ODFW v. Lake County

(1) The prevailing party before a planning commission need not file a local appeal in order to exhaust their administrative remedies under ORS 197.825(2)(a). (2) Issues raised before a planning commission are timely for purposes of the “raise it or waive it” requirement at ORS 197.763(1), even if those issues are not raised with the same specificity before the final decision-maker. (3) The fact that an administrative rule does not expressly require compliance to be determined in the same proceeding as all other criteria are applied does not mean that a deferred determination of compliance need not be based on substantial evidence submitted in a proceeding with minimum procedural and participatory rights. (4) While it is possible for a local government to find compliance where further technical studies are necessary, such findings must at least be based on a draft mitigation plan or similar evidence.

Intervenor-solar companies, which are owned by the same parent company, applied for conditional use permits (CUPs) to construct solar facilities on two nonarable 320-acre sites, to be partitioned from a large tract owned by a third party. The planning commission denied both CUPs. Intervenors and two state agencies appealed that decision to the county commission. The county commission approved the CUPs with conditions and this appeal followed.

Under OAR 660-033-0130(38)(f) and (j), solar power facilities within the same “tract” or, if located on separate tracts, within 1,320 feet of each other and under common ownership (including the same parent company), may not exceed a combined total of 320 acres on nonarable lands. Under OAR 660-033-0020(14), a “tract” is “one or more contiguous lots or parcels under the same ownership.” In the first assignment of error, petitioners argue that, because there is no evidence that the partitions have become final or that the third party has conveyed either site to intervenors, the two solar facilities are within the same “tract” and, because they are 640 acres in total, violate OAR 660-033-0130(38)(f) and (j). Under ORS 197.825(2)(a), where a local appeal is available, a party must pursue it before LUBA will have jurisdiction. In addition, where a local code provision requires a party to specify the grounds for such a local appeal, and the party does not raise a particular issue in their local appeal statement, the party may not raise that issue for the first time at LUBA. This is the exhaustion requirement. Intervenors respond that, because petitioners did not appeal the planning commission’s decision at all, they waived this issue. LUBA agrees with petitioners that, because the planning commission denied the CUPs, petitioners were not required to file a local appeal in order to preserve the issue. In turn, because no findings address whether the partitions have become final, whether the third party has conveyed either site to intervenors, or whether the sites are more than 1,320 feet apart, the first assignment of error is sustained.

Under Lake County Zoning Ordinance (LCZO) 24.19(B), non-farm uses may not “interfere seriously with accepted farming practices . . . on adjacent lands devoted to farm use.” In the second assignment of error, petitioners argue the county’s findings are inadequate because they ignore testimony regarding the impacts of dust, erosion, and rodent displacement on adjacent farm practices. Under ORS 197.763(1), issues which form the basis of an appeal to LUBA must be raised before the close of the record at or following the final evidentiary hearing before the local government. This is the “raise it or waive it” requirement. The exhaustion and “raise it or waive it” requirements are congruent but distinct principles. Intervenors respond that, while the impact testimony was provided before the planning commission, it was not provided with sufficient specificity before the county commission and the issue was therefore waived. Because issues raised before the planning commission are timely for purposes of the “raise it or waive it” requirement, LUBA concludes the issue was not waived. In turn, because intervenors cite no findings addressing rodent displacement, LUBA agrees with petitioners that remand is necessary for the county to adopt them. The second assignment of error is therefore sustained, in part.

Under OAR 660-033-0130(38)(j)(G), where a proposed solar facility could have adverse effects on a special status species or big game winter range, the site must be designed to avoid those effects. If the effects cannot be avoided, the applicant must agree with the appropriate wildlife management agency on mitigation. If the two cannot agree, the county must determine what mitigation, if any, is required. Because intervenors’ sites are within both big game winter range and habitat for two “strategy species,” the county imposed a condition requiring intervenors to work with the Oregon Department of Fish and Wildlife (ODFW) to develop a mitigation agreement based on intervenors’ 2018 Habitat Assessment. If intervenors and ODFW cannot agree, the condition requires the county to determine appropriate mitigation, if any. In its assignments of error, the state agencies argue the county misconstrued OAR 660-033-0130(38)(j)(G) in imposing its condition, and that the county’s findings of compliance with that rule are otherwise inadequate and not based on substantial evidence.

Although OAR 660-033-0130(38)(j)(G), unlike other subsections, does not expressly require that compliance be determined in the same proceeding as all other criteria are applied, LUBA concludes that the absence of such language does not mean that a determination of compliance need not be based on substantial evidence submitted in a proceeding with minimum procedural and participatory rights. Because the county’s condition allows intervenors to work with ODFW outside a public participatory process, and because it specifies no public participatory process should the county be required to determine appropriate mitigation, LUBA agrees with the state agencies that the county misconstrued OAR 660-033-0130(38)(j)(G) in imposing its condition. LUBA also agrees with the state agencies that the county’s findings of compliance with the rule are inadequate and not based on substantial evidence. While it is possible for a local government to find compliance where further technical studies are necessary, such findings must at least be based on a draft mitigation plan or similar evidence. Because no draft mitigation plan was provided here, and because the 2018 Habitat Assessment on which the mitigation plan would have been based did not address big game winter range at all, the state agencies’ assignments of error are sustained, in part, and the county’s decision is REMANDED.