Argued and Submitted: July 28, 2014.
Land Use Board of Appeals. 2013061.
Zack P. Mittge argued the cause for petitioners Joel and Teresa Narva. With him on the joint briefs was Hutchinson, Cox, Coons, Orr & Sherlock, P.C.; and Stephen L. Vorhes and H. Andrew Clark for petitioner - cross-respondent.
Stephen L. Vorhes argued the cause for petitioner - cross-respondent.
Bill Kloos filed the brief for respondent - cross-petitioner.
Lauren A. King, Joseph J. Leahy, Leahy, Van Vactor, Cox & Melendy, Edward J. Sullivan, Carrie A. Richter, and Garvey Schubert Barer filed the brief amici curiae for City of Springfield and Springfield Utility Board. On the answering brief amici curiae for City of Eugene, City of Springfield, and Springfield Utility Board, were Anne C. Davis, Lauren A. King, and Leahy, Van Vactor, Cox & Melendy.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 614] NAKAMOTO, J.
This land use dispute concerns the proposed expansion of Delta Property Company, LLC's (Delta) aggregate and gravel mining operation located in rural Lane County near the City of Eugene. The case is before us on cross-petitions for judicial review of a final order of the Land Use Board of Appeals (LUBA). LUBA affirmed Lane County's (the county) denial of Delta's application for a special use permit for the mining expansion. The county had concluded that, under Lane Code (LC) 16.212(4)(y)(ii), it could not issue a permit unless Delta's mining expansion site was listed on the county's inventory of significant aggregate resources within the acknowledged Lane County Rural Comprehensive Plan (Rural Plan or RCP). Indisputably, the site was not on the county's inventory. In affirming, LUBA deferred to the county's reading of its own ordinance.
LUBA also decided an additional issue, in case we were to reverse as to the challenged interpretation of the county's ordinance. LUBA determined, contrary to the county's decision, that Delta's land is on a certain type of Goal 5 inventory of significant aggregate resources in the Metropolitan Area General Plan (Metro Plan). The Metro Plan is an acknowledged comprehensive plan for the greater Eugene-Springfield metropolitan area, including the cities of Springfield and Eugene and part of Lane County. Delta's proposed expansion site lies within the Metro Plan territory, not the Rural Plan territory.
In their petition for judicial review, the county and local landowners Joel and Teresa Narva (intervenors), who intervened on behalf of the county before LUBA, contend that LUBA's determination regarding the Metro Plan inventory was wrong and will have lasting adverse effects on future land use decisions. In its cross-petition for judicial review, Delta challenges the denial of its special use permit. Specifically, Delta contends that LUBA erred when it accepted the county's proffered interpretation of its ordinance, contending that the interpretation is implausible given that Delta's expansion site is located within the Metro Plan territory and therefore would not and could not have [271 Or.App. 615] been included in the Rural Plan inventory, irrespective of its worth as an aggregate resource.
We review LUBA's order to determine whether it is " unlawful in substance," ORS 197.850(9)(a), and whether the order is " supported by substantial evidence in the whole record as to facts found by the board," ORS 197.850(9)(c). We affirm LUBA's determination that one of the county's interpretations of LC 16.212(4)(y)(ii) was plausible and entitled to deference under ORS 197.829(1). But we reverse that part of LUBA's order addressing Delta's first assignment of error to the county's decision concerning the nature of the Metro Plan inventory and the presence ...