Mark Latham Excavation, Inc. v. Deschutes County

Citations: 250 Or. App. 543; 281 P.3d 644; 2012 Ore. App. LEXIS 779Docket: 2011078; A150685, A150693

Court: Court of Appeals of Oregon; June 20, 2012; Oregon; State Appellate Court

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Deschutes County, along with respondents Eric and Ronna Hoffman, Sanders Nye, and Cascades Academy of Central Oregon, is seeking judicial review of a Land Use Board of Appeals (LUBA) decision that remanded a county land use decision. The county had given Mark Latham Excavation, Inc. approval to expand its mining operation but included a condition that prohibited further mining of a headwall until a post-acknowledgment plan amendment was approved. LUBA upheld the petitioner’s objection to this condition and dismissed the county's claims regarding the ambiguity of the county’s Program to Meet the Goal (PTMG) and the implications of extensive mining on the headwall.

The property in question is located near Bend, Oregon, and was previously permitted for pumice mining until 2007. Petitioners requested a conditional use permit to expand operations, including mining 3.4 million cubic yards of tuff. The county's decision was supported by its Goal 5 planning history, which aims to protect natural resources and scenic areas. Compliance with Goal 5 requires local governments to inventory resources, assess conflicting uses, and devise a corresponding program. Deschutes County established ordinances in 1990 to fulfill these obligations, including an inventory of significant mineral sites and ESEE findings, which determined the resources available on the site and the impact of conflicting uses. The ESEE decision identified limited resources but did not recognize tuff as a resource. Ultimately, the county opted for a program that restricts resource extraction and conflicting uses.

Paragraph 23 of the PTMG outlines the zoning requirements for surface mining to protect aggregate resources and mitigate conflicts with residential and other developments. Key conditions include: required setbacks from potential conflicts; mitigation of noise and visual impacts through buffering, especially from Tumalo State Park; adherence to DEQ standards for operational hours; compliance with wildlife restrictions from the Oregon Department of Fish and Wildlife; a limitation of excavation to five acres with incremental reclamation subject to Department of Geology and Mineral Industries approval; and compliance with DEQ standards for noise and dust during operations. 

The county applied the surface mining zone to the site, imposing limitations to reduce off-site impacts. However, the PTMG did not restrict specific mining locations nor mention the hillside. The petitioner, who purchased the property in 2007, sought to expand mining into the hillside, which had previously been partially mined, and aimed to extract both pumice and tuff. A conditional use permit was granted in 2009 to mine further into the hillside for tuff as an incidental activity to pumice mining.

Respondents Eric and Ronna Hoffman appealed this decision to LUBA, which found that the county failed to adequately justify allowing tuff mining, noting the disproportionate quantities sought (3.4 million cubic yards of tuff versus 700,000 cubic yards of pumice) and the unclear potential impacts of tuff mining. LUBA determined that a new ESEE analysis could be required if a non-inventoried mineral resource is discovered, provided it is not merely incidental to an inventoried resource, and the local government’s decision-making would have been different if it had known about the new resource during the initial ESEE analysis and PTMG adoption.

In 2011, following a remand from the Land Use Board of Appeals (LUBA), the county determined that mining tuff was not incidental to mining pumice, indicating that had the county been aware of the tuff's volume in 1990, its ESEE decision and PTMG would have differed. Consequently, an amended ESEE analysis was deemed necessary for the proposed tuff mining. The county concluded that if the headwall mining had been considered in 1990, its PTMG would have changed. The county approved the petitioner’s application with Condition 20, prohibiting further mining of the headwall until a Post Acknowledgment Plan Amendment was submitted and approved. The petitioner appealed, arguing that the PTMG allowed mining anywhere on the property, including the hillside, and that tuff could be mined as incidental aggregate without an amended ESEE analysis.

In its 2012 opinion, LUBA upheld the county's requirement for a new ESEE analysis for tuff mining but rejected the county's assertion that the 1990 PTMG would have differed had hillside mining been contemplated and also overturned Condition 20. LUBA emphasized that it must affirm the county's 'plausible' interpretation of its land use provisions, as established in Oregon case law. The county's rationale for Condition 20 included a 1989 representation by Cascade Pumice, suggesting that only the northern flat area was intended for mining. The 1990 Conflict Resolution/ESEE analysis indicated mining as a 'transient use' with concerns about visual impacts but did not account for the headwall. The county argued that mining a headwall would produce significant, non-transient impacts, which were not authorized by the Goal 5 plan.

LUBA found no ambiguity in the PTMG regarding headwall mining, concluding that it does not categorically prohibit such mining and that the entire 80-acre parcel is designated for surface mining. The county's findings did not identify any explicit limitations on headwall mining in the relevant texts. However, LUBA noted that the county could still reject a site plan if it fails to meet other regulatory standards or ESEE conditions. Respondents challenged LUBA's ruling, arguing that it did not defer adequately to the county's interpretation of its code and that the ESEE decision and PTMG did not address hillside mining, implying it was not permitted. Petitioner countered that LUBA correctly found the county’s interpretation inconsistent with the explicit language of the regulations, asserting that the county was creating ambiguity due to dissatisfaction with the ESEE decision that allowed mining. The primary issue on appeal focuses on whether LUBA erred in sustaining the county's prohibition of headwall mining, with the question of tuff mining not currently under review. The court will evaluate whether LUBA’s order is unlawful in substance or procedure, starting with the standard of review for LUBA's deference to the county's interpretation of its land use ordinance.

LUBA must affirm a local government's interpretation of its land use regulations unless it conflicts with the explicit language of the comprehensive plan or the regulations themselves. The evaluation of whether an interpretation is inconsistent depends on its plausibility, guided by interpretive principles established in PGE v. Bureau of Labor and Industries and modified by State v. Gaines, which focus on discerning legislative intent through text, context, and legislative history. The county's interpretation of its Goal 5 regulations concluded that the ESEE did not reference the headwall or the tuff and that the PTMG likewise did not allow mining into a headwall. The county inferred that had the Board considered the headwall's height and the volume of tuff in 1990, it would not have permitted such mining activities as proposed by the petitioner. Respondents argue that the county is not limited to the PTMG for interpretation, citing Siporen, which allows for plausible interpretations that harmonize conflicting provisions. They assert the county's review of the ESEE decision, legislative history, and policies aimed at protecting nearby natural resources is valid. The petitioner contends that the county's interpretation lacks plausibility due to an absence of identified ambiguity within the PTMG itself, arguing that any perceived ambiguity stems from external context rather than the regulation.

Petitioner argues that the county could have explicitly excluded headwall mining in the 1990 PTMG if that had been the intent, and the absence of specific mining guidelines implies that headwall mining is allowed. Petitioner supports this claim with evidence from ESEE decisions from other mining sites that included detailed mining operations and restrictions on headwall mining, contrasting with the PTMG for petitioner’s site, which is designated for "surface mining" under DCC 18.04.030. Petitioner contends that the county’s interpretation of the PTMG as prohibiting headwall mining improperly adds language not found in the original document, violating ORS 174.010.

The county's interpretation, however, is given deference under the Siporen standard, and while petitioner’s view is plausible, the county's interpretation must also be plausible to be upheld. The court finds that the dispute revolves around the absence of explicit provisions regarding headwall mining in the PTMG rather than ambiguity in specific terms. The county's reliance on ESEE decisions to infer that headwall mining was not considered permissible is deemed appropriate. The ESEE documentation did not reference headwall mining, leading the county to conclude that such mining was not intended or allowed without a new analysis.

Mining is characterized as a 'transient use' in the ESEE decision, which implies that future uses can occur post-mining. However, the creation of a headwall does not qualify as a transient use. The ESEE decision raises concerns regarding visual and dust impacts on Tumalo State Park and the Deschutes River Scenic Area, indicating that mining that involves a headwall is not authorized due to these concerns. The county concluded that the absence of a headwall reference in the ESEE decision implies that such mining is not permitted, creating ambiguity around headwall mining. The petitioner argues that this interpretation contradicts OAR 660-016-0010(3), which mandates that the PTMG be sufficiently specific for property owners to understand allowable uses. The petitioner claims the county's use of the ESEE decision introduces ambiguity into an otherwise clear PTMG. However, the county maintains that the PTMG does not specifically permit or prohibit headwall mining, and the absence of mention creates ambiguity. 

Additionally, the petitioner contends that the county's interpretation is inconsistent with OAR 660-016-0010(3), which allows local governments to choose between resource protection, full allowance of conflicting uses, or balancing both. The county selected the balancing option but does not fully prohibit headwall mining; it merely requires a new ESEE analysis and plan amendment before any headwall mining can occur. The county's interpretation does not categorically bar mining but allows for mining in other areas of the property where conditions can mitigate conflicts. Lastly, the petitioner argues that the county's interpretation demands a 'fully articulated' analysis contrary to judicial standards for a Goal 5 ESEE analysis, which the county disputes.

Petitioner argues that prior case law, specifically Columbia Steel Castings Co. v. City of Portland and Callison v. LCDC, indicates that an ESEE analysis does not necessitate a 'fully articulated' examination of conflicting uses and Goal 5 resources at every specific location. The petitioner contends that the county's requirement for a new ESEE analysis before allowing mining into the headwall contradicts this interpretation. However, the county clarifies that the 1990 ESEE analysis did not address the potential for headwall mining and that, in accordance with the PTMG, it must balance the protected resource (pumice) against conflicting uses (such as scenic views from Tumalo State Park). Consequently, the county mandated a new ESEE analysis to assess the conflicts and implications of headwall mining. The county's reasoning aligns with Columbia Steel's ruling, which states that a county's rationale for decisions regarding Goal 5 must have been present when the PTMG was adopted. Since the initial ESEE analysis did not consider headwall mining, the county's decision to require a new analysis is deemed plausible.

The court reversed and remanded the case, referring to the parties as petitioner and respondents based on their designations in the Land Use Board of Appeals (LUBA) proceeding. A "headwall" is defined as a steep slope at the head of a valley, and a "conflicting use" could harm a Goal 5 resource site. Under ORS 197.829(1), LUBA must affirm a local government's interpretation of its comprehensive plan unless it is inconsistent with the plan's express language, its purpose, the underlying policy, or state statutes and land use rules. ORS 174.010 emphasizes that judges must interpret statutes as written without adding or omitting language.

The parties did not cite relevant cases, including *Foland v. Jackson County*, which involved a deadline for submitting a development plan. In that case, the court found no ambiguity in the ordinance regarding the deadline despite the absence of specific language about appeals affecting it. The current case is distinguished from *Foland* because the ordinance there explicitly addressed the deadline. The petitioner’s site plan does not mention headwalls or mining, and respondents have provided an alternative interpretation based on the ESEE decision. The petitioner did not convincingly argue that the county's interpretation conflicted with the comprehensive plan's purpose or violated land use goals. The court's review was limited to whether LUBA's decision was "unlawful in substance," and LUBA found the county's interpretation inconsistent with ORS 197.829(1)(a) and the Siporen standard, a conclusion that both parties and the court are addressing.