Anunziata Gould v. Deschutes County

“[T]he plain meaning of [DCC 18.16.040(A)(3)] requires that the proposed conditional use be located on the single site on the subject property that is least suitable.” Oregon Landwatch v. Deschutes County, 78 Or LUBA 136, 147 (2018). An option to apply for an incidental take permit does not substitute determining compatibility with surrounding properties under DCC 18.128.015(B).

Intervenor applied to the County for a conditional use permit to site a personal-use airport on their property zoned Exclusive Farm Use (EFU). The application was approved by the county planning director and affirmed by the hearings officer. The board of county commissioners declined to review the decision.

A personal use airport is permitted in EFU zones as a conditional use under ORS 215.283(2)(h). Under Brentmar v. Jackson County, 900 P2d 1030 (1995), counties may subject the uses allowed under the statute to more stringent local criteria. DCC 18.15.040(A)(3) requires a finding “[t]hat the actual site on which the use is to be located is the least suitable for the production of farm crops or livestock.” DCC 18.128.015(B) requires the county to determine whether the proposed airport use is "compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A).”

In their first assignment of error, Petitioner argued that the hearings officer misconstrued DCC 18.16.040(A)(3), incorrectly applying a standard of “generally unsuitable” instead of the more stringent “least suitable.” Intervenor responded that using “generally unsuitable” was consistent with the county board of commissioners’ previous interpretation of the least suitable standard. LUBA sided with Petitioner, explaining that Intervenor’s argument relied on the wrong standard of review. “Where the governing body's decision is to decline to review the underlying decision, making the underlying decision the county's final decision, there is no basis to impute the lower body's interpretations to the governing body.” Gutoski v. Lane Cnty, 917 P2d 1048 (1996). LUBA affirmed past decisions in stating “[t]he plain meaning of this criterion requires that the proposed conditional use be located on the single site on the subject property that is least suitable.” Oregon Landwatch v. Deschutes County, 78 Or LUBA 136, 147 (2018). The first assignment of error is sustained.

In their second assignment of error, Petitioner argued that the hearings officer’s findings were inadequate as to the compatibility under DCC 18.128.015(A) and (B) of the proposed airport use with “existing and projected uses on surrounding properties.” Petitioner argued, and LUBA agreed, that hearings officer improperly determined use compatibility with nearby golden eagle habitat by relying on Petitioner’s ability to obtain an eagle incidental take permit (Take Permit). LUBA explained that Petitioner’s ability to secure a Take Permit is not equivalent to demonstrating compatibility because a Take Permit allows “some measure of damage to golden eagles.” Further, Petitioner argued, and LUBA agreed, that the hearings officer failed to adequately address the noise impacts of the proposed airport use. LUBA reasoned that, while the hearings officer evaluated noise concerns and found they were minimal due to the limited time required for take-offs and landings, they did so without regard to Intervenor’s particular model of plane. The second assignment of error is sustained in part.

Remanded.