Mark Latham Excavation, Inc. v. Deschutes CountyMark Latham Excavation, Inc. v. Deschutes County
Dеschutes County, Eric and Ronna Hoffman, Sanders Nye, and Cascades Academy of Central Oregon (collectively, respondents) seek judicial review of a final opinion and order of the Land Use Board of Appeals (LUBA), in which LUBA remanded a land
The 80-acre property subject to this dispute is just north of Bend, approximately one mile southwest of Tumalo State Park, and 500 feet west of the Deschutes River. In 1995, the county granted the prior owner of the property, Cascade Pumice, a permit to mine pumice until 2007, when petitioners purchased the property. Petitioners sought a conditional use permit to expand the mining operation to include, among other things, mining 3.4 million cubic yards of tuff and further mining into the side of a prominent hill situated along the south side of the site.
Before we discuss the specifics of the county’s decision approving the application, we pause to give a brief overview of the county’s Goal 5 planning history, which is pertinent to the county’s decision, LUBA’s opinion, and the parties’ arguments. Goal 5 is a statewide planning goal enacted to “protect natural resources and conserve scenic, historic, and open space resources.” Goal 5; see OAR 660-015-0000(5). As specified in OAR chapter 660, division 16, local governments must conduct three tasks to comply with Goal 5. First, local governments must inventory key resource sites. OAR 660-016-0000. Second, local governments must identify conflicts with the inventoried Goal 5 resource sites and determine the “Economic, Social, Environmental and Energy” (ESEE) consequences of allowing conflicting uses for those sites.
In 1990, the county enacted a series of ordinances to comply with its Goal 5 planning obligation for mineral and aggregate resources. The county enacted Deschutes County Ordinance (DCO) 90-025, which adopted an inventory of significant mineral and аggregate sites, including petitioner’s site. The county also enacted DCO 90-029, an ordinance that adopted the “ESEE Findings and Decision” (ESEE decision) for petitioner’s site. The ESEE decision addressed each of the three steps required by OAR chapter 660, division 16: an inventory of resources on the site, an analysis of conflicting uses, and the county’s program to meet the goal.
As for resources on the site, petitioner’s predecessor, Cascade Pumice, represented to the county that less than 25 acres of the site would actually be mined. The ESEE decision for petitioner’s site identified 750,000 cubic yards of pumicе and 10,000 cubic yards of sand and gravel to be mined, but did not identify tuff, a type of volcanic rock, as a resource. The ESEE decision then identified conflicting uses and discussed the ESEE consequences of the conflicting uses. At the end of the discussion, the county elected to
“The Board finds that in order to protect both the aggregate resource and the conflicting resources and uses, the site * * * will be zoned for surface mining, subjeсt to the following ESEE conditions:
“(a) Setbacks shall be required for potential conflicting residential and other development;
“(b) Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries;
“(c) Hours of operation shall be consistent with DEQ standards and applicable county ordinances;
“(d) Wildlife restrictions set forth in [Oregon Department of Fish and Wildlifefs letter of August 10,1989, shall apply;
“(e) Excavation shall be limited to five acres with ongoing incremental reclamation (subject to [Department of Geology and Mineral Industries] review and approval);
“(f) Mining operations, including placement of processing operations and equipment and excavation and transport of material shall meet all applicable DEQ noise and dust standards.
“The Board finds that processing on site will be allowed.”
Thus, in its PTMG, the county determined that it would apply the surface mining zone to the site. That zone imposes a number of limitations or requirements on mining to reduce off-site impacts, including setbacks, screening, and noise and operational limitations. Other than limiting the excavation site to five acres, the PTMG did not restrict where petitioner could mine, and it did not mention the hillside.
With the above background in mind, we turn to the facts that led up to this judicial review. Petitioner purchased the subject property from Cascade Pumice in 2007 and submitted an application to the county to expand mining operations into the hillside. A portion of the northwestern slope of the hill has already been mined. The application also sought to mine and export both pumice and tuff. Approval of petitioner’s application would ultimately result in a more pronounced headwall, both in height and length. The existing headwall is visible from the Tumalo State Park campground and associated trails.
In 2009, the county granted a conditional use permit that, among other things, allowed petitioner to mine further into the hillside for tuff as incidental to mining for pumice, the inventoried resource. Two of the respondents in this appeal, Eric and Ronna Hoffman, appealed to LUBA. In 2010, LUBA determined that the county did not adequately explain its reasons for allowing the mining of tuff, and remanded the county’s decision. Hoffman v. Deschutes County, 61 Or LUBA 173 (2010).
In finding that the county’s explanation of its decision that tuff was incidental to pumice mining was insufficiently clear, LUBA noted that petitioner sought to mine approximately 3.4 million cubic yards of tuff and only 700,000 cubic yаrds of pumice. That fact and the lack of an explanation of the potential impact of mining and removing the tuff led LUBA to question whether tuff mining was merely incidental to pumice mining. In addition, LUBA held that when a different, noninventoried mineral resource is later discovered at a subject site, and that resource is not identified in the ESEE analysis as a significant mineral resource, the county can extend Goal 5 protection to that resource by requiring a new ESEE analysis. The county can only require a new ESEE analysis if that noninventoried mineral is not “incidental” to mining an inventoried Goal 5-protected resource. LUBA stated that the test to determine whether mining for a new mineral resource is incidental to mining for the inventoried resource depends on whether the local government would have enacted the same PTMG had the local government known about the new mineral resource at the time the ESEE analysis and PTMG were adopted.
In 2011, on remand from LUBA, the county first determined that mining tuff was not
Petitioner appealed to LUBA, challenging both the decision that an amended ESEE analysis is required and the imposition of Condition 20. Petitioner argued, among othеr things, that the PTMG permitted petitioner to mine anywhere on its property, including into the hillside, so Condition 20 was improper, and that, because the PTMG allows petitioner to remove pumice, it can mine tuff as incidental aggregate, without need for an amended ESEE analysis. In its second, 2012 opinion in this case, LUBA affirmed the county’s determination that mining of the tuff was not contemplated by the ESEE decision and that a new ESEE analysis would be necessary for petitioner to remove the tuff. However, LUBA rejected the county’s determination that its 1990 PTMG would have been different if mining the hillside had been contemplated at that time and rеjected the county’s imposition of Condition 20.
In sustaining petitioner’s challenge to Condition 20, LUBA noted that it was reviewing the county’s interpretation of its own land use provision. Thus, LUBA explained, it was required to affirm the county’s “plausible” interpretation of its own land use provisions pursuant to ORS 197.829(1)
“The county’s findings in support of Condition 20 note that the owner of the property, Cascade Pumice, represented in 1989 that it only intended to mine approximately 25 acres of [petitioner’s site]. From that 1989 representation, the county infers that the Goal 5 plan for the property that the county adopted in 1990 anticipated that only the flatter portion of the property in the north was to be mined. * * * The county’s findings also point out that the 1990 Conflict Resolution/ESEE Analysis findings (1) refer to ‘the opening of a pit in the ground,’ (2) refer to mining as a ‘transient use,’ (3) express concern with dust and visual impacts of mining on nearby Tumalo State Park, the adjacent Deschutes River Scenic Area, and other surrounding properties and (4) make no mention of a highly visible headwall. In imposing Condition 20, the county reasons that opening a pit in the ground has quite different impacts from mining into the side of a hill to create a large headwall that will not be ‘transient’ and will have significant visual and other impacts on Tumalo State Park, the adjacent Deschutes River Scenic Area, and other surrounding properties. The county reasons that because no headwall was discussed in 1990 Conflict Resolution/ESEE Analysis findings, mining in a way that will produce a large headwall is not authorized by the Goal 5 plan for [petitioner’s site].”
LUBA explained that beforе it could determine the plausibility of the county’s interpretation, it first had to determine whether the PTMG categorically prohibited head-wall mining. Id. at_(slip op at 12). LUBA concluded that there was no ambiguity in the PTMG on that issue and that there were no limits on headwall mining in the PTMG:
“The county’s findings identify no language in the PTMG text, the ESEE conditions or the [surface mining] zone that can be read to suggest a limitation on mining the side of the hill to create a headwall, or that limits mining to any particular location on the 80-acre parcel zoned [surface mining]. Indeed, that the county zoned the entire 80-acre parcel [surface mining] suggests the contrary.
“That is not to say that under the PTMG that is embodied in the ESEE conditions and the provisions of the [surface mining] zone, the county could not determine that a site plan that proposes to greatly increase the size of the headwall, even if the proposal were to be modified to propose extraction and export of only the inventoried pumice, could not be approved because it runs afoul of one or more of the screening or other standards imposed by the [surface mining] zone or that it fails to confirm with ESEE condition b for [petitioner’s site]. * * * However, we have not been ablе to locate any text in the PTMG that suggests a limitation on mining the site to create or expand a headwall, and on that issue the PTMG seems unambiguous.”
Id. at_(footnote omitted) (slip op at 13). Accordingly, while noting that the county could consider whether petitioner’s planned mining would be contrary to existing ESEE conditions or surface mining zoning requirements, LUBA sustained petitioner’s objections to the county’s complete prohibition of mining of the headwall, and remanded the decision.
Respondents seek judicial review of LUBA’s order concerning Condition 20. In a joint brief, respondents contend that LUBA did not give the proper deference due to a local government’s plausible interpretation of its own code provisions under Siporen. In respondents’ view, LUBA inappropriately imposed a restriction on the county’s ability to interpret its own enactments by requiring the county to identify language in the PTMG that the county contends is ambiguous. Respondents contend that the ESEE decision and PTMG do not address mining into the hillside at all and that, in the face of language in the ESEE decision, including concerns as to impacts on Tumalo State Park and the Des-chutes River Scenic Waterway and a description in the ESEE decision of the mining as “the opening of a pit in the ground,” the absence of such an analysis means that such mining into the hillside was not contemplated — not that such mining was allowed. Petitioner responds that LUBA correctly determined that the county’s interpretation was inconsistent with express language of the plan and ordinances because the PTMG and zoning regulations do not expressly restrict mining into the side of a hill or headwall mining, and the county is now creating an ambiguity because it is unhappy with the 1990 ESEE decision that permitted such mining.
We note at the outset that, although petitioner stated at oral argument that its ultimate goal is to mine and export tuff, the only issue on аppeal is whether LUBA erred in determining that the county’s decision to categorically prohibit, for now, further headwall mining, even for pumice, is correct. Petitioner withdrew its cross-petition for review and does not challenge LUBA’s conclusion that the county correctly decided that a new ESEE decision would be required to mine tuff. Thus, whether petitioner can mine for tuff is not at issue on judicial review. Accordingly, we do not decide that issue and focus on Condition 20.
We review LUBA’s order to determine whether the order is “unlawful in substance or procedure.” ORS 197.850(9)(a). In addressing whether LUBA applied the proper level of deference to the county’s interpretation of its land use ordinance, we first determine LUBA’s standard of review. Pursuant to ORS 197.829, LUBA shall affirm a local government’s interpretation of its own
“depends on whether the interpretation is plausible, given the interpretive principles that ordinarily apply to the construction of ordinances under the rules of PGE [v. Bureau of Labor and Industries,317 Or 606 , 610-12,859 P2d 1143 (1993),] as modified by State v. Gaines,346 Or 160 , 171-72,206 P3d 1042 (2009).”
Setniker v. Polk County,
With those general interpretive principles in mind, we turn to the county’s interpretation of its Goal 5 regulations. The county found that “[n]either the headwall nor the tuff was mentioned in the ESEE.” The ESEE decision includes the PTMG, the regulatory portion of the ESEE analysis. Thus, the county also determined that the PTMG does not mention mining into a headwall. The county then reviewed the ESEE decision and concluded that, “[i]f the height of the headwall and the volume of the tuff proposed to be mined by this applicant had been contemplated by the Board in 1990, the Board would not have chosen to balance conflicts in the same way and with the same Program to Meet the Goal.” That is, the county determined that, when it enacted the PTMG, the county did not intend to allow the extensive mining of the headwall that petitioner plans.
Respondents contend that the county is not required to rely simply on the PTMG to interpret its meaning, particularly when the PTMG does not explicitly provide for mining the hillside. They rely on Siporen, which provides:
“[W]hen a local government plausibly interprets its own land use regulations by considering and then choosing between or harmonizing conflicting provisions, that interpretation must be affirmed, as held in Clark [v. Jackson County,313 Or 508 ,836 P2d 710 (1992)] and provided in ORS 197.829(1)(a), unless the interpretation is inconsistent with all of the ‘express language’ that is relevant to the interpretation or inconsistent with the purposes or policies underpinning the regulations.”
Petitioner in part responds that the county’s interpretation cannot be plausible becаuse the county failed to find an ambiguity in the PTMG, which is the regulatory portion of the ordinance. In petitioner’s view, the county found ambiguity in the context or legislative history of the PTMG rather than finding a conflict within the regulation (PTMG) itself. Petitioner also points out that had the county in 1990 intended to expressly exclude headwall mining, it could have done so by stating it as a condition in the PTMG. The lack of detailed information on exactly where and how to mine, according to petitioner, suggests that the PTMG does not preclude headwall mining. Petitioner also provides extrinsic evidence in support of
First, the standard of review is highly deferential to the county. Although petitioner’s interpretation of the PTMG and land use regulations is certainly plausible, the issue remains whether the county’s interpretation is plausible. The existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation “implausible” under the Siporen standard. Siegert v. Crook County,
Second, for several rеasons, we reject petitioner’s contentions that the county (1) must find an ambiguity by pointing to specific language in the PTMG susceptible to different meanings and (2) must consider the ambiguity by looking only at the language of the PTMG, as opposed to considering the ESEE decision to conclude that further mining into the hillside was not permitted. Here, the dispute does not center on the meaning of a particular term or phrase. Rather, the dispute concerns whether silence — the absence of any mention or analysis of mining into the hillside and the creation of a large headwall — indicates that such mining was permitted or instеad simply was not contemplated. Reviewing the PTMG, it is undisputed that there is no express language that either allows or prohibits mining of the headwall. Thus, petitioner’s contention that the county must point to an ambiguous term in a portion of the PTMG is unavailing in this kind of dispute. See, e.g., Multnomah Cty. Employees Union v. Multnomah Cty.,
The county gave several reasons for why it concluded from its review of the ESEE decision that headwall mining is prohibited. First, the county noted that the ESEE decision refers to mining as “opening of a pit in the ground,” and did not mentiоn any type of mining into a hill or head-wall. That silence suggested to the county that the ESEE decision did not contemplate and the PTMG did not permit headwall mining without conducting a new ESEE analysis. Second, the ESEE decision describes mining as a “transient use” that would allow future uses to occur after the mining was complete. Creation of a headwall is not the type of mining that would be a transient use. Third, the ESEE decision specifically addresses concerns about visual and dust impacts on Tumalo State Park, the Deschutes River Scenic Area, and other surrounding uses. The county reasoned that, because there was no headwall mentioned in the ESEE decision, mining in that manner would not be authorized because it would clearly conflict with the visual and dust concerns. Those portions of the ESEE suggest that the county did not contemplate mining of the headwall.
Petitioner makes several arguments as to why the county’s interpretation is not plausible.
Petitioner also contends that the county’s interpretation is implausible because it runs counter to the purpose of OAR 660-016-0010(3). That rule allows a local government to choose between three options after the local government conducts an ESEE consequences analysis. The local government can completely protect the resource, allow conflicting uses fully, or balance the resource protection with the conflicting uses. The county chose the last option, to balance the resource and conflicting uses, in its PTMG. According to petitioner, the county’s interpretation is inconsistent with balancing the resources and conflicting uses required by the PTMG and OAR 660-016-0010(3) because it categorically prohibits mining. We disagree. The county’s interpretation does not completely foreclose mining of a headwall. Rather, it bars mining the headwall until a new ESEE analysis and consequences and post-acknowledgment plan amendment can be completed. Moreover, the county’s interpretation does not “categorically prohibit mining” because it allows petitioner to mine in other areas of its property — areas addressed in the ESEE decision that the
Petitioner also argues that the county’s interpretation is not plausible because it requires local governments to have a “fully articulated” analysis within the ESEE conflicts and consequences analysis, contrary to what the courts have held is sufficient for a local government when conducting a Goal 5 ESEE analysis. Petitioner relies on Columbia Steel Castings Co. v. City of Portland,
If anything, Columbia Steel provides support for the county’s interpretation. Columbia Steel held that when a county makes a decision concerning Goal 5, the reasons it articulates must have existed at the time the PTMG was adopted.
Reversed and remanded.
Notes
References to parties as petitioner and respondents refer to the designation of the parties in LUBA’s proceeding below. See ORAP 5.15 (“[P]arties shall not be referred to as appellant and respondent, hut as they were designated in the proceedings below.”).
Headwall means "a steep slope forming the head of a valley.” Webster’s Third New Int’l Dictionary 1043 (unabridged ed 2002).
A “conflicting use” is one which, if allowed, “could negatively impact a Goal 5 resource site.” OAR 660-016-0005(1).
ORS 197.829(1) provides:
“The Land Use Board of Appeals shall affirm a local government’s interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation:
“(a) Is inconsistent with the express language of the comprehensive plan or land use regulation;
“(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation;
“(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or
“(d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements.”
ORS 174.010 provides:
“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”
Neither party cites Multnomah Cty. Employees Union or Plankinton. Also, the parties do not cite Foland v. Jackson County,
We do not understand petitioner to be arguing that the county’s interpretation is inconsistent with the purpose and the underlying policy that provides the basis for the comprehensive plan and is contrary to the land use goals or rules in violation of ORS 197.829(l)(b) to (d), although petitioner mentions those provisions. In any event, such an argument is not properly before us. Our review is limited to whether LUBA’s decision is “unlawful in substance,” ORS 197.850(9)(a), and LUBA did not determine that the county’s interpretation is inconsistent with subsections (b) through (d). Rather, LUBA held that the county’s interpretation is inconsistent with ORS 197.829(l)(a) and the Siporen standard. Accordingly, the parties and we address that determination.