Central Oregon Landwatch v. Deschutes County

1) Where an issue is previously conclusively decided against a petitioner in a final reviewable LUBA decision, LUBA will consider the issue waived. 2) Where DLCD issues order acknowledging an amended land use ordinance is sufficient to ensure consistency with Goal 14, LUBA will find that no exception to Goal 14 is required. 3) Where a county’s comprehensive plan limits the intensity of rural industrial uses beyond what is allowed by regulation in unincorporated communities, LUBA will hold that limitation is "independently sufficient" to demonstrate a PAPA's compliance with Goal 14, and analysis under the Shaffer test is not be required.

Petitioner appealed a county decision granting a post-acknowledge plan amendment (PAPA) to redesignate and rezone the subject property from agricultural to rural industrial (RI) and from exclusive farm use (EFU) to RI. On remand from LUBA, the County adopted findings providing three independent and alternative reasons why its prior decision was consistent with Goal 14 (Urbanization). First, the County found the Deschutes County Comprehensive Plan (DCCP) RI policies and implementing Deschutes County Code (DCC) RI zone regulations allowed only rural uses of property designated and zoned RI, in essence establishing the regulations were facially sufficient to demonstrate compliance with Goal 14. Second, the County found the DCC RI zone regulations as applied ensured the use of the land constitutes a rural use. And third, the County found, even under the Shaffer test, a "worst case" scenario of use would result in the employment of 90 workers on the subject property, and 90 is a "small" number of employees, sufficient to maintain a rural use under the test. 

DCC 22.20.015(A) provides that if a property is in violation of an applicable land use regulation, the County shall not make a land use decision, approve development, or issue a building permit for the property.

Under their fifth assignment of error, Petitioner argued the County committed a procedural error by failing to ascertain whether a commercial business was operating on the subject property in violation of current EFU zoning. The County argued, and LUBA agreed, the issue had been previously raised in Aceti IV. There, the County had concluded the approval of the proposed amendment was permitted under DCC 22.20.015(D) if the alleged violator signed a voluntary compliance agreement, as they did here. In Aceti IV, Petitioner could have challenged the County’s application of DCC 22.20.015(D) but did not. LUBA reasoned that on review of post-remand proceedings, Petitioners may not raise issues at LUBA that had previously been "conclusively decided against them by . . . [a] final a reviewable LUBA decision." Beck v. City of Tillamook, 831 P.2d 678 (1992). Accordingly, LUBA held that the issue had been waived and denied the Petitioner's fifth assignment of error. 

DCC 18.100.010 sets out the uses that are permitted outright in the RI zone.

Under their third assignment of error, Petitioner argued the County erred in finding that no exception to Goal 14 was required based on a prior acknowledgement of the RI zone's compliance with Goal 14 under different circumstances. The County argued that, in 2002, the County amended the DCC and DCCP to limit the uses authorized in the RI zone to rural uses, and that in 2003, DLCD issued an order acknowledging the 2002 ordinances as consistent with Goal 14. LUBA reasoned that the provisions of DCCP and DCC that apply to the RI zone are consistent with Goal 14 because they only permit development which constitutes rural use, do not constitute urban use, and maintain the land as rural land. Accordingly, LUBA denied Petitioner's third assignment of error. 

DCCP Policy 3.4.23 assures that urban uses are not permitted on RI lands by prohibiting any use more intensive than those allowed in unincorporated communities under OAR 660-22.

Finally, Petitioner argued that the County misconstrued applicable law and made a decision not supported by adequate findings or based on substantial evidence in concluding the subject property engaged in its most intensive use would require a “small” number of employees. The County argued the policies and provisions of DCC and DCCP were sufficient to demonstrate that PAPAs applying the RI plan designation would be consistent with Goal 14, and therefore, further analysis under Shaffer would be redundant. LUBA agreed, reasoning that DCCP Policy 3.4.23 ensures that RI zones allow only uses that are less intensive than those allowed in unincorporated communities. Accordingly, LUBA held the policies and provisions of the DCCP and DCC were independently sufficient to demonstrate consistency with Goal 14, precluding the need for further analysis. Accordingly, LUBA denied Petitioner’s first, second, and fourth assignments of error.

Affirmed.