Landwatch Lane County v. Lane County

Under ORS 197.763(6), a potential second open record period for “cross-review” is expressly limited to responses to new evidence submitted during a continued hearing or a first extended open record period.

The subject property is a 19-acre parcel that is split-zoned, with roughly half F-1 (Non-Impacted Forestland) and half F-2 (Impacted Forestland). F-2 allows a dwelling, F-1 does not. After seeking county approval for improvements, intervenor-respondent (intervenor) discovered that the dwelling straddled the F-1 and F-2 zone boundary. Intervenor applied for a zone change to remove the split-zoning, leaving the parcel zoned F-2. On petitioner’s request, the hearings officer left the record open for three weeks after the initial hearing to allow a week for new evidence and argument, cross-review, and intervenor’s final argument.

On the first assignment of error, petitioner argues that the hearings officer violated ORS 197.763(6) and (7) by limiting a second 7-day extension of the open record period to responses to new evidence submitted during a first 7-day extension. Specifically, petitioner argues that ORS 197.763(6) provides a right to (1) submit additional evidence and arguments; and (2) respond to evidence provided prior to and during the initial evidentiary hearing. Petitioner further argues that, if a hearings officer chooses to extend the open record period, ORS 197.763(6)(c) requires a separate 7-day period devoted to each of these two procedural rights. Intervenor responds, and LUBA agrees, that petitioner misconstrues ORS 197.763(6) and (7). The potential for a second open record period under ORS 197.763(6)(c) is expressly limited to responses to new evidence submitted during a continued hearing or the first extended open record period.

On the second assignment of error, petitioner argues that the hearings officers failed to provide an interpretation of F-1 policy 15(b)(2), which describes a characteristic of F-1 zoned land as being “[p]redominantly contiguous, ownerships of 80 acres or larger in size.” The parties and LUBA agree that the punctuation of policy 15(b)(2) is ambiguous, but intervenor claims, and LUBA agrees, that the hearings officer’s interpretation of 15(b)(2) and its applications to the facts sufficiently clarify the officer’s interpretation. AFFIRMED.