Central Oregon Landwatch v. Deschutes County

457 P.3d 369, 301 Or. App. 701

• Court: Court of Appeals of Oregon
• Decided: January 15, 2020
• Docket: A172110
• Status: Published

Opinion

Argued and submitted November 5, 2019, affirmed January 15, petition for review denied May 21, 2020 (366 Or 492)

CENTRAL OREGON LANDWATCH, Petitioner, and Thomas BISHOP and Dorbina Bishop, Trustees of the Bishop Family Trust, Intervenors-Petitioners below, v. DESCHUTES COUNTY and Tumalo Irrigation District, Respondents. Land Use Board of Appeals 2019011; A172110 457 P3d 369

Petitioner seeks judicial review of a final order of the Land Use Board of Appeals (LUBA) affirming Deschutes County’s approval of an amendment to its acknowledged comprehensive plan. Petitioner assigns error to LUBA’s deter- mination that a comprehensive plan amendment does not require the county to revisit its prior determinations that the subject property is not agricultural land as defined by Statewide Planning Goal 3 when the property was not included in the county’s acknowledged Goal 3 inventory. Held: A local government’s post- acknowledgement plan amendment is not reviewable for compliance with a state- wide planning goal unless the potential goal noncompliance is a consequence of the amendment. Accordingly, LUBA correctly determined that the county was not required to re-evaluate whether the subject property was agricultural land subject to Goal 3 when the county was amending its acknowledged plan to change the subject property’s designation from one non-Goal 3 designation to another. Affirmed.

Rory Isbell argued the cause and filed the brief for peti- tioner. Garrett Chrostek argued the cause for respondents. Also on the brief were Bryant, Lovlien & Jarvis, P.C., and D. Adam Smith. Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. 702 Central Oregon Landwatch v. Deschutes County

EGAN, C. J. Affirmed. Cite as 301 Or App 701 (2020) 703

EGAN, C. J. Petitioner Central Oregon Landwatch seeks judi- cial 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 comprehen- sive 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[.]” ORS 197.850(9)(a). A LUBA order is unlawful in substance “if it represent[s] a mistaken interpretation of the applicable law.” Mountain West Investment Corp. v. City of Silverton, 175 Or App 556, 559, 30 P3d 420 (2001). 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, tak- ing the facts from LUBA’s opinion and order. A. Statewide Planning Goals and Acknowledged Compre- hensive Plans In 1973, the Oregon legislature adopted its state- wide land use planning program and created the Land Conservation and Development Commission (LCDC). ORS 197.030(1). LCDC establishes and implements statewide polices for land use through the adoption of planning goals, which are mandatory and binding on local governments. ORS 197.040(2); ORS 197.015(8). Local governments must adopt comprehensive plans that comply with the statewide goals and submit those plans 704 Central Oregon Landwatch v. Deschutes County

to LCDC for review. ORS 197.175(2)(a). A “comprehensive plan” is “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 sys- tems, educational facilities, recreational facilities, and natural resources and air and water quality management programs.” ORS 197.015(5). If LCDC, after reviewing the comprehen- sive plan, determines that it is in compliance with the state- wide goals, it acknowledges the plan. ORS 197.015(1) (defin- ing “acknowledgment”). After a local government’s plan is acknowledged by LCDC, the local government shall “make land use decisions * * * in compliance with the acknowledged plan.” ORS 197.175(2)(d). Deschutes County’s comprehensive plan is an acknowledged plan. 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.” OAR 660-033-0020(1)(a)(A). Goal 3 requires that land that meets the definition of agricultural land be inventoried as such. OAR 660-033- 0030(1). Land that is in a local government’s Goal 3 inven- tory must be restricted to uses set out in the Goal 3 rules. See OAR 660-033-0120 (identifying authorized uses of agri- cultural land). Under Deschutes County’s comprehensive plan, all lands that meet the definition of agricultural land must be zoned Exclusive Farm Use (EFU). A local government may adopt an exception for non- goal uses of specific properties in the government’s state- wide goal inventory if certain requirements are met. ORS Cite as 301 Or App 701 (2020) 705

197.732(2) (setting out the requirements for adopting an exception). Under Goal 3, an “exception area” is “an area no longer subject to the requirements of Goal 3 or 4 because the area is the subject of a site[-]specific exception acknowledged pursuant to ORS 197.732 and OAR chapter 660, division 4.” OAR 660-033-0020(6). C. Post-Acknowledgement Plan Amendments After a comprehensive plan is acknowledged, a local government may amend it. ORS 197.015(10)(a)(A) (defining “land use decision” to include a “final decision or determina- tion made by a local government or special district that con- cerns the * * * amendment * * * of [a] land use regulation”). A post-acknowledgement plan amendment (PAPA) is reviewable for “compliance with those land use goals appli- cable to the amendment,” as well as for compliance with the acknowledged plan. ORS 197.175(2)(e); Ludwick v. Yamhill County, 72 Or App 224, 231, 696 P2d 536, rev den, 299 Or 443 (1985). Thus, a PAPA may be reviewed for compliance with a land use goal if the amendment implicates that land use goal. See Opus Development Corp. v. City of Eugene, 141 Or App 249, 254, 918 P2d 116 (1996) (allowing review of a PAPA for compliance with Goal 9 when the amendment affected the local government’s Goal 9 land inventory). Even unamended portions of a plan may be reviewed for compli- ance with the goals as a consequence of a PAPA because that “plan amendment could affect provisions of the plan that it does not directly change in such a way that they will have an application which is at odds with the goals and which they did not have at the time of acknowledgment.” 1000 Friends of Oregon v. Jackson Co., 79 Or App 93, 98, 718 P2d 753 (1986) (emphasis in original). However, in Urquhart v. Lane Council of Govern- ments, 80 Or App 176, 181-82, 721 P2d 870 (1986), we held that a statewide goal is only implicated for review pur- poses if the PAPA itself affects the goal, either directly or indirectly. Under the Urquhart rule, a PAPA is not review- able “on the basis of a defect in the inventory which is not directly or indirectly attributable to the plan amendment.” Id. 706 Central Oregon Landwatch v. Deschutes County

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 provi- sions 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 inven- tories since acquiring the subject property. First, in 1978, the county adopted by ordinance an initial inventory of agri- cultural lands. Next, in 1979, the county adopted its compre- hensive plan. The 1979 comprehensive plan was acknowl- edged 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 agri- cultural lands inventory at any point, nor was it ever zoned EFU. From the time of the 1979 Comprehensive Plan adop- tion 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 property from SM to Rural Residential Exception Area (RREA) and to rezone the property from SM to Multiple Use Agricultural (MUA-10). 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 Cite as 301 Or App 701 (2020) 707

agricultural land, the application was not properly sup- ported 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 offi- cer’s decision and approved the application. The county found that, because the property was not designated as agri- cultural 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 Com- prehensive 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 des- ignation 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 appropri- ate 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 prop- erty is not considered resource lands under the [c]ounty’s Comprehensive Plan and is eligible for a non-resource zon- ing designation without the need to take any exception to the resource goals.” The ESEE for the subject property did not include any dis- cussion of post-mining uses, including specifying EFU zon- ing as is required for agricultural lands. 708 Central Oregon Landwatch v. Deschutes County

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 agricul- tural 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 classifica- tion must be applied as a matter of law. In response, respondents both disputed the valid- ity 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 agricul- tural 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. LUBA concluded that “the county, having previ- ously determined that the property [was] not agricultural land, was not required to revisit whether the property is agricultural land.” In reaching its conclusion, LUBA relied on its decision in Caldwell v. Klamath County, 45 Or LUBA 548 (2003), aff’d without opinion, 192 Or App 162, 86 P3d 118 (2004), which in turn relied on our decision in Urquhart. In Caldwell, the petitioners appealed a county’s PAPA and zone change that changed the subject property’s plan desig- nation from Non-Resource (NR) to Rural Residential (RR- 10) without taking an exception to Goal 3. Id. at 550. The 1 Petitioner was joined by intervenor-petitioners Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust, who are not before us on judicial review. 2 Petitioner presented an NRCS map classifying the soils of the subject prop- erty as Class III or Class IV. Cite as 301 Or App 701 (2020) 709

petitioners in Caldwell argued that a PAPA requires appli- cation of all the statewide planning goals and, therefore, the county must address whether the property included agri- cultural 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 con- cluded 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 acknowl- edging the plan that excluded the subject property from the inventory, the PAPA at issue did not affect the county’s com- pliance 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 agricul- tural land to the subject property before changing its desig- nation, regardless of its prior determinations that the prop- erty 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 des- ignation. 80 Or App at 178. On appeal, LUBA remanded 710 Central Oregon Landwatch v. Deschutes County

“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 inven- tory 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 proper- ty’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 prob- lems: requiring a reevaluation of each goal with every PAPA would make the plan amendment process much more bur- densome and complex, while precluding that reevaluation could prevent the correction of possible errors in local gov- ernments’ 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 prop- erty in Urquhart was “excluded from the [county’s Goal 5] inventory before the amendment was enacted, and the amendment [did] not affect the inventory,” the PAPA did not implicate Goal 5, and the PAPA was not reviewable for compliance with that goal. Id. at 180-81. We also noted that review of whether properties that are currently excluded from inventories should be included in them can be accom- plished through LCDC’s periodic review process. Id. at 181. Moreover, periodic review is “the only method for correcting goal noncompliance that results from changes in circum- stances after acknowledgement, when the noncompliance is not the product of an amendment to an acknowledged plan or land use regulation.” Id. (Emphasis added.)3 3 We examined the Urquhart rule in Johnson v. Jefferson County, 221 Or App 156, 189 P3d 30, rev dismissed, 347 Or 259 (2009). In Johnson, LUBA relied on our decision in Urquhart in determining that counties are required Cite as 301 Or App 701 (2020) 711

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 gov- ernments 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 follow- ing reasons. First, the Goal 5 standards for a county determin- ing what land to include in its Goal 5 inventory were not a basis for our decision in Urquhart, nor did we limit our hold- ing 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 inven- tory out of compliance, is also applicable to all the statewide planning goals. While some goals may have rules that man- date more frequent reviews or updating of inventories, Goal 3 does not have any such additional rules with regard to

to update their Goal 5 inventories during periodic reviews, but not PAPAs. Id. at 161. The petitioners in that case asked that we reconsider the holding of Urquhart because “periodic review now occurs less frequently than was the case when Urquhart was decided,” now occurring on a schedule established by LCDC rather than every five years. Id. at 163. We acknowledged that “land use laws in general, and the statutes and rules pertaining to periodic review in particular, have evolved considerably since Urquhart was decided.” Id. The Urquhart rule was effectively codified under Goal 5 in OAR 660-023-0250, so we did not recon- sider it in Johnson. Here, petitioner has not asserted that we should reconsider the holding of Urquhart, instead arguing that this case is distinguishable from Urquhart for reasons outlined below. We address only petitioner’s arguments. 4 Petitioner also contends that Urquhart does not control here because the county is removing land from SM, a Goal 5 inventory; thus, unlike in Urquhart, the Goal 5 inventory of the county is affected. We decline to address that argu- ment because petitioner neither assigns error to LUBA’s determination that the amendment does not violate Goal 5 nor establishes a connection between an effect on the county’s Goal 5 inventory and Urquhart’s application to their chal- lenge under Goal 3. 712 Central Oregon Landwatch v. Deschutes County

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 agricul- tural land. LUBA correctly stated and applied that principle in its determination that the subject property is not agricul- tural land subject to Goal 3. Accordingly, we conclude that LUBA’s order is not “unlawful in substance.” Affirmed.

5 We observe that LUBA applied Urquhart to a Goal 3 challenge in its own decision in Caldwell, concluding that a PAPA that changes a property from one non-Goal 3 designation to another non-Goal 3 designation does not impli- cate Goal 3. Petitioner does not argue that Caldwell was wrongly decided, only that it is distinguishable from this case. As far as LUBA relied on its reasoning in Caldwell to make its decision in this case, we agree that LUBA interpreted Urquhart correctly.