LUBA Decision

LUBA remand article

1                                                      BEFORE THE LAND USE BOARD OF APPEALS
2                                                      OF THE STATE OF OREGON 
3 
4                                                      OREGON COAST ALLIANCE,
5                                                      WOAHINK LAKE ASSOCIATION,
6                                                      and SUZANNE NAVETTA, 
7                                                      Petitioners, 
8 
9                                                      vs. 
10                                                 
11                                                     CITY OF DUNES CITY, 
12 
13                                                      Respondent. 
14                                                      LUBA No. 2011-113
15                                                      ORDER
16 
17                                                      FINAL OPINION
18                                                      AND ORDER 
19 
20     Appeal from City of Dunes City. 
21 
22     Sean Malone, Eugene, filed the petition for review and argued on behalf of 
23     petitioners.
24
25     Lauren Sommers, Eugene, filed the response brief and argued on behalf of 
26     respondent. With her on the brief was Local Government Law Group PC, A Member of 
27     Speer Hoyt LLC.
28 
29     HOLSTUN, Board Member; RYAN, Board Member, participated in the decision. 
30 
31     BASSHAM, Board Chair, did not participate in the decision. 
32 
33     REMANDED 06/05/2012 
34 
35     You are entitled to judicial review of this Order. Judicial review is governed by the 
36     provisions of ORS 197.850.

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1    Opinion by Holstun.

2    NATURE OF THE DECISION

3    Petitioners appeal a county ordinance that repeals an earlier county ordinance that

4        adopted a mandatory, regulatory septic system maintenance program and adopts in its place a 

5        deadline to develop, adopt and implement a voluntary, educational septic system maintenance

6        program.

7    INTRODUCTION

8          Dunes City adjoins Woahink Lake and Siltcoos Lake. Dunes City does not have a

9    central sewer system, and the homes in Dunes City are all served by individual septic systems

10  with onsite drainage fields. The Dunes City Comprehensive Plan recognizes the potential

11  pollution danger that the numerous adjoining individual septic systems pose for the water

12  quality of the lakes. The significance of that danger is magnified since city residences rely

13  entirely on those lakes, or on wells that are hydrologically connected to those lakes, for their

14   potable water supply.            If we understand the parties correctly, water from those lakes is

15    currently used by adjoining residences without treatment. The remaining facts necessary to

16    frame the issues that must be resolved in this appeal are included in the city’s brief and are

17    set out below:

18               The Oregon Department of Environmental Quality (DEQ) is responsible for

19               permitting and inspecting septic systems in the state of Oregon. DEQ has the

20               authority to delegate oversight of septic systems to local governments. DEQ

21        has entered into an agreement pursuant to ORS 454.725, delegating oversight

22        of septic systems in Lane County to the county government.

23        “On January 14, 2010, the Dunes City Council adopted Ordinance No. 203.

24        Ordinance No. 203 * * * put in place maintenance, inspection, and reporting

25        requirements for septic systems in the City. Ordinance No. 203 did not amend

26        any state law requirements regarding septic systems. Ordinance No. 203

27        merely required an initial inspection, mapping and pumping of each septic

28        system in Dunes City, as well as periodic inspections to be performed every

29        five years or upon the occurrence of certain conditions, whichever came first.

30        If an inspection revealed that a septic system was being operated in violation

31        of DEQ standards, notice was required to be sent to the appropriate state and

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1          county authorities. Failure to inspect, pump, map or repair subjected the

2          property owner to a fine of $250 per calendar day.

3          “After reviewing the maintenance, inspection, and reporting requirements of

4          Ordinance No. 203, the City Council initiated amendments to Chapter 157 of

5          the Dunes City Code of Ordinances by adopting Ordinance No. 211A on

6              November 10, 2011. Ordinance No. 211A repealed Ordinance No. 203 and

7              replaced it with ‘an educational program for septic system maintenance, to be 

8               implemented within one year. “’      Respondent’s Brief 2-3 (citations and 

9               footnote omitted).

10  The last of the above-quoted sentences could be read to suggest the city has already

11  developed the educational program that will be implemented over the next year. In fact, the

12  city has not yet developed the referenced educational program and apparently plans to

13  develop, adopt and implement that program sometime before November 10, 2012.

14  In adopting Ordinance No. 211A, a majority of the city council apparently was

15  persuaded by at least two arguments during hearings below. First, opponents of Ordinance

16  No. 203 argued that the regulatory program adopted by that ordinance imposed a “one size

17  fits all” approach that unfairly burdened some residents.’            Second, opponents of Ordinance

18  No. 203 argued there was no empirical evidence that established that failing septic systems in

19  Dunes City are a cause of water pollution in Woahink and Siltcoos Lakes.

20  In this appeal, petitioners argue there is a great deal of evidence in the record that

21  septic systems in close proximity to water bodies pose a potential pollution threat to those

22  water bodies, particularly when they are not maintained properly. Petitioners contend that

23  Ordinance No. 203 actually resulted in improvements in water quality in Woahink and

24  Siltcoos Lakes and that Ordinance No. 211A represents a step backwards in protecting the

25  lakes from pollution from failing septic systems. Petitioners contend that step backwards is

‘ Complaints below included criticism that the regulatory program imposed by Ordinance No. 203 treated part time seasonal residences with a small number of people the same as full-time residences occupied by large families. There were also complaints below that Ordinance 203 did not differentiate between residences that are close to the lakes and residences that are set back some distance from the lakes. Record 82-84, 86-87, 274, 276.

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1      inconsistent with Dunes City Comprehensive Plan (DCCP) policies and Statewide Planning

2    Goal 6 (Air, Water and Land Resources Quality).

3    FIRST ASSIGNMENT OF ERROR

4                Ordinance No. 211A is an amendment of the city’s acknowledged land use

5        regulations and therefore must be consistent with the city’s acknowledged comprehensive

6        plan.  ORS 197.175(2)(d); 197.835(7)(a) 2 The Dunes City Comprehensive Plan (DCCP)

7        includes “Air, Land and Water Quality” policies, including “General Policies” and “Sewage

8        Systems Policies.” One of the Sewage Systems Policies is DCCP Policy E6, which provides

9        as follows:

10        “Policy E6. The city shall adopt a program to improve maintenance of septic

11        systems for the benefit of all residents.

12      To address DCCP Policy E6, the city council adopted the following findings:

13        “The proposals are consistent with this policy because the proposal improves

14        upon the existing code requirements to address maintenance of septic systems

15        for the benefit of all residents in Dunes City.            Dunes City found that the

16        existing requirements for mandatory septic system pumping does not benefit

17        all of the residents and therefore initiated text amendments to the code to

18            improve upon the existing program.            To ensure that the proposals are

19        consistent with the maintenance requirements established by the Oregon

20        Department of Environmental Quality and administered by Lane County,

21        referrals were sent to the Dunes City Building Official, Lane County

22        Sanitation Department, DEQ and to DLCD notifying them of the proposed

23        amendments. In response, the Lane County Sanitation Department and the

24        Building Department LLC responded saying they had no comments on the

25        proposed amendments. This criterion is met.” Record 21 (emphases added

^Z Dunes City’s comprehensive plan and land use regulations have been acknowledged by the Land Conservation and Development Commission. Under ORS 197.175(2)(d), if a city’s comprehensive plan and land use regulations have been acknowledged, its land use decisions (which include land use regulation amendments) must be adopted “in compliance with the acknowledged plan.”        If a land use regulation amendment is appealed to LUBA, LUBA must reverse or remand the land use regulation amendment if it “is not in compliance with the comprehensive plan.” ORS 197.835(7)(a). 

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1                          A.  Compared with the Mandatory, Regulatory Program Adopted by

2                             Ordinance No. 203, the Voluntary, Educational Program Envisioned by

3                             Ordinance No. 211A Will Not Improve Septic System Maintenance

4                    In their briefs, the parties take different positions regarding the meaning of DCCP

5    Policy E6. Petitioners contend that under DCCP Policy E6 the city must “demonstrate how

6    Ordinance No. 211A will improve upon Ordinance No. 203.” Petition for Review 12. Under

7    petitioners’ interpretation of DCCP Policy E6, the city must demonstrate that the voluntary,

8      educational program envisioned by Ordinance No. 211 A will “improve maintenance of septic

9        systems” compared with the mandatory maintenance program that was adopted by Ordinance 

10    No. 203.

11        In its brief, the city contends “[i]n determining that Ordinance No. 211A satisfied

12    Dunes City Comprehensive Plan Policy E6, the Council interpreted Policy E6 to require a

12     program to improve septic system maintenance beyond the regulatory floor set by state law.”

13        Respondent’s Brief 4. The city contends Ordinance No. 211A need not improve upon the

14    septic system maintenance achieved under Ordinance No. 203 and need only improve the

16  level of septic system maintenance that would otherwise be achieved by DEQ and Lane

17  County without any assistance from the city. The city contends that interpretation “is

18    plausible and consistent with the express language of that policy,” and therefore LUBA must 

19    defer to the interpretation under Siporen v. City of Medford, 349 Or 247, 261, 243 P3d 776 

20    (2010) and ORS 197.829(1)(a).

21        LUBA would almost certainly be required to defer to the interpretation advocated by

22  the city in its brief, if the city council actually adopted that interpretation. But it did not adopt

23  that interpretation, and therefore LUBA cannot defer to that interpretation in this appeal.

24  Green v. Douglas County, 245 Or App 430, 438-40, 263 P3d 355 (2011). On the contrary, in

25  the italicized language in the findings quoted above the city council implicitly interpreted

26  DCCP Policy E6 to require substantially the same thing petitioners argue it requires. In two

27  places the city council found that the voluntary educational program to be adopted under

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1    Ordinance No. 211A “will improve upon the existing program,” which we understand to be a

2    reference to the Ordinance No. 203 program. There would be no reason for the city council

3    to find that the voluntary, educational program envisioned by Ordinance No. 211A will

4    improve upon the regulatory program adopted by Ordinance No. 203 unless the city council

5    interpreted DCCP Policy E6 to impose that requirement. The city council’s findings that the

6    voluntary, educational program envisioned by Ordinance No. 211A is consistent with DEQ

7    regulations and acceptable to DEQ, DLCD and Lane County do not suggest the city council

8    interprets DCCP Policy E6 in the more limited way the city argues in its brief.

9    Our resolution of this appeal is relatively straightforward with the question of how the

10  city council interpreted DCCP Policy E6 resolved. Although there may not be evidence in

11  the record that compels a conclusion that Ordinance No. 203 has played a role in the

12  improved water quality in Woahink and Siltcoos Lakes, there is certainly substantial evidence

13  to support that conclusion. More to the point, the record clearly supports a conclusion that

14  Ordinance No. 203 has improved “maintenance of septic systems,” which is what DCCP

15    Policy E6 calls for.³ At least in the short term, by adopting Ordinance No. 211A, the city has

16    repealed the Ordinance No. 203 program and has replaced it with a program that has not yet

17    been developed or adopted.            Ordinance No. 211A simply calls for development of an

18    educational program before November 10, 2012. Until that voluntary, educational program is

19    developed and adopted so that the city can begin implementing that program, the city has no 

20    “program to improve maintenance of septic systems for the benefit of all residents.”      We

21  agree with petitioners that in that respect Ordinance No 211A is inconsistent with DCCP

22  Policy E6 and therefore must be remanded. While it may be, as the city argues, that DCCP

‘ Petitioners testified below “It is especially noteworthy that of the 534 households that have complied [with Ordinance No. 203] thus far, 65 had failed septics, or needed replacements or repairs.” Record 50. It may be as opponents of Ordinance No. 203 argued below that many of the septic system inspections under that ordinance were unnecessary, but since those inspections identified 65 problematic septic systems and presumably led to them being repaired or replaced, there can be no question that Ordinance No. 203 improved septic system maintenance.

Page 6 ^

1    Policy E6 does not specify when the city must adopt a “program to improve maintenance of

2    septic systems for the benefit of all residents,” once the city has adopted a program to comply

3    with DCCP Policy E6 it may not repeal that program without at the same time adopting

4    another DCCP Policy E6 program to replace it.

5          Although we sustain petitioners’ first subassignment of error, we need not and do not

6    consider whether a voluntary, educational program that the city might adopt in the future

7    violates DCCP Policy E6. At pages 14-16 of their petition for review petitioners appear to

8    argue that it is not possible that a voluntary, educational program would improve septic

9    system maintenance, compared to the mandatory, regulatory program adopted by Ordinance

10  No. 203. To resolve that issue we would have to speculate about what that voluntary,

11      educational program might look like, and it would not be appropriate for LUBA to do so.

12        To summarize, on remand the city must develop its voluntary, educational program;

13  and, at the same time it repeals Ordinance No. 203, it must adopt that voluntary, educational

14  program. Moreover, unless the city council adopts a different interpretation of DCCP Policy

15  E6 on remand like the interpretation advanced in the city’s brief, in place of the implied

16      interpretation it adopted in Ordinance No. 211A, the city must establish that the voluntary,

17      educational program will improve septic system maintenance, compared to the mandatory,

18  regulatory program that was adopted by Ordinance No. 203.

19        The first subassignment of error is sustained, in part.

20        B.    Ordinance No. 211A is an Impermissible De Facto Amendment of DCCP 

21                Policy E6

22        Under this subassignment of error, petitioners argue “Ordinance No. 211A

23      impermissibly attempts to amend the Dunes City Comprehensive Plan because it reads out of

24    policy E6 the requirement of a ‘program’ and the requirement that the program ‘improve

25  septic system maintenance.”’ Petition for Review 16.            In support of that argument,

26  petitioners cite LUBA’s decision in Foland v. Jackson County, 54 Or LUBA 287, 293, aff’d

27  215 Or App 157, 168 P3d 1238, rev den 343 Or 690, 174 P3d 1016 (2007), where LUBA 

Page 7 ^ 

1        determined that the county’s decision in that case was so at odds with the text of the relevant 

2        county land use regulation that it amounted to a de facto amendment of the land use 

3        regulation.

4    We have already sustained petitioners’ first subassignment of error in which they

5    argue the city erroneously applied DCCP Policy E6. But we do not agree that the city’s

6      interpretation and application of DCCP Policy E6 is so at odds with its language that it must

7    be characterized as a de facto amendment of DCCP Policy E6.  Neither would such a

8      characterization add anything of substance to our decision in this appeal.

9        Petitioners’ second subassignment of error is denied.

10                 C.      A Voluntary, Educational Program is not a Program to Improve

11                    Maintenance of Septic Systems

12        In their final subassignment of error under the first assignment of error, petitioners

13  argue that the educational program envisioned by Ordinance No. 211A is not consistent with

14  DCCP Policy E6, because that policy calls for improved maintenance. Petitioners argue that

15  “[i]n adopting Ordinance No. 211A, [the city] has substituted the idea of ‘maintenance’ in

16  Policy E6 for the idea of ‘education’ in Ordinance [No.] 211A.” Petition for Review 19.

17        Petitioners appear to be arguing that the requirement in DCCP Policy E6 that the city

18  “adopt a program to improve maintenance of septic systems for the benefit of all residents”

19  can only be satisfied by a mandatory, regulatory program such as the one adopted by

20  Ordinance No. 203 and cannot be satisfied by a voluntary, educational program. We have

21  already determined that it is premature to attempt to resolve the issue of whether the

22  particular voluntary, educational “program to improve maintenance of septic systems” that

23  the city may adopt in the future in accordance with Ordinance No. 211A will actually

24  improve maintenance of septic systems. But however that issue is resolved, DCCP Policy E6

25  only expresses a policy of improving “maintenance” of septic systems. DCCP Policy E6 is

26    silent about the type of program (regulatory, educational or otherwise) that the city must

27    adopt to achieve that policy of improving septic system maintenance. While the program that

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1    the city adopts to comply with DCCP Policy E6 must improve maintenance of septic systems,

2    petitioners cite no textual support in DCCP Policy E6 or elsewhere for the proposition that

3    only a mandatory, regulatory program such as the one adopted by Ordinance No. 203 could

4    be sufficient to comply with DCCP Policy E6.

5          Petitioners’ third subassignment of error is denied.

6                    The first assignment of error is sustained for the reasons set forth in our disposition of 

7        petitioners’ first subassignment of error.

8        SECOND ASSIGNMENT OF ERROR“

9        In their second assignment of error, petitioners argue the city council’s findings that

10  the voluntary, educational program envisioned by Ordinance No. 211A is consistent with

11  DCCP Policies B8, E1, E3 and E4 are not supported by substantial evidence. ⁴

12        The city first responds that this assignment of error should be denied because the

13  challenged decision is a legislative decision and “there is no statute, goal or rule that

14  generally requires that legislative decisions must in all cases, be supported by findings that

15      demonstrate compliance with applicable criteria.” Respondent’s Brief 12 (quoting Friends of

16  Umatilla County v. Urnatilla County, 58 Or LUBA 12, 15 (2008)). We understand the city to

 “ The text of those policies is set out below:

“Policy B8.      Dunes City shall strive to maintain the high water quality of Siltcoos and Woahink Lakes through monitoring recreation use, commercial and industrial use, and run-off of septic tank effluent.      A Water Quality Control Committee will be formed to examine problems with water quality.”

“Policy El. The city shall strive to preserve the quality of the land, air, and water resources in the city.”

“Policy E3. Waste discharges from future facilities shall not exceed the carrying capacity nor degrade the quality of the land, air, and water resources.”

“Policy E4.      Regulations involving land, air, and water resources of the city shall be based upon long-term capabilities of the available natural resources to both support economic activity and absorb the future, resulting man-made pollutants.”

Page 9 ^

1    argue that if the city is not legally required to adopt findings it does not matter whether there

2    is substantial evidence to support the city’s findings.

3          In view of our ultimate disposition of petitioners’ second assignment of error below,

4    the city’s argument concerning the lack of any express legal requirement for findings in this

5    case presents an abstract question that we need not resolve. However, as the city recognizes,

6    the Court of Appeals has observed that despite the lack of a general requirement that

7    legislative decisions must be supported by adequate findings, for LUBA and the appellate

8    courts to perform their review function when legislative land use decisions are appealed,

9    there “must be enough in the way of findings or accessible material in the record of the

10  legislative act to show that applicable criteria were applied and that required considerations

11  were indeed considered. Citizens Against Irresponsible Growth v Metro, 179 Or App 12, 16

12  n 6, 38 P3d 956 (2002). The city does not dispute that DCCP Policies B8, El, E3 and E4

13  apply in this case. The scope and meaning of at least some of those policies are sufficiently

14  unclear that it is highly unlikely that a decision to replace the existing mandatory, regulatory

15  program to improve septic system maintenance with a voluntary, educational program to

16  achieve the same goal will be defensible on appeal without adequate findings.

17        However, as was the case with petitioners’ challenge under the first subassignment of

18  error under the first assignment of error regarding whether a voluntary, educational program

19  that the city might adopt in the future violates DCCP Policy E6, petitioners argument that

20  such a voluntary, educational program violates DCCP Policies B8, El, E3 and E4 is

21    premature. Whether a voluntary, educational program is sufficient to comply with DCCP 

22    Policies B8, E1, E3 and E4 cannot be determined until the city has actually developed and 

23  adopted such a program.

24            Although we need not and do not resolve petitioners’ evidentiary challenge under the

25  second assignment of error, we note that petitioners’ challenge is directed at the evidentiary

 Page 10 ^

1    support for the following finding, which the city adopted to address DCCP Policies B8, El,

2    E3 and E4:

3          “Samples have been collected from Siltcoos and Woahink Lakes; however,

4          there has been no correlation established between water quality and erosion or

5          septic system effluent.” Record 19-20.

6          If the above finding is understood to take the position that the evidentiary record does

7    not establish a correlation between (1) erosion and septic tank effluent and (2) water quality

8    in nearby water bodies, there appears to be a substantial amount of evidence in the record to

9    the contrary, i.e. that there is such a correlation.            But if the above finding is understood to

10  take the more limited position that there is no evidence that specifically establishes a

11  correlation between septic tank effluent run-off and the water quality in Siltcoos and

12  Woahink Lakes, that finding appears to be supported by the record.

13        However, it is not at all clear to us that such a finding is sufficient to dispose of any

14  obligations the city may have under DCCP Policies B8, El, E3 or E4. The clearest example

15  is DCCP Policy B8, which calls for “monitoring “ * M run-off of septic tank effluent.” That

16  obligation does not appear to require that there first be evidence that is sufficient to establish

17  a specific correlation between (1) erosion and septic tank effluent run-off and (2) water

18  quality in Siltcoos and Woahink Lakes. Ordinance No. 203 was presumably adopted in part

19  to satisfy the obligations the city imposed on itself under DCCP Policies B8, E1, E3 and E4,

20  and it seems highly unlikely that the lack of a study that specifically establishes a correlation

21  or causative connection between (1) erosion and septic tank effluent and (2) decreased water

22  quality in the lakes, by itself, is a sufficient answer to petitioners’ contention that repealing

23  Ordinance No. 203 is not consistent with DCCP Policies B8, El, E3 and E4. But it may be

24  that the lack of any such specific evidence along with the actions that will be required under

25  the as-yet-undeveloped voluntary, educational program will be sufficient to establish that it is

26  consistent with DCCP Policies B8, El, E3 and E4 to replace the mandatory, regulatory

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1    program adopted by Ordinance No. 203 with the voluntary, educational program. If so, on

2    remand, the city will need to provide that explanation.

3          The second assignment of error is denied.

4    THIRD ASSIGNMENT OF ERROR

5               In their final assignment of error, petitioners argue the city erred by failing to adopt

6        findings that specifically address Statewide Planning Goal 6 (Air, Water and Land Resources

7        Quality).

8          Goal 6 is “[t]o maintain and improve the quality of the air, water and land resources

9    of the state.” The DCCP includes a section that is entitled “Air, Land and Water Quality,”

10  and that section of the DCCP includes a total of 13 “General Policies,” “Sewage Systems

11  Policies,” “Water Supply Policies,” “Solid Waste Policies,” “Noise Policies,” and “Air

12  Quality Policies.” The text of Sewage Systems Policy E6 was set out in our discussion of the

13  first assignment of error and the text of General Policies El, E3 and E4 is set out at n 4. The

14  text of Lakes Policy B8, also set out at n 4, appears in a different section of the DCCP

15  entitled “Open Space, Scenic Areas, and Natural Resources.” The city argues that because its

16      comprehensive plan and land use regulations have been acknowledged by LCDC to comply

17  with the statewide planning goals, the land use regulation amendment adopted by Ordinance

18  No. 211A is only reviewable for consistency with the acknowledged comprehensive plan

19  under ORS 197.835(7)(a). See n 2. The city contends that Ordinance No. 211A is only

20  directly reviewable for compliance with the statewide planning goals if “[t]he comprehensive

21  plan does not contain specific policies or other provisions which provide the basis for the

22  regulation * * *.” ORS 197.835(7)(b). We agree with the city. We also agree with the city

23  that DCCP Policies B8, El, E3, E4 and E6 collectively are sufficient to qualify as “specific

24  policies or other provisions which provide the basis for the regulation,” within the meaning

25  of ORS 197.835(7)(b). In particular, DCCP Policy E6 expressly calls for the city to adopt a

26  program to improve septic system maintenance, and could hardly be more specific. See

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1    Barnard Perkins Corp. v. City of Rivergrove, 34 Or LUBA 660, 685 (1998) (where

2      acknowledged comprehensive plan calls for half acre minimum lot size in flood hazard zone,

3    zoning ordinance amendment to adopt half acre minimum lot size in the flood hazard zone is

4    not reviewable against the statewide planning goals). It follows that Ordinance No. 211A is

5        reviewable for compliance with those policies and any other relevant DCCP policies that the

6        city may have adopted to implement Goal 6, and is not directly reviewable for compliance

7        with Goal 6.

8          The third assignment of error is denied.

9          The city’s decision is remanded.

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Certificate of Mailing

I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2011-113 on June 5, 2012, by mailing to said parties or their attorney a true copy thereof contained in a sealed envelope with postage prepaid addressed to said pat-ties or their attorney as follows:

Lauren Sommers Speer Hoyt LLC 975 Oak Street, Suite 700 Eugene, OR 97401

Sean T. Malone Attorney at Law 259 E. 5^th Avenue, Suite 200-G Eugene, OR 97401

Dated this 5^th day of June, 2012. [9:47 a.m.]

 

Kelly Burgess   Paralegal                     Kristi Seyfried   Executive Support Specialist

 

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