Lane County v. Land Conservation and Development Com'n

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before CARSON; GILLETTE
• Citation: Lane County v. Land Conservation and Development Com'n, 942 P.2d 278, 325 Or. 569 (Or. 1997)
• Decision Date: 07 August 1997
• Parties: LANE COUNTY, Respondent on Review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, Petitioner on Review, and 1000 Friends of Oregon, Petitioner on Review. CA A83932; SC S43440, S43441.

Page 278

942 P.2d 278

325 Or. 569

LANE COUNTY, Respondent on Review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, Petitioner on Review and 1000 Friends of Oregon, Petitioner on Review.

CA A83932; SC S43440, S43441.

Supreme Court of Oregon.

Argued and Submitted May 1, 1997.

Decided Aug. 7, 1997.

F. Blair Batson, Portland, argued the cause and filed the brief for petitioner on review 1000 Friends of Oregon.

Stephanie L. Striffler, Assistant Attorney General, Salem, argued the cause for petitioner on review Land Conservation and Development Commission. With her on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

David B. Williams, Office of Legal Counsel, Lane County, Eugene, argued the cause and filed the brief for respondent on review.

Lawrence Watters and Bart Brush, Portland, filed a brief for amicus curiae Northwest Environmental Defense Center.

Frederick A. Batson, of Gleaves Swearingen Larsen Potter Scott & Smith L.L.P., Eugene, filed a brief for amici curiae Raymond Sims Baum, Robert Repine, and William and Bonnie Thielman.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^*

GILLETTE, Justice.

In this administrative law case, the Land Conservation and Development Commission (LCDC) and 1000 Friends of Oregon seek review of a Court of Appeals' decision that invalidated certain LCDC rules on the ground that they are inconsistent with a statute, ORS 215.213, and, therefore, that LCDC exceeded its statutory authority by promulgating them. Lane County v. LCDC, 138 Or.App. 635, 910 P.2d 414, modified on recons 140 Or.App. 368, 914 P.2d 1114 (1996). We conclude that LCDC's rules are not inconsistent with that statute in any manner argued to the Court of Appeals. Accordingly, we reverse the decision of the Court of Appeals and uphold the challenged rules.

LCDC adopted the challenged rules to protect agricultural land that qualifies by soil type as "high value farmland," the state's most productive farmland. ¹ The rules restrict or prohibit certain uses on high value farmland if it is located within an area zoned for "exclusive farm use" (EFU). ORS 215.213 provides that those same uses "may be established" on EFU land. This case concerns whether there is a conflict between the LCDC rules and the statues in that set of circumstances, requiring that the rules be invalidated.

Resolving the question whether LCDC exceeded the scope of its statutory authority in promulgating the regulations requires us to determine how the legislature intended two separate chapters of the Oregon Revised Statutes--ORS chapters 197 and 215--to interact. To that end, some background discussion of those chapters is helpful.

In ORS chapter 197, the legislature, concerned with problems resulting from "uncoordinated land use," created LCDC to ensure a "systematic decisional [land use] process based on consideration of all relevant facts, affected interests and public policies." 1000 Friends of Oregon v. Wasco County Court, 299 Or. 344, 347, 703 P.2d 207 (1985); ORS 197.005. The legislature directed LCDC to adopt by rule or by goal any statewide land use policies that it considered necessary to carry out the laws that it was responsible for administering, ORS 197.040(1)(c)(a), and to adopt "goals and guidelines for use by state agencies, local governments and special districts in preparing, adopting, amending and implementing * * * comprehensive plans." ORS 197.225; see also ORS 197.240 and 197.245 (setting forth a hearing process for consideration, adoption and amendment of goals). The legislature directed LCDC, in preparing, adopting, and amending goals and guidelines, to "[g]ive consideration" to multiple "areas and activities," including agricultural land. ORS 197.230(1)(c)(J). ²

Pursuant to its mandate, LCDC adopted a total of 19 statewide planning goals, with implementing guidelines, that serve as the standards governing land use planning in Oregon. Among those goals is Goal 3, OAR 660-15-000(3), which specifically is directed at preserving and maintaining agricultural lands. As originally worded, that goal recognized only one class of agricultural land and required that all agricultural land use be regulated through the designation of areas zoned for exclusive farm use (EFU). Statewide Land Use Planning Goal 3 (1975).

We turn now to ORS chapter 215, the other chapter of the statutes that is pertinent to our inquiry. While ORS chapter 197 establishes a general, statewide, comprehensive land use framework and sets up an administrative agency to administer it, ORS chapter 215 deals with the authority of counties to zone land. That authority of the counties to zone is subordinate to, inter alia, the statewide land use planning goals. See, e.g., ORS 197.175(2) (counties must prepare comprehensive land use plans in compliance with goals); ORS 215.050 (county adoption of comprehensive plan, together with zoning ordinances to implement plan); ORS 215.203(1) (authorizing creation of EFU zones "when such zoning is consistent with the [county's] comprehensive plan").

In 1983, ORS chapter 215 was amended by the adoption of so-called "marginal lands" legislation, which authorized counties to designate certain lands located within EFU zones as "marginal" and to regulate uses in such areas under relaxed statutory criteria. 1983 Or.Laws ch. 826, § 3. ³ Two counties, Lane and Washington, elected to participate in the marginal lands program. ORS 215.213, one of the statutes at issue in this case, allows those "marginal lands counties" to permit the establishment of a certain range of "non-farm" uses, such as schools and farm dwellings, within EFU zones. ORS 215.213(1). Subsection (2) of that statute contains a list of uses that "may be established" in EFU zones "subject to ORS 215.296." ORS 215.296 in turn provides that counties may allow certain uses based on locally adopted criteria.

In 1992, after years of analysis of uses that historically had been approved in EFU zones, LCDC concluded that the use of EFU zones was not protecting agricultural land adequately. Accordingly, pursuant to its authority under ORS chapter 197, LCDC amended Goal 3 to eliminate the requirement that all agricultural land be regulated through EFU designation. In place of EFU zones, LCDC created three new categories of agricultural land--"small scale resource land," "important farmland," and "high value farmland"--and provided for varying levels of regulation as to the uses allowed for each category. LCDC also adopted administrative rules consistent with amended Goal 3, establishing the procedure for designating agricultural land in each of the three categories and identifying the uses that would be permitted on each category of land.

Although the amended Goal 3 and its implementing rules continued to recognize Lane and Washington County's authority to designate and regulate marginal lands, the goal and rules also allowed those two marginal lands counties to designate their marginal lands as "small scale resource land," as that term was used in amended Goal 3, without undergoing the justification process for such a designation that was applicable to all other counties. Proposed OAR 660-33-040(2)(e) (1992). The two counties then could avail themselves of the more lenient land use regulations applicable to small scale resource land See proposed OAR 660-33-040(2) (1992) (so providing). If either county elected to follow that course, however, it would be forced to implement the requirements for "high value" and "important" farmland, proposed OAR 660-33-050(1)(b) (1992), and to withdraw from the marginal lands program proposed OAR 660-33-150(2) (1992). The rules implementing amended Goal 3 were scheduled to go into effect in August 1993. Proposed OAR 660-33-160(1) (1992).

The amended goal and rules proved to be controversial and, before the new rules could become effective, the legislature intervened by enacting House Bill 3661 (1993 Or.Laws, ch. 792). That enactment had four major effects. First, it abolished two of the three new categories of agricultural land, small-scale resource land and important farmland, and recognized only "high value farmland." ORS 215.304(1); ORS 215.700 et seq. ⁴ The enactment required LCDC to amend its rules to conform to the new legislation, ORS 215.304(2), and provided that all regulations "inconsistent" with the 1983 marginal lands laws or the new statutory provisions pertaining to high value farmland "shall not be implemented or enforced" and shall have "no legal effect." ORS 215.304(3). Second, the enactment authorized LCDC to review comprehensive plans for conformity with the amended goals and regulatory requirements related to high value farmland. ORS 197.045(6). Third, it established "lot of record" provisions, i.e., grandparent provisions allowing local governments to permit persons to build dwellings on certain agricultural and forest land if, among other things, the parcel was owned by the current owner by January 1, 1985. ORS 215.705. Finally, the enactment discontinued the marginal lands program, although it allowed those counties that already had elected to become marginal lands counties to continue as such if they did not opt to use the new "lot of record" provisions. ORS 215.316.

After the 1993 legislation was enacted, LCDC amended Goal 3 and its regulations once again, deleting all references to "small-scale resource land" and "important farmland," but recognizing and defining the category of "high value farmland." See generally OAR chapter 660, division 33 (1994) (containing the pertinent rules). The 1994 Goal 3 and implementing regulations allow the marginal lands counties to continue to designate lands as marginal lands, unless they avail themselves of the "lot of record" provisions of ORS 215.705 to 215.750. OAR 660-33-020(8)(h). In addition, all counties, including the marginal lands counties, may continue to...