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Oral Argument 2026-015 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=JTk66Z8PaQ8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
you zoom out so we can get Todd. Good morning. This is the time set for oral argument in luba number 2026-015, Central Oregon Land Watch versus Dashuites County. I'm board chair Zamoodio. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with our recording. And I'm not aware of any pending matters um in this appeal. Are there anything? Is there anything the parties want to bring to our attention before we get into oral argument? >> Nothing from the interven. >> Uh nothing from landwatch. Thank you. >> Okay. Thank you. And petitioner, you have a total of 15 minutes. Oral arguments a total of 30 minutes. You have 15 minutes and you may reserve up to five minutes for rebuttal. Would you like to reserve any time? Uh >> yes, board chairs and media. I'd like to reserve 3 minutes. >> Okay. I will watch uh the clock on my end. And just so you're aware, the clock that's on the screen is not keeping exact time and ask that you also uh be aware of your own time as well. And then intervene respondent, you'll have a total of 15 minutes for your argument. So with that, petitioner, please state your name for the record and begin. >> Yeah. Good morning and may I please the board. My name is Robin Hayakawa. On behalf of the petitioner, Central Oregon Land Watch. Um, the case before you concerns a 240 acre EFU property approximately 1/4 mile from the Bend urban growth boundary. Um, the county proposes to reszone this property from EFU to multiple use agriculture and redesate the property from agriculture to rural residential exception area. Um, this appeal is about the burden carried by land use applicants when they seek to engage in the ad hoc and peacemeal reasoning of Dashes County agricultural land and specifically whether that burden has been satisfied in this instance. Um, in our petition, we asked the board to reverse or remand the land use decision for four principal reasons. Um, and I'll approach these issues in order the same uh as in the petition for review. So starting with my first assignment of error because we believe that that issue alone warrants reversal. Um the first assignment of error has to do with the conflict between in Dashuites County comprehensive plan provision 3.3.1 and the sub 10acre dimensional parcel sizes allowed within the MUA zone. Um at this point you've become familiar with this provision. I believe uh Dashes County um comp comp plan policy 3.3.1 prescribes a minimum parcel size of 10 acres for new rural residential parcels outside the westside transact zone. Policy 3.3 further explains that the purpose of 3.3.1 is to require quote a 10acre minimum lot size for new rural residential lots in order to protect the rural quality of life and its resources. Um, in contrast to these clear instructions from the comp plan, the county's decision approves a zone change that would allow a zone that does not impose a 10acre minimum parcel size for new rural residential parcels. Um, specifically, the UAA zone allows for variable densities within cluster developments and planned developments where, like here, the properties located less than one mile from an acknowledge UGB. Planned and clustered developments are allowed at a fiveacre minimum lot area or equivalent densities. Other provisions of DCC clarify that cluster developments can be granted with a minimum lot area of 2 acres and plan developments do not have a minimum lot area requirement at all. Um this is not a novel issue. Luba addressed a near identical issue during a 2025 appeal known as Destiny court. That's at luba number 2025015. Um in Destiny court, uh Luba remanded after determining that the county's decision did not address the conflict between the plan policies and the MUA 10 zoning. Um we have the same circumstances here. You uh you may hear from intervenor respondent that the land use decision does not request or specifically authorize sub 10acre development and therefore no conflict exists. Um this argument is incorrect. Just like in Destiny court, the decision uh before you does not limit future development of the subject property to parcels of at least 10 acres in size. And as explained before, it does quite the opposite. It allows an MUA zone which allows uh various sub 10acre densities. Um compliance with the comp plan and goal 14 needs to be shown uh during the quasi judicial papa process and cannot be deferred. Um, we think reversal is appropriate because the comp plan language is unequivocal. Uh, the county has had opportunities to uh reconcile the comp plan provisions and the allowances of the MUA zone and um hasn't done so. Turning now to the second assignment of error. Uh, the land use decision misconrs applicable law and lacks an adequate factual base uh to support the conclusion that the property is not agricultural land. Um it does this by failing to consider the suitability of the subject property for the specific farm uses identified by land watch during the local process. Um this assignment of air also really rests on the holding from destiny court. Uh in destiny court the board held that once a participant or opponent identifies specific farm uses common in the area and provides some evidence or argument that the property is suitable for those uses. Considering the listed factors, the applicant is then obliged to evaluate those uses and demonstrate that the property is not suitable. Um, in this case, uh, LandWatch believes we did what Destiny court requires. We identified numerous specific farm uses including um grazing in conjunction, a grazing operation using imported feed and seasonal stocking strategies, solar grazing or agriotics. Um and then raising various forms of livestock including pigs, donkeys, goats, sheep, uh goats for milk, ponies, llamas, and alpacas. And that's generally at record citation 683 and 684. Um in addition in further compliance with Destiny court we also supplied evidence or argument tied to the suitability factors under OR 66033 00201AB um including evidence and argument about the property size the presence of fencing flat cleared terrain the quality and quantity of agricultural soils a history of irrigation on the property and a USDA census from 2022 with evidence showing that uses identified are significant in Dashuites County. Um intervenor respondent did partially respond to our arguments. Um but we believe they disregarded or ignored the farm uses I listed above. Uh so just like in Destiny court, uh remand would be an appropriate remedy for further findings. Um turning to the third assignment of error, uh respondent misconstrued gold 14 and made a decision not based on substantial evidence. Uh the decision potentially allows urban uses on rural land without specifically analyzing in context whether the 240 acre property within a/4 mile of the bend UGB can be reszoned from EFU to MUA uh without resulting in urbanization. Um the county's goal 14 analysis that they did provide uh does not meaningfully apply the Curry County factors to the specific property. provide sort of a general analysis. Um, in terms of the Curry County factors themselves, uh, they do point towards urbanization. I want to talk mostly about density, uh, because of the recent decision out of Luba that, um, we're calling Pohaku Farms, Poeku Farms. Um, that's at Luba number 2024080. um in poeku farms, luba determined that a policy purporting to allow new residential parcels at a minimum density of 2 acres on non-resource land was quote facially inconsistent with the rural residential rule um at OR6600400440 and hence goal 14 that's at slip opinion 31. Luba further found that quote by their nature cluster and planned unit residential developments are inherently more intensive than traditional residential development on large individual lots and therefore have a greater potential to tip the scale toward urban use of rural land contrary to goal 14. Um that's at slip opinion 32. I we believe that uh concerns about urban density are especially acute here. We have a very large property in really close proximity to an acknowledged UGB. Um, and it suggests that the significant amount of dwellings in cluster and plan developments that could be approved on the subject property uh will result in urbanization of rural land. Um, and I'll try to be brief on this one. Um, the fourth assignment of air uh has to do with goal five. We believe that the land use decision errors by authorizing new conflicting uses on the subject property without conducting and adopting the required goal five analysis. Um during the local process we raised uh various concerns and issues with the the intervenor respondent site specific EC that's at record 805. Um, and we argued that the EC did not account for numerous new and conflicting uses allowed outright and conditionally in the MUA zone. Um, moreover, and this is a procedural issue I would say, um, the county aired by failing to adopt the sight specific EC as part of the plan. sub4. um which provides that quote the analysis of the EC consequences shall be adopted either as part of the plan or as a land use regulation. Um this didn't take place here. Uh there's no county findings as to the um sort of incorporating uh the sight specific EC and the relevant portions of the Dashoots County comp plan have not been um amended or updated. So remand is appropriate on that that issue alone. Um, council, how how did what form do you think an appropriate incorporation of the EC analysis into the comp plan would take? Is it enough just to have findings in the decision saying we That could be um I think the best the best way to do it would be to actually update um the comprehensive plan uh goal five section itself. um and add that there's these sight specific ECs for these um these yeah. >> Okay. Thank you. >> Uh so in closing, uh the county approved a reszoning and redesation of a farm property that directly conflicts with its own comprehensive plan. The county failed to correctly apply the holding in destiny court under goal three. Uh the county failed to explain why reszoning and redesating the property in its specific context does not violate goal 14 and it failed to um address our concerns about the sight specific EC and um adopt it as required by uh the re relevant administrative rule. So for those reasons, we do respectfully request reversal of the decision or in the alternate remand uh so that legally adequate findings showing compliance with the statewide goals can be made. Um thank you very much and I welcome any >> No further questions from the board. Thank you. You will have your full three minutes for rebuttal and we will turn to the intervenor for your argument. Please state your name for the record and begin. >> Good morning. Uh, Christopher Kobach, KOB ACK for the intervenor. >> Council Kobach, we're getting a little uh it's a little scratchy. If you could move your mic, we might be able to hear you more clearly. >> Is that better? >> That's better. This Thank you. >> Again, Christopher Kobach on behalf of the intervenor. Thank you for your time this morning. Um, I will also go in the same order as petitioner's arguments. Uh, first assignment of air, we don't believe there is a a conflict between the MUA zone and policy 3.31. uh that we don't believe there's a conflict with the decision and policy 3.31 because the decision doesn't approve any parcel less than 10 acres. Um to respond to petitioner's argumenting about the zoning code, petitioner argued in Paku Farms that policy 3.3 controls over the zoning regulations under the Baker versus Milwaukee uh city Milwaukee case and and I think the board agreed with that and uh that case held that uh a a zoning regulation that is contrary to the comprehensive plan is invalid. So what we believe the applicable law is now in Dashes County is that within the MUA zone, an applicant cannot obtain approval for a parcel less than 10 acres because policy 3.31 is the applicable law. Now what petitioners appear to be making here is kind of another facial challenge to uh the MUA zone. Um and we don't think that's appropriate. I was looking at the Pacu uh decision at at the assignment of Air five uh how the board addressed the facial challenge and the board said that a facial challenge can be made when any application of the the policy um will result in the conflict. And so here, the way I analyze it by analogy is to find that there's an appropriate facial challenge as the petitioner appears to be bringing, you'd have to find that any application of the MUA10 zone would conflict with policy 3.31. And that's just not true because in the MUA zone, there are many, many uses that people could make on their property that have no conflict at all with 3.31 or any other comprehensive plan policy. In fact, there are only three conflicts. There's the density bonus on the with if you're within a close proximity of the UGB. There's the cluster development and there's the plan development. Now, those are invalid under the city of Milwaukee case. So, there there is no conflict. But the rest of his the rest of the uses uh and his own are consistent and and and how I think it has to work then is this does have to be decided in a quasi judicial setting when a applicant comes in for a request and at that point in time uh there will have to be an assessment of whether or not they're seeking something parcel smaller than 10 acres that would be inconsistent with the policy. But we can't do that at this point in time. Now, petitioner made a good point. >> Someone came in for a PUB application. What criteria would make the comp plan policy applicable to that application? I think petitioner's argument is that determination needs to be made at the zone change and wouldn't be applicable in subsequent applications. Why is that not accurate? >> That's a great question. I was just getting to it. That was the point I was going to make. They there I have a that's a a valid observation, but here's how it has to work. If somebody comes in for that application now with the applicable law being policy 3.31, they have to adjoin with that application an application for a text amendment to change policy 3.31 because that's the applicable law and it clearly says 10 acres. So in that post acknowledgement text amendment goal 14 applies all and they and they have to do it under your holding in farms. the county will have to do that applying the specific Curry County Shaper standards. They can't rely on >> How would a How would a planner know that that comp plan amendment is an issue for a subsequent application? >> I think what you're saying is is a a land use lawyer who knows about these cases could say, "Okay, we know we have a comp plan problem." But I think petitioner's argument is, "Well, the comp plan's not directly applicable to those subsequent applications. So, why would that process you're describing happen? >> Well, for one, uh the petitioner would bring it up. Uh but I think the county is very aware of this as the board is is likely aware as well because this has been one of the biggest issues in Dashuites County this policy policy 10.3.1 and and the county is very well in tune with what's going on and and it will probably only come up if the county doesn't take action to address your remand in the last case of farms which I I think we could assume is going to happen. So, there's going to be a period of time perhaps if somebody comes in with an application seeking parcels less than 10 acres that the staff is going to have to say we can't do that. Here's our staff report. We can't do that because we have a binding case here from the land use board of appeals saying 10 acre minimum is the law. And so, I I don't think that's a a significant risk. Uh and really what what what the what we what land watch or petitioner is asking the board to do based on this potential conflict in a limited situation is place a moratorum on all MUA10 zones. So any owner that would like to reszone to MUA10 for any use say they want to do a horse facility or something on 30 acres there would be a moratorum because under uh petitioner's argument it is theoretically or hypothetically possible that there could be a future change in plan to come in with a a a cluster development that's why I think it has to be decided in the later quasa judicial to avoid this moratorum uh result Um, so unless there's questions on that one, I want to move a little bit uh quicker to assignment two. Um, I agree with Destiny Court. No quarrels with what it requires. The applicant has the burden to come in first and and address the u the suitability factors and we did that. Andy Gallagher, it's in the supplemental record or supplemental appendix uh one through 11 or 12. Went through all of them. He even went through and addressed the petitioners claim that there's 92 acres of descamp soil on this site and he explained that the DES camp soil is so isolated and confined by the Rocky Gazny that it cannot be suitable for farming even though it's there. He addressed every one of them. And then in subsequent uh correspondence, here's all Land Watch did. And now Landwatch or or petitioner, I'm sorry, petitioner has the obligation then to raise evidence or argument that a two things. They have to show that a farm use is common in this area, suitable for Dashuites County or the area and some evidence and argument that or argument that it's suitable on the subject property. And and I we think that's where they kind of fell short. So in their main uh ninth opening letter, record 1054, the uh uh petitioner merely said that many horse breeding raising facilities in central Oregon operate on dry, sometimes rocky ground. Um members of central Oregon's uh community supported agricultural may also argue that they create their own soil. nothing about the specific property, just general statements on the first prong of what happens in central Oregon. Later, they just talked about the fact that there is a large section of the property that has de camp soils and could be farmed. Mr. Gallagher responded to that. They didn't raise it again until the board hearing it in their August 20th letter. That's at six record 680 through 6 96. And there we agree they did raise some specific evidence and argument on specific uses. They were also very general. Um, of page 684, all they said was uh sign uh here's what they said is livestock, poultry, and related products are the second most valuable farm used in Dashes County. And they presented some evidence of that, but that's nothing on the specific property. Then they get to the specific property on the same page of the record and they identify horse breeding and training facilities and they and goat farming. And uh the goat farm we didn't respond to because it was a goat farm in North Carolina and we didn't think that was relevant to whether the property here was suitable uh uh for goat farming. But as to the equestrian facility, we submitted detailed expert testimony from Eric Hagertby on not only the specific horse operations but also generally he supported Mr. Gallagher on what is required to have suitability for any farm operation in Dashuites County. And he went through a lot of the specific ones. He went through the poultry, the equestrian. Um we believe he addressed every issue that the that the petitioner raised with any particularity. Um so uh that that's all I have to say on that. think it's a substantial evidence question and I think the uh board has in the past recent cases here in Dashuites County has looked at this type of evidence and found it to be substantial evidence and I would point out that as with respect to Mr. Gallagher's comments and Mr. of Hagerties uh petitioner has no specific responsive evidence, no expert testimony, no specific evidence of suitability for any specific operation other than that one horse facility which we responded to in detail. So on the third assignment of error, I think it's kind of spins off the first one. If if you agree with me that the law now is 10acre minimum, there's very little goal 14 analysis required because under Curry County, I read that case to say 10 acre density is rural and if you can't do anything less than 10 acres under policy 3.31, then there there is really no goal 14 analysis. That is a rural density according to Curry County. Um and that was our initial response. Now I I do acknowledge that petitioner's brief came out before your decision on firearms. I I believe that to be the case. Uh and my response I had the advantage of that case but I don't think respondent has really ever or a petitioner has ever responded to this argument uh in detail and and I don't blame them because of the timing. But I think the fact is the fact there is no more less than 10 acre parcels. goal 14 has been satisfied because there is consistency. Now, we did address how goal 14 would work with 10acre parcels and I believe that we explained how that would not result in urban uses. So, we kind of bootstrapped the Curry County analysis by pointing out how 10 acre parcels in a rur rural area are not going to create urban problems, not going to result in urbanization. Um the one the one element that's really difficult to apply is Schaffefer because Schaefer involved an asphalt plant on a rural area and the question and the focus was well is that going to attract people to that use such that it's going to be an urban use. Well, here the question is if you reszone to allow 10 acre rural parcels, uh petition argues, well that's going to make people from that area come into the city for the hospitals, the libraries, Costco, and all that stuff. Well, they're going to do that irrespective of zoning because those are the uses that have to be in the city. They will never be in a rural area. Our hospitals are where the biggest concentration of people are. Our public libraries are where the biggest concentration. The major retails are where the biggest concentration. So, that issue really is hard to deal with in this context. But I think if you look at it, you you might agree with me that zoning doesn't matter. It's it's really just the location of those services that all people in the rural area have to use. Um so that's how we've addressed that and we think we're correct on it. And the last one, yes, >> if I could ask you quickly, the uh if I recall, the county's goal 14 findings kind of assume that this property will be developed with cluster or PUD development. Um does that and change the goal 14 analysis? Well, not really because it that decision and again it's timing. The decision came out before your your recent decision on cooper. So the county I agree that that analysis is not correct anymore. Uh I think the controlling law now is you can only have 10 acres. So it really simplifies the analysis. Um, and I don't believe the county board could approve right now any kind of cluster development in UA10 until unless and until they get a comp plan that reconciles this facial conflict that you all identified in Paku. >> It does seem that we're kind of out of sync with the county in terms of our decisions and and their legislative responses. Well, well, exactly. And we've got these quite judicial decisions that are coming up often now in in Dashes County that we're trying to balance that because until unless and until the the county does what you instructed on on Reand and Qual Farms, we're all in a little bit of a void. We don't really we, you know, we don't know exactly how this is going to play out. I think the county is going to do something. But for now, what I'm saying is rather than have a moratorum, there's a better way to deal with it. And the applicable law allows that because we can only go to 10 acres. on goal five. Uh this is another one that's kind of recent for us because your decision in destiny court I believe it was uh and then there was another one with the college of cascade or cascade academy or whatever said you can't rely on the 92 uh es e anymore and the program that the county uh uh developed because and I agree with this because the uses on the specific property in '92 are going to change. The county didn't have an opportunity then to evaluate the impact of the scenic corridor on all uses on property today um because they were doing it in 1999. Now having said that though we have responded to it all applicants have by preparing a sightsp specific analysis conflicting use analysis and I don't find a lot of dis there's a little disagreement because we didn't evaluate a helicopter pad or an airport. We tried to take a pragmatic approach. Um, this property is right next to the Bend airport or very close to it. Um, we didn't >> You've approached or you've reached your time. So, if you just take the next seconds. >> Okay. I'll take the next second. There is a regulation in place though that to to get to the main question I wrote down. There is a regulation already in place. MUA10 zones exist all over the scenic corridor. There's two of them right next to us. the the landscape management regulation already has a program for MUA10 uses. So we just identify the conflicts. There is a program and a and a system in place to evaluate how it's consistent with goal five. So thank you. >> Any follow-up questions? Okay. No further questions from the board. Thank you and thank you for wrapping up there. We will return to petitioner for your three minutes of rebuttal. Please go ahead. >> Yeah, thank you board chair Zimio. Um I would like to talk about the issue of the applicability of 3.3.1. Um I our our view of the issue is that just saying that there are no plans to create sub 10acre um parcels is not sufficient in this in this matter. 3.31 3.3.1 is applicable to this land use decision. Um, so we're not asking for some sort of moratorum on MUA zone. Uh, I mean, it's clearly still allowed within the Westside Trans Act and potentially within exception areas. Um, but we're just asking that quas quasi judicial papas comply with the applicable criteria of the comprehensive plan, which in this case is 3.3.1. Um I would also say that uh in intervenor respondents brief they talk they try to sort of draw a distinction between destiny court and the matter in front of you. Um in destiny court the applicant specifically withdrew the land division for the 14 lot PUD. Um and Luba still found uh that remand was appropriate to address um the alleged conflict with 3.3.1. Um turning to one moment. Um I think the significance of Poeku Farms is that the legislative amendments brought forth by Dashutes County for their comprehensive plan update um basically had specific policies that were designed to enable exactly what we have here which is clustered and plan developments being permissible on non-resource land. Um that that's the case at the moment. I don't we don't read um POKU as uh allowing the county to def defer to quasi judicial papas in the future. Um and so we do we do believe that uh there there is a significant conflict. Um and then finally as far as the goal five issue um near the end intervenor respondents uh sort of referenced that the MUA 10 zone has sighting standards in the LM zone, the landscape management overlay zone combining zone. Um addresses the EC uh EC concerns or the concerns about new and conflicting uses for a goal five resource. Um we believe that uh Lubis Holding and Last Ranch sort of disposed of that idea and is the one that introduced that these sight specific um ECS are necessary. Um and so yeah, I I would dispute that idea that the the landscape ma management zone and the MA10 zone sighting standards um protect the goal 5 resource necessarily. And uh with that, I'll rest. Thank you so much. >> Thank you for your argument. No further questions from the board. So that will conclude oral argument. The statutory due date for our decision in this appeal is June 8th. We'll ask the parties to agree in advance uh for an extension so that we issue our decision no later than June 29th. Is that okay with these parties? >> Fine with the intervenor. >> Thank you intervenor.