ENTRY FORM | ||
| CALENDAR STATUS: Cancelled | ||
 | | |
SC Number: | | S056377 |
CA Number: | | A138263 |
Case Title: | | Elizabeth Johnson v. Jefferson County |
Date: | | 06/11/2009 |
Time: | | 09:30 AM |
Location: | | Supreme Court |
Attorneys: | | Paul D. Dewey, on behalf of petitioners on review, Central Oregon Landwatch, Friends of the Metolius and Pete Schay David C. Allen, on behalf of respondent on review, Jefferson County Megan D. Walseth, on behalf of respondent on review, Ponderosa Land & Cattle Co. Roger A. Alfred, on behalf of respondents on review, Dutch Pacific Resources and Shane Lundgren |
Comments: | | |
Statement of Issues: | | Elizabeth Johnson v. Jefferson County (S056377) (A138263) (on review from a final order of the Land Use Board of Appeals; opinion reported at 221 Or App 156, 189 P3d 30 (2008)). Petitioners Central Oregon LandWatch, Friends of the Metolius, and Pete Schay seek review of a Court of Appeals decision affirming a decision of the Land Use Board of Appeals (LUBA) that, in turn, affirmed in part a decision of the Jefferson County Board of Commissioners to adopt certain amendments to the county's comprehensive plan (post-acknowledgment plan amendments, or PAPAs) and certain amendments to zoning ordinances. In 2006, the Jefferson County Board of Commissioners considered amendments proposed by the county's planning commission to amend the Jefferson County Comprehensive Plan as well as the Jefferson County Zoning Ordinance, in order to provide for the siting of destination resorts in Jefferson County (county, respondent below). Ultimately, the county adopted a number of changes to the plan and changes to the zoning ordinances at issue in the present case. Petitioners appealed to LUBA. Petitioners argued that the county erred in adopting the new provisions without going through a new Goal 5 process or conducting an environmental, social, economic, and energy impact (ESEE) analysis where new uses could conflict with Goal 5 resources because, they contended, destination resorts are new uses that will conflict with the protection of the Metolius River and its headwaters, which are identified as Goal 5 resources. More specifically, petitioners expressed concern that destination resorts could impact the groundwater resource that provides the entire flow of the Metolius River at its source. LUBA disagreed with petitioners' premise that the groundwater that feeds the springs at the head of the Metolius River must be an inventoried significant Goal 5 resource, because the county's acknowledged comprehensive plan had concluded that the county did not have sufficient information about groundwater to perform an ESEE analysis or develop a county program to protect groundwater. Under OAR 660-023-0030(3), which permits local governments to avoid the Goal 5 process for sites with inadequate information, LUBA concluded that the county did not err by rejecting petitioners' concerns about potential groundwater impacts as a basis for requiring that Goal 5 be applied to the disputed PAPAs. Likewise, LUBA also rejected petitioners' argument that the county's Goal 5 inventory should have been updated when the county amended its comprehensive plan. In support, LUBA relied on Urquhart v. Lane County Council of Governments, 80 Or App 176, 179-80, 721 P2d 870 (1986) (local governments are not required to update their Goal 5 inventories as part of the PAPA process). Ultimately, LUBA remanded on several other grounds that are not at issue here. Petitioners sought judicial review, and the Court of Appeals affirmed. The court agreed with LUBA that the fact that groundwaters explicitly were excluded from the county's Goal 5 inventory was dispositive. The court also declined to distinguish or reconsider its holding in Urquhart, as petitioners requested, noting that the Urquhart decision had since been codified in an administrative rule, OAR 660-023-0250, and petitioners had not challenged the validity of that rule, but only the correctness of its application. On review, the issues are: (1) Whether the assessment of conflicting new uses to a protected Goal 5 resource under OAR 660-023-0250(3)(b) need not take place if the means of impact is not itself a designated Goal 5 resource itself. (2) Whether the scope of a Goal 5 protected resource should be interpreted broadly to include all of its resources and to recognize specific protections over general exclusions. The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20. |
Justice(s) NOT Participating: | ||
Thomas Balmer, Martha L. Walters | ||