Central Oregon Landwatch v. Jefferson County

Where a reasonable person would not be able to identify the findings of fact and statements of reasons supporting the exceptions from a local government’s decision, LUBA will remand. Under OAR 660-004-0015(1), an amendment must be more than a list of amendments on the code’s face page with the ordinance number and ordinance date, and must indicate the subject of the amendment, including exceptions. LUBA will not affirm a local government’s decision under ORS 197.829(1) if the local government’s interpretation is not plausible. When a local government does not address the applicable criteria or fails to adopt findings of fact or statements of reasons, LUBA will remand.

At issue is a 142.5-acre undeveloped property within Crooked River Ranch (CRR), zoned as Range Land (RL). CRR is identified by Jefferson County Comprehensive Plan (JCCP) 79 as a rural unincorporated community under ORS 221.034(1)(b). There were 2,642 lots and a fire and rescue department within CRR and portions of CRR received water from the Crooked River Ranch Water Company, which obtained the water from wells. When CRR was originally platted, the United States Forest Service (USFS) owned the property at question in this case. USFS later sold the property to a private party, who planned to develop the property as part of CRR.

The Intervenor-respondent (intervenor) in this case, applied for an amendment to the comprehensive plan map to change the property’s zone from RL to Rural Residential 2-acre (RR2) as well as exceptions to Statewide Planning Goals 3 (Agricultural Lands) and 14 (Urbanization) (the decision). The planning commission recommended denial. The board of commissioners approved the amendment to the comprehensive plan and the zone change, and adopted. Petitioner appealed the decision to LUBA.

In order for an exception to Statewide Planning Goal 2 (Land Use Planning)  to be granted, the proposal must comply with ORS 197.732. Even exceptions for property irrevocably committed to uses that do not comply with a goal and for matters where there are sufficient reasons to not apply a goal are allowed. ORS 197.732(4) provides that a local government must “set forth findings of fact and a statement of reasons that demonstrate that the standards of [ORS 197.732(2)] have or have not been met” when “approving or denying a proposed exception." ORS 197.732(6) provides that LUBA will determine whether the local government’s decision adequately demonstrated that the standards for an exception have or have not been met; however, LUBA will be bound by the local government’s “finding of fact for which there is substantial evidence in the record” of the proceedings that resulted in the “approval or denial of the exception”.

To adequately demonstrate the standards for an exception have or have not been met, a local government must “clearly identify in its decision what type or types of exceptions it wishes to adopt; … adopt findings of relevant fact, based on the evidence in the record, which support an exception; … adopt a statement of reasons explaining why it concludes the applicable exception criteria are or are not met; and … if [the local government] concludes the exception criteria are met, amend its comprehensive plan to include the exception and the findings and reasons which support the exception”. DLCD v. Douglas County, 17 Or LUBA 466, 472 (1989).

In their first assignment of error, Petitioner alleged three errors. (1) that the county failed to provide notice of public hearings specifically identifying the proposed goal exceptions and summarizing the issues in an understandable manner; (2) that the county failed to set forth findings of fact and statements of reasons justifying the exceptions; and (3) that the county failed to adopt findings of fact and statements of reasons justifying the exceptions as part of the JCCP.

(1) Petitioner argued that the County erred when it made the decision because it failed to provide notice that summarized the matter comprehensibly and specifically identified the proposed goal exceptions. The County argued that the decision adopted an irrevocably committed exception to Goal 3 (standards at ORS 197.732(2)(b) and OAR 660-004-0028(3)), a reasons exception to Goal 14 (standards at OAR 660-004-0020), and an alternative irrevocably committed exception to Goal 14 (standards at OAR 660-014-0030), and its findings addressed the applicable standards. LUBA determined that the County identified the types of exceptions it wanted to adopt clearly and adequately enough. That portion of Petitioner’s first assignment of error was denied.

(2) Petitioner also argued that the County erred when it made the decision because it failed to support the exceptions. The County argued that the decision supported the exceptions through document incorporation. When incorporating documents into a decision, a local government “must clearly (1) indicate its intent to do so, and (2) identify the document or portions of the document so incorporated. A local government decision will satisfy these requirements if a reasonable person reading the decision would realize that another document is incorporated into the findings and, based on the decision itself, would be able both to identify and to request the opportunity to review the specific document thus incorporated.” Gonzalez v. Lane County, 24 Or LUBA 251, 259 (1992) (footnote omitted). LUBA determined that the decision indicated intent to incorporate documents and identified the documents, but that a reasonable person would not be able to identify the findings of fact and statements of reasons supporting the exceptions because of the sheer volume of the document (687 pages). Accordingly, LUBA held that portion of Petitioner’s first assignment of error was sustained.

(3) Petitioner argued that the County erred when it made the decision because it failed to support the adoption of the exceptions into the JCCP with "findings and reasonings" pursuant to OAR 660-004-0015(1) (findings and statements of reasons supporting an exception must be adopted into the local government’s comprehensive plan). A local government’s attempt to increase permitted uses under OAR 660-004-0015(1) or to modify permitted uses under OAR 660-004-0018(4)(b) (“plan and zone designations [adopted under specific statutes including ORS 197.732(1)(c) and OAR 660-004-0020] must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception”) must follow the post-acknowledgment plan amendment process. Devin Oil Co., Inc. v. Morrow County, 62 Or LUBA 247, 264, aff’d, 250 P3d 38 (2010), rev den, 350 Or 408 (2011). The County argued that the decision amended the JCCP as shown by the title of the ordinance (“IN THE MATTER OF AMENDING THE JEFFERSON COUNTY COMPREHENSIVE PLAN AND ZONING MAP FOR PROPERTY LOCATED AT Tl35 R12E SEC 23 LOT 100 AND DECLARING AN EMERGENCY”) and language within the decision. LUBA determined that the decision violated OAR 660-004-0015(1) because the JCCP face page lists amendments by ordinance number and date without indicating the subject of the amendments including exceptions. Accordingly, LUBA held that portion of Petitioner’s first assignment of error was sustained.

JCCP 92 provides, in part, that “[t]he Comprehensive Plan should be evaluated periodically and updated or amended when necessary to reflect changes in land use patterns that have occurred or when the citizens of the County, as represented by the Planning Commission and County of Commissioners, feel it is desirable.” JCCP 94 provides, in part, that for quasi-judicial amendments “to be approved, the proposed amendment must… [b]e necessary due to changes in physical, economic or social conditions, population growth, or development patterns which require an adjustment in the land use[] designations in the area where the amendment is proposed.”

In their second assignment of error, Petitioner argued that the County erred when it made the decision because the plan designation and zone change were not "necessary" or "required" under JCCP 94. The County argued that its interpretation was plausible and that LUBA must affirm the decision under ORS 197.829(1). Petitioner further argued that the decision was not necessary, indispensable, or essential that the Property be redesignated and rezoned to facilitate additional rural residential development. The County argued that its interpretation was plausible and therefore LUBA must affirm the decision under ORS 197.829(1). LUBA determined that the County did not show that the decision was necessary or required. LUBA determined that the County failed to give findings supporting the decision in this assignment of error which LUBA reasoned is mixed improper construction, inadequate findings, and lack of substantial evidence. Accordingly, LUBA held that Petitioner’s second assignment of error was sustained.

In their third assignment of error, Petitioner argued that the County erred by finding the decision did not authorize the expansion of an existing unincorporated community because it did not address Petitioner’s arguments that there was applicable criteria, under OAR 660-004-0020(4) and OAR 660-004-0022(4), nor did it address the applicable criteria. LUBA determined that the decision approved a de facto expansion of CRR without showing compliance with the applicable criteria. Accordingly, LUBA held that Petitioner’s third assignment of error was sustained.

Because LUBA determined that the County failed to adopt findings of fact and statements of reasons justifying the exception, LUBA did not reach or address Petitioner’s fourth assignment of error (the decision misconstrued applicable law and was unsupported by substantial evidence when it approved a Goal 3 exception (ORS 197.835(9)(a)(C), (D)) or fifth assignment of error (the decision misconstrued applicable law when it approved a Goal 14 exception (ORS 197.835(9)(a)(D)).