Old Hazeldell Quarry v. Lane County

Where an applicant seeks to amend a local government’s comprehensive plan and zoning ordinance to allow for mining, a local government denying the application need not adopt findings to inform the applicant of the steps necessary to gain approval because the decision is subjective and requires the weighing of local interests.

Petitioner appealed the County’s denial of their application for aggregate inventory and zoning amendments to the County’s comprehensive plan to allow for a proposed mine. Consistent with OAR 660-023-0180(5)(a) and (b), the County identified the mine’s "impact area" and found proposed mining activities conflicted with the designation of land in the impact area as Big Game Range, a Goal 5 "significant resource.” Relying on letters submitted by the Oregon Department of Fish and Wildlife (ODFW) detailing their concerns of deer and elk displacement by mining operations, the County determined the conflicts could not be minimized and denied the application. On appeal to LUBA, Petitioner made three assignments of error, the third of which LUBA’s analysis turned on: Petitioner claimed the ODFW letters that the County relied on were not evidence a reasonable person would rely on to make a decision, and that the County failed to adopt sufficient findings to notify Petitioner of the steps they needed to take to gain approval.

LUBA first addressed Petitioner’s claim that the County should have provided findings notifying Petitioner of the steps necessary to gain approval. When a local government denies a permit or limited land use application, ordinarily the local government must inform the applicant “either what steps are necessary to obtain approval or that it is unlikely that the application will be approved.” Bridge Street Partners v. City of Lafayette, 56 Or. LUBA 387, 394 (2008) (citing Commonwealth Properties v. Washington County, 35 Or. App. 387, 400 (1978)). Here, LUBA reasoned that, because the decision to allow mining activities in an area is subjective and requires the weighing of local interests, a local government denying a plan amendment application for that purpose is not required to adopt findings informing an applicant what steps are necessary for approval. In that context, LUBA concluded that findings that “(1) identify the relevant approval standards, (2) set out the facts which are believed and relied upon, and (3) explain how those facts lead to the decision on compliance with the approval standards” are sufficient. Heiller v. Josephine County, 23 Or. LUBA 551, 556 (1992).

LUBA then addressed Petitioner’s substantial evidence claim regarding the insufficiency of the ODFW letters the County relied on to deny the application. “Substantial evidence is evidence that a reasonable person would rely on in making a decision.” Dodd v. Hood River County, 317 Or. 172, 179 (1993) (citing Younger v. City of Portland, 305 Or. 346, 351-52 (1988)). LUBA may not substitute its judgment for that of the local decision-maker but must evaluate whether the local government could reasonably make the decision it did based off the evidence before it. Younger, 305 Or. at 358-60. LUBA agreed with Petitioner, finding the letters acknowledged Petitioner’s plans to mitigate wildlife displacement due to noise were sufficient, which was the only issue identified in the record and relevant for evaluation. As to ODFW’s other wildlife displacement concerns, LUBA found it was unclear whether they were regarding the designated impact area as required by OAR 660-023-0180(5)(a) and (b). LUBA held the letters were not evidence a reasonable person would rely on to conclude Petitioner’s noise mitigation measures were insufficient to address the impact on wildlife displacement identified in the record.

Remanded.