Gisler v. Deschutes County, 96-164

• Citation: 945 P.2d 1051,149 Or.App. 528
• Decision Date: 10 September 1997
• Docket Number: No. 96-164,96-164
• Parties: Joel GISLER, Petitioner, v. DESCHUTES COUNTY, Respondent. LUBA; CA A98218.
• Court: Court of Appeals of Oregon

Page 1051

945 P.2d 1051

149 Or.App. 528

Joel GISLER, Petitioner, v. DESCHUTES COUNTY, Respondent.

LUBA No. 96-164; CA A98218.

Court of Appeals of Oregon.

Argued and Submitted Aug. 1, 1997.

Decided Sept. 10, 1997.

Jack K. Sterne, argued the cause for petitioner. With him on the brief was Dan Van Vactor.

Bruce W. White, Assistant Legal Counsel, filed the brief for respondent.

Before De MUNIZ, P.J., and DEITS, C.J., and HASELTON, J.

DEITS, Chief Judge.

Petitioner seeks review of LUBA's affirmance of a Deschutes County hearings officer's denial of petitioner's application for a subdivision. We affirm.

The proposed subdivision is located in a suburban low-density residential zone and is outside the urban growth boundary (UGB). Section 19.20.055(A)(4) of the Deschutes Development Code requires that, for subdivisions and other developments or partitions of two lots or more in that zone:

"All new lots shall be connected to a Department of Environmental Quality-permitted community or municipal sewer system."

The county code requires further that "[c]onnection of the lots to sewer [sic] shall be a condition of tentative plat approval." Petitioner's proposed development is not connected to an existing sewer system, and there is no existing city or community sewer system that is located or has facilities outside the UGB and that is near the subdivision site. Petitioner does not contend that the proposed subdivision can comply with section 19.20.055(A)(4). Rather, his position is that it does not have to and that his application proposing separate septic systems for each of the subdivision lots instead of connections to a sewer system is acceptable.

We will discuss petitioner's argument in detail below. Its essential point is that he cannot be required to comply with section 19.20.055(A)(4) because, in his view, that county provision conflicts with and is "invalidated" by the following language that was added to statewide planning Goal 11 in 1994:

"Counties shall not allow the establishment of new sewer systems outside urban growth boundaries or unincorporated community boundaries, or allow new extensions of sewer lines from within urban growth boundaries or unincorporated community boundaries to land outside those boundaries."

ORS 197.646 provides, as relevant:

"(1) A local government shall amend the comprehensive plan and land use regulations to implement new or amended statewide planning goals, commission administrative rules and land use statutes when such goals, rules or statutes become applicable to the jurisdiction. Any amendment to incorporate a goal, rule or statute change shall be submitted to the department as set forth in ORS 197.610 to 197.625.

" * * * * *

"(3) When a local government does not adopt comprehensive plan or land use regulation amendments as required by subsection (1) of this section, the new or amended goal, rule or statute shall be directly applicable to the local government's land use decisions."

As of the time that petitioner filed his application or, insofar as we are advised, at any time since, the county had not adopted plan and regulatory amendments to implement the 1994 amendment to Goal 11. Consequently, the goal amendment applies directly to the county's land use decisions, including the decision that petitioner challenges here. See Dept. of Land Conservation v. Lincoln County, 144 Or.App. 9, 925 P.2d 135 (1996), rev. den. 324 Or. 560, 931 P.2d 99 (1997).

Petitioner argued to the county and LUBA and, in his first assignment of error, now argues to us, that section 19.20.055(A)(4), at least as applied to proposed developments outside the UGB, is contrary to the amended goal. See note 2. According to petitioner, the county provision requires exactly what Goal 11 forbids. Petitioner explains:

"Goal 11 clearly does prohibit counties from requiring urban services, such as sewer systems, in lands outside UGBs.

" * * * * *

"[Section] 19.20.055(A)(4) requires subdivisions in the * * * zone to have sewer systems. The only way for such subdivisions to have sewer systems is either to build a new sewer system or to extend an existing sewer connection from within the UGB to land outside the UGB. Both of these options are prohibited under Goal 11 as amended. Thus, Goal 11 invalidates Deschutes County's requirement that lands outside the UGB must have sewer before they can be approved for development."

Petitioner continues that, given the asserted invalidity of the sewer requirement in section 19.20.055(A)(4), his proposed subdivision can be approved with individual septic systems on the individual lots instead of the sewer connections that the purportedly invalid provision requires. Petitioner relies on another provision of the county code, which allows "individual disposal systems" in the zone under certain circumstances. Petitioner does not contend that that other provision would be applicable here, or would authorize individual disposal systems on subdivision lots, if section 19.20.055(A)(4) and its express requirement of sewer system connections is valid and can therefore be applied here.

The county hearings officer and LUBA disagreed with petitioner's argument concerning the invalidity of section 19.20.055(A)(4). ¹ LUBA explained:

"There is nothing in the language of Goal 11 to support petitioner's argument that the goal requires the county to allow subdivisions outside the UGB to be connected to individual septic systems. Likewise, there is nothing in the goal that prohibits the county from requiring such subdivisions to be connected to a sewer system. The goal does not prohibit the establishment of sewer systems outside the UGB. Rather, it prohibits what petitioner proposes here: extending sewer systems from within the UGB to areas outside the UGB. Goal 11 does not invalidate [section] 19.20.055(A)(4) or otherwise preclude the county from applying that provision to petitioner's application." (Emphasis supplied.)

Petitioner contends that the emphasized language in that passage from LUBA's opinion is contrary to Goal 11. We agree. The amendment to the goal expressly prohibits counties, inter alia, from permitting the establishment of new sewer systems on land outside UGBs. However, insofar as petitioner suggests that this incorrect statement by LUBA in its opinion can warrant reversal in itself, we disagree. The dispositive issues that are presented to us are matters of law, and we may resolve those issues on review. Whether or not LUBA's reasoning was correct in all of its particulars is not decisive. See Holland v. City of Cannon Beach, 323 Or. 148, 915 P.2d 407 (1996); Reusser v. Washington County, 122 Or.App. 33, 857 P.2d 182, rev. den. 318 Or. 60, 865 P.2d 1296 (1993). ²

Petitioner casts his argument in terms that are usually associated with preemption analysis, e.g., that section 19.20.055(A)(4) is "invalidated" because of its inconsistency with the amendment to Goal 11. Although the practical difference as applied to the question here is minimal or non-existent, we do not think that that characterization is precisely correct. Under ORS 197.175(2)(c) and (d), a local government whose comprehensive plan and land use regulations have not been acknowledged as complying with the statewide planning goals must make land use decisions "in compliance with the goals"; but after the local government's legislation has been acknowledged, as the county's has, its land use decisions are to be made in compliance with its acknowledged plan and regulations, and the goals cease to apply to the decisions directly. See Friends of Neabeack Hill v. City of Philomath, 139 Or.App. 39, 46, 911 P.2d 350, rev. den. 323 Or. 136, 916 P.2d 311 (1996), and authorities there cited. In circumstances where ORS 197.646 is applicable, however, the locality must directly apply an amended goal to its land use decisions, until such time as it has adopted amended legislation that implements the amended goal. However, that does not mean that it cannot or need not also apply its existing acknowledged land use provisions to its decisions insofar as they are consistent with the amended goal.

In this case, we need not delineate the precise relationship between ORS 197.175(2) and ORS 197.646 or, for that matter, the precise differences between the operation of those statutes and traditional preemption concepts; under any of the possible variations, petitioner's argument can succeed only if there is some conflict between Goal 11, as amended, and section 19.20.055(A)(4). In our view, no such conflict exists.

The premise of petitioner's argument is that section 19.20.055(A)(4) is concerned with where the county may permit sewers and sewer facilities to be located. However, that premise is incorrect. The concern of the county provision is, instead, with whether and under what circumstances a subdivision may be approved in the zone in question. Along with the sewer connection requirement that is of immediate concern, section 19.20.055(A) and other related provisions in the county code contain numerous other criteria for the approval of subdivisions, including housing density requirements, lot density standards, and street improvement conditions. Properly viewed, the inquiry under section 19.20.055(A)(4) is whether the sewer facilities that the ordinance makes a prerequisite to the approval of a subdivision are available. If they are not, then, as when any other development application fails to meet mandatory approval standards, the development cannot be allowed.

Petitioner's argument effectively turns the inquiry backward: he starts with the proposition that the subdivision can or must be allowed and, if the required sewer facilities cannot be provided consistently with Goal 11, the subdivision must nevertheless be allowed without them. We disagree with both his formulation of the question and his answer. Contrary to petitioner's essential premise, section 19.20.055(A)(4) does not require sewer...