Currie v. Douglas County Board of Commissioners

Under ORS 197.835(9)(a)(C), county decisions must be supported by substantial evidence, which is evidence a reasonable person would rely on to make a decision, considering the whole record.

Petitioner challenges a county approval of a conditional use permit authorizing a quarry on a site zoned Exclusive Farm Use - Grazing. Under Land Use Development Ordinance (LUDO) 3.39.050(1), approval of conditional use permits requires a finding that the proposed use may be made compatible with existing adjacent permitted uses in the underlying zone. In the third assignment of error, petitioner argues the county failed to identify the uses to be evaluated for compatibility with the proposed quarry, and that it is necessary to understand the characteristics of those uses in order to conduct that evaluation. Intervenor responds that maps and an aerial photo in the record identify adjacent property zoning, ownership, and structures. In addition, the incorporated staff report refers to some of the surrounding uses as “other surrounding farm and forest uses north and northeast of the [quarry]” and “several residentially-developed properties” east and south of the quarry. Because these references lack specificity, and because the record neither shows the date of the aerial photograph nor identifies or describes some of the surrounding uses, LUBA agrees with petitioner that there is not substantial evidence to support issuance of the conditional use permit. 

With regard to dust, the county found that blasting to the north would direct dust in a northerly direction, that a setback would provide a buffer, and that conditions requiring the application of dust palliative to the road and water to aggregate stockpiles would mitigate dust impacts. With regard to noise, the county found that blasting to the north would send noise that direction, that a ridge would provide a buffer, and that operating hour restrictions would address noise concerns. With regard to water quality, the county relied on the distance between the quarry and water sources and, with regard to wildlife and riparian protection, the county relied on code protections for big game habitat. LUBA agrees with petitioner that these conclusions were not supported by substantial evidence. The county did not discuss the timing of blasting, how loud blasting would be, or how far particulates would be transmitted. In addition, the county did not identify evidence supporting its conclusions that only northerly directed blasting would ever occur, that the direction of blasting controls noise and dust, that setbacks, dust palliative, and water treatments are sufficient to provide dust control, that ridges and a limit on hours will sufficiently mitigate noise impacts, that distance is sufficient to protect water quality, and that code provisions protecting big game would also protect other wildlife. LUBA concludes that, without establishing the extent of the impact through a review of substantial evidence, it is impossible to determine whether the proposed mitigations achieve compatibility.

Under ORS 215.283(2), counties may approve mining uses on farmland subject to compliance with ORS 215.296. Under ORS 215.296(1), the county may only approve uses if it finds that they will neither force a significant change in nor significantly increase the cost of accepted farm practices on surrounding lands. A significant change or increase in cost is one that will have an important influence or effect on the farm. Petitioner argues the county’s decision identifies neither the surrounding farm lands, the accepted farm practices on those lands, nor the impacts of the quarry on each farm practice. Because the county did not identify or describe each farm use, and because the record lacks substantial evidence of the extent of the unmitigated impacts or an explanation of how the mitigation efforts will sufficiently address those impacts, LUBA agrees with petitioner that it is not possible to determine whether the quarry will force a significant change in or significantly increase the cost of those practices. The second assignment of error is therefore sustained and the county’s decision is REMANDED.