LUBA denies land use appeal
;Those appealing a series of county land use ordinances still have at least one avenue to pursue ... and reportedly another land owner is preparing to file more appealsRecent challenges to three county land use ordinances have been overturned by the state Land Use Board of Appeals. That decision may not be the end of the controversy, however.
Earlier this month, the three-member board held a hearing in Prineville and heard 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.
In announcing their decision, the board did not comment on what had been perceived as being one of the major issues. Opponents to the ordinances asserted that they provided 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.
That issue had been argued, apparently with some success, that only land in the Powell Butte Study was affected. "It is incorrect that all land clear to the Jefferson County line is included," Gary Parks, representing the county and others, testified.
The issue that determined the board's decision was whether the county court had made a land use decision without holding a proper public hearing. Presenting the landowners appealing the ordinances, David Hunnicutt argued that the court had "purported to hold two public hearings to consider the adoption of the amended ordinances. These meeting 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 without legal effect.
In the official explanation of their decision, the board stated the opinion that the ORS "imposes no explicit requirements for the public hearings that are required by the statue."
From transcripts of previous county court hearings, the LUBA members decided the court had acted correctly. The county provided notice of its hearings in July, 2000, the board's opinion read ... "parties and members of the public were allowed to present written and oral testimony."
In the board's opinion, even when the amended ordinances were clearly the focus of the public hearings and were ultimately adopted without change, they did not agree with the petitioners that the focus provided by the settle meant that had the effect of rendering the July public hearings something other than "public hearings" within the meaning of the state statute.
The final LUBA order may not be the end, however. While this appeal has been turned down, it could end up before the Oregon Court of Appeals. Plus representatives of another owner of property, the Bend Developing Company, Bill Smith Properties, has reportedly filed an appeal.