Jacobus v. Klamath County

A city applied for an exception to Statewide Planning Goal 4 (Forest Lands) and a conditional use permit (CUP) to develop a wastewater treatment facility on property zoned Forestry within elk winter range, an inventoried Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) resource. The board of commissioners approved the application. This appeal followed.

Due to the novel coronavirus pandemic and related executive orders, the county conducted a hearing on the city’s application by videoconference. Under ORS 197.763(6)(a), when a participant in an initial evidentiary hearing requests an opportunity to present additional evidence, the local government must either continue the hearing or leave the record open. In the first assignment of error, petitioners argued that the county erred by denying their requests for a continuance of the videoconference hearing. Petitioners argued that, had the county granted a continuance, petitioners who did not have time to prepare for the hearing would have been able to participate. Petitioners also argued that new evidence was presented at the hearing to which they were unable to respond because the county did not grant a continuance. Finally, petitioners argued that the videoconference format of the meeting was difficult to hear, was confusing, and prevented some people from testifying. LUBA concluded that petitioners did not request a continuance; rather, they requested that the hearing be rescheduled to a later date. Accordingly, the county did not violate ORS 197.763(6)(a). In addition, because some of petitioners did in fact testify; because those that did not testify did not rely on the requests to reschedule but, rather, did not understand the importance of the hearing; and because petitioners did not identify any new evidence to which they were not allowed to respond, LUBA concluded that petitioners did not demonstrate any prejudice to their own substantial rights. Accordingly, any procedural error provided no basis for reversal or remand, and the first assignment of error was denied.

Under ORS 197.732(2) and (4), ORS 215.402(4), and ORS 215.416(9), exceptions and CUPs must be supported by adequate findings. Under OAR 660-023-0250(3), local governments must apply Goal 5 when adopting certain plan amendments that affect Goal 5 resources, such as elk winter range. Under OAR 660-004-0020(1), the justification for an exception must “be set forth in the comprehensive plan.” In the second, third, fourth, and sixth assignments of error, petitioners argued that the city failed to adopt findings adequate to support the Goal 4 exception and the CUP; failed to apply Goal 5 and its existing program to achieve the Goal with respect to the elk winter range; and, because the justification for the Goal 4 exception was required to be included in the comprehensive plan, failed to apply the comprehensive plan amendment criteria. The decision did not contain findings of fact or law. While the decision referenced the fact that the planning commission incorporated findings prepared by the city and a staff report in making its recommendation to the board of commissioners, LUBA concluded that the decision did not itself indicate an intent to incorporate those documents. Moreover, even if the staff report had been clearly incorporated, because it contained handwritten notes of unknown origin, LUBA concluded that it was not possible for a reasonable person to know what was actually being incorporated. LUBA therefore agreed with petitioners that the decision was not supported by adequate findings and the second, third, fourth, and sixth assignments of error were sustained.

Under OAR 660-011-0060(3)(b), local governments may place sewage systems outside urban growth boundaries if the local government “[a]dopts land use regulations to ensure the sewer system shall not serve land outside urban growth boundaries or unincorporated community boundaries.” Petitioners argued that the decision violated this provision because there was no evidence that the city had adopted such regulations and because the decision did not impose a condition requiring it to do so. Although the city agreed in its application to adopt such regulations in the future, LUBA concluded that that stipulation was insufficient to demonstrate compliance with OAR 660-011-0060(3)(b). The fifth assignment of error was therefore sustained and the county’s decision was REMANDED.