The three-member Land Use Board of Appeals heard the reasoning of those challenging county ordinances contained in the study and expect to make a decision later this month
One of the main questions that the state Land Use Board of Appeals will have to answer when deciding on the appeals of a number of county ordinances is: when is a public hearing an official public hearing.
The three member panel held their own public hearing at the county library Friday to hear arguments from the handful of property owners who appealed eight county land use ordinances. The ordinances in question were adopted as part of the Powell Butte Study which focused on rezoning EFU (Exclusive Farm Use) of thousands of acres of land to non-resource. Under EFU zoning, the land can not be developed for residential use while non-resource designation allows for development.
One of the major issues involves the amendment to the ordinances that provides that "land north of Highway 126 shall be retained as exclusive farm use." An earlier reading that this would effectively stop any development north of the highway and west of the Madras Highway was in error. The amendment, it was pointed out, would curtail any development north of the highway. That could possibly even have an impact on plans of expanding the city's sewer facility.
Before issues like that could be addressed, though, Dave Hunnicutt, an attorney for the Oregonians in Action brought up another factor. Hunnicutt, representing the petitioners, explained that the county court had made a land use decision without holding a hearing.
The county, Hunnicutt said, had "purported to hold two public hearings to consider the adoption of the amended ordinances. These meetings did not constitute public hearings as that term is used in ORS (Oregon Revised Statute), because the county could not and did not consider any of the comments made by the public."
State statute expressly prohibits a county from amending its comprehensive plan, which the ordinances being appealed would do, without first providing "at least one public hearing and providing at least ten days advance notice of each public hearing the county intends to hold. At issue in this case," Hunnicutt said, "is whether the July 12, 2000 and July 26, 2000 hearings held by the county were sufficient to satisfy the requirements."
Taking that action without holding a public hearing, Hunnicutt averred, was a violation of the ORS and the amended ordinances are threfore without legal effect.
The board, Hunnicutt said, should remand the county's decision to adopt the amended ordinances to give the petitioners the opportunity to persuade the court that its decision was improper.
The argument presented by the county's legal staff took a different view of the public hearing matter. Gary Parks, representing the the county's interest, told the three-member board that the action taken by the county court was legal.
Soon after the Powell Butte Study was adopted by the county in 1998, three ordinances that were part of the study were appealed. A year later five more appeals were filed challenging the ordinances that determined that soils located on certain properties are not agricultural land as defined by the state. Th appeals were referred to mediation at everyone's request and a settlement agreement was reached.
As part of that agreement, LUBA dismissed one of the appeals and remanded the other seven back to the county. Parks asserted that "there is not statutory definition of what the requirements of a hearing are in the land use context. The only case law on the issue," he argued, "requires simply that the participant be given the opportunity to provide evidence and to persuade the decision maker to that party's point of view. The count gave appropriate notice, held two hearings, took evidence and considered the petitioner's position. That," Parks explained, "is all that is required."
Regarding the claim that the ordinances would halt all development north of Highway 126, north to the Jefferson County line, Parks said only land in the Powell Butte Study was affected. "It is incorrect that all land clear to the Jefferson County line is included."
The law in this case is clear, Parks said, and LUBA should deny the "assignment of error and affirm the county's adoption of the challenged ordinances."
The members of the board of appeals announced that they expected to make a formal opinion by May 11, and in any case, no later than the first of June.