Williams v. Coos County

(1) Under ORS 197.829(1)(a), LUBA is required to affirm a board of county commissioners’ interpretation of its land use regulation unless the interpretation is inconsistent with the express language of the comprehensive plan or land use regulation. (2) OAR 660-033-0140(1)(c) does not prohibit a local government from adopting new criteria and exempting existing issued permits from those new criteria.

Petitioner appeals a county decision granting extension of two conditional use permits (CUPs) to develop segments of natural gas pipeline. Since the county’s original approval of the CUPs in 2010 and 2013, the county amended various provisions of the Coos County Land Development Ordinance (LDO) in 2015 and 2017 to include new subsections governing the extension of CUPs as well as special regulations and considerations for development and uses in hazard areas.

LDO 5.2.600.1(b)(iii) and (iv) allow the county to grant extensions of CUPs if the applicant “states reasons” that prevented them from developing within the approval period and the county determines the applicant was unable to develop for reasons for which they were “not responsible.” The application stated and the county found that the “reason[]” that prevented intervenor from developing is because the pipeline had not yet obtained federal authorization to proceed. In the first assignment of error, petitioners argue that, because the pending application for federal authorization proposes alignments for the pipeline that differ from the alignments approved in the CUPs, the county “[i]mproperly construed the applicable law” in finding that the extension requests satisfied LDO 5.2.600.1(b)(iii) and (iv). Because LUBA concludes that the county’s interpretation of LDO 5.2.600(iii) and (iv)—that as long as intervenor has in fact applied for federal authorization, a difference in the proposed alignments does not make intervenor “responsible” for the lack of federal authorization—is not inconsistent with the “express language” of those provisions, the first assignment of error is denied.

LDO 5.2.600.1(c) provides that CUP extensions may be granted “where the applicable criteria for the decision have not changed.” LDO 4.11.125.7 provides that new hazard review criteria is not applicable to applications that have received approval and are requesting an extension (grandfather clause). In approving the extensions, the county relied on the grandfather clause to conclude that the applicable criteria had not changed. In the second assignment of error, petitioners argue the grandfather clause is inconsistent with OAR 660-033-0140(1)(c). LUBA agrees with intervenor that the correct time for petitioners to challenge the grandfather clause under OAR 660-033-140(1)(c) was when the provision was adopted in 2017. However, even if petitioners could challenge the grandfather clause in this appeal, LUBA concludes that nothing in the rule prohibits a local government from adopting new criteria and exempting existing issued permits from those new criteria. The second assignment of error is therefore denied and the county’s decision is AFFIRMED.