Rogue Advocates v. Josephine County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 10-15-2015
  • Case #: 2014-095/096
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

If a party’s assertion is cited as an important justification for a plan amendment (e.g., the need for more aggregate sites), and that assertion is essential to a finding of compliance with Josephine County Rural Land Development Code 46.040(D)(2)(which provides that “[t]he more [a] change introduces inconsistent densities and uses into an area, the greater the burden on the applicant to justify the basis for the change”), then there must be substantial evidence on the record to support the assertion.

The subject property is a 212-acre tract, located at the southwest corner of the intersection of Placer Road and Daisy Mine Road, zoned Woodlot Resource, Rural Residential, and Serpentine. The surrounding neighborhood includes approximately 48 houses within 1,500 feet of the site, most located along Placer Road along the north border of the subject property. Sunny Valley Sand and Gravel, intervenor, proposed to mine 112 acres of the site over a period of 20 to 40 years. After mining is completed, intervenor proposes to reclaim the property to a series of ponds and 16 lakes. On April 28, 2014, the county planning commission held a hearing on the relevant applications, which was continued for three additional hearings. On June 2, 2014, the planning commission voted to recommend adding the site to the county’s inventory of significant mineral and aggregate sites, but tied 3-3 on recommendations to plan and zone the property to allow the proposed mining operation. After multiple hearings before the commission, Rogue Advocates and William and Elizabeth Corcoran appealed.

LUBA sustained the Corcorans’ first assignment of error (Rogues Advocates’ fifth assignment of error), as well as Rogue Advocates’ second assignments of error. LUBA found that the county had not given the petitioners time to review and respond to various letters submitted during the proceedings below, which formed part of the basis for the county’s decisions. Rogue Advocates further alleged in a sub-assignment that the county misconstrued OAR 660-023-0180(7), which requires in relevant part that the county “shall follow the standard ESEE [economic, social, environmental and energy] process in OAR 660-023-0040 and 660-023-0050 to determine whether to allow, limit, or prevent new conflicting uses within the impact area[.]” LUBA agreed with Rogue Advocates’ position that the county misconstrued OAR 660-023-0180(7) and the county decision was REMANDED.