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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.