The state Land Use Board of Appeals has remanded a decision regarding the Marr Property between Joseph and Wallowa Lake back to the Wallowa County Board of Commissioners.

The K & B Family Limited Partnership applied for an 11-parcel subdivision a year ago. The plan will likely revert to the county's jurisdiction, since K & B attorney Rahn Hostetter said he would not appeal.

The 38-page LUBA decision covers a myriad of petitions made by the Nez Perce Tribe, the city of Joseph, the Confederated Tribes of the Colville Reservation and intervenor-petitioners Mildred Fraser, Liam O'Cal- laghan and Lynne Price.

The tribes reacted favorably to the decision. "On a whole, the LUBA reached the right decision," said Rick Eichstaedt, attorney for the Nez Perce Tribe. "The County Commissioners approved a subdivision without complying with their own local laws and without a good understanding of how this project would impact cultural resources."

Hostetter, attorney for the developer, also was happy with the decision, noting there were 26 "assignments of error" asserted by the four appellants and that most were denied.

County Commissioner Ben Boswell had not read the opinion but said he was certain the remand would prompt more local hearings on the issue.

The Wallowa County Planning Commission approved K & B's application in December 2003. The Wallowa County Board of Commissioners sustained that decision in February. The four appellants then appealed the decision to LUBA.

As pointed out by Joseph city attorney Mark Tipperman and 1000 Friends of Oregon (which provided friend-of-the-court testimony), the county, according to the decision, erred in that it conditioned final plat approval to limiting the minimum size of parcels to five acres. Such a condition precludes the future urbanization in the city's Urban Growth Boundary when services become available on the property.

The court sustained assignments of error concerning a letter from State Historical Preservation Office official Dennis Griffin dated Jan. 30, 2004, and an ex parte conversation between County Commissioner Dan DeBoie and archeologist Bruce Womack, which were challenged by the city of Joseph and the two tribes. The court ruled that the Griffin letter affected findings and, because it was not accepted into the record, "prejudiced the parties' substantial rights and requires remand." The court added that the petitioners had no opportunity to respond.

Colville Tribal attorney Stephen Suagee said he was pleased with LUBA's ruling on the Griffin letter and the DeBoie/Womack ex parte contact.

"Clearly, the county relied on that evidence to make their decision, and not making that information available to us was in violation of Oregon statutes," he said.

Of Fraser's three assignments of error, one was sustained. LUBA agreed that the planning commission erred in refusing to accept into evidence "some 20 odd letters and reports concerning cultural resources that supported the argument of statewide goal 5 violations."

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