Kuhn v. Deschutes County

Ambiguous language in a condition of land use approval is analyzed using statutory interpretation methods, and is not evaluated using techniques for interpreting an ambiguous contract, as a condition of land use approval is not an agreement between two or more parties.

Deschutes County (respondent) approved a conditional use permit for a cluster development, subject to several conditions. One condition (Condition 2) required that before any lot sale “a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property...” However, the owner sold parcels to the petitioner and the intervenor-respondents (intervenors) without meeting Condition 2. The parties disagreed about how to manage the lots.

Intervenors sought a declaratory ruling stating what would constitute an agreement in satisfaction of Condition 2. A hearings officer concluded that Condition 2 could only be satisfied by an agreement between the parties. Intervenors appealed the decision. The board of commissioners concluded that there were three ways Condition 2 could be satisfied, the third of which allowed for an agreement by one of the lot owners and the county. The petitioner appealed.

The parties disagreed on the methodology the county should use to resolve a conflict over the meaning of ambiguous language in a condition of approval. LUBA agreed with the petitioner’s stance, finding a condition of land use approval is not a contract; assent of the applicants is unnecessary and their intent is irrelevant. Therefore, “interpreting an ambiguous condition of approval bears a much closer relationship to interpreting ambiguous statutory language than it does to interpreting ambiguous contract language.” LUBA concluded that PGE v. BOLI, 317 Or 606, 611-12 (1993) was controlling.

Petitioner then argued that LUBA owed no deference under ORS 197.829(1) to the commissioners’ interpretation of a condition of approval. LUBA agreed with respondents that a deferential standard of review is appropriate, but also agreed with petitioner that no deference is owed to board of county commissioners’ interpretation of Condition 2 per ORS 197.829(1). Using these interpretation principles, LUBA denied the petitioner’s assignment of error. AFFIRMED.