Widgi Creek Homeowners v. Deschutes County

When an issue has been decided in a prior proceeding, the prior decision on that issue may preclude relitigation of the issue if five requirements are met: (1) the issue in the two proceedings is identical; (2) the issue was actually litigated and was essential to a final decision on the merits in the prior proceeding; (3) the party sought to be precluded had a full and fair opportunity to be heard on that issue; (4) the party sought to be precluded was a party or was in privity with a party to the prior proceeding; and (5) the prior proceeding was the type of proceeding to which preclusive effect will be given.

The Seventh Mountain Resort was expanded in 1983 with the approval of its zone change, master plan and conditional use permit for the Widgi Creek Resort on the adjoining 237 acres. The Widgi Creek Resort includes a golf course and residential development,. The 2014 tentative subdivision approval decision that is the subject of the appeal would divide 4.4 acres into 24 lots. a small “sliver” of the 4.4 acre property is located within Widgi Creek’s 237 acres near the southwestern part of the golf course and Widgi Creek Homeowners, petitioners, contended that the disputed tract is inconsistent with the Widgi Creek Master Plan. The hearings officer found that Deschutes County Code 18.110, the Resort Community Zone, which was applied to the property in 2001, superseded the Widgi Creek Master Plan and the issues that Widgi Creek Homeowners raised on appeal were resolved in 2006 and 2009 decisions.

In sustaining Widgi Creek Homeowners’ third assignment of error, LUBA applied a standard of review governed by ORS 197.835(9)(a)(D) to determine whether the planning commission improperly construed the applicable law without according the deference required by Clark v. Jackson County, 313 Or 508 (1992). LUBA identified errors in the hearings officer’s analysis, and because the officer failed to consider the county’s Comprehensive Plan policies cited by Arrowood Development, LLC, intervenor-respondent, the Board found an appropriate basis for remand. Widgi Creek Homeowners’ first and second assignments of error proceeded from an assumption that the Widgi Creek Master Plan had not been superseded by the Resort Community Zone. LUBA further determined that the hearings officer erred in concluding that she need not address the 2006 and 2009 decisions, and must determine on remand whether whether the Widgi Creek Master Plan retains a regulatory role under the Resort Community Zone or Deschutes County Code 18.08.020. REMANDED.