Thomas v. Wasco Cnty.

284 Or.App. 17

392 P.3d 741

Kenneth A. THOMAS, Plaintiff-Appellant,

v.WASCO COUNTY ; Wolf Run Ranch, LLC ; and Moonshine Events, LLC, Defendants-Respondents,andPeter Clark, Defendant.

Kenneth A. Thomas, Petitioner-Appellant,

v.Wasco County, Respondent-RespondentandMoonshine Events, LLC, an Oregon corporation, dba What The Festival; and Wolf Run Ranch, LLC, Intervenor-Respondents-Respondents.

A155158 (Control)

A155511

Court of Appeals of Oregon.

Argued and submitted January 6, 2015.

March 1, 2017

Peter Livingston, Portland, argued the cause for appellant. With him on the briefs was Black Helterline LLP.

Jill D. Bowman argued the cause for respondents Wolf Run Ranch, LLC, and Moonshine Events, LLC. On the brief were Jeremy D. Sacks, Elaine R. Albrich, and Stoel Rives LLP.

No appearance for respondent Wasco County.

Steven D. McCoy filed the brief amicus curiae for 1000 Friends of Oregon.

Before Tookey, Presiding Judge, and Hadlock, Chief Judge, and Haselton, Senior Judge.

HADLOCK, C.J.

Petitioner Kenneth Thomas appeals from judgments of the circuit court dismissing his petition for a writ of review and his second amended complaint seeking a declaratory judgment.¹ The proceedings arise out of petitioner's objections to an order of the Wasco County Board of Commissioners granting a permit for an "outdoor mass gathering" to petitioner's neighbor. ORS 433.750 (2013) (authorizing a county governing body to "issue a permit upon application" for an outdoor mass gathering).² The issues on appeal relate to the interplay of Oregon's land use laws and those governing outdoor mass gatherings. For the reasons explained in this opinion, we conclude that the circuit court did correctly enter judgment for respondents on the writ of review petition but that it erred in dismissing the second claim of petitioner's second amended complaint in the declaratory judgment action. We therefore reverse and remand the judgment dismissing the declaratory judgment action and otherwise affirm.

I. BACKGROUND

A. Issuance of the Outdoor-Mass-Gathering Permit

The relevant facts and chronology are undisputed. Respondent Wolf Run Ranch LLC (Wolf Run) owns 254 acres in Wasco County. The subject property is partially forested and is zoned for forest use; within the parcel is a field of approximately 92 acres. The property also includes a single-family dwelling, several small barns, garages and other outbuildings, and a driveway to the dwelling. Petitioner owns timbered land adjacent to the subject property.

In March 2013, respondent Moonshine Events LLC, doing business as "What the Festival" (Moonshine), filed an application with the county seeking a permit for an outdoor mass gathering on Wolf Run, with an anticipated festival attendance of 4,000 to 5,000 attendees and 600 to 800 staff. The event was to be held from July 25 to 28, 2013. The permit application included a site plan showing proposed development to the property to accommodate the festival, including additional and expanded roads, several parking areas, an area to be leveled by "cut and fill" for use as a splash pool, and other water storage areas. A proposed new roadway would provide primary access to the festival.

ORS 433.735(1) defines an "outdoor mass gathering" as

"an actual or reasonably anticipated assembly of more than 3,000 persons which continues or can reasonably be expected to continue for more than 24 consecutive hours but less than 120 hours within any three-month period and which is held primarily in open spaces and not in any permanent structure."

Under ORS 433.745(1), a person who seeks to "hold, conduct, advertize or otherwise promote" an outdoor mass gathering may do so by permit.³ ORS 433.745(2) states that a permit for an outdoor mass gathering "does not entitle the organizer to make any permanent physical alterations to or on the real property."⁴

The procedures for seeking a permit for an outdoor mass gathering are set forth in ORS 433.750(1), which provides that the governing body of a county shall issue a permit

"when the organizer demonstrates compliance with or the ability to comply with the health and safety rules governing outdoor mass gatherings to be regulated according to the anticipated crowd and adopted by the Oregon Health Authority."

A county must hold a hearing on an application for an outdoor mass gathering, publish notice of the hearing, and give notice to local law enforcement, fire, and health officials. ORS 433.750(2) –(4). A county's authorization of an outdoor mass gathering is not a land use decision. ORS 197.015(10)(d).⁵

The county held a public hearing on May 8, 2013. Witnesses described the development that would be necessary to hold the festival and to satisfy state health and safety standards, including the cutting of trees to accommodate the construction of a parking area, a ticket booth, and new access road; multiple vehicle-arrival lanes; a stream crossing for vehicles; and a culvert.⁶

Petitioner appeared at the hearing and contended that the proposed improvements would effect permanent alterations to the property that were not allowed without permits and that had not been approved under applicable land use statutes and ordinances. A county planner testified that the county did not intend to permit any sort of permanent infrastructure in conjunction with the outdoor-mass-gathering permit, and that the required road (which the parties do not dispute is a permanent improvement) was a "driveway" already allowed in conjunction with the existing residential use.⁷ At the conclusion of the hearing on May 8, 2013, the Wasco County Board of Commissioners unanimously approved respondents' application for a permit for an outdoor mass gathering on the subject property, and it issued an order approving that gathering, with 11 conditions. Moonshine undertook to improve the property as required by the county's order.

B. Petitioner's Challenges to the Permit and the Trial Court's Rulings

1. Petitioner's LUBA challenge

Petitioner challenged the county's order granting the outdoor-mass-gathering permit through various channels. One of those routes involved an appeal of the county's order to the Land Use Board of Appeals (LUBA). Petitioner acknowledged that the county's granting of the permit was not itself a land use decision subject to LUBA's jurisdiction.

See ORS 197.015(10)(d) (excluding from the definition of a "land use decision" the "authorization of an outdoor mass gathering as defined in ORS 433.735"). Nonetheless, petitioner argued, the county's approval encompassed a separate land use decision to approve permanent alterations to the property, specifically an access road and a parking lot, that are expressly prohibited by ORS 433.745(2). LUBA dismissed petitioner's appeal, explaining that "the county made only a single decision * * * which approves the [outdoor mass gathering], including the access road and the parking areas." LUBA reasoned, further, that petitioner's arguments that the county had erroneously approved permanent physical alterations to the land in violation of ORS 433.745(2) should be presented to the circuit court, on petition for review of the order. Petitioner did not seek review of LUBA's order.

2. Petitioner's code-compliance complaint

Petitioner also sought relief from the county's order granting the outdoor-mass-gathering permit via Wasco County's Land Use and Development Ordinance (LUDO), Section 15.010, under which it is the duty of the county planning director or the director's designee to "to enforce the provisions" of the county's ordinances "pertaining to property use and to the construction, erection, location or enlargement of any structure located within Wasco County [.]"⁸ Petitioner filed a complaint with the county's code compliance officer, alleging that the improvements required by the permit would result in permanent physical alterations to the subject property in violation of ORS 433.745(2) and in violation of state and local land use laws. On May 23, 2013, the county's compliance officer rejected petitioner's complaint and issued a "notification of non-violation" (NNV), stating that the county did not find any code violations in connection with the county's conditions for the permit. The NNV explained that the parking and vehicle staging areas were "temporary" and that the "driveway" and culvert were permitted in conjunction with the existing dwelling and residential use. The NNV stated additionally that the county's code compliance program was not the mechanism for challenging the approval of an outdoor mass gathering, and that any challenge to the permit must be taken up in the circuit court, pursuant to ORS 433.750(5). Petitioner did not appeal the May 23 NNV to LUBA or otherwise challenge it.⁹

3. The writ of review proceeding

As the county's NNV signaled, ORS 433.750(5) provides that "[a]ny decision of a county governing body on an application for a permit to hold an outdoor mass gathering may be appealed to a circuit court for the county as provided in ORS 34.020 to 34.100." On May 14, 2013, petitioner filed a circuit-court petition for a writ of review of the county's order granting the outdoor-mass-gathering permit. Among other contentions, petitioner alleged that the permanent improvements to be made to the property to comply with the county's health and safety conditions are prohibited by state land use laws. Petitioner sought a stay of the permit to prevent further alterations of the property. The county responded that the improvements were temporary or were allowed under previous land use authorizations. The county, Wolf Run, and Moonshine also contended that petitioner should have challenged the outdoor-mass-gathering permit indirectly, by appealing the NNV to LUBA.

In early July 2013, the circuit court issued a letter opinion affirming the county's decision to issue the permit. The court rejected petitioner's contention that the county's outdoor-mass-gathering permit had authorized permanent alterations on the property,...