Devin Oil Co. v. Morrow County
252 Or. App. 101
Or. Ct. App.2012Background
- Devin Oil Co. challenged Morrow County's LU overlay and Love’s Travel Stops plan to build a travel center at I-84/Tower Rd, near Boardman, in an undeveloped 49-acre parcel zoned SAI/Industrial.
- Love’s sought a TC zone and plan amendments with reasons-exception to Goals 3 and 14, and corresponding Transportation Planning Rule compliance to pursue the travel center.
- County initially approved the plan/zoning amendments in May 2010 with Condition 6 restricting uses to a travel center or similar density/type.
- On remand, the county applied a LU overlay to ensure compliance with the exception rule, adopting a new Condition 6 nearly identical to the previous one and addressing transportation impacts under the TPR.
- LUBA affirmed the county’s LU overlay decision on remand; Devin Oil appealed, challenging MCZO 3.110(A)(3) and Condition 6; the matter involved Beck-based law-of-the-case and waiver considerations.
- Petitioner argued LUBA misread MCZO 3.110(A)(3) and that the record showed alternatives to an LU overlay; the court ultimately affirmed, holding certain arguments were waived and the LU overlay was valid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCZO 3.110(A)(3) requires the LU overlay to limit uses to comply with the exception rule | Devin argues LU overlay is not required; county could rely on other options to satisfy Goal 12/TPR. | Morrow County contends 3.110(A)(3) requires use limits via LU overlay to satisfy the exception rule and goals. | affirmed; LU overlay properly required to limit uses per the exception rule. |
| Whether evidence showing alternative transportation improvements undermines the need for LU overlay | Devin asserts improvements proposed by Love’s traffic engineer could allow TC without LU overlay. | County found that limiting uses via LU overlay remains necessary to satisfy the exception and goals; alternatives do not undermine that. | rejected; evidence does not defeat the necessity of the LU overlay to limit uses. |
| Whether Petitioner's challenge to Condition 6 of the LU overlay is waived under Beck and law of the case | Devin contends Condition 6 in LU overlay is new and should be reviewable; Beck precludes review of issues decided earlier if not raised. | Respondents argue the issue was available earlier and the law-of-the-case/Beck doctrine bars new challenges to the same limitation phrasing. | rejected; the challenge to the LU overlay condition was waived under Beck. |
Key Cases Cited
- Beck v. City of Tillamook, 313 Or. 148 (1992) (Beck law-of-the-case/waiver principles for successive LUBA reviews)
- McKay Creek Valley Ass'n v. Washington County, 122 Or. App. 59 (1993) (finality principle in land use disputes; avoid piecemeal appeals)
- Fisher v. City of Gresham, 69 Or. App. 411 (1984) (time is of the essence in land use decisions; finality emphasis)