In Von Lubken v. Hood River County,
In their first assignment, petitioners contend that the repeal of the standard was not applicable to Brookside’s application at the time that it was filed. Therefore, under ORS 215.428, the county was required to apply Standard D(9) to that application and erred by not doing so. The ordinance repealing the standard was enacted in July, 1991, and Brook-side filed the new application in August. In the meantime, petitioners appealed the legislation repealing Standard D(9) to LUBA. LUBA remanded it to the county. The county took curative action pursuant to the remand. No further review was sought, and the repeal legislation was deemed acknowledged under ORS 197.625 in January, 1992. The county made the decision to allow the application in June, 1992.
Petitioners contend that the plan amendment repealing Standard D(9) was not acknowledged at the time that Brookside submitted its application and that Standard D(9) retained its acknowledged status until January, 1992. ORS 215.428(3) requires counties to base approvals or denials of permit applications on the standards and criteria “that were applicable at the time the application was first submitted.” The county and Brookside respond, inter alia, and LUBA agreed, at least in part, that the repeal legislation was in effect at the time of the application, remained so at least until LUBA’s remand and became effective again when
Petitioners argue that Standard D(9) remained acknowledged and applicable until the ordinance repealing it was deemed acknowledged. Therefore, in their view, Standard D(9) was applicable to Brookside’s application. We agree. We conclude that an amendment to an acknowledged comprehensive plan does not supplant the unamended version until the amendment is acknowledged or deemed acknowledged. Local governments are required to apply their acknowledged plans and land use regulations to their land use decisions. ORS 197.175(2)(d). A plan or plan amendment is not acknowledged unless it complies with or is deemed to comply with the statewide planning goals, and plan amendments are subject to review for goal compliance. ORS 197.835(4). Given the statutory structure, a provision that is not acknowledged cannot be given effect instead of one that is. That is especially clear under the circumstances here, where the amendment repealed an existing acknowledged provision, and the acknowledgment of the amendment was contingent on whether the elimination of the existing provision complied or was deemed to comply with the goals. We hold that Standard D(9) remained the viable plan provision at the time that the application was filed and, under ORS 215.428, the county was required to apply it. LUBA’s contrary ruling was error.
Because the issue raised by petitioners’ second assignment is likely to arise on remand, we turn to it. Petitioners contend that the county erred in not rejecting the application on the basis of ORS 215.296(1), and that LUBA erred in holding to the contrary. That statute was enacted
“A use allowed under ORS 215.213(2) or ORS 215.283(2) may be approved only where the local governing body or its designee finds that the use will not:
“(a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or
“(b) Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use.”
LUBA treated the issue that petitioners’ assignment to it presented as being whether there was substantial evidence in the whole record to support the county’s findings that the golf course use would not have the proscribed effects on petitioners’ adjacent orchard, in six specific particulars. Petitioners maintain that that view of their assignment was too narrow and that, to resolve it, LUBA had to and failed to define the word “significant” in the statute. However, petitioners offer no legislative history or other basis for concluding that the word is a term of art, rather than one that simply connotes a question of degree that is more a matter of fact than of law.
Moreover, the definition of “significant” that petitioners advance is not persuasive. They rely on McCaw Communications, Inc. v. Marion County,
Given that context, we do not agree with petitioners’ definition, nor do we agree that LUBA applied the terms too unrestrictively. Our review of its conclusion that there was substantial evidence to support the findings is confined to whether LUBA correctly understood and applied that test, even if our own assessment might be different. Cusma v. City of Oregon City,
Finally, petitioners argue that LUBA erred by considering the six impacts of the golf course on their farm operations in isolation and that ORS 215.296(1) should be construed to require their cumulative effects to be considered. We agree with petitioners’ reading of the statute. Because we remand, the county and/or LUBA will have the opportunity to reconsider the compatibility of the proposed use with ORS 215.296(1).
Reversed and remanded for reconsideration.
Notes
We have considered whether the error is harmless on the theory that, if we remand, Brookside could simply file another new application, to which the now acknowledged amendment would apply. We cannot so conclude, however. Even without Standard D(9), we can do no more than make an educated guess as to what the county’s disposition of the new application would be.
We do not mean to imply that there are no circumstances in which it would be permissible to apply local provisions before they are acknowledged.
