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OA 2025-070 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=lc0n7pw-GtU). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral argument in LUPA number 2025-070, Central Oregon LandWatch versus Deschutes County. I'm Board Chair Zmudia. Board members Wilson and Basham are also present. Please mute your audio when you're not speaking. That will help with our recording and this oral argument is being recorded and live-streamed. I'm not aware of any pending motions in this appeal. Do the parties have anything to bring to our attention? >> No. No, we do not. >> Okay, thank you. >> Nothing to add. Nothing to add. Nothing to add. >> Appreciate that. Petitioner, you have a total of 15 minutes. May reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> I would. Thank you. I'll reserve 3 minutes. >> Okay, I will keep track of time and ask that you also keep track of your own time and the clock on the screen is not keeping exact time. It's just there for reference. Um and interveners, you will have a total of 15 minutes for your response. Again, I will keep track of time and ask that you also keep an eye on it yourself and with that, petitioner, please state >> Thank you and good morning. Uh may it please the board. I'm Rory Isbell for petitioner Central Oregon LandWatch. In today's challenged decision, Deschutes County adopts a reasons exception to goal for, in order to redesignate and rezone a 58-acre parcel of forest land adjacent to the city of Sisters. And it proposes to redesignate that land to the county's rural residential exception area plan designation and multiple use agricultural zone. I'll start with what is both a procedural and substantive issue, and that's the county's failure to characterize the nature of the proposed use and the purpose of the goal exception. The county's failure to provide petitioner with a consistent and accurate description of the proposed uses for which the goal exception was sought sowed confusion into the entire local process about which criteria apply. Luba has held that in a very similar situation, when a local government uh seeks to adopt a reasons exception to a resource goal, that quote determining which criteria apply requires that the local government identify the character of the use for which a reasons exception is proposed. That's DLCD versus Umatilla County, 39 Or Luba 715. And logically, it could not be any other way because when a goal exception, whether a goal exception can be approved, depends on what the goal exception is for. And that's something the county here never clarified. Throughout the local process, the character of the proposed use and the reasons for which the goal exception was sought remained unclear. That confusion even continues today. Uh in its brief, intervener respondent repeatedly argues that the purpose of the reasons exception is to create a transitional holding zone related to um a potential future urban growth boundary expansion for the city of Sisters. Meanwhile, in all of the public hearing notices uh below, the county characterized the proposed reasons exception as intended to quote develop a needed housing residential development inside the city of Sisters UGB. And by rezoning the subject property to the MUA zone and without limiting future use of the property to fit the reasons that the county would end up adopting a goal exception, what the county decision actually approves is simply all of the uses in the county's MUA zone. So, this ongoing uncertainty of the proposed use and and character of the proposed use violated several applicable procedural requirements related to notice and description of the application, and those violations did prejudice petitioner's substantial rights to prepare and submit its case to a full and fair hearing. For example, uh petitioner alternatively alternatively argued below that the criteria governing rural residential use apply, or otherwise the criteria governing urban uses of rural land apply, because the proposed use must be either urban or rural, but the county rejected both arguments uh in its its failure to characterize the nature If the county had clarified the nature of the use, uh Land Watch could have meaningfully prepared and submitted its case fully in the public hearing process, but that did not happen. Relatedly, an administrative rule about planning and zoning for exception areas 660-004-0018-4A requires that for a reason exception, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception. The decision here fails to comply with this rule by failing to so limit the uses allowed on the property, and this flows from the county's failure to characterize the nature of the proposed use and exactly what the goal exception is for. Uh this makes this case differ from the Columbia Riverkeeper decision argued by intervener respondent where industrial uses were clearly proposed and the decision there included conditions of approval requiring quote that future conditional use applicants to demonstrate that a particular proposed industrial use was justified in the exception decision. Instead of identifying and constraining the character of the proposed use as happened in Columbia Riverkeeper, the decision here apparently authorizes all uses allowed in the county's MUA zone without limitation violating that I'll move on to the next issue which concerns which criteria actually do apply to the decision made by the county. So LCDC's administrative rules for reasons exceptions provide that if an application seeks an exception to accommodate one of an enumerated type of use provided for in the rule then that specific criteria in the rule must apply to the to the application. Here what the decision does is convert the property to the county's rural residential exception area plan designation and it rezones it to the MUA zone. As that plan designation name implies, it is a rural residential designation and the MUA zone is a rural residential zone. In fact, the MUA zone was created by the county specifically to accommodate other types of goal exceptions, built and committed exceptions back in 1979 in the county's first comprehensive plan. Counter to the response brief, the decision itself record 55 to 56 does discuss plans to quote add rural housing on the property in its discussion of the goal for exception. So that makes this situation unlike that in 1000 Friends of Oregon v. Jackson County, which the decision relies on, where that application there proposed an industrial use, but the enumerated use in LCDC's rules um used that non-exclusive language of including but not limited to. So, it granted more leeway to the local government there um to either apply the the catch-all provision or the specific industrial um criteria. This situation is like that in the Rinehart v. Umatilla County case, where LUBA found that a a decision adopting a reasons exception to rezone resource land to a county rural residential zone must apply that uh enumerated criteria in LCDC's rule. The decision errors by failing to apply that criteria and should be um reversed on those grounds. Unless there are no questions, I'll I'll keep moving on to the next issue. >> If we sustain the first assignment of error and agree with you that that was a procedural error on the notice, uh your brief says that that requires a plenary remand. Would that essentially, if we did sustain the first assignment of error, would we need to reach the other assignments of error, or would that kind of reset the whole issue? >> Um I I think you would need to reach the other assignments of error, respectfully. Um and that relates to the reasons actually identified by the county um which I I think uh so this is in petitioner's third assignment of error um which I'll explain more now if if that adequately answers your question for now. >> Okay, go ahead. Thanks. >> Okay, thank you. So, that third assignment of error concerns the actual reason cited in the decision, which uh to relate to your question, you know, I I I think differs or is separate enough from the procedural issues here um uh because it it points to what the application actually proposes and what the decision uh does. It it redesignates land by taking a goal exception based on what we argue are unexceptional reasons. So, the reasons identified by the county are just not sufficiently weighty to justify an exception to the goals. Instead, they are make weights as LUBA used that term in the Todd V. City of Florence case, uh meaning that by relying on these reasons, uh the requirements of goal four would be rendered meaningless and would justify making thousands of other similar resource land properties across the county and the state also eligible for for a goal exception. So, the first reason actually identified in the decision concerns the subject property's suitability for commercial forestry operations. Um several um cases have stated that uh whether a subject property is correctly designated under the resource goals is really not relevant to a goal exception decision. Uh and that's this year's Central Oregon LandWatch V. Jefferson County case, 347 Or App 454, and the Friends of Yamhill County V. Yamhill County case, 47 Or LUBA 508. The second reason identified in the decision is similarly [snorts] irrelevant. That reason is that the county found that the MUAS zone confers equivalent protections to forest resources. Again, uh whether existing forest zoning protects forest resources adequately adequately is just not at issue. And even if it were, that uh this reason is is similarly make weight. It does not rise to the level to justify an exception to the goals. The final reason cited by the county is that the city lacks a transition zone nearby. Uh even if true, that reason also is unexceptional and may wait. Um, but you know, more directly or factually, the city of Sisters, um, nearby in Deschutes County has hundreds of acres of existing rural residential exception area designated lands. And throughout the county, the county has over 3,000 acres of vacant rural residential exception lands, including over 600 acres of vacant MUA zoned lands. Intervener respondents brief lays quite bare that its intention, and I don't see this as clearly in the county's decision, but intervener respondents intention is for the subject property to make uh, to become higher priority for urban growth boundary inclusion and to, uh, develop urban housing, um, uh, should the property be included in the urban growth boundary. If that is this decision's main reason for the goal exception, uh, that reason is nothing more than a desire to make resource land higher priority for a hypothetical UGB expansion. If that is a valid reason, then again, thousands of acres of resource land, county and statewide, would qualify for similar reasons exception, making this decision's reasons exceedingly unexceptional, and we believe warranting reversal as prohibited as a matter of law in line with LUBA's past case law on a similar issue. >> So, to get back my question, you I think your answer is the third assignment of error has more full relief, so we should go to the third assignment of error before we get to the first procedural assignment of error. So, if we That's right. >> We would not get to the first, but if we sustained your first, you would want us to get to the third. Am I understanding you correctly? >> That is correct. Yes, thank you. >> Thank you. >> Um, I'll quickly make goal 14 um, points for our fourth assignment of error. I'm probably into my rebuttal, but four quick points. The decision's primary goal 14 finding is that no site-specific goal 14 analysis is required. That's counter to several recent um decisions from Luba. Second, the decision adopts a goal exception, which would make this property exception land, invoking LCDC's rule governing uh rural residential exception area uh and allowed uses, but the MUA zone applied to uh this property exceeds the amount of development allowed in exception areas under the rule. And that's something Luba recently found in the uh Po- Poheku Farms case. Um third, much like the very recent uh BCL decision in Luba number 2026-015, the decision here violates goal 14 under a Curry County factor analysis because it allows um a new 12-unit neighborhood with no minimum lot sizes adjacent to an urban growth boundary. And finally, just as in that BCL decision and last year's uh Destiny Court decision, uh the decision also violates the Deschutes County comprehensive plan policy 3.3.1 by authorizing new residential lots of less than 10 acres directly counter to that policy. Um so, I'll conclude there by just again noting that we believe reversal is appropriate um because the decision is prohibited as a matter of law. Thank you. >> Question. Okay. Thank you. You will have 2 minutes for your rebuttal, and we will turn to intervener for your argument. Please state your name for the record and begin. >> Uh Christopher Koback on behalf of the owner of the McKenzie Meadows Village LLC. Is my microphone working all this time? >> It still sounds a little foggy. I don't know if you can adjust it to be closer to your mouth, maybe. It's We can hear you, but it has like a little static behind it. >> have We're going to have to order another one. Um so, good morning and thank you for your time. I'd like to start with the first assignment of error in the preservation argument, which uh petitioner did not respond to. Um in in the oral argument. So, the preservation argument is they never raised the 197610 notice uh issue below. And their excuse for it seems to be that it was not included in the record until the second amended record. Well, that doesn't really carry the day because you have to look at the nature of the notice. That notice was one It was just a form fill out with LCD. There was no requirement that anybody get notice of it except LCD. So, it was up to the petitioner's due diligence to discover. And I know they got the public hearing notice. They admit that and they raised issues over it. They didn't get that through the mailing, either. They're not listed on it. So, they had to have gone to the file at the county house to find that public notice. Well, the public notice told them exactly where the link was to the file. They could have gone to the file, found the LCDC notice, and raised their issues there. They don't explain why they didn't do it or how they didn't uh why why they did not do that. So, we don't believe that the reason they give for not preserving this issue isn't legitimate. Um as to the notice itself, I compared it to the statute, the LCDC notice uh that the county submitted. It's in the record. It complies 100% with the requirements of the statute. It lists every element. Uh petitioner confuses the the the statutory language. The language says there must be a summary of the proposed change. Petitioners argue that the defect is didn't include a summary of the proposed use. That's not what the statute requires. But the notice, if you look at it, would clearly identify the um proposed change in the zone. And finally, the North Medford case is very distinguishable because in that case there was no notice. The county didn't vote or the city did not believe it needed to give a notice. Um and so that's on on the first notice issue. The public notice uh petitioner agrees they have to show substantial prejudice or prejudice to their substantial rights. The first uh letter that they submitted to the hearing's officer, it record 730 clearly state that they knew that the purpose of the application was to rezone the subject property so it could be added to the sister Eugene being urbanized. Then they went on and in over 200 pages including exhibits addressed all of their arguments. Um so they had an ample opportunity to understand the issue, they did understand it, and they submitted significant material. Then in front of the board at page 267 through 278, another very detailed um submission addressing what they believed the town errors in the county's or the hearing's officer's decision was. And the hearing's officer's decision clearly discussed this application in the context in which it was presented, which is to create an opportunity for the city to bring this property in for needed and um affordable housing. Um so the second assignment where I'm just going to briefly touch because it's briefed very well, there is no requirement that that an applicant uh designate a specific use and there's nowhere in the application where the applicant described this as rural residential. Um if you look at all the cases on this specific topic, everyone involved a specific proposed use. And and and and but it's not required. And the Riverkeeper uh case says that. There's nothing that requires an applicant to define a specific use. If you don't define a specific use, the rule itself is very clear. You go to the catch-all provision. Now, the only argument you heard is because we asked for an MUA 10 zone and one of the uses is rural residential, you have to interpret that our request is for rural resi- residential development. But, if you review the application material and it's around a lot of it is at 20 uh 2051 through 2061, there is nothing that describes it as such. It is described it consistent with the notice that the city or county issued. It was to create this zone that would allow priority one and get over an administrative hurdle, a regulatory hurdle, to the city to consider property that it deemed to be one of the best to meet this needs. It is property that the same owner developed for a similar use right below it, stubbed [snorts] utilities, and planned to have it there. There was never any other use proposed for this other than bringing it into the UGB and continuing the mission of providing the housing that Oregon needs. And in this record at 20 uh 51 through 2061, you can see this gets kind of into the third assignment of error, were there reasons? Is this an exceptional circumstance? Well, the application throughout, but specifically on those pages I provided to you, detail the housing prices that we are facing and that the city and the county are facing. There's statistics in there. All of that information is in there to create an exceptional circumstance and we addressed all of the criteria. Um admittedly, it was a challenge given the nature of the application, but but the the application addressed the criteria in that context. Uh specifically, it went through all of the exceptional circumstances, which I just noticed, they went through all of the barriers of development on the existing acreage that petitioner just mentioned that are already exception areas, explained why those properties could not develop at the densities needed to meet this exceptional circumstance. It you would not do anything for the housing prices to go out in the middle of nowhere as petitioners suggest this opens the door for and try to develop rural housing. That's not going to make the impact that we need. What makes the impact is doing exactly what my client wants to do and and the city supports if we can get this rezoning done, bring it into the city, develop it at a density that will have an impact. There are no development barriers. So that was what the application was and on the findings, the hearings officer specifically references the application material and he discusses all of the 197732 criteria that that petitioners say it were not addressed and he addressed them in detail. Um and and and he mentions those and then the board specifically incorporated his findings. So if you look at the the findings in the context of the application and the the discussion that the the hearings bodies, the decision makers had referring to that material, there are enough findings there to support an exceptional circumstance. And Todd, the only exceptional circumstance was that the tribal property didn't have development restrictions. So goal goal 11 didn't matter. That's not very exceptional in my opinion compared to what the circumstance that we're facing in Central Oregon on housing. On the fourth assignment there, I just want to mention there's there's a >> Before we move on to the fourth assignment of error, um under the third, it seems like at least your primary reason for this is that the city needs to expand and they want to put this into the UGB and this is a transition zone to allow that to happen. >> Correct. >> So if if everybody agreed that the UGB doesn't need to expand for a long time, this would not get approved. Is that right? >> Um I think I follow the question. If there was no current UGB expansion going on, I think it would be a difficult application to approve. But as we have cited in our material, the city is in the process. They have They evaluated our property, and that's in the record. It's in the supplemental appendix. >> Right. >> I think I think the fact that it's ongoing is the reason this application can be approved and should be approved. >> Right. So, you're hanging your you're hanging your hat on the fact that this can eventually come into the UGB. That's the reason. Is there anything in the decision that like if it just gets approved there's no guarantee this comes into the city, right? You would be able to the the applicant would be able to do whatever is allowed under the MUA zone that would that they could do that would sort of defeat the purpose, wouldn't it? I mean, if if you're supposed to bring it in if it's supposed to get approved to come into the UGB, and then it turns out it doesn't come into the UGB, you're getting something approved that wouldn't have gotten approved otherwise. Is there anything in the decision that restricts this to only be able to come into the UGB? >> I don't believe there is. Uh we we addressed I mean, we addressed it a little bit differently in the material because and the decision reflects this is there was some discussion about what happens in the interim. Everybody anticipated it would be annexed, but there would be a short period of time before annexation. And part of the the conditions that Commissioner Chang wanted in there was to make sure that in this interim period that the resources were protected. And so, we addressed kind of the county standards for rural residential, whatever MUA uses could be in that context. But it was always I believe was always anticipated by everybody in the in the in the proceedings that it would be annexed shortly. Um and I think the board in their minutes there in the supplemental record tell you that. That was the whole purpose. They rushed this. They declared emergency to cut off time. Um I I don't believe the county would not bring it in. And it is a county decision, too. That's That's the the application for UGB expansion is at the county. Um so, I think the evidence in the record indicates that if this decision is affirmed, this property will be be in the city and it will be developed under city regulations to meet the housing crisis. So, if I can briefly, I know I might run out of time, but I want to go to go go 14 and the policy issue because I think there's a really important distinction in the cases. In BCL BCL, your decision said at page 10 that the the county's findings assumed that the property if brought in could be developed at at cluster densities. And that was the same thing in density court. Now, I juxtapose that with your discussion of the Redside case in Pacula Farms where you didn't you said that approval did not offend goal 14 because the nothing in that context of that application indicated an intent to do anything other than 10-acre parcels. So, I think you have to really look granularly at the proposal. And I can tell you from all of our application material and everything I know, this property will never be developed with a cluster development or in development other than urban development as part of the city. That is the commitment, that is the mission of the MMV, and it will never be developed and there's nothing in the record that would allow you to conclude that it >> Questions? Okay. Thank you for your argument. We will turn back to petitioner. You'll >> Thank you. Um petitioner did preserve the ORS 197.610 issue by commenting to the county that, quote, the county has a duty to provide notice to the public that a goal exception is proposed and also must summarize the issues in an understandable manner. That's at Rec 269. So, whether petitioner identified the specific statute shouldn't matter under the preservation rules from the Bolton Pliska cases because petitioner clearly raised the substance of the issue. Uh, I'll also note that, um, you know, because this concerns a PAPA, case law holds that no prejudice to a petitioner is actually required because notices of PAPAs are also substantive violations of the goals where they relate to the substance of the goals. So, they are not just preservation, uh, excuse me, not just procedural issues, they're also substantive issues. And here, uh, you know, notwithstanding prejudice did actually occur to petitioner because the county again refused to identify the character of the use. So, petitioner had to take a kitchen sink approach and guess about what was actually being proposed and which criteria apply and, uh, you know, try to make arguments under all of them. Uh, the MUA zone is a rural residential zone. It was specifically created to facilitate rural residential exception area development in 1979. That's in the record. Yes, it allows other uses just as all residential zones allow some other uses outright or conditional, but it is expressly an exception zone created to accommodate rural residential development. Uh, and the decision here fails to limit future, uh, uses, um, to the purpose for this goal exception. And again, that makes it differ from the Columbia Riverkeeper case. Uh, the reasons in the decision are are are just not exceptional. Um, every city in the state has housing needs and goal 10 and goal 14 obligations. The city of Sisters is in the process of amending its urban growth boundary and it's proposed to do it without the subject property. It has ample exception land. So, first priority UGB lands without this property. >> I mean, you've reached your time, too. >> Thank you. >> That will conclude all argument. Uh, the due date, statutory due date for our decision in this appeal is July 29th. We'll ask the parties to agree to an extension so that we issue our decision by August 19th. Is that okay with these parties? >> Yes, it is for petitioner. >> Yes, yes, thank you. >> Thank you, appreciate that. Have a good