Windlinx Ranch Trust v. Deschutes County (A179127) ( 2022 )

319
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted September 15, affirmed December 14, 2022
WINDLINX RANCH TRUST,
Petitioner,
v.
DESCHUTES COUNTY,
Hodge Kerr, and Debora Kerr,
Respondents.
Land Use Board of Appeals
2022022; A179127
Christopher P. Koback and Hathaway Larson LLP filed
the brief for petitioner.
Tia M. Lewis, Sara Kobak, D. Adam Smith and Schwabe
Williamson & Wyatt PC filed the brief for respondents.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
320 Windlinx Ranch Trust v. Deschutes County (A179127)
HELLMAN, J.
Petitioner Windlinx Ranch Trust seeks judicial
review of a final opinion and order of the Land Use Board of
Appeals (LUBA) that upheld in part and remanded in part
a Deschutes County hearings officer’s decision to approve a
forest template dwelling sought by intervenors Hodge and
Debora Kerr.1 On appeal, petitioner raises four assignments
of error. Petitioner first assigns error to LUBA’s decision to
affirm the hearings officer’s finding that intervenor’s land
could produce less than 50 cubic feet of fiber annually, argu-
ing that LUBA failed to properly apply the substantial evi-
dence standard. Relatedly, and contingently, petitioner’s
second assignment of error challenges LUBA’s decision to
uphold the hearings officer’s finding that, because of the
amount of annual cubic feet of fiber, intervenors only needed
to show that seven lots or parcels were located in the tem-
plate. Petitioner’s third and fourth assignments of error
claim that LUBA incorrectly used the “substantial evidence”
standard to review questions of law. Specifically, petitioner
claims that the hearings officer made erroneous legal deter-
minations when he interpreted a 1910 document as a deed,
not an easement, and found that a 1994 easement granted
access to the intervenor’s property. Petitioner further claims
that LUBA should have reviewed for errors of law and asks
us to do so on appeal. For the reasons below, we reject peti-
tioner’s arguments and affirm.
Our standards of review of LUBA orders are well-
established. As we recently set forth:
“We review LUBA’s order to determine whether it has
properly applied the legal standards for its review of the
county’s order, i.e., to determine whether LUBA’s order is
unlawful in substance or procedure or whether it has properly
applied the substantial evidence standard in its review of the
county’s order. ORS 197.850(9). ‘A LUBA order is unlawful in
substance if it represents a mistaken interpretation of the appli-
cable law.’ Kine v. Deschutes County, 313 Or App 370, 370-71,
496 P3d 1136 (2021) (internal quotation marks omitted).
1
In a related appeal, Windlinx Ranch Trust v. Deschutes County (A179142),
323 Or App 290, 291 (2022) (nonprecedential memorandum opinion), also decided
this date, Hodge Kerr, Debora Kerr, and Deschutes County sought judicial review
of the same final opinion and order of LUBA that is on review in this case.
Nonprecedential Memo Op: 323 Or App 319 (2022) 321
“To the extent that petitioner challenges LUBA’s deter-
minations as to whether substantial evidence supports
the county’s decision under ORS 197.850(9)(c), the court
reviews to assess whether LUBA correctly understood
its role in conducting its review for substantial evidence.
Columbia Riverkeeper v. Columbia County, 297 Or App 628,
640, 443 P3d 1184, rev den, 365 Or 721 (2019) (citing Root v.
Klamath County, 260 Or App 665, 670, 320 P3d 631 (2014)).”
Gould v. Deschutes County, 322 Or App 11, 22-23, 518 P3d
978 (2022).
On the first assignment of error, we determine that
LUBA correctly understood its role in reviewing for substan-
tial evidence. LUBA cited the correct legal standards for its
review and found that a reasonable person could have relied
on the evidence that the hearings officer did. Because we
affirm on assignment of error one, we do not address assign-
ment of error two, which was contingent upon success with
assignment of error one.
As for assignments of error three and four, the
hearings officer was not asked to make a conclusive legal
determination about property rights involved in the 1910
document and the 1994 easement. An application for a forest
template dwelling and its related hearing is not the forum
for those kinds of determinations. See, e.g., McNichols v. City
of Canby, 79 Or LUBA 139, 146 (2019) (“[F]inal and author-
itative determinations regarding the intent and scope of
deeds, easements and similar real estate documents can be
obtained only in circuit court, based on application of real
estate law.”). Instead, the hearings officer was tasked with
making factual determinations; specifically, whether there
were sufficient lots or parcels within the template to allow
construction of the forest dwelling, and whether there was
access to the land in question. The hearings officer relied
on the evidence in the record of the 1910 document and
the 1994 easement to make those factual determinations.
Because the issues were ones of fact, LUBA correctly used
the substantial evidence standard to review the hearings
officer’s decisions.
Affirmed.