Gould v. Deschutes County

Under ORS 197.829(1), where a local government’s interpretation of a statute is plausible, LUBA must give deference to that interpretation.

Petitioner appealed the County’s approval of a personal use airport in an exclusive farm use (EFU) zone to LUBA. LUBA sustained portions of Petitioner’s first and second assignments of error, denied Petitioner’s third assignment of error, and remanded. The Oregon Court of Appeals (the Court) reversed LUBA’s decision.

DCC 18.16.040(A)(3) provides that there must be a finding “[t]hat the actual site on which the use is to be located is the least suitable for the production of farm crops or livestock.” LUBA originally sustained the portions of Petitioner’s first and second assignments of error that the hearings officer misconstrued DCC 18.16.040(A)(3). The Court determined that the County’s interpretation of DCC 18.16.040(A)(3) was plausible and therefore must be affirmed under a deferential standard of review. ORS 197.829(1). Accordingly, LUBA denied those portions of Petitioner’s first and second assignments of error.

DCC 18.128.015(B) provides that there must be a finding that “[t]he proposed use shall be compatible with existing and projected uses on surrounding properties.” LUBA originally sustained the portion of Petitioner’s second assignment of error that the County’s findings regarding the noise of one of the intended airplanes were inadequate under DCC 18.128.015(B). The Court determined that the findings were adequate. Accordingly, LUBA denied that portion of Petitioner’s second assignment of error.

ORS 215.283(2)(h) provides that “[p]ersonal-use airports for airplanes and helicopter pads, including associated hanger, maintenance and service facilities” are allowed in the EFU zone but “[n]o aircraft may be based on a personal-use airport other than those owned or controlled by the owner of the airstrip”. Intervenor is a limited liability company and holds title to the property of the proposed site. Two airplanes are set to be based at the proposed site but are owned by two other limited liability companies. All three companies have the same revocable trust as the sole member, and that trust has one trustee. In their third assignment of error, Petitioner argued that the hearings officer inadequately found that ORS 215.283(2)(h) was met because the company that owned the proposed site was not the owner of the proposed airplanes. LUBA originally held that ORS 215.283(2)(h) was met because the proposed site and airplanes were ultimately owned by the same owner, the trust. The Court determined that the companies were three separate entities under ORS 26 63.077(2)(b). The Court further determined that the trust did not hold any ownership interest in the companies’ real or personal property under ORS 63.239. Because the companies were separate entities and the trust did not hold any ownership interest in the companies, the Court determined that the trust did not own either the proposed site or airplanes but instead Intervenor owned the proposed site. The Court remanded the issue of whether Intervenor owned the proposed airplanes to LUBA because the issue was not previously substantially argued. LUBA remanded the issue to the County because other portions of its original remand were left untouched by the Court and the issue was not previously argued. Accordingly, LUBA sustained Petitioner’s third assignment of error.

Remanded.