Currie v. Douglas County

(1) Where a local code provision requires that conditional uses be compatible with “existing adjacent permissible uses,” and where that provision requires the local government to identify and describe adjacent uses, maps and photographs identifying adjacent uses by location, ownership, and character of use are sufficient to identify adjacent uses, and expert reports based on onsite testing, which conclude that adjacent residential uses will not be adversely impacted, are adequate to describe adjacent residential uses. However, relying on the fact that adjacent residential uses are more sensitive and less buffered than adjacent grazing uses, and therefore using the residential uses as a proxy for the grazing uses, is not adequate to describe the grazing uses without explaining the manner in which the grazing operation is run—for example, whether it is seasonal or includes accessory activities such as breeding or calving. (2) A county’s findings of compliance with the farm impacts test at ORS 215.296(1) are not based on substantial evidence where the county identifies grazing as the only surrounding farm or forest use but does not verify that the grazing operation is in fact limited to grazing, without other uses such as breeding, or explain why surrounding uses do not involve forest practices even though timber is occasionally cut on the grazing property and other surrounding properties are held as timber investments or are government-owned timber lands.

In a prior appeal, LUBA remanded the county’s decision approving intervenor’s application for a conditional use permit authorizing an aggregate quarry on land zoned Exclusive Farm Use-Grazing (F-G). On remand, the county again approved the application and this appeal followed.

In the second assignment of error, petitioner argues the county made procedural errors by not allowing opponents who did not participate in the prior proceeding to participate in the remand proceedings; by rejecting petitioner’s evidence of wetlands issues, while finding that the quarry site contains no wetlands; and by giving the applicant more time to present than opponents. Because alleged procedural errors must affect the petitioner’s rights, not the rights of others; because petitioner had an opportunity to object to the exclusion of their evidence and did not do so; and because petitioner neither identifies a legal requirement that opponents and applicants be given equal time to present, nor explains with specificity what would have been different had they received more time, these subassignments of error are denied.

Under ORS 197.763(6)(a), “[p]rior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments or testimony regarding the application.” Petitioner argues the county erred by denying their request to leave the record open for seven days after the evidentiary hearing before the planning commission. Because the “initial evidentiary hearing” was during the prior proceeding, and not during the remand proceedings, and because petitioner does not explain what additional information they would have provided, the second assignment of error is denied.

Under Douglas County Land Use and Development Ordinance (LUDO) 3.39.050(1), conditional uses must be compatible with “existing adjacent permitted uses and other uses permitted in the underlying zone.” In the first assignment of error, petitioner argues the county failed to establish that the proposed use is compatible with “other uses permitted in the underlying zone.” In the prior appeal, LUBA concluded petitioner’s argument that LUDO 3.39.050(1) required an analysis of uses not yet existing but permissible in the zone was neither preserved nor sufficiently developed for review. Because petitioner could have but failed to raise that issue in the prior appeal, LUBA agrees with intervenor that, under the law of the case doctrine, petitioner may not do so on remand.

Petitioner also argues that, because the county failed to describe the characteristics of “existing adjacent permitted uses,” its findings that the quarry is compatible with them are inadequate and not supported by substantial evidence. Because intervenor submitted maps and photographs identifying adjacent uses by location, ownership, and character of use, LUBA agrees with intervenor that the adjacent uses have been adequately identified. Because intervenor submitted expert reports based on onsite testing, which concluded that adjacent residential uses would not be adversely impacted, LUBA concludes the county adequately described adjacent residential uses. The county also concluded that, because residential uses are more sensitive than grazing uses, and because the adjacent residential uses are not separated from the quarry by a ridge like the adjacent grazing uses, the residential uses are an appropriate proxy for the grazing uses. LUBA agrees with petitioner that, without explaining the manner in which the grazing operation is run—for example, whether it is seasonal or includes accessory activities such as breeding or calving—the findings are inadequate and there is not substantial evidence in the record to support the county’s conclusion that the quarry is compatible with the grazing uses. This subassignment of error is therefore sustained.

Petitioner argues the findings fail to establish why the county preferred intervenor’s noise report to petitioner’s, and that the noise testing locations in intervenor’s report were inadequate to constitute substantial evidence in the whole record. Because the county adopted general findings that petitioner’s evidence was insufficient, because it was not required to adopt more detailed findings, and because a reasonable person could rely on intervenor’s project-specific expert noise report over petitioner’s 20-year-old report analyzing a prior proposal, this subassignment of error is denied.

Petitioner argues the county erred in finding that access to the quarry is compatible with adjacent uses. Because petitioner merely placed intervenor’s ODOT “Change of Use” access permit into the record, without explaining either verbally or in writing its relevance to the approval criteria, LUBA agrees with intervenor that this issue was not raised with sufficient specificity to allow the county to respond and is therefore waived under ORS 197.763(1). In addition, LUBA agrees with intervenor that petitioner may not challenge the validity of the ODOT access permit in this proceeding because, in the prior appeal, petitioner did not identify any applicable land use regulation that required intervenor to obtain one. This subassignment of error is therefore denied.

Under ORS 215.296(1), also known as the farm impacts test, a county may only approve a mining use on farmland if it will not force a significant change in or significantly increase the cost of accepted farm or forest practices on surrounding farm or forest lands. In concluding that the farm impacts test is satisfied, the county identified the adjacent grazing as the only surrounding farm or forest use. However, because the county did not verify that the grazing operation is in fact limited to grazing, without other uses such as breeding, and because the county did not explain why surrounding uses do not involve forest practices, even though intervenor indicated that timber is occasionally cut on the grazing property and that other surrounding properties are held as timber investments or are government-owned timber lands, LUBA agrees with petitioner that the county’s findings of compliance with the farm impacts test are not supported by substantial evidence. The first assignment of error is therefore sustained, in part, and the county’s decision is REMANDED.