Gould v. Deschutes County

Where a local government's decision is excluded from the definition of a "land use decision" under ORS 197.015(10)(b)(H)(i-iii), LUBA will hold that they lack jurisdiction.

Petitioner appealed a land use compatibility statement (LUCS) issued by the County which concluded that a proposed limited license from the Oregon Water Resources Department (OWRD) to use groundwater to serve a partially approved destination resort (the Resort) was compatible with the County's land use regulations.

In the 2000s, the County approved the Resort conceptual master plan (CMP), and phased development (Phase A-1) under the final master plan (FMP). In 2020, the County approved a golf course site plan review with conditions. Appeals of the CMP, FMP, Phase A-1, and golf course site plan were exhausted. In 2022, Intervenor applied to OWRD for a limited water use license (2022 Limited License) for quasi-municipal use on the Resort property. Pursuant to OWRD's administrative rules, Intervenor also filed an application with the County for a LUCS in order to determine whether the 2022 Limited License was consistent with the County's comprehensive plan and land use regulations. 

In issuing the LUCS, the County concluded that water use from the 2022 Limited License would be approved (1) for irrigation as a “farm use” on EFU land, outright without review; (2) for destination resort uses authorized by past land use decisions (the CMP, FMP, Phase A-1, and golf course site plan review); and (3) for destination resort uses allowed subject to discretionary review, for which future land use decisions will be required. For the final category, the County checked a box on their LUCS labeled "being pursued", which indicated to OWRD that some of the authorizing decisions were on appeal and not yet final. 

ORS 197.015(10)(b)(H)(i-iii) excludes from the definition of "land use decisions" decisions made by local governments where: "(i) the local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action; (ii) [t]he use or activity that would be authorized, funded or undertaken by the proposed state agency action is allowed without review under the acknowledged comprehensive plan and land use regulations implementing the plan; or (iii) [t]he use or activity that would be authorized, funded or undertaken by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan[.]" 

In response to the appeal, Intervenor argued the County accurately identified and assigned all water uses served by the 2022 Limited License to one or more of the three categorical exclusions from “land use decisions” in subparagraph (H), and thus, LUBA lacked jurisdiction to hear the appeal. Petitioner argued the exclusions in subparagraph (H) did not apply to the challenged LUCS. LUBA reasoned that they rejected similar arguments in Gould v. Deschutes County, _ Or LUBA (LUBA No 2021-060, June 16, 2022) (Temporary Transfer); Gould v. Deschutes  County, _ Or LUBA _ (LUBA No 2021-062, Jan 5, 2023) (Groundwater Permit); Gould v. Deschutes County, _ Or LUBA _ (LUBA No 2021-066, Jan 5, 2023) (2021 Limited License); Gould v. Deschutes County, _ Or LUBA _ (LUBA No 2021-109, Jan 5, 2023) (Water Rights Transfer). As a result, LUBA adopted their analysis in those cases and held that the challenged LUCS fell within exclusions to LUBA's jurisdiction pursuant to ORS 197.015(10)(b)(H). 

Dismissed.