McLaughlin v. Douglas County

Under Douglas County Land Use Development Ordinance 2.800.2, a permit extension approval is an administrative decision not subject to appeal as a land use decision.

In 2009, the county planning commission approved a conditional use permit to allow intervenor to construct a new liquefied natural gas (“LNG”) pipeline on lands zoned for farm and forest use. In 2016, intervenor filed an application with the county requesting an additional one-year extension of the development period for the permit. The county planning director reviewed intervenor’s extension request administratively, without notice or hearing, and approved the request. Petitioner subsequently appealed.

Intervenor claims the county’s decision to grant intervenor’s requested one-year extension for the permit is an administrative decision not subject to LUBA’s review. Although the county’s decision is a final determination by a local government concerning the application of a land use regulation under ORS 197.015(10)(a), intervenor cites LUBA’s rationale in Jones v. Douglas County. There, LUBA determined that Land Use Development Ordinance (LUDO) 2.800.2 implements OAR 660-033-0140 (3), which states in relevant part that permit extensions on agricultural or forest land are not within LUBA’s jurisdiction. Petitioner argues that the county misconstrued intervenor’s permit extension application as one that could be approved administratively, i.e. without notice or hearing. Petitioner cites Bard v. Lane County, claiming that intervenor’s request to extend the permit of an LNG pipeline under the standards in LUDO 2.800.2 is discretionary. Therefore, no exceptions apply, and the challenged decision is a land use decision subject to LUBA’s jurisdiction.

LUBA agrees with intervenor, stating the rationale in Bard does not apply because the permit in Bard was for a project not located on agricultural or forest land. Therefore, LUBA affirms the rationale in Jones. Petitioners filed a contingent motion to transfer this appeal to circuit court in the event the challenged decision is not a land use decision. Because intervenor does not oppose the motion, the transfer is granted. TRANSFERRED.