Rogue Advocates v. Josephine County

Where a county does not address or adopt findings in response to an argument below concerning the interpretation of its own land use laws, it is inappropriate for LUBA to interpret the relevant provisions of the county’s land use laws in the first instance before giving the county an opportunity to address the issue itself on remand.

Petitioner appeals a county decision approving an application for site plan review. In November 2016, intervenor-respondent applied for site plan review in conjunction with its proposed mining operation on Forest-Commercial (FC)-zoned property in a riparian area. In March 2017, the county planning department approved intervenor-respondent’s application and imposed 21 conditions of approval, which intervenor-respondent subsequently appealed. Between May 15 and June 2, 2017, the county held a hearing on intervenor-respondent’s appeal. On June 2, 2017, the county issued a verbal statement dismissing the appeal. On September 6, 2017, the county adopted findings of fact and conclusions of law in support of its June 2, 2017 decision. The county concluded that intervenor-respondent’s mining activities were allowed outright on FC-zoned property under the county’s Rural Land Development Code (RLDC) and that portions of the RLDC regulating development in riparian areas did not apply to intervenor-respondent’s activities. This appeal followed.

In its fourth assignment of error, petitioner argues the county “exceeded its jurisdiction” in considering intervenor-respondent’s appeal because the appeal did not contain certain information required by the RLDC and that LUBA should therefore reverse the county’s decision. Intervenor-respondent responds that remand, rather than reversal, is the appropriate remedy because the county did not address petitioner’s argument or adopt any findings regarding the issue during the proceedings below. LUBA agrees with intervenor-respondent that remand is the appropriate remedy and that, on remand, the county should address whether intervenor-respondent’s appeal was valid under the RLDC. Petitioner’s fourth assignment of error is therefore sustained, in part, and the county’s decision is REMANDED.