Hatley v. Umatilla Cnty.

• Decision Date: 03 April 2013
• Docket Number: 2012030,2012018,2012017,A152777.
• Citation: 301 P.3d 920,256 Or.App. 91
• Parties: Jim HATLEY, Petitioner, v. UMATILLA COUNTY, Respondent, and Blue Mountain Alliance, Dave Price, and Richard Jolly, Intervenors–Respondents below.
• Court: Oregon Court of Appeals

256 Or.App. 91

301 P.3d 920

Jim HATLEY, Petitioner,

v. UMATILLA COUNTY, Respondent,andBlue Mountain Alliance, Dave Price, and Richard Jolly, Intervenors–Respondents below.

2012017, 2012018, 2012030; A152777.

Court of Appeals of Oregon.

Argued and Submitted Jan. 3, 2013.

Decided April 3, 2013.

Bruce W. White, Bend, argued the cause and filed the brief for petitioner.

Michael C. Robinson, Portland, argued the cause for respondent. With him on the brief were Corinne S. Celko and Perkins Coie LLP.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

NAKAMOTO, J.

Petitioner seeks judicial review of a final order of the Land Use Board of Appeals (LUBA), in which LUBA affirmed Umatilla County's (the county) enactment of two ordinances, Ordinances 2012–04 and 2012–05.¹ Those ordinances, which affect conditional uses of petitioner's property, were adopted in response to LUBA's remand in Cosner v. Umatilla County, ––– Or. LUBA –––– (LUBA Nos. 2011–070, 2011–071, 2011–072, Jan. 12, 2012), an earlier case in which petitioner participated. On appeal, petitioner advances two assignments of error. First, petitioner argues that LUBA erred in determining that, in Ordinance 2012–05, the county's protections of threatened and endangered fish and its restrictions on development of Wind Power Generation Facilities (WPGFs) on highly erodible soils did not require the application of Goal 5, a statewide land use planning goal. Second, petitioner contends that LUBA erred in determining that his challenge to the two-mile setback requirement for WPGFs in Ordinance 2012–04 was foreclosed on the basis of invited error or, in the alternative, waiver. For the reasons stated below, we affirm in part and reverse in part.

Petitioner owns 1,926 acres of undeveloped property in an exclusive farm use (EFU) zone in the Walla Walla River Sub-basin of Umatilla County. His property is subject to a lease for development of WPGFs. His property has flat ridge tops that are surrounded by slopes and drained by tributaries in the Walla Walla River Sub-basin. The sloped areas are likely to fall within the county's classification of “highly erodible soils.”

To provide context for one of the issues on review, we begin by giving a brief overview of the requirements of Goal 5 and Goal 5's applicability to a post-acknowledgment plan amendment (PAPA).² Goal 5 is a statewide land use planning goal to protect natural resources and conserve scenic, historic, and open space resources. OAR 660–015–0000(5). Pursuant to OAR chapter 660, division 16, local governments must conduct three tasks to comply with Goal 5. First, local governments must inventory key resource sites. OAR 660–016–0000. Then, local governments must identify conflicting uses with the inventoried Goal 5 resource sites and determine the “economic, social, environmental and energy” (ESEE) consequences of allowing those conflicting uses for those resource sites. OAR 660–016–0005(1). Last, based on its determination of the ESEE consequences, the local government must develop a “program to achieve the Goal.” OAR 660–016–0010.

Local governments are not required to comply with Goal 5 when considering a PAPA unless the PAPA “affects a Goal 5 resource.” According to OAR 660–023–0250(3), there are three ways a PAPA can affect a Goal 5 resource:

“(a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5;

“(b) The PAPA allows new uses that could be conflicting uses with a particular Goal 5 resource site on an acknowledged resource list; or

“(c) The PAPA amends an acknowledged [Urban Growth Boundary] and factual information is submitted demonstrating that a resource site, or the impact areas of such a site, is included in the amended [Urban Growth Boundary] area.”

In this case, petitioner's dispute with the county began in 2011, when the county adopted an ordinance that, in petitioner's view, was a PAPA that the county had adopted without complying with Goal 5, as required by OAR 660–023–0250(3). In 2011, the county adopted Ordinances 2011–05 to 2011–07, which amended the county's conditional use standards and added new restrictions to WPGFs in EFU zones. In Cosner, petitioner intervened in an appeal to LUBA, challenging all three of the county's 2011 ordinances. Petitioner contended that one of them, Ordinance 2011–07, was a PAPA because the county added section 11 to Umatilla County Development Code (UCDC) 152.616(HHH) to provide additional standards for WPGFs in the Walla Walla watershed. Ordinance 2011–07 provided, in part:

“(11) Walla Walla Watershed.

“Lands located within the Walla Walla Sub-basin East of Highway 11 shall be subject to additional standards. The purpose of these criteria is to prevent impacts to the following: inventoried Goal 5 resources, highly erodible soils (as defined by the Oregon Department of Agriculture), federally listed threatened and endangered species, and the Critical Winter Range. The standards are also designed to protect sensitive streams and to be consistent with the Clean Water Act.

“(A) There shall be no construction of project components, including wind turbines, transmission lines and access roads on soils identified as highly erodible. The highly erodible soils are those soils identified by the Oregon Department of Agriculture as highly erodible.

“(B) The application shall demonstrate that the [WPGF] and its components, wind turbines, transmission lines, and roads, will not conflict with existing significant Goal 5 Resources within the Walla Walla Sub-basin.

“(C) The application shall demonstrate that the [WPGF] and its components will be setback a minimum of two miles from streams and tributaries that contain Federallylisted threatened and endangered species, and, that the project will generate no runoff or siltation into the streams.

“(D) The application shall demonstrate that the [WPGF] and its components will not be located within the Critical Winter Range.”

(Underscoring omitted.) Petitioner contended that, because Ordinance 2011–07 amended the county's land use regulations for WPGFs on EFU zones and affected Goal 5 inventoried resources, the county was required to comply with Goal 5's inventory and conflicting use ESEE analysis requirements.

The two other ordinances petitioner challenged, Ordinances 2011–05 and 2011–06, did not affect Goal 5 inventoried resources and instead concerned setbacks for WPGFs. Petitioner's challenge to those ordinances focused on their constitutionality. The county's previous conditional use standard in section 6 of UCDC 152.616(HHH) required WPGFs to be set back a minimum of 3,520 feet from property zoned for residential use. In Ordinance 2011–05, the county significantly changed the setback requirement by imposing a two-mile setback from any urban growth boundary, with the possibility of a waiver if the city council of the affected city authorized a lesser setback. Similarly, Ordinance 2011–06 imposed a two-mile setback from any rural residence, but allowed a waiver if the affected land owner recorded a written waiver allowing a lesser setback. Petitioner contended in Cosner that, by allowing city councils or private landowners to “waive” the setbacks requirements, those two ordinances were an unlawful delegation of legislative authority.

Petitioner's challenges were successful. In Cosner, LUBA remanded the 2011 ordinances that amended sections 6 and 11 of UCDC 152.616(HHH) for the county to address three problems. First, LUBA remanded Ordinances 2011–05 and 2011–06 because the two-mile setback waiver provisions in each ordinance violated the delegation clause of Article I, section 21, of the Oregon Constitution. Second, LUBA concluded that, under Ordinance 2011–07, the county had amended the program to achieve Goal 5 by adopting additional measures to protect Goal 5 inventory resources without complying with Goal 5, as required by OAR 660–023–0250(3). LUBA remanded Ordinance 2011–07 for the county to address the requirements of Goal 5, i.e., to conduct the inventory and ESEE analysis described in OAR 660–023–0040(2) to (5) and to adopt the appropriate findings. Lastly, LUBA remanded for the county to address whether all three ordinances were consistent with several county comprehensive plan policies regarding energy.

On remand, the county addressed the problems identified in Cosner by passing two new ordinances in 2012 that are relevant to the issues on review. In Ordinance 2012–04, the county imposed an absolute two-mile setback from urban growth boundaries on rural residences, deleting the two waiver provisions that LUBA had found were unconstitutional in Cosner.³

In Ordinance 2012–05, the county sought to avoid the applicability of Goal 5 by deleting any express references to Goal 5 resources from section 11 of UCDC 152.616(HHH).⁴ In the county's findings for Ordinance 2012–05, the county stated that “it does not wish to amend its Goal 5 program and will adopt Section 11 on remand by striking subsections (B) and (D) in their entirety.” Subsections (B) and (D) required that an applicant demonstrate that the WPGF would not conflict with “existing Goal 5 Resources” and would not “be located within the Critical Winter Range,” a specific inventoried Goal 5 resource in the county's comprehensive plan (the plan). At the same time, the county also deleted parts of section 11 that identified the purpose of the regulation as preventing “impacts” to “inventoried Goal 5 resources” and “the Critical Winter Range.” The county did not alter remaining subsections of section 11 related to the impacts of WPGFs on highly erodible soils and federally listed threatened and endangered species.

Petitioner appealed the county's decision adopting the 2012 ordinances to LUBA, challenging the amendments to section 6 and section 11 of UCDC 152.616(HHH). Petitioner...