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Oral Argument 2025-036 Lane County Public Works v. Lane County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=96BOPPCIUiI). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for Lane County Public Works versus Lane County. I'm board chair Zamudia. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Uh, thank you for muting your speaker when you are not speaking. I'm not aware of any pending motions or matters. Um, before we enter into oral argument, anything from the parties? Nope, nothing from the parties. 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? And I and uh, Council So, I cannot hear you when you just spoke. You're not on mute, but I can't hear you. >> Can you hear me now? >> I hear you now. Yes. And how much time would you like to reserve for rebuttal? >> Apologies. I tested the audio before and >> worked. Uh, three minutes, please. >> Okay, three minutes. And I will keep track of time on my end and al that you also keep track on your end. And just to note, the clock that is in the screen is not keeping exact time. And then um interviewing our respondents, have you determined how you will share your 15 minutes? >> Uh, yes, we have. Mike Carter is here on behalf of Santa Pac. Uh we've agreed to split our time roughly half. Uh and I'll go first. I hopefully won't even use half my time and then I'll turn it over to Miss Kellington. >> Okay. Thank you. And thank you for figuring that out in advance. Um again, I will keep track of time on my end, but we'll leave it to you to uh share your time. So with that, petitioner, if you will please state your name for the record and begin. >> Thank you and good morning members of the board. My name is Josh Soer on behalf of petitioner and applicant Lane County Public Works. This appeal concerns an application for an innovative resource recovery facility in Lane County. And the issues on appeal all relate to the use categorization of the facility. I structured my brief in terms of the different use categories at issue and the assignments of error that are relevant to each. I think it might be helpful to come at this from a different angle. And so this morning I want to uh structure my presentation in terms of what uh the most significant assignments of error are and how they relate to the overall outcome of the decision. So the first one I want to focus on is the failure to apply the framework in lane code 16.280 sub3 for determining which activities of the proposal are primary versus accessory uses. uh lane con uh lane code 16280 sub3A says that the use category the overall use category is based on the primary use or uses in the proposal. So the first step has to be to determine which uses are primary and that's b that's done using the criteria in lane code 16280 sub3b. Only once those primary activities the primary uses are established can the overall category for the proposal be determined based on those primary uses. This is a a complex proposal with many component parts. And so there was significant briefing below by the applicant um dedicated to which aspects of the proposal are primary versus accessory uses. The hearings officer's failure to first apply that framework to determine which uses are primary versus accessory therefore undermines the rest of the decision because that is the premise on which those determinations about the use categorization have to be made and that therefore necessitates a remand to allow the decision maker to take that threshold step of determining which activities are primary uses and which are accessory uses. there uh there is no dispute that I can discern that the hearings officer did not at any point apply the factors in lane code 16280 sub3b the interveners have pointed to other aspects of lane code 16280 sub3 that the decision applied um but they ultimately appear to concede that sub3b factors were not applied and that's in the lane county uh garbage and recycling association brief page 20 footnotes six. And so then they uh focused their argument on uh this idea that applying those factors was not necessary. To address that, I want to take a step back and uh acknowledge that this section of the code involves uh what I'll refer to as a bit of unusual drafting in that the uh the code uses the same list of factors for two different purposes. It uses them to determine whether a given activity is a primary or an accessory use. And then it also uses those same factors to determine based on the primary use which use category applies. And for that second task of determining based on primary uses which use category applies, the code says that the factors only need to be used when the category is quote not clearly identifiable. and the interveners uh cite that in their briefs. But there is no similar limiting language for using those factors to determine primary versus accessory use. And the code instead simply says that those listed factors are to be considered for making those determinations. So it's our position that the hearings officer was therefore required to apply those factors to make those determinations and then only once those determinations have been made about which uses are primary uh can a proper determination be made about which use category applies and that the board should remand uh with instructions to the decision maker to perform that The second category of assignments of error that I want to focus on are those that relate to the bases for the determination that the proposal is not a government facility and those rely on uh misconstruing the code and inadequate and conclusory findings. Uh I want to also clarify that this provides an independent basis for remand and changes the outcome of the case on its own. Even if the board were defined against petitioner on the primary versus secondary or primary versus accessory use argument that I was just discussing um because uh as I'll discuss further if the facility is properly classified as a government facility it doesn't matter if it could also be classified as a waste related use. So there were three critical errors that I uh discussed in the brief relating to the the findings on this government facility issue. The first is the findings regarding the effect of the examples of government facilities listed in the code. The petitioner argued below um how and why this proposal is similar to the listed examples. The hearings officer's findings said that the proposal is not one of the listed examples or similar to the listed examples but did not include any analysis or explanation of why it is not similar to the listed examples. And this is kind of the quintessential conclusory finding saying this is not this but there's no there's no verbiage whatsoever to connect from point A to point B. Second, the hearings officer's uh findings regarding the code requirement that the public generally is not received. The decision concludes that that requirement is not met because there are components of the facility that are designed to accommodate visits from the public. But that misconrs the code because it reads out the word generally. uh when when the code says the public generally is not received that clearly contemplates that there could be some reception of the public and there's no analysis in the code in the decision about how the public generally is not received just that there is going to be some reception of the public. Third and finally uh the findings regarding whether an otherwise prohibited use can be permitted as a government facility. And this relates back to what I was saying at the beginning about how even if this could otherwise be categorized as a waste related use, if it can be categorized as a government facility, that's still permissible. Um, this is evidence from the fact that the code includes several examples of government facilities which would be prohibited uses if that government facility category didn't exist. So in other words, the question is if there were no government facility category in the code at all and somebody were to come in and propose uh one of the listed examples such as a school district bus facility or were to propose a public works yard, how would those proposals be categor categorized and would they be allowed? And the answer is that both would be categorized as vehicle equipment and boat repair rental storage service and therefore not allowed. But they are explicitly allowed as a government facility. They're included as a list of examples of government facilities that are allowed. And the point therefore is that uh if this proposal even if the hearings officer is correct that this could otherwise be categorized as a waste related use and not allowed it can still be allowed as a government facility. And in concluding otherwise the the hearings officer made a couple of errors in uh that hinge on what these other examples would be categorized as if they were not government facilities. Um, first the hearings officer acknowledged that those uses involve a primary function of repair of vehicles, but said that they could be categorized as towing and vehicle storage or contractor business, neither of which involve vehicle repair rather than the use category that specifically entails vehicle repair. And that's contrary to the plain language of the code. And the hearings officer does not explain that uh part of the decision. Second, the hearings officer found that the examples, the um public works facility or school bus facilities are not public facing while vehicle equipment and boat repair rental storage service is public facing and contractor business and towing and vehicle storage are not public facing. There's no basis in the code for that uh that conclusion and I think we all know that contractors and towing companies are very much public facing. Um so that was a misconstruction of the code. I want to clarify the point isn't whether this proposal itself is public facing. It's not but that's not the point or whether it involves vehicle repair. The point is is that because those other examples listed in the code um would otherwise be categorized as an impermissible use in the zone um that means that this use is as well uh because even if it could be categorized as waste related and therefore prohibited can be permissible in the zone. Um those three errors that I just discussed in the government facility analysis as I mentioned uh independently necessitate a remand so the decision maker can reanalyze whether this proposal qualifies as a waste as a government facility based on the correct There were uh quite a few other assignments of error in um in the position for review. I'm happy to answer questions about any of those, but I wanted to focus on those two categories uh today because those are the the most significant ones and the ones that provide that independent basis for remand. If there aren't any questions, I look like I'm done about a minute early, but I'll see the rest of my time. >> Thank you. No questions from the board. So, we will turn to um interveners for your argument and uh please state your name for the record and begin. >> Thank you. Good morning. >> Uh my name is Mike Connors and I'm presenting on behalf of Interviewer Santaac, Inc. And as we indicated, I'll go first and Miss Kellington will follow after my uh statements. Um the hearings officer's decision denying petitioner's application must be affirmed unless petitioner demonstrates that each and every basis supporting the denial is erroneous. It's long-standing lube precedent. The fundamental flaw with their appeal is that petitioner failed to sign error or challenge the primary basis for the denial. The hearings officer denied the application on the grounds that the proposed facility is in whole or in part a waste related use which no dispute is prohibited in the LI zone consistent with the plain language of lane code 162803A and C. The hearings officer determined that the proposed facility has multiple primary uses and each primary use must qualify as an allowed use in the LI zone. petitioners don't contest that interpretation of the code. In this case, hearings offer officer determined that the primary uses of this facility include the receipt and processing of up to 20 225,000 annual tons of solid waste, the transfer of most of that solid waste to a landfill, approximately 64.45%, and the biological decomposition of organic material for the production of methane gas. Consistent with the plain language of lane code 16283A, the hearings officer determined that the waste related use category quote most closely describes the nature of the primary uses. That's the language from the code and therefore the facilities prohibited in the LI zone officer's determination is clearly consistent with the plain language of the definition of a waste related use. That definition includes any uses that quote receive solid liquid waste for disposal on the site or for transfer to another location or uses that manufacture or produce goods or energy from the biological decomposition of organic material. It's all directly quoted from the land code. Since the primary uses are specifically included in the waste related category definition, the hearings officer rejected petitioner's attempt to classify the facility under the more subjective and open-ended government facility industrial services or similar use categories based on the plain language of 16283 and this board's decision in uh SRT versus city of Lake Asiggo. petitioner appears to be presenting a new argument in or oral argument today uh which is not permitted under your rules that essentially says well if it qualifies as a government facility then it is allowed even if it also qualifies as a related use excuse me waste related use uh the hearings officer specifically addressed that relied on SARTT and there's nothing in the petition or the reply brief that challenges that or even cites that case so we believe that that has been waved. And this argument regarding 16.2803b. Uh the key language there is that that those factors only apply when a uses category is not clearly identifiable. The hearings officer specifically found that this clearly qualifies as a waste related use and petitioner didn't challenge that finding. Instead, what petitioner did is challenge a bunch of ancillary findings, rejecting petitioner's arguments on alternative grounds. Uh there's some mischaracterization of uh the hearings officer's decision. Uh failed to challenge relevant findings even on those alternative findings. Uh and Ray's New Organ is not preserved below. uh we'll rely on our brief for the details on that because really regardless of how you decide these ancillary appeal issues that petitioners raise the hearings officer's decision must be affirmed because petitioner failed to assign error or challenge any of the key findings and conclusions that provide the central basis for the decision that this is a waste related use based on the plain language of the code and petitional likely didn't challenge it because there's really not a reasonable or legitimate basis for challenging that conclusion. you know, petitioners started this project out with a zone change because they repeatedly acknowledged that this is a waste related use that's prohibited in the LI zone and we're seeking a new zone and for reasons that were unclear to us, they changed tact and then suddenly raised an argument that it's not waste related. um that that prior statement prior position is very um in indicative that even petitioner recognize that this clearly is a waste related use. So on that basis um since the hearing officer's primary basis for the denial was this is waste related use it's clearly supported by the plain language of the code and the uh undisputed evidence in the record. Uh we ask that the board affirm uh the uh deny the appeal and affirm the hearings officer's decision. And I'll go ahead and turn it over to Miss Kellington unless you have any questions. >> No questions from the board for you. Uh And you're you're on mute, Council Kellington. >> Thank you, Wendy Kellington. May it please the board representing Lane County Garbage and Recycling Association. We concur wholeheartedly in Sanipac's arguments by not challenging key factual findings, legal conclusions, and preservation failures. The petitioner has provided no basis for reversal or remand, and Luba should affirm the hearings officer's denial decision. Concerning preservation, the petition did not attempt to demonstrate preservation of the issues petitioner raised in the petition that interveners briefs argued were not raised below. For example, the petition record pages cited a petition for review 14 did not raise the issue that only a certain dictionary can be used to interpret the county's code and did not raise the issue that visitors to the nearly 7,000 square ft visitor and education facility are not customers within the meaning of LC16284A Romanet I Instead, petitioner improperly attempts to use its reply brief as a deacto amendment of its petition to site wholly new record pages to demonstrate preservation of those issues. However, under this board's decision in Rosewood versus City of Lake Asiggo, a petitioner may not mitigate its failure to demonstrate preservation in its petition by adding citations for the first time in a reply brief. As Luba explained, doing that is contrary to Luba's long-standing rules and prejudices interveners substantial rights to prepare and present their case, effectively shifting the burden to interveners to search the record for preservation after their briefing period has closed. Rose governs and petitioners not preserve the issues raised in the petition that interveners argued are not raised below. On the merits, petitioner conceds that LC16283 establishes the process for determining which of the use categories applies to a particular use and conceds that 16280 sub8 concerning similar uses only comes into play when none of the enumerated use types in the code apply. Contrary to petitioner's argument today, the hearings officer applied that framework repeatedly over at least 10 pages of the challenged hearings officer decision. Other key issues are not challenged by petitioner. There's no dispute that the LC expressly states that uses are to be assigned to the category whose description most closely describes the primary use. There's no dispute that the LC expressly states that uses with multiple primary uses must have each primary use classified into its applicable category and be subject to the regulations for that category. That framework defeats petitioner's argument raised for the first time here today that if the proposed use can be shoehorned into the government service use that the board should ignore other primary uses proposed uh in the application that are expressly prohibited in the zone. I just want to make sure I understand there's clearly to me an analytical distinction between the petitioner's position today. I'm not sure whether it's in the review and your position about the operation of lane code 16 283A. I think I understand your position is the analysis is determine which category it most closely describes. And so you a decision maker needs to decide what category it falls into. It's not a decision of this is waste related and government. There's a dichotomy there. So they need to choose one or the other. They don't choose both and then they say well this is nests within the government use. >> Yes. That that's what sub A says. Sub C though recognizes that there may be proposed developments that have multiple primary uses and in that situation each primary use is assigned the appropriate use category. Here the hearings officer of course decided that all three primary uses are waste related and prohibited. So hopefully that answers your question. You're you're correct that you you start with deciding is is is the proposal one for a use whose category can be clearly identified. If the answer to that is yes, then you don't proceed to the 3B uh an analysis to look through the factors and that's what the hearings officer expressly said he was doing here and he correctly decided that the the primary uses of the proposal are clearly identified. He didn't have to go applying factors to figure out what they are. Again, you know, here the facility will receive and process uh you know 225 tons of solid waste. It will transfer most of that waste, about 64% of that waste to the short mountain landfill and will biologically decompose uh material organic material to create >> Thank you. >> Yes. And on that there is no dispute that the prohibited waste related use uh that the proposal fits into categories of specific waste uh related uses. The the proposal again it will receive solid and liquid waste from others uh for transfer to another location. There's no dispute about that. There's no dispute that the proposal will involve the manufacturer production of goods or energy from the biological decomposition of or of organic material. The petitioner doesn't challenge the hearings officer's determination that the facility cannot be approved under general open-ended categories like industrial service or government facility because the facility includes waste related uses that are specifically prohibited. petitioner doesn't challenge the findings at record page 24 that the majority of the building square footage is designed to accept process and transfer waste or to produce bio gas or that 84% of the vehicle trips to and from the facility involve the transport of waste. So standing alone, the unchallenged legal framework and unchallenged factual findings support the hearings officer's determination that the proposed use is in whole or in part a prohibited waste related use and the application must be denied. Petitioner also fails to challenge key findings that support the hearings officer's conclusions that the proposed facility is not a government facility where the public is generally not received or an industrial service use where few customers especially the general public come to the site. petitioner on that doesn't challenge the decision's finding. The proposal includes a nearly 7,000 square foot visitor and education center or the finding that the proposal includes 10 additional parking spaces for visitors and two parking spaces for full-size buses. The proposed trip cap doesn't aid petitioner because a single bus load of visitors or two bus loads can bring scores of visitors to the site in a single bus trip. far more people than a few. One final point, petitioners arguments ignore the express wording of LC162803B, which states that it applies only when a use category is not clearly identifiable. The hearings officer didn't by not addressing 3B because the hearings officer properly concluded the use category was clearly identifiable. The hearings officer correctly decided the proposed use as a whole is not a waste related use and alternatively that several of the proposed primary uses constituted prohibited waste related uses because they just match expressly the definition of a waste related use even if there are multiple uses. the 283C comes into play and each primary use is classified in its category and is subject to the regulations for that category. As a result, the proposal must be denied because it includes multiple waste related uses. The hearings officer did not and uh the Lane County Garbage and Recycling Association respectfully request LUBA deny petitioners assignments of error and affirm the decision. >> Thank you. No further questions from the board. We will return to petitioner. You will have your three minutes for rebuttal. Please go ahead. >> Thank you. Uh I want to start by responding to this idea that the argument that if it's allowed as a government facility, it's allowed even if it's waste related. The idea that that's a new argument. Uh, in response to that, I want to quote the 11th page of the petition for review where I wrote, "The government facility use type also allows uses that would otherwise be prohibited in the LI zone." That same argument also appears in the record at page 35, uh, and probably other places in the record as well, but that was the one that I was able to pull up quickly during uh, posing council's argument there. Uh the I I I also want to say that um we a we agree that the petitioner does not contest some of the things that opposing council says that petitioner does not contest. Uh we do not contest that if the uses that the hearings officer determined to be primary uses are in fact the primary uses and if those primary uses are in fact properly categorized as waste related uses and cannot be categorized as a government facility then the overall facility is a waste related use and it's not permitted in the zone. But what we do contest is that those are in fact the primary uses in the first place. And what we also contest is that they are properly classified as waste related uses and that it cannot be categorized as a government facility. I also want to respond to the arguments about the uh Sarti case. uh the way I read the reference to that case in the decision and the way I read that case uh is that it says that there is an inference in those instances that the more general category does not apply. It is an inference but it does not conclusively demonstrate and petitioner does not dispute that that that's what that case stands for and that that is the law. Uh but in this case um that inference is not sufficient for the reasons that we've argued both below and in the petition for review which is that the code explicitly and and and clearly allows uh uses that would otherwise be prohibited if they are categorized as a government facility. And that's because some of those uses that are provided as examples of government facilities would themselves otherwise be prohibited. And the only way that makes sense is if that government facility category is intended uh by the county to allow uses that It's about my three minutes, but I have a few seconds if any there any further questions. >> Not from any no questions from the board. Thank you for your argument. That will conclude oral argument and the statutory deadline for our decision in this appeal is December 3rd. will ask in advance for an extension to issue the opinion no later than December 24th. Is that okay with these parties? >> Okay. Yes. Objection. Thank you and have a good remainder of your day. Thank you.