Root v. Klamath Cnty.

• Decision Date: 23 January 2014
• Docket Number: A155037.,2013008
• Citation: 260 Or.App. 665,320 P.3d 631
• Parties: James ROOT and Valerie Root, Petitioners, v. KLAMATH COUNTY; and JWTR, LLC, Respondents.
• Court: Oregon Court of Appeals

260 Or.App. 665

320 P.3d 631

James ROOT and Valerie Root, Petitioners,

v.KLAMATH COUNTY; and JWTR, LLC, Respondents.

2013008; A155037.

Court of Appeals of Oregon.

Argued and submitted on Dec. 10, 2013.

Decided Jan. 23, 2014.

Gregory S. Hathaway argued the cause for petitioners. With him on the brief were E. Michael Connors and Hathaway Koback Connors LLP.

Seth J. King argued the cause for respondent JWTR, LLC. With him on the brief were Michael C. Robinson and Perkins Coie LLP.

No appearance for respondent Klamath County.

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

LAGESEN, J.

Petitioners seek judicial review of a final order of the Land Use Board of Appeals (LUBA) affirming an amendment by Klamath County to its comprehensive plan and zoning maps. The amendment added approximately 68,302 acres owned by intervenor-respondent JWTR, LLC to the county's Destination Resort Overlay (DRO) map of eligible lands. We affirm in part and reverse and remand in part.

I. BACKGROUND

The facts pertinent to our review are not disputed. JWTR owns land in Klamath County for which it seeks approval for the siting of a destination resort under ORS 197.435 to 197.467. To that end, JWTR applied to Klamath County for an amendment to the county's comprehensive plan and zoning maps. JWTR requested that the maps be amended to add 90,000 acres owned by JWTR to the county's DRO map of eligible lands. The county amended the maps in the manner requested. Petitioners, among others, appealed to LUBA.

On appeal, in Root v. Klamath County, 63 Or. LUBA 230 (2011) ( Root I ), LUBA concluded that the county's action was deficient in several respects and remanded to the county to address the identified deficiencies. Pertinent to the issues raised in this proceeding, LUBA concluded that the county was required to more thoroughly analyze whether any “tract” proposed to be included in the DRO map contained lands ineligible for destination resort siting under ORS 197.455(1)(e)¹ and, if so, whether ORS 197.435(7)² required exclusion of the tract from the DRO map. Root I, 63 Or. LUBA at 236–38. LUBA also concluded that the county's Goal 5 analysis was deficient because (a) its findings failed to adequately account for the fact that “there [was] an inventoried Goal 5 resource, especially sensitive big game habitat, located on or near some of the proposed lands”; and (b) the county failed to adequately analyze potential “conflicts with inventoried Goal 5 resources off-site from the proposed lands.” Id. at 247–48. Finally, LUBA concluded that the county erred by deferring the assessment of whether the plan amendment complied with the Transportation Planning Rule, OAR 660–012–0060, until after approval of the amendment, contrary to Willamette Oaks, LLC v. City of Eugene, 232 Or.App. 29, 36, 220 P.3d 445 (2009). Root I, 63 Or. LUBA at 249–55.

On remand, JWTR again applied to the county for an amendment to the comprehensive plan and zoning maps, this time requesting that approximately 68,302 acres owned by JWTR be added to the DRO map of eligible lands. To demonstrate that the proposal did not contain any “tracts” required to be excluded from the DRO map, JWTR submitted a letter from its expert, Andrea Rabe. Rabe explained that she had reviewed the proposed amendment to the DRO map against the “land ownership layer for Klamath County” to identify “ownership tracts.” After identifying tracts, she excluded from the proposed amended map any tracts that did not meet the statutory requirements for inclusion on the DRO map. She then prepared a map and a tract list reflecting those changes to the map originally proposed by JWTR. Rabe explained that she “included tracts in the Proposed Amended Destination Resort Overlay that in [her] professional opinion, satisfy the requirement in ORS 197.435(7) that any property excluded from a tract be located on the boundary of the tract and constitute[ ] less than 30% of the total tract.” Based on Rabe's report, the county found that the tract list and map for the proposed amended DRO map of eligible lands only included tracts satisfying the requirements of ORS 197.435(7).

To address LUBA's concern that the proposed amended DRO map would affect the inventoried Goal 5 resource of especially sensitive big game habitat, the county excluded from the proposed map approximately 10,000 acres to avoid conflict with the inventoried Goal 5 resource of Big Game Winter Range (BGWR) habitat. JWTR's expert, Rabe, opined that, as a result of the exclusion of those lands, there was no overlap between the proposed amended DRO map and any BGWR habitat and, thus, no on-site conflict between the proposed amendmentand BGWR habitat. Based on the changes and Rabe's opinion, the county found that the proposed amendment did not affect any on-site Goal 5 resources. The county also conducted a more extensive analysis of the potential impact of the overlay on off-site inventoried Goal 5 resources. It ultimately concluded that its existing Goal 5 management program would “continue to be adequate” to protect off-site BGWR habitat.

Finally, to address compliance with the Transportation Planning Rule, the county adopted the following condition:

“This decision is final for purposes of appeal but shall not be effective for purposes of amending the Klamath County Comprehensive Plan Map and the Klamath County Land Development Code Map to add approximately 68,302 acres to the Plan and zoning maps until such time as the County imposes the Limited Use (“LU”) Overlay zoning district zone to those same properties in a post acknowledgment Plan amendment proceeding and provides in that post-acknowledgment Plan amendment proceeding [th]at the LU Overlay zoning district shall not allow any new uses allowed by the destination resort overlay designation until such time as the LU is removed in a subsequent post-acknowledgment Plan amendment proceeding that demonstrates compliance with then-applicable provisions of the [Transportation Planning Rule]. The effect of this condition is that no new uses are allowed by this decision and, therefore, as a matter of law pursuant to OAR 660–012–0060(1), this decision does not significantly affect any transportation facility.”

Based on that condition, the county found that the proposed amendment did not significantly affect any transportation facility and, therefore, satisfied the Transportation Planning Rule:

“Based on the above, the Board finds that this Application is not a plan amendment that allows uses potentially inconsistent with the capacity of transportation facilities because it does not authorize new land uses and, therefore, as a matter of law, does not significantly affect any transportation facility because of the condition of approval based on OAR 660–012–0060(2)(e). For these reasons, the Board finds that the [Transportation Planning Rule] remand issue has been satisfied.”

Petitioners again appealed to LUBA. LUBA affirmed. Root v. Klamath County, _____ Or. LUBA _____ (LUBA No. 2013–008, Aug. 9, 2013) ( Root II ). Petitioners timely sought review in this court. Before this court, petitioners argue that LUBA erred in three respects: (a) by concluding that JWTR's expert's opinion constituted substantial evidence supporting the finding that the tracts included in the amended DRO map satisfied the requirements of ORS 197.435(7) and ORS 197.455(1)(e); (b) by concluding that “there were no conflicts between inventoried Goal 5 resources and proposed destination resort lands” and by “improperly shifting the burden of proof to Petitioners to demonstrate there were no conflicts between inventoried Statewide Goal 5 resources and proposed destination resort lands”; and (c) by rejecting on ripeness grounds petitioners' claim that the county erred by determining that the amendment, as conditioned, complied with the Transportation Planning Rule.

II. STANDARD OF REVIEW

We generally review a LUBA order to determine whether it is “unlawful in substance or procedure[.]” ORS 197.850(9)(a). We elaborate further on that standard of review as needed in addressing petitioners' specific assignments of error.

III. ANALYSIS

A. Substantial Evidence

In the first assignment of error, petitioners assert that LUBA erred in its substantial-evidence review of the county's finding that JWTR's lands satisfy the requirements under ORS 197.435(7) and ORS 197.455(1)(e) for inclusion on the DRO map of eligible lands. In particular, petitioners contend that the only evidence in the record on that point—Rabe's letter opinion—lacks sufficient detail and information about Rabe's qualifications to permit a reasonable person to rely on it, and that, as a result, there is no evidence in the record to support the county's determination that tracts included on the DRO map comply with ORS 197.435(7) and ORS 197.455(1)(e). Our standard of review compels us to reject that contention.

As we have explained, “[o]ur role in this circumstance is to ensure that LUBA has followed the proper ‘substantial evidence’ standard in reviewing” the county's decision. Gunderson, LLC v. City of Portland, 243 Or.App. 612, 636, 259 P.3d 1007 (2011), aff'd on other grounds,352 Or. 648, 290 P.3d 803 (2012) (some internal quotation marks omitted). “Our task is not to assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority.” Citizens for Responsibility v. Lane County, 218 Or.App. 339, 345, 180 P.3d 35 (2008). If LUBA correctly articulates its standard of review, we cannot reverse LUBA's decision unless “there is no evidence to support the finding or if the evidence in the case is ‘so at odds with LUBA's evaluation that a reviewing court could infer that LUBA had misunderstood or misapplied its scope of review.’ ” Id. (quoting Younger v. City of Portland, 305 Or. 346, 359, 752 P.2d 262 (1988)).

Here, LUBA's order reflects that it understood its role on substantial-evidence...