Currie v. Douglas County , 308 Or. App. 235 ( 2020 )

235
Argued and submitted October 28, affirmed December 30, 2020
Valynn CURRIE,
Petitioner,
v.
DOUGLAS COUNTY
and Bjorn Vian,
Respondents.
Land Use Board of Appeals
2020050; A174532
481 P3d 427
Petitioner seeks judicial review of a final opinion and order of the Land Use
Board of Appeals (LUBA). Petitioner contends that LUBA erred in concluding
that petitioner’s argument had been waived or not preserved in earlier stages of
the proceeding. Petitioner argues that, as a result, LUBA’s opinion and order was
unlawful in substance, ORS 197.850(9). Held: Petitioner failed to preserve her
argument in earlier stages of the proceeding. Therefore, LUBA’s opinion was not
unlawful in substance, ORS 197.850(9).
Affirmed.
D. Rahn Hostetter argued the cause for petitioner. Also
on the brief were Benjamin Boyd and Hostetter Law Group,
LLP.
Souvanny Miller argued the cause for respondent Bjorn
Vian. Also on the brief was Miller Nash Graham & Dunn
LLP.
No appearance for respondent Douglas County.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Affirmed.
236 Currie v. Douglas County
SHORR, J.
Petitioner seeks judicial review of a final opinion
and order of the Land Use Board of Appeals (LUBA). In that
opinion and order, LUBA rejected some of petitioner’s argu-
ments, agreed with others, and remanded the proceeding
to Douglas County. Petitioner raises three assignments of
error, each essentially contending that LUBA erred in con-
cluding that petitioner’s arguments had been waived or not
preserved in earlier stages of the proceeding. We reject peti-
tioner’s second and third assignments of error without fur-
ther discussion. For the reasons that follow, we also reject
petitioner’s first assignment of error. As a result, we affirm.
To frame the procedural issues before us, we exam-
ine the arguments that were made and resolved in an ear-
lier LUBA opinion, Currie v. Douglas County, 79 Or LUBA
585 (2019) (Currie I), the arguments made on remand to
Douglas County following that opinion, and the resolution
of the arguments made in the second LUBA opinion, Currie
v. Douglas County, ___ Or LUBA ___ (LUBA No 2020-050,
Aug 12, 2020) (Currie II), which is the decision presently on
review before us. We draw the relevant facts from LUBA’s
opinions in both cases and discuss petitioner’s arguments
leading up to and during those stages of the proceeding.
In 2018, intervenor-respondent Bjorn Vian applied
to Douglas County for a conditional use permit to reopen
and expand a quarry to occupy approximately 73 acres
within a 280-acre tract of land in the county. The quarry
had operated on a smaller 10 to 15 acre section of the tract
in the 1950s. The site of the proposed expanded quarry is
zoned “Exclusive Farm Use - Grazing” (FG). It is listed in
the Douglas County Aggregate Mineral Resources Inventory
and is subject to a mineral resources overlay. There are
surrounding uses, including a mix of farm and forest uses,
residential uses, and property zoned “Tourist Commercial”
(TC), which includes a recreational vehicle park on the tract
owned by Vian.
Petitioner and other nearby residents opposed
Vian’s application for a conditional use permit. Their objec-
tions included their concern that a nearby operating quarry
Cite as 308 Or App 235 (2020) 237
would have a potential negative effect on their property val-
ues. They also raised concerns that blasting in proximity to
their property would affect their peace of mind. Following
an evidentiary hearing, the planning commission denied
the conditional use permit based on its conclusion that the
applicant had not established that aggregate mining use
was compatible with uses on adjacent lands. Vian appealed
to the county board of commissioners, and the board reached
a different conclusion, reversing the planning commission
and approving the conditional use permit for the quarry.
Petitioner sought review of the county board’s
approval of the conditional use permit before LUBA. Peti-
tioner argued that the county’s issuance of a conditional
use permit violated the county’s Land Use Development
Ordinance (LUDO) 3.39.050(1), which provides the county’s
general approval criteria for conditional use permits. Peti-
tioner contended that the county violated LUDO 3.39.050(1)’s
provision requiring that “[t]he proposed use is or may be
made compatible with existing adjacent permitted uses and
other uses permitted in the underlying zone.” Currie I, 79
Or LUBA at 601. Petitioner noted that the county did not
identify the characteristics of the neighboring uses to evalu-
ate the compatibility of the quarry with those existing uses,
but merely identified the distances between the proposed
quarry and some existing residences. LUBA quoted peti-
tioner’s position in its opinion in Currie I:
“It is petitioner’s position that the county ‘[m]erely recit-
ing the distances between some existing residences and the
proposed quarry does not constitute substantial evidence
that the quarry is compatible with each existing adjacent
permitted residential use.’ ”
Id. LUBA concurred with that view, stating that “[w]e agree
with petitioner that understanding the identity and nature
of existing uses is part of establishing compatibility between
uses.” Id.LUBA also specifically addressed arguments that
it understood that petitioner had not sufficiently argued
before LUBA or raised before the county. LUBA distin-
guished the argument that petitioner had raised as to the
quarry’s potential incompatibility with existing uses from
238 Currie v. Douglas County
an argument that petitioner had not raised as to the quar-
ry’s potential incompatibility with all potential permitted
uses, whether existing or not:
“Based upon petitioner’s statement that ‘Douglas
County made no finding that the quarry operation was com-
patible (or could be made so) with the lands zoned Tourist
Commercial,’ it appears petitioner may be making an
argument that the code requires the county to evaluate all
uses that could be permitted on adjacent lands under their
zoning, as well as existing uses. * * * Petitioner does not
develop this argument nor indicate that the argument was
preserved. Deschutes Development Co. v. Deschutes County,
5 Or LUBA 218 (1982); ORS 197.835(3). Accordingly, we do
not address the argument further.”
Id. at 602.
LUBA remanded the proceeding to Douglas County.
In its disposition, LUBA noted that, on remand, the county
must identify and take into account the nearby uses. It
stated:
“The county’s decision is not supported by substantial
evidence * * *. The county must identify the surrounding
uses, explain the characteristics of the surrounding uses
and set forth the substantial evidence establishing that
the applicable approval criteria are met with respect to air
quality/dust, water quality, noise, wildlife, and farm and
forest impacts.”
Id. at 609 (emphasis added). Petitioner did not appeal
LUBA’s final opinion and order in Currie I so the case was
then remanded to Douglas County.
In the remanded proceedings before the county,
petitioner continued to object to the issuance of the condi-
tional use permit to Vian. The county board issued an order
that quoted the part of LUBA’s remand order set forth in
italics above verbatim. The board then remanded the mat-
ter to the county planning commission for an additional
evidentiary proceeding. In its notice of that hearing, the
commission stated that “[o]ral or written testimony will be
limited to only the issues raised in the remand from LUBA.”
(Underscoring in original.)
Cite as 308 Or App 235 (2020) 239
After hearing additional evidence and arguments
from petitioner and others, the planning commission issued
an order approving Vian’s conditional use permit for the
quarry. The county planning commission also quoted the
LUBA remand instructions verbatim in its own final order.
In its specific findings, the planning commission stated that
it may grant a conditional use permit if the application meets
the criteria in LUDO 3.39.050(1), providing, among other
things, that “[t]he proposed use is or may be made compat-
ible with existing adjacent permitted uses and other uses
permitted in the underlying zone.” The commission specifi-
cally found that the adjacent uses and all surrounding farm
and forest uses had been identified. It further found that the
proposed use would not cause or force a significant change
in the cost of surrounding farm and forest uses. The com-
mission similarly found that the proposed use was compat-
ible with adjacent uses in terms of noise, water quality, air
quality, and wildlife. The commission concluded that “[t]he
proposed use, subject to the conditions enumerated herein,
meets all applicable criteria.” The county board declined to
review the planning commission’s order, thereby affirming
it.
Petitioner then petitioned LUBA for review of the
county’s decision. Before LUBA, petitioner argued that
the county should not have granted Vian’s conditional use
permit, because there was not substantial evidence that
the proposed quarry was compatible with other potential
uses—not merely existing uses—that could be permitted,
and approval of the conditional use permit for the quarry
therefore violated LUDO 3.39.050(1).
In its opinion addressing that issue, Currie II,
LUBA noted that it had previously concluded in Currie I
that petitioner had not preserved or adequately developed
an argument before the county board that the county had to
demonstrate that the proposed quarry was compatible with
adjacent uses that were not yet existing but that could be
permitted in the underlying zone. Relying on Beck v. City
of Tillamook, 313 Or 148, 831 P2d 678 (1992), LUBA con-
cluded that “[a] petitioner may not raise an issue in a sub-
sequent stage of a proceeding if that issue was previously
240 Currie v. Douglas County
decided adversely to [petitioner], or if [petitioner] could have
but failed to raise the issue below.” Having failed to develop
that argument before the county prior to LUBA’s decision
in Currie I, LUBA held that petitioner could not attempt to
develop that issue for the first time in the limited remand
proceeding before the county, or in the ensuing appeal to
LUBA in Currie II. LUBA, however, sustained some of peti-
tioner’s arguments and remanded the proceeding again to
the county for further proceedings. Petitioner now seeks
review of LUBA’s order in Currie II.
In petitioner’s first assignment of error, petitioner
contends that LUBA erred in concluding that petitioner
could not argue that, under LUDO 3.39.050(1), the proposed
quarry was incompatible with nonexistent but permissible
uses, because petitioner had not raised that argument in the
proceedings prior to and during Currie I. As a result, peti-
tioner contends, among other things, that LUBA’s opinion
and order is unlawful in substance under ORS 197.850(9).
Petitioner makes two arguments before us. We
address each in turn. First, petitioner notes that LUBA’s
remand instructions required a showing that the applica-
tion met the “applicable approval criteria” and, she further
observes, such criteria under LUDO 3.39.050(1) require a
finding both that “[t]he proposed use is or may be made com-
patible with existing adjacent permitted uses and other uses
permitted in the underlying zone.” (Emphasis in original.)
Therefore, petitioner reasons that the issue of the proposed
quarry’s compatibility with not existing but permitted uses
was part of LUBA’s remand to the county and that the
county then proceeded with that understanding on remand.
We conclude that petitioner’s first argument fails, because it
is contradicted by the text of LUBA’s specific remand and,
more broadly, the rest of LUBA’s opinion in Currie I. It is
also contradicted by the record of the county proceeding on
remand.
In Currie I, LUBA remanded and asked the county
to identify the proposed quarry’s “surrounding uses,”
explain the characteristics of the “surrounding uses,” and
determine that the “applicable approval criteria” were met
with respect to particular resulting impacts. Currie I, 79 Or
Cite as 308 Or App 235 (2020) 241
LUBA at 609. Although LUBA used the term “surrounding
uses” and not “existing surrounding uses,” the “surround-
ing uses” identified by LUBA were the existing surrounding
uses and not potential but nonexistent surrounding uses.
Id. at 601-02. If there was any doubt about the intended scope
of the issues on remand, LUBA made clear in the balance
of the opinion that petitioner had not adequately developed
an argument under LUDO 3.39.050(1) that the proposed
quarry had to meet the approval criteria as to potentially
permitted but not existing uses. Petitioner’s argument that
the remand order broadly directed the county to address all
applicable criteria under LUDO 3.39.050(1) as to both exist-
ing and potential permitted uses is directly contradicted by
LUBA’s opinion and remand order. Further, the county con-
fined itself to the limited issues on remand when reopening
the record.
Petitioner’s second argument relates to the first,
and it also depends on the nature of the remand follow-
ing LUBA’s opinion in Currie I. Petitioner, relying on ORS
197.763(7), contends that “Oregon law allows parties to
land use proceedings to raise new, unresolved issues that
relate to new evidence and arguments that are presented on
remand by opposing parties.” That is generally true. ORS
197.763(7) provides:
“When a local governing body [or] planning commission
* * * reopens a record to admit new evidence, arguments or
testimony, any person may raise new issues which relate
to the new evidence, arguments, testimony or criteria for
decision-making which apply to the matter at issue.”
As in her first argument, petitioner contends that, when the
county reopened the record for new evidence and argument
regarding the “applicable approval criteria,” it necessarily
reopened the record as to all criteria under LUDO 3.39.050(1),
including criteria that required a showing that the proposed
quarry was compatible with surrounding permitted but not
existing uses. But, as we note above, the remanded issue was
not so broad, and the county did not reopen the record for
new evidence and argument regarding compatibility with
surrounding permitted but not existing uses. The county
understood the limited nature of the remand and provided
242 Currie v. Douglas County
that “[o]ral or written testimony will be limited to only the
issues raised in the remand from LUBA.” (Underscoring
in original.) Because the county did not reopen the record
to admit “new evidence, arguments, or testimony” relating
to that “criteria for decision-making,” ORS 197.763(7), the
county did not consider such new evidence.
Petitioner also relies on Schatz v. City of Jacksonville,
which states that LUBA’s remand “may require local govern-
ments to resolve certain questions before making a new deci-
sion; generally speaking, however, it cannot prevent them
from considering other questions.” 113 Or App 675, 680, 835
P2d 923 (1992) (emphases in original). Although true, that
does not assist petitioner’s argument before us. Petitioner
contends that LUBA remanded Currie I to the county to
consider the quarry’s impact on potential permitted but not
existing uses under LUDO 3.39.050 and that the county did
the same on its subsequent remand to the planning commis-
sion. However, as discussed above, the county did not reopen
the record on remand to consider new evidence on permitted
but nonexistent uses. To the extent that petitioner wanted
to pursue that issue, she could have appealed LUBA’s deci-
sion in Currie I to our court, contended that LUBA erred in
concluding that petitioner had not preserved her argument,
and pursued the underlying merits issue then. Petitioner
did not further appeal or pursue that issue then, but unsuc-
cessfully seeks to revive the underlying issue before us now.
See Beck, 313 Or at 152-54 (noting in a similar circumstance
that the petitioner’s failure to appeal LUBA’s decision need-
lessly delayed resolution of the issues and was contrary to
the legislative policy in the statutes governing LUBA, which
favor narrowing issues on remand from LUBA, avoiding
redundant proceedings, and resolving land-use proceedings
quickly); Devin Oil Co. v. Morrow County, 252 Or App 101,
113, 286 P3d 925 (2012) (“Because petitioner’s current chal-
lenge to the limitation that the county imposed could have
been raised, but was not raised, in petitioner’s first appeal
in this case, petitioner waived its challenge to that limita-
tion.”). For the reasons discussed above, we reject petition-
er’s first assignment of error.
In sum, we reject each of petitioner’s assignments
of error. We conclude that LUBA’s opinion and order was
Cite as 308 Or App 235 (2020) 243
not, as petitioner contends, unlawful in substance, ORS
197.850(9)(a). Accordingly, we affirm.
Affirmed.