Save TV Butte v. Lane County

Whether a local government’s errors under ORS 197.610 require remand depends not on whether the petitioners can demonstrate prejudice to their own substantial rights, but on whether the errors call into question whether the process performed its function.

In 2018, the county adopted a post-acknowledgement plan amendment (PAPA) to add 107 acres to its inventory of significant aggregate resources, and to plan and zone those acres for mining purposes. Because LUBA concluded that 61 of those 107 acres did not qualify for inclusion in the inventory, that decision was remanded. On remand, the county adopted a new PAPA to add only 46 acres to its inventory, but to plan and zone the same 107 acres under the original PAPA for mining purposes. The county notified DLCD of that decision 17 days after the final evidentiary hearing.

Under ORS 197.610(1), local governments must submit PAPAs to DLCD at least 20 days before the first evidentiary hearing. Under ORS 197.610(3), that notice must include the text and a brief summary of the PAPA, and the date of the hearing. Under ORS 197.610(6), if a PAPA is altered such that the notice no longer reasonably describes it, the local government must provide DLCD with notice of the alterations at least 10 days before the final evidentiary hearing, which DLCD thereafter provides to the public. In prior decisions, LUBA has noted that the purpose of ORS 197.610 is to expand notice and participatory options for DLCD and members of the public that may not receive local notice, and has held that whether a local government’s errors under ORS 197.610 require remand depends not on whether the petitioners can demonstrate prejudice to their own substantial rights, but on whether the errors call into question whether the process performed its function.

In the first assignment of error, petitioners argue the original PAPA was altered such that the county was required to provide new notice. Intervenor responds that no new notice was required because the new PAPA reduced the acreage added to the inventory as required by LUBA. Because the county’s assumption—that a reduction in the amount of land included in an original PAPA may not alter the PAPA such that the original notice no longer reasonably describes it—is supported by neither the language nor the legislative history of ORS 197.610(6), and because the fact that the alterations resulted from LUBA’s remand does not affect that conclusion, LUBA agrees with petitioners that new notice was required.

Petitioners also argue the new notice provided to DLCD 17 days after the final evidentiary hearing was inadequate to satisfy ORS 197.610(6) because it was not sent at least 10 days before the final evidentiary hearing and because it did not accurately describe the alterations. Intervenor responds that the new notice’s untimeliness was cured because the notice was provided during the open record period. Because ORS 197.610(6) requires that notice be sent before the final evidentiary hearing, regardless of how long the record remains open; because, in this case, the record was open only for responsive evidence; and because the new notice included materials that did not accurately describe the alterations, LUBA concludes the totality of these errors make it doubtful that the ORS 197.610 process performed its function. The first assignment of error is therefore sustained and the county’s decision is REMANDED.