Foland v. Jackson County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 09-30-2014
  • Case #: 2014-050
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

A “water system” for the purposes of a Goal 11 (Public Facilities and Utilities) exception only includes water to be used for human consumption; modification of proposal to change the source of landscape irrigation water would not constitute a change of this “system” and thus does not require approval of a new “reasons” exception.

In 2007, the Oregon Department of Transportation (ODOT) applied for statewide planning goal exceptions for a proposed highway rest stop, most notably Goal 11 (Public Facilities and Utilities), required because the rest area would connect to Ashland’s sewage system. In 2009, the county approved the plan subject to a condition that ODOT obtain city council approval to connect to city sewer and water lines. Following three appeals, ODOT sought to modify the condition to receive water for landscaping irrigation from the Talent Irrigation District (TID). The county board of commissioners approved and Foland appealed to LUBA.

Foland first argued that the modification constituted a change in the “types or intensities of uses” requiring a new Goal 11 “reasons” exception. LUBA determined that the “type” would not change. The “water system” requiring the exception would not include non-potable sources such as those for landscape irrigation. Water for human consumption would still be supplied by the city system. The “intensity” would similarly remain unchanged as the only change was to the source of landscape irrigation water. Foland next argued that the county erred in commencing proceedings for the condition modification before the last appeal was resolved. LUBA disagreed, noting that the county only commenced the proceedings, but did not adopt a decision until three months after the resolution of that appeal. Foland argued that the county erred by approving the modification without requiring ODOT to submit a final landscape plan. However, LUBA determined that there was no requirement to submit a final plan for the current proceeding. Lastly, Foland argued that the county’s findings regarding fire suppression and reliability of the TID water source were inadequate. LUBA held that the county directly addressed the issue and was not required to confront conflicting evidence on which the decision maker did not rely. AFFIRMED.