1000 Friends v. Land Conservation & Development Commission

The principal issue in this land use case concerns Oregon’s Statewide Planning Goal 4, which directs that forest lands be conserved for forest use. 1 The disputes also raise important questions concerning the relationship between Goal 4 and Goal 3 2 and the respective burdens on all parties *387 involved in the development and acknowledgment of comprehensive land use plans.

After several earlier attempts, Lane County presented its proposed comprehensive rural land use plan to the Land Conservation and Development Commission (LCDC) in February 1984. LCDC’s initial response in July 1984 listed several deficiencies in the plan. LCDC granted Lane County a continuance, during which Lane County responded to LCDC’s objections by revising the plan and presenting additional evidence to LCDC. In September 1984, LCDC acknowledged the Lane County plan as being in compliance with the statewide land use goals (goals). 1000 Friends of Oregon (1000 Friends) objected and sought judicial review by the Court of Appeals on seven assignments of error. The Court of Appeals reversed LCDC on all but one of the assignments of error. 1000 Friends of Oregon v. LCDC (Lane Co.), 83 Or App 278, 731 P2d 457 (1987). Lane County, LCDC and 1000 Friends petitioned this court for review. We reverse the decision of the Court of Appeals in part, affirm in part, and remand the case to LCDC for further action.

The Court of Appeals was faced with seven assignments of error, each of which is also before this court. Most of these assignments require individual discussion, beginning with the question of whether the Lane County plan properly allows dwellings on lands zoned for forest uses.

DWELLINGS ON FOREST LANDS

The intent of Goal 4 is “to conserve forest lands for forest uses.” The goal includes commercial forestry as well as wildlife habitat and watershed protection, forests as buffer zones, and several other uses of forest lands in Oregon. In its plan, Lane County zoned large portions of the county as forest land. Lane County established two types of forest zones, non-impacted forest lands and impacted forest lands. The latter lands Lane County defined as “impacted by non-forest uses.” Lane County Development Code (LC) 16.211(l)(a). Residences were not permitted on non-impacted forest lands, but dwellings were permitted on impacted forest lands, if, among other reasons, they were “necessary and accessory” to forest management.

Specifically, LC 16.211(b)(3) provides that “[a] dwelling or mobile home, and any accessory structures, on a vacant *388 legal lot containing at least 10 acres shall be deemed accessory and necessary to the forest management of the legal lot” if certain criteria are met. We return to this provision below. Because Lane County and LCDC argue that LCDC is entitled to a measure of judicial “deference” for its interpretation of the applicable legal standard, we first address how that argument applies to the Lane County plan provisions at issue here.

“Deference” is one of those general terms that can obscure rather than aid analysis if it is used to blanket a variety of distinct issues of judicial review. In this case, for instance, LCDC’s brief invokes deference to its “interpretive discretion,” but issues of “discretion” differ from issues of “interpretation.” Compare ORS 183.482(8)(a) with ORS 183.482(8) (b).

The scope of review of another entity’s decision, whether by an agency like the Land Use Board of Appeals (LUBA) or by LCDC or by a court, involves a rule of law. See Brodie and Linde, State Court Review of Administrative Action: Prescribing the Scope of Review, 1977 Ariz St L J 537. It ordinarily (except for any remaining common-law or equitable remedies) is derived from more or less explicit statutes, not invented by courts. Statutes can and generally do prescribe how far courts may go in reviewing an agency’s determination of the factual predicate of its action, an agency’s determination of the legal premises for its action, and its exercise of discretion within the range of discretion delegated to it by law. See Megdal v. Board of Dental Examiners, 288 Or 293, 318-20, 605 P2d 273 (1980). In Younger v. City of Portland, 305 Or 346, 358-60, 752 P2d 262 (1988), also decided today, we set out the relations between review by the Land Use Board of Appeals (LUBA) of a local government’s factfinding for “substantial evidence in the whole record,” ORS 197.835(8)(a)(C), and review by the Court of Appeals of LUBA’s application of that scope of review, ORS 197.850(9). It is possible to describe these measures of review as “deference” to another agency’s factfinding, but the difference between these reviewing functions and review of legal premises or of agency discretion cautions against a generalization, “deference,” that does not appear in any statute. 3

*389 The present issue concerns LCDC’s application of written rules, its own Goals and Lane County’s ordinance, not findings of fact or the exercise of discretion. On this issue, LCDC reviews Lane County’s ordinance for “compliance with [statewide land use] goals.” ORS 197.040(2)(d). Review is “confined to the record of proceedings before the local government, any comments, objections and exceptions * * * and the report of the director,” ORS 197.251(4), and the acknowledgment order must “include a clear statement of findings which sets forth the basis for the approval * * * of acknowledgment,” ORS 197.251(5), and, further, the findings shall “[i]nclude a clear statement of findings in support of the determination of compliance and noncompliance,” ORS 197.251 (5) (b). The Court of Appeals and this court review to see if LCDC “has erroneously interpreted a provision of law,” ORS 197.650(1), 183.482(8)(a). The immediate question is what role LCDC’s own interpretations play in the courts’ review.

Ordinarily lawmakers expect courts themselves to decide disputed legal issues. Compare ORS 183.482(8)(a) (requiring court to correct errors of law) with ORS 183.482(7) (barring court from substituting its judgment on factual or discretionary decisions). See also Jaffe, Judicial Control of Administrative Action 556 (1965). This court has recognized that in some circumstances an agency’s interpretation of a *390 legal rule “though not binding is entitled to our careful consideration.” Knapp v. City of North Bend, 304 Or 34, 741 P2d 505 (1987). The weight, or “consideration,” “respect,” “deference,” “attention” (none of which should be taken as a term of art 4 ), to be given an agency’s interpretation can be implied from a number of characteristics:

(1) The agency may have a broad mandate to promulgate rules to be administered by itself. This does not give an agency carte blanche in interpreting its rules. But the legislative choice to entrust the agency both with setting standards and with applying them can imply that the agency’s view of its standards (assuming that they are within their authorizing law and are consistently applied) is to be given some appropriate respect by the courts. See, e.g., 5 Davis, Administrative Law Treatise 399-404, §29.16 (1984). Sometimes the body interpreting the rule may have direct political authority from the affected community and be accountable to it. Anderson v. Peden, 284 Or 313, 318 n 3, 587 P2d 59 (1978). 5

(2) A similar implication may arise when a statute assigns the agency’s tasks in broad terms that delegate to the agency responsibility for completing a general legislative policy. See Springfield Education Assn. v. School Dist., 290 Or 217, 621 P2d 547 (1980). Particularly when an agency originated the statutory text that it interprets or when its administration of the statute has been actively examined and considered by the statute’s legislative parents after its enactment, a court may be more cautious to conclude that the agency’s consistent reading of the text misinterprets the *391 agency’s statutory assignment; though again, caution does not mean abdication. 6

(3) A third consideration, agency “expertise,” generally relates to facts and to relations of past or predicted cause and effect in a particular field rather than to the interpretation of legal rules. 7 Expertise can relate to interpreting rules if their words have special or technical meaning. We distinguished “expertise” from delegation of a range of choice in McPherson v. Employment Division, 285 Or 541, 549-50, 591 P2d 1381 (1979):

“Judicial respect for an agency’s interpretation of a legal term, though it is a question of law, is often explained on a theory of agency ‘expertise.’ That may apply where statutory terms are drawn from a technical vocabulary which takes its meaning from a particular science, industry, trade or occupation in which the agency has genuine expertise, but an agency’s administration of a specialized program does not mean that its political head or changing personnel either need or acquire expertise in that sense.* * * [T]he agency’s special expertise calls for deference to ‘the degree to which the problem involves knowledge peculiar to the industry, business, etc.,’ * * *. Rogers Construction Co. v. Hill, 235 Or 352, 356, 384 P2d 219 (1963).

“Distinct from such agency ‘expertise’ in giving meaning to a technical or specialized terminology is the question how far the statutory term entrusts to the agency some range of choice in carrying out the legislative policy. * * *”

Expertise is a characteristic of persons, not bestowed by appointment to office. If the responsible “agency,” see ORS 183.310(1), is not itself composed of experts, the fact that it has experts on its staff is important only when decisions are delegated to them (in which case the expert becomes the “agency”) or when experts participate in shaping institutional *392 decisions that do not require their expert testimony to be placed on a quasi-judicial record for ultimate decision by the lay agency. Specialization is not expertise, though it may produce expertise.

LCDC’s claim of deference depends on what LCDC has done. Compare Branscomb v. LCDC, 297 Or 142, 145, 681 P2d 124 (1984) (“some deference” to LCDC’s interpretation of its own rule), with 1000 Friends of Oregon u. Wasco County Court, 299 Or 344, 369, 703 P2d 207 (1985) (LCDC interpretation overturned as a “de facto amendment” of goal). The present case concerns the adequacy of a provision of Lane County’s plan. The text under examination is Lane County’s text, not that of a statute or of LCDC’s goals or rules. If any interpretation is reviewed here, it is LCDC’s view of how Lane County would interpret its ordinance, not how LCDC would interpret it. A future dispute about that interpretation would be appealed to LUBA, not to LCDC.

The “necessary and accessory” test incorporated in Lane County’s LC 16.211(3) (b) originated in Lamb v. Lane County, 7 Or LUBA 137 (1983). In that case LUBA stated:

“We understand petitioner to argue that Goal 4 prohibits uses not enumerated in Goal 4 unless the use is an essential part of one of the permitted, enumerated uses. In other words, unenumerated uses which are necessary and accessory to an enumerated forest use are permitted because they are, in effect, part of uses expressly authorized by Goal 4. For example, roads are not enumerated in Goal 4 as being an authorized use in lands zoned for forest uses. However, a logging road is a necessary accessory of commercial forestry production and would be permitted under petitioner’s interpretation. We agree with that interpretation. Restrictions and conditions placed on unenumerated and accessory uses, such as buffering, are irrelevant because they fail to assure that forest lands are retained for the enumerated forest uses under this standard. Relevant conditions or restrictions would measure whether a use is, in fact, accessory.” Id. at 143 (emphasis added).

Lane County and LCDC rely on the use of the italicized phrase in prior acknowledged plans to support the validity of its use in LC 16.211(3)(b). The Court of Appeals observed on reconsideration of this case, 85 Or App 619, 622, 737 P2d 975 (1987), that the county adopted the phrase as the sole criterion by which applications for building permits would be *393 judged and that Lane County was the first to so use the phrase.

The real issue is not the meaning of the words “necessary and accessory,” however. Rather, it is whether LCDC erred in allowing Lane County to provide that existence of a forest management plan ipso facto allows construction of a dwelling or mobile home as being “necessary and accessory” to whatever the forest management plan may contain. Answering this question does not call for any form or version of judicial “deference” to agency action.

The relevant portion of LC 16.211 (3) (b) provides:

“A dwelling or mobile home, and any accessory structures, on a vacant legal lot containing at least 10 acres shall be deemed accessory and necessary to the forest management of the legal lot provided:

“(i) A detailed forest management plan * * * is submitted for the legal lot which demonstrates forest production will be enhanced by on site forest management from the residence, and

<<* * * * *

<<* * * * *

“(iv) If the legal lot does not have a forest deferral pursuant to State law, then upon substantial completion of the details represented in the forest management [plan] in LC 16.211(3)(b)(i) above, the dwelling or mobile home shall be allowed on the property. Substantial completion of the details represented in the forest management plan shall be verified by a qualified private forestor and such verification shall be submitted in writing to the Department. During the interim, while the forest management plan is being implemented on the subject legal lot, a temporary mobile home in conjunction with the forest use shall be allowed for a period not to exceed five years. If the forest management plan is not implemented within the five-year period, the temporary mobile home shall be removed.” (Emphasis added.)

In its acknowledgment order, LCDC based its finding of compliance with Goal 4 on Lane County’s requirement of a forest management plan. LCDC stated that the requirements for a forest management plan and the Lane County ordinance making it a violation to fail to implement the plan “assures *394 that active forest management must occur on forest lands in order to establish a forest related dwelling; thus, satisfying the accessory and necessary test.”

We do not believe that LCDC has adequately explained that conclusion. This court has set forth the minimum standards which are to be applied to agency articulations of policy in contested cases. “If an agency proceeds by an order in a contested case, * * * it must articulate a tenable basis for the legal conclusions by which it applies a statute to the facts.” Ross v. Springfield School District No. 19, 300 Or 507, 517, 716 P2d 724 (1986). See also Market Transport v. Maudlin, 301 Or 727, 736-37, 725 P2d 914 (1986); Ross v. Springfield School Dist. No. 19, 294 Or 357, 370, 657 P2d 188 (1982); Springfield Education Assn. v. Springfield School Dist, supra, 290 Or at 228.

The present plan and acknowledgment order do not represent an articulation of a tenable basis for LCDC’s application of Goal 4 to the facts of the plan. The order suggests that LCDC’s legal conclusions are incorrect, but LCDC may be able to correct the record through a more extensive explanation of its reasoning so as to demonstrate the validity of the Lane County plan.

The key provisions in the Lane County plan concern the forest management plan. The language of the plan is such that if a landowner can file a proper forest management plan, the landowner can also construct a dwelling on forest land. This language raises questions unanswered in the acknowledgment order and leads to the conclusion that LCDC has not shown the plan to be in compliance with Goal 4.

The Court of Appeals held that while Lane County had adequately defined “accessory” as “[incidental, appropriate and subordinate to the main use of a tract or structure,” neither LCDC nor Lane County had defined “necessary.” 83 Or App at 282. The Court of Appeals adopted Webster’s Third New International Dictionary definition of “necessary”: “that cannot be done without: that must be done or had: absolutely required,” and held that “Lane County’s criteria would allow dwellings which can be done without, need not be had and are not absolutely required for a forest use; they therefore do not comply with the goal.” 83 Or App at 282-83. In their petitions to this court, all the parties objected to this ruling by the Court *395 of Appeals. Lane County and LCDC argued that the plan adequately defined the terms and that the Court of Appeals should have deferred to LCDC’s judgment. 1000 Friends claimed that the Court of Appeals erred in approving the plan’s definition of “accessory.”

As already stated, the problem does not strike us as one of definition. The words “necessary” and “accessory” are not themselves part of Goal 4, the governing law. Although historic battles were fought over the meaning of “necessary” in the United States Constitution, 8 it is not really the meaning of the words on which the parties disagree here. Lane County’s ordinance provides that buildings may be erected whenever the details of a forest management are completed. Therefore, the question is actually whether the standards for compliance with the forest management plan are such that LCDC can properly conclude that what would otherwise be a non-forest use—a dwelling—is, because of the forest management plan, properly considered a forest use.

In their petitions, LCDC and Lane County argue that because a forest management plan requires certain minimum stocking of timber, a forest management plan will comply with Goal 4. Because there must be some range between minimum stocking and the maximum possible forest density for most forest lands, a minimum stocking requirement does not itself ensure that the land will not be put to other uses. Therefore, applying a forest management plan to the lot as a whole would not seem to ensure that all the uses on the lot were forest uses as defined by Goal 4. LCDC has not shown how a non-forest use on one part of a lot, even one which enhances forest uses on other parts of the lot, must thereby legally be considered itself to be a forest use.

In ordinary usage, when the term “enhance” is used in reference to a condition, the usage implies that the basic conditions already exist and that the addition will improve or, as LCDC says in its petition, that there will be “an increment of increase.” Without LCDC’s offering a more extensive explanation, it does not appear that enhancing existing forest *396 uses on part of a lot necessarily makes a non-forest use into a forest use.

LCDC asserts that the standards set forth in the Lane County plan are an adequate substitute for a case-by-case application of the “necessary and accessory” test to construction permit requests. This assertion is the heart of LCDC’s legal conclusions. LCDC must show the necessary legal connection between the policy of conserving forest land for forest uses and allowing dwellings on forest land. Goal 4 sets a high standard when it requires that “[e]xisting forest uses shall be protected unless proposed changes are in conformance with the comprehensive plan.” This court is not prepared to suggest that no dwelling could be considered necessary and accessory to a forest use, but we cannot agree that allowing a dwelling on some part of a lot simply because it may enhance forest uses on the remainder of the lot protects existing forest uses to the extent required by Goal 4.

The language of Goal 4 calls for a stringent standard here precisely because Lane County is seeking in its comprehensive plan to replace a case-by-case scrutiny of changes in forest use with the talisman of a forest management plan. Because LCDC has not shown that a dwelling’s enhancement of a forest management plan is legally adequate to make construction of the dwelling automatically comply with Goal 4, the acknowledgment of the Lane County plan cannot be found to be in compliance with Goal 4.

The diligence of Lane County’s authorities may, in effect, ensure there will be few impermissible intrusions of non-forest uses on forest land. However, the purpose of the review of a comprehensive plan is to ensure that the method now established to evaluate future changes is such that the goals are protected not only by the diligence of decision-makers, but also by the rules under which such future decisions are made. The “necessary and accessory” test in the Lane County plan is neither precise nor strict enough to show that dwellings on forest lands will meet the stated intent of Goal 4 to conserve forest lands for forest uses.

Lane County argues that because its plan, taken as a whole, does comply with Goal 4, a single, non-complying portion should not be subject to remand. Lane County misperceives the nature of the acknowledgment process and the roles *397 assigned to LCDC and to reviewing courts. ORS 197.650 directs that appeals of commission orders shall be “in the manner provided in ORS 183.482,” which directs the court to remand the order to the agency if the agency’s action is “[i]nconsistent with an agency rule, an officially stated agency position, or a prior agency practice.” ORS 197.747 defines compliance with the goals for the purposes of acknowledgment under ORS 197.251 to mean that “the comprehensive plan and regulations, on the whole, conform with the purposes of the goals and any failure to meet individual goal requirements is technical or minor in nature.”

The term “technical or minor” is a qualitative standard. In suggesting that its comprehensive plan should be approved as written because only a small portion of the total land area of Lane County is involved in the dispute over impacted forest lands, Lane County is attempting to make a qualitative measure into a quantitative measure. Such a suggestion misreads the language of ORS 197.747.

While other portions of the Lane County plan do comply with the goals, it is not a minor or technical violation of Goal 4 to allow non-forest uses, such as dwellings, on forest lands by simply showing that the non-forest uses will enhance certain forest uses. Compliance in other areas, even in other parts of the total forest use area, does not mean that Lane County can develop as part of its overall protection of Goal 4 a test which offers no assurance that non-forest uses which conflict with Goal 4 will not intrude on forest lands in some portion of the forest use zone. LCDC approval of this variation of the necessary and accessory test is inconsistent with the purpose of Goal 4.

Because there is not a sufficient showing in the record made by LCDC that the sole test in the Lane County plan used to evaluate dwellings on forest lands will protect Goal 4, the decision of the Court of Appeals on the first assignment of error is affirmed.

FARM USES ON FOREST LANDS

The second assignment of error also concerns Goal 4 and the lands zoned by Lane County as impacted forest lands (F-2 lands). The issues in this question involve woodlot dwellings on forest land. LC 16.211(3)(c) permits:

“A dwelling or mobile home, and any accessory structures, in conjunction with the propagation or harvesting of a forest *398 product on a vacant lot that is managed as part of a woodlot meeting the Douglas-fir cubic foot site index and acreage requirements below, provided sufficient factual documentation concerning the forest management, the soils, cubic foot site indices and acreage of the legal lot is presented to verify that the legal lot meets the minimum cubic foot site index/ acreage requirements specified below. * * *”

Woodlots are included by former ORS 215.203(2)(b) (D) (now ORS 215.203 (2)(b)(H)) in exclusive farm use zones. 9 Although we find no specific legislative history on the subject, we infer that the legislature was referring to woodlots in the common sense of a small area where the landowner occasionally harvests trees for personal consumption or for sale as *399 wood and not as a forest product. The separate acknowledgment of the “propagation or harvesting of a forest product” in ORS 215.213(1) (c) makes this view of woodlots more certain and demonstrates that as a legal term woodlots were not viewed by the legislature to be forest uses as well as farm uses.

Elsewhere in LC 16.211, Lane County provides for dwellings on agricultural land within the forest zone. 10 LCDC’s and Lane County’s responses to 1000 Friends’ objections to LC 16.211(3)(c) make it clear that LCDC is acknowledging a comprehensive plan where what would otherwise be non-forest uses—woodlot dwellings—will be allowed on Goal 4 forest land because they are classified as meeting the requirements of Goal 3.

The Court of Appeals stated:

“Lane County Development Code §§ 16.211(4)(k) and (1) permit woodlot homes on those properties within the F-2 zone that are in predominant agricultural use; 1000 Friends specifically agrees with that provision. It attacks the extension of the ‘woodlot’ dwelling exemption to those portions of the F-2 zone which would not by themselves qualify for EFU zoning. The code does not purport to require that the dwelling be necessary and accessory to a forest use, but only that the land meet certain fertility requirements and be managed for forest production. There is no attempt to show that forest production would require an on-site dwelling in every instance. If LCDC determined that the ‘woodlot’ dwelling provisions meet the requirements of Goal 4 for forest uses, it erred.” 83 Or App at 284.

The question we address is whether Lane County may zone for and LCDC may acknowledge zoning which allows for exclusive farm uses on forest lands. Nothing in Goal 4 mentions farm uses as being compatible with the intents of the goal. However, LCDC mentions agricultural lands several times in its rules concerning Goal 4. OAR 660-06-000(3) states that

“this rule provides for a balance between the application of *400 Goal 3 ‘Agricultural Lands’ and Goal 4 ‘Forest Lands’, because of the extent of lands that may be designated in either agricultural or forest land.”

OAR 660-06-010 provides:

“The inventory [of forest lands] shall include land forested in commercial and noncommercial species and non-forested land suitable for forest uses, unless the non-forested land is inventoried as Goal 3 agricultural land * *

OAR 660-06-015(1) states:

“In areas of intermingled agricultural and forest lands, an ‘Agricultural/Forest Lands’ designation may also be appropriate.”

These rules recognize that agricultural and forest uses may exist in such close proximity that it is impractical to create separate zones for each use. They cannot be read to amend the goals so that uses which are defined by Goal 3 as farm uses become Goal 4 forest uses. LCDC has the authority to adopt rules which interpret the goals. ORS 197.040(1) (b) and (c). Where the rules adopted by LCDC are reasonable interpretations of the goals, they will be recognized as such by this court. LCDC is not, however, given the authority to amend the goals through interpretation. 1000 Friends of Oregon v. Wasco County Court, supra, 299 Or at 369.

LCDC seeks to merge Goal 4 into Goal 3, at least in areas of mixed farm and forest use. To justify this reinterpretation of the goals, LCDC first argues that the legislature did not explicitly direct the establishment of a forest goal. Later LCDC argues that “[b]ecause the legislature has adopted no exclusive forest use zone for forested lands, LCDC must determine which uses are permissible under Goal 4.” Ignoring the fact that LCDC has set forth permissible forest uses in Goal 4, LCDC concludes that “[i]t is an appropriately circumscribed interpretation of what Coal 4 requires” for LCDC to permit a legislatively specified farm use on forest land. LCDC rejects the “surgical precision” of the Court of Appeals, because it claims that limiting “ORS 215.213(2) uses to land currently in farm use has no basis in ORS chapter 197.” In sum, LCDC argues that it views Goal 4 forest uses and Goal 3 agricultural uses as interchangeable.

This abolition of any distinction between Goal 4 and *401 Goal 3 goes too far. When it created separate goals for agricultural use and for forest use, LCDC recognized that these uses had distinct characteristics. To suggest that land “may appropriately be converted from farm to forest use or vice versa depending on economic conditions and other factors,” as LCDC now does in its petition to this court, blurs the distinction between Goal 4 and Goal 3. Nothing in the goals themselves, nor in the language of any statute, suggests that the goal can be thus reinterpreted.

ORS 197.340 directs that “[t]he commission, the department and local governments shall give the goals equal weight in the planning process.” This court has held that Goal 3 and Goal 4 are analogous in their protection of Oregon’s resources. 1000 Friends of Oregon v. LCDC (Curry Co.), 301 Or 447, 454, 724 P2d 268 (1986). Separate, analogous goals cannot be merged through reinterpretation. LCDC cannot by rule or policy statement amend the goals or reinterpret the goals to suggest that farm uses are also forest uses by concluding that because a use is allowed by Goal 3 it must also be allowed by Goal 4.

ORS 215.213(2) (a) and (b) speak of areas “zoned for exclusive farm use,” and allow dwellings “in conjunction with farm use or the propagation or harvesting of a forest product on a lot or parcel that is managed as part of a farm operation or woodlot if the farm operation or woodlot” meets certain conditions. For LCDC to assert that this language allows it to conclude that all the farm and non-farm uses set forth in ORS 215.213 are also appropriate forest uses is unreasonable. The legislature specifically allowed the “propagation or harvesting of a forest product on a lot or parcel that is managed as part of a farm operation or woodlot.” This legislative decision allowing a land use in exclusive farm use zones which could also be considered a forest use under Goal 4 does not thereby make those lands forest lands, nor does it mean that other .farm uses are thereby allowed on forest lands.

If land is designated as Goal 4 land, all non-excepted uses must meet the requirements of Goal 4. Where there are mixed uses so closely or rationally connected that it is impractical to divide the land into exclusive Goal 3 or Goal 4 zones, the parties do not contest LCDC’s decision that a mixed designation can be given to the zone as a whole. However, within *402 such a mixed use zone, and within an exclusive zone of either type, individual parcels cannot meet one goal merely by having a use corresponding to another goal. To be a forest use on forest land, the use must be compatible with and conducive to the retention and protection of forest land, and must be supported by findings in the record. LCDC acknowledged Lane County’s plan despite the fact that it allowed farm uses on forest lands without a showing of compatibility with forest uses. In so doing, LCDC violated the requirements of Goal 4. The decision of the Court of Appeals is affirmed on the second assignment of error.

THE SUBSTANTIAL EVIDENCE ISSUE

The parties next raise the question whether the Court of Appeals should use the substantial evidence test in reviewing acknowledgment decisions. The Court of Appeals was confronted with three questions which, taken together, raise the question of the proper standard of review of evidentiary questions in acknowledgment proceedings. These three questions were raised by assignments of error three, four and five. The first question concerned a challenge to the credibility of the evidence used to determine the minimum parcel sizes for the F-2 zone. The second question called upon the Court of Appeals to determine if there was substantial evidence in the record to support Lane County’s determination of minimum lot sizes for the F-l (non-impacted forest land) zone. The third question also involved a substantial evidence issue, but concerned the propriety of the use of tax lot information to determine the minimum lot size of lands within the Exclusive Farm Use (EFU) zone.

Questioning the Credibility of the Evidence.

In the first question, concerning the proper standard of review, 1000 Friends asserted that the “credible evidence in the record” did not support Lane County’s conclusion regarding minimum parcel sizes on F-2 lands. The Court of Appeals affirmed LCDC’s acknowledgment, stating: “We do not evaluate the credibility of the evidence,” 83 Or App at 285 (emphasis in original), because, as the Court of Appeals had noted earlier, it “do[es] not review LCDC’s findings de novo, as 1000 Friends appears to assume.” Id. at 281 n 2. In its petition before this court, 1000 Friends argued that the Court of Appeals should have applied a substantial evidence test to *403 review the adequacy of LCDC’s acknowledgment of the Lane County plan.

In other circumstances we might be more sympathetic to this argument. Questioning the credibility of the evidence can suggest a potential lack of substantial evidence to support a conclusion. However, in circumstances where an experienced appellate advocate argues that “the credible evidence in the record shows” that F-2 parcel sizes are too small, and in the very next paragraph argues that the minimum lot size in the F-l zone is not supported by substantial evidence in the record, we are led to conclude, like the Court of Appeals, that what 1000 Friends is doing is inviting the court to agree that if 1000 Friends’ opinions were followed, the results would have been different.

The record before the Court of Appeals suggests that 1000 Friends saw this assignment of error as a question concerning the interpretation of Goal 4 and not as an evidentiary question. In its petition to the Court of Appeals, 1000 Friends consolidated this assignment of error with the first two assignments of error concerning dwellings on forest lands, apparently viewing this claim as an attack on Lane County’s F-2 (impacted) forest zone on the ground that the small lot size violated Goal 4 because such small lot sizes encouraged rather than discouraged conversion to non-forest uses. In its petition to this court, 1000 Friends changes its focus. It accepts the treatment of its assignment of error by the Court of Appeals as raising an evidentiary, rather than a Goal 4, question; but argues that the Court of Appeals wrongly answered the question it understood 1000 Friends to present. We disagree.

The Court of Appeals correctly held that it is not that court’s responsibility to review the evidence de novo, as a fair reading of the argument by 1000 Friends suggests that that party was seeking. Neither is it that court’s duty to supply arguments for the parties or answer questions which might have been but were not propounded. The decision of the Court of Appeals is affirmed on this question, the third assignment of error.

Properly Applying the Substantial Evidence Test.

1000 Friends also questioned the evidence offered by Lane County to support its 40-acre minimum lot size in the *404 F-l (non-impacted forest lands) zone. As 1000 Friends argues, the requirement for minimum parcel sizes is important for compliance with the rural land use goals because it ensures that undersized parcels, which may not be economically viable for forest uses, do not produce pressures to rezone large areas of forest lands from F-l to F-2 zoning. See 1000 Friends of Oregon v. LCDC, 69 Or App 717, 733-34, 688 P2d 103 (1984).

Judge Warden, writing for the Court of Appeals, properly applied the substantial evidence test and correctly found that some of the evidence offered by Lane County did not support the conclusion pertaining to minimum lot size. Further, the Court of Appeals found some of the evidence which was supportive lacked sufficient accompanying information to make it reasonable for Lane County or for LCDC to rely on this evidence.

The most important opinion evidence rejected by the Court of Appeals was contained in letters from a representative of the Lane County Land Owners Association stating that 40 acres could be an operationally and economically manageable forest unit. Lane County argues that these letters should have been given more weight because they represented the combined experience of the major timber producers in the county, and w