Dion v. Baker County

When a local body determines that an issue has been waived, the issue is not considered preserved for LUBA review unless a successful challenge to the original determination of waiver has been brought.

Gulick and McEwan were granted in 1998 a conditional use permit to operate a rock quarry on property zoned exclusive farm use (EFU), with limitations on the quantity of material to be removed and the number of daily truck trips. In 2013, they applied for approval to intensify the use for a two-year period with a permanent increase after that period. In February 2014 the board of commissioners upheld approval of the application and Dion appealed to LUBA. Dion first argued that the county failed to compare impacts of the proposed use to impacts permitted within the EFU zone. LUBA agreed and remanded to address that issue. Dion challenged the adequacy of findings regarding dust and change in farm practices, however, the county had concluded that those issues were waived and Dion did not challenge the waiver. LUBA held that the issues could not be preserved unless a challenge to the initial waiver had succeeded. Dion next challenged the findings regarding traffic and road impacts. While LUBA found a letter from the county roadmaster to be generally adequate, they found that this letter did not properly address the impact of the extended life of the mine after the temporary intensification period expired. REMANDED.