Central Land and Cattle Company v. Deschutes County

A county hearings officer must comply with LUBA’s directions on remand and must accept new evidence in accordance with LUBA’s instructions and the applicable county code.

     Annunziata Gould (intervenor-respondent) appealed the denial of a county hearings officer’s final master plan (FMP) approval for Thornburgh Resort, a proposed destination resort in Deschutes County. In Deschutes County, a destination resort requires both conceptual master plan (CMP) and FMP. In order to obtain approval, Deschutes County Code (DCC) 18.113.070 requires substantial evidence that any negative impact on fish and wildlife resources will be completely mitigated (“no net loss/degradation standard”).  This appeal concerns a county land use hearings officer’s attempt to respond to LUBA’s remand of the county’s first FMP approval in Gould v. Deschutes County, 59 Or LUBA 435 (2009), aff’d 233 Or App 623, 227 P3d 758 (2010) (“Gould (FMP)”).

     On appeal, CMP approval was affirmed. One of the main questions in this appeal is whether the county may grant FMP approval if the approved CMP expired before the county approved the FMP for a second time. This appeal also challenged the hearings officer’s response to the two errors regarding the no net loss/ degradation standard that led to LUBA’s remand of Gould (FMP).

     Petitioners argued, and LUBA agreed, that remand is necessary because the hearings officer needs to provide a better explanation as to why he found contrary testimony regarding the water temperature unpersuasive. Petitioner also contended that the hearings officer misunderstood the remanded question because the hearings officer mistakenly believed the 106 acre-feet of additional mitigation water to be 106 cubic feet per second. LUBA agreed that remand was necessary to determine whether the increased summer water usage would violate the no net loss/degradation standard.

     Petitioner then argued that the hearings officer erred by refusing to consider new evidence on remand. LUBA agreed that the second hearings officer should have allowed new evidence regarding the potential thermal impact of increased seasonal water usage. REMANDED.