Beath v. Douglas County

Where a local government does not consider all uses within the impact area and all predicted conflicts for an application under OAR 660-023-0180(5)(a) and (5)(b), LUBA will remand.

Applicants (Intervenors) applied, and the County approved, a comprehensive text amendment to add a 49-acre area of the subject property (the Mining Site) to the county's mineral resources inventory and to allow mining. Within the Mining Site is a 25-acre area zoned Significant Wetland Overlay and is included in the Statewide Planning Goal 5 (Goal 5 Wetlands).  

ORS 197.835(9)(a)(B) provides that a land use decision must be reversed or remanded if the local government “[f]ailed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner.” In their first assignment of error, Petitioners argued that the County erred when it allowed Intervenors’ Final Submission because the Final Submission contained new evidence, including a new site plan, and was submitted after the allowed period for new evidence. Intervenors argued, and LUBA agreed, that the Final Submission did not contain new evidence but only evidence already in the record. Intervenors further argued, and LUBA agreed, that Petitioners failed to establish that the Final Submission prejudiced Petitioners’ substantial rights. LUBA reasoned that because Petitioners failed to establish that the Final Submission prejudiced their substantial rights, even if the Final Submission contained new evidence Petitioners failed to support a reversal or remand. Accordingly, LUBA held that Petitioners’ first assignment of error was denied.

OAR 660-023-0180(3) provides that “[a]n aggregate resource site shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets” the criteria that follows, including:

“[A] representative set of samples of aggregate material in the deposit on the site meets applicable [ODOT] specifications … and the estimated amount of material is … more than 500,000 tons outside the Willamette Valley…” OAR 660-023-0180(8) provides that “[a]n application [under section (3)] shall be adequate if it includes[ i]nformation regarding quantity, quality, and location sufficient to determine whether the standards and conditions in section (3) of this rule are satisfied…”

In their second assignment of error, Petitioners argued that the County erred when it approved the Application because there was not adequate information regarding quantity, quality, or location of the resource. For quantity, Petitioners argued, and LUBA agreed, that the estimates Intervenors submitted based off areas outside the mining site did not constitute substantial evidence. For quality, Petitioners argued, and LUBA agreed, that the single sample provided by Intervenors to ODOT was inadequate to support adequate information and did not constitute substantial evidence. For location, Petitioners argued, and LUBA agreed, that the record identified the mining site but not the exact location of the resource and therefore did not constitute substantial evidence. Accordingly, LUBA held that Petitioners’ second assignment of error was sustained.

OAR 660-023-0180(5)(a) provides that a local government must “determine an impact area for the purpose of identifying conflicts with proposed mining and processing activities.” It further provides that the default impact area must be within 1,500 feet of the mining area boundary. Id. Once the impact area is established,

“[t]he local government shall determine existing or approved land uses within the impact area that will be adversely affected by proposed mining operations and shall specify the predicted conflicts. For purposes of this section, 'approved land uses' are dwellings allowed by a residential zone on existing platted lots and other uses for which conditional or final approvals have been granted by the local government. For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: (A) Conflicts due to noise, dust, or other discharges with regard to those existing and approved uses and associated activities (e.g., houses and schools) that are sensitive to such discharges; … (D) Conflicts with other Goal 5 resource sites within the impact area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; [and] (E) Conflicts with agricultural practices[.]” OAR 660-023-0180(5)(b).

In their third assignment of error, Petitioners argued that the County misconstrued OAR 660-023-0180(5)(b) because its findings regarding the uses within the impact area and the predicted conflicts were inadequate and not supported by substantial evidence. For uses within the impact area, Petitioners argued that their residence and a neighboring farm were within 1,500 feet of the boundary but not identified by the County. Intervenors argued that the residence and farm were not within 1,500 feet of the boundary. LUBA reasoned that because the distances between the boundary and the residence and farm were not clear from the record, the County should determine on remand whether the residence and farm were within the impact area. For predicted conflicts, Petitioners’ first argument was that the County failed to consider conflicts due to noise and dust from all activities associated with the proposed operation, and discharge of contaminated water. Intervenors argued that the County need only identify, but not resolve, predicted conflicts. LUBA reasoned that because the County must identify all predicted conflicts but it only partially considered conflicts due to noise and dust, and did not consider other uses including the residence and farm, the County’s findings were inadequate. Petitioners’ second argument was that the County failed to consider all impacts of the mining and destruction of the wetland including contamination of surface water and groundwater. Intervenors argued the County found the wetland would be destroyed and there were no other conflicts to identify. LUBA reasoned that because Petitioners identified potential conflicts related to, but different from, the destruction of the wetland, the County’s findings were inadequate. Petitioners’ third argument was that the County failed to consider agricultural practices because the County considered mining operations and agricultural practices in central Douglas County but not within the impact area. Intervenors argued that the County’s findings were adequate because the findings were based off mining operations and agricultural practices in the north half of the subject property. LUBA agreed with Petitioners and reasoned that because the County failed to consider agricultural practices within the impact area, the County’s findings were inadequate. Accordingly, LUBA held that Petitioners’ third assignment of error was sustained.

OAR 660-023-0180(5)(c) provides that after identifying the conflicts under subsection (b), the local government then must “determine reasonable and practicable measures that would minimize the conflicts identified under subsection (b) of this section. … If reasonable and practicable measures are identified to minimize all identified conflicts, mining shall be allowed at the site… If identified conflicts cannot be minimized, subsection (d) of this section applies." ORS 660.180 defines minimizing a conflict as reducing “an identified conflict to a level that is no longer significant”. In their fourth assignment of error, Petitioners argued that because the County failed to identify all existing uses within the impact area and all predicted conflicts (see Petitioner’s third assignment of error), the County’s finding that all conflicts besides the destruction of the wetlands were minimized was inadequate. LUBA reasoned that because the County will need to identify on remand all uses within the impact area and all predicted conflicts before finding whether all conflicts are minimized, it would not reach Petitioners’ fourth assignment of error.

OAR 660-023-0180(5)(d) provides that for conflicts that cannot be minimized, the local government must “determine the [economic, environmental, social, and energy (ESEE)] consequences of either allowing, limiting, or not allowing mining at the site" by considering “(A) The degree of adverse effect on existing land uses within the impact area; (B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and (C) The probable duration of the mining operation and the proposed post-mining use of the site.” In their fifth assignment of error, Petitioners argued that because the County failed to identify all existing uses within the impact area and all predicted conflicts, the County’s findings regarding subsection (d) are inadequate. Intervenors argued that the County’s analysis of the destruction of the wetlands was adequate. LUBA reasoned that because the County failed to consider all predicted conflicts related to the destruction of the wetlands (see Petitioner’s third assignment of error), the County’s ESEE analysis was inadequate. Accordingly, LUBA held that Petitioners’ fifth assignment of error was sustained.