Gould v. Deschutes County

Where a local government correctly identifies land uses associated with a state agency action and correctly identifies one or more exclusions to LUBA’s exclusive jurisdiction over land use decisions under ORS 197.015(10)(b)(H), LUBA will hold it does not have jurisdiction over the matter.

Petitioner appealed a land use compatibility statement (LUCS), included on a form given to the Oregon Water Resources Department (OWRD) by the County, which determined the County’s allowance of Intervenor’s proposed limited license for groundwater use (2021 Limited License) on lands zoned as Exclusive Farm Use (EFU) for a partially approved resort was compatible with the land use regulations.

Under ORS 197.015(10)(b)(H), “land use decisions” made by local governments regarding proposed state agency actions are compatible with acknowledged comprehensive plans and land use regulations implementing the plans if the use or activity under the action (1) is authorized by the decision, (2) is permissible without review by the plan and land use regulations implementing the plan, or (3) must be reviewed in a future land use decision under the plan and land use regulations implementing the plan, and are therefore outside LUBA’s exclusive jurisdiction over land use decisions under ORS 197.825(1).

In its motion to dismiss, Intervenor argued that LUBA did not have jurisdiction over Petitioner’s appeal because the County found that all uses in the 2021 Limited License were covered under uses (1) allowed in the EFU zone without review; (2) authorized by the comprehensive master plan (CMP), final master plan (FMP), Phase A-1, and/or golf course site plan; and/or (3) allowed subject to required future land use decisions, including overnight lodging under Phase A-1. The LUCS form included a section to select whether the use was allowed without review or required review, and “Being Pursued” was checked by the County to advise OWRD that the decision was not final yet because it was on appeal.

Petitioner responded that LUBA had jurisdiction over the LUCS because the 2021 Limited License was for temporary use and could not replace the groundwater permit in effect for the CMP, FMP, and Phase A-l, which had since expired. Petitioner also responded that LUBA had jurisdiction over the LUCS because the form did not specify the water sources at issue and changing water sources could change the FMP approval status based on the condition previously applied by the County. Petitioner further responded that if the water sources did change, it could be a substantial change to the CMP which could trigger modification procedures.

Agreeing with Intervenor, LUBA reasoned that because Petitioner did not show that the LUCS incorrectly identified the uses or incorrectly identified one or more exclusions under paragraph (H), the LUCS was not under LUBA’s jurisdiction. Accordingly, LUBA held that Petitioner’s appeal was not under its jurisdiction.

Transferred.