Cent. Or. Land Watch v. Deschutes Cnty.
| Decision Date | 18 June 2021 |
| Docket Number | LUBA No. 2021-028 |
| Parties | CENTRAL OREGON LAND WATCH, Petitioner, v. DESCHUTES COUNTY, Respondent, and ANTHONY J. ACETI, Intervenor-Respondent. |
| Court | Oregon Land Use Board of Appeals |
FINAL OPINION AND ORDER
Appeal from Deschutes County.
Carol Macbeth filed the petition for review and reply brief and argued on behalf of petitioner.
No appearance by Deschutes County.
Bill Kloos filed the response brief and argued on behalf of intervenor-respondent.
ZAMUDIO, Board Member; RUDD, 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 Zamudio.
Petitioner appeals a decision of the board of county commissioners approving a post-acknowledge plan amendment to change the subject property's comprehensive plan designation from agricultural to rural industrial (RJ) and to change its zoning from exclusive farm use to RJ.
In the statement of facts in the petition for review, petitioner states that the subject property is 2.32 miles from the city of Bend urban growth boundary (UGB), citing and appending Record 804, which is a screenshot of a map and measuring tool depicting a measurement between the Bend UGB and the subject property. Petition for Review 5. In the reply brief, petitioner requests that LUBA take official notice of the location of the subject property relative to the Bend UGB based on Record 804.
The challenged decision finds that "[t]he property is located about 3.25 miles north of Bend and 6.5 miles south of Redmond via US 97." Record 47, 83. Petitioner did not assign error to that finding or to the county's failure to make a more specific finding identifying the location of the subject property relative to the Bend UGB, as opposed to Bend city limits.
Intervenor-respondent (intervenor) opposes the motion to take official notice and moves to strike the portions of the petition for review and reply briefthat rely on the statement that the subject property is 2.32 miles from the Bend UGB.
The location of the subject property relative to the Bend UGB is an adjudicative fact. LUBA does not take notice of adjudicative facts. Petitioner's motion to take official notice is denied. Citizens for Renewables v. Coos County, ___ Or LUBA ___, ___ (LUBA No 2020-003, Feb 11, 2021) (slip op at 52). We will disregard the statement that the subject property is 2.32 miles from the Bend UGB and disregard any argument that relies on that factual statement.1
The subject property is comprised of 21.54 acres and is located at the intersection of Highway 97 and Tumalo Road. The subject property is generally level, and it is developed with a large warehouse building with parking areas on three sides of the building. That building is used to store hay, seed, and farm machinery. The subject property is also developed with an above-grade approach ramp to the Deschutes Junction Overpass over Highway 97. The remainder of the property is vacant and sometimes used by others for the temporary storage ofvehicles and equipment.2 The northwestern corner of the subject property is adjacent to a rural residential subdivision with lot sizes varying from one acre to three and one-half acres. That subdivision predates state and county comprehensive land use planning.
The subject property is near an area generally referred to as Deschutes Junction that was developed with rural industrial and rural commercial uses prior to the adoption of the Deschutes County Comprehensive Plan (DCCP) in 1979 and its acknowledgement by the Land Conservation and Development Commission (LCDC) in 1981. In adopting the plan designation and zoning for Deschutes Junction, the county took a physically developed exception to Statewide Planning Goal 3 (Agricultural Lands).3 The subject property is near, but not within, the Deschutes Junction exception area.
This is the fourth time that the plan designation and zoning of the subject property have been disputed before LUBA. See Central Oregon Landwatch v.Deschutes County, 74 Or LUBA 156 (2016) (Aceti I); Central Oregon Landwatch v. Deschutes County, 75 Or LUBA 441 (Aceti II), aff'd, 288 Or App 378, 405 P3d 197 (2017); Central Oregon Landwatch v. Deschutes County, 79 Or LUBA 253 (Aceti III), aff'd, 298 Or App 375, 449 P3d 534 (2019). Those prior appeals provide context for the issues presented in this appeal. We summarize them here and discuss them in more detail in the analysis below.
In 2016, the county approved a plan designation and zone change to RI. That approval included an exception to Statewide Planning Goal 14 (Urbanization). In Aceti I, we affirmed the county's conclusion that the subject property is not agricultural land. 74 Or LUBA at 159-68. However, while the subject property is not protected as agricultural land, it is rural land, which may not be used for urban uses without an exception to Goal 14. We remanded for inadequate findings related to that exception. Id. at 168-74. We noted that the RI zone does not necessarily authorize urban uses of rural land and suggested that an exception to Goal 14 was not required.
On remand, intervenor did not seek a Goal 14 exception. The county again approved the plan designation and zone change, which petitioner challenged in Aceti II. We reversed because DCCP 3.4 (2011) in effect at that time limited the RI plan designation to three specific geographic exception areas. We rejected petitioner's categorical argument that all industrial development is urban and requires a Goal 14 exception in order to be sited on rural land. Aceti II, 75 Or LUBA at 449. We observed that DCCP 3.4 (2011) provided that the RI plandesignation and zoning bring the exception areas into compliance with state law by ensuring that they remain rural because the uses allowed in the RI zone are less intensive than those allowed in unincorporated communities. Id. at 445. In Aceti II, we did not reach the parties' dispute about whether the RI zone regulations in Deschutes County Code (DCC) 18.100.010 to 18.100.090 so limit the industrial uses allowed in the RI zone that they will not constitute urban uses. Id. at 445 n 4 ( ).
In 2018, the county amended the DCCP to allow RJ designation and zoning of land outside the three existing exception areas. Petitioner appealed those amendments in Aceti III, arguing, among other things, that the county's decision failed to comply with Goal 14 because the amendments would allow urban uses of rural land. Petitioner further argued that the DCC RI zone regulations—which were not amended concurrently in 2018 with the DCCP amendments—allow urban uses of rural land. We rejected those arguments, concluding that the 2018 DCCP amendments are consistent with Goal 14 because (1) any future application for the RI plan designation would have to demonstrate that it is consistent with Goal 14 and (2) petitioner's argument that the RI zone regulationsallow urban uses was an impermissible collateral attack on acknowledged land use regulations. Aceti III, 79 Or LUBA at 260-61.
Intervenor subsequently applied to the county to change the plan designation and zoning of the subject property to RI. The application does not seek approval of any specific industrial use. The county approved the changes, finding, among other things, that the changes are consistent with Statewide Planning Goals 6 (Air, Water and Land Resources Quality), 11 (Public Facilities and Services), and 14. This appeal followed.
Petitioner argues that the DCCP limits the RJ plan designation to areas of existing rural industrial development and cannot be applied to the subject property. DCCP 3.4 provides, in part:
"The county may apply the [RI] 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 set forth by State Statute, Oregon Administrative Rules, [the DCCP] and the [DCC], and that is located outside unincorporated communities and [UGBs]." (Emphasis added.)
Petitioner argues that the decision violates DCCP 3.4 and that the subject property cannot satisfy the requirements for a comprehensive plan designation change because it is not in an area of existing industrial development. Petitioner relies on DCCP Table 1.3.3, which lists the RI plan designation and RI zoning as "area specific designations."
It may be that the county mistakenly overlooked amending DCCP Table 1.3.3 in conjunction with the 2018 DCCP amendments extending the RI plan designation. Nevertheless, as intervenor emphasizes, nothing in the DCCP or DCC limits the RI plan designation to areas of existing industrial development. DCCP 3.4 expressly allows application of the RI plan designation to any specific properties that can satisfy the requirements for such designation. Petitioner does not acknowledge the 2018 DCCP amendments, which petitioner challenged in Aceti III and which LUBA and the Court of Appeals affirmed. Instead, petitioner proceeds as though those amendments do not exist or are ineffective. Petitioner's argument that the county's decision is not in compliance with the DCCP is incorrect and provides no basis for remand.
The second assignment of error is denied.
Petitioner argues that the county erred by concluding that the challenged decision complies...
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