SIEVERS v. HOOD RIVER COUNTY, LUBA No. 2003-200 (Or. LUBA 3/29/2004)

• Decision Date: 29 March 2004
• Docket Number: LUBA No. 2003-200.
• Parties: MIKE SIEVERS, Petitioner, v. HOOD RIVER COUNTY, Respondent, and LET THE PEOPLE DECIDE POLITICAL ACTION COMMITTEE, ROD KREHBIEL TOM PENCHOEN and WENDY GRAY, Intervenors-Respondent.
• Court: Oregon Land Use Board of Appeals

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MIKE SIEVERS, Petitioner, v. HOOD RIVER COUNTY, Respondent, and LET THE PEOPLE DECIDE POLITICAL ACTION COMMITTEE, ROD KREHBIEL TOM PENCHOEN and WENDY GRAY, Intervenors-Respondent.

LUBA No. 2003-200.

Oregon Land Use Board of Appeals.

March 29, 2004.

Appeal from Hood River County.

David J. Hunnicutt, Tigard, filed the petition for review and argued on behalf of petitioner.

With him on the brief was Oregonians in Action Legal Center.

No appearance by Hood River County.

Christopher Winter, Portland, filed the response brief and argued on behalf of intervenors-respondent. With him on the brief was Cascade Resources Advocacy Group.

BASSHAM, Board Chair; BRIGGS, Board Member; HOLSTUN, Board Member, participated in the decision.

REVERSED.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.

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FINAL OPINION AND ORDER

Opinion by Bassham.

NATURE OF THE DECISION

Petitioner appeals Ordinance 14-15, an initiative adopted by the county voters that requires voter approval of certain residential development on certain forest lands.

MOTION TO INTERVENE

Let the People Decide Political Action Committee, Rod Krehbiel, Tom Penchoen, and Wendy Gray (intervenors) move to intervene on the side of respondent. There is no opposition to their motion, and it is allowed.

MOTION TO FILE REPLY BRIEF

Petitioner moves to file a reply brief to address (1) a challenge to petitioner's standing raised in intervenors' response brief and (2) an argument in the response brief that the challenged decision is not a "land use decision" subject to the Board's jurisdiction, as that term is defined at ORS 197.015(10). Intervenors do not object to the proposed reply brief, with the exception of the final paragraph, which asserts that even if the challenged decision is not a statutory land use decision, it nevertheless falls within LUBA`s jurisdiction as a significant impact test land use decision. Intervenors argue that the petition for review does not assert that LUBA has jurisdiction over the challenged decision under the significant impact test. According to intervenors, petitioner should not be able to assert an entirely new basis for jurisdiction in a reply brief.

We have held that, although all petitions for review must state why the challenged decision is subject to LUBA`s jurisdiction, jurisdiction does not become an issue in an appeal until respondents contend that LUBA lacks jurisdiction. Boom v. Columbia County, 31 Or LUBA 318, 319 (1996) (allowing reply brief, because the jurisdictional statement required in the petition for review by our rules is not intended to withstand jurisdictional challenge); Shaffer v. City of Salem, 29 Or LUBA 592, 594 (1995) (same). Generally, where the petition for review provides a bare or nominal statement of jurisdiction, a reply brief is warranted to address the respondent's jurisdictional

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challenge, and that reply brief may fully address the jurisdictional question.¹ Given the nominal character of the jurisdictional statement in the petition for review under our rules, we see no reason to limit the reply brief, or LUBA`s resolution of the jurisdictional question, to the bases for jurisdiction stated in the petition for review.

The proposed reply brief is allowed.

MOTION TO TAKE EVIDENCE

Intervenors move to take evidence not in the record, pursuant to OAR 661-010-0045. The proffered evidence is intended to contradict petitioner's claim of standing, which, as relevant here, included petitioner's claim that he is the owner of real property in the county that is potentially subject to future application of the challenged ordinance. The evidence intervenors seek to have LUBA consider indicates that the real property petitioner claims to own is instead owned by "Dwight C. Sievers." In the reply brief, petitioner responds that his legal name is Dwight C. Sievers but that he has used the name Mike Sievers for over 50 years. At oral argument, we understood intervenors to withdraw their challenge with respect to ownership of the real property petitioner claims to own. Accordingly, intervenor's motion to take evidence on that point is moot.

FACTS

Intervenors Gray, Pencheon and Krehbiel were chief petitioners for Hood River County Measure 14-15. The measure was placed on the ballot and, on November 4, 2003, approved by the voters of the county, with 3,193 "yes" votes and 2,001 "no" votes.² The summary of Measure 14-15 describes its purpose and intended effect:

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"Currently, the approval of residential developments is by an administrative hearings process that involves the County Planning Department, the County Planning Commission and the Board of County Commissioners. Voter approval is not required for any planning decision made in this administrative process. This ordinance would require that voter approval be required for any residential development that cumulatively totals 25 or more residential units or overnight accommodation units, if the development is to occur on certain forest lands. The forest lands affected by this ordinance are any lands specifically zoned for `Forest' or `Primary Forest' uses, or were State or Federal Forest lands as of January 01, 2003. The ordinance would require voter approval whenever the housing development would involve 25 units, whether the approval for the development was the result of one application or a series of applications. It is the intent of the proponents of this Measure that if any part of the proposed ordinance were to be held invalid, that the remaining provisions remain in effect." Record 1.

The results of the November 4, 2003 election were certified by the county elections director on November 17, 2003. On December 8, 2003, petitioner filed the present appeal with LUBA.

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STANDING

Petitioner argues that he has standing to appeal Ordinance 14-15 under ORS 197.830(3), because he is "adversely affected" by the ordinance.³ According to petitioner, he owns property zoned for forest uses, and Ordinance 14-15 places an additional impediment not found in the county's comprehensive plan or land use regulations on petitioner's ability to site a "major housing development" on his property.

Intervenors dispute that petitioner is "adversely affected" by Ordinance 14-15. Intervenors argue that under current zoning regulations petitioner cannot develop his property with a "major housing development" within the meaning of Ordinance 14-15. According to intervenors, the speculative possibility that current zoning of petitioner's property might change someday to allow a "major housing development," and thus potentially allow application of Ordinance 14-15 with respect to petitioner's property, is not sufficient to establish that petitioner is "adversely affected" by the ordinance within the meaning of ORS 197.830(3).

There is no dispute that petitioner's property is zoned F-1, one of the forest zones subject to Ordinance 14-15. We believe that adoption of additional impediments to residential development of petitioner's property is sufficient to render petitioner "adversely affected" by Ordinance 14-15 within the meaning of ORS 197.830(3), notwithstanding that petitioner does not currently propose residential development and current zoning and other restrictions do not allow for additional residential development of petitioner's property.

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Our conclusion that petitioner has standing to appeal Ordinance 14-15 under ORS 197.830(3) makes it unnecessary to address intervenors' contention that petitioner has not established standing to appeal under ORS 197.830(2).

JURISDICTION

Intervenors contend that Ordinance 14-15 is not a "land use decision" subject to LUBA`s jurisdiction, as that term is defined at ORS 197.015(10).<sup>4</sup> According to intervenors, Ordinance 14-15 is not a "comprehensive plan provision," a " land use regulation," or a "new land use regulation," and its passage by the voters does not "concern the adoption, amendment or application" any comprehensive plan provision, land use regulation or new land use regulation. Further, intervenors argue, prospective operation of Ordinance 14-15, i.e., future decisions by voters under that ordinance to affirm or overturn county decisions that approve a "major housing development" on forest lands, will not be land use decisions. Intervenors analogize operation of Ordinance 14-15 to city annexations, which may involve two separate decisions: (1) a land use decision by the city governing body that the annexation complies with applicable land use standards, and (2) a decision by the voters to accept or reject the annexation. Such electoral decisions are not land use decisions, subject to LUBA`s review. Heritage Enterprises v. City of Corvallis, 300 Or 168, 708 P2d 601 (1985) (decision of the voters whether to annex territory is not a land use decision, because the question before the voters is not whether the annexation could be approved under the applicable land use law, but whether the proposal should be adopted at that time). According to

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intervenors, Ordinance 14-15 simply puts in place a similar two-stage decision process, where the second-stage decision by the voters is not a land use decision.

Intervenor may or may not be correct that voter decisions under Ordinance 14-15 would not constitute land use decisions; however, the immediate question is whether adoption of Ordinance 14-15 itself is a land use decision. Petitioner argues that Ordinance 14-15 is a "new land use regulation" because its purpose is to preserve forest lands, and thus it implements provisions of the Hood River Comprehensive Plan (HRCP) that require preservation of forest lands. For the same reason, petitioner argues, Ordinance 14-15 "concerns" the application of Statewide Planning Goal 4 (Forest Lands), which generally governs preservation and use of forest lands. Further, petitioner argues that Ordinance 14-15 essentially adds...