Maresh v. Yamhill County

683 P.2d 124, 68 Or. App. 471
CourtCourt of Appeals of Oregon
DecidedJune 6, 1984
DocketLCDC 3-83; CA A28829
StatusPublished

This text of 683 P.2d 124 (Maresh v. Yamhill County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maresh v. Yamhill County, 683 P.2d 124, 68 Or. App. 471 (Or. Ct. App. 1984).

Opinion

RICHARDSON, P. J.

Yamhill County petitions for review of an order in a post-acknowledgment proceeding of the Land Conservation and Development Commission (LCDC). The order invalidated the county’s Ordinance 322. Respondents filed objections with LCDC against the ordinance’s rezoning of two quarry sites from an agricultural-forestry (AF) to a mineral resource (MR) designation. LCDC held, inter alia, that the ordinance violates Goal 5 and that the county is required and failed to take a Goal 2 exception to Goal 3 in connection with the rezoning. Although we find one of the county’s argument’s for reversing LCDC’s ruling on the latter issue to be well taken, we find no error in connection with the Goal 5 ruling. Because one goal violation is enough to require that the ordinance be invalidated under former ORS 197.630 (repealed by Or Laws 1983, ch 827, § 59), we affirm the order.

The county’s comprehensive plan and implementing legislation were acknowledged by LCDC in June, 1980. The plan assigned a quarry designation to the two sites in issue and, because the sites are in an agricultural and forestry zone, the plan contained an exception to Goals 3 and 4 to permit that designation. However, at the time of the acknowledgment, the sites were zoned AF with a quarry conditional use “overlay” designation. In late 1980, the county began a general review of the mineral resource provisions in its land use regulations and specific mineral sites. As that process progressed, the legislative review and the site review were bifurcated. In September, 1982, the county adopted Ordinances 301 and 302, which amended the plan and the zoning ordinances to establish new standards for rezoning to MR designations. Those ordinances did not deal with particular sites. Ordinance 322 was adopted on December 22, 1982, through county proceedings independent of the ones that culminated in the adoption of Ordinances 301 and 302. See n 2, infra.

A group of persons who had opposed the adoption of Ordinances 301 and 3021 filed objections with LCDC, [474]*474asserting that those ordinances do not comply with the statewide land use planning goals. LCDC rejected those objections and acknowledged the ordinances on December 14,1982. Its order states, in part:

“* * * The ordinances provide background text, goals, policies and implementing measures which, if applied in an orderly fashion, will ensure Goal compliance. Adoption of these ordinances is the first step in the County process that will ultimately result in application of zoning to individual sites. Underlying concerns of the objectors in this proceeding may again be raised as the County applies zoning to individual resource sites. However, at this time, and in the absence of specific data related to application of the MR zones, the objections are premature. Adequate safeguards exist in the County’s planning framework to enable the proper balancing of resource uses and conflicting uses.”

After Ordinance 322 was adopted, the respondents in this appeal filed their objections with LCDC, and a separate group (the Cohens) also filed objections. In April, 1983, LCDC issued an order rejecting the Cohens’ objections. On June 6, LCDC issued its order in the present proceeding, and the county appeals.

Its first assignment is that respondents did not raise the Goal 2 exception issue in the local proceeding that led to the adoption of Ordinance 322 and that LCDC therefore erred by considering that issue. Former ORS 197.620(4) (a) (repealed by Or Laws 1983, ch 827, § 8) provided:

“Except as provided in subsection (3) of this section, neither the director nor a person appealing by filing an objection may appeal on grounds which that party did not raise in the local government proceedings leading to the final adoption.”

Respondents answer that the Goal 2 issue was raised in the local proceedings that culminated in the adoption of Ordinances 301 and 302 and that the record before LCDC in the earlier appeal from the adoption of those ordinances was included in the record of this proceeding pursuant to the stipulation of the county’s counsel. The county argues:

“Nowhere in the stipulation did Yamhill County’s attorney stipulate that this supplemented record could be used to substitute for the requirement that the Objectors must raise their concerns in the local proceedings leading to the [475]*475final adoption of the ordinance appealed from. The supplemented record helped LCDC put into perspective the actions of Yamhill County by placing all of the information before them. It does not, however, provide a basis for ignoring the clear requirements of the statute.”

Respondents reply:

“Petitioner, in effect, is arguing that it was appropriate for LCDC to look to the record of the proceedings leading to adoption of Ordinances 301 and 302 for purposes of evidentiary support for the adoption of Ordinance 322, but it was inappropriate for LCDC to look to the record for other purposes. No such qualification is stated in the stipulation of petitioner’s counsel. LCDC correctly held that if the record leading to the adoption of Ordinances 301 and 302 is part of the record to be considered in reviewing the validity of Ordinance 322, then the record pertaining to the adoption of Ordinances 301 and 302 also is part of the record leading to the adoption of Ordinance 322. The objectors’ objections were made on the record leading to adoption of Ordinances 301 and 302. The objections were, accordingly, made on the record leading to the adoption of Ordinance 322 as well.” (Footnote omitted.)

The problem with respondents’ argument is that the supplementation of the record here with the record of the adoption of Ordinances 301 and 302 does not change the fact that the earlier record shows only that the exception issue was raised in the proceeding that resulted in adoption of those ordinances, not Ordinance 322. The relevant question is whether respondents raised the issue in connection with the ordinance LCDC was reviewing, and not whether the issue was raised in an ancillary proceeding that the parties made part of the record. We agree with the county that respondents did not satisfy the preservation requirement of ORS 197.620(4)(a) and that LCDC erred by reaching the exception issue. We therefore do not consider the county’s second and third assignments, which pertain to the merits of LCDC’s disposition of that issue.

The county’s final assignment challenges LCDC’s conclusion that Ordinance 322 violates Goal 5. The county makes three supporting arguments, two of which are based on LCDC’s opposite dispositions of the separate objections raised by the Cohens and respondents to Ordinance 322. The county [476]*476contends, first, that LCDC failed to explain the different results in the two proceedings and that a remand pursuant to ORS 183.482(8)(b)(B) is necessary; and, second, that respondents were collaterally estopped from asserting their Goal 5 objections in view of LCDC’s rejection of the Cohens’ Goal 5 objections.

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679 P.2d 898 (Court of Appeals of Oregon, 1984)
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Cite This Page — Counsel Stack

Bluebook (online)
683 P.2d 124, 68 Or. App. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maresh-v-yamhill-county-orctapp-1984.