Gould v. Deschutes County

• Decision Date: 24 February 2010
• Docket Number: A143430.,2008203
• Citation: 233 Or. App. 623,227 P.3d 758
• Parties: Annunziata GOULD, Petitioner Cross-Respondent, v. DESCHUTES COUNTY, Respondent, and Thornburgh Resort Company, LLC, Respondent Cross-Petitioner.
• Court: Oregon Court of Appeals

227 P.3d 758

233 Or. App. 623

Annunziata GOULD, Petitioner Cross-Respondent, v. DESCHUTES COUNTY, Respondent, and Thornburgh Resort Company, LLC, Respondent Cross-Petitioner.

2008203, A143430.

Court of Appeals of Oregon.

Argued and Submitted on December 01, 2009.

Decided February 24, 2010.

Paul D. Dewey argued the cause and filed the briefs for petitioner-cross-respondent.

Peter Livingston argued the cause for respondent-cross-petitioner. With him on the brief was Schwabe, Williamson & Wyatt, PC.

No appearance for respondent Deschutes County.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

ORTEGA, J.

This petition and cross-petition for judicial review arise from a Land Use Board of Appeals (LUBA) decision that remanded Deschutes County's approval of the final master plan (FMP) for development of a destination resort by Thornburgh Resort Company, LLC (Thornburgh). The issues on review concern Thornburgh's fish and wildlife mitigation plans. Petitioner Gould argues that LUBA remanded too little to the county. On a cross-petition, Thornburgh contends that LUBA remanded too much. We affirm on the petition and the cross-petition.

This is but the latest appeal of several regarding Thornburgh's development of a destination resort. For context, we begin with a brief procedural history.

After the county approved Thornburgh's conceptual master plan (CMP), Gould appealed to LUBA, which remanded for additional findings. Gould v. Deschutes County, 54 Or. LUBA 205 (2007) (Gould I). Gould sought a more extensive remand from this court, and we concluded that LUBA had erred in its review of the county's determinations regarding wildlife mitigation. Gould v. Deschutes County, 216 Or.App. 150, 171 P.3d 1017 (2007) (Gould II).

On remand, the county approved Thornburgh's CMP with further findings and new conditions of approval; it postponed determination of the consistency of the CMP with its wildlife mitigation standards until a later public hearing. Gould again appealed to LUBA, and LUBA affirmed. Gould v. Deschutes County, 57 Or. LUBA 403 (2008) (Gould III). Gould sought judicial review, and we affirmed. Gould v. Deschutes County, 227 Or.App. 601, 206 P.3d 1106, rev. den., 347 Or. 258, 218 P.3d 540 (2009) (Gould IV).

Meanwhile, Thornburgh developed its fish and wildlife mitigation plan and pursued approval of its FMP. We take the description of Thornburgh's mitigation plan from the LUBA order and from the record.

Thornburgh's wildlife management plan contains two components. The first addresses terrestrial wildlife and is described in the "Thornburgh Resort LLC Wildlife Mitigation Plan for Thornburgh Resort" ("Terrestrial WMP") and the "Off-Site Habitat Mitigation and Monitoring Plan for the Thornburgh Destination Resort Project," dated August 2008 ("M & M Plan"). The second component addresses off-site fish habitat and is described in the "Thornburgh Resort Fish and Wildlife Mitigation Plan Addendum Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat" ("Fish WMP") and an August 11, 2008, letter proposing additional mitigation for Whychus Creek.¹ LUBA explained:

"It is undisputed that development of the proposed destination resort will destroy or damage some existing terrestrial wildlife habitat, making that existing terrestrial habitat unavailable for wildlife or less suitable for wildlife. Thornburgh proposes to mitigate for that loss in two ways, on-site mitigation and off-site mitigation. The on-site mitigation will reduce the amount of habitat loss that would otherwise result from construction of the destination resort; the off-site mitigation is to compensate for the habitat loss that cannot be avoided when the destination resort is constructed. * * *

The Terrestrial WMP explains how Thornburgh went about assessing how much mitigation will be required:

"`ODFW the Oregon Department of Fish and Wildlife suggested a habitat modeling approach that uses a modification of the U.S. Fish and Wildlife Service's (1981) Habitat Evaluation Procedures (HEP) analysis. This describes existing habitat values and estimates impacts. HEP is an accounting method, in which the value of each habitat type for each of a series of evaluation species is expressed in terms of habitat units (HUs). These are calculated as the number of acres of that habitat multiplied by an index of its quality, and expressed as a number between 0 and 1, which is termed the Habitat Suitability Index (HSI). One HU is the equivalent of one acre of the best habitat available for a species. Two acres of habitat half as good would also equal one HU, and so on. In the HEP analysis, to make the process manageable, an "evaluation species" is chosen to represent a number of species with similar lifestyles and habitat requirements (USFWS 1980, 1981).'"

According to the Terrestrial WMP, Thornburgh's off-site mitigation would be 8,474 HUs. The Terrestrial WMP provides:

"Thornburgh shall restore and enhance approximately 4,501 acres of juniper woodlands on public lands administered by the BLM Bureau of Land Management in the Cline Buttes Sub-Area to mitigate the loss of 8,474 HUs. The specific areas subject to specific rehabilitation or enhancement actions will be determined through consultation by BLM, Thornburgh, and ODFW resource management specialists, based upon the current conditions of the mitigation site and the agreed amount and type of enhancement. Thornburgh shall maintain rehabilitated areas through ongoing efforts as needed, such as reduction of weeds, thinning of junipers, and reclosing unwanted travel routes. BLM will manage public land on which this mitigation will be implemented, to comply with BLM's rangeland health standards to maintain desirable habitat for wildlife."

The M & M Plan, which was developed in coordination with the BLM, further explains how off-site mitigation will be implemented. Because the BLM had not finalized the Cline Buttes Recreation Area Plan (CBRAP), the exact location of the mitigation efforts could not be identified. The mitigation methods used in the M & M Plan, however, were structured to be applicable to any parcel of land in the Cline Buttes Recreation Area that the BLM, after finalizing the CBRAP, determined to be suitable for mitigation. The mitigation methods include weed management, vegetation enhancement, reduction of unauthorized off-road motor vehicle use, creation of wildlife water sources, and traffic speed monitoring devices. Thornburgh plans to use an adaptive approach to vegetation management, in which the management efforts are monitored and may be changed to better meet desired goals.

Thornburgh also proposed, as what it calls "an ultimate backstop, in order to eliminate the remote possibility that the BLM land would somehow become unavailable," to fund mitigation elsewhere in Deschutes County. As the hearings officer noted, that contingent proposal involved a dedicated fund for use by ODFW.

After a public hearing, a county hearings officer approved the FMP with conditions. In proceedings before the county, as on appeal, significant portions of the argument focused on Deschutes County Code (DCC) 18.113.070(D), sometimes referred to as the "no net loss" standard, which provides:

"In order to approve a destination resort, the Planning Director or Hearings Body shall find from substantial evidence in the record that:

"* * * * *

"D. Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource."

The hearings officer concluded that, although the standard is difficult to quantify, it "requires an analysis of species on the site, the likely impacts of development, and the applicant's plan to address those impacts. It does not require that each species be maintained or replaced with an equivalent species on a 1:1 or better ratio." The hearings officer went on to agree with Thornburgh's argument that "the modified HEP analysis adequately quantifies the impacts and provides a workable methodology to compensate for the impact" and decided that Thornburgh had demonstrated that the mitigation plan was reasonably likely to succeed. The hearings officer concluded that Thornburgh's mitigation plan "is adequate to ensure that the impact of the development on fish and wildlife habitats results in no net loss."

After the board of county commissioners declined to hear Gould's appeal, Gould appealed to LUBA. LUBA rejected her challenges to the hearings officer's construction of DCC 18.113.070(D); sustained her challenge to the adequacy of the Terrestrial WMP and M & M Plan under Gould II; sustained her challenge to the sufficiency of the hearings officer's findings regarding the efficacy of mitigation of thermal impacts on Whychus Creek; rejected her challenges to the sufficiency of the findings regarding fish mitigation; and rejected her challenge to the sufficiency of the evidence concerning "cool patches" in the Deschutes River basin.

Gould petitioned for judicial review. She asserts three assignments of error, contending that LUBA's order is unlawful in substance because (1) LUBA misinterpreted DCC 18.113.070(D); (2) LUBA erroneously determined that the conditions of approval are sufficient to identify and require fish mitigation; and (3) LUBA erred in determining that the hearings officer's findings regarding mitigation of fish resources were adequate. Thornburgh cross-petitioned, arguing that LUBA erred by concluding that Thornburgh's mitigation plan was not specific enough to satisfy the standard described by this court in Gould II.

We review to determine whether LUBA's order was "unlawful in substance or procedure." ORS 197.850(9)(a). In interpreting the county code, we give no deference to the interpretation made by the hearings officer or by LUBA. Gage v. City of Portland, 319 Or. 308, 315-17, 877 P.2d 1187 (1994) (Gage I); Gage v. City of Portland, 133 Or.App. 346,...