Eng v. Wallowa County

(1) Under ORS 197.763(6)(b), neither the hearing at which the governing body deliberates nor the period between the hearing and the governing body's final decision provide petitioners with a meaningful opportunity to object to the admission of evidence with final legal argument. (2) Where specific issues are raised concerning the compliance with applicable criteria, the findings must address those issues. (3) When several methods for calculating the center point of a property for purposes of a forest template dwelling are identified, the county must explain the basis for its selection. (4) The fact that some applicable approval criteria in a public proceeding do not require the exercise of interpretation or judgment does not mean the county may defer its review to a non-public proceeding.

Petitioners appeal a county decision approving development of a forest template dwelling. Intervenor applied for a zoning permit for a dwelling on property zoned Timber/Grazing (T/G). Without providing notice or a hearing on the application, the county issued the zoning permit, which adjacent property owners appealed to LUBA. On remand, the county mailed petitioners notice of a de novo public hearing to consider intervenor’s application, specifying the applicable approval criteria. The county again approved intervenor’s application and this appeal followed.

In the first assignment of error, petitioners argue the county committed procedural errors that prejudiced their substantial rights. Specifically, petitioners argue that, because intervenor did not submit a formal application for a forest template dwelling, and because it was difficult to obtain intervenor’s evidence from the county, they were given insufficient information regarding applicable approval criteria and lacked sufficient time to prepare their case. LUBA agrees with intervenor that petitioners failed to establish prejudice to their substantial rights in these respects. However, petitioners also argue that the county erred in accepting new evidence from intervenor in its final written argument without affording petitioners an opportunity to respond. Intervenor responds that the disputed submission was intended to provide context and to rebut petitioners’ arguments and that, under ORS 197.763(6)(b), petitioners must assert the right of rebuttal at the time new evidence is submitted, which they did not do. LUBA agrees with petitioners that the fact the county ultimately relied on the disputed submission makes it new evidence to which petitioners were entitled to respond. Because this evidence was submitted with the final legal argument, giving petitioners no meaningful opportunity to object, remand is necessary to afford petitioners such an opportunity. The first assignment of error is therefore sustained, in part.

Under Wallowa County Land Use Development Ordinance (WCLDO) 16.015.07(C), which implements ORS 215.750, an applicant for a forest template dwelling on soils capable of producing more than 50 cubic feet per acre per year of wood fiber must demonstrate that, as of January 1, 1993, (1) eleven lawful lots or parcels were located within a 160-acre square, centered on the subject property (the template), and (2) three dwellings which existed within the template at that time still exist. In addition, WCLDO 1.065.040 defines dwelling as “[o]one or more rooms containing one kitchen and occupied by one family.” In the second assignment of error, petitioners argue that the county’s findings are inadequate and that the record lacks substantial evidence to support the conclusion that three lawful dwellings existed within the template on January 1, 1993. While LUBA agrees with intervenor that there was substantial evidence for the county to conclude that a lawful dwelling existed on the operative date, LUBA concludes that the findings are inadequate and that remand is necessary for the county to (1) explain how one of the houses met the definition of a “dwelling” in WCLDO 1.065.040 and (2) address alleged inconsistencies in the record regarding whether the house “existed” on January 1, 1993. The second assignment of error is therefore sustained, in part.

In the third assignment of error, petitioners argue that the county erred in its application of the template test. Specifically, petitioners argue the test that the county used to find the center point of the subject property is unreliable and that the county therefore erred in using it. While there is no legal definition for how the center point must be established for purposes of the template test, and while the record contains the results from using three different center point methods, LUBA concludes that remand is necessary for the county to adopt findings explaining the basis for its test selection and address petitioners’ argument challenging that selection. The third assignment of error is therefore sustained.

The county’s decision conditioned its approval on a future determination of compliance with WCLDO Article 25, which contains wildfire standards. In the fourth assignment of error, petitioners argue the county erred in deferring a determination of compliance with these standards to a future proceeding that, unlike permit decisions, does not require notice and a hearing. Intervenor responds that, because these standards do not require interpretation or judgment, the county need not determine them in a proceeding that provides for public participation. LUBA agrees with petitioners that, just because some applicable approval criteria in a public proceeding do not require the exercise of interpretation or judgment, that does not mean the county may defer its review to a non-public proceeding. Remand is necessary for the county to clarify that its determination will be made in a proceeding that allows for public participation. The fourth assignment of error is therefore sustained, in part, and the county’s decision is REMANDED.