Monroe v. City of Corvallis

Under ORS 197.015(10)(b)(H),“a proposed state agency action . . . is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan,” and excluded from LUBA’s jurisdiction, “if: (i) [t]he local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action; . . . or (iii) [t]he use or activity that would be authorized . . . by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan[.]”

Petitioner appealed the City’s affirmation of a city planner’s decision to issue a land use compatibility statement (LUCS). Intervenor operates a glass fiber production facility, and after testing revealed the facility produced air contaminants in excess of its current permits, DEQ required Intervenor to obtain an Air Contaminant Discharge Permit (ACDP). The ACDP required Intervenor to first obtain a LUCS from the City. Upon approval of the LUCS by the City, Petitioner filed a notice of intent to appeal (NITA) the LUCS decision with LUBA. The City and Intervenor filed motions to dismiss Petitioner’s appeal on multiple grounds, including that LUBA lacked jurisdiction to hear Petitioner’s appeal.

Under ORS 197.015(10)(b)(H), “a proposed state agency action . . . is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan,” and excluded from LUBA’s jurisdiction, “if: (i) [t]he local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action; . . . or (iii) [t]he use or activity that would be authorized . . . by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan[.]”

LUBA granted the City’s and Intervenor’s motions to dismiss, finding it lacked jurisdiction to hear Petitioner’s appeal. LUBA concluded that, in accordance with ORS 197.015(10)(b)(H), “[t]he LUCS [was] not . . . a land use decision subject to [its] review.” Where Intervenor’s operations and production levels did not exceed their existing air quality permitting, LUBA found that the LUCS was excluded from its review by 197.015(10)(b)(H)(i) because Intervenor’s activities were consistent with prior local approvals. Where changes in Intervenor’s operations might increase emissions, LUBA found that the LUCS was excluded from its review by ORS 197.015(10)(b)(H)(iii), because those changes would require application to the City for an additional permit, necessitating further review. Dismissed.