- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 10-31-2022
- Case #: 2022-045
- Judge(s)/Court Below: Opinion by Ryan
- Full Text Opinion
Petitioner appealed the County’s approval of Intervenor’s application for an irrevocable exception to Statewide Planning Goal 4 (Forest Lands), together with plan and zone map amendments. On appeal to LUBA, Petitioner made two assignments of error: 1) to the extent that the County’s decision incorporated other documents in its findings, those documents were not properly incorporated under Gonzales, and 2) the County’s findings did not demonstrate the standards of an irrevocable exception could be met.
“If a local government decision maker chooses to incorporate all or portions of another document by reference into its findings, it must clearly (1) indicate its intent to do so, and (2) identify the document or portions of the document incorporated.” These requirements are satisfied if a reasonable person could understand from the decision that another document had been incorporated and be able to identify and request review of that document. Gonzales v. Lane County, 24 Or. LUBA 251, 259 (1992).
LUBA agreed with Petitioner that the County’s attempted incorporation failed both prongs of the Gonzales test because 1) the 800-some record pages referenced in the County’s decision did not include an official action by the board of county commissioners approving the Intervenor’s applications, and therefore there was no “clear statement” of the County’s intent to incorporate findings to that effect, and 2) even assuming the County’s references to the record qualified as a clear statement, the pages referenced contained conflicting findings regarding whether the criteria for an exception were met. As a reasonable person would not be able to determine which documents were incorporated as part of the County’s findings, LUBA concluded the County’s findings were improperly incorporated.
Under ORS 197.732(2)(b), “[a]n irrevocably committed exception may be approved where the land subject to the exception is irrevocably committed . . . to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable.” “[W]hether land is irrevocably committed depends on the relationship between the exception area and the lands adjacent to it, considering the characteristics of the exception area, adjacent lands, the relationship between the two, and other relevant factors.” OAR 660-004-0028. LUBA owes no deference to the local government’s decision or interpretations, Kenagy v. Benton County, 115 Or. App. 131, rev den, 315 Or. 271 (1992); instead, LUBA “shall determine whether the local government’s findings and reasons demonstrate that the standards of an irrevocably committed exception have been met[.]” ORS 197.732.(6)(b).
LUBA agreed with Petitioner that the County’s findings did not support the conclusion that the criteria for an irrevocable exception had been met. LUBA found the County had a “preponderant focus on the property itself,” and reasoned that, because the criteria for approval deals with the subject property’s relationship to adjacent uses, the scope of the County’s focus was too narrow to be sufficient in approving and irrevocable exception. LUBA also agreed with Petitioner that the County’s findings considered only the subject property’s relationship to adjacent residential uses, and not its relationship to adjacent forest resource uses, when evaluating whether the subject property was irrevocably committed. LUBA concluded the County’s findings were inadequate to meet the criteria for demonstrating the subject property was irrevocably committed to non-forest use.
Lastly, as the record showed it was “impossible . . . to show the property [wa]s irrevocably committed to non-forest use[,]” LUBA concluded the County’s decision was prohibited as a matter of law, and reversal rather than remand was necessary.
Reversed.