Friends of Yamhill County v. Yamhill County

LUBA will hold that an issue was not raised below with “sufficient specificity” to be preserved, Boldt v. Clackamas County, 21 Or LUBA 40, 46, aff'd, 107 Or App 619 (1991) where, during local proceedings, the issue was: 1) merely referenced in the context of an alternate argument, or 2) expressed in terms of generalized concerns, but raised before LUBA in technical detail.

Intervenors own parcels of land in Yamhill County which have been zoned for Exclusive Farm Use (EFU). The EFU implements Statewide Planning Goal 3 (Agricultural Lands). Intervenors applied for a conditional use permit (CUP) to construct a public road ("Jahnke Road"), in order to improve access to the property. Petitioners appealed the board of county commissioners’ approval of the CUP.

OAR 660-012-0065(3)(o) requires that transportation improvements "serve local travel needs", and that they "support rural land uses in the acknowledged comprehensive plan."

Petitioners first argued that Jahnke Road did not meet the requirements of OAR 660-012-0065(3)(o). Intervenors responded that Petitioners failed to raise the issue in front of the board of county commissioners and that the issue was waived. Petitioners cited a letter submitted to the board of county commissioners which referenced OAR 660-012-0065(3)(o) in the context of arguing that Jahnke Road was not needed because a private driveway provides access Intervenor’s parcels. ORS 197.797(1) provides that for an issue to be preserved for LUBA review, the issue must "be raised and accompanied by statements or evidence sufficient to afford the governing body . . . and the parties an adequate opportunity to respond to each issue." Under Boldt v. Clackamas County, 21 Or LUBA 40, 46, aff'd, 107 Or App 619 (1991), the "raise it or waive it" principle requires the parties to have previously raised issues with "sufficient specificity" so as to prevent an unfair surprise on appeal. Intervenors argued, and LUBA agreed, that simply citing OAR 660-012-0065(3)(o) in the context of an alternate argument was not sufficient to alert Intervenors and the county board of commissioners of the issue raised, and thereby provide them an adequate opportunity to respond. LUBA held that the issue was not raised during the local proceedings and was therefore waived under ORS 197.797(1). LUBA denied Petitioners’ first assignment of error.

Yamhill County Zoning Ordinance (YCZO) 1202.02(C) sets out as a conditional use criterion that a "parcel is suitable for the proposed use considering its size, shape, location, topography, existence of improvements and natural features."

Petitioners further argued that Jahnke Road failed to satisfy YCZO 1202.02 because it exceeded the maximum 10 percent grade allowable under the County's Transportation System Plan (TSP). Again, Intervenors responded that the issue has been waived due to Petitioner's failure to raise it during local proceedings. Petitioners cited a letter that mentioned concerns about the steepness of the road, but did not reference a lack of compliance with the TSP. As result, LUBA reasoned that "generalized concerns about the current and potential struggles due to grade are insufficient to support the technical TSP-based issue in the second assignment of error." LUBA held that the issue was waived. LUBA denied Petitioners’ second assignment of error.

Affirmed.