Oregon Department of Fish and Wildlife v. Crook County

Although not an express requirement under ORS 197.835(9)(a)(B), LUBA has always required that parties object to procedural errors at the local level, if there was an opportunity to object, so that the local government has an opportunity to correct the alleged procedural errors; it follows that where a party has opportunity to object but fails to do so, that party cannot assign error at LUBA based on those procedural errors. Confederated Tribes v. City of Coos Bay, 42 Or LUBA 385, 391-92 (2002); Torgeson v. City of Canby, 19 Or LUBA 511, 519 (1990); Mason v. Linn County, 13 Or LUBA 1, 4 (1984), aff’d 73 Or App 334 (1985); Meyer v. Portland, 7 Or LUBA 184, 190 (1983), aff’d 67 Or App 274 (1984); Dobaj v. Beaverton, 1 Or LUBA 237, 241 (1980).

Before LUBA for the third time, Oregon Department of Fish and Wildlife (ODFW) appealed the county’s decision that changes the zoning for a one square mile (640-acre) property from EFU-1, an exclusive farm use zone, to Rural Aviation Community (RAC). LUBA concluded in the first appeal, Wood I, that the county had to either ensure that the RAC zone complies with the county’s Wildlife Policy requirement of one residence per 80 acres, or adopt findings that justify removing the subject property from the Deer General Winter Range to apply the RAC zone the subject property. In Wood II, LUBA concluded that the act of rezoning did not render the county’s Wildlife Policy 2 inapplicable, but rather it constituted an amendment to the county’s acknowledged Goal 5 program to protect wildlife habitat, effectively removing the property from the Goal 5 program, and therefore the rezoning decision had to be justified under Goal 5.

Addressing the first assignment of error, LUBA disagreed with ODFW that the county’s notice failures constituted a procedural error that prejudiced ODFW’s substantial rights, noting that ODFW had opportunity to present argument and evidence—as well as to object that the county failed to give required notice—and had the opportunity to request a delay from the county in order to prepare and submit evidence and argument in opposition to the proposal. LUBA sustained ODFW’s first subassignment of error under the third assignment of error, which challenged county RAC zone amendments for consistency with Wildlife Policy 2 and Goal 5, having determined that the county erred by mandating a single methodology for computing density in cumulative impact study areas in the RAC zone. On remand, the county must either repeal the amendments or demonstrate that the amendments are consistent with Wildlife Policy 2 and Goal 5. REMANDED.