Currie v. Douglas County

235

Argued and submitted October 28, affirmed December 30, 2020

Valynn CURRIE,

Petitioner,

v.

DOUGLAS COUNTY

and Bjorn Vian,

Respondents.

Land Use Board of Appeals

2020050; A174532

481 P3d 427

Petitioner seeks judicial review of a final opinion and order of the Land Use

Board of Appeals (LUBA). Petitioner contends that LUBA erred in concluding

that petitioner’s argument had been waived or not preserved in earlier stages of

the proceeding. Petitioner argues that, as a result, LUBA’s opinion and order was

unlawful in substance, ORS 197.850(9). Held: Petitioner failed to preserve her

argument in earlier stages of the proceeding. Therefore, LUBA’s opinion was not

unlawful in substance, ORS 197.850(9).

Affirmed.

D. Rahn Hostetter argued the cause for petitioner. Also

on the brief were Benjamin Boyd and Hostetter Law Group,

LLP.

Souvanny Miller argued the cause for respondent Bjorn

Vian. Also on the brief was Miller Nash Graham & Dunn

LLP.

No appearance for respondent Douglas County.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

SHORR, J.

Affirmed.

236 Currie v. Douglas County

SHORR, J.

Petitioner seeks judicial review of a final opinion

and order of the Land Use Board of Appeals (LUBA). In that

opinion and order, LUBA rejected some of petitioner’s argu-

ments, agreed with others, and remanded the proceeding

to Douglas County. Petitioner raises three assignments of

error, each essentially contending that LUBA erred in con-

cluding that petitioner’s arguments had been waived or not

preserved in earlier stages of the proceeding. We reject peti-

tioner’s second and third assignments of error without fur-

ther discussion. For the reasons that follow, we also reject

petitioner’s first assignment of error. As a result, we affirm.

To frame the procedural issues before us, we exam-

ine the arguments that were made and resolved in an ear-

lier LUBA opinion, Currie v. Douglas County, 79 Or LUBA

585 (2019) (Currie I), the arguments made on remand to

Douglas County following that opinion, and the resolution

of the arguments made in the second LUBA opinion, Currie

v. Douglas County, ___ Or LUBA ___ (LUBA No 2020-050,

Aug 12, 2020) (Currie II), which is the decision presently on

review before us. We draw the relevant facts from LUBA’s

opinions in both cases and discuss petitioner’s arguments

leading up to and during those stages of the proceeding.

In 2018, intervenor-respondent Bjorn Vian applied

to Douglas County for a conditional use permit to reopen

and expand a quarry to occupy approximately 73 acres

within a 280-acre tract of land in the county. The quarry

had operated on a smaller 10 to 15 acre section of the tract

in the 1950s. The site of the proposed expanded quarry is

zoned “Exclusive Farm Use - Grazing” (FG). It is listed in

the Douglas County Aggregate Mineral Resources Inventory

and is subject to a mineral resources overlay. There are

surrounding uses, including a mix of farm and forest uses,

residential uses, and property zoned “Tourist Commercial”

(TC), which includes a recreational vehicle park on the tract

owned by Vian.

Petitioner and other nearby residents opposed

Vian’s application for a conditional use permit. Their objec-

tions included their concern that a nearby operating quarry

Cite as 308 Or App 235 (2020) 237

would have a potential negative effect on their property val-

ues. They also raised concerns that blasting in proximity to

their property would affect their peace of mind. Following

an evidentiary hearing, the planning commission denied

the conditional use permit based on its conclusion that the

applicant had not established that aggregate mining use

was compatible with uses on adjacent lands. Vian appealed

to the county board of commissioners, and the board reached

a different conclusion, reversing the planning commission

and approving the conditional use permit for the quarry.

Petitioner sought review of the county board’s

approval of the conditional use permit before LUBA. Peti-

tioner argued that the county’s issuance of a conditional

use permit violated the county’s Land Use Development

Ordinance (LUDO) 3.39.050(1), which provides the county’s

general approval criteria for conditional use permits. Peti-

tioner contended that the county violated LUDO 3.39.050(1)’s

provision requiring that “[t]he proposed use is or may be

made compatible with existing adjacent permitted uses and

other uses permitted in the underlying zone.” Currie I, 79

Or LUBA at 601. Petitioner noted that the county did not

identify the characteristics of the neighboring uses to evalu-

ate the compatibility of the quarry with those existing uses,

but merely identified the distances between the proposed

quarry and some existing residences. LUBA quoted peti-

tioner’s position in its opinion in Currie I:

“It is petitioner’s position that the county ‘[m]erely recit-

ing the distances between some existing residences and the

proposed quarry does not constitute substantial evidence

that the quarry is compatible with each existing adjacent

permitted residential use.’ ”

Id. LUBA concurred with that view, stating that “[w]e agree

with petitioner that understanding the identity and nature

of existing uses is part of establishing compatibility between

uses.” Id.

LUBA also specifically addressed arguments that

it understood that petitioner had not sufficiently argued

before LUBA or raised before the county. LUBA distin-

guished the argument that petitioner had raised as to the

quarry’s potential incompatibility with existing uses from

238 Currie v. Douglas County

an argument that petitioner had not raised as to the quar-

ry’s potential incompatibility with all potential permitted

uses, whether existing or not:

“Based upon petitioner’s statement that ‘Douglas

County made no finding that the quarry operation was com-

patible (or could be made so) with the lands zoned Tourist

Commercial,’ it appears petitioner may be making an

argument that the code requires the county to evaluate all

uses that could be permitted on adjacent lands under their

zoning, as well as existing uses. * * * Petitioner does not

develop this argument nor indicate that the argument was

preserved. Deschutes Development Co. v. Deschutes County,

5 Or LUBA 218 (1982); ORS 197.835(3). Accordingly, we do

not address the argument further.”

Id. at 602.

LUBA remanded the proceeding to Douglas County.

In its disposition, LUBA noted that, on remand, the county

must identify and take into account the nearby uses. It

stated:

“The county’s decision is not supported by substantial

evidence * * *. The county must identify the surrounding

uses, explain the characteristics of the surrounding uses

and set forth the substantial evidence establishing that

the applicable approval criteria are met with respect to air

quality/dust, water quality, noise, wildlife, and farm and

forest impacts.”

Id. at 609 (emphasis added). Petitioner did not appeal

LUBA’s final opinion and order in Currie I so the case was

then remanded to Douglas County.

In the remanded proceedings before the county,

petitioner continued to object to the issuance of the condi-

tional use permit to Vian. The county board issued an order

that quoted the part of LUBA’s remand order set forth in

italics above verbatim. The board then remanded the mat-

ter to the county planning commission for an additional

evidentiary proceeding. In its notice of that hearing, the

commission stated that “[o]ral or written testimony will be

limited to only the issues raised in the remand from LUBA.”

(Underscoring in original.)

Cite as 308 Or App 235 (2020) 239

After hearing additional evidence and arguments

from petitioner and others, the planning commission issued

an order approving Vian’s conditional use permit for the

quarry. The county planning commission also quoted the

LUBA remand instructions verbatim in its own final order.

In its specific findings, the planning commission stated that

it may grant a conditional use permit if the application meets

the criteria in LUDO 3.39.050(1), providing, among other

things, that “[t]he proposed use is or may be made compat-

ible with existing adjacent permitted uses and other uses

permitted in the underlying zone.” The commission specifi-

cally found that the adjacent uses and all surrounding farm

and forest uses had been identified. It further found that the

proposed use would not cause or force a significant change

in the cost of surrounding farm and forest uses. The com-

mission similarly found that the proposed use was compat-

ible with adjacent uses in terms of noise, water quality, air

quality, and wildlife. The commission concluded that “[t]he

proposed use, subject to the conditions enumerated herein,

meets all applicable criteria.” The county board declined to

review the planning commission’s order, thereby affirming

it.

Petitioner then petitioned LUBA for review of the

county’s decision. Before LUBA, petitioner argued that

the county should not have granted Vian’s conditional use

permit, because there was not substantial evidence that

the proposed quarry was compatible with other potential

uses—not merely existing uses—that could be permitted,

and approval of the conditional use permit for the quarry

therefore violated LUDO 3.39.050(1).

In its opinion addressing that issue, Currie II,

LUBA noted that it had previously concluded in Currie I

that petitioner had not preserved or adequately developed

an argument before the county board that the county had to

demonstrate that the proposed quarry was compatible with

adjacent uses that were not yet existing but that could be

permitted in the underlying zone. Relying on Beck v. City

of Tillamook, 313 Or 148, 831 P2d 678 (1992), LUBA con-

cluded that “[a] petitioner may not raise an issue in a sub-

sequent stage of a proceeding if that issue was previously

240 Currie v. Douglas County

decided adversely to [petitioner], or if [petitioner] could have

but failed to raise the issue below.” Having failed to develop

that argument before the county prior to LUBA’s decision

in Currie I, LUBA held that petitioner could not attempt to

develop that issue for the first time in the limited remand

proceeding before the county, or in the ensuing appeal to

LUBA in Currie II. LUBA, however, sustained some of peti-

tioner’s arguments and remanded the proceeding again to

the county for further proceedings. Petitioner now seeks

review of LUBA’s order in Currie II.

In petitioner’s first assignment of error, petitioner

contends that LUBA erred in concluding that petitioner

could not argue that, under LUDO 3.39.050(1), the proposed

quarry was incompatible with nonexistent but permissible

uses, because petitioner had not raised that argument in the

proceedings prior to and during Currie I. As a result, peti-

tioner contends, among other things, that LUBA’s opinion

and order is unlawful in substance under ORS 197.850(9).

Petitioner makes two arguments before us. We

address each in turn. First, petitioner notes that LUBA’s

remand instructions required a showing that the applica-

tion met the “applicable approval criteria” and, she further

observes, such criteria under LUDO 3.39.050(1) require a

finding both that “[t]he proposed use is or may be made com-

patible with existing adjacent permitted uses and other uses

permitted in the underlying zone.” (Emphasis in original.)

Therefore, petitioner reasons that the issue of the proposed

quarry’s compatibility with not existing but permitted uses

was part of LUBA’s remand to the county and that the

county then proceeded with that understanding on remand.

We conclude that petitioner’s first argument fails, because it

is contradicted by the text of LUBA’s specific remand and,

more broadly, the rest of LUBA’s opinion in Currie I. It is

also contradicted by the record of the county proceeding on

remand.

In Currie I, LUBA remanded and asked the county

to identify the proposed quarry’s “surrounding uses,”

explain the characteristics of the “surrounding uses,” and

determine that the “applicable approval criteria” were met

with respect to particular resulting impacts. Currie I, 79 Or

Cite as 308 Or App 235 (2020) 241

LUBA at 609. Although LUBA used the term “surrounding

uses” and not “existing surrounding uses,” the “surround-

ing uses” identified by LUBA were the existing surrounding

uses and not potential but nonexistent surrounding uses.

Id. at 601-02. If there was any doubt about the intended scope

of the issues on remand, LUBA made clear in the balance

of the opinion that petitioner had not adequately developed

an argument under LUDO 3.39.050(1) that the proposed

quarry had to meet the approval criteria as to potentially

permitted but not existing uses. Petitioner’s argument that

the remand order broadly directed the county to address all

applicable criteria under LUDO 3.39.050(1) as to both exist-

ing and potential permitted uses is directly contradicted by

LUBA’s opinion and remand order. Further, the county con-

fined itself to the limited issues on remand when reopening

the record.

Petitioner’s second argument relates to the first,

and it also depends on the nature of the remand follow-

ing LUBA’s opinion in Currie I. Petitioner, relying on ORS

197.763(7), contends that “Oregon law allows parties to

land use proceedings to raise new, unresolved issues that

relate to new evidence and arguments that are presented on

remand by opposing parties.” That is generally true. ORS

197.763(7) provides:

“When a local governing body [or] planning commission

* * * reopens a record to admit new evidence, arguments or

testimony, any person may raise new issues which relate

to the new evidence, arguments, testimony or criteria for

decision-making which apply to the matter at issue.”

As in her first argument, petitioner contends that, when the

county reopened the record for new evidence and argument

regarding the “applicable approval criteria,” it necessarily

reopened the record as to all criteria under LUDO 3.39.050(1),

including criteria that required a showing that the proposed

quarry was compatible with surrounding permitted but not

existing uses. But, as we note above, the remanded issue was

not so broad, and the county did not reopen the record for

new evidence and argument regarding compatibility with

surrounding permitted but not existing uses. The county

understood the limited nature of the remand and provided

242 Currie v. Douglas County

that “[o]ral or written testimony will be limited to only the

issues raised in the remand from LUBA.” (Underscoring

in original.) Because the county did not reopen the record

to admit “new evidence, arguments, or testimony” relating

to that “criteria for decision-making,” ORS 197.763(7), the

county did not consider such new evidence.

Petitioner also relies on Schatz v. City of Jacksonville,

which states that LUBA’s remand “may require local govern-

ments to resolve certain questions before making a new deci-

sion; generally speaking, however, it cannot prevent them

from considering other questions.” 113 Or App 675, 680, 835

P2d 923 (1992) (emphases in original). Although true, that

does not assist petitioner’s argument before us. Petitioner

contends that LUBA remanded Currie I to the county to

consider the quarry’s impact on potential permitted but not

existing uses under LUDO 3.39.050 and that the county did

the same on its subsequent remand to the planning commis-

sion. However, as discussed above, the county did not reopen

the record on remand to consider new evidence on permitted

but nonexistent uses. To the extent that petitioner wanted

to pursue that issue, she could have appealed LUBA’s deci-

sion in Currie I to our court, contended that LUBA erred in

concluding that petitioner had not preserved her argument,

and pursued the underlying merits issue then. Petitioner

did not further appeal or pursue that issue then, but unsuc-

cessfully seeks to revive the underlying issue before us now.

See Beck, 313 Or at 152-54 (noting in a similar circumstance

that the petitioner’s failure to appeal LUBA’s decision need-

lessly delayed resolution of the issues and was contrary to

the legislative policy in the statutes governing LUBA, which

favor narrowing issues on remand from LUBA, avoiding

redundant proceedings, and resolving land-use proceedings

quickly); Devin Oil Co. v. Morrow County, 252 Or App 101,

113, 286 P3d 925 (2012) (“Because petitioner’s current chal-

lenge to the limitation that the county imposed could have

been raised, but was not raised, in petitioner’s first appeal

in this case, petitioner waived its challenge to that limita-

tion.”). For the reasons discussed above, we reject petition-

er’s first assignment of error.

In sum, we reject each of petitioner’s assignments

of error. We conclude that LUBA’s opinion and order was

Cite as 308 Or App 235 (2020) 243

not, as petitioner contends, unlawful in substance, ORS

197.850(9)(a). Accordingly, we affirm.

Affirmed.