Central Oregon Landwatch v. Deschutes CountyCentral Oregon Landwatch v. Deschutes County
Affirmed.
Rory Isbell argued the cause and filed the brief for petitioner.
Garrett Chrostek argued the cause for respondents. Also on the brief were Bryant, Lovlien & Jarvis, P.C., and D. Adam Smith.
EGAN, C. J.
Affirmed.
EGAN, C. J.
Petitioner Central Oregon Landwatch seeks judicial review of an order of the Land Use Board of Appeals (LUBA) that affirmed respondent Deschutes County‘s approval of an amendment to its acknowledged comprehensive plan. Petitioner assigns error to LUBA‘s determination that a comprehensive plan amendment does not require the county to revisit its prior determinations that the subject property was not agricultural land as defined by Goal 3. We affirm.
I. STANDARD OF REVIEW
We review LUBA‘s order to determine whether it is “unlawful in substance or procedure[.]”
II. BACKGROUND
We begin with the legal context of the dispute, including the history and requirements of Goal 3. We then generally describe the procedural history of the county‘s approval of Tumalo Irrigation District‘s application and the appeal to LUBA. We later supplement our discussion of the facts as necessary to address the parties’ contentions, taking the facts from LUBA‘s opinion and order.
A. Statewide Planning Goals and Acknowledged Comprehensive Plans
In 1973, the Oregon legislature adopted its statewide land use planning program and created the Land Conservation and Development Commission (LCDC).
Local governments must adopt comprehensive plans that comply with the statewide goals and submit those plans to LCDC for review.
“a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, transportation systems, educational facilities, recreational facilities, and natural resources and air and water quality management programs.”
B. Goal 3 Inventories
The statewide goal at issue in this case, Goal 3, was enacted “to preserve and maintain agricultural lands for farm use.” VinCEP v. Yamhill County, 215 Or App 414, 426, 171 P3d 368 (2007) (comparing the purpose of Goal 3 to other statewide planning goals). As relevant here, “agricultural land” is defined under Goal 3 to include “[l]ands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon.”
Goal 3 requires that land that meets the definition of agricultural land be inventoried as such.
A local government may adopt an exception for non-goal uses of specific properties in
C. Post-Acknowledgement Plan Amendments
After a comprehensive plan is acknowledged, a local government may amend it.
A post-acknowledgement plan amendment (PAPA) is reviewable for “compliance with those land use goals applicable to the amendment,” as well as for compliance with the acknowledged plan.
However, in Urquhart v. Lane Council of Governments, 80 Or App 176, 181-82, 721 P2d 870 (1986), we held that a statewide goal is only implicated for review purposes if the PAPA itself affects the goal, either directly or indirectly. Under the Urquhart rule, a PAPA is not reviewable “on the basis of a defect in the inventory which is not directly or indirectly attributable to the plan amendment.” Id.
An exception to the Urquhart rule arises if a local government adopts a PAPA with the purpose of achieving compliance with rules “promulgated [by LCDC] in relevant part after the county‘s preexisting plan and ordinance provisions were acknowledged.” Dept. of Transportation v. Douglas County, 157 Or App 18, 20, 967 P2d 901 (1998) (emphasis added). In such a case, LUBA may review whether the local government‘s legislation complies with the statewide goals as a whole. Id. at 23-24. Petitioner does not contend that the rules at issue in this case were promulgated after the county adopted its acknowledged plan.
D. History of the Subject Property and Tumalo Irrigation District‘s Application to Deschutes County
The subject property is a 541-acre property in rural Deschutes County. The property was acquired by the county in 1932 and was used for mining beginning in or before 1947. On the county‘s earliest zoning map, the property was zoned Surface Mining (SM).
The county has conducted three agricultural inventories since acquiring the subject property. First, in 1978, the county adopted by ordinance an initial inventory of agricultural lands. Next, in 1979, the county adopted its comprehensive plan. The 1979 comprehensive plan was acknowledged by LCDC. Finally, in 1992, the county inventoried its agricultural lands again as part of a periodic review. The periodic review was also acknowledged.
The subject property was not included in the agricultural lands inventory at any point, nor was it ever zoned EFU. From the time of the 1979 Comprehensive Plan adoption and acknowledgment to the time of Tumalo Irrigation District‘s application for a plan amendment and zoning change, the subject property was designated as SM.
Tumalo Irrigation District applied to the county to amend the plan designation of the
A county hearings officer denied the application, finding that, although the proposed amendment did not require a Goal 3 exception because the property was not agricultural land, the application was not properly supported by information about the impacts of the amendment on surrounding land use. Both Tumalo Irrigation District and Central Oregon Landwatch appealed the hearings officer‘s decision to the county‘s board of commissioners. Tumalo Irrigation District contested the rejection of its application, and Central Oregon Landwatch contested the finding that no Goal 3 exception was required. Central Oregon Landwatch asserted that an exception was required because NRCS maps showed that the property‘s soils were of the classifications that meet the definition for agricultural lands.
On appeal, the county reversed the hearings officer‘s decision and approved the application. The county found that, because the property was not designated as agricultural land in the county‘s acknowledged comprehensive plan, it was not subject to Goal 3 and therefore no exception was required. Additionally, the county found it significant that
“[s]ubsequent to initial adoption of this zone and Comprehensive Plan designation, the [c]ounty rezoned several ‘resouce lands’ to [SM] when the mineral resource on the land qualifies as a Goal 5 resource. The [Economic, Social, Environmental, and Energy (ESEE) analysis] for those [SM] sites specify a post[-]mining use and zoning designation consistent with the prior zoning *** [, and] the [county] finds that the prior zoning and ESEE for a mining site are instructive for determining future zoning. If the ESEE specifies resources uses as the post-mining uses and zoning, then the applicable resource use is the appropriate zoning unless the applicant can otherwise demonstrate that the subject property does not qualify as resource lands or is eligible for an exception to the applicable resource goal. Where the ESEE is silent, and there are no other indicators of a resource designation, then the subject property is not considered resource lands under the [c]ounty‘s Comprehensive Plan and is eligible for a non-resource zoning designation without the need to take any exception to the resource goals.”
The ESEE for the subject property did not include any discussion of post-mining uses, including specifying EFU zoning as is required for agricultural lands.
E. The LUBA Appeal
Petitioner appealed the county‘s decision to LUBA.1 Before LUBA, petitioner assigned error to multiple aspects of the county‘s decision, but only one issue is now presented to us: whether the county was required to revisit its prior determinations that the subject property was not agricultural land and either include it in its Goal 3 inventory or seek an exception. Petitioner argued that the soils of the subject property were indisputably classified by NRCS as types of soil that are required by Goal 3 to be inventoried as agricultural land.2 In petitioner‘s view, the NRCS classification must be applied as a matter of law.
In response, respondents both disputed the validity of the NRCS map petitioner offered and argued that the application of the NRCS data was inapposite because the county had already determined in its prior land inventories that the property was not agricultural land. Respondents contended that the subject property was not agricultural land because “Goal 3 obligates counties to inventory agricultural lands within their jurisdiction [and t]he record is clear that Deschutes County determined the subject property is not agricultural land on three separate occasions[:]” during the adoption of the 1978 interim ordinance, the inventory for the 1979 comprehensive plan, and the 1992 periodic review.
petitioners in Caldwell argued that a PAPA requires application of all the statewide planning goals and, therefore, the county must address whether the property included agricultural land within the meaning of Goal 3. Id. Further, because there was evidence that the subject property was of the type required to be inventoried under Goal 3, including evidence that it contained predominately Class II-VI soils, the petitioners argued that “the county must find that the property includes agricultural land subject to Goal 3.” Id. at 551.
LUBA, applying Urquhart, determined that the question before it was “whether the proposed zoning affects the county‘s original determination that the subject property does not include ‘agricultural land’ in a manner that affects the county‘s compliance with Goal 3.” Id. at 552. LUBA concluded that the PAPA did not affect the county‘s compliance with Goal 3 because, even if the county was mistaken in its original inventory or LCDC was mistaken in acknowledging the plan that excluded the subject property from the inventory, the PAPA at issue did not affect the county‘s compliance with Goal 3. Id. Neither NR nor RR-10 properties implicated Goal 3, so a change in designation between them did not implicate it either.
III. ANALYSIS
Petitioner timely petitioned for judicial review of LUBA‘s order. On judicial review, petitioner assigns error to LUBA‘s conclusion that the county‘s PAPA complies with Goal 3 and its implementing regulations. Petitioner argues that the county must apply the Goal 3 definition of agricultural land to the subject property before changing its designation, regardless of its prior determinations that the property was not agricultural land. In light of the NRCS map showing the soils on the property as Class III-IV, petitioner further contends that the property is agricultural land as a matter of law, and the county must either include it in its Goal 3 inventory or take an exception.
Further, petitioner argues that LUBA relied on Urquhart in error. In Urquhart, a county amended its acknowledged plan to create and apply a new land use designation. 80 Or App at 178. On appeal, LUBA remanded “on the ground that [the local government‘s] findings did not adequately demonstrate why the area affected by the amendment should not be added to the plan‘s Goal 5 inventory as an open space site.” Id. On judicial review, we noted that, although the property “was not included on the plan‘s original Goal 5 inventory that was acknowledged by LCDC,” the area was “designated ‘open space’ on the plan diagram, and there was evidence *** that that was an appropriate designation.” Id. at 178-79.
The county in the Urquhart case argued that it should not have to reconsider the exclusion of property from its acknowledged inventory as part of the plan amendment process. Id. at 179. However, LUBA reasoned that a property‘s absence from an inventory should not preclude a later determination that the property should be inventoried. Id. We acknowledged that both positions have merits and problems: requiring a reevaluation of each goal with every PAPA would make the plan amendment process much more burdensome and complex, while precluding that reevaluation could prevent the correction of possible errors in local governments’ acknowledged inventories. Id. at 179-80.
We concluded in Urquhart that PAPAs are not reviewable for potential goal noncompliance that is not “a consequence of the amendment.” Id. at 181. Because the property in Urquhart was “excluded from the [county‘s Goal 5] inventory before the amendment was enacted, and the
Petitioner contends that differences between Goals 3 and 5 render our Urquhart rule inapposite to challenges to PAPAs under Goal 3.4 Petitioner asserts that the holding in Urquhart is limited to challenges under Goal 5 because it is premised on the particular administrative framework of that goal. Petitioner contends that “Goal 5 directs local governments to make local choices about which Goal 5 resources to protect,” in contrast with Goal 3‘s statewide definition of agricultural land. We reject that distinction for the following reasons.
First, the Goal 5 standards for a county determining what land to include in its Goal 5 inventory were not a basis for our decision in Urquhart, nor did we limit our holding to that goal. Instead, our decision was based on the fact that the subject property was excluded from the inventory before the PAPA at issue in that case, and the PAPA did not affect the inventory. Second, the principle from Urquhart—that a potential defect in an acknowledged inventory that is not attributable to a PAPA does not provide a basis to review that PAPA—is a general one. Moreover, periodic review, the remedy we identified when changes in circumstances, other than from a PAPA, have brought an acknowledged inventory out of compliance, is also applicable to all the statewide planning goals. While some goals may have rules that mandate more frequent reviews or updating of inventories, Goal 3 does not have any such additional rules with regard to
agricultural lands. The reasoning and holding of Urquhart are applicable here.5
In sum, the county was not required to revisit its prior determination that the subject property is not agricultural land. LUBA correctly stated and applied that principle in its determination that the subject property is not agricultural land subject to Goal 3. Accordingly, we conclude that LUBA‘s order is not “unlawful in substance.”
Affirmed.