Gould v. Deschutes County

1) Where a final master plan places a limitation on an aspect of a development, that limitation will be held to have effect following modifications to other areas of the master plan. 2) Where an interpretation of two applicable provisions harmonizes and gives them both effect, that construction will be upheld.

Petitioner appealed the county hearings officer’s approval of modifications to the Conceptual Master Plan (CMP) and Final Master Plan (FMP) of the Thornburgh Destination Resort, initially approved in 2006 and 2008, respectively. In 2007, the County amended Deschutes County Code (DCC) increasing the ratio of allowable residential single family (RSF) units to overnight lodging units (OLUs) in destination resorts from 2:1 to 2.5:1 and lowering the number of weeks per calendar year individually-owned OLUs are required to be available for overnight rental use by the public from 45 to 38. Thornburgh’s application to modify the CMP and FMP to reflect the 2.5:1 RSF to OLU ratio and 38-week OLU rental requirement followed. Rather than proposing more RSFs (a maximum of 950 RSFs was included in the original FMP), Thornburgh chose to decrease the number of OLUs from 450 to 380.

DCC 18.113.80 provides that "substantial change to an approved CMP . . . means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected." DCC 22.36.040 allows modifications to approvals where the proposed changes do not amount to “a substantially new proposal or one that would have significant additional impacts on surrounding properties."

In their main assignment of error, Petitioner argued that the hearings officer misconstrued the applicable law in concluding that the modifications to the Master Plan were not "substantial changes" under DCC 18.13.080 and DCC 22.36.040.

Petitioner argued that the hearings officer should have imposed a condition of approval limiting Thornburgh to 950 RSFs because development of more than 950 RSFs would constitute a substantial change, and, while Thornburgh stated that the Master Plan modifications did not propose additional RSFs beyond those allowed under the FMP, Thornburgh’s nonbinding statements were insufficient. "[W]here the promise or statement is . . . found on the face of the plan that the decision approves, and any subsequent approvals or permits must be consistent with that approved plan, [LUBA] see[s] no need for a specific condition of approval to that effect." Culligan v. Washington County, 57 Or LUBA 395, 401-02 (2008). LUBA disagreed with Petitioner, reasoning that because the "FMP controls… [b]before and after the Master Plan modifications,'' it was unnecessary for the hearings officer to impose a condition of approval to ensure compliance with the RSF limit in the FMP.

Petitioner further argued that the potential reduction in number and rental availability of OLUs constituted a substantial change. Intervenor responded that under Petitioner's definition of a substantial change, any change, whether it resulted in greater or lesser impacts to surrounding properties, would require a new application, and as a result, Petitioner’s interpretation was inconsistent with DCC 22.36.040 which allows modifications to approvals. “Where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all." ORS 174.010. LUBA agreed with Intervenor, reasoning that because the hearings officer’s interpretation that "substantial change" implies "significant additional impacts on surrounding properties" harmonized and gave effect to both DCC 18.113.80 and DCC 22.36.040, it was an appropriate construction.

Accordingly, LUBA held the hearings officer did not err in concluding that the modifications were not substantial changes. Affirmed.