{"title": "Oral Argument 2026-030 Remington BESS, LLC v. Marion County", "content": "Oral Argument 2026-030 Remington BESS, LLC v. Marion County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=q8HVbLD4Uv4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> 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…", "source_url": "https://www.youtube.com/watch?v=q8HVbLD4Uv4", "source_name": "Oregon LUBA", "doc_date": "2026-07-29", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-043 Cottrell Community Planning Organization v. Multnomah County", "content": "Oral Argument 2025-043 Cottrell Community Planning Organization v. Multnomah County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=p4S8QgYIb3M). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood 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…", "source_url": "https://www.youtube.com/watch?v=p4S8QgYIb3M", "source_name": "Oregon LUBA", "doc_date": "2025-12-17", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2025-064 Ryland v. Clackamas County", "content": "Oral Argument 2025-064 Ryland v. Clackamas County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=CB7rbYJ4fWY). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood 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…", "source_url": "https://www.youtube.com/watch?v=CB7rbYJ4fWY", "source_name": "Oregon LUBA", "doc_date": "2026-02-04", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "OA 2025-027 Miller v. City of Maupin", "content": "OA 2025-027 Miller v. City of Maupin\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=qlBjSQroq-M). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. If council could come on screen if you have that ability, please. All right. Good morning. This is the time set for oral argument in luba number 2025-027, Miller versus the city of Min. I'm board chair Zamoodio. Present today are also board members Basham and Wilson. Uh please mute your audio when you're not speaking. Thank you. I see that you've already done that. I'm not aware of any pending motions um in this appeal. We do have a challenge to the jurisdiction of the board in the response brief which we will deal with in our final decision. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes for your argument and may reserve up to five minutes for rebuttal, which is time to respond to the city's arguments. Did you want to save any time for rebuttal? >> Yes, I think I'd like to reserve four minutes. >> Okay. Uh I will keep track of time here and ask you also keep track of your own time and I'll let you know when you get into that rebuttal time. And then after you present your argument, the city will have an opportunity to present their argument and uh that will be the totality of the oral argument. So with that, petitioner, if you could please state your name for the record and begin. >> Sure. My name is Karen Miller and um I'd first like to thank the board for the opportunity to present and participate in this case and to apologize for the oversightes I've made that have caused you and your staff additional work. Uh here's just a brief history and overview. Petitioners appealing planning commission's decision to approve an after-the-act flood plane development permit for an RV park and adjacent subdivision located in the FEMA floodway of the Dishutes River and city council's upholding of that decision under local appeal. The case is a result of several years of land use actions related to these developments. Staff reports and recommendations provided by contract um contracted planners to this city decision makers were inaccurate and misleading. Planning commission did not fully understand their own local codes nor the state requirements and did not question those staff reports and recommendations. Decisions were made without required public hearings and development proceeded without the proper review and the associated flood plane development permit. The permit applicant was a city council member during this time and at the time of permit approval. Six months into construction and six months after respondent received direction and offers of assistance from Deanna Wright of the Department of Land Conservation and Development to establish the permit and review process for these developments. Respondent finally acknowledged the permit. Respondent had never processed a flood plane development permit. Although there is residential, private commercial, and city-owned commercial development in the FEMA floodway, planning commission had no experience or training in flood plane management, even though they are appointed as the uh administrator of the local flood plane ordinance. This authority includes granting or denying development permit applications prior to commencement of development in accordance with the title provisions. After multiple denials that a permit was required and that the land was even in the floodway, the same contracted city planner established a permit template which they provided to Mr. Miles without the knowledge, review or input of the planning commission. The completed application template was then provided to planning commission by the planner who recommended approval of the permit even though the information on the permit was incorrect and only one of the many supplemental requirements were included. requirements of MMC14 were not followed. The subject permit was approved administratively with no comment and no public hearing. Upon local appeal, the city council upheld the planning commission's decision. Of first concern is the lack of notification and public hearing requirement for planning commission's two meetings to review and approve the after the fact permit as required by OS 1977. >> [snorts] >> Approval of the permit was clearly a land use decision as defined by OS 197015. By establishing a flood hazard overlay district, Muffin's land use code MMC18 mandates compliance with the [snorts] requirements of the city's ordinance relating to flood areas in addition to requirements of the appropriate zone as specified in MMC18. In this case, the zone is RC recreation commercial. Although respondent ignored the requirements of OS 1977 797 and local code by approving the initial RV park plans in 2022 without a public hearing. They eventually acknowledged the permit requirement in June 2024 after earlier stating multiple times that it was not required for either development and after construction activities including installation of underground utilities for both developments were essentially complete. Basically, a respondent admitted their error in not requiring the permit initially and then denied any opportunity for public input just as they did in 2022. Respondents brief states that flood plane permit is ministerial in nature and is unrelated to any specific use of land. This is confusing and incorrect as the permit application itself as an extension of MMC14 requires specific identification of the development to include site plans and elevations, location of field placement, dimensions of proposed structures, location of facilities among many other requirements. However, none of these supplemental requirements were provided with the permit application. Of second and related concern is a lack of compliance with OS227, city planning and zoning. >> Just interrupt you for a moment. What land use regulation are you arguing as applied in the challenge decision? >> Uh MMC14. >> Okay. So, in your view, MMC 14 is a land use regulations defined by statute. Yes. >> Um the second concern relates to RS227 city planning and zoning. Like RS 197 797, RS227 requires public hearing for land use decisions and permit applications. It also requires that approval or denial of a discretionary permit application be related to the standards and criteria of the development ordinance and to the city's comprehensive plan. Respondent provided no decision document, no written findings or statements at all, let alone any that relate to the uh development ordinance or to the comprehensive plan. Had respondent complied with the provisions of this statute that do allow approval of the flood flood plane development permit without a public hearing. Review requirements and notifications were still required and the local appeal would have been uh denovo. It was misleading for the respondant to ask the petitioner to indicate the type of hearing they preferred. The statute dictates a denovo hearing with presentation of testimony, arguments, and evidence as would have been allowed with a hearing and not limited to the specific issues raised in the appeal. Instead, respondents limited respondent limited council's review of the permit approval to only those specific items noted on petitioner's written appeal of eight months prior and ignoring petitioners oral testimony. petitioners and other appellants rights were prejudiced by not allowing arguments, evidence and testimony related to the issue. A third concern is respondents determination of MMC 2.10.120 as the directive for local for the local appeal pro proceeding. This is the generic appeal citation for actions the planning actions of the planning commission at hearings. There was no hearing held for the flood plane permit review and approval. In addition, the three requirements for council's appeal review as cited here are number one, transcript of original hearing, number two, written findings of the planning commission, and three, the action taken by the planning commission. Two of these items don't exist. Respondent did not prepare a transcript and one was not requested from Zoom. [snorts] Alternately, meeting minutes could easily have been provided to the council, but respondent says they weren't. There are no written findings of the planning commission supporting this decision. The only action is a signature on the last page of the permit application and even this was not provided to council as confirmed by the respondent and is not part of the record. It was submitted by petitioner in the petition for review as as the required initial decision document. As council did not review the three requirements of this citation, their determination to uphold the permit approval under this directive is baseless and their findings are invalid. A fourth concern and related to the third concern respondent did not allow did not follow MMC 14 which prescribes an appeal process and required reviews for decisions specifically rated related to flood plane development. None of these required reviews were performed with no review or relation to the comprehensive plan. Petitioner and fellow appellants were expecting an appropriately thorough review after the non-public participation and essential non-review of planning commission. Petitioners and appellants rights were prejudiced by not holding the appropriate review and not allowing any public comments whatsoever during the review. The fifth concern is planning commission's approval and council's upholding of that approval without substantiating evidence of compliance to MMC14. The permit application itself is an extension of MMC14, a land use regulation as defined in OS1 197.015. The permit is required by local, state, and federal law to be approved prior to commencement of development. The permit was approved 6 months after commencement when development was substantially complete. Excavation and fill for underground utilities was done. Completion of the application itself by the developer was intentionally misleading, incorrect, and incomplete. As noted in the petition for review, this again was an effort to avoid a proper and thorough review. The developer and the contracted planner knew of the intentional misstatements and omissions as noted on the June 18th, 2024 staff report in the record. The petition for review notes the errors of the permit application itself in addition to other failures to comply with requirements of MMC14 regarding the water course alteration and review of other required permits. Both planning commission and city council failed to verify the most basic of information um which was the identification of land and land owners. Had planning commission reviewed only those two requirements along with the required site plans that were not provided, they would have seen that the final development did not match the plans they initially approved and that land transfers would be required for the two developments to match the final plans. Instead of planning commission performing a thorough review of the application and requirements or even a cursory review, respondents and contracted planner basically told the planning commission to approve the permit and they did. It appears that no review by the planning commission was facilitated because respondent withheld training and resources that would have allowed them to appropriately perform their reviews and duties related to flood plane management. And you're going into your rebuttal time. You're welcome to continue or you can reserve your time. >> I'm done. Thank you. >> Okay. Any questions from the board? >> No. All right. Uh thank you. You'll have your four minutes for rebuttal and we will turn to the attorney for the city for your argument. >> Good morning. Elise Kepki on behalf of respondent city of Mppen. Um, I'd like to begin by clarifying what's actually at issue before this board today because much of petitioner's briefing and argument [clears throat] has focused on the history of the development of the RV park. But the decision on appeal is not a development application for the RV park. The permanent issue is a flood plane development permit that authorized limited flood plane work uh specifically grading with no net fill. There was no specific development or building proposal include included with the application. It was a permit specifically for cut and fill activities. Despite what petitioner has argued today, the only decision before Luba is that city's council res city council's resolution of the petitioner's local appeal of that flood plane permit. The council's role did not include speculating about potential errors the planning commission might have made, but it was to review the specific errors that petitioner actually raised and to apply the city's code in resolving those issues. Arguments she could have made below but did not are outside the scope of that inquiry and are not appropriate before this board. As the party seeking review, petitioner carries the burden of demonstrating first that Luba has jurisdiction over this appeal and second that she preserved her arguments for review and she has done neither. So on the issue of jurisdiction, petitioner must establish that the challenge decision was a land use decision either because it implements statewide planning goals, a comprehensive plan provision or a land use regulation. And the petitioner did not really address this in her initial petition. She is now arguing that title 14 is a land use regulation. But the city disagrees. The applicable code provision that was applied is MMC14.10.120 and it does not meet the statutory definition of a land use regulation under OS 197.015 because it is not a zoning ordinance. It is not a land division ordinance and it does not implement the city's comprehensive plan. Mopin's development code is held entirely in title 18 which explicitly states that its purpose is to implement the city's comprehensive plan. Well, Title 14, by contrast, is just a technical safety ordinance um adopted to implement FEMA standards and mitigate flood hazards. Its stated purpose is simply to promote public health and safety, not to regulate land use or implement plan policies. And again, I'd highlight that language in uh title 18. The city knows how to make a a land use regulation implement the comprehensive plan if it desires to. It clearly did not intend title 14 to be a land use regulation. Um we've heard petitioner from today. We've heard from petitioner today that uh title 14 is a land use regulation because uh title 18 contains a flood hazard overlay, but nothing in that flood hazard overlay was triggered on review. Um turning to the text of that language, um the flood hazard district overlay is for building and structures hereafter erected. Um land enlarged, moved, and land hereafter used in the flood hazard district. Again, the scope of this permit application was just for fill and grading activities. There was no specific use of the land tied to this permit application that the city council was required to consider and therefore it was not implementing a land use regulation. [clears throat] Um as this board has previously held the critical inquiry is whether there's a clear connection between the ordinance and the implementation of a specific goal or plan provision and an indirect reference and an overlay um is not specific and not clear enough of a connection to tie the flood plane permit approval criteria to the city's comprehensive plan. Um therefore petitioner has not uh established her burden that Luba has jurisdiction and we would argue that the appeal should be dismissed on that basis alone. Um even if the board were to find that the permit review provision is a land use decision. Uh the city also argues that the decision on appeal falls squarely within the ministerial exception under OS 197.015. Uh under that applicable code the planning commission has no authority to exercise legal discretion or policy judgment. The ordinance sets out four objective requirements that an applica applicant must submit. Uh those are elevation data, flood proofing elevation, a professional engineer certification, and the description of any water course alteration to the extent that there is one. So the city's role under that provision is really limited to verifying that those items were submitted. And provision three expressly directs the city to rely on professional engineer certifications rather than making any technical determination itself. Once a qualified engineer provides that certification and the city's engineer concurs, the city's role is complete and the application must be approved as the city found um and city council's approval of um its resolution of petitioners local appeal. In other words, the ordinance does not give the city any authority to weigh competing evidence, impose conditions of approval, or substitute its own judgment for that of licensed third party engineers. It is a process of pure techn technical verification, not interpretation. And to be very clear, the application on review here again involved no specific development proposal, no variance application. They were only looking at those four factors and confirming compliance with those technical criteria. Um, so against that backdrop, if there are no questions, I will move into each assignment of error as they all fail on the merits regardless of the jurisdictional issues. And I'll address assignments of error one and two together because they're substantively similar um and they suffer from the same defect and that petitioner failed to preserve them below. As you know, Luba can only review arguments that were raised below with enough specificity to give the local decision maker an opportunity to respond. Petitioners now arguing at Luba for the first time that the city was required to follow specific statutory procedures under OS 197 and 227, that the permit cannot be processed administratively, that she was entitled to a denovo hearing on appeal. But none of those issues were raised during the local proceedings and the record reflects no argument implicit or explicit that could have possibly put the city on notice of any of these statutory obligations. Petitioner's preservation statement cites her local appeal generically. Um, but we've narrowed it down to a single comment which seems to be quote, \"Had the planning commission provided a reasonable form for public comments, they may have better understood their duties and responsibilities as flood plan administrators.\" That statement cannot be understood to notify the city that the permit review was a land use decision, uh that the permit review was discretionary, that a hearing was legally required, or that any statute was violated. And that's because that is not what petitioner was arguing below. Not only did she not site a single statute, she now claims the city violated, she didn't use any of the operative terms in any of those statutes. Not even a passing reference to public hearing, land use decision, discretion, quasi judicial, denovo review, absolutely nothing that would put the city on notice of her argument so that it could address them at the city council level or prevent unfair surprise here at Luba. Her approach would have required the city council to manufacture arguments for her and then address them at the city council level. Um, and that's entirely inconsistent with the purpose of preservation. This board has also held that general opposition is not sufficient to establish a preservation of error and her statement about public comment is no more than general opposition to this the city's uh selected procedure. It require preservation requires identifying the specific legal error so that the city can correct it then and there before it reaches this board and petitioners did not even give the city that opportunity. Um so both assignments of one and two fail for lack of preservation but to the extent that Luba considers them I'll briefly touch on their merits. Um, as the first assignment, um, the city rests on its arguments today and in a brief regarding the ministerial nature of the flood plane permit review process. I'd only add that if the board does conclude that title 14 is a land use regulation, then OS 197.829 applies. And under that statute, Luba must affirm the city's interpretation of its flood plane ordinance unless it's contrary to state law or inconsistent with the code's text, purpose, or underlying policy. The city's interpreted that provision as establishing an administrative ministerial process that does not require quasi judicial review. Um, and that interpretation is pretty cleanly rooted in the text of the code, which sets forth again these four objective technical requirements that require no policy judgment. It's entirely reasonable that the city staff would deem this to require only an administrative review consistent with a ministerial exception. And as the court of appeals stated in Zipple versus Josephine County, the board must affirm the city's interpretation of its own code unless it is quote so wrong as to be beyond a colorable defense. Petitioner has not shown or argued today how the city's interpretation violates any statute or policy, nor how it's so untethered from the rest of the code as to be legally indefensible. She has stated her preference for a different procedure, but that is not enough to defeat the difference under OS 197.829. Um and moving to her arguments today invoking OS uh chapter 227. The jurisdictional hook there is 227.160 and that statute explicitly limits its scope to discretionary permits. As we've established this was a ministerial review and therefore that statute is not applicable here. Um finally for [clears throat] both assignments of error I'd add that the applicable standard of review requires petitioner to demonstrate prejudice to a substantial right. She has not done so. Um, as you know, the substantial rights contemplated by that statute are not the right to have the appeal resolved with your desired outcome. Um, but they're the right to an adequate opportunity to prepare and submit one's case, which petitioner has received. Uh, she received a full local appeal, uh, where she was able to identify any arguments and have the city council resolve each and every one of them individually, and she explicitly waved her right to a denovo hearing when given the choice, she selected an on the record hearing between the two. um nor has she identified any evidence that she was prevented from presenting or how the alleged outcome of the city council's decision would have been any different if they had followed her desired procedure. Um accordingly, her second assignment of error should be dismissed and then I'll briefly respond to what she's argued in her third assignment of error regarding MMC 2.10.120. Um petitioners reading rest on a misunderstanding of that statute. The code provides quote the council shall hold a hearing on the appealed action as set forth in the transcript written findings and the action taken. So in other words, the city council's review is limited to the planning commission's decision as reflected in the record below to the extent it's available and they cannot consider matters outside the record. But nothing in that code explicitly requires council members to review any one document, let alone minutes. That word does not appear in the statute. And so under standard rules of construction, petitioner cannot write in a word that she wishes with was there and then claim error based on its absence. Um, also petitioner has alleged today that council's review was useless because they didn't receive um or they didn't review the permit application itself, but that's just not true. If you look at the record, um the [clears throat] permit along with all the other materials reviewed by city council is in the record and it was available to city council for review. um petitioner has not offered any evidence to demonstrate what city council did or didn't specifically look at in reaching their decision and that argument is meritless. And then again um petitioner again has not demonstrated any prejudice to a substantial right here. She was provided her full 15 minutes for testimony. If there was something in the permit application itself or in the minutes that she felt was critical to the resolution of her appeal, she could have identified it then and she didn't. she hasn't identified it here today and accordingly this assignment of air should be dismissed. Addressing her arguments on the fourth um again I think this rests on a misreading of the mob and municipal code. She's argued that the city council was required to apply 11 substantive variance criteria to a flood plane permit appeal. Um but on its face this reading does not make sense. The provision at issue designates the city council as an appeal board with authority for two distinct actions. One is appeals and the second is variance applications. And I think her argument seems to conflate those two rules. Under subsection 1D, the code states, quote, in passing upon such applications, the city council shall consider end quote and enumerates 11 specific factors, but under the mop and municipal code, an individual does not apply for an appeal. They submit an appeal form such as the one petitioner submitted in this appeal. Um, and by contrast, a party seeking a variance submits a variance permit application. So the term applications in this provision can only be understood to apply to variance applications and that reading is further underscored by the rest of the code structure as subsection 1E incorporates these 11 factors by reference and gives the council the authority to attach conditions to a variance application based on those factors. And then subsection 2 explicitly governs conditions for variances and requires that subsection 1D factors be considered when granting conditions for variances. Accordingly, the city did not improperly construe its law as petitioner alleges and that assignment of error should be denied. Um, and then briefly, um, I see that I'm running close on time here. Assignment of error 5 is a substantial, uh, evidence challenge. I think we've briefed this pretty extensively. The city council's decision explains exactly what the city relied on. um professional engineer certifications, FEMA based modeling, the city engineers concurrence, all of it was reasonable to reach the decision that they reached and petitioner has not argued here um how you know didn't offer any competing testimony, didn't offer how a reasonable person in the city council's position position could not have reached that conclusion um and does not allege otherwise. So um if there are no further questions, I think the city will rest on >> No question from the board for the city. Thank you. So, we will return to petitioner for rebuttal and you'll have four minutes for your rebuttal. Petitioner, please go ahead. >> Great. Thank you. Um, I identified in my reply brief and um provided uh documentation to show that MMC14 is actually a land use uh regulation as defined by RS 197. Uh the the specific language in the um mop code 1830.10 regarding the overlay district specifically says buildings and structures hereafter structurally altered land uh shall comply with the requirements of all city ordinances relating to flood areas in addition to the requirements for that zone. and that is identifying mop and code um 14 as an implementation of mopin code 18 and that clearly um defines it as a land Um just a little background on my on the city's communication with me which was very lacking about what what the definition of on the record and denovo meant. Uh when I asked the city they indicated that on the record meant any documents official documents so far that nothing new could be added. Um, at that time I did not understand that on the record meant only the documents that the city decided to present to council on the appeal. That was very very confusing, not clear and I think intentionally done so. Um, and the full 15 minutes that was mentioned for my testimony on the appeal was totally unexpected. The notice I received from the city for the appeal, when the appeal would be heard, specifically said that no testimony will be heard. I took that to mean that they would take my written my written appeal and do it themselves, that they would um that that would be the presentation of the appeal. I understood that to mean that I was not allowed to testify. There's nothing in mop and code that identifies uh uh local appeal proceedings. I don't know that they've had any or many. Um there's nothing in the code that identifies that. And there was no communication from the city to me on how the process worked and what would be expected and what would happen. So I'm just putting that out there. Um I think I'm done. Thank you. >> Thank you. uh both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is January 19th. Uh we'll ask that the parties agree to an extension so that we issue our opinion by February 2nd. Is that okay with these parties? >> Thank you. Okay. Well, thank you and uh", "summary": "Good morning. If council could come on screen if you have that ability, please. All right. Good morning. This is the time set for oral argument in luba number 2025-027, Miller versus the city of Min. I'm board chair Zamoodio. Present today are also board members Basham and Wilson. Uh please mute your audio when you're not speaking. Thank you. I see that you've already done that. I'm not aware of any pending motions um in this appeal. We do have a challenge…", "source_url": "https://www.youtube.com/watch?v=qlBjSQroq-M", "source_name": "Oregon LUBA", "doc_date": "2026-01-07", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-069 Nedonna Development, LLC v. City of Rockaway Beach", "content": "Oral Argument 2025-069 Nedonna Development, LLC v. City of Rockaway Beach\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=9-0jRLQTD2E). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. We'll get started in just a minute. I guess now it's that minute, less than a minute. Uh, good morning. This is the time set for Luba number 2025-069, Nadana Development LLC versus the city of Rockaway Beach. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and either will not participate in the decision or will watch the recording of the oral argument and participate. Please mute your audio when you're not speaking. That will help with our recording quality. And I'm not aware of any pending motions before the board in this matter. Anything bring to our attention? No, nothing from the parties. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Uh, yes, please. I'd like to reserve 3 minutes. >> 3 minutes. Okay. And uh I'll keep track of time here, but ask you also keep track of your own time. And just note that the um watch or the timer that's on the screen is not exact. It's just there for reference. And uh respondent, city, and intervenor, you have a 15 minutes to share for your response. Have you decided how you'll share your time? >> Yes. Um I will the city will have 10 minutes and intervenor will have five. >> Great. Thanks so much. I will keep track of your time also but ask that you also uh be mindful of your own time. So with that uh petitioner please state your name for the record and begin. >> Uh I am Dean Alderman alter e m the attorney for the petitioner nad development. >> Go ahead. Right. Uh members of the board, this is a fairly straightforward uh issue, but with a weird procedural history. Uh the city approved phase two of this old PUD. Uh you remanded it. On remand, the city unanimously turned down the application to build phase 2. There are two really basic issues here. One of them is how to map a zone that is designed to protect wetlands called the SA zone. Uh and the other is when if at all does an approval expire under a poorly written condition of approval of a final plan. Let me talk about the zone boundaries first. First of all, in 2008 when the city approved this PUD, uh it found that the property contained 3.9 acres of R1 land, that's a residential zone that allows housing, and 2.33 acres of SA land. That stands for special area. It's a wetland zone that allows virtually nothing. The city had and still has a code provision that says when you want to develop something in the area of uh the wetland zone, the applicant shall go get a wetlands delineation and that will become the boundary. As I said, the city approved phase two. The applicant provided a delineation. The applicant proposed the 20 lots in phase two to be exactly where the city had approved of those 20 lots in 2008. There was no change to the plan other than rearranging the lots within that area. Uh uh Oregon Shores the intervenor here appealed the city's approval of that. Um you remanded the approval on two grounds. Uh, one of them was that you explained you had questions about where the SA zone was and how the city should apply a section 3.080 sub5 of its zoning ordinance. That's the one that talks about delineating wetlands. You asked, you told the city to address uh Oregon Shor's issue, quote, regarding conflict with the SA zone as mapped on the city zoning map or to adopt findings or interpretations explaining the city's apparent conclusion that the modified phase 2 approval is consistent with the SA zone. The city agrees, finding number seven on page seven of its decision, it agrees that you asked it to adopt findings that rely on the comprehensive plan and the 1992 zoning map, which is the most recent zoning map the city has to determine how to apply that section. That's the only mention of 3.080 sub5 in the findings. the city ignored your entire direction beyond that one passing reference. Uh instead of trying to reconcile its 90 its 92 zoning map with the property, it said we will ignore completely our 92 zoning map. We will follow somebody else's zoning map that wasn't created until 2015. In this case, the Tulma County GIS system. We will ignore our final decision that the PUD contains 3.9 acres of R1 land and 2.33 acres of SA land. Instead, we will change the zone to say it contains 4.8 acres of SA and only 1.4 acres of R1. That's important because that has a huge effect on the density of the project and how many lots can be built. And finally, it it said or didn't say it simply ignored your direction for it to figure out what its code section 3.080 sub5 meant. It doesn't refer to that. It doesn't describe how the process in its code for setting the boundaries of the wetland zone should be applied here. It I don't want to be crude, but basically the city blew you off in your direction on this on this assignment of error. Um, at a minimum on remand, the city needs to adopt findings that respond to your actual instructions on how to apply 3.080 sub5. It needs to figure out how to apply its official zoning map instead of adopting a zoning map of somebody else that looks nothing like the city's official zoning map in a way that's consistent with its past decisions that specified the size of these two zones down to a hundth of an acre. Instead, it's adopted a decision that makes about oh eight or 10 lots illegal, eight or 10 houses illegal by putting them in a zone in its wetland zone even though they're not actually in a wetland. That's that's in brief our first assignment of error. The city needs to deal with the fact that it's made a decision not based on its code, not based on its zoning map, not based on its past decisions. It's simply ignored all of that in order, we think, to come to a conclusion that's politically correct inside the city. On the second assignment of error here also, the city pretty much ignored your instructions on remat. Uh the question here is how to interpret a condition of approval of the original PUD and of the approval to phase the PUD in two sections where the condition was in a section called final plat. And it read I quote the developer shall complete the improvements within one year of preliminary plan approval. The word plan is important. Unless an extension is granted by the city to complete the improvements. What the city granted was a deferral. The city said, \"Now that you're doing this in phases, we want you to build very logically all the phase one improvements. We also want you to build a specified portion of the phase 2 improvements, streets, uh utilities. I think the phase 2 lots are all stubbed out for utilities already. The applicant did that 15 years ago. uh it didn't put any time limit on that. The city on remand said even though that time limit in the condition says you have to complete these improvements within a year of prel prelim pre preliminary plan approval and even though we have already given you the final plan approval for the PUD and even though you haven't up until this proceeding applied for a preliminary plan approval for phase two. We're going to say you should have built these improvements before you had even applied for permission to do the subdivision. That one, it makes no sense. Two, it can't be right. Three, it's the city doing violence to its code. It's confusing plans and plats. In order to make its findings work, it had to say, \"We're going to pretend that tentative and final are the same thing, and they aren't.\" And it ignored your direction to evaluate how section 10.0501 and two of the code meant it. it quoted it and then otherwise it ignored you. I won't spend a lot of time on the third assignment of error. It's pretty straightforward. Uh we raised that mainly because since the city chose to change its zone from its zoning map to somebody else's zoning map at the end of this process on remand. Uh we need to preserve our argument that it doesn't make a difference because it approved 28 lots for this project. we will put the 28 lots wherever the city wants us to put the 28 lots but it can't go back and retroactively try to attack its 2008 decision which is exactly what it has >> Any questions from the board? Uh board >> Mr. Is the PUB designation a zone and underline overlay zone of some kind in the city scheme? >> The city was not quite clear about it. I think the best answer is that it is an overlay to whatever is underneath it, but it allows for certain it allows spreading out uses that otherwise would be constrained to lot size and areas. Our view is that once the city designated the entire parcel as a PUD that it gave the flexibility to the applicant to put the 28 approved lots wherever the applicant wanted subject to the city's approval but that to that extent especially because of the specific language that says you can have single family housing in a PUD. It overrode the restriction of the SA zone as long as the total density is not exceeded. I Okay, now I think I'm confused by if the PUD is an overlay but the underlying SA zone still applies, how then what is the relationship between that PD designation and the SA zone designation? >> Right. Uh let's suppose uh Chair Zumidio that this property consisted of two parcels. One of them was entirely SA and one was entirely R1 and they were being developed separately. The city would very reasonably say you get however many units are in the R1 that you get allowed take it divide by 5,000 square ft I think is the number. That's how many units you get. In the SA you can have recreational facilities of some kind but you don't get any housing. When this our view is that when the city said the SA and PUB together is exactly this s this much SA this much P this much R1 and your total density is limited to 28 units it's actually higher we didn't propose it to maximum density we can put those wherever we want inside the zone subject to the city's approval of the specific plan in this case we quite reasonably back in 2008 it wasn't We propose putting all of the housing in areas that were outside the wetlands uh to somewhat less than the maximum density on lots that are smaller than the minimum requirement in R1 because we were able to count the rest of the R1 and SA land together. The city made a specific finding on how much there was, which has never been challenged until until this until the prior appeal. Actually, >> was there a determination in the 2008 decision where the boundary of the R1 and the SA zones is on this particular property? >> As far as we know, records are incomplete. There was no specific determination. Uh the areas involved seem to follow the areas of the wetlands delineation that was submitted in 2008. >> Okay. Thank you. And you'll have your full three minutes for rebuttal unless there's further questions from the board. >> Okay. So we'll turn to the city for your response. Uh please state your name for the record and begin. >> Certainly. Good morning. My name is Lori Cooper. I'm an attorney with the local government law group and I'm representing the city of Rockaway Beach. The city's decision on this application is supported by substantial evidence in the record and responds directly to the questions and issues presented on remand by this board. With respect to assignment of error number one, the city that the city errored in how it identified the essay, the location of the essay zone, the city had thoroughly reviewed the administrative record as well as testimony and argument presented on the underlying and present appeal and reasonably determined that the phase 2 lots proposed for development are within the SA areas and as a result phase 2 application was denied since the SA zone does not permit residential development. With respect to assignment of error number two that the final PUB plan approval did not expire in 2009, the city found that condition number one, which required all improvements to be completed within one year, applied to the 2008 approval. And since those improvements were not completed, the final PUD plan expired in 2009. This is just summary, by the way. I'm going to get into more details in a second. With respect to assignment of error number three, that residential uses are allowed in the SA zone. The petitioner failed to preserve this argument because it was not re raised on the appeal below or mentioned in the board's remand. But even if Luba finds that this issue is preserved, uh the city's decision is supported by substantial evidence in his conclusion that the PUD designation did not amend or change those zone boundaries. So turning now to a little bit more detail on those arguments, uh regarding assignment of error number one that the city errored in how it identified the SA zone. Um all the city did in this case was try to follow Luba's direction and Luba had concluded that the SA is a base zone and so the city followed the board's direction precisely on that issue and sought to answer this question where is the SA zone located on the subject property. So first of all what the city did it it it reviewed the 2008 record and the present application to map to try to figure out precisely where those boundaries were and as Mr. Alman mentioned the records weren't great um from 2008, but the city did try to figure figure this out. Contrary to petitioner's inaccurate assertion that the respondent gave no weight at all to its final determination in 2008, the city in fact reviewed the entirety of the record and uh to adopt pertinent findings on this issue. And after performing a comprehensive review into the history of this application, the city found that it could not rely solely on that original PUD decision because in 2008, the planning commission did not specify the physical location of zone boundaries, nor did they reference a zoning map to make that determination. So the city couldn't rely on the final approval of the PUD, the 2008 approval and tenative approval of phase one of the PUD to demonstrate exactly where those boundaries were. These are reasonable findings based on the record and are issued in in conformance with Luba's express direction um in that remand and there's no conflicting evidence on this point. Petitioner is incorrect that the city is quote collater collaterally attacking its own 2008 decision. The city has not revised or amended that 2008 decision in any way and instead the city thoroughly and reasonably reviewed the record to come to a very clear and obvious conclusion based on that 2008 record that the planning commission and the city council failed to map that essay zone against the subject property in 2008. The property was mapped accurately uh in this current application. Um, pursuant to the board's remand, the city reviewed and analyzed accurate, up-to-date zoning information to deter to determine where the SA zone boundary is located on this property. Um, as mentioned, the comprehensive plan and zoning map are old. They have not been updated since 1992 and thus do not reflect zoning amendments since that time. And despite this outdated information, the city nevertheless attempted to overlay that 199 1992 map against this property to answer the questions related to the SA zone. So, Mr. Altterman had indicated that the city didn't follow the board's direction and didn't try to do that. Well, the city did try to use that 19 1992 map and those maps were just not adequate to accurately assess the zoning designations on this property. So, what the city did was was turn to its most reliable consistent source of zoning information for city property that it's been using, and that's a Tamok County GIS map. All zoning changes from 1992 through 2015 are reflected on this map and it provides parcel specific zoning information and this maps public has been publicly available on the city's website for quite some time. um without allegible accurate representation of zone boundaries for this property, the city believes reliance on this GIS tool is reasonable and appropriate to answer the present question as to where the essay zone is on the subject property. And no other applicable city zoning map or any other evidence presented conflicts with this information. So using the best available data, the city found that the uh the proposed phase 2 lots are located within areas mapped as SA wetland and because that zone does not permit residential development, this application was denied. um petitioner raises a new argument that the city failed to analyze whether or how the PUD designation impacts the analysis of where the essay zone is located on the property and the city maintains as I mentioned previously the city maintains this wasn't preserved this issue but in case the board does find it's preserved um the city did expressly find that this PUD overlay designation did not amend or change the location of any zone boundary lines and this is consistent with the code language and and actions of the city council in 2008. Regardless of the arguable inadequacies of the 2008 process, petitioner's argument does not answer the question presented on remand to the city and what zone are the phase 2 lots located. In other words, the PUD the PUD designation or lack thereof in this instant does not provide any answer or clarification to this mapping question. Turning to assignment of error number two that the uh final plan approval did not expire 2009. Luba clarified some critical procedural facts in this remand which the city adhered to and incorporated within its final decision in this application. First, Luba clarified that the planning commission when it originally approved the modification and final PUD plan in 2008 may possibly have aired in failing to require that the applicant submit a development schedule when proposing phase development and in failing to impose a specific deadline on phase development as required by the city development code. The city agrees with Luba's understanding of this 2008 process at decision whereby the applicant failed to propose a schedule for each phase when seeking modification of the original one-phase preliminary PUD approval and accordingly the city approved the modification and final PUD plan without such a schedule. The city further agrees with Luba's conclusion on remand that if such errors were made in the 2008 PU decision PUD decision they then they cannot be remedied in appeal of the present decision because the 2008 PU decision is final and not subject to LUBA's review and the final order in this application before us today reflects this reality. The the 2008 PU PUD decision is treated as final and it cannot be remedied at this point. Accordingly, the city reviewed the 2008 decision record to determine how best to reasonably interpret condition of approval number one, a 2008 condition of approval number one. Um, and that is precisely what Luba requested in its remand. The city intended the condition to apply to both phases. Therefore, the city found that the PUD has expired for failure to complete all those phase 2 improvements with one within one year of preliminary PUB appro approval. And these findings and conclusions were included in the final order for the application at issue here. Finally, assignment of error number three as that's about single residential uh development being allowed in the SA zone. As stated previously, we don't think this issue has been preserved. But even if it has, um there's no language in the Rockaway Beach zoning ordinance that authorizes development in SA zone. And in fact, um, the zoning ordinance does not specify or provide any clarity on what the PUD what the PUD designation actually does. In practice, at most, the PUD designation may simply be an administrative tool to identify what lands are bound by a PUD decision. The city would look to that PUD decision to determine what applicable standards have been approved. So, you know, based on this language, I mean, this is critical to understanding necessary limitations or allowances in a PUB overlay. And why would a parent zone designation be required unless a parent zone standards like prohibited uses or density, etc. Why would those be required unless they applied to that PUD area? The PUD designation does not override the parent zones permissions or limitations. So based on this plain language of the city's code as well as thorough review of the 2008 decisions, the city reasonably found that approval of the PUD application and the PUD overlay designation did not amend nor change location of any zone boundary lines. This critical question presented to the city and remand was identified with particularity where the where the SA zone boundary lies on the property to determine whether those phase 2 lots could be developed in accordance with the zones limitations and identification of the PU PUD designation here. Even if the planning commission and city council in 2008 failed to specify uh the PUD designated area with the essay zone on there doesn't doesn't answer any of these questions. So ultimately, regardless of whether petitioner is correct on this point, the question of where phase 2 lots are located is still the most important question to answer. And that's because the essay zone is a base zone as Luba stated in its remand with its own development standards and limitations. So to conclude, the city's decision is supported by a substantial evidence in the record and responds directly to the questions and issues presented on remand by the board. Uh and I welcome any questions. Thank you. No questions from the board for the city. We'll turn to intervenor for their argument. >> Thank you, Eric Rristen, on behalf of Interveners, Oregon Shores Conservation Coalition and North Coast Communities for Watershed Protection. Uh the primary issue I want to focus on is what we think is uh petitioners total failure to challenge each of the city's bases for denial. Uh like we've talked about the city had two bases for denial here that stem from the two assignments of error that Luba remanded in the prior appeal. Those are first uh that the development was proposed within the SA zone which doesn't allow residential development and second that that timing condition of approval from 2008 caused those earlier approvals to expire since the improvements for phase 2 were not made within a year. Uh we think that petitioner failed to state a case for remand or reversal regarding that second basis for denial in its petition for review. Um petitioner in its opening argument here just added uh some new arguments and actually started to talk about the condition of approval one uh for the first time here at argument which is pretty clearly not allowed under Lewis president. But if you read the petition for review uh it doesn't really talk about condition of approval one at all. The second assignment of error, which is maybe [snorts] the assignment of error that gets the closest to that basis for the city, not city's denial, focuses instead on a couple of Rockaway Beach ordinances that are not actually relevant to the city's findings. They're not in the city's findings. We haven't argued, nor has the city argued that they were controlling here. Um, I I think if you you really read that second assignment of error uh and read it closely and then read it compared to the city's findings on that actual basis for denial, you'll see that there's just a total mismatch and um petitioner really fails to get at the actual reasoning that was in the city's findings regarding interpreting condition of approval one. And we think that Ludas case law is clear that in order to challenge a local government's basis for denial, you know, the petitioner actually has to address the local government's actual reasoning and point to the relevant approval standards or local enactments. Uh, which is not a particularly high bar, but we think the petition for review really fails to do that here by not even mentioning condition of approval one or getting at the actual reasoning in these city's interpretation. Um, and for that reason, uh, because this issue is also an independent basis for the city's denial, uh, we think that mistake is fatal to the petition for review and that Luba really doesn't need to look any further Um, turning to the first assignment of error, uh, I want to make a quick point, uh, which is that re regardless of the city's reliance on the online mapping tool, the city showed in its findings that the property is within the SA zone on its 1992 comprehensive plan map. Uh, that's shown really clearly in the maps that are created by the city that overlay the property boundaries onto that uh, comprehensive plan map. We included a copy of that map in our brief. Apologies, I I re I referenced red squares on the map and then printed the brief in black and white, but hopefully the maps are are still clear. Um so we think that because that property the city showed the property is clearly within the essay zone you know without even using the online map that uh the city's interpretation of that uh finding was reasonable and should be upheld even if the board has concerns about the use of the more detailed online maps that petitioner focuses on in its arguments. Finally, uh, on the third assignment of error, really quickly, uh, Luba remanded the two assignments of air in the previous appeal to the city to consider with pretty specific instructions. A petitioner chose not to participate in that prior appeal and now makes arguments that could have been raised in that case regarding wholly new provisions of the Rockway Beach zoning ordinance that were outside the scope of Luba's remand, which the city limited arguments to. Uh for those reasons, we think that the arguments in the third assignment of air are are totally foreclosed and not preserved here. Um if there's no further questions, I will wrap up here. >> Thank you. No questions from the board. So we will return to petitioner uh for your three minutes for rebuttal. >> Right. Thank you, Chair Zumio. To take these points really quickly. First, despite the argument of the city, it did in fact ignore its zoning map. its conclusion that the Tamok County zoning map controls the city zoning uh is at variance with its past decisions uh and with its own zoning map. The shapes are nowhere near the same and under the city's interpretation uh 6 8 10 houses in the area are all inside the prohibited wetland zone. If the city is arguing that the PUD approval itself has expired, which is what I heard council say, then it's also making every single house on those lots illegal, which seems very inconsistent because they're all on substandard lots. That that is not a rational decision. Uh with regard to preservation of issue number three, to respond to Mr. Christristen's point. When this appeal went up the first time, this property in the city's view was properly zoned to allow the development. Only after the appeal came back did the city decide the zoning boundaries were something other than how the city had evaluated the first time. That's an issue, if you will, that the city created on on remand by changing the zoning of the property to follow Toma County's online map. uh whether it is preserved or not the first time around it's based on a new fact that didn't exist in the first appeal. Uh otherwise we think we have been very clear on our appeal. The city has to take account of its past decisions. It didn't do that. The city has to take account of its own zoning map. It chose to ignore that and adopted something with a different shape. The past decision took the area of the two zones down actually to an exact number of square feet. record 1444. The city doesn't deal with that. Uh for all of those reasons, Luba should remand this decision to the city to adopt findings that reflect the facts as they are and not as the city would like them to be. Thank you. >> Thank you. That will conclude oral argument. The statutory due date for our decision in this appeal is January 26th. will ask that the parties agree to an extension so that we issue our opinion no later than February 9th. Is that okay with these parties?", "summary": "Good morning. We'll get started in just a minute. I guess now it's that minute, less than a minute. Uh, good morning. This is the time set for Luba number 2025-069, Nadana Development LLC versus the city of Rockaway Beach. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and either will not participate in the decision or will watch the recording of the oral argument and participate. Please mute your audio wh…", "source_url": "https://www.youtube.com/watch?v=9-0jRLQTD2E", "source_name": "Oregon LUBA", "doc_date": "2026-01-14", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-026 Morin et al v. City of Seaside", "content": "Oral Argument 2025-026 Morin et al v. City of Seaside\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=riVzRZPHdDI). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nSo good morning. This is the time set for oral argument in luba number 2025-026 versus the city of side. I am board chairs Moodio. Board member Wilson is also present. Board member Basham is not present and will not be participating in final decision in this appeal. Um parties please mute your audio when you're not speaking. and that helps with our recording quality. And I'm not aware of any pending motions or matters in this appeal. Is there anything the >> No, ma'am. Sure. >> Thank you. Um oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? And if so, how much? >> Uh five minutes, please. >> Okay. And I will keep track of time here and also ask that you keep track of your own time. And just to note the clock on the screen is not keeping exact time and uh intervenor will have a total of 15 minutes for their response. So with that petitioner please state your name for >> Good morning. For the record my name is Zach McGee and I represent petitioners Le and Sandy Morren. Uh this case involves a tenative approval of a 15 lot subdivision in the city of Seaside and a variance to allow an overlength culde-sac to serve as a site's sole access. Uh however, the application was void under OS 2278 months before the city made its decision because the applicant had been notified of a missing alternate su sewer plan and failed to provide the plan or notice that it would would not be provided within 181 days of filing the application. In addition, the city improperly deferred approval of the applicant's alternate sewer plan, an alternate storm water plan to appoint after tenative plan approval without the required finding of feasibility. Uh failed to require the applicant to prepare an erosion control plan or hazard mitigation plan despite the requirements for the same in both the zoning code and city subdivision standards. Failed to require a street connection between the subject property and forest drive despite plane connection in the plat of Vista Ridge. and improperly granted a variance to the applicant to permit an overlength culde-sac based on the applicant's design preference. Returning to the first assignment, the city's error in approving a void application is jurisdictional and warrants reversal of the decision. O RS227178 provides that where a local government provides an applicant with notice of incomplete land use application, the application becomes void on the 181st day after submission if the applicant has not submitted either all of the missing information, some of the missing information with notice that no other missing information will be provided or written notice that none of the missing information will be provided. In this case, the applicant was notified of the missing information in February of 2024, but took none of the required steps. Instead, submitted some of the missing information, but refused to provide an alternate sewer plan that had been requested and never advised the city that no further information would be submitted. As a result, the application became void on August 27th, 2024, the 181st day after the submission of the application. As the application was void on that date, the city aired by later approving the void application. >> So, Mr. Mickey, what what I'm a little confused exactly what happened with the how they processed this this application. Um, when did the 120day clock start running? >> I'm sorry. >> When did the 120day clock start running for the city to make a decision on this? Well, in this case, the city actually um started processing the application or deemed the application uh complete in November of 2024, which is several months after the 181st day. >> So, there were no because I'm looking at that, you cited that in the record. I think it's in the staff report to the city council. Um there were no like extensions before that that So, the clock really didn't start running until November. >> That's correct. And in this case, um, with regard to missing information, there's no there's no real option to extend that time frame, uh, for the submission of the missing information. You either put put it in within 180 days or it's you're done, >> right? Yeah. No, I wasn't suggesting that. I was wondering if maybe the 120day clock had been extended a few times and they hadn't mentioned that in the staff report, but it sounds like that's not the case. >> That's not the case. They considered, I think, November 13th to be the >> Okay. So, but the but the city was sort of working on the application right before November or did they not really start processing it till November? >> I don't believe there were any kind of hearing notices or anything like that that went out prior to that point. So, I think that that was the point at which the the application got thrown. >> Okay. Thank you. Uh turning to the second assignment of error, the applicant's failure to provide an alternate sewer plan also substantively impacted the application uh because the applicant failed to demonstrate that its proposed sanitary sewer connection was feasible. Uh the city's subdivision and land partitioning ordinances require subdivisions to be connected to the city's sewer system subject to capacity limitations. In this case, the applicant proposed to connect a se to a section of the city sanitary sewer that has no capacity to receive additional sanitary flows due to due to an over capacity pump station on a pump station. Uh city engineer determined that it was not in the public interest to allow the plan connection and required an alternate plan and the applicant flatly refused. Instead of denying the application, the city attempted to to defer compliance with the criteria by adopting condition two, which required the applicant to develop an alternate sewer sewage plan after tenative approval. However, since there was no preliminary finding and no basis for finding of feasibility, uh that condition cannot be a substitute for the required finding of compliance. Moreover, since the city's condition allows the discretionary evaluation of the alternate alternate plan to take place outside the process, it is an improper deferral under RE and remand is warranted on that basis. Uh the same is true with regard to the sew uh storm sewer for the subject property. Again the um city determined that the uh applicants propose storm sewer is now sufficient for proposal that the proposes to discharge the water from the houses to the street but didn't provide a required detailed storm sewer plan for conveyance of the the flows thereafter. Again, the city tries to address this issue by opposing a condition, which is condition three um to require the applicant to provide the required study after the tenative approval process, but doesn't make a baseline finding a feasibility and it doesn't um provide the same participatory rights and deferred process later. Uh it's also an improper deferral and a Uh turning to the third assignment, city also aired by approving a subdivision of a large unstable land mass without the required grading and erosion control plan or hazard mitigation plan. Uh city zoning code requires um uh these kinds of plans, hazard mitigation plan and grading and erosion control plan for subdivisions on slopes in excess of 15%. Um it's undisputed that the subject property exceeds that 15% slope. Um as [clears throat] the excuse me as the applicant doesn't meet the zone zoning code requirements, the tenative plan could not be approved. Um the applicant did provide a geo geological hazard analysis. The same wasn't sufficient to meet the minimum requirements for hazard mitigation plan. And again there was just a refusal to provide the erosion control plan. Um as the applicant's geotechnical study was insufficient to meet the minimum requirements for hazard mitigation plan and there was no erosion control plan should also be denied on that basis. >> Um regarding the the the geotech stuff and the grading plan it's reading the brief it's almost like y'all are talking about different codes and so if I understand uh intervenor they're saying that they don't have to do that at this stage and you're saying they do. So, can you explain to me why they are required to file both of the the HMP and the the grading and erosion control plan at this stage rather than a later stage? uh because there's an express requirement um in both the zoning code and subdivision uh code that says you need to write the hazard mitigation plan and the erosion control plan at the tenative phase because we're going to be conditioning the tenative phase on the recommendations in those plans and the improvements need to be developed before the final plat approval. And so um those require requirements are pretty clearly spelled out in the zoning ordinance itself and also in the uh um the uh subdivision land partitioning ordinance section 10 which basically says well actually which says um uh hazard mitigation plan needs to take place at the tenative level um where it's applicable. I uh I also had a hard time following because the party's arguments are so varied on this issue. Did the city make an express interpretation that those things were not required or are we only looking at what intervenor argues is an implied interpretation because looks like we're definitely going to have to look at if we get to these assignments of error what the code requires. So what did the city do with that? the the city actually doesn't make an express interpretation of any of the zoning ordinance requirements just not in there. So there's no basis for an implied interpretation uh with regard to that. >> Okay. So your position, your counterposition is there's not even an implied interpretation that these provisions don't apply at the tenative stage. >> That that's correct. >> Thank you. Um the proposed layout of the subdivision also violates the development plan of the subdivision as a whole by failing to provide a required street connection to Forest Drive. Uh the subdivision uh development area is track G in the larger Vista Ridge subdivision and the prior approval of that subdivision reserved an adjoining track E to provide a public road connection between track G and Forest Drive to the northeast. Uh section 33 of the city's subdivision and land partitioning ordinance states and I quote a land division whether by a subdivision creation of a street or partitioning shall conform to any development plans end quote. Uh the plat of Vista Ridge is a development plan and one which requires the applicant to at least stub out a street connection uh to Forest Drive at that location. as the applicant not only failed to provide this future connection but precluded the possibility of such a connection the city aired by approving the subdivision and finally with regard to the issue of a variance uh the city aired by approving an overlength culde-sac for hemlock court the applicant sole access road this issue is largely controlled by a prior luba case which is called petsowski I think >> and you're getting into your rebuttal time you're free to continue on but you can um do what you want with that. >> Just briefly, um, we cite in the brief Pscowski versus Clamoth County. We believe that controls the issue of the variance. In in essence, a variance is only, uh, appropriate where it's where it's required and where it's a choice. And in this case, the variance is very much the choice of the applicant. The applicant can develop the subdivision without the variance and without any impact. Thank you. Just real quick, you you you cited the case talking about how it's, you know, there's stringent requirements for variances, but do does the uh the city gets more deference on that since they're using since the city council gets foreigner on that are they bound by those really stringent requirements for variances or can they interpret it less stringently? city uses the traditional stringent um uh variance requirements in this code and there's no interpretation which which would suggest that the conditions are any less stringently applied. >> Okay. Thank you. >> Thank you. >> Thank you. And we'll turn to intervenor for argument. Thank you. >> Uh thank you chair Zoodio. Uh my name is Dean Alderman Alt RM. I'm appearing here as council for the intervenor uh Sunset Ridge LLC which is the applicant below. Um assignments of error one and two overlap to a great degree that the a petitioner's timeliness argument is based on their belief that the applicant didn't submit sewer and water plans. In order to prevail on that argument, they have to show four things as a chain. The first thing is that the city code requires the applicant to submit sewer plans with the application. They cite to no pro to don't provision that requires that. All they cite to is a memorandum from the city planner. That is not the same thing as a criterion. City planners can't adopt criteria. The second step is that the city has to identify the plans as a missing item. This one I will agree the city planner did identify the sewer and water sewer plans as a missing item in the incomplete list letter in March. The third step is that the applicant had to not have submitted plans within the 180 days. There they failed. The applicant's plan was a little different. know was let's fix the leaks in the existing sanitary sewer system which will provide the additional capacity to handle the sanitary sewage from this project. In any case, because the city's code doesn't say that having sewer capacity is a criterion, it doesn't matter. It may matter later on at the development stage. It's not a criterion for approving subdivisions. The fourth step is even if the planning director had the authority to impose the criterion. >> I' hate to interrupt you while you're on flow of your four steps. I imagine there's more than four steps, but thinking about the differences here of what the parties believe that the code requires. What I hear you saying is at the tenative stage, all that is required is showing that there can be a physical connection without there being any need to look into capacity. Is that what you're saying? >> That is essentially correct that the code isn't phrased actually in terms of saying that it is a criterion. It simply says if a sewer is available, the applicant needs to connect to it. And that's all the code says. And the facts here were that the sewer is not available at a particular pump station and that there's some infrastructure improvements that need to happen in order to allow capacity for this particular PUD. >> Kind of the the the facts are that a a physical sewer connection is available at the low end of the property. All of the sewage can easily go downhill and it is a reasonably steep hill. down is is gravity is the law can go down there. The pipes have the capacity to convey the sewer up to the point of the pump station that takes the sewage underneath the river and to the west side of the river. It is that pump station off the property that lacks capacity and that's what led the city engineer I think engineer to write his memo saying please don't allow any more development in this area. That brings up a moratorum question I may get to later, but that's what led the city engineer to that. It's not a standard from the code. >> Okay. Your position is what the code requires is to say if there is city sewer, the PD connect to it. >> Yes. Yes. That's all that's all the code says at the stage of a subdivision application. That standard may come in when somebody applies to build a house on one of the lots, but it doesn't come in at the stage of the subdivision. The fourth step, even if the city engineer or the city planner could impose the criteria, could impose an additional requirement that the applicant submit plans that the code doesn't require. Is did the city council wave that requirement? the city council can overrule the planning director. The code only says the city may require the plans. It doesn't say the city must require the plans. In this case, the planning commission and the city council both reviewed the application. Neither one required the applicant to submit the plans and therefore what the planning director may have said in a letter drops out of the picture. It is not a requirement. The city the city waved it all together. It's not in the code. The city I shouldn't say waved. I should say the city overruled the planning director. >> And I imagine you're going here eventually, but I'd like to go get there sooner. The first assignment of error and the petitioner's interpretation of what the statute requires. Um, your position as I understand it is, well, the facts as I understand them are that the interviewer respondent submitted some of the identified material identified incompleteness letter and said, \"We think this is sufficient. This is adequate.\" And in your view, that's enough to satisfy the requirement to provide written notice that no more information will be provided. Am I summarizing that accurately or not? reasonably. Our our position is we actually submitted all of the evidence that was required, just that what we submitted for alternate sewer and water plans, not a code requirement, was different in form than what the city planner had wanted and that the city council didn't require it. As far as timeliness, we think our position is consistent with Luba's case law on completeness. Uh I think I get to it about pages 11, 12, and 13 of my brief. uh Smith versus City of Gearhart. Uh this board held that an applicant who said, \"I plan to submit no additional documentation except coaster construction bid estimate from a building permit. My application is considered complete.\" That that was enough to cause the application to be complete. Um in Steuart versus Salem, uh the plaintiff relator wrote a letter that said, \"Please consider my application complete by operation of law.\" that was held to be enough to be complete. >> If Oh, I'm sorry. Go ahead. >> No, go ahead. You might ask the same question I had in mind, but if not, I'll ask it after you. Go ahead. >> Thank you. Um, so I understand your argument that you think it became complete on July 25th. Um, and the first question is the first part of this question is you said that you sent an email to that effect saying this should be complete now, but I understand petition argue that that email is not in the record. And secondly, even if you thought it should be deemed complete there, is that what the city did? Because this the staff report to the city council says it wasn't deemed complete until November and they didn't start the 120day clock then. And finally, the last part to the question is you your brief says that it was deemed it was complete on July 25th and that the city adopted a finding to that effect. And I didn't where is that finding? >> Okay. Sorry, that was a compound question. >> Okay, that I didn't know. That I didn't know and didn't look at. I don't think I misstated that. But I'll tell you why. Whatever the date is, it isn't November. Because the statute says the application is deemed complete whenever the applicant submits the last bit of information. We didn't submit anything We didn't submit anything close to November 25th. The fact that the city may get around to writing letter that says we believe your application is complete. The date of the city's letter doesn't matter. What matters is the date of the submission. And July 25th is when we said we've submitted everything. We think we believe our application is complete. Uh and there is some process that is in the record from that point. So that that's when we believe we were complete. We don't think the city can or or the petitioners can say the city didn't recognize you as being complete until a date which was long after you submitted the last bit of information. That's not how the statute reads. The statute is based on when the applicant sends it in, not on when the city responds to it. >> So theoretically, you could have mandamus them at some point then, huh? >> Uh yes, actually. >> Okay. >> Uh but I mean I like Luba better than the court of appeals. >> Okay. All right. Thank you. Thank you for answering that compound question. >> Let's see. So that's that's completeness and I think that covers most or maybe all of your question is is embodied in that. >> Um I want to talk briefly about what I think has been perhaps a source of of investigation for the board. The difference between the hazard management plan and the grading and erosion control plan. Uh the code to me is pretty clear that an applicant for a subdivision approval should submit an hazard a hazard management plan if the slopes are greater than 15%. This applicant submitted that. Our brief explains where the plan is, what it's identified, how it deals with all of the elements that are supposed to be dealt with in a plan. The grading erosion control plan under the city's code comes in later when the applicant actually wants to start shoving dirt around to grade to excavate and so forth. And how we know that is from one of the code sections we cited which is 4.202 sub4 which says that the grading plan is reviewed not by the planning commission not by the city council but by the building department. That these aren't the people the people that the petitioners are appealing from aren't even the people at the city who are supposed to be looking at it. There's nothing they get to do with it. It gets reviewed by a completely different department. That's how the responsibilities assigned in the code. It's reviewed by the people who give out the permits for us to actually dig trenches and move dirt and build streets, not by the people who approve the plan of the subdivision. Uh on the issue of the culde-sac, which wraps up, I think the fourth and fifth assignments of error, first is it would be hard for the city to require us to build a street through a piece of property that the applicant doesn't own and that the city doesn't own either. Uh that that's a it's it's a legal impossibility for us to do that. B the petitioners have made a big thing about the fact that this is a a hazardous landslide mass. And the record is clear that to connect the road down to that stub requires going down a 20% slope which is way outside the standard for fire engines and fire protection. The city could reasonably make a policy decision. We're going to let you have an overlength culde-sac because that's a lot better than building a 20% road straight down a hill to end 20 ft away from an actual street. Uh third is there's no the houses still end up in the same place just the last part of it becomes a private driveway instead of a public street. There's no actual shortening of distance. All it would do to say make the culde-sac farther up the hill and run private driveways to the houses is to make it harder to provide fire protection for the houses. The city council could certainly have made a very reasonable policy decision to say we want a road that will support a fire engine to get as close as possible to the houses and the subdivision. Uh they made a decent decision. It's supported by evidence in the record uh and ask you to affirm the city council and deny the appeal. >> Thank you. Any further questions for a moment? Okay. Thank you for your argument. We will return to petitioner for rebuttal and you'll have two minutes for your rebuttal. >> Okay. Briefly, I'm just going to touch on a couple of things that I think would be helpful to know. One is there's an express requirement uh for capacity uh in section 43 subsection 5. Um yeah, all subdivisions and partitions within the city of women shall be connected to the sewer system where available and subject to capacity limitations. So that that's the requirement there. Um there was uh no alternate street plan that was submitted uh during the period when the record was held open. Um there was an additional study that was submitted with the um May uh submission, but it was submitted with a letter that said at the same time uh and we're also going to provide additional information. There's no letter in the record from the applicant that says um and we're not going to submit anything else. And so that that just simply never happened. Um, turning to the HMP and grading erosion control plan requirements, there's an express requirement in I sub2 that says that the erosion control plan uh shall be submitted in conjunction with the HMP. That didn't happen here. As a matter of fact, the applicant's geotechnical hazard report that was provided um uh uh actually says it's neither an erosion control plan nor is it a hazard man hazard mitigation plan. Um and then in terms of the legal impossibility argument, as we pointed out, uh we're not requiring the sub subdivider to try and punch a road through property he doesn't own. we can just stub out that street. Thank you. I think that's my time. >> That is Thank you for be Thank you for being mindful of your time and thank you to both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is February 18th and we'll ask that the parties agree to an extension so that we issue it by March 4th. Is that okay with these parties? >> No objection from petition. >> No objection from the intervenor. Thank you.", "summary": "So good morning. This is the time set for oral argument in luba number 2025-026 versus the city of side. I am board chairs Moodio. Board member Wilson is also present. Board member Basham is not present and will not be participating in final decision in this appeal. Um parties please mute your audio when you're not speaking. and that helps with our recording quality. And I'm not aware of any pending motions or matters in this appeal. Is there anything the…", "source_url": "https://www.youtube.com/watch?v=riVzRZPHdDI", "source_name": "Oregon LUBA", "doc_date": "2026-07-14", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-036 Lane County Public Works v. Lane County", "content": "Oral Argument 2025-036 Lane County Public Works v. Lane County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=96BOPPCIUiI). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for Lane County Public Works versus Lane County. I'm board chair Zamudia. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Uh, thank you for muting your speaker when you are not speaking. I'm not aware of any pending motions or matters. Um, before we enter into oral argument, anything from the parties? Nope, nothing from the parties. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? And I and uh, Council So, I cannot hear you when you just spoke. You're not on mute, but I can't hear you. >> Can you hear me now? >> I hear you now. Yes. And how much time would you like to reserve for rebuttal? >> Apologies. I tested the audio before and >> worked. Uh, three minutes, please. >> Okay, three minutes. And I will keep track of time on my end and al that you also keep track on your end. And just to note, the clock that is in the screen is not keeping exact time. And then um interviewing our respondents, have you determined how you will share your 15 minutes? >> Uh, yes, we have. Mike Carter is here on behalf of Santa Pac. Uh we've agreed to split our time roughly half. Uh and I'll go first. I hopefully won't even use half my time and then I'll turn it over to Miss Kellington. >> Okay. Thank you. And thank you for figuring that out in advance. Um again, I will keep track of time on my end, but we'll leave it to you to uh share your time. So with that, petitioner, if you will please state your name for the record and begin. >> Thank you and good morning members of the board. My name is Josh Soer on behalf of petitioner and applicant Lane County Public Works. This appeal concerns an application for an innovative resource recovery facility in Lane County. And the issues on appeal all relate to the use categorization of the facility. I structured my brief in terms of the different use categories at issue and the assignments of error that are relevant to each. I think it might be helpful to come at this from a different angle. And so this morning I want to uh structure my presentation in terms of what uh the most significant assignments of error are and how they relate to the overall outcome of the decision. So the first one I want to focus on is the failure to apply the framework in lane code 16.280 sub3 for determining which activities of the proposal are primary versus accessory uses. uh lane con uh lane code 16280 sub3A says that the use category the overall use category is based on the primary use or uses in the proposal. So the first step has to be to determine which uses are primary and that's b that's done using the criteria in lane code 16280 sub3b. Only once those primary activities the primary uses are established can the overall category for the proposal be determined based on those primary uses. This is a a complex proposal with many component parts. And so there was significant briefing below by the applicant um dedicated to which aspects of the proposal are primary versus accessory uses. The hearings officer's failure to first apply that framework to determine which uses are primary versus accessory therefore undermines the rest of the decision because that is the premise on which those determinations about the use categorization have to be made and that therefore necessitates a remand to allow the decision maker to take that threshold step of determining which activities are primary uses and which are accessory uses. there uh there is no dispute that I can discern that the hearings officer did not at any point apply the factors in lane code 16280 sub3b the interveners have pointed to other aspects of lane code 16280 sub3 that the decision applied um but they ultimately appear to concede that sub3b factors were not applied and that's in the lane county uh garbage and recycling association brief page 20 footnotes six. And so then they uh focused their argument on uh this idea that applying those factors was not necessary. To address that, I want to take a step back and uh acknowledge that this section of the code involves uh what I'll refer to as a bit of unusual drafting in that the uh the code uses the same list of factors for two different purposes. It uses them to determine whether a given activity is a primary or an accessory use. And then it also uses those same factors to determine based on the primary use which use category applies. And for that second task of determining based on primary uses which use category applies, the code says that the factors only need to be used when the category is quote not clearly identifiable. and the interveners uh cite that in their briefs. But there is no similar limiting language for using those factors to determine primary versus accessory use. And the code instead simply says that those listed factors are to be considered for making those determinations. So it's our position that the hearings officer was therefore required to apply those factors to make those determinations and then only once those determinations have been made about which uses are primary uh can a proper determination be made about which use category applies and that the board should remand uh with instructions to the decision maker to perform that The second category of assignments of error that I want to focus on are those that relate to the bases for the determination that the proposal is not a government facility and those rely on uh misconstruing the code and inadequate and conclusory findings. Uh I want to also clarify that this provides an independent basis for remand and changes the outcome of the case on its own. Even if the board were defined against petitioner on the primary versus secondary or primary versus accessory use argument that I was just discussing um because uh as I'll discuss further if the facility is properly classified as a government facility it doesn't matter if it could also be classified as a waste related use. So there were three critical errors that I uh discussed in the brief relating to the the findings on this government facility issue. The first is the findings regarding the effect of the examples of government facilities listed in the code. The petitioner argued below um how and why this proposal is similar to the listed examples. The hearings officer's findings said that the proposal is not one of the listed examples or similar to the listed examples but did not include any analysis or explanation of why it is not similar to the listed examples. And this is kind of the quintessential conclusory finding saying this is not this but there's no there's no verbiage whatsoever to connect from point A to point B. Second, the hearings officer's uh findings regarding the code requirement that the public generally is not received. The decision concludes that that requirement is not met because there are components of the facility that are designed to accommodate visits from the public. But that misconrs the code because it reads out the word generally. uh when when the code says the public generally is not received that clearly contemplates that there could be some reception of the public and there's no analysis in the code in the decision about how the public generally is not received just that there is going to be some reception of the public. Third and finally uh the findings regarding whether an otherwise prohibited use can be permitted as a government facility. And this relates back to what I was saying at the beginning about how even if this could otherwise be categorized as a waste related use, if it can be categorized as a government facility, that's still permissible. Um, this is evidence from the fact that the code includes several examples of government facilities which would be prohibited uses if that government facility category didn't exist. So in other words, the question is if there were no government facility category in the code at all and somebody were to come in and propose uh one of the listed examples such as a school district bus facility or were to propose a public works yard, how would those proposals be categor categorized and would they be allowed? And the answer is that both would be categorized as vehicle equipment and boat repair rental storage service and therefore not allowed. But they are explicitly allowed as a government facility. They're included as a list of examples of government facilities that are allowed. And the point therefore is that uh if this proposal even if the hearings officer is correct that this could otherwise be categorized as a waste related use and not allowed it can still be allowed as a government facility. And in concluding otherwise the the hearings officer made a couple of errors in uh that hinge on what these other examples would be categorized as if they were not government facilities. Um, first the hearings officer acknowledged that those uses involve a primary function of repair of vehicles, but said that they could be categorized as towing and vehicle storage or contractor business, neither of which involve vehicle repair rather than the use category that specifically entails vehicle repair. And that's contrary to the plain language of the code. And the hearings officer does not explain that uh part of the decision. Second, the hearings officer found that the examples, the um public works facility or school bus facilities are not public facing while vehicle equipment and boat repair rental storage service is public facing and contractor business and towing and vehicle storage are not public facing. There's no basis in the code for that uh that conclusion and I think we all know that contractors and towing companies are very much public facing. Um so that was a misconstruction of the code. I want to clarify the point isn't whether this proposal itself is public facing. It's not but that's not the point or whether it involves vehicle repair. The point is is that because those other examples listed in the code um would otherwise be categorized as an impermissible use in the zone um that means that this use is as well uh because even if it could be categorized as waste related and therefore prohibited can be permissible in the zone. Um those three errors that I just discussed in the government facility analysis as I mentioned uh independently necessitate a remand so the decision maker can reanalyze whether this proposal qualifies as a waste as a government facility based on the correct There were uh quite a few other assignments of error in um in the position for review. I'm happy to answer questions about any of those, but I wanted to focus on those two categories uh today because those are the the most significant ones and the ones that provide that independent basis for remand. If there aren't any questions, I look like I'm done about a minute early, but I'll see the rest of my time. >> Thank you. No questions from the board. So, we will turn to um interveners for your argument and uh please state your name for the record and begin. >> Thank you. Good morning. >> Uh my name is Mike Connors and I'm presenting on behalf of Interviewer Santaac, Inc. And as we indicated, I'll go first and Miss Kellington will follow after my uh statements. Um the hearings officer's decision denying petitioner's application must be affirmed unless petitioner demonstrates that each and every basis supporting the denial is erroneous. It's long-standing lube precedent. The fundamental flaw with their appeal is that petitioner failed to sign error or challenge the primary basis for the denial. The hearings officer denied the application on the grounds that the proposed facility is in whole or in part a waste related use which no dispute is prohibited in the LI zone consistent with the plain language of lane code 162803A and C. The hearings officer determined that the proposed facility has multiple primary uses and each primary use must qualify as an allowed use in the LI zone. petitioners don't contest that interpretation of the code. In this case, hearings offer officer determined that the primary uses of this facility include the receipt and processing of up to 20 225,000 annual tons of solid waste, the transfer of most of that solid waste to a landfill, approximately 64.45%, and the biological decomposition of organic material for the production of methane gas. Consistent with the plain language of lane code 16283A, the hearings officer determined that the waste related use category quote most closely describes the nature of the primary uses. That's the language from the code and therefore the facilities prohibited in the LI zone officer's determination is clearly consistent with the plain language of the definition of a waste related use. That definition includes any uses that quote receive solid liquid waste for disposal on the site or for transfer to another location or uses that manufacture or produce goods or energy from the biological decomposition of organic material. It's all directly quoted from the land code. Since the primary uses are specifically included in the waste related category definition, the hearings officer rejected petitioner's attempt to classify the facility under the more subjective and open-ended government facility industrial services or similar use categories based on the plain language of 16283 and this board's decision in uh SRT versus city of Lake Asiggo. petitioner appears to be presenting a new argument in or oral argument today uh which is not permitted under your rules that essentially says well if it qualifies as a government facility then it is allowed even if it also qualifies as a related use excuse me waste related use uh the hearings officer specifically addressed that relied on SARTT and there's nothing in the petition or the reply brief that challenges that or even cites that case so we believe that that has been waved. And this argument regarding 16.2803b. Uh the key language there is that that those factors only apply when a uses category is not clearly identifiable. The hearings officer specifically found that this clearly qualifies as a waste related use and petitioner didn't challenge that finding. Instead, what petitioner did is challenge a bunch of ancillary findings, rejecting petitioner's arguments on alternative grounds. Uh there's some mischaracterization of uh the hearings officer's decision. Uh failed to challenge relevant findings even on those alternative findings. Uh and Ray's New Organ is not preserved below. uh we'll rely on our brief for the details on that because really regardless of how you decide these ancillary appeal issues that petitioners raise the hearings officer's decision must be affirmed because petitioner failed to assign error or challenge any of the key findings and conclusions that provide the central basis for the decision that this is a waste related use based on the plain language of the code and petitional likely didn't challenge it because there's really not a reasonable or legitimate basis for challenging that conclusion. you know, petitioners started this project out with a zone change because they repeatedly acknowledged that this is a waste related use that's prohibited in the LI zone and we're seeking a new zone and for reasons that were unclear to us, they changed tact and then suddenly raised an argument that it's not waste related. um that that prior statement prior position is very um in indicative that even petitioner recognize that this clearly is a waste related use. So on that basis um since the hearing officer's primary basis for the denial was this is waste related use it's clearly supported by the plain language of the code and the uh undisputed evidence in the record. Uh we ask that the board affirm uh the uh deny the appeal and affirm the hearings officer's decision. And I'll go ahead and turn it over to Miss Kellington unless you have any questions. >> No questions from the board for you. Uh And you're you're on mute, Council Kellington. >> Thank you, Wendy Kellington. May it please the board representing Lane County Garbage and Recycling Association. We concur wholeheartedly in Sanipac's arguments by not challenging key factual findings, legal conclusions, and preservation failures. The petitioner has provided no basis for reversal or remand, and Luba should affirm the hearings officer's denial decision. Concerning preservation, the petition did not attempt to demonstrate preservation of the issues petitioner raised in the petition that interveners briefs argued were not raised below. For example, the petition record pages cited a petition for review 14 did not raise the issue that only a certain dictionary can be used to interpret the county's code and did not raise the issue that visitors to the nearly 7,000 square ft visitor and education facility are not customers within the meaning of LC16284A Romanet I Instead, petitioner improperly attempts to use its reply brief as a deacto amendment of its petition to site wholly new record pages to demonstrate preservation of those issues. However, under this board's decision in Rosewood versus City of Lake Asiggo, a petitioner may not mitigate its failure to demonstrate preservation in its petition by adding citations for the first time in a reply brief. As Luba explained, doing that is contrary to Luba's long-standing rules and prejudices interveners substantial rights to prepare and present their case, effectively shifting the burden to interveners to search the record for preservation after their briefing period has closed. Rose governs and petitioners not preserve the issues raised in the petition that interveners argued are not raised below. On the merits, petitioner conceds that LC16283 establishes the process for determining which of the use categories applies to a particular use and conceds that 16280 sub8 concerning similar uses only comes into play when none of the enumerated use types in the code apply. Contrary to petitioner's argument today, the hearings officer applied that framework repeatedly over at least 10 pages of the challenged hearings officer decision. Other key issues are not challenged by petitioner. There's no dispute that the LC expressly states that uses are to be assigned to the category whose description most closely describes the primary use. There's no dispute that the LC expressly states that uses with multiple primary uses must have each primary use classified into its applicable category and be subject to the regulations for that category. That framework defeats petitioner's argument raised for the first time here today that if the proposed use can be shoehorned into the government service use that the board should ignore other primary uses proposed uh in the application that are expressly prohibited in the zone. I just want to make sure I understand there's clearly to me an analytical distinction between the petitioner's position today. I'm not sure whether it's in the review and your position about the operation of lane code 16 283A. I think I understand your position is the analysis is determine which category it most closely describes. And so you a decision maker needs to decide what category it falls into. It's not a decision of this is waste related and government. There's a dichotomy there. So they need to choose one or the other. They don't choose both and then they say well this is nests within the government use. >> Yes. That that's what sub A says. Sub C though recognizes that there may be proposed developments that have multiple primary uses and in that situation each primary use is assigned the appropriate use category. Here the hearings officer of course decided that all three primary uses are waste related and prohibited. So hopefully that answers your question. You're you're correct that you you start with deciding is is is the proposal one for a use whose category can be clearly identified. If the answer to that is yes, then you don't proceed to the 3B uh an analysis to look through the factors and that's what the hearings officer expressly said he was doing here and he correctly decided that the the primary uses of the proposal are clearly identified. He didn't have to go applying factors to figure out what they are. Again, you know, here the facility will receive and process uh you know 225 tons of solid waste. It will transfer most of that waste, about 64% of that waste to the short mountain landfill and will biologically decompose uh material organic material to create >> Thank you. >> Yes. And on that there is no dispute that the prohibited waste related use uh that the proposal fits into categories of specific waste uh related uses. The the proposal again it will receive solid and liquid waste from others uh for transfer to another location. There's no dispute about that. There's no dispute that the proposal will involve the manufacturer production of goods or energy from the biological decomposition of or of organic material. The petitioner doesn't challenge the hearings officer's determination that the facility cannot be approved under general open-ended categories like industrial service or government facility because the facility includes waste related uses that are specifically prohibited. petitioner doesn't challenge the findings at record page 24 that the majority of the building square footage is designed to accept process and transfer waste or to produce bio gas or that 84% of the vehicle trips to and from the facility involve the transport of waste. So standing alone, the unchallenged legal framework and unchallenged factual findings support the hearings officer's determination that the proposed use is in whole or in part a prohibited waste related use and the application must be denied. Petitioner also fails to challenge key findings that support the hearings officer's conclusions that the proposed facility is not a government facility where the public is generally not received or an industrial service use where few customers especially the general public come to the site. petitioner on that doesn't challenge the decision's finding. The proposal includes a nearly 7,000 square foot visitor and education center or the finding that the proposal includes 10 additional parking spaces for visitors and two parking spaces for full-size buses. The proposed trip cap doesn't aid petitioner because a single bus load of visitors or two bus loads can bring scores of visitors to the site in a single bus trip. far more people than a few. One final point, petitioners arguments ignore the express wording of LC162803B, which states that it applies only when a use category is not clearly identifiable. The hearings officer didn't by not addressing 3B because the hearings officer properly concluded the use category was clearly identifiable. The hearings officer correctly decided the proposed use as a whole is not a waste related use and alternatively that several of the proposed primary uses constituted prohibited waste related uses because they just match expressly the definition of a waste related use even if there are multiple uses. the 283C comes into play and each primary use is classified in its category and is subject to the regulations for that category. As a result, the proposal must be denied because it includes multiple waste related uses. The hearings officer did not and uh the Lane County Garbage and Recycling Association respectfully request LUBA deny petitioners assignments of error and affirm the decision. >> Thank you. No further questions from the board. We will return to petitioner. You will have your three minutes for rebuttal. Please go ahead. >> Thank you. Uh I want to start by responding to this idea that the argument that if it's allowed as a government facility, it's allowed even if it's waste related. The idea that that's a new argument. Uh, in response to that, I want to quote the 11th page of the petition for review where I wrote, \"The government facility use type also allows uses that would otherwise be prohibited in the LI zone.\" That same argument also appears in the record at page 35, uh, and probably other places in the record as well, but that was the one that I was able to pull up quickly during uh, posing council's argument there. Uh the I I I also want to say that um we a we agree that the petitioner does not contest some of the things that opposing council says that petitioner does not contest. Uh we do not contest that if the uses that the hearings officer determined to be primary uses are in fact the primary uses and if those primary uses are in fact properly categorized as waste related uses and cannot be categorized as a government facility then the overall facility is a waste related use and it's not permitted in the zone. But what we do contest is that those are in fact the primary uses in the first place. And what we also contest is that they are properly classified as waste related uses and that it cannot be categorized as a government facility. I also want to respond to the arguments about the uh Sarti case. uh the way I read the reference to that case in the decision and the way I read that case uh is that it says that there is an inference in those instances that the more general category does not apply. It is an inference but it does not conclusively demonstrate and petitioner does not dispute that that that's what that case stands for and that that is the law. Uh but in this case um that inference is not sufficient for the reasons that we've argued both below and in the petition for review which is that the code explicitly and and and clearly allows uh uses that would otherwise be prohibited if they are categorized as a government facility. And that's because some of those uses that are provided as examples of government facilities would themselves otherwise be prohibited. And the only way that makes sense is if that government facility category is intended uh by the county to allow uses that It's about my three minutes, but I have a few seconds if any there any further questions. >> Not from any no questions from the board. Thank you for your argument. That will conclude oral argument and the statutory deadline for our decision in this appeal is December 3rd. will ask in advance for an extension to issue the opinion no later than December 24th. Is that okay with these parties? >> Okay. Yes. Objection. Thank you and have a good remainder of your day. Thank you.", "summary": "Good morning. This is the time set for Lane County Public Works versus Lane County. I'm board chair Zamudia. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Uh, thank you for muting your speaker when you are not speaking. I'm not aware of any pending motions or matters. Um, before we enter into oral argument, anything from the parties? Nope, nothing from the parties…", "source_url": "https://www.youtube.com/watch?v=96BOPPCIUiI", "source_name": "Oregon LUBA", "doc_date": "2025-11-19", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2025-062 Friends of Marion County v. Marion County", "content": "Oral Argument 2025-062 Friends of Marion County v. Marion County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=4-zu0XJG7hs). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for oral argument in Friends of Marian County versus Marian County Luba number 2025-062. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Please uh continue to mute your audio when you are not speaking and I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring to our attention? I see three heads nodding now. Thank you. Oral argument is a total of 30 minutes. Uh petitioner, you have 15 minutes. May I reserve up to five minutes for rebuttal? Would you like to reserve any time? >> Yes, I'd like to reserve five minutes, please. >> Okay, I will keep track of time here and ask that you also keep track of your own time. And just to note, the clock on the screen is just for reference. It's not keeping exact time of your argument. And respondent and intervenor, you have a total of 15 minutes. Have you discussed how you'll share your time? >> Uh, yes, we have. The county will yield it time to intervene. >> Great. Thank you. Thank you for being available for questions. And um with that, we can go to petitioner. Please state your name for the record and begin. >> Good morning board members. John Butterfield for petitioner friends of Marian County. I thought I would start with the substantive issues and then dive into our procedural concern later on. And I think a good place to start is where this case left off when it was last year in 2021. The county had taken an irrevocably committed exception based on a finding that resource use on the subject property was impracticable. This board reversed because the evidence did not support that finding. In fact, Luba found at the time that what the evidence did show was that any alleged conflict between rural and residential use had long been present in the area. The subject property was being farmed. Other land owners in the area were farming and no relevant imminent land use change in the area had been identified. This is from page 29 of the slip opinion in Finnig one on remand here. None of the evidence has changed and yet the county has once again approved an irrevocably committed exception. Respondents claim in their joint brief that the county's new findings are bolstered by concrete details. These supposed concrete details all reference testimony from Mr. Fenick. But Mr. Fenick told the county that he doesn't live on the property and hasn't for many years. He has someone else growing a cover crop on the property. And in all the time since he turned over the cover cropping to someone else, no conflict has risen to the level of litigation or even a complaint. This is concrete evidence that in reality the alleged conflicts are not actively occurring and even if they were, they are not disruptive to farming. And [clears throat] I want to pause here and talk briefly about cover cropping. Respondents try to claim that this board's decision in Finnig one that the cover cropping that occurs on the subject property is farm use was somehow an evidentiary finding. What phen one actually held was that farming does not need to be at a commercial scale in order to be protected as farm use. Citing uh O 660 0040028 subsections 2 and six. Uh that's it at page 18 of the slip opinion. So respondents suggest that the county can now find that the subject property is not being farmed because of Mr. Finne's declared lack of income from the property. But that's not the legal standard and it's not a change from Fenig 1. In fin one, nobody relied on income from the cover crop to find that the subject property was being farmed because the state of the ferris on the ground was exactly the same as it is today. So law of the case under Spurber vous county should apply here to again find that cover cropping is a farm use that is ongoing on the property. As we mentioned in our reply brief, the evidence in the record shows that the property can be farmed and is in fact being farmed. If you look at the aerial photographs on record pages 178 and 179, the alleged conflicts are speculative and decades old, and the board should again remand the county's irrevocably committed exception. At this point, uh, I'd like to turn to the way the county structured the findings because this is a change from what happened in Finnig one. As we discussed in our brief here, the county said, \"Our factual findings are in exhibit A and exhibit B.\" And exhibit B said essentially, \"These are are Trump findings. If anything here is different than exhibit A, these findings control.\" But the county didn't go back and say which of the exhibit A findings it was disavowing. And that's problematic for a number of reasons. First, at least petitioner and this board to sort out whether something is different enough to be trumped by the findings in exhibit B. That should not be a burden that the county can place on those reviewing a decision. That's exactly why we have the higher standard. The county has to set out clearly what it is finding and what evidence it believes supports that finding and including findings or evidence that the county later on disavows maybe should not be a permissible strategy to avoid review. And it's especially troublesome here where only exhibit A lists the required criteria. So exhibit B is sort of free floating facts and conclusions that the county then can pull from to support any right required criteria it wants later on. That's not an explanation of how the evidence led to the conclusion that the criteria is met. A and even beyond exhibit B's additional untethered findings. The county then purports to incorporate anything that Mr. Fenig or his attorney submitted to the county throughout the whole permit process. This this apparently gives the county another 77 pages of adoptive findings to pull from later on to try to justify the exception here. That's a clear violation of Gonzalez and provides another reason for remand. At this point, I would be happy to answer questions about anything I've covered or other assignments of air and and otherwise I would uh reserve the >> Nope. No questions from the board. Um we will turn now to intervene. You'll have your full five minutes for rebuttal and we'll turn now to intervenor for your argument. Please state your name for the record and begin. >> Morning chair, members of the board. My name is Isaac Heland. I represent Lois Fenning, applicant below, and intervenor respondent here. The Fenics are a family of farmers who are intimately familiar with the subject property, which has essentially been their backyard since the 1950s. But despite their experience with farming and their knowledge of the property, they have been unable to make farming practicable in large part due to the surrounding residential parcels with small setbacks. This board should allow the property to be put to a productive use and affirm the county's decision to make an irre to take an irrelyably committed exception to goal three resz on the property and allow the partition into two lots. And that is a difference from the last time that this application came before this board. The application now seeks only two parcels 10 acres and 10.46 acres in size rather than 2 acre parcels. um eliminating the requirement for a go 14 exception. In response to the first assignment of error, the county's incorporation of the hearing officer's findings and the testimony and affidavit of uh Wallace Lee and Larry Fen uh doesn't make a decision too unclear under Hiler to make a decision. Uh first, there isn't really a conflict between exhibit A and exhibit B. Um the petitioners speculate that there could be and that there could be a problem, but they really only point to one supposed uh contradiction um between exhibit A finding 17 and exhibit B finding 8. Um but those just reference two different areas. Exhibit A finding 17 referring to the larger area between Mle Road southeast and Culver Road. Um and while exhibit B finding aid is referring to the 13 adjacent parcels that actually touch the subject property. Um and other than that the petitioners have been unable to point to any actual contradiction between exhibit A and exhibit B that would warrant this concern. Um even if there was a contradiction, findings are clear because the county has told us exactly how to handle any such conflict. exhibit B controls. And that particular alleged discrepancy between exhibit A and exhibit B um had to do with how many parcels are in tax deferral. But both of the study areas on this record and the study area that was on the previous record um both list just one property one adjacent parcel in uh tax referral and that's been unchallenged and undefeated. Second, the intent of the county regarding the incorporation of the testimony and evidentary facts submitted by Mr. Lee and Mr. Fenig um it is obvious. um under Gonzalo's standard has been met to clearly define what's being incorporated which um the petitioner today here at oral arguments had no problem identifying it's the testimony and the affidavit submitted by Mr. Lee and Mr. Fenig. Um, now the petitioner may object to the scope of that because they don't like the facts that are that are in the record that have been incorporated, but the county may express findings that they found Mr. Lean and Mr. um testimony to be credible and that they are incorporating them. That meets the standard under Gonzalez. And even if it didn't meet the Gonzalez standard, the uh remedy, so to speak, would be simply to not find an intent to incorporate. Um, but the county specifically and separately names Larry Fenix affidavit and testimony as being adopted as factual findings. So that at least is obviously incorporated in this case hinges a lot more on Mr. Fenick's affidavit than it does on Mr. Leans. Uh in response to the second assignment of error, the county findings appropriately address both the adjacent lands and the neighborhood and regional characteristics. And the petitioners have been kind of unable to make up their mind as to how large they'd like the study area to be. Um previously before the spore, this board remanded and instructed the county to take a stronger look at specifically the adjacent land. Now the petitioner is saying that the study area is too narrow and ought to include parcels that are not actually adjacent. Uh they have no authority for that contention and it in fact runs against fire case law from this board for example lavinger versus slain county in which this board used the terms adjacent lands and adjacent parcels equivalently. Um and at any rate, the old study area still stands to provide the uh neighborhood characteristics and characteristics of the surrounding area. What those characteristics show by the way is that the land use patterns in the area have remained stable. Meaning that generally in the broad area that the residential and farm uses have coexisted meaning that the um finding that this parcel has been irrevocably committed is unlikely to therefore irrevocably commit other parcels west and south. Um, in response to the third assignment of error, the record has substantial evidence to show that the property has been irrevocably committed. And contrary to the petitioner's claim that nothing has really changed between the two record, the county actually substantially retoled its analysis and the applicant actually submitted an entirely new application based off of this board feedback in Fenic one. And so now the analysis really focuses on the effect of the residential uses to the east on the subject property primarily as a result of these really small setbacks, sometimes as small as 20 ft. Uh Mr. Fenny's declaration detailed that he specifically experienced overspray from the six residential um parcels in the eastern boundary. both uh residential overspray, um water or residential irrigation, and also chemical overspray. And both of these have destroyed attempted crops on the subject property. And the chemical overspray is particularly problematic because those chemicals can actually stay in the soil for a long time. And the residential users are not licensed or trained to apply the chemicals. They're not taking wind direction and other things into account when they apply these chemicals. they're drifting onto the subject property which is just 20 ft away. Um and then as far as water availability and fire hazards, the evidence in the record also supports that um you know the subject property has no water rights and if it were to acquire them and drill a well that could contribute to offer fragility in the area which only exacerbates the fire issues. There have been fire issues of um the residential uses have burn barrels and backyard barbecues um and even children playing with matches just a few feet away from the property line which has burned several acres of attempted crops in the past that compounded with trespassers. Um these are all issues where the residential uses have made the subject property impracticable for farming. And then lastly, in response to the fourth assignment error, the dividing the property into just two large parcels will not fundamentally change the character of the surrounding area. And in fact, um 10 acres is much larger than the average parcel size in the area of 3.45 acres. The median parcel size is just over 2 acres. These are going to be two ac 10 acres and 10.45 acre lots. Um this held in Anderson that you know adding one additional dwelling unlikely in area already concentrated was rural development. is unlikely to emit adjacent properties. And here adding two much larger properties with much larger setbacks than currently exist means that these types of residential issues that are coming from the east are not going to spread from the subject parcel to the west and south. I'll take any questions. Council, does the record reflect u when or if whether the properties to the east are are subject or developed according to an exception area or within an exception area? >> I think that there is um an exception area to the east um that is mentioned in the um in the record. Um I I don't recall the the number of the exception area off the top of my head, but there is residential development and subdivisions to the um east and the kind of northeast area and then primarily the actual uh special agriculture farm use lots are to the south and the west. >> Okay. No further questions from the board. So, we will return to petitioner for uh you have five minutes for your rebuttal. >> Thank you. I'll start with uh board member Bashion's question. I believe that the the properties to the east predate uh land use planning. So, they were uh set they were residential already. So, then they got um the zoning was applied to them that way. Um and and I I want to touch on three points that respondents made. first this discussion about uh you know the the large study area versus the narrow study area and I think you know respondents um acknowledge that if if you look at the neighboring characteristics sort of the area in general I guess what we're calling the larger study area um it demonstrates that that farming and residential use have coexisted um for for a long time and respondents uh you know wanted to use that point to say that well if this property becomes residential use. It won't have a cascading effect. But I think what it actually demonstrates is that uh the conflicts that sort of have been identified here don't prevent anybody else from farming next to residential property. And so the there's nothing special about uh this property that makes it somehow different from other farming properties in the area that are bordered by residential property. And I think that's sort of something that the court of appeals has identified, you know, that we're going to have properties on the border between residential and resource use. And if the mere presence of residential use on, you know, on an adjacent property irrevocably commits the resource property next door, then we're not going to be able to have these established borders. And so the the irrevocably committed standard is a demanding one. That's that's something that this board has found. And so it's a high bar to demonstrate that that something specific about this property um it makes it irrevocably committed and and the conflicts identified by the respondents simply don't meet that bar. They they haven't happened in in the past um decades at least. Mr. defend says they haven't had complaints or litigation. So, we're talking about old conflicts that um you know, apparently aren't ongoing and and could be remedied by offense or a setback as as the respondents sort of acknowledge when they say, well, if these properties uh if this property is split into two, partitioned and turned into residential use, it won't lead to further irrevocably committing of the properties to the west because there will be these setbacks. Well, that demonstrates that a setback could address the conflicts that they've identified on the subject property. You simply don't farm right next to the adjacent properties. Um, but in fact, you actually can farm right next to the adjacent properties. That's what we see in the aerial photograph that it is being farmed. And so that was my second point was that the residential uses to the east aren't preventing farming because the cover cropping is occurring and if you look at those aerial images it should you know it's occurring across the width of the property and there hasn't been a fire or chemical overspray and the farmer who it's not Mr. Fin. We understand it's a non-monetary arrangement, but there's a farmer out there who finds it worth his time or her time uh to do this cover cropping, and that's a farm use of the property, demonstrating that it's not virtually impracticable. And so that >> I have a question about the your view of what the proper remedy is in this case. As you've mentioned, this is the second time this um matter is before us. I understand the application and evidence was significantly revised. Your view is that the evidence doesn't satisfy the criteria. You ask for reversal and in the alternative remand. Um tell me your best argument for what the resolution should be. >> Sure. I I would actually I disagree that the evidence has is has significantly changed. um you know respondents cl um classified as a new application but the conflicts that they set out are the same ones that they mentioned in the previous case that was remanded where this board you know held that that didn't show an impracticable an irre an impracticability of farming uh or meet the standard. So um certainly you know the the case uh should should certainly be remanded um for I think to to correct the the procedural issue that we identified and then also potentially to to offer another opportunity for additional evidence. But I think at this point we we've seen what the evidence is, what's there on the ground and and the county has approved it again despite this board's direction the first time. And so that's where I think reversal might be appropriate in in a situation where there there isn't anything that could be put into the record on remand that would change the decision because respondents already had that respondent intervenors already had that chance to put in anything else that they have and and this is where we are. So >> thank you and that uh you've used your full five minutes. So appreciate you answering the question. That will conclude oral argument. The statutory due date for our decision this appeal is February 20th. Uh we'll ask the parties to agree to an extension so that we issue our decision by March 13th. Is that okay with these parties? >> No objection from petitioner. >> No objection from the respondent. >> No objection from the county. Thank you. Thank you and thank you uh for appearing", "summary": "Good morning. This is the time set for oral argument in Friends of Marian County versus Marian County Luba number 2025-062. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Please uh continue to mute your audio when you are not speaking and I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring…", "source_url": "https://www.youtube.com/watch?v=4-zu0XJG7hs", "source_name": "Oregon LUBA", "doc_date": "2026-02-11", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-077 Landwatch Lane County v. Lane County", "content": "Oral Argument 2025-077 Landwatch Lane County v. Lane County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=a4VI90TCCzE). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for oral argument in land watch Lane County versus Lane County. Luba number 2025-077. I'm board chairio. Board members Wilson and Basham are also present. They're not present. They're present today. Please mute your audio when you're not speaking. Uh and I'm not aware of any pending motions in this appeal or part of anything to bring to our attention. >> None. But I've responded. >> Thank you. >> Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? And if so, how much? >> Three minutes, please. >> Right. I will keep track of time here, but ask that you also keep track of your own time. And just note that the clock that's on the screen is not keeping exact time. and uh intervenor you will have a total of 15 minutes for your response. So with that petitioner please state your name for the record and begin. >> Good morning Sean Malone on behalf of petitioner landwatch lane county. Uh here we have a sort of unique situation um a uh lane county processed application that is within the metro plan boundary but outside of the urban growth boundary and city limits. So we are sort of in a unique uh marginal lands type of situation that Luba has not seen before. Whenever Luba has seen a marginal lands case at least arising out of Lane County, it's always been fully within the county under the uh Lane County's rural comprehensive plan. Again, here we have this particular case arising under the uh cities of Springfield, Eugene, and Lane county's metropolitan plan. Uh with that turning to the first assignment of error uh regarding uh misconstruing or former OS97247 and inadequate findings. Um the issue here is sort of one of is sort of a logical conclusion. Um the language of former RS197247 repeatedly refers to a designation. Petitioner argued that that required a plan amendment to change the plan designation of marginal land. here as we pointed out the metropolitan the metrop plan does not contain a marginal lands designation. Um you know which is again uh sort of contrary to uh all other marginal lands cases that have arisen out of Lane County where the R the Lane County RCP real comprehensive plan has a marginal lands designation. Here we have the metro plan without a marginal lands designation. Uh so it sort of becomes an impossibility in petitioners's view to have a plan amendment uh that would change the plan designation as in every other case from either forest lands or agricultural to marginal lands. And the the conclusion of the hearings official sort of hinges on a sort of small uh issue and that is the inclusion of the phrase that I've emphasized only in in that concluding sentence that the HO concluded nothing in OS 197247 or the cases LWLC sites limits the term designate to only comprehensive plans. Now, if you argue that a plan amendment is necessary and you say it's not only limited to comprehensive plans, well, that begs the logical question of, well, what what is it then? The hearings official, as I pointed out in the in the briefing, sort of took a position, well, it could it could be this and it could be it could be plan amendment or it could be plan designation. And if the hearings official concludes that it's not only a plan designation and does not conclude that it's not that it's only a a zoning designation, then we still have uh an unresolved issue that is that a plan amendment may still be necessary. If for example the uh you know the interpretation the correct interpretation is that uh a designate refers both to a plan designation as well as a zoning designation. Typically I I I usually see uh designation is referred to plan designation. Here we even have it in the metro plan talking about uh you know a marginal lands um something becoming marginal lands within the metro plan. And we'll get to that in a second second assignment of error. But I think this one's very sort of plain on its face. Uh the hearings official left it open. That's why it's an adequate findings, you know, in the preservation section we point to. Uh those are all the arguments as to why designate is a uh plan amendment in our view. So I think that one's pretty straightforward inadequate findings. Uh the second sub assignment of error in there is that the marginal that state law or former RS 197247 uh does does not indicate or the hearings official's interpretation that it is remains a resource designation that is marginal lands remains a resource designation is inconsistent with the statute uh former RS197247. Um again every other case that you see here you have a you're going from a traditional resource designation in the form of forest or agriculture to marginal lands. Uh and so if if it if it is not a nonre if it is a resource designation then I suppose you could have an agricultural designation as as your um as your plan designation. But if marginal lands is nonresource then you can't have a agricultural designation or forest designation on the property. It would have to be just as it has been in every other case from Lane County. The the planet plan designation would have to change from uh agricultural or forest to marginal lands consistent with the change of the zone so like I said if if it is non-designation then it would be inconsistent with the metrop plan's designation of agricultural. Why what requires us to conclude that the marginal land designation can't be a zone that implements an agricultural comp plan designation? Why is marginal lands necessarily not a resource or incons inconsistent with a resource comp plan designation? Well, there's a variety of reasons and we cover them in the briefing there. And just to point out, the first thing is that, you know, the the type of smallcale single family dwellings on small lots uh are is not something that's allowed in agricultural zones uh or or these forest zones. And so it's that that's the first reason why it would be inconsistent. Um you know there is this marginal lands training book which again was never uh adopted by the board doesn't have any force and effect of law. Um >> there's certain there are types of dwellings that are allowed on forest and a land. So why does the allowance of dwellings and marginal lands make it so that marginal land zoning is not consistent with resource zoning? >> Sure. And so if I mean none of those are allowed outright is my understanding. Right. So you don't under the marginal land zone, you get you have outright allowed allowances for particular single family dwellings on particular sized lots or parcels. Um under the uh under the allowances for uh dwellings in uh statute for forest lands and agricultural lands. I'm not under I'm not under the understanding that there are outright allowed uh dwellings in the same nature or manner as in marginal lands. Those are all required, you know, additional processes are required whether it's like type two processes or or so forth. Um, you know, we also have >> your argument, I just want to make sure I understand your argument is that the marginal lands zone is inconsistent with the resource comp plan, metrop plan designation because the type of development that is allowed outright in a marginal land zone is inconsistent with agriculture and forest comp plan designation. >> Correct. I think you can't, you know, you know, I want to be honest here. I can't deny that the the marginal land zone also allows for some resource use, but it also allows for nonresource single family dwellings and that's been identified by Thousand Friends case that went to the that was before Luba. Uh it was an older case. We cite it in our brief where they refer to um hereto for resource lands as marginal lands. So lands that used to be resource lands are now marginal lands. uh we have DLCD's guidance which refers to these as non-resource lands. So um if marginal lands is a non-resource designation let's say zoning designation and then you have a plan designation of agricultural i.e or resource designation or forest forest. Uh then that would appear to be inconsistent under the Baker uh case that we've uh cited to. Um moving on to uh >> oh before you move on just um on your argument that marginal lands aren't resource lands. Why is marginal lands not sort of the flip side of high value farmland? Like they say okay it's farmland but it's really good farmland so we're have extra protections. how is marginal lands like yeah it's farmland but it's not really good farmland so we're gonna have less protections like basically low value farmland I understand what you're saying marginally productive uh farmland essentially and I the most straightforward way I can answer that question is to say it's not marginally agricultural land it's marginal land it's something else you know and so whether the existence of nonresource single family uses on marginally productive resource land renders that still resource or still not or non-resource. Uh petitioners come down on the side that that's nonresource. Um you know again we've cited to to a variety of things in there um including case law DLCD's guidance and so forth. Um so I think that it it it's an ambiguous issue. I have to concede. Um but we we think that the existence of something that is nonresource smallcale rural parcels renders that nonresource. Um and then you know second sub I'm I'm running out of time obviously. >> Thank you. >> Thank you. Um we'll just move on to the second assignment of error there. Inconsistency with the policies. I think this is a these arguments are are are are are pretty good in the sense that um the policies seem to assume that there would be a plan designation for marginal lands and they also seem to say okay marginal lands are agricultural lands and that's what the interpretation of the hearings official was by adopting that from the uh applicant's consult non-attorney consultant and essentially what that would do is render a you know automat atic provision for creation of a plan designation when there is no such plan designation in existence and the closest sort of um analog that I can find in the case law regarding that was this neighbors for livability case when there was the court of appeals said you can't have an automatic reversionary plan amendment that's not allowed that asserts the pop-up process that asserts legislative authority and I think that's the same thing here by saying oh well it doesn't matter that there's no plan designation marginal lands are agriculture lands. So, it seems like you need something else. Uh, one final point with regard to the third assignment of air. You know, there there's simply a a a a dismissive attitude towards towards the neighbors, the notion that they are not members of the public. Um, and u that's that's just simply wrong. And then to say that uh for example um the neighbor's testimony is not evidence uh about the public or the public interest and then concluding that the um non-estimony of all these other people uh is evidence in support of a public interest finding. Uh that's sort of just pure sophistry and it's difficult to to to swallow. Um issue of natural resources and it seems to be just missing the point. Um na the idea that natural resources could be projected under the public interest standard is not precluded by that standard. Um the conclusion that well you just look at what's in inventoried in the metro plan. Well that doesn't really pertain specifically to the public interest standard. Uh and I see I'm almost out of time. So I >> I have a quick question about the second assignment. Um, so if I understand your argument, you're saying that you can only have marginal lands uh with if you have a comp plan designation for marginal lands. And since the metrop plan doesn't have a comp plan designation for marginal lands, there's no way to have marginal lands, at least in this in the donut. Is that right? >> Correct. >> Okay. And so, but the metrop plan, it has these policies that talk about how you can be designated as marginal land. if if you're not allowed to have marginal lands at all, why do they have these policies that appear to allow for marginal lands in some manner? >> Yeah. And like like I said, uh I think there was an assumption there that maybe they would do a plan designation and they made these policies. Um and [clears throat] you know, it's I'm I'm not sure why they included these, but assuming they assuming they were intending to create some plan designation, they didn't do it. Maybe they, you know, again, like we pointed out, uh, this only applies to counties pretty clearly. Uh, the plan designation or the the OS97247 only refers to counties. And so there's pretty clear um, you know, evidence that you can't just automatically create a plan designation through a policy by simply saying marginal lands are agricultural lands. Uh, you have to actually do the work to do that. that is enact legislatively enact a plan designation that would be able to support that that papa. But here um that didn't occur and like we've said once these lands came into the metro plan the possibility of um having this occur you know a plan designation zoning zone change for margin lands became precluded. That's sort of our position on that. >> Okay. Thank you. See? Yeah. I see I'm out of time pretty much, so I'll >> We have 30 seconds for your rebuttal. So, >> I'll hold [laughter] on to that. Thank you. >> I want you to say after uh council close is gone. You'll have time to get one last word in. So, we'll uh turn now to uh intervenor respondent for your argument. And you're muted still. Uh >> Okay. Bill Close for the intervenor here. Um, I was curious, is there always a 30 second rebuttal period for folks? I I totally support that. Um, uh, so the first assignment of error, um, deals with the meaning of the statute and the second assignment of error deals with the meaning of the plan. Um I I guess I'd like to say I think the meat of this case is in the first assignment of error and not the second. But let me dispose of the second assignment of error initially because we finished the questioning on that point. Um the issue there is really what does the presence of these two policies saying anybody can go forth and get a marginal land designation in the um egg or u forest plan areas if you meet the standards. Um what does that say about the need for a u plan designation in the metrop plan that authorizes um marginal lands? I I I think applying our basic rules of construction um which would say those policies need to be given meaning and in order to give them meaning you need to jump to the second step which is well uh you don't really need a we don't really need a marginal lands plan designation the metrop plan um because marginal lands is a type of resource land and we have egg plan designations and we have forest plan designations. So if you meet the standards for a um a marginal lands zoning, then you can tuck in under one of those existing plan designations. So that's a way of saying there's just no need in the metrop plan to go forth to to to amend the plan uh to allow call out marginal lands before you can um go ask for um marginal lands designation. Um the first assignment error is a question of uh you know state law. What the heck does that um um statute mean? Uh when it says designated land as marginal land, [snorts] um that um the hearing [clears throat] official of course agreed with the applicant that designate can mean uh designate with a plan designation or designate with a zoning designation. It is not defined in the statute. Um and so let's go to the dictionary and uh the dictionary would support it uh saying meaning uh you can use your zoning uh regulations or your plan regulations to uh to the hard part of the statute. I mean the statute the the statute says it talks generally about designating um which is not very specific but it talks very particularly about what you need to do to get that um marginal lands medallion. you have to go meet very specific standards. So, um this is a situation where the legislation is general about uh what buckets a local government can use or what labels they can put on uh the process, but it's very specific about what standards have to be applied to qualify. And um uh that's that is the um interpretation of the statute we think is appropriate. I think the the threshold the most important question I think for the board is um does getting which is related to the point I just made does getting a marginal land designation require first getting a marginal um uh does marginal land getting marginal land zoning first require getting a marginal land um plan designation? And um uh and the answer to that really turns on how you characterize uh what marginal lands is. You know, if marginal lands is um akin to or a surrogate or you know another meaning for non-resource land as the petitioner argues then we're in trouble you know but it it it there's no read to read so um narrowly. the correct meaning to give marginal lands is that it's a um a lesser type or um you know poor cousin of you know better agricultural land. I I think the topology you know petitioner was saying well the problem with treating it as a resource land is it allows development. Well sure it allows development any resource land allows some development. There's really a hierarchy. Um if you um just taking agricultural land as an example, you've got high value farmland. You then got um non- highv value farmland. You've got marginal land. You've got committed lands. You've got non-resource land. As you know, you you go from the best land to the crummiest land. and as but but you can get development in any of those um in any of those um different categories. It's just a question of how much development and what standards you have to meet to um get some development and what the densities are and what the impacts on the surrounding property are. Um but some development is allowed in all of those different categories. I might have missed this in the brief, but I'm wondering is the term marginal lands defined in statue or is it defined in the metrop plan? Uh I I I think I think marginal land I'm not aware of a discreet definition of marginal end in the statute. I think it's uh defined in functional terms. >> Right. in the care and whether it satisfies the >> Exactly. That's right. That's right. And I I don't think it's defined in the metro plan either. Um I'm not I haven't revisited the Lane County Rural Comprehensive Plan recently, so I my my answer is allowed. I don't know. Um so I I guess that's really you my main point. um you know is marginal land a type of uh resource use or is it not? And I think if you agree that it is uh then it's easy to reach the conclusion that we that the the the thrust the crankshaft of petitioners argument that we can't get where we got to without uh having a plan designation. That means amending the metro plan to include a marginal lands plan designation and then um amending um uh the plan to allow this property to be redesated to marginal plan uh marginal land plan designation. um uh and and so I think that's the central question in this case and if we um if you can if you can get comfortable with the idea that marginal lands is a type of um resource land then I think that issue pretty much is put to bed. I think that is pretty much the major points I want to make unless there are any >> No questions from the board. Thank you for your argument and we will return to petitioner for a 30 second rebuttal. >> Thank you. Uh just to address the uh policies again uh I didn't quite fully answer it. You know marginal lands are marginal lands. They're not uh identified or defined as you know subprime or u marginal agricultural lands. Those statements in the pol policies just sort of mirror what's in the statute that that's why they're found under a and forest because that's what you have to go from first to get to marginal. Um and then beyond that they're they're analogous to our our lands rural residential lands. um that allow some sort of resource uses but they're not resource lands and uh that'll do it for my side. [clears throat] >> Thank you. Uh any further questions from the board? No. Okay, that will conclude oral argument. Uh thank you for your argument. The statutory due date for our decision in this appeal is February 25th. We'll ask that the parties agree to an extension so that we can issue our decision no later than March 4th. >> Of course. Good. Thank you.", "summary": "Good morning. This is the time set for oral argument in land watch Lane County versus Lane County. Luba number 2025-077. I'm board chairio. Board members Wilson and Basham are also present. They're not present. They're present today. Please mute your audio when you're not speaking. Uh and I'm not aware of any pending motions in this appeal or part of anything to bring to our attention. >> None. But I've responded. >> Thank you. >> Oral argument is a total…", "source_url": "https://www.youtube.com/watch?v=a4VI90TCCzE", "source_name": "Oregon LUBA", "doc_date": "2026-02-11", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2026-010 Anderson Woods, LLC v. Wallowa County", "content": "Oral Argument 2026-010 Anderson Woods, LLC v. Wallowa County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=QHP4kbVtJzY). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Mhm. >> Are we on? Are we good? Good morning. This is the time set for oral argument in LUPA number 2026-010, Anderson Woods LLC versus Latah County. I'm Board Chair Zamudio. Board Member Wilson is also present. Board Member Basham is not present and will not be participating in the final decision. Um We I think we have an attorney for petitioner on the line. If you could go on screen and unmute, that would be helpful. We're not hearing or seeing anything on our end other than a screen with an Anderson Woods LLC. I'm assuming that's the attorney for petitioner. If you could please um go on screen or unmute so we could Now we see a name for petitioner's attorney, but we still cannot hear or >> This is Ron Hostetter. >> Hello. Good to see you. >> Uh sorry, hey. We're from Enterprise. It takes us a little bit to get make this happen. >> It's all right. It's a lovely lovely part of the state. I've been fortunate enough to be out there. Uh we also had in the waiting room um attorneys for the county. The county did not file a brief in this appeal, so they may view oral argument that we live stream on YouTube, but they will not be able to present oral argument today. So we're only getting oral argument from the petitioner on your petition for review. I don't see any pending matters in this appeal. Is Is you need to bring to our attention? >> Well, I I do I get 15 minutes to argue the case, is that correct? >> Yes, I'm just saying there's no there are no pending motions. We have the substance before us. Nothing >> No preliminary matters, no. >> No preliminary matters, okay, thank you. You do have 15 minutes since you are the only one presenting oral argument today, you'll have that full 15 minutes. Um and whenever you're ready, please state restate your name for the record and begin. Thank you. >> Thank you. This is Ron Hostetler representing the petitioner Anderson Woods LLC. And by the way, you've advised that apparently attorneys for the county are in the room. Um also in my room are the members of Anderson Woods. Four of the five, and so they're listening in as well. Okay, well, to proceed um back in August of 2025, Anderson Woods, through me, applied for four discrete parcels for the acknowledgement of four discrete parcels located outside of the city of Joseph. Um and about a month later, that application was deemed complete. The part of the application that's salient for this day and this argument can be found at the record at page 66-3. I cited in my brief to 66 um {dash} one one through 16 because that's the full application. But the reference to this 10-acre parcel, which is the subject of this appeal, can be found at page six record 66-3. It can also be found at the record at 38-36 where the planning department acknowledged that the application sought approval, that is verification of four parcels, not three parcels. And including the 10-acre parcel that is a subject of this matter. Okay, so there was the application. Then skipping to the decision you'll find at the appendix to the petition um appendix one page seven. And maps are all I think maps are the best way to describe what's going on here. It's actually very straightforward. Um but on page seven of appendix one, you'll see a map of what the county commissioners did approve. That is three discrete parcels. And they did so based on the historical record of homestead patents that were pres- presented throughout title company. So, that's what they approved. Then if parcel four which is a 10-acre parcel. And that's the parcel that they didn't address. They didn't approve it. They didn't Well, they by not >> Uh Mr. Hostetler, um >> Um, I'm having trouble I don't know our connection is not great, but could you maybe walk me through the history of tax lot 8600, all the different parcels are involved? >> Sure. Sure. Uh, so understand that Vernon and Rita Anderson, who are the grandparents of those sitting in my in the room here, >> So, we are, um, >> And the deed is in the >> or on their connection. We are breaking up, uh, Council Hofstetter, you're breaking up. So, maybe if you could turn off your video stream and just go pure audio, we could not lose any of your argument. Turn off my video stream. Somebody help >> So, we're just going to shut her video off, but they can still hear you. And that was >> And we can we can still hear you. Just you were breaking up and we lost some of those words. So, if you could start again, please, on the history. Is that what the question is? We're going to listen. >> Yes. Okay. So, all the the the important part of the history is that in 1952, Vern and Rita Anderson, who are the grandparents of those sitting in the room here, uh, purchased all but 10 acres of the property that's shown on, uh, page seven, uh, of appendix one. Those, uh, and when they purchased that property, then, uh, those discrete parcels had already been formed as part of earlier, um, conveyances from the United States under the Homestead Act >> Are those 10 acres that you're referring to that were omitted from that, um, transfer? Is that parcel four or are those 10 acres what is on the dash line on your app two map? >> It's what's on the dash line of the app two map. >> That's the 10 acres that was omitted from that transfer. >> Yes. >> In 1952. >> Correct. >> Okay. Go on, please. >> All the rest of the property was The 10 acres had already been separated out and belonged to a third party whose names appear on the deed that can be found at at 64-17, which is a conveyance in 1955 when Vern and Rita Anderson then supplemented what they purchased in 1952 by purchasing this extra 10 acres from Stephen Kahn and Ruth Kahn. And again, that deed, that conveyance can be found at the record at 64-17. >> And again, just for clarity, that is the 10 acres that's within that dashed area in tax lot 8600, or is that the 10 acres >> On appendix two, is that what you're looking at? >> No, that you just described a 1955 conveyance that conveyed 10 acres, is that what created parcel four, or was that just the remaining the 10 acres that was within the dashed area? >> That's uh it didn't create parcel four. >> Okay, so what you're talking about is they got the remainder of what is in tax lot 8600 through that 1955 conveyance. We described what created what you're describing as parcel four. What How was that parcel created? And when? >> Oh, I see. >> She's talking this dash up here. It's not a dash. >> Oh. If you're looking up at the Okay, you're looking up at the dashed parcel in the northwest corner. >> Right. >> Okay. Yeah, that was created in 1986 when Vern and Rita Anderson applied for a partition. Um and the reason it's dashed and then bold line is they applied for a partition for the 10 acres that are shown in that dashed line. And then for whatever reason, the county in 1986 Uh no, that's not quite true. The county approved that 10-acre partition, and then the subsequent deed uh just months later or a year later um deeded it in the form of the bold line that is less than 10 acres. >> Okay, so when you were talking about a 1952 conveyance that omitted 10 acres and a 1955 conveyance that conveyed 10 acres, where is that 10 acres that you're describing in the 1952 and the 1955 conveyances? >> Okay, so that 10 acres is if you look at appendix two and on appendix two I have uh parcel four designated. That's the 10 acres that were that was conveyed to the Andersons in 1955. >> Okay. So, before they have applied for the partition in '85, '86, how many discrete parcels were there? Were there four or five? >> There there were four. >> Okay, cuz in your the the brief you submitted to the planning or to the Board of Commissioners on appeal said there were five, so I was confused about that. So, there really just four. >> Yeah, there uh no, I'm not sure. In my application I said there were four. Uh in the brief to the Board of I didn't submit a brief to the Board of Commissioners. I made an oral >> Memorandum. >> Uh oh, memorandum. Yes. Um I may have referred to five in the form that there's uh that there's now as a result of their decision, the Commissioners' decision they would have resulted in four parcels because of that if you include the five or so parcels that parcel that was split off in '86 then there would be five. >> Okay. >> All right, this this is sort of a long way of getting to to my point of like what was going on before the '86 partition. So, correct me if I'm wrong. When you when they applied for the partition in '85, '86, there is what is I'm looking at your that page seven of app one, there was what's parcel one, and it also included that five .7 river part that's separate now, but there was that parcel one, there was parcel two, there was parcel three, and you're saying there was also a parcel four that's that's inside of what they've labeled as parcel three. Is that correct? >> That is correctly stated. >> Okay. >> Thank you. You deciphered what I was saying accurately, yes. >> And then so it seems to me this all sort of comes down to what actually occurred in that 86 partition. Um and the So, it's again, correct me if I'm wrong, but it sounds like the application was to partition 10 part 10 acres off of that parcel one. And then that was approved. And then when they filed the deeds, they only actually partitioned five something acres of it. Is that correct? >> All All of that was back in '86, yes. >> Right. Okay. And it seems to me that the planning commission decided when they did that partition that all that was left afterwards was the 10 acres, which eventually became five, but it was partitioned off of what was looks like parcel one, and then everything that was in parcel one, two, and three, and your four is now just one parcel. That's what the planning commission decided, right? >> Yes. And yes, that is what the planning commission decided. >> Okay. And then this gets me to the crux. And then the board of county commissioners on your appeal, they said, I'm quoting from this is page three of the decision, page three of your app one. It says, \"The board interprets the outcome of that partition creating tax lot 8601 from two discrete parcels identified and then it describes them. In this case, the property line separating separating those discrete parcels was vacated because a new parcel was created from area subtracted from both.\" So, it sounds like they thought that 10 acres was getting created from two separate parcels and I don't understand that cuz it I thought that was just parcel one or parcel A. Yeah, parcel >> So what So what was going on there? I don't understand. >> Okay. So the planning commission, indeed the planning department and then we appealed to the planning commission and both of those bodies said that back in 1986 that 10 acre partition which ended up being a 5 acre partition vacated uh all of the rest of the whatever parcels existed in the larger 270 acre piece. That's what they said. We appealed that and the county commissioners said, \"No, it did not. It did not vacate anything.\" Um and so they said that we are going to approve parcels one, two, and three that you find on page seven of appendix one. They didn't explain why since they ruled that the partition in '86 did not vacate any of the other parcel lines and then caused them then to approve and verify three parcels that existed after that why they didn't explain why they didn't add and approve that additional 10 acre piece that's shown on appendix two. >> Right, so do you have any idea why they did that cuz I don't understand. >> an idea. Um they uh they had a a report from Wallowa Title Company which routinely in our county does do what they call lot of record explorations and they just go back to the homesteads and pull out discrete parcels from there. And so the report from uh well, our title company and I I've explained this in my petition uh only referred to did not include the 10-acre piece because the 10-acre piece was not part of the homestead um conveyances. The 10-acre piece happened sometime between 1900 and 1952 1955. But we know by 1955, however that 10-acre piece was created, we know in 1955 it existed because it was conveyed to Vernon and Rita Anderson separately from the rest of the parcels. >> Were they not aware that you'd pointed out that that 10-acre parcel was its own discrete parcel? >> One commissioner was uh John Hillock saw the light and said we should approve all four. The other two commissioners well, and then uh Commissioner Hayward said I don't see any reason why not. And then without an explanation, Lisa Collier Commissioner Collier moved to approve three of the four discrete parcels and Commissioner Hayward voted along with her and Commissioner Hillock stuck to his guns that it should be four and voted no. But there was no explanation as to why she uh Miss uh Commissioner Collier uh moved to approve three. >> No more questions. >> One last then. Okay, okay. Okay, so I think I'm following all that, but I'm I'm going to go back to my question about the board's decision. It sure seems like they thought that 10-acre parcel that eventually became 5-acre parcel that was created out of two separate parcels, cuz that's what they say. As far as I can tell, it was only created out of one parcel, parcel one. Am I missing something? >> Oh, I see what I know what you're referring to. Um that part of that irregular 5 acres or so that you're referring to does arguably uh intrude not on it intrudes into uh two dis- separately distinct parcels. So, they therefore uh yes, uh >> Which two parcels? >> Um if you look at Uh your question is a good one, and I Okay. Look at uh page eight of appendix one. >> Okay. >> And you'll see this is uh the report from Wallowa Title Company where it's set out the different conveyances and colored maps of the dis- different dis- discrete parcels. And if you'll see in the northwest 40 acres where that irregular 5 acres was split off, that just a really small portion of it intrudes into the 40-acre discrete parcel that is to the east of of the western 40-acre piece. Do you see that? Just a small piece intrudes into it. >> Will you Will you use which lot number you're referring to? >> Oh, no. Sorry. Uh the the the this um tax assessor's map refers only to 8600. So, the the tax lot has been combined long ago to just one tax lot. But, what I refer to is this. If you see in that um at the uh the northwest 40, you'll see F handwritten in. F five something. Do you see that? >> Yes. >> Okay. So, that 40-acre piece is a discrete parcel. Was in 1986. Then uh if you look to the east, you'll see one marked E {slash} six. >> Right. So, you're talking about that little jog that goes across the line towards the E {slash} E. >> Correct. >> Right. >> And that's why the commissioners referred to the impact of that partition >> So, when they the 86 partition occurred, that northwest section and the northeast section, those were two separate parcels at the time? >> Yes. >> Okay, cuz I was looking at page seven, parcel one, those were combined as parcel one. But, is that Is that what was them eliminating lot lines? Is that >> Yeah, what they did was they they decided that those dis- those two discrete parcels that I've just described, uh that they were both impacted by the partition, so they made it into one. >> Okay, thank you. That was that was not clear before. >> So, we we've gone well over time, but I do have one more question. I'm trying to understand really the crux of the nature of your argument and the relief that you're requested requesting, so rather than state my assumption about that, will you please clarify? >> Yes. Um so, the relief we're requesting, if you'll look at the decision that uh well, you if you look at appendix three, that sets out the relief we're requesting, and that is to ask you to reverse the county commissioners who did not award or did not verify the existence of parcel four that you see on on appendix three. We're asking Luba to reverse that decision and to award the uh or to verify, in addition to parcels one and parcel two, that parcel three and and now the requested parcel four are themselves two distinct parcels, and reverse and uh verify that and send it back to the commissioners, the county commissioners, to then issue a decision that awards the four parcels that are shown on appendix three. >> So, you don't you So, now that I understand what they did when they were eliminating the lot lines between the northeast and northwest section, you're okay with that. You're just saying they should have included another parcel that you what you call parcel four that's in parcel three. >> Yep, we're not challenging that they found a vacation of those two discrete parcels and made them into parcel one. We're not challenging that. >> Okay, thank you. >> for your requested remedy, we would have to find as a matter of law that parcel four exists in order to reverse and remand with an order or reverse with an order to approve that verification. Your petition for review states a lot of different standards of review and arguments. What's your alternative if we don't find that parcel four is is exists as a matter of law cuz that's a pretty high standard. >> Um the alternative would be to uh remand uh for uh exponent uh for findings of fact that would justify why they didn't address our application for parcel what we call parcel four and to support that with substantial evidence in the record. And the reason I argue you should reverse it is because you won't you won't find any evidence in the record as to the evidence in the record is that parcel four exists and there's no evidence in the record to support any decision that says it does not. >> Thank you. And that will conclude our oral argument. Uh our final the statutory due date for our final decision in this appeal is May 27th. We'll ask that you uh agree to an extension so that we can issue our opinion by June 17th. Is that okay with you? >> No objection. >> Thank you. Have a good remainder of your day.", "summary": "Mhm. >> Mhm. >> Are we on? Are we good? Good morning. This is the time set for oral argument in LUPA number 2026-010, Anderson Woods LLC versus Latah County. I'm Board Chair Zamudio. Board Member Wilson is also present. Board Member Basham is not present and will not be participating in the final decision. Um We I think we have an attorney for petitioner on the line. If you could go on screen and unmute, that would be helpful. We're not hearing or seeing a…", "source_url": "https://www.youtube.com/watch?v=QHP4kbVtJzY", "source_name": "Oregon LUBA", "doc_date": "2026-05-12", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-018 Le v. City of Tigard", "content": "Oral Argument 2025-018 Le v. City of Tigard\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=AmJlYR7fP0w). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nHello. Uh, this is the time set for luba number 2025-08. Lee versus the city of Tigard. I'm board chairsio. Board members Wilson and Basham are also present today. And thank you for muting your audio when you're not speaking. That helps with our recording and background noise. I'm not aware of any pending matters in this appeal. Do the parties have anything that they need to bring to our attention? Nope. Thank you. Um, petitioner, oral argument is a total of 30 minutes and you have 15 minutes and may reserve up to 5 minutes for rebuttal, which is the time that you would have to respond to the city's argument. Do you want to reserve any of your time for rebuttal? >> Okay. Yes, I would like to reserve some time for a rebuttal. >> Okay. How much time? You may reserve up to five minutes. >> Uh five minutes. >> Okay. Um so just to note the clock that's on the screen uh is not keeping exact time but is there for reference. I'll be keeping track of time and I suggest that you also keep track of your own time so that um you can reserve that 5 minutes and then the city will have 15 minutes to respond um and then we'll go into the rebuttal. >> So uh can I just ask you to clarify? Uh, I have 10 minutes to go ahead and make my argument and 5 minutes reserved for rebuttal. >> Correct. So, you'll have 10 minutes to do your primary presentation. Um, which needs to be limited to material that's in the brief and then the city will do their argument for up to 15 minutes responding to your argument and then you'll have an opportunity at the end to do 5 minutes of rebuttal responding to the city's argument. >> Okay. >> Okay. Um, okay. Well, with that then we will just go ahead and get started. So, please state your name for the record, petitioner, and begin. >> Yes, my name is Key Lee. Uh, last name is spelled L E. >> Go ahead. >> Uh, yeah. So, basically, I think the argument is, um, multiple. Um, the city didn't give us any notice at all. Um, including all the other owners. Um, they were very aware of who we were. Um, we had actually been talking to them for months. Um the belief is that they kind of held us in limbo um went ahead and moved forward with a ordinance um without any notice uh of the hearings. We none of us were notified of the uh planning commission hearing or the um the ordinance uh that evening. Um, I believe that uh their main argument is that I didn't have standing, which is uh interesting because um their argument is that I showed up so I wasn't prejudiced, but again I didn't wasn't given any notice. Um the fact that I wasn't prejudiced, although they're claiming um I didn't argue at the right um time of the hearing and didn't ar make any arguments was because I had no idea that the hearing even was even being held. Um the issue with the um emergency um hearing um I think that's pretty obvious what was going on there. Um again uh they claimed there was an emergency on their ordinance that uh so many of us was were interested in the uh food car pod business. Um although none of us were notified about the hearing. Um, so that kind of conflicts what what they're saying is that um that uh there was need of an emergency but none of us were noticed. So why would we have an emergency? Um I think the other issues that we have is that um the ordinance itself doesn't list what those emergencies are um as far as where their findings were um and what the actual emergency was. Uh they had two conflicting ideas. Uh one was for the health and safety, but they didn't list exactly what that was. Um they also didn't list the um their findings on uh why they needed to go ahead and and um put emergency on so that so that we could all move forward. um the fact that they're they originally are trying to um uh their only argument really is my standing is whether or not I had standing to go ahead and even uh make the appeal. Um I think they kind of don't realize that this isn't about me. It's really about the ordinance itself and how they didn't notify anybody. So when they sit there and talk about my standing um in reality I have standing because again, you know, I was somebody that was interested. Um I have a food cart pod. They knew about my food cart pod in their in the um first planning commission. Uh they spoke about um notifying they knew who we were. Um so other than that, I mean really standing and notice I mean they didn't give us notice. They didn't notify uh what the emergency was. They didn't notify me um again, the ordinance was, you know, put forward uh as an emergency and there was no emergency that they listed and that's that's pretty much it. >> Okay. Did you want to talk about anything else or was that the your primary argument? >> I mean, well, everything I put in the petition, but yeah, that's my primary primary. >> And it's totally okay to stand on your petition. I think that's what you're saying. >> Yes. Thank you. Great. So, we will turn to the city for response. Um, petitioner, if you can mute your microphone while you're not speaking, and then after the city's response, we'll return to petitioner for rebuttal. So, council for the city, please state your name for the record and begin. >> Good morning. I'm Michelle Baala for the city of Tigard. Um, so I want to reorient the board to the facts on this case. um petitioner has mentioned several times about all the other food cart owners uh and all of the other people involved that he is the only one that has appealed. Uh Tiger has successful operators of food carts all over the city. This is not about them. This is about petitioner and this one specific ordinance. Um the um his statement that uh he did not receive notice. As I said in the petition, he was not entitled to notice. The city properly filed uh the notice of the council hearing of the planning commission meeting with our agendas as we usually do as the law requires. There was no additional notice required. There was no measure 56 notice required. There was no newspaper notice required. The city followed all the appropriate procedures. Additionally, even if the city hadn't, he would have to show substantive prejudice. He was at the council meeting. he timely appealed the uh ordinance and so he cannot show substantive prejudice even if he was entitled to notice. >> I have a couple of questions on this. So with respect to the um petitioner's assertion that the city was required to publish notice in a newsprint paper. Um I didn't see in the petition that cited a statute that requires that. Are you aware of any requirement there? And I think the code itself says publish but doesn't specify the manner of publishing. Is that accurate? >> Yes, correct. And the city's code actually deliberately removed the newspaper notice requirement several years ago when we updated it. So, no. Measure 56 is the only generally applicable notice that potentially could have been required. >> Yeah. And that was my next question was on measure 56. Uh what is the city's position for why the measure 56 notice was not required in this case? So this case actually expanded opportunities instead of limited them. It was not a zone change. It did not restrict any activities that uh could have previously or would have previously been allowed. So it actually just clarified the processes by which uh food carts and food cart pods could be uh developed. So it didn't were there any previous regulations for food carts before this ordinance was adopted? >> Yes, there were. >> Okay. So is this was this ordinance amending those regulations or was it adding regulations? >> It was mainly amending and clarifying the processes. Uh there was some gaps um in when overlapping code amendments were presented. There were some gaps created in terms of food cart regulations. So this filled in the gaps and clarified how they could be developed and what process they'd follow. >> Okay. So I think you're being careful by saying filled in the gaps. Did it did it add any additional regulation or was there just there were no regulations covering what this these amendments did? I'm trying to understand I think petitioner's position is the this ordinance is adding new um land use regulations to food carts where there were none before. And so under the measure 56 statute these are additional limitations. So measure 56 notice was required. I'm trying to understand what the ordinance does exactly to kind of get some sense of of that issue. >> Right. So, um so yes, there were previous requirements >> the same section of the code. >> Yes. >> Okay. And those are not zone specific or I imagine food carts are allowed in certain zones and not allowed in other zones. They are not zone specific in the ordinance, but yes, they are allowed in some zones and not others. I'm trying to Um so uh so previously uh so it largely consolidated the standards that we previously had in a couple different places. Um the previous code had no standards or approvals um for food. So prior to uh what we call our tiger made code, there were no standards or approvals for food cards. That code was amended I believe in 2024 and then food carts were allowed through code and a policy interpretation. So what we allowed is actually a process for food carts as a standalone use that had not previously existed. So, uh development, one of the reasons for the emergency clause was to um fasttrack this approval process because previously food cards uh were largely not allowed or they were allowed as a temporary use process. >> Is it the case that the pre-existing regulations were not part of the zoning code, the city's landies regulations or or or were they? >> They were. Yes, it was the same code that was amended. >> Okay. So, they're part of the landies regulation. Okay. Yes. >> Um, the petitioner is saying that before the ordinance he could have a lot of food carts and now after the ordinance he's restricted to three. Is is that correct or or not? >> No, that is not correct. >> And why is that? >> There was so there was no process by which uh the city would have allowed 20 food cards, >> not even four food cards. So the previous uh regulations were uh mainly limited to uh three food carts. >> Is there anything in the record where we can look at that to see what what what the limitations were on the number of food carts before the ordinance and what the number of limitations on the food carts were after? >> Yes. So um looking at the code package um so the cities so the actual text Uh so it starts on page 12 of the record. So 18750 was the food cart chapter so page 12 is the clean version it looks like. Uh so 188 18440 uh removed food carts from the temporary use provision and moved them into the standalone chapter. Uh so yes um starting on page 12 of the record and then uh the changes to 18440 are on um page 19 of the record. And uh to respond to one of the earlier uh questions, it's actually the new regulations that expand the opportunity to go up to uh 20 food carts. The previous regulations were uh limited to three. So again, this actually was an expansion and a clarification. It was not a limitation. >> Okay. So that's the city's position for why metric 56 notice was not required because your position is that this these amendments do not limit or prohibit uses that were previously allowed in the affected zones. >> Correct. The previous uses were much more limited. This created the process by which they could develop. >> Okay. Thank you. That answers the question my question. >> Thank you. Um and then the emergency cause clause as stated in the city's argument. Uh that was uh information about the justifications for that was provided both in the ordinance and at the hearing itself. Um case law gives a lot of deference to uh the local government in justifying that and the city has more than met its burden on that. And if there are no other questions uh No further questions from the board. Thank you for your argument. Um we will return to petitioner. Petitioner, you will have five minutes for your rebuttal. >> Yes. I think that's a little bit of mis um uh misdirection maybe. So the tiger made was a temporary use uh um food court cart ordinance um that limited uh the carts to four four three cards. Prior to that, there was a rule and that's the one that I actually operated and the other three um food cart operators operated on was um a rule I guess it wasn't in the uh code but we operated with the understanding that there was no limit. Um actually was working with planning. I had planning uh approval. I had my business plan prior to that. But the idea that they can move a an ordinance from uh a temporary use and create a whole new chapter, in fact, they actually took that chapter away from another chapter, included uh other parts of it, the fukkart pod, and and and more restrictions on that. Um the tiger made, which he refers to, was never repealed. It was just literally uh eliminated uh and then moved to a whole new section and then added um uh number to it and some rules to it and then apply to us through emergency clause. Um again, whatever they want to justify the emergency clause. Uh the only two things that are listed on that ordinance is um for the health and wellness uh safety, but they didn't talk about anything what created that. Uh there was no time limitations on that on that emergency. And then basically uh they're they're claiming it was because we all were you know applications were waiting and and we you know they wanted to move us forward but then why the emergency and you know obviously I can't talk about a lot of things that have happened since then that that pretty much show that this emergency was was BS but um >> I want to understand for the measure 56 um assignment of error what your position is on what what this particular ordinance does these amendments to the development code do to limit or prohibit the uses that were previously allowed? What are the new in your view? What are the new limitations or prohibitions that didn't exist before this ordinance? >> So again, the measure 56 um I had a contract to purchase the property, but none of the land owners actually got any notices. There's no notices that are listed. So there was no notice to anybody regardless of whether it's to me. So the pro uh provision for me was prior to the Tiger Maid I had actually been in operation uh um was working towards um in development to develop the 20 cards. I had approvals. We actually went through the city uh to talk about stuff and then in Tiger Maid happened in um May of 2024 and everything was great and then all a sudden uh somewhere in September of 2024 they decided we all can only have three. were in violation of any more than that. I had five. Um so they held us in limbo while they secretly um put together this ordinance. Um fortunately I just got last minute notice. Hey look, you know they're talking about >> So I just want to slow down. I just want to understand your position is prior to these amendments the law wherever it was what it was allowed more than three and so these amendments change that by allowing only three. That's your position. Plus they added uh uh system development charges and and uh fees that were not there significant significant uh system system development charges. >> Okay. >> But am I am I correctly understanding what your position is that there were more than three were allowed and then this amended things to allow three? That's your position? >> Yes. >> Thank you. >> Go ahead. You still have some time. >> Okay. Um I mean that's pretty much it. prior to Tiger Maid, they for they they completely forget about that there wasn't a rule and that we followed those rules and then they used Tiger May to shut us down for because they knew that Tiger Maid didn't target uh food cart pods. It only limited to three cars. So, they didn't have a food cart pod section. So for them to sit and say, \"Hey, look, this is an amendment.\" But they they took that out of uh temporary use and and created a whole new section, which I think would require that the prior uh section needs to be repealed and uh and um I think there's things that need to be done to put a whole new section, including uh notice. Um and that's pretty much it. >> Okay. Uh thank you both parties for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is December 4th. Uh we'll ask the parties in advance to agree to an extension so that we can issue our opinion no later than December 18th. Does that work for these parties? I see agreement. >> Yes. Okay. >> Thank you very much. Have a good remainder of your day.", "summary": "Hello. Uh, this is the time set for luba number 2025-08. Lee versus the city of Tigard. I'm board chairsio. Board members Wilson and Basham are also present today. And thank you for muting your audio when you're not speaking. That helps with our recording and background noise. I'm not aware of any pending matters in this appeal. Do the parties have anything that they need to bring to our attention? Nope. Thank you. Um, petitioner, oral argument is a total…", "source_url": "https://www.youtube.com/watch?v=AmJlYR7fP0w", "source_name": "Oregon LUBA", "doc_date": "2025-11-19", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2024-088 Hutto et al v. Jackson County", "content": "Oral Argument 2024-088 Hutto et al v. Jackson County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=sXrPIfIke_s). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nHi, good morning. This is the time set for oral argument in luba number 2024-088. Hutto or Huto versus Jackson County. Uh, yes. My name is Mark Hutto. I'm the lead petitioner here. Thank you. Thanks for being here. Um I just for your familiarity, this may be your first time at LUBA. Luba um our oral argument has a total of 30 minutes and as petitioner you'll have 15 minutes to present oral argument based on the material that's in your brief and you can reserve up to five minutes for rebuttal to respond to the county's argument. Would you like to reserve any time? Um yes to to respond. Yes. Yeah. So up to five minutes. How much would you like to? Um, I'll take up to the five minutes to respond. I may not use it all. Is that appropriate? Yep, that's fine. And you can choose less if you prefer. Um, so I'll keep track of time and the clock that's on the screen is not keeping an exact time. It's just there for reference. Okay. So, petitioner will go first. The county will have an opportunity to give their argument and then you'll have an opportunity to give rebuttal, which will be your final um part of the oral argument. and then we will close the oral argument and talk about when our final decision is due. So preliminary is I'm board chair Zimodio uh here today also or board members Wilson and Basham and if you could mute mute your audio when you're not speaking that will help with uh our audio quality and streaming. Um this oral argument is also recorded and streamed um live on YouTube and I'm not aware of any pending motions. I know there's been um some pre briefing motions and pleadings in this appeal. Is there anything that you need to bring to our attention or the parties need to bring to our attention that's pending? I did file an affidavit of some recent discoveries about the type one force labor camp permit. Do you have a copy of that? Um the conversation I had with the ODF, two different employees. Yeah. and and if that's accompanied with a motion, we will resolve all of that um in the final decision. Thank you. Anything from the county as a preliminary matter? No. Okay. Um so like I said, oral arguments total of 30 minutes. Petition will start and has reserved 5 minutes for rebuttal. I'll watch the clock here and I'll let you know when you are closing in on your 10 minutes, but ask that you also keep track of your own time. And uh with that, you could state your name for the record and begin. Okay, my name is Mark Hutau and I'm a lead petitioner in the luba case 2024-088. And I'll just start off with the assignments of error. That seems to be the the route to go. So the first assignment of error is the uh arbitrary expiration date. Um it's not authorized by statute. So we were kind of blindsided by it. There's no law that I found within Jackson County that gives an expiration date. Um, and if you look at the Jackson County charter, uh, sections five and sections 8, uh, sections five get all give all the legislative power to the county. Uh, sections 8, uh, kind of double down on that. If you're not mentioned in the charter to have such discretion as this, then you don't have it. Now, uh, there are counties that do, such as Lane County. they have their planning department has this type of discretion, but Jackson County Charter Section 8 clearly does not give that to them. Um, and then section 14, it looks like they double down on it. Issues can only deal with one topic, so you can't claim, well, they we interpret this to mean that it's it was never dealt with. The the um the public was very clear about it. But there's other problems besides that with this expiration date. It essentially gave a 45day window to log uh for a new person like me who has no experience and wants to sustainably log his land. Uh G gave a 45day window to log 60,000 board feet in the middle of the winter. U which is virtually impossible. Um and it's a constructive denial is is what I'm arguing there. uh ministerial permits, they're supposed to be based on clear and objective standards is what I found looking at the laws. You're not supposed to get into it and then all of a sudden there's these other things that keep popping up and you know we see signs of subjectivity where they're asking is there anything else. It's like to my understanding it was a check the box experience. I'm supposed to check these boxes and if I'm in compliance if the land qualifies was my understanding then we're supposed to be able to get the permit. But then recently, you know, I went in for this year's heavy equip. It's not the heavy equipment notification and is what I'm talking about now. And we're talking about the force labor camp permit when we're talking about permits now. So, I went in to get my um uh heavy equipment notification for for this year. And as I said in the affidavit, the lady was very surprised that there was any such permit in Jackson County. So, I called my ODF contact contact Kyle Ripberger Ripenburgger and uh he told me, \"No, there's nobody in Jackson County that has this type of permit. They're not required to get it in Jackson County.\" And I said, \"Well, are they in Lane County?\" Because I was just testing what I'd researched. He goes, \"Well, yeah.\" He said, \"Laine County has something where they do that, but he said, \"I've never heard of it in Jackson County.\" So, we have two ODF people saying this is essentially a madeup permit. um which further I I'm just in a state of confusion over the whole thing. Um and so what we're asking and it also it goes against land use gulf for you know we're supposed to have reasonable forestry practices and putting it in a 45day window which my neighbor has a repairarian zone. You're supposed to take this heavy equipment over this repairarian zone apparently in the snow. Okay. on dead Indian Memorial Road that has hauling bans on it during the same time. So even if the county somehow is able to argue that yes, you know, we can limit uh forestry operations to 45 days, which I can't find any example of that in Oregon anywhere that such a such a narrow limitation. Um it still would be unusable and so we have several points there on on the expiration. The approval, the challenge decision, the decision that you're challenging is an approval for a temporary forest labor camp. Correct. That's correct. What is the evidence of the duration of the need or the authorization for the camp? Is there evidence that you submitted about how long you thought the operation would take? My understanding is they the county found this date in the materials that you provided. Was there is there an alternative date or what in your view should the county have done to limit the duration of this? Right. So that's a good question because that's that's what the county's arguing. And so um if you look at that they're using the heavy equipment notification that was submitted with the application to show what we were doing. But the problem with using the heavy equipment notification um which exacerbates the issue of of of not using statute because when laws are passed clearly they're thought out is they all expire at the end of the year. They all expire December 31st. So, I went in to double check that because that's what they told me when I got it. They said, \"No, it expires the 31st. You can't apply for the new one until the new year.\" And so, after the previous case was remanded. They were in this hurry to get the new one approved because before the end of the year, you you basically have an effective denial. Had they said, \"Um, let's get it started for next year when you can log because clearly I can't log in November.\" Um, I would have had a new heavy equipment notification that would have expired in 2025 on December 31st, which would have given me a longer time frame. So, is there any anything what you submitted or in the record about the duration of of this operation? No, because I don't know the duration that I need it for. I'm new to it, so I don't know how long I need it. I don't continuously need it necessarily, but there I I don't know, you know, it's like I'm I'm totally new to this. This is the first like forest woodland forest land parcel I've ever bought. So, Sure. And does the do the rules that allow for this type of use, the uh administrative rules provide any guidance on the duration for this type of use? No, there's nothing I could find in state law or in county law that has is it we know that it's temporary, so it's not permanent. So, we can't move a camp up there and stay there forever, but it's for the duration of the logging operation, which includes the replanting as well, which is something that can't be done at all in the winter time. So, we have, you know, your argument that the county should not have relied on this other permit to find to to determine an expiration date and should have instead imposed some other reasonable ex expiration or what is what is your argument about that? It's it's severalfold. One of them is is the reasonable aspect. If you're going to impose an expiration date, it definitely needs to be reasonable reasonable and it needs to be usable, right? But the other one is is there is this the statute the state statute says until we're done. You know, the the duration is until we're finished with the operation. And so, but a reasonable one would be in order. For example, if they said, \"Yes, we're giving you the permit now from November 15th till next year, November 15th.\" And at that point, you have to contact us again. That there's no problem with that. It's not it's not a matter of not wanting to comply. It's trying to understand what compliance is because if you don't use something that's clearly in statute or has a precedent that other people that you can talk with other people in the industry about, you have no guidance. It's not clear and objective. Okay. Thank you. So, so I move on to um uh assignment of error number two, which is the due process violations. Now, it seems, you know, as far as when we were dealing with the motion to dismiss, and that was the order uh denied the motion to dismiss it. It does make sense that this didn't didn't pertain to that argument, but it does to this because it shows a predisposition of bias from the county. um not only are they not going by statute or even looking at the properties around me or looking at if the operation can be completed, they they were putting this rush job on it. And then if we combine this with the fact that they trespassed on the property three times uh without permission after I objected the first time I actually called in and objected. Um, and then we combine it with the fact that Don Ridman, who also goes by the name I've just recently discovered, Don Cox, which I didn't know they were the same person, but she basically um said that we need to get a homesite approval to get this permit. And she was basing this on evidence that was obtained through this illegal trespass. And so she's like, \"Well, you need to get a homesite approval to get this type one permit approved.\" And so our hearts dropped because we bought the property because it had a measure 49 homesite approval. So we go and we research this and we discover we do have it. So we ask her about it. And so had she misspoken, she would have just said, \"Oh yeah, you're right. I was looking at another piece of property.\" We didn't get any admission from the county that she uh made a statement that was inaccurate until the latest order or from the latest motion to dismiss where they admitted well she misspoke. But it's beyond that because not only did she misspeak, she she said she advised she gave us advice to apply for a homesite approval. And in upon giving that advice, she's telling us on this parcel when I researched it, if we didn't have a home approval, we wouldn't be able to get one because it's woodland resource. It's less than 40 acres. So it doesn't meet the 140 acre rule. It doesn't meet the 650 acre in a square rule. as far as the houses like if you have a certain development that's already there then you can develop it. So in in Rudman I investigated her a little bit. She's an experienced planner. Okay. Now the county won't tell me how long she's been working there. I've asked opposing council how long has she been there. They won't tell me this. They won't give me any information on the individuals in this decision because I think they know it's bad. So she tells me she gives me a compliance regimen that cannot be met. So now they took the $885 which according to ODF they said well that's kind of prohibitive you know $8.85 85 for 45 days and then you have to pay for it again and go through this whole process and and then on top of that uh she gives me a compliance regimen that I cannot comply with because legally if I didn't have the homesite approval already I wouldn't be able to get it and so I was going to pay another $2,200 to $3,200 fee and not get that approval racking up citations and such during this whole thing during this whole process. You've reached 10 minutes of your primary argument and you can reserve your extra five minutes for rebuttal or you can continue to argue now and that will come out of your rebuttal time. Okay, I think I've I've covered enough. Um, let me go. We we this I think we've already covered the fire mitigation. It's extremely confusing because they included tents and in the fire mitigation and they included um uh you know mobile units and we also have a 2,000galon water tank and a 400gallon water tank and two water pumps for the for the ODF standards to fight fire if there is a fire on the premise. And then um and then Air Force is kind of a repetition. I'm new at this so some of this is repetitive. we go back to the um the bias in the administrative conduct and um and so what we're asking for is a reversal of the uh the expiration date or at least a reasonable one and uh and to review the permit itself now that we've discovered that it may not even exist. I can't find any other forester that has ever had to pay this fee or ever had to go through this gauntlet of compliance. Um, and then one last thing, if you look at the permit itself, it it looks like it's a building permit and a a a camp permit, and it says, \"Well, there's certain information I need to give, which I do not object to giving, but at the same time, they approved it for the purpose of making it expire.\" So, I uh I yield my time. Is that the appropriate thing to say? Sure. Yes. Thank you. Uh, so that you'll have about three and a half minutes for your rebuttal after the county. And with uh if there are no questions from the board, we will turn to the county for their argument. Uh county council, please state your name for the record and begin. Thanks. Can you hear me? Okay. Yes, we can hear you clearly. Thank you. Thanks, board chair. Uh good morning to the board. Uh my name is Pete Philick, council for respondent, Jackson County. Uh I'm not much of a litigator. Um but I have a bit of a scripted argument which should take five or six minutes. Uh my hope is to go through that and then respond to any questions the board may have. Uh Tisher's application in this case arises out of a county code enforcement investigation. It is not disputed that there were several unpermitted structures on the subject property as of the date of the application. In an apparent effort to help remedy potential violations related to the unpermitted structures, a county code enforcement officer suggested to petitioners that they could pursue a temporary forest labor camp as a possible solution to bring their property into compliance with the LDO. The code enforcement cases were ultimately dropped. That peti petitioner conflated and continues to conflate the actions of a code enforcement officer with the actions of the countyy's land use decision maker is a common theme throughout petitioners various filings and arguments, particularly as it relates to assignments of error 2 and four. The petitioners also sought to introduce documents outside the record related to the code investigation. But those documents are not relevant to the land use decision because they don't relate to the decision maker and they don't affect the outcome of the decision. At the end of the day, the decision maker is required to apply the applicable standards and criteria as you know to the application regardless of petitioner's history with county code enforcement. In response to county's motion to dismiss, uh, petitioner filed an affidavit dated May 16, 2025 containing apparent comments from an ODF worker related to, uh, the status of other forest labor camps in Jackson County. To the extent this affidavit is construed as a motion to take evidence outside the record, the county objects to that motion. Uh, an ODF worker is not an expert on county or Oregon land use law. Moreover, greater than 50% of Jackson County land is owned by the federal government. Is not subject to the county's land use oversight. So, it's not clear what forest labor camps and the ODF comments are referring to. Any number of forest labor camps could exist legally in a variety of ways in Jackson County without land use approval from the county. Uh, for that reason, the ODF comments are of limited value, would not affect the outcome of the case, and county objects to their consideration in this appeal. Um, next I want to revisit Luba's determination on the county's motion to dismiss. Um, because I think there is some confusion there. Uh, as you recall, Luba found that the county's decision involved discretion because the county treated petitioners proposed TP and RV pad as structures for the purposes of applying fire mitigation standards of LDO8.7.1. The county respectfully disagrees with the conclusion that its fire mitigation conditions are intended to apply to the TP and the RV pad. In various portions of the county's decision, the county refers to the TP and RV area as structure number eight and structure number nine for purposes of proving the use and location of those items. Those labels, structure number eight and number nine, actually originate from labels provided by the applicant on pages 25 and 26 of the record, which identify quote structures already in place and structures under consideration unquote. Those references by the county decision maker are not intended as legal findings that the RV pad and TP are structures under LDO 13.3 sub 272, which is the definition of structures under the code. um because that uh that definition of structures expressly excludes uncovered patios, vehicles, and travel trailers. Uh therefore, the county's position today is that its decision should should not be construed to apply fire mitigation conditions to the RV area and the TP. Um the county's decision was intended to and should be construed to apply fire mitigation conditions of counties approval only structures as defined by the code. Therefore, from the county's perspective, the application of fire mitigation conditions of uh 8.7.1 is a check the box analysis consist consistent with other non-discretionary reviews. The conditions require the applicant to obtain a fire safety inspection fire district number five or the fire district is unavailable and inspection by an engineer or land surveyor certifying that the applicable wildfire mitigation standards are met. Because the satisfaction of this condition is a binary check the box analysis. I would ask a little bit of reconsiderance motion to dismiss for lack of jurisdiction. With respect to the assignments of error um regarding the first assignment of error, the applicant states that the notice of operations is not required and was not intended to be used as a to determine the duration of the forest labor camp permit. The county agrees that a notice of operations is not necessarily a requirement for a temporary forest labor camp. While petitioners have the burden to establish that they have met the applicable criteria, they could do so in a variety of ways. In this case, it was all they provided. Regarding the second assignment of error, applicant alleges a number of procedural grievances. Most of those relate to the code enforcement investigation. The only allegation in assignment of error number two that relates to the land use application is that the decision maker stated in an email that her forthcoming decision would be quote tenative decision. Uh as noted in the county's brief uh to prevail on a procedural claim that the petitioner must explain with specificity what would have been different had the procedural error not occurred. In this case, petitioner hasn't done that. Uh finally, I don't intend to spend a lot of time addressing assignments of error number three or four. I think it's clear from uh the county's perspective that the fire mitigation requirements can be applied to structures as defined by the LDO and this application does include structures. And regarding the fourth assignment of error, there's really no evidence of bi bias by the decision maker. Um I I understand that the uh the applicant has a number of uh issues with the code enforcement process and I can sort of understand that. Um but I think uh at the end of the day we need to separate the code enforcement process from the land use decision process. Um I think that's all I have for now. Mr. Philber, is there a process under the county's code to for an applicant um who wants to correct or change a condition to apply to the county to change that condition? So, do you mean like an internal appeal process? I don't know. I I was poking around on the LDO and and stumbled across LDO 2.6 six uh sub let's see 7D and it seems to provide a a process where if there's a a condition that perhaps as in this case seems to have been the result of a misunderstanding between the applicant and the county uh that might provide a vehicle to correct that kind of problem without an appeal to Luba. I'm just curious whether that was a potential path for uh resolving at So, those are appeals. I mean, first CL, I'm not super familiar with this code section, but those it appears to relate to uh evidentiary hearings. In the county's case, the LDO does not provide for evidentiary hearings for a type one decision. Okay. Thanks. I was my understanding of your response to the argument that the expiration there's a lot of arguments about the invalidity of the expiration but that the county's response is that this is a temporary use and so the county needed to provide an expiration on the approval and so the county looked to what the applicant provided um in order to determine when that expiration would be. Is there anything in the code that requires the county to impose an expiration on a temporary use? And is there anything in state law that governs this type of use that would indicate the duration of a of temporary forced labor camp? Well, the the county code defines temporary as 30 days or less um except for otherwise provided in the code. Um and so given the conflict between the definition of temporary and the definition of forced labor camp and the county code, we would defer to the um definition of temporary forest labor camp which states that it's for up to the duration of the project. And then here the county determined that the duration of the project was the duration of the permit for the heavy equipment. I'm sorry, could you repeat the question? How did the county determine the duration of the project for purposes of the approval? We looked to the application materials and in the application materials there was no proposed duration other than the expiration of that of the uh notice of operations from the department of forestry. Okay. Thank you. Did it not occur to anybody that 45 days in the winter probably wasn't going to be enough to do the temporary forest use and they ask the Yes. And we we asked Mr. Huau if he would like to submit additional documentation. I mean I you know tell our uh planners not to be in the business of providing legal advice. So generally speaking they're reviewing the materials that are provided to them. So if he if he'd asked if he'd said, \"Actually, I'd like to have this expire on December 31st, 2025.\" Is there any reason that wouldn't have gotten approved? I think we would have asked him to substantiate that and so provide like a forestry plan or a contract with a forestry company or something something um you know substantial that it could be based on. So it doesn't have to have the the heavy equipment notification which apparently you can only get per year. you you could he could rely on other information to establish the date. Correct. Okay. Just out of curiosity, is is this the kind of permit that you can get extensions on? Like if he came in and said, \"I want to get this extended till the end of this year, next year.\" Not under the county code. He'd just have to file for a new one. Correct. But it could, you know, theoretically, there's no reason it has to be necessarily limited to a specific duration. He would just have to substantiate that. Okay? you know, if somebody if somebody approached the county and said, \"We need a a you know, temporary force labor camp for 10 years.\" I think that would be, you know, difficult to to justify. Um, but there's no there's nothing in the record that's before us that states any duration. And that was what the county was looking at. So, the county just picked the date that was on the permit. Essentially, the county picked the date that was that was provided by the materials that the applicants and there's no other there's no alternative evidence that petitioners raised or Okay. Are there any other further questions from the board for the county? County, do you have any further comments? Okay. So, we will return to Thank you for your argument. We will return to petitioner. we will have uh 3 and 1/2 minutes for your rebuttal. Okay. Thank you. So, I I think it's extremely important to to rebut this this uh there is no process in Jackson County to change the conditions. After the first remand, I vehemently objected to the expiration date because it could not be achieved. It was impossible. I spoke to Mr. Philbrick about this and he said, \"Well, it has to be temporary.\" And so they they gave no no possibility. When I spoke with Kristen Mays about can we just extend the duration. We wouldn't be here if they would just extend the duration. Even if the permit doesn't exist, we wouldn't be here. I would just I would just extend it for the year and then continue on. They pushed this. They made me come to Luba instead of doing something reasonable like offering me the chance to extend the permit. They said, \"No, you pay the 8.85 and you start over.\" And to me it appears that the permit isn't complete anyway because they're asking about the which is rightful. They're saying well I misspoke and said the carport was a garage for example which it is a carport and so they have a right to have that clarified. So they're asking for clarification pushing this thing and I and I believe the bias is important even if you take out the trespass. The statements of uh of Ramman show severe bias at the county. they were. It looks like to me potentially this was pushed so it could expire at the end of the year to create another gauntlet of of compliance because that's what she had previously tried with the misinformation that she had given me previously. The county has no internal appeal system. You have to reapply and and pay again and and they need one. And they didn't even tell me about the land use board of appeals. Didn't tell me about that. I had to discover that on my own. And so um and then you know they talk about the 30 days. Well, that that makes forest land use goal impossible, you know, if you're going to apply the county 30-day uh temporary uh structure guidelines to it. And um so, and also just asking the question, do you have anything else? Without saying why you're you're uh needing something else to me seems totally uh subjective in in a ministerial review, it's supposed to be completely objective. You're I'm asking you this question because I need to know how long you need the camp for. And then I'm going to say, \"How long can I have the camp for?\" But they don't know the answers. You can see that they don't know the answers. I don't think they've ever issued one of these before. And I'm I do want to comply. I want I want to comply with land use goal 4. I want to comply with the the structural rules for any structure that's, you know, below 200 feet. I want to get in compliance. They don't offer compliance under the guise of not providing legal advice. However, they do provide illegal advice. They provide bad legal advice. And that's why we're here. And it's it's unfortunate that we have to be here and argue in front of the land use board of appeal on a on a type one review. They should just issue and I have no problem complying as long as I know how to comply. And also now we have the issue of trust. I don't know if what they're telling me now is the truth. And that creates another problem with compliance. But this whole time I've just been trying to comply. I have never argued that uh that the the state doesn't have the right to regulate land use or that the county doesn't. I'm just I've only argued that it needs to be clear and concise and it needs to be objective. And as as you can tell by the the counterargument, not that's not taking place in my opinion. Okay. Thank you. That uh concludes your time. That will conclude oral argument. And I just want to uh be clear for the parties that our review is based on the record that's before us and uh we will resolve any outstanding motions in our final decision and our decision will be based on uh what is in the record before us in this decision. Our statutory deadline for this decision is July 9th. Uh we'll let you know in advance that we intend to issue our decision by July 16th. Is there any objection to that? No.", "summary": "Hi, good morning. This is the time set for oral argument in luba number 2024-088. Hutto or Huto versus Jackson County. Uh, yes. My name is Mark Hutto. I'm the lead petitioner here. Thank you. Thanks for being here. Um I just for your familiarity, this may be your first time at LUBA. Luba um our oral argument has a total of 30 minutes and as petitioner you'll have 15 minutes to present oral argument based on the material that's in your brief and you can res…", "source_url": "https://www.youtube.com/watch?v=sXrPIfIke_s", "source_name": "Oregon LUBA", "doc_date": "2025-06-25", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2025-023 Central Oregon Landwatch v. Jefferson County", "content": "Oral Argument 2025-023 Central Oregon Landwatch v. Jefferson County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=pPWMgbk8z2g). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for oral argument in central Oregon watch versus Jefferson County. Luba number 2025-023. I'm board chair Zoodia. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. Uh we do have a pending motion petitioner's motion to take evidence and response and the board will resolve that motion and the final opinion in order. The oral argument today is a total of 30 minutes. Petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Uh yes, I'd like to reserve three minutes for rebuttal. Thank you. >> Okay, I will keep track of time here and ask that you also keep track of your own time. And the clock on the screen is just for your reference. It's not actually keeping exact time um for oral argument today. And uh respondent, you will have a total of 15 minutes for your response. And you'll present after the petitioner presents. And with that, petitioner, please state your name for the record and begin. >> Thank you. Good morning and may it please the board. I'm Rory Isbel for Petitioner Central Oregon Land Watch. I'll start with just a little context. The decision on appeal follows a 2023 decision from Luba which remanded remanded the county's decision approving three goal exceptions needed in order to reszone 142 acres of agricultural land for residential use. A respondent the county appealed Luba's decision to the court of appeals which reversed on one issue and affirmed on all others. Luba's unchanged holdings from its 2023 decision regarding the goal exceptions require respondent to quote adopt a new or significantly revised decision on remand regarding both the goal three and goal 14 exceptions. So a central issue in this appeal is the proper scope of the remand and relatedly uh respondents failure to accept testimony on the goal exception issues from any participant except for the applicant. Uh this failure resulted in a violation of land's procedural rights under OS 1977 797 uh 1 6 and subpart 7. So on remand respondent did reopen the record to accept new material from the applicant. The applicant submitted to uh the county a new draft decision with new consolidated findings for the goal 3 and goal 14 exceptions. That was new evidence under OS 197797, but the county allowed no other participants to respond to that new evidence. That's clearly counter to RS197797 subp part 7 which was the basis for the Supreme Court's holding in the Beck case. Uh and of course that statute requires that when a local government reopens a record to admit new evidence any person may raise new issues which relate to the new evidence. respondents refusal to accept LandWatch's uh testimony on the goal exceptions and including its outright refusal to submit land's written testimony submitted at the January 15 public hearing is also counter to the local code. So, Jefferson County Zoning Ordinance 904.3A states that all exhibits presented at the hearing will become part of the record. Land Watch's written testimony was submitted at a hearing and simply responded to the testimony already accepted by the county from the applicant. Uh the county cites the neighbors for responsible growth case that's 50 Oruba 745. But it is an opposite because in that case the uh letter the written testimony in question was not received by the local government until after the public hearing had closed. Here, LandWatch submitted its letter directly to the hands of the county commissioners at a public hearing, which was noticed and held on the record. The effect of uh the county's refusal to accept uh this uh uh testimony regarding the goal three and 14 exceptions would allow for absurd outcomes. uh the respondant could now argue that those issues are waved under the miles v city of Florence case because they would not have been raised to the county in its proceedings on remand. Uh we do note that respondent did accept the testimony of other hearing participants into the record uh but it singled out LWatch's testimony to reject. respondent uh presumably expects a decision from LUBA following these current proceedings on the merits of its goal three and goal 14 exceptions whether they meet the applicable criteria but respondent only let the applicant and not Landwatch comment on the merits of those goal exceptions that was clear prejudice to Landatch's substantial procedural rights uh I'll move now to our fourth assignment of air uh which um you know challenges the goal exceptions. Um the county adopts both a reasons and irrevocably committed exception. Um I'll start with our material prejudice and inadequate findings argument. Uh we have argued that the county's decision uh both its initial decision in 2023 and the recent decision on remand errors by failing to characterize the proposed use as either urban or rural and instead it calls it both. Uh the case DLCDE versus Umatillaa County, that's 39 Oruba 715, requires a county as a threshold matter to characterize a proposed use for which an exception to goal 14 is sought as either urban or rural and that the failure to make that fundamental characterization creates confusion about the applicable criteria and uh requires from luba a plenary remand. Land Watch has consistently at every stage of the proceedings argued that this failure prejudices our substantial rights. That includes in our initial appeal to Luba in 2023 uh where we cited the Umatillaa County case and made uh statements about inadequate findings and and prejudice to our rights. That's at Lubreak 248. uh the county must first characterize the proposed use as urban or rural in order uh to identify the relevant approval standards and and follow uh to and then proceed to make adequate findings. A respondent um uh makes waiver arguments against uh Landwatch's preservation of the irrevocably committed exception. There are four independent reasons why those waiver arguments fail. First, as I've already noted, Luba and the Court of Appeals remanded quote the entire case and directed the county to adopt a new or significantly revised decision on remand regarding the goal 14 exception. Uh, and again, as I've already noted, um, that is what the county did, but they only let the applicant uh, submit written testimony on those exceptions. They rejected it from LandWatch. Uh second, the second reason Landwatch and others actually did raise the issue um including back in in 2022, LandWatch and provided statements that the application would not maintain the land is rural land and would thus uh not qualify for an irrevocably committed exception to goal 14. That's a uh record and that's the original record from 2023. record 251 to 252. DLCD also raised the issue, submitted two pages on the irrevocably committed exception issue. That's at record 1381 to 1382. And other hearing participants raised the issue as well, including on remand recently. Um, and even though LandWatch didn't accept or excuse me, even though the county did not accept Land Watch's testimony, it did accept testimony from others uh that called out that uh the surrounding lands would not do not irrevocably commit the subject property to urban uses and that's at remand record 225 to 226. Luba standard for preservation requires no more than fair notice to adjudicators and opponents rather than the particularity that inheres in judicial preservation concepts. That's from Bolt v Clackamus County which was uh recently reiterated by the court of appeals in Confederated Tribes of Warm Springs vuites county land DLCD and other hearing participants provided fair notice to respondent that compliance with the criteria for an irrevocably committed exception to goal 14 was at issue in this case. The third reason, even if not raised, uh the issue is preserved under OS1978354A because the county failed repeatedly to list the applicable criteria for that goal exception in any of its hearings, notices or staff reports. Only the final hearing on remand, the January 15, 2025 hearing, that was the only notice uh that even stated that goal exceptions were proposed. So accordingly uh petitioners may raise if that is indeed a new issue may raise it to loopa because the county never provided notice um that such an exception was proposed. The fourth and final reason uh that the goal 14 uh irrevocably committed exception issue is not waved is that respondents waiver arguments are themselves barred under the law of the case. In uh Luba's July 25, 2024 final opinion and order from last summer. Luba affirmed its prior decision uh with respect to this school exception and uh Luba wrote, \"We did not reach the fourth or fifth assignments of error. The court's opinion does not require us to revisit the dis dispositions of those assignments of error.\" And of course, Luba had already stated that the county must adopt a new or significantly revised decision on remand. That's what was reaffirmed in the final opinion and order from last summer. If responded want if respondent wanted Luba to address its preservation objections to uh landatch's preservation of the goal 14 exception respondant was obligated to appeal Luba's final decision in and what we call MAC 3 from last summer back to the court of appeals. Uh I'll finally touch on on some of the substance in my remaining couple of minutes here. I'll I'll I'll stay on goal 14. Uh for the reasons exception uh to goal 14, LandWatch uh raised multiple alternative areas that could accommodate the use without taking an exception and uh respondent never responded to any of of those alternative areas with the detailed evaluation that the rules require. There's also no economic analysis required by the rules in the county's comprehensive plan that would justify the need for more 2acre lots on these 142 acres. The substance of the irrevocably committed exception to goal 14. Um this gets to the fundamental confusion where the county characterizes the use both as rural and urban. um you know there there are findings stating that um the subject property is committed to urban levels of development and also findings stating that it the decision only allows rural levels of development. We can compare um you know the the argument that the property is committed to urban development with the doob v. Josephine County case where it took being surrounded by commercial industrial residential development and bordered to the south by the I5 interstate freeway to irrevocably commit rural land to urban uses. Uh the subject property here is not uh so committed by urban levels of development. The zoning on the surrounding lands require only a 10acre minimum lot size for new lots, but the zoning that the decision approves for the subject property allows 2 acre minimum lot sizes. So, the zoning of the surrounding area allows five uh requires new lot sizes five times greater than what the decision allows. So, it does not irrevocably commit the subject property to twoacre minimum lots. Uh turning to the goal three exception, uh the county adopts an irrevocably committed exception there. Um but it points to no evidence other than surrounding rural residential development. And Luba has found in the Gordon v. Pulk County case that the mere presence of adjoining residential uses is not sufficient to conclude irrevocably committed um to non-resource use. Uh there's also no substantial evidence. The decision repeatedly points to what it calls potential or hypothetical conflicts that surrounding lands uh uh create on resource use of the subject property. But the only substantial evidence offered is a three-s sentence email from an OSU extension agent which only talks about the potential for profitability on the subject property and does is not substantial evidence about irrevocable commitment from adjacent lands. Um, I know I only have a few seconds left. In our fifth assignment of error, we challenge uh the compliance of the decision with the comprehensive plan part five. Um, which Luba has has required or LUBA has previously interpreted requires the county to find that the zoning is essential or required. The plan amendment is essential or required. The county identifies no new evidence as Luba uh remand decision from 2023 uh stated that the county must identify. The county points to no evidence. It only points to goal exception criteria which as we describe in our brief uh is a completely different standard and any evidence for those criteria is not uh applicable to the county's comprehensive plan standard. Believe I'm over my time. I'll stop there. >> Okay. Uh you do actually have about one minute left for your rebuttal if you want to have any closing remarks after the respondent's time. So >> Okay, I will reserve that. Thank you. >> Okay. Uh we will turn to the respondent for your argument. You'll have 50 minutes for your response and please state your name for the record and begin. >> Council Allen, you're muted. If you could come off mute and start over again, please. >> My apologies. Mr. Chair, uh David Allen on behalf of respondent Jefferson County. Um like to address some of the issues raised by petitioner uh in their oral argument and then go back a little bit to the county's position on this. I would just as an initial disclaimer point out that I was not council for the county during any of the local proceedings, any of the appeals. So when I came on board, I inherited a massive record. So of everybody on this Zoom call, I'm probably the least familiar with the toms that are included in this case. Uh so my apologies if I can't site chapter and verse to to record sites. Uh I do know enough to know that the county's decision should be upheld uh by the board. Going through the statements made by petitioner on oral argument. I think the scope of the remand issue is an important one initially for the board to determine as so many other issues then fall from that. Uh in a nutshell, what the county did on remand was be very surgical and make very clear that we were only going to open the record as to the issues that luben the court of appeals had indicated that additional evidence was required. The county does not subscribe to the notion that somehow the entire case was remanded and therefore it was fair game. Um I think that support for that is the most important support for that would be that information in the court of appeals decision that talks about um once the county cleans up its findings it would then be uh Luba and the county could then address the preservation waiver requirement uh of the goal 14ically committed. Clearly they're not requiring any additional evidence on that. Um, you know, when I read through this, I think the problem that we had on the initial um, runup of this was one of presentation, not of documentation. There were not allegations at that time that the or any thing from the court of appeals that said we lacked substantial evidence. Neither this board nor the court found that we somehow lacked substantial evidence or had not made appropriate findings. Basis of the the three remands was we just can't tell. I think it's important for the board to note that that error that the county's uh gangly findings if you will and hundreds of pages of documents I think this board cited a 687 page uh decision that assignment of error has not been brought forward in this appeal. The conclusion of that then must be that we we did a good job of making clear what our findings and reasons are in support of this decision on the remand. Specific to the issues that were opened on remand, we were aware that the remand included a requirement to address what I'll call the city of Matius decision with respect to whether a reszone was necessary or required. And I'll talk about that issue here in a moment. So the the remand record was purposely limited to those issues that the court and the board had made clear the county needed to do more something more than just clarifying their findings and decisions. Since the remand was only in our opinion a housekeeping matter of hey clean this up be clear what findings you're making and show us where the evidence to support those findings is. Uh that was the genesis of keeping the remand uh opened. Uh also as well we were very well aware that land watch would petition petitioners would do exactly what they've done here and attempt to bootstrap another bite at the apple on this preservation argument relating to the goal 14 irrevocably committed exception and that's exactly what they're trying to do by arguing the scope of remand. It's absolutely patently not true that we denied LandWatch the ability to introduce anything into the record. They were allowed to testify and did. They missed the deadline. The the county court made clear that the January 8th was the deadline for written submissions of testimony. The testimony that LandWatch is now objecting to was submitted the day of the hearing. Literally giving the county and staff zero time to respond to any of the allegations that were contained in that letter. So to say that they were not allowed to present evidence is just not true, quite frankly. When they did present evidence, they submitted a November letter that was redacted. It was redacted because the issues in that redaction were related to issues that were not before the board before the county commissioners on remand specific to goal 14 and the irrevocably committed exception. There attempts to bootstrap. Now, now we're because our opinion is this entire case has been remanded. Now, we get to argue that the irrevocably committed exception was not justified. that is clearly not what was intended by the the three remands in this case uh when the court of appeals makes clear that that issue is still live. Um so I think it's important for the court to understand or for the board to understand why we limited the scope of the remand as we did um to this to the the argument now is that somehow it's a bit uh difficult for me to follow but I think I can understand petitioner's argument now is that well um we actually did wave or we actually did raise it and they psyched some obtuse reference uh to O18 uh talking about preserving rural land. If you look at that submitt, the record site, it's actually in a section of that submitt talking about water use. And the complaints in there are about are you going to submit to domestic water? Is it going to be irrigation water? You got to let us know where this water is going to come from. There was no fleshing out of somehow that irrevocably committed exception does not qualify. And in fact, the very next section of that submitt is titled goal 14. So for petitioner now come in and say somehow wink wink we raised it uh is just kind of defies logic. It certainly even if the board finds that that was some brief mention it was not raised with the particularity that's required by case law and statute to allow the county to substantially or to substantively respond to that argument. In other words, we had no idea what their argument was. this this position that somehow DLCD preserved the air for petitioner it that's when I had to reread the record several times and I'm still I'm not not quite sure I follow the argument but apparently because DLCD required us to do a goal 14 exceptions analysis and we then did that analysis and DLCD then said we're satisfied with that analysis and is not in any way shape or form an an appellant in this matter they were satisfied I I don't I'm having a hard time understanding how that somehow preserved an error when the reality is DLCD signaled acceptance of what the county had done. There was no continuing requirement of error. I think the petitioner's idea here is that well if you mention the words rural or urban then you've raised everything and that's clearly not the standards that this board or its rules have established through the past. um they are required to give us notice to the extent that we can actually address what it is they think that we did wrong and that clearly did not happen here. Um this assignment of error regarding this urban and rural um you know we I' I've talked internally with uh >> before you move on I just have a clarifying question. So >> absolutely >> on remand the county did reopen the record to allow the applicant to submit additional evidence on goal three and goal 14 or what what is it that the applicant was permitted to submit on those issues? >> The applicant's submitts on on remand were they were allowed to submit additional testimony regarding the Mleius decision. Was there a was a reszone required or necessary? To the extent that additional evidence was introduced, it was limited to that issue to the extent that that our the county's position is that we satisfy the MLAUS test and I can talk about that in a second because the goal exceptions themselves >> I understand. So what your your response to my question is that the county reopened the record on that I think it's JCCP part five issue and so the applicant submitt any reference to the goal three or goal 14 was about why the county should find that that comp plan part was satisfied based on the exceptions and and the applicant did not submit additional evidence of why the exceptions should be supported. That's correct, chair. There was no additional testimony regarding farming or practicability or anything of the like. Uh again, we were more in cleanup mode as to, you know, trying to make those findings more clear. >> Did the applicant submit additional draft findings for that the county adopted and I understand that this was a cleanup effort and I see that the decision does identify the staff reports as findings and the applicants materials as findings. As part of that newly incorporated findings, new draft findings from the applicant on goals three and four other than the Matleius issue. Not that I'm aware of. Uh chair, my understanding of the remand proceedings was that those new findings were limited to the very limited issues that were open or live so to speak on remand which were again back to JCCP part 5. Uh but to my understanding there were no additional findings addressing any substantive goal three or goal 14 issues. We are very careful to keep that record closed. >> Okay. So, and I'm not aware of any >> if I have a hypothetical question. If the record shows that the applicant submitt did include evidence to support the findings for findings and reasons for the reasons exception and the irre irrevocably committed exceptions petitioner's argument is petitioner had the right to respond to that new evidence. I think your initial response is there was no new evidence submitted. It was argument. >> Correct. >> If there was new evidence submitted, what's your response to that? >> The response would be that the deadline for which for them to have submitted their testimony was January 8th, 2025. They blew by that deadline and do not submit any evidence regarding those additional findings until the day of the hearing, January 15th, a week later. So at at a hyper techchnical level, they missed the deadline and the it was when the within the county's rights to deny the entry of that because they literally had no ability or time to to address those. With respect to the additional findings, I'm not aware of any of the redactions that were were done to the J to the November, excuse me, 2024 submitt by petitioner uh that related to any additional evidence regarding goal three or goal 14. So argument. >> So if I understand correctly, you're asserting whatever was redacted was not responsive to the applicants submitting new evidence. It was argument or evidence about the substance of the exceptions. >> Correct. And I think as I I think I believe don't quote me on this, I think the petitioner has included a clean copy of what was submitted in either the motion to take evidence outside of the record or in the appendix. The board can clearly see the portions that were redacted primarily related to this goal 14 preservation issue. They were they were really attempting to open the record and and solve that preservation problem that they still have here today. >> Okay. Thank you. That answers my questions. >> I'm kind of running out of time here so I'll try and and and keep it important as far as just the important parts. Um, with respect to the um the rural versus urban, I I think uh you know on page 23 of respondents brief um land use practitioners and I'm sure this board are continuing to be frustrated by the lack of guidance from the legislature and the agency. What do you mean urban? Uh you can throw a dart. Does it mean 10? Does it mean five? Does it mean two? And so the county's left in this untenable position of well we're not sure. So what the county actually did was interpret it both ways. If at if if this level of density is still rural, then we're continuing a rural use and there's no incompatibility. It's a rural use. It continues to be a rural use. If it's somehow urban, we've then gone through that exercise to justify that well, it's surrounded by urban uses. This resource use conflicts with that urban use. So, I think we're reduced to that by the lack of any guidance from Salem as to how we're supposed to to manage that. So, I can appreciate the difficulty the petitioner had as well. Um, and I think yeah, it would be great if we could all sit together and and come up with a a conclusion to that issue, but I don't think this case is necessarily the best fact pattern for the board to uh determine that there there just so many other irregularities in this case, not to mention a gigantic record. Um, moving on, I think one of the more important issues here as well, we we clearly are arguing that that this goal 14 irrevocably committed exception was not preserved. I think the board we would we would plead with the board that rather than uh you know finding some problem with the findings or the errors that this issue is now ripe that we need to know whether this goal 14 issue has been preserved or not. If it has not, a large part of this appeal falls away. We don't need to get into substantial evidence challenges to that irrevocably committed uh finding or to the goal 14 reasons exceptions. There will be a a binding uh finding so to speak that goal 14 has been accepted. Um moving on, the last argument I'd like to address is this um concept about JCCP part five finding that it's required or necessary. the city matus uh case gets cited and I understand petitioner was the petitioner in that matter as well and they're quite proud of the decision as they should be but that case is distinguishable clearly in the sense that there was no goal exception taken in that case it was an extension of an urban growth boundary uh and so there was no incumbent or attendant finding that any of the goals that there was an exception of the goals the county's position is despite the poor drafting of his own comprehensive plan that when we have a goal except exception. By definition, we are finding that there is an incompatibility. In other words, it is currently resource land. It's range land. If we have a goal three exception that says it's no longer resource land, well, then we can't keep it zoned as resource land because then that zoning doesn't comport to this finding that it's no longer resource land. Uh, and so I I know it's a bit of a circular argument, but it makes sense if the board could kind of follow the bouncing ball here that the the mere exercise of proving that it's exempted from gold protection creates the necessity to reszone. Otherwise, continuing to have this zoned as range land when we've already found that it's no longer resource land is incompatible. That's the incompatibility that we talked about. and you've reached your 15 minutes. So, we'll we'll end there. Thank you. Uh and petitioner, you have one minute and 30 seconds for rebuttals. So, whatever point you want to make in that amount of time, you are have that time. >> Thank you. I I'll I'll do my best. Uh the scope of the remand um and the the law of the case, the law of the case doctrine is is outlined uh by the Beck v. Tilma County decision and it states that uh issues that were affirmed or reversed on the merits are uh the law of the case and can no longer be raised. None of the goal exceptions in this case were affirmed or reversed on their merits. Those are still live issues. In fact, I even believe I heard respondents council agree that those are live issues the county must deal with. the county uh uh was required to accept testimony when it reopened the record to finally uh affirm or or uh to deal with the substance of those issues. Um there was a point from respondent that lands missed the deadline. The county accepted testimony from others after its deadline and that deadline in any event was not required. It was permissive. the hearing notice said uh you know the the county prefers or or testimony should be received by the county. It didn't require it and it's counter to the the county code which I already quoted that states that any testimony received at a hearing uh shall be included in the record. So missing the deadline doesn't really matter. And in any event, you know, the county uh redacted, as you heard, Land Watch's testimony on uh certain issues in our previously submitted written testimony back from the November hearing. Um and that is a minute 30. So we'll end there. Good pause. Good time to end. Uh that will conclude oral argument. Thank you both for your argument today. The statutory due date for our decision in this appeal is September 10th. Uh we'll ask the parties to agree to a 21-day extension to issue our opinion no later than October 1st. >> No objection from Land Watch to that. Thank you. >> No objection from the county. >> Okay. Uh thank you for your argument today and have a good remainder of your day.", "summary": "Good morning. This is the time set for oral argument in central Oregon watch versus Jefferson County. Luba number 2025-023. I'm board chair Zoodia. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. Uh we do have a pending motion petitioner's motion to take evidence and response and the board will resolve that motion and the final opinion in order. The oral argument today is a total of 30 minutes. Petitioner,…", "source_url": "https://www.youtube.com/watch?v=pPWMgbk8z2g", "source_name": "Oregon LUBA", "doc_date": "2025-08-27", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2024-082/083/085 Redside Restoration v. Deschutes County", "content": "Oral Argument 2024-082/083/085 Redside Restoration v. Deschutes County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=yUiLc5RO_Vc). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nYou're fine. I don't mind I won't feel waiting on the county. Is the county waiting to be let go. Good morning. This is the time set for oral argument in Redside Restoration Project 1 LLC versus Dashuites County Luba numbers 2024-082 083 and 085. As you'll probably notice, we're trying a new format for oral argument today. So, please bear with us if we have any technical difficulties. We can see the attorneys for all of the parties on our screen. And I am board chairs and with me today are board members uh Wilson and Basham. Please mute your audio when you're not speaking. And I'm not aware of any pending motions in this matter. Is there anything the parties need to bring to our attention? See none. None. Uh oral argument is a total of 30 minutes. Um petitioners and intervenor petitioner will share 15 minutes. Have you decided among yourselves how you'll share your time? Yes, we have. This fineman, am I audible for you? Yes. Okay. I think Mr. Katzoff, you were shaking your head. Can you hear uh Mr. Kleinman? He's quite soft for me. I'm not sure if he can turn it up at all. Trying to turn it up. Is this any better? Yes, it is. so we have uh decided to divide time between Mr. Hley and me and uh we'll each take five minutes on rebuttal. It's possible that one of the other attorneys uh on this side. Okay. So, my understanding is uh there will be two fivem minute presentations and then the petitioners want to reserve five minutes for rebuttal. Exactly right. Thank you. Thank you. And thank you for deciding that in advance. and county and intervening respondents attorney. You'll share your 15minute uh response. Have you decided among yourselves how you'll share your time? Yes. Yes, we have, your honor. Um Stephanie Marshall, senior assistant legal counsel at Dashuites County. Um I will be taking approximately five minutes and the remainder of the time will be allocated to the intervenor respondents attorney, Mr. Katzro. Okay. Thank you. Thank you everyone for your briefing and for being here today. And with that, uh, whomever from the petitioners wants to start, you may state your name for the record and begin. Go ahead. Okay. Uh, this is Jeff Fineman uh, on behalf of the Buchanan and Keystone. I think it's important uh, for the purposes of this case to bear in mind the and keep some perspective on the on the legal framework. So planning statewide planning goal three is to preserve and maintain agricultural lands. Uh while all of statutory agendy's policy is important, O RS 2152432 is especially relevant and provides that the preservation of the maximum amount of the limited supply of a land is necessary um to the conservation of the state's economic resources and preservation of such land in large blocks is necessary goes on from there. Uh the definition of uh which the legislature defined broadly whether land is within the goal three definition of a land and relatedly whether land is suitable for farm use as defined by RS 2152032A are questions of state law. Other words, there are legal questions under KGI versus Fanton County 152 or act 131. Um, we have cited the board to Clo versus Tamo County 43 or Yuba uh 4. Uh, and this is the 2002 decision, not the 2005 decision. Um and uh in that case the board held that if property has some value as farmland if used in conjunction with a neighboring commercial farm or ranch um then under the rule uh that prohibits a finding that the property is generally unsuitable for farm uses. Um that case arises under the non-farm dwelling um provisions of the ORS. However, that's the only place in the OAR that the in conjunction with language uh appears. But um and again, the way the test is stated, it's a question of law. Uh if a reasonable farmer or rancher can make use of the property in conjunction with their adjacent or nearby land, it doesn't matter how many witnesses an applicant can round up to contend otherwise. Um, Luba adopted the in conjunction with language uh in uh both Landwatch versus Lane County 77 or Luba at 371 and Weather versus Douglas County 5 or Luba at 186 to 187. under the farmland statute generally uh reading OAR 66033 sub3 uh to require an analysis as to whether the suitability for farm use inquiry well it it it explained that the suitability for farm use inquiry must consider the potential for use in conjunction with adjacent or nearby land. So it doesn't matter whether uh whether it's a non-farm dwelling case or a case like this involving a five papa Um very quickly uh the state agencies with expertise in this uh area uh in particular ODA, ELCB and OBFW uh submitted joint written testimony uh that stated that according to the landowner's own estimates of grazing potential the 7 central property is the productive norm for native rangeand in the region and uh represents average rangeand pastures down in central Oregon uh that have been successfully managed for livestock grazing since cattle and sheep were introduced and that's at pages 190 and 191 of the record. That is precisely the use that's proposed and intended by Keystone making use of Mr. Buchanan's uh lifelong ranching experience and the market that the Buchanan have successfully developed in central Oregon and metro Portland for their beef uh which is derived from their breeding or crossbreeding Angus and cattle. Um and I will stop there and uh hand off to Mr. Howley. Thank you. Good morning. For the record, Jamie Hley on behalf of petitioner redside. Groundwater, especially on the east side of the Cascades, is an infinite finite resource. 71 houses will consume considerable portion of that resource. The decision here first admits that all four properties in the study area rely on groundwater for irrigation and the Buchanan rely on groundwater for stock watering as well. That's at the record on 71. In addition, the the Johnson's uh the Mayo Phillips and Redside Farms are also adjacent and nearby, but the applicant and decision focus squarely on the Buchanan. The decision itself concludes that after a review of the expert evidence related to water impacts, we find that the existing resource designation and zoning is not necessary in order to allow existing farm practices in the study area and beyond to continue. Again, that's at record 71. But 1,00 friends is correct that whether groundwater consumption will allow farm practices to continue is not the correct standard for 00201 small a big C. The question is whether or not the land is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. So declining groundwater levels may not permit irrigation to be undertaken on nearby agricultural lands due to the cost of drilling and deepening those irrigation wells. So where's the evidence here? On the substantial evidence question, the decision relies on evidence about uh one domestic well costing approximately uh $6,537 for for deepening that domestic well. That's at the record at page 75. But the criteria uh regard impacts the surrounding wells used for irrigation. The only evidence in the record here is the cost of deepening an irrigation well uh from Mr. Long and the CWM where the the cost ranges between 60,000 to over $150,000 to do that. That is at the record 16.97. that is a 9 to 22 time uh increase in the cost of deepening uh of a domestic well. The the decision neither explained why Mr. Long's cost estimate is incorrect nor cited an alternative estimate. The decision never found that an irrigation welldeening would not adversely impact farm profits here. No reasonable decision maker would rely on evidence regarding one small domestic well when evaluating farming practices that involve irrigation. So in summary, uh goal three and its implementing rules require the preservation of agricultural land in large blocks to essentially avoid a domino effect of non-farm uses taking over uh within an area. Carried to that logical end, grazing lands would never be protected and therefore available for ranchers like Mr. Kleman's clients, the Buchanan. Without designating and protecting these lands, there's nothing to prevent their continuing loss. And with that, uh, I'll stand unless there's any questions and look forward to rebuttal. No questions from the board. So, you will have your full five minutes for rebuttal. And we will turn now to uh the county intervening respondent, whomever's going to start on that side. Um good morning, your honor. Stephanie Marshall, senior assistant legal counsel for Dashets County. I will uh start on the respondent side. Um and thank you for um for hearing uh oral argument today. Um we uh the county believes that um the issues raised by the petition petitioners and uh intervenor petitioners it are adequately addressed in the briefs but there are a few things that I wish to highlight uh very briefly and then turn it over to um intervenor respondents attorney uh Kim Katzaroth. Um this appeal uh is a decision of the county board on the specific issues remanded by Luba in 2023. uh petitioners did get a second bite of the apple to essentially uh put more evidence into the record uh to bolster their arguments with respect to the sustainability 6603300201 AC and the water and traffic issues that um um Mr. Hy briefly touched on the water issues uh but no one except the applicant and to some extent the Buchanan um submitted additional evidence for the board's consideration. I do want to make a very brief statement on um the the deepening of the wells argument that uh Mr. Hley just uh mentioned and that uh that argument uh presupposes that the wells will need to be deepened and there is expert evidence um in the in the record that shows that there will not be a significant enough impact or significant impact period to the um groundwater uh as a result of um potentially developing the 710 properties in the future with um with residential uses. Um I have notes that we're going to be addressing the exparte and bias um allegations the first and second the evidence that you're referring to about the uh expert evidence that the domestic walls will not require well deepening on agricultural land. Does you have record citation for that? Um I do not in my notes. Um I will defer to Mr. Katzarov and he can provide a pinpoint site for that. Do you know? Do you refer to it in your brief? Um, we uh we Yeah, real quick. We refer to it in our brief and I believe it's at exhibit. Sorry, it's record citation 2374. It's from the original record also in the original decision and I wasn't challenged. I'm sorry. What was the record citation? I believe it's 2374. Um, but it was also in the 2023 record. I don't have that pin site in front of me, but it is certainly cited in our briefing um and addressed both in the 2020 previous decision and in this decision. There's also additional expert testimony which I will try to touch on, but I don't want to take any more of Miss Marshall's time. Thank you. All right. Um thank you. So, so um as I was just stating um my notes for our oral argument today, um address the first and second assignments of error uh presented by Redside. um we've not heard any oral argument on those issues. I think that um our time uh collectively is best spent um on the issues that um petitioners and intervenor petitioners presented in their testimony. So um I I really just kind of want to summarize and state that um just one note on the exparte and bias allegations. Um really what I wanted to drill down on are these uh workaround um statements that were allegedly made by Commissioner Dabone. Um because the record um now includes the transcript of the testimony at the LCBC hearing. Um the context is clear. What Mr. Dabone was not seeking uh was a workaround to approve this application. The application is decided on the law as it exists um under the goalpost rules at the time of the application. the workaround is is future-looking. Um, you know, how do we best h how can the state best address these these lands that were mischaracterized as a lands um in the future so that they're not, you know, it's not an eitheror. either they have to stay designated as a lands in error or maybe there's a different designation like an open space designation that would um essentially prevent u future reszone or not all prevent um not prevent all future reszone applications but would would have a middle ground where they can retain as as open space areas. So I just wanted to provide that additional note on that. It's evident in the um transcript um that is in the record now. And um if there are no questions on that, I would like to turn over the remainder of the time to Mr. Katzarov. Okay. Uh Ken Kather Schwab Williamson and Wyatt for the interview to respondents. I'm going to first address the well deepening and the water question more thoroughly. Um and I will try to be brief because I know we've had a lot of issues and not a lot of time. Um though I first want to uh mention that although the decision says one domestic they looked at the domestic well in terms of the actual cost of deepening at you know roughly $6,000 $6,500 the actual evidence of the records at page 689 and it doesn't distinguish between uh a domestic well or otherwise it's a 731 ft deep well it doesn't specify domestic the decision says domestic I don't think it is doesn't matter but more Go ahead I encourage you to slow down you're speaking Okay. I know you want to cover a lot, but it's hard for us hard for me. I won't speak for the full board to follow at the rate that you're speaking. And also, if you could give us that record citation again, 689 is the actual well estimate for deepening and cleaning a well at over 731 ft, which is similar to the wells in the area as is shown in the other reports and analysis. The original analysis uh that made the conclusions from the original decision is found at uh uh 2377. And I'm going to just read that really quickly. And what it says is, and this is from GSI Water Solutions several years ago with no contrary evidence in the record, still says based on the published literature, well logs and ground level hydrographs of the steady area. It said keeps going and going. is a long-term groundwater effects in the area declining at a rate of less than half a foot a year. Not based upon general use here and using very conservative estimates of aquaer parameters and pumping rates. Measurable interference with existing wells is unlikely to occur due to the high permeability of the aquifer materials and the low pumping rates for domestic wells. And this looked at a much broader use at 71 domestic wells at a very high level of use. And what Redside continues to ignore, as they did with our traffic analysis, is that there's a conditions of approval agreement as part of this decision that even further restricts the amount of water that you can use. So, not only is it the the expert evidence say you not you're not going to have an impact at all, but we even further reduced it. There's also an additional uh letter from this goround that we provided during the open record period and redside chose not to respond to it and that's from Cascade Geoengineering which made similar findings in response to their expert. Their expert didn't provide any rebuttal testimony. You only have the lay testimony of Mr. Hley unfortunately and their expert didn't even say that there would be significant impact. What he said is that water is finite and that there may be an impact downstream in the river which has nothing to do uh with this particular test which is again not a farm impacts test but whether or not this it's necessary for this property to remain in the agricultural designation due to a presumed lack of impacts. Okay. So the water issue what they're arguing is that water is going to have an impact no matter what. what the actual expert evidence is and none contrary to that is that it's unlikely to have any interference. And so we're looking at this very high standard of necessary that this property remains the same. Not just it would be nice, not that it would be great, but as the court of appeals and this board determined, it has to be truly necessary that a redesignation based upon the presumed last lack of impacts uh wouldn't permit farm practice on surrounding lands. Okay. umation for that Cascade Geo report that was submitted. 938 is the start of it and it goes for several pages. Um but it starts at page 938. Um and the original one is at uh 2377 and the well deepening estimate on a different property that's not a domestic well is 689. Thank you. Okay. Um I want to uh talk about a couple other things. Um, I think it's really interesting that the petitioners in this case, including climman to start, um, uh, are trying to bring this back up to the 30,000 foot level and argue that the rules were misapplied again as opposed to actually looking at what the decision did, citing to it, and addressing the findings and the evidence that that were relied upon by the county. Because if they actually do that, you have a really long decision with detailed findings that specifically cites the evidence and addresses all the standards correctly. But if instead you can try to pull us up to 30,000 just said, \"Hey, they did it wrong.\" Again, we may have a problem. But I don't think we did. Let's be clear here that this is in fact a substantial evidence standard. 66033 sub 2 even says. It says in order to make this determination, you have to have substantial evidence in the record. You have to make findings, substantial evidence on the factors. Okay? So even the rule directs us to that this is a substantial evidence standard and we've addressed all those factors and rather than challenge those findings in their briefs or an oral argument today we're just saying oh no let's just pretend it's a different uh standard of review it's not it's substantial evidence um I want to address thousand friends real briefly because one of the issues that I think there's perhaps uh battling evidence or it's under substantial evidence is the quality of this property for dryland grazing. I understand uh petitioner Buchanan to point to evidence that this property is uh average for dryland grazing quality and I think there's other evidence or will you please clarify that issue for me? Is this of average quality? Is it less than average? What were the findings on that? It is it is exactly not average. It is significantly worse than average. That is the original letter that was submitted by a joint uh tri- agency letter DLCD, ODA uh and uh ODFNW. There's not any new evidence arguing that. They say it's in in that letter they say, oh, it may be average, but then they they provide a number that they believe you could support in terms of cow calf pairs and it's five in a dry year and 10 in a wet year, which if you actually were to produce that amount on an entire 710 acres, you wouldn't even be able to pay for the property taxes. Okay, that's we're, you know, not looking at any other cost. um it's just if you were going to try to support five or 10 cow calf pairs, you couldn't even produce enough beef to pay for the property taxes. And that was part of the findings that were originally made in the 2022 decision and reaffirmed by the county in this decision. However, on remand, we also looked at what Luba asked us to do, which was to look at if you were going to import feed um and what that would do to this analysis and essentially you would lose your shirt. And no party submitted any contrary evidence to that. There is substantial analysis provided by several ranchers including Mr. Rand Campbell that looked at the cost of feed, how much it would cost based upon the actual aums that you could produce on the property and then what it would cost to bring in hay, etc. and you would lose your shirt. Um, on that same point, I'll just say DLCD in this record asked for a specific conjunctive analysis in between the Buchanan property and this 710 acre piece of property. We're the only Buchanan refused to provide us any information. And so that analysis is based upon uh OSU extension service data for how many aums you could produce on their irrigated pasture and all of the other factors based upon their land and our property. That was submitted by Mr. Campbell. It's cited too well in our briefs. Um and it shows that you could not make money. You would lose more money by trying to add this property and in fact uh supplement it with outside feed. Um so that analysis is done. DLCD apparently accepted it because they didn't appeal or otherwise participate in this particular uh goround uh after remand. So again, no other party challenged that. All we have is Mr. Buchanan stating, \"Oh yeah, I could make money there with while refusing to provide us other information um and in fact contrary to testimony uh also submitted by the Buchanan about them making money.\" So that has been well briefed. It is clearly a substantial evidence challenge and the board of county commissioners looked at the seven plus ranchers who have walked this property and testim and testified that they would not try to add this property for dryland grazing because you would lose your shirt. Okay? There's no way to make money here. This is not a first goound. This is a second goound. They had the opportunity to try to find different evidence. They didn't because they can't get people to say you could except for Mr. Buchanan who refuses to provide any other information. I have to address thousand friends before my time is up. Um, we believe that a lot of their arguments are waved, but we neglected to cite a very important rule, very important statute, which is OS 1976 622. And what that law says, it's only a couple years old, but what that law says is uh it relates to amendments to comprehensive plans, which after remand from Luba, which is exactly what this is. And what it says is when a local government adopts a change to an acknowledged comprehensive plan or land use regulation and the land use board of appeals remands all or a portion of that decision based solely on inadequate findings or evidence. If the local government adopts the same changes following remand with revised findings and additional evidence to the remand, then a party may not raise new issues that could have but were not previously raised before the board, but may only challenge the revised findings or additional evidence. And if you look at what this board said in their remand previously, it said, quote, \"The county must consider evidence and adopt findings addressing the impacts of redesation of the property related to water, wastewater, traffic, and whether retaining the property's agricultural designation is necessary to permit farm practices on adjacent or nearby lands.\" That's exactly what we have here. And so these new issues 197622 cited in the response briefs. No, that's what I said. We neglected to cite that. So oral argument is only for issues that are raised in the briefs. The board won't consider new issues raised for the first time at oral argument. Uh my understanding is that's from a petitioner side and not for a defensive posture. I don't think the board has ever made a decision different than that. And so we're raising it now because although it codifies the rest of the waiver standards, it still applies in this instance. So there's nothing in luba rules or past case law that applies it to a county or a respondent responding to arguments made. Thank you. You've uh you've met the 15 minutes time. Thank you for your argument today. We will return to the petitioners for rebuttal. Thank for and east. Um the reason we provided the legal perspective that we did on oral argument is that the briefs addressed the decision in full and addressed the record in detail. Um with respect to the comment that council made about DLC's letter uh the multiple state agency letter um if uh the reading espoused by the applicant is correct then um the state agencies are conceding that you cannot possibly uh use any of the range land in climman we're losing like every third word. If you could get the microphone closer to your mouth or I'm so sorry. Is that better? That's better. Thank you. Okay. Um so as I said the briefs addressed the uh decision and the findings in full and we provided some perspective um from a higher altitude as has been suggested uh because that's the framework within which rules must be read if their reading of the LCB's letter is correct uh then all the out. Mr. Buchanan has testified that there is no need to import feed for that property. He has ranched uh more difficult property in Jefferson County profitably recently. So um and there is no point in speculating on why the state did not participate council is the evidence that there that this is uh average for dryland grazing I understand you're you're supporting that with the multiple state agency letter and evidence from uh petitioner Buchanan. Is there contradictory evidence that the county relies on in finding this is below average or is the issue that average dryland grazing uh can't make a profit so it's not a farm use? Um I I don't think there is contrary evidence except um well I don't think there is to answer your question. Um and bear in mind uh land and capability classes other than 1 through6 that is adjacent to or intermingled with lands in those classes shall be inventory of this agricultural lands even though the land may not be crop or grazed. There's 200 acres minimum of class six on this property and Mr. Buchanan testified at length on how that can be enhanced with additional dryland press. So with that, I'm sorry um so I want to start from the proposition on page 30 of our brief. Uh it mentions that Kyle Gorman of O the Oregon Water Resources Department concludes that the the aquafer is declining here. And while that's important is on page 29 of our brief, it shows that the applicant here instead of focusing on what impacts would be on surrounding agricultural lands narrowed the study did not include our clients and the others that I mentioned at the outset and and focus on a very small study area with exempt wells. quite frankly um if you look to their own evidence page 689 which is an invoice and page 690 they're invoices for domestic wells and so again they're they're looking at an orange here when they should be looking at an apple and there's no analysis of how these 71 exempt wells sticking straws into the plateau will not have uh an impact on the adjacent farming activities for irrigation purposes. And with that, I'll Now further questions from the board. Uh thank you all for your oral argument today. That will conclude oral argument. The statutory due date for our decision and these appeals is May 9th. Uh we'll let the parties know in advance that we plan to issue our decision no later than May 16th.", "summary": "You're fine. I don't mind I won't feel waiting on the county. Is the county waiting to be let go. Good morning. This is the time set for oral argument in Redside Restoration Project 1 LLC versus Dashuites County Luba numbers 2024-082 083 and 085. As you'll probably notice, we're trying a new format for oral argument today. So, please bear with us if we have any technical difficulties. We can see the attorneys for all of the parties on our screen. And I am…", "source_url": "https://www.youtube.com/watch?v=yUiLc5RO_Vc", "source_name": "Oregon LUBA", "doc_date": "2025-04-23", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2025-005 Oregon Coast Alliance v. Coos County", "content": "Oral Argument 2025-005 Oregon Coast Alliance v. Coos County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=obY2mSg4rg0). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nSo either we're having more technical difficulties on our end or I was unmuted. There you are. Okay. Would you like to reserve any time for rebuttal? You may reserve to five minutes. Uh three minutes, please. Okay. I will keep track of time on my end, but ask that you also keep track on your own end. And without further delay, please say your name for the record and begin. Good afternoon to the board and Mr. Clouse. Uh Sean Malone on behalf of petitioner Oregon Coast Alliance. Uh the first assignment of error deals with the issue of incorporation. Uh the response brief just highlights how ambiguous the incorporations are. The decision could very easily have been done in a manner that doesn't make a puzzle or a game out of determining what the findings are. Uh the ambi ambiguities here include the fact that the uh findings essentially just state that uh they're incorporating the staff reports. they don't identify whether that includes the exhibits or not. Um, typically when I review a staff report, staff report uh includes exhibits and I would review those exhibits as well. I tend to think of those things as the staff report. Uh there's also ambiguities about uh things submitted from staff not technically named a staff report but you defined as or identified as a supplemental report from uh the planning director or a memo from Jill Rolf who is the planning director. Uh so it's it it becomes difficult to exec exactly know what the decision is. Um, in the response, the applicant alleges that the staff reports apparently do not include the exhibits. Uh, why that is is not clear. Uh, and we're also not hearing from the, uh, county on this, which is the one that which is the per the entity that adopted the decision uh, who would actually know this. So, we've only heard from the applicant. Um, so the applicant just seems to be picking one side of this. Uh, we we we're acknowledging that it is ambiguous. uh the applicant seems to find some certainty in there. Uh it's not uncommon to incorporate the applicant's narrative and expert reports that are part of the staff report as exhibits, which is the case here. Um also, yes, I have a question. Um I'm I'm trying to understand how this is an independent basis for remand. This isn't a case where there are no findings. I mean, there's plenty of findings from the board. There's findings from the planning commission that are that no one seems to dispute or incorporate it. It seems that you know if if if there's any arguments that we have here that are relying on something in those staff reports or perhaps the attached exhibits that this would come into play. So I guess but I don't I'm unaware if that's the case. So let me know if if that is. But it seems like even if you're right, that would just mean that the staff report is not part of the incorporated findings and then we just go on to look to see whether things are supported by substantial evidence or not. So maybe if you could explain to me how this is an independent basis for Mand. Well, in response, I would say look to the two cases that we cited, Central Oregon Land Watch as well as the Gonzalez case. uh in those cases uh Luba appeared to um remand based on those arguments in those cases not only this notion of clearly identifying what is incorporated into the findings um but also sort of the the extreme amount of pages that could potentially be within the findings. In central Oregon land watch case, I think it was like 700 pages out of a 2500 page record. Here we have roughly 300 uh 64 pages out of a 513 page record. Um, right. But in both those cases, I think the the county is in both of them. The the local government was to satisfy an approval criteria and the only findings they could point to were findings that were in these incorporations. There weren't any independent findings to meet those approval criterion. So the question was whether is this approval criterion met and they were county was relying on oh look at the stuff we incorporated and then we're like well we can't tell what you incorporated so you can't rely on it here and I think we're missing that first step. What are we arguing about that we have to look at to what's being incorporated or not. So so that's that kind of gets back to so even if you're right why does that matter? What approval what approval criterion is are they relying on something in the staff reporter exhibits to satisfy? Well, I think that question sort of assumes that I know what the the the what is incorporated. I mean, if it's ambiguous, then clearly we have a clear incorporation as to the planning commission's decision. We also have a clear identification of uh you know the the actual adopted findings you know how many other pages of that there was um it it it it's a difficult question to answer because you if I don't know what is incorporated into the into the findings and um and then you're asking me a question of well are do any of these things have to do with any of those incorporated findings if I don't know the answer to what is incorporated into the findings, then it's I find it difficult to be able to provide you an an accurate answer if I don't know uh what else is incorporated into the findings. Am I going to get a response brief that says, \"Oh, he didn't challenge this little thing over here uh you know, in this this this exhibit to the staff report.\" And that very well could have happened, but they're taking a position that the exhibits weren't uh incorporated, which is completely ambiguous from the findings themselves. So I I I think it's I'm I'm being presented with a question that can't have a clear answer because it's ambiguous as to what was incorporated. But yes, I do concede that there are some findings that are clearly part of the decision. But when challenging a decision, you kind of want to know what all of the decision entails. Um I don't know if I have a better answer than that. Okay, that's good. Thank you. So just to move on to these uh I want to delve into that a little bit further. So I think you're arguing that when there is an overincclusive incorporation or unclear incorporation of findings that's kind of a per se procedural error because a petitioner is then in a position to have to identify what the decision is to then assign error. So the after the fact that if the red brief does not rely on findings that are not that are unambiguously incorporated that doesn't solve the initial error or create a harmless error situation. I think that's accurate and let me let me illustrate it in this way. Uh the response brief points to uh this statement that is on page uh record page seven appendix page four. They say similarly there were staff reports issued in the course of this application and appeal. Each address standards for the decision based on the record and now they're saying well those standards are only found in the the sort of body of the staff report. But if we then go to the exhibits which contains all the public testimony, public opposition testimony, applicants testimony, all of the all of that testimony addresses the standards. So even the incorporation statement says well it's clear because we're you just have to look to where they're addressing the standards. Well that's the whole thing what we're doing here in land use is addressing the standards. All the testimony address those standards and all that testimony is part of the exhibits. So it's it it it's this very difficult situation someone finds themselves in and the cure is so easy just accurately uh concisely identify what is in the findings. If it's ambiguous, it becomes a puzzle. It becomes a game. And that really frustrates uh our obligations uh to, you know, try and challenge this decision. And beyond that, it frustrates our ability to even comply with the procedural rules of LUBA to, for example, attach the decision uh to the uh to to the petition for review. And when the potential decision is 530 pages uh or or some or excuse me 400 and some pages excuse 364 pages sorry uh out of a 513 page record it becomes unwieldy. It becomes almost impossible. Um but obviously I'm running out of time. Jump to the third assignment of error. Uh housing's not allowed. That seems very straightforward. Housing was included in this. Doesn't matter if it's existing. doesn't matter if it's proposed. Um there's there's dwellings on the property that are part of the golf course. Uh so that that seems to be a very clear violation. Uh the second sub assignment of air and the third assignment of error is is one that I I I find to be very compelling. Um the rule obviously we're we're dealing with a rule that's sort of a generality. 120 to 150 acres is what your golf course can be. The Oregon Coast Alliance v Curt County case established that that's not a strict rule and I I I understand that. I concede that in that case 198 acre golf course was allowed to go through uh based on sort of like the Scottish style lengths um type of golf course. But here we're dealing with something much more significant. We're we're dealing with something almost twice that size at about 3 42 acres. Uh so the concern here is that we are dealing with something that you know a generalized rule which has to have some upper limitation. It's not it's not that it's not that that rule has no effect or no teeth. It has to it should have something despite this being a sort of generality. But um when we uh more than double the size of that general rule, are we are we stretching this rule so far that we're breaking the rule? Uh that's the concern here. And then obviously with the background we always have when we're dealing with uh cases on a land agricultural land uh that there's an agricultural land use policy set by the legislature to preserve this stuff and um if we are just sort of willy-nilly with these rules and expanding these um these uh the acreage beyond significantly beyond what the rule says, then I I think we're we're getting into the territory where we're actually violating ating that rule. Um I see my clock says 12. I'm not really sure there if if we started at at 10 and a half right now. Okay, thank you. That makes sense. Um okay, address those two pretty quickly. Uh so we can go back to the sort of second assignment of error. The notion that these structures as location is unknown is another difficulty for someone trying to uh pin down impacts to adjacent farm uses under the farm impacts test. uh the findings can see that the geohhazards can't be known because the structures locations are not known but somehow we can know the impacts to farm uses even though the location of the structures is not known obviously that's contradictory and the farm impacts test should be deferred uh when the loc once the locations are actually known so what is an opponent to do when the locations of the buildings are not known we cannot define the baseline for form impacts test uh if the locations are not known we have a lack of specificity in favor of generalizations. There's allegations that the argument is not sufficiently developed, which obviously I find ironic because the locations aren't even known. Um and and we've identified these various impacts. You know, what what are your number of visitors? We don't know. Amount of garbage coming off of these these uh the clubouses, that's unknown. How much traffic? Uh potential for trespass, attraction of corridors and crows, which come along with human activity. Um and then we have uh the findings and the response alleged that these are all things that typically occur in proximity to a farming operation. You're welcome to continue on into your rebuttal or you can reserve your time. I just finished this thought. Uh you know along with a golf course comes comes a lot of things but uh for example crows birds are preying on a lot of the grubs and so forth. We presented that information in the record. So, so these these aren't aren't just something normal in in proximity to any sort of commercial operation. Uh, and I'll turn it over to Mr. Close. Thank you. Two and a half minutes for your rebuttal and we'll turn to the intervenor for your argument. Thank you, Bill Close on behalf of the intervenor. Um, uh, it's been a long time since I've been at I um I think I'll I'll start with the first assignment of error and the question of the findings. I I think uh referee Wilson put his finger on the the soft point here. I mean our our brief explains why we think what constitutes the findings are clear and I I won't hash through that again but I I think the critical question is um in order to make this an independent um assignment of error I think Orca needs to be able to point to a different assignment of error and explain why resolving that assignment of error depends on resolving some genuine ambiguity about what constitutes the findings and and we really don't have that here. Um there's really nothing else in this uh petition that requires resolving some real or even imagined ambiguity about what constitutes findings. Um and so I think that's all I need to say about that. So the cases that petitioner relies on stand for the proposition that uh failure to clearly incorporate ambiguous incorporation or over incorporation by reference of material in the record is findings as part of the decision is some sort of a per se procedural error that prejudices the petitioner's um right to a hearing at Luba. Is there anything in those two cases that support that? I I I don't I disagree with that, of course. But if you um where is the prejudice that it's fully within Mr. Malone's capabilities to identify some substantive issue and then explain why a perceived ambiguity in what constitutes the findings whether those findings are small, medium or large um and explain why that ambiguity is relevant to the merits of the assignment of error. And we just don't have that here. um that was present in the two cases here and I know Gonzalez is one of them and the other one um central land watch your position is that those cases have those characteristics and this case does not. That's right. That's right. Oh, sorry. I'm done. Sorry. Um is there any place in the second or third assignment of air where you're relying on anything in the staff reports to uh Um, I I can't answer that question off the top of my head. I'll assure you that we're not relying on exhibits that were attached to the staff reports. Um our position is the county uh board's finding is that they're relying on this on the staff reports uh that address um the standards and exhibits attached behind that is not analysis of it's not findings. Um it's really evidence you know ex generically the exhibits tend to be evidence. They're not findings. But again, I think you put your finger on the critical question. Is there a sub a substantive assignment of error here that hinges on the um uh an alleged ambiguity and what constitutes the findings? And the answer here is no. Um jumping to the third assignment of error on the question of uh trespassing housing and uh golf course size. uh the the house issue is is very interesting to me. I think that the simplest response to that I mean it's a pre-existing house. We're stuck with it until it gets scraped. Um I I think the simplest answer to this is that the definition of accessory use and I'm kind of cribbing here. All these words are in the definition but I'm kind of shortening it. Assessor use is one that is incidental to the operation or is necessary to the operation or maintenance or provides goods and services. I've left some words out there, but those are the operative phrases in the definition of an accessory use. And there is nothing about the house that meets the definition of accessory use. It's just there. It's pre-existing. Um it doesn't relate to the operation. it's not necessary for the operation. It doesn't service the golf course population and so it's just not in the category of accessory use. I think that's the main point we we're trying to make. Um then the question of size and golf courses I we're we're smaller than the golf course size for the nap ranch. I think that um the important issue here is that there the size the size of the golf course in the state law is is a generalized statement. There just is no bright line about this. And um my hope would be that Luba doesn't um um draw a bright line uh to resolve an allegation about um a use that comes with just the most general um parameters statute that I don't that's just not called for in the language of the the rule itself. And um uh it's true that this golf course is on a larger tract of land. Uh you you you know you you you put your golf course on the um on the tract of land that you have, not the tract of land that you wish you had. And this tract of land is 342 acres give or take. Uh and um what's not in the 175 acre golf course which is mapped. It's got clear clear lines around it uh is you know leftover stuff. I mean it's flood hazard zone. It's wetlands. It's uh sand dunes. It's scrub. We we we I mean we I can't imagine a situation where we I don't know how we get rid of that. you know, if if the board were to say all of that constitutes a golf course and so you you you can't have more than 100 whatever 150 acres and so you're you you can't have a golf course on something that an attractive land that's bigger than 150 acres. I think the the reasonable approach to this is to look at what is mapped as a golf course, what is approved as a golf course, and uh ignore what's what's beyond that. And we're at 175 acres, and that's in the ballpark of the general parameters of the of the of the rule. That's really all I have to say about um uh in defense. I've got a question. Yeah, I do too. You go ahead. I wanted to jump back to the second assignment on air for a minute. Could you just walk me through your I don't know if it's a waiver or a miles or exhaustion like how I think you're saying we don't even have to get to like the substantial evidence because they didn't challenge the findings that they didn't develop their argument well enough before. Yeah, that's right. I I think this comes back this comes back to the peculiarities of the requirements in the code for u stating an issue on appeal to the county board. This code unlike a lot of codes requires specificity in your um in your statement of your appeal issue. So maybe that requires a little more work than is required in other counties. You know, so be it. Um and with respect to this issue, um the uh petitioner made a very generalized argument in their uh letter of appeal and um and the county board responded to that with, you know, five or six pages of findings and pretty confident set of findings. And now the petitioner is coming back here and really challenging those findings. They're making the they're they're they're making an argument that in at a level of detail that they really had an obligation under the code to make in the context of the appeal that they filed. That that's really it. So I think we use the phrase um in our partic in our response um you know uh undeveloped argument. Well that's really um an argu that's really making the point that this code requires an unusual level of specificity in making your um raising your issue to the board. and they missed that mark and coming to Luba is not the place to to be as specific as the code requires making the appeals issue in the first instance. So your argument is also that because petitioner doesn't challenge the county's finding that that the issues that are raised in the second assignment vera were undeveloped during local appeal. those issues are also not before us for review. Is that right? That's right. That's right. Okay. Putting that aside for a second, if those issues are before us for review, I'd like a little to understand a little bit more the burden of proof for the for the applicant on the farm impacts. Under the rule, the applicant needs to establish no no significant farm impacts. Correct. That's right. And what does the applicant what did the applicant do here? Did they identify impacts? identified the applicant had expert witnesses who presented a factual case as to why there would be no significant impacts to farm uses. And that the crankshaft of that argument was based on the topography and the distance of the farming uses from the golf course. So the activities that will be undertaken on the golf course that could potentially have some farm impact uh will not because of their distance from farming activity in the surrounding properties. That that that's right really world and and the findings are very detailed about this. The uh findings take take the uh the southeast, east, and north perimeter of the uh property, golf course site, and they document the footprint of each farming operation. And they describe the distance in terms of thousands of feet that that farming operation is from the golf course. And then they describe the topographical buffer which is really a a large berm sand probably ancient sand dune or something. The the the um height of that topographic barrier uh in that intervening distance with respect to each farm and it changes a little bit by 10 15 feet or so. And and the basic conclusion is based on the thousands and thousands of feet distance between the golf course and each farm and that topographic barrier uh the find the impacts are not going to be significant. Okay. And then there was it sounds like there was some dispute over what the impacts would be. It doesn't sound like the applicant identified traffic garbage and corvids as potential impacts. Is that accurate? I forget whether there's a mention of those pesky crows anywhere, but the second question I have about that is there seems to be a dispute here about okay, the applicant presented their case on this petitioner arguing that's insufficient because there's no experts in farming activities. They're experts in golf courses but not farming activities. I understand that part of the argument, but the kind of internal waiver argument. Um the issue of where the the buildings will be located, petitioner is arguing, uh they can't know what the farm impacts are. The county can't know what farm impacts are because we don't know where the buildings are located. I think the county reasoned well the petitioner didn't actually say what other impacts there would be that would be affected by the location and so we're concluding that the generalized location is sufficient for us to determine that given the distance from the farming activities there will be no significant impacts. My question is what is then the burden of proof or persuasion once the applicant has made its initial showing on farm impacts for a petitioner to allege additional impacts or present evidence that controverts the applicant's evidence on impacts? What is your view of what the petitioner needed to do in order to raise that issue sufficiently? Well, initially and most importantly, it's our position and the county's position that attorney speculation is not enough to get you into the door for um uh factual allegations. Um attorneys have some fine qualities, but they are they are not fact witnesses. Um uh and is there evidence? Is there any farmer evidence or other expert evidence on these additional impacts that petitioner is arguing there? No farmer uh showed up and said an alleged impacts to a farming operation as far as I know. Uh there's also a a distinction to be drawn between um the um uh generalized location of the buildings uh and um the um you the record shows that the um exact footprint of the buildings is not known. The main buildings are within about a 10 acre cir circumference 10acre circle. Um with respect to geotechnical impacts and geotechnical suitability, um that generalized location means that the geotechnical issue needs to be um resolved in the future, you know, with opportunity for appeal and hearing because when you're looking at geotechnical issues, you need to know the exact footprint. I mean the question could be simply put when you finally settle on a footprint for the club clubhouse are you are you putting it on quicksand you know so you got to know the exact location we run out of time so if you could uh with respect to farm impacts you don't need to know the exact in uh location of the buildings because you're talking about thousands of feet distance and um and intervening intervening topographic barrier. So it's the exact location is relevant for geotechnical and this could be a future hearing on that but it's not relevant for drawing confident conclusions about farm impacts. And I do want to pin you down on an answer before we end your argument on what did the petitioner need to present in order to overcome what the applicant already presented. They needed to have some counterveailing non-ater attorney opinion about the impacts. Is that where your position is? some some evidence, factual evidence from a non- attorney that relates to this proposal on this site, you know, um general, I think generalized textbook information about how life goes on in our world is not adequate when you have on the other side of the balance um the applicants, expert witnesses or if you don't want to consider them experts, the the applicants witnesses providing factual evidence about how this golf course is going to operate um based on their area of expertise or based on their personal experience with how a different golf course operates in the same county. Thank you. There any further questions? Okay. Uh thank you for your argument. appreciate your answers to the questions and we will return to uh petitioner. We went over there on answers for interveners. So, we'll add another minute. You'll have two and a half minutes for your rebuttal. Thank you. Uh I have the Jefferson C the Central Oregon Land Watch B. Jefferson County case in front of me here. I'm just quoting from page nine, slip opinion, starting at line six says, \"The board of commissioners decision approving exceptions to goals three and 14 includes some findings of fact and conclusions of law explaining why it concludes that the applicable exception criteria are met. Uh the decision adopts by reference multiple documents containing various findings of fact in staff reports and and intervenor submitt.\" So there were, you know, some legit actual findings of fact in that case just like there are here. But then there were also all these incorporations. So I don't see that case as something that says there were no sort of explicit findings of fact and the only findings were all these confused incorporations. So I think uh Central Oregon Land Watch is on point there. Uh another point just to get it home is that is there some finding I'm supposed to challenge? And I'm not really going to know that until I get a response brief that that seizes upon these ambiguities and says, uh, you didn't challenge this because we actually did incorporate the exhibits because that's what I meant by saying the staff report. So, it's it's a game that is played and uh I think that it is not difficult to clearly identify what the decision is and that shouldn't be, you know, a whole new game. Um, so if we agreed with you that there's some kind of per se procedural error here, um, would we just remand on the first assignment of error for clear incorporation and not reach the second and third assignments? Well, that's something I thought about obviously and you know my initial reaction is yes so I can identify the actual decision that would make it very that that would be clear. Um, obviously I don't want to sacrifice all my other assignments of air because I think they're pretty good, but um, you know, in the Jefferson County case, obviously the Luba went on to address other assignments of error. Um, I think it most it makes the most sense to if if you agree to remand on that first assignment of error uh, in order to, you know, on remand they could address these other assignments of air in a in a better way or something like that. But, uh, I think that makes the most sense. Uh it's it's the most efficient way to deal with this case. Although I do like my other substance of air. Um we all tend to like the things that we write. Okay. Uh well, we've reached the end of time. Um thank you both for your argument today. That will conclude oral argument. Um the statuto due date for our decision in this appeal is June 13th. We'll let you know that we intend to issue that", "summary": "So either we're having more technical difficulties on our end or I was unmuted. There you are. Okay. Would you like to reserve any time for rebuttal? You may reserve to five minutes. Uh three minutes, please. Okay. I will keep track of time on my end, but ask that you also keep track on your own end. And without further delay, please say your name for the record and begin. Good afternoon to the board and Mr. Clouse. Uh Sean Malone on behalf of petitioner O…", "source_url": "https://www.youtube.com/watch?v=obY2mSg4rg0", "source_name": "Oregon LUBA", "doc_date": "2025-05-29", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2025-034 Central Oregon Landwatch v. Deschutes County", "content": "Oral Argument 2025-034 Central Oregon Landwatch v. Deschutes County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=lkGiS6t0Ods). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for oral art in central Oregon land watch versus shoots county luba number 2025-034. I'm board chairs moodio. Board members Wilson and Basham are also present. Please mute mute your audio when you're not speaking which will uh limit background noise for us and uh we do not see intervenor on video. So if you're intending to join us video wonderful we can see you now. I'm not aware of any pending motions. Is there anything the parties need to bring to our attention? Nope. Nothing from either party. Okay. Petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Yes, I'd like to reserve those those minutes for rebuttal. Thank you. >> Five minutes. >> Yes. Uhhuh. >> Okay, great. Uh I'll watch the clock here, but ask that you keep track of your own time. And the clock on the screen is just for general purposes is not keeping track of uh your time specifically. So with that, uh please state your name for the record and begin. Petitioner. >> My name is Carol McBth and I'm a staff attorney for petitioner Central Oregon Lamb Watch. I'd like to begin by reiterating our uh denial of allegations of waiver and then move on to two further points from our petition for review. We deny the allegations of waiver presented. We believe that we gave fair notice as required by bolt for for the the lack of compliance with goal three and goal five and goal 14 beginning in April of 2023. Bolt requires no more than fair notice to the developer or the respondent and we provided that to them. Bolt also provides that we need not have made the exact same arguments below that we present here. And following up on Bolt, this board said in Tieleook Public Utility Commission that we need not have named the same exact regulation below that we're arguing here as long as we have the material substance of what we're arguing is clear uh about what regulation we're referring to. So we we did preserve all of our arguments under Bolt, which is the interpretation of OS197.7971, the the preservation standard here. We'd also point out that while we were consistently making our arguments that there's no no goal three, no goal five, and no goal 14 compliance here, developer's position was a moving target beginning in April of 2023 when developer advanced a theory that goal 5 did not have anything to do with this case and Lwatch responded to that. In July of 2024, there was another theory from developer about goal 5 and LWatch responded to that. In August of 2024, there was another theory of Gulf 5 compliance from the developer and for a third time language responded to that and then the county has now advanced in its decision and its cursory goal five findings is advanced yet another theory and we have responded to that. So we've tried to keep up with what developers latest theory about go five was in doing so we have preserved and certainly given fair notice on all three of the goals and we deny all allegations of waiver. My first point is about the adequacy of the county's findings for goal 14. This is another goal in which they only devoted a half a page or so to their findings. In order to be adequate, as you know, they needed to have factual references to the record and they needed to have the legal reasoning that they applied to those facts to come to their conclusion. but they don't mention facts and they don't mention their legal reasoning which leaves this board with no option but to either reverse or a remand because there's nothing there that's adequate for review under RS197.835 835. If there were such facts or reasoning in the record, then that might be relied upon. But the record also lacks that information. So there isn't any other option. And pursuant to West Coast Media, when the court of appeals reiterated this board's own determination about its authority for review, West Coast Media holds that this board has to review the decision that is presented to it, not one that could have or should have been presented to it. In that case, uh, the appellant was asking this board to rewrite a decision below and review that instead of the decision that was presented. And you said that your review authority did not permit you to do that. And the court of appeals upheld your your reasoning, saying that's true, that your your uh review authority will not allow you to make up findings that the county didn't have. The counties seems to be relying on a law of the case theory. But the law of the case doctrine transcends Oregon's boundaries and not in Oregon or any other common law country. The law of the case doctrine does not extend to cases outside this case. This case is on its original decision. There is no law of the case. So if that's what the county was trying to do when they referred to some other case, presumably that other case did have facts, did have legal reasoning and this board might have affirmed that. But in the absence of facts, in the absence of legal reasoning, as we have here, pursuing to West Coast Media, there isn't anything for this board to review, can only reverse or remand or it will be forced to make up findings that the county could have or should have made but did not. And I will move on now to our final point, which is we specifically request, as we did in our petition for review, that this board apply the Court of Appeals decision in Noral. In in Noral, the court of appeals explained that we as as appearing in the local proceeding, we had the right to a full and fair process and the right to prevail below. And we had the right to have arguments that we raised in detail be fully addressed by the decision maker below. But we did raise the argument that goal 14 compliance must be shown in the present. And we explained the 40-year-old presidents from Lewick and from Jackson County. And we asked the county to take those and see those as binding presidents and find that or 197.1752A requires the county to show compliance with the goals in the present every time it amends its plan. Every time a city or county amends or adopts a plan, they have to show compliance not referring to some other event. And the court of appeals made that very clear in Lewig, Jackson County, and now in DLCD versus Clackmus County last year. But when we raised that to the county, they just didn't look at it at all. Pursuant to Norll, that was unfair to us. It makes us come here. We're spending our donors money to come before you. The taxpayers are spending their money making you make a decision that the county should have made. If the county had taken the time to address this issue, we believe we would have prevailed before because there isn't any way for the county or the developer to show compliance with goal 14 in the present. it it won't be able to meet the Schaefer factors. There won't be a possibility of showing an exception to goal 14. That's our belief. But we were denied that opportunity because once Lewig in Jackson County are applied, they have to show compliance now by applying the Schaefer factors that Schaefer and its progyny have said are required every time that an industrial use is proposed outside of a UGB. That has been your consistent position, but they didn't do it here. again appearing to rely on some law of the case that wouldn't apply because this is the original decision and from there I'll reserve my um my time for rebuttal. I'd be happy to of course answer any questions that you all may have. >> I did have a question about the goal five first assignment of error. Did this county adopt the easy analysis that the innovator submitted as >> I don't think they didn't say that they adopted it. They they referred to it but they didn't incorporate it as part of their decision. They said we agree with what they said and they might have adopted it into the decision but they didn't. They it's in the record but it's not part of their decision itself if that's what you mean sir. Um on the the Gulf 14 issue, uh Intervenor cites the the Asetti cases and say that those are pretty much on point saying that don't have to to get into those issues. Um and didn't have to do the Schaffefer factors. Um why is that wrong? >> Um thank you for that question. Yeah, I was there in the Asetti cases and the Asetti cases um they they were required to show the Schaefer factors but they weren't able to and that that issue was pushed to the side when instead there was reliance on a past amendment and we're saying that uh unfortunately we didn't know that that argument was coming. We didn't know that that would be predominant and we didn't cite either Lwig or Jackson County to lube at that time and we've never seen a a decision maker reconcile Lewig, Jackson County and DLCD versus Clakamus County with the decision in a SETI. We don't think that those things can be reconciled um and they certainly they didn't even address it here but um because because it's required to be shown in the present and a SETI requires going back into the past to a former acknowledgement and and a SETI is sort of this case is sort of a poster child for why we think that in general a county should not rely on the a zone being in compliance with the goal in order to say that this plan amendment is in compliance with the goal Because beginning when when the very first when the the RA zone was invented, it was invented because there were grandfathered areas of industrial use and in order to do something with them, they invented the RAR zone. But the RAI zone was limited by the plan to just those four places. So the the RARI zone and the RARI plan were all were both in com they're in said the same thing. They all complied to those four areas. So, just like the EFU zone, when a county talks about the EFU zone, they can either be talking about the zoned lands or the zone itself because they're co-terminates. And that's how it used to be with the rural industrial zone. It used to mean rural industrial rural industrial zoned lands because the only lands were those four industrialized areas. And that was the same as where that zone applied. But then several years ago, the amendment moved forward to the plan moved forward and now instead of 0.00 01% of the county being regulated by the RAR zone. 100% of the county, all 2 million acres are available. So, the plan has moved forward in what it allows, but the rural industrial zone has stay stayed back here. Its goal 14 compliance hasn't occurred since there was only four areas that it applied to. So, by by saying, oh, well, the goal 14 the zone complies with goal 14 that it's not they're not in the same place. It's not as though these were co-terminus. that the compliance with goal 14 shown for the zone is out of step with what is required here because these lands, this type of land was never shown to be in compliance for the zone. That wasn't contemplated at the time because again the zone was created only for four industrialized areas. Nothing prevented the county from expanding it. But when >> you're entering into your rebuttal time, you're welcome to continue. >> They were just saying they left the RAR zone and the plan out of sync. So that not only this is the poster child for it and we think that intervenor is is advancing a similar theory here that goal five that that the landscape management zones compliance with goal five somehow means that this plan amendment complies with goal five but resorting to what a zone does is is not acceptable because the zone may have been found to be in compliance for completely different reasons than are needed to show plan amendment compliance if that makes sense. And I'd be happy to answer any follow-up questions on that. >> Okay. No, thank you for answering that. appreciate that. >> Okay. And you'll just have a little over four minutes for your rebuttal. No further questions from the board. >> We will return or we will turn to intervenor for their argument. Uh please state your name for the record. >> Good morning chairs and board members. My name is Carrie Richter. I'm a lawyer at the firm Baitman Sidell and I represent intervenor respondent and the applicant below last ranch LLC regarding the first assignment of air and preservation and just preservation generally. Um the petitioner talked a lot about bold. Um, I think that misrepresents the petitioner's obligation when it comes to to making a presentation at Luba in Rosewood Neighborhood Association and more recently in the Central Oregon Land Watch case known as Markin. Luba reaffirmed that a petitioner has an affirmative obligation to establish a preservation of error in the petition for review. Waiting until filing a reply brief or saying that all the issues were raised in bolded oral argument is prejuditial to the parties. The pages referenced in the preservation portion of the first assignment of error are directed to the EC analysis. Um petitioner does not challenge the EC analysis in this appeal. In addition, the pages referenced in the reply brief do not establish the issues that are now of concern. Um, there is no discussion of excessive interference being an independent standard. There's no discussion of uh comprehensive plan policies that talk about public need. Um, petitioner claims ignorance of the interpretation that the county would adopt. talking today about how the county change or the applicant changed its position along the way. Um the approach to goal 5 that the county ultimately adopted was outlined in detail by me in a letter dated August 18th in the record at page 326 as well as in a lengthy submittal by Adam Smith starting at page 380. That was part of the initial open record period after the public hearing. Petitioner submitted a written rebuttal on September 4th. So two weeks after that, 3 weeks after that, petitioner submitted a written rebuttal at record 26 or 260, excuse me. And um and nowhere in that rebuttal do they challenge the new uses approach that the county ultimately adopted. Um, as for the merits of petitioner's first assignment of error, petitioner didn't raise that today, but I'd like to point out something that I think is really important. Um, Luba's decision in Landwatch versus Dish County LBNW LLC, which is where this goal five issue came up before in 2023. Luba rejected the goal five analysis uh because the propo the because there was nothing in the record to indicate that the previous EC analysis considered the use that was proposed and that was from root versus clackamus or clamoth county. So um that in other words in 1992 when the landscape management overlay was proposed there was nothing to show that rural industrial uses were considered. What the county did in this case was they produced the information in the record to show that there were RI zoned areas in 1992 when the LM zone was created. So there was no new there is no new use introduced at this time. What is also important about the 1992 materials is that there is um that the focus is not on use. It's not about whether it's a rubber factory or a plastics plant. It's not about that. It's about sighting and design. And what the >> a couple of questions about what the decision says about the Gulf 5 issue. Did the county adopt the intervener's EC analysis into its findings? >> They say they agree with it. >> They agree with it, but they don't adopt it as its own. Did they find that they needed to do an EC analysis or did they find they didn't need to do anything? >> They found they did not they found they did not need to do an EC analysis because there were no new uses introduced because the new uses were considered in 1992. And so does the decision rely on the LM overlay as resolving the goal five issue? >> They do. >> What where's the record citation for that? >> Uh 57. >> Thank you. >> Oh, I have a quick question about the EC analysis. Also, um like the decision the findings to say the board further finds that because the proposal would not introduce new conflicting uses, a sightspecific EC analysis is not required. But under like the uh the actual ordinance it says uh the board also incorporates in its findings in support of this decision among other things the sight specific EC analysis attached as exhibit H. So is how do how do how do we reconcile that if if it comes down to whether or not that the board adopt is relying on the EC analysis. What's the answer to that? >> I think that the fact that the board uh acknowledged and agreed with the EC suggests that it adopted the EC in the alternative. So where do where I know it says the board agrees with the applicant that they will not introduce new uses that would conflict. Is that the same thing as agreeing with the EC analysis >> in the alternative? I'm reading at the bottom of page 57. The applicant submitted an easy analysis to anal to analysis to evaluate which uses in the proposed RAIU should be allowed, which uses should be allowed with restrictions and which uses should not be allowed. The board agrees that the applicant that the RA zone will not introduce new uses that would conflict. Consequently, the board finds the comprehensive plan amendment complies with goal 5. I mean, I think it I mean they t make findings about the acknowledgement of the EC. I believe that that establishes that the EC was adopted by reference. >> Okay. Thank you. >> Um I want to quickly point in in my remaining couple minutes, I want to point to um one of the things petitioner says is that the design standards don't apply to RARI zones. That is patently untrue. Uh the shoots county code 18.84.080 080 talks about preserving ex existing tree and shrub cover and that applies to all uses in all uses within the landscape management overlay. All structures have to be finished muted have to be finished with muted earth tones. Um and the planning director hearing body may require screening uh to assure a and a substantial exterior alteration to assure compatibility. This suggests that even the rubber plant will be compatible with the scenic values of the LM overlay. Um, in my remaining time, I'd like to talk a little bit about goal 14 since that's where petitioners spent most of their time. Um, in Lewig versus Jackson County, the court said that goal compliance cannot be achieved by measuring a plan amendment against the acknowledged plan. here. There is no evaluation of whether the proposed rural industrial zone complies with the plan. We're ne we didn't the county didn't measure it up against the plan. Rather, the county applied the zone that everyone has determined on multiple occasions by Luba and the court of appeals complies with goal 14. There was no need for more ink to be spilled about this. I mean, I don't have to tell you, Chair Zamoodio, that you've talked about this. The Lwig and Jackson counties decisions talk about inconsistencies created by only applying the plan, but there is no inconsistency created in this case because the RI zone authorized uses will not be urban. They are limited by size. 7500 square ft on-site well and um well on-site septic and wellwater connections. These are all determinations that Luba made in the Aseti 5 case. Uh the court of appeals affirmed Luba did it again in LBNW. There is no reason for the county to make additional findings. And if there's dispute about that, more recently in the uh central Oregon Land Watch Destiny court case, um Louva talked about the relationship between Lewig and Jackson County, pointing out there may be situations where conducting the Curry County Schaffefer obligations would be entirely redundant. So if the county had done had done Curry County Schaefer, the the the findings would have been yes, we're limiting the footprint to 7500 square feet um to achieve rural proportions. There are no urban extensions of facilities. It would make no sense to demand ex expansive findings on this question when this has been determined multiple times. There's no reason to revisit it. The petitioner is is just I mean it's denial is the best I can I can I can figure. So um goal 14 is satisfied uh not because of the acknowledgment but because this analysis has been done and the courts have Uh in my remaining time I'll talk quickly about the third and fourth assignments of air. Um, I want to point out that all of the facts that petitioner relies on about past farming use, none of the past evidence of past farming use indicates that it was done for profit. And in Markin, Louva held that photographs showing grass growing on property is not conclusive evidence that the property is suitable for farm use. Given that the definition of farm use includes farm activities undertaken for the purpose of obtaining a profit, there's no evidence in anything the petitioner relies on that suggests anybody was it was in an effort of making a profit. And all of the evidence from farmers and neighbors today was that they could not farm it for profit. The evidence is also that the poor soil conditions, the shallow soil depth on rocky on on volcanic rocks makes the land unsuitable for farming even if it was irrigated. This was determined by a soils expert, the only party who conducted on-site bore testing of the conditions. The property is completely cut off from neighboring farms uh with Highway 97 to the west and south and double railroad tracks to the east. This is all evidence that a reasonable person could rely on in supporting a finding that this property is unsuitable. Uh in conclusion, the petitioner has not established any heir and the county's decision should be affirmed. I'm happy No further questions from the board. Thank you for your argument. We will return to petitioner for rebuttal. You will have four minutes for rebuttal. Petitioner. >> Thank you. I'd like to begin by saying that um in the decision from the county, they said that an EC analysis is not required. They also said that if there was any contradiction between the um the decision of the hearings officer or the board that the board would control. And so we were under the they didn't adopt the EC analysis and they said one is not required and we interpreted that to mean reasonably that there there is no EC analysis on the table here. So we didn't address it. Had we thought that it would be we would have addressed it. So if the county meant to include the EC analysis and they should have told us because we can't be expected to come before Luba when they specifically say it's not required then how would we be alerted that we needed to argue about that EC analysis to the board on on appeal. I would like to follow up on um what we believe is intervenor's mistaken interpretation of the EC analysis process. Intervenor and the county appear to be to the extent that they are addressing goal 5. They appear to be looking at this EC analysis as though we were talking about an ephemeral resource like an eagle's nest. As you know the goal five resources can vary significantly and eagle's nests move around. beaver dams move around and so an EC analysis has to be conducted on the spot. If there's a house that's going to be built or an airport in a recent case is going to be built near a new golden eagle's nest. Well, that's going to require sort of an easy analysis on the fly. That's not what's required here. Here, the goal five resource was identified in November of 1992. The conflicting uses were identified in 1992. There's an acknowledged program to achieve goal five for a fixed resource with a fixed program. And as we explained beginning on record of 1073 where we were trying for I believe it was the third theory but I'm not sure where we were trying to explain that the conflicting uses have already been identified and that there already is all you know ordinance 52 and ordinance 33 from the past 92.033 those already have happened and that this has to fit into that. It's not a case where you just start off and start doing an EC analysis is what they seem to be arguing now. Although again, there was no EC analysis in this case. The landscape management zone is much less protective than the plan requires. And if there's going to be a conflict between the plan and the zone, the plan requires vegetative cover. It requires scenic view from the road. The landscape management zone doesn't do that. that all of the the vegetation on the site could be raised and people could buy trees from Home Depot and put them up and that would still sub that would still satisfy the landscape management zone but not the plan requirements in at at policy 4 as we explained in our petition for review. It is not as protective and it isn't a substitute with respect to goal 14. Um again, the intervenor is going to the law of the case from other cases which presumably had facts and had legal reasoning in the county's decision that this board could affirm. Moreover, on although we said this in our petition for review, Intervenor apparently didn't follow what we said. The court of appeals has never accepted this reasoning. They have never shown reconciliation between Lwick and um DLCD versus Clakamus County or Jackson County and the Asetti line of decisions. No decision-making authority, woe is us, has ever done so. Luba hasn't done so and neither has the court of appeals. We would love to get just one, you know, forum, the county or Luba or the court of appeals to do so. the court of appeals, you know, against our strong that it it can't be reconciled with those. And um with that, I will um be happy to answer any remaining questions No further questions from the board. Thank you. That will conclude oral argument. The statutory due date for our decision in this appeal is September 12th. Uh we'll ask the parties agree to a 21-day extension so that we issue the opinion no later than October 3rd. >> Alex has no objection. >> Intervener.", "summary": "Good morning. This is the time set for oral art in central Oregon land watch versus shoots county luba number 2025-034. I'm board chairs moodio. Board members Wilson and Basham are also present. Please mute mute your audio when you're not speaking which will uh limit background noise for us and uh we do not see intervenor on video. So if you're intending to join us video wonderful we can see you now. I'm not aware of any pending motions. Is there anything…", "source_url": "https://www.youtube.com/watch?v=lkGiS6t0Ods", "source_name": "Oregon LUBA", "doc_date": "2025-08-27", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "Oral Argument 2025-008 Landwatch Lane County v. Lane County", "content": "Oral Argument 2025-008 Landwatch Lane County v. Lane County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=HfQlnz4KMxg). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nHi, good morning. I just want to let you know we're going to have a slight delay. So, please stay on the line and we will Okay, apologize for the delay. Thank you for bearing with us. This is the time set for oral argument in Landwatch Lane County versus Lane County Luba number 2025-8. I'm board chairs Moodio. Board member Basham is also present. Board member Wilson is not present, but he will watch the recording of oral argument and participate in this decision. Please mute your audio when you're not speaking. Thank you. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? No. Okay. Thank you. Uh petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Three minutes, please. 3 minutes. Okay. I will watch the clock here and also ask that you keep track of your own time. And intervening respondent, you will have a total of 15 minutes for your response. So with that, uh, petitioner, please state your name for the record and begin. Good afternoon. May I please the board and opposing council, Sean Malone, on behalf of Landwatch Lane County. Uh, two quick notes before I get started. Uh, just some quick typos to correct. page 27 line 15 and page 30 line 14 uh references um the phrase between two properties and that should say between three properties that this this argument is is talked about repeatedly uh throughout. So I think it's it's well understood what's going on where we've essentially argued that there's a the adjustment occurred between three properties when at the time state law only allowed it to occur between uh two properties but on those those uh page 27 line 15 page 30 line 14 I say two properties uh when I meant to say three properties but um to dive into it uh the petition for review addresses a good deal of the sort of history the arguments that occurred below before the hearings official And I did that to sort of highlight that I think all parties were sort of surprised when the uh hearings official came out with this uh notion that the surveyor approved the um 1999 property line adjustment. Um you know the applicant for example had sort of conceded that uh largely that the uh 1999 property line adjustment was uh done unlawfully because it was again done between three properties and not two properties. Uh there's also an argument that it wasn't a common line. It was actually two lines, but sort of depending on how someone views a property line uh in this case. Um again, that's that uh figure six, record, page 12. That's where the um that highlight is. We also included that figure six in our petition for review for illustrative purposes. But again, the county's process in 1999 for property line adjustments. No, I'm sorry. What was the county's process in 1999 for property line adjustments? So, the county did not have a process in place at that time. And that sort of begs the question of that I've been thinking a lot about as a result of this case and some other cases. It's, you know, when when state law required something, you know, a dour uh property line adjustment and the local government had not yet put any procedures in place for that property line adjustment. Um, how does that sort of play out? The way I sort of see that is that the the uh local government kind of hampers themselves in a way because they don't have a process for approving these things yet it still had to comply with state law at the time. So, you know, in a way, um uh local governments sort of help themselves out by um adopting procedures uh early on in that in in the in the process to sort of implement uh property line adjustments and so forth. For example, in the Warf case, I believe it was the Warf case, uh Jackson County, um it might actually be Goddard. Uh I think it was Goddard, um the Jackson County had provisions in place at the relevant time frame. Not that that helped them in that case, but um you know, there there's some sort of So, your argument, I'm just trying to follow it. Your argument is that the county's failure to implement state law by having a local process for applicants to follow then creates whatever happened during that time, whatever c the county approved or processed is unlawful. And so all of those all of those things potentially could then later be in a a legal law verification proceeding found to have been unlawfully accomplished. I suppose my musings on on what happens when a county doesn't implement state law sort of quickly or timely. Um that's just sort of um my musings I suppose. But the problem is that you know if if they had a process in place at the time it would have been tidier I guess or or a little there's no dispute that the applicant in 1999 followed the process that the county did have which was to have a surveyor the county surveyor accept the property line adjustment because there was no no identified process. Right. Well, to say that the the county had a process if there's no identified process, you know, that's a little um uh so interven the reason I'm asking the question is intervenor's response is lawful. The term lawful means that an applicant followed whatever process was in place at the time and that the principle of finality means you don't then years down the road get to say well the county should have done something differently because state law required the county to do something differently so you can't get a legal lot later. So within that, you know, within this this notion of a process, if there were a process, there would have been some sort of review about the actual criteria. That is what is the definition of a property line adjustment. In 1999, at the time, the definition required or allowed for only a adjustment of a common property line between two properties. And so, but there was no process. There was no decision with that determination. And so your argument is because the county did not have a process that looked at the substance of the property line adjustment, these lots cannot be verified as legal lots because of this initial illegality. That's your argument. Essentially, I I always hate to be pinned down to a very quick succinct um idea there, but um yeah, I mean that's that's part of the thing. you know, if you can't if you if you if you don't have a process in place to review the approval criteria, then it sort of leaves whether those approval criteria were satisfied or not sort of hanging out there. And that's the problem here. Same with, right? And that's why the respondent is arguing for finality purposes, whatever error was made in 1999, if there was an error, we don't look behind the surface of they followed whatever process was available to them for finality purposes. That's sufficient. we don't now get to in 2025 look back and say that they should have followed a different process that they should have made some determination that they failed to make. I just am trying to understand your argument under the 1999 process and I think I think that there's not an argument that there was a different process that the person should have followed. It's just that there was no process. Your argument is there was no process that actually implemented state law at that time. Correct. And part of that process again is the review of the approval criteria. Um, you know, this notion of finality attaching to the idea that the surveyor accepted something uh doesn't sit well with me because what did the hearings officer determine about the 1999 decision? They didn't rely on finality, right? They found that there was no violation of the state law at the time. Well, again, the hearings official just sort of looks at was it submitted to a surveyor and that's all that that that the hearings official concluded was I I guess sort of necessary. The hearings official's conclusion about the the what happened in 1999, the surveyor's acceptance and so forth sort of doesn't even take into account the sort of criteria that would have been applicable if there was a process to have gone through. and the the the um the hearings official appears to believe that through that acceptance of the surveyor's uh acceptance by the surveyor that that was somehow a review of the applicable approval criteria but there's nothing to demonstrate that at all. So for example, in this notion of or in this the case out of Lane County Gansen, uh which Lane watch Lane County was involved in, there was there was an explicit sort of indication that the um the building permit official had reviewed the legal lot status of the of of whatever was at issue. Um but here we don't have that some same sort of like review of whether something's a legal lot or in this case it would be review of whether the uh property line adjustment 1999 complied with the applicable approval criteria which is essentially the definition. um essentially falling under this the the Fallon case here where you know in Fallon it was a different they were different um criteria issue but you know there were the same criteria applicable here um but here we're arguing about whether it was you can do three property line adjust excuse me three a property line adjustment with a common property line between three properties when the state law at the time only allowed for two and so Um, you know, it I I I I suppose that's the biggest problem with uh there's two problems there with the hearings officials decision is that it doesn't and that's why we include these sort of inadequate findings because the hearings official sort of makes these conclusions about the 1999 property line adjustment without sort of um identifying or responding or explaining um why that's approved. That's that that's that's approved when it's clearly and pretty much well accepted by everyone here that the 1999 property line adjustment did not comply with state law that it in place at the time that is it was not a dour property line adjustment which is the phrase poll from Fallon which this case in in land's opinion appears to be pretty much on point. Obviously, the other component of that is that there is a um again a a a sort of criteria for a property line adjustment at the time uh that that would have been likely reviewed if a process was in place. And so, you know, that's that's why I sort of talked about this notion of well, when a when a local government doesn't implement uh state law for for, you know, for that that includes a process to review approval criteria, then the local government sort of disadvantages itself in a way because without that process, you're never really uh applying that criteria. So, you're kind of leaving that issue open. But a disadvantage is not just the local government. disadvantages anyone who has sought to gain an approval or gain a review and then subsequent interest holders in that property which is the whole purpose of finality right I agree with that yeah I mean I I think that it's not it's not necessarily I I was just viewing it in terms of you know okay and and we're getting close to your uh the end so I want to make sure you hit whatever other points you wanted to hit yeah and I think I think these are all pretty straightforward You know, Fallon answered the question about the effect of an unlawful attempt at a PLA. Uh what happened to that with lawful status? Dowy answered that with regard to an attempt at a partition. Um so I think you know regardless of whether you're attempting to do something I don't think it really makes sense. The fact of the matter is is if it's unlawfully done and that you know Fallon tells this that that if it's an attempted an unlawful PLA DA says an attempted unlawful partition it's still the same result that you get a an unlawful uh unit of land out of it. And importantly you go to the next the most recent um action that occurred that could affect the lawful status of the property. That's why the the subb um in lane code 13.140 that's why that's not satisfied here because you have to um go to the most recent one. It may have been created by partition a long time ago just like it was in the Leki case. Um but you go to the most recent uh action that could affect it. And here that's that 1999 partition or excuse me 1999 property line adjustment. And um you know the final point I'll make is that you know there's talk of the 2016 property line adjustment but again the the 2016 PLA does not it never looks into uh the lawful status of the properties. It's sort of the converse of the issue that was at issue in in the set case where we're looking at property line adjustments and the respondent said well there was this subsequent legal lot verification. Um, now we're kind of doing that in reverse, but um, you know, the the 2016 property line adjustment, had it looked like had it looked at lawful status, then then that would be a different case here. But it did not because it just looks straightforwardly at property line adjustment issues, which is just an adjustment of a line and and it doesn't affect a lawful property line adjustment only adjusts a line. An unlawful property line adjustment, as we see from Fallon, uh, affects the lawful status. And with that, I see I've used up a bunch of my time here. Uh, and I'll hand it over to Mr. Sal. Okay. And you'll have two minutes for your rebuttal. Thank you. Intervener respondent. Go ahead and say your name for the record and begin, please. Good morning. Uh, if you may please the board, opposing council. My name is Allan Sorum. I represent the intervenor respondent, RNR Holly Creek Corey LLC. Uh I'm going to focus primarily on the issues and arguments that were briefed in our response to the first assignment of error. It's our position as intervenor that um there are multiple bases that are dispositive and that are are briefed in that. Uh I'll start with the 2016 property line adjustment. Uh that was most just uh recently referenced by uh opposing council. Uh in his comments um just now he he said that the 1999 uh property line adjustment decision was the most recent one affecting the um boundary lines of the properties. I think that was just kind of a mistake of you know a verbal miscue. uh the 2016 decisions as as he he spoke to uh are the most current property line adjustments that affected it. They created the current configuration. So, um, as I read the hearings officer's decision on page 41 and 412 of the record, she finds that the 2016 property land adjustments were also reviewed and lawfully approved by the county. Um, with an ultimate conclusion based on that, uh, the mandatory approval criterion LC 13.140 subsection 1A, uh, being satisfied. and and that's the only mandatory approval criterion applicable in this instance and as as a conclusion of law those findings were not challenged um that supports the hearings officer's decision and I think based on Lub's precedent uh that both the first and second assignment of air should be denied on those grounds uh and the hearings officer's decision affirmed uh substantively speaking I would say Uh board chair uh Zamura, your kind of questions and some characterizations of interveners arguments are accurate. Um we think the question is not in 1999 whether or not uh Lane County should have denied their property line adjustment uh application and uh the survey or but you know was it approved uh according to the processes that was applicable at the time? The hearings officer found um based upon the review of the survey, including reviewing the narrative statements um the the obligations that a declaration of the property line adjustment be recorded in the real property records that the county process as it existed at that time was approved. And you know, being practitioners in Oregon for a long time, reviewing, you know, historical county decisions, we know that prior to 2010, uh, property line adjustments existed, you know, and and to say just because there was no codified process, there was no process. Um, I understand the allure of that argument, but it it doesn't really hold true with historical practices. Um correlary would be, you know, up until the 2010s, you know, many local jurisdictions reviewed and approved site plan review when they reviewed building permits. Those those decisions were subsequently challenged saying they should be land use decisions and therefore update your processes and land use regulations. Um you know, but proper line adjustments existed. Sometimes they're they're deemed to be landies decisions. Sometimes they're they're not deemed landies decisions. and in review of Luba's uh case law regarding motions for dismissals. There's a number of cases landing on both sides of that, but that that distinction is not material in this instance. Um, as I can best tell, I think petitioner weighs into those waters with the idea that uh arguing well, if it's not a land use decision, then there's no uh prohibition on a collateral attack. And that that is a a false distinction. um there they're in case law authorities citing uh support of the doctrine of finality. Um both in land use decisions and otherwise. If you look at the applicable context, um we cite the provisions in ORS chapter 34 regarding review. The provisions in RS chapter 197 regarding Luba's review. Uh both applications need to be, you know, filed and reviewed within a timely manner. That didn't occur in 1999. Um presumably it could have been challenged. Whether or not a petitioner would have had standing challenged those decisions in 1999 uh remains to be seen but you know it it doesn't it it doesn't factor in. So the plain text I think of the mandatory approval criterion is is is satisfied is supported by conclusion of law findings and substantial evidence. Um, so I I understand your policy argument about finality and about not reopening the 1999 or the 2016 decision. Did the hearings officer rely on finality and collateral attack in their decision? She relied on the scope like her understanding and interpretation of ORS uh 13140 subsection 1 AI and th that those those findings are on page 411 through 412. Um she doesn't use the the the phrase finality or collateral attack um per se. It's just her understanding as to what quantum of evidence is needed in order to substantiate the local code saying that the the petitioner should not have been obligated to file the the particular type of application on the verification. Um but they went ahead and did so anyways. And so that's when she gets into responding to the analysis of the 99. But her analysis is really what is the mandatory approval criterion require? And in this instance, it was satisfied by providing evidence both of the minor partition plat and in the 1990 um and that the 1999 decision was approved according to the processes as it existed at that time. They also found that the 1999 decision followed state law applicable at the time. So they found substantively that it was lawful. Yeah. She made additional what I I I as I read alternative findings of fact and conclusions law that even if we were to weigh into um the question of substantively was was her obligation to review do that historical review she still would have concluded that the process as it existed and the state law requirements as they existed in 1999 were satisfied. Okay. Okay. So, I think I understand now what you're saying is that implicit in the hearings officer's interpretation of the local legal law verification criteria, they said this is the level of evidence that we look at. This is the level of analysis that we look at. We don't go behind the curtain or behind the approval in 2016 or 1999. This is what the code, the legal lock code requires. It does not require more than that. In your opinion, that is served by the same principle of finality and collateral attack even though they didn't use those words. Is that what you're saying today? Correct. And and I get there as part of you know it it's a plain text conclusion of law by the hearings officer and then when we do our state looking at the term lawfully established. So looking at lawfully established, what does lawfully mean? lawfully in your opinion means did they follow the process and get to some sort of an acceptance or an approval decision and if yes then the legal correctness of those decisions is not at play in the legal lot verification process. Correct. So your argument is that we can rely on the principle of finality and collateral attack by affirming the hearings officer's interpretation of lawfully established as being correct. Yes. Because that context and policy support the textual conclusion of law of the hearings officer. Okay. Um, one thing I'll just note quickly, you know, ORS chapter 92, you know, even existed in 1999, it didn't require local governments to adopt a particular process. So, there was no procedural state law violation as it existed prior to 2010. Um, that, you know, the petitioner argued or or or existed. Um, I I would have spoken to that if that had existed. It was really just a definition at that time. um and a definition of what a property line adjustment is. Correct. And that definition what is between two properties and so petitioners argument is anything that's between three properties is not allowed by state law essentially. Correct. And our case law our prior case law says that also there's a decision uh that's commonly cited warf it's been subsequently uh distinguished by both lube and the court of appeals and the Bowererman case. um originally case uh the exact I know I I have the citation in your brief but I'm asking you to summarize the principle there. Oh um in Bowererman that it was important in the instance it was answering the question um from a land use standpoint the court of appeals said no you can process um property line adjustments between multiple properties more than just two properties. Um, in that instance, how the court of appeals reached its conclusion of law, it was based on subsequent legislative changes in part was part of its reasoning. Um, but but also just in acknowledging and looking at the text of ORS chapter 92190 realizing that there was not kind of this uh cutting of the home rule authority, but property line adjustments were supposedly available to local governments. So they said no, it is not error for a local government at when it's doing its land use process to process multiple private line adjustments at that time. Um there were the warf was not appealed and overruled, but your argument is that Bowererman effectively overruled Warf and so it significantly undercut the reasoning behind Warf. Um, and then your your backup argument is the language of the statute of play at the time was talking about an adjustment between two properties, but that doesn't mean that the county couldn't approve or accept. Yes. Yeah. You only a line is between your argument is a line is between two properties. So, the line is the line, but that doesn't mean that you can only move one line, right? Yeah. Warf was not a ceiling. It was not in intended to remove the authority from local governments to approve property line adjustments with that. Um, you know, it's a it was a floor, not a ceiling. Okay. So then that supports the hearings officer's determination that there was no state law violation in substance. So if we got down to the substance of the 1999 acceptance, your argument is that's also correct. I I mean I would love to see warf overruled. I think it, you know, it it provides some confusion as to practitioners as to what extent it still has validity following Bumman. Um, but, you know, putting my shoes in in in the board, I would um not I would affirm the decision based on the the arguments that I uh spoke to before. Um, but certainly if you get there, that that is our position. So, I unless there's more questions from the board, I covered what I was hoping to cover this morning. I don't think I have further questions. Board member Basham. No, no questions. Okay. Thank you. Thank you. Uh we will res turn to petitioner for your remaining two minutes for bundle. Thank you. Uh first of all, Bman affected the notion of sort of seriality in warf. There's another portion of warf that is unaffected and that's what staff that's what we're talking about in wararf. Uh related to the 2016 PLA. Uh again, it's not that as Mr. Sa said in the very beginning, he said that I said the 2016 PLA did not affect the boundaries. That's that's incorrect. I did not say that the 2016 did not affect the lawful status of those properties because the 2016 PLA just adjusts property lines. It does not affect lawful status. Uh so that's why this is not a sort of uh collateral attack on the 2016 PLA. Again, that's like sort of a reverse issue in the Surret case at slip opinion pages 9 to 10. Um, so your argument there, so I understand it is the 2016 PLA could not have effectively uh remedied any illegality or unlawfulness that existed from the 1999 PLA because the criteria for the 2016 PLA didn't look at the underlying legality. It's just am I moving a line? So there's not the substance for collateral attack or finality is not addressed by the 2016 property line adjustment. Correct. Because it didn't look at lawful status. Yes. Um looking at lane code 13.140 1 A little I double B. Uh it's the double B that uh Mr. Sorum continually omits and that's this notion that well it was created by partition um whenever that occurred. But again, we don't the Leky case tells us, well, you look at the most recent action that can affect the lawful status of the part of the of the unit of land. And so that's what they're not satisfying right there, the the BB portion of 13.1401 AI. Uh, and then the next point is that uh the 1999 property line adjustment was not substantively uh correct or lawful. Uh and we we've reached your two minutes. So, uh we we definitely understand that's your position on the 1999 property line adjustment. Thank you for your argument. That will conclude oral argument. The statutory due date for our decision in this appeal is July 25th. I will let you know in advance. We intend to issue the decision no later than August 1st. Thank you. No, no objection.", "summary": "Hi, good morning. I just want to let you know we're going to have a slight delay. So, please stay on the line and we will Okay, apologize for the delay. Thank you for bearing with us. This is the time set for oral argument in Landwatch Lane County versus Lane County Luba number 2025-8. I'm board chairs Moodio. Board member Basham is also present. Board member Wilson is not present, but he will watch the recording of oral argument and participate in this de…", "source_url": "https://www.youtube.com/watch?v=HfQlnz4KMxg", "source_name": "Oregon LUBA", "doc_date": "2025-07-09", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2025"]}
{"title": "2025-047/048/049 Gould et al v. Deschutes County", "content": "2025-047/048/049 Gould et al v. Deschutes County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=nFeDbSi3KiQ). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nthe impersonal arguments very much and this room was just uh renewed with all of its systems so we're still learning it as well. So I apologize for that delay and technical difficulties. Good morning. Are we rolling? Good morning. This is the time set for 049 Gould versus Dashes County. I'm board chairs Moodio. Board members Basham and Wilson Wilson are also with us today. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention before we begin argument? Nothing from the parties. Okay. Uh please be aware that this oral argument is being recorded and livereamed. The board has allowed overlength oral argument in these appeals and petitioners and intervenor petitioner have a total of 40 minutes and may reserve up to 10 minutes for rebuttal. Have you decided how you'll share your time? >> We're going to do 30 minutes 15 minutes each among the petitioner and intervenor petitioner and then uh 10 minutes on rebuttal also split. >> Okay. >> Each. >> Thank you. >> Yes. Council, did you have anything to add? uh only with the with the podium here. Does the board prefer that we stand sit or do you have a preference? >> The recording will be better if you are speaking into the mic at the podium. So, uh our preference would be that you approach the mic. If you are not comfortable with that, I think the mic is movable and you can take it to your table if you prefer, but I think for the record it'll be clear if the parties approach the mic. Um and respondent interviewer respondent, you also have a total of 40 minutes to share. Have you decided how you'll share your time? >> Um yes. Good morning. Stephanie Marshall, uh, senior assistant legal counsel for Dashuites County. Um, I will be starting with approximately 10 minutes and the remainder of the time will be taken by the applicants representative. >> Okay. And I will keep track of time up here, but I also ask that the parties um, keep track and are aware of your own time as it passes. And uh, with that, whomever will start for petitioners, please uh, or interveneers petitioners, please come up and state your name for the record and begin. May it please the board. Josh Newton appearing on behalf of the Confederated Tribes, the Warmst Springs Reservation of Oregon, intervenor petitioner in these appeals. With me at council table is my colleague, Ellen Grover, and we have some client representatives that I'd like to briefly introduce here today. First, we have the chairman of tribal council, Dennis White. We have in the middle the uh general manager of the branch of natural resources for the tribe, Austin Smith Jr. and we have a tribal councilman uh Raymond Moody here with us today. >> My intent is to deliver remarks for up to 12 minutes unless interrupted and leave time for questions, but I certainly welcome questions. The trib's appeal principally concerns remand issue number three as defined by the county. Before the remand hearing, Dashuitz County issued two notices of public hearing describing the issues that luba had remanded. Both notices told every party that remand issue number three was quote whether the 2022 fish and wildlife management plan violates the treaty with the trib's middle organ dated June 25th, 1855. The parties prepared and argued that issue. County's final decision, however, described its task differently. It stated that it was not asked to adjudicate the treaty. Those two descriptions are difficult to reconcile and that inconsistency explains every error that followed, including first the county's refusal to reopen the record, and second his failure to identify or apply the governing treaty standard. For those reasons, the decision should re be remanded the county for further proceedings. I intend to make three points here today. One, the county never identified and applied the governing treaty standard. Two, deciding whether this approval complies with the treaty is not the same as adjudicating the treaty generally. And three, once Luba remanded, the evidentiary opportunity described by the court of appeals became part of the remand proceeding. Turning to the first issue, the county never identified and applied the governing treaty standard. Here the chronology is straightforward. Court of Appeals held that the tribe preserved its argument that the county was required to consider the 1855 treaty in determining whether the plan satisfies the county standard. It therefore remanded to Luba, the issue of Luba for reconsideration on the merits. Luba then remanded to the county because the county was obligated to make findings addressing the preserved treaty issue. The county's notices of public hearing accurately reflected that remand. And as I noted, they informed every participant issue number three was whether the plan violates the treaty. That is the issue upon which the parties prepared argument and participated in the remand. The difficulty is not merely that the county described remand differently in its notices and its decision. The more fundamental problem is that the county never identified the governing treaty standard before concluding that the plan complied with the treaty. Instead, the county treated treaty complied compliance with its local nonet law standard as sufficient to establish treaty compliance. It's not the analysis remand required. Secondly, determining whether the approval violates the treaty is not the same as adjudicating the treaty. The county's premise is mistaken. Tribes never argued that the county was required to define the full scope of treaty rights under federal law. Nor did the court of appeals. As I have explained, the court of appeals held the treaty issue was preserved and Luba remanded because the county was required to make findings addressing the issue. that required the county to determine whether this land use approval complies with applicable federal law, which here is the treaty. This is a familiar function of local governments in Oregon land Oregon land use planning. Local governments routinely determine whether land use approvals comply with applicable federal law when those questions are properly presented. For example, local governments evaluate compliance with Fair Housing Act, Americans with Disabilities Act, and the constitutional limitations where those authorities bear on the approval for them. Those are compliance determinations. They're not abstract adjudications of federal law. The same is true here. The county was not asked to resolve every question that could arise under the 1855 treaty. It was asked to answer the question identified in its own notices of public hearing. Whether the plan violates the treaty, this is a project specific compliance determination is fundamentally different than a comprehensive interpretation of the treaty. But there's another problem. Even assuming the county understood that it was required to determine treaty compliance, it never identified the governing treaty standard. The trib's position has consistently been that the treaty protects harvestable populations of treaty protected fish. That requires analysis on a species specific basis because a treaty protects individual fisheries, not to an aggregate concept of habitat. The county never addressed that standard. Instead, it concluded that overall finding of no night loss to habitat necessarily established treaty compliance. that substituted the county's local standard for the remanded treaty inquiry. Instead of answering the question, the county concluded that not been asked to adjudicate the treaty. It simply sidestepped the issue. Respectfully, that re reframed remand into a question that no party, no prior tribunal had asked it to decide. In so doing, the county created a false choice that assumed either must comprehensively adjudicate the 1855 treaty or need not consider the treaty at all. The remand required neither. It required the county determine whether this Turning to the third point, once luba remanded, the court's remand instructions became operative. The applicant argues the court's discussion of additional evidence is dictum. Respectfully, the argument overlooks what actually occurred. court assumed Luba might remand the treaty issue to the county and Luba did exactly that. The condition identified by the court was therefore satisfied and the court then explained what the remand proceeding would include. It would include it would quote the court stated remand quote will allow an opportunity for the tribe to present evidence of indigenous expertise and knowledge. The county refused that opportunity. Instead, it closed the record to the treaty issue. It then relied on the resulting absence of evidence to conclude that the tribe had failed to establish impacts treaty protected fish resources. And this is the procedural trap that the tribe has identified in its briefing. The decision maker cannot deny the party a party an opportunity to present evidence, criticize the resulting absence of evidence and then rely on that absence as the basis for rejecting the claim. The remaining errors all flow from the same mistaken premise. Once the county concluded it was not required to identify and approve the governing treaty standard, it first refused to conduct the remand proceeding contemplated by the court of appeals and luba. It denied the tribe the evidentiary opportunity that the remand contemplated and never decided the treaty issued. Instead, the county relied on a mistaken argument of waiver offered by the applicant, burden shifting, and its local no net loss analysis to avoid applying the governing treaty standard and deciding whether the plan violates the treaty. The county relied on future review to establish present compliance with the treaty. Those are separate assignments of error in the trib's briefing, but they all stem from the same legal error. The tribe never identifi I mean the county never identified and applied the treaty standard that Luba reped it to decide. At this point I wanted to talk briefly about the issue of this is did the tribe raise that this is a treaty specific or a species specific standard. Tribe raised this in its intervenor petitioners brief and it was never addressed by applicant or county in any of its briefing. We would direct the board to footnote 16 in the court of appeals decision because it succinctly summarizes the trib's position and why the tribe is here. Why does this matter to the tribe? Court of appeals said the tribe asserted before Luba that his treaty protected fishery right is a resource that is at risk of potential loss or degradation as a result of Thornberg's project which relies principally or primarily on groundwater withdrawals. Those withdrawals the tribes assert the tribe asserts will drain aquifers underlying the project that have connectivity to surface water flows to the continued survival at risk fish species in the Dashuites basin. The tribe doubts Thornberg's proposal to mitigate those negative impacts by buying or cancelling existing water rights elsewhere in the basin will sufficiently ensure that there will be enough water for fish to survive in nearby streams and to ensure water flow and temperature will be sufficient to allow harvestable numbers of at risk species of fish to survive at the trib's usual accustomed fishing places during proper time of the year. The tribe asserts that the latter is necessary to sustain the fishery resource fulfillment of the trib's treaty protected right to that resource. There can be no doubt based on this record that the tribe has been focused at the species level in the 2023 proceedings at luba in 2023 at the court of appeals and again on rebound. The waiver argument simply became a way for the county to avoid applying the appropriate treaty standard to ascertain whether the plan that it was being asked to approve violates the treaty. In conclusion, this appeal ultimately proves presents one straightforward question. Before the hearing, the county told every party that Luba had remanded the on the following issue. whether the plan violates the treaty. The county's decision, however, never identified the governing standard. It instead relied on record closure waiver burden shifting in its own local standard to avoid deciding the issue >> [snorts] >> For those reasons, the tribe respectfully requests the board remand the decision with with instructions to the county to reopen the record to provide the evidentiary opportunity contemplated by the court of appeals and determine whether the plan violates the treaty under the proper treaty standard. Thank you. Happy to answer any questions. >> Uh yes, thank you for your argument. Uh my question my first question is is your argument to was your argument to the county and is your argument to us that the treaty right applies as an overarching federal law with its own independent standard or is your argument that the county is required to apply the county noet loss standard in light of the treaty protected fishery resource. Our position is has been and continues to be that the county can't take action that violates the treaty. >> Is the mechanism through that the treaty as its own overarching law or is the mechanism the no net loss criterion? Our view for this particular application um would be excuse me getting over a cold so I'm but our view for this particular application is the county has to evaluate its local land use standard in a manner that complies with the treaty. We understand that in 2010 the court of appeals determined absent a treaty protected resource the no net law standard can be applied on a systemwide basis. The trib's position is if it comes forward and says there are treaty protected fish resources that issue they have to be evaluated on a speciesbye basis. So they >> through the no net loss standard not as an independent criterion. >> That's right. >> Thank you. And other than the court of appeals decision, is there a legal basis requiring the county to reopen the record on remand independent of the court of appeals decision? >> Our view is that the county code that says that the county has to comply with the instructions of the court of appeals and LUVA would provide an independent basis for that. I think it's >> okay. And was there was there a sustained uh failure or delayed notice procedural error in the prior appeal at Luba or the court of appeals? >> Yeah, so the tribe took the position um in the prior before Luba in 2023 and at the court of appeals. uh and this is uncontested that it was not provided notice of the land use application and didn't become aware of the 2022 application until after the denovo appeal had been appeals had been filed with the board of county commissioners. So the tribe was deprived of the opportunity to participate in the hearings officer process in [clears throat] the fall of 2022 and really had the opportunity or became involved late in the process due to lack of notice. That appeared to resonate with the court of appeals. Court of appeals I think is saying the tribe ought to be able to introduce evidence that it alleges it was deprived of introducing during the prior proceedings. So my question is was there a procedural error uh articulated and sustained? >> No. >> So absent that why is the court of appeals statement not dicta if there's no underlying procedural right? Why is what the court of appeals what they assumed might happen not dicta? Yeah, I think that is a good question and I think importantly I think the way to think about dicta the way I think it's appropriate way to think about dicta is dicta generally applies when third parties are relying on a decision for judicial precedent as opposed to instructions that the deciding tribunal is giving to the parties for future proceedings in that >> what gave the court of appeals the authority to give that instruction if not there being some underlying procedural right. >> So even if even if the county's correct that they absent that language they would not have had to reopen the record. It's your position that that in your your view instructions the county's view dicta that changes the game and now they do have to open the record even if they didn't have to before. >> That's that's correct. A and and one thing to make clear is we when the once the record wasn't reopened the tribe accepted that for purposes of the remand and said okay this is the this is the choice the counties made at applicants urging. So we looked at the existing record and we asked does the existing record meet the treaty standard and in that circumstance we identified gaps in the evidentiary record that shows that even on the information that applicant had provided they didn't consider all the treaty protected resources. They didn't look at this on a species by species basis. So the record itself is wanting it cannot meet the treaty protected standard because at the time that record was created the county and applicant were taking the position that the treaty issue had not been properly raised to the county. >> So even I'll finish up on that. So even if um so even if the court did make an incorrect assumption that the record had to be reopened um is your position that the county should have they should have appealed that to the court of the Supreme Court if they didn't want to reopen the record? >> Yes. >> Okay. Thanks. >> And I I don't want to eat into my to Miss Regger's time anymore. >> Yeah. We would like to ask some follow-up questions, please. Or you could eat into your rebuttal time or you could stop now and not answer further questions. It's up to you. >> I can answer if it's okay. But yes, >> uh where was the species by species argument raised in the initial proceeding? So why would the applicant or the county have known that this was the framework that the tribes were asserting so then to have made findings or presented evidence on that? >> Yeah. In our footnote number two, in our reply brief, we give the record citations for that. And specifically, we reference the trib's petition for review before Luba in 2023. Um, and it's it's the original record 1065. And I can read that exactly what what we say. This is what I think Court of Appeals looked at and nobody challenged. It's on page 37 of our petition for review. Yeah. The original or amended amended record 1065. We say the board of county commissioners cannot conclude as a matter of law that systemwide benefits, whatever that phrase may mean, satisfy the no net loss standard without expressly finding that the plan does not violate the treaty or an Oregon statute. The statute mandates that counties site destination resorts in a manner that's compatible with sight and adjacent land uses requiring among other things that important natural features including habitat of threatened and endangered species be retained. The habitat of ESA listed species is thus not funible and cannot be netted against habitat of non-ESA listed species. Similarly, habitat for fish species protected by the 1855 treaty cannot be sacrificed or traded for other benefits. Nothing in GU 6, which is the 2010 decision, requires a contrary result because the court of appeals was not required to construe the local standard in the context of the 1855 treaty. >> And you're quoting the petition for review in the prior appeal. Is there anywhere in the local record in the prior appeal where that is cited? And is that where you're pointing me to your footnote 2 sites to those places in the local record? In our footnote two, we cite to footnote 16 in the court of appeals decision. In our petition for review, we cite places in the original record where the tribe was focused on a species by species basis. In the in the information that we provided in support, so there were three letters that were submitted by Mr. Smith and he talked about treaty protected fish resources specifically mentioning steel head and and salmon. But the supplementary information that he provided, including the fish passage plan that is was adopted as part of the Pelton project, goes through in excruciating detail the the fish species that are to be reintroduced uh into the upper dashoot space. >> So your argument just responsive and I'm not trying to rush you. I just want to make sure we have enough time. Is that >> that holistic submission arguing about species by species should have put intervenor and the county on fair notice that the tribes were asserting under the treaty requires a species by species analysis under the no net loss standard notwithstanding the prior decision saying it's a habitat analysis. >> That's right. And and one final point and then I will lead. We do believe that applicant in particular is conflating issue preservation with argument preservation. There's a there's a there's a duty to preserve the issue that has been determined by the court of appeals for purposes of these proceedings. We preserve the treaty issue. The arguments about what the treaty requires. There's no statutory requirement that you come up with every argument. We've made the arguments on a species by species basis. It's the only fair reading of the record. And now the county by its own determination says it needs to determine does this plan violate the treaty. How can it do that without determining what the correct standard is? Thank you. And you're at about 21 minutes right now. So just for your awareness and for My name is Jennifer Bger. I represent petitioners Gulib, Bishop, and Lipgum. The county gagged the petitioners in the public in this remand proceeding. The problem started with the county deciding to accept applicants extra record evidence via improper exparte contact to determine the scope of the remand and what the notice of remand would include, which is well briefed by Bishop. The problems continued with the remand notice and the decision to keep the record closed on compliance and treaty matters. The public's voice was further restricted upon entry to the hearing when members of the public were met by staff and this message on a giant poster with incorrect warnings that certain testimony would be prohibited. If Luba looks at the county's marked ER1 through2, staff member Will Groves actually use the word policing as a means to intimidate members of the public and restrict the due process opportunity of petitioners and the public alike. The restriction on public participation was made both as to the economics issue which included new evidence that the general public had never had a chance to respond to and the treaty issue which the county failed to consider in the first goaround. Notwithstanding these procedural errors that unlawfully and unnecessarily chilled public participation, the county did not enforce its rules against the applicant's improper submitts, namely the new evidence that is the 2025 FWMP, which was submitted under expert signature. This submitt was not argument, but rather submitted as substantial evidence by the expert who had advised applicant on the FWMP since 2022. The 2025 FWMP stamped and signed by applicants expert came in as part of the remand on a closed evidence record that the applicant requested. Between the GU brief and Bishop brief, it is obvious that the submitt of the 2025 FWMP was improper. Nevertheless, if Luba were to rule the submitt was valid, the 2025 FWMP represents the collapse of applicants house of cards. In Luba's 2024 final order, Luba held that mere submittal of applications to OWRD was insufficient to demonstrate compliance with groundwater mitigation requirements. At petitioners ER8, the county decision acknowledges its understanding that ownership and cessation is not enough with OWRD application submitting quoted CTWS LUBA 64 to 65. Thus, the county understood that even with all three, including OWRD involvement, there was not substantial evidence without OWRD approval. The new 2025 FWMP is unresponsive to Luba's order. Instead of requiring OWRD review and approval, the applicant now makes OWRD's involvement optional. This does not satisfy Luba's remand order which expressly held the ownership or assignment of a groundwater right and sessation of pumping a groundwater right alone could not meet the county's requirement that any negative impact on fish and wildlife resources will be completely mitigated so there is no net loss or net degradation of the resource that is the no net loss degradation standard >> I have a question about the what you're calling the 2025 FWMP What part of that is new evidence? >> Well, the entire thing, if you look at the front page, there's multiple stamps. This is ER39. It's stamped in um 5126. It sorry, it's dated the dates on the bottom. The last date is May 5th, 2025 as part of the remand proceeding. >> What part of the substance of >> then you go to the section? I understand your excuse section D. >> Excuse me. I understand your argument that the submission and the stamps by the professionals makes this something that is submitted for new evidence. But what part of the modifications is new evidence as opposed to say a modification of the decision itself as in something like new findings. What makes it new evidence? because it's being presented for the first time. The compliance standard for groundwater is being provided for the first time to the public as a new means of meeting no net loss and it's allowing the applicant to say that the FWMP has written means different things now that cross references for existing groundwater rights that would comply with this very compliance mechanism were already resolved which they weren't. Bishop raised that below about the Dutch Pacific water right. Luba nor the court of appeals made any distinction between future or current named groundwater rights. Both said the compliance mechanism doesn't meet the no net loss standard. And so we're we think that Luba should be puzzled about why we're standing here again arguing about the mere ownership and sessation of use. I I have in my thinking I'm separating in two ways. So the first assignment of error or one of your assignments of error is saying the 2025 the modifications to the FWMP themselves are evidence for which petitioners were entitled to submit contrary evidence. Intervenor respondent's position is it's a modification of the compliance requirements that itself is not evidence. What would be submitted in response to that that was not was not able to be submitted counter evidence that those compliance mechanisms are not will not meet the no net loss standard is that >> yes there's all kinds of things we could say about current water standards and if you look at ER65 which is their supposed compliance table this is dated December 31st 2024 it has a lot of information about what the applicant purports to be the status of its water rights. The public had no opportunity to respond to this evidence. >> Okay. Thank you. Uh that answers my question. >> Sure. >> And then um lost my train of thought for my follow-up question on that. Oh, the different differentiation between the existing water rights and potential future water rights. I went back and looked at our decision and the court of appeals decision. It did seem to me that there was not a differentiation when we were looking at the initial compliance provision. My question is on the facts in the record, are there any of those what our parties are calling existing water rights that have not been approved through an OWRD process that are now going to be considered um as existing without any OWRD review? And if so, which ones and where is that identified? That was a compound question, so I can go back and break it into parts if you need to, but do you understand what I'm trying to get at? >> Yeah, I do. And we have a table in the record. It's cited in our reply brief. Um, and it summarizes the water rights as of the original record. There are some new citations in there that were meant for purposes of the economics argument, which was open to new evidence. You can ignore the new citations and still understand that no OWRD approval for these water rights is available. They're all pending or have been denied. So or they're up on appeal. So there is no final analysis, no final determination for many of these named rights. That's why we challenge the Dutch petition. >> So the table that you're referring to, >> I'll get you the number of the of the page on rebuttal. >> Okay. And is that appended to your petition or is that just in the record? >> It's in the record and it's cited in the briefing through cross references. So, >> and just for clarity, is your position that none of those what are called existing rights have been through the OWRD process to a final conclusion or is are there some have and some have not? >> I'm going to look at it myself and I'll give that to you. >> Thank you. I appreciate that. Go ahead. And you're almost at 30 minutes. So if you were wanting to reserve 10 minutes for rebuttal, we are upon that time. But go ahead. >> I'll just say that the compliance issues notwithstanding that we've well briefed the economics issue. You're really familiar with the substantial evidence test. I do want to say that there are grounds for re reversal here. This is coming to you under DCC 223404, the county's remand process. It has its own language about substantial mitigation modification that requires a new application. And it's clear that the applicant is so confused and its experts are so confused that it can't get it right. It's time to start again and look at these issues under current conditions. The tribe just told you they're concerned about their treaty. The public is concerned about wells. It's concerned about the environment. and it's concerned about sagebrush subdivisions and watering golf courses in the high desert in this drought >> Questions? Okay. Thank you. You'll have uh intervenor petitioner. Petitioners, you'll have nine minutes to share for your rebuttal and we'll have the county please state >> Go ahead. >> Good morning. Stephanie Marshall, senior assistant legal counsel representing Dashuites County in this matter. Um I'm going to limit my remarks to uh hopefully less than 10 minutes um merely addressing the procedural arguments. Um I've heard that there have been some questions um of the intervenor petitioner and petitioner on these matters. Um, so I in in our brief we addressed the claims of exparte and bias and uh also touched on the new evidence argument and I'm going to be deferring to the applicants attorney on that one and then the uh goal two argument on public participation. Um uh briefly stated oh shoot it just vanished. um briefly stated uh the claims of exparte uh regarding a letter that was submitted by the applicant. Um that letter actually followed a letter that was submitted by the tribes. Uh pardon me. Uh the letter was received on a Friday and was uploaded the following Tuesday in advance of the publicly noticed uh board of commissioners meeting. um and it was included on the agenda as to what the matter was discussing um at that time and we enclosed portions of the transcript um or quotes from the transcript in our brief. Um there was quite a bit of discussion as to a the remanded matters um issues and b the short uh 120day clock for um for making a decision on remand. >> Was petitioner Bishop permitted to comment at that meeting? I believe that they were permitted to comment. The the meeting uh opened as it always does with a threeminut um opportunity for anyone in the public to come up and make a public comment to the board. Um so I don't know if that answers your question sort of, but I'll I'll think of a follow-up [laughter] question if anyone I I'm trying to figure out. I think the county's position is it's not exparte and even if it was it was disclosed and so petitioner bishop had an opportunity to rebut it or to challenge it. And so I'm trying to sort out what's the county's position on when petitioner Bishop had that opportunity. It sounds to me like what you're saying is they would have known about it and could have commented on it at the start of that work session. Is that what you're saying? >> Yes. And it was a public meeting, not a work session. Um, and and the decision was made actually at the following meeting when they entered the order. I don't have the order number off the top of my head. >> So, just for the record, so we can keep these dates clear, my understanding is that the email from the applicant was sent to the board of commissioners. The county posted that on April 15th and then there was a meeting on April 16th. Then the county's position is Bishop could have known about it to then make that comment at the outset of that meeting. >> That's part of my answer. The other part is that the decision on reopening the record was made at a subsequent meeting and and moreover throughout the entire process >> and what was the date of that subsequent meeting and was that meeting open to public participation? >> Every single meeting at which any of these procedural or substantive issues were discussed were open. There was not a single closed meeting or a secret meeting or anything that was taken any action taken behind closed doors. Um, and I don't know I had I had my brief up which >> if it's in the brief I'm sure I can find it in the brief. >> So the the position is letter was disclosed petitioner bishop had opportunities to challenge the contact or rebut the content of the contact. Correct. Correct. And uh my other point is that it was not substantive. It was really a question of like what [clears throat] all do you want to take evidence on? There are three issues that have been remanded. Um and we've got these one, two, three. And uh my understanding is the applicant said we only need to present evidence on the economic issue. And the applicant has the burden of proof. Um and so their argument was let's just limit it to that. Um and then the board has the discretion and kind of jumping ahead a little bit to some of the questions um the board asked earlier of um intervenor petitioner >> just to stay on the scope of the remand issue you're making attempting to make a differentiation between the substance of the criteria and a procedural decision whether to reopen the record. Is there any legal authority for finding that exparte contact does not include deliberation about a procedural posture that could have an impact on substantive rights of a party? >> No. >> Okay. Thank you. Continue. >> Right. Um, so, uh, the next point I was going to make was because the matter was not remanded to the county for any procedural issues, any goal two issues or any, uh, you've not allowed enough public participation. It was entirely within the board's discretion as to whether to accept evidence on all, none, or one or two of the issues. Um, and I've briefed that as well. Um turning to bias, it's a very high standard to establish bias. Um again, I think that the transcripts uh speak for themselves. There was robust discussion around um you know, a how long the application has been before the county, uh references to numbers of binders, etc. And at the end of the day, um it was probably most compelling the fact that there was only 120 days on remand. Um the rooms were filled with with people that were there to participate to witness. Um the allegation about chilling public participation. Um I you know I'm not here to testify but you know there was ample uh and and robust public uh people in the room and um the evidence was uh limited new evidence was limited to the economic issue. Um and then uh the last issue, yeah, I mean I I've I've pretty much covered uh both goal two and um and also the exparte claims and bias. I don't believe that there's any bias that's been established under the high uh the high uh statements that have been made like uh compelling people to vote a certain way. Um it was really kind of a a statement of we have so much and and shall we take more? I don't think we need to take more. And ultimately the applicant has the burden of proof. Um [clears throat] and then the final note that I wanted to make on goal two is that um the I I wanted to distinguish once more the link uh decision link versus city of talent. um in that case the applicant had modified the proposal and submitted new documentation in support of an admitted application. We did not have that here and and I I was just hearing the the questions that um that you all had for um for the appellants attorney and I will have Mr. um Mr. Gosh Katzarov [gasps and laughter] Mr. Mr. Kro on behalf of the applicant will will further delve into why the FWMP um is not new evidence. So I'm not going to try to address that specifically. Um but if you have any other questions of me on procedure, that's what I'm covering today. And thank you very much. No questions from the board. Thank you for your argument. >> Thank you. Awesome. Uh, good morning board members. My name is Ken Katro and I'm attorney uh a Schwabi Williams Senator Wyatt and I'm here on behalf of the intervenor respondents. I'm going to try to say applicant, but I might say resort or Thornberg. Um, a lot of stuff going on here. Um, before I kind of get into specifics on each assignment of error, I think it might be helpful to kind of uh go through an overview of what the fish and wildlife plan is, how it works, how we got here, because I think that there's a some significant confusion um on a couple of things. Um first as this board I think is aware uh the resort was essentially uh approved as part of its final master plan in 2008. Grab my water. Sorry. As part of the final master plan approval uh the resort had deferred compliance on this no net loss standard um and adopted at that point in time the 2008 fish and wildlife mitigation plan. Um at least one board member here today was present at the same time as that. Um, and what's interesting about that particular plan is it was substantially worse, quite frankly. Um, there's no argument from any of the parties that the 2008 plan is any better than the 2022 plan or what now has been deemed by petitioners as the 2025 plan. Um but what's interesting is is that that plan um authorized Thornberg to offset its pumping of up to 2100 and plus acre feet of water uh through a series of measures uh that were mostly surface water. So COD Central Oregon Irrigation District water um and a particular right from Big Falls and so it provided surface water mitigation for groundwater impacts. It's not actually quite a a a good idea. And in fact, that plan was found to meet the no net loss standard despite the fact that there was a quality degradation of the resource of 0.1°ree Celsius. Doesn't seem like a lot, but it that kind of measurement actually can matter to fish. And so what we did as part of this process was listen to the public and say you don't want golf courses, you don't want as much water use. And so we're going to reduce water use by about a third um and cut uh a golf course and provide some other conservation measures which aren't material um and instead cut the water to a maximum authorization of 1460 acre feet of water. So 30% reduction of water. We're also going to look at how we provide mitigation for that. And so we provide cold seeps and springs water generally from groundwater sources. There's some that's not um but generally then provide uh cold water that get into the system. There's two really big points that have to be made to understand the plan. The first is that the shootutes basin is hydraologically connected for the most part. Uh there's a very robust aquifer uh millions of gallons of water each year is recharged. There is a drought. However, that has not impacted the aquifer and the groundwater that has impacted somewhat surface flows and with particularity uh irrigation district storage reservoirs. And why this is important is that what this record establishes and this gets to a couple assignments of air later about why can't a junior water right holder just pick up this water. But what this record establishes is that OWRD has never, not once, never um uh regulated off somebody who is using a groundwater right or live flow right. So this this idea that there's not enough water and that somebody else can just pick it up is simply not true. There's evidence directly from OWRD in this record that says that. Um, but we have this hydraologically connected aquifer, which means everything that you pull out from groundwater later would have flown into either the Shoots River or the Crooked River, generally north and or northeast of where the resort is. So, that's the that's the first thing. Everything's hydraologically connected. The second thing is that what this plan is designed to do is to mitigate Thornberg's impact of pulling water out of the ground out of groundwater. Okay? And what that does is then um Thornberg can't pull out any water at all. Period. Thornberg can't pull any a drop of water out of the aquifer unless there is an OWRD approval or authorization to do that. Meaning unless OWRD approves something, we can't uh pull a single drop and there is zero impact. Okay? So that's a overarching thing. If we don't use any water, there is zero impact. Period. Okay? Now let's get to how do we quantify our impacts? And so what we did is we used the two best models that exist. USGS's uh GS flow and EPA's Qual 2K. So one of those deals with water flow, quantity of habitat and water. The other deals with quality and temperature. And so we took uh if if you imagine a plane here and and Thornberg sticks a giant straw on the ground and it pulls 1460 acre feet of water out for decades, you create this zone of depress or cone of depression. Okay? And that pulls water that otherwise potentially would have gone into the Dutus River, the Crooked River. And we said, \"Okay, now we know exactly what the impacts are if Thornberg is pumping its maximum allowable right for decades. We know what the static impact is on habitat quantity and quality no matter what.\" And then what we did is we looked at this suite of water rights that's found in section B of the FWMP. It's I think six different things. They said, \"Okay, if instead of using those rights in the places that they're currently uh a pertinent to or appropriated from or we cut off their straws, what impact does that have?\" We said, \"Okay, well, if we cut this straw here, well, that that water flows in there. If we cut this straw here, then it flows in there.\" And so what we found, what the experts found in dozens of technical reports that were analyzed during the last process and could have been analyzed by everybody else in this room or every petitioner is it said okay if you take all of those measures you meet the no net loss standard you have no negative impact in fact what the uh biologist uh said and I didn't the right one was essentially that in all reaches of the river you have a net benefit sorry appear to be a net benefit for both fish quantity and quality at all sites evaluated and will result no net loss for habitat quantity and quality. That's all reaches of the river. Um and so that's important and that's all throughout the plan. There's several other places in this plan that say um and I can cite you right to him er 58. More importantly, the FWMP has accounted for the maximum amount of of pumping that could occur of 1460 acre feet and is providing mitigation that meets or exceeds no net law standard. There's multiple examples of that in this plan that quite frankly weren't appealed in the last goround um and yet we're still talking about it today. So the second part that's really interesting or really that needs to be understood and it's been very much confused is that suite of water rights uh represents about 1300 acre feet of water and yet it mitigates for 1460 maximum pumping. Okay. And the reason it does that is we've talked about OWD having this overarching umbrella in the Dashuites basin. In order to use a drop of water you have to mitigate on a onetoone basis. If we want to pull a drop of water out of the ground, we have to put back a drop. Okay. However, for no net loss fish mitigation to show that there's no impact, we've done it with this suite of rights already. Okay. And that's what all of the science says, the plan says that was not upset on appeal. Okay. However, we have a problem as the resort. We have a slate of uh water rights or credits. That 1300 acre feet that I was talking about also includes a TSAD mitigation project that's already completed. But in terms of what the resort owns, it's about 1,200 about just above 1,200. And assuming OWRD lets us to lets us use all of that water for mitigation, that still leaves a supply gap. Thornberg has a supply gap of about 243 at least acet of water. And that assumes we have full buildout, which could take decades, um, and that we are pumping that full amount of water. It may never occur, but right now we have a supply gap. That's what the quote compliance measures um deal with is how do we qualify what rights we can use for supply. It has nothing to do with the no net loss fish mitigation standard, which means quite frankly it's irrelevant. At worst, it's it's harmless error. So what did we do on remand? Because this is really important. What we recognized was that Luba and the Court of Appeals was concerned with particularity of actually providing fish water. So what we did is we took the science, everything that was in the record um and that wasn't challenged and wasn't upset on appeal and said, \"Okay, you have this suite of water rights and the suite of measures that meets the no net loss fish mitigation standard. Well, how do we ensure that that water is actually being put in the stream or left in the aquifer? And how do we let the public know that?\" said, \"Okay, we are going to adopt a new table that requires a uh water right by water right, time by time, when we're taking it, where we're taking it, etc.\" And that has to be reported to the county and to ODFNW. [clears throat] That was not a requirement before. There was a reporting requirement, but it was loosey goosey. Okay? And so instead, we adopted a specific table that deals with it. That's not new evidence. That's a criteria that we say, okay, we're adding this to try to meet our no net loss burden because people are concerned about whether or not we're leaving that water uh in the aquifer or not. This now specifically requires it. If you look at that table now, it says Thornberg is not pulling any water and yet it's currently providing that 1300 plus acre feet of water benefit. So, it's currently mitigating no net loss mitigation, fish mitigation despite the fact that it's not pulling any water. The second thing that we did and and that's essentially overlooked by petitioners. There's like I think one paragraph in their brief about the reporting requirements. The other thing that we did which is substantial in my opinion is we adopted a new condition condition 41. And what that condition says is if you change this mitigation, if you change it, we have to come back for a public process. That might not seem like it's a big deal. You're modifying the plan. You have to come back. But it is a huge deal because what this says is if OWRD doesn't allow us to use it for water mitigation for supply mitigation doesn't we can't change it. We can't just sell that water and try to get something new. That mitigation has to stay there no matter what unless we want to go through this whole process again which I'm not hopefully I'll be retired by then um if it ever happens. So I'm pretty young at least I think. Um anyway, so the point is is that there's overarching parts of this plan where Thornberg can't pull an a single drop of water without OWRD approval. However, it has already provided this suite of water rights that provides fish mitigation. And there's lots of language in uh the previous decision from that that recognizes that there is a difference in between supply mitigation and fish mitigation. There's also language from Luba and I'm looking at page 50 slip opinion of the decision. um in page 51 that says the county can and in fact did properly found substant find substantial evidence that this is providing fish mitigation and it it didn't require an OWD process. It instead looked at the evidence of pumping, evidence of use, all of those sorts of things that said there is wet water here. You're providing the mitigation. Again, that was not challenged these portions of the plan or uh and that finding was not upset on appeal. So, it's the applicant's assertion that a no net loss standard has been met by providing this water and that when we're talking about compliance, this is why I'm taking so much time on this. We are instead talking about the gap in supply future water rights. And that's what the plain language of the plan says. And if you look at the court of appeals decision, they also recognize it. They also talk about how this was in fact a supply gap that there this 243 acre feet um and that this relates to future water rights that are to be used for appropriation. That's what the plan says. I.e. for use. Okay. So those compliance measures have again nothing to do with no net loss fish mitigation. They instead talk about if we need to fill that supply gap, what we do to get those. And so Luba asks >> I have questions. You're going really fast and covering a [laughter] lot of information. >> A lot to cover in a little bit of time. >> I'm just going to reiterate the same question that I had to petitioners and I'm looking now at what is section B of the FWMP which sets out um a bunch of different certificates. I think there's like seven of those, maybe more. >> Six or seven. Yeah. >> Yeah. Are those have those all been approved by OWRD processes? >> We've included in our brief um a a table that discusses each one of these and where they are in that current process. Um again, what's what's more important is that that mitigation that what the experts have said and what wasn't appealed is that that water is there and and Luba made those findings actually that it would be reasonable for the county to determine based upon the pumping records etc. Even ODF and W except ac except >> did the compliance requirements that were challenged successfully challenged in the last appeal apply to those seven certificates or only to the gap water >> only the gap water and that's what the plain language of the compliance provision has always said is that for new water rights for additional water rights. Okay. So your argument to the county and the county agreed with this, your argument to us is it's already been decided that those seven certificates are adequant evidence that that water will be used for mitigation and that that decision is already settled. So that's not an issue in this appeal. >> Yes. But yes, >> we have added additional measures and that's the specific reporting requirement that goes on a water rate by water rate update by update which also includes us um having to to tell people what the uh status is of each of those rights and where it is in the process. But in the meantime, that water is still being placed in the aquifer. And even if OWRD never were to approve one of the actions, that water still based upon this plan has to stay there and we can't change it. >> Okay. And I'm I think I am being dense at this point, but I want to make sure that I understand. In your brief, you quote our prior decision where we say, \"Given the record as a whole, a reasonable person could conclude that the water rights transactions proposed in the 2022 FWMP will result in no net loss to fish habitat based on quantities and quality of water modeled based on the listed water right certificates. And that is on your page uh 8 of Pinnacle intervenor response briefs in response to Gold's petition for review. And that's a citation to our prior decision at slip op 53. >> Did that conclusion depend on those proposed water transfers being processed and approved by OWRD? >> Absolutely not. >> Was that argued in the prior appeal? >> Uh whether or not it that those have to be uh required. >> Yeah. Or that they couldn't be that that couldn't be accomplished. the OWRD approval was required or that OWD approval couldn't be accomplished. >> Argued before because that Luba's finding in that on that particular piece related to Dashuites County well to our assertion in the previous proceeding that the county could just rely on water rate certificates as having the proper amount of wet water and and we said no we did a lot more than that. We provided substantial evidence of pumping rights etc etc used photographs yada yada yada and the county then determined that that was enough to show that that water existed. Luba didn't make a ruling based upon whether or not water rate certificates on their own were evidence of sufficiency for wet water despite the fact that that statute says it's conclusive. Um it what Luba did is it said we're going to look at the alternate findings which said we looked at all of the substantial evidence and it would be reasonable to conclude. >> Does that make sense? >> Yes. Thank you. >> Okay. Any more questions on this issue? Okay. Okay, so that kind of hits the compliance measures. Um, again, we plain language of the plan has always been that that's for additional water rights, the gap, the supply. I I'll say one last thing about this because it may or may not be relevant and it kind of gets to the tribe's third assignment of error, which is uh if we look at additional supply rights under these provisions, the tribe asserts that those have to go through their own no net loss uh review procedure. Again, we've already shown what the total impact of Thornberg is. And so if we if we find another right that uh the resort wants to purchase and stop using in a location, that just adds more water, okay, into the whole system. And if instead they use that for mitigation and they're drawing down, you know, Thornberg's uh cone of depression, it's the same impact. And so uh supply rights are it's a it's a different thing. It doesn't impact no net loss. um that has already been met. Um, additionally on that, just because I hit the tribe's third assignment of error there real quickly, that is a contrary to the opinion uh of the board of county commissioners, which is it's a net. We're looking at net measures. Um, and it wasn't an argument that was preserved or brought forth before. So, I'll just say that. Um, I'm going to kind of go through the rest of Gould, I guess. >> Can you just say that again, what you just said, so I make sure I understand what what your point is. the the there's there's two things. One, that argument wasn't raised before. Uh and the second thing is is if in fact we do a you're talking about the trib's third assignment of error. So that argument wasn't raised before. We submit that it's not preserved. Um and and they want a a water right by water right no net loss analysis. This is a net issue. Okay, we're looking at the whole plan, but factually what what the uh experts have shown is that we've already met the impact burden. Okay, we know what Thornberg's impact is. And because of that, if you instead stop using a different water, right, to help mitigate for supply, you know, so again, think about our big straw versus a different straw and we're cutting that straw off, that just leaves the water in that place, adds more to that system. Okay? So, we're not actually adding any more impact. We know what the impact is from Thornberg. And what is conclusively decided in the last uh goround uh is that we only have to we only have to mitigate for Thornberg's impact. So the uh issue related to drought uh or or whatnot that was at the very last second brought up by Miss Brager. It's a settled issue. We we are not mitigating for other impacts. That is closed closed closed closed. Um okay. Sorry I got off track. I want to stick with the tribes species by species argument. I understand I think you have two responses to that. One was that was never raised in the initial proceeding and under Becket issues that weren't raised and could have been raised in initial proceeding you can't then raise on remand. Tribes argue that's slicing between issue and argument too thinly and that we should look at what the court has a court of appeals has already determined and is binding on us that the issue of the treaty rights and whether this application violates treaty rights or harms the treaty rights is an issue that was preserved. Why is the species by species uh analysis or or standard requirement not just an argument under the treaty right? Why is that a new issue? >> Well, it presents an entirely different standard than what was uh asserted before. Okay. So, I have multiple answers to that. I'm going to start with the court of appeals because I think that's an important issue here. So what the court of appeals said tribe raisin their first assignment of error is that uh luba aired in agreeing quite frankly with the county and us that uh the trib's uh treaty right was not adequately preserved. They came in and they said we have a treaty right. We argued that it was not properly preserved that they had argued that you have to make this determination within the standard of meeting the treaty right. Court of appeals said they did enough. You you should have been on fair notice. Okay. That was the first assignment of error. And so, Luba, you aired because uh they raised it enough. The second assignment of error, and I'm I'm getting to this on a on a long way because I think it matters. The second assignment of error was the county gave short shrift to indigenous knowledge. Didn't consider it enough. And the court of appeals said, \"No, we're rejecting your argument. It's a it's a substantial evidence issue.\" Luba applied the substantial evidence test correctly. County did fine. Good to go. So, it it agreed with them on the first time of eron preservation. and it disagreed on on the second assignment of error. And then at the bottom of that in Dicta, it then said, you know, if the county or sorry, if Luba if not a predetermined, Luba could have made its decision there. Um if uh if it's remanded, then they may have an opportunity to provide new evidence. Okay. And so what then happened is really important, which is Luba issued a new final opinion and order. And what that final opinion and order said was the county has to make uh quote on judicial review the court of appeals agree with the tribe that the issue was raised below. The issue was raised below sufficient uh specificity. So the county was obligated to make findings addressing it. Make findings addressing the treaty right didn't order um us to or the county to reopen the record or anything else. This was an appealable order. If the tribe thought that Luba's remand was insufficient, that it instead needed to say and the county must reopen the record or accept new evidence, which Luba has done previously, and the tribe was bound to appeal this order. It didn't do so. Okay. So, I I think that's material because they've um >> I understand that argument doesn't really answer the question I'm asking is petitioner or the tribes are saying the issue of the treaty is preserved. your argument or the county's conclusion that the species by species analysis was waved is cutting between issue and argument too thinly. And what our our answer to that is and it's it's briefed is that the issue of the treaty right was previously raised as an issue to under its fishing clause of a right to harvestable fish and everything that was cited by the tribe previously was a habitat standard and direct acknowledgement and authoritative citing to the court of appeals decision on the no net loss standard which said this is a net habitat standard and not a species by species analysis. That's what the tribe and every single submitt below said. Now, what the tribe is trying to argue now is that because it submitted its fish passage plan that that somehow put up put the county on notice that it had to do a species by species analysis despite never actually articulating that. Never saying [clears throat] that that just because we put in other plan documents that oh by the way the court of appeals rejected as things that we needed to consider as part of our mitigation that that somehow put you on notice of this new standard. And again, as we pointed out in our brief, and I went by submitt by submitt that was submitted by the tribes was never raised. And in fact, what was authoritatively raised was this was the court of appeals decision on the 2008 FWP that said this is just a net habitat standard. So when the tribe comes in and says it's a habitat standard, right to harvestable fish, which is a habitat standard, that's what they said. Now they come back and say you need a species by species analysis, that's completely changing uh what the applicable criteria is. And this happens all the time. Um, I'm going to use the Redside case as a really good example of that. The the the petitioners in that case came in and said, \"We it's the same rule, but we're going to advance a brand new interpretation of that rule.\" That's what they're doing. They're saying, \"We have a brand new interpretation of what our treaty right is despite not providing any citation to it, to the treaty, to any other applicable law.\" And what we said is, \"Hey, this is what you said before, and this is what the other federal case law says. So now we're expected to do a species by species analysis. That's not fair. You didn't you didn't say that before. It's a completely new standard. It's waved. Our second response to that, which is also in these briefs, is that they said at worst you have to meet bare minimum uh ESA, endangered species act protection. And so what we've provided in there also is a table that says okay you've to the extent you've provided any information as to what species you're even concerned with. We've met those and we took those standards from the HCP which they included in the record and said okay these are the minimum flows that you're concerned with in the HCP. Oh look the FWMP more more than meets that. And so we've kind of done a >> Did the county find that or you're just pointing to evidence that the applicant submitted? uh we're we're we're pointing to evidence that the applicant submitted in our brief. So basically it's uh you know they're saying you have to meet that at a bare minimum and we did meet it. And so what the county did is the county said okay you said this is a a habitat issue and we've already determined that there's a net benefit to all habitat all habitat quantity and quality. So, how could we be degrading your right to harvestable fish, which is a habitat standard if we've already determined that all reaches have a benefit? It's log. It doesn't make any logical sense. And so, that's what the county did. The other part is is that the tribe is arguing that we have to provide what the treaty standard is, but we don't even really know what it is because they're saying it's a species by species analysis, but they haven't told us what species they care about or what reaches they care about. And what the county did uh make findings on and did include as well as we did in our brief is at least two cases that say that any any party that's asserting a treaty right at a bare minimum has to show has to tell you which species they're concerned with and how it actually impacts them, how it impacts the customary fishing areas. They didn't do that. They didn't even attempt to make it attempt to do it in the first proceeding. And despite the fact that the record was closed in this proceeding, they could still have said, they could still have said, and this is all throughout Lewis case law file, they still could have said, \"We want to provide evidence as to how Shinnook are going to be specifically impacted in this area.\" And the board of county commissioners could have said, \"Okay, we'll reopen the record so that you can do that.\" They didn't do that. There was no claim that they could provide additional evidence. And quite frankly, there's no claim of prejudice. So, we've we've well briefed this. Um, but I'm I'm hitting on it because you asked the question. >> Yeah. >> What's your next question? Because I only have a few more minutes. >> I'd rather get your questions than hear myself talk about kind of thing. >> Yes. The question I'll pose to you the question that I had for petitioner's attorney about their characterization of the modifications of the FWMP as evidence. >> I mean, it's essentially a legal blackbox argument. It's we you are required to uh address the compliance issues by luba's remand and yet if you submit anything to actually do that that's new evidence and you you can't actually get out of that box. It's not new evidence. We address the compliance provisions period. It's new applicable criteria. It's new legal requirements that we have to meet and the county determined that we met them based upon the record that was before it. Okay. It's not any change. I I think that the the premise that putting a new engineering stamp on the exact same document with like four words changed is new evidence is just kind of ridiculous. I mean, nothing else has changed. None of the substantive measures have changed. None of the impacts of the resort have changed. We haven't done anything else. We've just said, \"Okay, you have to do more to meet compliance.\" That's that's not evidence. And then the argument that the compliance table that is filled in contains new information on the status of I think they're saying disputed information on the status of the OWRD approvals for those rights. Why is that not evidence? >> Well, it I think it could be if I'm if I'm being honest what is on this table there are there is information about the current status but the board didn't make any findings related to it. What the board said is we want this table as a format for you to fill out each year and provide to us and OWRD and that that will show that compliance is being met because you're showing what water is being kept in the stream and where. And so it was a format. Here's the table you must use. Before the only requirement under condition 40 was that there was reporting. It didn't mean anything. And so now we're saying you have to make specific uh pieces in here which talk about each water right where it is in the process how much water is being left in and the amount of water that Thornbury is using. So it's a it's >> so your your response to that is because the county did not rely on that information any procedural error in not allowing petitioners to submit responsive information is harmless error. Is that your argument? >> That's that would be part of my argument. My second part is is is petitioners have argued for years now that none of these water rights are valid and that none of Thornberg's water rights are valid. And so, you know, they've already responded. Quite frankly, the point is is that the plan says that if we take these measures, it meets the no net loss standard. It doesn't matter whether OWRD approves fish mitigation. The decision last time was also that OWRD approval may provide for fish mitigation and it may not. and in and what we've said is yeah OWD approval for fish mitigation itself doesn't matter what matters is that the water is being kept in the stream and we're showing that it does and that's what all of the expert opinion is what matters for OWRD approval is supply and that we can't use a single drop of water unless there's OWRD approval and so OW approval is something that we rely on in order to get supply and if we never get approval for any of the any of the measures in here which would allow Thornberg to use those rights for supply. It doesn't matter >> questions for Okay, I don't think we have any other questions. >> I think I have one minute. >> You do. Go ahead. >> Um I'm trying to decide if there's anything I want to try to hit for one minute. Um I guess I'll hit on a on a wide path of the e economics issue. Um it's a substantial evidence issue. Um bottom line is uh the the the uh reporting uh looked at the resort with the change the modification of removing a golf course and the and the county properly found it still provided substantial benefit. That's what it needed to do. Um I had one other thing I wanted to say. Can you hit on the argument about the wage evidence not accounting for inflation and why that is not does not make the wage evidence evidence that a reasonable person would not rely on to find an economic benefit? >> Um I we we briefed and the county made substantial findings on all of that. I I I off the top of my head I I believe it did actually account for inflation and the county made findings related to all of the economic issues including wage. >> I think your brief pointed to evidence that there was an increase in wages but not adjusted for inflation. >> I'm not sure what I can say is that the standard as a whole is whether the the modification the change the changes made still makes a substantial benefit and the county certainly made those findings >> and we're at time. All right. >> Thank you for your argument today. We will return to uh intervenor petitioner and petitioner for rebuttal and you'll Okay. Okay. Uh, record 2650. >> Will you please restate your name for the record? >> Petitioners, >> thank you. Go ahead. >> The public may not comment on any topic. So, record 2652 is the agenda for these work sessions that Miss uh that the county said Bishop could uh participate in. The very first page says the public may comment on any topic not on the current agenda. Record 2654 has action item 10 which is this item. Bishop had no opportunity to participate. Um the table that uh chair Zamoodio asked about is on record 1227 through 1229. Uh there's a brief summary on reply page four of Gul's reply. This speaks to the BFR right, which is right B, the tree farm temporary transfer, which is right D, and the Dutch Pacific, which is right E, which petitioners have always raised. None of those have been approved by OWRD for for use on the site. The original and said and and this is uh expert Newton's response that said during such a review by the OWRD the water right in question must be a certificated water right suitable evidence to prove use and availability will be questioned and investigated and a decision made regarding suitability for mitigation. This was again cited by luba at 64 to 65. This is means that OWRD review and approval is required. The cross petition before the uh court of appeals at record 797 to 798 and the court of appeals denying ownership and cessation at 387. The drought issue I raised at the closing of my opening was in relation to the economics argument. Again, no offsets were considered by JBREC. And when you go back to the table at 1227 to 1229, there's updated information about these water rights that mean there's going to be competition for scarce water supply. And then I want to note for sure that applicant is again rewriting the FWMP in briefing inserting OWRD before the word assignment. So if you can tell me what the O the FWMP means then that would be great. But until then this decision should be reversed so we can look at this issue holistically and I'll leave the remainder of the time for the tribes. >> I have a one more question about the exparte letter. Clearly, there's a dispute about the opportunity to rebut or respond. Your position as petitioner Bishop did not have an opportunity to rebut or respond prior to the board of commissioners decision on the scope of the remand. Mayor Police Board again, Josh Newton on behalf of the Confederated Tribes of Warm Springs. As a preliminary, I' I'd just like to object to applicant council's summary of the plan to the extent that believe portion of the summary is not supported by the record. I just want to make a general objection. Um, I want to talk a little bit about process then I want to try to bring this down to why does the tribe care? Because if you if you believe applicant, everything is good. The plan actually results in a net benefit systemwide. So why does the tribe care? And I want to leave you with that. First of all, if I understood county council correctly, reopening the record is really at the request of the party that has the burden of proof. That's what I think I heard is why they reopened the record on the economic analysis because applicant has a burden of proof. They felt they needed more information on remand to put into the record and it's a contestable issue. And yet applicant and county are on now taking the position that the tribe actually has the burden of proof to show a treaty violation. But it doesn't give the tribe the same rights that it gave applicant in terms of reopening the record. And we disagree that the tribe has the burden of proof here. It's the applicant. But the county can't have it both ways. They can't reopen the record for applicant. If applicant has the burden of proof and then tell the tribe it has a burden of proof. But it's not going to reopen the record because applicant says no. That seems that that comes back to the procedural trap of what they haven't figured out. Applicants council's argument, the majority of the argument as I was trying to get to my notes, I think was almost exclusively focused focused [clears throat] on compliance with the local county net loss standard. Applicants council didn't grapple with the treaty standard. It chided the tribe a bit here and there for saying that we invented a new standard. We came up with a new standard for the first time on remand. But if you honestly put yourself in the position of the tribe who didn't have notice, who didn't get to participate in the hearing officer proceedings in 2022 and comes in at the denovo appeal and has less than 30 days to try to understand this fish and wildlife management plan, which I'm sure the board members would say that's a tall order. The tribe was telling the county, \"We don't have time. We have expertise and resources on staff. We can't marshall them in the time frame you've given us. We can't put forward our concerns about our treaty protected resources. That resonated with the court of appeals. That's what the court of appeals were getting at in its decision. That's when it looked at if the remand is going to go back. It recognized that the tribe is not only a treaty right holder, it's a sovereign co-manager of the resource the basin. There's no other party in this room that is that. The only other party that could claim that is ODFW. The tribe is not a project opponent. The tribe, its leaders, and we're charged with helping protect the tribal members treaty protected rights. What does that mean? And how can we put that into relief? Because we hear all this NE and everything is great, but it's it's probably not in this way. Suppose for the sake of argument that this goes forward. Thornberg builds out in its groundwater pumping manifests a specific measurable impact to the lower crooked river in a time of year when treaty perfected protected fish are migrating through either up or down and cannot complete their life cycle. They're killed. Those fish are undeniably killed. Now, I suspect that Thornberg and his council will say, \"Well, it really doesn't matter because we're actually improving fish habitat throughout the basin, but they don't distinguish among fish habitat. That fish habitat may be non-native browntout fish species in the upper dashes. It may be fish habitat above big falls or salmon falls on the middle dashes river, which is a fish passage barrier for the treaty protected anatomy. So you're sacrificing at that point the treaty protected anatomy and saying well it's being offset with this fungeible other habitat benefit that is not that can't be the outcome here. That puts a that puts [clears throat] a federal treaty right subordinate to a local ordinance. If the federal treaty right says you cannot harm those treaty protected fish in lower crooked river and you're harming them, you can't say, \"Well, the invasive bass species or the perch in Lake Billy Shinook are really doing well, so all is good.\" Yet, that's what the county standard allows. That's not what the treaty allows. And I suspect applicant knows that. And I also suspect that applicant knows that is going to be a difficult thing to grapple with. But that's the law. What what the tribe can't understand is why the county is going along with this. The county framed the issue at the outset of the remand proceeding and said we need to determine does this violate the treaty and then they shied away from it undeniably. >> What is the what is the legal foundation for the standard that you proposed for the species by species analysis required by the known net law standard? the treaty itself. >> Has that ever been interpreted to be applied on a species by species basis or would we be interpreting it in the first instance that way? >> Um yeah, I think it's been interpreted on a species by species basis. >> Are there citations to that in your uh brief on where that's happened? >> Well, members of I will say this that in Oregon the notion there are only treat two treaty tribes in Oregon. Warm Springs and Umatillaa. And to our notion, to our understanding, this is the first time either tribe has put their treaty fishing rights at issue in a state land use proceeding. We think the closest that it that we can come to is the actual court of appeals decision in this case, which recognizes that we have a right to a harvestable population of fish. And that's actually conceded by the county. >> Thank you. And we've reached nine minutes, so I think that's a good place to end. Thank you for uh your argument today and thank you for responding to the board's questions. Uh we will take all of the briefing and argument under consideration. The statutory due date for our decision in this appeal is July 13th. Uh we'll ask the parties for an extension so that we can issue our decision by August 3rd. And I will just say I think that's a very optimistic [laughter] deadline to present but we will ask the parties to agree to that. Is there any objection? >> No. >> Okay. Thank you. Um and that will", "summary": "the impersonal arguments very much and this room was just uh renewed with all of its systems so we're still learning it as well. So I apologize for that delay and technical difficulties. Good morning. Are we rolling? Good morning. This is the time set for 049 Gould versus Dashes County. I'm board chairs Moodio. Board members Basham and Wilson Wilson are also with us today. I'm not aware of any pending motions. Is there anything that the parties need to bri…", "source_url": "https://www.youtube.com/watch?v=nFeDbSi3KiQ", "source_name": "Oregon LUBA", "doc_date": "2026-07-02", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "2025-085/086/087 2026-001/002 Schaefer et al v. Marion County", "content": "2025-085/086/087 2026-001/002 Schaefer et al v. Marion County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=AnVe07GqhtA). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Mhm. Okay. >> Yes, I am. >> Thank you. We can't see everyone on screen, so >> Yeah, no worries. There's a lot of us. >> Good morning still. This is the time set for all argument in Schaefer versus Marion County Luba numbers 2025-085, 086, 087, and 2026-001 and 002. I'm board chair Smudio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision. Uh this oral argument is being recorded in live live stream, so please mute your audio when you are not speaking and that will help with our recording. And as pending matters, we have petitioner Schaefer's motion to take official notice and a motion to file an amended decision for review and uh responsive oppositions to those motions are pending and the board will resolve those in our final opinion and order. Uh by an order, we extended oral argument in this matter to a total of 1 hour. The petitioners will have a total of 30 minutes. Um have you decided to share your time differently than what we set out in our order? >> Um yes, uh Joseph Schaefer, petitioner here. Um I will go first and take five or six minutes. Uh then Mr. Mulkey will follow and then uh Ms. Gail Hinman will follow. Uh we propose to take 20 minutes for our initial argument to reserve 10 for rebuttal if that works for Luba. Uh perhaps it goes without saying, but Mr. Robinson and Ms. Rodenfield as I understand it are planning to waive oral argument. >> That's correct. Aurora will waive oral >> Sorry, can you say that again, Counsel Robinson? That was cracking up on our end. >> Aurora will waive it's time for you, man. >> Okay. Uh I I understood that Aurora, City of Aurora will waive their oral argument. And petitioner, um Rodenfield, are you here and are you also waving your oral argument? >> I am and I'm waving oral argument. >> Okay, and if the board has any questions specific to you two, we will ask those. Um, our rules provide for up to 5 minutes for rebuttal, but given the number of parties and appeals here, I'm okay with the way that the parties have decided to submit their time, so we'll proceed um with that. Ask you to keep track of your own time. I will keep track of the entire 20 minutes, but won't uh intervene to divide your time. So, please ask that you be mindful of that. And then, intervener respondent's attorney and respondent, you'll have a total of 30 minutes for your responsive argument. Um, have you decided how you'll share your time? >> Yes. Uh, your honor, Wendy Killington representing all of the intervener respondents. We will be presenting the oral argument entirely. We're not splitting our time with the county. >> Okay, thank you. So, um I think county is present if we have questions. Otherwise, intervener respondent will respond on behalf of all intervener respondents. >> Um, that's correct. >> Which is no no small thing, counsel Killington. You have a large job in front of you here. >> Thank you. I know this. >> Um, so with that, uh petitioner Shafer, you could go ahead and state your name for the record again and begin, please. >> Joseph Shafer, petitioner. >> Go ahead. >> The governing The governing precedents for airport-related commercial and industrial uses on EFU land are all in place in county ordinances, LUBA orders, and Court of Appeals opinions. The response briefs allege failure to challenge all findings, but the findings rely on three false premises which were repeatedly challenged. Number one, this was approved in 1976. Number two, this is a public use airport Number three, there are no commercial industrial or manufacturing uses. >> [clears throat] >> First, nothing was approved in 1976. The HTS ordinance said the properties are not within the 1976 boundary. That's record 6077. The court of appeals said that at 318 or app at 620. LUBA's three prior orders for this site do not even mention the 1976 plan. The only comprehensive plan designation is primary agriculture. And you can see that in finding number Second, >> [clears throat] >> for the HCS heliport, the county refused to apply 3N to a private development because it was not a transportation improvement. Such as the public runway in Lentz. That's also record 6077. This decision is also a private heliport without public airport improvements. LUBA must give effect to the open to the flying public definition of a public use airport. The actual findings do not cite any evidence or explain how evidence shows this heliport is open to the public or any other aspect of this site is open to the public. To analogize, if you have friends over for dinner, they are itinerant diners. That does not make your house a restaurant open to the dining public. This site is not open to the flying public and 3N does not apply. Third, respondents insist there are no commercial or industrial uses, expressly describes the uses as aviation-related commercial, industrial, and manufacturing uses. Just because the uses are allowed at an airport does not mean they are not commercial or industrial uses. The statutory definition of through-the-fence operation also defines the uses as commercial and industrial. The decision misconstrues applicable law by conflating private through-the-fence commercial and industrial development with expansion of a public-use airport that is open to the flying public. LUBA and the Court of Appeals have always distinguished these two uses. In Lance, LUBA emphasized that no commercial or industrial uses were proposed. That's 38 Or LUBA at 669, excuse me, 669 at page 675 from 2000. In Brockman, LUBA noted the county took a goal four exception for the airport-related industrial use. That's uh Brockman versus Columbia County, 59 Or LUBA 302 at page 304. And the Court of Appeals distinguished through-the-fence development of this site from an airport boundary expansion. That's 318 Or App at 628 note nine. Nothing authorizes private commercial and industrial uses on EFU land merely because they are related to a transportation facility. LUBA reversed the approval of railroad branch line-related uses in Thousand Friends of Oregon versus Columbia County, LUBA number 22-039 at slip up slip up at 23 to 25. This case is the same and LUBA should reverse again. >> Okay. >> Uh Andrew Mulkey uh on behalf of petitioners 1000 Friends for Oregon and Friends of French Prairie. I want to emphasize as I mentioned in uh the petitioners' brief that this this case is about um simply putting the cart before the horse. That the applicant um is not authorized under the airport planning statute or rule to um submit an application for an airport boundary expansion and facilitate um all the coordination and planning that is required. And so simply I want to focus my argument today on emphasizing what the Court of Appeals has already said about this process and has already uh frankly explained why the applicants um proposed uh process in this in this case is is simply So the first is that again the Court of Appeals says that the airport boundary expansion process is the end product of the airport planning process. And they say that at Shafer TLM at um page 625. And so the thing that the LUBA needs to understand or or or should understand is that uh where does the through-the-fence process fit into that? Um and it is not where the applicant has proposed it now. So the Court of Appeals also goes to great lengths to explain that the through-the-fence boundary expansion or the through-the-fence boundary is distinct from a boundary expansion process provided by the airport planning statute and really the airport planning rule. And so again, the court of appeals has stated that the definition of airport boundary in the through the fence statute, and I'm paraphrasing here, does not apply to the airport planning rule. Um and so whatever the effect of the new definition of airport boundary has on the site plan approval requirement, it does not change the fact that the through the fence provisions do not modify the airport boundary expansion process. Again, I'm I'm roughly paraphrasing there. Um and so the the court then goes on to explain what the through through the fence process is and how that process begins. And it begins when um the Department of Aviation receives an applicant an application for a site plan um for the through the fence site plan um that the applicant submits uh to the Department of Aviation, in this case the airport sponsor, for review and approval. And so the court of appeals has stated that that process ensures that the airport sponsor will be well-positioned to incorporate the property into the airport boundary and coordinate the operation with other aspects of the airport master plan in the course of the airport planning process established by the airport planning rule. Um and so I want to emphasize that again, the court of appeals has stated that the airport boundary expansion process necessarily occurs after an applic- applicant has already submitted an application a through the fence site plan application to the airport sponsor. That hasn't happened here. Um and and petitioner has explained that in the brief and the the county um has included that as a condition of a of in its decision. Uh and so I also want to point out that the court of appeals recognized that the site plan process happens first. They say that the airport sponsors later use of the site plan to incorporate the property into the airport boundary and coordinate the operation with the other aspects of the airport master plan must take place through the airport planning process. So correct that it does engage in the airport planning process except that the approval of the through the fence process has to occur first um and that's not what happened. >> What is What is the statutory or rule basis? I appreciate that you're describing the court of appeals decision and their narrative explanation of how they understand this process to work, but what rule or statute requires the sequence that you propose is required? >> Well, I think the rule and it's cited in um the petition for review at page uh 23 lines 17 through 24 lines nine is is going to be the through the fence rule itself. Um uh it's it states that uh it's OAR 738 uh division 14 section 50 subsection two. And so it states that the through the fence operation in cooperation with the airport sponsor um you know, after the government uh excuse me, after the sponsor has received the application and reviewed it for compliance um they then um in cooperation with the airport sponsor may proceed to act seek any necessary land use approval from the appropriate local government. Um and any such >> The term may sounds permissive to me in terms of what's prescribed by that rule. Why is it that the county can't do and the applicant can't do what they did here which is to do the county's part in this and then condition that approval on completing what's required by the rules that you cite. What is it that makes that prohibited? >> Well, I think that um first that this and if I may really quick just say the next part of that rule which it says after submission and review then the facility site plan shall be incorporated into the local government's airport plan and that airport boundaries. So, I think that is the the process there that's actually described in the rule is that first there's an applicant that goes to an airport sponsor, seeks approval then they go to seek uh county land use approval and after that process then it's incorporated. That's how um the >> I understand what you're saying is you're describing steps. I what I understand the county and interveners respondents to both advocate for and to then I say yes, these steps are prescribed, but there's nothing that requires it to go in a particular order and so any you know, non-compliance with this rules set up of order is is essentially legally insignificant. And so, why is it that they what they've done is prohibited other than the rule sets establishes a sequence of events. Why can't they go out of order and still satisfy the rule? >> Well, I think because uh and again probably this is getting into what Mr. Shafer was talking about is that the applicant here has conflated the statutory requirements between the through the fence provisions and the airport planning rule and they're simply picking and choosing uh in the most favorable favorable aspects of each part of the rule for their arguments. And so, I think that's why it needs to proceed um again as a cart as a horse pulls a cart with the TLM uh through the fence application happening first to ensure compliance with the through the fence site plan rules and then >> I I understand the position you're taking. I'm trying to understand why it's required by law. I think intervener respondents position is so long as all of the rule requirements are satisfied which are conditions of this approval. I think the way they put it is as long as the cart and the horse arrive at the same place then things are okay there. Substantively and legally why is that not permitted? And if it's just if your answer is because the rule prescribes an order and that's what they put forward that's the answer. But I'm trying to understand really why it matters as a matter of law cuz here I understand the decision is requiring those steps. I don't think there's any argument that the decision has failed to require steps that are required by the statute or the rule. So why does the sequence why is the sequence so critical? >> And so I think that the issue here is that the the airport has its own planning responsibility and so the airport has to adopt its own facility plan or airport master plan and it is it is really the airport's responsibility to look at kind of the economic growth and let me see you know look at areas needed for the planned airport operations and buildings and expansions of uses based on the projected needs for such uses over the planning period. So that that's quoting from the airport planning rule but that is the really the sponsor's responsibility here and in this case the sponsor has not taken the steps that it needs to do to adopt that facility plan prior to then going to the to the county and saying here we have an approved facility plan based on our economic needs. Here's the data. Now amend your airport boundary in your comprehensive a so that all of this can go forward. So, I I think those are the those are the steps that are required there and it is really uh an airport planning process from the airport facility planning side that requires that um the airport to do it first because until that until the airport makes this decision until ODAB makes this decision to approve its airport facility plan all of this is hypothetical. So, I think that's why that's why that order needs to be in the way um that it's prescribed or or discussed in in uh the court of appeals decision and also in Dissent's briefs. Um with that I've I've gone well over my time so I will turn it over to um Ms. Gile Hammond. Good morning. Amanda Gile Hammond for intervener petitioner City of Wilsonville. Deference does not give a governing body cart blanche to ignore the express terms of its land use regulations and traffic analysis is not a basis to determine design capacity. So, this morning I'm going to first start with Wilsonville's third assignment of error before moving to our first and second assignments of of error um time permitted. So, on Wilsonville's third assignment of error uh it demonstrates that Marion County misconstrued its regulations governing the effective date of the conditional use permit. So, there's two provisions at play here. The first is MCC 17 119 180. That's the provision that establishes the effective date. In simple terms, what it says is the effective date for the conditional use permit is when the action by the Board of Commissioners is taken. MCC 17 119 190 provides the time frame in which the applicant has the ability to exercise the right to that conditional use permit. It sets out a two-year time frame from the effective date which is established under 180 to exercise that that conditional use permit. That provision also allows the extension of that two-year period upon a request from the applicant. Rather than use the 190 the subsection 190 to extend the time frame for the applicant to exercise their right to the conditional use permit, here the county used that provision 190 to set an indefinite and indeterminate effective date, authorizing a quote delayed effective date pending final decisions and quote from other entities. However, 190 as I mentioned isn't what controls the establishment of the effective date. Subsection 180 does. And nothing in subsection 180 allows an effective date other than what is expressly provided therein. I think that respondents are aware that this is an issue because their main argument in responses to argue preservation. However, as pointed out in both of the petition Wilsonville's petition for review and our reply briefs, Aurora objected to the extension, noting that it was unreasonable and unfair. It raised this issue. The county provided findings in response, demonstrating it had adequate notice to address this issue. As further pointed out in in Wilsonville's replies, Wilsonville is entitled under Oregon law to make new arguments on issues that were raised. Where there's an issue on looking at specificity, that generally comes into play when you're looking at appellate review under ORS 5.45. That's not at play here. So, I'll refer again the board to my to Wilsonville's replies for further response on the preservation issue. So, deference is not appropriate here because the interpretation by the county directly contradicts MCC 17.119.180 on the establishment of the effective date. Now, turning to Wilsonville's first and second assignments of error, those really focus on the design capacity of structures to be built on EFU land within 3 miles of an urban growth boundary. Now, the policy purpose of this is to limit urbanized development outside of UGBs and to protect EFU land. And to ensure that this limitation to ensure that this limitation is in place, what that regulation requires is that if there's a design capacity of all structures over 100 people, a goals exception is required. So, the decision claims that there's only 47 people in the design capacity of one structure is 47 people. And intervener respondents argue that this is a typo, but the decision is pretty clear on how the math was arrived at. So, the decision talks about a three people per 1,000 square feet of office ratio and then looks at the office space in the headquarters at 15,658 square feet of office. That math, the 15,658 applied to the ratio of the three people per 1,000 square feet, equals 46.97 people, rounded up to 47. Now, the three per 1,000 ratio is in line with the ratio from the ITE trip generation ratio of 3.3 employees per 1,000 square feet of office. Now, the traffic engineer said that the ITE manual should not be relied upon to estimate the number of employees for a given land use or building size. So, assuming that the 47 number is incorrect, the decision also says, \"Well, if there is a design capacity of over 100 people, no goals exception is required.\" Now, this interpretation directly It basically creates a new third alternative in that regulation. One, have a design capacity of less than 100 people. Two, have a design capacity of over 100 people with a goals exception. And now a new third unwritten alternative of have a design capacity of over 100 people, but you don't need a goals exception. That interpretation renders this regulation essentially meaningless and superfluous. And that is not entitled to deference when it's contradicting the expressed terms of the and also not meeting the policy objectives of the regulation. So for that reason, reversal or remand is appropriate to address these improper facts and interpretations in the >> Thank you. Uh, you will have your full 10 minutes for your rebuttal and we will turn to intervener respondent for your And you're you're on mute, Counsel Kellington. >> Thank you, Mayor. Please the board, Wendy Kellington representing all interveners respondents. First, a mea culpa, our interveners joint response to 1000 Friends, Friends of French Prairie brief at page 36, lines 17 to 18 refers to the petition page uh 19 and that reference should be to 18. It's a small thing, but I want to get it right. So apologies. The appeal should be The decision should be affirmed really for one central reason, and that is that petitioners are attacking a decision that is not the one the county made. The petitioners repeatedly mischaracterize the county board's decision and assert the approval approves commercial and industrial uses, but that's not what the county decision approves. The approval is expressly limited to specific uses that state law characterizes as something different as airport uses that are expressly authorized by ORS 836-616 subsection 2 and OAR 660-13-100 and expressly over many different times as it does not authorize any commercial or industrial uses under 616-3 or Record 14 through 17 105 106 condition 7 at record 114 to 115. I'll say this in different ways. Petitioners ignore those findings. They don't challenge those findings at all. They're inconvenient. They challenge a decision that the county didn't make. The county did not approve a private industrial park. It didn't approve airport-related commercial and industrial uses. It didn't approve manufacturing for sale to the public. And it didn't approve a freestanding private heliport divorced from the Aurora State Airport. It also didn't approve hundreds of thousands of square feet of offices that approved 15,856 square feet of offices. This is plain from findings at finding 25 the site plan at record 7052 and the table at 7053 and by condition 7 that limits the approval as shown in the submitted site plan exhibit 1B and is described in the application materials submitted on supplemented on March 6th, 2026. So, the condition plainly limits the proposal to 15,658 thousand square feet of office space, imposes space limits on other types of uses authorized in each of the buildings. Petitioner doesn't demonstrate how, given that condition and the findings, office space could be developed more than that without additional land use approval. In addition to challenging a decision the county didn't make, they assert that the decision's wrong because we started with conditional land use approval dependent on ODAB doing its work rather than the converse. But the county board's decision was just as good a place to start as anywhere. There's nothing that prevents starting there. It was strongly coordinated with ODAB. In fact, ODAB's director wrote a two-page letter strongly supporting the proposal and urging its approval. And there can be no question that had we started with ODAB, these opponents would have asserted that there's no showing that land use approval is feasible, and ODAB is frankly poorly equipped to deal with land use issues, as we saw in its master plan decision at issue in OR 312 ORAP. So, nothing says that sequence is wrong. And probably it's the only sequence that could make any sense. So, what did this decision actually do? The decision approves two things. First, it conditionally approves an expanded airport boundary map for the Aurora State Airport. Second, it approves a conditional use permit limited to those specific airport uses authorized by 836-616-sub-2 and 660-13-100 within that expanded airport boundary. That matters because OAR 660-12-0065-sub-3-sub-n expressly identifies both expansions or alterations of public use airports that do not permit service to a larger class of air airplanes as transportation facilities and improvements that are deemed to be consistent with goals 3, 4, 11, and 14 so long as they meet the farm impact test. The county decision does exactly that following the code of a court of appeals road map. It expands and alters the Aurora State Airport. It does not permit service to a larger class of airplanes. It satisfies the farm impacts test. No one claims otherwise. And that means as a matter of law no goal exceptions of 3, 4, 11, or 14 are required and the board should affirm as a result. So to shine a finer point on it, OAR 660-12-0653N authorizes expansions or alterations of public use airports that do not provide service to a larger class of airplane. And those are then deemed to be consistent with the goals subject to meeting the farm impacts test. So here, first, there can be no serious claim that the airport to be expanded, the Aurora State Airport, is not a public service public use airport. In the Shafer case at 318 Or App says that the we agree with Luba that the Aurora State Airport is a public use airport as contemplated by the rule. Petitioners don't challenge the county findings that Aurora is a public use airport and if they did, that would be a loser. That means as a matter of law the first prong of the rule is satisfied. We're talking about an expansion of a public use airport boundary. Note, the point of a public use airport is that it's open to the flying public, but that doesn't mean every square foot is open in every part to everyone. It means the airport is available as an air as an airport to the class of aviation users whose aircraft can safely and lawfully use that. We see that from the ORS definition of a public use airport in The county's unchallenged findings explain that airport expert Aaron Feigley testified and was deemed to be credible as an expert that public use airports don't depend on all parts of the airport being open to the public. That's at record 19, 24, 28, 31, 62 and one of his letters at record 1228 to 1229. Explains that many parts of airports are not open public use airports are not open to the public. They are traffic control center, the sheriff's hangars, private hangars, but they're still a part of the public use airport. And that's supported by ORS 836.640.1 that defines private airport boundaries at Aurora Airport specifically to be the public and private lands. That's also supported by other parts of the record. Record 13216, the Billy Chinook Airport privately owned. 13217, Sisters Airport privately owned. 13218, Sun River privately owned. Roseburg 13224, all privately owned public use airports with private uses. Mr. Feigley's expert testimony is also supported and the findings are supported by the acknowledged 1976 master plan that is a part of the county's own comprehensive plan. And again, it's acknowledged that plan's findings state that the Aurora Airport has existing public and private facilities and the airport is quote owned in two parts, the runway by Oregon Aeronautics while all quote unquote revenue producing areas are owned by private interests, that's a It recognizes that operational management and complexity of the state and private ownership as an air traffic uh airport uh and the competition between private interests is a complexity that is increased by the fact that there are state and private interests in this public use airport. That master plan expressly and specifically designates the subject property as being suitable for airport-related development under private ownership. And in fact, it says that 107 177 acres of the airport are held in private ownership and only 113 acres are held by The decision approves the expansion of a public use airport. And the Court of Appeals explained the same thing in its 318 OR app Aurora Airport decision, in which it recognized that the Aurora Airport is composed of both public and private uses, all zoned P. I want to note that the petitioners' attempt to bootstrap the Court of Appeals 318 OR app footnote 9 to say a public use airport boundary expansion under 0653N the 3N rule cannot approve airport uses, but that fails. What the footnote 9 did, it doesn't limit what can be approved in a lawful airport boundary expansion. The court simply rejected the applicant's position that an ordinary comprehensive plan zoning approval for airport-related development is itself an expansion under the rule under the 065 rule, but it did not reject that a proper airport boundary expansion can be accomplished by the use authorizations for the airport uses that the statutes and rules expressly contemplate. The operative holding that case is that the expansion must occur through the division 13 airport planning process, which was fully vetted and experienced here. When that process is used, OAR 13-00-40 expressly requires planning for existing and planned airport uses, just as was done here. And then ORS 836-616-2 directs local governments to authorize specific airport uses within the resulting airport boundary. Thus, footnote 9 is not about a private development approval um being inappropriate or unlawful within an airport boundary. It's about a private development approval not being a substitute for an airport boundary expansion. It doesn't say it would make no sense to say that approval of a 616-2 use is part of or in implementation of a proper boundary expansion that state law requires be approved in an airport boundary can't be approved in an airport boundary, which is what petitioners argue. >> I'm curious about why there is uh the need here for a boundary expansion and the through-the-fence approval you described that that one of the petitioners' arguments is that those >> Well, uh the Court of Appeals said so. So, the Court of Appeals in its uh 318 ORAP decision said that the way you go go about approving airport uses, including through-the-fence uses, at a public use airport is to initiate the airport boundary expansion process in OAR 660-13, and that private applicants can do that, but you better do it because that's how you go about expanding a boundary. And so, that's exactly what >> Are there airport uses or airport-related uses that are approved by the through-the-fence approval that aren't listed in ORS 836 uh 0.6 6 16 2? >> No, this this approval approves only but approves all of the OAR ORS 830 6 16 sub two uses as the findings explain in detail between the pages of record 14 and record 17. It explains everything that is allowed and why it's allowed as a sub two use, which are findings that petitioners do not challenge. >> Okay, so I'm still and I think this is just because that I'm not as versed in this as everyone on this call is, why do you also need a through-the-fence approval? Is that just because it's private ownership and some of the operations will be using the runway? Why do you need both? >> Because that's what OAR 660-13 requires. So, you I mean, there are just a whole lot of moving parts, there's a whole lot of things that you have to do. So, the through-the-fence statute requires and that uh through-the-fence uses be allowed within airport boundaries at the as at the Aurora Airport, and the court of appeals said, \"And that's fine.\" And the way you go about invoking the through-the-fence statute is by undergoing the OAR 660-13 airport planning process, and when you do that, at the end of it, after the airport boundary is expanded, then you can have your airport uses. But until that time, until the airport boundary is expanded, you can't use the administrative rules 660-12-065 for expansions or alterations of a public use airport to authorize airport uses. >> Okay. And then for the one of the primary arguments here or disputes here is the character of the use. And I understand your position is that because this decision approves uses >> [clears throat] >> only approves uses that are described in ORS 836 .616 sub two, all of those uses are specific airport uses that are allowed under the three N rule, and that those uses cannot, as a matter of law, be characterized as commercial or industrial uses because even if, in the abstract, those uses could be aligned as commercial or industrial, they're allowed under the this rule and that sub one of that statute says that LCDC needs to adopt those rules um and that local governments have to allow those activities under this statutory scheme. >> That's exactly right. That's exactly right. So, sub uh 616 subsection two describes a category of airport uses that are differently described than subsection three. Subsection three says other commercial or industrial uses, you know, have this other far more complicated pathway, which is what the 318 and 323 OR app Court of Appeals cases were dealing with, with somebody applying for sub two and sub three uses. Here, the applicant and the only sought and the county only approved those sub-two uses which state law in its infinite wisdom have separately characterized as a special kind of airport use that shall be allowed within airport boundaries. And the through-the-fence statute picks up on that. The thing that makes this even more complicated, if it's possible to make it that, is that the the through-the-fence statute talks about commercial and industrial users as being the people who get the benefits of the through-the-fence statute. And of course the petitioners say, \"Ah, we got you there, right? Because you must be seeking a commercial or industrial use. That means you can't get to yes from here because in order to use through-the-fence, you must be a commercial or industrial user.\" Uh who is there therefore necessarily um pursuing a commercial or industrial use. And the answer to that is no. And this is where harmonizing all this all the statutes and administrative rules is required under a property gains and PGE analysis. And that's also where particular attention to the words that are used in the relevant statutes and rules is really important. The relevant statute says, you know, talks about commercial or industrial users. And what that is is that's a proxy for the private sector because they're not, you know, they're not they're not public users. They're they're um commercial or industrial users who are undertaking this special class of use that state law elsewhere in 616 sub-two characterizes as a different kind of use even though probably underlying most of us would think of them as commercial industrial, but state law says no, those sub-two ones, those are airport uses that you have to allow within airport boundaries.\" So, you put it all together and what do you get? You get a decision here that does not approve one speck of something state law calls a commercial or industrial use. Only airport uses are approved here of the type that state law says must be allowed in airport boundaries. >> So, that through-the-fence statute, I would assume would allow a broader category of uses than those sub-two uses. >> It would, but we limited this use. The The county Board of Commissioners limited this use expressly to sub-two uses, 100 uses, and there are even findings that acknowledge that within sub-two there are categories of uses that the statute itself says, \"This is This is not is okay, but this really would would be okay.\" And those are expressly called out in the decision at No, it's page 17. To say, \"And we're just making sure everybody's clear here that anything that 616 sub-two says or 110 says would not be allowed as a that special kind of airport use isn't being approved here.\" The decision is so careful to say, \"We are only approving those airport uses,\" which is why it's so offensive that the these opponents just completely ignore all those findings and choose to call the decision something completely different than it is and don't even address those findings. They don't even address it. >> Have the nature of the uses changed between this version and the earlier iterations of this of this proposal? >> Uh this proposal here or the previous TLM? >> The earlier savior decisions and the and the >> Yes. And I I I wasn't involved in in the earlier TLM decisions, so I'm not familiar with what that's all about and what that's all about and but I know that the the decision says the decision court of appeals decision and Luba's decision talk about sub two and sub three uses. And here we are only talking about sub two uses. So, the idea here was to be very different. The idea was to be faithful to the court of appeals roadmap, to do everything they told us to be do, to be extremely conservative and careful, to approve only airport uses. >> Thank you. >> I think I'm being a little dense here, but I'm still confused about the through the fence operations. Are those usually outside of an airport boundary and not all airport uses that are defined in that 616 sub two? >> So, if if there is an existing airport use that is ex- outside of an airport boundary under the through the fence pilot project, it would be non-conforming. Because the the court of appeals came down hard on taking the position that the through the fence statute allows you to put those uses that the through the fence statute says you can have. And it says, you know, sub two and sub three uses, they're all good. The court of appeals said, \"No, that by itself is not enough. You've got to You've got to put the whole miasma together. You've got to put the airport planning rule together. Got to put 616 together. You've got to put the through the fence statute together. You've got to harmonize them.\" And here's how it works. If you want through the fence operations, sub two or sub three or both, you've got to go through the airport planning process provided by OAR 660-13, and if you do that, that's how you expand the boundary, and then you get to have your through the fence uses within that expanded boundary. So, that's just that's the court of appeals construct, and you know, we're not fighting it. We're just doing it the way they said. >> Thank you. I think I I now understand. Um moving on to the design capacity issue, how do parking spaces correlate to the building design capacity, and I know I'm shifting gears here, but I want to make sure we talk about this issue. >> Okay. Okay. So, the the operative decision pieces, the evidence relied on, are at record 7056, and that's the table, and the site plan is at record 7057, and then condition seven comply requires compliance with both of those and the the limiting documents submitted in the March 6, 2025 hearings officer proceeding. So, the you know, what what's a little unfair here, well, there's a preservation issue, and and we talked about that. So, um at record 26, the the county interpreted its rule to say, \"Look, because state law would not require this design standard to apply, And our code provision implements that design standard. We interpret our standard the same way as state law, and we say it doesn't apply. And so far as I'm I can see, that would that determination is entitled to support and deference. But then there's also a whole bunch of findings at pages 25 and 26 of the of the decision record 25 and and 26 that talk about this 100-person design capacity. And that's at finding um 28. And the the the board says, \"The evidence in the record demonstrates the enclosed structures here are primarily hangars for aircraft, maintenance shops for aircraft, and the vertiport headquarters with 15,658 square feet of offices. The rest of the buildings are devoted to industrial shops for aircraft and storing aircraft parts. Three people for every 100 square feet of offices out of that much square foot is 47 is actually 52. That's a mistake, which is less than 100. And it goes on to say, \"The spaces are large because they're designed to accommodate aircraft, not people, and aircraft are big things. The same is true for maintenance areas.\" So, they and there was also a sensitivity check as you see in the um in the in the chart in the record where they took a look at the footprint of other sorts of uses at the airport that had private hangars and and looked at the parking uh that went along with it and the amount of people and and it was about the same, and so they thought it was right. And finally, the the county does have a parking standard for, you know, the the amount of you know parking that would go with particular kinds of uses and if you assume you know people drive cars in order to park that that would also be a sensitivity check a way to decide and the board said here it does decide that the you know the 100 person design capacity is met and those findings you know 25 and 26 I think were detailed and are entitled to support and deference and then to me at least more importantly are the findings that say regardless the 100% design standard implements state law and state law wouldn't apply here because um the state law table says transportation improvements on rural lands allowed under 065 um would not you know be subject to that that design standard. So I guess that's that's what I think and you know the board have decided they decide but I think that's pretty solid. >> Thank you. >> Yeah. >> You have about 3 minutes left. >> Of course I do. >> [cough] >> You [clears throat] you can take it or you don't have to. I don't think I have >> No no I mean I need all of it so um gosh >> [sighs] >> So this effective date business I I want to touch that a little bit you know nobody really raised that you can only extend time after the effective date begins they just didn't we would have responded I mean here there's what 114 pages of of findings and had they raised this with sufficient specificity to allow reasonable person to respond we would have but here's the thing. The the finding at page 34 condition six is entitled support and deference. The period was extended as the code allows so that these people keep appeals going that the as they surely will that the approval doesn't expire before the the use can even start and I think that that's completely entitled to deference. The the exception intensification issue, petitioners attempt to use 664-18 to nullify 0653N and that's just a legal non-starter for all the reasons that we described in our brief, but I guess the thing I want to talk about is in addition that their intensification rule doesn't even apply to the 1980 exception. Petitioners can't repackage the same airport expansion as an intensification of existing exception lands and force the county back into an exception process that the 0653N rule says isn't required. That's just completely wrong. Here the to kind of close things up, there's several things that the board I really hope understands. Nobody charge challenges at all the decisions limitation to 6162 100 airport uses. They don't challenge the finding that the Aurora State Airport's a public use airport. They don't challenge the finding that it doesn't permit service to a larger class of airplanes. They don't challenge the farm impacts findings. They don't challenge transportation, storm water, any of the traditional land use things. They ask this board to create sort of a hyper-technical um you know, way of looking at these rules that really just forecloses any airport from ever expanding anywhere and the board just shouldn't let them get away with it. County's decision faithfully follows the the court of appeals road map. They strongly coordinated with ODOT. They gained their enthusiastic support. They conditionally adopted an expanded boundary. They altered it with uses that are shall be allowed within the airport boundary and gosh, they just the the decision really deserves uh to be affirmed. If you have any other questions, let me know, but according to my timer, I'm out. >> Thank you. Uh that was felt like an endurance sport, so appreciate >> [laughter] >> your argument and uh all of the parties' thorough briefing. And we will return to petitioners. You have 10 minutes for >> Uh Mr. Shafer, I believe you're going to kick us off. >> Oh, okay. I thought I was going last. >> I can go. >> I thought you wanted me to go last. >> Okay, thank you. I will go really quickly. I apologize for that mix-up. Um I do want to say I I think that um the interveners' uh presentation has highlighted why um the order is important. And the And the first And the first thing is is that if you look at ODAV's um the Oregon Department of Aviation's, you know, uh draft plans that are in the record, they have not proposed expanding the airport boundary um uh in this case. And so I And then that leads me to my next point, which is that this proposal is outside the Oregon Department of Aviation's proposed boundary for its upcoming facility plan. Um And that that brings me to the point which was highlighted by the Court of Appeals. And I I said it in my opening and I'll say it again is that the definition of airport boundary in the through-the-fence statute does not apply to the boundary definition in the airport planning rule. And so when um Ms. Kellington is directing uh the board to the uses in ORS 836 uh 616 and saying, \"You know, these are allowed within the boundaries of the airport.\" That is the airport planning statute. And there, as the Court of appeals has stated, they're talking about a different boundary. So, why it's important for the order of operations to occur here is because um the applicant has not applied for a traditional sponsor-sponsored airport boundary application. That that subscribed in A3, it's A36616. The applicant has applied for through-the-fence um uh proposal site plan proposal that would then, after the fact, result in a change in the airport boundary rules. But, what they're doing is mix and matching um the standards here. So, the traditional uh boundary expansion described in the airport planning rule um has all sorts of procedures and rules applied to it. The through-the-fence boundary expansion is different. And so, and this is getting a little bit into probably what Mr. Shaffer's presentation is, but you know, why this isn't a uh expansion of a public use airport pursuant to 3N because it's actually uh through the site plan. And it's and it's a through-the-fence site plan proposal, and it's entirely governed by that. And only after that process occurs, can you then go talk about, \"Well, okay, we've we have this, you know, through-the-fence um uh site plan that's been approved. Um there's it's all it's subject to its own boundary definition and its own statute. Um now, let's go back and and conform the um the the county's comprehensive plan.\" >> the What are the statutory citations for those disparate boundary definitions? >> Um I don't have them at the ready, but I believe the first definition is in A36 somewhere along 600, or it I think it's 605. And then the other boundary definition is in um it should be in A36640, which is the through the fence provisions. And so the the court of appeals discusses both of those definitions in its case. And with that I will turn it over to Mr. Mr. Shafer. >> Thank you. >> Or or if Amanda has something, sorry. >> Thank you. I just want a very very brief couple points that I just wanted to make on the parking analysis. Uh Wilsonville's contention is that the design capacity analysis is not based on parking, but even if it is that still is not appropriate design capacity analysis. Um and then the second thing that I just wanted to touch on is on the issue of preservation again referring back to Wilsonville's appeal reply briefs about that it's regarding the issue has to be raised for an adequate opportunity to respond. The county did respond and made findings and Wilsonville is proposing additional argument on those issues. Thanks. >> So Wilsonville is arguing that the I think Wilsonville is arguing that the county's design application of the design capacity is based on an ITI, is that correct? >> On the ITE manual trip generation ratio for traffic for office use, which is the 15,000 square foot office for the headquarters. >> And your position is that both the ITE and parking spaces are not evidence of the design capacity for the building. >> Correct. And even more so on the ITE analysis is that the traffic engineer themselves said that it is not an appropriate way to evaluate the number of employees that will use for land use or for a building size. >> Uh Uh, hello again, Joseph Shafer, petitioner. I think what's getting lost in this is the subject property is in the EFU zone. There is no uh, nothing in the airport planning rule that's talks about what zones you can do an airport in. This is an urban scale airport. It has been for over 30 years. There's nothing in ORS 836 or 660.13 that say you can expand an urban scale airport onto new EFU land. If you look at ORS 836.600 to 630 uh, and in 605 it expressly defines an airport as limited to the 1994 boundary as the court of appeals described. The exemption that allows airport uses on EFU land, which is found in 836.625 only applies to the airport as it existed in 1994 within that boundary. There is no basis for expanding an urban airport onto EFU land. This is why my first assignment of error so much emphasizes that the uses whatever you call them, call it a heliport, call it commercial, call it industrial, none of those are allowed on EFU land in any county and certainly there's nothing in this county's code to allow them. Respondents gloss over the statutory and rule text to argue context and I would just underline what Mr. Mulkey says, you know, they're completely cherry-picking and it's my uh, third sub assignment of my second assignment of error that goes into that in some detail because uh, the more specific airport planning rules and statutes govern over the more general transportation uh provisions in 215-283-3 and the 3N rule. Which does not apply uh Remember, OAR 660-12 does not implement the ORS 836 statutes that Ms. Kellington relies so heavily on. Okay? It Um uh Finally, um you know, they argue context, especially in their briefs, but they omit the context of Goal 3. They omit the purpose statement of the EFU zone. They omit the legislative policies in ORS 215-243, including subsection 3, which expressly warns about expansion of urban development into rural areas. They omit the context of Goal 14, which discourages urban development outside UGBs, and they omit ORS 197-713, which prohibits rural industrial development in the Willamette Valley. Once again, describes the airport-related commercial and industrial and manufacturing uses. Those are Those are the terms in the rule. Those are not my terms. The the through-the-fence definition defines the uses as commercial and industrial. You can't just disappear those things because those uses occur at an airport. This is commercial and industrial use. It's the size of a Walmart Supercenter on a EFU-zoned parcel. No one's ever even attempted it before. All the prior cases like Lance and the prior decisions for this site and HTS, the adjacent heliport, which is essentially indistinguishable, all included a zone change. Because you can't do this in EFU. Finally, if you look at the county's decision for this property for the last application, it expressly said the uses are not allowed. They're only allowed in the public zone. And that kind of says it all. The flip-flops should be reversed under Alexanderson and Beavis. And with that, I'll wrap it >> Okay. Thank you. Uh thank you to all of the parties for your oral argument today. That will conclude oral argument. Our statutory due date for a decision in this appeal is June 17th. We'll ask the parties to agree to an extension so that we issue our decision by July 8th. But I will just say in advance with uh the number of issues and novel issues here, >> [clears throat] >> we may have to extend that, but we will shoot for July 8th with the parties' agreement. Is that okay with these parties? >> Yes. >> And I will hold my breath. >> Yes. Yes, for Wilsonville. >> Thank you. Uh", "summary": "Mhm. >> Mhm. Okay. >> Yes, I am. >> Thank you. We can't see everyone on screen, so >> Yeah, no worries. There's a lot of us. >> Good morning still. This is the time set for all argument in Schaefer versus Marion County Luba numbers 2025-085, 086, 087, and 2026-001 and 002. I'm board chair Smudio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision. Uh this oral argument is being record…", "source_url": "https://www.youtube.com/watch?v=AnVe07GqhtA", "source_name": "Oregon LUBA", "doc_date": "2026-05-28", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-002 Stadeli et al v. Marion County", "content": "Oral Argument 2025-002 Stadeli et al v. Marion County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Y5i6DtskLY8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Good morning. >> This is the time set for oral argument in LUBA number 2025-002 Stadeli versus Marion County. Uh I'm Board Chair Smudja. Board Member Basham is also present. Board Member Wilson is not present and will not be participating in the final decision. Please keep your audio muted when you're not speaking. That will help with the recording. We are recording and live streaming this argument. I'm not aware of any pending motions or matters in this appeals or anything the parties need to bring to our attention? >> Not from the petitioner. >> Okay. Not from the county. Okay. All right, members, the total of 30 minutes. Petitioners, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yes, I'd like to reserve 4 minutes. >> All right, I will keep track of time on my end and ask that you also keep track of your time and just note that the clock that's on the screen is just for reference. It is not keeping exact time. Uh respondent and intervener, you have a total of 15 minutes and may uh and share that time. Have you decided how you'll share that time? >> Uh yes, the uh county has graciously allowed uh the applicant to take the 15 minutes. Um I think the I can't see if if the county's uh attorney is on >> We can. We can see Marion County uh attorney Mendorf is on our screen. >> Okay, there he is right there. Okay. >> Okay, thank you. Um so, with those preliminaries, petitioner, please state your name for the record and begin. >> Good morning and may it please the board. Mike Keen on behalf of petitioners Dan and Jennifer Stadley, who are joining me today. And appreciate your time. This case involves a non-farm dwelling that was approved on a triangular 2.17 acre parcel surrounded on all three sides by active farming operations in an EFU zone. The decision also approved for reduced setbacks of 50 feet on all three sides down from the required 200 feet. And this is not the first time this uh matter and this property and a non-farm dwelling has come before an appeal on a land use hearing. As noted, when the county denied the non-farm dwelling application back in 1991, this area is actively farmed. It is commercial farming uh operations that have been ongoing. The area has remained stable and devoted to agriculture consistent with goal three, which provides for the maintenance and preservation of agricultural lands as stated in the goal for farm use, consistent with existing and future needs for agricultural products, forest, and open space. This area has remained stable since that time because the EFU zone's purpose and intent and the Marion County Code's strict provisions on non-farm dwellings have been observed up until this position and this decision. Uh the as noted in the 1991 decision, but also this decision, it is one non-farm dwelling, but there is a cumulative effect if these are allowed in contravention of the code. This will not remain a stable agricultural um location and area if these dwellings are permitted drip by drip over time. This is to prevent and pre- uh preserve future needs as well as the current EFU zone and farm purposes. The decision at the county level misconstrued the law and which is grounds for outright reversal, while also failing to make required findings, reaching conclusions not supported by substantial evidence, and violating required procedures, all of which are require reversal, remand, and a rehearing. For the grounds for reversal, the hearing officer, which was affirmed by the Board of County Commissioners, misconstrued the in harmony requirement. And to our knowledge, in harmony only appears twice in the Marion County Code. There's no case law that we could find on the non-farm dwelling provision. However, this board and Brandt v. Marion County considered it in a uh industrial commercial zone, where this board interpreted the in harmony standard in a situation with similar lack of context, but again, a different code. Um the board said that in those circumstances, the correct test is whether a proposed use is similar to and produces no significant impacts different from those for produced by use permitted outright in the IC zone. Again, this is EFU zone rather than IC, but that that phrase is key. Similar to, not just whether or not it produces significant impacts, but whether the use is similar to. A non-farm dwelling, especially on this parcel with only a 50-ft setback, which brings um just regular residential home within 50 ft of ongoing egg operations, cannot be in harmony with the surrounding area. The hearing officer also based the non-farm dwelling as um and approving it as being unlikely to cause disharmony, which is not the standard. That's um that phrase, unlikely to cause disharmony, inherently acknowledges that there will be conflict. It cannot be in harmony. That was also recognized by the 1991 decision, and I realize the '91 decision is does not um uh result in binding precedent, but the conclusions and the analysis holds in this case. And I think it is worth uh detailed review. Respondents try to reframe all of this by saying the board should accept whatever decision was made if it was plausible. Again, that is not the standard. That is uh subject um that this case is subject to. The in harmony standard is also unconstitutionally vague as it does not and cannot provide reasonably clear and objective standards, and it prevents the state entities from knowing what uh what the standard really is even on appeal. Um I think you'll uh from review of the record, uh the hearing in front of the hearing officer, uh the hearing officer's decision, the '91 decision, um and the parties' respective arguments, no one can quite point to what in harmony means. So, how can anyone even challenge it? How can you comply with it? It means whatever someone says it means. And that is the definition of vague without clear and objective standards and subject to arbitrary decisions that um simply um how do you comply with it? The decision on the reduced setback also misapplies the law and can't be satisfied. They can't meet the which is likely why the findings were frankly incomplete, which I'll get to in a minute. Um the adverse impacts cannot be minimized here. The setback was reduced to 50 ft on all three sides, which brings a residential non-farm dwelling within 50 ft of ongoing egg agricultural um operations. As you'll see from the record, there was evidence of the neighbors uh burning their grass fields right up to the property line. Again, that places this dwelling within 50 ft. There is agricultural spray. Again, I'll get into that in just a minute. But those are the grounds for outright reversal based on the record for us. For a reversal and a remand for a new hearing, the decision on the non-farm dwelling being in harmony was not supported by substantial evidence. In Futornick versus Yamhill County, the this board reviewed case law for approving non-farm dwellings and stated it required the approach to be accompanied by detailed findings and explaining what each factor contributes to the conclusion and that the prerequisites um to be met are stringent, and I believe stringent was the uh direct quote. Here, the hearing also relied on conclusory statements from the applicant, didn't make required findings, and ignored voluminous evidence from the petitioners as well as neighbors. The decision on the reduced setback also just outright failed to make the required findings and cannot be sub- sort sub- excuse me, supported by substantial evidence as a result. The hearing officer made no finding that the site will have the least impact on nearby egg operations, that the site ensured adverse impacts on farming practice would be minimized, and did not state that the amount of agricultural lands used to site access roads, service corridors, the dwelling and structures are minimized. There was a reference to a potential satisfaction that the risk of wildfire will be minimized simply by stating that the parcel is part of the Silverton Suburban Fire District and is not located in a forest, but that doesn't meet the requirements here. It is cited next to ongoing uh routine um summer uh post-harvest burns. It is um surrounded on all sides by either grass seed or ongoing orchard operations. Here, the hearing officer relied simply on the conclusory statement that the dwelling complied with the code's intent. The petitioners were also denied due process when the Board of County Commissioners considered and then denied the appeal, as well as when the hearing officer used the wrong standard of review. The Board of County Commissioners felt it could not accept the appeal because of the timing of the hearing officer's uh decision, which took almost 11 months. Uh when you look at the um the minutes from the board's hearing, as well as uh listen to the audio that's in the record, the board clearly felt it could not take up the appeal without creating additional procedural issues. And in fact, uh there was statements saying that they were relying on the board to hear the appeal on this board to heal the hear the appeal on the merits to to remedy that. The hearing officer also apparently used a preponderance of evidence standard, again accepted by the Board of County Commissioners. Uh while respondents argue that there's uh basically no harm, no foul on this, uh there is very uh uh, harm and foul in that the petitioners lost. They don't know on what standard they lost or on what standard should have been appealed to the Board of County Commissioners. Because it was, uh, the hearing officer's decision was just outright accepted across the board. Um, the preponderance of evidence of evidence standard is not the standard of review with substantial evidence as detailed through numerous, um, Luba opinions. Um, Finally, uh, the decisions that farming practices are almost, uh, second to last here. Decision that farming practices were not adversely impacted is not supported by substantial evidence as the hearing, uh, contains factual errors. There was substantial testimony from the Steadleys as well as multiple neighbors that their farming practices would be adversely impacted without any, uh, corresponding rebuttal evidence. Uh, the respondents focus on whether or not the Steadleys used a particular pesticide and future use, uh, cannot be an adverse impact. However, Year King v. Clackamas, um, that decision, the board stated that the petitioners future use was not speculative because petitioner was able to identify the farming practices that will be employed on the property and was developing plans for use and the use was therefore properly reviewable. Even if the, uh, our argument was limited to the, uh, aerial exclusion zone and the use of that one pesticide, there was clear evidence of adverse impact. Finally, the decision that the groundwater is not adversely impacted is not supported by substantial evidence. Essentially, the previous attorney argued that there was a good well on the property and that was without actually providing evidence. The decision of the hearing officer relied on the argu- this argument and the fact that the property was not located in a sensitive groundwater overlay. But again, that's not the standard. The standard is whether or not there is a negative impact of groundwater. And the only evidence at the hearing there was that there are groundwaters in this area with the neighbors testifying that they've had to deep deepen their wells in recent years. I believe one of them had to double the the depth. Um again, this these issues on groundwater uh were noted in the 1991 decision. And it's noted that this area is uh has a fragile groundwater system, even if it's not in a sensitive groundwater overlay. So, with that, I'm right at 11 minutes, and I will reserve the rest of my time for rebuttal unless there's any questions. >> Just a quickie, Mr. Cain. Uh you mentioned that uh plausibility is not the standard of review we would apply to uh review any of the hearings officer's interpretations. What is the the correct standard of review and why? >> Well, plausibility is a part of it, but the the issue is um whether or not uh It's ordinary um construction of ordinances. So, um first of all, I couldn't find a Luba case that used plausible as the standard, but a review of um the case cited by uh respondent supporting the Medford um Whether an interpretation is plausible according to that case for purpose of review is simply whether it's in the range of conclusions that a rational person could reach when applying the the Oregon standards of statutory construction of the ordinance, which incorporates all the things. Does it comply with the terms uh express provisions of the of the code or the statute? And then uh you look beyond that on plain meaning and regular statutory interpretation. Just saying that it's plausible result doesn't give it cart blanche, you know, just doesn't give it blanket approval and you have to approve whatever the hearing officer says. >> Okay, thank you. >> All right, and you'll have about uh 3 minutes for your rebuttal. So, we will turn to uh intervener respondent for >> Uh good morning, may it please board. My name's Andrew Stamp, uh here for the applicant, uh intervener respondent. So, I probably won't get through all six assignments of error, but I wanted to focus a little bit on the first assignment of error. Um I found that the the assignment of error was presented in a confusing way. It was written as a substantial evidence argument, but it actually had, you know, an undeveloped fi- uh inadequacy of findings uh challenge, and a lot of it really boiled down to uh an interpretational question, uh which is why the Siporin deference was mentioned in my brief, cuz this is a local code provision. Um So, Siporin deference would apply because the Board of Commissioners made the final decision. Um >> Did the Board of Commissioners adopt the underlying decision as their own in order for Siporin to apply? >> I believe so. They they denied the appeal. Um I I I would think that that would apply in that case where they deny the appeal. >> Okay. >> Um In any event, I I don't think the standard review is whether it was Siporin deference or not. I don't think it's critical here. Um What is important is uh a non-farm the way that the petitioner uh interprets uh the standard of in harmony with the purpose and intent of the zone, they they said basically that we have to support ag and expand its practice. But, there's not there's no non-farm dwelling that would do that. You know, non-farmed dwellings were added into the statute um not not to support agricultural. It was It was intended as an escape valve, as Hector McPherson famously said back in 1973, \"It's a little escape valve whereby we can allow a small amount of single-family residential dwellings within an exclusive farm use zone.\" And the test is rather stringent, but it's it's focused on picking properties that really have no ability to be farmed, number one, and unsuitability for farm use, and then it has uh impact analysis. You know, the farm impact test is applied and compatibility analysis is complied. And then there's the materially alter the stability of the land use pattern test, which is really saying, \"Hey, if there's a bunch of these lands that that are uh difficult to farm, that we won't allow any of them to have non-farmed dwellings because, you know, if you had too many of them, that would create a land use pattern that would change what is there now.\" So, what they're looking for is the unique property that is not farmable, but where everything else around it's farmable, and where the applicant shows that having one more dwelling at that location will will not have significant impacts on uh neighboring farm operations. And the hearings officer, you know, said that the purpose of the zone was to promote and protect agriculture commercial agricultural, and then applied essentially a negative uh version of that to to non-farm dwellings and said, \"Y- uh a non-farm dwelling achieves those purposes if if it does not cause disharmony.\" And I don't see anything wrong with that because both the farm impacts test and the materially alter the stability of the land use pattern test are stated in the negative as well. They're they're saying you won't have significant impacts on on neighboring farm operations. You won't alter the material stability of the land use pattern. So, I don't see anything from a interpretational standpoint that would uh it is reversible here. Um I you know, I think that was fine. Now, I don't think there's any meaningful difference between the way saying something's in harmony and it's unlikely to cause disharmony. Um So, and I think the applicant turning the substantial evidence does not at apply the correct test. He repeatedly refers to the weight of the evidence being in their favor. Well, that's begging LUB to re-weigh the evidence. And obviously, that's not within LUB's purview to do so. Uh So, I I think I I think that's enough said on the first assignment error. Turning to the second assignment error, the special setback. The the county has a 200-ft setback, which obviously we can't meet cuz our property is not even 400-ft wide. So, um So, then they have an alternative that says, \"Well, if you can't meet the setback, there's an adjustment process.\" And they essentially borrowed that from state law. Uh so, you know, some provisions in the uh uh forestry section of of the administrative rules that are sighting standards. And I think what's critical here about the second assignment of errors that petitioner views them as approval standards. In other words, go no-go standards. And does not consider them to be sighting standards. And the test is really about where should we put the dwelling, not if we should put the dwelling there or not. And and that's a key distinction. All of the uh terms in the code talk about uh least impact on nearby farming and forest operations and that it'll minimize impacts. Well, you know, I guess my question is you know, it it if if we can't put the dwelling based on that standard of minimization, if we can't put it in the dead center of the property, then where would we put it? You know, because the closer you get to any of the three sides, you're you're putting it closer to farm zoning, which would in theory increase impacts. Um here there was no evidence in the record that any one type of farming would have would be more sensitive to a dwelling than others. So, I don't think it was very difficult for the hearings officer to say, \"Okay, well, all things being equal, put it in the center of the property.\" Um so, I think that was you know, I think normally that criteria, if it wasn't a a triangle, you know, if it was a weird shaped property, you might have to do an alternatives analysis to say, \"Well, compare various points on the property and say, you know, what are the advantages and disadvantages of putting it in various places?\" But here, where it's a triangle, very small parcel, you got surrounded on all three sides by farming activities, it it under the under that sighting standard, it made sense to put it in the middle. Uh I'm going to skip over the third and fourth uh assignments of error because I think I'm >> leave the Before we leave the assignment of error, the petitioner argues that you there's no findings actually addressing the three criteria set back for that address the setback standard. Do you think the findings actually address those criteria? >> No, I don't I don't think they go through those uh you know, the the the criteria, but I don't think those criteria would lead to any different result here. Uh, you know, the there's there's only one place to put the house under any of those criteria. And that's on the dead center of the property. But yeah, I agree the findings could have been better. >> Okay. >> Um, I'm going to turn to the fifth assignment error cuz I think the third and fourth assignments error don't don't amount to anything. Uh, I mean, feel free to tell me if you think otherwise, but we can talk about it, but other than that, I think I'm just going to skip over them. Uh, with the fifth assignment error, this is really about the uh, farm impact test. And we cited Dirking versus Clackamas County. And uh, Mr. Dirking's a client of mine, so it was kind of fun to read this case. I didn't represent him on this particular case, but in that case the the the Luba said they generally agree with the hearings officer's reasoning that future impacts farm practices aren't really considered. And he says, \"Not only would that expansive interpretation compel an applicant to in effect prove a negative for something that does not yet exist, but that grammatical context of the language makes it fairly plain, at least to the hearings officer, that the phrase farm practices on surrounding land devoted farm use and cost of accepted farming practices uh, necessarily envisions a present tense assessment of actual implemented farm practices.\" Now, it in in Dirking Mr. in Mr. Dirking in that case was setting up his farm, which was called the Oregon Lavender Farm, and he hadn't quite got it set up yet, but he was in the process of doing it. So, he said, \"Hey guys, I actually have plans, you know, concrete plans to build this lavender farm.\" And in that case Luba said, you know, it's not just hypothetical. He's got those plans, and and therefore his farming practices that he is, you know, in the process of you know, creating need to be addressed. Well, that's different here because there's no there's there's no farming practice future farming practices that is anything other than hypothetical. What petitioner data here is just picked some chemical out of thin air that they don't even use, but which happens to have a nice big fat buffer requirement and says, \"Oh, yeah, we you know, we don't use it, but if we did, we would have to apply this big buffer.\" And to me that's entirely hypothetical and does we don't need to consider that under ORS 215-296 sub 1. Um then the the other thing is >> Trying to figure out where the boundaries of that kind of gen general rule would be, and I'll just admit I haven't reviewed Durkin yet, but my understanding of the evidence here is that petitioners do have an extant filbert farm, and they do spray chemicals. They submitted evidence that there are chemicals that are used on filbert farms to pesticides that do have a large spray area exclusion area. Your argument is they would have to say, \"And we use these pesticides in order for that to fall within the farm impact analysis.\" >> Yes, I think so. I don't think >> they said What if they said What if the evidence was, \"We don't currently use this, but in years where there's high pest pressure, we would need to use this.\" Would that be enough? >> I think that's getting closer to the facts of Durkin. Uh you know, and I guess I'll leave it to you to draw the line. That's That's That's where you get paid the big bucks, but uh uh you know, I I I don't That's not the facts of this case though. They didn't say >> Fair enough. Fair enough. Thank you. >> Okay. Um So, the other thing that I found a little bit dishonest about this was cuz the petitioner said at one point they point to this OAR that deals with a narrow set of chemicals called uh chloro uh Let me see. What the heck's it? Chlorpyrifos, which I'd never heard of before, but I did uh read it and study up on it, and it's a It's a different type of chemical than Vapam HL. It's a chemical that's used on grass seed and uh Christmas trees, apparently, but it's a pretty nasty chemical. Uh uh And but they cite to that and say under that rule for that particular chemical you don't exclude you exclude the houses that are used by the farmer. And then they seek to apply that rule to a different chemical. And I I you know, I I I guess there's to me that seemed a little disingenuous to me. Um All right. I I think I think that you know, I don't want to say a whole lot more about the fifth assignment error in the interest of time, but other than say I didn't >> about the Let me ask you about the the math problem with the 120 ft versus 100 ft. You Your Your brief seems to to suggest that that is a problem, that there is a math irregularity there. >> Yeah, this is on the setback one. We skipped over that, but >> Fair. >> Uh Yeah, there is the math problem is there. Uh because she adds she says 120 ft, but then if you add up her numbers, it's only 100 ft. Um you know, that was an unfortunate error, but I'm not I'm not seeing anything in the evidence in the record that makes it critical that there's a you know, that there's some buffering requirement that would make a difference between 100 ft and 120 ft. I think at one point they say that they need 102 ft buffer, but even that isn't correct cuz it doesn't take into account the credits that you get when you calculate the buffer that we pointed out is in the record. And and the way they calculated the 100 ft buffer, that was using the drench method, uh which they'd never even cite that they used the drench method of chemical application. So, you know, I I think there's a lot more complexity to how you apply these buffer requirements. And the And the opponents didn't really say that they need 120 ft buffer. Um and and I also take issue on that with the idea with other chemicals, LUB has been clear that you you can't just use other people's property for overspray. You know, in the Van Dyke case, that was the argument made uh by the trail advocates and uh and you know, LUB has said, you don't have a right to overspray. You know, you have to keep your spray within the limits of the AEZ rules. And uh here the the applicant I mean, excuse me, the opponents are basically saying, \"Hey, we're using uh the Perez property kind of as an overspray. We can be sloppy because no one's there. Uh no house is there.\" But Ms. Perez says that, \"Hey, we're here every day. We're here with our with our animals and we're here we have a shop here and uh we use this property. So, I don't I don't think the evidence in the record supports the idea that anything different will occur because uh you know, that if there's a house there versus what's there now in terms of the opponent's ability to overspray. >> And we we've reached our time. Thank you for questions from the board. No. All right. So, uh thank you for your argument. We will return to petitioners. >> Uh unmute, but just want to address a couple things. Um >> Mr. Dunn, uh petitioners is Mr. Dunn on the line? >> the Um >> Just for the record, I don't think the petitioner can hear us and we cannot see him. >> States that states that there are requirements and they have to be addressed at the time of the land use application just by its own terms. These aren't citing requirements of where to put the house. These are um these are code requirements that need to be uh need to be met to allow um any reduction in a 50-ft setback. The other piece I would like to um bring up is that the the intent of this piece for a reduced setback is to be able to shift the house away from ag ag operations. The fact that this is a triangular piece means it can't happen. They reduced the the setback on all three sides bringing the house closer. Whatever direction it goes, it's bringing it closer to ag operations. And the fact that it is a triangular piece doesn't give uh applicant Perez any additional rights. Um a non-farm dwelling is not an outright use. You have to check the boxes. You have to meet the requirements um to be able to Mr. Dunn, can you hear us? Can you hear us, petitioner? And I apologize. I can't hear you. Can you hear us now? Test, test. >> Sound is not coming through now all of a sudden. My volume's up, but I'm >> Can you hear us? >> Okay. Uh >> I apologize. I was hearing you just fine previously. >> So, we have reached our time. Uh petitioners cannot hear us, but we will conclude oral argument. And the statutory due date for our decision in this appeal is June 16th. Uh we will ask the parties to agree to an extension so that we issue our decision no later than July 7th. And since petitioners cannot hear us, we will have uh staff follow up with petitioners. >> I apologize. Uh somehow our camera fell asleep. So, uh we have sound back on. Um I don't know if I can have just another minute or two just to wrap it up. >> Can you hear us now? >> I can. >> Okay. Um no, we've exceeded the time now. So, we will we will conclude oral argument. Thank you for your argument. The statutory due date for our decision is June 16th. Uh we'll ask the parties to agree to an extension so that we issue our decision by July 7th. Is that okay with these parties? >> Yes. >> by petitioners. >> Okay. Thank you all for your time and your argument today and have a good remainder of your day. >> Thank you very much.", "summary": "Mhm. >> Good morning. >> This is the time set for oral argument in LUBA number 2025-002 Stadeli versus Marion County. Uh I'm Board Chair Smudja. Board Member Basham is also present. Board Member Wilson is not present and will not be participating in the final decision. Please keep your audio muted when you're not speaking. That will help with the recording. We are recording and live streaming this argument. I'm not aware of any pending motions or matters i…", "source_url": "https://www.youtube.com/watch?v=Y5i6DtskLY8", "source_name": "Oregon LUBA", "doc_date": "2026-06-02", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-088 JIPR, LLC v. City of Carlton", "content": "Oral Argument 2025-088 JIPR, LLC v. City of Carlton\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=O4Kk_c4Y1Zw). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for oral argument in luba number 2025-088 JIPR LLC versus the city of Carlton. I'm board chairs Moodio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. And uh in this matter we have a motion to take evidence and a motion to strike that are pending. We will resolve those in our final decision. And petitioners or 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, I'd like to reserve at least four minutes. Um but I guess if I am able to start stop my initial remarks earlier, then I would up take up to five minutes. >> Okay. So, uh, you want to reserve 5 minutes and then you might go into that rebuttal time. Is that what I understand? Okay, sounds good. I will keep track of time here and also ask that you keep track on your own. The clock that's on the screen is just for general reference. It's not keeping exact time. And respondent and interviewer, you have a total of 15 minutes. Have you discussed how you'll share your time? >> Yes. uh we'll be splitting our time evenly, but we'll be each arguing uh each other's arguments uh essentially. So, if that makes sense. >> Okay. I'm sure it will as we proceed. Uh again, I'll ask you to keep track of your own time and I will look uh here as well. And so, with that, petitioner, please state your name for the record to begin. Uh, chair, members of the board, my name is Nick Roen and I have the honor of representing the petitioner JAPR LLC, um, who is the applicant below, uh, who, as you know, applied to develop a convenience store and fuel station and those land use applications were denied by the city of Carlton, which resulted in us filing the subject appeal. So, there's nine assignments of error in the petition for review, and I'm only going to focus on some of the items today. So, as far as today's takeaway and what I would impart, this case has some unique facts and there are some rare legal questions for teed up for the board to decide. Uh, the most consequential is the sixth assignment of error which relates to RS 1978510AB. which provides a remedy to an applicant when the local government's action was for the purposes of avoiding OS227178 the 120day requirement or the 120day as I will explain this case falls within the scope of that remedy because petitioner didn't have a true decision on the merits within the statutory timeline and was instead denied it substantial rights to a full and fair hearing because of concern with possible mandamus this in whole or part. I hope to spend most of my time discussing this, but that's not the only rare or unique item. So, kind of want to quickly run through some other important things before I can address that that analysis and some of those cases I cite in the petition. So, uh there were a variety of errors before both the planning commission and uh the city council. Uh errors before the planning commission included the failure to allow response rebuttal evidence including after an open record period and also after at least one exparte contact and site visit and a variety of other evidence outside the record. That's not necessarily rare. But what is rare however is that the city council refused the schedule denovo or evidentiary hearing to cure the errors which occurred before the planning commission and instead decided after an onrecord review where no new evidence was allowed >> council did uh the applicant request a novo hearing before the city council >> yes so both in writing we requested the opportunity to submit new evidence if um you know I mean I guess we basically said no harm no foul if you're going to approve approve it, that's fine. But, um, in the event that there's any question at all about the substance of the application, we explicitly requested the opportunity to sub submit evidence in a denovo hearing. >> That's both in a written appeal statement and then also there's a motion to take evidence that has emails with city staff prior to the hearing. And I cite to um various portions in the record where I say we're willing to wave the 120day. were willing um in order to put new evidence in the record if you guys find that there's an issue with the application, which again, it's kind of saying, you know, if you don't need to schedule another hearing if you're going to prove it on the record, again, the staff recommendation uh was to approve. Uh but if there was any question at all, which we also had a suspicion that the city was inclined to um deny it based on public pressure, we made clear that that would be legally impermissible unless there was a new hearing scheduled where evidence could be submitted, which is a nobo hearing under the Carlton city code and under >> Okay. And I understand, thank you for that answer. I understand the response briefs or at least one of the response briefs to say uh that petitioner the applicant would not wave the 120 days. And so that essentially justified the city council proceeding on an on there in an on there way. You're saying that the applicant did request a NOVO and offered to wave the 120 days to allow for a denovo hearing. >> Yes. And I think I explicitly put specific citations in the reply brief. Um, but even to the extent and and it's also in the petition, but even to the extent that that is their position, I would say that's an interesting argument to make that actually falls directly within the scope of what OS 1978510AB is intended to um to prevent, which is basically conditioning applicants their substantial rights to a full and fair hearing based on the 121day deadline. At the record, I think it's uh 87. That's exactly what we argue in our appeal statement that you can't compel an applicant to wave the 121 day. It's the city's responsibility to select a timeline compatible with OS 227178. Um but even here again as a practical matter because we just wanted to get this application approved. We were like at this point if that is the issue we will extend the 121 day tell us how much time you need to schedule denovo hearing submit evidence and I think those citations are in the reply brief if but they're it's in the record you know >> thank you uh one more question if we were to sustain one or multiple of your procedural assignments of error first of all what which gives you the most relief second of all what's your position on how we should proceed in terms of remedy and reaching any of the merits of the criteria. >> Uh my position is that I think there is clear procedural error um in that we weren't allowed rebuttal and response evidence um after the open record period um we were denied final written argument and under the unique facts of this case I think that did extend to the city council proceedings. Um the city knew that but they proceeded to have deliberations on October 22nd because of concern with mandamus. They said that expressly the Miller v. Multma County case shows that staff statements and recommendations are relevant evidence of intent of the local government. Um so I think that gets you procedural error. >> Okay. So, if we sustain that assignment of error for violating the statutory 7-day final argument uh allowance, would we then need to also address your arguments about bias and uh conflicts of interest or would we not address those things? >> Well, I guess so, so sorry. And just real quickly, um I guess my point is that the what grants us the most relief and I put it at the sixth assignment of error because I wanted it to be after you can read through the procedural errors, but it's RS 19783510AB, but the case law and I encourage you guys to, you know, and you will, but the Walmart um final opinion and the Walmart order and the so the Walmart v central point, if you read that opinion which discusses the the the intent of that statute. This is squarely within the merits. So, but there has to be and what hasn't happened in any other case until now is there has to be a uh deprivation of the petitioner substantial rights to full and fair hearing. So, you got to find one somewhere. I would say here it's the lack of response and rebuttal evidence after the open record period at a minimum. Also, you could argue the lack of final written argument. uh but that would give us a reversal of the city's decision uh in an approval with the uh conditions of approval that were proposed by staff and the applicant. I think it's there's a city of Salem case and that was when a city acted outside of the range of its discretion but you basically say okay we have to reverse it and approve and then we'll go back and you know the city can go back and find what conditions of approval or were uh you know suggested and recommended then that's what the city has to go back and do. So I would say you that would grant us the most relief is reversal on OS 19783510AB because the petitioner did not have a um its substantial rights were violated uh and it didn't have a full and fair case um and therefore it was not a decision on the merits. It was instead a proforma decision. Again, if you really read the nuances of the um uh the Walmart case, um that's what the board is looking for and what Walmart didn't allege in that case which prevented it from getting that relief. Uh in addition to, you know, later cases, Oregon pipeline in 2013, it's discussed and um Sirelli. Um, so you have to find the prejudice of the substantial right. Uh, and then assuming there's a situation that falls within the scope of the remedy or S197 83510AB, that would grant us the most relief. I think you should still go and um uh proceed to I think you the board could and should proceed to a bias analysis um because that would but I suppose it does not have to if it finds that there was a um substantial right which is prejudice that denied the applicant a full and fair hearing uh because of concern with um the 120day deadline which the Miller v. Multma County case says it doesn't need to be the primary purpose. It just needs to be in whole or part or consideration of the local government. That's in one of the footnotes. And then in the body of the opinion, in that case, Miller v. Mulnoma County uh the board did not grant relief because Luba found that the county commissioners um didn't even consider the 120 dead day at all as a matter of fact. Instead, they found they the board found that as a matter of fact, the board thought they were just taking a purely ministerial act and just memorializing what had already been done, which was uh an entering a mistakenly and innocently entering a non nunk pro tunk order based on a prior oral decision that is distinguished from the facts of this case. Um where again, this is not something that would become ubiquitous. So, it's not something that I think for policy purposes the board should be cautioned about granting relief on, but this is a rather rare case where there is a deprivation of the petitioner substantial rights to a full and fair hear hearing if nothing else on the lack of rebuttal and response because of concern with the 120day deadline in this policy matter. the entire the Oregon legislature wanted to make sure that applicants can have a full and fair hearing within that 120day deadline and you don't condition their right to a full and fair hearing um because of the 120day clock. It's the city's responsibility to make sure that they get the full and fair hearing within the 120day clock. The Walmart opinion discusses that a good faith approval is one on the merits which means a real decision which mean and it even says that means an adequate evidentiary record which would withstand appeal here >> you're going you're going into your rebuttal and you're welcome to but at this have about four minutes for your rebuttal. So just wanted to make you aware of that. >> Okay. I would just say quickly because just um you know there's obviously a lot to go through the the briefs and the reply have a lot there. I would say that um as it relates to bias, if you're not going to find a reversal because of the um application of the OS 19783510AB remedy, um you know, the bias, this is unique. This is Columbia Riverkeeper and Bots Marsh have a very narrow uh basis to allow for actual bias. I think that's um the case here. And with that, I will reserve the rest of my time for rebuttal. >> Okay. and you'll have about three and a half minutes for rebuttal unless there's questions from the board. Okay. Uh three and a half minutes for your rebuttal. And with that, we will turn to uh respondent or intervenor respondent, whoever wants to go first. Go ahead. >> Interviewer respondent. Um Andrew Monkey for intervening respondent Felix Madrid. I'd like to begin by talking about generally the framework for the first, second, third, and assignments of error. And it also includes the fifth and sixth assignments of error. But you know with respect to these procedural errors um alleged by petitioner these all have to do with and I want to refer Luba to the Pinnacle Alliance Group uh case but when there's an opportunity later in the proceedings or before the final decision maker to submit evidence during the denovo hearing um then that opportunity is adequate to ensure that the petitioner substantial rights to prepare and submit its case. How does that apply where there is no denovo hearing here? So in this case I I think it gets to the point that um uh your question earlier about uh the 120day clock and here it is it is true that the record shows that um the petitioner did ask for a denovo hearing but again the petitioner never authorized that denovo hearing by giving the city the uh waiver for the 120 day clock that it needed to actually have those proceedings. And so >> Kishner said during his argument that they did offer that they were willing to wave the 120 days. So you're is this a disputed fact here? >> Well, no. And I think I think what I want to say what I want to and and and petitions council did it again here is they're making a conditioned offer. They're saying for on a hypothetical event that they don't know the outcome of. So they're saying we'd be willing to grant uh this authorization uh if you feel that you need it, but otherwise we don't think it's necessary. We don't and and specifically the words here that are cited in the reply the made in the record and made actually before the final decision maker is um we would be willing to grant a period of time to hold the record open but then in the next breath council states we don't think that's required and again he says the applicant be would be willing to grant a waiver of the 120day rule essentially for the time period necessary to have another hearing but again that's not necessary under the circumstances because the criteria are met. So I don't think in other words this isn't a case in which similar to lower lake subcommittee um cited by the applicant in which the c the count the county or the city simply denied a request or declined a request for a denovo hearing. What happened here is petitioner made the request but they never took the additional steps needed to authorize um the time needed to have that hearing. And so this is more a case in which um petitioner had the opportunity but did not uh take the steps necessary to take that opportunity. Um and so these errors basically negate I think the first, second, third and also fifth and sixth assignments of error. um because because petitioner again was was always conditioning its its request or its willingness to provide authorization um on something that had not happened yet. >> So even if petitioner didn't authorize an extension 120day clock, why is it petitioner's responsibility to help the city out when they've for for whatever reason have taken longer than they're supposed to have taken? Well, I think in this case, um, the city's procedures, uh, G provided the option of a denovo hearing and, um, so again, that was, uh, based on petitioners, assignments of error in in a local appeal. And so it was petitioner's burden then to provide the the city the time it needed to address those assignments of error. it had the opportunity. And I I think I think that's the thing here is that the the case law shows that if if the opportunity is available and a petitioner does not take it, then there's no substantial prejudice here. um or there there's no prejudice to a substantial right because again I think I think what happened here is that the petitioner simply wanted to win uh and wanted to proceed with the development um and was not willing to put in uh more additional was not actually willing to put in additional time to um allow additional evidence to be submitted. And that brings me to the sixth assignment of air here and I I think this really turns on um two things. The first is preservation. Um which again respondents and I think intervenor respondent's point is that um petitioner did not raise the issue of a violation of RS227178. In other words, petitioner did not argue that the city was avoiding the requirements of the 120day rule or otherwise violating RS227178. Um, and it did not do that at any point in time before the city council. It did not do that before the planning commission. And it certainly did not exhaust that in its appeal statement. Um, and so for that reason, it's it's not a matter of of, you know, whether or not uh necessarily petitioner cited 1978 subsection 10AB, although it didn't. Um, it's it's also that it did not raise uh significantly the error. um that it is trying to remedy in these proceedings. Now um and I'll point out that you know the raise it or wave it rule applies to issues not specifically criteria. And so um even if there's an argument that somehow RS227178 wasn't a criterion or somehow did not need to have been assigned error, it's the issue was not raised uh below. And so for that reason, there's no opportunity to to raise those on appeal here. again, I think that petitioner had the opportunity to request and authorize a denovo hearing, but never specifically made that authorization. And I think what that would have looked like here is um petitioner just saying I will authorize an extension of a month so that we can have come back and have another hearing and do that and I make a motion to do that in in front of the the city council here um you know at the hearing and petitioner simply didn't do that. It only stated a willingness to potentially do that but it never affirmatively gave um the city council what it needed for that. Finally, I I do want to point out that the city my reading of Walmart is that um those the remedy provided uh in pardon me 197835 does not apply when the city issues a decision on the merits or makes what would otherwise be a good faith decision. This is not an instance of bad faith um denial uh of the opportunity for hearing. The city made an actual goodfaith decision on the merits and the record shows that simply put the the applicant failed to comply with the access spacing standards, failed to comply with the standards required to modify uh those access spacing standards and failed failed to comply with the off- streetet parking standards. And those are all new bases for denial that were included in this in the final decision makaker's decision. And so I do not believe that they were affected by any of the potential errors in the lower decision makers um decision. And I'm going into uh Mr. Yan Mlette's time. So I will stop it there and turn it over. >> Go ahead. Thank you. Uh madame chair uh board uh one of the uh prior questions related to which assignments of uh error the board should rule on and that brought in uh petitioner's fourth assignment of error relating to actual bias by councelor uh Terrell. Um it is a respondent's position that uh petitioner failed to preserve this uh issue for appeal during the city council hearing. Uh, councelor Terrell made multiple disclosures of uh, exparte um, excuse me, not really exparte contacts but outside statements um that may indicate bias against this particular kind of development. Uh, those disclosures were made on the record. Uh, councelor Terrell uh then explained again on the record that she understood the high bar that public officials are held to in making a decision on the merits of the case. Uh that they must afford um the applicant a impartial uh hearing and they must base that decision on the applicable criteria. Um after um all of the council members disclosures were made um uh in open room um with uh petitioner present uh an objection to any of the disclosure statements was uh requested. No objections were made. It was only when uh petitioners or applicants council realized that the council was going to deny the application, excuse me, that an objection was made uh raising concerns about councelor Terrell's bias. Uh the record um does not include sufficient evidence to prove actual bias or that councelor Terrell prejudged this case. Uh the discussion among the council, the final decision maker in this matter clearly showed that the decision was made based on the applicable criteria and the substantive merits uh of this. >> Do you have any case citations where we found a bias concern was waved when there were initial disclosures and the objection didn't come until later in the same hearing? I >> I do not have a citation for that, Madam uh related to the um bias matter depending on uh again it's relating to the uh prior question on requested relief and uh what happens after this hearing after the board makes its ruling. Uh there was an allegation in petitioner's fifth assignment of error that um one of the planning commissioners had an actual conflict of interest in this matter. Um uh the concern there relates to whether uh Commissioner Fernandez Madrid, the ex-spouse of Intervenor respondent Felix Madrid, who is an uh owns property adjacent to the development, um whether they were a relative under the applicable Oregon statutes, in order for an individual to be a relative when they are expouses, there must exist a legal support obligation. between the public official and the uh outside impacted party and specifically the statute says for that outside individual. Um uh petitioner has submitted a motion to take additional evidence relating to the prior uh dissolution proceedings between intervenor respondent and commissioner Fernandez Madrid. Um but the only evidence that a petitioner uh proposes to include indicate that there may be a support obligation from uh intervenor respondent to Commissioner Fernandez Madrid which is the opposite phrasing of the statute. It would need to be a legal obligation that Commissioner Fernandez Madrid held for intervenor respondent in order for them to qualify as relatives under the Oregon statutes for conflict of interest. Um, recusal would only be required if the parties were relatives and there was an actual conflict of interest. Uh in this uh case it is at best a potential conflict of interest that um should have been disclosed but it is our position that there is uh no disclosure was required because there is no conflict of interest. Uh so if this matter were to go um back in front of the planning commission um it would be the the respondent's argument that there is no conflict of interest that would require commissioner Fernandez from Madrid to not participate. in that hearing. Um the seventh, eighth, and ninth assignments of error uh relate specifically to the uh applicable decision criteria. Uh specifically uh the seventh assignment of error relates to the uh conditional use permit. Uh there were multiple uh specifically cited instances where uh the application uh at issue here did not meet the criteria um in the Carlton development code um relating to site size and dimensions that they must be suitable for the proposed use. um uh petitioner made arguments on the or made statements, excuse me, on the record um that uh they could only develop the property with two driveway accesses um which is not um allowed under Carlton's development code for this uh parcel. uh and therefore uh the site and size the site size and dimensions are inadequate for the proposed um development. Um and there were additional issues relating to the site design review um again relating to that driveway spacing standard and it was uh inappropriately requested to be modified under uh as a major modification of street uh standards under Carlton Development Code 17.64.05. 050. Um, so, uh, time is closing in. Uh, it is respondent's position that the petitioner's petition for review fails to allege that any substantive, uh, substantial rights were impaired based on the procedural irregularities um, at the lower hearings. Um, and the applicable criteria uh, support a denial. when there is adequate evidence on the record supporting the city's >> Thank you. Uh and thank you for being mindful of your time. We just got to 15 minutes. Appreciate that. Uh we'll return to petitioner for your rebuttal. Uh you have three and a half minutes for your rebuttal. Go ahead. And you're on mute, petitioners council. >> Uh thank you, board chair. Um, so yes, we dispute as a factual matter that we weren't willing or we did not offer a waiver the 121day deadline. We make citations to that point. Um, he does acknowledge we requested denovo hearing. Um and again even if his argument or even if as a matter of fact we didn't offer a waiver that kind of comes to the crux of our position which is you can't condition an applicant's uh substantial right to a full and fair hearing on a waiver of the 120day deadline or 227178 um says you can't we cited to that I think record 87 um in our appeal statement you just you can't do that and that's kind of the crux of the whole thing. So um and yes, our statements were conditional because we were stuck in an on record appeal hearing. So um we I mean we were in a position where we we were informing the city that in our view it would be legal error to deny the application if they didn't give us a denovo hearing or in request to submit um evidence um and and or they could approve it. Um but it would be legal error if they had substantive issues to to make the denial in that on record review. They were aware they could cure these procedural issues that we alleged, but they chose not to and they made a denial after the on record review. So that also goes to the um as it relates to preservation. Um issues are different than arguments. Um the board is aware of that. The issue that the OS 19783510AB remedy is intended to protect is an applicant statutory right to a full and fair hearing within the 120day deadline. It's intended to add teeth to the 120-day deadline. That's what Miller vultma county say and the Walmart cases and other subsequent cases. So the a bad faith denial means a denial and this is discussed in the Walmart uh final opinion. A bad faith denial, it's kind of interesting language, but a bad faith denial means a denial not on the merits and not on the merits means a denial which denied an applicant it substantial rights to a full and fair hearing. So we argued that issue below it was preserved. We didn't cite the remedy but that's not unusual because you know petitioners below or applicants below aren't talking about you know RS1978359C you know substantial evidence what have you. The substantive issue is that we were denied um a full and fair hearing with uh because of concern with the 120day deadline and in particular mandamus in whole or part which I think the respondent acknowledges that the uh mandamus was was a factor in the decision. So, uh, as it relates to, uh, councelor Terrell and and bias if if the board reaches that, um, assignment of error. Um, I I just as a factual matter, I disagree that her disclosures were adequate. Um, again, part of the issue that applicant had in this case is we didn't have enough time to review things. And so I guess the board has a policy question of, you know, are they going to require an applicant to um are you going to essentially reward um an inadequate disclosure because it's a lot different to say, you know, I signed a petition at some vague point in the past versus I signed a petition in opposition to this specific application um uh which uh you know opposed the application at this particular site. And in any event, um, we did, I guess by just stroke of luck, end up objecting anyways, which as a matter of preservation gave the city opportunity to cure and correct, which is the the policy intent behind preservation, giving them opportunity to correct the error before an appeal. So, um, and that go and then the city made a decision on a tainted record. Um, >> okay, we've, uh, we've exceeded your time now. So, let's look. >> Thank you, board chair. >> Yep. Thank you. Uh, that will conclude oral argument. The statutoary due date for our decision in this appeal is July 1st. We'll ask that the parties agree in advance that we issue our decision no later than July 22nd. Is that okay with these parties? >> Nods all around. Thank you. Uh and thank you for your arguments today. And that will conclude our oral argument. and", "summary": "Good morning. This is the time set for oral argument in luba number 2025-088 JIPR LLC versus the city of Carlton. I'm board chairs Moodio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with the recording. And uh in this matter we have a motion to take evidence and a motion to strike that are pending. We will resolve those in our final decision. And petitioners or petitioner, you have a tot…", "source_url": "https://www.youtube.com/watch?v=O4Kk_c4Y1Zw", "source_name": "Oregon LUBA", "doc_date": "2026-06-17", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2026-018 Paxton et al v. Clackamas County", "content": "Oral Argument 2026-018 Paxton et al v. Clackamas County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=hsj-MV84xys). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Mhm. Good morning. Uh this is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. Uh we had not seen the petitioning yet, so we will restart now. Okay. Good morning. This is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. I'm board chair Samudio. Board members Wilson and Basham are also present. Please keep your audio muted when you're not speaking, which will help with the recording quality. And this oral argument is being recorded and live-streamed. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? Negative from both parties. Okay, thank you. Uh oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Uh yes, please. Uh 5 minutes. Thank you. >> Okay. And I will keep track of time and ask that you also keep track of time on your end. The clock that's on the screen is just for reference and is not keeping exact time. And then respondent will also have a total of 15 minutes for responsive argument. So with that, petitioner, please state your name for the record and begin. >> Thank you, chair. Good morning, good morning, members of the board. Tyler McDonald appearing pro se for petitioners Michael Paxton For context, this case began with a roof. On March 4th, 2024, there was a fire at a building and then the fire department cut a hole in the roof to fight it, leaving the roof open to the weather. We applied for a like-for-like roof repair permit. We did not come to the county in doubt about what this building was. Our pre-purchase due diligence pointed one direction. The assessor's record, the 2005 approval, the county's on files, all commercial. The county held the permit and required us to verify the non-conforming use first, so we did. A roof repair began as a full A roof repair became a full verification and alteration proceeding. Then the county denied the verification. What began as a permit to keep the rain out became a fight over land use right that a final unappealed decision settled 20 years ago. The application has three questions. Was the use lawfully established? Was it discontinued for 24 consecutive months? And was it lawfully resumed within 1 year of the fire? The hearing's officer answered the first in our favor. He found the office use lawfully established in 2005 and that finding is not before you. But it matters because the county's first theory was that the 2005 approval was never valid for a lack of permits. Permits the county itself never required in 2005. That attempt to rewrite the 2005 decision failed. The hearings officer ruled against us on discontinuance and restoration, and those are the rulings before you. Before I turn to them, a framing principle. Many non-conforming uses reach this board with no prior lawful establishment decision. This case has one. The 2005 decision Z0797.05 is our source of truth. A final decision is worth what it says on its face, not what anyone wishes it had said 20 years later. Redefining the scope of a final decision by later observation is the Marcom Farms error. So, I'm not asking you to re-weigh evidence. I'm asking whether the hearings officer applied the right standard and what findings you can actually review. I will start with discontinuance and with what was approved in 2005. The county approved a service commercial office use of the entire 2,962 square foot building at record 264 condition 2. No floor allocation, no square foot allocation, no documentation requirement. The county conceded at record 33 to 34 that the 2005 file contained no floor plan, no architectural drawings, and no request for site plan. Only a narrative, a hand-drawn plot map, and a one-page 1987 tax valuation request. That was enough for a full change of use from restaurant to office. Now, look at what the final order demands in 2026. Floor by floor, tenant by tenant documentation from petitioners applying to repair roof. A higher evidentiary standard for a roof repair than the county applied for a change of use 20 years ago. And the division of of the building by floor was not our idea. The county introduced it after the fire as the only only path it offered to get the roof repaired. We never conceded the building wide approval. And here's the part the hearings officer cannot get around because he wrote it. At paragraph 5E, he held the county could not 20 years later reverse the 2005 finding that no permits were necessary because a final unappealed decision cannot be changed by requirements it would never imposed. And he was right. He then imposed floor allocation, tenant documentation, and subcategory restrictions the 2005 decision did not contain. Same principle, opposite result. He treats the same use as a build building wide when he establishes it and down serves only when he counts it. A decision that cannot say what is approved cannot tell which standard applies and cannot be reviewed. Our first assignment of error. That rewrite drives the discontinuance ruling and it starts with the burden. Five weeks before the staff denial, the county's own planning director put the framework in writing. Record 534. Director Hughes wrote that on a 10-year showing of continuity, quote, the burden then shifts to the county to demonstrate whether a discontinuance occurred. On a recorded call at record 243 to 244, she told us what would establish that showing. Tax records, business records, old photographs. We produced exactly that. The hearings officer recited that framework at paragraph 6B never told you which standard applied. The burden going forward never moved to the county. Third assignment of error. And look at the evidence on each side. Petitioners produced primary evidence of commercial use throughout the 10-year window and beyond. Business registrations at the site. Continuous commercial tax payment through present day. Mr. Parker's continuity statement at record 615. Against that, the county had secondary evidence requiring inference, a water consumption gap from 2010 to 2013 despite the account remaining active and being outside the 10-year window, and alleged power disconnected May of 2023, 10 months before the fire, and 18 months before the sale to Mr. Paxton, and an alleged registration gap. None of these identifies a single continuous 24-month period of continued uh of office use cessation. Discontinuance requires one unbroken period, and the order never ties these scattered years into one. That is a gap in the findings, not a dispute about weight, for the assignment of error. The order also contradicts itself on the rule that governs this. At paragraph 10e2, the hearings officer acknowledged Coons that residential use of one portion of a building does not terminate the office use of another. He then applied the opposite. The mere presence of residential use in part of the building does not show the office use stopped anywhere. Turning to the second ground, the 1-year deadline >> Or uh Mr. McDonald, before we we turn to that, um it's a little unclear to me from the decision and your brief exactly what what is your position? Like what happened between What was going on there between 2015 and 20 2025? Cuz that seems what the real issue is here, and it seems like maybe there was overlapping offices. Was there one office? Was there two offices? Was there three offices? Was there residential use? Could you sort of give me a timeline from 2015 to 20 2025 that shows what you are arguing what office use occurred there for those years. >> Of course. Yeah, uh the the timeline provided uh within the uh record um uh has a outline of the uh multiple businesses that were there. Um it was actually being leased to Hood Alternative um Medical LLC. >> Is there a Is there an actual timeline in the record? You refer to the record, but is there a page number we can look at that will show us that? >> There is. Yes. >> kind of jump around, so I think we're trying to figure out a continuity. Um I believe it is around uh record 615. Um I don't have it on this sheet here, but I do believe it is record around record 615. It was towards the beginning of our um it was in response to the incomplete notice from March 28th, 2025. We submitted it on May 22nd May 21st or May 22nd of 2025. Um I don't have the exact citation in front of me right now. >> That's fine. If you could just summarize that also. >> Sure. Yeah, it is a full uh full timeline from 2005 all the way to uh 2025. It dives into uh it's color-coded. It goes into multiple facts of the businesses that were there, uh utility records, commercial taxes. It puts it all on a timeline for them to be able to see um that there is no 24-month um uh discontinuance period um including uh the COVID-19 state of emergency as well. >> So there were multiple offices operating out of the building at some points? >> Correct. Uh I don't think at one period, no. Uh there were multiple throughout this time period that were uh conducting business like but alternative uh uh Mr. Parker, the previous owner, uh had multiple LLCs, uh property management LLCs that he ran out of the building as well. >> So just one office use or one specific office at a time? >> From our From our understanding of what we've gathered, yes. That is our understanding. Correct. >> Okay. Thank you. >> Yes. Uh uh turning to the second ground, one year deadline to restore the use. ZDO >> You have about 30 seconds left for your primary argument. You're welcome to continue on and shorten your rebuttal period, but I just wanted to let you >> Fair. Okay. Thank you. Appreciate that. Um Yeah, moving to the second ground. Um The ZDO reads that the law for resumption there are two pathways. The permit is one pathway, the resumption is is another. Um for the first time he recast the upstairs as an expansion and decided the restaurant permits alone. Um the whole building was approved in 2005, so moving within it is not an expansion. Um there are three distinct reasons that this should not stand. A resumption was shown on the record. Um a specific response by Mr. Parker Um on uh explained that he was using this after the fire. It was a direct response to Miss Ganzers question of how it was being used. The final order takes the narrow answer and labels it as storage, reads the file access language out of it. Um even so, Mr. Paxton's affidavit at record 653, Mr. Aaronson's invoices at 656, and the McDonald affidavit at 658 are all within the one one-year window. Um Uh you know, this In In closing here, um we ask you to remand as we have provided extensive records in this In the In the 900 place records, you can see multiple businesses, questions answered, and efforts to uh get this property fixed after a fire. So we just ask you to look at the entire record. I reserve >> Thank you. You will have 4 minutes for your rebuttal and we will turn to the county for your argument. Please state your name for the record and begin. >> Thank you. Caleb Hugel for respondent. As has been said, the hearings officer had two reasons for denying the application. The first was that the petitioners didn't show that the office use of the building hadn't been discontinued. And the second was that because the office use in the upstairs portion of the building had been discontinued, petitioners using the upstairs as an office after the fire wasn't sufficient to lawfully resume the use within a year. I think the three the three most interesting arguments that petitioners advanced are those related to medical office use, storage use, and whether the discontinuance findings were supported by substantial evidence. Those are I think the sort of media's issues here. Um We don't understand petitioners to argue that office use includes medical office use. Rather, in the petition for review, we understand petitioners to argue that service commercial uses includes medical office use. Our point is that the 2005 decision didn't authorize all service commercial uses. It authorized one in particular, office use. The hearings officer concluded as evidenced by the ZDO that medical offices are not the same as other types of offices. And I think that makes intuitive sense. >> Mr. Hugel, sorry to interrupt, but did did the hearings officer find that that that Hood alternative was actually operating there and and then said it was a medical office, not a a another kind of office, or did he just find that we can't he couldn't tell what was going on? >> The hearings officer concluded that there was no evidence that Hood was operating an office to the extent that they were operating a medical office. He said that is not the same. The hearings officer did not conclude that there was and there and and truth be told if you look at the record, there is no evidence that a medical office was happening at all. So even if Luba were to conclude that uh you know, medical office as it's defined in the code could qualify as an office use as it's undefined in a non-conforming use decision, there's still there's still no evidence that office use took place, medical or otherwise. >> Okay, that's what I that's what I thought. I just want to make sure you weren't saying that a medical office was occurring, so. >> No, I no, I'm not. And and sort of going back to your I think um record 13 to 15 is where the hearings officer and I agree he jumps around. 13 to 15 is where uh he adopts the finding saying, \"Well, petitioners argue these offices were operating on the property at these times.\" There was some overlap, by the way. Um I think the gist of the hearings officer's conclusion is that yeah, so so some businesses were associated with the property. They used it as their mailing address or their their uh their office address. That is not office use of the building. Anyone can say that an address is where I would like my mail sent or where I am conducting business. That is a far cry from actually using the space for office purposes. That's what I wanted to get to. Yeah. >> Um so and and again, like you said, the hearings off the decision jumps around a lot and I'm having trouble telling exactly when he found those 24 months were where there was no office. He's not I think I think you did an excellent job of trying to pull out the important stuff from the decision and make it more understandable, but if you could tell me what what what which 24 months did they not show that there was office use? Or where in the decision does that say? >> I think that the hearings officer reading the hearings officer's finding is none of the evidence that was presented showed that office use was happening for any of those 24 month any for any of those 24 months in the prior 10 years. The hearings officer you pointed to it was it was petitioners burden to identify the evidence demonstrating office use. Petitioner pointed to how businesses were associated with the site but not that that not how they were using it for office purposes. So I think the fair reading of the >> that the hearings officer found that none of that 10-year period from 2015 to 2025 there was not sufficient evidence that there was any office use during that 10-year period. >> No, I don't think the >> you know that from the findings? >> I don't I don't think the hearings officer found that the hearings officer didn't find that there was no office use for a specific 24-month period. Petitioners are correct about that. I don't think the hearings officer was required to was not the hearings officer's job to say and during this period it was discontinued. It was petitioners job to say and it was an office use for the entire 10 years and here's the evidence demonstrating that and the hearings officer said, well, none of the evidence you provided demonstrates that there was office use. >> Okay, so then the the my question again is for that 10-year period from 2015 to 2025 your position as the hearings officer found that there was no office use during that entire 10-year period. >> The hearings officer found that petitioners didn't demonstrate that there was any office use for that 10-year period. >> So your position is hearings officer found there was inadequate evidence to show that there was any office use for that 10-year period and if that finding is accurate the hearings officer wasn't required to find any particular 24 months of discontinuance. It's any time within that 10 years. >> That's correct. All of the evidence that petitioners pointed to the hearings officer didn't say any of it was was sufficient to demonstrate office use. >> So your reading of the findings is the hearings officer said all of the evidence that the petitioner presented shows that there was no office or does not establish that there was any office use. >> Correct. >> It's hard to find that in those findings, but I understand that's your position. >> Well, but but I mean I think it's record 14 to 15. It goes through all of the evidence that the petitioners provided for why there were there was office use going on and it was the fact that certain businesses were associated with the property. And the hearings officer goes on to say, \"Yeah, but none of that evidence explains how they were actually using the property.\" The hearings officer was of course responding to evidence provided by the petitioners. It wasn't the hearings officer's job to come forward with evidence on his own. Um uh that that office use was not happening. It was whether the petitioners presented evidence that it was and the hearings officer clearly found that it that they didn't. >> Thank you. >> Was it Is it clear from the findings that he was finding that uh there was no office use for this for this for a 20 Well, I guess for the whole 10 years, no office use of the entire building and no storage use? Like, let's say let's say we we agree with petitioner that they didn't have to like split up the building. As long as there was a use anywhere in the building, they're okay. And that office storage was okay. Even if they get all of that, is there still something in the decision that says even if they even if that's true, they still didn't show the whole 10 years? >> I don't think so. As I read the hearings officer's findings, um it is that storage use of upstairs began taking place uh after the fire. I I don't read uh the hearings officer's findings or the evidence he points as saying storage use of the upstairs happened before the fire happened. So, I think you you're still left with a 10-year gap. But I think I think even if even if and and and I don't think resuming office use or office-related storage use, if you consider it office use, of the upstairs even though that happened after the fire, the hearings officer's point on the restoration or replacement and the one-year timeline was that that was not sufficient because there were there there the upstairs there is no evidence that the upstairs was ever used as an office. So, office use afterwards can't resume that portion of the >> Okay, thank you. >> Um >> I understand you're in a position where you didn't write the decision and you have to be defending it. I'm just having a little bit of trouble finding that idea that there's no no office use was established during that 10-year period. Can you point me to specific finding? >> The the hearings officer did not find there is no there was no office use during the 10-year period. The hearings officer framed this in terms of petitioners' burden. Petitioners were required to put forth evidence demonstrating that there was office use for the full 10 years. And the hearings officer addressed every piece of evidence that they provided and concluded that doesn't demonstrate office use. And accordingly, the hearings officer concluded petitioners didn't meet their burden. But the hearings officer wasn't required to find that there was discontinuance for 24 months. The hearings officer was required to find or determine whether petitioners demonstrated that there wasn't a discontinuance for 24 months. It's all about the burden. And and the hearings officer adopted a finding specifically addressing the argument we see in the petition for review that it was the hearings officer's job or staff's job to come up with a 24-month period in which no office use was happening. That wasn't the case. It was petitioners' job to come up with a full 10-year timeline, not just that businesses were associated with the property, but that they were using it as an using it as an office. And petitioners didn't meet that burden. >> Okay. And then you make some distinctions in your brief about different types of office use or office storage versus office use as is described in the current code. Are all of those code provisions that you rely on, were those in effect at the time of the 2005 decision? >> That's not in the record. I don't think, but I don't think it it was and and maybe that would strengthen the hearing's officer's decision. I don't think the hearing's officer was saying because these provisions were in effect at the at the time of the 2005 decision, the terms must be based on them. I think the point is that uh because this is a non-conforming use, office use has to be construed narrowly as a matter of policy. That's the park's decision. And and and because the current code >> Why would you look at the current code to Sorry, you were getting there. I'm going to >> Yeah, I was going to say yeah yeah I think I think the the distinctions between medical office use and office use and distinctions between office use and accessory uses including storage demonstrate that they are not one in the same. Uh I think it's a matter of how how uses are characterized. We have to We have to construe non-conforming use decisions narrowly. Uh and and how could we construe the term office use in a non-conforming use decision to mean something broader than it would mean under the commercial zoning today where where office-related storage is is specifically called out as an accessory use. It it's not automatically >> your argument's a contextual argument cuz I think counterargument to that would be well, if it wasn't distinguished in 2005, then the county would have had no reason to to describe all of the sub uses or all of the uses which again, like nobody can attack the 2005 decision at this point. I don't think anybody is arguing that you can't. So I understand your >> And though that And that was all I was going to get at. I think we've touched on all the arguments I wanted to make. Substantial evidence. Importantly, who had the burden of putting forward evidence? And and and did the hearing's officer do an adequate job of explaining why they did not meet petitioners burden. And then the office use versus medical office use, office use versus storage use, and it comes down to we have to construe these narrowly. Um and and that's all I have. I will um yield the rest of my time unless there are further questions. >> Um yeah, so kind of getting back to my earlier question, I understand your argument that you know, it's their the petitioners burden to establish that they had the continuous use for 10 years, but I still think if the the the decision's got to point to some 24 months that he found they didn't establish. And I think I understand you say the whole 10 years they didn't establish. And I'm looking I'm trying to find a finding that would support that. And I'm looking at it's page 13 of this decision and I think it's 9B sub four. He's talking about the Hood Alternative Medical Center, and he says therefore, absent some evidence demonstrating that Hood Alternative Medical Center LLC used as an office rather than a medical center or other use between 2014 and 2020, the hearing's officer must find that the non-conforming use of the site was discontinued during the period and may not be resumed. Is that enough to hang your hat on to say they did not show for that 6 years that there was office use of the of the of any of the building? >> That's enough, and I think I think there are similar findings as to the other two businesses that were operating during this 10-year period, Parkland and Rockport Crane. The point is that the evidence that was provided saying, \"Oh, well, we've got an office operating here.\" didn't actually demonstrate that there was an office operating here. >> Okay. I thought it was more clear on that one than it was on the other ones. >> And and I'm not going to say that it's not more clear there. My reading of the decision was that sort of it was the same response to all of the evidence. A business being associated with a property is not the same as them conducting an office use there. >> And then my final question is, he's also got a couple sections about stuff that happened between like 2010 and 2015 and I don't see why that's relevant. I think you sort of said even assuming argue window that petitioners right that's not relevant. Is is that anything between 2010 and 2015 relevant? >> I don't think so for purposes of of of petitioner trying to meet their burden. I I suppose no I no I no I don't think it's relevant. The hearings officer could have adopted findings saying well even assuming petitioners had met their burden for the 10-year period these things exist during the 20-year period which defeated. Hearings officer didn't adopt those findings so I'm not you obviously can't impute them to the hearings officer. But I but the question of course is looking at the record um even if you excluded the things prior to the 10-year period could a reasonable person conclude it as the hearings officer did and I think they could have. >> So the stuff he has in there about the water in 2010 that's just surplusage that we don't have to worry about. >> I think the decision is supported by substantial evidence even without that. >> Okay, thank you. That's all I got. >> Okay, no further questions from the board. We will return to petitioner for your rebuttal. You will have 4 minutes for your rebuttal. Go ahead. >> Thank you. Um addressing uh you know the respondents positions here I want to call out clearly I there's nothing in the record that indicates that this is a medical center. Um the comments are based off of the name of the of the business. Um I mean the same the same thing could have been done for Rockport Crane. It's it you know we could make the assumption that that is a uh construction company. Um because they're you know cranes are operating cranes out of there. I mean we're really jumping to conclusions here based on a name um and within the actual hearing itself um there were many opportunities for for these types of clarifying things to be directed at you know the petitioners to get this type of information. Um you know moving to the to the you know the record being thin and not supported by substantial evidence, I believe is my understanding of the respondents arguments. Our words and our affidavits should should matter. And the reason I bring that up is I I point to the 2005 where the complete change of use was was hanging on a hand-drawn site map, a narrative description, and a 1987 request to change the market valuation of that to to then require >> Mr. Dodd, I want to jump in before we run out of time. Going back to that finding I I quoted to Mr. Hugo. So, is it your argument that it was Hood Alternative Medical Center that was the office use between 2014 and 2020? Or was there some other uses there, too? >> It's it's office use. That is >> No, but was it Hood Medical or was it a different company? Hood Alternative Medical. >> Hood Alternative Medical LLC, I believe is the full business name. >> Right. So, you're not relying on some other company doing office use between 2014 and 2020. >> It does overlap because the building was being leased out the overall building that owned the last owner also had LLCs. I don't believe they're maintaining at the same time. I would have to review the timeline again. But specifically, there were multiple throughout that time period commercial businesses active. >> Were there at least 2 years where only Hood Alternative Medical Center was your your office use you're relying on? >> No. >> No? >> No. >> Okay. All right. Thank you. >> In closing, I just I ask you guys to again review the record and specifically the 2005 decision. Specifically regarding the, you know, no jurisdiction to talk about, you know, delays in the expansion as outlined in the reply brief and petition for review, that should be our source of truth and our North Star. Thank you. >> Thank you. No further questions from the board. That will conclude oral argument. The due date for statutory due date for a decision in this appeal is June 15th. We'll ask the parties to to agree to an extension so that we issue our opinion no later than July 6th. Is that okay with these parties? >> Yes. >> Yes, it is. >> Okay. Thank you. Uh", "summary": "Mhm. >> Mhm. Good morning. Uh this is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. Uh we had not seen the petitioning yet, so we will restart now. Okay. Good morning. This is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. I'm board chair Samudio. Board members Wilson and Basham are also present. Please keep your audio muted when you're not speaking, which will help with the…", "source_url": "https://www.youtube.com/watch?v=hsj-MV84xys", "source_name": "Oregon LUBA", "doc_date": "2026-07-14", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-073/074 Bartholomew et al v. Clackamas County", "content": "Oral Argument 2025-073/074 Bartholomew et al v. Clackamas County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=NZV1prJo4Fo). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nHi there, Petition Bartholomew. Are you planning to join by video or audio only today? You're muted if you're speaking. >> Okay. Thank you. Yes, I will. There we go. Okay. Hello everyone. This is the time set for oral argument in Bartholomew versus Clakamus County. Luba numbers 2025-073 and 074. I'm board chairs Moodia. Board members Wilson and Basham are also present today. And please do mute your audio when you're not speaking. That will help with our recording. And just for your awareness, this uh oral argument is recorded and is also being livereamed uh via so you can review it there. Oral argument is a total of 30 minutes. Petitioners, you share the same 15 minutes. Have you decided among yourselves how you'll share that time? >> Uh yes. Uh good morning, Madam Chair, members of the board. Greg Hathaway representing petitioner safe Stafford Road. And I'm going to take the first five minutes of our time uh in our opening remarks and then Miss Bartholome take the following five minutes and then we'll reserve five minutes for rebuttal and share that. >> Thank you. Thank you for um figuring that out in advance. really appreciate that. And intervenor respondent and uh the county, have you decided how you'll share your 15 minutes? >> Yes, port chair Ivan is Gutierrez for intervenor respondent Portland General Electric Company. We've decided that I will take uh the first 10 minutes and then Mr. Hugh will take the remaining five minutes. >> Okay. And thank you thank you also for deciding that and working that out before oral argument. And um with that we oh we do have a motion for stay and a motion for expedited ruling on that stay. We've received a response to that motion for stay and we will resolve that in due course. >> Um other than those I don't I'm not aware of any other pending matters. Um okay nothing else. So we will go ahead to oral argument. Um whomever from the petitioner side is starting please state your name for the record and begin. >> Yes chair um and members of the board. Greg Hathaway representing Petisher Safe Stafford Road and uh also legal council. Good morning. Um the focus of my argument this morning is going to be on Petitioner Safe Stafford's roads uh first three assignments of air uh regarding PGE's proposed project. The PG project will replace his existing poles and distribution lines with high power transmission lines with significantly taller and wider poles. Not slightly taller, but significantly taller and wider holes. Petitioner Stafford Road consists of owners of homes in the Stafford Road area that would be visually impacted by PGE's proposed project. These residents are concerned about the adverse visual impacts that PGE's proposed project will have on the use and enjoyment of their residential uses. The hearings officer agreed with Safe Stafford Road's concerns. The hearings officer made these findings. First, PG's project would increase the visual impact with views from budding homes along Stafford Road. Two, PG's project would have significant visual impacts in comparison to PGZ's PGE's existing lines. and PGE's project would create a far more industrial aesthetic that was actually inconsistent with the current visual identity and character of the Stafford Road area. These findings that the hearings officer made were based upon photographic simulations that were prepared by Ed Wagner who's the president of City Stafford Road and those photographs simulations are part of our petition for review. So you have those comparative simulations in our materials. The hearings officer acknowledged that these photographs were uh acknowledged as as uh accurate and he accepted them into the record as being accurate simulation of the comparison between the current PG project and then the proposed PG project. The key question on appeal is whether the county's code would allow such a project with all the visual impacts identified by the hearings officer in the Stafford Road area. In the key co-provision in petitioner's first three assignments of heir is ZDO 12303D. ZDO 1233D allows projects that may visually impair the use enjoyment of residences but not if the project substantially visually impairs the use and enjoyment of those homes. The hearings officer defined the two key terms in ZDO 12303D to apply to his findings. The hearings officer defined the term substantial to mean significantly greater and the hearings officer defined the term impair to mean make worse. and petitioner safe Stanford Road agrees with the hearings officer's definitions and I don't think any party to this proceeding is in a disagreement with how the hearings officer defined those terms in that code division. Uh the hearings officer concluded that the proposed project would not substantially visually impair the use and enjoyment of homes in the Stafford Road area since even though the Stafford Road area would look differently if the proposed project were constructed, those homes could still be used for residential uses. Now, here's the irony of the hearings officer's conclusion. The hearings officer found that the proposed project was visually bad and would adversely affect the visual identity and character of the Stafford Road area, but not bad enough to deny PG's proposed project pursuant to ZDO 12303D because the residents can still use their homes. But it's the opinion of petitioner that's not the test set forth in ZDO 12303D. is not whether the residence could still be used for residential use, but if the visual use and enjoyment of those residences were substantially impaired by the proposed project, which the hearings officer found to be the case. Is petitioner's position that the hearings officer misconstrued his own defined terms in reaching his conclusions? Again, the hearings officer defined the term substantial to mean significantly greater. He defined the term impaired to mean make worse. When you apply those definitions in his findings, you can only conclude that the proposed project would significantly make greater and make worse the visual impacts of the Stafford Road area than PGE's existing lines. is petitioner safe staff for Rose's position that the hearings officer had actually properly applied his own definition of of ZDO 12303D to the to to his findings the hearings officer would have concluded that PG did not beat it burden of proof >> Mr. H. >> Yes. >> Um so I see your quote about or where you quoted the findings that talk about how uh surrounding properties can continue to be used for residences, farms, and other permitted uses. And I I think I tend to agree with you if that's all there was, that's not good enough. That maybe gets to the preclude prong, but it doesn't really get to limit or impair. Um, but the intervening respondents, they also site, I think it's from the page right before that on the record. Um, where the hearings officer talks about the poll will be 250 ft apart. They'll be spaced. Uh, they only take up a small portion of the viewing set. Um the wires are above second floor residenc's windows. So why is that set of findings not good enough? >> Because it doesn't address nor respond to his prior finding about visual impacts. Th this whole argument that petitioners say Stafford Road is about the visual impact on the enjoyment of those homes on Stafford Road. And so the quote that you just had uh uh uh was was is in our opinion not relevant to his ultimate finding that he made which was that the visual identity and character of Stafford Road area would be altered by this project. And so that finding that he made in our opinion isn't even responsive or rebutt his prior finding. If if he's using that as the basis then to overcome his prior finding we don't think that's adequate. I understand the respondents or intervenor respondents to be arguing that that quote about the industrial aesthetic that's whether or not you alter the surrounding use of the area and then once you find out that it has been altered then you go to the next step and does this substantially impair limit or preclude in this case residential uses. So why is why is it why I'm not sure why that makes the Well, the key finding that we're focused on is the finding that was made by staff in denying PGE's non-conforming use application. And the hearings officer adopted that finding on visual impacts in this decision. And I know that a respondant is arguing that they're two different standards and they are, but the fact remains is that the hearings officer adopted the same finding and applied them to the standard in this case. So those findings are applicable and those findings stand on their own two feet. And if you apply the definitions that he defined, which we have no disagreement with, and you apply those defined terms to that finding that he adopted, you can only reach one conclusion and the conclusion is is that the project's going to substantially impair the visual uh identity and character of Stafford Road and affect the use enjoyment of those residences. of the finding that you just cited I think is is not uh a finding that somehow rebutts that p the finding that I just talked about. I mean it stands on its own but if the argument is that finding somehow overcomes that other finding based on the the way he defined the terms uh we don't think that's a good argument. >> Okay. Thank you. Anyway, just to close very briefly, we're just asking Luba to either reverse the decision or reband the decision to the hearings officer to explain how he could make those findings that the project would visually impair, if you will, the Stafford Road area and then conclude based on his definition of the terms that this project would not substantially impair the visual identity and character of the Stafford Road area. >> Thank you. And we'll turn to petitioner >> Thank you. May it please the board. This appeal presents three legal errors on the face of the hearings officer's decision. each independently requires remand, but together they show that the county approved an integrated transmission project under a mclassified project description and as a result failed to apply the applicable approval standards. I'll address these errors briefly. Number one, failure to apply the applicable standards for each zone. The the final order repeatedly describes the proposal as a single continuous 5.9 mile transmission project that adds new transmission capacity along the Stafford Road corridor. That project crosses RRF5 and EFU zoning districts. The land use process requires the applicable standards for each zone be applied to the portion of the project within that zone, but the county didn't do that. Instead, the decision treated large portions of the project, particularly the EFU rightway segment, as categorically outside of land use review and therefore outside of any substantive analysis. As a result, the county failed to apply EFU standards to EF portions of the project, even though those portions are part of the same integrated transmission line approved through this decision. That failure is driven by the county's characterization of the project as mere upgrade or maintenance. By using that framing, the charact the county treated new transmission construction as legally equivalent to existing facilities and therefore exempt from meaningful review. But just to be clear, this project involves removing 256 trees, removing 134 modest wood poles, constructing 5.9 miles of new steel poles up to twice the height and three times the diameter, introducing a new function transmission. building a new line in a onem stretch that has no existing infrastructure, which raises how can you maintain or upgrade when a mile of it has no infrastructure at all. Um, expands the footprint and takes dozens of new property easements. By every land use definition that I can find, this is new construction, not maintenance. And under settled luba precedent, an integrated project cannot be approved unless the applicable criteria are applied properly. And this did not occur here. Allowed. Number two, allowed without review does not mean immune from standards. The second error flows directly from the first. The final order treats utility poles located in the EFU rightway as not part of the analysis because they were allowed without land use review. That is a mislication of the code. Allowed outright means no separate permit is required. It does not render facilities exempt from conditions, impact analysis, or consideration when they are part of a discretionary land use approval. That approach would render large portions of the project legally invisible. Furthermore, the hearings officer exempted the entire project from ZDO Chapter 1000, yet selectively applied chapter 1000 standards such as wildfire mitigation through conditions of approval. Does that mean wildfire mitigation conditions only apply to part of the project? I don't think that kind of pick and choose application is lawful land use review. Luba has made clear that local government may not approve conditional use while exempting major portions of the project from that very standards governing that approval and that is what occurred here. And finally, the county made inadequate findings on the scenic road character impacts. Stafford is a designated scenic road and the final order acknowledges that the project replaces existing poles with taller, more industrial structures, but it never explains how that change is consistent with scenic road policies. Instead, the county relies on conclusory reasoning. Other scenic roads have transmission lines. Some transmission lines already exist in the corridor. That is not the analysis required. The failure to acknowledge that this project involves new construction, not mere maintenance, explains why they never grappled with the magnitude of change being approved. The county does not connect the evidence in the record to the applicable comprehensive plan scenic road standards in a reasoned way. In other words, the county never asked whether the removal of 256 trees and installation of poles of this height, this scale, this appearent, how are they consistent with the scenic road requirements to protect scenic features and ensure visual characteristics appropriate to the setting, particularly when the record shows in the prior denial, the county found these same poles to be incompatible with the setting and to create a marketkedly more industrial aesthetic. Under OS97835, that failure alone requires remand. So in summary, the county failed to apply the applicable standards to each zone portion of an integrated project. It misused the allowed without review exemption to evade substantial standards and it adopted conclusory findings on scenic road character impacts that were all stemming from the incorrect maintenance framing of what the decision itself acknowledges is new transmission construction. For any of these reasons, remand is required and for all three remand is unavoidable. Thank you. >> Thank you. Uh we have reached almost the 15 minutes for petitioners oral argument. So we'll give both petitioners 2 minutes for your rebuttal and we'll extend the intervenor and respondents um by four minutes also. So if you have more things to say we can continue. Intervener I think you're beginning. So please state your name for the record and begin. >> Thank you board chair. Um may I please the board I send Gutierrez for intervenor respondent Portland General Electric Company. As I stated previously, I will be handling the first uh the first 10 minutes or or 12 minutes now for addressing SSR's assignments of error and Mr. Hugle is going to address the assignments of error raised by um Miss Bartholomew. Uh and similar to Mr. Hathaway, I will focus my argument on the first three assignments of error. Um, and I unless the court has any questions, I'm happy to address the fourth assignment of error, which is thoroughly briefed in our in our brief. Um, the first three assignments of error for SSR's petition for review can really be collapsed into one um assignment of error, but there's two components to it. The first part is this allegation that we that the hearings officer misconstrued the applicable ordinance. And then the second real big part of the assignment of error is that the findings are inadequate. Um and as explained in our brief, that just simply isn't the case here. Um Mr. SSR's argument at towards the end um says we we the board should remand in order for the hearings officer to explain how it how it's um >> harmonized the staff's finding that this would cause a significant visual impact with the requirement under the zoning ordinance. But what more is there left to explain? uh board member Wilson um I I agree that you know the on on the record on 45 the hearings officer went through very thoroughly and explained here's what the visual and aesthetics arguments are and let's talk about it. He argued uh he states it could be argued that clearing will create more panoramic views of the landscape. Therefore, the impact of the change is subjective depending on the viewer's preference for forested or open rural views. Drivers, he then goes on to say, drivers on Stafford Road will experience both views as they travel along the roadway. Uh, however, these facilities will not completely obscure such views such as a building or tall trees would. Therefore, the new poles and wires will consume a relatively small portion of the lower larger viewing shed in addition to the existing poles and power lines which are located at lower elevations already impact the views in this area. He also then uh says that although the evidence regarding some of these issues is conflicting, the hearings officer finds that the applicant's evidence is the most persuasive based on the discussion in this final order. He also adds that increasing views of the power lines and creating more open views for persons traveling on Southwest Stafford Road as well as for the owners and residents of some properties and that generally these transmission lines will be living in harmony with with the properties. What more is there left to explain about how a finding from the non-conforming use application which has a different test of no greater impact is harmonized with defining for this conditional use application that yes there's significant visual impact but under this board's decision in York I'm moving on to the second prong which is does that even if it's significant visual impact actually substantially limit impair or preclude the uses in the surrounding So um I I understand your point about that's the second second part of the analysis and if I understood intervenor petitioner correctly they were saying that doesn't really you know rebut or get rid of their first part of the finding. Um, and so it seems to me you're relying on that that paragraph to say this is why it doesn't impair or limit residential uses. And so does it specifically tie in those those definitions in that paragraph? I know when you get to the con his conclusion, he has some conclusory things that say that it does. So I know your your position is that it's good enough. Could you explain to me though exactly why it's good enough even though it doesn't specifically talk about limit or impair in that paragraph? >> Well, thank you. Thank you uh board member Wilson. If we go on further to I believe it's record on 46, he does provide the hearings officer does provide some more analysis and explanation regarding the limit and preclude/impare prong. He go he says in addition to the trans transmission lines existing in relative harmony with the uses throughout the region. He also adds the existing power lines impose some limits on agriculture uses in the area requiring that farm workers use caution when moving vehicles and equipment beneath the lines and precluding the planting of tall trees in close proximity to the lines. The additional power lines proposed with this project will not increase those impacts as they will be located at higher elevations than the existing power lines. Although the use will change the visual character of the area to some extent, those changes will not limit impair or preclude use of the surrounding properties for permitted uses. So that's at 45 to 46. So he does actually explain why the the again to the second prong the use is not substantially impaired. And really this uh SSR's argument really boils down to just the uh incorrect belief that significantly impacts equates to substantially impaired. But under the undisputed definitions, impair means to make worse. Impact means to have an effect on. So yes, you can have a significant effect on something, but that effect could be good or bad as the hearings officer lays out in the opinion. Yes, some drivers are going to see this view, others are going to see this view. Some are going to like this one, some are going to like that one. But that's different than substantially make worse. make to to impair is always to make worse. It's not a good thing. And so I once we really understand that argument and that belief then that I think SSR's assignments are very really far apart and there's nothing left for the hearings officer to explain and and what because of his already thorough explanation. >> Okay. Thank you. >> Thank you. Um, I also, uh, just want to make clear, I mean, I've touched on it, but the hearings officer at, um, on 45 really also explains he in terms of the prior finding, he says, however, as staff noted in the non-conforming use decision, the added high large diameter poles and additional wires are going to create a far more industrial aesthetic. Again, prong one. Um, and there's no dispute about the photos. But he goes on to say, but that's not the relevant test here. The the thing that the burden of proof that the applicant bears is to show compliance with the applicable approval criteria that it's not going to substantially impair. And here because of the reasons he's outlined he's finding that correctly found that just given all the evidence in the record that the applicant correctly sustained the b did sustain the burden of proof to show uh that it complies with 12303 any sort of greater adverse impact that's just not relevant here that's under the non-conforming use application that's 120 that's 1207 which is not an issue here Um and again there's no disagreement about this court's decision in York which outlooked at the same provision. Uh there's just a fundamental misunderstanding about um what that by the SSR about what that criteria actually requires. Um, let's see. Just making sure I've we've also thoroughly addressed in our brief just some of the mischaracterizations in terms of what the hearing officers did or did hearing officer did or did not find. And I just want to be very clear that at no point in the decision is there any finding by the hearings officer that the project is going to make worse or impair. There is findings about altering and visual impact but at no point in that entire decision is there anything about actually make the project making uh the area worse. Um and with that um like I said I we thoroughly addressed assignment of error 4 uh in our brief but if the court has any if the board has any other questions I'm happy to address them. If not, I'll turn it over to Mr. Mr. Hugle to address >> No questions from the board. Thank you. Uh, Council Hugall. >> Uh, thank you, Caleb Peele for Clakamus County. I'd just like to take a minute or two to address um, Commissioner Bartholomew's reply brief. Um, >> Bartholomew again argues that the county aired in characterizing the project as maintenance. The truth is that the findings use that phrase one time uh and it's immediately followed by and alteration at record 56. More importantly though, Bartholomew identifies no part of the decision that turns on that characterization. The failure to apply ZDIO 1000 is based on the conclusion that the project is a utility line, not that it is maintenance. On the utility line issue, Bartholomew appears to shift from the petition to the reply. It's no longer the project isn't a utility line. Now it's the county can't just exempt all utility lines from ZDO 1000. Of course, they don't get to make that change halfway through briefing. Even if they could, though, stripped of all the fake case citations in the petition for review, they provide no support for that argument. On the five-party IGA issue, Bartholomew doesn't actually address our response that their submittal to the hearings officer was untimely regardless of whether it constitutes evidence or argument or anything else. And in going on to argue that IGAs such as the five party constitute applicable approval criteria in their reply, in their corrected reply, and in their second corrected reply, Bartholomew cites another fake case. Friends of Stafford versus LCDC does not exist. This is despite the fact that at the start of their replies, they state that none of the relief sought depends on disputed authorities. They cannot help themselves. This is very frustrating for the county. We appreciate that Bartholomew has concerns about the decision, but they've made it very difficult for us to address those concerns. >> I have a I have a question for you. This is kind of a novel issue for the board to address and I'm curious what your um >> Thank you. >> your suggestion for the remedy for this type of uh briefing. >> I thank you uh board chairs mood. I was wondering this myself and I don't know if it is frustrating because in the case we cite the court was able to award attorney fees. The test for attorney fees at Luba is different, likely more stringent. I don't know if it is if if it is well, when someone is trying to demonstrate preservation, if they site a 500page span of the record, Luma won't hunt through it to decide what is preserved and what is not. uh maybe if a party can identify an AI generated case and a particular assignment of error or portion of an assignment of error, it is not then up to Luba and the parties to go through each case citation to decide which are real and which are fake. Maybe maybe that's not entirely analogous. That is that is and then you know >> so are you suggesting for once there's been an identification of a citation to an authority that does not exist what what do you think the board should do in that instance >> I think at that point uh I if if I maybe it's okay because if preservation is challenged in a response brief the petitioner has the opportunity to provide more specific citations in a reply brief I suppose and I guess if they can provide actual um uh case citations that do support the propositions that are ascribed in their reply brief, Luba could consider it. But then the damage is done. The county has had to go through and >> I think I I I find a challenge with the idea that we could have multiple rounds of briefing given our short statutory deadline. So we are considering what we should do in an instance like this and I appreciate you bringing it to the board's attention. And I think we could now thank you >> move on. Thank you. Um so for all the reasons we provided the board should deny um Bartholomew's assignments of air probably without much discussion unless there are questions uh or council for PGE has anything that they want to add. I'll seat our time to the board. >> Thank you. And you do still have a another five minutes if PGE wanted to provide any additional argument. >> Thank thank you board chair. On the last question, I I will add I think one of the things that Lubet could consider is like potentially striking portions of the brief that rely incorrectly on that sort of uh to not waste uh precious resources both for for Louva and but also for for the respondent having to answer and go through that. I think that that that's something that just based on my experience could potentially help in terms of easing some of the burden of having to go through and sift through which cases are applicable or not. So that's just that's just a suggestion. >> Appreciate that suggestion. Thank you. Anything else on the merits? >> No, unless the unless the board has any questions, I'm happy to answer them. But u thank you. Thank you for the opportunity to uh talk about this important case and the uh important project that's at issue below. Thank you. >> Thank you. Thank you for your argument. Uh we will return to petitioners. Each of you will have two minutes for your rebuttal and I think uh council Haway probably should go first. >> Thank you very much um uh for the opportunity to rebut. Uh I think for purposes of of argument with the time I have left based on um member Wilson's question and the um response by PG's attorney um it appears as though there's a disagreement about what finding is more significant than another finding and we find very significant the finding that I quoted in my earlier presentation where the hearings officer clearly found that this proposed project was going to increase the visual impact of views from budding homes along Stafford Road. The project was going to have significant visual impacts in comparison to PG's existing lines and would create a far more industrial aesthetic that was inconsistent with the current visual identity and character Stafford Road area. Those are very strong powerful findings about the effect that this project's going to have on the residences in the Stafford Road area. in the hearings officer clearly says that project's going to visually adversely impact residential views. So that's where we start and then we go to his definition of how he defined the terms and I know that uh we disagree with PGE on this point but his definitions are clear and if you apply those definitions to that key finding those findings I just mentioned he clearly defines substantial as being significantly greater and then he defines impair as make worse. If you apply those definitions to that finding that I'm just talking about, you can only reach one conclusion and that is this proposed project is going to uh impair substantially the visual identity and character of the Stafford Road area including the uses in Stafford Road which are these these residences. Now, the other argument is, and I think member Wilson brought this up, is that well, the hearings officer made another finding about, well, it's not that big a deal, but those findings don't specifically overcome this other finding that I'm talking about because those findings don't talk about the residential impact, the visual impact of residential uses. >> Thank you for that rebuttal. And we've reached two minutes. We'll go to petitioner Bartholomew. Two minutes for your rebuttal. >> Thank you. Um I um okay first I would just also add to Mr. Hathaway's comment that uh the very first primary use listed in our our FF5 zone is residential. So um in my brief I will just refer I I have a chart of what impacts this will have on residential usage. um as well as farming usage. Um so that's the first thing and the second thing is um just from a prosay perspective two years ago I started this process I didn't even know what a brief was. Okay like I have been on an L-shaped learning curve and this was submitted before I realized a lot of the sources are not reliable and I don't have access to legal resources and so I understand the predicament that you guys are in. I don't want to waste anyone's time on things that don't exist, I didn't I was not aware that those that was not a reliable source. So, to the extent that it caused anyone additional time, I I own up to that and I was not aware it was not a reliable source. Um, but that being said, I I also don't want to be shut out of this process because I'm not an attorney. And so it's like I I realize it puts you guys in a difficult position because I can't communicate sometimes the way that in legal ease and but it also I don't want to be shut out of the process. So I I I understand where everyone's coming from and I I'm not sure what the answer is other than my arguments most of them with the apart from the IG issue my arguments would really stand regardless of which references I used they were mostly grounded in what exactly the case this case presented. So, um, that was all I wanted to say about that. >> Okay. Thank you. Um, thank you for your perspective on that. Appreciate the limitations. Uh, the land use process and the luba appeal process is intended to be open and accessible. Um, so that is something we consider as well. So, that will conclude oral argument. The statutory due date for our decision is uh February 26th. In this appeal, we'll ask the parties to agree to an extension so that we issue our opinion no later than March 19th. Is that okay with these parties? >> We have no objection. >> No objection from PG. >> No objection.", "summary": "Hi there, Petition Bartholomew. Are you planning to join by video or audio only today? You're muted if you're speaking. >> Okay. Thank you. Yes, I will. There we go. Okay. Hello everyone. This is the time set for oral argument in Bartholomew versus Clakamus County. Luba numbers 2025-073 and 074. I'm board chairs Moodia. Board members Wilson and Basham are also present today. And please do mute your audio when you're not speaking. That will help with our re…", "source_url": "https://www.youtube.com/watch?v=NZV1prJo4Fo", "source_name": "Oregon LUBA", "doc_date": "2026-02-11", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-089 Campean v. Clackamas County", "content": "Oral Argument 2025-089 Campean v. Clackamas County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=sCpV-Aq_l3s). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Mhm. >> Sorry for the delay. Uh, we were having some technical difficulties getting board member Basham um, online. Um, so I'll just be doing the the oral argument today. Um, so uh, good morning. This is the time set aside for oral argument in case number 2025-089. Um, uh, petitioner is I don't want to mispronounce your name. Is it Campion? Campion. Campion, okay, great. Thanks. So, it's Campion versus Clackamas County. Um, I'm board member Wilson. Um, board member Basham is not going to participate right now, but he will participate in the decision. He'll watch the oral argument. He's read the briefs. Uh, board chair Zamudio is not participating in this decision. Um, Mr. Campion, have you ever been to LUBA before? No, this is the first time. Okay, well, maybe I'll I'll give you a little brief overview of what happens at oral argument. Um, so this is an opportunity for parties to discuss what's in their briefs. Uh, it's not an opportunity to make new arguments or submit new evidence. Um, each side gets 15 minutes. Since you're the petitioner, you get to have the last word, so you have rebuttal after the county and intervener go. People generally reserve somewhere between 3 to 5 minutes for their rebuttal. And I'll ask you about that in a little bit. Um Uh and also when parties are talking, it's really just one side talking and the other side talking. It's not like Law & Order where people are jumping up and objecting or cross-examining or asking questions. Um So, with that, do you have any questions before we begin? Uh no. Okay. Great. Um and I'm not aware of any pending motions or matters that we need to take care of before we begin. Okay, great. Um so, uh if you're not talking, if everybody would just stay on mute when it's not your time to talk, that would be helpful. Um so, petitioner, you have 15 minutes. Would you like to reserve some of that Um so, can I actually start? Y- um yes, so, um you go ahead. That would be great. Just And if you'd state your name for the record so we have it, that would be helpful. Uh yeah, this is Daniel Campion. Good morning and member of the board. Uh can you state one more time your name, please? Okay, it's board member Wilson. And so, again, you have 15 minutes, so the clock up there isn't exactly right. So, you're starting somewhere around two to three minutes. And I I'm sorry, did you want to reserve any time for rebuttal? Uh I I I could eventually, but it's unnecessary. Okay. Well, I'll let you know when you're getting close to your 15 minutes and if you want to reserve any time. So, go ahead. Thank you. Uh This case presents a consistent failure of findings across all five assignments of error. In each instance, the county either failed to engage the actual record record or failed to explain why the evidence in the record does not satisfy the applicable legal standard. This case is not about the re-weighing evidence. It is about the final order's failure to include findings that connect the county's conclusions to the evidence in the record. Um The the the clearest example um it would be assignment of error number five. The county found that the majority of event related activities would occur with within a qualified structure, which is the barn, but did not explain why that satisfies or fails to satisfy the substantial sub- sub- substan- substantiality standard under the ORS 215 448 1C or how any incidental use of other farm related facilities defeats that standard. Uh we we see the same pattern across the other assignments of error. Um For for lighting um assignment one and two uh assignment of error number one and two, the county remained anchored to an earlier staff report snapshot and did not meaningfully addressed later submissions made in direct response to the staff report. So, basically I follow up the staff report with the staff report follow up and I answered the questions. It looks like those were omitted or overlooked or ignored. Or noise >> first time to hear about the lighting. Um the hearing's officer's decision um he says you didn't provide enough information uh so that he could really tell. And then when you're explaining what you did submit, there's there's a couple sentences about bollard lighting, the 12-ft mounting height, uh the stuff you talk about in your your brief. Is Is there more to it than that or is it just a few sentences you put in your brief? I'm wondering if there's any sort of um diagram or explanation or is it just those couple sentences? Uh no, actually that's that's the the key point. The uh hearing officer or the county omitted the detailed plan that I provided after the staff report. So, the county um basically got anchored on a staff report um and omitted my submission of evidence after that. So, and and uh my submission was the staff uh which was a staff report follow up. I provided a detailed uh plan and uh of the lighting and it looks like the respondent's post hoc reframing does not cure the effect. So, it looks like um the the respondent is is to bring that forward, but but does not clarify that the county basically addresses the initial uh submission, which I have in the narrative, which I only referred to the existing lights. So, after the staff report um uh did they findings uh they only referred to existing lights, but then I follow up after the staff report and I provided detail of the lighting, which includes existing lights and um proposed lights. So, that's what I uh provided, but looks like the the county uh overlooked that and went back, got anchored to an earlier um findings from the staff report. So, basically uh I provided uh more evidence to the uh record and those were uh omitted and not considered. So, Okay, thank you. Mhm. So, on a on a noise the county stated there was no evidence, but the record includes meter information with the noise study within the noise study. And actually I provided noise study noise study and then uh the officer asked me to provide supplement noise study and I did that as well. And there uh there's evidence of the meter. And the final order does not explain why the evidence fails to meet the applicable standard. Uh so, I have a question about the the standard. Um it talks about Mhm. how you it's got to be a type one or type two meter as specified in I don't know if it's ANSI or ANSI standard 1.4-1971. The sound level meter shall contain at least an A-weighted scale and both fast and slow meter response capability. And it looks like on your um your your noise study, you have all of those words except the ANSI standard. Um is is Was your type two meter Did it meet ANSI standards? I'm like I'm not familiar with what that exactly means. Yeah, so the the problem is uh the county said that there's no evidence uh even if there is a question about that um uh about the meter you know um it could have uh be addressed in the supplement or ask for additional question. They never raised that. So, why the meter issue was dispo dispos dispositive through though never specifically raised or why any remaining concern could not be addressed by condition. So, what I'm saying um the the county said that there's no evidence, but actually there is evidence in the uh in the noise report. So, did your Does the type two meter you used Does that meet ANSI standards or Are there type two meters that don't meet ANSI standards? The type Yeah, they the type two meets the ANSI standard. Okay. Mhm. Did they ever >> If there are any would have been any questions could have been raised uh uh before one after the hearing uh as the hearing officer doing that meeting asked supplemental information about the noise which I provided but the the uh there there no any questions in regards to the meter. Which >> I think your initial noise study submitted that's the one that had the language about it's a type two meter, fast slow all that stuff. Yeah. So when this issue came up did anyone ever from the county or the hearings officer say oh you need to have an ANSI type two meter or was the first time you ever heard about that? >> report there was not it brought up and actually they say it's it's all good. Uh and uh during the hearing it was never brought up it was not mentioned it was actually just uh asked me to provide additional information. There's a a balcony and there's basically like a barn deck. And say well can you do additional information for additional noise study about that and say no problem. So the meter was never uh raised up or it could have been can you provide a little more detail about that you know. So I did provide all that supplemental and then uh uh I uh I was surprised when I I saw this denied because the meter that there's no evidence but actually there is evidence in the noise study. And I think that could have been addressed with the condition or additional supplementary information. Okay, thank you. Yeah. So even assuming the applicant bears the initial burden without identifying any specific farm or forest practice. Any impact pathway or explaining why any impact would be significant. And I will say any very importantly is the of the final order does not address the evidence in the record that speaks directly to the principal offsite pathways which is basically comes to ambient noise before the property line or by the property line. Lighting controls which was provided and um specified control within the boundaries of the property and also Uh traffic, parking, it's all within the boundaries of the property. No, nor does it explain why the evidence was insufficient to satisfy the criteria. So, in the in the hearing officer's decision on this issue, he he said that uh that you didn't address this criterion beyond stating that event operations are limited, seasonal, and did not interfere with continuing agricultural or forestry activities. Can you point anything else in the record where you submitted stuff that would address you know, what the surrounding farm or forest uses are, what your impacts on them would be, why or why that is not significant? Can can you point to anything else? Uh I will say um is it's uh not about uh the conclusion weighing the the evidence. It is about um why uh the county didn't didn't take into consideration all the um evidence that was submitted to the record, and also why would uh the county not um I got We got a problem here. Um not explain the decision based on the record. So, when it comes to AOE 4 even if the burden was on on the petitioner initially uh the county would have to explain and bring up uh additional information and findings. By just saying that um uh it doesn't meet the criteria or uh there's no evidence that it is not right because I provided all this specific uh evidence, which include the noise studies, uh the lightings and uh the the traffic control and the parking uh and it seems like they were completely overlooked uh in the in the decision in the uh findings. All right, thank you. I just want to let you know you've you've got about two or three minutes left if you want to reserve that for rebuttal. You can keep going if you'd like, but you might want to reserve some of your time to respond to things that the county or intervener might say. Um I'll just say that uh because um uh all this um for the reasons stated in the amendment Lubar should sustain assignments of error one to five and the remainder of Okay. All right, great. Thank you. You have about two minutes left for your rebuttal. All right, now is opportunity for the the county and intervener. Have Have you all decided how you're going to allot Yes, we're going to let interveners take the first 10 minutes and we will back clean up. Okay, thank you. If you just state your name for the record and begin, please. Good morning, board members. John Butterfield for intervener respondents. I plan to briefly cover the farm impacts test before turning to the fifth assignment of error, which concerns the buildings used for the proposed events. So, farm impacts test Clackamas ZDO 406-05-A1 implements ORS 215-296 and county found that the petitioner had not addressed the impacts of farming and forestry. So, the farm impacts test had not been met. And And it sounds like petitioner doesn't dispute that the farm impact test applies and on reply and it sounds like here today petitioner proves to accept that as the applicant he had the burden to do the initial identification of the surrounding lands, the farms on those lands, the practices taking place on each farm, and the impacts of the proposed events on the farm practices. And And In response to board member Wilson's question, he only claims that he submitted some evidence to the record regarding some ways that the events may be less impactful and and attempts to claim that that shifts the burden to the county to identify a farm practice on a surrounding property and and find how an impact would affect that practice. And there's no support for that position in Lub case law. In fact, the the case law is exactly the opposite. Um directly on point is the Friends of Marion County v. Marion County case. We cited it in our brief. It's LUBA number 2021-088. We We short-cited it as Jones, after the intervener there. Uh, LUBA set out where the burden of proof lies, specifies the level of detail required for an adequate farm impacts test. Um, petitioner did not address the Jones case on reply or here today, and it controls. And the fourth assignment of error should be denied. Moving on to the fifth assignment of error, which concerns uh, which buildings may be used in petitioner's proposed home occupation. Operative language is ZDO 806.02 sub C, which implements ORS 215.448 sub 1C. And it requires that home occupations be operated substantially in the operator's dwelling or other buildings normally associated with uses permitted in the applicable zoning district. So, petitioner relies heavily both in his petition and again in the reply on the Green v. Douglas County case. And in our brief, we reviewed the facts of Green, discussed two related holdings in that case, and then the subsequent history of Green at the Court of Appeals. In Green, it was undisputed that the bulk of the proposed events were going to occur in pavilions or gazebos on the property. Basically, structures with a roof but no walls. And so, LUBA was focused on the question of whether a roof with no walls is a building. And the Court of Appeals focused on that question, too. LUBA had said, \"No. If it doesn't have walls, it's not a building.\" And the Court of Appeals reversed, finding, \"No. What determines whether something is a building or not is whether it is normally associated with other uses permitted in the zone.\" And I go through all that setup because the question here is different. The The soon-to-be decommissioned residence and the freestanding bathroom, they clearly have walls. But petitioner appears to argue that as long as the majority of the proposed events happen in the barn when which the county found was normally associated with timber use it doesn't matter whether the residence and the bathroom are qualifying buildings. Now on reply petitioner claims that we misstated his argument, but then he goes on to again say that because the barn is a qualifying building, it was somehow the county's burden to explain why his use of the other buildings defeats the approval criteria. We're putting aside the whole substantially part, why isn't if they decommission the existing house, why isn't that a building normally associated why isn't it doesn't it just become accessory structure? The The reason is because there's no evidence in the record about whether decommissioned residences are normally associated with uses in the county's timber zone. The only evidence in the record is what the petitioner says he's going to do with his decommissioned residence, but that doesn't make a building normally associated with other uses in the zone. There would need to be evidence about other decommissioned residences somewhere else in the zone and whether they are normally associated with uh resource use of property in the zone. Well, doesn't it just work you just need to show if you're going to do a home occupation you're going to be doing it in structures that you're allowed to have before you have a home occupation. Like did you did did he need to submit information showing that barns are used you know, normally associated with uses in the district, too? The county found that the barns were are normally associated with uses in the district. I think the the distinction is because this type of a building is there's a question about whether it's a building normally associated with a with a use in the zone because a second residence on a property is not something that you're otherwise allowed to have. And so >> it wouldn't be a residence anymore if it gets decommissioned. It would just be like any accessory structure, right? Well, if it's being used as an accessory to resource use, but if it's being used for a commercial purpose like an event, then no, it's not something that you would normally be permitted to have in the zone or normally associated with use in the zone. And so I think that's the the key distinction of that it's going to be transitioned into this commercial use and there there wasn't evidence that this that a decommissioned residence is a like a normal other accessory building in the in the EFU zone. Okay. Well, well, turning to the the restrooms, um I know in some of the other cases Luba and the court of appeals found that, you know, that's not buildings normally associated with the use. But in this case, the county didn't the county specifically approve it as a use normally associated in the zone? And isn't that different? It was retroactively approved after it had been built for farm and personal use specifically. And so I think the difference here is that the restroom is being converted to a commercial use. And so it's um it the question becomes is this use of the building the this this freestanding restroom a normally associated building in the zone? And I and I think the answer is no because as the case law points out, the this is we'd essentially be authorizing a building and a use of that building that isn't allowed in the zone and that expands beyond the typical home the the allowed home occupation by authorizing buildings that couldn't be constructed. A a commercial freestanding bathroom as Luba has held it in other cases. But isn't the barn being converted commercially used as two? Don't don't you look to see whether you're allowed to have these buildings to start with in this zone? If you are then you can use them for commercial uses if you're doing a home occupation, right? You don't have to get it approved as a commercial use first, do you? No, the right the the the question is whether the the building that is being used for the home occupation is a building that is normally associated with uses in the zone. So, if it's been permitted for some other reason like if it existed before land use zoning laws, so it's it's just there that doesn't mean that it necessarily is a use normally associated with permitted uses in the zone. So, the fact that the permit that the freestanding bathroom was previously permitted by the county for some other reason doesn't turn that freestanding restroom into a building normally associated with uses in the zone. Wasn't it permitted for for his for workers to use? Yes, I I understand it was it was permitted his statement of use was farm and personal use. And it's but there's there isn't evidence in the record that that's what it's actually being used for and there isn't evidence in the record that freestanding restrooms for farm use are a normally associated use in the zone. That would have to look at other freestanding restrooms, not the specific one that the petitioner has and and what he plans to do with it, what other resource operations in the zone use those buildings for. Okay. Thank you. Okay. I think that we we covered most of what I was going to talk about through our our questions. So, uh I'm happy to answer any other questions or otherwise I'll yield the remaining time to the county. I don't have any more. Okay. Thank you for answering all those. Um Mr. Hugel. Uh Caleb Yeah, Caleb Hugel appearing on behalf of respondent. I don't want to take much time at all. Um uh Mr. Butterfield covered assignments of error four and five. Our brief uh covers first through third. And our responses to those assignments of error pretty much the same as interveners response to the fourth assignment of error. Um we the petitioner is try to shift the burden to the county. Petitioner argues essentially that the hearings officer didn't identify any evidence that the lighting, fire safety, and noise criteria weren't met. The important thing is that it wasn't the hearings officer's job to show why the application doesn't comply with the criteria. It was the applicant's uh job to show why the application does comply with the criteria. And I want to go through each of the issues, lighting, noise, and fire safety very quickly. Um on the lighting issue, I think the hearings officer was aware of the additional uh material that was submitted post-staff report. Uh and the finding remained the same. The additional material wasn't specific enough. You know, reading the first few sentences, board member Wilson, you identified it about bollard lighting where necessary, string lighting. It's not clear to me whether those things where those things will be, how bright they'll be. I couldn't figure out whether those descriptions would be compatible or suitable with the event venue use. So, I think the hearing officer's conclusion uh was supported by substantial evidence and and the findings were adequate. On the noise issue, and and maybe maybe maybe you think well, Mr. Hugel, you are not reasonable. It was the applicant's job in this appeal to demonstrate that no reasonable decision maker could conclude as the hearing officer did, which is that the evidence provided was not specific enough. And I don't think petitioner met that burden. So, on the lighting issue, um the findings they sort of lump I mean, there's six subsections to 1005.04. It It seems to me the hearing officer was saying and the objective ones are met, but the subjective ones are not. I'm assuming the subjective ones are four, shall be suitable for the use, and five, shall be compatible. Is it Is it fair to say that that's the reason you denied it those two subsections? That's my understanding. I agree with your interpretation of the finding. Okay. And I I have a question and this actually goes to all three of the assignments of error. Um it's on page 18 of the decision. I It's probably I'm not sure exactly what it is in the record, 25 or 26 or something. But the hearing officer, when he's going through the conditional use approval criteria, 120303D, he specifically finds that um the hearing officer finds that it's feasible to comply with the noise limits in 80602. He finds The hearing officer finds that the events on the site will not substantially increase the risk of fire in the area. He finds it is feasible to design and install outdoor lighting on the site to comply with 1005.04A, the one we were just talking about. And then at the end of that's his findings there, he says 120303D can be met with conditions. So, if the evidence was enough to satisfy 120303D with conditions, and specifically says he met 100504 and 80602J, why is it not good enough later in the decision? I think I think the response is that the the finding specific to lighting that it is feasible to design and install outdoor lighting is not a conclusion that the application as proposed uh contains enough information to conclude that its proposed lighting would in fact satisfy that criterion. The fact that that it is feasible uh and could be met with conditions does not mean that that specific criterion is met uh as proposed with the information in front of the hearings officer. To the extent that the argument is that the findings are inconsistent, that the finding on right here in the on page 18 at the bottom with respect to lighting is different from the finding uh elsewhere in the record with respect to 806. Uh I can't remember the the the finding is at um record 24 to 25. That was not the uh assignment of error. The assignment of error was not that the findings are inadequate because they are inconsistent with one another. And I don't think it's I don't think it's the board's responsibility to sort of make the argument work. If that was the assignment of error, that should have been presented in the petition for review and we would have had had an opportunity to think about and respond to that in a meaningful way, which we don't right now. Okay. On on the noise issue, and I don't know if we're we're probably getting pretty close to the time here. Do you have a a Yeah, I have I have a quick question and I'm asking a lot of questions. I'll give you a little more time. How do you see exactly how that section works cuz there is the first section says you can you have to meet, you know, the 60 decibel level at certain times and it talks about what noise you count. And then there's a it doesn't say how how you have to do it. And then subsection two says a noise study may be required. And then then it comes in and says you have to have the type two one or two meter ANSI standards, weighted scale, fast and slow. Um, and because the hearing's officer's decision pretty clearly says, \"If I could rely on this noise study, it's great. He He sails through.\" Um, and so it seems to me the only thing that trips him up is that that he didn't put in the ANSI standard language, those magic words. Um, my my first question is is how does subsection two work? A noise study may be required. When when does it determined when it must be required? I I It's my understanding that if if the noise was challenged, if if someone appeared in the in the proceedings and argued, \"No, this use is going to be too loud.\" Then, uh, the hearing's officer might have discretion to require a noise study to to put that, uh, dispute to bed. Um, in this case, I don't think it matters because the argument from petitioner in this in assignment of error, uh, three isn't that the hearing's officer erred in requiring a noise study. That's not the That's not the assignment of error. The assignment of error is the hearing's officer erred in concluding the noise study didn't comply with ANSI standard 1.4-1971. Right, but he's I think petitioner's arguing that his noise study's good enough. And the only reason you could say it's not good enough is he doesn't have the ANSI standard language in there. >> Right, but Right? And you only get to needing the ANSI standard language if the noise study has been specifically required. Right? >> Our our Well, our response is that it's my understanding, like you, I'm not an expert on ANSI standards, but it it it tells you what what what is required for a sound level meter in order to be accurate, what components it has to have, but also in which context a type one is required versus a type two. It's my understanding that type one is supposed to be more precise, more reliable than a type two sound level meter, and one is required for certain circumstances, and the other is required for other circumstances, like field work, but maybe even field work where some of the sound is above a certain uh hertz, requires a type one. And and it was not the hearings officer's job to look at ANSI 1.4-1971 and decide whether the information provided met that standard. It was petitioner's obligation in the first instance to make that connection. Right. What I'm getting at is if he had just submitted his the one he the noise study he submitted and there was no official finding from the county that the noise study must be required, it would probably be fine. There there is a finding. I know. So what So where is that? Oh, I'm sorry. Yeah, yes, it's uh it's in our brief, record 41. A noise study is warranted in this case. >> Is that the hearings officer's decision? Yes. Record 41. >> he's I think Is that where he says it's warranted uh a noise study >> Warranted in this case. Yeah. Well, if that's the first time he's officially required to do one and it's in the final decision, isn't that a little late for him to meet all the standards? What I'm hearing from you, Board Member Wilson, is an argument that did not appear in the petition for review. Well, he's arguing his his noise study is good enough. But but he's not arguing that the hearings officer erred or he he would he should have been required to respond to the the the requirement for a noise study. That's a separate assignment of error. I should have I should have been I should have been allowed to explain why a noise study is not warranted. But he didn't argue that in the petition for review. Where I'm I'm hearing that argument for the first time now. Okay. All right. I've asked you a lot of questions and we've gone over, so uh if you have if you want to wrap up real quick, you can. No, no, I I think the fire safety issue is it should be the easiest for the board to rule on. Petitioner identifies the analysis that was required. The evidence in the record that he cites in the reply brief does not address that standard. And and and it it as this board knows, if it denies any assignment of error, the analysis stops there and the decision should be affirmed. Thank you. Okay, thank you. All right, petitioner uh it's your opportunity for rebuttal. I I asked them a lot of questions and they ran over, so you get a few extra minutes to for your rebuttal. Is it okay now? Yes. Can you hear me? So, what we heard uh today focus on lighting, noise, building, farming facts as if this case turns out on missing evidence, but my point is simpler. The county was required to engage the evidence that is in the record and explain why they does not satisfy the legal standards. It did not do that. For lighting at fire, lighting information was submitted, but the final order does not meaningfully address it. It actually doesn't at all. Uh it's post hoc thing they're trying to make it work, but it will not cure the the problem. For noise, the county points to the meter, but does not explain why it that uh defeats otherwise uncontradicted evidence of compliance. Uh for farmer forest impacts, the county does not identify the actual practices that uh that that actual impact pathways or explain why an impact would be significant and just trying to to make the the con- the gentleman is trying to make uh uh change the the argument that we demand that that the county uh has to do that and that's not the point. That we we didn't do that, but even if we didn't do uh provided evidence the county is still required to to provide which of our off pathways will increase or increase the cost or of of um operating a farm. So they they did not do that and not mention anything. And for the the buildings um the county found that the majority of activities are going occur in the barn but does not explain why that fails the substantiality. standard simply because of incidental use of other structure like the restrooms or the house. So this is not really about lack of evidence. It is about the county failing to connect its conclusions to the evidence in the record and to the standards it was required to apply. For that reason remand remand is required. Um Any questions or And I will I will just want to make sure want to go back to the building the gentleman was saying that that the barn the barn is an approved building related to the farm. Also the bathroom is uh uh incidental to the the the farm. It was approved by by uh by county through permits and stuff. The house as well as so as any one individual even the barn has to be approved by uh by permit and actually the hearing officer mentioned that that is that is the the step as industrial building and as all of them will be. So, I don't see that a point of denying. Okay, so again, we are asking to remand the case. Okay. Thank you, Mr. Campion. Thank you. Any other questions from the board? Okay. All right, with that, that concludes oral argument. Our statutory date for issuing the opinion is April 10th. We anticipate meeting that, but in case we don't, would the parties agree to an extension of 21 days for that, if necessary? Thank you. Thank you. All right, thank you everybody and", "summary": "Mhm. >> Mhm. >> Sorry for the delay. Uh, we were having some technical difficulties getting board member Basham um, online. Um, so I'll just be doing the the oral argument today. Um, so uh, good morning. This is the time set aside for oral argument in case number 2025-089. Um, uh, petitioner is I don't want to mispronounce your name. Is it Campion? Campion. Campion, okay, great. Thanks. So, it's Campion versus Clackamas County. Um, I'm board member Wilson.…", "source_url": "https://www.youtube.com/watch?v=sCpV-Aq_l3s", "source_name": "Oregon LUBA", "doc_date": "2026-03-25", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2026-015 Central Oregon Landwatch v. Deschutes County", "content": "Oral Argument 2026-015 Central Oregon Landwatch v. Deschutes County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=JTk66Z8PaQ8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nyou zoom out so we can get Todd. Good morning. This is the time set for oral argument in luba number 2026-015, Central Oregon Land Watch versus Dashuites County. I'm board chair Zamoodio. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with our recording. And I'm not aware of any pending matters um in this appeal. Are there anything? Is there anything the parties want to bring to our attention before we get into oral argument? >> Nothing from the interven. >> Uh nothing from landwatch. Thank you. >> Okay. Thank you. And petitioner, you have a total of 15 minutes. Oral arguments a total of 30 minutes. You have 15 minutes and you may reserve up to five minutes for rebuttal. Would you like to reserve any time? Uh >> yes, board chairs and media. I'd like to reserve 3 minutes. >> Okay. I will watch uh the clock on my end. And just so you're aware, the clock that's on the screen is not keeping exact time and ask that you also uh be aware of your own time as well. And then intervene respondent, you'll have a total of 15 minutes for your argument. So with that, petitioner, please state your name for the record and begin. >> Yeah. Good morning and may I please the board. My name is Robin Hayakawa. On behalf of the petitioner, Central Oregon Land Watch. Um, the case before you concerns a 240 acre EFU property approximately 1/4 mile from the Bend urban growth boundary. Um, the county proposes to reszone this property from EFU to multiple use agriculture and redesate the property from agriculture to rural residential exception area. Um, this appeal is about the burden carried by land use applicants when they seek to engage in the ad hoc and peacemeal reasoning of Dashes County agricultural land and specifically whether that burden has been satisfied in this instance. Um, in our petition, we asked the board to reverse or remand the land use decision for four principal reasons. Um, and I'll approach these issues in order the same uh as in the petition for review. So starting with my first assignment of error because we believe that that issue alone warrants reversal. Um the first assignment of error has to do with the conflict between in Dashuites County comprehensive plan provision 3.3.1 and the sub 10acre dimensional parcel sizes allowed within the MUA zone. Um at this point you've become familiar with this provision. I believe uh Dashes County um comp comp plan policy 3.3.1 prescribes a minimum parcel size of 10 acres for new rural residential parcels outside the westside transact zone. Policy 3.3 further explains that the purpose of 3.3.1 is to require quote a 10acre minimum lot size for new rural residential lots in order to protect the rural quality of life and its resources. Um, in contrast to these clear instructions from the comp plan, the county's decision approves a zone change that would allow a zone that does not impose a 10acre minimum parcel size for new rural residential parcels. Um, specifically, the UAA zone allows for variable densities within cluster developments and planned developments where, like here, the properties located less than one mile from an acknowledge UGB. Planned and clustered developments are allowed at a fiveacre minimum lot area or equivalent densities. Other provisions of DCC clarify that cluster developments can be granted with a minimum lot area of 2 acres and plan developments do not have a minimum lot area requirement at all. Um this is not a novel issue. Luba addressed a near identical issue during a 2025 appeal known as Destiny court. That's at luba number 2025015. Um in Destiny court, uh Luba remanded after determining that the county's decision did not address the conflict between the plan policies and the MUA 10 zoning. Um we have the same circumstances here. You uh you may hear from intervenor respondent that the land use decision does not request or specifically authorize sub 10acre development and therefore no conflict exists. Um this argument is incorrect. Just like in Destiny court, the decision uh before you does not limit future development of the subject property to parcels of at least 10 acres in size. And as explained before, it does quite the opposite. It allows an MUA zone which allows uh various sub 10acre densities. Um compliance with the comp plan and goal 14 needs to be shown uh during the quasi judicial papa process and cannot be deferred. Um, we think reversal is appropriate because the comp plan language is unequivocal. Uh, the county has had opportunities to uh reconcile the comp plan provisions and the allowances of the MUA zone and um hasn't done so. Turning now to the second assignment of error. Uh, the land use decision misconrs applicable law and lacks an adequate factual base uh to support the conclusion that the property is not agricultural land. Um it does this by failing to consider the suitability of the subject property for the specific farm uses identified by land watch during the local process. Um this assignment of air also really rests on the holding from destiny court. Uh in destiny court the board held that once a participant or opponent identifies specific farm uses common in the area and provides some evidence or argument that the property is suitable for those uses. Considering the listed factors, the applicant is then obliged to evaluate those uses and demonstrate that the property is not suitable. Um, in this case, uh, LandWatch believes we did what Destiny court requires. We identified numerous specific farm uses including um grazing in conjunction, a grazing operation using imported feed and seasonal stocking strategies, solar grazing or agriotics. Um and then raising various forms of livestock including pigs, donkeys, goats, sheep, uh goats for milk, ponies, llamas, and alpacas. And that's generally at record citation 683 and 684. Um in addition in further compliance with Destiny court we also supplied evidence or argument tied to the suitability factors under OR 66033 00201AB um including evidence and argument about the property size the presence of fencing flat cleared terrain the quality and quantity of agricultural soils a history of irrigation on the property and a USDA census from 2022 with evidence showing that uses identified are significant in Dashuites County. Um intervenor respondent did partially respond to our arguments. Um but we believe they disregarded or ignored the farm uses I listed above. Uh so just like in Destiny court, uh remand would be an appropriate remedy for further findings. Um turning to the third assignment of error, uh respondent misconstrued gold 14 and made a decision not based on substantial evidence. Uh the decision potentially allows urban uses on rural land without specifically analyzing in context whether the 240 acre property within a/4 mile of the bend UGB can be reszoned from EFU to MUA uh without resulting in urbanization. Um the county's goal 14 analysis that they did provide uh does not meaningfully apply the Curry County factors to the specific property. provide sort of a general analysis. Um, in terms of the Curry County factors themselves, uh, they do point towards urbanization. I want to talk mostly about density, uh, because of the recent decision out of Luba that, um, we're calling Pohaku Farms, Poeku Farms. Um, that's at Luba number 2024080. um in poeku farms, luba determined that a policy purporting to allow new residential parcels at a minimum density of 2 acres on non-resource land was quote facially inconsistent with the rural residential rule um at OR6600400440 and hence goal 14 that's at slip opinion 31. Luba further found that quote by their nature cluster and planned unit residential developments are inherently more intensive than traditional residential development on large individual lots and therefore have a greater potential to tip the scale toward urban use of rural land contrary to goal 14. Um that's at slip opinion 32. I we believe that uh concerns about urban density are especially acute here. We have a very large property in really close proximity to an acknowledged UGB. Um, and it suggests that the significant amount of dwellings in cluster and plan developments that could be approved on the subject property uh will result in urbanization of rural land. Um, and I'll try to be brief on this one. Um, the fourth assignment of air uh has to do with goal five. We believe that the land use decision errors by authorizing new conflicting uses on the subject property without conducting and adopting the required goal five analysis. Um during the local process we raised uh various concerns and issues with the the intervenor respondent site specific EC that's at record 805. Um, and we argued that the EC did not account for numerous new and conflicting uses allowed outright and conditionally in the MUA zone. Um, moreover, and this is a procedural issue I would say, um, the county aired by failing to adopt the sight specific EC as part of the plan. sub4. um which provides that quote the analysis of the EC consequences shall be adopted either as part of the plan or as a land use regulation. Um this didn't take place here. Uh there's no county findings as to the um sort of incorporating uh the sight specific EC and the relevant portions of the Dashoots County comp plan have not been um amended or updated. So remand is appropriate on that that issue alone. Um, council, how how did what form do you think an appropriate incorporation of the EC analysis into the comp plan would take? Is it enough just to have findings in the decision saying we That could be um I think the best the best way to do it would be to actually update um the comprehensive plan uh goal five section itself. um and add that there's these sight specific ECs for these um these yeah. >> Okay. Thank you. >> Uh so in closing, uh the county approved a reszoning and redesation of a farm property that directly conflicts with its own comprehensive plan. The county failed to correctly apply the holding in destiny court under goal three. Uh the county failed to explain why reszoning and redesating the property in its specific context does not violate goal 14 and it failed to um address our concerns about the sight specific EC and um adopt it as required by uh the re relevant administrative rule. So for those reasons, we do respectfully request reversal of the decision or in the alternate remand uh so that legally adequate findings showing compliance with the statewide goals can be made. Um thank you very much and I welcome any >> No further questions from the board. Thank you. You will have your full three minutes for rebuttal and we will turn to the intervenor for your argument. Please state your name for the record and begin. >> Good morning. Uh, Christopher Kobach, KOB ACK for the intervenor. >> Council Kobach, we're getting a little uh it's a little scratchy. If you could move your mic, we might be able to hear you more clearly. >> Is that better? >> That's better. This Thank you. >> Again, Christopher Kobach on behalf of the intervenor. Thank you for your time this morning. Um, I will also go in the same order as petitioner's arguments. Uh, first assignment of air, we don't believe there is a a conflict between the MUA zone and policy 3.31. uh that we don't believe there's a conflict with the decision and policy 3.31 because the decision doesn't approve any parcel less than 10 acres. Um to respond to petitioner's argumenting about the zoning code, petitioner argued in Paku Farms that policy 3.3 controls over the zoning regulations under the Baker versus Milwaukee uh city Milwaukee case and and I think the board agreed with that and uh that case held that uh a a zoning regulation that is contrary to the comprehensive plan is invalid. So what we believe the applicable law is now in Dashes County is that within the MUA zone, an applicant cannot obtain approval for a parcel less than 10 acres because policy 3.31 is the applicable law. Now what petitioners appear to be making here is kind of another facial challenge to uh the MUA zone. Um and we don't think that's appropriate. I was looking at the Pacu uh decision at at the assignment of Air five uh how the board addressed the facial challenge and the board said that a facial challenge can be made when any application of the the policy um will result in the conflict. And so here, the way I analyze it by analogy is to find that there's an appropriate facial challenge as the petitioner appears to be bringing, you'd have to find that any application of the MUA10 zone would conflict with policy 3.31. And that's just not true because in the MUA zone, there are many, many uses that people could make on their property that have no conflict at all with 3.31 or any other comprehensive plan policy. In fact, there are only three conflicts. There's the density bonus on the with if you're within a close proximity of the UGB. There's the cluster development and there's the plan development. Now, those are invalid under the city of Milwaukee case. So, there there is no conflict. But the rest of his the rest of the uses uh and his own are consistent and and and how I think it has to work then is this does have to be decided in a quasi judicial setting when a applicant comes in for a request and at that point in time uh there will have to be an assessment of whether or not they're seeking something parcel smaller than 10 acres that would be inconsistent with the policy. But we can't do that at this point in time. Now, petitioner made a good point. >> Someone came in for a PUB application. What criteria would make the comp plan policy applicable to that application? I think petitioner's argument is that determination needs to be made at the zone change and wouldn't be applicable in subsequent applications. Why is that not accurate? >> That's a great question. I was just getting to it. That was the point I was going to make. They there I have a that's a a valid observation, but here's how it has to work. If somebody comes in for that application now with the applicable law being policy 3.31, they have to adjoin with that application an application for a text amendment to change policy 3.31 because that's the applicable law and it clearly says 10 acres. So in that post acknowledgement text amendment goal 14 applies all and they and they have to do it under your holding in farms. the county will have to do that applying the specific Curry County Shaper standards. They can't rely on >> How would a How would a planner know that that comp plan amendment is an issue for a subsequent application? >> I think what you're saying is is a a land use lawyer who knows about these cases could say, \"Okay, we know we have a comp plan problem.\" But I think petitioner's argument is, \"Well, the comp plan's not directly applicable to those subsequent applications. So, why would that process you're describing happen? >> Well, for one, uh the petitioner would bring it up. Uh but I think the county is very aware of this as the board is is likely aware as well because this has been one of the biggest issues in Dashuites County this policy policy 10.3.1 and and the county is very well in tune with what's going on and and it will probably only come up if the county doesn't take action to address your remand in the last case of farms which I I think we could assume is going to happen. So, there's going to be a period of time perhaps if somebody comes in with an application seeking parcels less than 10 acres that the staff is going to have to say we can't do that. Here's our staff report. We can't do that because we have a binding case here from the land use board of appeals saying 10 acre minimum is the law. And so, I I don't think that's a a significant risk. Uh and really what what what the what we what land watch or petitioner is asking the board to do based on this potential conflict in a limited situation is place a moratorum on all MUA10 zones. So any owner that would like to reszone to MUA10 for any use say they want to do a horse facility or something on 30 acres there would be a moratorum because under uh petitioner's argument it is theoretically or hypothetically possible that there could be a future change in plan to come in with a a a cluster development that's why I think it has to be decided in the later quasa judicial to avoid this moratorum uh result Um, so unless there's questions on that one, I want to move a little bit uh quicker to assignment two. Um, I agree with Destiny Court. No quarrels with what it requires. The applicant has the burden to come in first and and address the u the suitability factors and we did that. Andy Gallagher, it's in the supplemental record or supplemental appendix uh one through 11 or 12. Went through all of them. He even went through and addressed the petitioners claim that there's 92 acres of descamp soil on this site and he explained that the DES camp soil is so isolated and confined by the Rocky Gazny that it cannot be suitable for farming even though it's there. He addressed every one of them. And then in subsequent uh correspondence, here's all Land Watch did. And now Landwatch or or petitioner, I'm sorry, petitioner has the obligation then to raise evidence or argument that a two things. They have to show that a farm use is common in this area, suitable for Dashuites County or the area and some evidence and argument that or argument that it's suitable on the subject property. And and I we think that's where they kind of fell short. So in their main uh ninth opening letter, record 1054, the uh uh petitioner merely said that many horse breeding raising facilities in central Oregon operate on dry, sometimes rocky ground. Um members of central Oregon's uh community supported agricultural may also argue that they create their own soil. nothing about the specific property, just general statements on the first prong of what happens in central Oregon. Later, they just talked about the fact that there is a large section of the property that has de camp soils and could be farmed. Mr. Gallagher responded to that. They didn't raise it again until the board hearing it in their August 20th letter. That's at six record 680 through 6 96. And there we agree they did raise some specific evidence and argument on specific uses. They were also very general. Um, of page 684, all they said was uh sign uh here's what they said is livestock, poultry, and related products are the second most valuable farm used in Dashes County. And they presented some evidence of that, but that's nothing on the specific property. Then they get to the specific property on the same page of the record and they identify horse breeding and training facilities and they and goat farming. And uh the goat farm we didn't respond to because it was a goat farm in North Carolina and we didn't think that was relevant to whether the property here was suitable uh uh for goat farming. But as to the equestrian facility, we submitted detailed expert testimony from Eric Hagertby on not only the specific horse operations but also generally he supported Mr. Gallagher on what is required to have suitability for any farm operation in Dashuites County. And he went through a lot of the specific ones. He went through the poultry, the equestrian. Um we believe he addressed every issue that the that the petitioner raised with any particularity. Um so uh that that's all I have to say on that. think it's a substantial evidence question and I think the uh board has in the past recent cases here in Dashuites County has looked at this type of evidence and found it to be substantial evidence and I would point out that as with respect to Mr. Gallagher's comments and Mr. of Hagerties uh petitioner has no specific responsive evidence, no expert testimony, no specific evidence of suitability for any specific operation other than that one horse facility which we responded to in detail. So on the third assignment of error, I think it's kind of spins off the first one. If if you agree with me that the law now is 10acre minimum, there's very little goal 14 analysis required because under Curry County, I read that case to say 10 acre density is rural and if you can't do anything less than 10 acres under policy 3.31, then there there is really no goal 14 analysis. That is a rural density according to Curry County. Um and that was our initial response. Now I I do acknowledge that petitioner's brief came out before your decision on firearms. I I believe that to be the case. Uh and my response I had the advantage of that case but I don't think respondent has really ever or a petitioner has ever responded to this argument uh in detail and and I don't blame them because of the timing. But I think the fact is the fact there is no more less than 10 acre parcels. goal 14 has been satisfied because there is consistency. Now, we did address how goal 14 would work with 10acre parcels and I believe that we explained how that would not result in urban uses. So, we kind of bootstrapped the Curry County analysis by pointing out how 10 acre parcels in a rur rural area are not going to create urban problems, not going to result in urbanization. Um the one the one element that's really difficult to apply is Schaffefer because Schaefer involved an asphalt plant on a rural area and the question and the focus was well is that going to attract people to that use such that it's going to be an urban use. Well, here the question is if you reszone to allow 10 acre rural parcels, uh petition argues, well that's going to make people from that area come into the city for the hospitals, the libraries, Costco, and all that stuff. Well, they're going to do that irrespective of zoning because those are the uses that have to be in the city. They will never be in a rural area. Our hospitals are where the biggest concentration of people are. Our public libraries are where the biggest concentration. The major retails are where the biggest concentration. So, that issue really is hard to deal with in this context. But I think if you look at it, you you might agree with me that zoning doesn't matter. It's it's really just the location of those services that all people in the rural area have to use. Um so that's how we've addressed that and we think we're correct on it. And the last one, yes, >> if I could ask you quickly, the uh if I recall, the county's goal 14 findings kind of assume that this property will be developed with cluster or PUD development. Um does that and change the goal 14 analysis? Well, not really because it that decision and again it's timing. The decision came out before your your recent decision on cooper. So the county I agree that that analysis is not correct anymore. Uh I think the controlling law now is you can only have 10 acres. So it really simplifies the analysis. Um, and I don't believe the county board could approve right now any kind of cluster development in UA10 until unless and until they get a comp plan that reconciles this facial conflict that you all identified in Paku. >> It does seem that we're kind of out of sync with the county in terms of our decisions and and their legislative responses. Well, well, exactly. And we've got these quite judicial decisions that are coming up often now in in Dashes County that we're trying to balance that because until unless and until the the county does what you instructed on on Reand and Qual Farms, we're all in a little bit of a void. We don't really we, you know, we don't know exactly how this is going to play out. I think the county is going to do something. But for now, what I'm saying is rather than have a moratorum, there's a better way to deal with it. And the applicable law allows that because we can only go to 10 acres. on goal five. Uh this is another one that's kind of recent for us because your decision in destiny court I believe it was uh and then there was another one with the college of cascade or cascade academy or whatever said you can't rely on the 92 uh es e anymore and the program that the county uh uh developed because and I agree with this because the uses on the specific property in '92 are going to change. The county didn't have an opportunity then to evaluate the impact of the scenic corridor on all uses on property today um because they were doing it in 1999. Now having said that though we have responded to it all applicants have by preparing a sightsp specific analysis conflicting use analysis and I don't find a lot of dis there's a little disagreement because we didn't evaluate a helicopter pad or an airport. We tried to take a pragmatic approach. Um, this property is right next to the Bend airport or very close to it. Um, we didn't >> You've approached or you've reached your time. So, if you just take the next seconds. >> Okay. I'll take the next second. There is a regulation in place though that to to get to the main question I wrote down. There is a regulation already in place. MUA10 zones exist all over the scenic corridor. There's two of them right next to us. the the landscape management regulation already has a program for MUA10 uses. So we just identify the conflicts. There is a program and a and a system in place to evaluate how it's consistent with goal five. So thank you. >> Any follow-up questions? Okay. No further questions from the board. Thank you and thank you for wrapping up there. We will return to petitioner for your three minutes of rebuttal. Please go ahead. >> Yeah, thank you board chair Zimio. Um I would like to talk about the issue of the applicability of 3.3.1. Um I our our view of the issue is that just saying that there are no plans to create sub 10acre um parcels is not sufficient in this in this matter. 3.31 3.3.1 is applicable to this land use decision. Um, so we're not asking for some sort of moratorum on MUA zone. Uh, I mean, it's clearly still allowed within the Westside Trans Act and potentially within exception areas. Um, but we're just asking that quas quasi judicial papas comply with the applicable criteria of the comprehensive plan, which in this case is 3.3.1. Um I would also say that uh in intervenor respondents brief they talk they try to sort of draw a distinction between destiny court and the matter in front of you. Um in destiny court the applicant specifically withdrew the land division for the 14 lot PUD. Um and Luba still found uh that remand was appropriate to address um the alleged conflict with 3.3.1. Um turning to one moment. Um I think the significance of Poeku Farms is that the legislative amendments brought forth by Dashutes County for their comprehensive plan update um basically had specific policies that were designed to enable exactly what we have here which is clustered and plan developments being permissible on non-resource land. Um that that's the case at the moment. I don't we don't read um POKU as uh allowing the county to def defer to quasi judicial papas in the future. Um and so we do we do believe that uh there there is a significant conflict. Um and then finally as far as the goal five issue um near the end intervenor respondents uh sort of referenced that the MUA 10 zone has sighting standards in the LM zone, the landscape management overlay zone combining zone. Um addresses the EC uh EC concerns or the concerns about new and conflicting uses for a goal five resource. Um we believe that uh Lubis Holding and Last Ranch sort of disposed of that idea and is the one that introduced that these sight specific um ECS are necessary. Um and so yeah, I I would dispute that idea that the the landscape ma management zone and the MA10 zone sighting standards um protect the goal 5 resource necessarily. And uh with that, I'll rest. Thank you so much. >> Thank you for your argument. No further questions from the board. So that will conclude oral argument. The statutory due date for our decision in this appeal is June 8th. We'll ask the parties to agree in advance uh for an extension so that we issue our decision no later than June 29th. Is that okay with these parties? >> Fine with the intervenor. >> Thank you intervenor.", "summary": "you zoom out so we can get Todd. Good morning. This is the time set for oral argument in luba number 2026-015, Central Oregon Land Watch versus Dashuites County. I'm board chair Zamoodio. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with our recording. And I'm not aware of any pending matters um in this appeal. Are there anything? Is there anything the parties want to bring to our att…", "source_url": "https://www.youtube.com/watch?v=JTk66Z8PaQ8", "source_name": "Oregon LUBA", "doc_date": "2026-05-27", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2024-080 Central Oregon Landwatch v. Deschutes County", "content": "Oral Argument 2024-080 Central Oregon Landwatch v. Deschutes County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=cCsSaloibf4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nHello, welcome back. This is the time set for luba number 2024-080, Central Oregon Land Watch versus Dashuites County. I'm board chairs Zoodio. Board members Wilson and Basham are also present. I'm not aware of any pending motions in this appeal. There is there anything the parties need to bring to our attention? Seeing none. Uh oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? >> Uh yes. I'd like to reserve three minutes for rebuttal. Thank you. >> And I will keep track of time and ask that you also keep track of your own time. And just note that the screen that or the clock that is on the screen is not keeping exact time. And then the county, you will have 15 minutes uh for your responsive argument. >> Thank you. With that, petitioner, please state your name for the record and begin. >> Uh, thank you and good morning for petitioner Central Oregon Land Watch. I'm Rory Isbel. Uh, I'd like to start today with some framing of the issues. In this case, we ask the board to determine whether Dashuites County's new comprehensive plan complies with goal 14. Under its former plan, Dashes County has increasingly reszoned its rural lands to allow thousands of acres of new residential and industrial uses outside of urban growth boundaries. These zones that the county applies to those lands are zones created to facilitate previously built and irrevocably committed exceptions to the goals. In various cases uh challenging some of those decisions, this board and the court of appeals have held that the acknowledged status of the county's former comprehensive plan alone ensures goal 14 compliance without any further or property specific goal 14 inquiry. In the challenge decision today, Dashes County chose to update its entire comprehensive plan. The plan has new narrative sections, an entirely new organizational structure, chapter numbers, titles. It deletes old policies, adds new policies in every chapter. The county even adopted three brand new policies directly concerning how Go 14 applies to new residential development on rural lands. Yet the county's response brief argues that uh LandWatch's goal 14 arguments are either outside the scope of this PPA or are a collateral attack on the county's former comprehensive plan. Land Watch today is uh seeking our our day in court to determine whether the plan's allowance of unlimited reszoning of its rural lands for new residential and industrial uses complies with goal 14 and whether the plan's uh authorization of zones created to accommodate past goal exceptions to non-resource lands also complies with goal 14. So to describe what we see as the the key legal issue in this case differently the case law tells us that quasi judicial papas for individual properties need not show goal 14 compliance. If that's true, which it is, there's a lot of case law holding that, then when the county amends its entire comprehensive plan, like now is the only time a petitioner may challenge the compliance with goal 14 of the plans policies that dictate any subsequent um determination of compliance with goal 14 for property specific paps. So if not addressed now, the issue of goal 14 compliance um for these uh serial reszonings and authorization of new residential and industrial uses will continue to evade review. So our first assignment of error um addresses a procedural issue that I want to address. the county failed to follow public notice and hearing procedures for papas um under OS 197610 and an OAR that uh mirrors that statute and and add some detail. So the county did this in two ways failed to comply with the the procedural uh statutes in two ways. First, the county proposed three significant new goal 14 related plan policies after its public hearings and also after the written record had closed. Uh the the statute we argue which is RS197610 sub6 governs alterations to proposed papas and it requires local governments to notify DLCD and by extension the public of significant alterations at least 10 days before the final evidentiary hearing. here. These three new policies um that were proposed after the record closed greatly expand where and how the county allows certain types of residential uses on rural lands, cluster and planned developments. Currently, they're not allowed outside of one uh small zone under the county's former comprehensive plan, but these three new policies added after the record had closed in the new plan um allow those uses throughout all of the county's residential zones, including on non-resource lands. Now, the county did reopen its written record about 2 weeks before it proposed these three policies, but that did not satisfy the applicable POPA procedures. Uh the three policies that ended up being adopted are very different than uh what the county reopened the written record for a couple weeks prior. And uh the statute or S197610 sub6 requires a public hearing for alterations of papas such as this as does the Dashuites County code. So, the county's failure to allow any written or oral testimony on these significant three new policies prejudiced LandWatch's substantial rights to prepare and submit its its case to a full and fair hearing. But also, the case law tells us that failure to follow these pop-up procedures and statute is a substantive miscontrol misconr of applicable law as well. That's the Oregon Leasing Incorporated and Northeast Medford Neighborhood Coalition uh cases from the Court of Appeals. If we agreed with you and sustained that assignment of error on that basis, uh would you argue that it's appropriate for us to continue on to the other assignments of error or would this be a remand on a procedural error and then the substance would be likely to change? >> Um I think a a remand on the procedural error would be appropriate because of what these policies attempt to do. They do address um goal 14 issues which of course our other assignments of error are centered around the compliance of the plan >> remand just on the procedural assignment of error. That's what I'm asking. If we sustain the first assignment of error, do you think it would be appropriate for us to continue on to the remaining substantive assignments of error or would there be a likely change in the county's decision on a reopen record so that it would be premature for us to address those substantive assignments? uh you know I I can't really anticipate what the county would do on that remand, right? If if there would be substantive changes. So I I I don't think I can answer that question as framed because it would sort of be up to the county what they would do on remand there if they chose to merely follow the applicable pop-up. >> Okay. So then are you advocating if we did sustain the first assignment of error we reach all of the other substantive assignments of error? Is that what >> Yes, I I believe I am. Yes. >> Thank you. and especially, you know, this this decision has is appealed on reconsideration. So, it's been several years uh that the county has has um worked on this this new plan. So, I believe LandWatch would ask that the board to address the assignments of error to um you know reach finality on some of these issues. And then on the substance, I I think we all here understand that there is a line of cases, the Asetti line of cases. Which zones and plan designations did those cases apply to and which are at issue in this appeal? >> Thank you. Uh the plan designations that those cases apply to are both the county's rural residential exception area plan designation and its rural industrial and rural commercial plan designations. There's two zones uh that implement the rural residential exceptionary plan designation. That's the MUA and RR zone and uh two zones for the rural industrial and rural commercial plan designations that are uh called the same rural industrial and rural commercial. Uh you mentioned the asetti line of cases. There are several other cases that uh hold something similar that the county's uh the acknowledged status status of the county's plan means that any subsequent plan amendments into those zones automatically complies with goal 14. The 710 properties case holds that for uh rural residential exception area. and not only the Aseti cases, but some related case law, including a court of appeals case affirming this board's decision in the last ranch case. Um, just last week, the court of appeals affirmed that the county may rely on the acknowledged status of its plan to find that any subsequent um plan amendment into the rural industrial zone anywhere in the county, any size acreage, um, also complies with goal 14. So assuming that we adhere to our prior decisions and the court of appeals prior decisions addressing these goal 14 issues, what remains at issue in this case? >> What remains at issue in this case? I uh LandWatch believes that this plan itself must um impose some sort of goal 14 uh criteria on its policies that allow those quasi judicial plan amendments. Uh I believe the Supreme Court in the Curry County case back from 1986 was quite clear that uh resonings on rural land uh in order to show compliance with goal 14 requires a sightspecific inquiry. Uh so it's our position that this plan needs to require that goal 14 sightsp specific inquiry if subsequent papas that the plan sort of tease up um don't themselves need to show that sight specific goal 14 inquiry. >> So the county is has responded defending its decision essentially characterizing your position as attempting to relitigate those cases in the situation of a papa. Why is that not the case? And what's different? What's going on with this papa versus what the county has done in um application specific cases? >> Sure. Um so we are not attempting to relitigate those cases. Those are final and closed. They're holding stand. What those cases tell us is that it's it's the county's comprehensive plan uh that shows goal 14 compliance. So now that the county has chosen to update its entire plan which authorizes certain zones to be applied to certain plan designations, we believe now is when the county must show goal 14 compliance of applying those zones anywhere across the county. So, this is not uh >> Did the county need to update its plan in order to do that or could it have continued doing what it was doing on a case-byase basis under those lines of cases? Uh, >> I believe it could have continued. It was under no legal obligation and we stay this we say this state this in the brief. It was under no legal obligation to update its comprehensive plan, but it chose to and its papa notices, its public hearing notices in describing the scope of this papa describe the entire plan. Um, you know, the hearing notices tell the public that all chapters of the plan, transportation, housing, farm and forest lands, economic development, um, all of those issues, all of those, you know, related goals are within the scope of this papa. So I yes I believe they could have continued under the old plan but they chose to update the entire plan and replace it with a new plan. So, we believe that because they chose the county chose to do that, then it needs to show compliance with all of the goals, including goal 14. Uh, and you know, based on past experience, obviously, this uh appeal is somewhat motivated by existing case law under the former plan um about how the county adopts non-resource uh uh plan amendments. Um so uh it because the county chose to update its entire plan, we believe they need to show go 14 compliance um at because individual uh property specific papas have not needed to under the former plan >> and you're at your 12 minutes. You can continue or if the board has any questions otherwise we could reserve your time for rebuttal. >> I will reserve my time for rebuttal if there are no further questions from the board. No further questions. Okay. Thank you. You'll have your three minutes for rebuttal and we'll turn to the county for your argument. Please state your name for the record and begin. >> Good morning. Stephanie Marshall, senior assistant legal counsel for sheets county. Thank you. And um may it please the board. Um uh I've been listening to the questions that um you've uh that the board has presented to petitioners council and um uh I think I will start by focusing in on some of those questions on the procedural question. Um whether or not we call what the county ultimately adopted as a repeal and replace I think is a matter of semantics. Um, what I've not heard from Land Watch uh from the petitioner in this matter is why previously acknowledged plan policies and goals uh that were acknowledged um and were not changed. Why are those now non-compliant with goal 14? Um LCDC or excuse me, DLCD reviewed the plan uh reviewed those policies that have not changed. Again, whether or not we call it a repeal and replacement, I think is almost beside the point. um those plan policies as we've shown in our red line and and uh comparison document were not updated. They were previously acknowledged as compliant with goal 14 and nothing has changed in those policies. So again, um, putting aside the questions and arguments of collateral attack or otherwise, um, I I've not heard that argument from landwatch as to why previously acknowledged policies and those associated goals are now non-compliant with goal 14. Um, I want to turn to the procedural issue. Um our brief uh covers this in in detail as to how um legislative actions are entitled to evolve over time, not necess not necessitating new um new notice. Um those specific policies, first of all, the the 10.1.1 is not a new policy at all. 10.1.2 and 10.1.3 are two new policies. We agree. Um, we also submit, and this is covered in our brief, that LandWatch had an opportunity to c uh to comment on that pol on those policies. Um, and I've got the record sites 1311. These are the recon record 1311, 809 to 811, 821 to 8:23. Um, they had multiple opportunities to submit oral and written um, testimony. Um, the written record was reopened. the policy uh proposal was put out there and it was ultimately divided into two subsections uh 10.1.2 and 10.1.3. um the language itself, you know, we just decided to to to break them out further, but um we submit and again as covered in detail in our brief that LandWatch did have an opportunity to comment on the proposal there and and moreover the proposal is uh basically to incorporate existing state law and all of the policies that are challenged um in petitioners brief have to do with compliance with state law. every single one requires the county to apply state law. Um it's it's I still haven't heard how that is non-compliant with goal 14. Um I think you've just heard from petitioner that that their um their concern, their fears have to do with implementation. um when an actual application comes in uh to reszone and um amend the plan for a specific parcel of property and that again pursuant to state law is is um reviewed and decided on a case- by case basis. Sometimes goal 14 is is found compliant with and every single one of those decisions have been held up um held held uh sorry upheld there's the word upheld by Luba in the court of appeals either on in the first instance or on remand and when it goes back up and um Mr. Isbel just mentioned the last ranch decision which um came out from the court of appeals just a few days ago. Um again upholding Luba's determination that the goal 14 issues were addressed um and and are addressed uh in the asset line of cases. I've not heard um any any reason why or any any explanation as to how this is a plan level um issue before uh the land use board of appeals. um instead of a we don't like what's been happening uh matter and we don't want this to happen in the future. Therefore, the county has to put some sort of additional sidebars even though we have sidebars in the plan that require compliance with state law and in particular that OAR which allows the um clustering and PUD developments. um again with with very specific um uh procedure that's involved with with how those are reviewed and um decided. uh in the petitioner's brief um they actually stated that they were taking issue with uh Luba's decisions and the court of appeals decisions and they came right out and said we're we're challenging these development regulations um that allow for those clusters and PUDs and and that is outside the scope of of Luba's review in this matter and and that's where the county's argument stands is is we have to look at the the plan the plan itself um the fact that that these um that most if not all of these policies were already acknowledged by DLCD as compliant with goal 14. No changes were made regardless of we of whether we call it a repeal and replacement. Um I'm still waiting for the argument as to how previously acknowledged policies are now non-compliant with goal 14. Um council if I can ask you if I understand correctly petitioner is arguing that these policies extend cluster development rural residential road development to non-resource lands is that and he argues that's inconsistent with goal 14 is that the kind of argument that's better addressed at this level of a comprehensive plan amendment >> I think that that's better addressed on a case-byase basis because again the plan is talking you know the plan is the umbrella the plan is the overview it's not talking about anything specific. It's and these policies are in the residential development um section of the co of excuse me uh chapter of the plan. Um they're not talking about specific zones. Um you know it the the policy the previous policy 3.1 3.3.1 was in the um was in the uh resource zone chapter. Um these are now housing policies and um where they are applied will depend on the individual application and and how the county processes that again with the requirement that anything complies with state law and LandWatch will um I suspect and and and I encourage them to continue to uh participate um with respect to these individual or future individual applications when they come up and and the county will then decide, you know, and determine, you know, and and take into consideration, you know, is this is this the appropriate place for a cluster or PUD development under state law. Um the plan is is not addressing the zone in which they're they're um these provisions are um applied other than the fact that that we have those two longstanding since 1992 development regulations that are acknowledged and are outside the scope of this appeal and yet we're were essentially I think if I recall correctly LandWatch says yes we are challenging those development regulations. I could find the site in their brief, but um unless you have a question on that, I'm I'm happy to move on. >> Okay. So, if I understand argument correctly, he's arguing that as applied to any non-resource land, these policies would be in contrary to goal 14. It's not an as applied or this particular location. Is that am I misunderstanding the argument? >> Is right. Right. And what I'm what I'm not hearing from Landwatch is with the requirement in the plan that um that they comply with state law. I I don't I'm not sure what more Land Watch is looking for. I mean, we're not allowed to disregard goal 14 when we apply uh when we review a um a cluster or PUD development. We're not allowed to ignore the OAR. Um, so, so really what what more can be what more can be added? Um, I'm I'm unclear because again, this this really seems to be a a dis dislike disapproval of decisions that the county has made and some sort of uh direction to the county uh from Luba or or or otherwise to to not allow this to to happen at all. And you know the plan is generally stated. The plan is generally um addressing residential development and it is generally saying you know if you can go through if an applicant can go through the OARS and can established that they are compliant with them and they comply with goal 14 etc etc then perhaps that person can get something approved. The plan doesn't drill down to that level of detail. The plan is an overview and and uh and then the development regulations flow from the plan and those development regulations are in place. Um I think also in our brief we we um we addressed the fact that the the impetus for these two new policies um came from uh the the board's ruling in um Destiny court and that was last year uh where uh Luba had um had a question um regarding the inconsistency of the plan with um a potential PUD or cluster development. So, we amended the plan to clarify like this is how it's been. This is how it will continue to be. We still have those sideboards and um those sidebars those side bar boards are not removed. Um, and we're just making it more clear in our plan. And um as I stated in the brief um it was truly a response to the Destiny court um decision from Luba uh to clarify, you know, we we never intended that um that the 10acre minimum lot size in what was then 3.3.1 and is now 10.1.1 uh precludes potential cluster or PUD development to the extent it is uh consistent with state law. Thank you. >> Thank you. Um I'm not sure how many more minutes I have. Um I Let's see. Let me just look at my notes. Um want to make sure that I've covered everything that has come up. Um um let's see here. Um I don't think we need to use the word collateral challenge or collateral attack. Um again, uh the the question that the county has is why previously acknowledged plan policies and goals are now non-compliant with goal 14 um where they were not changed. and th that uh that argument applies to the commercial and industrial uh arguments that land has presented. Um and then um let's see here with uh I and goal 14. Um what what LandWatch is asking ultimately is that they get to reweigh the policy decisions of the board of commissioners and the policy decisions of the board of commissioners in Dashuites County are unique. Um there we're one of the fastest growing counties in the state. There is a great need for housing development. Um there is great pressure in that regard. We also uh are balancing that against, you know, environmental considerations, goal five. Um none of that, of course, is in um in this appeal. Um but we're, you know, when the when the board made their decision, they were weighing multiple considerations and figuring a way to move forward. Um, I think really at the end of the day what what I'm hearing is is a uh a challenge to the concept or the idea of PUD and cluster developments. Um, I'm not minimizing the appeal uh the the appeal issues that relate to commercial rural commercial or rural industrial. Um but with the court of appeals recent decision um just a few days ago um in in last ranch um I think that that issue is is asked and answered and um and and there's nothing more to to say on that. Um with respect to cluster and PUD development potential um this is not anything new either. Um the uh development regulations that have been in place in Dashes County since 1992 um are not up for debate. They are not ch they cannot be challenged um in this in this appeal. And um Luba um cannot make a ruling. I would I would I would submit Lupa's ruling cannot address the legality of those development regulations. um we're only talking about the plan and um and the county submits that LandWatch has been involved and has had multiple opportunities to and and very thoroughly and um uh very much appreciated um has been involved in the um in the development of these plan policies um 10.1.2 2 and 10.1.3 which were a direct um outgrowth from the Destiny court decision. Um but again do not introduce a new type of development or a new manner of reviewing development applications. The plan does not go that far. The plan simply say states that these are permissible. Generally speaking, um if an applicant uh decides to go through that way and they're not limited by the 10.1.1 um 10 acre minimum lot size provided that they can they can comply with state law. And on that I will uh rest and um happy to answer any questions. >> Thank you. Uh thank you for being mindful of your time. No further questions from the board. We will return to petitioner uh for your three minutes of rebuttal. Go ahead. >> Uh thank you. Um so I I heard the county ask a few times uh that they haven't heard Landwatch uh explain why policies that were previously acknowledged as compliant with goal 14 might not be now. Uh well I I uh direct the board to the court of appeals case 1000 friends of Oregon v. Jackson County 79 ORAP 93. It's cited in our reply brief. That case holds that an amendment to one provision of a plan can affect the way in which another provision operates or affect the land uses upon which it operates and that those secondary effects are themselves goal compliance problems. So land watch in this appeal challenges compliance of the entire coordinated plan with goal 14. Uh, the county, as I've stated, updated all chapters of the plan, including certain policies directly related to goal 14 that affects the entire plan's compliance with goal 14, even if some of the language is the same as the past plan. It's an entirely new plan and we do believe that the county needs to uh justify the plan's compliance with goal 14 a new even if a past version of the plan with a different structure, different policies Uh, and I I want to point out that some of those past um property specific decisions uh the the county um in its final decision in some of those has said that either goal 14 does not apply or just flat out that goal 14 is met because the plans and its implementing zones have been acknowledged. Uh so to say that future uh plan amendment decisions will have to show goal 14 compliance a new that's sort of counter to the case law that's guiding the this appeal I suppose um that says that no the county does not have to show go 14 compliance in those decisions and I'll point again to the 710 properties decision the SETI cases last week's last ranch case um we see this as an issue of of evading goal 14 view. If goal 14 compliance doesn't need to be shown now at the comprehensive plan level and also doesn't need to be shown in an individual property specific papa level, then when will it be reviewed? Um, this plan authorizes the county to reszone resource land for residential and industrial uses anywhere throughout the county. We imagine a scenario that this plan authorizes where let's say 10 or 20 properties in a remote corner of the county are reszoned for industrial uses and each of them develops petroleum storage or plastics factories with that concentration of industrial uses outside of urban growth boundaries with no uh real like minimum lot sizes required. These could be 5 acre parcels uh 20 acre parcels. Would that concentration violate goal 14 by with that amount of industrial uses in one spot outside of urban growth boundaries? We believe it would. And and now at the plan update level, the case law tells us is the only time that >> a petitioner like Landwatch can raise that argument about goal 14 compliance. >> Thank you. That uh that is your rebuttal. Appreciate your argument today. That will include oral argument. Uh the statutory due date for our decision in this appeal is March 3rd. We'll ask the parties to agree that we may issue our decision uh by March 24th. Is that okay with these parties? >> That is fine with the county. Thank you. >> Thank you. >> Yes, that's fine. >> Okay. Thank you. Have a good remainder of your day.", "summary": "Hello, welcome back. This is the time set for luba number 2024-080, Central Oregon Land Watch versus Dashuites County. I'm board chairs Zoodio. Board members Wilson and Basham are also present. I'm not aware of any pending motions in this appeal. There is there anything the parties need to bring to our attention? Seeing none. Uh oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you l…", "source_url": "https://www.youtube.com/watch?v=cCsSaloibf4", "source_name": "Oregon LUBA", "doc_date": "2026-02-25", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-080 Landwatch Lane County v. Lane County", "content": "Oral Argument 2025-080 Landwatch Lane County v. Lane County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=mxBFPpmHV80). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Mhm. >> Good morning. This is the time set for oral argument in Luba number 2025-080, Land Watch Lane County versus Lane County. I'm Board Chair Zamudio. Board members Basham and Wilson are also present. Please mute your audio when you're not speaking. That will help us our recording. Thank you. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention? Seeing shaking heads, no. No, thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? 3 minutes, please. Okay. Uh I will keep track of time and ask that you also keep track of your own time. And intervener, you'll have a total of 15 minutes for your response. So, with that, petitioner, please state your name Good morning. Shawn Malone on behalf of petitioner Lane Washington County. Uh the facts the most relevant facts here is that uh there's tax lot 200 and tax lot 302 and that these two tax lots became a tract after January 1st, 2019. Uh this is important because the way in which they became a tract was through a process that is identified in the legislative history as this notion of deed shuffling, uh conveying the properties back and forth, uh adding um and renaming the the individuals on the deeds uh through a variety of of very similar but somewhat different um spellings and using ampersands instead of and and and a a variety of ways um with the effect that the title is different but the underlying individual still owns the property. Um And so, at issue here is obviously ORS 215.750 sub 5 sub H. Uh this is related to the first assignment of air and it's really the bulk of of the briefing. Uh the first issue that we just sort of have to address and that uh uh intervener referred to as sophistry, which is somewhat ironic because that originates with the Greeks and philosophy and uh you know, a conditional statement is something that is integral to logic, symbolic logic to this day. One of the more difficult classes I've ever taken in my life, but nonetheless, the idea of a conditional statement is a very straightforward uh principle in logic and symbolic logic. And it it really only comprises two parts, an antecedent, that's the if clause, and a consequent, the then clause. So, we don't need to um act like this is some difficult thing that the board can't understand or that we can't understand. It it's it's readily discernable. Um and because the hearing officer uh determined that just the subsection H in and of itself is a conditional statement and that um you know, we we need to dive into what that means. What what is a conditional statement? And you know, interestingly enough, the broader 5A through H is itself is also a conditional statement. Um with the consequent, you know, the then clause coming first in subsection 5 in section 5, and then subsection A through H contains all of the uh antecedents, the if clauses. So, I think that's pretty straightforward stuff. Uh we don't have to you know, it it's not that difficult to ascertain. Um Land Watch's conclusion as far as the text goes is that collective collectively 5H is a conditional statement. Section 5 is the consequent, that is, you get a template dwelling, you are entitled to a template dwelling, and subsection H is the antecedent, that is, if you satisfy three separate clauses, all of which are conjoined by the word and, and uh those are related to the date certain of January 1st, 2019. Here, because the applicant did not satisfy all three clauses or criteria or prongs or whatever you want to call them in subsection H, uh then the applicant is not entitled to that consequent, that is, the template dwelling. Uh in our opinion, that that's sort of a very straightforward reading. But hearings official, on the other hand, concluded without a lot of analysis uh that subsection H is a is its own conditional statement, and somehow that the the first clause uh that begins with an if, and again, we'll get to this other notion that you know, there was an if immediately preceding that the end of section five, um that that subsection H is its own uh conditional statement with with the first clause being apparently the antecedent, and then the two subsequent clauses being the consequence. But if you if you read it, if you read subsection H, it's list it's just listing things that you have to have. Think criteria that that must be satisfied. It's not couched in in terms of how a um a conditional statement normally operates. If you do this, then you get this. The second two clauses in subsection H just are not couched as something that you get, something that that results from uh satisfying the the antecedent. And so, that's that that's where the the basic difference in the interpretations uh comes from. And the hearings official, again, in in his uh in the the the proper part of his decision, doesn't really get into the analysis, but again, the this this hearings official has done it several times, incorporated and adopted findings from uh a non-attorney uh applicant's consultant that it appears were not intended to be findings in and of themselves. And those findings make several blatant mistakes. And we'll just to get to those quickly, uh the first one is this notion that all if-then statements, all conditional statements result in limitations or prohibitions. That's just simply not the case. Um a conditional statement operates on whatever the language of the conditional statement is. So this notion that there's a limitation or a prohibition every time there's a conditional statement is just simply not true. You look to the You look to the language of the conditional statement here. Um it's not a limitation or prohibition, it's that you get a template dwelling. It's actually um something that you get, something that's uh positive or something that's that's desired, I guess. Um the second one is that uh that non-attorney's adopted findings um related to legislative history said something along the lines of the intent of HB 2225 was to prevent double dipping. Double dipping. Uh it's not even clear what that is, and a review of the legislative history does not indicate anyone saying that phrase double dipping, and there's zero citation from the applicant's non-attorney's consultant uh that were adopted. There's no zero citation of any actual legislative history. So the hearing official's being a little loose in terms of adopting findings without any support or citation. And we'll get into that legislative history a little later here, but again, another thing that's yeah, that's implicated in the second assignment of error is that on two occasions and and it's pretty lengthy uh within those adopted findings, they just get the tax lots completely wrong. They say these two tax lots are not contiguous to each other.\" In fact, they are. That's what makes them attract and they're within the same uh you know, complex kind of deed shuffling uh deed titles. And that's what again makes them attract. And that happens in both of the sections that are adopted by the hearings official from that non-attorney consultants. Uh the next thing that those adopted findings get wrong is this notion that a conditional statement uh results in uh you know, if you don't satisfy the antecedent, then it's just something that doesn't apply. But that's not the case. Instead, you Here you get a dwelling. That's what the antecedent says. You get a dwelling only if you know, you satisfy these other criteria. And so, saying that it this notion of just not applying, that that in and of itself is inserting language that doesn't exist in the statute. Um you know, again, you you look at these conditional statements and you just you just uh apply them according to their language. And there's no language that says this conditional statement {quote} {unquote} does not apply. So, um in our opinion, obviously, it it you get a condition you get a uh template dwelling. An applicant is entitled to a template dwelling as the antecedent. Um antecedent of the consequent, if you satisfy all the antecedents, those being the three criteria, the three prongs, clauses, requirements of subsection H. Um and those those one of them then is not satisfied here. Yeah, two of them are satisfied, I agree with that. Um but because it's all conjoined by the word and, that means you have to satisfy all three of those statements or all three of those prongs. And and that's just not what is happening here. Um Just like this notion of not applying is coming out from sort of left field in in a similar fashion as this notion of double dipping. It's just coming out of left field. We don't really see any textual or legislative support for these these phrases and how these conditional statements are being applied. Um and then also on on on page 13 of of the response brief, there's an allegation about this alternative finding that the hearings official made and that alternative finding is kind of irrelevant again because it's just saying, oh well, you know, in the alternative, they are satisfying two of those three criteria in subsection H. But again, the because they're joined by the word and you have to satisfy all three. So, that sort of alternative finding identified on page 13 of interveners brief, um it's it's irrelevant if, you know, if you only satisfy two of the three, if you only satisfy one of the three, you haven't satisfied the whole thing. And you got and you have to satisfy those those antecedents, those if clauses to get to the consequent, which is the entitlement to a forest template dwelling. Um and the next sort of incorrect notion coming out of these adopted findings is that subsection H is not in itself a conditional statement. And looking at the adopted findings, they are focusing as a conditional statement on subsection H. And the hearings official again in the in the sort of body of its own findings doesn't really address the idea of of of the fact that it's the broader 5 H and 5 A through G are all conditional statements because subsection 5 ends with the word if, so making all of those A through G and H um the antecedents to the consequence of again being entitled to a template dwelling. So, you got to satisfy uh A through H to to uh to get the get what they're entitled to. Um there's this double if oddity, and I am not uh alleging that basically what I'm coming down to. And again, hearing official did not really analyze that double if at all. And the question I have is what does the double if add to it materially, significantly? I I can't really see it cuz if you take away one if, you still have an if there. It's not like this notion of uh double negatives where double negative makes a positive, etc. Um it it it's a little different. If you take away that if, that subsection still begins with if if you take away either one of them. So, um it appears to be a redundancy. It's difficult to apply any significance. Uh I see that I'm generally speaking at my time here, but I'm going to press this. >> Mr. Wollin, before we run out of your time, um about the legislative history, um like Mr. uh Representative Helm makes clear that he's sort of worried about gaming the system. Um but I think the the statute would address that at least in some extent either with your interpretation or Mr. Reader's interpretation. What about the legislative history specifically goes to your position that basically you have to have been a tract by 2019? What what in there specifically address that part of your argument? Well, for me it's it's the plain text. I I I But, you know, going to the legislative history, uh Mr. Reader has identified what he refers to as three principles there. Um and um I think that Mr. Representative Helm is clear when he states that uh let me I have it here. Uh he said Helm says, \"And gaming the system took two forms.\" Again, that's this notion of um uh, deed shuffling and then this notion of multiple property line adjust adjustments uh, taking place. And so, there's no other third one, you know, that the sponsor of the bill Helm is talking about. Um And then that that's obviously reinforced by individuals like um uh, Derzan and Malky, Land Use Attorney. Um, and I think the real thing there in the terms of legislative history is look at what Jeremy Keepers is saying. He's He wants subsection H removed. He's saying all these other people already deed shuffled. I haven't deed shuffled and I haven't done it by January 1st, 2019 and because of that, I'm going to be prevented from doing something later on because of that date certain deadline. And I'll try to preserve 10 seconds for uh, rebuttal if I may. Does that answer your question, Commissioner Wilson? Sure. Sorry. Questions? Okay. Uh, you will have 1 minute for your rebuttal remaining and we will turn to intervener for your responsive argument. Good morning. Mike Reader for the intervener respondent. Uh, I'd like to address a couple of preliminary items. First, just want to correct some actual scrivener's errors in the uh, response brief. Page 7, line 5, ORS 215.215 should say ORS 215.750. Uh, page 10, line 8, country should read uh, contrary. And page 18, line 12 should say the the citation is a there's a missing sub five. And so, it should be ORS 215.750 sub five, sub C, D, and H. Okay. With that, uh, the Lane County Hearings Official affirmed the Planning Director's decision to approve the forest template dwelling in the F2 zone on a tract comprised of two parcels as Mr. Malone talked about tax lot 200 and tax lot 302. It was not until 2005 that tax lot 200 and 302 became a tract. Um, tax lots 200 and 302 are each individual legal lots, lawfully established units of land, and together comprise of over 80 acres, and that's found in the record at 413. Um, it's acknowledged that tax lots 200 and 302 were not a tract as defined by the statute on January 1st, uh, 2019. And, uh, there were no dwellings on either parcel as of January 1st, 2019, and there are no dwellings on the tract now. So, let me get I think it might be easier to understand, uh, all of the arguments today if we understand if we were to take petitioners' interpretation and omit the second if out of the statute, which I'll talk about you cannot do, but let's suppose you did. Let's say you did that. In effect, what that would mean is that a property owner uh, on January 1st, 2019 that owns a lot a lawfully established unit of land, a lot or parcel. Let's say that parcel is 80 acres. There's one Otherwise qualifies for a forest template dwelling, meets all the other criteria. Because that property owner on January 1st, 2019 did not also own another lot or parcel, that property owner would be prohibited from having a forest template dwelling under the interpretation posited by the petitioner. I am not arguing that the absurd results maximum applies here because it doesn't need to because the text and the context and the legislative history support the hearings officials interpretation of the statute. However, if you understand what is being argued the practical effect of what is being argued by petitioner, you'll understand why the double if has meaning. Okay, so think about that again. There would be no planning purpose for requiring a property owner as of January 1st, 2019 who doesn't also own another lawfully established unit of land from obtaining a forest template dwelling if they otherwise meet all the other criteria of House Bill 2225. And I'd like you to think about that and let that sink in because that's the absurd So >> I'm just trying to understand where petitioner is coming from as a policy matter and I'm not asking you to make petitioner's argument, but in terms of how these two parcels were combined, um, what purpose did that serve? Cuz there's an allegation that there's deed shuffling happening that is what the legislature intended to avoid with this subsection H. Can you just explain to us why these lots were combined and what for what purpose? Yes, that is a good question, uh, chair. Uh, the purpose of combining the two parcels to become a tract under the statute House Bill 2225 in effect in 2025 and now to 2026 was to I was not representing the applicant at the time, but if you look at the record, it was to create a template a set the centroid of the template that would qualify the property for a forest template dwelling under the rules in existence in 2025. So, as I understand it by the record, if the if the applicant were to only use tax law, I think it's tax law 200, but the the tax law on which the dwelling the the parcel on which the dwelling will be located, if there was no attached other parcel creating a tract, I don't believe that they would qualify for a forest temple dwelling. And on the record, is it because and this is purely out of curiosity, but also trying to understand the policy purpose of subsection H? Is that because it wouldn't have captured enough existing legal lots if it were further west? >> I believe so. So, if you look at a you know, just the individual parcel and you look at the centroid, you know, you your template would only capture so many dwellings. If you then acquire another legal parcel and create a tract, the centroid moves capturing different parcels. I separate parcels and separate dwellings that is required in order to get a forest temple dwelling. So, in terms of the policy purpose of this provision, I understand earlier subsections are looking at not using property line adjustments to approve that would result in the um parcel qualifying for a dwelling. I think petitioners argument is this is the same kind of effect because it's qualifying the parcel. Why is that not policy-wise um supported either by the legislative history or the or the text or context? Because it's not. There's not I mean we we briefed that that is a policy consideration that the legislative sponsors could have brought forward to the legislature, but did not. The test >> So, if I understand you're saying petitioners argument is essentially policy-wise overburdening subsection H with a policy determination that the legislature the legislative history shows that the legislature rejected and in terms of the actual text is not supported by the text. That is 100% correct. Thank you. Yes. The interpretation of ORS 215 sub five and sub five H, the double ifs, uh if has to have meaning. Okay? So, when you look at the dictionary definition, Webster's Third International Dictionary page 1124, if has the definition of in the event that, in case, on condition that. So, House Bill 2225 included two Fs. I'm sorry, two ifs. Okay? Uh under sub five and under sub H. Essentially, what petitioners are arguing is that the hearings official erred by giving meaning to both ifs. In other words, we call it in the briefing, we call that a double negative. And it's similar to when someone says says you're not wrong, they're really saying I agree with you. That's really what was going on. This this this notion that there's redundancy is not born out either by the context or by the legislative history. So, the Let me put it to you this way. The if if the the the Supreme Court, the Oregon Supreme Court has said that the job of a judge is to give meaning and effect to all provisions. And we know from ORS 19174010 that judges may not insert what has been omitted or omit what has been inserted. That that if in subsection H was purposely uh in inserted in the in the language. When you look at the legis- when you look at the legislative format of House Bill 2225 that's in our appendix, you will see that it was added and there were iterations of House Bill 2225. In addition, and I think really importantly, is the the the the OAR that implements the forest template dwelling statute. Uh OAR 660-06-0027 uses the exact same if, the double if. So, that went through the process of adopting regulations and no one may Nobody said, \"Hey, wait. Time out. There's a double if here that doesn't make any sense.\" You know, it's conceivable that the, you know, DLCD could have said, \"Oh, wait a second. This double if doesn't make sense. Let's interpret the statute.\" But, they didn't. The It's not the role of LUBA or the courts to erase the the if because petitioners don't like the So, we posit that it's not a scrivener's error, but it was purposeful uh uh part of the statute. It doesn't suffer from anything other than perhaps it's a bit confusing. Yeah, I agree. If I were to write the statute, I probably would have written it differently. But, you cannot omit that that second if. It has to have meaning. And that's, you know, Friends of Nab Hill versus uh Filomath, courts must harmonize apparent conflicts if possible. I I actually posit that the easiest way to read the statute is the way that the the intervener responded and the hearings official read it, which is it it is it is conditional. If you don't have a tract and so I would invite the LUBA when you when you're looking at this and writing your opinion, highlight in the statute everywhere where the statute talks about lots and parts lots and parcels. Highlight tracks. And highlight the ifs. And it will become clear that this was a statutorily put together the way that it's supposed to. Uh >> Explain for me that where the double dipping comes from and what that means in your understanding of the hearing officer's understanding. Yes, so the double dipping I you know I have got to be honest, the double dipping argument is somewhat irrelevant. I again, I did not represent the applicant below. Uh double dipping I I think I understand what they're saying. I think it's irrelevant. I think the legislative history does not support the position of the petitioner. If if the legislature wanted to say property owners who qualify for forest template dwellings must have a tract as of January 1st, 2019. It easily could have done so. Instead, what the the the legislature was concerned about was if you have a tract on January 1st, 2019 you can't also have a dwelling on on that tract. Even if even if you even if the applicant is proposing a dwelling on another parcel in that tract, if that tract has another dwelling you you have to look at that tract. You don't get to deed shuffle. You don't get to say cuz prior to the statute you prior So is that what the double dipping is? It's looking at the tract and saying if you divide the land, if you create new properties that then could be qualified for a forest template dwelling you have to look at the whole picture of the tract and you can't do that as of after January 1st, 2019. And I think what you're arguing and what what the petitioner's view of this is is there's also an opposite side of that where you can't add parcels together to create a new tract that would then be qualified for a forest template dwelling. Your argument is H is going towards the first scenario and not the second scenario. Correct. And the the legislature actually they contemplated what petitioner is advocating and advocating and they rejected it and we cite that in our brief about how Mr. Representative Helm wanted to have that stricter snapshot. Like basically, you can't go create a tract that then qualifies the parcel for a forest template dwelling. The legislature specifically rejected that policy issue. Okay, so then in terms of double dipping is shorthand for the purpose of what subsection H is getting at. >> Yes. It's not necessarily irrelevant for our analysis because we need to figure out what is H getting at. Yeah, H is getting at the fact that if you in 2000 in January 1st, 2019, you take a snapshot. If there is a a a tract and that tract has a dwelling on it as of January 1st, 2019 or or no dwelling exists or has been approved on another lot or parcel that was part of the tract you do not qualify for a forest template dwelling. It doesn't say anything about afterwards if there's a it doesn't say anything about our situation here where the the parcel isn't a tract. It's just a parcel and they afterwards acquire a a property that is a legal lot or parcel that doesn't have a dwelling on it to to move the centroid. That is a policy decision that could be tackled by the legislature, was not tackled in 2025. >> And you're saying the legislative history reveals that the legislature was aware of this problem and chose not to address it. I think well, I I don't think it's super explicit. I don't think it really I don't think the issue was directly on point at the legislature. The legislature was looking at other things. And citation to Jeremy Keepers, Jeremy Keepers was is not a legislator. Uh and he's not an and he's not an attorney. So, I don't I don't give any stock to Jeremy Keepers' legislative comments. Okay, we're getting to the close of your time, so I just want to make sure there any questions the board members on this. Okay, so if you could wrap up in the last 10 seconds. Want to say anything? >> Sure. Sure. State v. Pierson states that reading the statute to the contrary would require omission of words that the legislature chose to insert. And the Supreme Court under State v. KP 32401, we may not omit a part of the wording of the statute in our interpretation of it. Instead, we are to give effect to all of the all of that wording. essentially what petitioners are asking Luba to do is to omit that if, don't give it conditional meaning, and that is the Not only is it incorrect under uh PGE and Gaines and 174010, it's also the incorrect interpretation of the statute. Thank you. Uh we'll return to petitioner for your 1-minute rebuttal, petitioner. Go ahead. Mr. Reader, discounting the testimony of Mr. Keepers cuz he's a non-legislator, he's a non-attorney, but he cites McKenzie Bowerman's testimony as indicating the purposes of what's going on here. Again, a non-legislator, non-attorney. Uh a lot of the sites that the respondents in appendix and excerpts of regular difficult because it actually omits all even pages page numbers in there. I only have odd page numbers in my um my copy of the interveners' brief. Uh The other issue is that there we know there's a clear determination about stopping this deed shuffling that's going on in order to qualify for a template dwelling, and that is exactly what Mr. Reeder said occurred here. That that is an admission that that these people deed shuffled in order to get a template dwelling, and that is exactly what the legislative history says not to do or was to hopefully be prevented by this statute. Um as for the double ifs, I'm not saying omitted. Um my interpretation exists with one if or two ifs. The problem is no one's um put together any sort of meaningful or significant notion of what the second or first if does. Um the respondents' argument would still exist because if you took away one if because it would still say if. They would still argue that, you know, subsection H is a conditional statement then. Um I say it's redundant because it actually is redundant. They're using two things right in a row. The the real issue is what is the meaning behind that redundancy. The hearings official never attributed anything specific to that, and and and neither to my knowledge has um intervener here except to say that it it it results in some sort of interpretation that that um conflicts with our interpretation of it being three times >> Thank you. That we've exceeded your time for rebuttal, so I will stop you there. And um we will get to wrestle with the double ifs in our decision. So, our decision in this matter is uh the statutory deadline is May 13th. Uh we'll ask the parties in advance to agree that we issue our decision no later than June 3rd. Is that okay with these parties? No objection. Thank you so much, and have a good remainder of your day.", "summary": "Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Luba number 2025-080, Land Watch Lane County versus Lane County. I'm Board Chair Zamudio. Board members Basham and Wilson are also present. Please mute your audio when you're not speaking. That will help us our recording. Thank you. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention? Seeing shaking heads, no. No, thank you. Oral argu…", "source_url": "https://www.youtube.com/watch?v=mxBFPpmHV80", "source_name": "Oregon LUBA", "doc_date": "2026-04-30", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "OA 2025-053 Eisenberg et al v. City of Ashland", "content": "OA 2025-053 Eisenberg et al v. City of Ashland\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=0adkobBMQF4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning, everyone. Just wait 1 minute till 11:30. Get started. Good morning. Right. Good morning again. This is the time set for oral argument in Luba number 2025-053, Eisenberg versus the City of Ashland. I'm Board Chair Smudio. Board Member Wilson is also present today. Board Member Basham is not present and will not be participating in the decision in this appeal. Uh, please mute your audio when you're not speaking. That will help with the recording quality. And I'm not aware of any pending motions in this appeal. or there that the parties need to bring to our attention. I don't believe so. Okay, thank you. Nothing from the parties. So, oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? I would like to reserve 5 minutes, please. Thank you. Yes, of course. And I will keep track of time and ask that you keep track of your own time, too. Just so you know, the clock, which is really out of view on our screen today, is not there for specific timekeeping purposes, but just for reference. An intervener, you'll have a total of 15 minutes for your response. And again, I'll I'll keep track of time and ask that you keep track of your own time, too. Be mindful of that. So, with that, petitioner, please state your name for the record and begin. Do you want me to list the petitioners? No, go ahead. Just just you and go ahead. Thank you. Thank you. Good morning. Uh Petitioners already think articulated their position fairly clearly in the both the petition and the reply briefs, but I just want to touch on some key issues on appeal and then, of course, answer any questions that the board might have. Uh first off, on addressing the first assignment of error, um the that decision, well, the decision overall was was in fact made by the planning commission and not the city council. And as the board well knows, it does not have to defer to interpretations of local land use regulations that are made by a planning commission under the Gage v. City of Portland decision. But even if this was a city council decision, it wasn't a I mean, the LUBA can't defer to an interpretation that's is simply inconsistent with the express language or purpose or or policy. And in this case, I think we have shown on a number of points that the decision does violate the Ashland land use ordinance by allowing some development a residential development on unbuildable slopes where there is otherwise adequate building area or buildable area on the subject property. is very clear. It says, \"No development shall occur or or all development shall occur on lands that defined as having buildable area and slopes greater than 35% shall be considered unbuildable except as allowed below. Um exceptions may be granted to this requirement only as provided under subsection H. An an exception wasn't sought under subsection H. Um rather, the the commission, despite the fact that the map that was provided, the topographical map, shows most of the site is actually less than 35 and there are areas where certainly a buildable uh residence could have been placed or shrunk down to conform with the 35% uh requirement. Um and but that didn't happen here. The applicant did not seek an exception under subsection H. Instead, the city approved the the the site plan and and well, and the application based on its finding that the uh subject property, and I'm quoting from the record at seven, um does not have adequate building area of less than or equal to 35% when considering the need to minimize broader disturbance by limiting development of the site to an area as near the existing driveway location as possible while also providing for site access and vehicle circulation. But that that qualifying language isn't in the code. And so, what the commission did in effect was insert language that it isn't there. I mean, the city council could amend its code to include that type of exception or consideration, but it hasn't done so. And and in in a quasi-judicial proceeding, um the commission is simply not in a position to interpret the in code. >> What? So, I mean, the phrase adequate is uh I'm curious how adequacy of the buildable area is determined by the city. First of all, like what do you think is the proper way for the city to determine what adequate buildable area is? That's my first question. I'll have a follow-up depending on your answer. >> Uh sure. Well, it's a good it's a good question. I mean, adequate is certainly would suggest the building itself with, you know, sufficient bedrooms and kitchens and whatnot to accommodate a single family need. Um but here, the the the adequate building area, I mean, could have been with actually even maintaining the same square footage of the of the home itself into areas that were less than 35%. Um I mean, if you look at I think it's page 12 of our brief, there's a map that shows the site with all the various um slope percentages on it and clearly uh there is plenty of area that is less than 35%. Um but they but the applicant chose to place the building footprint along with the terraces, the swimming pool, the patios, etc., um which are another assignment of error, um and not not building in a in the strict sense of of the residence itself on the areas that include the 35% slope, notwithstanding the fact that they could have relocated that or shrunk it to an area that did not violate the the plain language of the code. So, if I understand your answer, adequate buildable area can and should be interpreted with reference to a specific building plan. So, the applicant can decide, \"I want a 5,000 square foot building or I want a 1,500 square foot building.\" This criterion can shift determine on the specific building plan that's in front of the city. >> Absolutely. I think that's a that's a fair um And then, your argument is that you have to take that building plan and look where else on the property it could be located. And if it can be located where there's not steep slopes or the 35% slopes, then the city has to require that. That's right. Yep. Yep. Um and here that could have occurred and but they but the city didn't do that based on its on its its insertion of this need to minimize broader disturbance and locate the the building next to the existing driveways for site access and vehicle circulation. Well, okay, but those aren't criteria. Those aren't standards by which you can violate the 35% minimum. Um but I think I think it sounds like the the board understands the argument. So, um I will I will interject that there isn't substantial evidence to back it up, either, because of that. Uh Why why couldn't they have done it? Um there's no finding that really explains that. Second of assignment of error that I'd like to um focus on is the flag lot exceeding the 18% maximum grade. Um the the variance language allows for no exception beyond the 15% except for the 18% absolute minimum lots that are of this nature. So, here it's pretty clear that the slope of the driveway averages 24% and and again, that's an average. There are portions that exceed 30%. Um so, there simply isn't a basis for the city to variant apply a variance to the variance the maximum specified by the code. And because the commission failed to provide any valid justification for this exceeding this significantly exceeding this maximum variance, um this decision has to be we argue remanded or reversed because there's simply no evidence that would allow for a an exception to the exception, if you will. Um the city also ignored its 200-ft maximum driveway limitation. Um there's no doubt that the driveway exceeds 200 ft, which is why they've sought the variance. And here, the um there's not adequate findings to justify anywhere in the decision how how that um proposed variance to the maximum length of the flag driveways is consistent with the non-negotiable cap of of 200 ft as set forth under Um I see that I'm I think at my 10 minutes. Is that No, you've got another minute in your 10 minutes for your primary argument if you want to continue. And if board member Wilson has any questions, I'd encourage him to ask them now. Yeah. Yeah, yeah, Mr. Sherlock. If we agree with you that the the slope is greater than 18% and that and variance is not allowed, do we need to reach the fourth assignment of error where where you go through the the variance approval criteria? I I think it would be there are there are well, the fact that the I don't think so. I mean overall, but I would argue that the conditions that were discussed in the in in that assignment of error, the city's failure to well, and the applicant's failure to address the relevant criteria might be worth taking a look at that. Because we do feel like there it's a somewhat of a different argument, although clearly related because it's the variance, but overall I I Commissioner referee Wilson, I I think it's I think you're right. I mean it's generally if this if this assignment two is sustained pretty much answers the question as to whether that can be whether it can be allowed. So. Okay, thank you. >> the remainder of my time for rebuttal. Thank you. You will have 4 and 1/2 minutes for your rebuttal and we'll turn to the intervener for your argument. Intervener, please state your name for the record and begin. I Chris Hearn 515 East Main Street, Ashland for intervener respondents Brian and Stephanie DeBoer. We disagree obviously. We believe the planning commission's findings found on page 7 through 9 and 10 through 12 of the record have reflect substantial evidence supporting the variance granted and the other aspects of the criteria necessary for the application to be approved with the conditions that were applied. Um With regard to the first assignment of error, the commission found the parcel does not have adequate building area under the 35% slope when considered in the context of access and minimum site disturbance. This is a pre-existing legal lot created in 1996 not by the applicant. It was approved by the city and platted. And on their city's buildable lands inventory having it buildable, you know, supports needed housing. And the slopes have to be considered in the context of minimum site disturbance. Located where it is on a very steep lot, it's located in the bottom quadrant of the parcel. That's all the slope analysis reflects anyway is that area. And by being located at the end of the only feasible driveway access, it results in minimum site disturbance. Which is critical to what the petitioners propose is that you could drive you could excavate the driveway further through the 35 plus percent slopes deeper into a patchwork of 27 to 30% slopes and overall you'd have greater site disturbance than you would if you located the residence and building pad down at the corner of the parcel where it meets the driveway. Also, the public benefit associated here is the condition offered up by the applicants of providing that long sock trail easement. And that pulls the home furthest away from the trail easement located in the upper portion of the parcel. The planning >> your argument. Your overarching argument is that adequate buildable area allows the city some discretion to consider things like overall site disturbance, easement usage Agreed. I mean I think the interpretation made by the planning commission for both the variance criteria and the to the extent they apply the hillside development standards was appropriate under these circumstances. Those standards are supposed to take into account or the whole physical and environmental constraints portion of the code is if you look at the purpose and intent is to find ways to mitigate sites which might otherwise be unbuildable due to the topography and and other issues and allow you know, some give and take to allow those sites to be buildable within the confines of the code. A L O U 18.3.10.090.8.11A is within that under that purpose umbrella is what your argument is. I'm trying to understand your argument is specifically with respect to the language of this criterion. I understand your overarching argument, but I'd like to focus on adequate buildable area and what that means. And I think I understand your argument is that the city should look at all of the things when they're determining what is adequate buildable area, whereas petitioners argument is under the slope steep slopes provisions, they should the city should only look at is there another area that avoids a 35% slopes. So there's a very >> I I think the interpretation here is you look at the topo maps that were submitted by both sides, which only are again that that lower quadrant of the property, not the entire property, which is extremely steep in the upper part. Yeah, there's some patches of 27 to 30%, but to get to those you'd have to excavate the driveway further into the parcel resulting in much greater site disturbance. So that's that's our argument on that. Um We think the findings of course are supported by adequate evidence. Second assignment of error, there's there's just a factual disagreement. The driveway was measured by our engineering staff at 197 ft. The petitioners, they claim it they claimed it was over 200 ft. That's just a factual controversy. Evidence on both sides was submitted. And using the substantial evidence rule, it was reasonable for the planning commission to to choose the 197 ft rather than the 200 ft. It's a difference in in you know, measurements provided by two opposing sides. And that's just a conflict in the evidence. It's not a a lack of application of the criteria on the part of the planning commission. What is the what is the finding on the average grade? I think it was 24% and I I say that by the way on page 32 of my brief, there was a typo that was pointed out by petitioners on page 17 where I said it was 15.23. That was meant to be 24%. But I mean that's the whole reason for the variance. I typed it >> only allows up to 18%. So why if the fact is that the grade is 24%, why does that not negate the ability for the city to allow a variance at all? Cuz the variance standard allows up to 18. So if the fact is that it's 24, how can the city do this? Well, because the commission found the driveway is 197 ft in length with an average slope of 24% and that no feasible alternative access exists, which is an important part of the code. Those those driveway, by the way, those the driveway standards are directly under the new lots and partitions portion of the code. So if you're going in with a new lot or partition with a flag flag lot, you know, you can't show those greater slopes on the driveway, but we're talking about a pre-existing >> allow for an exception for a pre-existing lot so that this variance to criterion does not apply? Um Where did the city apply that exception? Um Well, I don't know that it specifically has an exception for pre-existing, but it does the portion of the code that has a standard is no lot line adjustment. I believe it says no lot line adjustments or partitions shall be allowed unless the flag drive meets these standards. And you know, it was applied >> didn't find that this criterion does not apply. The city found that this criterion was satisfied, right? So those are two really different issues. If the criterion applies and it allows only up to an 18% grade for a variance, how can the city ever approve a 24% grade? I I think if it's a type one variance, that's true, but a type two variance I think can exceed that. Where in the city code Where in the code is that supported? 18.5.3.060 F allows for variance for driveway grades exceeding 15% provided the variance criterion 18.5.5 are met. And the length of the driveway does not exceed 200 ft. The staff report explains the proposed driveway configuration meets those criteria and the type two variance approval is therefore consistent with So 18.5.3.060 F is where I believe it is. Right, which provides no greater than 18%. So what you're arguing is that 18% cap doesn't apply because this lot preexisted the adoption of that code provision. I don't think that the city found that this provision doesn't apply. I think the city found that the variance is allowable. So, what's your argument that the city has authority to allow a greater than 18% grade even under this variance provision? Flag drive shall not exceed 15% grade. This is 18.5.30 of the F. A variances may be granted for flag drives for grades in excess of 15% but no greater than 18% provided the cumulative length that a bank commission finds the proposed driveway is via an existing shared access easement to utilize an existing long steep privately paved roadway. The proposed driveway extension to service subject property is 197 ft in total length and the terminus of the existing driveway has an average slope of 24%. And the commission found lot configuration, site topography, and existing driveway grade natural features constituted unique circumstances that prevented the lot the existing lot from meeting the standard. Um and that adjacent properties to the east exceed 15% grade average existing property grade before the driveway construction is 27% and there's no feasible area to mitigate the driveway grade configuration. Uh and the location to access easement so the commission found that no alternative driveway access was available. And that this is otherwise a landlocked parcel which would be undevelopable if a Okay, thank you. >> It sure looks like this the findings find that you need a variance but you can't get one but because it's there's no alternative means we're going to give you one anyway. Am I missing something there? Well, I think they found you know, it was an exception for a preexisting parcel that was approved prior to the adoption of the standards. How does that allow you to not have to meet the variance criteria I I I I can't tell you exactly. I'd have to circle back. Okay, okay. >> I I I think that the purpose of a variance for a preexisting landlocked lot that was created before the standards existed in the type two context allows a little more leniency if the if the other variance criteria are met. I mean, if the variance criteria are solidly met which they are in this case. Okay, thank you. And it's not a self-imposed situation. The partitions went through the variance criteria and felt this was self-imposed. If you look at the variance criteria self-imposed, it says for example, if the applicant had previously done a partition or lot line adjustment that created the situation. So, it specifies in the variance criteria code that an example of self-imposed would mean the applicant his or herself had imposed had led to the had done a lot line adjustment or partition which led to the And on the fire turnaround, petitioners are arguing there was no finding of feasibility that a turnout would satisfy the fire standards and you point to a an email from the uh fire marshal saying that all considered turnout design to Jackson County development standards. Petitioner argues that doesn't show that the fire marshal approves that or that it's feasible. It just shows that the fire marshal would consider proposal for a turnout. What's your argument that that is a feasibility finding or that is adequate to satisfy the feasibility issue? >> and the pool will be equipped for outflow to help suppress fire equipment. I mean, fire wildfire in the event that the that happens. Um The fire official, you know, said they'd consider that. I mean, it was adopted then as a condition of approval. There's adequate space for the Jackson County style turnaround which is you know, there's adequate space for the applicant to do that. >> Did the city find that there's adequate space for that or did the city just find we can wait for this until we are approving the site plan to have the fire marshal sign off on that? Um Petitioners are arguing there's no feasibility findings and that the underlying the city needs to make feasibility findings on this alternative fire Um I think that you know, the the fire marshal's submittal along with the engineer's report which I put down that there was feasible space that could be developed up there to do Jackson County style turnaround if necessary. Can you point to where in the record that that is or where the city relied on that? It seems like >> find that specific >> Okay, you don't have any Okay, so we are uh at your 15 minutes also. So, unless there's further questions from the board for intervener um just a couple sentences to wrap up your argument. Counselor Hearn. Um yeah, I mean, we believe that really if if you if the board focuses on pages 7 through 9 of the record 10 through 12 and looks at the planning commission's findings along with the record uh that there's substantial evidence to support the finding in light of the fact that this is a preexisting lot with no other access available in a very steep area of town that's you know, in the needed housing concerns for having a inventory of housing and and utilizing urban infill um to make lots developable when they're created historically. Thank you. Uh we'll return to petitioner. You'll have 4 and 1/2 minutes for your rebuttal, petitioner. Thank you. Just a few points here. One um there is nothing in the code that that carves out an exception um for preexisting lots. Uh You know, under the variance criteria um that would simply create a a rather um inconsistent application of the code to various development proposals given that there's plenty of lots in the city that are still vacant or subject to redevelopment um and there just isn't a there isn't a a isn't code language that would allow for um the board to um adopt the interpretation proposed by applicant which because it's just there's no there's no legal justification for that. Uh on the 200 ft length question, the city itself the city staff determined that the length of the driveway is {quote} well exceeds both the 200 ft limit and the 18% grade threshold based on the applicant's own materials and we cited that in our brief but it's at record 426 and at 415 um where I mean, the applicant the applicant admitted that the proposed driveway exceeds 200 ft in length which is why they sought the variance for that driveway length. There there wasn't just a variance for the the slope the steepness of the driveway. Um it was also exceeding the 200 ft and that's so, it's inconsistent now to say that well, we didn't uh we didn't have to abide by the the 200 ft crutch standard because it it doesn't it's not on 200 ft. Well, that's it is that's not what they say in in their application materials. It's not what's clearly indicated in the record and it doesn't make sense that they would have applied for a variance for that to that condition. So, what I'm hearing today is essentially the grade is 24%. That exceeds 18 the 18% cap. So, it can't be given. You've asked for a reversal based on this criteria. Is the evidence such that there is no way to design a driveway that would be under that 18% cap or it's just the driveway as proposed is not under that 18% cap? Uh we according to the applicant, there is no other way. >> the only way to get to this parcel. >> to get to that parcel. To the buildable area. Yep. And where is that in the record? Uh The The planning The planning commission found that that's why the planning commission approved this is because this is the only way to get to the buildable area. So, that should be in the planning commission decision. Yes, and I and I and I think I mean I think it's fair to say that that Mr. Hearn just basically conceded that in his argument that this is the only way to get there. Uh along this this I mean there's easements coming from from Granite Street and then um and then it's a straight shot up to the um the flag portion of the of the parcel. Um and so it's uh you know, I don't I don't I don't think the easements that are are in existence would allow for anything other at this point. Um that's not you know, I mean I suppose they could try and get easements from other access points elsewhere, but um at this Based on the record, uh I I think it's fair to say and I I My question is really about the proper disposition. If we agree that this variance criterion is not satisfied and you're asking for a reversal, I'm essentially asking what's your best argument that reversal is the best disposition here. And I think I hear you saying, \"Well, maybe there's a different way to get there, you know.\" Maybe, but um I don't I don't I I think based on the record, there's no evidence um that I'm aware of that that shows there was any ability or attempt um to do anything other than this tr- attempt to slam through this this variance um of the 18% um because I I think that I mean there's certainly no findings to that effect in the in the decision. And there may be findings that this is the only way to get there. I believe there are. Um I I I think I think that is I don't I don't think that's disputed. Okay. Yeah. Uh any further questions from the board on this? Okay. Uh that does complete your rebuttal time, but since I gave intervener a couple of sentences to wrap up, I'll also give you a couple of sentences to wrap up your argument. >> Oh, thank you. Thanks. Yeah, there's no other >> intervener. No, no, I'm not inviting the intervener. I'm allowing petitioner to complete their argument. Thank you. Uh I I I I think I think we've we've set forth you know, our arguments um pretty pretty straightforward in our our plea our briefs. I think the board seems to have a uh pretty good grasp of the arguments and at issue. Um we would ask the decision be reversed um given that there's absolutely no way to avoid um violating the the variance statutes uh variance ordinance. Um both as far as the 18% in particular, but also the the 200-ft length. Um and and for the other reasons um that we set forth in our our petition, um at the very least the decision should be uh remanded. Thank you. Thank you. Thank you. Thank you for your arguments both of the parties um and for answering our questions. That will conclude oral argument. The statutory due date for our decision in this appeal is April 8th. Uh we'll ask the parties to agree to an extension so that we issue our decision by April 29th. Is that okay with these parties? That's fine with the petitioner. Okay, and I see a nod from intervener. Thank you for that and uh have a good remainder of your day.", "summary": "Good morning, everyone. Just wait 1 minute till 11:30. Get started. Good morning. Right. Good morning again. This is the time set for oral argument in Luba number 2025-053, Eisenberg versus the City of Ashland. I'm Board Chair Smudio. Board Member Wilson is also present today. Board Member Basham is not present and will not be participating in the decision in this appeal. Uh, please mute your audio when you're not speaking. That will help with the recordin…", "source_url": "https://www.youtube.com/watch?v=0adkobBMQF4", "source_name": "Oregon LUBA", "doc_date": "2026-03-18", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-081", "content": "Oral Argument 2025-081\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=aNDwbwkVw3I). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nMhm. >> Mhm. >> Good morning. This is the time set for oral argument in Northwest American Indian Coalition versus Curry County Luba number 2025-081. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking, which will help with our uh recording. I'm not aware of any pending motions. Do the parties have anything to bring to Nothing for me. Negative. Negative head shaking. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Um yes, I'll plan to reserve around 3 minutes. Okay. Um I'll keep track on my end, but ask that you also keep track yourself and just note that the clock that is on the screen is not keeping exact time. And intervener, you also have a total of 15 minutes and again, I'll ask that you keep track of your own time. So with that petitioner, please state your name for the record and begin. Good morning board members. My name is Kelsey Dunn. I'm an attorney at Crag Law Center in Portland, Oregon. I'm here representing petitioners Northwest American Indian Coalition, Oregon Shores Conservation Coalition, and Dr. Diane Hennessy Powell. I plan to begin with petitioners interpretation arguments in the first two assignments of error and we'll cover the rest of our time at the end. Petitioners first two assignments of error address the county's approval of the RV park in the marine activity zone and shoreline overlay zone respectively. The county conditionally approved the RV park in the marine activity zone as a water dependent use and in the shoreline overlay zone as a water related use. The crux of petitioners argument is that the county's interpretations of both water dependent and water related are contrary to and prohibited by the text of the code and state law and that because these interpretations form the basis of the county's approval of the RV park, petitioners position is that reversal would be appropriate. As a threshold matter for both assignments of error, petitioners argue that the county's interpretation of these provisions are not entitled to deference under ORS 197.829D because they implement or appear to implement the water dependent shorelands protections of goal 17 and its implementing regulations. Regardless, the interpretations are contrary to the plain text of the ordinance itself and are not owed With respect to the first assignment of error, the county's interpretation of water dependent cannot be squared with the text of the ordinance or the state law it implements. Both the ordinance and the state planning goals define water dependent as quote a use or activity which can be carried out only on, in, or adjacent to water areas because the use requires access to the water body for water-borne transportation, recreation, energy production, or source of water, end quote. It can also include non-water dependent uses that are in conjunction with and subordinate to a water-dependent use subject to several additional restrictions. So, I just want to pause there. That definition that you just quoted, where does that come from? That comes from the statewide planning goals um definitions in we provided a link to the uh document that contains all of those, the 2019 guidelines. Um that definition also has been frequently cited by Luba in cases that deal with this question of what a water-dependent or water-related or non-water dependent use is. Um and then that definition also that identical that definition is also in the Curry County zoning ordinance at Okay, so can you walk me through your argument that the county is not entitled to deference for their interpretation of their local code definition, why this is So, for the interpretative um question of whether the county is owed deference, Luba has previously looked to whether the code implements or appears to implement the statewide planning goals. And so, I'd point to Oregon Shores Conservation Coalition versus um Curry County, that 51 OR Luba 500 case um that looked to that language and found that where it appeared to be implementing the goal 17 definition of water-dependent, um the county was not owed deference to that for its interpretation of that provision. Um I would also point to White Fe Lane which which um pointed out that even where the county didn't specifically intend to implement state the state wide planning goals or other state law um but it appears to implement it then uh then the county or the county or the local government was not owed deference and here um petitioners point to places in the comprehensive plan where it's clear that the marine activity zone is intended to implement these shore land protections and that was um uncontested in the response from intervening respondents. Additionally, we point to just the fact that these definitions have exactly identical language which is different from in the case of White Fe Lane where in some of these other um situations where there were slight differences in the definitions, we don't even see that here. Is there um statutory or rule based direction on for DLCD to adopt the guidelines and what their import is in our interpretation of the guidelines? I am not aware um of that. I wouldn't be able to respond to that right now. Um but I think I would step back and just say that really for this question of deference the issue of whether what the issue of whether um the planning goals or the state law here is directly binding on the county isn't what petitioners are arguing or really what the relevant analysis is. This is just whether the county is owed deference on its um interpretation. It's just kind of that threshold question. Thank you. Um So I would then point to the goal 17 at regulation regulations which do include a few specific definitions of terms within that definition that help narrow in on what exactly a water dependent use is. Um it states that requires is defined to mean that quote either by their intrinsic nature or at the current level of technology the use cannot exist without water access. Access means quote physical contact with or use of the water and quote. And recreation means water access for fishing, swimming, boating, etc. where quote use of the water is an integral part of the activity and quote. In essence a water dependent use must by its intrinsic nature require physical contact with or use of water to exist. And in Oregon Shores versus Curry County Luva confirmed that the state regulations define recreation and access in a manner that establishes water dependent uses must require access to fit access to physical contact with or use of the water areas. In the challenged decision the county interpreted water dependent in a way that essentially erases all of that restrictive language. Specifically the county found that the RV park is water dependent because it directly supports water related tourism activities and amenities that themselves require access to the river but nothing that about how the RV park use itself does. The county also basically overrode the definitional criteria by interpreting that the rebuttable presumption in the definition of water related applies to the analysis of water dependence and that functional dependence was sufficient to rebut that presumption even though that term appears nowhere in the code or state regulations. The county's interpretation of water dependent uses is incompatible with the text of the local ordinance and state law because it evades those most restrictive limiting criteria including the requirement that the use can only be carried out on, in, or adjacent to water. Instead, under the county's reading, any use that could gain some advantage from being near water, or that purports to target water-based tourism, could be designated as outright water dependent. This goes to a key flaw in the county's interpretation, which is that it looks beyond the requested RV park use itself to consider other existing uses on the site. And by doing so, the county conflated water dependent uses with non-dependent and water-related uses, both of which apply to uses that themselves do not directly depend on water areas. If the county's interpretation is correct, then the non-water dependent use category and the water-related category would be meaningless. All uses that could be tangentially connected to water recreation could be approved as water dependent. The second assignment of error follows the same logic. The county's interpretation of water related cannot be squared with the context of the ordinance or the state law it implements. Both the ordinance and the state planning goals define water related in a an identical way as uses which are not directly dependent upon access to a water body, but which provide goods or services that are directly associated with water dependently and or waterway use, and which if not located adjacent to water would result in a public loss of quality in the goods or services offered. The definition also identifies several categories of uses that are presumed non-water related unless rebutted by a showing of necessity. The county interpreted water related essentially the same way it interpreted water dependent, finding that any use which supports river-based recreation or is aimed at serving water recreation tourists cannot be equivalently accommodated on an upland site, and therefore must be designated maybe designated as water related. However, the county's interpretation is incompatible with the text of the code and state law implements. Among other inconsistencies petitioners raised in the petition for review, the interpretation ignores the first clause of the definition that water-related uses do not directly depend on water access, but also fails to reconcile that it found that the use was water-dependent for purposes of the marine activity zone. It also ignores the requirement to show necessity in order to rebut the presumption that RV parks aren't water-related, instead interpreting that support or enhancement of water-based recreation is enough to overcome the presumption. And finally, it ignores that the goods or services relevant to the definition are those directly associated with the requested use, here the lodging services provided by the RV park, not services provided by other uses or amenities on the property. Under the county's interpretation, any use that is at all related to water-based amenities or branded for water recreational tourism could be water-related. As with the county's water-dependent interpretation, the county's interpretation of water-related vastly expands the uses that could qualify beyond what is expressly contemplated in the text of the ordinance and state law. So, overall, for the reasons that petitioners have stated in briefing and in argument, the county's interpretations of water-dependent and water-related are prohibited by the plain text of the ordinance and by the state law it implements. And because these interpretations form the basis of approval of the RV park in their respective zones, um petitioners would argue that reversal is appropriate. And and I understand your argument to be this RV park doesn't qualify as a water-dependent or water-related use. Is there any version of a water-dependent facility such as a marina or boat launching ramp facility that could include a component of an RV park as a component. Um so as petitioners were about to describe in the reply brief, that sort of reasoning, which I think comes up in the response brief, um sounds a lot more like a non-dependent non-water dependent use that maybe could be approved in conjunction with or subordinate to a water dependent use like a marina or a boat launch if it addressed and complied with those additional criteria for non-water dependent uses. Um Does that answer your question, sir? Okay. You're good enough. Thank you. No further questions from the board? Okay, thank you. We'll turn to intervener for your argument. Please state your name. Hey, good morning. Garrett West on behalf of the intervener. First of all, loving the new background where you're all sitting, so that's a lot of fun. For this, you know, I wanted to start with the deference issue and like the the definition that's in the guidelines that DLCD published. Um you know, maybe I'm making a silly argument. I had never heard of these definitions in the guidelines or or the handbook that petitioner kindly put in the in their brief. Um And so I felt I was just a bit confused with with where the the train of logic was going. Um and then I I tried to dig, you know, into whether these had been promulgated by DLCD at all. Um and I had I wasn't able to find them. Uh and so that was kind of like the first, I guess, gloss on where I was going in my brief of if they're not promulgated by DLCD, I can't find this definition holistically in statute, you know, this looks like it was promulgated by the county. Um and you know, I I said in my brief, you know, it kind of looks Frankenstein's. They grabbed something over here talking about some examples of water dependent use and they put that in their own definition. Um so it it just seemed to me that, you know, the county made uh a legislative promulgation with this definition uh trying to fill kind of a gap in state law. Um and it makes sense that this would be entitled to deference. Um you know, as to petitioner's point that, you know, this zoning is trying to implement state law. Yeah, I mean, the the zoning is trying to implement the goals. Uh a lots of zoning around the state are trying to implement the goals. But when we get like certain narrowing downs like this definition and how the local government's trying to go about making their policy, that's kind of where the nuance of the argument is, I guess, that uh they were the ones saying, \"This is the definition we're going to use locally.\" Um and as to the the argument that um you know, the the county used the term, you know, functional dependence when they're engaging in this kind of interpretation of the code, I didn't really see a big gap between, you know, needs access and functional dependence. Um you know, throughout their findings they talk about need and the access and being close to the river, you know, repeatedly. Um and when I looked at functional dependence, I just interpreted it as, \"Okay, guys, in real life, like is this actually go Does this need to be near the water?\" Um and so that's that that was kind of the analysis that I interpreted the county was engaging in. Um when we're looking at the proposed use holistically, um not just are people going to be sleeping in, you know, these RVs nearby, but what's going to be going on here? Do they actually need to be near the water? Uh and that was the factual finding that the county made. They said, \"Yeah, you know, not all RV parks are are going to meet this definition, but this one does because of uh just the the components of it that are that are being put in.\" Um you know, I cited that Shamrock case in one of my footnotes, um and I forgot to put it in the table of contents. So, my apologies on that. But, that Shamrock case kind of interpreted a similar set of circumstances in which it said, you know, not every you know, not every bridge is going to be water dependent. But, some bridges are. And I think the kind of same logic flows here. Mr. West, how do you respond to the petitioner's argument that if you can use this this interpretation that that pretty much any use could be related could be rendered water related by claiming it's marketed towards water recreation tourism. Is there any limiting principle on that? Well, yeah. I mean, you still have to there still has to be an attenuation to water. I think there's lots of uses that just would never fit in here. But, yeah, it's I think it comes down to the analysis, right? Are we doing a factual analysis about how are people going to engage with the water? Right? If if people are No one's going to go to Gold Beach, honestly, to just hang out in RV away from away from the water. Gold Beach's draw is the water. That's what people want to do there. It's like the big thing they've got. And so, I don't think it destroys the goal. Maybe that's the kind of the line of inquiry like, will this destroy the goal? The goal in my mind is we want to set this area aside so that the water is made use of. It's just not an afterthought. And that includes the recreation, right? That's specific in the goal. We want people to recreate with the water. And that's that's what this does. So, I hope that kind of answers your question about, you know, limits and what kind of analysis that we're hoping to engage in. Yeah, okay. Thank you. Under the county's theory, why couldn't a motel or hotel be water dependent use? I think it would be coming to the close being close to the water. I think it's more than just being close to the water, right? When we have the the boat launch, we want to have facilities for fishing. Like it needs to engage with the water more than just being like it's over there and we're close by. Um, so you know, just having a hotel there, that's not going to cut it. The hotel needs to have additional amenities to have that kind of engagement. And if I understand correctly, the boat launch here is concrete slab that you can launch a kayak on? Uh, that's my understanding. I haven't been down to it myself to give a better description than that. And is there a fishing pier or people just fish along the shore? Yeah, so what we have an embankment. It's a pre-existing embankment. It's kind of like a wall that's on the shore. So where you just basically it just drops off into the water. And so you know, it's not pretty, right? This is a used to be an industrial site, but this is right like the water is right there. So I could Why couldn't the uh tenants of a motel room just walk down to the water and and fish from the bank or launch their kayak from the bank? How's it different from this proposal? I mean, I mean they they they could go down and launch it. I mean if the facilities were provided there, right? So if it's just a hotel with nothing else, yeah, you're not going to meet the standard. But if you're getting a boat launch, if you're going to have areas for fishing, engaging with the water, I think that overcomes the test and really gets to the goals reasoning of hey, we want people to engage with the water and have water recreation. So, yeah, a motel with just a giant wall next to the water, that's definitely not not going to cut it. Um on the water related front, I think there's you know, an argument from petitioners that oh, well they said it was water dependent over here and over here they said it was water Um, you know, thinking back in my brief, I should have done a diagram where I considered water-related to be a big circle, and inside that circle you have water-dependent. So, if you're water-dependent, you're automatically water-related in my mind, but not vice versa. Um, and I, you know, the county had already made the determination that this is a water-dependent use. And yeah, they went out of their way and they said, \"But, hey, let me tell you why it's water-related as as well.\" I didn't think they needed to do that, but they went ahead and did that. Uh, that's kind of how I was was interpreting their findings with that. Um, so, and then on the the trailer park issue, I I do want to, you know, just briefly touch on that. Um, there's not a categorical prohibition on having RVs in this area. The the the language in the code is much more nuanced than that. You know, and it talks about, you know, generally an RV park isn't going to satisfy the standard, uh, and things along that nature. And with the the county interpreting that as a rebuttable presumption, I think that makes sense. Um, you know, generally this isn't allowed, but if there's factual findings that show um, why it could be, then then that that meets the standard. Um, so, hopefully I've conveyed like the holistic uh, understanding of kind of what the the proposed use is uh, for the site. Uh, if you have any questions, I'd be happy to answer them, but otherwise Thank you for your argument. No questions for intervener from the board. We will return to petitioner uh, for Thank you. Um, so, to start first again with the deference question, um, we do think that in the petition for review we've articulated the correct analysis that something that appears to implement um, state law that does implement or appears to implement state law um isn't owed deference, but I would also just um flag again that we also make the argument that the county's um interpretation is just inconsistent with the text of that definition itself. I think that's why the analysis in the um petition for review just sort of get collapsed in that way because a lot of the same textual arguments apply under both um standards and we also do uh make that argument in the that that this uh interpretation is just impossible under the scoring standard, so I would point the board to that point um and then second on this issue of is this a categorical exclusion? What What are these definitions really trying to do? Do they set up um kind of this case-by-case analysis or is it about categorical exclusions? Um we would argue that both the water-dependent and water-related definitions do identify categories of uses that generally aren't going to meet those standards. The Goal 17 regulations at OAR um 3740 do actually say at 6C that there are uses such as hotels, motels that just aren't going to be um water-dependent. And then in the water-related definition, it also sets up this these categories of uses that generally aren't going to be presumed um water-related uses. So, we think it is kind of appropriate to look at it at the use level and at the sort of categorical level as petitioners have outlined outlined in their briefing. And finally on sort of what the scope of um review scope of analysis in terms of uses on the site would be we would ask LUBA to look really closely specifically at the RV park use itself. That is how the water-dependent and water-related um definite criteria set up this analysis. They are looking at the proposed use, not sort of all of the uses on the site taken together. Um and I would point to Oregon Shores versus Curry County again, where Luba was asked to review a decision um approving a large project that involved many uses across multiple phases and see if it met the ratio test. And to do that, uh Luba had to look at each use requested use on the site and see if and determine whether it was actually water dependent or non-water dependent, even though it was in one proposal. So, when we're looking at these designations, the appropriate um level of analysis is each use itself, not sort of this like general overall picture. If we were to sustain the first or second or first and second assignments of error, what does that mean for the remainder of your assignments of error? Do those need to be decided or would those um go away? Those would not need to be decided. Those are in there for if Luba um finds it more appropriate to remand this decision, um those are other inconsistencies, conclusory statements, issues of inadequate findings that would be um appropriately covered in the scope of a remand, but if the first two are sustained, I don't I don't know that they would have to be um decided, but we would ask we petitioners would request that if the board does go in the direction of remand, they would consider um consider those. Okay, and then in terms of the requested relief of remand versus reversal, what is your argument for reversal? The argument for reversal here is that um if under the correct interpretation of water dependent and water related um and the undisputed facts in the record, which again petitioners haven't really disputed, that evidentiary issue, um petitioners' argument or position is that the RV park couldn't be um approved, couldn't meet the approval criteria that is outlined in the the first sections of both the first and second assignments of error, and I would point to the McKay case it from 1992. Okay. Thank you. Any other questions? No. Okay. Uh that will conclude oral argument. The statutory due date for our decision in this appeal is May 5th. We'll ask the parties to agree to a 21-day extension so that we issue our opinion by May 26th. Is that okay with these parties? Yes. Yes. Thank you. Uh have a good remainder of your day. Thank you.", "summary": "Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Northwest American Indian Coalition versus Curry County Luba number 2025-081. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking, which will help with our uh recording. I'm not aware of any pending motions. Do the parties have anything to bring to Nothing for me. Negative. Negative head shaking. Thank you. Oral argu…", "source_url": "https://www.youtube.com/watch?v=aNDwbwkVw3I", "source_name": "Oregon LUBA", "doc_date": "2026-04-22", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-078 Pagel v. Marion County", "content": "Oral Argument 2025-078 Pagel v. Marion County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Y1aILNljGBE). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nWe do a microphone test. Anybody hear me? >> Hear you? You hear us? >> Good morning. And petitioner, are you intending to uh appear via video or And petitioner, you're muted. So if >> Petition, are you intending to appear by video or audio only today? >> I'm intending to appear by video and audio. I see I see you. >> We cannot see you. We do not have uh Oh, there you are. We now can see you. >> So, bear with me. >> That's okay. Good morning. And you are coming across a little quiet, so I'm not sure where your microphone is, but if you could speak up or maybe get closer to your microphone, that will help the quality of our recording. And just so the parties know, this um argument is recorded and live streamed on YouTube. So, it's uh being recorded. And petitioner, will you uh pronounce your name for me? Is it pagel like bagel or is it pronounced >> bagel? Bagel. >> That's it. >> You probably heard that a few times. I just wanted to make sure that we have it right for the record. So this is the time set for oral argument in luba number 2025-078 pagel versus Marian County. I am board chairsio. Board members Wilson and Basham are also present today. And if you can please mute your audio when you're not speaking that will help the quality of our recording. And I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring to our attention? >> Nothing. >> Okay. Thank you. Uh, so oral argument is a total of 30 minutes. Petition, you have 15 minutes and may reserve up to five minutes for rebuttal. Would you like to reserve any time? >> Five minutes, please. >> Okay. Uh, I will keep track of time on my end, but uh, suggest that you also keep track of time on your end. And just so you know, the clock that's on screen is not exact time. It's just there for the party's convenience. Um, so with that, petitioner, if you could state your name for the record and begin. Uh, go ahead. >> Thank you, members of the board. Council, my name is Victor Paggel. I am the petitioner. The applicant purchased four vacant acres of land from his neighbor and wishes to place two dwellings on those four vacant acres. The problem is that he cannot do so because MCC 17.110.80 which I will refer to as 80 says that the maximum number of dwellings an easement can serve is four. And in this case the easement that would serve those two dwellings already serves four existing dwellings. Instead of attempting to resolve his dilemma in the manner a similar dilemma was resolved in the same neighborhood many years ago, an option I will discuss further later. Uh the applicant has sought a variance of 800 so as to allow six dwellings total to be served by the subject easement claiming that the authority for such a and I'll refer to that rule as 0100. I contend that 0110 does not authorize a variance of the Ford dwellings per easement rule and respondent says otherwise. respondent argues that quote any of the standards end quote may be varied because the only limitations placed on variances are those that are prohibited and identified as such at the end of 010. I contend that the list following with reference to requirements governing colon is a list of what is allowed and that is limiting. It is limiting only in the sense that by its language it is exhaustive not suggested. And furthermore, if respondent is correct in this regard, it would effectively render that list meaningless. >> Um, Mr. Pagel, >> sir, >> I have a question. I want to make sure that I know exactly we all agree on what the hearings officer's interpretation did because it looked like there's a little confusion below. Like at one point they were talking about whether in that list of things that you say they they ignored there was number of dwelling units or structured permitted on a lot. I think maybe that was the applicant and staff's position. Um and then in your brief you also talk about at the end of that list the other standards when limits for an adjustment under 171630 are exceeded. Am am I correct? When I look at the hearings officer's decision, it looks like she's just relying on that any of the standards of this title um can be modified. Is that is that what >> Oh, good question. Uh I'm not I'm her determination uh was that the the policy and practice of the county is supported by um the uh uh O in making the determination and >> Okay. Thank you. >> All right. Thanks. >> All right. I'll try my best. Maybe maybe this will be helpful what I'm going to say next. Uh let me see what happens. um responded brings back that list into play by arguing that the phrase number of dwelling units falls within the list in 010 that allows a variance of 80. When determining that the policy and practice of the county is reasonable, the hearings officer did not identify an item on that list that supports her determination. However, in her additional findings of fact and conclusions of law, the hearings officer misqued 010 by inserting a comma after the words percentage of lot coverage when purporting to set out the entirety of 010. The import of inserting the comma would of course change the meaning and context of the phrase the entire phrase quote percentage of lot coverage and number of dwelling units or structures permitted on a lot end quote. It would appear that because of the conjunction using the word and both of those matters must be in play in order to be the subject of a variance. It seems that it is necessary obviously to reach a considered opinion of what was intended and I would first contend that what was intended in 010 is a complete and exhaustive list of what may be varied in this case. The alleged interpretation by the respondent is directed at a single term or statement number of dwelling units. However, that phrase has been taken completely out of context because it because it ignores the other part of the phrase as I have explained and in doing so respondent has misconstrued 01 in order to reach its desired interpretation. So whether the entire phrase that I've just quoted is the single item being interpreted or whether only the words number of dwelling units is the single term. An interpretation that says that 80 is a standard that may be buried under 010 does not plausibly account for the text and context of 010. And this analysis appears to be consistent with what the Oregon Supreme Court has held in the Seaporin case. In summary, respondent has made an interpretation that is not only not plausible, it has If the board deems otherwise or rules otherwise that the power does exist, I suggest that the applicant has not met his burden of satisfying all of the and I have focused on the word only. The criteria include, quote, there are unnecessary, unreasonable hardships or practical difficulties which can be relieved only by modifying only by modifying the literal requirements of this title. End quote. The applicant and respondent have acknowledged that a virtually identical problem existed at the west end of Burton Place many years ago. and was resolved by agreement of the property owners and county and without the necessity of a variance. However, the applicant has made no attempt whatsoever to engage neighbors in a county, excuse me, the neighbors and the county about the possibility of similarly resolving this dilemma. >> Mr. Pagel, >> yes, sir. I didn't exactly follow what they did earlier at the I guess the west end of Burton Road. Could you explain more in detail like exactly how they solved that problem? >> Yes, the uh the uh at before 2020 the uh the West End there were three pieces of property 6 and a half acres each at the west end of Burton Place. So that it was a situation where only three dwellings could be built. the property owners in the county got together to basically extend Burton Place, the right of way along there, so that those three pieces of property uh uh had uh bordered on Purden Place effectively such that uh uh easements with easements off of Burton Place, each of those pieces could develop up to three dwellings. So they could get at least nine dwellings instead of three out of them. That that was that was my uh and as I understand it, the the respondent and the applicant I agree that that event occurred. Uh but they simply say that it's just not plausible without attempting to do to try to do the same thing. They just said it's not plausible. So, how would how would you do it in this case? If you're going to do the similar thing, >> the the property owners there there are four of four of us including the applicant would get together and and decide that let's do this and how could we work this out with the county in such a way that that the uh the uh right of way would be such that uh more dwellings as in as at the other end the Burton Place could be built without the necessity of trying to do a variance in order to get those new dwellings. >> Like, but where where would the new I assume you're talking about like a new road, where would that go? >> Right where it is, the the east end of Burton Place right now at at my property, it starts as a a single single lane of traffic. And so that's the way it was on the west end, too. but that all the property owners got together and agreed to make that so that it's two-way traffic to get all the way to the to the far end so that they they could then take easements off of Burton Place at the west end to get the additional dwellings. And the same thing could be >> if the owners and the county agree could reach an agreement but nobody has attempted to do that. Okay. Thank you. >> Thank you. >> You're in your rebuttal now. You can continue or you can reserve your time for rebuttal. >> I'll reserve. Thank you. >> Thank you. And you'll have uh three and a half minutes for your rebuttal. >> Okay. Thanks. >> We'll turn to the uh county for your argument. Please state your name for the record. >> Good morning, board chairs and members of the board. My name is Andrew Mittenorf and I am council for respondent Marian County. This appeal presents two assignments of air, but the first authority under the county code and respondents interpretation is dispositive and independently supports uh affirming the decision. The county's position is that this appeal fails on the threshold issue of local code interpretation 010 as the petitioner referenced earlier which expressly grants the county decision makers authority to verify or modify the strict application of any of the standards of this title subject only to the stated prohibitations such as no variance for uses new uses not otherwise allowed or no variance to the criteria or definitions. The four dwelling per uh private drive limit stated in uh Marian is a standard governing access and the hearings officer and the board treated it as such consistent with the county's long-standing practice of processing the same kind of request as a variance and applying the uh or the uh applicable criteria. And as was referenced um at the hearing before the hearings officer and in the hearings officer's decision, there have been uh there were three cases where Marian County did something similar to this. Um that's not an exhaustive list but more it was used as an illustrative list of here are three similar situations where the county has done this and has interpreted um the variance code to allow such a variance to take place even if luba reaches the second assignment the varian >> Mr. Mittenorf before we get to the second assignment of air I'm going to ask you the same question I asked Mr. Hegel. Um, I'm trying to figure out exactly what the hearings officer's interpretation was. Uh, it seems to me there's three, well, at least three different ways you could try to get there to saying, uh, variances are allowed. The first one is just relying on any of the standards of this title can be modified. Um, another way could be to say, well, we're modifying the number of dwelling units or structures permitted on the lot. or the very end of it, you can say this is one of the other standards when limits for an adjustment are exceeded. It it seems to me that the hearings officer did number one. It seems to me that staff and the applicant were at least arguing number two and as far as I can tell, nobody is relying on number three. What is what is your position on that? >> Thank you, board member Wilson. I I I think your um conclusion is is correct. I I think the hearings officer was uh relying primarily on that the uh any standard uh part of the code allows for that variance to take place. I think that the applicant and the staff um the staff opinion was arguing in the alternative that it could be also um that I it could be under the number of dwelling units. Um but I think that it's primarily resting on the fact that it states that any of the standards um may be varied uh unless it is one of the explicitly denoted uh exceptions that it can't be varied. >> Okay. So thank you for confirming that. So if if that's the case then it seems like that interpretation basically says that whole next whole part about um you know would result in practical difficulties with with reference to requirements governing and then lists a whole bunch of things. So it's your position that none of that language has any meaning. Is that right? I wouldn't necessarily say that it has no meaning, but I think if you apply the difference in Saporin um you know it doesn't that standard says that even if there's a better or more sensible or persuasive interpretation that even if it's a plausible interpretation from the county um that that difference is given there and so I think given the fact that it does say any of the standards it is plausible that the number of dwellings that can be serviced by a private drive can be varied and that's demonstrated in at least the three other cases that were presented um for illustrative purposes. >> So, are you saying that we're bound by those three other cases? >> I'm not saying that that Luba is bound by those three other cases. I'm saying that it goes towards the county's past practice and interpretation of its own code. Um, which goes to bolster the idea that that is the county's interpretation. It's plausible. Um, and therefore the difference should be given to that. >> Did any of those cases actually address this question about whether you can even get an variance or did it just go straight to applying the variance criteria? Um, I'm not sure I understand the question. >> Well, did those the three the three cases you put in the record look to me like they didn't address this question about whether you're allowed to get a variance in the first place? They just went straight to assuming you're allowed to have a variance. Do you meet the variance criteria? Did I miss something in those? >> Um, I am not entirely sure on that question to be honest. I I wasn't a part of those other cases. My understanding though is that it was the underlying idea of whether or not you can get the variance is based upon whether or not the variance can be granted. Um because the the code says that that is something that could be varied. >> Okay. Thank you. >> Mhm. Uh even if Luba reaches the second assignment of air, the variance approval is supported by substantial evidence. The record shows the subject property left. >> Sorry to get back to Simon one. I have a question on that also. So is your foreign argument that in looking at the express language of any of the standards of this title, it's then plausible to essentially ignore qualifying language that follows. I think that there could be an argument that Mr. Pegel is making that um it goes to your question that the qualifying language that follows um could suggest a different interpretation. But under Saporin, it doesn't matter if one interpretation is better or more sensible or persuasive as long as the interpretation that the county is applying is plausible. um then difference should be given and that satisfies that first threshold level of plausibility. >> Okay. So assuming that starting place, the county doesn't need to look into whether the variance that's requested is inconsistent with that qualifying language. They can just stop at any standards and not have to consider the remaining qualifying language. Um, I think that that would be true that they would have to continue we'd have to continue if there hadn't been a past practice of approving these types of variances. But because it they had been previously granted, uh, it's a plausible interpretation. And therefore based on that past practice that goes towards um not needing to continue that analysis. So even if the uh second assignment of air the variance approval supported by substantial evidence, the record shows that the subject property lacks direct access to a public roadway and that the requested variance is the mechanism that allows the property to realize the otherwise permitted AR zone residential development pattern without extending a public street through nonparty lands. So I think this goes to the question that board member Wilson was asking petitioner um is that in order to bring the road from the other side of Burton Place, it would have to require nonparty um land owners to dedicate land to that road. Um which is not reasonable. um and is um this the variance is the least impacting way to allow for the partition of this 8 acre parcel into a 4 acre and 2 acre parcels um to still fit within the AR zone um development pattern as many of the other parcels in this area have been partitioned to allow further development and realization. of the land in this area. Um incl the um extending the road would have a practical difficulty and hardship um and it would impact people who aren't a And >> that seems to me like it's a kind of a mixed question of interpretation. In fact, understand petitioner to argue that the variance criterion, the language which can be relieved only by modifying the literal requirements, he's focused on that word only. What I understand you to be arguing is in the interpretation and the application that that only doesn't require the county to attempt to implement alternatives that have potentially some legal barriers Yeah, I I believe that that to be correct that the um yeah, I I think that that is an accurate summation of that. >> Thank you. Um and with in conclusion I guess the differential standard um under Saporin is that the interpretation of the code um authorizing a variance is plausible text grounded and supported by long-standing county practice uh as is uh reflected in the record. The hearings officer's variance criteria findings are supported by substantial evidence and were properly adopted by the board. Here petitioner does not like respondents interpretation and therefore makes an argument of the expression unius est exclusion alterius or the expression of one thing implies the exclusion of others. However, this type of construction and interpretation um is what OS 197 829 and Saporin is getting at that it doesn't matter whether there's a more plausible or a more um favorable or even a more persuasive interpretation. As long as the interpretation of the county's own code is plausible, then that's where the difference is given to that um interpretation. and therefore the respondent respectfully requests the LUPA affirm. And I will uh stand for any questions the board may have. >> Thank you for your argument. No further questions from the board. Uh we will return to petitioner for rebuttal. Petitioner, you have three and a half minutes for your rebuttal. Go ahead when you're ready. >> Thank you. With regard to the uh the county having uh uh allowed for variances under like circumstances in previous cases, the record does show that in none of those cases has the issue of the authority to do so been raised. And um finally, with regard to the um uh requiring other neighbors to do anything, uh there would be there are no requirements. The folks at the West End agreed to what happened and no attempt has been made to even talk about the possibility of all of us getting together to agree to what might even be beneficial to everyone concerned. And I guess I'll rest my case on that. Thank you. >> Thank you. No further questions from the board. Thank you for your argument today. That will conclude oral argument. The statutory due date for our decision in this appeal is March 4th. We'll ask the parties to agree to a two-eek extension so that we issue our opinion no later than March 18th. Is that okay with these parties? >> Yes, >> that's fine for responding. >> Thank you both. Have a great rest of your day. >> Thank you. You as well.", "summary": "We do a microphone test. Anybody hear me? >> Hear you? You hear us? >> Good morning. And petitioner, are you intending to uh appear via video or And petitioner, you're muted. So if >> Petition, are you intending to appear by video or audio only today? >> I'm intending to appear by video and audio. I see I see you. >> We cannot see you. We do not have uh Oh, there you are. We now can see you. >> So, bear with me. >> That's okay. Good morning. And you are co…", "source_url": "https://www.youtube.com/watch?v=Y1aILNljGBE", "source_name": "Oregon LUBA", "doc_date": "2026-02-19", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "OA 2025-056 City of Irrigon v. Morrow County", "content": "OA 2025-056 City of Irrigon v. Morrow County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Up6vZlMi01E). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. If council could come on >> Hi, good morning. Can you hear me? >> Yes, we can hear you loud and clear. Thank you. >> Thanks. >> Council Sully, I'm not sure if you have >> Yeah, this is council crane and I am not able to get my video up. I apologize. >> Uh, that's all right. We could wait a moment if you'd like to try again or >> Yes, >> go ahead. >> I'm at the limit of my IT abilities. I will keep working on it here. And uh council Sully, we also do not have you on video. Do you have video availability or do you want to just proceed with audio? Um excuse me. I should have video availability. For some reason I do not. Um so u for the time being I u would ask to uh just proceed with audio. >> Okay. And then uh point of order before we officially start. I want to check my pronunciation on the city. Is it the city of Iran as in Oregon or is it IGN? >> It's irrun. >> Urggon. All right. >> As in [laughter] Oregon. Yes. >> UN Oregon. That's what we were told. So I just wanted to confirm before we go on the record with that. Okay. And council for the city of Boardman. Uh we still are not There you go. We are seeing you. So we will >> Thank you. Good morning. This is the time set for oral argument in luba number 2025-056 the city of Iran versus Mororrow County. Uh I'm board chairs. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with the quality of our recording. And I'm not aware of any pending motions in this in these appeals. Is there anything or this appeal? Is there anything that parties need to bring to our attention? No. Okay. Oral argument is a total of 30 minutes. Petitioner and interviewing petitioner, you have 15 minutes to share. Have you agreed how you will >> We we have um irran will um use the first 10 minutes and um boardman the last five minutes. We do not anticipate reserving anything for rebuttal. >> Okay, that sounds good. That was my next question. Thank you for clarifying. And I'll watch the clock here, but ask that you also keep track of your own time and then the county will have their 15 minutes for response. So with that, whomever's starting on the petitioner side, please say your name for the Council Sully, is that you? Go ahead. >> That is good. Good morning. This is Paige Sully, city attorney for the city of Oregon. uh the petitioner in this matter [clears throat] and uh the the issues that I would like to address with you briefly this morning have to do with that lack of evidence in the record to support the the findings that the approval criteria were established in in this matter primarily with regard to the findings on the part of Mororrow County that this activity qualified as a home occupation. and that uh the finding that there the findings that there would not be uh any reasonable interference or detrimental impact on the adjacent residential properties. First and foremost, uh Mororrow Countyy's ordinance 1.030 030 provides that home occupations must be conducted primarily within the home, not simply collaterally within the home or uh on a limited basis, but the home occupation must be conducted primarily within the home. There is just a der of evidence in this record as to any activities taking place within the home whatsoever. Um the uh finding referenced at page 63 of the record refers to uh explicitly states applicant proposes quote parking trucks unquote. Um and the that finding goes on to further identify that that is in fact what is identified as the home occupation parking trucks. uh in in that particular finding there is no evidence whatsoever of any activity taking place in any in any structure whatsoever. The map that was presented with the application does not indicate any activities taking place in any structure on the property. The application materials do not address any activity other than the parking uh of the trucks on the on the property. again, what has been identified as the home occupation. And there's no testimony uh in in the record about any activity taking place um in the home or a homebased uh structure that of any nature. Much much less that would give rise to the uh implication the reasonable inference or even that this was the prim primary business activity. uh it's been suggested that it it is reasonable to infer that in fact uh there is uh business activity taking place within the the the structure having to do with scheduling uh booking billing that sort of thing. However, that's not a reasonable inference in this day and age where folks can conduct those activities from he could be conducting that using his phone from a you know a truck stop that they could be hiring a third party to be providing those services from him. I in some there that activity could be taking place completely offsite and there is no evidence whatsoever that it is taking place anywhere on the property much less w within the the the home uh that would would uh result in this actually qualifying as a home occupation under uh Mororrow County zone or ordinance. It's been suggested that um uh that this is a a just a a a review of the facts and that um uh the moral county is entitled to difference on the their decision that this is a u that this is a home occupation. However, uh you can't draw any inferences where there's no facts on which to to draw them from. uh if there's no facts, it's not an inference. It's simply uh in this case an aspiration uh or or speculation. [clears throat] So there that that approval criteria necessarily fails as a result. Moving on, uh Mororrow County zone ordinance 6.05G 05G uh sub sub 10 provides that uh there the that the the homebased occupation must must not unnecessarily unreasonably interfere with adjacent residential properties. Uh and then the argument's been made that the conditions of approval uh are designed and adequately uh uh address that and appropriately uh mitigate any uh interference such that it is no longer unreasonable. Well, I unfortunately the approval criteria itself must demonstrate that all d all discretionary criteria is feasible prior to establishing any conditions of approval. There's no showing that the solutions that have been suggested in the conditions of approval uh are likely reasonably or certain to succeed in terms of limiting the the quite uh quite a large amount of evidence about the impacts on the adjacent properties as a result of this activity. such that uh the the approval criteria has been met as opposed to um attempting to circumvent it by application of conditions of approval. They they've got to meet their uh their criteria first. Uh and in this case, they they have not not met that one. And it's arguable that the conditions of approval that are being used to um substitute for compliance with the approval criteria are even likely or reasonable to succeed in mitigating that impact. More importantly, subsection 4 of 6.050 provides that no mechanical equipment shall be used resulting in detrimental impacts. There's no way that that that that can be said based on the evidence that's been presented here. Um there's been no evidence presented nor would likely any be taken that trucks are anything other than mechanical equipment. Um and there's been no evidence presented that they the operation of the trucks will result in anything other than detrimental impacts. Um the the fact that there is these limiting conditions of approval uh demonstrate the the detrimental impacts that necessarily result from the operation of the parking of the these trucks uh on the on this property. As such, it cannot be said that no mechanical equipment will be used resulting in that that in detrimental impacts to adjacent residences. Uh quite quite frankly, the the the application in and of itself simply does not meet the criteria approval criteria for approval of this cup. This is not a homebased occupation. Uh it does the the the evidence that's been presented does not demonstrate that the impacts are uh uh reasonable. Uh that they can are likely to be addressed sufficiently with conditions of approval and um that the detrimental impacts are not the result of the use of this mechanical equipment. As such, there's no difference owed to the inferences that that may be drawn from the lack of evidence that that is in the record and where there are no facts to support in in terms of of meeting the the applicant's burden. then uh they are not entitled to to any difference with regard to being uh to the reasonable per person's standard. A as such this decision necessarily fails for for lack of evidence to support the the legal requirements. With that, I have nothing further unless >> No questions from Yep. No questions from the board. Thank you. >> Hearing none, I'll close. Thank you. >> Thank you. We'll turn to the city of Boardman. >> Uh thank you Chris Crane for the city petitioner city of Boardman. I'm only going to address our uh first assignment of error which is that the decision directly conflicts with the plain language of the code and the county is not entitled to difference under 197.829 sub1. The code section at issue is uh county zoning ordinance 3.051E2 051E2 that prohibits trucking businesses in the SR2A zone. And it says, quote, \"In suburban residential 2A2 acre zone, commercial trucks and trucking businesses are not an allowed use. A landowner may be allowed to use a truck or tractor unit as personal transportation to the resident parcel. No more than one truck or tractor unit is allowed per parcel.\" End quote. The county's position is that this only applies to a standalone commercial truck trucking business, but not one that's part of a home occupation, but this interpretation of the code provision. Um, it is not supported by either the text or the context of the provision itself. Um, the county argues that they're entitled to deference for one of two reasons. Either because the code provision is ambiguous or because to it resolves a conf conflict between code sections. Neither one stands up to scrutiny. Um, first the decision, nothing in the decision describes what is ambiguous about this code section because it's not. It's plain on its face. Commercial trucks and trucking businesses are not an allowed use. Full stop. Um, second, and significantly, there are no findings in the decision for this code provision. None. So, there's not even an interpretation put forth by the county. The only interpretation of this is in the findings for a different section later on in this the decision in the record of page 10 zoning ordinance section 6.050 G1 but there are there the county does not point out what's ambiguous about this text and there are no findings in the decision specific to this code provision with respect to the language in the findings in 6.050 050 point G1 and again this is page 10 of the record. Um the county inserts the words or the phrase standalone in this code section to find that well a standalone um trucking business may be prohibited in the SR2A zone. A home occupation trucking business is not. Um obviously you can't add words to a section without violating 174.0100. It also is either redundant, unnecessary or conflicts because 6.050 G1 is a requirement for home occupations that they be subordinate or sorry secondary to the residential use. A standalone to it reads standalone into 3.050e2 would duplicate that. Um, right. Obviously, if it's a home occupation, it has to be secondary to the residential use. And if you're going to add standalone for trucking businesses as a home occupation in an SR2A zone, what about home occupations that might be a yoga studio or a real estate business? Why doesn't the code say those can't be standalone businesses? It either duplicates the secondary requirement in 6.050 G1 or swallows it or it in any event is redundant and completely unnecessary and reads language into the text that isn't there in violation of 174.0. Um, with respect to the context, the home occupation is a conditional use in the SR2A zone. So, it's subject to the conditional use standards in 6.030 and 6.050. And the purpose statement in 6.030 says the standards and conditions for conditional uses for uh are intended to limit the detrimental impact of those uses on the surrounding area and otherwise protect the surrounding area from the adverse impacts. the county's interpretation is inconsistent with this by allowing a use with obvious adverse impacts. There's plenty of testimony in the record about it. Um on the theory that oh it's okay as a uh because it's a home occupation. Um but there's it obviously for the if you read the prohibition in 3.051E2 051E2 to prohibit trucking uses in the AR2A zone. It's then consistent with the purpose of the standards and conditions allowed under 6.030 and 050 to limit detrimental impacts from business uses in a residential zone. Also, this notion that there's somehow a conflict between 1.030 and 6.050 that supports the county's interpretation of 3.051 is just a straw man. There is no conflict. The county's problem is the absolute prohibition in 3.051E2 051E2 on trucking businesses. Um, not that there's somehow a conflict and in fact the prohibition on trucking businesses in an SR2A zone is perfectly consistent with the purpose of the standards criteria for conditional uses. Finally, the county knows this isn't an allowed use in the zone. The first page of the decision at fa page five of the record says quote the approval of this cup will serve to temporarily rectify outstanding code violations while incentivizing its relocation to a suitable zone site within one year. If it's a code violation, how can it be an allowed use in the zone? If it's an allowed use in the zone, how is it a code violation? It's plainly not allowed in the zone. It allows that at the bottom of the first page of decision, page five in the record, it notes that the 3.051E2 allows a landowner to use a truck or tractor as personal transportation, but no more than one truck is allowed. And it says, \"Well, but the applicant's proposing four trucks.\" The county knows this is a code violation. They're trying to buy time to give the applicant a year to find another site, but we frankly have no confidence that in a year from now the county won't just kick the can down the road again. It's it's a code violation. >> And we're we're at 15 minutes now. So, [clears throat] >> quick question. >> That reason that the decision should be reversed, frankly. >> Well, well, just because something's a code violation now doesn't mean it can't be cured. Like say for instance there wasn't the prohibition against trucking businesses, they still wouldn't they'd still [clears throat] be doing some sort of commercial business wasn't allowed, but they could come in and get a a home occupation. So curing a code violation doesn't in and of itself mean that what you're coming in for can't be approved, right? >> So in in this case, the code does prohibit the specific use. uh if without that prohibition and if they could resolve Iran's substantial evidence issues, presumably a trucking business could be subordinate to a residential use of a property as a home occupation. But in this case, you're we're in the we're facing a a direct prohibition prohibition in the code against this particular kind of home occupation. Um so but in in general, yes, a code violation just sometimes means you have to come in and get a permit, >> right? which is what I think they're arguing they're doing here. Um, so lots of home occupations that you could get like I don't know I'm not sure exactly for the city or this county but like you know a plumbing business or an electrical business um those wouldn't be allowed without getting the permit. Right. So is your point that you know maybe those would be okay but those aren't specifically prohibited in the zone and that since we've got this specific prohibition that just sort of cancels out even the opportunity of trying to get this >> correct and I think we I can't remember how we phrased it exactly in our brief but we said it's essentially a subspecies of a home occupation. All other home occupations are fine but the code calls out this one and says yeah those all are fine except this one. You can't do this one not a trucking business. There are also some some restrictions on livestock activities or agricultural activities in the SR. So that's E1 3.050.E1 is the restriction on agricultural activities and then E2 is the restriction or prohibition on trucking businesses. And the all other home occupations are fine in the SR2A zone, but this one is not by code. But yes, if somebody were operating a plumbing business in the SR2A zone, all they would have to do is come in and get a home occupation permit. >> Okay. Okay. And then real quickly on your second assignment of air, I know you don't want to talk about that one, but I'm having trouble seeing how that is independent basis for reversal remand. It seems like that's going to either fly or die with your first assignment of air. >> Uh well, correct. If you rule in our favor on the first assignment of air, the second assignment of error is moved, right? Um and then we would be talking we'll go back and talk to the county about how they the enforcement process. But significantly under the enforcement process, there's like a 10-day turnaround time for the applicant for the property owner to either bring the property into compliance uh or stop the activity. Whereas in this case, it's a year for the permit and then again, we have not much confidence that the county won't just kick the can down the road again in a year. So the the remedies are very different in the co in the code enforcement process versus the land use process. >> Okay. Thank you. >> Any further questions from the board? No. All right. Thank you. Uh we will turn to the county for their argument. And since we went over on time for the primary argument, uh county, you'll have 18 minutes if you want to use it for your argument. >> Okay. Thank you very much. Uh for the record, Daniel Karens. I'm here on behalf of the respondent uh Mororrow County. And um let me begin with a few brief responses to arguments. And it kind of goes to partly uh boardman's as well. And what they're looking for is kind of a more elaborate description of the business operation. What's what appears to be missing in their view from the record is a description of what business aspects uh happen in the house or in the structures on the property. And this is an extremely small business. This is a family. They have uh they've had up till recently one truck. and now they have two trucks and they uh haul egg commodities for 2 months in the fall. Otherwise, they're working other jobs in the egg business. So, there is some bookkeeping associated with it. And so, what's implicitly what's missing implicitly is the the bookkeeping aspect of it. The trucks are parked outside. Um the that's just the way it is. If you ran a plumbing business, guess where the plumbing truck is going to be parked? um what happens in the structure in that case is the bookkeeping part of it. Um so there is for sure bookkeeping as some aspect to this business. Um it only happens for two months out of the year though and of course it doesn't happen outside. Maybe it happens on their phone. Um but >> what is the evidence that supports these statements of fact that you're making about what the these applicants do and the other time that bookkeeping occurs? Is that supported by evidence in the record? >> Because the the business is so diminishingly small. They're no one talked about. >> How do we know that? How do we know any of these things from the record that's before us? >> Well, the application talks about how they used the truck and when they use a truck and how often they use it. And uh a second truck showed up because the um Mr. Campbell's brother-in-law died and so the truck is there. >> Okay. So the evidence you're referring to to support the inferences that you're stating to the board today are from the statements that are in the application solely or is that evidence? Okay. >> Yes. It is it is such a diminishingly small business that there's no you know we don't have any information about you know what bookkeeping is involved. I assume there is some there can't be much. uh and it isn't very often um but it happens in the house much like uh the plumbing business the bookkeeping [clears throat] would happen in the house a plumbing business would happen year round um you know 247 the way plumbers are available this is much much smaller um so at at the heart of it though this is I think the interpretational question is the most um was the most difficult certainly for the board of commissioners to deal with. Um and this this situation it represents a a surprisingly common scenario in Mororrow County and I think also Union and Umatillaa counties where there's a large number of Hispanic families that work multiple jobs often associated with the egg industry that is common in Mororrow County. And sometimes these families operate a truck or two during the harvest season from their homes transporting egg commodities just during those one or two months. Um I've been with the county for three or four years now and we've um in my time here we've run into about 15 of these operations. So in Mororrow County it's a thing um it's a thing that's not really reflected in the code. That's why we have this appeal here and the interpretational conflict that we have to deal with. But it is definitely a thing that the county has struggled with to to find a way to get these permitted and rectified with when you have conflicts with the neighbors. This one has had the most extreme conflict uh at least in terms of testimony at the uh during the two hearings that we had. And so the county uh added the additional condition that uh no opportunity to renew it. It's a 12-month maximum limit. Um and ultimately, as we discussed this with the board and with these other operators, that is the county is going to try and find a commercial property owner or an industrial site where they can just park their trucks during the off season, which is most of the year, and that would resolve these. They arise because these people live in rural residential areas and they operate a truck or two trucks uh during the egg season. Um these aren't standard trucking operations. They're they don't have year round impacts through the 24-hour day, 7 days a week with many >> How do we know from this record or from the code what a trucking business is? What is a trucking business? How do we know what the code means by that terminology? >> The [clears throat] trucking a trucking business, the one that's prohibited is could be huge. Could be much huge huger than this certainly. Um I'm anticipating that, you know, just trucking businesses that I've encountered have these kinds of impacts or more. It's I don't >> So we're looking at an interpretation of this code and whether what the county did here is consistent with the terminology in the code that says commercial trucks and trucking businesses are not an allowed use. Did the county expressly say what a trucking business is? How do we know what a trucking business is? Do we just use the plain meaning of trucking business? >> I think the plain meaning. Um, and if it doesn't, >> what would you what would you describe the plane meaning for our purposes? >> It it it's potentially expansive. It could be very small, but it it to be a vibrant truck business, it has to be more than just one or two trucks. It has to be year round potentially, 24 hours a day coming and going. It involves truck repairs. And so, one of the conditions that we've applied to these >> is any of that definitionally within the code? Are you arguing to us today that >> those are the impacts that we try to avoid by conditioning these operations? So, we anticipate, you know, we're aware of the prohibition and we're aware of how open-ended that uh that rubric commercial truck operation can be. And that is what the the county is attempting to rope in to limit so it doesn't uh have that open-ended expansive nature to it. So it could be huge. It's not clear. >> So or it could be very small it seems to me just from the plain language here. So >> I'm looking at the context of where this 2e sits in the uh SR2A zone. So there's section D that has conditional uses permitted which includes se subsection 3 home occupations. Then subsection D is limitations on use which as uh accounting for the city of Boardman mentioned has a lot of limitations on how many livestock one could have. Doesn't seem to be that section does not seem to be tied to agricultural home occupations. Uh section two specifically calls out trucking businesses as not an allowed use. There's no other commercial use set out as limitations on use in this section. >> Right? The the big difference between the what's prohibited and what was permitted here is the home. It's operated out of their home and your average trucking operation doesn't have a home associated with it. Wouldn't qualify. And the conditions attached to this are designed to make it consistent with a rural residential type setting. A commercial trucking operation would be untethered to any of that. So it's the homeness that is the difference between what's prohibited and what was permitted here. The connection with the home that it's secondary to the home. So, how does that argument fit into the fact that 2A allows someone, a landowner, to use the truck as personal transportation to residential parcel with no more than one truck or tractor per parcel. That a seems to think about trucks and houses being together. >> I agree. and not so much. Um the the truck in that kind of context is a truck that's just sitting there, just parked there and it's not coming and going on a constant basis. It's not an active trucking operation when it's parked there. And that's basically what this is. Um, and so kind of the one way that we get at the impacts and what's permissible and and what needs to be limited through conditions of approval is that permission for people can have a a truck there. They can park a truck at their property, which also reflects that this isn't a kind of Beaverton situation. This is a rural residential situation in the context of an egg economy where you have a lot of people that work out in the field and they have heavy equipment and they come and go from their homes. Presumably the board of county commissioners that adopted this prohibition in section E2 were aware of the social circumstances and economic circumstances in the county and yet made a decision to prohibit commercial trucks and trucking businesses. And >> not when this code provision, not when the prohibition came up. This this has arisen in the p I'm told in the past 10 years. I've been with the county for maybe five years, not even. and it has become kind of a bigger deal. Um, I don't know why, but when this when this prohibition was imposed, it wasn't anticipated. >> Is any of that in the record or do we have anything from the board of commissioners that would indicate that? Any reasoning there? >> No, I'm just >> seems to me that there really is a code problem here. And if there's a code problem, it would be incumbent on the county to amend their code rather. >> For sure. And I and I'm kind of sharing with you that conversation that the the county board of commissioners and the planning department have had that this is not a an isolated oneoff and we have to amend the code to address this. And the big problem is this prohibition. Um but that in itself won't you know make people like Ian happy. So we'll still have to address this in some way. And ultim ultimately it's to okay if this is really a thing people have to park these we have to find a commercial or industrial zone where they can be parked throughout the year and that eliminates the problem entirely. Ultimately that's the best solution but for this particular case the county had these two conflicting provisions. one that prohibited these kind of commercial operations that were open-ended, undefined, and another one that allowed home occupations that are defined and limited to something as compatible with a rural residential setting. And the county articulated that conflict and you know there is a certain amount of wrestling back and forth in the findings and record page 65 and I quote that in my response to Boardman's first assignment of error. Um but it's not if there if Boardman is looking for a disambiguation of the prohibition, it's going to be not satisfied because it's it's we're stuck with the prohibition. But we also have a home occupation allowed and that would anticipate conditions that would make something that's otherwise not allowed compatible with the setting. And in this case, I mean that's when they ask, you know, how is how does the the county resolve this? You know, if it's it's with this code enforcement matter with the with the code enforcement matter, there were no conditions, no limitations, and the neighbors were unhappy. I mean, all of these that I mentioned that I've encountered have come to the county through code enforcement because residential neighbors were unhappy. So, the county applied conditions through a home occupation permit process which is allowed in the code and it brought this otherwise unallowed use into a a consistent category under the code. This one in particular has a 12-month deadline to it. Um, and so that's an allowed use category, home occupations. These are extremely small businesses. And this is a an avenue that's allowed under the code. and the Luba and the Court of Appeals defer to local governments when they are wrestling with these code conflicts and plausibly provide an interpretation that is consistent with at least some of the applicable language. You're not going to find everyone happy here in this case. This is one of those cases and only and Boardman had the resources to take this up. But rest assured that the county is on this problem and is going to enforce this express condition that it goes away after 12 months. It didn't have that condition before. It didn't have these limitations before, but it does now. And So, unless you have further questions, >> No questions. Board member Wilson, I saw a question in your in your face, but maybe you did not want you wanted to ask until [laughter] Yes. All right. Um, okay. That will conclude or argument. Thank you to all of the parties for your argument today. The statutory due date for our decision is January 27th. Uh, we'll ask that the parties agree that we can issue our decision uh no later than February 10th. Is that okay with these parties? Got a thumbs up? >> Absolutely. Thank you. >> No objection. No objection. >> City of irrig", "summary": "Good morning. If council could come on >> Hi, good morning. Can you hear me? >> Yes, we can hear you loud and clear. Thank you. >> Thanks. >> Council Sully, I'm not sure if you have >> Yeah, this is council crane and I am not able to get my video up. I apologize. >> Uh, that's all right. We could wait a moment if you'd like to try again or >> Yes, >> go ahead. >> I'm at the limit of my IT abilities. I will keep working on it here. And uh council Sully, we…", "source_url": "https://www.youtube.com/watch?v=Up6vZlMi01E", "source_name": "Oregon LUBA", "doc_date": "2026-01-07", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "OA 2025-070 Central Oregon Landwatch v. Deschutes County", "content": "OA 2025-070 Central Oregon Landwatch v. Deschutes County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=lc0n7pw-GtU). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood morning. This is the time set for oral argument in LUPA number 2025-070, Central Oregon LandWatch versus Deschutes County. I'm Board Chair Zmudia. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with our recording and this oral argument is being recorded and live-streamed. I'm not aware of any pending motions in this appeal. Do the parties have anything to bring to our attention? >> No. No, we do not. >> Okay, thank you. >> Nothing to add. Nothing to add. Nothing to add. >> Appreciate that. Petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> I would. Thank you. I'll reserve 3 minutes. >> Okay, I will keep track of time and ask that you also keep track of your own time and the clock on the screen is not keeping exact time. It's just there for reference. Um and interveners, you will have a total of 15 minutes for your response. Again, I will keep track of time and ask that you also keep an eye on it yourself and with that, petitioner, please state >> Thank you and good morning. Uh may it please the board. I'm Rory Isbell for petitioner Central Oregon LandWatch. In today's challenged decision, Deschutes County adopts a reasons exception to goal for, in order to redesignate and rezone a 58-acre parcel of forest land adjacent to the city of Sisters. And it proposes to redesignate that land to the county's rural residential exception area plan designation and multiple use agricultural zone. I'll start with what is both a procedural and substantive issue, and that's the county's failure to characterize the nature of the proposed use and the purpose of the goal exception. The county's failure to provide petitioner with a consistent and accurate description of the proposed uses for which the goal exception was sought sowed confusion into the entire local process about which criteria apply. Luba has held that in a very similar situation, when a local government uh seeks to adopt a reasons exception to a resource goal, that quote determining which criteria apply requires that the local government identify the character of the use for which a reasons exception is proposed. That's DLCD versus Umatilla County, 39 Or Luba 715. And logically, it could not be any other way because when a goal exception, whether a goal exception can be approved, depends on what the goal exception is for. And that's something the county here never clarified. Throughout the local process, the character of the proposed use and the reasons for which the goal exception was sought remained unclear. That confusion even continues today. Uh in its brief, intervener respondent repeatedly argues that the purpose of the reasons exception is to create a transitional holding zone related to um a potential future urban growth boundary expansion for the city of Sisters. Meanwhile, in all of the public hearing notices uh below, the county characterized the proposed reasons exception as intended to quote develop a needed housing residential development inside the city of Sisters UGB. And by rezoning the subject property to the MUA zone and without limiting future use of the property to fit the reasons that the county would end up adopting a goal exception, what the county decision actually approves is simply all of the uses in the county's MUA zone. So, this ongoing uncertainty of the proposed use and and character of the proposed use violated several applicable procedural requirements related to notice and description of the application, and those violations did prejudice petitioner's substantial rights to prepare and submit its case to a full and fair hearing. For example, uh petitioner alternatively alternatively argued below that the criteria governing rural residential use apply, or otherwise the criteria governing urban uses of rural land apply, because the proposed use must be either urban or rural, but the county rejected both arguments uh in its its failure to characterize the nature If the county had clarified the nature of the use, uh Land Watch could have meaningfully prepared and submitted its case fully in the public hearing process, but that did not happen. Relatedly, an administrative rule about planning and zoning for exception areas 660-004-0018-4A requires that for a reason exception, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception. The decision here fails to comply with this rule by failing to so limit the uses allowed on the property, and this flows from the county's failure to characterize the nature of the proposed use and exactly what the goal exception is for. Uh this makes this case differ from the Columbia Riverkeeper decision argued by intervener respondent where industrial uses were clearly proposed and the decision there included conditions of approval requiring quote that future conditional use applicants to demonstrate that a particular proposed industrial use was justified in the exception decision. Instead of identifying and constraining the character of the proposed use as happened in Columbia Riverkeeper, the decision here apparently authorizes all uses allowed in the county's MUA zone without limitation violating that I'll move on to the next issue which concerns which criteria actually do apply to the decision made by the county. So LCDC's administrative rules for reasons exceptions provide that if an application seeks an exception to accommodate one of an enumerated type of use provided for in the rule then that specific criteria in the rule must apply to the to the application. Here what the decision does is convert the property to the county's rural residential exception area plan designation and it rezones it to the MUA zone. As that plan designation name implies, it is a rural residential designation and the MUA zone is a rural residential zone. In fact, the MUA zone was created by the county specifically to accommodate other types of goal exceptions, built and committed exceptions back in 1979 in the county's first comprehensive plan. Counter to the response brief, the decision itself record 55 to 56 does discuss plans to quote add rural housing on the property in its discussion of the goal for exception. So that makes this situation unlike that in 1000 Friends of Oregon v. Jackson County, which the decision relies on, where that application there proposed an industrial use, but the enumerated use in LCDC's rules um used that non-exclusive language of including but not limited to. So, it granted more leeway to the local government there um to either apply the the catch-all provision or the specific industrial um criteria. This situation is like that in the Rinehart v. Umatilla County case, where LUBA found that a a decision adopting a reasons exception to rezone resource land to a county rural residential zone must apply that uh enumerated criteria in LCDC's rule. The decision errors by failing to apply that criteria and should be um reversed on those grounds. Unless there are no questions, I'll I'll keep moving on to the next issue. >> If we sustain the first assignment of error and agree with you that that was a procedural error on the notice, uh your brief says that that requires a plenary remand. Would that essentially, if we did sustain the first assignment of error, would we need to reach the other assignments of error, or would that kind of reset the whole issue? >> Um I I think you would need to reach the other assignments of error, respectfully. Um and that relates to the reasons actually identified by the county um which I I think uh so this is in petitioner's third assignment of error um which I'll explain more now if if that adequately answers your question for now. >> Okay, go ahead. Thanks. >> Okay, thank you. So, that third assignment of error concerns the actual reason cited in the decision, which uh to relate to your question, you know, I I I think differs or is separate enough from the procedural issues here um uh because it it points to what the application actually proposes and what the decision uh does. It it redesignates land by taking a goal exception based on what we argue are unexceptional reasons. So, the reasons identified by the county are just not sufficiently weighty to justify an exception to the goals. Instead, they are make weights as LUBA used that term in the Todd V. City of Florence case, uh meaning that by relying on these reasons, uh the requirements of goal four would be rendered meaningless and would justify making thousands of other similar resource land properties across the county and the state also eligible for for a goal exception. So, the first reason actually identified in the decision concerns the subject property's suitability for commercial forestry operations. Um several um cases have stated that uh whether a subject property is correctly designated under the resource goals is really not relevant to a goal exception decision. Uh and that's this year's Central Oregon LandWatch V. Jefferson County case, 347 Or App 454, and the Friends of Yamhill County V. Yamhill County case, 47 Or LUBA 508. The second reason identified in the decision is similarly [snorts] irrelevant. That reason is that the county found that the MUAS zone confers equivalent protections to forest resources. Again, uh whether existing forest zoning protects forest resources adequately adequately is just not at issue. And even if it were, that uh this reason is is similarly make weight. It does not rise to the level to justify an exception to the goals. The final reason cited by the county is that the city lacks a transition zone nearby. Uh even if true, that reason also is unexceptional and may wait. Um, but you know, more directly or factually, the city of Sisters, um, nearby in Deschutes County has hundreds of acres of existing rural residential exception area designated lands. And throughout the county, the county has over 3,000 acres of vacant rural residential exception lands, including over 600 acres of vacant MUA zoned lands. Intervener respondents brief lays quite bare that its intention, and I don't see this as clearly in the county's decision, but intervener respondents intention is for the subject property to make uh, to become higher priority for urban growth boundary inclusion and to, uh, develop urban housing, um, uh, should the property be included in the urban growth boundary. If that is this decision's main reason for the goal exception, uh, that reason is nothing more than a desire to make resource land higher priority for a hypothetical UGB expansion. If that is a valid reason, then again, thousands of acres of resource land, county and statewide, would qualify for similar reasons exception, making this decision's reasons exceedingly unexceptional, and we believe warranting reversal as prohibited as a matter of law in line with LUBA's past case law on a similar issue. >> So, to get back my question, you I think your answer is the third assignment of error has more full relief, so we should go to the third assignment of error before we get to the first procedural assignment of error. So, if we That's right. >> We would not get to the first, but if we sustained your first, you would want us to get to the third. Am I understanding you correctly? >> That is correct. Yes, thank you. >> Thank you. >> Um, I'll quickly make goal 14 um, points for our fourth assignment of error. I'm probably into my rebuttal, but four quick points. The decision's primary goal 14 finding is that no site-specific goal 14 analysis is required. That's counter to several recent um decisions from Luba. Second, the decision adopts a goal exception, which would make this property exception land, invoking LCDC's rule governing uh rural residential exception area uh and allowed uses, but the MUA zone applied to uh this property exceeds the amount of development allowed in exception areas under the rule. And that's something Luba recently found in the uh Po- Poheku Farms case. Um third, much like the very recent uh BCL decision in Luba number 2026-015, the decision here violates goal 14 under a Curry County factor analysis because it allows um a new 12-unit neighborhood with no minimum lot sizes adjacent to an urban growth boundary. And finally, just as in that BCL decision and last year's uh Destiny Court decision, uh the decision also violates the Deschutes County comprehensive plan policy 3.3.1 by authorizing new residential lots of less than 10 acres directly counter to that policy. Um so, I'll conclude there by just again noting that we believe reversal is appropriate um because the decision is prohibited as a matter of law. Thank you. >> Question. Okay. Thank you. You will have 2 minutes for your rebuttal, and we will turn to intervener for your argument. Please state your name for the record and begin. >> Uh Christopher Koback on behalf of the owner of the McKenzie Meadows Village LLC. Is my microphone working all this time? >> It still sounds a little foggy. I don't know if you can adjust it to be closer to your mouth, maybe. It's We can hear you, but it has like a little static behind it. >> have We're going to have to order another one. Um so, good morning and thank you for your time. I'd like to start with the first assignment of error in the preservation argument, which uh petitioner did not respond to. Um in in the oral argument. So, the preservation argument is they never raised the 197610 notice uh issue below. And their excuse for it seems to be that it was not included in the record until the second amended record. Well, that doesn't really carry the day because you have to look at the nature of the notice. That notice was one It was just a form fill out with LCD. There was no requirement that anybody get notice of it except LCD. So, it was up to the petitioner's due diligence to discover. And I know they got the public hearing notice. They admit that and they raised issues over it. They didn't get that through the mailing, either. They're not listed on it. So, they had to have gone to the file at the county house to find that public notice. Well, the public notice told them exactly where the link was to the file. They could have gone to the file, found the LCDC notice, and raised their issues there. They don't explain why they didn't do it or how they didn't uh why why they did not do that. So, we don't believe that the reason they give for not preserving this issue isn't legitimate. Um as to the notice itself, I compared it to the statute, the LCDC notice uh that the county submitted. It's in the record. It complies 100% with the requirements of the statute. It lists every element. Uh petitioner confuses the the the statutory language. The language says there must be a summary of the proposed change. Petitioners argue that the defect is didn't include a summary of the proposed use. That's not what the statute requires. But the notice, if you look at it, would clearly identify the um proposed change in the zone. And finally, the North Medford case is very distinguishable because in that case there was no notice. The county didn't vote or the city did not believe it needed to give a notice. Um and so that's on on the first notice issue. The public notice uh petitioner agrees they have to show substantial prejudice or prejudice to their substantial rights. The first uh letter that they submitted to the hearing's officer, it record 730 clearly state that they knew that the purpose of the application was to rezone the subject property so it could be added to the sister Eugene being urbanized. Then they went on and in over 200 pages including exhibits addressed all of their arguments. Um so they had an ample opportunity to understand the issue, they did understand it, and they submitted significant material. Then in front of the board at page 267 through 278, another very detailed um submission addressing what they believed the town errors in the county's or the hearing's officer's decision was. And the hearing's officer's decision clearly discussed this application in the context in which it was presented, which is to create an opportunity for the city to bring this property in for needed and um affordable housing. Um so the second assignment where I'm just going to briefly touch because it's briefed very well, there is no requirement that that an applicant uh designate a specific use and there's nowhere in the application where the applicant described this as rural residential. Um if you look at all the cases on this specific topic, everyone involved a specific proposed use. And and and and but it's not required. And the Riverkeeper uh case says that. There's nothing that requires an applicant to define a specific use. If you don't define a specific use, the rule itself is very clear. You go to the catch-all provision. Now, the only argument you heard is because we asked for an MUA 10 zone and one of the uses is rural residential, you have to interpret that our request is for rural resi- residential development. But, if you review the application material and it's around a lot of it is at 20 uh 2051 through 2061, there is nothing that describes it as such. It is described it consistent with the notice that the city or county issued. It was to create this zone that would allow priority one and get over an administrative hurdle, a regulatory hurdle, to the city to consider property that it deemed to be one of the best to meet this needs. It is property that the same owner developed for a similar use right below it, stubbed [snorts] utilities, and planned to have it there. There was never any other use proposed for this other than bringing it into the UGB and continuing the mission of providing the housing that Oregon needs. And in this record at 20 uh 51 through 2061, you can see this gets kind of into the third assignment of error, were there reasons? Is this an exceptional circumstance? Well, the application throughout, but specifically on those pages I provided to you, detail the housing prices that we are facing and that the city and the county are facing. There's statistics in there. All of that information is in there to create an exceptional circumstance and we addressed all of the criteria. Um admittedly, it was a challenge given the nature of the application, but but the the application addressed the criteria in that context. Uh specifically, it went through all of the exceptional circumstances, which I just noticed, they went through all of the barriers of development on the existing acreage that petitioner just mentioned that are already exception areas, explained why those properties could not develop at the densities needed to meet this exceptional circumstance. It you would not do anything for the housing prices to go out in the middle of nowhere as petitioners suggest this opens the door for and try to develop rural housing. That's not going to make the impact that we need. What makes the impact is doing exactly what my client wants to do and and the city supports if we can get this rezoning done, bring it into the city, develop it at a density that will have an impact. There are no development barriers. So that was what the application was and on the findings, the hearings officer specifically references the application material and he discusses all of the 197732 criteria that that petitioners say it were not addressed and he addressed them in detail. Um and and and he mentions those and then the board specifically incorporated his findings. So if you look at the the findings in the context of the application and the the discussion that the the hearings bodies, the decision makers had referring to that material, there are enough findings there to support an exceptional circumstance. And Todd, the only exceptional circumstance was that the tribal property didn't have development restrictions. So goal goal 11 didn't matter. That's not very exceptional in my opinion compared to what the circumstance that we're facing in Central Oregon on housing. On the fourth assignment there, I just want to mention there's there's a >> Before we move on to the fourth assignment of error, um under the third, it seems like at least your primary reason for this is that the city needs to expand and they want to put this into the UGB and this is a transition zone to allow that to happen. >> Correct. >> So if if everybody agreed that the UGB doesn't need to expand for a long time, this would not get approved. Is that right? >> Um I think I follow the question. If there was no current UGB expansion going on, I think it would be a difficult application to approve. But as we have cited in our material, the city is in the process. They have They evaluated our property, and that's in the record. It's in the supplemental appendix. >> Right. >> I think I think the fact that it's ongoing is the reason this application can be approved and should be approved. >> Right. So, you're hanging your you're hanging your hat on the fact that this can eventually come into the UGB. That's the reason. Is there anything in the decision that like if it just gets approved there's no guarantee this comes into the city, right? You would be able to the the applicant would be able to do whatever is allowed under the MUA zone that would that they could do that would sort of defeat the purpose, wouldn't it? I mean, if if you're supposed to bring it in if it's supposed to get approved to come into the UGB, and then it turns out it doesn't come into the UGB, you're getting something approved that wouldn't have gotten approved otherwise. Is there anything in the decision that restricts this to only be able to come into the UGB? >> I don't believe there is. Uh we we addressed I mean, we addressed it a little bit differently in the material because and the decision reflects this is there was some discussion about what happens in the interim. Everybody anticipated it would be annexed, but there would be a short period of time before annexation. And part of the the conditions that Commissioner Chang wanted in there was to make sure that in this interim period that the resources were protected. And so, we addressed kind of the county standards for rural residential, whatever MUA uses could be in that context. But it was always I believe was always anticipated by everybody in the in the in the proceedings that it would be annexed shortly. Um and I think the board in their minutes there in the supplemental record tell you that. That was the whole purpose. They rushed this. They declared emergency to cut off time. Um I I don't believe the county would not bring it in. And it is a county decision, too. That's That's the the application for UGB expansion is at the county. Um so, I think the evidence in the record indicates that if this decision is affirmed, this property will be be in the city and it will be developed under city regulations to meet the housing crisis. So, if I can briefly, I know I might run out of time, but I want to go to go go 14 and the policy issue because I think there's a really important distinction in the cases. In BCL BCL, your decision said at page 10 that the the county's findings assumed that the property if brought in could be developed at at cluster densities. And that was the same thing in density court. Now, I juxtapose that with your discussion of the Redside case in Pacula Farms where you didn't you said that approval did not offend goal 14 because the nothing in that context of that application indicated an intent to do anything other than 10-acre parcels. So, I think you have to really look granularly at the proposal. And I can tell you from all of our application material and everything I know, this property will never be developed with a cluster development or in development other than urban development as part of the city. That is the commitment, that is the mission of the MMV, and it will never be developed and there's nothing in the record that would allow you to conclude that it >> Questions? Okay. Thank you for your argument. We will turn back to petitioner. You'll >> Thank you. Um petitioner did preserve the ORS 197.610 issue by commenting to the county that, quote, the county has a duty to provide notice to the public that a goal exception is proposed and also must summarize the issues in an understandable manner. That's at Rec 269. So, whether petitioner identified the specific statute shouldn't matter under the preservation rules from the Bolton Pliska cases because petitioner clearly raised the substance of the issue. Uh, I'll also note that, um, you know, because this concerns a PAPA, case law holds that no prejudice to a petitioner is actually required because notices of PAPAs are also substantive violations of the goals where they relate to the substance of the goals. So, they are not just preservation, uh, excuse me, not just procedural issues, they're also substantive issues. And here, uh, you know, notwithstanding prejudice did actually occur to petitioner because the county again refused to identify the character of the use. So, petitioner had to take a kitchen sink approach and guess about what was actually being proposed and which criteria apply and, uh, you know, try to make arguments under all of them. Uh, the MUA zone is a rural residential zone. It was specifically created to facilitate rural residential exception area development in 1979. That's in the record. Yes, it allows other uses just as all residential zones allow some other uses outright or conditional, but it is expressly an exception zone created to accommodate rural residential development. Uh, and the decision here fails to limit future, uh, uses, um, to the purpose for this goal exception. And again, that makes it differ from the Columbia Riverkeeper case. Uh, the reasons in the decision are are are just not exceptional. Um, every city in the state has housing needs and goal 10 and goal 14 obligations. The city of Sisters is in the process of amending its urban growth boundary and it's proposed to do it without the subject property. It has ample exception land. So, first priority UGB lands without this property. >> I mean, you've reached your time, too. >> Thank you. >> That will conclude all argument. Uh, the due date, statutory due date for our decision in this appeal is July 29th. We'll ask the parties to agree to an extension so that we issue our decision by August 19th. Is that okay with these parties? >> Yes, it is for petitioner. >> Yes, yes, thank you. >> Thank you, appreciate that. Have a good", "summary": "Good morning. This is the time set for oral argument in LUPA number 2025-070, Central Oregon LandWatch versus Deschutes County. I'm Board Chair Zmudia. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with our recording and this oral argument is being recorded and live-streamed. I'm not aware of any pending motions in this appeal. Do the parties have anything to bring to our attention? >> No.…", "source_url": "https://www.youtube.com/watch?v=lc0n7pw-GtU", "source_name": "Oregon LUBA", "doc_date": "2026-07-15", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "OA 2026-029 Schirmer Consulting, LLC v. City of Eugene", "content": "OA 2026-029 Schirmer Consulting, LLC v. City of Eugene\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=O6lgM8UXMFg). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood 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…", "source_url": "https://www.youtube.com/watch?v=O6lgM8UXMFg", "source_name": "Oregon LUBA", "doc_date": "2026-07-15", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2025-009/010/011 Sattler et al v. City of Beaverton", "content": "Oral Argument 2025-009/010/011 Sattler et al v. City of Beaverton\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=HtCEGp3_GMQ). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nHello. 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…", "source_url": "https://www.youtube.com/watch?v=HtCEGp3_GMQ", "source_name": "Oregon LUBA", "doc_date": "2026-08-26", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "OA 2026-016 Friends of Yamhill County v. Yamhill County", "content": "OA 2026-016 Friends of Yamhill County v. Yamhill County\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=-Pvrnp4zCkw). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood 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…", "source_url": "https://www.youtube.com/watch?v=-Pvrnp4zCkw", "source_name": "Oregon LUBA", "doc_date": "2026-07-15", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}
{"title": "Oral Argument 2026-009 1st John 2:17 LLC et al v. City of Boardman", "content": "Oral Argument 2026-009 1st John 2:17 LLC et al v. City of Boardman\nYouTube video by Oregon LUBA (https://www.youtube.com/watch?v=qB1tmjPOtnY). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.\n\nGood there. We'll just wait >> [snorts] >> All right. All right. Good. Almost afternoon. Good morning. This is the time set for oral argument number 2026-009 First John 217 LLC versus the city of Boardman. I'm board chair Samudio. Board member Basham is also present today. Board member Wilson is not present and will not be participating in this decision in the decision this appeal. Please mute your audio when you're not speaking. That will help with our recording quality and this oral argument is being recorded and live streamed. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? >> Uh not petitioner. >> Thank you. Oral arguments total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> I'll reserve five. >> Okay. And I'll keep track of time here and ask that you also keep track of your own time and just so you know, the clock on the screen is for reference, but it's not keeping exact time. And responding, you'll have 15 minutes for your response and I also will keep track of that time and ask that you would be mindful of your time. So, with that, petitioner, please state your name for the record and begin. >> Ty Wyman here uh as attorney for the petitioner. Um I thank the board and council for its for its time and attention this morning. Uh on my review, the case is uh fully briefed uh and that I think puts count all council here uh primarily to address questions that that the board may have. Um the petitioner has cited failure to demonstrate compliance with BDC 4.1.600 sub G sub 3 and that frankly is just the core if not the entirety of the case that that criterion. I I don't see a dispute that that provision applies to to the decision. I think all I think uh both parties agree on that. Nor do I see a dispute as to what that provision requires. It requires in the alternative either presently adequate public service public excuse me, public facilities, services, and transportation networks or that those facilities, services, and networks are planned to be uh provided concurrently with development. Now, we briefed uh primarily the interpretation uh of those provisions. Uh and we certainly stand on the positions that we submitted in the briefs. But the respondent uh has as I read the briefs has uh provided uh an interpretation sort of an implied is sort of the that the findings city's findings um set forth an implied interpretation. As described in our reply, we're willing to assume for purposes of argument that those interpretations are correct and the two interpretations proffered by uh council are that quote the property includes existing and future park properties and quote the affected area means the entire city. Still, the record fails to demonstrate compliance with either alternative in um G3 as as previously described in the central de- deficiency comes down to record page five where the city um decision states that city and district owned properties are cur- quote are currently or can be served and quote. And it relies um for concurrency on future planning review. Quite simply, can be served is not ex- does not establish present adequacy, which we believe the criteria requires, and future planning review does not establish um concurrency with future development that that um Excuse me, that facility services and networks planned to be planned to be provided will be concurrent with future development. As to the concurrency issue, we cited uh Kind v. City of Bend uh just on the just on the fact that the board addressed construction of a very similar concurrency provision and found uh that future adequacy review is not equivalent to facilities being planned for concurrent pro- pro- provision. Very simply, we cannot know the nature and extent of future land use reviews, particularly as to the load that will be play- that they will place on park and recreation facilities, and I might note record page uh I believe it's 1212 uh consists of some back and forth, some written back and forth between my client and senior city staff, and I'm going to read it for you. The staff response is um it's it speaks to purchase of property for the purposes of building a park or a trail facility. It says those future actions may be based on recommendations of the PMP, but will have specific approval processes that will need to be followed at that time. But we don't we don't know what those we don't even know frankly even if such processes uh if if a land use process will be required um if it will meet the threshold of a statutory permit um and even if it does, what we don't have assurance of what the criteria or even knowledge of what the criteria will be that would apply in these future land use reviews. The response brief uh notes that the Kind case was quasi-judicial and addressed more of the adequacy of of findings. It it is quasi-judicial and it did address the adequacy of findings, but nonetheless it also addressed construction of this very similar uh currency provision. Um we request remand uh just for the purpose of the city demonstrating compliance with BDC 4.1.600 sub three sub G sub three. We're to be clear not asking of course for the board to dictate trail alignment or engineering details or any particular uh implementation mechanism. The legislative nature of the PMP does not does not eliminate, I think the parties agree does not eliminate PDC 4.1.600 G3 as a criterion. That criterion is in my experience relatively stringent. Um, and because the record is not adequately demonstrate, uh, either present adequacy or concurrent provision, we think that the decision should be remanded. >> Counselor, let me ask you about the the Klein versus the City of Bend case. You said as you pointed out that's a quasi-judicial decision. Uh, the city argues that in the context of a legislative decision that's adopting a master plan that the concurrency requirement is is satisfied differently. Uh, do you have a Do you have a response response to that? >> Yeah, I don't I don't believe, your honor, that it is applied, you know, a materially different manner. Uh, and I would go to the words of the criterion uh, itself, which is concurrent that the that the facility services and networks described in the PMP are must be provided. It must be must be shown. There must be a finding that can be provided. I want to apologize. Literally, they are washing the windows right outside of my office. Um, so we're not playing any handball here in the in the office. Um, it says that those uh, facilities, networks planned to be provided concurrently with development. And I did not read liter- literally in the Klein case the criterion at issue quoting is planned to be provided concurrently with development of the of the property. So, um, yes, the circumstances and in the context do do differ. I I I don't doubt that at all. As I iterated or suggested a bit in my my argument, I find this to be a I'll say a surprisingly stringent legis- uh criterion for for a master plan legislative, but good on the city for that. It wants to be robust in its in its master plan for parks. >> I'll I'll seed my time. >> Okay. Okay. No further questions from the board for petitioner. You'll have your full 5 minutes for rebuttal, and we'll turn to the city for the response. Please state your name for the record and uh provide your argument. Thank you. >> Good morning. My name is Emily Guymond, um representing respondent City of Boardman. Um I want to quickly start by addressing how Mr. Wyman began his argument. So, I agree that the dispute here centers around the interpretation and application of BDC 4.1.600 sub G sub 3. Um I understand that for the sake of argument, Mr. Wyman is not disputing the respondent's interpretation of that particular criterion as explained in the respondent's reply brief. So, um I'm happy to take questions from the board on that particular point, but um given that, I'm going to pivot directly into um the con- concurrency issue that that Mr. Wyman points out. So, um I want to take a moment to contextualize what the PMP is, parks master plan. The PMP, the adoption of which is at issue here, what that is in the city's overall land use planning system. Um so, the purpose of the PMP is to be a master planning document through which the city builds upon and formulates plans to more particularly implement the city's recreational needs as um established in the city's comprehensive plan, chapter 8 of the comprehensive plan. So, it's a it's it's a document that evaluates needs, inventories the city's current recreational property assets, and then measures the current assets against those needs. And it concludes that there's a shortfall. The city needs more recreational properties to meet the recreational needs it forecasts over the next 10 years, which is the lifespan of the PMP itself. Um so, in that sense, the PMP is a component of the comprehensive plan. It flows from the comprehensive plan. It was um produced, developed in alignment with comprehensive plan, and with the comprehensive plan's other components, like um the city's transportation systems plan, for example, or the and the city's development code, which implements the comprehensive plan itself. Um so, it is a high-level planning document um that looks 10 10 years into the future. And so, the city's application of the criterion that um you know, and I agree with the petitioner presents two alternatives, um a finding that the properties in the affected area are currently served by adequate public facilities and such, or will be served by such facilities concurrent with future development. Um the PMP itself focuses on future development. And it it as as the first version of the PMP that the city has ever had, it recognizes and and the city recognized and staff recognized in the record that updates and modifications to the city's overall land use planning system will be required going forward in order to implement the goals of the PMP itself. And so um through that recognition, which is in the record in the PMP itself, and through um the staff presentations, the planning commission, which the city council adopted in its final decision, um the city city has un- has gone further than um you know, expressed a general intent to have plans for the concurrent development of such facilities in the future. I believe that's how um petitioner phrased it in the reply brief. The city had doesn't have just general intent for those development plans. The PMP goes into significant detail about what those plans should be in order to implement the projects within the PMP. So, for example, um the PMP references the city's transportation systems plan to ensure that properties to be used for recreational development are adequately connected to um transportation systems like pedestrian access, street access, um pedestrian crossings to access parks. Um the PMP also identifies a need to acquire properties in the future for recreational development and identifies uh that the city will have to adopt a an acquisition policy or strategy in order to guide the acquisition of such projects from future development so that um parks facilities scale as development increases. Um with all of that and to um the question posed to petitioner about Kian's applicability in a legislative land use process. It is it is a poor interpretation of BDC 4.1.600G3 to require that the PMP goes into specific detail about what those exact processes are. It's a long-term planning document as I stated. Um, it contemplates changes to the city's overall land use planning system. It would undermine the purpose of the PMP if the PMP was to go into uh, the detail that petitioner argues that it should in I'll also just circle back to set the landscape for the the standard of review here. So, um, the city's decision was a legislative land use decision. So, the adequacy or inadequacy of the city's findings to support its decision aren't grounds for reversal or remand here. Um, instead the proper standard is whether the record itself shows that the um, supports [clears throat] the city's application of this particular criterion. Um, I'm happy to answer questions about how the record supports the city's interpretation of the terms within BDC 4.1.600 sub G sub 3. Um, and I have just discussed how the record supports the application of um, the concurrency requirement in that same criterion. Um, >> All right. I understand your position to be that uh, whenever new park facilities are planned or prepared for development, there would be some kind of land use review process under the city's code to prepare them. Can you cite any land use processes you think would likely be involved in that process? >> Um, I can't off the top of my head, but the development So, the PMP itself does not trigger any sort of development process, but the PMP establishes the projects that the city will um will work to will act upon in order to achieve the PMP goals. And as you said, one of those um actions is the development of further development of currently owned recreational properties like parks and trails and such or the development of um properties that have yet to be developed as such. And those those actions will trigger the appropriate land use review processes in the code. Um, which at this time, because the PMP is part of a larger overall update to the city's land use planning system, are not set in stone. And so, it would be it would undermine the purpose of the PMP if the city was required to firmly establish with particularity those uh processes at this exact time. But the PMP does express um far more than a general intent. It expresses a very fleshed out um process for identifying future planning needs and then um tying those future planning needs to the development of uses, recreational uses >> If there are no further questions, I >> No further questions from the board. Thank you. We will return to petitioner >> And I'm at 5 minutes, is that correct? >> Yes, that's correct. Go ahead. >> Um mostly clarifications. I you know, I think that responded articulated well it's case. But I do want to be clear I if to the extent respondent suggests that we are not the petitioner is not disputing the profit interpretations. We did that in our petition for for review. We were willing mostly for the benefit of the board to um you know, assume for purposes of argument that the interpretations set forth in the response brief um uh do do pass muster. Uh to the point that the facts the record simply still do not demonstrate compliance with this with this criterion. So I'd be clarified so I would be clear about that. Uh on the uh on the plan showing more than general in in general in tat counsel referred to future planning actions and I do want to um of the record and I think that it is meaningful because if I can find it here I might be able to quote it but what it does Yeah, at the bottom of record page 137 and this is in the in the PMP itself. It's describes a an implementation priority a dropped trail corridor dedication standards in the subdivision code and so I think going somewhat to uh Judge Basham's um uh question here to counsel uh we're not we're not even at a point where well, we don't have those subdivision or other land use applications. So so that we can identify the you know, the dedications that might be justifiable under Dolan. Uh we don't even apparently the the city has not provided even the code on which such subdivisions would be judged. And so, that's where we just find that the that this concert concurrency requirement is just simply not been met. Lastly, I would note that I thought I understood council and and the response brief to sort of say there's no findings requirement in legislative. I That is not my recollection. My recollection is that even legislative, you need sufficient findings to at least advise the board as to um what the decision maker was thinking. We cited Hyler, I saw in our brief, and I was trying to check this to confirm that Hyler was a legislative decision. object to a notion that there that the city was under no findings requirement. I understand that there's not a that there was not a statutory or apparently code mandate for findings, but still there's sort of a practical need for for findings to explain to the board the decision maker's intent. With that, barring questions, I >> No further questions from the board. Thank you. That will conclude oral argument. The statutory due date for a decision in this appeal is August 31st. We'll ask the parties to agree to an extension so that we issue our decision by September 21st. Is that okay with these parties? >> Yes. >> All parties agree. Thank you. Okay.", "summary": "Good there. We'll just wait >> [snorts] >> All right. All right. Good. Almost afternoon. Good morning. This is the time set for oral argument number 2026-009 First John 217 LLC versus the city of Boardman. I'm board chair Samudio. Board member Basham is also present today. Board member Wilson is not present and will not be participating in this decision in the decision this appeal. Please mute your audio when you're not speaking. That will help with our re…", "source_url": "https://www.youtube.com/watch?v=qB1tmjPOtnY", "source_name": "Oregon LUBA", "doc_date": "2026-08-19", "tags": ["luba", "land-use", "oral-argument", "oregon", "primary-record", "2026"]}