1000 Friends of Oregon v. Wasco County Court

• Jurisdiction: Oregon
• Decision Date: 09 July 1985
• Citation: 1000 Friends of Oregon v. Wasco County Court, 703 P.2d 207, 299 Or. 344 (Or. 1985)
• 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 on review, v. WASCO COUNTY COURT, Respondent on review, and David Knapp, Richard Dennis Smith, Kent Bullock, Samadhi Matthews, and Chidvalis Rajneesh Meditation Center, Petitioners on review. LUBA 81-132; CA A29802; SC S31080.
• Court: Oregon Supreme Court

Page 207

703 P.2d 207

299 Or. 344

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 on review, v. WASCO COUNTY COURT, Respondent on review and David Knapp, Richard Dennis Smith, Kent Bullock, Samadhi Matthews, and Chidvalis Rajneesh Meditation Center, Petitioners on review.

LUBA 81-132; CA A29802; SC S31080.

Supreme Court of Oregon.

Argued and Submitted Nov. 6, 1984.

Decided July 9, 1985.

Allen L. Johnson, of Johnson & Kloos, Eugene, and Edward J. Sullivan, Salem, argued the cause and filed the petition for petitioners on review.

Robert E. Stacey, Jr., Portland, argued the cause for respondents on review 1000 Friends et al. and filed a response to the petition for review and a reply to the amicus curiae brief.

Wilford K. Carey, Hood River, argued the cause for respondent on review Wasco County Court.

Jeff Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent on review Land Conservation and Development Com'n ^* and filed a response to the petition and a reply to the amicus curiae brief. With him on the briefs were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., Mary J. Deits, Asst. Atty. Gen., and Michael B. Huston, Asst. Atty. Gen., Salem.

Ma Prem Sangeet, Rajneeshpuram, filed an amicus curiae brief on behalf of the City of Rajneeshpuram.

PETERSON, Chief Justice.

Comprehensive statewide land use planning, which began in 1969 with Senate Bill 10, Or.Laws 1969, ch. 324, culminated with the passage of Senate Bill 100 in 1973. The impetus behind Senate Bill 100, codified in ORS chapter 197, the framework within which land use planning occurs, was legislative concern that state intervention was needed to stop a process of cumulative public harm resulting from uncoordinated land use. See 1000 Friends v. LCDC, 292 Or. 735, 745, 642 P.2d 1158, 1164 (1982). This concern is reflected in the legislative findings and policy statement, codified at ORS 197.005 and 197.010. ¹ Senate Bill 100 was intended to substitute a systematic decisional process based on consideration of all relevant facts, affected interests and public policies, for the prevailing practice of inconsistent land use decision-making. See 1000 Friends v. LCDC, supra, 292 Or. at 746, 642 P.2d at 1164.

This case involves a question of whether the Statewide Land Use Planning Goals, ² and particularly the Urbanization Goal (Goal 14), apply to a county's decision to approve a petition for the incorporation of a new city (Rajneeshpuram) and to authorize an incorporation election. More specifically, we are called upon to address the applicability of the statewide goals to the first in a continuum of actions that begins with an incorporation petition and culminates in a city's adoption of a proposed comprehensive plan and subsequent Land Conservation and Development Commission (LCDC) acknowledgment (approval) of the proposal. Resolution of the issues is strictly a matter of construing the statutes and regulations in effect in 1981, when the Wasco County Court ³ voted to approve the incorporation petition which is central to this controversy.

Three questions are presented:

1. Is incorporation of a new city a "land use decision" under ORS 197.015(10)?

We hold that it is. Therefore, the Land Use Board of Appeals (LUBA) had jurisdiction to review the county court's approval of the incorporation petition.

2. Does Goal 14, the "urbanization" goal, prohibit the incorporation of a new city on rural land absent a Goal 2, part II, exception?

We hold that it does not.

3. Do Goal 14 and Goal 3, the "agricultural lands" goal, apply to the incorporation decision?

We hold that they do, as specified in parts II, III and IV below.

I THE FACTS

In July 1981, Chidvalis Rajneesh Meditation Center, one of the petitioners in this case, purchased a 64,000-acre ranch which lies east of the Cascade Range, in Wasco and Jefferson Counties. On October 14, 1981, pursuant to ORS chapter 221, a petition to incorporate 2,135 acres within the Wasco County portion of the ranch was filed by registered voters residing in the proposed area of incorporation. On November 4, 1981, the Wasco County Court held a public hearing to consider the petition. At the hearing the county court heard testimony pertaining to whether the proposed incorporation satisfied the requirements of ORS chapter 221 and complied with the statewide planning goals. The county court made extensive findings on the matter of compliance with the statewide planning goals, fixed the boundaries of the proposed city and authorized a special incorporation election.

1000 Friends of Oregon and six named individuals (1000 Friends) appealed the county court's order to LUBA. LUBA dismissed the appeal on the ground that the order was not a "land use decision" subject to LUBA's jurisdiction under Oregon Laws 1979, chapter 772, section 4(1), as amended by Oregon Laws 1981, chapter 748, section 35 (currently ORS 197.825).

"Land use decision" is defined by ORS 197.015(10) ⁴ to include "[a] final decision * * * that concerns * * * application of * * * [t]he goals." The planning responsibilities which a city or county must undertake in accordance with the goals, as specified by the 1981 version of ORS 197.175(1), were as follows:

"Cities and counties shall exercise their planning and zoning responsibilities, including, but not limited to, a city or special district boundary change which shall mean the incorporation or annexation of unincorporated territory by a city and the formation or change of organization of or annexation to any special district authorized by ORS 198.705 to 198.955, 199.410 to 199.519 or 451.010 to 451.600, in accordance with ORS 197.005 to 197.430 and 197.605 to 197.650 and the goals approved under ORS 197.005 to 197.430 and 197.605 to 197.650."

LUBA concluded that the terms "incorporation" and "annexation" as they appear in ORS 197.175(1) were synonyms and that the legislature did not intend to require the land use goals to be applied to the incorporation process.

LUBA's dismissal was appealed to the Court of Appeals. The Court of Appeals interpreted the term "incorporation" consistent with its customary legal meaning--creation of a new city--and reversed and remanded to LUBA, holding that the county court's decision to authorize the special incorporation election was a land use decision subject to LUBA review. 1000 Friends of Ore. v. Wasco Co. Court, 62 Or.App. 75, 82, 659 P.2d 1001, 1005 rev. den. 295 Or. 259, 668 P.2d 381 (1983) (Wasco County I ).

On July 14, 1983, subsequent to the Court of Appeals decision in Wasco County I but before LUBA's decision on remand, LCDC, using emergency temporary rule-making procedures, promulgated a "Temporary Rule for Application of the Statewide Planning Goals to the Incorporation of New Cities," OAR 660-14-000 et seq. The rule contained a retroactive effective date of August 21, 1981, which is before the original county order. OAR 660-14-010(1) provided in part:

"When a county authorizes an incorporation election for an area outside of an acknowledged urban growth boundary, it shall take an exception to Goal 14 to allow urban uses to be established on rural lands. If the land proposed for incorporation is also agricultural land or forest land, the County's exception to Goal 14 will also be considered an exception to Goals 3 and 4. * * * "

An "urban growth boundary" (UGB) is a boundary line established under Goal 14 to separate urbanizable land from rural land. City of Salem v. Families for Responsible Govt, 298 Or. 574, 577 n. 3, 694 P.2d 965, 966 n. 3 (1985). ⁵ The area of the proposed incorporated city of Rajneeshpuram is not within any acknowledged UGB. In that sense, the land is rural as defined by the goal definitions.

Under Goal 14, land is classified into three categories, rural, urbanizable and urban, through the establishment of a UGB. The terms are defined by the Statewide Planning Goal Definitions:

"RURAL LAND: 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 LAND: 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 uses

(b) Can be served by urban services and facilities

(c) Are needed for the expansion of an urban area."

"URBAN LAND: 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."

Goal 14 specifies the requirements for conversion of rural land to urban land. The goal provides:

"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 consequence;

(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...