Gould v. Deschutes County

A state agency permit is a means of showing compliance with a water supply requirement, unless it can be demonstrated that the permit cannot be obtained “as a matter of law” Bouman v. Jackson County, 23 Or. LUBA 628, 646-47 (1992). Where a permit has expired and its renewal is subject to pending litigation, LUBA will hold that it is not unattainable as a matter of law.

Petitioner appealed the County’s approval of building plans for a proposed Destination Resort (the Resort). One condition of the Resort’s Final Master Plan (FMP) was that, at each site plan review in the development process, the Resort must provide updated documentation of its Oregon Water Resources Department water rights permit (Water Permit).

On appeal to LUBA, Petitioner’s only assignment of error was that the County’s decision to approve the plans was not supported by substantial evidence, with several subarguments indicating where Petitioner claimed the evidence was insufficient. LUBA primarily addressed Petitioner’s second subargument, that the County improperly decided the Resort had demonstrated compliance with the FMP by showing that their Water Permit was not canceled, although it had expired and its renewal was subject to a pending legal challenge by Petitioner. Petitioner further argued that because the Resort was seeking alternative water rights other than those in the Water Permit, this was evidence that the Resort was not in compliance with the FMP. A state agency permit is a means of showing compliance with a water supply requirement, unless it can be demonstrated that the permit cannot be obtained “as a matter of law.” Bouman v. Jackson County, 23 Or. LUBA 628, 646-47 (1992). LUBA determined that the County’s interpretation that a water permit was sufficient to demonstrate compliance with the FMP if the permit was not cancelled was a valid interpretation. LUBA reasoned that, despite Petitioner’s confidence that they would prevail in proceedings regarding renewal of the Resort’s permit, this did not demonstrate that the Water Permit was impossible to attain as a matter of law. LUBA also pointed out that the Resort seeking alternative water rights was not evidence of noncompliance because the Resort did not rely on those alternative water rights for approval but relied on their existing permit. LUBA rejected Petitioner’s subargument. LUBA then rejected Petitioner’s remaining subarguments as either not raised below or derivative of other arguments that had been previously rejected. LUBA denied Petitioner’s assignment of error.

Central Oregon LandWatch (COLW), as Intervenor-Petitioner, assigned error to the County’s decision that lot verification was not necessary for approval of the development even though the land is zoned Exclusive Farm Use (EFU). Deschutes County Code (DCC) 22.04.040(B)(1) provides a lot must be verified prior to issuing a land use permit in EFU zones. The Resort, as Intervenor-Respondent, argued that the land also had a Destination Resort (DR) zoning overlay, and DCC 18.113.020(B) stated where a Destination Resort is proposed in land zoned with a DR overlay, the requirements of the DR zone superseded those of the underlaying zone, and DR zones did not require lot verification. LUBA agreed with the Resort, finding that, as DR zoning did not require lot verification when approving a project, the County was correct in concluding there was no need for lot verification in this instance. LUBA denied COLW’s assignment of error.

Affirmed.