Setniker v. Polk County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 01-06-2017
  • Case #: 2016-072
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

ORS 215.431 provides some circumstances where a governing body can delegate to a hearings officer the conduct of hearings on plan amendments, and the authority to render a final decision, but the statute excludes cases involving a comprehensive plan amendment regarding agricultural land; where ORS 215.431(1) does not operate, the governing body cannot delegate to the hearings officer the conduct of hearings and the county’s final decision on a plan amendment.

     Petitioners appealed the county board of commissioners’ approval of comprehensive plan text amendments, zoning map amendment, and a conditional use permit, to facilitate a mining operation on exclusive farm use zoned land.

     Petitioners first argued that the county erred by conducting the remand proceeding in front of the hearings officer and not the board of commissioners, as required under ORS 215.060 and Polk County Zoning Ordinance (PCZO) chapter 115. Specifically, the petitioners argued that under PCZO 111.280, the hearings officer lacked authority to render a final decision on a remand from LUBA of a comprehensive plan text amendment, because the code requires it be processed through a legislative procedure. Petitioners further argued that delegation was inconsistent with ORS 215.060 and ORS 215.431. Respondents responded that PCZO 111.280 is not limited to remand of quasi-judicial permit decisions and may be applied to decisions that involve comprehensive plan text amendments.

     LUBA agreed with the petitioners, finding that the county’s application of PCZO 111.280(C) was inconsistent with the county’s obligations under ORS 215.060, read in context with ORS 215.431. ORS 215.060 requires the county’s governing body to conduct a public hearing and make the final decision on the comprehensive plan amendment. ORS 215.431 provides for some circumstances where the governing body can delegate to a hearings officer the conduct of hearings on plan amendments and authority to render a final decision. Comprehensive plan amendments regarding agricultural land are not included in ORS 215.431. LUBA further stated: “nothing in the record suggests that the commissioners in the present case rendered anything more than a pro forma decision on the plan amendment, if not a forced ‘yes.’” LUBA remanded in order for the board of commissioners to adopt the county’s final decision on the proposed plan amendment. REMANDED