Oregon City Leasing, Inc. v. Columbia County

• Citation: 854 P.2d 495,121 Or.App. 173
• Parties: OREGON CITY LEASING, INC., dba Lone Star Northwest, Petitioner, v. COLUMBIA COUNTY, Respondent. 92-193; CA A79199.
• Decision Date: 16 June 1993
• Court: Court of Appeals of Oregon

Page 495

854 P.2d 495

121 Or.App. 173

OREGON CITY LEASING, INC., dba Lone Star Northwest, Petitioner, v. COLUMBIA COUNTY, Respondent.

92-193; CA A79199.

Court of Appeals of Oregon.

Argued and Submitted May 14, 1993.

Decided June 16, 1993.

Steven W. Abel, Portland, argued the cause for petitioner. On the brief were Mildred J. Carmack and Schwabe, Williamson & Wyatt, Portland.

Michael J. Lilly, Portland, argued the cause for respondent. With him on the brief was Lane, Powell, Spears, Lubersky, Portland.

Before DEITS, P.J., and RIGGS and DURHAM, JJ.

RIGGS, Judge.

Petitioner appealed to LUBA from Columbia County's 1992 amendment of its 1990 Surface Mining Ordinance. The 1990 ordinance purported to amend the county's 1972 Surface Mining Land Reclamation Ordinance. Petitioner's objective is to invalidate the provision of the 1992 ordinance that assesses certain fees. The principal means by which petitioner seeks to achieve that end is by contending that the 1990 ordinance effectively repealed the 1972 enactment. Therefore, petitioner reasons, there is no permissible predicate for the 1992 assessment of fees that exceed those allowable under ORS 517.780(4) and ORS 517.800. Petitioner relies on ORS 517.780(1), which provides, as material:

"The provisions of ORS 517.700 to 517.951 and the rules and regulations adopted thereunder shall not supersede any zoning laws or ordinances in effect on July 1, 1972; however, if such zoning laws or ordinances are repealed on or after July 1, 1972, the provisions of ORS 517.700 to 517.951 and the rules and regulations adopted thereunder shall be controlling."

Petitioners also argued to LUBA that the 1992 ordinance is invalid, because the county failed to provide the director of the Department of Land Conservation and Development (DLCD) with the notices of its consideration and adoption that petitioner asserts are required by ORS 197.610(1) and ORS 197.615(1). ¹ LUBA rejected the assignments raising both arguments, along with two other assignments that petitioner advanced, and affirmed the city's decision to enact the ordinance. Petitioner seeks review, and we reverse.

Because the second issue we have described could obviate the need for LUBA, the county or us to consider any of the other issues, we turn to it first. It is necessary to set out LUBA's reasoning in some detail:

"Whether the requirements of ORS 197.610(1) and 197.615(1) were applicable to the county proceeding leading to the adoption of the challenged ordinance is unclear. However, the requirements imposed by these statutory provisions are procedural in nature. We are authorized to reverse or remand the challenged decision for failure to follow applicable procedures only if the error caused prejudice to petitioner's substantial rights. ORS 197.835(7)(a)(B). We have stated the substantial rights of petitioner referred to by ORS 197.835(7)(a)(B) are 'the rights to an adequate opportunity to prepare and submit [its] case and a full and fair hearing.' Torgeson v. City of Canby, 19 Or LUBA 511, 520 (1990); Muller v. Polk County, 16 Or LUBA 771, 775 (1988).

"Here, petitioner participated in the public hearing before the board of commissioners on the proposed amendment to the 1990 Mining Ordinance. Petitioner argues only that the county's failure to comply with ORS 197.610(1) may have prevented DLCD from participating in the county proceedings. Petitioner does not argue that its ability to prepare and submit its case was impeded by the county's failure to notify DLCD, or that it did not receive a full and fair hearing before the board of commissioners." (Footnote omitted.)

LUBA added, in a footnote:

"The procedural requirements of ORS 197.610(1) and 197.615(1) apply to the amendment of acknowledged land use regulations and the adoption of new land use regulations. It is not entirely clear that the 1990 Mining Ordinance is itself an acknowledged land use regulation, as it was adopted after the initial acknowledgment of the county plan and land use regulations in 1985, and it is uncertain whether the county followed postacknowledgment amendment procedures when it adopted the 1990 Mining Ordinance. Whether the ordinance challenged in this appeal is itself a land use regulation is also uncertain." (Emphasis in original.)

We do not agree that the failure to comply with ORS 197.610(1) and ORS 197.615(1), if compliance was required, is only a procedural error. We also do not agree that the proper focus of the inquiry is on whether the failure to give notice to the director affected the participatory rights of this petitioner. ORS 197.610 et seq contain procedures for assuring that amendments to acknowledged local land use legislation and enactments of new legislation comply with the statewide planning goals. ² That is a substantive matter. We remand for LUBA to consider the issue further. Specifically, it should determine whether ORS 197.610 and ORS 197.615 apply to the ordinance, and what disposition follows if the statutes were violated.

We turn to the first issue. It is again necessary to quote LUBA's reasoning at length:

"Petitioner points out that the 1990 Mining Ordinance is a near total rewrite of the 1972 Mining Ordinance. Petitioner concedes the 1971 legislation that enacted ORS 517.780(1) was originally drafted to provide that if a local government surface mining ordinance was amended or repealed after July 1, 1972, the exemption would be lost, and was later changed to provide that the exemption is lost only if the ordinance is repealed. However, petitioner argues this change was made to allow only de minimis changes to a local ordinance, not a total rewrite such as the county's 1990 Mining Ordinance.

"Ordinance No. 90-11, which adopted the 1990 Mining Ordinance, is captioned 'In the Matter of Amending the Columbia County Surface Mining Land Reclamation Ordinance of July 28, 1972.' (Emphasis added.) Sections 2 and 3 of Ordinance No. 90-11 state the 1990 Mining Ordinance is adopted pursuant to section 8.070 (Amendments) of the 1972 Mining Ordinance, and for the purpose of amending the 1972 Mining Ordinance 'to provide for more effective regulation of surface mining and reclamation of surface-mined lands in Columbia County.' Section 1.4(6) of the 1990 Mining Ordinance defines 'amended ordinance' to mean 'the Columbia County Surface Mining Land Reclamation Ordinance, which was enacted on June 28, 1972, as amended by Ordinance No. 90-11.' (Emphasis added.)

"The above described references in the county's 1990 enactment clearly establish that in adopting the 1990 Mining Ordinance, the county amended, rather than repealed, the 1972 Mining Ordinance. ORS 517.780(1) provides that the county's exemption from ORS 517.700 to 517.951 expires only if the county surface mining ordinance in effect on July 1, 1972,...