Gould v. Deschutes County

In determining whether failure to comply with conditions of approval are the "fault of the applicant" under Deschutes County Code (DCC) 22.36.020(A)(3), the county's decision to limit its consideration to the complexity of the county's multi-step destination resort approval process is an implausible interpretation of the DCC.

The subject property in the “latest in the long line of appeals” is the Thornburgh Resort, a proposed destination resort in Deschutes County. LUBA’s most recent decision was remanded by the Court of Appeals. Gould v. Deschutes County, __ Or LUBA ___ (LUBA No. 2014-080, Jan. 30, 2015), rev’d and remanded in part, aff’d in part, 272 Or App 666 (2015). The Court of Appeals referred to LUBA’s January 30, 2015 decision as Gould IX, and the Court of Appeals decision will be referred to as Gould X.

In Gould IX, Annunziata Gould, petitioner, challenged the county’s decision that the Thornburgh Resort conceptual master plan (CMP) conditions of approval had been “substantially exercised” and that the applicant was not at fault for the conditions of approval that had not been fully complied with. LUBA sustained Gould’s first three assignments of error on the issue of whether conditions had been “substantially exercised” but rejected Gould’s fourth assignment of error challenging the county’s decision regarding the “fault of the applicant” prong of Deschutes County Code (DCC) 22.36.020(A)(3). LUBA found that the county’s “interpretation, while ‘perhaps unusual,’ was nevertheless consistent with the text of DCC 22.36.020(A)(3), plausible, and therefore not reversible under ORS 197.829(1) and Siporen v. City of Medford, 349 Or 247 . . . (2010).”

In Gould X, the Court of Appeals reversed LUBA’s decision to reject Gould’s fourth assignment of error. The Court of Appeals determined that the county considered only the complexity of the process in determining whether the applicant was at fault for failing to comply with the forty-two conditions of approval for the CMP, and that such a limited consideration was an implausible interpretation of the DCC. REMANDED.