Gould v. Deschutes County

If, on a land use compatibility statement (LUCS) form, a local government summarizes the status of multiple permit decisions rather than listing each decision and its specific approval status, or fails to mention potential future changes to an approved master plan, LUBA will conclude the local government’s decision as to the LUCS may still be excepted from its review under ORS 197.015(10)(b)(H).

Petitioner appealed a county land use compatibility statement (LUCS) for the Oregon Water Resources Department (OWRD) which concluded a groundwater permit for a destination resort was compatible with the County’s land use provisions. The County filed a motion to dismiss, arguing the decision was excepted from LUBA’s jurisdiction under ORS 197.015(10)(b)(H). In response to the motion, Petitioner argued LUBA had jurisdiction because the County failed to list the status of each permit decision on the OWRD form and to specify that the groundwater permit indicates the Final Master Plan for the proposed site or its conditions may need to be altered in the future to accommodate different water sources than originally specified.

Under ORS 197.015(10)(b)(H), a “land use decision” subject to LUBA’s review does not include local government decisions concluding a state agency action is compatible with the comprehensive plan and land use regulations if (i) the decision to allow the action has already been made, (ii) the action is permitted without review, or (iii) the action is subject to future land use review by the local government.

Primarily, LUBA noted that, though the County summarized the approval status of multiple decisions by the County relating to OWRD’s permit rather than making an itemized list showing the exact status of each decision, that did not by default mean the County incorrectly described the status of those decisions. LUBA pointed out that whether OWRD had the proper information necessary for its review was not at issue and had no bearing on whether the decision was excepted from LUBA’s review. Further, LUBA noted that the County’s failure to identify that there may be a change later to the Final Master Plan or its conditions also did not mean the County incorrectly identified the land use decisions at issue, nor did it establish that the decision was not under one of the exceptions to LUBA’s review under ORS 197.015(10)(b)(H). LUBA concluded it lacked jurisdiction to hear Petitioner’s appeal.

Transferred.