Central Oregon Landwatch v. Deschutes County

The mere threat of potential litigation against the county is an insufficient basis, under OAR 660-023-0040(4) and (5), and the definition of the ESEE for the county to abandon or disavow a portion of its acknowledged Goal 5 program.

Petitioner challenges a county decision to allow a church development in the Wildlife Area Combining Zone under the exception provided in DCC 18.88.040(C).

After LUBA denied the allowance of churches as an “outright permitted use” under DCC 18.88.040(B)(3), John Shepherd threatened to file a lawsuit under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) unless the county amended the DCC section prohibiting churches, arguing for nothing less than complete removal of the ban on churches. The county then issued plans to amend DCC 18.88.040(B)(3), requiring “economic, social, environmental, and energy” (ESEE) impact considerations of allowing the prohibited use under OAR 660-023-0040(4).

Under its first assignment of error, petitioner argues the county erred in ESEE analysis when it relied in part on the economic impact of the threatened lawsuit. The county did not consider the actual merits of the threatened suit, instead it simply considered the cost of defending any hypothetical RLUIPA lawsuit. LUBA generally defers to the local government interpretation of ESEE impacts. However, LUBA found that the mere threat of potential litigation against the county is an insufficient basis, under OAR 660-023-0040(4) and (5), and the definition of the ESEE for the county to abandon or disavow a portion of its acknowledged Goal 5 program.

Because the ESEE analysis in the record provides no assessment of the merits of the potential suit, remand is required. REMANDED.