FILED: February 4, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

WASHINGTON COUNTY,

Petitioner,

v.

LAND CONSERVATION AND
DEVELOPMENT COMMISSION,

Respondent,

and

McKAY CREEK VALLEY ASSOCIATION,

Intervenor.

___________________________________

BRUCE BERGEY,

Petitioner,

v.

LAND CONSERVATION AND

DEVELOPMENT COMMISSION,

Respondent,

and

McKAY CREEK VALLEY ASSOCIATION,

Intervenor.

(CA A91703 (Control), CA A91734,)

(Cases Consolidated)

On remand from the Oregon Supreme Court, Washington County v. LCDC, 326

Or 64, ___ P2d ___ (1997).

Judicial Review from Land Conservation and Development Commission.

Submitted on remand December 29, 1997.

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.

Before Deits, Chief Judge, and Riggs and Leeson, Judges.

DEITS, C.J.

Affirmed.

DEITS, C.J.

The Supreme Court has remanded this case to us for further consideration in the light of its decision in Lane County v. LCDC, 325 Or 569, 942 P2d 278. Washington County v. LCDC, 326 Or 64, ___ P2d ___ (1997).

In our earlier opinion, 149 Or App 281, 942 P2d 846 (1997), we reversed the Land Conservation and Development Commission's (LCDC) enforcement order, which required the county to apply LCDC's high-value farmland rules, OAR 660-33-120 et seq, in its disposition of certain pending applications for farm dwellings. Our decision was based on our holding in Lane County v. LCDC, 138 Or App 635, 910 P2d 414, on recon 140 Or App 368, 914 P2d 1114 (1996), that some of the pertinent rules were invalid. The Supreme Court's decision in Lane County reversed ours and upheld the validity of LCDC's rules. Consequently, the enforcement order that is challenged here is not improper for the reason that we held it to be in our earlier opinion.

We noted in that opinion that petitioner Bergey challenged the enforcement order as it relates to certain applications of his for the further reason that the county had approved them before LCDC issued its order. Given our disposition of the principal issue in our earlier opinion, we found it unnecessary to decide Bergey's alternative argument. We nevertheless observed:

"[T]he record in this enforcement proceeding does not provide us with sufficient information to resolve Bergey's argument relating to the specific land use decisions.1

_________________

"1In 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." 149 Or App at 284. (Emphasis in original.)

For that reason, we now hold that the alternative argument does not demonstrate a basis for reversing LCDC's enforcement order.

Affirmed.


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