1000 Friends of Oregon v. Wasco County Court

• Jurisdiction: Oregon
• Citation: 1000 Friends of Oregon v. Wasco County Court, 679 P.2d 320, 67 Or.App. 418 (Or. App. 1984)
• Docket Number: No. 81-132,81-132
• Parties: 1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon nonprofit corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson and Melinda Dickson, Respondents--Cross-Petitioners, v. WASCO COUNTY COURT, Respondent--Cross-Respondent, and David Knapp, Richard Dennis Smith, Kent Bullock, Samadhi Matthews, and Chidvalis Rajneesh Meditation Center, Petitioners--Cross-Respondents. ; CA A29802.
• Court: Oregon Court of Appeals
• Decision Date: 21 March 1984

Page 320

679 P.2d 320

67 Or.App. 418

1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon nonprofit corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson and Melinda Dickson Respondents--Cross-Petitioners, v. WASCO COUNTY COURT, Respondent--Cross-Respondent and David Knapp, Richard Dennis Smith, Kent Bullock, Samadhi Matthews, and Chidvalis Rajneesh Meditation Center, Petitioners--Cross-Respondents.

No. 81-132; CA A29802.

Court of Appeals of Oregon.

Argued and Submitted Jan. 23, 1984.

Decided March 21, 1984.

Allen L. Johnson, Eugene, argued the cause for petitioners-cross-respondents. With him on the briefs were Corinne C. Sherton, and O'Donnell, Sullivan & Ramis, Salem.

Robert E. Stacey, Jr., Portland, argued the cause for respondents-cross-petitioners. With him on the brief was Mark J. Greenfield, Portland.

Wilford K. Carey, Hood River, argued the cause and filed the brief for respondent-cross-respondent.

Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., Mary J. Deits, and Michael B. Huston, Asst. Attys. Gen., Salem, filed the brief for the Land Conservation and Development Com'n.

Before RICHARDSON, P.J., JOSEPH, C.J., and NEWMAN, Judge.

RICHARDSON, Presiding Judge.

Petitioners appeal and respondents ¹ cross-appeal from an order of the Land Use Board of Appeals (LUBA) holding that the Wasco County Court erred in approving the petition and authorizing an election for the incorporation of the city of Rajneeshpuram. LUBA remanded the matter to the county for further proceedings. We reverse and remand LUBA's order.

In July, 1981, petitioner Chidvalis Rajneesh Meditation Center purchased a 64,000 acre ranch located in Wasco and Jefferson counties. In October, 1981, a petition to incorporate a 2,135 acre area within the Wasco County portion of the ranch was filed with the county by 42 registered voters residing in the area. See ORS 221.010 et seq. The county court held a hearing on November 4, 1981, approved the petition and authorized a special incorporation election. Respondents appealed the county's decision to LUBA. LUBA dismissed that appeal on the ground that the county action was not a "land use decision" subject to LUBA's jurisdiction. Former ORS 197.015(10). ² The dismissal was appealed to this court, and we concluded that "the County's decision to authorize an incorporation election is a land use decision subject to LUBA review." 1000 Friends of Oregon v. Wasco Co. Court, 62 Or.App. 75, 82, 659 P.2d 1001, rev. den. 295 Or. 259 (1983). We therefore remanded the matter to LUBA, and the present appeal is from the order LUBA issued on remand.

After our decision in 1000 Friends of Oregon v. Wasco Co. Court, supra, but before LUBA's decision on remand, the Land Conservation and Development Commission (LCDC) promulgated a "Temporary Rule for Application of the Statewide Planning Goals to the Incorporation of New Cities." OAR 660-14-000 et seq. As summarized in LUBA's order, the rule provides that,

" * * * when authorizing an incorporation election for an area outside an acknowledged urban growth boundary, * * * a county [must] take an exception to Goal 14 'to allow urban uses to be established on rural lands.' * * * Where a new city is to be incorporated within an acknowledged urban growth boundary, no exception is required." (Footnote omitted.)

The area in question is not within an acknowledged urban growth boundary (UGB). LCDC promulgated the rule long after the county's decision, and the county of course had not taken an exception pursuant to the rule. However, the rule contains a retroactive effective date of August 21, 1981, which predates the county's approval of the incorporation petition and authorization of the election.

LUBA concluded that the county was required to apply the LCDC rule and directed that the county do so on remand. LUBA also concluded that the county's decision violated Goal 14 and Goal 3. Petitioners assign error to each of those conclusions. Their threshold contentions are that the LCDC rule was improperly adopted, that it cannot be applied retroactively to this incorporation decision made before its promulgation and, for various other reasons, that it is invalid facially or as applied here. LCDC disputes those contentions. ³ However, it also argues that the rule simply reiterates previous LCDC interpretations of Goal 14 and that LUBA's order can be sustained as a correct application of Goal 14 independently of the rule. We agree to a limited extent with LCDC's suggestion that the validity of the rule and its application can be superfluous to our decision. If the interpretation of Goal 14 in LUBA's order is erroneous and if the rule embodies the same error, it is unnecessary for us to consider now any of the other defects petitioners ascribe to the rule. ⁴

Goal 14 provides, as pertinent:

"GOAL: To provide for an orderly and efficient transition from rural to urban land use.

"Urban growth boundaries shall be established to identify and separate urbanizable land from rural land.

"Establishment and change of the boundaries shall be based upon consideration of the following factors:

"(1) Demonstrated need to accommodate long-range urban population growth requirements consistent with LCDC goals;

"(2) Need for housing, employment opportunities, and livability "(3) Orderly and economic provision for public facilities and services;

"(4) Maximum efficiency of land uses within and on the fringe of the existing urban area;

"(5) Environmental, energy, economic and social consequences;

"(6) Retention of agricultural land as defined, with Class I being the highest priority for retention and Class VI the lowest priority; and,

"(7) Compatibility of the proposed urban uses with nearby agricultural activities.

"The results of the above considerations shall be included in the comprehensive plan. In the case of a change of a boundary, a governing body proposing such change in the boundary separating urbanizable land from rural land, shall follow the procedures and requirements as set forth in the Land Use Planning Goal (Goal 2) for goal exceptions."

OAR 660-15-000 defines "rural," "urbanizable," and "urban," as used in Goal 14:

Rural:

"Rural lands are those which are outside the urban growth boundary and are: (a) Non-urban agricultural, forest or open space lands or, (b) Other lands suitable for sparse settlement, small farms or acreage homesites with no or hardly any public services, and which are not suitable, necessary or intended for urban use."

Urbanizable:

"Urbanizable lands are those lands within the urban growth boundary and which are identified and (a) Determined to be necessary and suitable for future urban areas (b) Can be served by urban services and facilities (c) Are needed for the expansion of an urban area."

Urban:

"Urban areas are those places which must have an incorporated city. Such areas may include lands adjacent to and outside the incorporated city and may also[:] (a) Have concentrations of persons who generally reside and work in the area (b) Have supporting public facilities and services."

LUBA's order ⁵ holds, in effect, that the incorporation of a city on rural land outside an established urban growth boundary is a per se violation of Goal 14 and is impermissible unless the body approving the incorporation petition takes a Goal 2 exception to Goal 14. ⁶ LCDC explains in its brief:

"LCDC's [and LUBA's] interpretation of Goal 14 and the related goal definitions, as they apply to incorporations, can be summarized in a simple four-step analysis:

"Step 1: The effect of an incorporation is to make land available for urbanization.

"Step 2: Goal 14 prohibits urbanization of land outside urban growth boundaries.

"Step 3: Therefore, Goal 14 prohibits incorporation of a city on land outside urban growth boundaries.

"Step 4: Because Goal 14 prohibits such an incorporation, an exception to the goal must be taken." ⁷

Petitioners argue that the only land use decision that can bring about urbanization of rural land is the establishment of a UGB and that the incorporation of a city cannot do so. Because a UGB must comply with Goal 14, and must ultimately be reviewed by LCDC for compliance with the goal, ORS 197.251, petitioners contend that the act of incorporation has no immediate or direct bearing on the conversion of land. Incorporation simply creates a city that must later undertake a second act--establishing a UGB--that is the meaningful one for purposes of Goal 14.

Neither LUBA's order nor the defenses respondents and LCDC make for it succeed in closing the gap petitioners identify between incorporation and changes in the classification or use of land. Respondents argue, for example:

"Incorporation of a new city on 'rural land'--land outside urban growth boundaries--is inconsistent with Goal 14. The effect of incorporation, by itself, is to enable rural land to be converted to urban uses, because where a city exists, there may be 'urban land' under the goals' definitions. Where incorporation occurs outside of urban growth boundaries it makes lands available for urban development which Goal 14 otherwise requires to be rural. * * *

"Petitioners argue that Goal 14 contains no prohibition of urban development on rural land. * * *

"In fact, Goal 14 plainly does prohibit urbanization outside urban growth boundaries. It requires the establishment of UGBs 'to identify and separate urbanizable land from rural land' in order to 'provide for an orderly and efficient transition from rural to urban land use.' * * * "

We question respondents' starting proposition--which appears to be central to LUBA's and LCDC's reasoning as well as respondents'--that "incorporation, by itself, [enables] rural land to be converted to urban uses, because where a city exists, there may be 'urban land' under the goals' definitions." Respondents' apparent reference is to the definition of...