Bishop v. Deschutes County

Under DCC 22.20.015, which is remedial in nature and not punitive, decisions which either determine that an existing use requires land use approval or deny an application to retroactively approve an existing use do not constitute a determination that a “violation” has occurred.

Petitioners appeal two county decisions retroactively approving two existing reservoirs on land zoned Rural Residential 10-acre minimum (RR-10) and Wildlife Area (WA), which protects deer winter range. Intervenors excavated and constructed the two reservoirs in 2014. Later that year, the county determined that the construction of the reservoirs required county land use approvals. In 2016, the county denied applications to approve the reservoirs on several grounds. In 2018, intervenors submitted two additional applications. The first application sought approval of a 10-unit residential planned unit development (PUD) and a conditional use permit to use the reservoirs as a recreation-oriented facility (ROF). The second application sought a post-acknowledgment plan amendment (PAPA) to include the reservoirs in the county’s inventory of non-significant mineral and aggregate resources and a surface mining conditional use permit (SMCUP) to excavate and construct the reservoirs for storing irrigation water. The county approved the applications and this appeal followed.

In one assignment of error, petitioners argue the county lacked jurisdiction to approve the 2018 applications because litigation was pending to enforce the 2016 denials. Alternatively, petitioners argue that said pending litigation reduces LUBA’s scope of review to the point of futility. Because petitioners cite no authority for the proposition that circuit court exercise of concurrent jurisdiction over enforcement actions means the county is thereby divested of authority to process new land use applications, and because petitioners have not established that the possibility of a future circuit court granting petitioners’ requested relief limits LUBA’s scope of review, the assignment of error is denied.

Deschutes County Code (DCC) 22.20.015 prohibits the county from approving development applications if the property is “in violation of applicable land use regulations,” unless the approval results in “full compliance with all applicable provisions of . . . law[.]” In another assignment of error, petitioners argue that, because intervenors failed to obtain required approvals to construct the reservoirs in the first place, the county erred in concluding that the subject property was not in violation of land use regulations. In addition, petitioners argue there is no evidence that the applications, if approved, would result in full compliance with applicable law. In approving the applications, the county interpreted DCC 22.20.015 to be remedial in nature and not punitive. As such, the 2014 determination that the existing reservoirs required land use approval and the 2016 denials did not constitute a determination that a “violation” had occurred. Because LUBA cannot say that the county’s interpretation is inconsistent with the express language, purpose, or underlying policy of DCC 22.20.015, and because petitioners have not demonstrated that the county erred in concluding that approval of the 2018 applications would result in “full compliance” with applicable law, the assignment of error is denied.

DCC 22.28.040(A) provides that, when “a specific application is denied on its merits, reapplication for substantially the same proposal may be made at any time after . . . the final decision[.]” In another assignment of error, petitioners argue the doctrines of claim and issue preclusion barred the county from approving the two applications and that DCC 22.28.040(A) did not apply because the applications are not for proposed development, but instead to retroactively approve existing development. Because petitioners do not establish that the term “proposal” only includes applications for new development, and since nothing in the text or context of DCC 22.28.040 suggest that it was intended to exclude applications to retroactively approve existing development, LUBA rejects petitioners’ interpretation of DCC 22.28.040(A). Assuming that issue preclusion could apply, however, LUBA disagrees with petitioners that it does so here. The county’s 2016 denials were based not on final resolution of a specific legal or factual issue, but because the applications were missing essential information. Because the 2018 applications include that missing information, the issues are not the same, issue preclusion does not apply, and the assignment of error is therefore denied.

LUBA goes on to address six additional assignments of error in which petitioners argue that ROFs are prohibited in the WA zone, that the PAPA would impermissibly allow new uses that could conflict with deer winter range, that an SMCUP is required in order to approve the ROF, that the county must consider intervenors’ contemplation of applying for a cluster development rather than a PUD, that the county’s surface mining regulations conflict with other provisions of state law requiring permits from the Oregon Department of Geology and Mineral Industries (DOGAMI), and that the county’s findings are inadequate and not supported by substantial evidence. Because each of these assignments of error is denied, the county’s decision is AFFIRMED.