Delta Property Co., LLC v. Lane County

Under ORS 197.829, the Land Use Appeals Board must give deference to a county’s plausible interpretation of its land use code, and must consider whether any exceptions may apply.

Delta Property Company, LLC (Delta) applied for a special use permit to allow expansion of its current gravel mining operation, located in Lane County (the County), to land zoned for exclusive farm use. Delta’s operation sits on land the use of which is governed by the County’s Metropolitan Area General Plan (Metro Plan), and not the Lane County Rural Comprehensive Plan (Rural Plan); however, Lane County Land Use and Development Code, LC chapter 16, applies to the proposed expansion. Under ORS 215.298(2), a county may issue a permit for mining of aggregate on exclusive farm use-zoned land only if the proposed mining site is “a site included on an inventory in an acknowledged comprehensive plan.” Under LC 16.212, the site must be included on an inventory in the acknowledged Rural Plan. Because the proposed expansion land was not on an inventory in the County’s Rural Plan, it denied Delta’s application. Delta appealed to the Land Use Board of Appeals (LUBA), who decided the County had construed the LC provision plausibly in requiring the land be included on the Rural Plan in order to approve Delta’s application for expansion. On appeal, the Court held LUBA correctly deferred to the County’s plausible interpretation of its Code as required by ORS 197.829, but that LUBA was required to determine whether to give the County’s interpretation of the Metro Plan deference, or whether any exceptions to deference were applicable. On petition, reversed and remanded; on cross-petition, affirmed.