OPINION ORDER
HENRY HERLONG JR., District Judge
This matter is before the court on the Plaintiff Hendrix Insurance Agency, Inc.'s ("Hendrix") motion to remand and Defendant Continental Casualty Company's ("Continental") motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and motion to strike. For the reasons set forth below, the court denies Hendrix's motion to remand and denies Continental's motion to dismiss and motion to strike.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 2010, Hendrix, an insurance agency, filed the instant suit in the Spartanburg County, South Carolina Court of Common Pleas. Continental removed this action to this court on August 17, 2010. In its original complaint, Hendrix alleges claims for breach of contract, bad faith, improper claims practices/attorney fees, negligence, and negligent misrepresentation. (Compl., generally.) The instant suit is related to underlying litigation currently pending in state court, Robert Kennerly d/b/a Kennerly Snack Bar v. Colony Insurance Company and Hendrix Insurance Company, 2010-CP-38-00494 ("Kennerly case"). In the Kennerly case, Robert Kennerly ("Kennerly") alleges claims for negligence and/or professional negligence against Hendrix in failing to maintain insurance coverage for him. (Continental Mem. Supp. Mot. Dismiss 3.) Kennerly suffered a fire loss on May 26, 2007, and Kennerly learned that his insurance policy had been cancelled. (Id.) Kennerly alleges that Hendrix and Colony Insurance Company ("Colony") failed to convey the notice of cancellation of insurance to Kennerly.
On September 1, 2010, Hendrix filed an amended complaint in the instant action adding Kennerly as a defendant and a claim for declaratory judgment against all of the Defendants. Continental and Utica Mutual Insurance Company ("Utica") have refused to defend Hendrix in the Kennerly case. (Am. Compl., generally.) Hendrix filed the motion to remand on August 26, 2010, alleging that there is no diversity jurisdiction because the amount in controversy does not exceed $75,000 and Kennerly is a non-diverse defendant. (Pl. Mem. Supp. Mot. Remand, generally.) Further, Continental filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on September 15, 2010. The parties have fully briefed the issues and these matters are now ripe for consideration.
II. DISCUSSION OF THE LAW A. Motion to Remand
Without a basis for federal subject matter jurisdiction, the court must remand the case to state court. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Hendrix alleges that this matter must be remanded because the amount in controversy has not been satisfied and Kennerly is a nondiverse defendant. (Pl. Mem. Supp. Mot. Remand, generally.) Each of these arguments is addressed below.
1. Amount in Controversy
"In determining the amount in controversy for federal diversity jurisdiction, the court must examine the complaint at the time of removal." Chavis v. Fid. Warranty Servs., Inc., 415 F. Supp. 2d 620, 626 (D.S.C. 2006). "[T]he status of the case as disclosed by the plaintiff's complaint is controlling in the case of a removal. . . ." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938). The test for determining the amount in controversy in a diversity proceeding is "the pecuniary result to either party which [a] judgment would produce." Gov't Employees Ins. Co. v. Lally, 327 F.2d 568, 569 (4th Cir. 1964). In addition, punitive damages "must be included in the calculation of the amount in controversy." Am. Health Life Ins. Co. v. Heyward, 272 F. Supp. 2d 578, 581 (D.S.C. 2003) (citing Bell v. Preferred Life Assurance Soc'y, 320 U.S. 238, 240 (1943)). A post-removal event, such as amending a complaint to reduce the amount in controversy below the jurisdictional limit, does not deprive a federal court of diversity jurisdiction. See Red Cab Co., 303 U.S. at 292; see also Shanaghan v. Cahill, 58 F.3d 106, 112-13 (4th Cir. 1995) (recognizing that a court's retaining state law claims in a diversity action after a post-removal event reduces the amount in controversy below the jurisdictional limit is a matter within the sound discretion of the district court).
Hendrix alleges that the amount in controversy does not exceed $75,000.00. (Pl. Mem. Supp. Mot. Remand 3.) The court disagrees. As noted above, Hendrix alleges claims for breach of contract, bad faith, improper claims practices/attorney fees, negligence, and negligent misrepresentation. Hendrix seeks to recover actual damages for defense costs and indemnity arising out of the Kennerly case and punitive damages. (Am. Compl., generally.) In the Kennerly case, Kennerly seeks actual and punitive damages against Hendrix. The total damages alleged in the Kennerly case against Hendrix and Colony Insurance Company is $130,000.00. (Pl. Mem. Supp. Mot. Remand 3.) Based on the foregoing, there is no question that the amount in controversy is satisfied. Further, the statement by James Hendrix, Hendrix's president, "that Hendrix will accept $74,999.99 to settle this lawsuit in its entirety as long as one or both Defendants agree to settle within 10 days of the date that this motion is filed with the Court (September 6, 2010)" does not alter this analysis. (Id. 4.) A post-removal event such as this does not deprive the court of jurisdiction. Moreover, James Hendrix's affidavit further supports the conclusion that the amount in controversy exceeds $75,000.00. (Id. Ex. 2 (James Hendrix Aff. ¶ 3).) Therefore, the amount in controversy for purposes of diversity jurisdiction is satisfied.
2. Nondiverse Defendant
Hendrix alleges that this matter must be remanded because Kennerly destroys diversity jurisdiction. (Pl. Reply 1-2.) Continental and Utica allege that Kennerly's addition as a defendant does not destroy diversity based on the fraudulent joinder doctrine. (Continental Mem. Opp'n Mot. Remand 4-7.); (Utica Mem. Opp'n Mot. Remand, generally.) "The fraudulent joinder doctrine permits removal when a non-diverse party is (or has been) a defendant in the case." Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999) (internal quotation marks and footnote omitted). "Under this doctrine, a district court can assume jurisdiction over a case even if . . . there are nondiverse named defendants at the time the case is removed . . ., dismiss the nondiverse defendants, and thereby retain jurisdiction." Id. However, the fraudulent joinder doctrine does not "directly apply after removal because the district court already possesses jurisdiction." Mayes v. Rapoport, 198 F.3d 457, 463 (4th Cir. 1999). "Since the fraudulent joinder doctrine justifies a federal court's initial assumption of diversity jurisdiction, it has no effect once the district court actually possesses jurisdiction-including after the case has been removed." Id. at 461.
Instead,
[w]hen a plaintiff seeks to join a nondiverse defendant after the case has been removed, the district court's analysis begins with
28 U.S.C. § 1447(e), which provides the district court with two options: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court."
Id. at 461-62. The court "has the authority to reject a post-removal joinder that implicates
28 U.S.C. § 1447(e), even if the joinder was without leave of court."
Id. at 462 n. 11. Although Hendrix's joinder of Kennerly as a party defendant did not require leave of court, the court has the authority to determine whether Kennerly is a proper party under § 1447(e).
Id. "Under Section 1447(e), the actual decision on whether or not to permit joinder of a defendant under these circumstances is committed to the sound discretion of the district court; thus, this decision is not controlled by a Rule 19 analysis."
Mayes, 198 F.3d at 462. The court "should balance the equities in deciding whether the plaintiff should be permitted to join a nondiverse defendant."
Id. at 463. In balancing the equities, the court should consider "the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the plaintiff has been dilatory in asking for amendment, whether the plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities."
Id. at 462. In addition, in balancing the equities, the court should consider whether the party has been fraudulently joined.
Id. at 463 (noting that "the fraudulent joinder doctrine can be yet another element of the district court's
`flexible, broad discretionary approach' to resolving a post removal question of whether a nondiverse defendant should be joined under Section 1447(e)").
While Hendrix has not been dilatory in asking for amendment, the purpose of joining Kennerly is to defeat federal jurisdiction. After filing its motion to remand on August 26, 2010, Hendrix amended the complaint to add Kennerly as a party and assert a declaratory judgment claim against Kennerly and the other defendants on September 1, 2010. Further, in its reply, Hendrix argued that the joinder of Kennerly as a party also defeated diversity jurisdiction. (Pl. Reply 1-2.) Given the temporal proximity of the decision to join Kennerly with Hendrix's motion to remand, the court finds that Hendrix added Kennerly solely in an effort to defeat diversity jurisdiction. Moreover, Hendrix will suffer no prejudice if Kennerly is not a party to the instant action. The instant case concerns an insurance contract between Hendrix and the Defendants. The outcome of the instant case will have no impact on the determination of liability in the Kennerly case or Kennerly's rights. Further, Hendrix has no cause of action against Kennerly.
Hendrix argues that
Kennerly has an interest in the underlying coverage issues and is a necessary party Defendant to this action due to the fact that the determination of the insurance coverage issues by the Court will affect the availability of insurance coverage to Robert Kennerly in the underlying liability lawsuit filed by Robert Kennerly against Colony Insurance Company and Hendrix.
(Id. 1.) As noted above, Rule 19 of the Federal Rules of Civil Procedure does not control the analysis in this case. However, Kennerly is not a necessary party to this action. Obviously, Kennerly will benefit if Hendrix succeeds in the instant action in that Hendrix will have coverage for Kennerly's claims in the Kennerly case. However, under § 1467(e), the court dismisses Kennerly as a party to this action because he was fraudulently joined in an attempt to defeat diversity jurisdiction. For the reasons noted above, the court denies Hendrix's motion to remand and dismisses Kennerly as a defendant in this action.
B. Continental's Motion to Dismiss
Continental moves to dismiss Hendrix's complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. When presented with a Rule 12(b)(6) motion to dismiss, the court must restrict its inquiry to the sufficiency of the complaint rather than "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To withstand a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). Under this plausibility standard, the court should "assume th[e] veracity" of well-pled factual allegations "and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. Although the court must consider all well-pled factual allegations in a complaint as true, the court need not "accept as true a legal conclusion couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
1. Insurance Policy
Continental moves to dismiss the breach of contract, improper claims practices/attorneys fees, and declaratory judgment claims alleging that Hendrix's "coverage claims were made and reported after Continental's claims-based policy expired." (Continental Mem. Supp. Mot. Dismiss 6.) Continental alleges that Hendrix "purchased a claims-made and reported policy from Continental with a term of September 12, 2008 to September 12, 2009. Thus, only claims brought and reported from September 12, 2008 to September 12, 2009 are covered under the Continental Policy." (Id. 7.) Continental argues that these claims fail because Hendrix did not make and report the claim during the policy period. It is undisputed that Kennerly suffered a fire loss on May 26, 2007, and that Hendrix did not learn of the fire until it was served with the complaint in the Kennerly case on May 26, 2010. (Am. Compl. ¶ 21.) Continental attaches to its motion to dismiss a copy of a policy with the effective date September 12, 2008 to September 12, 2009. Hendrix alleges that this policy cannot be considered at the motion to dismiss stage because the parties dispute the applicability of the policy. (Pl. Mem. Opp'n Mot. Dismiss 4.)
When a defendant attaches documents to a motion to dismiss, a court has three options. First, if the documents meet certain requirements, the court may consider them when evaluating the motion to dismiss. If the documents do not qualify for consideration at the motion to dismiss stage, the court has two other alternatives: (1) it can either entirely disregard the attached documents; or (2) under limited circumstances, it may convert the motion into a motion for summary judgment and consider all attached documents.
Fisher v. Md. Dept. of Pub. Safety Corr. Servs., Civil No. JFM 10-CV-0206,
2010 WL 2732334, at *2 (D. Md. July 8, 2010). "[C]ourts may consider a document that the defendant attaches to its motion to dismiss if the document was integral to and explicitly relied on in the complaint and if the plaintiffs do not challenge its authenticity."
CACI Int'l, Inc. v. St. Paul Fire Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (internal quotation marks omitted). "To be considered, an attached document must be central or integral to the claim in the sense that its very existence, and not the mere information it contains, gives rise to the legal rights asserted."
Fisher, 2010 WL 2732334, at *2 (internal quotation marks and emphasis omitted). Hendrix submits that
[t]he CNA policy issued to Hendrix with a policy period of September 12, 2006-September 12, 2007 is the policy that provides coverage to Plaintiff with regard to the Kennerly lawsuit, not the policy incorporated into CNA's Motion to Dismiss (policy period of September 12, 2008-September 12, 2009). Furthermore, there is a factual dispute as to the terms and provisions of the CNA policy issued to Plaintiff with a policy period of September 12, 2006-September 12, 2007.
(Pl. Mem. Opp'n Mot. Dismiss 4-5.) Based on the foregoing, the court disregards the policy attached to Continental's motion to dismiss. Further, the court denies Continental's motion to dismiss the breach of contract, improper claims practices/attorneys fees, and declaratory judgment claims because Hendrix's complaint states a claim for relief on these causes of action.
2. Negligence and Negligent Misrepresentation
Continental moves to dismiss Hendrix's negligence and negligent misrepresentation claims based on the economic loss doctrine. "In most instances, a negligence action will not lie when the parties are in privity of contract. When, however, there is a special relationship between the alleged tortfeasor and the injured party not arising in contract, the breach of that duty of care will support a tort action." Tommy L. Griffin Plumbing Heating Co. v. Jordan, Jones Goulding, Inc., 463 S.E.2d 85, 88 (S.C. 1995). The theory behind the economic loss rule is that commercial entities entering into a contract have the opportunity to allocate risk, "whereas tort risks are assigned as a matter of law." Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., 843 F. Supp. 1027, 1049 (D.S.C. 1993), aff'd, 46 F.3d 1125 (4th Cir. 1995). To allow a party to recover in tort what he cannot recover in contract permits that party to obtain a better bargain than he purchased. Purvis v. Consol. Energy Prods. Co., 674 F.2d 217, 221 (4th Cir. 1982).
Continental argues that Hendrix's "claims of negligence and negligent misrepresentation against Continental are an improper attempt to disguise contract claims as tort claims. Plaintiff and Continental have contracted together for purposes of insurance and Plaintiff now sues under the terms of this contract." (Continental Mem. Supp. Mot. Dismiss 9.) Hendrix alleges that the amended complaint states viable causes of action for negligence and negligent misrepresentation "based upon the negligence and/or negligent misrepresentations of CNA's employees/agents when marketing and selling subject CNA policies to Plaintiff and in communicating with Plaintiff regarding the coverage to be afforded to Plaintiff pursuant to the terms of the CNA policies." (Pl. Mem. Opp'n Mot. Dismiss 6.)
To sustain an action for negligence, it is essential the plaintiff demonstrate the defendant breached a duty of care owed to the plaintiff. The existence of a duty owed is a question of law for the courts. In a negligence action, if no duty exists, the defendant is entitled to judgment as a matter of law.
Houck v. State Farm Fire Cas. Ins. Co., 620 S.E.2d 326, 329 (S.C. 2005) (internal citations omitted). "Generally, an insurer and its agents owe no duty to advise an insured. If the agent, nevertheless, undertakes to advise the insured, he must exercise due care in giving advice."
Trotter v. State Farm Mut. Auto. Ins. Co., 377 S.E.2d 343, 347 (S.C. Ct. App. 1988). An insurer may assume a duty to advise the insured by an express undertaking or an implied undertaking.
Id. The insured bears the burden of proving the undertaking.
Id.
An implied undertaking may be shown if: (1) the agent received consideration beyond a mere payment of the premium; (2) the insured made a clear request for advice; or (3) there is a course of dealing over an extended period of time which would put an objectively reasonable insurance agent on notice that his advice is being sought and relied on.
Id. (citations omitted). Further, an insurer can be found liable if its agent failed to exercise due care in procuring the insurance coverage requested by the insured.
Sullivan Co. v. New Swirl, Inc.,
437 S.E.2d 30, 31 (S.C. 1993);
Kelly v. S.C. Farm Bureau Mut. Ins. Co., 450 S.E.2d 59, 62 n. 1 (S.C. Ct. App. 1994).
The elements of a claim for negligent misrepresentation are:
(1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the statement; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as the proximate result of his reliance upon the representation.
deBondt v. Carlton Motorcars, Inc., 536 S.E.2d 399, 405 (S.C. Ct. App. 2000). A negligent misrepresentation claim cannot be based on "unfulfilled promises or statements as to future events."
Tom Hughes Marine, Inc. v. Am. Honda Motor Co., 219 F.3d 321, 324-25 (4th Cir. 2000) (internal quotation omitted). An exception to this general rule "exists only when a person makes a promise having at the time no intention of keeping [the] agreement."
Id. at 325 (internal quotation marks omitted). Claims for negligent misrepresentation are commonly alleged against insurers based on misrepresentations by agents or employees.
Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292, 299 (S.C. 1996) (finding insurer liable for negligent misrepresentations by employee);
Kelly, 450 S.E.2d at 62.
Hendrix alleges that Continental was negligent in the following respects:
a. In failing to deliver the requested and appropriate insurance policies to Hendrix;
b. In failing to properly, prudently and with due care review and analyze the requested and needed coverage for Hendrix;
c. In failing to review the actual coverage provided pursuant to the terms of subject policies to determine if it was as requested by Hendrix and suited to meet the needs of Hendrix;
d. In failing to review Hendrix's insurance policies to insure that they provided all the necessary coverages for Hendrix;
e. In failing to properly review and investigate the request(s) for insurance coverage and the need for insurance coverage for Hendrix and providing insurance to Hendrix that was less than requested and/or needed for Hendrix;
f. In failing to notify Hendrix of said failures;
g. In failing to train, supervise, oversee, educate and/or train Defendant's agents, servants and/or employees properly;
h. In failing to properly, prudently, and reasonably investigate the coverage afforded by the subject policies to Hendrix relating to claims made by Hendrix to CNA and Utica relating to lawsuit, leading to the improper determination of no coverage for Hendrix relating to the lawsuit pursuant to the terms of subject policies;
i. In failing to recognize the obvious insurance needs of Hendrix; and
j. In such other and further particulars as will be proven at trial.
(Am. Compl. ¶ 45.) Further, with respect to the negligent misrepresentation claim, Hendrix alleges as follows:
CNA and Utica falsely represented or represented through their silence to Hendrix that the subject policies were as requested by Hendrix and sufficient to meet Hendrix's insurance needs and no revisions, additions, deletion, or exclusions in subject policies substantially and/or materially changed the requested and/or needed coverage of Hendrix. These representations of Utica and CNA were false if Utica's and CNA's determination that there is no coverage for Hendrix regarding the lawsuit pursuant to the terms of subject policies is correct. Furthermore, the subject policies that were issued to Hendrix were unsuitable for Hendrix's needs, which caused damages to Hendrix, which were reasonably foreseeable by both Utica and CNA, and both Utica and CNA failed to exercise reasonable care in their actions and/or omissions and otherwise failed to exercise reasonable care in communicating information regarding the short comings [sic] of subject policies sold and marketed to Hendrix by CNA and Utica and/or failed to communicate any information relevant to these issues to Hendrix.
( Id. ¶ 50.)
After review of the amended complaint and the applicable law, the court finds that Hendrix has stated a viable cause of action for negligence and negligent misrepresentation. Hendrix alleges in his amended complaint that Continental made certain representations regarding the insurance coverage that were incorrect and that Hendrix specifically requested certain coverage which Continental did not procure.
3. Bad Faith
Generally an insurer has a duty of good faith and fair dealing in the performance of all obligations it undertakes to perform for the insured. The elements of an action for bad faith under an insurance contract include: "(1) the existence of a mutually binding contract of insurance between the plaintiff and the defendant; (2) refusal by the insurer to pay benefits due under the contract; (3) resulting from the insurer's bad faith or unreasonable action in breach of an implied covenant of good faith and fair dealing arising on the contract; (4) causing damage to the insured." Crossley v. State Farm Mut. Auto. Ins. Co., 415 S.E.2d 393, 396-97 (S.C. 1992). "An insured may recover damages for a bad faith denial of coverage if he or she proves there was no reasonable basis to support the insurer's decision to deny benefits under a mutually binding insurance contract."Dowling v. Home Buyers Warranty Corp., 400 S.E.2d 143, 144 (S.C. 1991). Continental argues that the bad faith claim must be dismissed because "no benefits are owed under the contract." (Continental Mem. Supp. Mot. Dismiss 10.) As set forth above, the court has denied the motion to dismiss on Hendrix's breach of contract claim as Hendrix has stated a claim for breach of contract. Given that the court has denied the motion to dismiss the breach of contract claim, the court denies Continental's motion to dismiss the bad faith claim.
It is therefore
ORDERED that Hendrix's motion to remand, docket number 6, is denied and Kennerly is dismissed as a party. It is further
ORDERED that Continental's motion to dismiss, docket number 14, is denied. It is further
ORDERED that Continental's motion to strike, docket number 30, is denied as moot because the court did not consider James Hendrix's affidavit, docket number 27-2, in deciding Continental's motion to dismiss.
IT IS SO ORDERED.
Greenville, South Carolina November 3, 2010
structures within the Clifton Channel were included as part of "development activities at Bradwood." LUBA remanded the decision for a recalculation of the amount of acreage for "development activities at Bradwood" that is subject to the "of small or moderate scale" standard.
B. Comprehensive Plan Resource Protection Policies
Various parts of the Columbia River Estuary Land and Water Use Plan section of the CCCP set out required resource protections for the entire estuary. Section P20.2, relating to "Aquaculture and Fisheries," lists policies that "apply to all projects that could conceivably affect fisheries (either commercial or recreational) or aquaculture in the Columbia River Estuary." Policy 20.2(1) requires that "[t]raditional fishing areas shall be protected when dredging, filling, pile driving or when other potentially disruptive in-water activities occur." The area proposed to be rezoned to AD and dredged for a channel, turning basin, and docking facility is located in a "traditional fishing area," the Clifton Channel of the Columbia River.
In addition, Section P20.8, entitled "Fish and Wildlife Habitat," applies "to uses and activities with potential adverse impacts on fish or wildlife habitat, both in Columbia River estuarine aquatic areas and in estuarine shorelands." Policy 20.8(1) provides that "[e]ndangered or threatened species habitat shall be protected from incompatible development." Habitat for threatened and endangered species of salmonids, Columbia white tailed deer, stellar sea lions, marbled murrelet, and northern spotted owl is present in the rezoning areas, and a wildlife refuge is located close to the industrial site.
In its initial justification of the zone changes, the county used a legal dictionary definition of "protect" in evaluating compliance with those policies. In Bradwood I, LUBA held that the relevant meaning of "protect" in the plan policies was the definition of "protect" used in the statewide planning goals. 58 Or LUBA at 219. As defined under the state-wide planning goals, "protect" means to "[s]ave or shield from loss, destruction, or injury or for future intended use." See id. at 218. LUBA concluded that "the term `protect' as used in CCCP Policy 20.2(1) and CCCP Policy 20.8, which implement Goal[s] 16 and 17, is intended to have the same meaning [as it has under the goals]." Bradwood I, 58 Or LUBA at 218-19. Accordingly, the board remanded the decision to the county "to apply the statewide planning goal definition of `protect.'" Id. at 219.
On remand, the county interpreted the meaning of "protect" as defined in the statewide planning goals, and as used in CCCP Policies 20.2(1) and 20.8:
"`Protect' as defined by LCDC and as used by the County and acknowledged by LCDC in the County planning documents does not require that absolutely no disturbance occurs. Protection is provided by avoiding those areas to the extent possible and making development sensitive to the environment where it does in fact occur, so that estuarine and coastal shoreline values are maintained."
Based on that understanding of the meaning of "protect," the county adopted findings that the proposed zone changes were consistent with Policies 20.2(1) and 20.8 because the imposed limitations on dredging and disposal of dredged materials and other mitigation measures shielded traditional fishing areas and wildlife habitat from substantial adverse effects.
On review in Bradwood II, LUBA found that that meaning of "protect," within the context of plan policies that implement Goal 16, was too lax:
"Although we agree with the county that the Goal definition of `protect' does not require that estuarine resources identified for protection be completely or absolutely protected from any `loss, destruction, or injury' whatsoever, the county has made a planning decision under the CCCP policies at issue that implement Goal 16 and the scheme set forth in the second paragraph of Goal 16, quoted above, to `protect' as opposed to a decision to `maintain,' `develop,' or `restore' traditional fishing areas and endangered or threatened species habitat. Having made that `protect' planning decision, the local program to protect those estuarine resources must not allow loss, destruction, or injury' beyond a
de minimis level. Thus, the development that is to be allowed by the disputed rezone is not consistent with the Goal definition of `protect' unless the measures proposed in
seeking to rezone the property are sufficient to reduce harm to such a degree that there is at most a
de minimis or insignificant impact on the resources that those policies require to be protected."
___ Or LUBA at ___ (slip op at 18). LUBA also rejected the county's arguments that (1) the meaning of "protect" under Policies 20.2(1) and 20.8 could be determined by how "protect" is used in other parts of the plan, as well as in the LWDUO and other ordinances, and (2) findings on the protection of "estuarine values," as a whole, were sufficient to satisfy the directives of Policies 20.2(1) and 20.8. Board Member Holstun summarized in his concurring opinion:
"The county's decision spends a good bit of time trying to reformulate its legal obligation under CCCP Policies 20.2(1) and 20.8 to `protect' those resources as necessarily being satisfied by (1) simply applying existing acknowledged regulations that the county has adopted to protect estuarine resources, (2) showing that the estuary will be protected if the estuary is viewed as a whole, (3) mitigating any damage to those protected resources, (4) attempting to avoid damage to those protected resources, or (5) intending to avoid damage to those protected resources. I agree with the majority that those reformulations represent a misunderstanding of the county's legal obligation to protect the identified resources under Policies 20.2(1) and 20.8."
Bradwood II, ___ Or LUBA at ___ (Holstun, Board Member, concurring) (slip op at 31) (footnote omitted).
II. ANALYSIS
A. Scale of Development
1. On review, intervenors challenge LUBA's decision as to both the scale of the development and resource protection policies. We take each argument in turn. Intervenors argue that LUBA failed to give proper deference to the county's interpretation of "development activities at Bradwood." Intervenors initially assert that "at Bradwood" was properly interpreted to mean the shoreland area zoned for industrial use in the Bradwood subarea, rather than a larger area that includes other land in the subarea and under the river. We agree that it is plausible to interpret "at Bradwood" in the NCP to mean the "Bradwood industrial site" referenced elsewhere in that plan; we also agree that the geographic definition of the Bradwood subarea in a different plan may not be relevant context for the NCP provision. The difficulty with the county and intervenors' more narrow construction of the meaning of "at Bradwood" is that it is inconsistent with LUBA's decision in Bradwood I.
In Bradwood I, LUBA remanded for more specific findings on the meaning of "development activities" as used in the phrase "development activities at Bradwood." The county had argued that "development" covered only "the 40 upland acres covered by the LNG facility itself." 58 Or LUBA at 231. LUBA held that "the county erred in limiting the scope of `development activities' to the upland acres covered by the LNG facility itself." Id. LUBA concluded that a larger area was restricted by the policy and remanded to determine whether pipelines, docking structures and dredging areas outside the industrial site but within the Bradwood subarea were "development activities." Id.
As we have explained before,
"[t]he Supreme Court has held that issues that LUBA decided in earlier proceedings, and upon which judicial review was not sought, are not subject to judicial review of a subsequent LUBA order.
Beck v. City of Tillamook, 313 Or 148, 153,
831 P.2d 678 (1992). Thus, when LUBA remands a case for further proceedings, the parties are limited to `new, unresolved issues' relating to those remand instructions and cannot raise any `issues that LUBA affirmed or reversed on their merits.'
Id. at 153."
Friends of the Metolius v. Jefferson County, 230 Or App 150, 156, 213 P.3d 1259 (2009);
see also Schatz v. City of Jacksonville, 113 Or App 675, 679-81, 835 P.2d 923 (1992) (discussing
Beck). The more narrow meaning of "at Bradwood" advanced by the county in its remand findings is inconsistent with the decision and remand instructions given by LUBA in
Bradwood I. For that reason, LUBA did not err in failing to defer to the county's interpretation of "at Bradwood" in the remand findings and in holding to its more expansive construction of that term. That construction of the meaning of "at Bradwood" as including the larger Bradwood subarea and adjacent estuary was not unlawful in substance.
Intervenors next complain that LUBA erred in not deferring to the county's interpretation of the acreage of "development activities" as not including land temporarily disturbed by construction of the proposed facilities and pipelines or the dredging area. We agree with LUBA that the county's interpretation of "development activities" is "inconsistent with the express language" of the plan policy under ORS 197.829(1)(a) in light of the contextual definitions of "development" in the LWDUO and "activities" in the CCCP. The CCCP defines "activity" to include "any action taken either in conjunction with a use or to make a use possible," including "dredging, piling, [and] fill." The disturbance of land "to make a use possible" is plainly within the meaning of "activity." Even more pointedly, "development" is defined by the LWDUO as "[a]ny man-made change to improved or unimproved real estate, including but not limited to: construction, reconstruction, conversion, relocation or enlargement of any structure; any mining, excavation, landfill or land disturbance, any use or extension of the use of land." "Development" includes, then, a change to real estate that occurs as part of "construction * * * of any structure" or "excavation." That plainly includes land disturbed as part of the construction of structures and land that is excavated by dredging.
We agree with LUBA that the county's reliance on the definition of "real estate" in an administrative rule on certification of real estate appraisers was not relevant context to the meaning of "real estate" as used in its code definition of "development." We also conclude that LUBA did not err in failing to address the county's findings on an alternative meaning of "small or moderate in scale." That alternative meaning (whether the project was large in comparison with other industrial developments) was beyond the scope of the remand in Bradwood I (whether the acreage of "development activities" exceeded the 100-acre standard established by the county). Thus, LUBA did not err in failing to defer to the county's interpretation of "development activities" and LUBA's own construction of the term was not unlawful in substance.
B. Resource Protection
Intervenors next assert that LUBA erred in remanding the decision because the county failed to adopt findings showing that it would "protect" traditional fishing areas and wildlife habitats from the effects of the planned dredging and related development. Intervenors claim that (1) petitioners failed to appeal some of the findings on compliance with the protection policies, and the adoption of those findings required LUBA to affirm the county's decision on the protection policies; (2) the contextual meaning of "protect" in the CCCP is revealed by acknowledged county ordinances and that meaning is less rigorous than the de minimis harm standard adopted by LUBA; and (3) the de minimis harm standard is inconsistent with the meaning of "protect" as used in Goal 16. Petitioners respond that (1) their appeal to LUBA did contest the county's determination that the protection policies were satisfied by mitigation efforts and that LUBA properly rejected that construction of the policies; (2) the acknowledged county policies on dredging and estuary development do not provide relevant context to the meaning of "protect"; and (3) LUBA's construction of the word "protect" was properly informed by the context of Goal 16.
Intervenors' first argument is that the county made alternative findings that justified the rezonings — findings that "balanced" the protective policies with other plan policies promoting or limiting development; petitioners did not dispute that adopted rationale before LUBA; and so, LUBA erred in failing to affirm the county decision based on those alternative findings. LUBA is obliged to affirm a local government land use decision when the decision is justified on alternative bases and only one basis is challenged on appeal. See Hard Rock Enterprises v. Washington County, 36 Or LUBA 106, 119 (1999) ("Where a local government's approval rests on independent alternative grounds, petitioner must successfully challenge each of those alternative grounds in order to obtain reversal or remand of the decision, notwithstanding that petitioner demonstrates error in one of the alternative bases."); cf. State ex rel Dept. of Human Services v. Parmentier, 203 Or App 677, 682, 127 P.3d 652, rev. den, 340 Or 359 (2006) ("[A]s a practical and legal matter, it makes no sense to advance substantial arguments challenging one basis for termination [of parental rights] where any consideration of those arguments will necessarily be precluded by the failure to assign error to the alternative ground for termination."); State v. Stoudamire, 198 Or App 399, 403, 108 P.3d 615 (2005) (Armstrong, J., concurring) ("It is axiomatic that, when a trial court bases a decision on multiple grounds, an appellant may prevail on appeal only after demonstrating that all of the bases for the court's decision were erroneous." (Emphasis in original.)); Roop v. Parker Northwest Paving Co., 194 Or App 219, 236, 94 P.3d 885 (2004), rev. den, 338 Or 374 (2005) ("[W]here plaintiffs fail to challenge the alternative basis of the trial court's ruling, we must affirm it.").
However, we conclude that the county's "balancing" findings are not an independent justification that the rezonings are consistent with the protection policies. Rather, those findings are nothing more than a restatement of the county's assertion that the protection policies should be construed in the context of other, less demanding, plan policies to allow significant adverse impacts by the dredging and related development on the protected areas. That position was attacked by petitioners in their appeal of the remanded decision to LUBA and was rejected by the board in its opinion.
Again, LWDUO 5.412(1) requires that rezonings be "consistent with the policies of the Clatsop County Comprehensive Plan." In its findings on remand, the county reasoned that, even if rezonings were inconsistent with the individual protective policies, the plan consistency standard required a "balancing" of relevant plan policies and that, on balance, the standard was met. The adopted findings cite various policies that encourage development of shorelands with deep water access, require compatibility of industrial development with fishing, require development to "minimize adverse environmental and aesthetic impacts," and regulate disposal of dredged materials. The findings then conclude that
The county stated that, "[although we find no conflict [with Policy 20.8(1)], if a conflict were found here, Clatsop County similarly seeks to balance development with protection."
"[t]hese policies considered together and balanced are consistent with the LCDC definition of `protect,' and the Plan
does not require a showing that threatened and endangered species habitat or that traditional fishing areas will not be affected in any way or incur any loss, but rather promotes sensitive development that results in compatible development."
On review, intervenors argue that the case law allows a balancing of approval standards for a land use decision so as to allow approval when most of the standards are met. We conclude that the adopted findings overstate the "balancing" principle that can be used in the construction and application of local land use ordinances. We have held that a locality may need to reconcile facially inconsistent provisions of its land use regulations in making a land use decision. That was the case in Waker Associates, Inc. v. Clackamas County, 111 Or App 189, 193-94, 826 P.2d 20 (1992). There, a county ordinance conditionally allowed golf courses in areas zoned for agricultural uses, subject to a showing of plan consistency. The plan policies both promoted and precluded golf courses. Application of the plan policies that would have precluded golf courses would negate the zoning provision allowing those conditional uses. We held that a balancing of those plan policies was "necessary in county actions on conditional use applications":
"It follows that county decision-makers will often be confronted with situations, like this one, where a use is compatible with some of the goals and incompatible with others. It is not possible to approve or disapprove a use in those situations without engaging in a balancing exercise. Although the effect on and consistency of a proposed use with each of the goals must be considered, the weight to be given a goal and the magnitude of the effects that particular proposed uses will have on the values that different goals protect will inevitably vary from case to case."
Id. at 194.
A county, however, is not free to disregard a standard that precludes approval of a land use application merely because other standards favor, but do not compel, its allowance. In that case, it is "possible to approve or disapprove a use * * * without engaging in a balancing exercise." It is only when the standards themselves are incompatible in operation — by requiring both approval and disapproval of any generic application — that an overarching reconciliation of clashing standards is necessary. Intervenors do not argue, and the county did not find, that all industrial development of the Bradwood area would be precluded by application of the protection policies. In this case, the plan policies that generally support industrial development of the Bradwood area or that work to minimize environmental impacts of development in general are not facially inconsistent with policies that protect traditional fishing areas and wildlife habitats from particular developmental impacts. As such, the policies need no balancing in their application.
Thus, the county's "balancing" justification is not an alternative route to an approval conclusion. Rather, it proceeds on the same path to the county's core conclusion — that the protection policies themselves should be interpreted to allow some significant adverse impacts on traditional fishing areas and wildlife habitats by the development facilitated by the rezonings. That is how the county framed its conclusion ("[t]hese policies considered together and balanced are consistent with the LCDC definition of `protect'" as used in Policies 20.2(1) and 20.8). Petitioners attacked that conclusion — the determined meaning of "protect" in the protection policies — in their briefing below. LUBA decided that the county's construction of the policies was inconsistent with the LCDC definition of "protect." Thus, LUBA adequately addressed the county's balancing findings.
Intervenors next argue that the county's plan and implementing ordinances have been acknowledged as consistent with Goals 16 and 17; the county found that the decision under review complies with certain mitigation provisions in the plan and ordinances that implement those goals by limiting development; and therefore, the meaning of "protect" in the protective policies should be interpreted in much the same way — as requiring measures to mitigate, rather than prevent, harm.
The problem with intervenors' contention is that they once again seek to relitigate the outcome reached in Bradwood I. LUBA held in Bradwood I that "the term `protect' as used in CCCP Policy 20.2(1) and CCCP Policy 20.8 * * * is intended to have the same meaning [as it has under the goals]" and remanded the case to the county "to apply the statewide planning goal definition of `protect.'" 58 Or LUBA at 218-19. That holding may or may not have been correct — either in not giving appropriate deference to the county's interpretation of its own comprehensive plan under ORS 197.829 or in not construing the meaning of "protect" contextually in light of other, related plan and ordinance provisions. It was, however, the determination in the first go-around of this case, and in the absence of an appeal from that decision, the county was limited to "new, unresolved issues" relating to the remand instructions in further proceedings. See Beck, 313 Or at 153. Thus, the county was obliged to apply the meaning of "protect" as used in Goals 16 and 17 and not the meaning of "protect" derived from related plan or ordinance policies. LUBA did not err in holding the county to its remand direction in Bradwood I.
Intervenors' contention that LUBA erred in making factual findings that were not supported by substantial evidence in the county record merits only summary adjudication. Intervenors claim that LUBA's disagreement with the county's determinations on the protection policies was not supported by substantial evidence in the record. Intervenors articulate the wrong standard of review. We review a LUBA order for whether the order correctly applied substantive or procedural law. ORS 197.850(9) allows the court to reverse or remand a LUBA order only if it finds the "order to be unlawful in substance or procedure," ORS 197.850(9)(a), or "unconstitutional," ORS 197.850(9)(b). ORS 197.850(9)(c) allows review for whether the board order is "supported by substantial evidence in the whole record" only when LUBA is making factual determinations from a record created in proceedings "under ORS 197.835(2)." ORS 197.835(2)(b) authorizes the board to "take evidence and make findings of fact" when there are "disputed allegations of standing, unconstitutionality of the decision, ex parte contacts, actions described in subsection (10)(a)(B) of this section or other procedural irregularities not shown in the record that, if proved, would warrant reversal or remand." Mis-statements by LUBA of the content of findings by a local government or agency may undercut the legal reasoning of LUBA's decision and make it "unlawful in substance." Intervenors' quibbles with factual statements by LUBA, however, are immaterial to the core issue on review — the meaning of "protect" as used in Policies 20.2(1) and 20.8 of the county's comprehensive plan.
More to the point, intervenors argue that LUBA's construction of the meaning of "protect" as used in Goal 16 (and incorporated into the CCCP protection policies) was inconsistent with the text and context of the term as used in the goal. Intervenors reason that protective measures under the goal can be those that shield or guard the estuary from harm, rather than those that largely immunize the estuary from the effects of the dredging and related development. Because Goal 16, in some circumstances, operates to allow some conflicting uses to estuarine resources, intervenors contend that "protect" under Goal 16 means to mitigate against harmful effects, rather than to preclude incompatible development. To assess that contention, we turn to the specific text of Goal 16.
Goal 16 (Estuarine Resources), OAR 660-015-0010(1), much like the other resource-specific goals, requires an inventorying and classification of the extent and quality of the relevant resource in the planning area and adoption of regulatory measures depending upon the quality of the resource. The stated purpose of the goal is:
"To recognize and protect the unique environmental, economic, and social values of each estuary and associated wetlands; and
"To protect, maintain, where appropriate develop, and where appropriate restore the long-term environmental, economic, and social values, diversity and benefits of Oregon's estuaries."
The goal requires classification of estuaries "to specify the most intensive level of development or alteration which may be allowed to occur within each estuary," and then to "provide for appropriate uses," with the caveat that "[e]stuary plans and activities shall protect the estuarine ecosystem, including its natural biological productivity, habitat, diversity, unique features and water quality."
Under the goal, the classification of estuaries is by "distinct water use management units." The types of units include, at a minimum, "natural," "conservation," and "development" management units. "Natural" management units include "major tracts of salt marsh, tideflats, and seagrass and algae beds" and are "designated to assure the protection of significant fish and wildlife habitats, of continued biological productivity within the estuary, and of scientific, research, and educational needs." Generally speaking, only undeveloped or low-impact uses are allowed in natural management units, including "protection of habitat, nutrient, fish, wildlife, and aesthetic resources." Certain physical improvements ( e.g., tidegates, pipelines, boat ramps) are allowed "[w]here consistent with the resource capabilities of the area," which is defined to mean
"when either the impacts of the use on estuarine species, habitats, biological productivity and water quality are not significant or that the resources of the area are able to assimilate the use and activity and their effects and continue to function in a manner to protect significant wildlife habitats, natural biological productivity, and values for scientific research and education."
"Conservation" management units, on the other hand, allow for "long-term uses of renewable resources that do not require major alteration of the estuary, except for the purpose of restoration." They are managed "to conserve the natural resources and benefits." Permissible uses "[w]here consistent with the resource capabilities of the area" include "[h]igh-intensity water-dependent recreation" and "[m]ining and mineral extraction, including dredging necessary for mineral extraction." In a conservation management unit, uses and activities are "consistent with the resource capabilities of the area"
"when either the impacts of the use on estuarine species, habitats, biological productivity, and water quality are not significant or that the resources of the area are able to assimilate the use and activity and their effects and continue to function in a manner which conserves long-term renewable resources, natural biologic productivity, recreational and aesthetic values and aquaculture."
Finally, "development" management units are estuaries designated "for more intense development or alteration" and include "[navigation and water-dependent commercial and industrial uses," "[d]redge or fill, as allowed elsewhere in the goal," "[w]ater transport channels where dredging may be necessary," and other uses "[w]here consistent with the purposes of this management unit and adjacent shorelands."
The "[d]redge or fill, as allowed elsewhere in this goal" refers to specific standards for dredging that are set out in the implementation measures portion of the goal. Goal 16 Implementation Measure Two provides:
"Dredging and/or filling shall be allowed only:
"a. If required for navigation or other water-dependent uses that require an estuarine location or if specifically allowed by the applicable management unit requirements of this goal; and,
"b. If a need (i.e., a substantial public benefit) is demonstrated and the use or alteration does not unreasonably interfere with public trust rights; and,
"c. If no feasible alternative upland locations exist; and,
"d. If adverse impacts are minimized."
As used in the statewide planning goals, "protect" means to "[s]ave or shield from loss, destruction, or injury or for future intended use." LUBA concluded that to "protect" an estuarine resource, as "protect" is used in Goal 16, means to regulate or prevent conflicting uses from affecting the resource in a significant way:
By comparison, "maintain" is to "[s]upport, keep, and continue in an existing state or condition without decline," whereas "conserve" means to "manage in a manner which avoids wasteful or destructive uses and provides for future availability." The terms may overlap in some respects, although "maintain" and "conserve" appear to pertain to the manner in which property is used or managed and "protect" refers to the regulation of activities or uses external to the property itself.
"Goal 16 requires protection of the environmental, economic, and social values, diversity and benefits of estuaries, and allows estuarine development and restoration only `where appropriate.' The goal sets out a hierarchy of priorities for management and use of estuarine resources, placing in first priority `[u]ses which maintain the integrity of the estuarine ecosystem.' Within the remaining text of Goal 16, the word `protect' appears almost exclusively in the Goal text describing the `natural management unit' designation. That designation is the most protective classification of Goal 16 resources, and includes `areas * * * designated to assure the
protection of significant fish and wildlife habitats * * *.' The natural management unit allows uses and activities that allow the resources of the estuary to `continue to function in a manner to
protect significant wildlife habitats, natural biological productivity, and values for scientific research and education.' Thus, the most protective classification in Goal 16, the natural management unit designation, allows only activities that are sufficient to protect the identified resources.
"The Goal language describing the other designations also provides context for the meaning of `protect.' The description of the `conservation management unit,' which is the current management designation of the subject property, does not include the word `protect.' The description of the `development management unit,' the proposed designation of the property, also does not use the word `protect.'
Taken together, the uses of the word `protect' within Goal 16 itself indicate that the definition is not equivocal in requiring that identified resources are `saved' or `shielded' from more than
de minimis damaging impacts.
"Although we agree with the county that the Goal definition of `protect' does not require that estuarine resources identified for protection be completely or absolutely protected from any `loss, destruction, or injury' whatsoever, the county has made a planning decision under the CCCP policies at issue that implement Goal 16 and the scheme set forth in the second paragraph of Goal 16, quoted above, to `protect' as opposed to a decision to `maintain,' `develop,' or `restore' traditional fishing areas and endangered or threatened species habitat. Having made that `protect' planning decision, the local program to protect those estuarine resources must not allow `loss, destruction, or injury' beyond a
de minimis level. Thus, the development that is to be allowed by the disputed rezone is not consistent with the Goal definition of `protect' unless the measures proposed in seeking to rezone the property are sufficient to reduce harm to such a degree that there is at most a
de minimis or insignificant impact on the resources that those policies require to be protected."
Bradwood II, ___ Or LUBA at ___ (slip op at 17-18) (emphases in original; footnote omitted).
Intervenors complain that LUBA's construction of "protect" is inconsistent with the practical operation of Goal 16 to allow development within estuaries and with the particular industrial designation of the Bradwood area. We fail to see the inconsistency. The protection policies apply to particular development, wherever located within an estuary, that could affect fisheries or wildlife habitat. CCCP Section P20.2 states the ambit of Policy 20.2(1), as "applying] to all projects that could conceivably affect fisheries (either commercial or recreational) or aquaculture in the Columbia River Estuary." Section P20.8 frames the scope of Policy 20.8(1) as applying "to uses and activities with potential adverse impacts on fish or wildlife habitat, both in Columbia River estuarine aquatic areas and in estuarine shorelands." Thus, the plan expressly provides that the policies apply throughout the estuary, based on the nature of a proposed use or activity and irrespective of management unit designation or zoning allowances.
Moreover, under Goal 16, the overall classification of an estuary as one in which development is allowed does not inhibit the designation of natural management units within that estuary in order to protect specific land resources. The Land Conservation and Development Commission adopted rules to implement Goal 16 that are codified at OAR chapter 660, division 17. Under those rules, estuaries are classified as "natural estuaries," "conservation estuaries," "shallow-draft development estuaries," and "deep-draft development estuaries," in much the same way as management units of an estuary are classified under Goal 16. See OAR 660-017-0010. The Columbia River is a deep-draft development estuary. OAR 660-017-0015(4). OAR 660-017-0025(3)(b) provides that "[s]hallow and deep-draft development estuaries shall have natural, conservation, and development management units as provided in the Estuarine Resources Goal." Thus, the overall character of an estuary as suitable for development is not inconsistent with the protection of discrete areas (natural management units) from the effects of particular development. It is consistent with the structure of Goals 16 and 17 in general, and with the plan allowance of industrial uses at Bradwood in particular, that the protection policies might inhibit intervenors' planned dredging uses and not other types of development.
We agree with LUBA's analysis of the meaning of "protect" under Goal 16. "Protect" is used in the policies relating to natural management units, which are designated, in part, to "assure the protection of significant fish and wildlife habitats." A use in those units must be "consistent with the resource capabilities of the area," which is defined to mean that the impacts of the use are not "significant" or that significant wildlife habitats can continue to be "protect[ed]." In other management units, where resource values are conserved or not immunized from development effects, alterations of the estuary that produce significant impacts are allowed. "Protect," in this context, means more than minimizing the adverse impacts of conflicting development through mitiagation. It means inhibiting development that causes significant adverse impacts on the protected resource.
"Protect" is used in other goals and may have a slightly different meaning in another context. For example, the objective of Goal 7 (Areas Subject to Natural Hazards) is to "protect people and property from natural hazards." The generic protection of "people and property" may be more elastic in nature than the specific protection of a discrete resource area.
We conclude that LUBA did not err in remanding the decision to the county for further consideration of the consistency of the approvals with the standards in the protective policies.
Affirmed.