Central Oregon Landwatch v. Deschutes County

Where a post-acknowledgement plan amendment (PAPA) proposes a zone change on property that contains an identified Goal 5 resource, and the new zone allows for development that was not previously considered in the original economic, social, environmental, and energy (ESEE) analysis, a local government errs in concluding that the original ESEE had already considered all development possible and a new ESEE is not necessary.

Petitioner appealed a County approval of a post-acknowledgement plan amendment (PAPA) changing the subject property from Exclusive Farm Use (EFU) to Rural Industrial (RI). A portion of the subject property was along a highway, and the land within a quarter-mile of the length of the highway had been designated a scenic resource under Statewide Planning Goal 5. The original economic, social, environmental, and energy (ESEE) analysis of the area identified development as a conflicting use and concluded that development would be allowed in a limited capacity within the resource. The County created a Landscape Management (LM) overlay zone to protect the resource from “development . . . which would excessively interfere with” the resource. The PAPA did not seek to remove the subject property from the LM zone.

On appeal, Petitioner made three assignments of error, the first of which LUBA’s review turned on: that the County had failed to comply with Goal 5 by not evaluating whether the proposed new uses conflicted with the identified resource and instead concluded that the uses allowed in the RI zone had been “implicitly” considered in the original ESEE analysis.

A local government must apply Goal 5 if a PAPA “affects a Goal 5 resource,” such as when the PAPA “allows new uses that could be conflicting uses with a particular significant Goal 5 resource[.]” OAR 660-023-0250(3)(b); NWDA v. City of Portland, 198 Or. App. 286, 299 (2005), rev den, 338 Or. 681 (2005). An ESEE analysis that concludes a conflicting use may be allowed on a neighboring property does not fulfill the need of an ESEE analysis on the subject property evaluating whether the conflicting use may be allowed on the subject property containing a Goal 5 resource. Root v. Klamath County, 63 Or. LUBA 230, 246 (2011).

LUBA sustained Petitioner’s first assignment of error. LUBA noted that while the ESEE analysis may have evaluated development in the RI zone on other properties, the ESEE had not made that evaluation for the subject property. LUBA reasoned that while the ESEE analysis for the inventoried resource had evaluated what development would be allowed within the resource, the development considered for the subject property was only those uses permitted in an EFU zone, not what was allowed in the new RI zone. “When the ESEE analysis was conducted . . . it was not a possibility that ‘development’ of the uses allowed in the RI zone would interfere at all, let alone excessively, with the scenic resource on the subject property because the only uses allowed on the subject property were those allowed under the then-existing EFU zoning.” LUBA concluded the County had erred in failing to evaluate the new conflicting uses of the RI zone on the subject property when it approved the PAPA.

Remanded.