H.T. Rea Farming Corp. v. Umatilla County

When a county has amended its development code to conform to provisions of an Oregon Administrative Rule, the county must apply its own development code rather than the rule in permit approvals; failure to specifically provide for expansion of a use in its own development code is not grounds for the county to rely solely on the Rule for approval.

East End Rod and Gun Club (East End) leases an 85-acre EFU-zoned parcel on which they operate a shooting range. Under ORS 197.770, a “firearms training facility” that existed as of September 9, 1995 is allowed to continue operating. East End applied to Umatilla County for a determination that they qualified under the statute and for approval to expand. The county board of commissioners approved the application with conditions, and H.R. Tea Farming (H.R.) appealed to LUBA. H.R. challenged the expansion, arguing that ORS 197.770 only authorizes the “continued operation” as it existed in 1995. LUBA agreed, noting that the legislative history of the statute indicated the intent only to allow continuance of pre-1995 uses, without expansion. However, the county had relied on a provision in OAR 660-033-0130(2)(c) that “[e]xisting facilities wholly within a farm use zone may be maintained, enhanced or expanded on the same tract[.]” H.R. argued that the regulation was inconsistent with ORS 197.770 by authorizing expansion where the statute does not affirmatively do so, and that the county, by failing to amend its development code, could not rely on OAR 660-033-0130(2)(c) to approve the expansion. LUBA agreed with the second argument, finding that by adopting language in its code specifically allowing for expansion of other Parks/Public/Quasi-Public uses listed in Table 1 of OAR 660-033-0120, but not firearms facilities, the county “chose not to provide for expansion of an existing firearms facility.” In support of this conclusion of intended omission, the Board cited to a section of the development code that specifically authorized permitting a firearms training facility’s expansion when the facility is a conditional use in a GF zone while no corollary authorization exists for that use in an EFU zone. REMANDED.