Posted by: Patricia Salkin | May 3, 2017

OR Appeals Court Finds Compliance Officer’s Notification of Non-Violation was not a “Land Use Decision” Reviewable by the Land Use Board of Appeals (LUBA)

Petitioner Kenneth Thomas appealed from a decision of the circuit court dismissing his petition for a writ of review and his second amended complaint seeking a declaratory judgment.  The proceedings arose out of petitioner’s objections to an order of the Wasco County Board of Commissioners granting a permit for an “outdoor mass gathering” to petitioner’s neighbor, respondent Wolf Run Ranch LLC, which owned 254 acres in Wasco County. The subject property was partially forested and zoned for forest use; within the parcel is a field of approximately 92 acres. The property also included a single-family dwelling, several small barns, garages and other outbuildings, and a driveway to the dwelling. Petitioner owned timbered land adjacent to the subject property. In March 2013, respondent Moonshine Events LLC, doing business as “What the Festival”, filed an application with the county seeking a permit for an outdoor mass gathering on Wolf Run, with an anticipated festival attendance of 4,000 to 5,000 attendees and 600 to 800 staff.

Although at the time this case was heard the 2013 festival had already been held and the the permit authorizing it had expired, the case was not found to be moot as the improvements made to the property were claimed to constitute an ongoing fare hazard, and the festival was planned to take place annually. On appeal, Petitioner asserted that the trial court erred in concluding that the county was not required to consider whether Wolf Run and Moonshine had the land use approvals necessary to allow them to comply with the health and safety conditions that the county imposed as a condition of granting the outdoor-mass-gathering permit. The court found that the applicable ordinance, ORS 433.750, did not require an applicant for an outdoor-mass-gathering permit to demonstrate compliance with land use regulations. This ordinance only prescribed what must be included in an application for an outdoor-mass-gathering permit, but did not specify that the applicant must demonstrate compliance with land use regulations. Additionally, ORS 433.745 stated only that the outdoor-mass-gathering permit did not, by itself authorize permanent physical alterations to the property on which the gathering will occur; however, the ordinance was did not say how authorization for any such alterations could be obtained. As such, the court found that neither ORS 433.745 nor ORS 433.750 required an applicant for an outdoor-mass-gathering permit to demonstrate compliance with land use laws, or required a county to consider an applicant’s compliance with those laws in evaluating an application for an outdoor mass gathering. Accordingly, the court held that the circuit court did not err in entering judgment for respondents in the writ of review proceeding.

The petitioner next alleged that Wolf Run and Moonshine constructed various permanent improvements for which they did not seek county approval and for which no development permits had been issued, and that the county was allowing the development in violations of land use regulations and state law. Additionally, Petitioner alleged that the improvements would cause him irreparable harm. Here, the NNV did not purport to resolve ambiguities in the county’s permitting ordinances or to provide an interpretation of the ordinances or the existing permits resulting from the exercise of policy or legal judgment. Instead, the NNV only determined that there had been no violation, reasoning that the parking and vehicle staging areas required by the permit were “temporary” and reciting the conclusion of planning staff that the proposed “driveway” and culvert were permitted in conjunction with the existing dwelling and residential use. As such, the court held that the NNV fell outside the definition of a land use decision under ORS 197.015(10)(b), and therefore petitioner could not have pursued an appeal of the NNV to LUBA to address his concerns relating to development on the subject property. Accordingly, the court held that the dismissal of plaintiff’s second claim for declaratory relief should be reversed and remanded; the decision was otherwise affirmed.

Thomas v Wasco County, 284 OR App. 17 (3/1/2017)

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