Mark Latham Excavation, Inc. v. Deschutes Cnty.

• Citation: 281 P.3d 644,250 Or.App. 543
• Decision Date: 20 June 2012
• Docket Number: A150685 (Control), A150693.,2011078
• Parties: MARK LATHAM EXCAVATION, INC., Respondent, v. DESCHUTES COUNTY, Eric Hoffman, Ronna Hoffman, Sanders Nye, and Cascades Academy of Central Oregon, Petitioners, and Oregon Parks and Recreation Department and Danielle Nye, Intervenors–Respondents below.
• Court: Court of Appeals of Oregon

250 Or.App. 543

281 P.3d 644

MARK LATHAM EXCAVATION, INC., Respondent,

v. DESCHUTES COUNTY, Eric Hoffman, Ronna Hoffman, Sanders Nye, and Cascades Academy of Central Oregon, Petitioners,andOregon Parks and Recreation Department and Danielle Nye, Intervenors–Respondents below.

2011078; A150685 (Control), A150693.

Court of Appeals of Oregon.

Argued and Submitted April 4, 2012.

Decided June 20, 2012.

Laurie E. Craghead argued the cause for petitioners and filed the brief for petitioner Deschutes County. With her on the brief were Paul D. Dewey for petitioners Eric Hoffman and Ronna Hoffman, and Michael H. McGean for petitioners Sanders Nye and Cascades Academy of Central Oregon.

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

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

Deschutes County, Eric and Ronna Hoffman, Sanders Nye, and Cascades Academy of Central Oregon (collectively, respondents) seek judicial review of a final opinion and order of the Land Use Board of Appeals (LUBA), in which LUBA remanded a land use decision of Deschutes County.¹ The county's decision granted petitioner, Mark Latham Excavation, Inc., site plan and conditional use approval to expand an existing mining operation but imposed a condition of approval that prohibited further mining of a headwall ² until a post-acknowledgement plan amendment is submitted and approved for that use. In remanding, LUBA sustained petitioner's objection to that condition and rejected the county's underlying determinations: that the county's Program to Meet the Goal (PTMG)—a legislative enactment to accomplish statewide land use goals—was ambiguous and that the county would have enacted a different PTMG had it known the headwall on the subject property would be extensively mined, as petitioner plans. For the reasons stated below, we reverse and remand LUBA's decision.

The 80–acre property subject to this dispute is just north of Bend, approximately one mile southwest of Tumalo State Park, and 500 feet west of the Deschutes River. In 1995, the county granted the prior owner of the property, Cascade Pumice, a permit to mine pumice until 2007, when petitioners purchased the property. Petitioners sought a conditional use permit to expand the mining operation to include, among other things, mining 3.4 million cubic yards of tuff and further mining into the side of a prominent hill situated along the south side of the site.

Before we discuss the specifics of the county's decision approving the application, we pause to give a brief overview of the county's Goal 5 planning history, which is pertinent to the county's decision, LUBA's opinion, and the parties' arguments. Goal 5 is a statewide planning goal enacted to “protect natural resources and conserve scenic, historic, and open space resources.” Goal 5; seeOAR 660–015–0000(5). As specified in 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. Second, local governments must identify conflicts with the inventoried Goal 5 resource sites and determine the “Economic, Social, Environmental and Energy” (ESEE) consequences of allowing conflicting uses for those sites.³OAR 660–016–0005(1). Finally, based on the determination of the ESEE consequences, the local government must develop a “program to achieve the Goal.” OAR 660–016–0010. When enacting a “program to achieve the Goal,” the local government has three options. It can completely protect the resource, allow conflicting uses fully, or allow the conflicting use but in a limited way so as to protect the resource site. OAR 660–016–0010(1)–(3).

In 1990, the county enacted a series of ordinances to comply with its Goal 5 planning obligation for mineral and aggregate resources. The county enacted Deschutes County Ordinance (DCO) 90–025, which adopted an inventory of significant mineral and aggregate sites, including petitioner's site. The county also enacted DCO 90–029, an ordinance that adopted the “ESEE Findings and Decision” (ESEE decision) for petitioner's site. The ESEE decision addressed each of the three steps required by OAR chapter 660, division 16: an inventory of resources on the site, an analysis of conflicting uses, and the county's program to meet the goal.

As for resources on the site, petitioner's predecessor, Cascade Pumice, represented to the county that less than 25 acres of the site would actually be mined. The ESEE decision for petitioner's site identified 750,000 cubic yards of pumice and 10,000 cubic yards of sand and gravel to be mined, but did not identify tuff, a type of volcanic rock, as a resource. The ESEE decision then identified conflicting uses and discussed the ESEE consequences of the conflicting uses. At the end of the discussion, the county elected to adopt a “Program to Meet the Goal” under OAR 660–016–0010(3) to limit both the extraction of the resource and the conflicting uses. Pertinent to this appeal is paragraph 23 of the PTMG, which provides:

“The Board finds that in order to protect both the aggregate resource and the conflicting resources and uses, the site * * * will be zoned for surface mining, subject to the following ESEE conditions:

“(a) Setbacks shall be required for potential conflicting residential and other development;

“(b) Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries;

“(c) Hours of operation shall be consistent with DEQ standards and applicable county ordinances;

“(d) Wildlife restrictions set forth in [Oregon Department of Fish and Wildlife]'s letter of August 10, 1989, shall apply;

“(e) Excavation shall be limited to five acres with ongoing incremental reclamation (subject to [Department of Geology and Mineral Industries] review and approval);

“(f) Mining operations, including placement of processing operations and equipment and excavation and transport of material shall meet all applicable DEQ noise and dust standards.

“The Board finds that processing on site will be allowed.”

Thus, in its PTMG, the county determined that it would apply the surface mining zone to the site. That zone imposes a number of limitations or requirements on mining to reduce off-site impacts, including setbacks, screening, and noise and operational limitations. Other than limiting the excavation site to five acres, the PTMG did not restrict where petitioner could mine, and it did not mention the hillside.

With the above background in mind, we turn to the facts that led up to this judicial review. Petitioner purchased the subject property from Cascade Pumice in 2007 and submitted an application to the county to expand mining operations into the hillside. A portion of the northwestern slope of the hill has already been mined. The application also sought to mine and export both pumice and tuff. Approval of petitioner's application would ultimately result in a more pronounced headwall, both in height and length. The existing headwall is visible from the Tumalo State Park campground and associated trails.

In 2009, the county granted a conditional use permit that, among other things, allowed petitioner to mine further into the hillside for tuff as incidental to mining for pumice, the inventoried resource. Two of the respondents in this appeal, Eric and Ronna Hoffman, appealed to LUBA. In 2010, LUBA determined that the county did not adequately explain its reasons for allowing the mining of tuff, and remanded the county's decision. Hoffman v. Deschutes County, 61 Or LUBA 173 (2010).

In finding that the county's explanation of its decision that tuff was incidental to pumice mining was insufficiently clear, LUBA noted that petitioner sought to mine approximately 3.4 million cubic yards of tuff and only 700,000 cubic yards of pumice. That fact and the lack of an explanation of the potential impact of mining and removing the tuff led LUBA to question whether tuff mining was merely incidental to pumice mining. In addition, LUBA held that when a different, non-inventoried mineral resource is later discovered at a subject site, and that resource is not identified in the ESEE analysis as a significant mineral resource, the county can extend Goal 5 protection to that resource by requiring a new ESEE analysis. The county can only require a new ESEE analysis if that non-inventoried mineral is not “incidental” to mining an inventoried Goal 5–protected resource. LUBA stated that the test to determine whether mining for a new mineral resource is incidental to mining for the inventoried resource depends on whether the local government would have enacted the same PTMG had the local government known about the new mineral resource at the time the ESEE analysis and PTMG were adopted.

In 2011, on remand from LUBA, the county first determined that mining tuff was not incidental to mining pumice because, had the county known about the volume of tuff in the headwall in 1990 when it enacted the Goal 5 ordinances, its ESEE decision and PTMG would have been different. As a result, the county determined that an amended ESEE analysis is required to evaluate petitioner's proposed mining of tuff on its site. The county also determined that the county in 1990 would have reached a different conclusion in its PTMG had it analyzed mining of the headwall. The county therefore approved petitioner's application with a condition of approval, Condition 20, which states that “[f]urther mining of the headwall is prohibited unless and until a Post Acknowledgement Plan Amendment is submitted and approved for that use.”

Petitioner appealed to LUBA, challenging both the decision that an amended ESEE analysis is required and the imposition of Condition 20. Petitioner argued, among other things, that the PTMG permitted petitioner to mine...