Landfill seeks clarification of ruling

By HANNAH HOFFMAN

Of the News-Register

The Oregon Court of Appeals has been asked to clarify a ruling it issued earlier this month on a Riverbend Landfill expansion approved initially by the county but subsequently overturned by the state Land Use Board of Appeals.

Riverbend filed the motion Wednesday, with county concurrence. It comes in response to a Dec. 29 opinion billing itself as an affirmation of the LUBA decision, but mischaracterizing that decision as a remand rather than an outright rejection.

The two outcomes carry enormously different implications. A rejection would force the county to start the process again while a remand would merely require the county to take corrective action on the point at issue.

The county took its action on a 2-0 vote in November 2009, with Commissioners Kathy George and Leslie Lewis backing the expansion and Commissioner Mary Stern abstaining due to her husband's employment in the industry.

On behalf of a coalition of opponents, Waste Not of Yamhill County filed an appeal. It cited a litany of reasons, but LUBA only examined one of them, judged controlling, in opting to reverse.

Riverbend and the county responded with an appeal to the Court of Appeals. It's December ruling was authored by Judge Timothy Sercombe.

He labeled the ruling an "affirmation" of LUBA. However, he expounded at length on corrective action the county could take to rectify the problem. And he concluded by referring to "LUBA's remand to the county," when it fact there had been no remand.

That left lawyers on all sides puzzled.

Waste Not lawyer Bill Kabeiseman of Portland's Garvey Schubert Barer invited the county to join him on a motion for clarification. However, County Counsel Rick Sanai decided to instead team up on such a motion with his natural ally in the case, Riverbend lawyer Tommy Brooks of Portland's Cable Huston.

Opponents originally took the county refusal to mean it was ready to accept the verdict as a reversal and forgo a clarification. When they found out otherwise, they were surprised and disappointed, according to Waste Not President Susan Watkins.

Watkins said she didn't understand why the county had refused its offer to file a joint motion for clarification. She also said she didn't see why the county seemed intent on continuing to pursue landfill expansion over greener alternatives like fuel-producing technology.

Jackie Land, spokesman for Riverbend parent firm Waste Management, said the county had made the right call in teaming up with the landfill's counsel on a clarification motion.

"We appreciate his gesture," she said of Kabeiseman's offer. "But joint filings make the most sense when both parties agree, and that's not what we have here."

She said Waste Not would like to see Sercombe's opinion classified as an affirmation, but Riverbend and the county would like to see it classified as a remand. For that reason, she said, it made more sense for the county to file jointly with the landfill.

The law establishes no deadline for issuance of such clarifications. However, a lengthy period of deliberation is not anticipated.