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What Does “Bias” Mean in a Land Use Hearing?

One of the Selective focus on the word "fair". Many more word photos in my portfolio...most common concerns about land use hearings is whether a decision maker is “biased,” or whether they can make a fair decision.  In Columbia Riverkeeper v. Clatsop County, ___ Or App ___, ___ P3d ___ (2014), the Oregon Court of Appeals expressed their view of bias and it likely does not match what most people think of “bias.”

Oregon was one of the leaders in requiring more process and elements of fairness in land use decision-making.  As far back as Fasano v. Washington Co. Comm., 264 Or 574, 588, 507 P2d 23 (1973), the Oregon Supreme Court noted that participants to a quasi-judicial proceeding are entitled to a "tribunal which is impartial in the matter."  However, the courts have also long recognized that the role county commissioners play in land use is not the same as a judge:

"A judge is expected to be detached, independent and nonpolitical. A county commissioner, on the other hand, is expected to be intensely involved in the affairs of the community. He is elected because of his political predisposition, not despite it, and he is expected to act with awareness of the needs of all elements of the county, including all government agencies charged with doing the business of the people."  Eastgate Theatre v. Bd of County Comm'rs, 37 Or App 4 745, 588 P2d 640 (1978)."

In the case decided last week, LUBA had remanded a decision because of what it saw as bias on the part of one of the county commissioners, Peter Huhtala in reviewing an application to site a liquid natural gas (“LNG”) facility.  The commissioner had run for office largely on his opposition to LNG facilities, and the record was replete with his opposition to the concept and to some particular applications.  LUBA looked at that record and found Huhtala disqualified because of his bias.

The Court of Appeals focused on the “matter” before the county commission and the Commission’s role in applying the applicable land-use laws to a discrete set of facts and evidence.  The Court of Appeals was not troubled about the commissioner’s opposition to other aspects of LNG facilities, noting that these were “political predispositions.”  The only actions Huhtala had taken with reference to the pending application did not demonstrate any bias and, therefore, the Court of Appeals found Commissioner Huhtala to not be disqualified on the basis of bias.

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