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FILED: August 29, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
DEVIN OIL CO.,
Petitioner,

v.

MORROW COUNTY;
and LOVE'S TRAVEL STOPS & COUNTRY STORES, INC.,
Respondents.

Land Use Board of Appeals 2011107
A151098
Argued and submitted on June 07, 2012.
E. Michael Connors argued the cause for petitioner.  With him on the brief was Hathaway
Koback Connors LLP.
William K. Kabeiseman argued the cause for respondents.  With him on the brief were
Ryan M. Swinburnson and Garvey Schubert Barer.

Before Armstrong, Presiding Judge, and Brewer, Judge, and Duncan, Judge.
BREWER, J.
Affirmed.

1  BREWER, J.  
2  On judicial review, petitioner Devin Oil Co., Inc., seeks reversal and  
3  remand of a final opinion and order of the Land Use Board of Appeals (LUBA). In that  
4  decision, LUBA upheld an order issued by respondent Morrow County that adopted a  
5  Limited Use (LU) overlay zone and approved the plan and zone change application of  
6  respondent Love's Travel Stops & Country Stores, Inc., (Love's) for the purpose of  
7  developing a travel center at a freeway exit on Interstate Highway 84.  We affirm.  
8  Petitioner owns property that is near the subject property, and it operates a  
9  business in Morrow County that will compete with the travel center that Love's seeks to  
10  develop. This case has a complicated procedural history that was well explained by  
11  LUBA in the decision under review:  
12  "The challenged decisions are on remand from LUBA and the Court  
13  of Appeals.  Devin Oil Co. Inc. v. Morrow County, 62 Or LUBA 247, aff'd  
14  241 Or App 351, 250 P3d 38 (2010), rev den, 350 Or 408, (2011) (Devin I).  
15  In our decision in Devin I, we described the subject property and proposed  
16  development as follows:  
17  "'The subject property is an undeveloped 49-acre parcel located at  
18  the junction of Interstate Highway 84 and Tower Road, five miles from the  
19  City of Boardman urban growth boundary, and near the Boardman Airport.  
20  The property is designated Industrial and zoned Space Age Industrial  
21  (SAI). On December 3, 2009, [Love's] filed an application seeking (1) a  
22  comprehensive plan map amendment from Industrial to Commercial, (2) a  
23  zoning map amendment from SAI to Tourist Commercial (TC), and (3)  
24  comprehensive plan text amendments to provide plan policies to support  
25  the TC zoning designation.  The plan/zoning amendments are intended to  
26  permit [Love's] to seek approval for a 'travel center' on 12 acres of the  
27  subject property, consisting of truck and automobile fueling stations,  
28  convenience store, restaurant, and tire changing facility.  The TC zone  
29  allows as outright permitted uses auto-oriented uses such as fueling  
30  stations, retail outlets, restaurants, and vehicle-repair services.'  

1  "The subject property is also located in the Airport Approach (AA)  
2  overlay zone, which requires a conditional use permit for development such  
3  as the proposed travel center.  The plan/zoning amendments required a new  
4  reasons exception to statewide planning Goals 3 (Agricultural Land) and 14  
5  (Urbanization) to rezone the property to allow tourist commercial uses such  
6  as the proposed travel center.  On May 5, 2010, the county court approved  
7  the plan/zoning amendments based on the reasons exceptions.  Among the  
8  conditions imposed on the plan/zone amendment was Condition 6, which  
9  provided that the amendment is conditioned to allow 'only the construction  
10  of a travel center or other use of similar density, configuration and type.'  
11  "Petitioner appealed the county's May 5, 2010 decisions to LUBA.  
12  In [Devin I], LUBA remanded the county's decision on several grounds.  
13  Specifically, LUBA sustained petitioner's third assignment of error, which  
14  argued that the county cannot rely upon conditional zoning to limit the  
15  'uses, density, public facilities and services, and activities to only those that  
16  are justified in the exception,' as required by OAR 660-004-0018(4), but  
17  must instead use the county's Limited Use (LU) overlay zone, which was  
18  adopted for that specific purpose.  We also sustained in part the sixth  
19  assignment of error, in which petitioner argued that there was not  
20  substantial evidence in the record to support the county's conclusion that, as  
21  limited by Condition 6, development of a travel center on the subject  
22  property under the TC zone would not 'significantly affect' Tower Road, for  
23  purposes of the Transportation Planning Rule (TPR) at OAR 661-010

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