Central Oregon Landwatch v. Deschutes County

(1) Where nothing in the local code provides otherwise, LUBA will hold that determination of initiation of a conditional use, as opposed to initiation itself, need not occur before the relevant permit expires. ORS 174.010. (2) Where a petitioner raises the issue of abandonment of use in proceedings below, LUBA will hold that a local government's findings are inadequate if they do not sufficiently address it. Norvell v. Portland Area LGBC, 604 P.2d 896 (1979). (3) Where local code provisions separately provide that (a) the owner of a property and (b) the holder of the land use permit may initiate a declaratory ruling, LUBA will give effect to both provisions and hold that either party may file an application to do so. ORS 174.010.

Applicant/Intervenor filed, and the county hearings officer approved, an application of declaratory ruling for an initiation of use for a conditional use permit (CUP) for a guest ranch on property zoned for Exclusive Farm Use (EFU). The CUP was previously approved in 2002 and extended until 2007, and construction was only partially completed by the time of the application. Petitioner appealed to the board of county commissioners which denied review because the hearing officer’s decision was final for the County under Deschutes County Code (DCC) 22.35.035(A). Petitioner then appealed to LUBA.

OAR 660-033-0140(1) provides that “a discretionary decision . . . made after the effective date of the decision approving a proposed development on agricultural of forest land outside an urban growth boundary . . . is void two years from the date of the final decision if the development is not initiated in that period.” DCC 22.36.010(B)(1) provides, "a land use permit is void two years after the date the discretionary decision becomes final if the use approved for the permit is not initiated within that time period.” In their first assignment of error, Petitioner argued the application was untimely because the CUP became void by operation of law when a determination of initiation of use was not made before the last extension expired in 2007, and therefore the County’s approval of the application was barred. In interpreting an administrative rule or ordinance, LUBA will not insert what has been omitted. ORS 174.010. LUBA reasoned that nothing in the language of OAR 660-033-0140 nor DCC 22.36.010 indicated a request for a determination of initiation must occur before the permit expires. Further, LUBA reasoned that other DCC provisions supported the conclusion that the intended constraint was on the time of initiation, not determination. Accordingly, LUBA held that the application was not untimely and denied first assignment of error.

ORS 215.130(7)(A) provides that “[t]he lawful use of any building, structure or land . . . may not be resumed after a period of interruption or abandonment unless the resumed use conforms with the requirements of zoning ordinances or regulations applicable at the time of the proposed resumption.” In their third assignment of error, Petitioner argued the County misconstrued the applicable law and made inadequate findings as to the conformity of the use and inapplicability of ORS 215.130 because construction under the CUP ceased in 2009 and regulations for the use changed in 2010, 2018, and 2021, making the use nonconforming. Findings must address and respond to specific issues relevant to compliance with applicable approval standards that were raised in the proceedings below. Norvell v. Portland Area LGBC, 604 P.2d 896 (1979). LUBA held that the County’s findings were inadequate because the findings did not sufficiently address Petitioner’s argument that the use was nonconforming because of abandonment in 2009. LUBA further held that the County misconstrued ORS 215.130 because the County did not determine whether the use had been abandoned. Accordingly, LUBA sustained the third assignment of error.

DCC 22.40.020(A) provides that either (1) “[t]he owner of a property requesting a declaratory ruling relating to the use of the owner's property,” or (2) “[i]n cases where the request is to interpret a previously issued quasi-judicial . . . land use permit, the holder of the permit” may “initiate a declaratory ruling under DCC 22.40.” In their fourth assignment of error, Petitioner argued that the County erred in deciding Intervenor had standing to file the application because the two standing provisions at DCC 22.40.020(A)(1) and (2) were inconsistent and that the specific, (A)(2), controlled. Petitioner further argued Intervenor was not the CUP holder since the CUP was not valid at the time of the application and only the CUP holder may request a declaratory ruling for interpretation under DCC 22.40.020(A)(2). “[W]here there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all." ORS 174.010. LUBA reasoned that, giving effect to all the provisions, both the owner of the property and the holder of the permit could request a declaratory ruling. Accordingly, LUBA held that the County did not err in deciding Intervenor had standing to file the application as an agent of the property owner. LUBA denied the fourth assignment of error.

Remanded.