Oral Argument 2025-018 Le v. City of Tigard
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=AmJlYR7fP0w). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

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 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…


Oral Argument 2024-088 Hutto et al v. Jackson County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=sXrPIfIke_s). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

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 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…


Oral Argument 2025-023 Central Oregon Landwatch v. Jefferson County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=pPWMgbk8z2g). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

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, 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,…