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Oral Argument 2025-043 Cottrell Community Planning Organization v. Multnomah County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=p4S8QgYIb3M). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral argument in Catrell versus Multma County, Luba number 2025-043. I'm board chair Zamudia. Board members Wilson and Basham are also present. Um, thank you to the parties for being here and for muting when you're not speaking. I also want to thank the parties for coordinating the briefing on both sides. There was a lot of um the briefs are long in this appeal and so it was very nice to see that there was some coordination on both sides and we really appreciate that. I'm not aware of any pending matters in this appeal. Um is there anything the parties need to bring to our attention? Nothing from the parties. Okay. Uh we have uh multiple parties on both sides. For petitioners, you can share and intervene petitioners. You share your 15 minutes. Have you decided how you'll share your time? >> We have I will be covering the oral argument for the petitioners collectively. >> Thank you. And would you like to reserve any time for your rebuttal? I will try to reserve about 3 to four minutes. >> Okay. Uh I'll let you know when you're going into that, but I ask that you keep track of your own time as well. And a respondent and intervener respondent, have you decided how you'll share your time? >> Yes, we have. Um I will be speaking for about five minutes for respondent and then uh Portland Water Bureau will speak for the remaining 10. Um thank you. >> Thank you. And uh we'll also be keeping track of the overall time here, but leave it to you to figure out when to change over. And uh with that, I think we'll start. Petitioners attorney, please state your name for the record >> Thank you. Good morning, chairs and board members. My name is Carrie Richter. I'm at the law firm Baitman Sidell. I'm here today representing the petitioners Catrell Community Planning Organization at Multma County Rural Fire Protection District number 10. The singular criterion at issue in this demands a finding that the proposed community service use a regional water filter filtration facility and associated pipelines will not adversely affect natural resources. These are six words. Yet the criterion that the hearings officer applied in this case is not six words. Rather, she applied a standard that provides the proposed use will not adversely affect nearby natural resources as identified in the comprehensive plan policy 16 list that cannot otherwise be mitigated when considered on the whole, taking no particular individual resource into account over the life of the use. adding 33 additional clarifying and narrowing words when, as Luba is aware, Luba and the hearings officer cannot insert words that have been omitted, applying layer upon layer of constraint to the applicable criterion, the hearings officer changed it from one that prohibits adverse effects to one that allows unfettered harm so long as it is coupled with some effort at mitigation. This is not what the language of the standard says. Further, the context of the 1977 comprehensive plan places a thumb on the scale favoring natural resources over regional water filtration facilities which were never contemplated to occur. There is only one case where Luba has construed this exact standard. West Hills and Island Neighborhood Association versus Multma County where Luba has said that the ad the no adverse effect obligation is stated as an absolute and imposes a stringent standard. That's at page 18. West Hills establishes the methodology. It means no harm to any natural resource. No degradation, no loss, no negative difference ever. The flip side of this would be protection or preservation always. If the hearings officer cannot conclude that there will be no harm to the nature, quantity and quality of the resources throughout the life of the use, the standard is not satisfied and the use must be denied. Conducting the required adverse effects evaluation required comparing two different pictures that had to be supported by substantial evidence. first preconstruction and second post construction. In these cases, both pictures lack critical information necessary to determine actual harm. If Luba concludes that the picture is sufficiently clear, the harm is apparent. The first picture deals with preconstruction conditions. This is a fundamental predicate for determining adverse effect and demands an exacting evaluation of what existed before. Regarding riparian resources, the preconstruction picture was informed solely by third-party studies considering the full length of the miles long Johnson Creek, what Mr. Alsbury characterizes as an urban stream based on assessments in Gresham and Boring rather than the rural edge of Multma County that's at record 3750. No sight specific conditions, flow rates at discharge points, sediments or pollutant loads were evaluated. This lack of evaluation undercuts the water bureau's claims that preconstruction runoff is full of sediment pollutants or of a high temperature. and without any baseline assertions of a 70% reduction in sediment load or a 40% reduction in pollutants which is at record 3738 is unsubstantiated. Mr. Alsbur's information on amphibians comes from I naturalist a internet um service and surveys conducted by others downstream of the filtration plant. The water bureau claims that this constitutes a pre-development evaluation and yet there is no spite sightspecific identification of species their patterns or habitat conditions beyond endangered species and cut throat endangered excuse me endangered salmon and cut cutthroat trout and there's a general description at that turning slightly to include upland wildlife the water barrel faults opponents for not quote so undermining the water bureau's experts claims sufficient to show that a reasonable person would not rely on them. This response impermissibly shifts the burdens to opponents to test preconstruction runoff conditions or to inventory wildlife sufficient to challenge the habitat assessment assumptions when all those conditions have been destroyed. Precondition construction conditions haven't existed on this site since 2021 when farming ceased. That's at record 2285. It is the water bureau that failed to carry its burden to establish exactly what natural resource existed within the preconstruction picture. In summary, no reasonable person relying on nonsightspecific accounts to speculate about the character of the runoff or a generalized mitigation focused HEP procedure could accurately determine whether the regional water filtration facility, a 94 acre mega industrial complex would result in adverse effect. The preconstruction picture just lacks the adequate details. Turning now to the other side of the equation, the picture of post construction conditions. First off, this picture bears no resemblance to what existed before. It's entirely new, different, and marketkedly worse for natural resources. Nothing in the plain language of the standard contemplates an entirely different natural resources picture. Different habitat, different wildlife, all arriving sometime during the operation of the facility. This is not what an adverse effect demands analysis demands. This new picture shows 40 acres once open and available for wildlife use that will never again be available. It will be fenced. At least 125,000 cubic yards of soils farm soils will be lost for farm from farming forever. The remainder 47 acre area may include greater number of d of and diversity of trees that are 6 to 8 feet tall and 5 years old where the preconstruction trees were 80 to 100 ft tall and 15 to 85 years old. That's at record 4797. This is not about trees alone, but rather the wildlife habitat these trees provide. The best and only finding of the question of wildlife restoration uh provides and this is what is quoted in the findings and in the respondents brief that the newly planted trees will quote quickly provide a variety of functions for animals such as insects and song birds. Uh this finding is based on a a water bureau expert statement dealing with one lot on car one of the carpenter lane um uh reh rehabilitation lots and the claim is that songbird and insect restoration will happen within 1 to two years which is either at the date of opening or thereafter. This is most importantly not responsive to answer the critical fundamental questions of effect to the wildlife, including whether these new plantings will attract and restore habitat for large mammals, fish, birds, and frogs. Whether the remainder of the property beyond the carpenter lane lots will function as wildlife habitat rather than just a stand of trees. What assures the long-term retention of telephone poles or other man-made perch that the water bureau now claims for the first time will be suitable for birds of prey overall when these when I mean taken together when will these functions identified and projected through the wildlife habitat unit projection be restored the record doesn't say the Water Bureau's theory is that so long as the total wildlife habitat unit projection is met, there is no adverse effect. Under this theory, the wildlife habitat impact could be fully restored by covering the ground with garbage, attracting crows, and declaring this condition dedicated natural resource habitat and finding no adverse effect. This cannot be right. This cannot be what the county intended. The natural resources that cannot suffer adverse effect must be the same natural resources that existed before construction. Providing different natural resources just song birds and insects for example reveals actual harm. Regarding the timing, the plain language of the standard does not allow for any delayed compliance on what might be typical or common. Such an interpretation would allow a developer to delay the installation of a conditioned road improvement because the high cost of asphalt and the preference to wait until the price come down comes down. Such a condition would never be sufficient to show compliance with the standard. If the county intended to allow time for growth of mitigation planning plantings, it would have adopted landscape mitigation standards that like other jurisdictions have that provide as much. Multma County code uh 397515B does not provide this level of flexibility. Finally, I'd like to respond to the claim that not allowing for regrowth would prohibit the removal of any tree. This is akin to the no landfills ever argument that Luba summarily subject object rejected in West Hills. The county did not comply contemplate allowing a wide variety of community service uses and went so far as to specifically list regional facilities like hospitals or landfills. regional water filtration facility is not on that regional list. It's at app 285 of the catrell brief and as such it is not an otherwise typical and ordinary community service use as the water bureau claims. I think I'm about over I'm at about 12 minutes so I'd like to reserve my remaining three minutes for rebuttal. >> Okay. Questions from the board? Okay. You'll have three and a half minutes for your rebuttal and we'll turn to the county um for your argument. >> Thank you board members. For the record, this is June Bradley representing respondent Multma County. I'd like to begin by refocusing on the two primary interpretive issues before Luba. The meeting of MCC 39715B, which I will also refer to as the criterion, and the use of mitigation to meet that criterion. Then intervenor respondent Portland water bureau will address the evidentiary issues. Starting with the meaning of the criterion. There are two key terms natural resources and adversely affect. As to natural resources, the hearings officer correctly determined that the natural resources subject to the criterion are those listed under the natural resources policy policy 16 of the 1977 plan. With policy 16, the 1977 board specifically stated that the implementing code must require a finding prior to approval of a quasi judicial action that a discrete list of natural resources, the policy 16 list, will not be limited or impaired. In this way, the policy 16 list is explicitly tied to what is now the criterion, which was adopted by the same 1977 board on the same day. Even if the meaning of natural resources is as broad as petitioners argue, the hearings officer applied the criterion to each asserted resource and found that there will be no adverse effect. If Luba upholds those findings, Luba need not reach this issue. As to adversely affect, the meaning of that term is not before LUBA because no party assigned error to the hearings officer's interpretation. Under that interpretation, the test is whether there will be actual harm to a natural resource as a whole that is more than dimminimous. The test is not as petitioners now demand whether the nature, quantity or quality of a resource or its component parts will be changed. The hearings officer specifically rejected that test and petitioners do not challenge that finding. Nor does West Hills require the test that petitioners demand. the West Hills reference to consistency >> under hearing under the hearings officer's uh analysis and conclusions here. How fungeible is the idea of a natural resource? Is it if you can qualify something or characterize something as a natural resource and quantify harm or benefit as long as you can call the thing a natural resource? Any natural resources interchangeable? So the under the hearings officer's definition, we're looking at resource scale. So the resource itself, for example, wildlife habitat, not components of wildlife habitat. Um, and then not natural resources as an umbrella category. >> Okay. So when we're talking about wildlife habitat, could we replace uh a wetland with upland? And as long as it's habitat for some species and you can quantify the quality of the habitat, natural resource could allow that change. Correct. Because the the level of granularity is the resource itself. Um we're looking at the resource as a whole, not those component parts like a planned habitat. >> So the first step of natural resource is to categorize what the resource is. Water quality, air quality, wildlife habitat. And that's just the county's interpretation because there's nothing that helps us understand what natural resource is besides the list that you're referring to. >> Correct. The policy 16 list lists these specific resources. And so those are the things on which the hearings officer is required to make findings. And then once we have that category in the county's view, as long as the evidence supports that the changes don't adversely affect that category of natural resource, there's a lot of flexibility within what those changes can be as the county's position. >> That's correct. >> Thank you. >> Of course. >> Um, continuing, um, West Hills doesn't require consistency for MCC 3975B. The reference to consistency in West Hills is to sub A. Um whereas sub A requires consistency with the character of the area, the criterion only requires the natural resources will not be adversely affected. These are wholly different standards. Turning to mitigation in control one, Luba held that mitigation may be used to satisfy the criteria of MCC 397515 because MCC 397510 allows the county to attach conditions to the approval of a community service use in order to mitigate any adverse effect. Petitioners are procluded from re-raising the issue under the law of the case doctrine. Even if Luba's holding in control one does not apply specifically to MCC 397515B, the hearings officer correctly determined that the same reasoning does. To the extent the petitioners challenge the hearings officer's interpretation of what qualifies as sufficient mitigation, their focus is on the relative age of mitigation plantings for wildlife habitat. The hearings officer does the hearings officer correctly concluded that mitigation does not need to be like for like for example for a tree for for a tree and if it does even if it does a period of of growth for mitigation plantings is anticipated and not adverse. If there are no further questions from the board I will turn it over to Portland Water Bureau. >> Go ahead. Thank you. >> Thank you June. Uh and good morning board members. I'm Renee France, co-consel for the intervenor respondent Portland water bureau. I'm going to address the natural resource category of wildlife habitat a policy 16 natural resource. The following question must be answered affirmatively to conclude that the use will not adversely affect wildlife habitat. Is the overall wildlife habitat value provided by the post construction use equal to or higher than the overall wildlife habitat value of the preconstruction use across all project areas? The answer is yes. and the record overwhelmingly supports that conclusion. I'm going to pause here to provide a bit of a um response on the wetlands issue because I think one distinguishing factor with wetlands is that they are separately protected by state and federal law and were addressed as a separate category of natural resource for that reason. Um, so I think the the the wetland is a little bit different than talking about discrete functional value of upland habitat. >> If I understand that comment, your responding to my hypothetical question and your response is that even within wildlife habitat, you would need to look at what type of habitat is it? And this project is replacing upland habitat I think and riparian. And is there also aquatic or is it just upland? >> All three. >> Okay. Um so I think I understand that that's was your comment. Is that >> correct? >> Okay. And then on the petitioner opened the argument talking about there's no baseline for the Johnson Creek quality. Um what's your response to that? So my co-consel Zoe Powers will will speak next and can respond to that question. >> Thank you. >> Um so first and quickly in applying the overall interpretation uh considerations identified by the county to wildlife habitat while the phrasing shifts opposing council argues that specific habitat functions or levels for individual species or alternatively wildlife itself constitutes the natural resource under the criterion. But the hearings officer correctly rejected those interpretations, finding that the criterion does not favor one type of habitat over another, nor does it prioritize habitat for one species over another. Instead, compliance is measured by comparison of the overall wildlife habitat value. Opposing council never challenge those findings. More importantly, there is no support in the text, context or legislative history for those alternative interpretations opposing council relies upon through all other arguments. Um there can be no debate that on day one of facility operation, there will be extensive vegetation in place. Despite removing just 4.4 4 acres of vegetation during construction. On day one, 68 acres will be planted with over 3,418 native trees and 46,000 native shrubs. This is far from covering the ground with garbage as suggested by opposing council. There is however legal argument focused on vegetation growth, but maturity of vegetation is not the sole metric for overall wildlife habitat value. Testimony provided by water bureau experts explains why the size and location of dedicated habitat, volume, and diversity of plantings and non-vegetative enhancements are integral factors. The hearings officer correctly relied on this substantial evidence to conclude that the criterion will be met on day one of facility operation. The table in the watering bureau's response to the petition reinforces this point by citing evidence in the record that the integral factors are not just improved over pre-construction conditions, they are dramatically improved on day one. In other words, the project substantially overmitigates to account for a period of growth for newly planted vegetation. Opposing council's argument that the identified improvements are not sufficient hinge on the unsupported interpretation that the six words of the criterion require habitat replication or alternatively specific levels for specific species. They do not. I note that even if the board were to find that despite the extensive over mitigation and dedication of habitat area, the hearings officer's day in one finding is not supported by substantial evidence or accepts council's varied attempts to expand the interpretation of wildlife habitat, the criterion is still met. The hearings officer correctly found that a period of vegetation growth is expected and allowed for criterion compliance specifically here where extensive vegetation is planted prior to day one and maintained throughout the life of the use. With that I'm going to turn powers rather white on behalf of intervenor respondent for the water bure. I'll start with aquatic resources and respond to your question. So to begin, all parties agree that the project storm water systems are the only project aspect which has the potential to have an adverse effect on aquatic habitat. So given that narrow scope of potential sources of impacts, Biohabitat's methodology focused on the externalities of the project from that storm water system and an evaluation of the potential sources of aquatic habitat impairment such as flashy flows or sediment load in storm water runoff. So fundamentally opponents are arguing that there was no pre-construction habitat evaluation because biohabitats did not follow their preferred methodology which would have involved a three-year long quote aquatic habitat evaluation with regular snorkel surveys and sampling. However, the criterion does not require an aquatic habitat evaluation. It requires the evaluation of the proposed use. And Mr. Mr. Alsbury of Biohabitats provided a well-ressearched, comprehensive, and conservative baseline as part of his analysis. Opponents bemoaned, for example, his references to the so-called 24K study from ODFW. But Mr. Albury didn't just read the 24K study. He spent seven years as a district fish biologist for ODFW and was in charge of the collection of extensive biological and physical data on fish populations and their habitats in Johnson Creek. You don't need a person taking samples for three years to know that the pre-construction used here was producing problematic sediment and pollutant lane runoff into Johnson Creek. Additionally, biohabitats found and the quarters did not challenge that improving these sources of impairment will benefit all aquatic life in area aquatic habitats. That is, there was no separate evaluation needed for amphibians or invertebrate habitat because of that unchallenged finding and because of the focus on sources of impairment. an argument that an approval criterion requires a partic what you're saying and the evidence. So the analysis that the hearings officer relied upon that Portland Water Bureau provided is looking at potential impairment from the use itself which it would be producing could potentially be producing an adverse effect without reference to what the quality of Johnson Creek was prior to that activity. Is that accurate? >> I wouldn't say without reference to what the quality of Johnson Creek was. There are extensive findings about what species were present and what kind of quality that habitat had after being subjected to runoff from large agricultural areas in the upper area of Johnson Creeks. >> So there was existing evidence of the quality within Johnson Creek and what Portland Water Bureau analyzed was whether Portland Water Bureau's storm water outputs would add to that impairment. >> Right? would they adversely affect natural resources? And the answer is for all the sources of impairment other than temperature, there is no evidence that this will be worse for Johnson Creek than the preconstruction agricultural use. >> Okay. Thank you. >> And this gets to a fundamental methodology disagreement between the parties. The opponents say that you have to do three years of aquatic habitat snorkel surveys and samples. And our expert advised the hearings officer that that wasn't necessary for this project where it is situated where there's not onsite areas of Johnson Creek, but the only potential for impact is that that storm water runoff which has always run to Johnson Creek will continue to. An argument that an approval criterion requires a particular study method is one of interpretation of the code, but RFPD10's reply brief continues to provide no citation to the text, context, or legislative history or any other source of their asserted methodology requirement on uh I realize that >> we have about 45 seconds left. So, it's probably wrap-up time and I want to make sure do the board members have any questions for Portland Water Bureau or the county? >> No. Okay. Um with my remaining seconds want to say on agricultural soils there's a factual matter I want to correct um the quantity of agricultural soil removed the reply brief uses an opposition number derived from a pre-construction estimate but there's findings at record 365 particularly footnote 91 that explain that soil only needed to be removed from a portion of the site and so friend's arguments that this was only half of the removed soil just misunderstands the scope of that construction activity. Thank you. And uh that will be your time and we'll return to petitioner for three and a half minutes of rebuttal. Thank you. >> Thank you again Carrie Richter for the petitioners. Um, first I'd like to uh respond to the county's uh claim that only the policy 16 list controls um and this idea that it's this discrete little universe and if the wildlife habitat was forest, you can make it uh savannah and it's completely fine. that misconstr effect to natural resources contemplated by the code, plain language of the code. And I'd also like to point out the intent of the policy is to quote protect areas for their natural resource value. The all of the context supports this idea of protection protecting what's out there. Um this is at record 2681. um and act 287 from the 1977 plans. The benefits gained by the preservation of wildlife habitat range from aesthetic enhancement of the landscape and to improvement of community health. Natural resources is not just wildlife habitat, the trees for trees sake. It is the trees because they provide wildlife habitat that is enjoyable by the community that gets to see it. Not when it is a stack of trees planted inside of 95 acres that no one will ever get to see. If the mitigation was anticipated, then the code would have specified as much. uh almost none of uh there is nothing in the text or context that supports the water bureau's position on this point. The claim of dramatic improvement is supported by the removal of Catrell Pond that may well help fish. It may well cool downstream of the subject property, but it will have no impact on the birds of prey and the downy woodpecker and the frogs. It will have no effect, and there's no evidence to support that. In conclusion, this is a case where the hearings officer did not find what she did not look for. This required emasculating the adverse effect criterion beyond recognition and relying on preconstruction and postconstruction pictures that are so cloudy. They could not establish that the upland habitat and water dependent wildlife and its habitat and the public's access to that habitat will not be adversely affected by the proposed water filtration facility use. Given the water bureau's decision to commence construction before obtaining final land use approval, it is impossible to bring the preconstruction picture into greater focus. For this reason, petitioners respectfully request that the approval of these applications be reversed. Thank you very much. I'd be happy to answer any other questions you may have with my remaining time. >> No questions from the board. Thank you for your argument. That will conclude our oral argument for this appeal. Uh the statutory due date for our decision is December 30th. We'll ask the parties to agree to uh an extension so that we issue our decision no later than January 20th. Is that okay with these parties? >> Absolutely. >> Yes. >> Thank you. Heard yes from everyone. Thank you. Um have a good remainder of 2025 and be well. >> Thank you. You too. Bye >> bye.