Gould v. Deschutes County

Under Deschutes County Code, 22.36.020(A), the two pronged approach to determine whether development action has been “initiated” under a land use approval to “substantially exercise” all required conditions must be taken as a whole and not individually whereas “fault of the applicant “ does need to be applied to each condition.

Gould brought an appeal of the decision of the board of county commissioners who ruled that development action had been initiated. Gould contended that the two-year time limit on the approval of the conceptual master plan (CMP) had lapsed. The issue of the CMP being timely initiated had previously been before LUBA where it was remanded back to the hearings officer, with the Court of Appeals affirming LUBA’s decision. On re-remand, the hearings officer found that the CMP initiation was not timely. That decision was appealed by Loyal Land, LLC (Loyal) to the board of county commissioners. The board then issued a declaratory ruling that the CMP had been initiated before the two-year time period had expired. Gould appealed that decision.

Prior to addressing the four assignments of error, LUBA addressed decisions that were made in the prior cases, specifically Gould VII. Issues that were resolved: the standards that determine if the CMP was initiated prior to the permit expiration and that DCC 22.36.020(A)(3) applies to determine initiation. This section of the code requires two findings (1) conditions of the permit or approval have been substantially exercised, and (2) any failure to fully comply with the conditions is not the fault of the applicant. Further interpretative clarifications made in Gould VII were restated: (1) All 38 conditions must be considered in applying DCC 22.36.020(A)(3); (2) “Substantially Exercised” prong applies to the 38 conditions as a whole, not individually, and (3) Fault of the Applicant does not include any unfulfilled obligations that were not triggered because a contingency has not occurred and unlike substantially exercised, fault of the applicant is individually applied to each condition.

First assignment of error: Key issue - Interpretive issues that were resolved in Gould VII may not be reconsidered by the Board of Commissioners in this new phase of the same case. After extensive discussion and consideration of the standard of review that should be applied, LUBA decided that the Court of Appeals would apply the Beck case law that facilitates judicial efficiency and not permit the board of commissioners to now adopt new interpretations of the DCC that are inconsistent with LUBA’s interpretations of the DCC in Gould VII.

Second and third assignments of error: Key issues – county’s findings regarding the “substantially exercised” prong. The board of commissioners addressed each of the 42 CMP conditions of approval individually even though not all were substantially exercised, then approved them as having been. LUBA disagreed with all three findings of fact the board relied on in coming to the approval. They disagreed that 19 out of 42 conditions being exercised was enough to be considered “substantially exercised”. LUBA also noted that the board of commissioners may not dismiss as unimportant conditions that have not been exercised that are requirements for the final master plan (FMP) as “contingencies”.

Fourth assignment of error: Key issue – “fault of the applicant” prong. Gould argued that Loyal was at fault for failure to fully comply with 23 of the conditions of approval and the board of commissioners found that the fault was not with the Loyal but with their own county process of imposing a two-year limitation on CMP permits yet requiring FMP, land division, and site plan approvals to be obtained prior to expiration. LUBA suggested several alternative ways to amend the permitting process to avoid these issues in the Gould VII opinion. Because the Gould VII decision said very little about “fault of the applicant”, LUBA allowed the board of commissioners to lay blame on the county for the applicant’s inability to comply with CMP conditions of approval and therefore to not be at fault.

REMANDED.