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TV Butte: A Remand, again!

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By GARY CARL/for The Herald  —  On July 18, 2022 the Land Use Board of Appeals (LUBA), issued a Final Opinion & Order in LUBA No. 2021-102 wherein the Petitioner (Old Hazeldell Quarry, LLC) had Appealed the board of county commissioners’ decision that prevented them (the Quarry) from moving forward with the operation of their quarry operations.

Seth J. King of Perkins Coie LLP filed the Petition for review and reply brief and argued on behalf of Old Hazeldell Quarry, LLC.  H. Andrew Clark filed a response brief and argued on behalf of Respondent (Lane County).  Intervenors-Respondents included:   Save TV Butte, Linda McMahon, Tim Caughlin, Keegan Coughlin, Jenny Caughlin, Kevin Matthews, Michael Garvin, Patricia Beard, Cascadia Wildlands and Landwatch Lane County.

The challenged decision was the county’s decision on remand from Save TV Butte v. Lane County, 77 Or LUBA 22 (2018) (Save TV Butte I) and Save TV Butte v. Lane County, ___ Or LUBA___ (LUBA No 2019-02, Oct 16, 2019.  (Save TV Butte II). 2

The Petitioner made five assignments of error, all legally technical in nature, which this article will not attempt to discuss except to report on LUBA’s final rulings.  The first several “Assignments of Error” were denied by LUBA.  However, regarding the third sub assignment of error concerning the sufficiency of Oregon Department of Fish & Wildlife’s Letters regarding displacement of Big Game (deer & elk) due to noise from the mining operation were held to be “ambiguous”.    LUBA agreed with petitioner that the county’s decision that relies on the ODFW Letters is not supported by substantial evidence in the whole record…accordingly, LUBA sustained the third sub assignment of error in part and the county’s decision was remanded. 3

The Respondent, Lane County, has an opportunity for judicial review of LUBA’s Order pursuant to ORS 197.850.  The Highway 58 Herald will report again once the path forward becomes more certain or there are further legal proceedings affecting this case.

 

2. In save TV Butte II, LUBA remanded the county’s decision for the county to provide the notice required under ORS 197.610 (6), which the county did on remand.  After providing the required notice, the county conducted remand proceedings to respond to LUBA’s decision in Save TV Butte I.

 

3.    A Remand is when a higher court sends a case back to a lower court.  In the instant case, the LUBA remand sends the county’s previous decision that denied the Petitioner’s application back to the county commissioners for further review and consideration.

Gary Carl is a retired judge of the Lane County Justice Court. He currently lives with his partner, Lynda Kamerrer & their cat, Lucy. Gary can be reached at [email protected] Gary Carl photo

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