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Oral Argument 2026-006 Siletz Resorts, LLC v. Lincoln County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=jtTvOWwou_8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Do we have everybody, Aaron, or think they need to come on to video? >> Okay, I think we're about ready to begin. Mr. Mr. Hullberg, Mr. Sor, are you both there? >> Yes, Doug Hullbrook is here. >> Okay, thanks. Um, good morning. This is a time set aside for oral argument in Select Resort LLC versus Lincoln County. Uh, I'm board chair Wilson. Board chair, board members Zamurio and Basham are also present. Um, just remember when you're not speaking to please uh be on mute. Um, we have a pending motion to take evidence. Um, that will be resolved at the final opinion and order. I'm not aware of any other pending matters. Is there anything else that we need to be I'll take that as a no. Um oral argument is 30 minutes. Um petitioner, you'll have a total of 15 minutes. You may reserve up to five minutes for rebuttal. And then respondent, you will also have 15 minutes. Um Mr. Storm, would you like to reserve some time for rebuttal? >> Yes, I would like to reserve five minutes. >> Okay. I will try to keep track as well. Um but I'd advise you to keep track of your own time. the the clock on the on the screen is obviously a little bit ahead, so you're starting around 2 minutes. Uh, but if you would please state your name for the record begin, that'd be great. >> Yes. Uh, if you may please, the board and council. My name is Alan Saum. Uh, council for petitioner Resorts LLC. Uh, should I turn my camera on? I'm sorry that was just a technical question. I don't know if it doesn't matter. >> Yeah, I think we'd probably prefer that. Uh, okay. Thank you. Um, good morning. So, I'll keep my comments brief. Um, there's been a lot of briefing on the matter. I think petitioner's position on the relevant issues is well represented in the briefing materials. Uh this case largely centers around the jurisdictional issue and that was raised first by a respondent in a motion for dismissal board concluded that it does have jurisdiction. You know primarily just based on an application of the statutory definition that the county did make an interpretation of its land use development code. The development code has a process for determining whether or not permits have been initiated. Um, and there's also common law statutory uh remedies that are available to an applicant under common law vesting and ORS chapter 215 provides the procedures for that. Uh I don't think the response brief really while it it asks the board to reconsider that it doesn't make any new significant arguments doesn't bring any new uh facts to light. uh and the reasoning, you know, for the board uh in its order is is well founded and should be adhered to essentially just because the county council procedurally should not have made a final decision, it did so. And when it does so, then that's that decision is subject to judicial review. And it's a pretty important decision anytime a county goes ahead and says, "Yeah, absent, you know, even though it's been almost 20 years, um, we're going to go ahead and make a an an ad hoc determination that these permits have been void and do it in a manner that would not provide a property owner any due process, not adhere to the local code, not adhere to state law. Uh, that's a significant decision. and it should be subject to judicial review. The question being, you know, is luba under the state statute having the authority for such review and in this instance it it is because there's a land use regulation uh that should have governed the application of that question. So I think my what I really want to to focus on and then and having the benefit of reviewing the record as a whole and all the briefing and and making it clear that petitioner's request is that the board reverse the decision. it if it were merely to remand it, it would be a little confusing because the county's council own a mission in their motion for dismissal was they weren't supposed to um make such a decision and it cannot be remanded back to staff or county council. Uh this this decision should >> for review. Have you asserted in your petition for review that the um county council lacked authority to issue this decision and that's the basis for reversal? I don't think I saw that in your petition for review. >> No, I I think the board has authority just under the application of the administrative rules in making that determination. Certainly the assignments of air um all lay out that it was inconsistent with >> Okay. I just want to be clear. We're not authorized to grant any remedies that aren't argued to us in the petition for review. So, you can go ahead and continue. >> Okay. Thank you. Um, nonetheless, just I'll I'll still kind of continue with that that line of thought with with that uh comment and the ultimate opinion what what I mean what is the county's role in this? um how it should have been uh proceeded because it's a difficult position for the property owner, the applicant to be put in um when the county takes such a position that it has the unilateral right to make a determination in in that it did uh absent any application or adherence to its own procedural rules. Um, so in thinking about the briefing materials, I as I indicated, I don't think the response brief is particularly um pushes back or or or um says anything that isn't wasn't anticipated in the petition for review. the Simon Seor, if Luba has jurisdiction, which we submit it does and and Luba has previously ordered that it does, uh, clearly warrants a determination that the that the local government's decision was not consistent with this procedural and substantive laws. So, um, if there are other questions or comments from the board to me, I'm happy to try to speak to that. >> Background question. So, this is a messy postured case for us. And my understanding is the county uh was in the letter responding to correspondence that had to do with your client uh attempting to obtain a renewed license. Is that correct? Or was this a code enforcement? Uh, I concur with your observation and to try to answer your question, um, there were back and forth some some letters and some emails. uh there was a notice related to a septic, but uh I I think that really what initiated the response or or the decision was the letter um dated November 21st, 2025, supplemental record three. Um >> and what the parties refer to as the supplemental record is what's attached to motion to take evidence. There's not a supplemental record that the county has provided. Correct. >> Correct. That was my best attempt at a nomenclature to try to clarify that. >> A little bit confusing. I just want to make sure that we're clear for that. Um, sorry. Go ahead and finish. I have some follow-up questions, so please finish. >> Yes, that that is the uh document that I think most um accurately answers your question as far as what initiated the decision by the county and it was that letter um from that date. The prior uh documents to Mr. Fitch um lacked any kind of element of a final decision, didn't apply um local rules and wasn't in response or to any argument on on that. Same thing with the the prior notice. >> Yeah. Yeah. So, those prior notices the county relies on to say there was if there was a decision on the permit expiration. It's a little confusing to understand what the county is actually arguing, but I think they're saying there was prior notice based on some documentation from the county to your client about the number of spaces, but those were not in um in the form of final decisions or in the form of a code enforcement final decision. Correct. Those were in the >> correct. Correct. no notice of a process for a hearing on a code enforcement or no no uh fine um or any kind of final action. And um I would also comment that the reference in that notice was to a state administrative rule regarding um Oregon Health Authority and not particularly a land use regulation that's consistent with statewide planning goals, local comp plan, local land use regulations. So that that also be relevant. >> Okay. And then for your assignments of error, your first assignment of error is essentially this was an ad hoc determination. We should get a full process whether that process is under the county code provisions for ministerial decision or for a permit decision. Uh I think your argument is it should be under both. Um, if we sustain the first assignment of error, at least part of the first assignment of error, do we need to reach the second assignment of error or is this just go back for county process as a land use matter and then the second assignment of error is determined the the subject of the second assignment of error is determined by the county in the first instance. Yes, I I think if I understand you correctly, if you reach the procedural error uh assignment determine their substantive rights were prejudice, the process of wasn't followed, then you know under Luba's jurisdiction, you don't reach the subsequent assignments of error. Um and in this instance, the record wasn't developed in the way that it it would be with a a normal land use application, which makes it challenging um as the formulation of the the the subsequent assignments of error >> and vested rights are um as you've articulated a common law principle. Is there a county code provision for getting a vested rights determination or a county code provision for a declaration, you know, declaratory action under the land use process? What's the correct process for getting a vest rights determination from the county? >> It would be an application of chapter 215. Um it the county does not have its own separate code uh process for it, but it kind of fits within the county's determinate um chapter 215 processes I believe that are related um out of the non-conforming use sections. I've got some of those citations in the petition for review. I just can't speak to >> and I'm not totally clear why we're talking about vested rights here. I think their issue is about whether the permits have expired and your argument is there was substantial construction under the 1990 the two 1990 conditional use permits. How is this a vested rights case? >> I I think it that the state law supports the local law. So in in an opportunity to fully develop the the case, I would make an arguments to go ahead and and say yes, we've properly initiated the permit such that under the local law, they've not expired uh and they remain valid. Also, I think there's an opportunity to establish an argument that even if the local law was written in a manner that uh did not provide the same level of um protection to the property owner, that the non-conforming use and the vested rights doctrines apply, that an applicant should and does have the ability to offer arguments and evidence to support a vested rights determination uh in that well under that body as well. >> If you were correct that the the the permits didn't expire or would you be arguing that it's a non-conforming use or that it's a valid u conditional use because I'm a little confused on why this is a vested rights case as well. >> I I it's probably it's maybe better understood as an argument in the alternative. you would be applying you would be arguing under the local code that it's sat that it the permits are not expired under the local code but in the alternative you would argue that there's a ve that the the actual construction being done in good faith in conformance with the permits um reaches a level that it's either a vested right or non-conform >> or any case that says for a conditional use you could get a vested right because you've done something less than what the code requires for permit expiration. >> It's kind of odd fit is what it is. The argument is kind of an odd fit. >> I No, I mean I do think I mean I'd cite Gillette versus Lincoln County which had raised similar issues, but it did not get fully developed, you know, where that that specific question was before the board. It was just acknowledged that there was both a local code um potentially. Did you ask for a specific vested rights determination? Like in Gillette, it was very clear the petitioner asked for vested rights determination. The county specifically addressed vested rights. Like I didn't see where you I saw you said you were the the conditional use didn't expire because you vested, but I didn't see that as exactly a vested rights argument. And I didn't see that the county addressed vested rights in their their letter. So >> different than Gillette >> as to I mean the record is the record is you know not fully developed in the sense of what you would expect you know get being given an opportunity to go ahead and make a full and fair application. Um there was a preliminary determination that the permits were expired. Uh yes the the November 21st letter raises arguments that they're vested. uh it doesn't cite homes specifically but citation to homes I don't think is uh strictly needed in this posture because uh we weren't afforded an opportunity under preservation law to have a hearing um so you know we we can raise new issues on appeal sorry I didn't mean >> no that's you were you were not interrupting you were continuing on the same thinking that I was on I don't have any further questions for petitioner No. >> Um, you've got a couple minutes left for rebuttal if you unless you want to keep going. >> No, I'd like to reserve the time. Thank you. >> Okay. Thank you. Um, all right. Respondent, uh, you have 15 minutes. Uh, please state your name for the record and begin. >> Uh, good morning, Douglas Hullbrook. I'm with Lincoln County. Uh, good morning. Um, I agree this is a messy procedural case. We can all agree on that. Um, amongst the messiness is, you know, they want to say that the county didn't follow the code, but then if the code is really the issue, um, why didn't they? Um, because section uh 1.267, 267 which they have in their appendix 5 would have provided for an administrative appeal basically to the planning commission if they thought that this was a land use decision. Um our basic argument is that um this there wasn't a decision on vested rights so that is not even ripe for consideration. The real question was one of whether or not the um conditional use was still um valid. In this instance, that really wasn't what was the focus or the intended focus of the letter. Um which was in response to a question about licensing. You can't really discuss licensing in this case because of the vast um violations which were occurring out there of having over well over a 100 RVs in a area which at best they could have 83 under their argument if their 99 conditional use was valid. >> You just clarify >> yes >> proceedings. So, it sounds a lot like code enforcement, but I don't think it was code enforcement. What were the inspections and licensing about? Was that a health authority thing and not a land use code enforcement proceeding? >> Correct. It's Well, in Lincoln County, they're a little bit handinand glove. Um but in this instance it was um a uh it was primarily a public health inspection because public health licenses these facilities all travelers accommodations and these fall under that. >> Thank you. >> Mhm. Okay. So um you know there was a clear requirement of proving the septic um could handle the expansion that that was never provided. They were to provide um electric and track and electric and traffic uh safety uh answers by getting permits. Um, and from ODOT, they have in their supplemental record at page 24 an ODOT letter, but that really addressed a completely different application and in fact says if you ever expand, you're going to have to improve the access. Um, so that wasn't a letter that was um part of the 1999 cup. But again, this process began with a public health inspection uh finding well over 100 RVs and other unpermitted temporary uh dwellings, if you will, on the property. Um, in 2015, there was an acknowledgment by the petitioner that he was out of compliance, wanted to get in compliance. um because he was going to sell the property that's at record 7. In July 30th, 2025 was the first um recent inspection by public health and found over a 100 spaces um tents and etc. That's at record 11 through 13. And in August 2, on August 27th, um there was an acknowledgment by um the petitioner's attorney that the 1999 cup was not valid in effect, that they were subject to 67 um spaces. That's at record five. >> Mr. Hullbrook. Um >> I see how this might be a little different under in the vested rights uh arena from the Gillette case, but going to the expiration of the conditional use permits, how do you distinguish this >> Well, I think it's different in the fact that in how it arose that this arose in a public health area and licensing area. Um it wasn't a request by um the uh petitioners for anything to um in response. We were simply >> Didn't both cases involve the county telling the the petitioner that your >> I will agree with that. Yes. Okay. Thank you. >> Um the again in August of uh 25 um the petitioner had basically acknowledged that the cup the 99 cup was not valid. So I'm not sure um why we have two different positions taken by the petitioner. But um >> is there anything from the county saying telling them that their permits had expired and they were no longer valid before this letter? >> Um before the letter in December, >> the the one that's the subject of this appeal. >> Um well um there's evidence that they knew. Um there's not evidence that the county directly told them that except for if you look in the um record 7 I believe it is they recite that it's only for 63 spaces and that's I mean uh that's part of at least the other side of this same coin. it's telling them uh clearly that you don't have 83 spaces, which was what they asked for in their conditional use. So, they had several communications um that put them on notice that this was the county's position and they took no action. >> Okay. Thank you. >> Um our position is findings aren't required because in effect this appeal isn't timely. Um the petitioner had noticed long before this challenged letter in 2015, couple times in the summer of 2025. Um and the petitioner's uh previous lawyer had in fact agreed that they were limited to 67 spaces. Um again, if this is a ministerial decision, um they had a right to appeal under the code. Um so we have an exhaustion question I guess. Um but because of what I would term waiver um and the other side of that coin would be administrative exhaustion the appeal just shouldn't exist should be dismissed. That's all I have to say. You >> Is that exhaustion argument anywhere in your motion to dismiss or in your brief? I feel like that's the first time I've heard that argument. It's implied in one part of my brief. Um, though I don't use the word, so perhaps you won't consider it. >> No more question. Okay. We don't have any more questions if that concludes your presentation. >> It does. Thank you. >> Okay. Thank you. All right. Uh, petitioner, you have uh 2 minutes left for rebuttal. >> Thank you. Um, yeah, I would assert that the exhaustion argument is new, wasn't previously briefed, and is inconsistent with correspondence from county council to myself. Um, the record that that isn't in the record, and so we would need to continue to expand the record if if that were needed. Uh, I don't think the board's going to take that argument since it wasn't previously briefed. So, I I'll leave my comment there and I would say no. There, you know, being saying there's prior evidence that various staff members told um the petitioner, you know, um, of a position is not a a final land use decision. uh the December uh 30th letter is the first and only final land use decision by the county on that. That's why we file followed up with a petition for review. Uh and the lastly, you know, why did you not previously file? I mean, that was somewhat of a surprise final decision. you know, the applicant wasn't given notice uh that the county was going to be in, you know, making such a decision and did not afford the petitioner an opportunity to make such an application. The county initiated that decision on its own uh absent the application. So to to argue that that was error um from the petitioner, we take issue with. So those are my comments in rebuttal. Um, if we agree with you that they did not provide you with a proper procedure, do we need to decide whether it needs to go back as the ministerial decision as um the conditional use permits expiring or that it's a permit decision as under vested rights or can we just send it back for the the county to figure that out? as much guidance as the board can offer, I would be greatly both parties would be benefited by that. Um, if the board limits its holding to sustaining the first assignment of error on procedural realms, I mean, I I I I don't know. Sorry. Uh, I like I like uh if it is remanded at least specifying you know what local procedure should have been followed um would be beneficial to both parties and within lub scope of review. >> Okay. Thank you. >> Thank you. >> All right. And uh that will conclude oral argument for today. Um the statutory due date for our decision is October 13th. Uh we ask the parties for an extension to issue the opinion no later than October 27th if we need the additional time. Are there any objections? >> No objection from the county. >> Thank you. And that will conclude today's proceedings. Thank you and have