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Oral Argument 2025-077 Landwatch Lane County v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=a4VI90TCCzE). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral argument in land watch Lane County versus Lane County. Luba number 2025-077. I'm board chairio. Board members Wilson and Basham are also present. They're not present. They're present today. Please mute your audio when you're not speaking. Uh and I'm not aware of any pending motions in this appeal or part of anything to bring to our attention. >> None. But I've responded. >> Thank you. >> Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? And if so, how much? >> Three minutes, please. >> Right. I will keep track of time here, but ask that you also keep track of your own time. And just note that the clock that's on the screen is not keeping exact time. and uh intervenor you will have a total of 15 minutes for your response. So with that petitioner please state your name for the record and begin. >> Good morning Sean Malone on behalf of petitioner landwatch lane county. Uh here we have a sort of unique situation um a uh lane county processed application that is within the metro plan boundary but outside of the urban growth boundary and city limits. So we are sort of in a unique uh marginal lands type of situation that Luba has not seen before. Whenever Luba has seen a marginal lands case at least arising out of Lane County, it's always been fully within the county under the uh Lane County's rural comprehensive plan. Again, here we have this particular case arising under the uh cities of Springfield, Eugene, and Lane county's metropolitan plan. Uh with that turning to the first assignment of error uh regarding uh misconstruing or former OS97247 and inadequate findings. Um the issue here is sort of one of is sort of a logical conclusion. Um the language of former RS197247 repeatedly refers to a designation. Petitioner argued that that required a plan amendment to change the plan designation of marginal land. here as we pointed out the metropolitan the metrop plan does not contain a marginal lands designation. Um you know which is again uh sort of contrary to uh all other marginal lands cases that have arisen out of Lane County where the R the Lane County RCP real comprehensive plan has a marginal lands designation. Here we have the metro plan without a marginal lands designation. Uh so it sort of becomes an impossibility in petitioners's view to have a plan amendment uh that would change the plan designation as in every other case from either forest lands or agricultural to marginal lands. And the the conclusion of the hearings official sort of hinges on a sort of small uh issue and that is the inclusion of the phrase that I've emphasized only in in that concluding sentence that the HO concluded nothing in OS 197247 or the cases LWLC sites limits the term designate to only comprehensive plans. Now, if you argue that a plan amendment is necessary and you say it's not only limited to comprehensive plans, well, that begs the logical question of, well, what what is it then? The hearings official, as I pointed out in the in the briefing, sort of took a position, well, it could it could be this and it could be it could be plan amendment or it could be plan designation. And if the hearings official concludes that it's not only a plan designation and does not conclude that it's not that it's only a a zoning designation, then we still have uh an unresolved issue that is that a plan amendment may still be necessary. If for example the uh you know the interpretation the correct interpretation is that uh a designate refers both to a plan designation as well as a zoning designation. Typically I I I usually see uh designation is referred to plan designation. Here we even have it in the metro plan talking about uh you know a marginal lands um something becoming marginal lands within the metro plan. And we'll get to that in a second second assignment of error. But I think this one's very sort of plain on its face. Uh the hearings official left it open. That's why it's an adequate findings, you know, in the preservation section we point to. Uh those are all the arguments as to why designate is a uh plan amendment in our view. So I think that one's pretty straightforward inadequate findings. Uh the second sub assignment of error in there is that the marginal that state law or former RS 197247 uh does does not indicate or the hearings official's interpretation that it is remains a resource designation that is marginal lands remains a resource designation is inconsistent with the statute uh former RS197247. Um again every other case that you see here you have a you're going from a traditional resource designation in the form of forest or agriculture to marginal lands. Uh and so if if it if it is not a nonre if it is a resource designation then I suppose you could have an agricultural designation as as your um as your plan designation. But if marginal lands is nonresource then you can't have a agricultural designation or forest designation on the property. It would have to be just as it has been in every other case from Lane County. The the planet plan designation would have to change from uh agricultural or forest to marginal lands consistent with the change of the zone so like I said if if it is non-designation then it would be inconsistent with the metrop plan's designation of agricultural. Why what requires us to conclude that the marginal land designation can't be a zone that implements an agricultural comp plan designation? Why is marginal lands necessarily not a resource or incons inconsistent with a resource comp plan designation? Well, there's a variety of reasons and we cover them in the briefing there. And just to point out, the first thing is that, you know, the the type of smallcale single family dwellings on small lots uh are is not something that's allowed in agricultural zones uh or or these forest zones. And so it's that that's the first reason why it would be inconsistent. Um you know there is this marginal lands training book which again was never uh adopted by the board doesn't have any force and effect of law. Um >> there's certain there are types of dwellings that are allowed on forest and a land. So why does the allowance of dwellings and marginal lands make it so that marginal land zoning is not consistent with resource zoning? >> Sure. And so if I mean none of those are allowed outright is my understanding. Right. So you don't under the marginal land zone, you get you have outright allowed allowances for particular single family dwellings on particular sized lots or parcels. Um under the uh under the allowances for uh dwellings in uh statute for forest lands and agricultural lands. I'm not under I'm not under the understanding that there are outright allowed uh dwellings in the same nature or manner as in marginal lands. Those are all required, you know, additional processes are required whether it's like type two processes or or so forth. Um, you know, we also have >> your argument, I just want to make sure I understand your argument is that the marginal lands zone is inconsistent with the resource comp plan, metrop plan designation because the type of development that is allowed outright in a marginal land zone is inconsistent with agriculture and forest comp plan designation. >> Correct. I think you can't, you know, you know, I want to be honest here. I can't deny that the the marginal land zone also allows for some resource use, but it also allows for nonresource single family dwellings and that's been identified by Thousand Friends case that went to the that was before Luba. Uh it was an older case. We cite it in our brief where they refer to um hereto for resource lands as marginal lands. So lands that used to be resource lands are now marginal lands. uh we have DLCD's guidance which refers to these as non-resource lands. So um if marginal lands is a non-resource designation let's say zoning designation and then you have a plan designation of agricultural i.e or resource designation or forest forest. Uh then that would appear to be inconsistent under the Baker uh case that we've uh cited to. Um moving on to uh >> oh before you move on just um on your argument that marginal lands aren't resource lands. Why is marginal lands not sort of the flip side of high value farmland? Like they say okay it's farmland but it's really good farmland so we're have extra protections. how is marginal lands like yeah it's farmland but it's not really good farmland so we're gonna have less protections like basically low value farmland I understand what you're saying marginally productive uh farmland essentially and I the most straightforward way I can answer that question is to say it's not marginally agricultural land it's marginal land it's something else you know and so whether the existence of nonresource single family uses on marginally productive resource land renders that still resource or still not or non-resource. Uh petitioners come down on the side that that's nonresource. Um you know again we've cited to to a variety of things in there um including case law DLCD's guidance and so forth. Um so I think that it it it's an ambiguous issue. I have to concede. Um but we we think that the existence of something that is nonresource smallcale rural parcels renders that nonresource. Um and then you know second sub I'm I'm running out of time obviously. >> Thank you. >> Thank you. Um we'll just move on to the second assignment of error there. Inconsistency with the policies. I think this is a these arguments are are are are are pretty good in the sense that um the policies seem to assume that there would be a plan designation for marginal lands and they also seem to say okay marginal lands are agricultural lands and that's what the interpretation of the hearings official was by adopting that from the uh applicant's consult non-attorney consultant and essentially what that would do is render a you know automat atic provision for creation of a plan designation when there is no such plan designation in existence and the closest sort of um analog that I can find in the case law regarding that was this neighbors for livability case when there was the court of appeals said you can't have an automatic reversionary plan amendment that's not allowed that asserts the pop-up process that asserts legislative authority and I think that's the same thing here by saying oh well it doesn't matter that there's no plan designation marginal lands are agriculture lands. So, it seems like you need something else. Uh, one final point with regard to the third assignment of air. You know, there there's simply a a a a dismissive attitude towards towards the neighbors, the notion that they are not members of the public. Um, and u that's that's just simply wrong. And then to say that uh for example um the neighbor's testimony is not evidence uh about the public or the public interest and then concluding that the um non-estimony of all these other people uh is evidence in support of a public interest finding. Uh that's sort of just pure sophistry and it's difficult to to to swallow. Um issue of natural resources and it seems to be just missing the point. Um na the idea that natural resources could be projected under the public interest standard is not precluded by that standard. Um the conclusion that well you just look at what's in inventoried in the metro plan. Well that doesn't really pertain specifically to the public interest standard. Uh and I see I'm almost out of time. So I >> I have a quick question about the second assignment. Um, so if I understand your argument, you're saying that you can only have marginal lands uh with if you have a comp plan designation for marginal lands. And since the metrop plan doesn't have a comp plan designation for marginal lands, there's no way to have marginal lands, at least in this in the donut. Is that right? >> Correct. >> Okay. And so, but the metrop plan, it has these policies that talk about how you can be designated as marginal land. if if you're not allowed to have marginal lands at all, why do they have these policies that appear to allow for marginal lands in some manner? >> Yeah. And like like I said, uh I think there was an assumption there that maybe they would do a plan designation and they made these policies. Um and [clears throat] you know, it's I'm I'm not sure why they included these, but assuming they assuming they were intending to create some plan designation, they didn't do it. Maybe they, you know, again, like we pointed out, uh, this only applies to counties pretty clearly. Uh, the plan designation or the the OS97247 only refers to counties. And so there's pretty clear um, you know, evidence that you can't just automatically create a plan designation through a policy by simply saying marginal lands are agricultural lands. Uh, you have to actually do the work to do that. that is enact legislatively enact a plan designation that would be able to support that that papa. But here um that didn't occur and like we've said once these lands came into the metro plan the possibility of um having this occur you know a plan designation zoning zone change for margin lands became precluded. That's sort of our position on that. >> Okay. Thank you. See? Yeah. I see I'm out of time pretty much, so I'll >> We have 30 seconds for your rebuttal. So, >> I'll hold [laughter] on to that. Thank you. >> I want you to say after uh council close is gone. You'll have time to get one last word in. So, we'll uh turn now to uh intervenor respondent for your argument. And you're muted still. Uh >> Okay. Bill Close for the intervenor here. Um, I was curious, is there always a 30 second rebuttal period for folks? I I totally support that. Um, uh, so the first assignment of error, um, deals with the meaning of the statute and the second assignment of error deals with the meaning of the plan. Um I I guess I'd like to say I think the meat of this case is in the first assignment of error and not the second. But let me dispose of the second assignment of error initially because we finished the questioning on that point. Um the issue there is really what does the presence of these two policies saying anybody can go forth and get a marginal land designation in the um egg or u forest plan areas if you meet the standards. Um what does that say about the need for a u plan designation in the metrop plan that authorizes um marginal lands? I I I think applying our basic rules of construction um which would say those policies need to be given meaning and in order to give them meaning you need to jump to the second step which is well uh you don't really need a we don't really need a marginal lands plan designation the metrop plan um because marginal lands is a type of resource land and we have egg plan designations and we have forest plan designations. So if you meet the standards for a um a marginal lands zoning, then you can tuck in under one of those existing plan designations. So that's a way of saying there's just no need in the metrop plan to go forth to to to amend the plan uh to allow call out marginal lands before you can um go ask for um marginal lands designation. Um the first assignment error is a question of uh you know state law. What the heck does that um um statute mean? Uh when it says designated land as marginal land, [snorts] um that um the hearing [clears throat] official of course agreed with the applicant that designate can mean uh designate with a plan designation or designate with a zoning designation. It is not defined in the statute. Um and so let's go to the dictionary and uh the dictionary would support it uh saying meaning uh you can use your zoning uh regulations or your plan regulations to uh to the hard part of the statute. I mean the statute the the statute says it talks generally about designating um which is not very specific but it talks very particularly about what you need to do to get that um marginal lands medallion. you have to go meet very specific standards. So, um this is a situation where the legislation is general about uh what buckets a local government can use or what labels they can put on uh the process, but it's very specific about what standards have to be applied to qualify. And um uh that's that is the um interpretation of the statute we think is appropriate. I think the the threshold the most important question I think for the board is um does getting which is related to the point I just made does getting a marginal land designation require first getting a marginal um uh does marginal land getting marginal land zoning first require getting a marginal land um plan designation? And um uh and the answer to that really turns on how you characterize uh what marginal lands is. You know, if marginal lands is um akin to or a surrogate or you know another meaning for non-resource land as the petitioner argues then we're in trouble you know but it it it there's no read to read so um narrowly. the correct meaning to give marginal lands is that it's a um a lesser type or um you know poor cousin of you know better agricultural land. I I think the topology you know petitioner was saying well the problem with treating it as a resource land is it allows development. Well sure it allows development any resource land allows some development. There's really a hierarchy. Um if you um just taking agricultural land as an example, you've got high value farmland. You then got um non- highv value farmland. You've got marginal land. You've got committed lands. You've got non-resource land. As you know, you you go from the best land to the crummiest land. and as but but you can get development in any of those um in any of those um different categories. It's just a question of how much development and what standards you have to meet to um get some development and what the densities are and what the impacts on the surrounding property are. Um but some development is allowed in all of those different categories. I might have missed this in the brief, but I'm wondering is the term marginal lands defined in statue or is it defined in the metrop plan? Uh I I I think I think marginal land I'm not aware of a discreet definition of marginal end in the statute. I think it's uh defined in functional terms. >> Right. in the care and whether it satisfies the >> Exactly. That's right. That's right. And I I don't think it's defined in the metro plan either. Um I'm not I haven't revisited the Lane County Rural Comprehensive Plan recently, so I my my answer is allowed. I don't know. Um so I I guess that's really you my main point. um you know is marginal land a type of uh resource use or is it not? And I think if you agree that it is uh then it's easy to reach the conclusion that we that the the the thrust the crankshaft of petitioners argument that we can't get where we got to without uh having a plan designation. That means amending the metro plan to include a marginal lands plan designation and then um amending um uh the plan to allow this property to be redesated to marginal plan uh marginal land plan designation. um uh and and so I think that's the central question in this case and if we um if you can if you can get comfortable with the idea that marginal lands is a type of um resource land then I think that issue pretty much is put to bed. I think that is pretty much the major points I want to make unless there are any >> No questions from the board. Thank you for your argument and we will return to petitioner for a 30 second rebuttal. >> Thank you. Uh just to address the uh policies again uh I didn't quite fully answer it. You know marginal lands are marginal lands. They're not uh identified or defined as you know subprime or u marginal agricultural lands. Those statements in the pol policies just sort of mirror what's in the statute that that's why they're found under a and forest because that's what you have to go from first to get to marginal. Um and then beyond that they're they're analogous to our our lands rural residential lands. um that allow some sort of resource uses but they're not resource lands and uh that'll do it for my side. [clears throat] >> Thank you. Uh any further questions from the board? No. Okay, that will conclude oral argument. Uh thank you for your argument. The statutory due date for our decision in this appeal is February 25th. We'll ask that the parties agree to an extension so that we can issue our decision no later than March 4th. >> Of course. Good. Thank you.