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Talent 4 Clean Air & Water
Sunny Valley S&G

 

TALENT 4 CLEAN AIR & WATER

Training Workshop on Effective Land Use Testimony:  June 19, 2013 &
 

Timeline of Non-Permitted Use In Jackson County Floodplain & Asphalt Plant Land Use: 

2001 - 2016

 
Outline

Title Page

I. INTRODUCTION

A. Sponsorship: 1. Rogue Advocates, 2. Hugo Neighborhood Association & Historical
Society, & 3. Goal One Coalition
B. Citizen Involvement
C. Why am I here? Qualifications?
D. Why Are You Here?
E. Handouts
F. Small Group Follow-up Session
G. Not Legal Advice
H. Guinea Pig

II. EFFECTIVE LAND USE TESTIMONY

A. What Is Testimony That Will Not Be Considered?
B. Findings Are The Key
    1. Land Use Decisions: What Are Findings?
    2. Standards and Criteria
    3. Facts
    4. Standards Are, Or Are Not, Satisfied
    5. Must Address Relevant Issues Raised by Public
    6. Conditions of Approval
    7. LUBA Remand
    8. LUBA Reversal
    9. How To Write Assignments of Error
a) LUBA Procedures & Rules
            (1) Parties
    (2) Appeal
            (3) LUBA Hearing
    (4) Oregon Legislative Rules For LUBA
            (5) Petition For Review (PFR), Petiton, or Brief
      (6) LUBA Headnotes As A Resource
             (7) LUBA Headnotes Indexes
b) Assignments of Error
            (1) Legal Requirement for AOE
    (2) General Definition of AOE
            (3) Local & LUBA Testimony Include AOEs
    (4) Four Sections To An AOE
c) How To Write Assignments of Error
            (1) Assignment of Error
    (2) Standards & Criteria, Relevant Laws & Rules
    (3) Analysis of Facts
                    (a) Applicable Findings/Decisions
            (b) Relevant Facts
                    (c) Analysis of Facts/Arguments
            (4) Conclusion Statement
d) Example Assignments of Error       

III. STANDING IS VITAL

            1. A Party, Or A Witness?
            2. Aggrieved Party
            3. Adversely Affected Party
            4. “Actual” Notice of Decision
            5. Geographic Proximity

IV. FOR THE RECORD, OR NOT MATTERS

V. INSTITUTIONAL RESOURCES

    A. Oregon Land Use Board of Appeals Home Page
            1. Frequently Asked Questions (FAQs)
            2. Statues & Rules: LUBA Scope Of Review
            3. LUBA Headnotes
    B. Land Conservation & Development/Oregon Land Conservation & Development

VI. STRATEGY OPTIONS

VII. PRACTICAL STUFF

VIII. TRAINING EVALUATION

IX. REVISIONS/UPDATES

X. OTHER RESOURCES:

    A. Representation
    B. Web Resources

XI. EVALUATION OF JUNE 19, 2013 TRAINING WORKSHOP ON EFFECTIVE LAND USE TESTIMONY

Appendices

I.A. Sponsorship: Rogue Advocates, Hugo Neighborhood Association & Historical Society, & Goal One Coalition
I.A.1. Goal One Coalition’s Mission
I.B.1.2. Oregon Statewide Goal One - Citizen Involvement
I.B.1.2 Role of Hearing Bodies in Quasi-Judicial Land Use Proceedings
I.C.1. Presenter’s Resume
II.B.2.1.1. Jackson County Land Development Ordinance (LDO) Standards & Criteria
II.B.2.1.2. Specific Jackson County (JA CO) LDO Standards & Criteria
II.B.2.1.3. Rogue Advocates Interpretations of JA CO LDO Standards & Criteria
II.B.9.d) 2004 Example AOE That Local Findings Must Address Relevant Issues Raised by Public
II.B.9.d) 2008 Example Carrying Capacity Standards
II.B.9.d) 2006 Example Summary AOEs For Local Land Use Testimony
II.B.9.d) 2006 Example AOE For Land Use Fee And Appeal Increases
II.B.9.d) 2008 Example AOE For Preserve Rural Character
II.B.9.d) 2008 Example AOE For Statewide Goal 4 Forestry Rules
II.B.9.d) 2008 Example AOE For Ground Water
II.B.9.d) 2008 Example AOE For Necessary Forest Lands
II.B.9.d) 2008 Example AOE For Other Forested Lands
II.B.9.d) 2008 Example AOE For Transportation
V.A.1.1. Frequently Asked Questions (FAQs) to Oregon Land Use Board of Appeals (LUBA): Outline
V.A.1.2. Frequently Asked Questions (FAQs) to Oregon Land Use Board of Appeals (LUBA): Full Text
V.A.1.3. Frequently Asked LUBA Question Number 12
V.A.1.4. Frequently Asked LUBA Question Number 13
 
V.A.2.1  Statues & Rules: LUBA Scope Of Review
V.A.2.2  OAR 661-010-0030 Petition For Review
 
V.A.3. LUBA Headnotes Index
V.A.3. LUBA Headnotes 27.4.1 Procedural Rules - Petition for Review - Generally
V.A.3. LUBA Headnotes 27.5.1 Procedures/Rules – Briefs – Generally
V.A.3. LUBA Headnotes 28.8.1 Reversal/Remand (R/R) Grounds - Generally
V.A.3. LUBA Headnotes 28.8.2 Reversal/Remand Grounds - Lack of Jurisdiction
V.A.3. LUBA Headnotes 28.8.3 Reversal/Remand Grounds- Unconstitutionality
V.A.3. LUBA Headnotes 28.8.4 Reversal/Remand Grounds - Procedural Errors
V.A.3. LUBA Headnotes 28.8.5 R/R Grounds - Noncompliance Applicable Law
V.A.3. LUBA Headnotes 28.8.6 Reversal/Remand Grounds - Inadequate Findings
V.A.3. LUBA Headnotes 28.8.7 LUBA Scope of Review – Grounds for Reversal/Remand

– Unsupported by Substantial Evidence

XI.B.1.1. Land Use Training Brochures Web Published
XI.B.1.2. Web Addresses

Overheads

II.B1. What Are Findings?

II.B.9.a)(5) Petition For Review Contents Requiring AOEs

II.B.9.c) Assignment of Error Defined
II.B.9.c) Four Parts to Assignment of Error
II.B.9.c) Writing Assignments of Error
II.B.9.c) Summary of Local AOEs
 
XII. TIMELINE OF NON-PERMITTED USE IN JACKSON COUNTY FLOODPLAIN & ASPHALT PLANT LAND USE 
 
HISTORY:  Land Use Decisions Of Jackson County, Oregon Hearings Officer; Jackson County Enforcement; History of Permits & DEQ Notices of Violation: and Appeals Both by Rogue Advocates and Mountain View Paving (MVP)  Last Updated March 9, 2015.
 
May 31, 1972  The U.S. Environmental Protection Agency (EPA) approved initial State Implementation Plans (SIPs) for a number of states, including Oregon. 37 Fed. Reg. 10842 (May 31, 1972). Oregon’s SIP provisions are part of the Oregon statutes and administrative rules.
 
2001 Mountain View Paving, Inc.’s (MVP) has operated its asphalt batch plant and associated activities on the subject property since 2001.
 
October 17, 2007  Oregon Department of Environmental Quality (DEQ) re-issued the AQGP-007 general air contaminant discharge permit on October 17, 2007.
 
March 11, 2008  DEQ granted MVP coverage under the permit on March 11, 2008; DEQ’s permit file number for the plant is 37-0522. The permit allows MVP to discharge air contaminants from processes and activities related to hot-mix asphalt pavement production.
 
March 9, 2011  Jackson County Code Enforcement issued a warning of violation for unauthorized use of property, no permits on file for structures on property. County required MVP to submit necessary land use applications.
 
March 21, 2011  Jackson County issued a second warning of violation for MVP unauthorized use of the property.
 
November 2011  In November 2011, MVP filed its first land use applications. Jackson County put a hold on its enforcement proceedings while MVP’s land use applications were being processed. On August 14, 2012, MVP subsequently withdrew those applications and the county continued to hold its enforcement action to allow MVP to re-apply. The Oregon DEQ deferred to the county’s determination of land use compliance.
 
April 4, 2012  Jackson County issued three separate citations to MVP for land use and code violations.
September 26, 2012 On September 26, 2012, MVP filed its second round of applications seeking approval as a lawful nonconforming use and for a floodplain development permit.
 
September 26, 2013  Jackson County Hearings Officer issued decision and final order concluding that a batch plant use on the property was a lawful nonconforming use, but that aspects of current asphalt batching operation constituted unapproved alterations or expansions. Based on those findings, application was ultimately denied, but the prior nonconforming use was partially verified. Floodplain permit application was denied. Rogue Advocates appealed to the Oregon Land Use Board of Appeals (LUBA).  Rogue Advocates appealed those decisions to LUBA because they appeared to partially verify MVP’s asphalt batch plant use. (Rogue Advocates v. Jackson County, (LUBA Nos. 2013-102/103) ("Rogue I")).
 
October 15, 2013  On October 15, 2013, following the county’s decisions, a Jackson County Code Enforcement Officer issued two new citations to MVP for violations of the Jackson County Floodplain Overlay Ordinance (LDO 7.2.2C) and for structures without building permits (JCC 1420)
 
October 18, 2013 Jackson County and MVP entered into stipulated order finding MVP in violation of county code for violation of floodplain ordinance and for commercial structures without building permits. This allowed MVP to continue their unlawful operations so long as they filed new applications.
 
October 25, 2013  MVP filed a new floodplain permit application.
 
January 23, 2014   Jackson County planning staff approved MVP’s second floodplain permit without any public hearing or notice.
 
January 28, 2014. Petitioner Rogue Advocates, Petition For Review, LUBA No. 2013-102/103. Rogue Advocates v. Jackson 20 County, 69 Or LUBA 271 (2014) (Rogue I).
 
February 13, 2014  RA appealed (NOI) Jackson County’s January 23, 2014 decision to LUBA. (Rogue Advocates v. Jackson County, LUBA No. 2014-015 ("Rogue II"))
 
February 18, 2014  Intervenor-Respondent Mountain View Paving, Intervenor-Respondent’s Brief, LUBA No. 2013-102/103. Rogue Advocates v. Jackson 20 County, 69 Or LUBA 271 (2014) (Rogue I).
 
April 22, 2014  Rogue Advocates v. Jackson County, 69 Or LUBA 271 (2014) (Rogue I). LUBA sustained RA’s appeal of nonconforming use decision and remanded the decision back to Jackson County Hearings Officer to make additional findings on MVP’s 2012 application for a nonconforming use. ("Rogue I")
 
June 2, 2014  Petitioner Rogue Advocates, Petition For Review, LUBA No. 2014-015. Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
June 16, 2014 Intervenor-Respondent Mountain View Paving, Motion to Dismiss and Motion To Suspend Briefing Schedule LUBA NO.: 2014-015 Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
June 17, 2014 Petitioner Rogue Advocates, Petitioners’ Response to Intervenor-respondent’s Motion to Dismiss and Motion to Suspend Briefing Schedule, LUBA No. 2014-015. Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
August 5, 2014  Jackson County held another code enforcement hearing for MVP’s operations. A county hearings officer issued an order on August 18, 2014 concluding that MVP did not have the required permits or approvals for its asphalt batching operations on the subject property. However, the hearings officer dismissed the county’s code enforcement action pending the county’s review of the remand order from LUBA in Rogue I.
 
August 18, 2014  Jackson County issued a code enforcement order concluding that MVP did not have required permits for the nonconforming use of the property.
 
August 22, 2014  RA initiated a land use enforcement proceeding against MVP and Jackson County in the Jackson County Circuit Court. The enforcement proceeding was because of the lack of meaningful enforcement by Jackson County. For example, despite the numerous times MVP has been found to be in violation of both state and local laws, neither Jackson County nor DEQ has ever required MVP to cease its unlawful operations on the subject property.
 
August 26, 2014 Rogue Advocates v. Jackson County, 70 Or LUBA 163 (2014) (Rogue II).  LUBA issued its order in Rogue II (i.e., Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014)), remanding the county’s decision on MVP’s floodplain permit finding that the permit was improperly issued and no floodplain permit could issue until asphalt batch plant use was approved. (Rogue Advocates v. Jackson 20 County, 69 Or LUBA 271 (2014) - "Rogue I").
 
October 28, 2014  Tthe Jackson County Hearings Officer issued a decision in the remand of Rogue I. That decision again denied MVP’s application for approval as a nonconforming use, but appearing to approve the nonconforming use in some respect.
 
November 3, 2014 Jackson County issued another code violation citation to MVP for violation of building code, unlawful accumulation of solid waste, an established land use without a required permit, and development in the mapped floodplain without required approval.
 
November 3, 2014  Jackson County issued a code violation citation to MVP on November 3, 2014.
 
November 12, 2014  The Jackson County District Court granted MVP and Jackson County’s motion to dismiss RA’s complaint (i.e., August 22, 2014, land use enforcement proceeding against MVP and Jackson County in the Jackson County Circuit Court) complaint for lack of subject matter jurisdiction on November 12, 2014.
 
November 18, 2014  Petitioner Mountain View Paving, Petition For Review, LUBA 2015-073. Meyer v. Jackson County, LUBA 2015-073, January 11, 2016 (Rogue IV).
 
December 9, 2014  Jackson County held another code enforcement hearing on December 9, 2014.
 
December 19, 2014  Petitioner Rogue Advocates, Petition For Review, LUBA No. 2014-100. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III).
 
December 29, 2014  Rogue Advocates appealed the November 12, 2014 decision of the Jackson County Court to dismiss its complaint to the Oregon Court of Appeals on December 29, 2014. Rogue Advocates has pursued every option available thus far to seek relief from MVP’s ongoing violations of the Clean Air Act and local land use and zoning laws.
 
December 30, 2014  Jackson County issued another code enforcement order finding that MVP was operating asphalt plant and related facilities without required permits and approvals. The order required MVP to file all necessary permits and issued minimal fines for the violations.
 
September 28, 2015  Jackson County issued warning of violation to MVP for failure to obtain building and electrical permits and violations of zoning and land development ordinances.
 
January 6, 2015 Respondent Jackson County, Respondent’s Brief, LUBA No. 2014-100. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III).
 
January 15, 2015  Intervenor-Respondent Mountain View Paving, Intervenor-Respondent’s Brief, LUBA No. 2014-100. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III).
 
January 15, 2015  Intervenor-Respondent Rogue Advocates, Intervenor-Respondent’s Brief, LUBA No. 2015-073. Meyer v. Jackson County, LUBA 2015-073, January 11, 2016 (Rogue IV).
 
January 29, 2015  MVP filed a new land use application seeking approval as an alteration to a nonconforming use. At this point, almost four years had passed since the initial notice of violation, during which time RA diligently pursued enforcement through land use channels, yet the asphalt plant continued to operate.
 
January 30, 2015 Oregon DEQ issued a warning letter to MVP for violating Condition 1.4 of the AQGP-007 Clean Air Act permit for not having land use approval to operate at current location. Warning provided opportunity to correct by March 30, 2015.
 
February 18, 2015   RA sent MVP a notice of intent to sue for its violations of the Clean Air Act.
 
March 19, 2015   Jackson County planning staff issued tentative approval of MVP’s alteration application.
 
March 6, 2015 Rogue Advocates v. Jackson County,   __ Or LUBA __ (March 6, 2015) (Rogue III).  LUBA affirmed Jackson County Hearings Officer’s denial of nonconforming use application on remand of Rogue I, holding that none of the hearings officer’s findings had precedential value for future application to verify asphalt operation.
 
September 24, 2015. Jackson County Hearing Officer’s Order, with Findings of Fact and Conclusions of Law, denied a request for approval of an alteration of a nonconforming concrete   batch plant, to convert that concrete batch plant to an asphalt batch plant.
 
The Jackson County Hearings Officer reversed the decision of planning staff and denied MVP’s application for an alteration of a nonconforming use on September 24, 2015. The hearings officer found that MVP’s asphalt batch plant operation poses an adverse risk of fire and explosion to the surrounding community and is of a more intensive nature than the prior use of the subject property. Based on those findings, the hearings officer concluded that MVP’s operation could not be approved as an alteration to a nonconforming use on the subject property.
 
September 28, 2015  Following this most recent decision denying land use approval for MVP’s operations, Jackson County issued yet another warning of violation to MVP on September 28, 2015.
 
October 6, 2015  Jackson County issued amended warning of violation to MVP for the same violations references in the September 29, 2015 warning. This amended of violation set out the additional penalties MVP may be subject to for its ongoing violations.
 
October 7, 2015  DEQ sent MVP a second warning letter on October 7, 2015 again notifying MVP that its ongoing operations are in violation of condition 1.4 of the AQGP-007 Permit.
 
October 13, 2015  MVP appealed the decision denying its alteration application to LUBA.
 
November 18, 2015  Intervenor-Respondent Rogue Advocates, Intervenor-Respondent’s Petition for Review, LUBA No. 2015-073. Meyer v. Jackson County (Rogue IV).
 
October 21, 2015  Rogue Advocates v. Mountain View Paving, Inc, United States District Court District of Oregon, Medford Division. Case No.: 1:15-cv-1854-CL, Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support, Oral Argument Requested.
 
January 11, 2016  Meyer v. Jackson County, LUBA 2015-073, January 11, 2016.
 
January 25, 2016  Rogue Advocates v. Mountain View Paving, Inc, United States District Court District of Oregon, Medford Division. Case No.: 1:15-cv-1854-CL, Plaintiff’s First Amended Complaint for Declaratory and Injunctive Relief and Civil Penalties (Pursuant to Clean Air Act, 42 U.S.C. 7604(a))
 
This is a complaint for declaratory and injunctive relief and civil penalties under the citizen suit provision of the federal Clean Air Act, 42 U.S.C. 7604. Plaintiff Rogue Advocates brings this civil action pursuant to the Clean Air Act, 42 U.S.C. 7604(a)(1)(A), against Mountain View Paving, Inc ("Mountain View Paving" or "Defendant"), for past and continuing violations of the Clean Air Act and the General Air Containment Discharge Permit, AQGP-007 ("Permit") issued by the Oregon Department of Environmental Quality ("DEQ").
 
February 16, 2016 Jackson County code enforcement violation citation hearing rescheduled to March 8, 2016.
February 16, 2016. Rogue Advocates Testimony For Jackson County Code Enforcement Violation Citation Hearing
 
February 26, 2016 Site Visit to MVP per request of MVP to United States District Court District of Oregon, Medford Division. Judge Clarke approved site visit.
 
March 15, 2016 Jackson County code enforcement violation citation hearing  where Hearings Officer reviewed evidence and heard testimony of witnesses and arguments of the Parties.
 
March 18, 2016   Jackson County Hearing Officer's Order:  Matters, Findings of Fact, Conclusions of Law, and Order.
 
SUMMARY OF HIGHLIGHTS
 
Documents for Rogue IV
 
November 18, 2014. Petitioner Mountain View Paving, Petition For Review, LUBA 2015-073. Meyer v. Jackson County, LUBA 2015-073, January 11, 2016 (Rogue IV).
 
November 18, 2015. Intervenor-Respondent Rogue Advocates, Intervenor-Respondent’s Petition for Review, LUBA No. 2015-073. Meyer v. Jackson County  (Rogue IV).
 
January 15, 2015. Intervenor-Respondent Rogue Advocates, Intervenor-Respondent’s Brief, LUBA No. 2015-073. Meyer v. Jackson County, LUBA 2015-073, January 11, 2016 (Rogue IV).
 
January 11, 2016. Meyer v. Jackson County, LUBA No. 2015-073, January 11, 2016 (Rogue IV).
 
Rogue III
 
December 19, 2014. Petitioner Rogue Advocates, Petition For Review, LUBA No. 2014-100. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III).
 
January 6, 2015. Respondent Jackson County, Respondent’s Brief, LUBA No. 2014-100. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III).
 
January 15, 2015. Intervenor-Respondent Mountain View Paving, Intervenor-Respondent’s Brief, LUBA No. 2014-100. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III).
 
March 6, 2015. Rogue Advocates v. Jackson County, 18 ___ Or LUBA ___ (March 6, 2015) (Rogue III)
 
Rogue II
 
June 2, 2014. Petitioner Rogue Advocates, Petition For Review, LUBA No. 2014-015. Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
June 16, 2014. Intervenor-Respondent Mountain View Paving, Motion to Dismiss and Motion To Suspend Briefing Schedule LUBA NO.: 2014-015 Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
June 17, 2014. Petitioner Rogue Advocates, Petitioners’ Response to Intervenor-respondent’s Motion to Dismiss and Motion to Suspend Briefing Schedule, LUBA No. 2014-015. Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
August 26, 2014. On August 26, 2014, LUBA issued its order in Rogue Advocates v. Jackson 19 County, 70 Or LUBA 163 (2014) (Rogue II).
 
Rogue I
 
January 28, 2014. Petitioner Rogue Advocates, Petition For Review, LUBA No. 2013-102/103. Rogue Advocates v. Jackson 20 County, 69 Or LUBA 271 (2014) (Rogue I).
 
February 18, 2014. Intervenor-Respondent Mountain View Paving, Intervenor-Respondent’s Brief, LUBA No. 2013-102/103. Rogue Advocates v. Jackson 20 County, 69 Or LUBA 271 (2014) (Rogue I).
 
April 22, 2014. LUBA sustained RA’s appeal of nonconforming use decision Rogue Advocates v. Jackson 20 County, 69 Or LUBA 271 (2014) (Rogue I).

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2012 Hugo Neighborhood Association & Historical Society