Cent. Oregon Landwatch v. Deschutes Cnty., A165313

• Citation: 288 Or.App. 378,405 P.3d 197
• Decision Date: 18 October 2017
• Docket Number: A165313
• Parties: CENTRAL OREGON LANDWATCH, Respondent Cross-Respondent, v. DESCHUTES COUNTY, Petitioner Cross-Respondent, and Anthony Aceti, Respondent Cross-Petitioner.
• Court: Court of Appeals of Oregon

288 Or.App. 378

405 P.3d 197

CENTRAL OREGON LANDWATCH, Respondent Cross-Respondent,

v. DESCHUTES COUNTY, Petitioner Cross-Respondent,andAnthony Aceti, Respondent Cross-Petitioner.

A165313

Court of Appeals of Oregon.

Argued and submitted August 30, 2017.

October 18, 2017

Daniel A. Terrell argued the cause for petitioner-cross-respondent and respondent-cross-petitioner. With him on the joint brief were Law Office of Bill Kloos, PC, and David Adam Smith.

Carol Macbeth argued the cause and filed the brief for respondent-cross-respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

PER CURIAM

Petitioner Deschutes County and cross-petitioner Aceti (petitioners) seek judicial review of an order of the Land Use Board of Appeals (LUBA), reversing a decision of the county's board of commissioners. LUBA reversed the county's decision approving a Rural Industrial comprehensive plan designation and related zoning for the subject property on the basis that the county's interpretation of the Deschutes County Comprehensive Plan (DCCP) as permitting those changes conflicts with the DCCP's express language. Petitioners jointly contend that LUBA's decision was unlawful in substance because it failed to defer to the county's plausible interpretation of the DCCP.

We review LUBA's decision to determine whether it is "unlawful in substance." ORS 197.850(9)(a). LUBA must accept the county's interpretation of the county's land use regulations unless LUBA determines, among other things, that the county's interpretation is "inconsistent with the express language of the comprehensive plan or land use regulation." ORS 197.829(1)(a).

"A LUBA decision is ‘unlawful in substance’ *** if, in contravention of the standard of review set out at ORS 197.829(1), LUBA substitutes its own interpretation of a local government's land use regulations for a plausible interpretation of those regulations offered by the local government. In the face of a claim that LUBA violated that standard, [we] must determine whether the local government's interpretation in fact is‘plausible.’ "

Siporen v. City of Medford , 349 Or. 247, 261, 243 P.3d 776 (2010) (emphasis in original).

Here, we conclude that the county's interpretation of the DCCP is not plausible because it conflicts with the DCCP's express language. Section 3.4 of the DCCP explains:

"In Deschutes County there are a handful of properties zoned Rural Commercial and Rural Industrial. These designations recognize uses that predated State land use laws. New commercial or industrial sites are controlled by State regulation and additional development is anticipated to be minimal and only for specific sites, such as around the Bend Airport."

Section 3.4 then describes...