing test that would make that phrase meaningless. And Remington demonstrated necessity under these. And you know, I think it's important to note that this this legal error I think was committed first at the staff level and repeated by the HO and then by the board and it and it's really seemed to have infect the decision throughout where you know, I think for example, the health and safety factor was sprinkled throughout um some of these other factors and um that was not a basis upon which Remington is applying here and it really must only show one or more and The leading alternatives analysis case is Sprint and this was analyzed by all the parties here. In Sprint, the court said that the utility's decision about its service needs should be respected and the site that does not meet those needs is not a reasonable alternative. And it put boundaries on this so long as the utility's objectives advance the goal of providing utility service. The court acknowledged the tension between these two. On one end pure deference and in the other no consideration and it found that the balance between those two is appropriate. That the objectives should be respected so long as they're advancing the goal of providing service. The court actually found Sprint's desire to have its own tower rather than collocate on another tower could be reasonable. Here Remington prepared a detailed alternatives analysis that includes both high-level business objectives and then very specific siting criteria to identify the reasonable sites outside of EFU where it could perhaps provide service uh The record documents extensive methodical siting study. Remington first looked at 30 sites in the region with 115 kV substations have 115 kV or greater capacity. I'm sorry voltage. And then it narrowed that list to six substations that had available transfer capacity. Once it had the list of six substations that actually had capacity to take additional energy, it applied the 10 specific siting criteria. That's proximity within a mile of the substation, minimum acreage, slopes that are conducive to heavy batteries, the absence of wetlands, feasible network upgrades, etc. Only the Parish Gap substation met all of those reasonable criteria and that advanced the goal of providing utility service. The county's only counter evidence is a map of PGE substations in the county without any information as to whether those substations had capacity and without addressing how that would satisfy the business objectives of providing service to PacifiCorp. PGE substations are irrelevant. And Sprint makes clear that an applicant's reasonable business objectives here meeting PacifiCorp's service need must be respected. And the site that doesn't meet those objectives is not reasonable. Requiring Remington to partner with a different utility to solve a different utility's problem is not a reasonable alternative. It's an objective the statute and Sprint don't require Remington to pursue. It would also lead to problematic outcome where one utility's needs might need might go unsatisfied until a competitor's utilities are all completely met and that I think would be One final note on the alternatives analysis. One of the siting criteria is that the underlying zone must allow battery storage. And if a site doesn't allow battery storage, then it wouldn't be a reasonable alternative. Here, Marion County adopted ordinance 1480, which I think we all agree doesn't apply to this application. But, what it said when it adopted it was that BESS are not allowed anywhere in Marion County, and that ordinance is merely adopting what was already true. And that record citation there's 2645. Remington >> Before you run out of time, Mr. Thomas. The county says that you didn't raise the I think it's your first sub-assignment of error under the second assignment of error. So, there's no If you can't cite it anywhere in the county, then there's no reasonable alternatives. They're saying you didn't raise that issue below, that you were only arguing that the that ordinance doesn't apply. What's your response to that? >> Yeah, I think we raised it because it's a citing factor, but we didn't actually eliminate any sites based on that because we agreed that 1480 didn't apply. So, I think what's critical there is it's more of a consequence. So, if this case were to be remanded back to the county, there's no alternative sites even if 1480 doesn't apply because the county said BESS before 1480 and after 1480, BESS can't be cited anywhere. So, it's a really unique situation I think to this case with the timing of the application, the timing of this ordinance that I think creates an awkward situation where upon remand there wouldn't be any alternative sites. >> Were any of the alternative sites you >> Were they within cities? I believe that some were. Certainly, they were all outside of EFU. I'd have to double-check that. >> Okay. I'm just thinking if if it if it did go back and then or if if the county's going to say, "Oh, well, you could cite it in a city." then then it wouldn't really matter that there's nowhere else in the county you could cite it. >> Sure. Yeah, we did not eliminate any sites based on on zoning, it should be noted. Uh they were all due to other factors. >> All right, thanks. >> And I'm going to ask about what the proper remedy is for what you've argued or the errors. What's what's your position on the remedy here? >> Yeah, the position would be the reversal is warranted under both utility facility definition and the alternatives analysis. The county misapplied the law on both. It brought in factors that shouldn't be considered for utility facility definition, such things as is you know, a but for test, but for the best does electricity get to the grid still, get to consumers? That's not the test. Is it a regulated utility? That's not the test. And similarly with 215 275, I think that it's balancing of the factors rather than looking at one or more and and addressing and and bringing in public health and safety into multiple factors really colored and affected that analysis and so they got the the law wrong enough that it should be reversed. >> Okay. Any further questions from the board? All right. You will have two and a half minutes for your rebuttal and we will turn to intervening respondent. Please go ahead. >> Good morning, board members. John Butterfield for Friends of Marion County. Um I think we all seem to agree that their 215 283 1C sort of breaks down into two parts. Is this a utility facility? And then the necessary standard that that then goes into the additional factors. So, I'm just focused on the first part of of is this facility a utility facility? And Mr. Thomas said it seems straightforward and and I would respectfully disagree. I think this is an example of a on the line question of this new technology. It's not spelled out in the um it's not even really considered in Cox specifically and and the definition. And so, I think it's important to to sort of step back and revisit McCaw Communications sites. The sort of underlying principle that when we're when we're deciding whether non-farm uses are going to be allowed in farm zones, we want to interpret them in a way that best protects the farm zone while while meeting the other needs that we have and in this case utility service to people um and so that's where I think the Cox court was really going was looking at uh you know producing delivering furnishing power from its generation site to the people who are actually going to use it and but remember Wilson asked about okay we have the four that are defined in Cox and then we have these or other similar services and I think um Remington doesn't really explain what their other similar service would be if they don't qualify under furnishing they really seem to have hung their argument on that furnishing um function and I think Cox itself sort of lays out the limit of what what you could say is an other similar function because in Cox there was a storage facility that was being used for the water before it got applied to the trees and there was a um transmitting pipes to get the water from the uh original pre-treatment into these storage pipes and the court held those aren't utility facilities because they're not actually providing the service in that case it was disinfection of water and and I think that that's a good analogy for what's happening here where um in their in their reply brief Remington actually sort seems to say that if Bess is just storage, it wouldn't qualify. Um and they say Bess is something more than storage, but I I don't see that. It takes electricity out of the grid and then it puts actually less electricity back at some point in the future. And and Remington criticizes this as as we are claiming for a but-for test. I think Cox actually even and and the South Suburban Water case actually set up something that's even kind of stronger than a but-for test. Like in South Suburban Water, the the chemical treatment was happening inside of a pipeline. And if you didn't have that pipeline, the water would be spilling everywhere. There wouldn't be any treatment. Uh but the Lujan in that case said, "Well, but what's what's actually doing the treating is the chemicals, not the pipeline." And I think that's similar to what's happening here. What's actually providing the service is the electrons. And they need to move from generation to delivery to the consumer. And that happens through transmission and substations. But then at some point they're removed and then returned to the dis- to the grid through storage um in a market play about buying electricity when it's cheaper and selling it back to the grid when it might be more expensive. And that it is not um a a furnishing or a delivery of electricity to people. It's It's a commercial uh storage activity. Uh I think it's more similar to the wastewater ponds in Cox or the the pipeline that contains where the actual treatment is happening. So, I agree with with Mr. with Mr. Thomas said that need I I you know Oregon may very well need battery energy storage systems. That doesn't make them a utility facility that then can be cited anywhere in the EFU that they can demonstrate the necessity and they you know that can be the legislature knows how to change the law if it needs to you know it has set out specific statutory guidelines for things like solar sighting and it hasn't done that for the battery energy for for storage systems and I think that that's instructive that they're not considered utility facilities and and if the legislature does want to you know believes that they're so important that they should be cited in farm zones they could change the law to accomplish that. So happy to have any questions or otherwise I'll defer to Mr. Mittendorf from the county at this point. >> No questions from the board for intervener respondent we'll move to the county. >> Good morning chair and members of the board Andrew Mittendorf from Marion County. The county asks Luba to affirm the county's decision to deny the application for this best facility. The county's order rests on two independent grounds. First the standalone merchant battery energy storage system is not a utility facility within the meaning of ORS 215.283 subsection 1 C. Second even assuming it is a utility facility Remington did not carry its burden under ORS 215.275 to prove that this facility must keyword must be cited on EFU land. I will focus primarily on the second ground because it independently requires that the decision be affirmed. ORS 215-275 does not ask whether Parrish Gap Substation is Remington's best site, its least expensive site, or the site that best fits a particular request for proposals. It asks whether the facility must be cited in an EFU zone in order to provide the asserted service. The applicant bears that burden. On review, the question is not whether LUBA would have weighed the evidence differently. The question is whether a reasonable decision-maker considering the whole record could conclude that Remington did not prove EFU necessity. The county could reach that conclusion here because Remington's alternative analysis begins with a predetermined commercial project and then defines the universe of alternatives around that project. In the record, Remington identifies its objectives as competing successfully in Pacific Corp 2025 uh Oregon RFP using Pacific Corp as the offeror taker, preserving a 199-MW interconnection queue position, achieving commercial operation by the end of 2029, and maintaining commercial viability. Its screening criteria then require a Pacific Corp Substation within 1 mile, at least 15 contiguous acres, space for up to 40 MW of future expansion, and network upgrades below a self-selected $20 million threshold. Those may be all may be legitimate business considerations, but the board was not required to treat each of them as proof that EFU siting was necessary. First, going to the or going to the three uh areas or factors that Remington cited to. The first is technical and engineering feasibility. Remington's own analysis states that it's that it's available transfer capacity review only predicts where capacity may exist. Only PacifiCorp can confirm capacity through the interconnection study and Remington acknowledged that process can take years. Remington did not provide completed project specific studies showing that non-EFU alternatives could not be interconnected. The board therefore found that the evidence showed differences in cost, timing, and commercial attractiveness, not technical infeasibility. Petitioner emphasizes the order's use of the phrase "technically impossible." Read in context, that phrase did not create a new impossibility criterion. The findings identify the actual evidentiary deficiency. Remington did not provide engineering evidence establishing that a non-EFU alternative site could not be designed or interconnected. A self-selected cost ceiling and an RFP deadline do not by themselves transform a possible site into a technically infeasible site. Second, moving to locational dependence. The statutory definition requires a reasonably direct route or unique geographical need that cannot be satisfied on other lands. Remington established that Parish Gap is advantageous. It did not establish that a 15-acre site within 1 mile of that particular substation is a unique geographical need. There's no evidence that PacifiCorp required the Parish Gap substation, the 1-mile radius, the space for future expansion, or the precise project configuration. Remington stated reasons include transmission line cost, wheeling charges, electricity loss, crossing agreements, procurement timing, and commercial competitiveness. Those considerations may support Remington's decision to choose Parish Gap. They do not, however, compel the statutory conclusion that the project must occupy EFU land and instead are cost-based arguments, which the statute clearly says can be considered, but cost alone cannot provide necessity. Third, moving to the lack of urban or non-resource land, Remington excluded every non-Pacific Corp substation before evaluating whether land around those substations was available. It also excluded sites that did not satisfy its 1-mi acreage expansion, acreage expansion, cost, or timing screens. Sprint PCS requires respect for reasonable service objectives. However, it does not require a county to accept every applicant-defined commercial parameter as dispositive. Even assuming that will it that Remington may define the service as providing service to Pacific Corp's Willamette Valley system, the record does not establish that providing that service required every one of Remington's screening criteria. Remington rejected alternatives because a 2-mi transmission line and or a potential Interstate 5 crossing would make the project financially infeasible, which its analysis equated with being not commercially competitive. That's exactly a cost-based analysis that the statute says can be considered, but can't be the only reason that a site is is disqualified as a potential alternative. The board >> Um before we move on, I have a question about the first sub-assignment of the second assignment of error and about the ordinance that says you can't have these anywhere. Um what is your response to uh Mr. Thomas's point that if the county's decision gets affirmed, they go because of that use you found oh, you have reasonable alternatives, they go back and they just they'd have to file a new application, and all of a sudden under the new application, you're not allowed to do these anywhere in the county. What's what's your response to that? >> There's two response to that, Board Member Wilson. The first is that the county has been working with with industry partners to develop ordinance that would allow for sighting of best in Marion County, but coming up with conditions for approval of that because the county firmly believes it's not a subsection one use as of the right, and therefore the county can permit them, but it would have conditional uses. The second part is >> Let's let's well, assuming that if if the petition prevails and says oh, yeah, this is a utility facility and it's a sub one use, >> Sure. >> and then you send it back. Has this new ordinance been adopted that would supersede the one that doesn't allow them anywhere? >> Uh it hasn't been adopted yet, but it would it's forthcoming. We're doing a set of code updates and it's anticipated that that will be a part of it. >> I just want to be really clear at this juncture that we'll decide this case based on the record before us and what the county has or hasn't done or intends to do won't be a basis for our decision. >> That's fair, and I think the more dispositive part frankly on that question is what Board Member Wilson was alluding to earlier is the fact that any Marion County code doesn't apply inside of a city. So, if it's cited inside of a city, then the code is irrelevant because it's the city's determination and city code and ordinances that would dictate whether or not it's allowed or or banned. >> Okay. >> And I that kind of gets to part of this analysis too of there are urban alternatives that don't require EFU land, and that gets into that locational dependence Um and the lack of urban or non resource land that is one of the factors under 215 275. Um but for various reasons like I was saying the two mile transmission line or an I5 crossing those were ruled out because Remington said that it would make it not commercially competitive which is a complete cost based analysis. Petitioner repeatedly calls its evidence uncontroverted but the uncontroverted evidence is not automatically conclusive. The applicant continues to bear the burden of persuasion and a fact finder may reject evidence that does not persuasively establish the required statutory conclusion. The county was not required to commission its own engineering study or identify and design an alternative best project for Remington nor were the findings merely conclusory. They identified the one mile screen. >> We've We've reached your 15 minutes so if you'll just wrap up, please. >> Sure. The The threshold question here is that the county believes it's it's not a subsection one use as of right and even if it is the alternative sighting analysis didn't meet its burden um and that the county asks for the decision to be affirmed. Thank you. >> Thank you. Now for the questions from the board, we will return to petitioner for rebuttal and you'll have two and a half minutes for rebuttal. Go ahead. >> Thank you. Uh I'll again put these in two buckets of utility facility and alternatives analysis. So on the utility facility definition what we heard from Mr. Butterfield is an extremely narrow focus on actual electrons and if that test were to be applied as whether whether the facility is necessary for the electrons to get from generation to consumer I think that that's so narrow that I think we're all of a sudden saying well, transmission towers themselves might not be utility facilities cuz the electrons don't go through the towers. Would it just be the lines? But is a line kind of like a pipe in South Suburban and so wouldn't be the pipe? Is it only just the electrons? So I think it's a it's an overly narrow reading that that leads to some pretty absurd outcomes. Um as to Cox and South Suburban, those are also both water treatment cases and don't deal at all with electricity. Our focus on on what happens Oh, I I think it's important actually to answer this question. Um Mr. Butterfield indicated he thought we conceded that storage alone would not qualify and we certainly don't concede that. Um here >> [clears throat] >> excuse me. In Cox and South Suburban, there was discussion about what's actually occurring, whether there's a process or some service. Here, storage is the service for the grid and there's also a process occurring at the storage facilities. So in both in both situations, I think we satisfy those tests and Cox and South Suburban are are not a problem when it comes to battery storage facilities. Um on the the second points with the alternatives analysis, I think it's important to look at look at the boundaries under Sprint. So I think for example with the 10 siting criteria, those are not all costs. I think we we saw that in the briefing and we heard that again from Mr. Mittendorf that these are all just dressed up cost factors and they're really not. Um I think boundaries are important when you look at what what's the boundaries under Sprint. So for location for example, it may be that if if you said it you had to be adjacent to a substation, that could be too restrictive and you'd need to look beyond that. Here Remington said a mile works. Um the two mile example with the I-5 crossing, that's not just a cost factor. It's very difficult to secure property rights across two mile stretch. Um people don't have to grant you property rights. It's not a transmission project. Um so that is actually a locational dependence issue where it becomes prohibitive for a project. I think another boundary would be size. You could say we need 150 acres for this project. I think the county could come back and say that seems too large. Most of these commercial projects are 15 to 20 acres. So that would be a reasonable way that a county could impose some limits. Similarly with cost here, we've said 20 million dollars in upgrades, which is a significant amount of money. If an applicant were to come in and say, "We're going to eliminate a site if there's any upgrades." I think that would be unreasonable. So I I urge LUB to consider that there are boundaries baked in into Sprint and it's not just a slippery slope. >> Okay. Thank you. I'll conclude our argument and our statutory due date for a decision in this appeal is August 8th. We'll ask the parties to agree to an extension so that we issue our opinion no later than August 26th. Is that okay with these parties? >> See no. That's okay for petitioner. >> Okay.

Summary: Mhm. >> Good morning. This is the time set for oral argument >> [clears throat] >> in Luma number 2026-030 Remington Best LLC versus Marion County. I'm board chair Zamudio. Board members Wilson and Basham are also present. In this appeal we have received a motion for filing an amicus brief and an amicus brief. Are there any other pending matters that the parties need to bring to our attention? >> Not that I'm aware of. >> Okay, thank you. Uh, oral argument…


Oral Argument 2025-043 Cottrell Community Planning Organization v. Multnomah County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=p4S8QgYIb3M). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Good morning. This is the time set for oral argument in Catrell versus Multma County, Luba number 2025-043. I'm board chair Zamudia. Board members Wilson and Basham are also present. Um, thank you to the parties for being here and for muting when you're not speaking. I also want to thank the parties for coordinating the briefing on both sides. There was a lot of um the briefs are long in this appeal and so it was very nice to see that there was some coordination on both sides and we really appreciate that. I'm not aware of any pending matters in this appeal. Um is there anything the parties need to bring to our attention? Nothing from the parties. Okay. Uh we have uh multiple parties on both sides. For petitioners, you can share and intervene petitioners. You share your 15 minutes. Have you decided how you'll share your time? >> We have I will be covering the oral argument for the petitioners collectively. >> Thank you. And would you like to reserve any time for your rebuttal? I will try to reserve about 3 to four minutes. >> Okay. Uh I'll let you know when you're going into that, but I ask that you keep track of your own time as well. And a respondent and intervener respondent, have you decided how you'll share your time? >> Yes, we have. Um I will be speaking for about five minutes for respondent and then uh Portland Water Bureau will speak for the remaining 10. Um thank you. >> Thank you. And uh we'll also be keeping track of the overall time here, but leave it to you to figure out when to change over. And uh with that, I think we'll start. Petitioners attorney, please state your name for the record >> Thank you. Good morning, chairs and board members. My name is Carrie Richter. I'm at the law firm Baitman Sidell. I'm here today representing the petitioners Catrell Community Planning Organization at Multma County Rural Fire Protection District number 10. The singular criterion at issue in this demands a finding that the proposed community service use a regional water filter filtration facility and associated pipelines will not adversely affect natural resources. These are six words. Yet the criterion that the hearings officer applied in this case is not six words. Rather, she applied a standard that provides the proposed use will not adversely affect nearby natural resources as identified in the comprehensive plan policy 16 list that cannot otherwise be mitigated when considered on the whole, taking no particular individual resource into account over the life of the use. adding 33 additional clarifying and narrowing words when, as Luba is aware, Luba and the hearings officer cannot insert words that have been omitted, applying layer upon layer of constraint to the applicable criterion, the hearings officer changed it from one that prohibits adverse effects to one that allows unfettered harm so long as it is coupled with some effort at mitigation. This is not what the language of the standard says. Further, the context of the 1977 comprehensive plan places a thumb on the scale favoring natural resources over regional water filtration facilities which were never contemplated to occur. There is only one case where Luba has construed this exact standard. West Hills and Island Neighborhood Association versus Multma County where Luba has said that the ad the no adverse effect obligation is stated as an absolute and imposes a stringent standard. That's at page 18. West Hills establishes the methodology. It means no harm to any natural resource. No degradation, no loss, no negative difference ever. The flip side of this would be protection or preservation always. If the hearings officer cannot conclude that there will be no harm to the nature, quantity and quality of the resources throughout the life of the use, the standard is not satisfied and the use must be denied. Conducting the required adverse effects evaluation required comparing two different pictures that had to be supported by substantial evidence. first preconstruction and second post construction. In these cases, both pictures lack critical information necessary to determine actual harm. If Luba concludes that the picture is sufficiently clear, the harm is apparent. The first picture deals with preconstruction conditions. This is a fundamental predicate for determining adverse effect and demands an exacting evaluation of what existed before. Regarding riparian resources, the preconstruction picture was informed solely by third-party studies considering the full length of the miles long Johnson Creek, what Mr. Alsbury characterizes as an urban stream based on assessments in Gresham and Boring rather than the rural edge of Multma County that's at record 3750. No sight specific conditions, flow rates at discharge points, sediments or pollutant loads were evaluated. This lack of evaluation undercuts the water bureau's claims that preconstruction runoff is full of sediment pollutants or of a high temperature. and without any baseline assertions of a 70% reduction in sediment load or a 40% reduction in pollutants which is at record 3738 is unsubstantiated. Mr. Alsbur's information on amphibians comes from I naturalist a internet um service and surveys conducted by others downstream of the filtration plant. The water bureau claims that this constitutes a pre-development evaluation and yet there is no spite sightspecific identification of species their patterns or habitat conditions beyond endangered species and cut throat endangered excuse me endangered salmon and cut cutthroat trout and there's a general description at that turning slightly to include upland wildlife the water barrel faults opponents for not quote so undermining the water bureau's experts claims sufficient to show that a reasonable person would not rely on them. This response impermissibly shifts the burdens to opponents to test preconstruction runoff conditions or to inventory wildlife sufficient to challenge the habitat assessment assumptions when all those conditions have been destroyed. Precondition construction conditions haven't existed on this site since 2021 when farming ceased. That's at record 2285. It is the water bureau that failed to carry its burden to establish exactly what natural resource existed within the preconstruction picture. In summary, no reasonable person relying on nonsightspecific accounts to speculate about the character of the runoff or a generalized mitigation focused HEP procedure could accurately determine whether the regional water filtration facility, a 94 acre mega industrial complex would result in adverse effect. The preconstruction picture just lacks the adequate details. Turning now to the other side of the equation, the picture of post construction conditions. First off, this picture bears no resemblance to what existed before. It's entirely new, different, and marketkedly worse for natural resources. Nothing in the plain language of the standard contemplates an entirely different natural resources picture. Different habitat, different wildlife, all arriving sometime during the operation of the facility. This is not what an adverse effect demands analysis demands. This new picture shows 40 acres once open and available for wildlife use that will never again be available. It will be fenced. At least 125,000 cubic yards of soils farm soils will be lost for farm from farming forever. The remainder 47 acre area may include greater number of d of and diversity of trees that are 6 to 8 feet tall and 5 years old where the preconstruction trees were 80 to 100 ft tall and 15 to 85 years old. That's at record 4797. This is not about trees alone, but rather the wildlife habitat these trees provide. The best and only finding of the question of wildlife restoration uh provides and this is what is quoted in the findings and in the respondents brief that the newly planted trees will quote quickly provide a variety of functions for animals such as insects and song birds. Uh this finding is based on a a water bureau expert statement dealing with one lot on car one of the carpenter lane um uh reh rehabilitation lots and the claim is that songbird and insect restoration will happen within 1 to two years which is either at the date of opening or thereafter. This is most importantly not responsive to answer the critical fundamental questions of effect to the wildlife, including whether these new plantings will attract and restore habitat for large mammals, fish, birds, and frogs. Whether the remainder of the property beyond the carpenter lane lots will function as wildlife habitat rather than just a stand of trees. What assures the long-term retention of telephone poles or other man-made perch that the water bureau now claims for the first time will be suitable for birds of prey overall when these when I mean taken together when will these functions identified and projected through the wildlife habitat unit projection be restored the record doesn't say the Water Bureau's theory is that so long as the total wildlife habitat unit projection is met, there is no adverse effect. Under this theory, the wildlife habitat impact could be fully restored by covering the ground with garbage, attracting crows, and declaring this condition dedicated natural resource habitat and finding no adverse effect. This cannot be right. This cannot be what the county intended. The natural resources that cannot suffer adverse effect must be the same natural resources that existed before construction. Providing different natural resources just song birds and insects for example reveals actual harm. Regarding the timing, the plain language of the standard does not allow for any delayed compliance on what might be typical or common. Such an interpretation would allow a developer to delay the installation of a conditioned road improvement because the high cost of asphalt and the preference to wait until the price come down comes down. Such a condition would never be sufficient to show compliance with the standard. If the county intended to allow time for growth of mitigation planning plantings, it would have adopted landscape mitigation standards that like other jurisdictions have that provide as much. Multma County code uh 397515B does not provide this level of flexibility. Finally, I'd like to respond to the claim that not allowing for regrowth would prohibit the removal of any tree. This is akin to the no landfills ever argument that Luba summarily subject object rejected in West Hills. The county did not comply contemplate allowing a wide variety of community service uses and went so far as to specifically list regional facilities like hospitals or landfills. regional water filtration facility is not on that regional list. It's at app 285 of the catrell brief and as such it is not an otherwise typical and ordinary community service use as the water bureau claims. I think I'm about over I'm at about 12 minutes so I'd like to reserve my remaining three minutes for rebuttal. >> Okay. Questions from the board? Okay. You'll have three and a half minutes for your rebuttal and we'll turn to the county um for your argument. >> Thank you board members. For the record, this is June Bradley representing respondent Multma County. I'd like to begin by refocusing on the two primary interpretive issues before Luba. The meeting of MCC 39715B, which I will also refer to as the criterion, and the use of mitigation to meet that criterion. Then intervenor respondent Portland water bureau will address the evidentiary issues. Starting with the meaning of the criterion. There are two key terms natural resources and adversely affect. As to natural resources, the hearings officer correctly determined that the natural resources subject to the criterion are those listed under the natural resources policy policy 16 of the 1977 plan. With policy 16, the 1977 board specifically stated that the implementing code must require a finding prior to approval of a quasi judicial action that a discrete list of natural resources, the policy 16 list, will not be limited or impaired. In this way, the policy 16 list is explicitly tied to what is now the criterion, which was adopted by the same 1977 board on the same day. Even if the meaning of natural resources is as broad as petitioners argue, the hearings officer applied the criterion to each asserted resource and found that there will be no adverse effect. If Luba upholds those findings, Luba need not reach this issue. As to adversely affect, the meaning of that term is not before LUBA because no party assigned error to the hearings officer's interpretation. Under that interpretation, the test is whether there will be actual harm to a natural resource as a whole that is more than dimminimous. The test is not as petitioners now demand whether the nature, quantity or quality of a resource or its component parts will be changed. The hearings officer specifically rejected that test and petitioners do not challenge that finding. Nor does West Hills require the test that petitioners demand. the West Hills reference to consistency >> under hearing under the hearings officer's uh analysis and conclusions here. How fungeible is the idea of a natural resource? Is it if you can qualify something or characterize something as a natural resource and quantify harm or benefit as long as you can call the thing a natural resource? Any natural resources interchangeable? So the under the hearings officer's definition, we're looking at resource scale. So the resource itself, for example, wildlife habitat, not components of wildlife habitat. Um, and then not natural resources as an umbrella category. >> Okay. So when we're talking about wildlife habitat, could we replace uh a wetland with upland? And as long as it's habitat for some species and you can quantify the quality of the habitat, natural resource could allow that change. Correct. Because the the level of granularity is the resource itself. Um we're looking at the resource as a whole, not those component parts like a planned habitat. >> So the first step of natural resource is to categorize what the resource is. Water quality, air quality, wildlife habitat. And that's just the county's interpretation because there's nothing that helps us understand what natural resource is besides the list that you're referring to. >> Correct. The policy 16 list lists these specific resources. And so those are the things on which the hearings officer is required to make findings. And then once we have that category in the county's view, as long as the evidence supports that the changes don't adversely affect that category of natural resource, there's a lot of flexibility within what those changes can be as the county's position. >> That's correct. >> Thank you. >> Of course. >> Um, continuing, um, West Hills doesn't require consistency for MCC 3975B. The reference to consistency in West Hills is to sub A. Um whereas sub A requires consistency with the character of the area, the criterion only requires the natural resources will not be adversely affected. These are wholly different standards. Turning to mitigation in control one, Luba held that mitigation may be used to satisfy the criteria of MCC 397515 because MCC 397510 allows the county to attach conditions to the approval of a community service use in order to mitigate any adverse effect. Petitioners are procluded from re-raising the issue under the law of the case doctrine. Even if Luba's holding in control one does not apply specifically to MCC 397515B, the hearings officer correctly determined that the same reasoning does. To the extent the petitioners challenge the hearings officer's interpretation of what qualifies as sufficient mitigation, their focus is on the relative age of mitigation plantings for wildlife habitat. The hearings officer does the hearings officer correctly concluded that mitigation does not need to be like for like for example for a tree for for a tree and if it does even if it does a period of of growth for mitigation plantings is anticipated and not adverse. If there are no further questions from the board I will turn it over to Portland Water Bureau. >> Go ahead. Thank you. >> Thank you June. Uh and good morning board members. I'm Renee France, co-consel for the intervenor respondent Portland water bureau. I'm going to address the natural resource category of wildlife habitat a policy 16 natural resource. The following question must be answered affirmatively to conclude that the use will not adversely affect wildlife habitat. Is the overall wildlife habitat value provided by the post construction use equal to or higher than the overall wildlife habitat value of the preconstruction use across all project areas? The answer is yes. and the record overwhelmingly supports that conclusion. I'm going to pause here to provide a bit of a um response on the wetlands issue because I think one distinguishing factor with wetlands is that they are separately protected by state and federal law and were addressed as a separate category of natural resource for that reason. Um, so I think the the the wetland is a little bit different than talking about discrete functional value of upland habitat. >> If I understand that comment, your responding to my hypothetical question and your response is that even within wildlife habitat, you would need to look at what type of habitat is it? And this project is replacing upland habitat I think and riparian. And is there also aquatic or is it just upland? >> All three. >> Okay. Um so I think I understand that that's was your comment. Is that >> correct? >> Okay. And then on the petitioner opened the argument talking about there's no baseline for the Johnson Creek quality. Um what's your response to that? So my co-consel Zoe Powers will will speak next and can respond to that question. >> Thank you. >> Um so first and quickly in applying the overall interpretation uh considerations identified by the county to wildlife habitat while the phrasing shifts opposing council argues that specific habitat functions or levels for individual species or alternatively wildlife itself constitutes the natural resource under the criterion. But the hearings officer correctly rejected those interpretations, finding that the criterion does not favor one type of habitat over another, nor does it prioritize habitat for one species over another. Instead, compliance is measured by comparison of the overall wildlife habitat value. Opposing council never challenge those findings. More importantly, there is no support in the text, context or legislative history for those alternative interpretations opposing council relies upon through all other arguments. Um there can be no debate that on day one of facility operation, there will be extensive vegetation in place. Despite removing just 4.4 4 acres of vegetation during construction. On day one, 68 acres will be planted with over 3,418 native trees and 46,000 native shrubs. This is far from covering the ground with garbage as suggested by opposing council. There is however legal argument focused on vegetation growth, but maturity of vegetation is not the sole metric for overall wildlife habitat value. Testimony provided by water bureau experts explains why the size and location of dedicated habitat, volume, and diversity of plantings and non-vegetative enhancements are integral factors. The hearings officer correctly relied on this substantial evidence to conclude that the criterion will be met on day one of facility operation. The table in the watering bureau's response to the petition reinforces this point by citing evidence in the record that the integral factors are not just improved over pre-construction conditions, they are dramatically improved on day one. In other words, the project substantially overmitigates to account for a period of growth for newly planted vegetation. Opposing council's argument that the identified improvements are not sufficient hinge on the unsupported interpretation that the six words of the criterion require habitat replication or alternatively specific levels for specific species. They do not. I note that even if the board were to find that despite the extensive over mitigation and dedication of habitat area, the hearings officer's day in one finding is not supported by substantial evidence or accepts council's varied attempts to expand the interpretation of wildlife habitat, the criterion is still met. The hearings officer correctly found that a period of vegetation growth is expected and allowed for criterion compliance specifically here where extensive vegetation is planted prior to day one and maintained throughout the life of the use. With that I'm going to turn powers rather white on behalf of intervenor respondent for the water bure. I'll start with aquatic resources and respond to your question. So to begin, all parties agree that the project storm water systems are the only project aspect which has the potential to have an adverse effect on aquatic habitat. So given that narrow scope of potential sources of impacts, Biohabitat's methodology focused on the externalities of the project from that storm water system and an evaluation of the potential sources of aquatic habitat impairment such as flashy flows or sediment load in storm water runoff. So fundamentally opponents are arguing that there was no pre-construction habitat evaluation because biohabitats did not follow their preferred methodology which would have involved a three-year long quote aquatic habitat evaluation with regular snorkel surveys and sampling. However, the criterion does not require an aquatic habitat evaluation. It requires the evaluation of the proposed use. And Mr. Mr. Alsbury of Biohabitats provided a well-ressearched, comprehensive, and conservative baseline as part of his analysis. Opponents bemoaned, for example, his references to the so-called 24K study from ODFW. But Mr. Albury didn't just read the 24K study. He spent seven years as a district fish biologist for ODFW and was in charge of the collection of extensive biological and physical data on fish populations and their habitats in Johnson Creek. You don't need a person taking samples for three years to know that the pre-construction used here was producing problematic sediment and pollutant lane runoff into Johnson Creek. Additionally, biohabitats found and the quarters did not challenge that improving these sources of impairment will benefit all aquatic life in area aquatic habitats. That is, there was no separate evaluation needed for amphibians or invertebrate habitat because of that unchallenged finding and because of the focus on sources of impairment. an argument that an approval criterion requires a partic what you're saying and the evidence. So the analysis that the hearings officer relied upon that Portland Water Bureau provided is looking at potential impairment from the use itself which it would be producing could potentially be producing an adverse effect without reference to what the quality of Johnson Creek was prior to that activity. Is that accurate? >> I wouldn't say without reference to what the quality of Johnson Creek was. There are extensive findings about what species were present and what kind of quality that habitat had after being subjected to runoff from large agricultural areas in the upper area of Johnson Creeks. >> So there was existing evidence of the quality within Johnson Creek and what Portland Water Bureau analyzed was whether Portland Water Bureau's storm water outputs would add to that impairment. >> Right? would they adversely affect natural resources? And the answer is for all the sources of impairment other than temperature, there is no evidence that this will be worse for Johnson Creek than the preconstruction agricultural use. >> Okay. Thank you. >> And this gets to a fundamental methodology disagreement between the parties. The opponents say that you have to do three years of aquatic habitat snorkel surveys and samples. And our expert advised the hearings officer that that wasn't necessary for this project where it is situated where there's not onsite areas of Johnson Creek, but the only potential for impact is that that storm water runoff which has always run to Johnson Creek will continue to. An argument that an approval criterion requires a particular study method is one of interpretation of the code, but RFPD10's reply brief continues to provide no citation to the text, context, or legislative history or any other source of their asserted methodology requirement on uh I realize that >> we have about 45 seconds left. So, it's probably wrap-up time and I want to make sure do the board members have any questions for Portland Water Bureau or the county? >> No. Okay. Um with my remaining seconds want to say on agricultural soils there's a factual matter I want to correct um the quantity of agricultural soil removed the reply brief uses an opposition number derived from a pre-construction estimate but there's findings at record 365 particularly footnote 91 that explain that soil only needed to be removed from a portion of the site and so friend's arguments that this was only half of the removed soil just misunderstands the scope of that construction activity. Thank you. And uh that will be your time and we'll return to petitioner for three and a half minutes of rebuttal. Thank you. >> Thank you again Carrie Richter for the petitioners. Um, first I'd like to uh respond to the county's uh claim that only the policy 16 list controls um and this idea that it's this discrete little universe and if the wildlife habitat was forest, you can make it uh savannah and it's completely fine. that misconstr effect to natural resources contemplated by the code, plain language of the code. And I'd also like to point out the intent of the policy is to quote protect areas for their natural resource value. The all of the context supports this idea of protection protecting what's out there. Um this is at record 2681. um and act 287 from the 1977 plans. The benefits gained by the preservation of wildlife habitat range from aesthetic enhancement of the landscape and to improvement of community health. Natural resources is not just wildlife habitat, the trees for trees sake. It is the trees because they provide wildlife habitat that is enjoyable by the community that gets to see it. Not when it is a stack of trees planted inside of 95 acres that no one will ever get to see. If the mitigation was anticipated, then the code would have specified as much. uh almost none of uh there is nothing in the text or context that supports the water bureau's position on this point. The claim of dramatic improvement is supported by the removal of Catrell Pond that may well help fish. It may well cool downstream of the subject property, but it will have no impact on the birds of prey and the downy woodpecker and the frogs. It will have no effect, and there's no evidence to support that. In conclusion, this is a case where the hearings officer did not find what she did not look for. This required emasculating the adverse effect criterion beyond recognition and relying on preconstruction and postconstruction pictures that are so cloudy. They could not establish that the upland habitat and water dependent wildlife and its habitat and the public's access to that habitat will not be adversely affected by the proposed water filtration facility use. Given the water bureau's decision to commence construction before obtaining final land use approval, it is impossible to bring the preconstruction picture into greater focus. For this reason, petitioners respectfully request that the approval of these applications be reversed. Thank you very much. I'd be happy to answer any other questions you may have with my remaining time. >> No questions from the board. Thank you for your argument. That will conclude our oral argument for this appeal. Uh the statutory due date for our decision is December 30th. We'll ask the parties to agree to uh an extension so that we issue our decision no later than January 20th. Is that okay with these parties? >> Absolutely. >> Yes. >> Thank you. Heard yes from everyone. Thank you. Um have a good remainder of 2025 and be well. >> Thank you. You too. Bye >> bye.

Summary: Good morning. This is the time set for oral argument in Catrell versus Multma County, Luba number 2025-043. I'm board chair Zamudia. Board members Wilson and Basham are also present. Um, thank you to the parties for being here and for muting when you're not speaking. I also want to thank the parties for coordinating the briefing on both sides. There was a lot of um the briefs are long in this appeal and so it was very nice to see that there was some coordi…


Oral Argument 2025-064 Ryland v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=CB7rbYJ4fWY). 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 2025-064 Ryland versus Clackmus County. Um I'm assuming Council Petroski you are an attorney at one of the law firms involved in this case. I don't see your name on the brief, so I'm I'm confused about your appearance today. Can you come off mute and uh let us know which party you represent? Or maybe the county can give us some information here. [gasps] >> Mr. Petroski uh is an associate at Mr. Stamps Law Firm and I believe he filed a a letter um or maybe Andrew did on his behalf with the board explaining that he would be handling oral argument today for intervenor respondent. >> Great. I did not see that but appreciate that explanation. Um and that would be the right thing to do to to provide a notice of appearance. And uh Petitioner Ryland, I assume you're joining by phone and don't intend to appear by video. Is that correct? Yes. >> Okay. And if you can either get closer to your speaker or um you know if you could turn up volume. I I can't hear you Can we do a test to make sure that when you're start your argument we can hear you clearly. >> Okay. Is that better now? >> That is much better. Thank you. Um so those kind of initial questions out of the way. This is the time set for Ryland versus Clackmus County Luba number 2025-064. I am board chairs Moodio. Board members Wilson and Basham are also present. And uh uh Petitioner Ryland, just so you know, this oral argument is being recorded and live streamed via YouTube. You might not have seen that or heard that joining via phone. I just wanted to let you know that that's happening. So you'll be able to access this on our website afterwards. And anyone else who wants to watch or listen is able to do that as well. And please mute your audio when you're not speaking. I'm not aware of any pending motions um in this matter. Is there anything the parties need to bring to our attention? No. Okay. So, we'll go on. Oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes um to argue and you can reserve up to five minutes for rebuttal and that's the time to respond to intervenor respondent or respondent's argument. Do you want to reserve time for rebuttal, petitioner? Yes, please. >> How much time would you like to reserve? You can reserve up to five, but you don't have to reserve that much if you don't want to. >> Um, five. >> Okay. So, I'll keep track of time here and ask that you also keep track of your own time. Um, and let you know when you're getting into your rebuttal time. And then intervenor, respondent, and respondent. You filed a joint brief. Have you decided how you'll share your time today? Um I intend to use uh the majority of the time if there's any leftover any questions directly for uh Caleb that that's fine. >> Okay. So with that uh petitioner please state your name for the record and begin. >> Good morning. This is Lori Ryland and I really appreciate the opportunity to address the board. >> Go ahead. >> May I start now? >> Yes. Go ahead. Thank you. Okay. So, unlawfully narrowing the scope and mclassification of the project. By misclassification, mclassifying and unlawfully narrowing the scope of the review, the county excluded mandatory standards and produced an approval unsupported by findings. The county treated a substantial structural reconstruction as a DZO1206 alteration and roof repair and unlawfully narrowed the scope of review allowing exclusion of threshold standards for excess fire safety and construction feasibility. I'm asking Luba to decide whether the county applied the correct approval framework. If the wrong approval framework was applied, the decision is unlawful, regardless of how long the structure has existed or what use is allowed outright in the bay zone. This is not just an alteration in roof repair. The county's own record describes work far beyond a m minor alteration. a full new roof over the existing structure and roof approximately 5 feet taller than the existing roof with a total new roof height of 31 ft with new structural work at the foundation and peer level and with renovations. The project results in a 2300 square foot multi-level building on a steep creek creek side slope located approximately 28 ft below the top of the cliff or slope edge. A project of this scale necessarily requires construction staging material handling large equipment such as cranes or equiv equivalent heavy lift methods. The county cannot lawfully discard these impacts by labeling the project a narrow DZO1206 alteration and roof repair and defer all other impacts as ministerial later. The feasibility and access problem the county excluded is straightforward. Even assuming the road, the adjacent slope and the triangular area above the slope function as a public right of way, the project cannot be constructed as authorized without exclusive construction staging, heavy equipment loading, or temporary obstruction of the only fire and emergency access for a 12 home community on Cedar Creek Lane. The Furwood Community Planning Organization to together with fire officials at the Dover Fire Station voted 25 to zero against approval and advised county staff of serious fire access concerns, stating that Cedar Creek Lane is potentially very unsafe should a fire impact this area. Active access is limited and massive amounts of fuel are present. This is a quote in an email to planner Gazner June 6, 2025. That's an exact quote. Yet, the county dismissed these concerns without finding. A local government may not evade mandatory standards by mislabeling the nature of the project. Here, mclassification is the reason access, fire safety, and feasibility issues were excluded as out of scope. The county assumed these off parcel areas within the ride ofway and the triangular-shaped area next to the row may be occupied for exclusive private construction use but made no findings that such use is lawful or feasible or any findings addressing design safety or suitability. The triangular shaped area above the slope or cliff cliff that the house rests on um sits below against the row. The row is a steep slope. The triangle area above it is the only flat usable area for equipment staging or crane setup. The largest area measures approximately 42 feet from the slope edge to the petitioner's fence which is including the narrow single lane dirt and gravel road in between. The county made no findings that this area could physically support heavy equipment ranging 35 feet to 42 feet in length weighing 35 to 50 tons for construction staging staging infrastructure risk that makes this omission material in this same area. There's an existing deep wells serving multiple residences. Heavy equipment such as cranes in the 35 to 50 ton range present foreseeable risk of ground settlement, long-term loss of well integrity or contamination, risks that carry costly re remediation and irres irreversible consequences that the county never evaluated or addressed in findings. These risks are material because the county's approval assumes this area can function like a normal construction site without any findings addressing load limits, protection measures, traffic control, or infrastructure safeguards. Neither county planners or inspectors visited the site with any findings addressing how cranes or heavy equipment operations could occur on a constrained 16 to 20 foot wide road without blocking emergency access. What legal authority, if any, pres permits the specific scope of construction staging and heavy equipment use proposed for the top of the slope area or how the shared well infrastructure in this area would be protected from heavy loads and repeated maneuvering? Instead, the decision relies on a paper plat and legal adjacency theory that does not resolve the physical reality. The platted rideway in front of the dwelling is a steep wooded slope, not a usable access or staging surface. A budding on paper does not create real real world capacity to construct a major project. Even assuming that adjacent cliff or slope area and the triangular area function as a public rideway, public row status does not automatically authorize permanent or exclusive private use such as constructing a driveway or a construction pad, repair or replacement of the deteriorating retaining wall holding up the edge of the road. tree removal for private benefit or conversion of road space into a construction staging area. Such uses must be consistent with the purpose of the rideway authorized by law and supported by findings that they are lawful and feasible in this location. Here the project's construction, access, and staging would require exclusive private alteration of the slope area subject to an encroachment permit. Yet the county made no findings that these uses are permissible or feas physically feasible uses of the rightway for this project as approved. The county's decision to classify this substantial reconstruction as a narrow DZO1206 alteration and roof repair and to use that classification to exclude mandatory feasibility, access, and safety analysis must be reversed. Once the county declared these issues irrelevant, no amount of post hawk permitting can cure the defect. Requested relief. This approval cannot stand because the project cannot be constructed. It's authorized without occupying and exclusively using off parcel land, the row or cliff and the triangle area in between the row and the cliff and the road. Even assuming public right of way status, the county made no findings that such use is lawful or feasible for this project, rendering the approval legally >> Thank you. Are there any questions from the board? >> Yeah, I have a quick question. Uh, Mr. And in your seventh assignment of air, I believe you argue that the non-conforming use was aband or discontinued. And then your brief says the record includes extensive probate evidence establishing that the structure was abandoned, deteriorated, effectively a tear down. We don't really talk about what that evidence is. What what is that evidence? Well, if well, first of all, a physical inspection of the site um would confirm everything that was documented in the 364 pages in the probate record. Plus, I submitted um 106 pages of a quiet title um that I um um filed with the circuit court, which isn't it's more of a land use documentation than quiet title. Um and then those same exhibits were submitted to the hearings officer and the probate um documents of 364 pages describe the structure with the uh why they came to the conclusion as a tear down plus all my photos and if anybody would have visited the site and actually looked at the structure which I have in email in writing by multiple people the planners um everybody body. Um there wasn't anybody and that was one of the reasons that the CPO, the firewood CPO voted 25 to zero is they actually the fire department was in attendance at the meeting. The fire chief was there. Um they actually looked at the building. They documented all that um in an email to Maya Gazner saying that it was deteriorated. Um they >> sorry to interrupt but is >> is there anything in there that talks about whether people were living there during this time >> and were people living there? That's I'm wondering were people living there? Um well there was over two and a half years where um it was um considered uh uninhabitable um per the probate records and there were squatters living in there un illegally. It was vacant for a really long stretch about two and a half years of uh unlawful use and that's all documented in those 364 pages. That's why in my original um appeal to the hearings officer I talked about that um it was not habitable and use was discontinued and the vote from the CPO the 25 members they also came to that conclusion that it it should never have been approved just because of the discontinuation of use. >> Okay thank you. >> Any other questions? No more questions from the board. So, you will have um three and a half minutes for your rebuttal time and we will turn to the intervenor respondent. Please state your name for the record and I also apologize. I do see that there was a notice of appearance filed from the intervenor respondent. So, I appreciate that and apologize for the confusion. Please state your name for the record and begin your argument. >> Thank you. Uh good morning. Uh may it please the board. My name is Spencer Petroski. On behalf of Intervenor Respondent Jennifer Kapnik and Terry Idmo, um as I said before, I intend to utilize uh respondents time, but Caleb is here. Um here, Intervenor asks Luba to affirm the county's decision uh approving this non-conforming structure uh for verification and alteration. Uh it's an existing single family dwelling on RF5 land. Uh before I get started, one thing I want to point out is that uh the board uh should see that in our briefs we said that assignments of error one through nine should be denied for failure to explain the grounds for appeal. Um our statements to that effect should have been directed towards assignments of error 1 through eight um and not included assignment of error 9 as that's a procedural error. Um this appeal uh should be affirmed by the board and I really I really just have four issues that I want to touch on. Uh first I think that uh miles waiver and exhaustion necessitate denial of the first assignments uh of error 1 through 8 uh based on petitioner's defective local appeal statement. Second assignments of error 1 and seven uh fail because they misapply the law for non-conforming use verification uh and should be denied on the merits. Third, assignment of error 9 should be denied because petitioner did not meet their burden to demonstrate a procedural error that prejudiced her substantial rights. And lastly, assignments of error two through six and eight fail because they don't identify approval criterion that's relevant to this application. Um I I I think that miles waiver and exhaustion really is the the key principle here. Uh the ZDO in uh 1307.14b3 requires that the local appeal notice state the nature of the decision and the grounds for appeal. Um it also makes uh completeness of that uh notice of appeal uh and failure to timely file it. uh as a jurisdictional defect. Um and >> did the did intervenor respondent raise this issue during the local proceeding? >> Yes. >> Where in the record is this issue? >> Um uh so oh whether whether it was a jurisdictional defect or whether uh miles waiver affected either or both of them. Uh we did raise the issue regarding um uh Miles waiver but not uh the jurisdictional defects. The hearings officer did obviously uh listen to um we we yeah we we did not raise the jurisdictional defect uh issue that uh that is just something that we are talking about for purposes of uh you know how it it >> where did intervener respondent raise the miles waiver issue and when during the local proceeding. Do you have a citation or was it during the hearing? >> I I believe it was uh in our briefs. I do not believe that it was during the local hearing. Um >> Okay. So, I just want some clarity here. Was this issue before the county? Did intervenor respondent during the local proceedings say the appeal statement is insufficient because it doesn't state the basis for appeal or is that an argument that is coming to us for the first time? >> That is an argument that's coming to you for the first time. >> Okay. And relatedly, council, this was an appeal of a planning staff decision to the hearings officer to a denovo hearing before the the hearings officer. Uh are can you site any cases where Miles waiver has been applied in that circumstance to a hearing? >> So, uh you know, the fact that it's a denovo hearing, I do understand how that changes things. Um but I I would just like to point the board to cases like Zaiton and also Lang. I understand that um those have similar code provisions uh to miles in terms of requiring grounds for appeal to be listed in the local appeal statement. Um and uh you know the the main issue here, the reason why this is really important is uh you know not adequately raising those grounds for appeal in the local appeal statement. It affects our ability to prepare for the hearings officer's hearing uh and uh you know get witnesses ready uh make sure our experts are able to attend if they need to and any rebuttal evidence that we would need to uh prepare for and uh you know uh I I think that waiting weeks after the local appeal statement to try to supplement that local appeal statement uh by the petitioner tried to do that on both August 7th and August 11th uh which is considered outside of that 12-day deadline uh that ZDO 1307.14A requires and that uh you know is considered untimely. It it's it really is a defective local appeal statement. I I do understand that uh the county did not actually rule on on that and that was not an issue that they talked about at uh the hearings officer's decision, but um you know, >> was there an objection from the intervenor respondent below? I understand your concerns about procedural fairness, but it seems to me that it would be incumbent upon the intervenor respondent to say we didn't have notice of these issues because the appeal statement does is not consistent with what the code requires. Did that happen? And if so, where did that happen? I'm still confused. >> Apologies. Um so uh we did uh bring up to the hearings officer and object uh I believe to um not the defective local appeal statement but uh to the lack of notice about uh you know those issues being in in uh >> and is there a citation in your brief to where that occurred where that objection occurred? >> No. >> Okay. Thank you. Go ahead. Um so uh as it relates to the merits uh the first assignment of error that I I would like to talk about is a assignment of error one. Um petitioner tries to flame uh frame this as a lawful establishment um as if the right-of-way encroachment at uh at the construction of the dwelling were to defeat verification under the non-conforming use criteria. Um the correct standard uh is ZDO 12605 and whether the non-conforming aspect existed when zoning restrictions were adopted and whether it was discontinued. Uh the hearings officer here uh relied on the fact that uh the zoning was first applied to this dwelling in 1967. Uh which predates zoning. Uh the hearings officer also relied on the county appraisers assessment that the dwelling was built sometime between 1920 and 49. Um, and also there was a tax jacket that uh he relied upon which showed a bill date of 1930. Um, that was well before the 30-foot setback or any zoning restrictions were applied to this property. Um, another thing that I'd like to point out is that uh the uh platted rightway issue. Uh the hearings officer considered that outside of the scope uh of the non-conforming use and uh noted that there was a engineering uh revocable encroachment permit provided to the applicant. Um you know and that that itself the encroachment permit was not related to the NCU approval. Um and the hearings officer also noted um the the distinction between where the asraveled the asriven road location is and where the encroachment occurs in the right of way. the encroachment into the right of way is occurring in a part of the rightway that is not actually built. It's not actually driven on. Um and so uh as it relates to assignment of arowan petitioner uh identifies no approval standard in zdo 1206 that makes uh any historic encroachment into platted or unopened rightaway a basis to deny verification or alteration. Um the next thing I'd like to talk about is assignment of error 7. Um that's again that's related to abandonment or discontinuence. Uh petitioner here treats the residential use itself uh as the non-conforming use and that argues that it was discontinued. Um I heard the question previously by u uh board member Wilson um uh as it relates to discontinuence. And I I I just want to focus on this that the the hearings officer uh correctly framed this application as one uh dealing with a single family detached dwelling that's an allowed use in the zone. Uh the dwelling itself, the occupancy of the dwelling itself is not at issue here. The discontinuence is primarily related uh to whether or not the encroachment, the non-conforming encroachment has has been changed. So, so a lot of jurisdictions, they make a distinction between non-conforming structures and non-conforming uses and treat them differently. Does the Clackamus County zoning ordinance do that? Does 126 do that? >> Yes. Uh there there is a a a difference between a non-conforming use and uh a a a structure that is not that doesn't conform to things such as setbacks and uh and height and and other criteria. And and that's it. Where where is that in 1206 that talks about the distinguishes between the two? >> It's in the definition section. So that would be two section 202 uh of the ZO. It has a definition that that talks about that. >> Um I I believe it's uh in our brief as well that we talk about it. >> Okay. So So what is so what is your position what the the non-conforming use is here? So, the non-conforming use uh or or I guess you could arguably call it I mean we call it a non-conforming use because that's the section that it's in in 1206, but in reality the distinction is that it's it's a non-conforming structure. It's not a non-conforming use. The use is allowed in the zone. The use is not non-conforming. uh a a detached single family dwelling is allowed to be built in RF5 land, but the actual nonconformity is the non-conforming setback, which again did not apply. The setback did not apply when this building was built in the first place. >> Right. So, so under your the way you're looking at this and the way the hearings officer looked at it, it doesn't matter if that house was unoccupied, nobody lived there for decades, say, right? >> Correct. And so even if even if the house is completely falling down, as long as the part that's in the occupied ride ofway is not falling down, you're still okay. Is that right? >> I I mean, you know, uh I I would say uh that to the extent that the dwelling is in a state that's not, you know, uh not somewhere where everyone would want to live is is not relevant to this uh non-conforming use application. Uh the uh the uh applicants here are attempting and wanting and very willing to make this dwelling very much, you know, a a home for themselves and to uh change the, you know, help the structural integrity of it. And they're doing everything that they can to do that and to clean up the property. Um and and again, that just the the level of uh uh issues with, you know, the structure itself are are not related to the criteria here. So the the residential use was discontinued but the right-of-way occupation was not discontinued. Is that correct? >> I I I would I would push against that in the sense that uh the previous occupant uh previous owner of the property died and it went through probate and that's what led to a delay uh in it getting into the hands of uh Jennifer Kapa and Terry Mo. But uh to the extent that you know that there was any discontinuence uh again it's it's related to the setback and not related to the actual residential use as that's a conforming thing in the zone. >> Okay. If Miss Ryland were correct that not living in the house for 24 months would mean it was discontinued. Was there 24 months of that kind of discontinuence? I I realize you have arguments against that and there we'd have to even get there. procedural things, but if if we did >> and it if being discontinued residential use for 24 months would result in denial, is that what would happen? Or do you have an argument that it wasn't actually discontinued residential use for 24 months? >> Um, I believe uh to the extent that we argued about this um it it was primarily that that is not the type of discontinuence that we're referring to, that's like outside of the scope. Um, and to the extent that we really argued about the level of of discontinuence, I'm I'm not aware uh to what extent we focus on on how long it was not used as a residence um or whether enough whether there's enough evidence in the record to support that uh it had been residentially discontinued if that were applicable. >> Okay. Thank you. >> Yeah. Um so uh just you know as it relates to both assignments of error one and seven uh we uh hold the position that uh those assignments of error misapplied the ZDO uh of what was required by ZDO 126 and what the hearings officer had to decide. Um so if Luba does not agree with our miles waiver analysis these assignments still should be denied on the merits uh as they're not tied to the proper uh standards and in in front of the hearings officer. Um next I wanted to talk about assignment of error 9 which is the only procedural claim here. Um this challenges the 777 open record period. Um and you know this focuses on uh uh a preservation issue uh regarding this procedural error. Uh and you know procedural objections they have to be raised when there's an opportunity to do so. And here uh uh the petitioner agreed to this 777 format. Uh they did not timely object when that issue arose in front of the hearings officer. Uh petitioner did not invoke the statutory remedy that actually addresses her complaint uh regarding the 777 format. Uh found that OS1977976C, which allows her to make a written request for an opportunity to respond to new evidence. Um and she did not request that relief. Um, additionally, uh, there's a prejudice requirement in that statute. Uh, and so even if there is a procedural defect that existed, uh, no remand can, you know, uh, can happen when there's no prejudice to her substantial rights. Uh, she doesn't identify what she would have submitted, what arguments uh, she was prevented from making uh, or how it could have changed the outcome. Um, and you know, another point that I just like to make is that if new evidence was entered into the record during the local proceeding, but didn't play a role in the decision, uh, there is no basis for reverse or remand under OS 19783598. Uh, as it could not have prejudiced or substantial rights. Um, I would point the board to Neighbors for Smart Growth, which we cited in our uh, brief. Um, and the next thing I'd like to talk about is >> you you've reached your 15 minutes, so this is seems like a good place to stop. We will return to the petitioner. Uh, petitioner, you have three and a half minutes for your rebuttal. And go ahead when you're ready. >> The county addressed and decided the issues on the merits of form defects cannot convert decided issues into waiver. Um the set that the setback um I'm sorry encroachment matters because it goes to whether the project is legal legally feasible as approved. Um the issues were raised in the local appeal and the hearings officer ruled on them as out of scope which establishes notice and preservation. Um the statutory remedy 777 um when I submitted my uh evidence um the planner that I was dealing with would not submit it until the very last day of the seven days. Um I was not aware that there was a statutory remedy for the all of the um filings that happened on the very last day of the very last week that I was not allowed to um um that was just um for the last word for the defendants. Uh I was not allowed to say anything there and I was not aware of a statutory remedy to remedy that. Um but it probably occurred because of the 777. Everything was submitted on the last day which gave nobody time to um if they didn't submit it when you submitted it then it didn't give you any time to rebut it. I use all my three and a half minutes. >> Now you still have about a minute and a half. You can continue if you want or you can end there. There's no rule that >> Did you have more argument that you wanted to present? >> I would say one one more thing. Uh procedural error here is the county's unlawful narrowing of scope and exclusionary of exclusion of mandatory standards, not a defect of how issues were labeled. >> [snorts] >> So I think that kind of wraps it up. >> Okay. Thank you. Uh are there any further questions from the board? No further questions. So that will conclude oral argument. Uh thank you to all of the parties for your argument. Our statutory due date for decision in this appeal is February 19th. We'll ask that the parties agree to an extension so that we issue our decision by March 5th. Is that okay with these parties? Seen for agreement and a yes from petitioner.

Summary: Good morning. This is the time set for oral argument in luba number 2025-064 Ryland versus Clackmus County. Um I'm assuming Council Petroski you are an attorney at one of the law firms involved in this case. I don't see your name on the brief, so I'm I'm confused about your appearance today. Can you come off mute and uh let us know which party you represent? Or maybe the county can give us some information here. [gasps] >> Mr. Petroski uh is an associate a…