Schofield v. Douglas County

A decision determining whether a condition of permit approval is satisfied is not a land use decision under ORS 197.015(10)(a)(A).

Under ORS 215.284(2)(b), nonfarm dwellings may be allowed in exclusive farm use (EFU) zones outside the Willamette Valley if they are situated on land that is generally unsuitable for farm use. In 2005, the county approved a nonfarm dwelling on a portion of the subject property that is generally unsuitable for farm use. That decision was appealed to LUBA and remanded several times. In 2008, while one of those appeals was pending, petitioners obtained a building permit and constructed the nonfarm dwelling on the unsuitable portion of the property but connected it to a well and septic tank on a suitable portion of the property. In 2015, on remand from LUBA for the third time, the county re-approved the nonfarm dwelling with a condition of approval requiring that the dwelling and the water and septic systems be located on the unsuitable portion of the property. In April 2019, the county sent petitioners a letter explaining that that condition had not been met and that the 2015 approval period would expire in May 2019. Petitioners responded to the county that the condition had been met and required no specific action. In October 2019, the county sent petitioners another letter explaining that, because the nonfarm dwelling was connected to water and septic systems situated on the suitable portion of the property, the condition had not been met and, as a result, the 2015 approval had expired earlier that year. This appeal followed.

Under ORS 197.015(10)(a)(A), LUBA has authority to review “land use decisions,” including local government decisions that concern the adoption, amendment, or application of the goals, comprehensive plan provisions, or land use regulations. Intervenor argues that, because the October 2019 letter applied no goal, plan, or land use regulation, but instead merely reiterated the same information in the April 2019 letter, it was not a land use decision and the appeal should therefore be dismissed. Because a decision determining whether a condition of permit approval is satisfied concerns only the application or interpretation of that condition, and not a land use regulation, LUBA agrees with intervenor that such a decision is not a land use decision. However, because the dispute between petitioners and the county may lead to an enforcement action which may involve the county’s interpretation of the condition, it is not clear to LUBA that the issues raised in the appeal are moot and the appeal is therefore TRANSFERRED.