Opinion
CA A91703 (Control) CA A91734 (Cases Consolidated)
Argued and submitted June 26, 1997
Reversed and remanded for reconsideration July 23, McKay Creek Valley Association's petition for review filed August 26 allowed by opinion October 23, 1997 See 326 Or. 64, 947 P.2d 206 (1997) LCDC's petition for review filed September 24 allowed by opinion October 23, 1997 See 326 Or. 66, 947 P.2d 206 (1997)
Judicial Review from Land Conservation and Development Commission.
Alan A. Rappleyea, Senior Assistant County Counsel, argued the cause for petitioner Washington County. With him on the brief was Dan R. Olsen, Washington County Counsel.
Robin A. Jones argued the cause for petitioner Bruce Bergey. With her on the brief was Lindsay, Hart, Neil Weigler.
Stephanie Striffler, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.
F. Blair Batson filed the briefs for intervenor.
Before Deits, Chief Judge, and Riggs and De Muniz, Judges.
DEITS, C.J.
Reversed and remanded for reconsideration.
Petitioners Washington County and Bergey seek review of LCDC's enforcement order relating to the county's processing of certain pending farm dwelling applications. In effect, the order requires the county to follow and apply the requirements of LCDC's high-value farmland rules, OAR 660-33-120 et seq, rather than county regulations that existed at the time of the enforcement proceeding and that are inconsistent with the LCDC rules. Both petitioners argue, and we agree, that under our decisions in Lane County v. LCDC, 138 Or. App. 635, 910 P.2d 414, on recons 140 Or. App. 368, 914 P.2d 1114, rev allowed 324 Or. 305 (1996), and Oregonians in Action v. LCDC, 147 Or. App. 342, 936 P.2d 372 (1997), various provisions of the high-value farmland rules that are pertinent here cannot be applied validly in Washington County. But see Marquam Investment Corp. v. Multnomah County, 147 Or. App. 368, 377-78, 936 P.2d 990 (1997). Accordingly, we must reverse and remand the enforcement order to LCDC.
Petitioner Bergey argues further that the order is also erroneous insofar as it pertains to three dwelling applications of his which, he maintains, the county approved at some time that the record does not reveal but that predated LCDC's issuance of the enforcement order. However, because we have reversed and remanded the entire enforcement order, it is not necessary for us to resolve Bergey's alternative argument. Moreover, the record in this enforcement proceeding does not provide us with sufficient information to resolve Bergey's argument relating to the specific land use decisions.
In its brief to us, LCDC argues that the applications had not been finally approved at the relevant time. That is among the matters that the record does not enable us to answer definitively.
Reversed and remanded for reconsideration.