- Court: Oregon Court of Appeals
- Area(s) of Law: Land Use
- Date Filed: 04-03-2013
- Case #: A152777
- Judge(s)/Court Below: Nakamoto, J., for the Court; Armstrong, P.J.; and Egan, J.
- Full Text Opinion
Landowner appealed a decision by the Land Use Board of Appeals (LUBA) upholding two ordinances enacted by Umatilla County. The first ordinance was enacted to protect highly erodible soils and federally protected species and the second required a two-mile setback from any urban growth boundary or rural residence for any wind power generation facility. Landowner argued that the first ordinance impacted Goal 5 of the state land-use goals and needed to be enacted pursuant to OAR 660-023-0250(3)(a), and that the second ordinance was pre-empted by state and federal laws. The Court affirmed LUBA's decision and held that the first ordinance's express goal was not to protect Goal 5 resources, but to comply with federal laws, and thus did not need to follow the procedures laid out in the OAR's. However, the Court remanded LUBA's decision regarding the second ordinance. LUBA had decided that landowner had waived its pre-emption objection because it had appealed similar ordinances in the past, but not pre-emption. The Court held that the quasi-legislative nature of the ordinances made this a separate judicial proceeding and not subject to waiver of an argument, and remanded to LUBA to decide the merits. Affirmed in part,reversed in part, and remanded.