Central Oregon Landwatch v. Deschutes County

(1) The county, having previously determined that a property is not agricultural land by not including the property in inventory maps of agricultural lands is not required to revisit that original determination. (2) Under OAR 660-023-0030, while local government are prohibited from applying Goal 5 processes to non-significant resource sites, they may still regulate surface mining of those sites in other ways.

Petitioner appeals a county decision approving an application to (1) remove a 541-acre property from the county’s Goal 5 inventory of significant aggregate resources, (2) place the property on the county’s “Non-Significant Mining Mineral and Aggregate Inventory,” (3) change the plan designation for the property from Surface Mining to Rural Residential Exception Area, and (4) change the zoning designation from Surface Mining (SM) to Multiple Use Agriculture 10-Acre Minimum (MU-10). The Economic, Social, Environmental, and Energy (ESEE) analysis for the property did not specify a post-mining use. In 1978, prior to adopting the zoning map, the county adopted an initial inventory of agricultural lands as required by Goal 3 that did not include the property. Updated agricultural lands inventory maps in 1992 also did not include the property.

OAR 660-033-0020(1)(a) defines “agricultural land” for the purposes of Goal 3 to include lands with certain soil classes. In the first assignment of error, petitioner argues that the property is “agricultural land” because the U.S. Natural Resources Conservation Service (NRCS) maps classify the soils on the property as Class III with irrigation, and Class VI without irrigation. Additionally, petitioner points to the county’s 1979 comprehensive plan map as identifying the property as “agriculture.” Petitioner therefore argues an exception to Goal 3 is required to change the comprehensive plan and zoning designation. Because the county previously determined in two separate final acknowledge decisions that the property should not be included in the county’s inventory of agricultural lands, because the map petitioner submitted lacks evidentiary value, and because the ESEE analysis for the property does not specify a post-mining zoning or use while others do, LUBA agrees that it was reasonable for the county commissioners to conclude the property is not agricultural land. The first assignment of error is denied.

In the third assignment of error, petitioner argues OAR 660-023-0180 prohibits the county from adding the property to its Non-Significant Inventory because Goal 5 categorically prohibits authorizing mining of mineral and aggregate resources that are not included on the Significant Resources Inventory. LUBA agrees with respondents that nothing in the rule cited by petitioners regulates resources other than “significant mineral and aggregate sites.” Additionally, nothing prevents the county from allowing surface mining on properties included on its Non-Significant Inventory pursuant to local code provisions regulating surface mining, and no case law stands for the proposition that Goal 5 allows only inventoried significant resources to be surface mined. For these reasons, the third assignment of error is denied and the county’s decision is AFFIRMED.