Gould v. Deschutes Cnty.

• Decision Date: 12 October 2022
• Docket Number: A178915
• Citation: 322 Or.App. 340,520 P.3d 433
• Parties: Annunziata GOULD, Respondent Cross-Petitioner, v. DESCHUTES COUNTY, Petitioner Cross-Respondent, and 20925 Harper Road, LLC, Respondent Cross-Respondent. Annunziata Gould, Respondent, v. Deschutes County, Respondent below, and 20925 Harper Road, LLC, Petitioner.
• Court: Oregon Court of Appeals

322 Or.App. 340

520 P.3d 433

Annunziata GOULD, Respondent Cross-Petitioner,

v.DESCHUTES COUNTY, Petitioner Cross-Respondent,and20925 Harper Road, LLC, Respondent Cross-Respondent.

Annunziata Gould, Respondent,

v.Deschutes County, Respondent below,and20925 Harper Road, LLC, Petitioner.

A178915

Court of Appeals of Oregon.

Argued and Submitted August 30, 2022.

October 12, 2022

David Doyle, Salem, argued the cause and filed the briefs for petitioner-cross-respondent Deschutes County.

J. Kenneth Katzaroff argued the cause and filed the briefs for petitioner-respondent-cross-respondent 20925 Harper Road, LLC. Also on the briefs were D. Adam Smith and Schwabe, Williamson & Wyatt, P.C.

Jennifer M. Bragar argued the cause for respondent-cross-petitioner. Also on the briefs were Stephen W. Thorpe and Tomasi Bragar Dubay.

Before Tookey, Presiding Judge, and Egan, Judge, and Kistler, Senior Judge.

KISTLER, S. J.

The dispute in this Land Use Board of Appeals (LUBA) case concerns the siting of a personal-use airport on land in Deschutes County zoned for exclusive farm use (EFU). The county, through a decision of a county hearings officer, approved an application submitted by 20925 Harper Rd, LLC (the applicant), for a conditional use permit to site a 2,000-foot-long by 75-foot-wide personal-use airstrip on EFU-zoned property. On intervenor Gould's appeal, LUBA remanded the matter to the county. The county and the applicant have separately petitioned for judicial review, and Gould has filed a cross-petition. Because we conclude that LUBA's order is unlawful in substance, we reverse and remand on both the petition and the cross-petition. See ORS 197.850(9)(a) (setting out standard of review).¹

The subject property is a 122-acre, largely non-irrigated parcel that the applicant currently uses for alpaca grazing. The property consists of soil types VI, VII, and VIII. The applicant sought a permit for a personal-use airport, which is allowed as a conditional use on EFU land. ORS 215.283(2)(h) ; Deschutes County Code (DCC) 18.16.030(L).² The proposed location of the airport would be on land with type VI soil. The county's planning department approved the application, and Gould requested a hearing, challenging numerous aspects of the approval.

Before discussing the hearings officer's decision, we first provide some context for one of the issues that the hearings officer decided. DCC 18.16.040(A)(3) requires that any conditional use allowed in EFU zones be sited on land that is "the least suitable for the production of farm crops and livestock."³ The DCC also requires that all nonfarm dwellings be located on a parcel or part of a parcel that is "generally unsuitable" for farm use. DCC 18.16.050(G)(1)(iii). "Suitability" under the DCC is determined based on multiple criteria, including terrain, adverse soil or land conditions, drainage and flooding, vegetation, location, and the size of the tract. Id.⁴

In 2015, the Deschutes County Board of Commissioners issued a decision (the Clough decision) that considered the relationship between the "generally unsuitable" and the "least suitable" standards. The board explained in Clough that the "least suitable" for farm use standard "applies to all conditional uses allowed in the exclusive farm use zones" but that its application varies depending on whether the proposed use will be sited on land that is suitable for farm use or on land that is generally unsuitable for farm use.

When a proposed conditional use is sited on land that is suitable for farm use—namely, land that "merits Goal 3 protections because [it] contain[s] soils that are predominantly Class I through Class VI soils or [is] otherwise suitable for farm use"—the "least suitable" standard requires that the conditional use be located on the portion of the property that is "least suitable for the production of farm crops and livestock." In that situation, the "least suitable" standard serves to minimize the loss of EFU land that could otherwise be put to farm use.

When, however, a proposed conditional use is sited on land that is "generally unsuitable" for farm use, that land "is not of sufficient value for farm use to merit distinguishing between areas that are generally unsuitable." That is, if two or more areas are "generally unsuitable" for farm use, trying to decide whether one area is more unsuitable for farm use than another does little to advance the purpose of the "least suitable" rule, which is to minimize the loss of EFU land that is suitable for farm use. It follows, the board of commissioners ruled in Clough , that siting a proposed conditional use on land that is generally unsuitable for farm use will categorically satisfy the county's "least suitable" requirement. There is no need to go further and decide whether the proposed site is the most unsuitable of all the generally unsuitable land.

In this case, the county hearings officer found "that the portion of the Subject Property to be used for the airstrip is generally unsuitable for farm crops or livestock." Following the board's decision in Clough , the hearings officer explained that the proposed site satisfied the county's "least suitable" requirement. Not only had the board explained in Clough that its "decision is intended to provide guidance to County hearings officers and staff regarding the proper application of the least suitable criterion," but the hearings officer concluded that the board's interpretation of its own rule in Clough directly controlled the application of the "least suitable" rule in this case. Because the hearings officer agreed with the county's determination that the conditional use would be sited on land that was "generally unsuitable" and, thus, was "least suitable," he upheld the approval.

The board of county commissioners declined to consider Gould's appeal, and the hearings officer's order became final.⁵ Gould then appealed to LUBA, which reversed the county's determination. Among other things, LUBA disagreed with the hearings officer's determination that the "least suitable" standard in DCC 18.16.040(A)(3) had been met. Relying on Gutoski v. Lane County , 141 Or App 265, 268, 917 P.2d 1048, rev. den. , 324 Or. 18, 920 P.2d 551 (1996), LUBA ruled initially that it need not defer to the hearings officer's interpretation of that standard. Gould v. Deschutes County , ––– Or LUBA ––––, –––– (June 8, 2022) (slip op at 3). LUBA explained that, because the county board of commissioners had not reviewed the hearings officer's order in this case, there was no basis to impute the hearings officer's interpretation to the board of commissioners and, thus, no reason to defer to the hearings officer's interpretation. Id.

Having found that it need not defer to the hearings officer's interpretation of the "least suitable" standard, LUBA quoted its opinion in Central Oregon Landwatch v. Deschutes County , 78 Or LUBA 136, 147, aff'd , 295 Or App 451, 438 P.3d 855 (2018), which, in turn, quoted another hearings officer's interpretation of the "least suitable" standard:

" ‘Use of the word "least" indicates that there is only one site on a subject parcel that can meet the criterion. *** The plain meaning of this criterion requires that the proposed conditional use be located on the single site on the subject property that is least suitable. On the other hand, the term "generally unsuitable" is broader and may encompass large swaths of land if it is all generally unsuitable for farm land.

" ‘Since, by definition, every property will have a site that is the least suitable for farm production, the question is whether other sites on the subject property are less suitable than the proposed site.’ "

Gould , ––– Or LUBA at –––– (slip op at 3) (quoting Central Oregon Landwatch , which in turn was quoting the hearings officer's reasoning in that case).⁶ After quoting that passage from Central Oregon Landwatch , LUBA added that the hearings officer's interpretation of the least suitable standard in this case was incorrect because it "improperly insert[ed] the phrase ‘generally unsuitable’ into the [least suitable] standard." Gould , ––– Or LUBA at –––– (slip op at 3).

After determining that the interpretation of the "least suitable" standard quoted in Central Oregon Landwatch was either the only permissible interpretation or the preferred interpretation of that standard, LUBA concluded that "[w]hether the entire property [in this case] is generally unsuitable for the production of crops or livestock is not the applicable inquiry for determining the least suitable portion of the property for farm use." Id. LUBA accordingly ruled:

"On remand, the hearings officer should consider other sites on the property identified during the proceedings below and determine the location of the least suitable site on the property for the production of crops or livestock, considering other factors such as, but not limited to, soil capability; the location of roads, dwellings, and farm operations; as well as any requirements necessary for the airport to function as intended."

Id. (slip op at 4).

Both the county and the applicant have petitioned for judicial review of LUBA's order and have assigned error to its ruling interpreting the "least suitable" standard.⁷ They contend that: (1) the board's interpretation of the "least suitable" standard in Clough , which the hearings officer applied in this case, is plausible and (2) LUBA erred in failing to defer to that plausible interpretation. See Siporen v. City of Medford , 349 Or. 247, 261, 243 P.3d 776 (2010) (requiring LUBA to defer to a county's plausible interpretation of its own land use rules). Gould responds that, because the hearings officer's (and Clough ’s) interpretation of the "least suitable" rule is inconsistent with the plain text of that rule, it does not warrant any deference even if deference would otherwise be due. Additionally, she argues that, even if the hearings officer's interpretation of the "least suitable" standard were...