Landwatch Lane County v. Lane County

(1) A county ordinance identifying a parcel designated for forest uses in its Statewide Planning Goal 5 inventory of significant mineral and aggregate sites is sufficient evidence to support a county’s conclusion that an inconsistency exists between an ordinance and a plan or zoning map for purposes of making conformity determination amendments. (2) LUBA generally does not consider arguments in footnotes that set out different legal theories than those presented in the assignments of error themselves.

Petitioner appeals a decision of the county to redesignate property from Forest (F) to Natural Resource: Mineral (NR:M) and to rezone it from Nonimpacted Forest Land (F-1) to Quarry and Mine Operations (QM). In 1979, the subject property was partitioned into two parcels, one of which contained an existing quarry while the other did not. In 1983, the county proposed to designate both parcels as F and zone them F-1. Before the county adopted these designations, the property owner filed, and the county approved, a request to rezone the parcel containing the quarry to QM. In 1984, the county adopted an ordinance zoning the parcel containing the quarry as F-1 while the parcel on which no quarry existed was zoned QM. Later that year, the county adopted an ordinance identifying the quarry in its Statewide Planning Goal 5 inventory of significant mineral and aggregate sites. In 2016, intervenor applied to redesignate and rezone the parcel containing the quarry to NR:M and QM. The county’s Rural Comprehensive Plan (RCP) allows property owners to seek conformity determination amendments to plan and zoning designations that do not recognize lawfully existing uses or that result from inconsistencies between a county ordinance and a plan or zoning map. The county approved the amendment. This appeal followed.

In its first assignment of error, petitioner argues that, because the F-1 zone allows mining and commercial gravel extraction if it is auxiliary to forest practices, the plan and zoning maps do recognize the quarry as a lawfully existing use. In addition, petitioner argues the county’s conclusion that an inconsistency exists between a county ordinance and a plan or zoning map is not supported by substantial evidence. Intervenor responds that, because the county adopted an ordinance identifying the quarry in its Goal 5 inventory, applying an F designation and F-1 zoning to the parcel failed to recognize the lawfully existing use of the quarry. Intervenor further argues that the inclusion of the quarry in the county’s Goal 5 inventory is sufficient evidence to support the county’s conclusion that an inconsistency exists between its ordinance and the plan or zoning maps. LUBA agrees with intervenor and the first assignment of error is denied.

The county’s code requires the county to adopt certain findings regarding amendments’ legality, necessity, and compatibility with existing law, and to conduct an analysis of the amendments’ environmental, economic, and social (ESEE) consequences. On the third assignment of error, petitioner argues that some of the county’s required findings are inadequate and, in a footnote of the petition for review’s “Statement of Material Facts” section, that the county’s decision failed to include some of the required findings altogether. Petitioner also argues that the county did not conduct the required analysis. The county responds by arguing that it adopted several pages of findings addressing the code’s requirements. In addition, intervenor argues that, because an ESEE analysis was conducted when the parcel was identified on the county’s Goal 5 inventory, this requirement was also satisfied. Because petitioner does not explain why the county’s adopted findings are inadequate, because LUBA generally does not consider arguments in footnotes that set out different legal theories than those presented in the assignments of error themselves, and because petitioner does not explain why the prior ESEE analysis is insufficient, the third assignment of error is denied and the county’s decision is AFFIRMED.