Gould v. Deschutes County

“A LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law.” Kine v. Deschutes County, 313 Or App 370, 370-71, 496 P3d 1136 (2021).

Petitioner raised a series of challenges to Thornburgh’s proposed development on 1,970 acres of land zoned exclusive farm use and mapped within a destination resort overlay zone. Final Master Plan (FMP) Condition 38 required Thornburgh to “abide by” the fish and wildlife habitat mitigation plan (FWMP)—requiring mitigation “in advance of water use”—and to provide annual reporting. Petitioner assigned error to LUBA’s judgment in Thornburgh’s favor, arguing it erred by (1) concluding FMP Condition 38 did not require proof of the current availability of water in the mitigation source as a precondition for site-plan approval, and (2) relying on Bouman v. Jackson County, 23 Or LUBA 628, 631-32 (1992) when interpreting FMP Condition 38. “A LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law.” Kine v. Deschutes County, 313 Or App 370, 370-71, 496 P3d 1136 (2021). Neither the FWMP nor FMP Condition 38 required pre-development mitigation, and the requirement to “abide by” the FWMP was satisfied by Thornburgh’s reports addressing FWMP requirements. Therefore, LUBA’s challenged conclusion was correct as a matter of law. LUBA did not err in relying on Bouman because it was not clear that it did rely on Bouman; this authority was never cited in the current order, nor was its rationale mentioned.

 Affirmed.