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Oral Argument 2025-081
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=aNDwbwkVw3I). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Mhm. >> Mhm. >> Good morning. This is the time set for oral argument in Northwest American Indian Coalition versus Curry County Luba number 2025-081. I'm board chair Smudio. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking, which will help with our uh recording. I'm not aware of any pending motions. Do the parties have anything to bring to Nothing for me. Negative. Negative head shaking. Thank you. Oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? Um yes, I'll plan to reserve around 3 minutes. Okay. Um I'll keep track on my end, but ask that you also keep track yourself and just note that the clock that is on the screen is not keeping exact time. And intervener, you also have a total of 15 minutes and again, I'll ask that you keep track of your own time. So with that petitioner, please state your name for the record and begin. Good morning board members. My name is Kelsey Dunn. I'm an attorney at Crag Law Center in Portland, Oregon. I'm here representing petitioners Northwest American Indian Coalition, Oregon Shores Conservation Coalition, and Dr. Diane Hennessy Powell. I plan to begin with petitioners interpretation arguments in the first two assignments of error and we'll cover the rest of our time at the end. Petitioners first two assignments of error address the county's approval of the RV park in the marine activity zone and shoreline overlay zone respectively. The county conditionally approved the RV park in the marine activity zone as a water dependent use and in the shoreline overlay zone as a water related use. The crux of petitioners argument is that the county's interpretations of both water dependent and water related are contrary to and prohibited by the text of the code and state law and that because these interpretations form the basis of the county's approval of the RV park, petitioners position is that reversal would be appropriate. As a threshold matter for both assignments of error, petitioners argue that the county's interpretation of these provisions are not entitled to deference under ORS 197.829D because they implement or appear to implement the water dependent shorelands protections of goal 17 and its implementing regulations. Regardless, the interpretations are contrary to the plain text of the ordinance itself and are not owed With respect to the first assignment of error, the county's interpretation of water dependent cannot be squared with the text of the ordinance or the state law it implements. Both the ordinance and the state planning goals define water dependent as quote a use or activity which can be carried out only on, in, or adjacent to water areas because the use requires access to the water body for water-borne transportation, recreation, energy production, or source of water, end quote. It can also include non-water dependent uses that are in conjunction with and subordinate to a water-dependent use subject to several additional restrictions. So, I just want to pause there. That definition that you just quoted, where does that come from? That comes from the statewide planning goals um definitions in we provided a link to the uh document that contains all of those, the 2019 guidelines. Um that definition also has been frequently cited by Luba in cases that deal with this question of what a water-dependent or water-related or non-water dependent use is. Um and then that definition also that identical that definition is also in the Curry County zoning ordinance at Okay, so can you walk me through your argument that the county is not entitled to deference for their interpretation of their local code definition, why this is So, for the interpretative um question of whether the county is owed deference, Luba has previously looked to whether the code implements or appears to implement the statewide planning goals. And so, I'd point to Oregon Shores Conservation Coalition versus um Curry County, that 51 OR Luba 500 case um that looked to that language and found that where it appeared to be implementing the goal 17 definition of water-dependent, um the county was not owed deference to that for its interpretation of that provision. Um I would also point to White Fe Lane which which um pointed out that even where the county didn't specifically intend to implement state the state wide planning goals or other state law um but it appears to implement it then uh then the county or the county or the local government was not owed deference and here um petitioners point to places in the comprehensive plan where it's clear that the marine activity zone is intended to implement these shore land protections and that was um uncontested in the response from intervening respondents. Additionally, we point to just the fact that these definitions have exactly identical language which is different from in the case of White Fe Lane where in some of these other um situations where there were slight differences in the definitions, we don't even see that here. Is there um statutory or rule based direction on for DLCD to adopt the guidelines and what their import is in our interpretation of the guidelines? I am not aware um of that. I wouldn't be able to respond to that right now. Um but I think I would step back and just say that really for this question of deference the issue of whether what the issue of whether um the planning goals or the state law here is directly binding on the county isn't what petitioners are arguing or really what the relevant analysis is. This is just whether the county is owed deference on its um interpretation. It's just kind of that threshold question. Thank you. Um So I would then point to the goal 17 at regulation regulations which do include a few specific definitions of terms within that definition that help narrow in on what exactly a water dependent use is. Um it states that requires is defined to mean that quote either by their intrinsic nature or at the current level of technology the use cannot exist without water access. Access means quote physical contact with or use of the water and quote. And recreation means water access for fishing, swimming, boating, etc. where quote use of the water is an integral part of the activity and quote. In essence a water dependent use must by its intrinsic nature require physical contact with or use of water to exist. And in Oregon Shores versus Curry County Luva confirmed that the state regulations define recreation and access in a manner that establishes water dependent uses must require access to fit access to physical contact with or use of the water areas. In the challenged decision the county interpreted water dependent in a way that essentially erases all of that restrictive language. Specifically the county found that the RV park is water dependent because it directly supports water related tourism activities and amenities that themselves require access to the river but nothing that about how the RV park use itself does. The county also basically overrode the definitional criteria by interpreting that the rebuttable presumption in the definition of water related applies to the analysis of water dependence and that functional dependence was sufficient to rebut that presumption even though that term appears nowhere in the code or state regulations. The county's interpretation of water dependent uses is incompatible with the text of the local ordinance and state law because it evades those most restrictive limiting criteria including the requirement that the use can only be carried out on, in, or adjacent to water. Instead, under the county's reading, any use that could gain some advantage from being near water, or that purports to target water-based tourism, could be designated as outright water dependent. This goes to a key flaw in the county's interpretation, which is that it looks beyond the requested RV park use itself to consider other existing uses on the site. And by doing so, the county conflated water dependent uses with non-dependent and water-related uses, both of which apply to uses that themselves do not directly depend on water areas. If the county's interpretation is correct, then the non-water dependent use category and the water-related category would be meaningless. All uses that could be tangentially connected to water recreation could be approved as water dependent. The second assignment of error follows the same logic. The county's interpretation of water related cannot be squared with the context of the ordinance or the state law it implements. Both the ordinance and the state planning goals define water related in a an identical way as uses which are not directly dependent upon access to a water body, but which provide goods or services that are directly associated with water dependently and or waterway use, and which if not located adjacent to water would result in a public loss of quality in the goods or services offered. The definition also identifies several categories of uses that are presumed non-water related unless rebutted by a showing of necessity. The county interpreted water related essentially the same way it interpreted water dependent, finding that any use which supports river-based recreation or is aimed at serving water recreation tourists cannot be equivalently accommodated on an upland site, and therefore must be designated maybe designated as water related. However, the county's interpretation is incompatible with the text of the code and state law implements. Among other inconsistencies petitioners raised in the petition for review, the interpretation ignores the first clause of the definition that water-related uses do not directly depend on water access, but also fails to reconcile that it found that the use was water-dependent for purposes of the marine activity zone. It also ignores the requirement to show necessity in order to rebut the presumption that RV parks aren't water-related, instead interpreting that support or enhancement of water-based recreation is enough to overcome the presumption. And finally, it ignores that the goods or services relevant to the definition are those directly associated with the requested use, here the lodging services provided by the RV park, not services provided by other uses or amenities on the property. Under the county's interpretation, any use that is at all related to water-based amenities or branded for water recreational tourism could be water-related. As with the county's water-dependent interpretation, the county's interpretation of water-related vastly expands the uses that could qualify beyond what is expressly contemplated in the text of the ordinance and state law. So, overall, for the reasons that petitioners have stated in briefing and in argument, the county's interpretations of water-dependent and water-related are prohibited by the plain text of the ordinance and by the state law it implements. And because these interpretations form the basis of approval of the RV park in their respective zones, um petitioners would argue that reversal is appropriate. And and I understand your argument to be this RV park doesn't qualify as a water-dependent or water-related use. Is there any version of a water-dependent facility such as a marina or boat launching ramp facility that could include a component of an RV park as a component. Um so as petitioners were about to describe in the reply brief, that sort of reasoning, which I think comes up in the response brief, um sounds a lot more like a non-dependent non-water dependent use that maybe could be approved in conjunction with or subordinate to a water dependent use like a marina or a boat launch if it addressed and complied with those additional criteria for non-water dependent uses. Um Does that answer your question, sir? Okay. You're good enough. Thank you. No further questions from the board? Okay, thank you. We'll turn to intervener for your argument. Please state your name. Hey, good morning. Garrett West on behalf of the intervener. First of all, loving the new background where you're all sitting, so that's a lot of fun. For this, you know, I wanted to start with the deference issue and like the the definition that's in the guidelines that DLCD published. Um you know, maybe I'm making a silly argument. I had never heard of these definitions in the guidelines or or the handbook that petitioner kindly put in the in their brief. Um And so I felt I was just a bit confused with with where the the train of logic was going. Um and then I I tried to dig, you know, into whether these had been promulgated by DLCD at all. Um and I had I wasn't able to find them. Uh and so that was kind of like the first, I guess, gloss on where I was going in my brief of if they're not promulgated by DLCD, I can't find this definition holistically in statute, you know, this looks like it was promulgated by the county. Um and you know, I I said in my brief, you know, it kind of looks Frankenstein's. They grabbed something over here talking about some examples of water dependent use and they put that in their own definition. Um so it it just seemed to me that, you know, the county made uh a legislative promulgation with this definition uh trying to fill kind of a gap in state law. Um and it makes sense that this would be entitled to deference. Um you know, as to petitioner's point that, you know, this zoning is trying to implement state law. Yeah, I mean, the the zoning is trying to implement the goals. Uh a lots of zoning around the state are trying to implement the goals. But when we get like certain narrowing downs like this definition and how the local government's trying to go about making their policy, that's kind of where the nuance of the argument is, I guess, that uh they were the ones saying, "This is the definition we're going to use locally." Um and as to the the argument that um you know, the the county used the term, you know, functional dependence when they're engaging in this kind of interpretation of the code, I didn't really see a big gap between, you know, needs access and functional dependence. Um you know, throughout their findings they talk about need and the access and being close to the river, you know, repeatedly. Um and when I looked at functional dependence, I just interpreted it as, "Okay, guys, in real life, like is this actually go Does this need to be near the water?" Um and so that's that that was kind of the analysis that I interpreted the county was engaging in. Um when we're looking at the proposed use holistically, um not just are people going to be sleeping in, you know, these RVs nearby, but what's going to be going on here? Do they actually need to be near the water? Uh and that was the factual finding that the county made. They said, "Yeah, you know, not all RV parks are are going to meet this definition, but this one does because of uh just the the components of it that are that are being put in." Um you know, I cited that Shamrock case in one of my footnotes, um and I forgot to put it in the table of contents. So, my apologies on that. But, that Shamrock case kind of interpreted a similar set of circumstances in which it said, you know, not every you know, not every bridge is going to be water dependent. But, some bridges are. And I think the kind of same logic flows here. Mr. West, how do you respond to the petitioner's argument that if you can use this this interpretation that that pretty much any use could be related could be rendered water related by claiming it's marketed towards water recreation tourism. Is there any limiting principle on that? Well, yeah. I mean, you still have to there still has to be an attenuation to water. I think there's lots of uses that just would never fit in here. But, yeah, it's I think it comes down to the analysis, right? Are we doing a factual analysis about how are people going to engage with the water? Right? If if people are No one's going to go to Gold Beach, honestly, to just hang out in RV away from away from the water. Gold Beach's draw is the water. That's what people want to do there. It's like the big thing they've got. And so, I don't think it destroys the goal. Maybe that's the kind of the line of inquiry like, will this destroy the goal? The goal in my mind is we want to set this area aside so that the water is made use of. It's just not an afterthought. And that includes the recreation, right? That's specific in the goal. We want people to recreate with the water. And that's that's what this does. So, I hope that kind of answers your question about, you know, limits and what kind of analysis that we're hoping to engage in. Yeah, okay. Thank you. Under the county's theory, why couldn't a motel or hotel be water dependent use? I think it would be coming to the close being close to the water. I think it's more than just being close to the water, right? When we have the the boat launch, we want to have facilities for fishing. Like it needs to engage with the water more than just being like it's over there and we're close by. Um, so you know, just having a hotel there, that's not going to cut it. The hotel needs to have additional amenities to have that kind of engagement. And if I understand correctly, the boat launch here is concrete slab that you can launch a kayak on? Uh, that's my understanding. I haven't been down to it myself to give a better description than that. And is there a fishing pier or people just fish along the shore? Yeah, so what we have an embankment. It's a pre-existing embankment. It's kind of like a wall that's on the shore. So where you just basically it just drops off into the water. And so you know, it's not pretty, right? This is a used to be an industrial site, but this is right like the water is right there. So I could Why couldn't the uh tenants of a motel room just walk down to the water and and fish from the bank or launch their kayak from the bank? How's it different from this proposal? I mean, I mean they they they could go down and launch it. I mean if the facilities were provided there, right? So if it's just a hotel with nothing else, yeah, you're not going to meet the standard. But if you're getting a boat launch, if you're going to have areas for fishing, engaging with the water, I think that overcomes the test and really gets to the goals reasoning of hey, we want people to engage with the water and have water recreation. So, yeah, a motel with just a giant wall next to the water, that's definitely not not going to cut it. Um on the water related front, I think there's you know, an argument from petitioners that oh, well they said it was water dependent over here and over here they said it was water Um, you know, thinking back in my brief, I should have done a diagram where I considered water-related to be a big circle, and inside that circle you have water-dependent. So, if you're water-dependent, you're automatically water-related in my mind, but not vice versa. Um, and I, you know, the county had already made the determination that this is a water-dependent use. And yeah, they went out of their way and they said, "But, hey, let me tell you why it's water-related as as well." I didn't think they needed to do that, but they went ahead and did that. Uh, that's kind of how I was was interpreting their findings with that. Um, so, and then on the the trailer park issue, I I do want to, you know, just briefly touch on that. Um, there's not a categorical prohibition on having RVs in this area. The the the language in the code is much more nuanced than that. You know, and it talks about, you know, generally an RV park isn't going to satisfy the standard, uh, and things along that nature. And with the the county interpreting that as a rebuttable presumption, I think that makes sense. Um, you know, generally this isn't allowed, but if there's factual findings that show um, why it could be, then then that that meets the standard. Um, so, hopefully I've conveyed like the holistic uh, understanding of kind of what the the proposed use is uh, for the site. Uh, if you have any questions, I'd be happy to answer them, but otherwise Thank you for your argument. No questions for intervener from the board. We will return to petitioner uh, for Thank you. Um, so, to start first again with the deference question, um, we do think that in the petition for review we've articulated the correct analysis that something that appears to implement um, state law that does implement or appears to implement state law um isn't owed deference, but I would also just um flag again that we also make the argument that the county's um interpretation is just inconsistent with the text of that definition itself. I think that's why the analysis in the um petition for review just sort of get collapsed in that way because a lot of the same textual arguments apply under both um standards and we also do uh make that argument in the that that this uh interpretation is just impossible under the scoring standard, so I would point the board to that point um and then second on this issue of is this a categorical exclusion? What What are these definitions really trying to do? Do they set up um kind of this case-by-case analysis or is it about categorical exclusions? Um we would argue that both the water-dependent and water-related definitions do identify categories of uses that generally aren't going to meet those standards. The Goal 17 regulations at OAR um 3740 do actually say at 6C that there are uses such as hotels, motels that just aren't going to be um water-dependent. And then in the water-related definition, it also sets up this these categories of uses that generally aren't going to be presumed um water-related uses. So, we think it is kind of appropriate to look at it at the use level and at the sort of categorical level as petitioners have outlined outlined in their briefing. And finally on sort of what the scope of um review scope of analysis in terms of uses on the site would be we would ask LUBA to look really closely specifically at the RV park use itself. That is how the water-dependent and water-related um definite criteria set up this analysis. They are looking at the proposed use, not sort of all of the uses on the site taken together. Um and I would point to Oregon Shores versus Curry County again, where Luba was asked to review a decision um approving a large project that involved many uses across multiple phases and see if it met the ratio test. And to do that, uh Luba had to look at each use requested use on the site and see if and determine whether it was actually water dependent or non-water dependent, even though it was in one proposal. So, when we're looking at these designations, the appropriate um level of analysis is each use itself, not sort of this like general overall picture. If we were to sustain the first or second or first and second assignments of error, what does that mean for the remainder of your assignments of error? Do those need to be decided or would those um go away? Those would not need to be decided. Those are in there for if Luba um finds it more appropriate to remand this decision, um those are other inconsistencies, conclusory statements, issues of inadequate findings that would be um appropriately covered in the scope of a remand, but if the first two are sustained, I don't I don't know that they would have to be um decided, but we would ask we petitioners would request that if the board does go in the direction of remand, they would consider um consider those. Okay, and then in terms of the requested relief of remand versus reversal, what is your argument for reversal? The argument for reversal here is that um if under the correct interpretation of water dependent and water related um and the undisputed facts in the record, which again petitioners haven't really disputed, that evidentiary issue, um petitioners' argument or position is that the RV park couldn't be um approved, couldn't meet the approval criteria that is outlined in the the first sections of both the first and second assignments of error, and I would point to the McKay case it from 1992. Okay. Thank you. Any other questions? No. Okay. Uh that will conclude oral argument. The statutory due date for our decision in this appeal is May 5th. We'll ask the parties to agree to a 21-day extension so that we issue our opinion by May 26th. Is that okay with these parties? Yes. Yes. Thank you. Uh have a good remainder of your day. Thank you.