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Landwatch Lane County v. Land Conservation And Development Commission

Court of Appeals of Oregon

March 7, 2018

LANDWATCH LANE COUNTY, Petitioner,
v.
LAND CONSERVATION AND DEVELOPMENT COMMISSION, Respondent.

          Argued and submitted September 13, 2016, St. Mary's Academy, Portland.

         Land Conservation and Development Commission 15EO001863

          Sean T. Malone argued the cause and fled the briefs for petitioner.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Sercombe, Senior Judge. [*]

         Case Summary: This case concerns whether the Land Conservation and Development Commission (LCDC) erred in determining that there was not "good cause to proceed" to an enforcement hearing that petitioner had demanded against Lane County. See ORS 197.324(2)(b). The question on review is whether petitioner presented evidence of a "pattern of decision making" sufficient to obligate the commission to determine that there was "good cause to proceed" to an enforcement hearing. See OAR 660-045-0020(9), (10). Held: LCDC's order was not unlawful in substance and was supported by substantial evidence in the whole record.

         Affirmed.

         [290 Or.App. 695] SERCOMBE, S. J.

         This case concerns whether the Land Conservation and Development Commission (LCDC) erred in determining that there was not "good cause to proceed" to an enforcement hearing that petitioner had demanded against Lane County. See ORS 197.324(2)(b) (before proceeding to a hearing on a privately initiated enforcement petition, LCDC must "determine if there is good cause to proceed on the petition"). Petitioner asked LCDC to conduct that enforcement hearing and order the county to adhere to particular procedural requirements in Lane Code (LC) 14.050. After a preliminary hearing, LCDC entered an order in which it determined that petitioner failed to prove that the county had engaged in a pattern of noncompliance with LC 14.050, and, accordingly, that there was not good cause to proceed to an enforcement order hearing. On appeal, petitioner argues that the number of proven violations of LC 14.050 shows a substantial pattern of noncompliance and "good cause to proceed" as a matter of law. We conclude that LCDC's order was not unlawful in substance and that it was supported by substantial evidence in the whole record. ORS 197.335 (2)(a), (d) (standard of review for final enforcement orders). Accordingly, we affirm.

         We first set out the legal context of the LCDC order. LCDC is authorized to adopt statewide land use policies that govern the content of local land use comprehensive plans. ORS 197.040. It is also authorized to approve comprehensive plans as consistent with those policies, and undertake enforcement actions against local governments for failure to comply with the statewide policies, the plans, or regulations that implement a plan. ORS 197.320. ORS 197.320 empowers the commission to order a local government to bring its land use policies and decisions into compliance with the statewide planning goals, the provisions of a comprehensive plan, or local land use regulations. One of the bases for a compliance order is when "[a] local government has engaged in a pattern or practice of decision making that violates an acknowledged comprehensive plan or land use regulation." ORS 197.320(6). As we explained in Schoonover v. LCDC, 104 Or.App. 155, 158-59, 799 P.2d 679 (1990), "ORS 197.320 applies when there is a generalized failure by a planning [290 Or.App. 696] jurisdiction to comply with various requirements of the land use laws, over and above any errors in a particular land use decision."

         Enforcement proceedings may be initiated by LCDC or by a private party. ORS 197.324. ORS 197.319 to ORS 197.335 prescribe the procedures by which a citizen may seek LCDC enforcement of local land use planning requirements. Pursuant to ORS 197.319(1), a citizen must present the reasons for an enforcement order to the affected local government and request modifications to particular land use policies or an action by the local government to effect existing policy. If the local government "does not act in a manner which the requestor believes is adequate to address the issues raised in the request * * * a petition may be presented to [LCDC] under ORS 197.324." ORS 197.319(2)(c).

         Under ORS 197.324(2), when that petition is presented, "(b) The commission shall determine if there is good cause to proceed on the petition.

         "(c) If the commission determines that there is not good cause to proceed on the petition, the commission shall issue a final order dismissing the petition, stating the reasons therefor.

         "(d) If the commission determines that there is good cause to proceed on the petition, the commission shall proceed as set forth in ORS 107.328 [describing the hearing procedures for an enforcement proceeding]."

         OAR 660-045-0040-one of a series of rules adopted by the commission to implement ORS 197.319 to 197.335- sets out the content of an enforcement demand presented to a local government under ORS 197.319. When a requestor seeks enforcement based on allegations of a pattern of non-compliant decisions, the requestor must describe (1) "the mode, method, or instance of decision making that constitutes the pattern, " (2) "an estimate of the total number of decisions making up the pattern, " and (3) "[t]he period within which the decisions constituting the pattern were made." OAR 660-045-0040(4). After the local government [290 Or.App. 697] response, see OAR 660-045-0050, if the requestor wishes to commence compliance proceedings with the commission, it must file a petition with LCDC that contains, "(a) A request for the commission to adopt an enforcement order to secure the corrective action sought in the citizen's initial request to the affected local government or district;

         "(b) An explanation of why the affected local government or district's response to the request is not adequate, or a statement that the affected local government or district failed to respond; and

         "(c) A statement of the consequences likely to result from the affected local government or district's refusal to take adequate corrective action."

         OAR 660-045-0060(1).

         The petition is then reviewed by the Department of Land Conservation and Development which recommends a course of action to the commission. OAR 660-045-0090 provides, in part:

         "(1) The commission shall conduct a public hearing to determine whether there is good cause to proceed ...


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