Catholic Diocese Of Baker v. Crook County

• Decision Date: 07 December 2009
• Docket Number: LUBA No. 2009-071
• Parties: CATHOLIC DIOCESE OF BAKER, Petitioner, v. CROOK COUNTY, Respondent.
• Court: Oregon Land Use Board of Appeals

CATHOLIC DIOCESE OF BAKER, Petitioner,

v.CROOK COUNTY, Respondent.

LUBA No. 2009-071

The Land Use Board Of Appeals

Of The State Of Oregon

AFFIRMED: December 7, 2009

Jeffrey M. Wilson, Prineville, filed the petition for review and argued on behalf of petitioner. With him on the brief was Miller Nash LLP.

Brian I. Branch, Assistant County Counsel, Prineville, filed the response brief and argued on behalf of respondent. With him on the brief were David M. Gordon and Heidi T.D. Bauer.

FINAL OPINION AND ORDER

Appeal from Crook County.

HOLSTUN, Board Member; BASSHAM, Board Chair; RYAN, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.

Opinion by Holstun.

NATURE OF THE DECISION

Petitioner appeals a county decision that denies its request for site plan approval for an office building in an exclusive farm use (EFU) zone.

FACTS

Petitioner Diocese of Baker is a Roman Catholic diocese comprised of 17 counties located east of the Cascade Mountains.¹ At the heart of this appeal is a dispute between petitioner and the county over a proposed 7, 213 square foot "pastoral center" to be located on EFU-zoned property in Powell Butte.² Powell Butte is a rural unincorporated area located east of the City of Redmond, southwest of the City of Prineville and northeast of the City of Bend. The proposed pastoral center would house offices for a number of diocesan functions and also would house offices for the retreat center that is located at petitioner's Powell Butte property.³

In 2007, petitioner sought approval for a "chancery" and a number of other uses on its Powell Butte property. See n 2. In its 2007 decision the county granted petitioner approval for a 3, 223 square foot chapel, a 3, 234 square foot bishop's residence, an 8, 216 square foot retreat center conference building, a 2, 112 square foot retreat center staff house, five 432 square foot retreat center cabins, ten recreational vehicle (RV) spaces and a bath house.⁴Although the retreat center would operate on weekends and in the evenings throughout the year, its operation would be busiest in the summer when it would also operate on weekdays as well. The chapel would be available to retreat center attendees for religious services. Other retreat center functions, including food preparation and meals, would generally occur in the retreat center conference building. The other retreat center buildings would be available to house permanent and temporary retreat staff and retreat attendees.

The county relied on several legal theories in approving the above-described proposal in 2007. We list each of those legal theories and the buildings they were applied to below:

    Legal Theory   Building     EFU zone replacement dwelling.5   The bishop's residence.     Church in an EFU zone. 6   The chapel.     Community Center.7   The retreat center conference building.     Campground.8   RV spaces, bath house, retreat center staff house, retreat center cabins.   

In its 2007 decision, the county denied petitioner's request for approval of the chancery. Although some of the religious and administrative functions that petitioner proposed to house in the chancery would support the retreat center and chapel, in part, those religious and administrative functions would also serve parish churches throughout the 17-county diocese. Although the diocesan chancery was formerly located in Baker City, close to the diocesan cathedral, the chancery was moved from Baker City to the City of Bend in 1987 and now operates in an industrial district in Bend. The effect of petitioner's proposal would be to move the diocesan chancery from its current location in Bend to the subject Powell Butte property next to the retreat center, chapel and bishop's residence. In denyingpetitioner's request for approval of the chancery in 2007, the county provided the following explanation for its decision:

"[T]he Chancery, an administration and business office of the Diocese, is not an outright or conditional use in the EFU zone or an 'activity customarily associated with the practices of the religious activity' under ORS 215.441. * * *" Record 1239.

In its petition for review, petitioner explains that it chose not to appeal the county's 2007 denial of the chancery and attempted to operate the retreat center without the proposed chancery component. However, petitioner contends that it has been unsuccessful in that effort, and for that reason it again sought approval for the chancery, now called a pastoral center, in 2008.

In its decision denying petitioner's 2008 application for approval of the pastoral center, the county rejected petitioner's argument that the application must be approved under ORS 215.441 or the Religious Land Use and Institutionalized Persons Act (RLUIPA). 42 USC §§ 2000cc to 2000cc-5 (2000). This appeal followed.

FIRST ASSIGNMENT OF ERROR

In its first assignment of error, petitioner contends that one of the county commissioners has an actual conflict in this matter and is biased against petitioner. Given that conflict and bias, petitioner alleges the county commissioner should not have participated in this matter and that remand is required so that the county can render a decision without that county commissioner's participation.

The county commissioner apparently expressed some surprise when he learned of petitioner's second application in 2008.⁹ The commissioner owns property that is 700 feetfrom petitioner's Powell Butte property, at its closest point. Record 95. The county commissioner's home is approximately 1.2 miles from petitioner's Powell Butte property. Record 65. The county commissioner's wife appeared before the planning commission and testified in opposition to the proposal. Although the county commissioner did not appear before the planning commission or oppose the proposal at the planning commission hearing at which the county commissioner's wife opposed the proposal, the county commissioner attended that hearing with his wife.

The minutes of the May 6, 2009 County Court hearing reflect the following disclosure after the county commissioner's impartiality was challenged by petitioner below:

"[The commissioner] agreed that his wife did testify on her own accord. He said his property is close, 700 feet, but his home is 1.2 miles away and has no view of the property. He said he doesn't remember what he might have said or gestured. He did speak with [the] Planning Director * * * and said he is quoted as saying he couldn't believe it was being filed again. [The commissioner] said he thinks he could say he was surprised that the Diocese was filing again and that this statement should not be interpreted as a negative.

"[The commissioner] said that regarding the effect on his property and the ability to farm, he has always believed that farming and development can interact together. He said he did attend the hearing at the Planning Commission and believes as an officer of the County that he is better informed by attending.

"[The commissioner] stated that he believes Crook County would not be threatened by his participation, and he believes he doesn't come with bias. He said that everyone has an opinion, but he has to look at the facts of the case and law involved, not his personal wants and desires. [The commissioner] said he has heard comments elsewhere in the community.

"[The commissioner] said he does not believe he should recuse himself." Record 64-65.

A. Conflict

We turn first to petitioner's contention that the county commissioner had an actual conflict of interest. Statutory definitions of "actual conflict of interest" and "potential conflict of interest" appear at ORS 244.020.¹⁰ As potentially relevant here, the county commissioner had an actual conflict if his participation and vote in this matter would result in "private pecuniary benefit or detriment" to the county commissioner. If a public official such as a county commissioner has an "actual conflict of interest," that official must declare the nature of the conflict and "refrain from participating as a public official in any discussion or debate on the issue out of which the actual conflict arises or from voting on the issue, "unless the "public official's vote is necessary to meet a requirement of a minimum number of votes to take official action." ORS 244.120(2)(b).

In support of its contention that the county commissioner has an actual conflict of interest, petitioner offers the following argument:

"In this case there is an actual conflict of interest because: (1) [the commissioner] owns property next to the subject property, (2) [the commissioner's] wife testified before the planning commission while the planning commission was taking public testimony on the application now before [LUBA] on appeal, (3) [the commissioner] was at the same hearing with his wife." Petition for Review 6 (record citations omitted).

The county commissioner's wife's testimony and the county commissioner's attendance at the planning commission hearing has no bearing that we can see on whether his participation in this matter will result in a private pecuniary benefit or detriment to the county commissioner. The county commissioner's ownership of nearby property and a residence that is 1.2 miles away from the subject property, without more, is not sufficient to establish an actual conflict of interest. ODOT v. City of Mosier, 36 Or LUBA 666, 680 (1999). Based on the record in this appeal, the county commissioner's ownership of nearby property is at most a potential conflict of interest. A public official such as a county commissioner, when faced with a potential conflict of interest, is required to "announce publicly the nature of the potential conflict prior to taking any action thereon in the capacity of a public official." The county commissioner announced the circumstances that petitioner believes leads to a conflict of interest, and petitioner does...