Landwatch v. Deschutes Cnty., LUBA No. 2020-019

• Decision Date: 22 March 2021
• Docket Number: LUBA No. 2020-019
• Parties: CENTRAL OREGON LANDWATCH, Petitioner, v. DESCHUTES COUNTY, Respondent.
• Court: Oregon Land Use Board of Appeals

CENTRAL OREGON LANDWATCH, Petitioner, v. DESCHUTES COUNTY, Respondent.

LUBA No. 2020-019

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

March 22, 2021

FINAL OPINION AND ORDER

Appeal from Deschutes County.

Carol Macbeth filed the petition for review and reply brief and argued on behalf of petitioner.

D. Adam Smith filed the response brief and argued on behalf of 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.

NATURE OF THE DECISION

Petitioner appeals Ordinance 2020-001, which is a legislative decision by the board of county commissioners that amends the Deschutes County Code (DCC) and Deschutes County Comprehensive Plan (DCCP) to (1) replace references to "churches" with references to "religious institutions or assemblies," (2) remove churches from a list of prohibited uses in the Wildlife Area Combining (WA) overlay zone, (3) allow religious institutions or assemblies as outright permitted uses in several districts within the Urban Unincorporated Community - Sunriver Resort zone, and (4) remove churches as a conditional use and allow religious institutions or assemblies as outright permitted uses in several districts within the Rural Service Center - Unincorporated Community (RSC) zone.

STANDING

The challenged decision is a post-acknowledgment plan amendment (PAPA). Petitioner's statement of standing cites ORS 197.830(2), which requires that the petitioner have "[a]ppeared before the local government * * * orally or in writing."¹ Petitioner appeared orally at four public hearings before the planningcommission and submitted approximately 120 pages of evidence and argument in opposition to the legislative amendments. Those materials were placed before and not rejected by the board of county commissioners and are therefore included in the record in this appeal. Petitioner did not further participate in the legislative proceedings before the board of county commissioners.

In the response brief, the county challenges petitioner's standing, arguing that petitioners' appearance before the planning commission is not sufficient to establish standing under ORS 197.830(2). The county acknowledges that we have held, in a quasi-judicial context, that a petitioner's appearance before the planning commission is adequate to constitute an appearance before the local government for purposes of ORS 197.830(2)(b), and that the petitioner need not have appeared before the governing body that rendered the final decision following a local appeal of the planning commission decision. Thomas v. City of Veneta, 44 Or LUBA 5, aff'd, 189 Or App 88, 74 P3d 114 (2003). The county posits that a legislative decision should have a higher standing requirement because local legislation is informed by public participation, and petitioner should not be allowed to challenge a final decision without having participatedin all stages of the legislative proceeding that resulted in the challenged legislation.

The county presents a novel issue: whether we should interpret the appearance requirement in ORS 197.830(2)(b) more stringently in an appeal of a legislative decision, as compared to an appeal of a quasi-judicial decision. The first problem with the county's position is that it is unsupported by the text of ORS 197.830(2)(b) and ORS 197.620, the latter of which provides additional bases for standing to appeal a PAPA that do not apply in this appeal. It would be unusual, and likely ultra vires, for LUBA to adopt divergent interpretations of the same statutory provision without any textual support within the relevant statute. Moreover, the purpose of the appearance requirement is the same in the legislative context as in the quasi-judicial context.

In Warren v. Lane County, the petitioners had testified before the planning commission, but they did not testify in subsequent proceedings before the board of county commissioners. 297 Or 290, 297, 686 P2d 316 (1984). The Supreme Court concluded that the petitioners had "appeared" for purposes of ORS 197.830. The court explained that the legislature prescribed the appearance requirement in order to prevent persons from doing nothing until after a land use decision has been made, and then appealing that decision. "The legislature required that in order to appeal, persons must first get involved and offer their views at the local level." Id. The court reasoned that appearing before whatever hearing body is delegated responsibility to gather evidence and makerecommendations to the governing body furthers the legislative policy of involving people and hearing their views at the local level.

The county argues that, under the DCC, the planning commission is authorized to review legislative decisions but not make recommendations to the board of county commissioners. DCC 22.12.010.² Whether that distinction—reviewing versus making recommendations—accurately reflects the planning commission's function under the DCC is immaterial to petitioner's standing, which is a matter of state law. The legislative purpose of the appearance requirement reflected in the court's decision in Warren is not based on the delegated decisional authority of the hearing body. Instead, where the hearing body creates a record that is presented to the final decision maker, an appearance before that hearing body is sufficient to confer standing to appeal to LUBA. The court explained:

"[W]here the local governing body bases its land use decision, in whole or in part, on the record obtained in a prior proceeding before a planning commission, hearings officer, or other approval authority, whichever is delegated responsibility to gather evidence and make land use decisions or recommendations to the local governing body, then an appearance on the record before that authority is an appearance before the local governing body. The test is not, of course, whether the local governing body actually considers or is persuaded by the record made below, but onlywhether local ordinances require that a record in the prior stage of the local proceeding be made and forwarded to the local governing body for consideration." Id. at 297-98.

Similarly, in Conte v. City of Eugene, the Court of Appeals explained that the "appeared" standard requires "the kind of involvement necessary to facilitate full development of the record and fairness to the parties and the tribunal." 292 Or App 625, 637, 425 P3d 494 (2018).

The county does not dispute that the planning commission record is part of the record before the board of county commissioners. Petitioner's involvement before the planning commission facilitated the full development of the record and is sufficient to constitute an appearance under ORS 197.830(2)(b). Petitioner has standing in this appeal.

MOTION TO STRIKE

Petitioner attaches a copy of Ordinance 92-041 as an appendix to the petition for review. The county moves to strike Ordinance 92-041, and all references to it in petitioner's briefing, because Ordinance 92-041 is not in the record and petitioner did not request that we take official notice of it.

Ordinance 92-041 is the ordinance by which the county adopted its initial Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) inventories; conflicting use analyses; Economic, Social, Environmental and Energy (ESEE) analyses; and Goal 5 programs in 1992. DCCP section 2.4 provides:

"Deschutes County completed Goal 5 inventories and the ESEEanalysis during Periodic Review, a State process for updating comprehensive plans which lasted from 1988-2003. The County Goal 5 inventories and programs were acknowledged by the Department of Land Conservation and Development as being in compliance with Goal 5. Therefore, the acknowledged Goal 5 inventories, ESEEs and programs are retained in this Plan * * *."

Petitioner responds that Ordinance 92-041 is part of the DCCP and points out that, under ORS 40.090(7), LUBA may take official notice of an "ordinance, comprehensive plan or enactment of any county or incorporated city in this state, or a right derived therefrom."

LUBA routinely takes official notice of local government comprehensive plans and land use regulations. McNamara v. Union County, 28 Or LUBA 722 (1994). We take official notice of Ordinance 92-041 as part of the DCCP. However, we agree with the county that petitioner impermissibly relies on Ordinance 92-041 to establish geographic and scientific facts and legislative history. We do not have authority to take official notice of adjudicative facts or local legislative history. Citizens for Renewables v. Coos County, ___ Or LUBA ___, ___ (LUBA No 2020-003, Feb 11, 2021) (slip op at 52); Martin v. City of Central Point, 73 Or LUBA 422, 426 (2016). Accordingly, we will not consider Ordinance 92-041 for those purposes.

BACKGROUND

The challenged decision is an independent legislative decision. However, other appellate decisions provide helpful background and context for the challenged decision, so we describe them at the outset. In Central OregonLandwatch v. Deschutes County, 77 Or LUBA 395 (COLW I), aff'd, 294 Or App 317, 431 P3d 457 (COLW II) (2018), we remanded the county's amendments to the DCC and DCCP to allow churches in the WA overlay zone. We explained:

"In 1992, during periodic review, the county adopted the WA overlay zone to fulfill its obligations under Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Space) with respect to significant wildlife resources.¹ The WA overlay zone is intended to conserve all important wildlife areas identified in the [DCCP] as a deer winter range, significant elk habitat, antelope range or deer migration corridor. [DCC] 18.88 sets out the regulations that govern uses in areas subject to the WA overlay zone. DCC 18.88.040(A) provides that the uses permitted conditionally by the

...