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Oral Argument 2025-034 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=lkGiS6t0Ods). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral art in central Oregon land watch versus shoots county luba number 2025-034. I'm board chairs moodio. Board members Wilson and Basham are also present. Please mute mute your audio when you're not speaking which will uh limit background noise for us and uh we do not see intervenor on video. So if you're intending to join us video wonderful we can see you now. I'm not aware of any pending motions. Is there anything the parties need to bring to our attention? Nope. Nothing from either party. Okay. Petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Yes, I'd like to reserve those those minutes for rebuttal. Thank you. >> Five minutes. >> Yes. Uhhuh. >> Okay, great. Uh I'll watch the clock here, but ask that you keep track of your own time. And the clock on the screen is just for general purposes is not keeping track of uh your time specifically. So with that, uh please state your name for the record and begin. Petitioner. >> My name is Carol McBth and I'm a staff attorney for petitioner Central Oregon Lamb Watch. I'd like to begin by reiterating our uh denial of allegations of waiver and then move on to two further points from our petition for review. We deny the allegations of waiver presented. We believe that we gave fair notice as required by bolt for for the the lack of compliance with goal three and goal five and goal 14 beginning in April of 2023. Bolt requires no more than fair notice to the developer or the respondent and we provided that to them. Bolt also provides that we need not have made the exact same arguments below that we present here. And following up on Bolt, this board said in Tieleook Public Utility Commission that we need not have named the same exact regulation below that we're arguing here as long as we have the material substance of what we're arguing is clear uh about what regulation we're referring to. So we we did preserve all of our arguments under Bolt, which is the interpretation of OS197.7971, the the preservation standard here. We'd also point out that while we were consistently making our arguments that there's no no goal three, no goal five, and no goal 14 compliance here, developer's position was a moving target beginning in April of 2023 when developer advanced a theory that goal 5 did not have anything to do with this case and Lwatch responded to that. In July of 2024, there was another theory from developer about goal 5 and LWatch responded to that. In August of 2024, there was another theory of Gulf 5 compliance from the developer and for a third time language responded to that and then the county has now advanced in its decision and its cursory goal five findings is advanced yet another theory and we have responded to that. So we've tried to keep up with what developers latest theory about go five was in doing so we have preserved and certainly given fair notice on all three of the goals and we deny all allegations of waiver. My first point is about the adequacy of the county's findings for goal 14. This is another goal in which they only devoted a half a page or so to their findings. In order to be adequate, as you know, they needed to have factual references to the record and they needed to have the legal reasoning that they applied to those facts to come to their conclusion. but they don't mention facts and they don't mention their legal reasoning which leaves this board with no option but to either reverse or a remand because there's nothing there that's adequate for review under RS197.835 835. If there were such facts or reasoning in the record, then that might be relied upon. But the record also lacks that information. So there isn't any other option. And pursuant to West Coast Media, when the court of appeals reiterated this board's own determination about its authority for review, West Coast Media holds that this board has to review the decision that is presented to it, not one that could have or should have been presented to it. In that case, uh, the appellant was asking this board to rewrite a decision below and review that instead of the decision that was presented. And you said that your review authority did not permit you to do that. And the court of appeals upheld your your reasoning, saying that's true, that your your uh review authority will not allow you to make up findings that the county didn't have. The counties seems to be relying on a law of the case theory. But the law of the case doctrine transcends Oregon's boundaries and not in Oregon or any other common law country. The law of the case doctrine does not extend to cases outside this case. This case is on its original decision. There is no law of the case. So if that's what the county was trying to do when they referred to some other case, presumably that other case did have facts, did have legal reasoning and this board might have affirmed that. But in the absence of facts, in the absence of legal reasoning, as we have here, pursuing to West Coast Media, there isn't anything for this board to review, can only reverse or remand or it will be forced to make up findings that the county could have or should have made but did not. And I will move on now to our final point, which is we specifically request, as we did in our petition for review, that this board apply the Court of Appeals decision in Noral. In in Noral, the court of appeals explained that we as as appearing in the local proceeding, we had the right to a full and fair process and the right to prevail below. And we had the right to have arguments that we raised in detail be fully addressed by the decision maker below. But we did raise the argument that goal 14 compliance must be shown in the present. And we explained the 40-year-old presidents from Lewick and from Jackson County. And we asked the county to take those and see those as binding presidents and find that or 197.1752A requires the county to show compliance with the goals in the present every time it amends its plan. Every time a city or county amends or adopts a plan, they have to show compliance not referring to some other event. And the court of appeals made that very clear in Lewig, Jackson County, and now in DLCD versus Clackmus County last year. But when we raised that to the county, they just didn't look at it at all. Pursuant to Norll, that was unfair to us. It makes us come here. We're spending our donors money to come before you. The taxpayers are spending their money making you make a decision that the county should have made. If the county had taken the time to address this issue, we believe we would have prevailed before because there isn't any way for the county or the developer to show compliance with goal 14 in the present. it it won't be able to meet the Schaefer factors. There won't be a possibility of showing an exception to goal 14. That's our belief. But we were denied that opportunity because once Lewig in Jackson County are applied, they have to show compliance now by applying the Schaefer factors that Schaefer and its progyny have said are required every time that an industrial use is proposed outside of a UGB. That has been your consistent position, but they didn't do it here. again appearing to rely on some law of the case that wouldn't apply because this is the original decision and from there I'll reserve my um my time for rebuttal. I'd be happy to of course answer any questions that you all may have. >> I did have a question about the goal five first assignment of error. Did this county adopt the easy analysis that the innovator submitted as >> I don't think they didn't say that they adopted it. They they referred to it but they didn't incorporate it as part of their decision. They said we agree with what they said and they might have adopted it into the decision but they didn't. They it's in the record but it's not part of their decision itself if that's what you mean sir. Um on the the Gulf 14 issue, uh Intervenor cites the the Asetti cases and say that those are pretty much on point saying that don't have to to get into those issues. Um and didn't have to do the Schaffefer factors. Um why is that wrong? >> Um thank you for that question. Yeah, I was there in the Asetti cases and the Asetti cases um they they were required to show the Schaefer factors but they weren't able to and that that issue was pushed to the side when instead there was reliance on a past amendment and we're saying that uh unfortunately we didn't know that that argument was coming. We didn't know that that would be predominant and we didn't cite either Lwig or Jackson County to lube at that time and we've never seen a a decision maker reconcile Lewig, Jackson County and DLCD versus Clakamus County with the decision in a SETI. We don't think that those things can be reconciled um and they certainly they didn't even address it here but um because because it's required to be shown in the present and a SETI requires going back into the past to a former acknowledgement and and a SETI is sort of this case is sort of a poster child for why we think that in general a county should not rely on the a zone being in compliance with the goal in order to say that this plan amendment is in compliance with the goal Because beginning when when the very first when the the RA zone was invented, it was invented because there were grandfathered areas of industrial use and in order to do something with them, they invented the RAR zone. But the RAI zone was limited by the plan to just those four places. So the the RARI zone and the RARI plan were all were both in com they're in said the same thing. They all complied to those four areas. So, just like the EFU zone, when a county talks about the EFU zone, they can either be talking about the zoned lands or the zone itself because they're co-terminates. And that's how it used to be with the rural industrial zone. It used to mean rural industrial rural industrial zoned lands because the only lands were those four industrialized areas. And that was the same as where that zone applied. But then several years ago, the amendment moved forward to the plan moved forward and now instead of 0.00 01% of the county being regulated by the RAR zone. 100% of the county, all 2 million acres are available. So, the plan has moved forward in what it allows, but the rural industrial zone has stay stayed back here. Its goal 14 compliance hasn't occurred since there was only four areas that it applied to. So, by by saying, oh, well, the goal 14 the zone complies with goal 14 that it's not they're not in the same place. It's not as though these were co-terminus. that the compliance with goal 14 shown for the zone is out of step with what is required here because these lands, this type of land was never shown to be in compliance for the zone. That wasn't contemplated at the time because again the zone was created only for four industrialized areas. Nothing prevented the county from expanding it. But when >> you're entering into your rebuttal time, you're welcome to continue. >> They were just saying they left the RAR zone and the plan out of sync. So that not only this is the poster child for it and we think that intervenor is is advancing a similar theory here that goal five that that the landscape management zones compliance with goal five somehow means that this plan amendment complies with goal five but resorting to what a zone does is is not acceptable because the zone may have been found to be in compliance for completely different reasons than are needed to show plan amendment compliance if that makes sense. And I'd be happy to answer any follow-up questions on that. >> Okay. No, thank you for answering that. appreciate that. >> Okay. And you'll just have a little over four minutes for your rebuttal. No further questions from the board. >> We will return or we will turn to intervenor for their argument. Uh please state your name for the record. >> Good morning chairs and board members. My name is Carrie Richter. I'm a lawyer at the firm Baitman Sidell and I represent intervenor respondent and the applicant below last ranch LLC regarding the first assignment of air and preservation and just preservation generally. Um the petitioner talked a lot about bold. Um, I think that misrepresents the petitioner's obligation when it comes to to making a presentation at Luba in Rosewood Neighborhood Association and more recently in the Central Oregon Land Watch case known as Markin. Luba reaffirmed that a petitioner has an affirmative obligation to establish a preservation of error in the petition for review. Waiting until filing a reply brief or saying that all the issues were raised in bolded oral argument is prejuditial to the parties. The pages referenced in the preservation portion of the first assignment of error are directed to the EC analysis. Um petitioner does not challenge the EC analysis in this appeal. In addition, the pages referenced in the reply brief do not establish the issues that are now of concern. Um, there is no discussion of excessive interference being an independent standard. There's no discussion of uh comprehensive plan policies that talk about public need. Um, petitioner claims ignorance of the interpretation that the county would adopt. talking today about how the county change or the applicant changed its position along the way. Um the approach to goal 5 that the county ultimately adopted was outlined in detail by me in a letter dated August 18th in the record at page 326 as well as in a lengthy submittal by Adam Smith starting at page 380. That was part of the initial open record period after the public hearing. Petitioner submitted a written rebuttal on September 4th. So two weeks after that, 3 weeks after that, petitioner submitted a written rebuttal at record 26 or 260, excuse me. And um and nowhere in that rebuttal do they challenge the new uses approach that the county ultimately adopted. Um, as for the merits of petitioner's first assignment of error, petitioner didn't raise that today, but I'd like to point out something that I think is really important. Um, Luba's decision in Landwatch versus Dish County LBNW LLC, which is where this goal five issue came up before in 2023. Luba rejected the goal five analysis uh because the propo the because there was nothing in the record to indicate that the previous EC analysis considered the use that was proposed and that was from root versus clackamus or clamoth county. So um that in other words in 1992 when the landscape management overlay was proposed there was nothing to show that rural industrial uses were considered. What the county did in this case was they produced the information in the record to show that there were RI zoned areas in 1992 when the LM zone was created. So there was no new there is no new use introduced at this time. What is also important about the 1992 materials is that there is um that the focus is not on use. It's not about whether it's a rubber factory or a plastics plant. It's not about that. It's about sighting and design. And what the >> a couple of questions about what the decision says about the Gulf 5 issue. Did the county adopt the intervener's EC analysis into its findings? >> They say they agree with it. >> They agree with it, but they don't adopt it as its own. Did they find that they needed to do an EC analysis or did they find they didn't need to do anything? >> They found they did not they found they did not need to do an EC analysis because there were no new uses introduced because the new uses were considered in 1992. And so does the decision rely on the LM overlay as resolving the goal five issue? >> They do. >> What where's the record citation for that? >> Uh 57. >> Thank you. >> Oh, I have a quick question about the EC analysis. Also, um like the decision the findings to say the board further finds that because the proposal would not introduce new conflicting uses, a sightspecific EC analysis is not required. But under like the uh the actual ordinance it says uh the board also incorporates in its findings in support of this decision among other things the sight specific EC analysis attached as exhibit H. So is how do how do how do we reconcile that if if it comes down to whether or not that the board adopt is relying on the EC analysis. What's the answer to that? >> I think that the fact that the board uh acknowledged and agreed with the EC suggests that it adopted the EC in the alternative. So where do where I know it says the board agrees with the applicant that they will not introduce new uses that would conflict. Is that the same thing as agreeing with the EC analysis >> in the alternative? I'm reading at the bottom of page 57. The applicant submitted an easy analysis to anal to analysis to evaluate which uses in the proposed RAIU should be allowed, which uses should be allowed with restrictions and which uses should not be allowed. The board agrees that the applicant that the RA zone will not introduce new uses that would conflict. Consequently, the board finds the comprehensive plan amendment complies with goal 5. I mean, I think it I mean they t make findings about the acknowledgement of the EC. I believe that that establishes that the EC was adopted by reference. >> Okay. Thank you. >> Um I want to quickly point in in my remaining couple minutes, I want to point to um one of the things petitioner says is that the design standards don't apply to RARI zones. That is patently untrue. Uh the shoots county code 18.84.080 080 talks about preserving ex existing tree and shrub cover and that applies to all uses in all uses within the landscape management overlay. All structures have to be finished muted have to be finished with muted earth tones. Um and the planning director hearing body may require screening uh to assure a and a substantial exterior alteration to assure compatibility. This suggests that even the rubber plant will be compatible with the scenic values of the LM overlay. Um, in my remaining time, I'd like to talk a little bit about goal 14 since that's where petitioners spent most of their time. Um, in Lewig versus Jackson County, the court said that goal compliance cannot be achieved by measuring a plan amendment against the acknowledged plan. here. There is no evaluation of whether the proposed rural industrial zone complies with the plan. We're ne we didn't the county didn't measure it up against the plan. Rather, the county applied the zone that everyone has determined on multiple occasions by Luba and the court of appeals complies with goal 14. There was no need for more ink to be spilled about this. I mean, I don't have to tell you, Chair Zamoodio, that you've talked about this. The Lwig and Jackson counties decisions talk about inconsistencies created by only applying the plan, but there is no inconsistency created in this case because the RI zone authorized uses will not be urban. They are limited by size. 7500 square ft on-site well and um well on-site septic and wellwater connections. These are all determinations that Luba made in the Aseti 5 case. Uh the court of appeals affirmed Luba did it again in LBNW. There is no reason for the county to make additional findings. And if there's dispute about that, more recently in the uh central Oregon Land Watch Destiny court case, um Louva talked about the relationship between Lewig and Jackson County, pointing out there may be situations where conducting the Curry County Schaffefer obligations would be entirely redundant. So if the county had done had done Curry County Schaefer, the the the findings would have been yes, we're limiting the footprint to 7500 square feet um to achieve rural proportions. There are no urban extensions of facilities. It would make no sense to demand ex expansive findings on this question when this has been determined multiple times. There's no reason to revisit it. The petitioner is is just I mean it's denial is the best I can I can I can figure. So um goal 14 is satisfied uh not because of the acknowledgment but because this analysis has been done and the courts have Uh in my remaining time I'll talk quickly about the third and fourth assignments of air. Um, I want to point out that all of the facts that petitioner relies on about past farming use, none of the past evidence of past farming use indicates that it was done for profit. And in Markin, Louva held that photographs showing grass growing on property is not conclusive evidence that the property is suitable for farm use. Given that the definition of farm use includes farm activities undertaken for the purpose of obtaining a profit, there's no evidence in anything the petitioner relies on that suggests anybody was it was in an effort of making a profit. And all of the evidence from farmers and neighbors today was that they could not farm it for profit. The evidence is also that the poor soil conditions, the shallow soil depth on rocky on on volcanic rocks makes the land unsuitable for farming even if it was irrigated. This was determined by a soils expert, the only party who conducted on-site bore testing of the conditions. The property is completely cut off from neighboring farms uh with Highway 97 to the west and south and double railroad tracks to the east. This is all evidence that a reasonable person could rely on in supporting a finding that this property is unsuitable. Uh in conclusion, the petitioner has not established any heir and the county's decision should be affirmed. I'm happy No further questions from the board. Thank you for your argument. We will return to petitioner for rebuttal. You will have four minutes for rebuttal. Petitioner. >> Thank you. I'd like to begin by saying that um in the decision from the county, they said that an EC analysis is not required. They also said that if there was any contradiction between the um the decision of the hearings officer or the board that the board would control. And so we were under the they didn't adopt the EC analysis and they said one is not required and we interpreted that to mean reasonably that there there is no EC analysis on the table here. So we didn't address it. Had we thought that it would be we would have addressed it. So if the county meant to include the EC analysis and they should have told us because we can't be expected to come before Luba when they specifically say it's not required then how would we be alerted that we needed to argue about that EC analysis to the board on on appeal. I would like to follow up on um what we believe is intervenor's mistaken interpretation of the EC analysis process. Intervenor and the county appear to be to the extent that they are addressing goal 5. They appear to be looking at this EC analysis as though we were talking about an ephemeral resource like an eagle's nest. As you know the goal five resources can vary significantly and eagle's nests move around. beaver dams move around and so an EC analysis has to be conducted on the spot. If there's a house that's going to be built or an airport in a recent case is going to be built near a new golden eagle's nest. Well, that's going to require sort of an easy analysis on the fly. That's not what's required here. Here, the goal five resource was identified in November of 1992. The conflicting uses were identified in 1992. There's an acknowledged program to achieve goal five for a fixed resource with a fixed program. And as we explained beginning on record of 1073 where we were trying for I believe it was the third theory but I'm not sure where we were trying to explain that the conflicting uses have already been identified and that there already is all you know ordinance 52 and ordinance 33 from the past 92.033 those already have happened and that this has to fit into that. It's not a case where you just start off and start doing an EC analysis is what they seem to be arguing now. Although again, there was no EC analysis in this case. The landscape management zone is much less protective than the plan requires. And if there's going to be a conflict between the plan and the zone, the plan requires vegetative cover. It requires scenic view from the road. The landscape management zone doesn't do that. that all of the the vegetation on the site could be raised and people could buy trees from Home Depot and put them up and that would still sub that would still satisfy the landscape management zone but not the plan requirements in at at policy 4 as we explained in our petition for review. It is not as protective and it isn't a substitute with respect to goal 14. Um again, the intervenor is going to the law of the case from other cases which presumably had facts and had legal reasoning in the county's decision that this board could affirm. Moreover, on although we said this in our petition for review, Intervenor apparently didn't follow what we said. The court of appeals has never accepted this reasoning. They have never shown reconciliation between Lwick and um DLCD versus Clakamus County or Jackson County and the Asetti line of decisions. No decision-making authority, woe is us, has ever done so. Luba hasn't done so and neither has the court of appeals. We would love to get just one, you know, forum, the county or Luba or the court of appeals to do so. the court of appeals, you know, against our strong that it it can't be reconciled with those. And um with that, I will um be happy to answer any remaining questions No further questions from the board. Thank you. That will conclude oral argument. The statutory due date for our decision in this appeal is September 12th. Uh we'll ask the parties agree to a 21-day extension so that we issue the opinion no later than October 3rd. >> Alex has no objection. >> Intervener.