Delta Property Company LLC v. Lane County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 05-05-2014
  • Case #: 2013-061
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under ORS 215.213(2), a county may restrict mining in marginal lands zoned for exclusive farm use beyond the requirements of the statute by enacting its own legislation to supplement the statute.

Delta Property Company (Delta) applied for a special use permit under ORS 215.213(2), to mine gravel and aggregate resources on land zoned for exclusive farm use (EFU), adjacent to their existing mine. This land is outside of Eugene’s UGB, but inside the Metro Plan area of Lane County. The county denied the permit and Delta appealed, arguing that: (1) County erred in determining that the proposed expansion was not on the Metro Plan inventory of significant aggregate resource sites (ISARS), (2) County erred in denying the permit on the basis that the proposed site was not “included on an inventory in the acknowledged Lane County Rural Comprehensive Plan (RCP),” despite a requirement in their land use code, and (3) County erred in determining that Delta failed to carry their burden of showing that the expansion would not cause a “significant change” or “significantly increase the cost” of “accepted farm practices.”

Reviewing a 1978 Sand & Gravel Working Paper (S&GWP) and Metro Plan Technical maps, LUBA determined that Metro Plan Technical Map 3 was the appropriate Metro Plan ISARS. Therefore the county erred in concluding that the S&GWP contained the ISARS, as it only shows resource sites designated as sand and gravel. Regarding the second assignment of error, LUBA determined that the county interpretation of its own EFU zone requirements was plausible, and upheld the county’s decision. The Metro Plan ISARS controls the area in question, not the Lane County RCP; however, it was plausible that the requirement in the Lane County code that the site be included on an “acknowledged RCP” represented a desire to control the EFU zoning more stringently. On the third assignment of error, LUBA was not prepared to find that Delta had carried its burden, but questioned the county’s request for air dispersion modeling to assess the impact of dust from the expansion. Furthermore, there was no evidence on the record that the expansion would “significantly increase the cost” of nearby farming, and thus it could not be said that Delta failed to carry its burden just because they had failed on the “significant change” aspect. Because denying the second assignment of error presented an independent basis for the county’s decision, LUBA upheld the decision of the county to deny the permit. AFFIRMED.