Gutoski v. Lane County

• Decision Date: 05 August 1998
• Docket Number: No. 97-194,97-194
• Citation: 963 P.2d 145,155 Or.App. 369
• Parties: Peter GUTOSKI and Judy Gutoski, Petitioners, v. LANE COUNTY and Don Stapleton, Respondents. LUBA; CA A101684.
• Court: Oregon Court of Appeals

Page 145

963 P.2d 145

155 Or.App. 369

Peter GUTOSKI and Judy Gutoski, Petitioners, v. LANE COUNTY and Don Stapleton, Respondents.

LUBA No. 97-194; CA A101684.

Court of Appeals of Oregon.

Argued and Submitted June 24, 1998.

Decided Aug. 5, 1998.

Bill Kloos, Eugene, argued the cause for petitioners. With him on the brief was Johnson, Kloos & Sherton, P.C.

Stephen L. Vorhes, Eugene, argued the cause for respondent Lane County. With him on the brief was Lane County Office of Legal Counsel.

Laurence E. Thorp, Springfield, argued the cause for respondent Don Stapleton. With him on the brief was Thorp, Purdy, Jewett, Urness & Wilkinson, P.C.

Before De MUNIZ, P.J., and HASELTON and LINDER, JJ.

De MUNIZ, Presiding Judge.

Lane County granted respondent Stapleton's application to rezone his property from a lower to a higher density rural residential designation to enable him to add a second residence on the parcel. Petitioners operate an orchard on their adjacent land in an agricultural zone. They appealed the county's decision to LUBA and, in turn, to us. In Gutoski v. Lane County, 141 Or.App. 265, 917 P.2d 1048, rev. den. 324 Or. 18, 920 P.2d 551 (1996), we held that the county had erred by not applying Goal 3, policy 8 of its comprehensive plan (policy 8) to the application, and we directed that the decision be remanded to the county. Policy 8 requires that the county

"[p]rovide maximum protection to agricultural activities by minimizing activities, particularly residential, that conflict with such use. Whenever possible, planning goals, policies and regulations should be interpreted in favor of agricultural activities."

On remand, a county hearings official conducted an evidentiary hearing and subsequently entered an order that again granted the application. As explained by LUBA, the hearings official's order "interpreted Policy 8 to permit a conflicting residential use as long as it did not force a significant change in or significantly increase the cost of accepted farming practices on petitioners' farm." Petitioners appealed to the county's governing body, which "affirmed and adopted" the hearings official's interpretation "as its own." Petitioners then appealed to LUBA, which affirmed, and they now again seek our review. We also affirm.

Petitioners make four assignments of error. One, their fourth, requires no discussion. In their first assignment, they argue that the county's interpretation of policy 8 was contrary to our interpretation of it in the prior review and is, therefore, precluded under the "law of the case" doctrine. We disagree. Our discussion and holding in Gutoski went only to the question of whether the policy is applicable. We did not foreclose the county from interpreting the provision on remand with respect to how it applies generally or to the present application. We find nothing in the county's interpretation that is inconsistent with our earlier opinion. Petitioners also assert, in their second assignment, that the county's interpretation is contrary to the express language of policy 8 and related plan provisions and is therefore subject to reversal under ORS 197.829(1)(a). We again disagree. The interpretation is not "clearly wrong." ¹ See, e.g., Goose Hollow Foothills League v. City of Portland, 117 Or.App. 211, 843 P.2d 992 (1992).

The assignment that calls for more extensive discussion is petitioners' third. They contend in it that LUBA was incorrect in holding that the hearings official did not err by refusing to reopen the evidentiary hearing after he announced his interpretation of policy 8 to enable petitioners to present "evidence and argument relevant to the standard as interpreted." Petitioners' essential premise is that they could not have known before the hearings official's interpretation what the county would treat policy 8 as meaning and therefore could not have presented evidence responsive to the interpreted standard at the hearing that preceded the issuance of the hearings official's interpretation.

LUBA rejected that argument. It explained:

"According to petitioners, the focus of evidence and argument [before the interpretation was issued] was the external impacts of farming operations on the subject property rather than any changes or increased costs to those farming operations from the proposed use.

"We acknowledged in Heceta Water District v. Lane County, 24 Or LUBA 402 (1993), that the local government may be required to reopen the evidentiary hearing where the local government (1) changes to a significant degree an established interpretation of an approved standard, (2) the change makes relevant a different type of evidence that was irrelevant under the old interpretation, and (3) the party seeking to submit evidence responsive to the new interpretation identifies what evidence not already in the record it seeks to submit. See 24 Or LUBA at 418-19.

"In the present case, petitioners do not argue that the county has changed an established interpretation, nor do they identify what responsive evidence not already in the record they seek to submit. As the county and intervenor point out, the meaning of Policy 8 was an intensely debated issue in both proceedings below. Where the interpretation of a local provision is a matter of first impression for the local government, the participants should have realized that a variety of interpretations might be adopted, and should have presented their evidence accordingly. Wicks v. City of Reedsport, 29 Or. LUBA 8, 19 (1995). In fact, it appears that petitioners did submit evidence relevant to the impacts of residential development on their farming operations, in the form of the prior lawsuit and testimony about the changes and costs resulting therefrom. Petitioners do not identify what other type of evidence they would submit in another evidentiary hearing. For these reasons, we conclude that the county did not commit a procedural error in refusing to reopen the evidentiary record."

Generally, as in the trial court and the agency setting, interrelated questions of fact and law are "tried" and decided simultaneously in the local land use hearing process. From the standpoint of both litigants and decisionmakers, questions of fact and of law can have reciprocal effects on the answers to one another, and the ability to deal with the two as part of the same exercise is an essential tool of the advocate's craft. Hence, what petitioners appear to perceive as a chicken-and-egg problem that is somehow unique to this case is, in our view, simply a variation of a standard practice in which lawyers and judges have been engaging for centuries.

We nevertheless agree with LUBA that, in certain limited situations, the parties to a local land use proceeding should be afforded an opportunity to present additional evidence and/or argument responsive to the decisionmaker's interpretations of local legislation and that the local body's failure to provide such an opportunity when it is called for can be reversible error. See Martini v. OLCC, 110 Or.App. 508, 823 P.2d 1015 (1992). We also agree with LUBA, however, that at least two conditions must exist before it or we may consider reversing a land use decision on that basis. First, the interpretation that is made after the conclusion of the initial evidentiary hearing must either significantly change an existing interpretation or, for other reasons, be beyond the range of interpretations that the parties could reasonably have anticipated at the time of their evidentiary presentations. ² Second, the party seeking reversal must demonstrate to LUBA that it can...