Dion v. Baker County

Pursuant to ORS 197.825(2)(a) and Miles v. City of Florence, 190 Or App 500 (2003), a petitioner must adequately specify the reasons for appeal in the petitioner’s notice of appeal to the local government; if a petitioner fails to adequately raise and exhaust issues during the local appeals process before appealing to LUBA, the petitioner will, in turn, have waived the opportunity to raise such issues before LUBA.

Following Dion v. Baker County, 70 Or LUBA 438 (2014), this second appeal to LUBA concerns an existing rock quarry on a 15-acre portion of a 280-acre parcel of land zoned Exclusive Farm Use (EFU). The surrounding EFU-zoned land is primarily used for livestock and agricultural purposes. Barbara Joseph Dion, petitioner, owns a residence that is located 1,200 feet from the southeast corner of the quarry. In 2013, Kerry Gulick and Linda McEwan, intervenors-respondents, applied to modify the conditions of approval of a 1998 conditional use permit to facilitate both temporary and permanent intensification of the quarry, which the county approved with amended conditions. Dion appealed, and, following the initial remand from LUBA, the county attempted to address the three bases for Dion’s local appeal, and ultimately upheld the approval. This subsequent appeal followed.

Dion’s three assignments of error challenge only the county planning commission’s findings rather than the findings set out in the commissioners’ final decision—such as the findings that Dion’s notice of appeal failed to sufficiently identify the reasons for appeal—or the alternative findings that attempt to address the three general reasons listed in Dion’s notice of appeal. LUBA agreed with the county that Dion’s local appeal statement was inadequate, and that Dion had failed to exhaust all remedies as required by ORS 197.825(2)(a) and modified by Miles v. City of Florence, 190 Or App 500 (2003). LUBA noted that even if the Miles exhaustion and waiver principles did not apply here, Dion failed to acknowledge or challenge the county commissioners’ findings that were adopted to address Dion’s assignments of error, which provided further reason as to why the county’s decision must be affirmed. Dion’s assignments of error were deemed outside of LUBA’s scope of review and the county’s decision was AFFIRMED.