David Setniker, Joan Setniker & Acmpc 2 LLC v. Polk Cnty., LUBA No. 2016-072
| Decision Date | 06 January 2017 |
| Docket Number | LUBA No. 2016-072 |
| Parties | DAVID SETNIKER, JOAN SETNIKER and ACMPC 2 LLC, Petitioners, and RICKREALL COMMUNITY WATER ASSOCIATION, Intervenor-Petitioner, v. POLK COUNTY, Respondent, and CPM DEVELOPMENT CORPORATION, Intervenor-Respondent. |
| Court | Oregon Land Use Board of Appeals |
FINAL OPINION AND ORDER
Appeal from Polk County.
Zack Mittge, Eugene, filed a petition for review and argued on behalf of petitioners. With him on the brief were William H. Sherlock and Hutchinson Cox.
David C. Noren, Hillsboro, filed a petition for review and argued on behalf of intervenor-petitioner.
Morgan B. Smith, County Counsel, Dallas, filed a joint response brief and argued on behalf of respondent.
Wallace W. Lien, Salem, filed a joint response brief and argued on behalf of intervenor-respondent. With him on the brief was Wallace W. Lien P.C.
BASSHAM, Board Member; HOLSTUN, 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 Bassham.
Petitioners appeal a county board of commissioners' decision approving comprehensive plan text amendments, a zoning map amendment, and a conditional use permit, to facilitate a mining operation on land zoned exclusive farm use (EFU).
Petitioners move to file a reply brief to respond to four alleged new matters raised in the respondents' brief, and for permission to file an overlength six-page reply brief.
Intervenor-respondent CPM Development Corporation (CPM) objects that only the first alleged new matter is in fact a "new matter" that authorizes filing a reply brief under OAR 661-010-0039.1 The second through fourth alleged new matters involve issues raised in the consolidated response brief regarding (1) whether landowners affected by the zone change can withdraw consent to the zone change, (2) whether petitioner ACMPC 2, LLC (ACMPC) is estopped from opposing the zone change, and (3) whether an alternate access road for the mining site, not approved by the county, can be secured. We believe that the disputed issues raised for the first time in the response brief areall "new matters" within the meaning of OAR 661-010-0039. The overlength reply brief is allowed.
Respondents attached to their brief Appendix D and E, which include several interlocutory rulings from a circuit court judge and an arbitrator, involving pending litigation between CPM and petitioner ACMPC concerning the proposed haul road for the mining operation, which would cross ACMPC's property. Petitioners move to strike the documents in Appendix D and E and associated arguments in the response brief, because the documents are not part of the record and not "decisional law" potentially subject to official notice under Oregon Evidence Code (OEC) 202(1), codified at ORS 40.090.
CPM responds that the interlocutory orders in Appendices D and E are "decisional law" subject to official notice under OEC 202. In addition, after oral argument, CPM filed a motion to take official notice of a subsequent final decision by the arbitrator.
As explained below, we conclude that the rulings by the circuit court and arbitrator in the quiet title suit involve a contractual dispute between some of the parties, and are not controlling with respect to the legal challenges raised against the land use approval that is before us in this appeal. Nonetheless, we agree with CPM that the rulings fall within the scope of "decisional law" potentially subject to official notice, and therefore we shall consider them to the extent they have a bearing on the issues before us.
Petitioners' motion to strike is denied, and CPM's motions for official notice are granted.
The challenged decision concerns a proposed 124-acre mining site on what was formerly a 704-acre parent parcel. In 2001, CPM's predecessor-in-interest and the property owners of the parent parcel filed applications for (1) a comprehensive plan text amendment to add the site to the county's inventory of significant mineral and aggregate resources, (2) a zoning map amendment to add a Mineral and Aggregate (MA) overlay zone to the 124-mining site and to an impact area consisting of 212 acres, totaling 336 acres, and (3) a conditional use permit to mine the site. After many delays, the county approved the applications in 2006. That approval was appealed to LUBA, which remanded to correct procedural errors and to address compliance with transportation-related standards. Rickreall Community Water Assoc. v. Polk County (Rickreall), 53 Or LUBA 76 (2006), aff'd 212 Or App 497, 158 P3d 524 (2007).
In 2010, the county conducted remand proceedings and again approved the applications. The 2010 approval was appealed to LUBA, which ultimately remanded the decision to the county to (1) again address certain transportation related standards, (2) adopt the analysis of economic, social, environmental and energy (ESEE) consequences that was prepared by the applicant into the county comprehensive plan, and (3) modify certain conditions of approval. Setniker v.Polk County, 63 Or LUBA 38, rev'd and rem'd in part, 244 Or App 618, 260 P3d 800, rev den, 351 Or 216, 262 P3d 402 (2011), on remand 65 Or LUBA 49, aff'd 253 Or App 607, 293 P3d 1091 (2012) (Setniker).
In May 2014, the owners of the 704-acre parent parcel sold most of that parcel, excluding the 124-acre mining site, to petitioner ACMPC, which incorporated the land into its nearby agricultural operation. One consequence of that sale is that approximately 122 acres within the impact area surrounding the mining site are now owned by ACMPC. The land now owned by ACMPC includes a dwelling now used to house ACMPC's agricultural workers, and for offices and an employee lunchroom, as well the proposed route of the haul road from the mining site to Highway 51.
On May 15, 2014, CPM requested that the county conduct proceedings on remand, and submitted 300 pages of new material to address the transportation issues outstanding on remand. The new material also modified the applications to eliminate a proposed batch plant, removed a small area from the impact area intended for the batch plant, and modified the ESEE analysis to reflect those changes. Based on a staff recommendation, the board of commissioners determined that the remand hearing would be conducted by the county hearings officer.
The hearings officer conducted a hearing on February 17, 2015, at which ACMPC and four other adjoining owners with property within the impact area proposed to be rezoned to MA submitted a "Notice of Withdrawal of Petitionfor a Zone Change Overlay to Mineral Aggregate Designation," along with a survey and legal description. ACMPC argued that the signatories to the withdrawal presently own 59 percent of the land to be rezoned MA, and that under county code the zone change can proceed only if the owners of at least 50 percent of the area to be rezoned petition the county for the rezone.
At the hearing, intervenor-petitioner Rickreall Community Water Association (RCWA) and others argued that only the board of commissioners, and not the hearings officer, had authority under the county code to conduct the remand proceedings. Further, RCWA and others argued that the county should expand the scope of the remand proceedings to include several new circumstances that have changed since the remand. The hearings officer rejected those arguments, and generally limited his review to the three issues remanded in LUBA's Setniker decision.
On June 15, 2015, the hearings officer issued a decision recommending approval of the plan text amendment, zone change, and conditional use permit. A year later, on June 15, 2016, the board of commissioners ratified the hearings officer's decision as part of its consent agenda at a public meeting, and adopted Ordinance 16-02 on June 16, 2016. This appeal followed.
RCWA and petitioners (referred to collectively under these assignments of error as "petitioners") argue that the county erred in delegating the remand proceedings on the comprehensive plan text amendment to the hearings officer,instead of conducting the remand proceedings before the board of commissioners, as petitioners argue is required by ORS 215.060 and Polk County Zoning Ordinance (PCZO) chapter 115. We address both assignments together.
A component of the challenged decision is a comprehensive plan text amendment, which modifies the comprehensive plan to include the subject site on the county's inventory of significant mineral resources, and includes the ESEE analysis supporting the decision to allow mining. Under PCZO chapter 115, which governs comprehensive plan amendments, the plan text amendment must be processed according to the county's procedures for adopting legislative amendments, which include a public hearing before the board of commissioners. Rickreall, 53 Or LUBA at 84 (so holding). On remand from Rickreall, the county followed the code process for adopting a legislative amendment in PCZO chapter 115. However, as noted, on remand from Setniker, 65 Or LUBA 49, the county commissioners accepted a staff recommendation for the hearings officer to conduct the remand proceedings pursuant to PCZO 111.280, which is part of a chapter governing administrative proceedings.
PCZO 111.280 concerns in part "Remand Consideration Procedures" and provides in relevant part that upon receipt of a request to conduct proceedings on remand from LUBA, the board of commissioners shall schedule a publichearing.2 However, PCZO 111.280 also provides that "[t]he public hearing, as determined by the Board of Commissioners, will be conducted by either the Hearings Officer or the Board." See n 2. If the public hearing is conducted by the hearings officer, PCZO 111.280(C) provides that the hearings officer's decision "shall thereafter be ratified...
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