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Oral Argument 2024-088 Hutto et al v. Jackson County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=sXrPIfIke_s). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Hi, good morning. This is the time set for oral argument in luba number 2024-088. Hutto or Huto versus Jackson County. Uh, yes. My name is Mark Hutto. I'm the lead petitioner here. Thank you. Thanks for being here. Um I just for your familiarity, this may be your first time at LUBA. Luba um our oral argument has a total of 30 minutes and as petitioner you'll have 15 minutes to present oral argument based on the material that's in your brief and you can reserve up to five minutes for rebuttal to respond to the county's argument. Would you like to reserve any time? Um yes to to respond. Yes. Yeah. So up to five minutes. How much would you like to? Um, I'll take up to the five minutes to respond. I may not use it all. Is that appropriate? Yep, that's fine. And you can choose less if you prefer. Um, so I'll keep track of time and the clock that's on the screen is not keeping an exact time. It's just there for reference. Okay. So, petitioner will go first. The county will have an opportunity to give their argument and then you'll have an opportunity to give rebuttal, which will be your final um part of the oral argument. and then we will close the oral argument and talk about when our final decision is due. So preliminary is I'm board chair Zimodio uh here today also or board members Wilson and Basham and if you could mute mute your audio when you're not speaking that will help with uh our audio quality and streaming. Um this oral argument is also recorded and streamed um live on YouTube and I'm not aware of any pending motions. I know there's been um some pre briefing motions and pleadings in this appeal. Is there anything that you need to bring to our attention or the parties need to bring to our attention that's pending? I did file an affidavit of some recent discoveries about the type one force labor camp permit. Do you have a copy of that? Um the conversation I had with the ODF, two different employees. Yeah. and and if that's accompanied with a motion, we will resolve all of that um in the final decision. Thank you. Anything from the county as a preliminary matter? No. Okay. Um so like I said, oral arguments total of 30 minutes. Petition will start and has reserved 5 minutes for rebuttal. I'll watch the clock here and I'll let you know when you are closing in on your 10 minutes, but ask that you also keep track of your own time. And uh with that, you could state your name for the record and begin. Okay, my name is Mark Hutau and I'm a lead petitioner in the luba case 2024-088. And I'll just start off with the assignments of error. That seems to be the the route to go. So the first assignment of error is the uh arbitrary expiration date. Um it's not authorized by statute. So we were kind of blindsided by it. There's no law that I found within Jackson County that gives an expiration date. Um, and if you look at the Jackson County charter, uh, sections five and sections 8, uh, sections five get all give all the legislative power to the county. Uh, sections 8, uh, kind of double down on that. If you're not mentioned in the charter to have such discretion as this, then you don't have it. Now, uh, there are counties that do, such as Lane County. they have their planning department has this type of discretion, but Jackson County Charter Section 8 clearly does not give that to them. Um, and then section 14, it looks like they double down on it. Issues can only deal with one topic, so you can't claim, well, they we interpret this to mean that it's it was never dealt with. The the um the public was very clear about it. But there's other problems besides that with this expiration date. It essentially gave a 45day window to log uh for a new person like me who has no experience and wants to sustainably log his land. Uh G gave a 45day window to log 60,000 board feet in the middle of the winter. U which is virtually impossible. Um and it's a constructive denial is is what I'm arguing there. uh ministerial permits, they're supposed to be based on clear and objective standards is what I found looking at the laws. You're not supposed to get into it and then all of a sudden there's these other things that keep popping up and you know we see signs of subjectivity where they're asking is there anything else. It's like to my understanding it was a check the box experience. I'm supposed to check these boxes and if I'm in compliance if the land qualifies was my understanding then we're supposed to be able to get the permit. But then recently, you know, I went in for this year's heavy equip. It's not the heavy equipment notification and is what I'm talking about now. And we're talking about the force labor camp permit when we're talking about permits now. So, I went in to get my um uh heavy equipment notification for for this year. And as I said in the affidavit, the lady was very surprised that there was any such permit in Jackson County. So, I called my ODF contact contact Kyle Ripberger Ripenburgger and uh he told me, "No, there's nobody in Jackson County that has this type of permit. They're not required to get it in Jackson County." And I said, "Well, are they in Lane County?" Because I was just testing what I'd researched. He goes, "Well, yeah." He said, "Laine County has something where they do that, but he said, "I've never heard of it in Jackson County." So, we have two ODF people saying this is essentially a madeup permit. um which further I I'm just in a state of confusion over the whole thing. Um and so what we're asking and it also it goes against land use gulf for you know we're supposed to have reasonable forestry practices and putting it in a 45day window which my neighbor has a repairarian zone. You're supposed to take this heavy equipment over this repairarian zone apparently in the snow. Okay. on dead Indian Memorial Road that has hauling bans on it during the same time. So even if the county somehow is able to argue that yes, you know, we can limit uh forestry operations to 45 days, which I can't find any example of that in Oregon anywhere that such a such a narrow limitation. Um it still would be unusable and so we have several points there on on the expiration. The approval, the challenge decision, the decision that you're challenging is an approval for a temporary forest labor camp. Correct. That's correct. What is the evidence of the duration of the need or the authorization for the camp? Is there evidence that you submitted about how long you thought the operation would take? My understanding is they the county found this date in the materials that you provided. Was there is there an alternative date or what in your view should the county have done to limit the duration of this? Right. So that's a good question because that's that's what the county's arguing. And so um if you look at that they're using the heavy equipment notification that was submitted with the application to show what we were doing. But the problem with using the heavy equipment notification um which exacerbates the issue of of of not using statute because when laws are passed clearly they're thought out is they all expire at the end of the year. They all expire December 31st. So, I went in to double check that because that's what they told me when I got it. They said, "No, it expires the 31st. You can't apply for the new one until the new year." And so, after the previous case was remanded. They were in this hurry to get the new one approved because before the end of the year, you you basically have an effective denial. Had they said, "Um, let's get it started for next year when you can log because clearly I can't log in November." Um, I would have had a new heavy equipment notification that would have expired in 2025 on December 31st, which would have given me a longer time frame. So, is there any anything what you submitted or in the record about the duration of of this operation? No, because I don't know the duration that I need it for. I'm new to it, so I don't know how long I need it. I don't continuously need it necessarily, but there I I don't know, you know, it's like I'm I'm totally new to this. This is the first like forest woodland forest land parcel I've ever bought. So, Sure. And does the do the rules that allow for this type of use, the uh administrative rules provide any guidance on the duration for this type of use? No, there's nothing I could find in state law or in county law that has is it we know that it's temporary, so it's not permanent. So, we can't move a camp up there and stay there forever, but it's for the duration of the logging operation, which includes the replanting as well, which is something that can't be done at all in the winter time. So, we have, you know, your argument that the county should not have relied on this other permit to find to to determine an expiration date and should have instead imposed some other reasonable ex expiration or what is what is your argument about that? It's it's severalfold. One of them is is the reasonable aspect. If you're going to impose an expiration date, it definitely needs to be reasonable reasonable and it needs to be usable, right? But the other one is is there is this the statute the state statute says until we're done. You know, the the duration is until we're finished with the operation. And so, but a reasonable one would be in order. For example, if they said, "Yes, we're giving you the permit now from November 15th till next year, November 15th." And at that point, you have to contact us again. That there's no problem with that. It's not it's not a matter of not wanting to comply. It's trying to understand what compliance is because if you don't use something that's clearly in statute or has a precedent that other people that you can talk with other people in the industry about, you have no guidance. It's not clear and objective. Okay. Thank you. So, so I move on to um uh assignment of error number two, which is the due process violations. Now, it seems, you know, as far as when we were dealing with the motion to dismiss, and that was the order uh denied the motion to dismiss it. It does make sense that this didn't didn't pertain to that argument, but it does to this because it shows a predisposition of bias from the county. um not only are they not going by statute or even looking at the properties around me or looking at if the operation can be completed, they they were putting this rush job on it. And then if we combine this with the fact that they trespassed on the property three times uh without permission after I objected the first time I actually called in and objected. Um, and then we combine it with the fact that Don Ridman, who also goes by the name I've just recently discovered, Don Cox, which I didn't know they were the same person, but she basically um said that we need to get a homesite approval to get this permit. And she was basing this on evidence that was obtained through this illegal trespass. And so she's like, "Well, you need to get a homesite approval to get this type one permit approved." And so our hearts dropped because we bought the property because it had a measure 49 homesite approval. So we go and we research this and we discover we do have it. So we ask her about it. And so had she misspoken, she would have just said, "Oh yeah, you're right. I was looking at another piece of property." We didn't get any admission from the county that she uh made a statement that was inaccurate until the latest order or from the latest motion to dismiss where they admitted well she misspoke. But it's beyond that because not only did she misspeak, she she said she advised she gave us advice to apply for a homesite approval. And in upon giving that advice, she's telling us on this parcel when I researched it, if we didn't have a home approval, we wouldn't be able to get one because it's woodland resource. It's less than 40 acres. So it doesn't meet the 140 acre rule. It doesn't meet the 650 acre in a square rule. as far as the houses like if you have a certain development that's already there then you can develop it. So in in Rudman I investigated her a little bit. She's an experienced planner. Okay. Now the county won't tell me how long she's been working there. I've asked opposing council how long has she been there. They won't tell me this. They won't give me any information on the individuals in this decision because I think they know it's bad. So she tells me she gives me a compliance regimen that cannot be met. So now they took the $885 which according to ODF they said well that's kind of prohibitive you know $8.85 85 for 45 days and then you have to pay for it again and go through this whole process and and then on top of that uh she gives me a compliance regimen that I cannot comply with because legally if I didn't have the homesite approval already I wouldn't be able to get it and so I was going to pay another $2,200 to $3,200 fee and not get that approval racking up citations and such during this whole thing during this whole process. You've reached 10 minutes of your primary argument and you can reserve your extra five minutes for rebuttal or you can continue to argue now and that will come out of your rebuttal time. Okay, I think I've I've covered enough. Um, let me go. We we this I think we've already covered the fire mitigation. It's extremely confusing because they included tents and in the fire mitigation and they included um uh you know mobile units and we also have a 2,000galon water tank and a 400gallon water tank and two water pumps for the for the ODF standards to fight fire if there is a fire on the premise. And then um and then Air Force is kind of a repetition. I'm new at this so some of this is repetitive. we go back to the um the bias in the administrative conduct and um and so what we're asking for is a reversal of the uh the expiration date or at least a reasonable one and uh and to review the permit itself now that we've discovered that it may not even exist. I can't find any other forester that has ever had to pay this fee or ever had to go through this gauntlet of compliance. Um, and then one last thing, if you look at the permit itself, it it looks like it's a building permit and a a a camp permit, and it says, "Well, there's certain information I need to give, which I do not object to giving, but at the same time, they approved it for the purpose of making it expire." So, I uh I yield my time. Is that the appropriate thing to say? Sure. Yes. Thank you. Uh, so that you'll have about three and a half minutes for your rebuttal after the county. And with uh if there are no questions from the board, we will turn to the county for their argument. Uh county council, please state your name for the record and begin. Thanks. Can you hear me? Okay. Yes, we can hear you clearly. Thank you. Thanks, board chair. Uh good morning to the board. Uh my name is Pete Philick, council for respondent, Jackson County. Uh I'm not much of a litigator. Um but I have a bit of a scripted argument which should take five or six minutes. Uh my hope is to go through that and then respond to any questions the board may have. Uh Tisher's application in this case arises out of a county code enforcement investigation. It is not disputed that there were several unpermitted structures on the subject property as of the date of the application. In an apparent effort to help remedy potential violations related to the unpermitted structures, a county code enforcement officer suggested to petitioners that they could pursue a temporary forest labor camp as a possible solution to bring their property into compliance with the LDO. The code enforcement cases were ultimately dropped. That peti petitioner conflated and continues to conflate the actions of a code enforcement officer with the actions of the countyy's land use decision maker is a common theme throughout petitioners various filings and arguments, particularly as it relates to assignments of error 2 and four. The petitioners also sought to introduce documents outside the record related to the code investigation. But those documents are not relevant to the land use decision because they don't relate to the decision maker and they don't affect the outcome of the decision. At the end of the day, the decision maker is required to apply the applicable standards and criteria as you know to the application regardless of petitioner's history with county code enforcement. In response to county's motion to dismiss, uh, petitioner filed an affidavit dated May 16, 2025 containing apparent comments from an ODF worker related to, uh, the status of other forest labor camps in Jackson County. To the extent this affidavit is construed as a motion to take evidence outside the record, the county objects to that motion. Uh, an ODF worker is not an expert on county or Oregon land use law. Moreover, greater than 50% of Jackson County land is owned by the federal government. Is not subject to the county's land use oversight. So, it's not clear what forest labor camps and the ODF comments are referring to. Any number of forest labor camps could exist legally in a variety of ways in Jackson County without land use approval from the county. Uh, for that reason, the ODF comments are of limited value, would not affect the outcome of the case, and county objects to their consideration in this appeal. Um, next I want to revisit Luba's determination on the county's motion to dismiss. Um, because I think there is some confusion there. Uh, as you recall, Luba found that the county's decision involved discretion because the county treated petitioners proposed TP and RV pad as structures for the purposes of applying fire mitigation standards of LDO8.7.1. The county respectfully disagrees with the conclusion that its fire mitigation conditions are intended to apply to the TP and the RV pad. In various portions of the county's decision, the county refers to the TP and RV area as structure number eight and structure number nine for purposes of proving the use and location of those items. Those labels, structure number eight and number nine, actually originate from labels provided by the applicant on pages 25 and 26 of the record, which identify quote structures already in place and structures under consideration unquote. Those references by the county decision maker are not intended as legal findings that the RV pad and TP are structures under LDO 13.3 sub 272, which is the definition of structures under the code. um because that uh that definition of structures expressly excludes uncovered patios, vehicles, and travel trailers. Uh therefore, the county's position today is that its decision should should not be construed to apply fire mitigation conditions to the RV area and the TP. Um the county's decision was intended to and should be construed to apply fire mitigation conditions of counties approval only structures as defined by the code. Therefore, from the county's perspective, the application of fire mitigation conditions of uh 8.7.1 is a check the box analysis consist consistent with other non-discretionary reviews. The conditions require the applicant to obtain a fire safety inspection fire district number five or the fire district is unavailable and inspection by an engineer or land surveyor certifying that the applicable wildfire mitigation standards are met. Because the satisfaction of this condition is a binary check the box analysis. I would ask a little bit of reconsiderance motion to dismiss for lack of jurisdiction. With respect to the assignments of error um regarding the first assignment of error, the applicant states that the notice of operations is not required and was not intended to be used as a to determine the duration of the forest labor camp permit. The county agrees that a notice of operations is not necessarily a requirement for a temporary forest labor camp. While petitioners have the burden to establish that they have met the applicable criteria, they could do so in a variety of ways. In this case, it was all they provided. Regarding the second assignment of error, applicant alleges a number of procedural grievances. Most of those relate to the code enforcement investigation. The only allegation in assignment of error number two that relates to the land use application is that the decision maker stated in an email that her forthcoming decision would be quote tenative decision. Uh as noted in the county's brief uh to prevail on a procedural claim that the petitioner must explain with specificity what would have been different had the procedural error not occurred. In this case, petitioner hasn't done that. Uh finally, I don't intend to spend a lot of time addressing assignments of error number three or four. I think it's clear from uh the county's perspective that the fire mitigation requirements can be applied to structures as defined by the LDO and this application does include structures. And regarding the fourth assignment of error, there's really no evidence of bi bias by the decision maker. Um I I understand that the uh the applicant has a number of uh issues with the code enforcement process and I can sort of understand that. Um but I think uh at the end of the day we need to separate the code enforcement process from the land use decision process. Um I think that's all I have for now. Mr. Philber, is there a process under the county's code to for an applicant um who wants to correct or change a condition to apply to the county to change that condition? So, do you mean like an internal appeal process? I don't know. I I was poking around on the LDO and and stumbled across LDO 2.6 six uh sub let's see 7D and it seems to provide a a process where if there's a a condition that perhaps as in this case seems to have been the result of a misunderstanding between the applicant and the county uh that might provide a vehicle to correct that kind of problem without an appeal to Luba. I'm just curious whether that was a potential path for uh resolving at So, those are appeals. I mean, first CL, I'm not super familiar with this code section, but those it appears to relate to uh evidentiary hearings. In the county's case, the LDO does not provide for evidentiary hearings for a type one decision. Okay. Thanks. I was my understanding of your response to the argument that the expiration there's a lot of arguments about the invalidity of the expiration but that the county's response is that this is a temporary use and so the county needed to provide an expiration on the approval and so the county looked to what the applicant provided um in order to determine when that expiration would be. Is there anything in the code that requires the county to impose an expiration on a temporary use? And is there anything in state law that governs this type of use that would indicate the duration of a of temporary forced labor camp? Well, the the county code defines temporary as 30 days or less um except for otherwise provided in the code. Um and so given the conflict between the definition of temporary and the definition of forced labor camp and the county code, we would defer to the um definition of temporary forest labor camp which states that it's for up to the duration of the project. And then here the county determined that the duration of the project was the duration of the permit for the heavy equipment. I'm sorry, could you repeat the question? How did the county determine the duration of the project for purposes of the approval? We looked to the application materials and in the application materials there was no proposed duration other than the expiration of that of the uh notice of operations from the department of forestry. Okay. Thank you. Did it not occur to anybody that 45 days in the winter probably wasn't going to be enough to do the temporary forest use and they ask the Yes. And we we asked Mr. Huau if he would like to submit additional documentation. I mean I you know tell our uh planners not to be in the business of providing legal advice. So generally speaking they're reviewing the materials that are provided to them. So if he if he'd asked if he'd said, "Actually, I'd like to have this expire on December 31st, 2025." Is there any reason that wouldn't have gotten approved? I think we would have asked him to substantiate that and so provide like a forestry plan or a contract with a forestry company or something something um you know substantial that it could be based on. So it doesn't have to have the the heavy equipment notification which apparently you can only get per year. you you could he could rely on other information to establish the date. Correct. Okay. Just out of curiosity, is is this the kind of permit that you can get extensions on? Like if he came in and said, "I want to get this extended till the end of this year, next year." Not under the county code. He'd just have to file for a new one. Correct. But it could, you know, theoretically, there's no reason it has to be necessarily limited to a specific duration. He would just have to substantiate that. Okay? you know, if somebody if somebody approached the county and said, "We need a a you know, temporary force labor camp for 10 years." I think that would be, you know, difficult to to justify. Um, but there's no there's nothing in the record that's before us that states any duration. And that was what the county was looking at. So, the county just picked the date that was on the permit. Essentially, the county picked the date that was that was provided by the materials that the applicants and there's no other there's no alternative evidence that petitioners raised or Okay. Are there any other further questions from the board for the county? County, do you have any further comments? Okay. So, we will return to Thank you for your argument. We will return to petitioner. we will have uh 3 and 1/2 minutes for your rebuttal. Okay. Thank you. So, I I think it's extremely important to to rebut this this uh there is no process in Jackson County to change the conditions. After the first remand, I vehemently objected to the expiration date because it could not be achieved. It was impossible. I spoke to Mr. Philbrick about this and he said, "Well, it has to be temporary." And so they they gave no no possibility. When I spoke with Kristen Mays about can we just extend the duration. We wouldn't be here if they would just extend the duration. Even if the permit doesn't exist, we wouldn't be here. I would just I would just extend it for the year and then continue on. They pushed this. They made me come to Luba instead of doing something reasonable like offering me the chance to extend the permit. They said, "No, you pay the 8.85 and you start over." And to me it appears that the permit isn't complete anyway because they're asking about the which is rightful. They're saying well I misspoke and said the carport was a garage for example which it is a carport and so they have a right to have that clarified. So they're asking for clarification pushing this thing and I and I believe the bias is important even if you take out the trespass. The statements of uh of Ramman show severe bias at the county. they were. It looks like to me potentially this was pushed so it could expire at the end of the year to create another gauntlet of of compliance because that's what she had previously tried with the misinformation that she had given me previously. The county has no internal appeal system. You have to reapply and and pay again and and they need one. And they didn't even tell me about the land use board of appeals. Didn't tell me about that. I had to discover that on my own. And so um and then you know they talk about the 30 days. Well, that that makes forest land use goal impossible, you know, if you're going to apply the county 30-day uh temporary uh structure guidelines to it. And um so, and also just asking the question, do you have anything else? Without saying why you're you're uh needing something else to me seems totally uh subjective in in a ministerial review, it's supposed to be completely objective. You're I'm asking you this question because I need to know how long you need the camp for. And then I'm going to say, "How long can I have the camp for?" But they don't know the answers. You can see that they don't know the answers. I don't think they've ever issued one of these before. And I'm I do want to comply. I want I want to comply with land use goal 4. I want to comply with the the structural rules for any structure that's, you know, below 200 feet. I want to get in compliance. They don't offer compliance under the guise of not providing legal advice. However, they do provide illegal advice. They provide bad legal advice. And that's why we're here. And it's it's unfortunate that we have to be here and argue in front of the land use board of appeal on a on a type one review. They should just issue and I have no problem complying as long as I know how to comply. And also now we have the issue of trust. I don't know if what they're telling me now is the truth. And that creates another problem with compliance. But this whole time I've just been trying to comply. I have never argued that uh that the the state doesn't have the right to regulate land use or that the county doesn't. I'm just I've only argued that it needs to be clear and concise and it needs to be objective. And as as you can tell by the the counterargument, not that's not taking place in my opinion. Okay. Thank you. That uh concludes your time. That will conclude oral argument. And I just want to uh be clear for the parties that our review is based on the record that's before us and uh we will resolve any outstanding motions in our final decision and our decision will be based on uh what is in the record before us in this decision. Our statutory deadline for this decision is July 9th. Uh we'll let you know in advance that we intend to issue our decision by July 16th. Is there any objection to that? No.