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Oral Argument 2024-080 Central Oregon Landwatch v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=cCsSaloibf4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Hello, welcome back. This is the time set for luba number 2024-080, Central Oregon Land Watch versus Dashuites County. I'm board chairs Zoodio. Board members Wilson and Basham are also present. I'm not aware of any pending motions in this appeal. There is there anything the parties need to bring to our attention? Seeing none. Uh oral argument is a total of 30 minutes. Petitioner, you have 15 minutes. May reserve up to five minutes for rebuttal. Would you like to reserve any time? >> Uh yes. I'd like to reserve three minutes for rebuttal. Thank you. >> And I will keep track of time and ask that you also keep track of your own time. And just note that the screen that or the clock that is on the screen is not keeping exact time. And then the county, you will have 15 minutes uh for your responsive argument. >> Thank you. With that, petitioner, please state your name for the record and begin. >> Uh, thank you and good morning for petitioner Central Oregon Land Watch. I'm Rory Isbel. Uh, I'd like to start today with some framing of the issues. In this case, we ask the board to determine whether Dashuites County's new comprehensive plan complies with goal 14. Under its former plan, Dashes County has increasingly reszoned its rural lands to allow thousands of acres of new residential and industrial uses outside of urban growth boundaries. These zones that the county applies to those lands are zones created to facilitate previously built and irrevocably committed exceptions to the goals. In various cases uh challenging some of those decisions, this board and the court of appeals have held that the acknowledged status of the county's former comprehensive plan alone ensures goal 14 compliance without any further or property specific goal 14 inquiry. In the challenge decision today, Dashes County chose to update its entire comprehensive plan. The plan has new narrative sections, an entirely new organizational structure, chapter numbers, titles. It deletes old policies, adds new policies in every chapter. The county even adopted three brand new policies directly concerning how Go 14 applies to new residential development on rural lands. Yet the county's response brief argues that uh LandWatch's goal 14 arguments are either outside the scope of this PPA or are a collateral attack on the county's former comprehensive plan. Land Watch today is uh seeking our our day in court to determine whether the plan's allowance of unlimited reszoning of its rural lands for new residential and industrial uses complies with goal 14 and whether the plan's uh authorization of zones created to accommodate past goal exceptions to non-resource lands also complies with goal 14. So to describe what we see as the the key legal issue in this case differently the case law tells us that quasi judicial papas for individual properties need not show goal 14 compliance. If that's true, which it is, there's a lot of case law holding that, then when the county amends its entire comprehensive plan, like now is the only time a petitioner may challenge the compliance with goal 14 of the plans policies that dictate any subsequent um determination of compliance with goal 14 for property specific paps. So if not addressed now, the issue of goal 14 compliance um for these uh serial reszonings and authorization of new residential and industrial uses will continue to evade review. So our first assignment of error um addresses a procedural issue that I want to address. the county failed to follow public notice and hearing procedures for papas um under OS 197610 and an OAR that uh mirrors that statute and and add some detail. So the county did this in two ways failed to comply with the the procedural uh statutes in two ways. First, the county proposed three significant new goal 14 related plan policies after its public hearings and also after the written record had closed. Uh the the statute we argue which is RS197610 sub6 governs alterations to proposed papas and it requires local governments to notify DLCD and by extension the public of significant alterations at least 10 days before the final evidentiary hearing. here. These three new policies um that were proposed after the record closed greatly expand where and how the county allows certain types of residential uses on rural lands, cluster and planned developments. Currently, they're not allowed outside of one uh small zone under the county's former comprehensive plan, but these three new policies added after the record had closed in the new plan um allow those uses throughout all of the county's residential zones, including on non-resource lands. Now, the county did reopen its written record about 2 weeks before it proposed these three policies, but that did not satisfy the applicable POPA procedures. Uh the three policies that ended up being adopted are very different than uh what the county reopened the written record for a couple weeks prior. And uh the statute or S197610 sub6 requires a public hearing for alterations of papas such as this as does the Dashuites County code. So, the county's failure to allow any written or oral testimony on these significant three new policies prejudiced LandWatch's substantial rights to prepare and submit its its case to a full and fair hearing. But also, the case law tells us that failure to follow these pop-up procedures and statute is a substantive miscontrol misconr of applicable law as well. That's the Oregon Leasing Incorporated and Northeast Medford Neighborhood Coalition uh cases from the Court of Appeals. If we agreed with you and sustained that assignment of error on that basis, uh would you argue that it's appropriate for us to continue on to the other assignments of error or would this be a remand on a procedural error and then the substance would be likely to change? >> Um I think a a remand on the procedural error would be appropriate because of what these policies attempt to do. They do address um goal 14 issues which of course our other assignments of error are centered around the compliance of the plan >> remand just on the procedural assignment of error. That's what I'm asking. If we sustain the first assignment of error, do you think it would be appropriate for us to continue on to the remaining substantive assignments of error or would there be a likely change in the county's decision on a reopen record so that it would be premature for us to address those substantive assignments? uh you know I I can't really anticipate what the county would do on that remand, right? If if there would be substantive changes. So I I I don't think I can answer that question as framed because it would sort of be up to the county what they would do on remand there if they chose to merely follow the applicable pop-up. >> Okay. So then are you advocating if we did sustain the first assignment of error we reach all of the other substantive assignments of error? Is that what >> Yes, I I believe I am. Yes. >> Thank you. and especially, you know, this this decision has is appealed on reconsideration. So, it's been several years uh that the county has has um worked on this this new plan. So, I believe LandWatch would ask that the board to address the assignments of error to um you know reach finality on some of these issues. And then on the substance, I I think we all here understand that there is a line of cases, the Asetti line of cases. Which zones and plan designations did those cases apply to and which are at issue in this appeal? >> Thank you. Uh the plan designations that those cases apply to are both the county's rural residential exception area plan designation and its rural industrial and rural commercial plan designations. There's two zones uh that implement the rural residential exceptionary plan designation. That's the MUA and RR zone and uh two zones for the rural industrial and rural commercial plan designations that are uh called the same rural industrial and rural commercial. Uh you mentioned the asetti line of cases. There are several other cases that uh hold something similar that the county's uh the acknowledged status status of the county's plan means that any subsequent plan amendments into those zones automatically complies with goal 14. The 710 properties case holds that for uh rural residential exception area. and not only the Aseti cases, but some related case law, including a court of appeals case affirming this board's decision in the last ranch case. Um, just last week, the court of appeals affirmed that the county may rely on the acknowledged status of its plan to find that any subsequent um plan amendment into the rural industrial zone anywhere in the county, any size acreage, um, also complies with goal 14. So assuming that we adhere to our prior decisions and the court of appeals prior decisions addressing these goal 14 issues, what remains at issue in this case? >> What remains at issue in this case? I uh LandWatch believes that this plan itself must um impose some sort of goal 14 uh criteria on its policies that allow those quasi judicial plan amendments. Uh I believe the Supreme Court in the Curry County case back from 1986 was quite clear that uh resonings on rural land uh in order to show compliance with goal 14 requires a sightspecific inquiry. Uh so it's our position that this plan needs to require that goal 14 sightsp specific inquiry if subsequent papas that the plan sort of tease up um don't themselves need to show that sight specific goal 14 inquiry. >> So the county is has responded defending its decision essentially characterizing your position as attempting to relitigate those cases in the situation of a papa. Why is that not the case? And what's different? What's going on with this papa versus what the county has done in um application specific cases? >> Sure. Um so we are not attempting to relitigate those cases. Those are final and closed. They're holding stand. What those cases tell us is that it's it's the county's comprehensive plan uh that shows goal 14 compliance. So now that the county has chosen to update its entire plan which authorizes certain zones to be applied to certain plan designations, we believe now is when the county must show goal 14 compliance of applying those zones anywhere across the county. So, this is not uh >> Did the county need to update its plan in order to do that or could it have continued doing what it was doing on a case-byase basis under those lines of cases? Uh, >> I believe it could have continued. It was under no legal obligation and we stay this we say this state this in the brief. It was under no legal obligation to update its comprehensive plan, but it chose to and its papa notices, its public hearing notices in describing the scope of this papa describe the entire plan. Um, you know, the hearing notices tell the public that all chapters of the plan, transportation, housing, farm and forest lands, economic development, um, all of those issues, all of those, you know, related goals are within the scope of this papa. So I yes I believe they could have continued under the old plan but they chose to update the entire plan and replace it with a new plan. So, we believe that because they chose the county chose to do that, then it needs to show compliance with all of the goals, including goal 14. Uh, and you know, based on past experience, obviously, this uh appeal is somewhat motivated by existing case law under the former plan um about how the county adopts non-resource uh uh plan amendments. Um so uh it because the county chose to update its entire plan, we believe they need to show go 14 compliance um at because individual uh property specific papas have not needed to under the former plan >> and you're at your 12 minutes. You can continue or if the board has any questions otherwise we could reserve your time for rebuttal. >> I will reserve my time for rebuttal if there are no further questions from the board. No further questions. Okay. Thank you. You'll have your three minutes for rebuttal and we'll turn to the county for your argument. Please state your name for the record and begin. >> Good morning. Stephanie Marshall, senior assistant legal counsel for sheets county. Thank you. And um may it please the board. Um uh I've been listening to the questions that um you've uh that the board has presented to petitioners council and um uh I think I will start by focusing in on some of those questions on the procedural question. Um whether or not we call what the county ultimately adopted as a repeal and replace I think is a matter of semantics. Um, what I've not heard from Land Watch uh from the petitioner in this matter is why previously acknowledged plan policies and goals uh that were acknowledged um and were not changed. Why are those now non-compliant with goal 14? Um LCDC or excuse me, DLCD reviewed the plan uh reviewed those policies that have not changed. Again, whether or not we call it a repeal and replacement, I think is almost beside the point. um those plan policies as we've shown in our red line and and uh comparison document were not updated. They were previously acknowledged as compliant with goal 14 and nothing has changed in those policies. So again, um, putting aside the questions and arguments of collateral attack or otherwise, um, I I've not heard that argument from landwatch as to why previously acknowledged policies and those associated goals are now non-compliant with goal 14. Um, I want to turn to the procedural issue. Um our brief uh covers this in in detail as to how um legislative actions are entitled to evolve over time, not necess not necessitating new um new notice. Um those specific policies, first of all, the the 10.1.1 is not a new policy at all. 10.1.2 and 10.1.3 are two new policies. We agree. Um, we also submit, and this is covered in our brief, that LandWatch had an opportunity to c uh to comment on that pol on those policies. Um, and I've got the record sites 1311. These are the recon record 1311, 809 to 811, 821 to 8:23. Um, they had multiple opportunities to submit oral and written um, testimony. Um, the written record was reopened. the policy uh proposal was put out there and it was ultimately divided into two subsections uh 10.1.2 and 10.1.3. um the language itself, you know, we just decided to to to break them out further, but um we submit and again as covered in detail in our brief that LandWatch did have an opportunity to comment on the proposal there and and moreover the proposal is uh basically to incorporate existing state law and all of the policies that are challenged um in petitioners brief have to do with compliance with state law. every single one requires the county to apply state law. Um it's it's I still haven't heard how that is non-compliant with goal 14. Um I think you've just heard from petitioner that that their um their concern, their fears have to do with implementation. um when an actual application comes in uh to reszone and um amend the plan for a specific parcel of property and that again pursuant to state law is is um reviewed and decided on a case- by case basis. Sometimes goal 14 is is found compliant with and every single one of those decisions have been held up um held held uh sorry upheld there's the word upheld by Luba in the court of appeals either on in the first instance or on remand and when it goes back up and um Mr. Isbel just mentioned the last ranch decision which um came out from the court of appeals just a few days ago. Um again upholding Luba's determination that the goal 14 issues were addressed um and and are addressed uh in the asset line of cases. I've not heard um any any reason why or any any explanation as to how this is a plan level um issue before uh the land use board of appeals. um instead of a we don't like what's been happening uh matter and we don't want this to happen in the future. Therefore, the county has to put some sort of additional sidebars even though we have sidebars in the plan that require compliance with state law and in particular that OAR which allows the um clustering and PUD developments. um again with with very specific um uh procedure that's involved with with how those are reviewed and um decided. uh in the petitioner's brief um they actually stated that they were taking issue with uh Luba's decisions and the court of appeals decisions and they came right out and said we're we're challenging these development regulations um that allow for those clusters and PUDs and and that is outside the scope of of Luba's review in this matter and and that's where the county's argument stands is is we have to look at the the plan the plan itself um the fact that that these um that most if not all of these policies were already acknowledged by DLCD as compliant with goal 14. No changes were made regardless of we of whether we call it a repeal and replacement. Um I'm still waiting for the argument as to how previously acknowledged policies are now non-compliant with goal 14. Um council if I can ask you if I understand correctly petitioner is arguing that these policies extend cluster development rural residential road development to non-resource lands is that and he argues that's inconsistent with goal 14 is that the kind of argument that's better addressed at this level of a comprehensive plan amendment >> I think that that's better addressed on a case-byase basis because again the plan is talking you know the plan is the umbrella the plan is the overview it's not talking about anything specific. It's and these policies are in the residential development um section of the co of excuse me uh chapter of the plan. Um they're not talking about specific zones. Um you know it the the policy the previous policy 3.1 3.3.1 was in the um was in the uh resource zone chapter. Um these are now housing policies and um where they are applied will depend on the individual application and and how the county processes that again with the requirement that anything complies with state law and LandWatch will um I suspect and and and I encourage them to continue to uh participate um with respect to these individual or future individual applications when they come up and and the county will then decide, you know, and determine, you know, and and take into consideration, you know, is this is this the appropriate place for a cluster or PUD development under state law. Um the plan is is not addressing the zone in which they're they're um these provisions are um applied other than the fact that that we have those two longstanding since 1992 development regulations that are acknowledged and are outside the scope of this appeal and yet we're were essentially I think if I recall correctly LandWatch says yes we are challenging those development regulations. I could find the site in their brief, but um unless you have a question on that, I'm I'm happy to move on. >> Okay. So, if I understand argument correctly, he's arguing that as applied to any non-resource land, these policies would be in contrary to goal 14. It's not an as applied or this particular location. Is that am I misunderstanding the argument? >> Is right. Right. And what I'm what I'm not hearing from Landwatch is with the requirement in the plan that um that they comply with state law. I I don't I'm not sure what more Land Watch is looking for. I mean, we're not allowed to disregard goal 14 when we apply uh when we review a um a cluster or PUD development. We're not allowed to ignore the OAR. Um, so, so really what what more can be what more can be added? Um, I'm I'm unclear because again, this this really seems to be a a dis dislike disapproval of decisions that the county has made and some sort of uh direction to the county uh from Luba or or or otherwise to to not allow this to to happen at all. And you know the plan is generally stated. The plan is generally um addressing residential development and it is generally saying you know if you can go through if an applicant can go through the OARS and can established that they are compliant with them and they comply with goal 14 etc etc then perhaps that person can get something approved. The plan doesn't drill down to that level of detail. The plan is an overview and and uh and then the development regulations flow from the plan and those development regulations are in place. Um I think also in our brief we we um we addressed the fact that the the impetus for these two new policies um came from uh the the board's ruling in um Destiny court and that was last year uh where uh Luba had um had a question um regarding the inconsistency of the plan with um a potential PUD or cluster development. So, we amended the plan to clarify like this is how it's been. This is how it will continue to be. We still have those sideboards and um those sidebars those side bar boards are not removed. Um, and we're just making it more clear in our plan. And um as I stated in the brief um it was truly a response to the Destiny court um decision from Luba uh to clarify, you know, we we never intended that um that the 10acre minimum lot size in what was then 3.3.1 and is now 10.1.1 uh precludes potential cluster or PUD development to the extent it is uh consistent with state law. Thank you. >> Thank you. Um I'm not sure how many more minutes I have. Um I Let's see. Let me just look at my notes. Um want to make sure that I've covered everything that has come up. Um um let's see here. Um I don't think we need to use the word collateral challenge or collateral attack. Um again, uh the the question that the county has is why previously acknowledged plan policies and goals are now non-compliant with goal 14 um where they were not changed. and th that uh that argument applies to the commercial and industrial uh arguments that land has presented. Um and then um let's see here with uh I and goal 14. Um what what LandWatch is asking ultimately is that they get to reweigh the policy decisions of the board of commissioners and the policy decisions of the board of commissioners in Dashuites County are unique. Um there we're one of the fastest growing counties in the state. There is a great need for housing development. Um there is great pressure in that regard. We also uh are balancing that against, you know, environmental considerations, goal five. Um none of that, of course, is in um in this appeal. Um but we're, you know, when the when the board made their decision, they were weighing multiple considerations and figuring a way to move forward. Um, I think really at the end of the day what what I'm hearing is is a uh a challenge to the concept or the idea of PUD and cluster developments. Um, I'm not minimizing the appeal uh the the appeal issues that relate to commercial rural commercial or rural industrial. Um but with the court of appeals recent decision um just a few days ago um in in last ranch um I think that that issue is is asked and answered and um and and there's nothing more to to say on that. Um with respect to cluster and PUD development potential um this is not anything new either. Um the uh development regulations that have been in place in Dashes County since 1992 um are not up for debate. They are not ch they cannot be challenged um in this in this appeal. And um Luba um cannot make a ruling. I would I would I would submit Lupa's ruling cannot address the legality of those development regulations. um we're only talking about the plan and um and the county submits that LandWatch has been involved and has had multiple opportunities to and and very thoroughly and um uh very much appreciated um has been involved in the um in the development of these plan policies um 10.1.2 2 and 10.1.3 which were a direct um outgrowth from the Destiny court decision. Um but again do not introduce a new type of development or a new manner of reviewing development applications. The plan does not go that far. The plan simply say states that these are permissible. Generally speaking, um if an applicant uh decides to go through that way and they're not limited by the 10.1.1 um 10 acre minimum lot size provided that they can they can comply with state law. And on that I will uh rest and um happy to answer any questions. >> Thank you. Uh thank you for being mindful of your time. No further questions from the board. We will return to petitioner uh for your three minutes of rebuttal. Go ahead. >> Uh thank you. Um so I I heard the county ask a few times uh that they haven't heard Landwatch uh explain why policies that were previously acknowledged as compliant with goal 14 might not be now. Uh well I I uh direct the board to the court of appeals case 1000 friends of Oregon v. Jackson County 79 ORAP 93. It's cited in our reply brief. That case holds that an amendment to one provision of a plan can affect the way in which another provision operates or affect the land uses upon which it operates and that those secondary effects are themselves goal compliance problems. So land watch in this appeal challenges compliance of the entire coordinated plan with goal 14. Uh, the county, as I've stated, updated all chapters of the plan, including certain policies directly related to goal 14 that affects the entire plan's compliance with goal 14, even if some of the language is the same as the past plan. It's an entirely new plan and we do believe that the county needs to uh justify the plan's compliance with goal 14 a new even if a past version of the plan with a different structure, different policies Uh, and I I want to point out that some of those past um property specific decisions uh the the county um in its final decision in some of those has said that either goal 14 does not apply or just flat out that goal 14 is met because the plans and its implementing zones have been acknowledged. Uh so to say that future uh plan amendment decisions will have to show goal 14 compliance a new that's sort of counter to the case law that's guiding the this appeal I suppose um that says that no the county does not have to show go 14 compliance in those decisions and I'll point again to the 710 properties decision the SETI cases last week's last ranch case um we see this as an issue of of evading goal 14 view. If goal 14 compliance doesn't need to be shown now at the comprehensive plan level and also doesn't need to be shown in an individual property specific papa level, then when will it be reviewed? Um, this plan authorizes the county to reszone resource land for residential and industrial uses anywhere throughout the county. We imagine a scenario that this plan authorizes where let's say 10 or 20 properties in a remote corner of the county are reszoned for industrial uses and each of them develops petroleum storage or plastics factories with that concentration of industrial uses outside of urban growth boundaries with no uh real like minimum lot sizes required. These could be 5 acre parcels uh 20 acre parcels. Would that concentration violate goal 14 by with that amount of industrial uses in one spot outside of urban growth boundaries? We believe it would. And and now at the plan update level, the case law tells us is the only time that >> a petitioner like Landwatch can raise that argument about goal 14 compliance. >> Thank you. That uh that is your rebuttal. Appreciate your argument today. That will include oral argument. Uh the statutory due date for our decision in this appeal is March 3rd. We'll ask the parties to agree that we may issue our decision uh by March 24th. Is that okay with these parties? >> That is fine with the county. Thank you. >> Thank you. >> Yes, that's fine. >> Okay. Thank you. Have a good remainder of your day.