Central Oregon Landwatch v. Deschutes County

673

Argued and submitted September 2, affirmed on petition and cross-petition

November 17, 2021

CENTRAL OREGON LANDWATCH,

Petitioner

Cross-Respondent,

v.

DESCHUTES COUNTY,

Respondent

Cross-Respondent,

and

Anthony J. ACETI,

Respondent

Cross-Petitioner.

Land Use Board of Appeals

2021028; A176412

501 P3d 1121

Petitioner-cross-respondent Central Oregon Landwatch (LandWatch) seeks

judicial review of an order by the Land Use Board of Appeals (LUBA) regard-

ing respondent-cross-respondent Deschutes County’s rezoning of land owned

by respondent-cross-petitioner Aceti from Agricultural/Exclusive Farm Use to

Rural Industrial (RI). LUBA largely affirmed the county’s decision but remanded

for the county to make additional findings related to Statewide Planning Goal

14. LandWatch assigns error to LUBA’s interpretation of the Deschutes County

Comprehensive Plan and to its conclusion that the rezoning is not barred by

Statewide Planning Goals 6 and 11. Aceti assigns error to LUBA’s remand of

the Goal 14 findings. Held: Neither LUBA’s interpretation of the County Plan, its

determination that the rezoning complies with Goals 6 and 11, nor its remand of

the county’s Goal 14 findings was in error.

Affirmed on petition and cross-petition.

Carol E. Macbeth argued the cause and filed the briefs

for petitioner-cross-respondent.

Bill Kloos argued the cause for respondent-cross-

petitioner. Also on the briefs was Law Office of Bill Kloos,

PC.

No appearance for respondent-cross-respondent.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

674 Central Oregon Landwatch v. Deschutes County

KAMINS, J.

Affirmed on petition and cross-petition.

Cite as 315 Or App 673 (2021) 675

KAMINS, J.

Petitioner-cross-respondent Central Oregon Landwatch

(LandWatch) seeks judicial review of an order by the Land

Use Board of Appeals (LUBA) regarding the zoning of land

owned by respondent-cross-petitioner Aceti. Contending

that the land was not suitable for agricultural uses, Aceti

sought to have it rezoned from Agricultural/Exclusive Farm

Use to Rural Industrial (RI). LandWatch intervened, cit-

ing environmental concerns. Respondent-cross-respondent

Deschutes County approved Aceti’s application to rezone the

property, and LandWatch appealed to the Land Use Board

of Appeals. LUBA largely affirmed the county’s decision but

remanded one aspect for the county to make additional find-

ings. LandWatch sought judicial review, and Aceti cross-

petitioned to challenge the partial remand. We conclude

that neither party has demonstrated that LUBA erred and

affirm on the petition and cross-petition.

The Deschutes County Comprehensive Plan (County

Plan) provides a legal framework for the county’s land use

decisions and the Deschutes County Code (DCC or County

Code) imposes regulations consistent with the County Plan.

All land use decisions must comply with both the County

Plan and the County Code as well as the Statewide Planning

Goals. See ORS 197.175. LandWatch assigns three errors to

LUBA’s order: one based on the interpretation of the County

Plan and two based on issues related to Statewide Planning

Goals 6 and 11. Aceti cross-assigns error to LUBA’s remand

of the county’s Goal 14 findings.

The subject property is comprised of 21.54 acres and

is located about three miles north of the City of Bend, adja-

cent to Highway 97. The property is currently designated

as Agricultural in the County Plan and zoned as Exclusive

Farm Use.

The LUBA order under review is the fourth one

regarding this property. In 2016, the county approved

Aceti’s application to change the property’s plan designation

and zone to RI. LandWatch appealed that decision to LUBA,

and LUBA remanded due to inadequate findings to justify

taking an exception to Goal 14. Central Oregon LandWatch

v. Deschutes County, 74 Or LUBA 156 (2016) (Aceti I). The

676 Central Oregon Landwatch v. Deschutes County

county again approved the rezoning, but LUBA again

reversed, concluding that the RI zone was unavailable to

newly designated areas under the provisions of the County

Plan. Central Oregon LandWatch v. Deschutes County, 75 Or

LUBA 441 (Aceti II), aff’d, 288 Or App 378, 405 P3d 197

(2017).

In response, the county amended the County Plan

to allow RI zoning outside of the existing exception areas.

LandWatch appealed the amendment as inconsistent with

Goal 14, but LUBA affirmed. Central Oregon LandWatch v.

Deschutes County, 79 Or LUBA 253 (Aceti III), aff’d, 298 Or

App 375, 449 P3d 534 (2019). In the decision under review,

the county again approved Aceti’s application to rezone the

property to RI, and LandWatch again appealed to LUBA.

LUBA affirmed much of the county’s decision but remanded

because it found that the county’s Goal 14 findings were

inadequate. This appeal followed.

We review LUBA’s order to determine whether it is

unlawful in substance or procedure or whether it is not sup-

ported by substantial evidence. ORS 197.850(9). “A LUBA

order is unlawful in substance if it represents a mistaken

interpretation of the applicable law.” Kine v. Deschutes

County, 313 Or App 370, 370-71, 496 P3d 1136 (2021) (inter-

nal quotation marks omitted). “Substantial evidence exists

to support a finding of fact when the record, viewed as a

whole, would permit a reasonable person to make that find-

ing.” ORS 183.482(8)(c).

LandWatch first assigns error to LUBA’s determi-

nation that the County Plan permits rezoning the subject

property to RI. LandWatch points out that section 1.3 of the

County Plan, which introduces the overall planning frame-

work, describes the role of the RI designation as “to define

existing areas of isolated rural industrial development”

(emphasis added), meaning that the county could not create

new RI zones. Aceti, on the other hand, points to section 3.4,

which states, “The county may apply the Rural Industrial

plan designation to specific property within existing Rural

Industrial exception areas, or to any other specific property

that satisfies the requirements for a comprehensive plan

designation change.” (Emphasis added.) Aceti argues that

Cite as 315 Or App 673 (2021) 677

the emphasized language indicates that the county may

expand the RI designation to new areas.

Where, as here, there is not a county interpreta-

tion to which we must defer, we construe local ordinances,

including comprehensive plans, using the familiar frame-

work set out in PGE v. Bureau of Labor and Industries, 317

Or 606, 611-12, 859 P2d 1143 (1993), and State v. Gaines,

346 Or 160, 171-72, 206 P3d 1042 (2009). City of Eugene v.

Comcast of Oregon II, Inc., 359 Or 528, 540, 375 P3d 446

(2016); Maxwell v. Lane County, 178 Or App 210, 228-29,

35 P3d 1128 (2001), adh’d to as modified on recons, 179 Or

App 409, 40 P3d 532 (2002) (holding that the county’s deci-

sion was not entitled to deference because the order did not

interpret the relevant term). We attempt to determine the

meaning most likely intended by the enacting body, in this

case the Deschutes County Board of County Commissioners

(Board).

When the County Plan was first adopted, LUBA

concluded that it expressly limited the RI designation to

three specific areas that already had industrial uses. See

Aceti II, 75 Or LUBA at 450. In response to that determi-

nation in Aceti II, the Board amended the County Plan for

the purpose of authorizing the creation of new RI zones, and

LUBA affirmed those amendments. Aceti III, 79 Or LUBA

253. That history indicates a clear intent on the Board’s

part to allow for the expansion of the RI zone to additional

properties.

Although perhaps inartfully drafted, section 1.3

does not preclude that reading simply by referring to “exist-

ing areas.” Section 1.3 provides a general overview of all of

the different designations, while section 3.4 provides the

particular policies that apply to the RI designation. Section

1.3 also refers to section 3.4 for the details of the RI zone.

Because it expressly refers to and acknowledges the role of

section 3.4 as providing information specific to the RI des-

ignation, it would be illogical to conclude that section 1.3

was intended to invalidate 3.4. And, to the extent that sec-

tion 1.3 could be said to conflict with section 3.4, section 3.4

would prevail because it is more specific. See ORS 174.020(2)

(“When a general and particular provision are inconsistent,

678 Central Oregon Landwatch v. Deschutes County

the latter is paramount to the former so that a particular

intent controls a general intent that is inconsistent with the

particular intent.”). LUBA’s determination that the County

Plan allowed the rezoning was not in error.

In its second assignment of error, LandWatch con-

tends that the rezoning violates Statewide Planning Goal 6.

Goal 6 is “[t]o maintain and improve the quality of the air,

water and land resources of the state.” OAR 660-015-0000(6).

It provides, in relevant part, “[a]ll waste and process dis-

charges from future development, when combined with such

discharges from existing developments shall not threaten

to violate, or violate applicable state or federal environmen-

tal quality statutes, rules and standards.” Id. LUBA deter-

mined that designating the subject property as RI complies

with Goal 6 because Goal 6 requires only that the county

ensure that there is a “reasonable expectation” that the uses

permitted in the RI zone will not violate state and federal

environmental quality standards. Friends of the Applegate

v. Josephine County, 44 Or LUBA 786, 802 (2003). Here, that

reasonable expectation is created by DCC 18.100.030(J),

which requires that proposed uses be reviewed by the appli-

cable state or federal authority before the county approves

them. LandWatch contends that that reasoning is imper-

missibly based on speculation about how a different entity

will act in the future. In other words, LandWatch argues

that relying on DCC 18.100.030(J) places the onus on state

and federal permitting agencies, relieving the county of

the responsibility to fully assess the environmental conse-

quences of the rezoning.

That argument, however, misconstrues LUBA’s

reasoning. In context, the language at issue addresses

LandWatch’s contention that the county could not ade-

quately assess Goal 6 compliance without a development pro-

posal indicating the proposed use. LUBA concluded that the

county could fulfill the requirements of Goal 6 by evaluating

the RI zone itself, as embodied in the County Code, without

having a specific development proposal in front of it. We do

not read LUBA’s order to hold that a local government can

always show Goal 6 compliance by pointing to environmental

regulations, only that in this case, the RI uses in the County

Code are adequately limited. Moreover, the existence of

Cite as 315 Or App 673 (2021) 679

those limitations was not the only reason LUBA determined

that the county’s Goal 6 analysis was adequate; LUBA also

determined that the evidence in the record supported the

county’s decision. In response to LandWatch’s specific Goal 6

arguments related to the property’s lack of water and sewer

service, LUBA evaluated and accepted the county’s findings

that the property had access to water service, and that waste

discharges could be safely treated on-site. Those findings

were supported by substantial evidence in the record. LUBA

did not err in determining that the county’s decision com-

plied with the requirements of Goal 6.

In its final assignment of error, LandWatch argues

that the combination of Goal 6 and Goal 11 bars the rezon-

ing. Goal 11 is “[t]o plan and develop a timely, orderly and

efficient arrangement of public facilities and services to

serve as a framework for urban and rural development.”

OAR 660-015-0000(11). As LUBA explained, it “prohibits

extension of urban services such as sewer and water to rural

lands outside UGBs.” LandWatch contends that RI uses

cannot comply with Goal 6 without public sewer or water

service, but Goal 11 prohibits the extension of those services

to the property. As noted above, LUBA properly found that

the property already had access to water service, and that

waste could be treated by a private, on-site sewage disposal

system. LandWatch’s third assignment of error provides no

basis for reversal.

Aceti cross-assigns error to LUBA’s remand of the

county’s finding that the rezoning does not violate Goal 14,

which generally prohibits urban uses of rural land.1 See

1000 Friends of Oregon v. LCDC (Curry Co.), 301 Or 447,

498-511, 724 P2d 268 (1986). In order to determine whether

a given use is “urban” or “rural,” LUBA applies the multi-

factor test it established in Shaffer v. Jackson County, 17 Or

LUBA 922 (1989). Those factors are

“whether the industrial use (1) employs a small number

of workers, (2) is significantly dependent on a site-specific

1

Goal 14 is “[t]o provide for an orderly and efficient transition from rural to

urban land use, to accommodate urban population and urban employment inside

[UGBs], to ensure efficient use of land, and to provide for livable communities.”

OAR 660-015-0000(14).

680 Central Oregon Landwatch v. Deschutes County

resource and there is a practical necessity to site the use

near the resource, (3) is a type of use typically located in

rural areas, and (4) does not require public facilities or

services.”

Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171,

211, aff’d, 267 Or App 637, 342 P3d 181 (2014) (citing Shaffer,

17 Or LUBA at 933-40). Here, LUBA determined that the

county’s findings did not adequately support its conclusion

relating to the first factor—that any permitted use would

employ a small number of workers.

Aceti first argues that LUBA should not have

applied the Shaffer test at all because the state agency

overseeing land use planning, the Land Conservation and

Development Commission, must have already determined

that all the uses permitted in the County’s RI zones are

rural, not urban, when it acknowledged the County Plan.

However, that argument was not raised before LUBA, and

Aceti does not contend that LUBA committed plain error.

See Willamette Oaks, LLC v. City of Eugene, 295 Or App 757,

765 & n 5, 437 P3d 314, rev den, 365 Or 192 (2019) (pres-

ervation requirement of ORAP 5.45(1) applies to review of

LUBA orders and opinions; declining to exercise discretion

to review for plain error in absence of request by appellant).

Aceti also argues that LUBA misapplied the Shaffer test.

However, Aceti has provided no basis under our standard of

review that would permit us to displace LUBA’s application

of its own precedent.

For the foregoing reasons, the parties have not con-

vinced us that LUBA erred in any respect.

Affirmed on petition and cross-petition.