Space Age Fuel, Inc. v. Umatilla County

Under ORS 197.835(11)(b), LUBA may overlook a local government’s “defective” findings if a party can identify evidence that “clearly supports” the local government’s decision or part of the decision.

Following LUBA’s remand in Western Express v. Umatilla County, 54 Or LUBA 571, aff’d 215 Or App 703 (2007) (Western Express), the county issued an order granting approval of a development agreement for a Petro Stopping Centers truck stop. TA Operating, LLC (TA), intervenor-respondent here, is Petro Stopping Centers’s successor. Space Age Fuel, Inc. (Space Age) petitioner here, was a co-petitioner in Western Express. The approved development agreement that was adopted in response to LUBA’s remand of Western Express required the county to consider: (1) approval of the proposed car and truck access points that are 605 feet and 1,105 feet north of the Westland Road/I-84 interchange, respectively, and (2) the other bases for LUBA’s remand in Western Express. On appeal, LUBA noted the county’s inconsistency in adopting the proper findings while reviewing the assignments of error on remand.

In its first assignment of error, Space Age argued that the development agreement was not executed within a reasonable time pursuant to Section 11 of Ordinance No. 2003-09 (which granted initial approval of the development agreement). Space Age argued that it was not reasonable by any measure to allow TA more than ten years to satisfy Ordinance 2003-09, nor had TA provided a justifiable excuse for the delay. LUBA sustained the first assignment of error, having determined that the county “could not have concluded that TA complied with [UCDC 152.753(B)(1)] based on its plain language and the substantial evidence in the record.” LUBA partially sustained the second assignment of error, having determined that the development agreement was inconsistent with the County Comprehensive Plan and Land Use Regulations. The Board did not reach the third assignment of error. Based on the resolution of the first and second assignments of error, the county’s decision was REMANDED.