Gould v. Deschutes Cnty.
| Decision Date | 11 June 2021 |
| Docket Number | LUBA No. 2020-095 |
| Parties | ANNUNZIATA GOULD, Petitioner, and PAUL J. LIPSCOMB, Intervenor-Petitioner, v. DESCHUTES COUNTY, Respondent, and KAMERON K. DELASHMUTT, Intervenor-Respondent. |
| Court | Oregon Land Use Board of Appeals |
FINAL OPINION AND ORDER
Appeal from Deschutes County.
Jeffrey L. Kleinman filed a petition for review and reply brief and argued on behalf of petitioner.
Paul J. Lipscomb filed a petition for review.
No appearance by Deschutes County.
J. Kenneth Katzaroff filed the response brief and argued on behalf of intervenor-respondent. Also on the brief was Schwabe, Williamson & Wyatt, P.C. ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, Board Member, participated in the decision.
You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Zamudio.
Petitioner and intervenor-petitioner challenge a board of county commissioners decision approving with conditions a site plan for a golf course, irrigation lakes, and a road system (collectively, golf course site plan) as part of a destination resort.
A destination resort is a "self-contained development providing visitor-oriented accommodations and developed recreational facilities in a setting with high natural amenities." Statewide Planning Goal 8 (Recreational Needs); ORS 197.445. Local governments may plan for the siting of destination resorts on rural lands, subject to the provisions of state law. Goal 8; ORS 197.435 - 197.467.
The land use dispute around the proposed Thornburgh Resort has been before LUBA many times. We discuss that history only to the extent that it is relevant to this appeal. In 2006, the county approved the Thornburgh Resort conceptual master plan (CMP) and, in 2008, it approved a final master plan (FMP). The FMP provides for phased development and includes a fish and wildlife habitat mitigation plan (FWMP) to offset the impacts of the resort development. The FMP divides the development into seven phases. The first phase, Phase A, includes development of transportation infrastructure, a golf course, a restaurant, meeting facilities, open space, 300 residential units, and 150 overnight lodging units (OLUs), and implementation of the FWMP.
In May 2018, intervenor sought approval for the first phase of development.1 Intervenor requested approval of a tentative plan for a portion of the approved Phase A, calling the partial sub-phase "Phase A-1," which includes a tentative subdivision plat for 192 single-family residential dwelling lots, 24 single-family deed-restricted OLU lots, and 13 OLU lots, together with roads, utility facilities, lots, and tracts for future resort facilities and open space. We refer to the approvals, collectively, as the Phase A-1 TP. A county hearings officer approved the Phase A-1 TP with conditions.
On June 21, 2019, we remanded the Phase A-1 TP. Gould v. Deschutes County, 79 Or LUBA 561 (2019) (Gould VIII), aff'd, 310 Or App 868, 484 P3d 1073 (2021). Our remand was narrow. Deschutes County Code (DCC) 18.113.070(D) requires that "[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource." We have referred to that standard as the "no net loss" standard. The resort's impact on fish and wildlife, and the efficacy of the FWMP to satisfy theno net loss standard, has been the subject of multiple prior appeals. In Gould VIII, we concluded that a condition of approval that the hearings officer imposed in approving the Phase A-1 TP violated the right to public participation on whether the no net loss standard will be satisfied by mitigation water from sources not specified in the FWMP. Petitioner appealed our decision to the Court of Appeals. That appeal ultimately went up to the Supreme Court and returned to the Court of Appeals, which affirmed our decision. 310 Or App 868, 484 P3d 1073.
While the Phase A-1 TP decision was climbing the appellate ladder, intervenor applied for the golf course site plan review. The county planning division administratively approved the application. Petitioner appealed that approval to the board of county commissioners, which approved the golf course site plan review with conditions. This appeal followed.
ORS 197.455 provides, in part:
The county found that the subject property was determined eligible for resort siting as part of the CMP approval and that ORS 197.455 is not a relevant site plan review criterion. Record 45.
Intervenor-petitioner (Lipscomb) argues that, while the subject property is mapped as eligible for destination resort siting by the county, the property is nonetheless ineligible for destination resort siting because it is within 24 air miles of the urban growth boundary for the city of Bend, which Lipscomb argues currently has a population of more than 100,000. Lipscomb acknowledges that, when the county's destination resort map was adopted, and when the CMP and FMP were approved, the population of Bend was less than 100,000. However, Lipscomb argues that relevant populations for purposes of ORS 197.455 must be measured and determined at the time of site plan review.
Lipscomb argues that interpretation is supported by the use of the terms "sited" in ORS 197.455(1) and "existing population" in ORS 197.455(1)(a). Lipscomb argues that, while the CMP and FMP have been approved, the resort is not "sited" for purposes of ORS 197.455 until site plan review. Hence,according to Lipscomb, ORS 197.455 is an applicable approval criterion for site plan review of any phase of a resort.
Intervenor responds, and we agree, that Lipscomb's argument misinterprets the plain language of ORS 197.455. ORS 197.455 requires counties to inventory and map lands eligible for destination resort siting. The county mapped and identified the subject property as eligible for destination resort siting. Pursuant to ORS 197.455(2), the county's map is the sole basis for determining whether the subject property is eligible for destination resort siting.
The limitations on resort siting in ORS 197.455(1) apply at the time that a county adopts maps identifying lands eligible for siting destination resorts. After a county has adopted such maps, the limitations in ORS 197.455(1) do not apply to specific applications for destination resorts. Instead, the adopted maps control whether a specific property is eligible for destination resort siting. Central Oregon Landwatch v. Deschutes County, 66 Or LUBA 192, 201 (2012); Eder v. Crook County, 60 Or LUBA 204, 211 (2009).
Lipscomb also argues that the county failed to make adequate findings supported by substantial evidence that the challenged decision complies with ORS 197.455. Those arguments rely on Lipscomb's interpretation of ORS 197.455, which we reject above. Accordingly, we do not separately analyze those arguments.
Intervenor-petitioner's assignment of error is denied.
Petitioner argues that the county misconstrued the applicable law in approving the golf course site plan while the county's Phase A-1 TP approval was pending review at LUBA and in the appellate courts. Petitioner argued to the county that the location and layout of the golf course, lakes, and related open space depend upon the configuration of the residential lots in the Phase A-1 TP, which was on appeal and, thus, not final at the time that the county reviewed the golf course site plan. Record 1253.
The county rejected that argument, explaining that the golf course site plan and the Phase A-1 TP are separate applications for different development activities authorized to occur in Phase A. Moreover, the Phase A-1 TP and the golf course site plan are independent. The Phase A-1 TP authorizes the division of lots. The applicable approval criteria for the golf course and irrigation lakes do not require that the property be divided.2 Each application was reviewed bythe county for compliance with relevant approval criteria. See DCC 18.113.040(C) ().
On appeal, petitioner argues that, if the configuration of the residential lots, or other related development such as roadways, in the Phase A-1 TP is changed, then the location of the golf course and lakes will likely have to be reconfigured.
Intervenor responds that, while the road system in the golf course site plan is the same as the road system approved in the Phase A-1 TP, the golf course site plan does not depend on approval of the Phase A-1 TP. Intervenor observes that, even if the Phase A-1 TP approval is modified or denied on remand, the subdivision of residential lots contemplated in the...
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