Polk County v. Department of Land Conservation & Development

176 P.3d 432, 217 Or. App. 521, 2008 Ore. App. LEXIS 77
CourtCourt of Appeals of Oregon
DecidedJanuary 30, 2008
Docket03WKTASK001541; A122385; 03WKTASK001541; A122732
StatusPublished
Cited by4 cases

This text of 176 P.3d 432 (Polk County v. Department of Land Conservation & Development) 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
Polk County v. Department of Land Conservation & Development, 176 P.3d 432, 217 Or. App. 521, 2008 Ore. App. LEXIS 77 (Or. Ct. App. 2008).

Opinion

LANDAU, P. J.

This case returns to us on remand from the Oregon Supreme Court for reconsideration in light of the court’s opinion in Kellas v. Dept. of Corrections, 341 Or 471, 145 P3d 319 (2006). Polk County v. DLCD, 342 Or 344, 153 P3d 123 (2007). Petitioners Polk County and 1000 Friends of Oregon sought review of a Land Conservation and Development Commission (LCDC) order approving in part and remanding in part the county’s amendment of its acknowledged comprehensive plan and land use regulations as a part of its periodic review (known as Work Task 3) to apply the Unincorporated Communities Rules, OAR 660-022-0000 to 660-022-0070,1 to the unincorporated communities of Grand Ronde, Fort Hill, and Valley Junction. The county’s decision focused on establishing the boundaries of the unincorporated communities and allowing increased development within them. In our first opinion, we affirmed LCDC’s order on the county’s petition and dismissed 1000 Friends’ petition for lack of standing. Polk County v. DLCD, 199 Or App 501, 112 P3d 409 (2005). We now affirm LCDC’s order on the merits of 1000 Friends’ petition.

I. BACKGROUND

ORS 197.652 to 197.658 permit planning jurisdictions to engage in a collaborative process known as “regional [525]*525problem solving” (RPS) to resolve common land use problems in an area. ORS 197.654. When jurisdictions rely on RPS, LCDC may acknowledge plan and rule amendments that

“do not fully comply with the rules of the commission that implement the statewide planning goals, without taking an exception, upon a determination that:
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“(c) The agreement reached by regional problem-solving process participants and the implementing plan and amendments and land use regulations conform, on the whole, with the purposes of the statewide planning goals.”

ORS 197.656(2). Work tasks that are completed through the RPS process are thus subject to a less rigorous review by LCDC for compliance with land use rules. Work tasks not completed through RPS are reviewed by LCDC for compliance with applicable administrative rules and statewide planning goals and applicable statutes. ORS 197.610 - 197.646.

The communities of Grand Ronde, Valley Junction, Fort Hill, and Willamina are close to or on the Polk and Yamhill counties border and share common growth issues. Work Task 3 was originally part of an RPS project involving multiple jurisdictions, including Polk and Yamhill Counties, the Confederated Tribes of the Grand Ronde, and the City of Willamina. However, before completion, Yamhill County and Willamina withdrew from the RPS process. The Yamhill County Commissioners concluded that “the problems initially identified in the region would be adequately addressed through the implementation of current Yamhill County Comprehensive Plan and Zoning Ordinance provisions for areas in Yamhill County and the provisions adopted by Polk County for those areas in Polk County.” Thus, only lands within Polk County, including tribal lands, are involved in the amendments. Polk County nonetheless sought to have its plan amendments reviewed by LCDC pursuant to RPS.

As we said in Polk County v. DLCD, “the planning problems for which the RPS was convened inextricably involved Yamhill County.” 199 Or App at 510. Because of Yamhill County’s withdrawal, LCDC concluded that Polk [526]*526County’s decision would not be reviewed under the RPS statutes. In the absence of RPS, LCDC concluded that the county’s periodic review and Work Task 3 are subject to the rules implementing statewide planning goals. On the merits, LCDC approved in part and remanded in part the county’s amendments.

The county and 1000 Friends both sought judicial review. The county asserted that LCDC erred in failing to review the county’s amendments under RPS. We affirmed LCDC’s determination of that issue in our first decision in this case.

In its petition, 1000 Friends raised numerous challenges to the merits of LCDC’s order. Relying on our opinion in Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001), rev dismissed, 335 Or 217 (2003), we dismissed 1000 Friends’ petition for review for lack of standing, because 1000 Friends had not asserted that it or its members had suffered or will suffer a practical effect as a result of LCDC’s order. Polk County v. DLCD, 199 Or App at 507. 1000 Friends petitioned for review in the Supreme Court.

While that petition was pending, the Supreme Court concluded in Kellas that we had erred in Utsey, holding that the source of law that determines standing to seek judicial review of a governmental action is the statute that confers standing in the particular proceeding that the party has initiated. According to the Supreme Court, standing is not a matter of common law but is, instead, conferred by the legislature. Kellas, 341 Or at 477. Meanwhile, in this case, the court vacated our former dismissal of the petition of 1000 Friends and remanded the case to us for reconsideration in light of Kellas.

II. ANALYSIS

A. Standing

Under ORS 197.650, an order of LCDC may be appealed to the Court of Appeals in the manner provided in ORS 183.482 by persons who petitioned LCDC for an order or submitted comments, objections, or testimony in the context of a hearing on a petition. On remand, we conclude that, in [527]*527light of the court’s decision in Relias, 1000 Friends has standing under ORS 197.650 to assert its assignments of error on judicial review. We therefore turn to a consideration of 1000 Friends’ assignments of error on the merits. We review LCDC’s order for errors of law and for substantial evidence in the whole record. ORS 197.650; ORS 183.482(8)(c); City of West Linn v. LCDC, 201 Or App 419, 426, 119 P3d 285 (2005).

B. Assignments of Error

1. Overview

1000 Friends’ assignments of error relate to the merits of LCDC’s order approving in part and remanding in part the county’s amendments. In general, the county’s amendments added territories to the unincorporated community boundaries and adopted new comprehensive plan and zoning provisions for lands within those boundaries.

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Cite This Page — Counsel Stack

Bluebook (online)
176 P.3d 432, 217 Or. App. 521, 2008 Ore. App. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-county-v-department-of-land-conservation-development-orctapp-2008.