Court: Court of Appeals of Oregon; August 29, 2012; Oregon; State Appellate Court
Petitioner Devin Oil Co. Inc. seeks judicial review to reverse and remand a Land Use Board of Appeals (LUBA) order that upheld Morrow County's adoption of a Limited Use (LU) overlay zone and approved Love’s Travel Stops & Country Stores, Inc.'s plan to develop a travel center at a freeway exit on Interstate Highway 84. Devin Oil, which operates a competing business nearby, argues against LUBA's decision. The legal proceedings involve a complex history noted in a prior case (Devin I), where the subject property was described as a 49-acre undeveloped parcel near the Boardman Airport, designated as Industrial and zoned Space Age Industrial (SAI). Love's application sought amendments to convert the property to Commercial zoning and Tourist Commercial (TC) designation to develop a travel center, requiring a conditional use permit due to its location in an Airport Approach (AA) overlay zone.
On May 5, 2010, Morrow County approved the amendments with conditions, including one limiting development to a travel center or similar use. Devin Oil appealed this decision to LUBA, which remanded the case on several grounds. LUBA found that the county improperly relied on conditional zoning rather than the established LU overlay for limiting uses, and also determined there was insufficient evidence to support the county's conclusion regarding the development's impact on Tower Road under the Transportation Planning Rule (TPR). Additionally, LUBA required the county to address transportation-related issues linked to the conditional use permit.
On remand, the county applied a Limited Use (LU) overlay zone to comply with OAR 660-004-0018(4), imposing a new Condition 6 similar to a previous one under the TC zone change. This overlay permits only the construction of a travel center or comparable uses. The county concluded, based on additional evidence submitted by Love’s, that the development under the TC zone, if limited to the proposed travel center, would not significantly impact transportation facilities. The county found compliance with two local conditional use permit standards and ultimately approved the plan/zone amendment and conditional use permit on October 26, 2011.
Petitioner Devin Oil appealed to LUBA, challenging the LU overlay zone's imposition under Morrow County Zoning Ordinance (MCZO) 3.110. This ordinance aims to restrict permitted uses to those justified in the comprehensive plan ‘reasons’ exception statement per ORS 197.732(1)(c). The Limited Use Overlay Zone must be applied during the plan amendment and rezoning process, and the adopting ordinance must show that no other zoning district meets the requirements of the exceptions, that the proposed zone is most suitable for the desired uses, and that limiting uses is necessary under the exception rule.
Petitioner disputed the county’s finding that the LU overlay zone was required to limit uses in the TC zone and argued that only compliance with the TPR rule necessitated such restrictions. Additionally, the petitioner challenged Condition 6, claiming its wording allowed for uses beyond the proposed travel center, potentially violating TPR consistency. LUBA affirmed the county’s decision, rejecting the petitioner’s arguments, including the challenge to Condition 6, on procedural grounds. The petitioner subsequently assigned error to LUBA for disregarding the county's findings and drawing its own conclusions regarding compliance with MCZO 3.110(A)(3), which the petitioner argued was inconsistent with the ordinance's language and purpose.
The County concluded that Love’s met the requirements of MCZO 3.110(A)(3) because the land use (LU) overlay zone was deemed 'required' for compliance with Goal 12 and the Transportation Planning Rule (TPR). However, the County did not provide findings addressing evidence that Love’s could comply through transportation improvements identified by its traffic engineer. LUBA overlooked this lack of findings and independently asserted that MCZO 3.110(A)(3) was satisfied. It is the County's responsibility to justify compliance with MCZO 3.110(A)(3), especially since the LU overlay zone is not the only means to achieve compliance with Goal 12 and the TPR. LUBA's interpretation that the LU overlay zone is 'required' contradicts the explicit language of MCZO 3.110(A)(3) and the purpose of that regulation, potentially rendering it meaningless.
The review of LUBA's order is based on whether it is unlawful or lacks substantial evidence, as mandated by ORS 197.850(9)(a)(c). The County's findings on the disputed criterion were examined because the petitioner claimed that the requirements of MCZO 3.110(A)(3) were not met, arguing that the overlay was imposed due to transportation issues, not the proposed uses. The County countered that the exception rule, aimed at implementing Goal 8, did not take an exception to Goal 12, which is governed by the TPR. According to OAR 660-004-0018(1), an exception to one goal does not exempt a jurisdiction from other goal requirements.
A re-zoning to a Town Center (TC) without the LU overlay would contravene the TPR and Goal 12. Since no exception to Goal 12 was made, the County must limit uses to those justified by the exception, thus supporting that MCZO 3.110(A)(3) is satisfied. LUBA's decision indicated that both OAR Division 660-004 and MCZO 3.110 necessitate the application of the LU overlay when the primary zone does not restrict uses to those proposed. The County interpreted MCZO 3.110(A)(3) as requiring consideration of all relevant statewide planning goal requirements, while LUBA appeared to construe it narrowly, suggesting the LU overlay could only be applied if required by the reasons exception to Goals 3 and 14. The petitioner claimed that a desire for consistency with Goal 12 could not solely justify applying the LU overlay.
The county interprets MCZO 3.110(A)(3) to permit the application of the Land Use (LU) overlay zone when limiting uses in the base zone is necessary to meet statewide planning goals, even if no exceptions are adopted for those goals. LUBA noted that the petitioner did not contest this interpretation's compatibility with OAR 660-004-0018(1). The county's reliance on OAR 660-004-0018(1) underscores that exceptions to one goal do not exempt jurisdictions from other goal requirements or authorize non-compliant uses, densities, or facilities. MCZO 3.110(A)(3) mandates that the exception rule requires limited uses at the site, which the county found in OAR 660-004-0018(4)(a). This provision indicates that local governments taking exceptions must restrict uses to those justified by the exception. The LU overlay zone limits uses in the Town Center (TC) zone not only for Goal 12 concerns but also to remain consistent with the reasons for the exception to Goal 3. The county’s previous order justified this exception by ensuring that transportation improvements would not disrupt agricultural traffic. Thus, the county’s actions complied with MCZO 3.110(3), irrespective of whether that provision explicitly required limitations consistent with statewide goals, including Goal 12. The petitioner cited no authority against the county’s approval of the LU overlay zone that could also address other statewide planning goals. The petitioner had previously asserted that the LU overlay zone was essential for compliance with OAR 660-004-0018(4), which LUBA upheld as the only provision in Morrow County’s Zoning Ordinance explicitly intended for this compliance. Consequently, LUBA determined that the LU overlay zone is necessary to ensure adherence to OAR 660-004-0018(4) in the absence of a limited primary zone, and this ruling is upheld in the current review.
Petitioner’s first subargument is rejected due to the lack of evidence supporting the claim that improvements could justify a complete rezone of the property to TC without a Land Use (LU) overlay. The petitioner contends that the evidentiary record supports their position and that LUBA erred by deciding the issue independently rather than remanding it to the County for further findings. The County's findings must address compliance with specific local approval standards, which they failed to do regarding MCZO 3.110(A)(3). LUBA's jurisdiction is limited to reviewing County decisions, not making independent assessments.
The petitioner argues that evidence exists showing alternatives to the LU overlay for compliance with Goal 12 and the Transportation Planning Rule (TPR), but this does not affect the County’s decision to adopt the overlay to limit uses as required. The second subargument in the first assignment of error is therefore also rejected.
In the second assignment of error, the petitioner claims LUBA erred in deeming their challenge to Condition 6 of the LU overlay decision as resolved. This challenge is valid because Condition 6 arises from the County's new LU overlay decision following the invalidation of the previous decision in Devin I. LUBA's reasoning, which equates Condition 6 with earlier conditions, overlooks that the prior condition was invalidated and that the County applied new approval criteria post-remand. Furthermore, respondents did not raise the argument of resolution at the lower level, which LUBA failed to consider. The exception rule mandates that the County limit uses on the site, a requirement previously satisfied by Condition 6, which allowed only specific types of development.
In Devin I, the petitioner did not challenge the substance of Condition 6 regarding compliance with OAR 660-004-0018(4). LUBA found that the county had improperly limited uses on the site and remanded the decision, instructing that such limitations should be imposed through a Limited Use (LU) overlay. Upon remand, the county adopted a new condition identical to Condition 6 from Devin I, with the only difference being its placement within an LU overlay rather than as a condition of approval. LUBA determined that the petitioner waived its challenge to the language 'other use of similar density, configuration or type' because it could have been raised in an earlier appeal. The petitioner previously challenged Condition 6 related to the TC zone change but did not argue the sufficiency of the language concerning the TPR. LUBA's remand was limited to the acceptance of additional evidence on unrelated issues, and the petitioner’s current challenge was deemed waived under Beck v. City of Tillamook, which holds that issues decided adversely in earlier proceedings cannot be re-raised later. The similarity between the new condition and the prior zone change condition does not permit a renewed challenge. Moreover, the legal principle established in Beck dictates that once an issue has been addressed and not judicially reviewed, it cannot be revisited in subsequent proceedings. Thus, LUBA concluded that the petitioner’s assignment of error was not valid, as it sought to challenge a previously decided issue.
Legislative policy emphasizes the urgency of finalizing land use decisions, discouraging protracted appeals. In this case, the limitation on land use was known during the initial appeal (Devin I) and remained unchanged upon remand. The adequacy of this limitation could have been contested in the first appeal, and the application of a different mechanism does not alter the validity of the original limitation. LUBA previously determined that the LU overlay was the appropriate tool for regulating land use on the property in question. The adequacy of the limitation is subject to the exception rule under OAR chapter 660, division 4, rather than the criteria in MCZO 3.110(A), which pertains to the initial appropriateness of limiting uses. The petitioner failed to challenge the county's imposed limitation during the first appeal, thus waiving that challenge. As a result, the second assignment of error is rejected, and the decision is affirmed. Additionally, the Transportation Planning Rule (TPR) mandates that comprehensive plan or zoning map amendments that significantly affect transportation facilities must comply with specific mitigation measures. A 'reasons exception' allows the county to deviate from certain Statewide Land Use Planning Goals if justified.
