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Mark Latham Excavation, Inc. v. Deschutes County

Summarized by: 

Date Filed: 06-20-2012
Case #: A150685
Nakamoto, J. for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/Publications/A150685.pdf

Land Use: When a county makes a decision concerning a Goal 5 land plan/use, the reasons it relies upon in garnering that decision must have existed at the time the original regulation was adopted. If the local government never contemplated a particular act, then the reasons do not exist

Respondent Deschutes County ("County") sought judicial review of a final opinion and order of the Land Use Board of Appeals ("LUBA"), in which LUBA granted petitioner, Mark Latham Excavation, Inc. ("Latham"), approval to expand its existing mining operation/plan. County had prohibited further mining of a headwall until a plan amendment was submitted and approved for that use, pursuant to the county’s Program to Meet the Goal (PTMG), which was a legislative plan to accomplish statewide land goals. Latham argued that the original zoning regulations did not expressly restrict headwall mining, whereas County contended that the PTMG's silence on the issue categorically prohibits, for now, headwall mining, as such use could not have been contemplated at the PTMG's inception and an amendment to the regulation must first be approved. According to the Court, and pursuant to Columbia Steel Castings Co. v. City of Portland, when a county makes a decision concerning a Goal 5 land plan/use, the reasons it relies upon in garnering that decision must have existed at the time the original regulation was adopted. In this case, the County never considered further mining headwalls because the local government did not know how headwall mining would affect local resources. Therefore, headwall mining was not contemplated at PTMG's inception. Reversed and remanded.