Hatley v. Umatilla County
256 Or. App. 91
Or. Ct. App.2013Background
- Petitioner seeks judicial review of LUBA’s final order affirming two Umatilla County ordinances (2012-04, 2012-05) on WPGFs.
- Ordinances were enacted after Cosner v. Umatilla County remand, addressing setbacks and Goal 5 protections.
- Petitioner owns 1,926 acres in EFU in the Walla Walla Sub-basin with a WPGF lease; slopes and highly erodible soils are present.
- Goal 5 requires a three-step local process unless a PAPA does not affect a Goal 5 resource.
- Three permissible PAPA effects under OAR 660-023-0250(3): create/amend resource lists; allow conflicting uses; amend Urban Growth Boundaries with evidence of resource inclusion.
- LUBA held Ordinance 2012-05 did not create/amend to protect significant Goal 5 resources; the two-mile setback in 2012-04 was not precluded by invited error or waiver, but preemption issues on remand may be reconsidered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2012-05 triggers Goal 5 compliance under OAR 660-023-0250(3)(a) | Petitioner: 2012-05 protects inventoried Goal 5 resources. | Umatilla County: 2012-05 did not create/amend to protect Goal 5 resources. | Not adopted to protect inventoried Goal 5 resources; no Goal 5 compliance required. |
| Whether LUBA applied law-of-the-case/invited-error waivers to preemption on 2012-04 | Beck waiver should apply to legislative decisions; preemption raised on remand. | Waiver/law-of-case governs legislative remands; Beck does not apply to legislative actions. | Beck/law-of-the-case waiver doctrine does not apply to legislative decisions; remand on preemption is appropriate. |
Key Cases Cited
- Rest-Haven Memorial Park v. City of Eugene, 175 Or App 419 (Or. App. 2001) (whether a PAPA protect open waterways overlaps with Goal 5 resources)
- Beck v. City of Tillamook, 313 Or 148 (Or. 1992) (two-phase remand limits issues for LUBA in quasi-judicial appeals)
- DLCD v. Douglas County, 37 Or LUBA 129 (Or. LUBA 1999) (waiver doctrine applied to legislative decisions in some cases)
- Parmenter v. Wallow County, 21 Or LUBA 490 (Or. LUBA 1991) (raises applicability of waiver to land use decisions)
- Roads End Sanitary District v. City of Lincoln City, 48 Or LUBA 126 (Or. LUBA 2004) (waiver/raise-it-or-waive-it considerations in local proceedings)