Oral Argument 2025-078 Pagel v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Y1aILNljGBE). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

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 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…


OA 2025-056 City of Irrigon v. Morrow County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Up6vZlMi01E). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

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 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…


OA 2025-070 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=lc0n7pw-GtU). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

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. 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.…