Bishop et al v. Deschutes County

A local government's decision is excluded from the definition of a "land use decision" under ORS 197.015(10)(a) if the decision requires future land use review pursuant to ORS 197.015(10)(b)(H)(iii).

In three consolidated appeals, applicants Tumalo Irrigation District (TID) and KC Development Group, LLC (KCDG) (collectively T/K) and Thomas and Dorbina Bishop (the Bishops) appeal two Deschutes County decisions: (1) a board of county commissioners’ decision to review and remand a land use compatibility statement (LUCS) and (2) a county planning staff decision to reissue the LUCS in accordance with the board of county commissioners’ remand. T/K collaborated to transfer water from an existing TID reservoir to two newly constructed reservoirs on KCDG’s property adjacent to the Bishops’ property. Oregon Water Resources Department required TID to obtain a LUCS before the transfer could take place. An initial LUCS described the transfer as permitted outright, but following the Bishops’ appeal, the county determined that conditional use permits would be required. The LUCS was reissued to reflect those requirements, and both T/K and the Bishops appealed on various grounds.

T/K moved to dismiss all three appeals, arguing that LUBA lacked jurisdiction over the challenged decisions. The Bishops argued that the appeals should be transferred to circuit court if LUBA determined it lacked jurisdiction. LUBA agreed with T/K’s argument that the decisions are excluded from LUBA’s jurisdiction under ORS 197.015(10)(b)(H)(iii), which excludes from the definition of a “land use decision” certain LUCS decisions that require future land use review. LUBA rejected the county’s and Bishops’ countervailing arguments that the exclusions at ORS 197.015(10)(b)(H) are not intended to apply to discretionary decisions or decisions that require interpretation of county code because “LUCS decisions almost always require the exercise of discretion and the need for interpreting code language.” LUBA determined that the two decisions challenged in the three appeals were excluded under ORS 197.015(10)(b)(H)(iii), and accepted the Bishops’ motion to transfer. LUBA Nos. 2015-027/030 were TRANSFERRED. LUBA No. 2015-028 was DISMISSED.