Weiss v. Linn Cnty., LUBA No. 2021-033

Decision Date10 June 2021
Docket NumberLUBA No. 2021-033
PartiesEDITH WEISS and CHARLES WEISS, Petitioners, v. LINN COUNTY, Respondent, and NORTHROCK, INC., Intervenor-Respondent.
CourtOregon Land Use Board of Appeals

FINAL OPINION AND ORDER

Appeal from Linn County.

Andree N. Phelps filed the petition for review and reply brief and argued on behalf of petitioners. Also on the brief was Education, Environmental, & Estate Law Group, LLC.

No appearance by Linn County.

Wallace W. Lien filed the response brief and argued on behalf of intervenor-respondent.

RUDD, Board Chair; RYAN, Board Member; ZAMUDIO, Board Member, participated in the decision.

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

NATURE OF THE DECISION

Petitioners appeal a county board of commissioners approval of (1) a comprehensive plan text amendment adding two sites totaling 40 acres to the comprehensive plan inventory of significant aggregate resource sites, (2) a zoning map amendment applying the Aggregate Resource Overlay (ARO) to the two sites, and (3) a development permit authorizing aggregate mining and processing on the two sites.

MOTION TO INTERVENE

Northrock, Inc. (intervenor), the applicant below, moves to intervene on the side of the county. The motion is unopposed and is granted.

BACKGROUND

Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) is "[t]o protect natural resources and conserve scenic and historic areas and open spaces." OAR chapter 660, division 23

"establishes procedures and criteria for inventorying and evaluating Goal 5 resources and for developing land use programs to conserve and protect significant Goal 5 resources * * * [and] explains how local governments apply Goal 5 when conducting periodic review and when amending acknowledged comprehensive plans and land use regulations." OAR 660-023-0000.

OAR 660-023-0180(3) provides that "[a]n aggregate resource site shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets" one of severalcriteria. OAR 660-023-0180(5) sets out the process that local governments must follow in deciding whether mining is permitted at a significant mineral or aggregate site.1

The county has adopted code language implementing these requirements, defining its "Goal 5 process" in part as "the planning process for mineral and aggregate resources identified in OAR 660-023-0180." Linn County Code (LCC) 939.030(J). The county's Goal 5 process consists of

"(1) STEP 1 — determine adequacy of information provided in the application with regard to the location, quality, and quantity of the aggregate resource (LCC 939.110);"(2) STEP 2 — determine site significance and classification (LCC 939.120);
"(3) STEP 3 — identify impact area and all conflicts with existing uses (LCC 939.130);
"(4) STEP 4 — determine whether conflicts can be minimized (LCC 939.140);
"(5) STEP 5 — analyze [the economic, social, environmental, and energy (ESEE)] consequences if significant conflicts cannot be minimized (LCC 939.150);
"(6) STEP 6 — approve the mining of the aggregate resource (LCC 939.160);
"(7) STEP 7 — determine the post-mining use (LCC 939.170);
"(8) STEP 8 — identify conflicts from new conflicting uses (LCC 939.180);
"(9) STEP 9 — analyze ESEE consequences and decide whether to allow new conflicting uses (LCC 939.190); and
"(10) STEP 10 — adopt final decision and implementing amendments to the Comprehensive Plan and Land Development Code (LCC 939.200). LCC 939.060(A) (emphasis in original).

The 98.8-acre subject property is "located on the north side of Lyons Mill City Drive, approximately 1.16 miles southeast of its intersection with Cedar Mill Road, and approximately 2.08 miles southwest of the city limits of Lyons." Record 13. In 1982, the county adopted Ordinance 82-137, identifying the subject property, referred to as the Wilson site, as a significant aggregate resource site suitable for protection under Goal 5 and rezoning the property from Farm/Forest to Aggregate Extraction and Processing. Record 212-27. Ordinance 82-137approved "excavation within four areas of the site identified as areas A-D, totaling 19.47 acres." Record 121.

Intervenor operates the existing 19.47-acre quarry, and it applied to the county to expand the quarry to include two new mining areas, one 27 acres and the other 13 acres, all within the confines of the 98.8-acre subject property. Intervenor seeks to add the additional acreage because the 19.47 acres approved for extraction in Ordinance 82-137 have been depleted.2 Intervenor explained in its narrative that, although the new areas will provide additional material, "[p]rocessing, stockpiling, sale, and transport of these materials will take place as at present and at the same general location within the property." Record 123.

The county's "Inventory of Significant Sites Protected by Goal 5 and Approved for Mining Pursuant to an ESEE Analysis (Formerly '3A' and '3C' Sites)" identifies the entire 98.8-acre subject property.3 LCC chapter 905, Apps7, 7A. However, as discussed further below, the county found in the challenged decision that only the existing 19.47-acre quarry is listed on the county's inventory of significant aggregate resource sites.

The board of commissioners considered intervenor's applications at public hearings on November 10, November 17, and November 24, 2020. At its November 10, 2020 meeting, the board of commissioners voted to approve the comprehensive plan text and zoning map amendments. On February 2, 2021, the board of commissioners voted to approve the development permit. This appeal followed.

SECOND ASSIGNMENT OF ERROR

Petitioners' second assignment of error has two components. First, petitioners argue that the county committed procedural error because one of the county commissioners was not present during their attorney's oral argument. LUBA will reverse or remand the land use decision under review if it finds that the local government "[f]ailed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner." ORS 197.835(9)(a)(B). A procedural error is not a basis for reversal or remand unless the petitioner shows prejudice to their substantial rights. Eng v. Wallowa County, 79 Or LUBA 421, 427-28 (2019). "Where a petitioner fails to identify any applicable legal standard that he or she contends is violated by an alleged defectin the local government's decision, LUBA cannot grant relief." Spiering v. Yamhill County, 25 Or LUBA 695, 700 (1993). Petitioners have not identified any violation of an applicable legal standard—that is, they have not identified any procedural error—or any prejudice to their substantial rights. Thus, this element of the second assignment of error is denied.

Petitioners next argue that the county committed procedural error because the board of commissioners reopened the record after approving the comprehensive plan text and zoning map amendments on November 10, 2020, but did not conduct a revote on those two applications when it approved the development permit on February 2, 2021. Again, petitioners do not identify any legal standard that was allegedly violated by the county's process or, if there was a violation, how it prejudiced their substantial rights.

The second assignment of error is denied.

FOURTH ASSIGNMENT OF ERROR AND FIRST ASSIGNMENT OF ERROR, FIRST SUB ASSIGNMENT

LCC 939.050(C) and (D) and LCC 939.110(B) identify specific information that an applicant shall include in or with an application. For example, LCC 939.050(C)(2) requires that the application include "[i]nformation regarding the location, quality, and quantity of the aggregate source" and LCC 939.110(B)(2) requires that the application include

"[a] description of the quality of the resource, including a statement of compliance with federal, state or local standards issued by a certified lab according to the following applicable methods:
"(a) Resistance to Abrasion (* * * OSHD Tet Method 211);
"(b) Sodium Sulfate Soundness (OHSD Test Method 206);
"(c) Oregon Air Degradation (OSHD Test Method 208); or
"(d) Other test appropriate for the type of resource[.]

LCC 939.050(D) requires that an applicant submit a site development plan containing certain information and materials with its application. Petitioners' fourth assignment of error and the first subassignment of error under their first assignment of error allege that the county erred in approving the applications because intervenor did not submit a number of items that the code requires be included in an application. Those items include a conceptual site reclamation plan, a traffic impact assessment within one-mile of the entrance to the mining area, and diagrams, calculations, or other documentation of the location, quantity, and quality of the aggregate at the site. Petitioners also argue that intervenor's site development plan does not include a number of required components, including a DOGAMI-approved surface water management plan and a DOGAMI-approved site reclamation plan.

LUBA will "reverse or remand a decision involving the application of a plan or land use regulation provision if the decision is not in compliance with applicable provisions of the comprehensive plan or land use regulations." ORS 197.835(8). However, intervenor argues that this issue was not preserved below and is therefore waived.

ORS 197.763(1) provides:

"An issue which may be the basis for an appeal to [LUBA] shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied by statements or evidence sufficient to afford the governing body, planning commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue."

Issues before LUBA are "limited...

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