Central Oregon LandWatch v. Deschutes County

Under OAR 660-023-0040(4), “the local government ‘shall analyze the ESEE consequences that could result from decisions to allow, limit, or prohibit a conflicting issue.’ In doing so, the local government, in its ESEE analysis ‘must consider any applicable statewide goal or acknowledged plan requirements, including the requirements of Goal 5.’”

Deschutes County (County) sought review of a Land Use Board of Appeals (LUBA) order that remanded the County to adopt an “economic, social, environmental, and energy” (ESEE) analysis that either does not rely on the threat of a federal Religious Land Use and Institutionalized Persons Act (RLUIPA) litigation or includes an evaluation of the merits of such litigation. The County assigned error to LUBA’s alternative direction which required the County to analyze whether the current Goal 5 program was inconsistent with RULIPA. On appeal, the County argued that under the rules, it only needed to address the threat of RLUIPA litigation, not the likelihood of the County prevailing in such litigation. Additionally, the County argued that this was consistent with OAR 660-023-0010(2) and OAR 660-023-0040(4) because it identified an appropriate ESEE consequence, which was that there could be litigation and that litigation would have economic and social consequences, regardless of the outcome of such litigation. In response, LandWatch argued the County’s obligation to defend itself against lawsuits was not related to Goal 5, so the “risk” of litigation was not appropriate in an ESEE analysis. Additionally, LandWatch argued that because the County provided no information about the probability of the outcome, the County had no way to determine whether to amend the Goal 5 program. Under OAR 660-023-0040(4), “the local government ‘shall analyze the ESEE consequences that could result from decisions to allow, limit, or prohibit a conflicting issue.’ In doing so, the local government, in its ESEE analysis ‘must consider any applicable statewide goal or acknowledged plan requirements, including the requirements of Goal 5.’” The Court held that the County’s mere identification of a threat of litigation was not sufficient in analyzing the consequence requirement of Goal 5 and that the County did not examine whether the current program was even vulnerable to attack under RLUIPA.