DLCD v. Douglas County

(1) Under ORS 197.835(6), LUBA must reverse or remand a plan amendment if it is not in compliance with the statewide planning goals. However, appellate review of plan amendments is limited if the challenged decision either demonstrates compliance with all implicated goals or affirmatively establishes that the local government will review future decisions applying the new designations for goal compliance. (2) Goal 2 requires that decisions be coordinated and supported by an adequate factual basis. In coordinating planning actions within their jurisdictions, although counties need not follow the requests of commenting parties, they must adopt findings responding to legitimate concerns. To have an adequate factual base, the county’s decision must include findings based on substantial evidence in the record, or provide argument with citations to the record.

Petitioners challenge a county decision adopting a new Rural Open Space comprehensive plan designation, a new Rural Transitional-20 acre zone designation, a map identifying the lands eligible to seek the new designations, and standards for applying the new designations.

Under ORS 197.835(6), LUBA must reverse or remand a plan amendment if it is not in compliance with the statewide planning goals. However, appellate review of plan amendments is limited if the challenged decision either demonstrates compliance with all implicated goals or affirmatively establishes that the local government will review future decisions applying the new designations for goal compliance. Petitioners argue the county’s decision should be remanded because it fails to demonstrate compliance with Statewide Planning Goals 2 (Land Use Planning), 3 (Agricultural Lands), 4 (Forest Lands), 5 (Natural Resources, Scenic and Historic areas, and Open Spaces), 7 (Areas Subject to Natural Hazards), 10 (Housing), and 11 (Public Facilities and Services). The county responds that, because the plan amendment does not re-designate any property, LUBA’s review is limited. LUBA agrees with petitioners that, because neither the county’s findings nor any other plan language establishes that compliance with some of the Goals will be addressed when the new designations are applied, LUBA’s review for compliance with those goals is not limited.

Goal 4 protects lands designated forest land in acknowledged comprehensive plans, lands suitable for commercial forest use, nearby lands that are necessary to permit forest practices, and other forested lands that maintain soil, air, water quality, and fish and wildlife resources. The forest lands identified in the county’s comprehensive plan include Timberlands (TR) and Farm/Forest Transitional. Under OAR 660-006-0010, when identifying land suitable for commercial forest use, the county must consider U.S. Natural Resources Conservation Service (NRCS) data or, where such data is unavailable, specified alternative sources. LUBA agrees with petitioners that, while the county’s decision makes the TR zone and lands with NRCS Class I-IV soils ineligible for the new designations, it neither explains how Goal 4 is met by making all other lands eligible for the new designations nor uses the required alternative sources where data is unavailable. Because the plan amendment does not exclude all forest land that Goal 4 protects, this assignment of error is sustained.

Goal 3 protects agricultural lands. Under OAR 660-033-0020(1)(a), agricultural lands include (1) lands with NRCS Class I-IV soils; (2) lands in other soil classes that are suitable for farm use considering factors such as grazing suitability and climate, among others; and (3) land that is necessary to permit farm practices on nearby lands. While the county’s decision makes all land zoned Exclusive Farm Use (EFU) and EFU-Farm Grazing ineligible for the new designations, LUBA agrees with petitioners that it does not consider all of the required factors, including the climatic impact on non-grape crops and the grazing capacity of non-EFU land, nor does it exclude land in other zones that may be utilized to assist in farm use of nearby land. Because the plan amendment does not exclude all agricultural land that Goal 3 protects, this assignment of error is sustained.

Goal 5 protects natural resources, scenic and historic areas, and open spaces. Under OAR 023-0250(3), local governments need not consider Goal 5 unless the plan amendment (1) creates or amends a Goal 5 resource list, plan, or land use regulation, (2) allows new uses that could conflict with a Goal 5 resource site, or (3) includes a Goal 5 resource in an amended Urban Growth Boundary (UGB). The county’s decision does not amend the UGB, open a Goal 5 resource to new uses, or create or amend a Goal 5 resource list. Although big game habitat is a Goal 5 resource protected through the TR zone, TR-zoned lands are ineligible for the new designations and any potential re-designation of TR-zoned lands will require an economic, social, environmental, and energy (ESEE) analysis under Goal 5. LUBA therefore agrees with the county that it is not required to establish Goal 5 compliance at this stage and this assignment of error is denied.

Goal 11 is to plan and develop a timely, orderly, and efficient arrangement of public facilities and services to serve as a framework for urban and rural development. Because no findings or evidence in the record addresses wastewater, the likelihood of increased fire as more residences are introduced, or the capacity of existing fire service organizations to provide more service, this assignment of error is sustained.

Goal 2 requires that decisions be coordinated and supported by an adequate factual basis. In coordinating planning actions within their jurisdictions, although counties need not follow the requests of commenting parties, they must adopt findings responding to legitimate concerns. To have an adequate factual base, the county’s decision must include findings based on substantial evidence in the record, or provide argument with citations to the record. Because the county did not adopt findings responding to various state agencies’ Goal 4 concerns or affected cities’ Goal 10, 7, and 11 concerns, and because the county’s reliance on hyperlinks was insufficient to incorporate required information into the record, this assignment of error is sustained and the county’s decision is REMANDED.