Gould v. Deschutes County ( 2022 )

11
Argued and submitted August 16, affirmed September 28, petition for review
denied December 29, 2022 (370 Or 694)
Annunziata GOULD,
Petitioner,
and
Paul J. LIPSCOMB,
Petitioner below,
v.
DESCHUTES COUNTY
and Central Land and Cattle Company, LLC,
Respondents.
Land Use Board of Appeals
2022013; A178949
518 P3d 978
Petitioner challenges LUBA’s order affirming Deschutes County’s approval of
a site plan application for 80 overnight lodging units (OLUs), as part of Phase A-1
of the development of a proposed resort, contending that LUBA erred in affirm-
ing the county’s interpretation of conditions in a final master plan for develop-
ment of the resort and in its own interpretation of those conditions. Held: In
reviewing LUBA’s order for whether it 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), the Court of Appeals affirmed LUBA. Most
of the issues raised by petitioner on judicial review, which concern the county’s
and LUBA’s interpretation of conditions for approval as set forth in a final master
plan for development of the resort, either are not preserved and therefore will not
be considered or have largely been considered and rejected in earlier litigation
through LUBA orders affirmed on judicial review and have thus become the law
of the case and are no longer subject to challenge. The court concluded, further,
that LUBA did not err in its application of the substantial evidence standard or
in its own interpretation of one of the conditions for approval.
Affirmed.
Jennifer M. Bragar and Jeffrey L. Kleinman argued the
cause for petitioner. Also on the brief was Tomasi Bragar
Dubay.
J. Kenneth Katzaroff argued the cause for respondent
Central Land and Cattle Company, LLC. Also on the brief
was Schwabe, Williamson & Wyatt, P.C.
No appearance for respondent Deschutes County.
12 Gould v. Deschutes County
Before Tookey, Presiding Judge, and Lagesen, Chief Judge,
and James, Judge.
TOOKEY, P. J.
Affirmed.
Cite as 322 Or App 11 (2022) 13
TOOKEY, P. J.
This petition for judicial review is the most recent
in a series of challenges to the proposed development of
Thornburgh Destination Resort on 1,970 acres of land in
Deschutes County that are zoned for exclusive farm use
and mapped within a destination resort overlay zone. The
property was formerly used as a ranch and is surrounded
by public lands. We have considered many challenges
raised by petitioner over the years since the development
of the resort has been pursued. In this current proceeding,
petitioner challenges LUBA’s order affirming Deschutes
County’s approval of a site plan application for 80 overnight
lodging units (OLUs), as part of Phase A-1 of the proposed
resort. As we explain here, the issues raised by petitioner
on judicial review, which concern the county’s interpretation
of conditions in a final master plan for development of the
resort, either are not preserved and therefore will not be
considered or have largely been resolved in earlier litigation
through LUBA orders affirmed on judicial review and have
thus become the law of the case and are no longer subject
to challenge. We reject petitioner’s remaining argument for
the reasons explained herein.
Under Statewide Planning Goal 8 (recreational needs),
ORS 197.445, a destination resort is a “self-contained devel-
opment providing visitor-oriented accommodations and
developed recreational facilities in a setting with high natu-
ral amenities.” 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 to 197.467.
Deschutes County provides for the development
of destination resorts by a three-step approval process
described in Deschutes County Code (DCC) 18.113.040.1 In
step one, a Conceptual Master Plan (CMP) for the resort is
1
DCC 18.113.040 provides:
“The authorization of a permit for a destination resort shall consist of
three steps.
“A. Conceptual Master Plan and Conditional Use Permit for Destination
Resort. A conceptual master plan (CMP) shall be submitted which addresses
all requirements established in DCC 18.113.040. The CMP application shall
be processed as if it were a conditional use permit under DCC Title 22,
shall be subject to DCC 18.128.010, 18.128.020 and 18.128.030 and shall be
14 Gould v. Deschutes County
processed for approval as though it were a conditional use
permit. DCC 18.113.040(A). The second step is approval of a
Final Master Plan (FMP). DCC 18.113.040(B). In 2008, the
county approved an FMP for the Thornburgh Destination
Resort, and that approval has been upheld on judicial review.
Gould v. Deschutes County, 59 Or LUBA 435 (2009), affd,
233 Or App 623, 227 P3d 758 (2010) (affirming the FMP).
The final step of the three-step review process is
a land division or site-plan review. DCC 18.113.040(C). In
addition to finding that it satisfies the site-plan-review
criteria in DCC 18.124 or the subdivision criteria in DCC
Title 17, the county must find at the third stage of review
that the specific development proposal complies with the
standards and criteria of DCC 18.113 and the FMP. DCC
18.113.040(C). The challenges on this judicial review relate
to the county’s approval of that final step, and the dispute
concerns Thornburgh’s compliance with two FMP conditions
relating to water rights and “mitigation” of harm to fish, as
described below.
DCC 18.113.070(D) requires, for the development
of a destination resort, 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.”
LUBA has referred to that standard as the “no net loss”
standard. Thornburgh has obtained Water Right Permit
G-17036, which allows it to drill six wells in the Deschutes
reviewed for compliance with the standards and criteria set forth in DCC
18.113.
“B. Final Master Plan. The applicant shall prepare a final master plan
(FMP) which incorporates all requirements of the County approval for the
CMP. The Planning Director shall review the FMP to determine if it complies
with the approved CMP and all conditions of approval of the conditional use
permit. The Planning Director shall have the authority to approve, deny or
return the FMP to the applicant for additional information. When interpre-
tations of the Planning Director involve issues which are discretionary, the
FMP approval shall be treated as a land use permit in accordance with DCC
Title 22.
“C. Site Plan Review. Each element or development phase of the des-
tination resort must receive additional approval through the required site
plan review (DCC 18.124) or subdivision process (DCC Title 17). In addition
to findings satisfying the site plan or subdivision criteria, findings shall be
made that the specific development proposal complies with the standards and
criteria of DCC 18.113 and the FMP.”
Cite as 322 Or App 11 (2022) 15
Basin regional aquifer for consumption on the resort devel-
opment, and which is anticipated to have a negative impact
on stream flows; thus, the permit also requires Thornburgh
to provide 1,356 total acre feet of “mitigation” water from
instream sources.
The Thornburgh FMP provides for phased develop-
ment and includes approval of a fish and wildlife habitat
mitigation plan (FWMP) to satisfy the “no net loss” stan-
dard and to offset development impacts through mitigation
of harm to fish and wildlife habitats. The FWMP contains
two components: The first addresses terrestrial wildlife. The
second component addresses off-site fish habitat. It requires
Thornburgh to secure water rights for fish and wildlife habi-
tat mitigation from Big Falls Ranch and the Central Oregon
Irrigation District (COID). Thornburgh has acquired both
of those water rights. It also requires removal of an exist-
ing instream irrigation pond in connection with the transfer
of Big Falls water rights and elimination of exempt wells
and funding for thermal modeling on Whychus Creek. The
FWMP states as “background” that “the proposed source of
water for the Resort is ground water [pumped from wells on
the Thornburgh property], to be appropriated under a water
right approved by the Oregon Water Resources Department.”
The FWMP relies on the OWRD Deschutes Basin mitigation
program as a mitigation measure to replace stream flows
affected by the use of ground water but discloses that the
program “is necessarily based on estimates of impact and
modeling.” FMP Condition 38 requires Thornburgh to “abide
by” the FWMP—which requires mitigation “in advance of
water use”—and to provide annual reporting.2
The FMP divides the development into seven
phases. Phase A includes development of transportation
2
FMP Condition 38 provides:
“[Thornburgh] shall abide by the April 2008 Wildlife Mitigation Plan,
the August 2008 Supplement, and agreements with the BLM and ODFW
for management of offsite mitigation efforts. Consistent with the plan,
[Thornburgh] shall submit an annual report to the county detailing miti-
gation activities that have occurred over the previous year. The mitigation
measures include removal of existing wells on the subject property, and coor-
dination with ODFW to model stream temperatures in Whychus Creek.”
The FWMP requires that water rights will be protected as instream flow rights
and will be transferred instream “before water use may begin for that phase.”
16 Gould v. Deschutes County
infrastructure, a golf course, a restaurant, meeting facilities,
open space, 300 residential units, and 150 OLUs, and imple-
mentation of the FWMP. In May 2018, Thornburgh sought
approval of a tentative plan for a portion of the approved
Phase A, calling the partial subphase “Phase A-1,” which
includes a tentative subdivision plat for single-family resi-
dential dwelling lots and OLU lots, together with roads, util-
ity facilities, lots, and tracts for future resort facilities and
open space. Thornburgh also applied for site-plan review
for a well, well house, pump house, reservoir, and sewage
disposal. LUBA referred to the proposals, collectively, as
the Phase A-l TP. The county hearings officer approved the
application with conditions.
On petitioner Gould’s appeal, LUBA remanded the
county’s order, based on the determination that Condition 17
of the approval violated the right to a public hearing on
whether the no-net-loss standard would be satisfied for
Phase A by mitigation from water sources not specified in
the FWMP. Gould v. Deschutes County, 79 Or LUBA 561
(2019) (Gould VIII), aff’d without opinion, 310 Or App 868,
484 P3d 1073 (2021). On remand, the hearings officer again
approved the Phase A-l TP application, this time without
Condition 17. Petitioner appealed; LUBA issued an order
affirming the county’s approval. Gould’s petition and the
county’s cross-petition for judicial review of LUBA’s order
are currently pending. Gould v. Deschutes County (A178963).
In the meantime, Thornburgh applied for site-plan
review for 80 OLUs, to be developed on 8.43 acres as part
of Phase A (the OLU site plan), which is the application at
issue in this petition. The county’s hearings officer approved
the OLU site plan with conditions. Petitioner appealed to the
Deschutes Board of County Commissioners, which chose not
to the hear the appeal, thus making the hearings officer’s
order the county’s final decision. DCC 22.32.035. Petitioner
then appealed to LUBA.
Petitioner argued before LUBA that, in approv-
ing the OLU site plan, the hearings officer misinterpreted
the applicable law and failed to make adequate findings
supported by substantial evidence. Petitioner argued that
the approval violated FMP Conditions 10 and 38 and TP
Cite as 322 Or App 11 (2022) 17
Condition 17. Petitioner’s arguments before LUBA—and on
judicial review—are largely premised on her contention,
which LUBA has previously rejected, that, because water
right Permit G-17036 is subject to a pending challenge,3 it
cannot form the basis for Thornburgh’s satisfaction of the
conditions’ requirements.
LUBA rejected each contention. As relevant here,4
LUBA first addressed FMP Condition 10, which provides:
“[Thornburgh] shall provide, at the time of tentative plat/
site plan review for each individual phase of the resort
development, updated documentation for the state water
right permit and an accounting of the full amount of miti-
gation, as required under the water right, for that individ-
ual phase.”
The parties agree that FMP Condition 10 must be satis-
fied at each site-plan review phase, including this current
phase. Relying on previous LUBA orders relating to the
resort development, the county had determined that FMP
Condition 10 imposes a requirement for documentation of
water rights and an accounting of the amount of required
mitigation, and that Thornburgh had satisfied those docu-
mentation requirements. On appeal to LUBA, petitioner con-
tended that, in light of evidence that Permit G-17036 is sub-
ject to challenge, and that Thornburgh is now seeking new
water rights with potentially different impacts and necessi-
tating different mitigation, FMP Condition 10 requires more
than documentation—it requires that Thornburgh establish
at each phase of site-plan review, including the current OLU
site-plan review, that Thornburgh had acquired access to
actual water required for the particular phase and also had
completed mitigation.
LUBA agreed with the county’s understanding of
FMP Condition 10. LUBA explained that it had previously
determined, in Gould VIII, that, because water mitigation is
3
The pending challenge to water Permit G-17036 is based on alleged pro-
cedural defects, as described in LUBA’s order in Gould v. Deschutes County, ___
Or LUBA ___ (LUBA No 2020-095, June 11, 2021) (Gould Golf), aff’d without
opinion, 314 Or App 636, 494 P3d 357 (2021), rev den, 369 Or 211 (2022).
4
Petitioner no longer challenges the county’s decision relating to TP
Condition 17.
18 Gould v. Deschutes County
based on “consumptive use,” FMP Condition 10 is a primar-
ily an informational requirement to provide documentary
“proof of adequate water rights and mitigation commensu-
rate with the estimated consumptive use of water for the
development approved at each phase of development, and in
advance of actual water consumption.”
In rejecting petitioner’s contention that Thornburgh
had failed in its burden, LUBA explained that, in its previ-
ous order, LUBA had found that Thornburgh had established
its water right under Permit G-17036, for a quasi-municipal
use of groundwater, which authorized Thornburgh to drill
six wells and pump groundwater for resort use, including
a golf course and irrigation lakes. LUBA explained that it
had previously determined that Thornburgh had met its
burden with respect to proof of water rights by showing
that, despite pending procedural challenges by petitioner,
Permit G-17036 is not cancelled; thus, LUBA reasoned that
it had concluded in Gould VIII that Thornburgh had met
the documentation requirement of FMP Condition 10 per-
taining to water rights. And LUBA had also determined
that Thornburgh had provided sufficient documentation of
mitigation. Finally, LUBA explained, in Gould VIII, which,
as noted, we affirmed without opinion, LUBA had deter-
mined that Thornburgh had met the water permitting and
mitigation requirements necessary to comply with FMP
Condition 10. LUBA rejected petitioner’s contention that
evidence that Thornburgh was seeking water rights in addi-
tion to those provided by Permit G-17036 was evidence that
Permit G-17036 was no longer sufficient to meet mitigation
requirements and that new mitigation requirements must
be satisfied for those potential new water rights. LUBA
determined that, despite evidence that Thornburgh is also
seeking out additional water rights, substantial evidence
supported Thornburgh’s assertion and the county’s determi-
nation that Thornburgh was planning to rely on its exist-
ing Permit G-17036 and mitigation requirements for this
phase of development. LUBA further noted that, in a sep-
arate order, Gould v. Deschutes County, ___ Or LUBA ___
(LUBA No 2020-095, June 11, 2021) (Gould Golf), aff’d with-
out opinion, 314 Or App 636, 494 P3d 357 (2021), rev den,
369 Or 211 (2022), LUBA had adhered to its interpretation
Cite as 322 Or App 11 (2022) 19
of FMP Condition 10 in Gould VIII that the requirements
of FMP Condition 10 were satisfied by the documentation
provided by Thornburgh, including documentation of the
continued existence of Permit G-17036 and the necessary
accounting for mitigation showing estimates the amount of
water needed for the golf course and Phase A-1 tentative
plan. LUBA thus rejected petitioner’s challenges relating to
FMP Condition 10.
LUBA then turned its attention to petitioner’s con-
tentions relating to FMP Condition 38, which provides:
“[Thornburgh] shall abide by the April 2008 Wildlife
Mitigation Plan, the August 2008 Supplement, and agree-
ments with the BLM and ODFW for management of off-site
mitigation efforts. Consistent with the plan, [Thornburgh]
shall submit an annual report to the county detailing miti-
gation activities that have occurred over the previous year.
The mitigation measures include removal of existing wells
on the subject property, and coordination with ODFW to
model stream temperatures in Whychus Creek.”
The county had determined that FMP Condition 38 does
not require Thornburgh to demonstrate any specific miti-
gation measures in place for approval of the OLU site plan,
unless the site-plan application changes the FWMP; FMP
Condition 38 simply imposes a requirement for annual
reporting of mitigation activities. Because the site-plan
application made no changes to the FWMP, the county con-
cluded, there was no requirement to demonstrate any spe-
cific mitigation measures.
Before LUBA, petitioner contended that, in light of
petitioner’s challenge to Thornburgh’s OLU site-plan appli-
cation, the pending challenge to Permit G-17036 as a source
of water for the development, and evidence presented by
petitioner that actual water would not be available for the
documented mitigation plan, FMP Condition 38 requires, in
advance of site-plan approval, that Thornburgh show pos-
session of water rights and the availability of actual water
to satisfy mitigation requirements. Pre-approval compli-
ance, petitioner contended, would be subject to a public evi-
dentiary hearing in which petitioner could participate, DCC
18.113.070(D) (describing participatory rights of interested
20 Gould v. Deschutes County
persons). Petitioner contended that the county’s failure to
require Thornburgh to present that proof at the site-plan
application phase deprived petitioner of the right to partici-
pate and “robs interested persons of a public hearing on the
evidence of whether Thornburgh is abiding by the FWMP at
the final stage of review.”5
We note that the mitigation plan itself has been the
subject of litigation in which petitioner has participated. See
Gould v. Deschutes County, 233 Or App 623, 639-43, 227 P3d
758 (2010) (describing litigation). Here, LUBA agreed with
petitioner that, even without FMP Condition 38, compliance
with the FWMP was a continuous obligation of the resort
development. But LUBA rejected petitioner’s contentions
regarding the function of FMP Condition 38 or that FMP
Condition 10, FMP Condition 38, and the FWMP together
required proof of fish habitat mitigation actions before
approval of the site plan. Rather, LUBA reasoned, as it had
previously held (in Gould VIII, which, as noted, we affirmed
without opinion), that although the applicant must at all
stages of development “abide by” the requirements of the
FWMP, the FWMP itself does not impose an obligation at
the time of site-plan approval to establish that instream mit-
igation has been completed, i.e., that mitigation water has
been placed instream. LUBA reasoned that FMP Condition
38 imposes a requirement for annual reporting to ensure
compliance once water is being pumped for the development,
and that, as LUBA had held in Gould VIII, the FWMP’s
requirement for mitigation “in advance of water use” does
not impose a requirement for mitigation pre-development.6
LUBA explained the holding of its order in Gould VIII that
“[t]he FWMP acknowledges that habitat impacts will not
occur until development or groundwater pumping begins.
While Thornburgh must provide the full amount of mit-
igation water for each phase ‘in advance of water use,’
5
Contrary to petitioner’s contention on judicial review, petitioner did not
contend before LUBA that only water right Permit G-17036 may be used to sat-
isfy the requirements of the FWMP; to the extent that petitioner makes that
argument now, we decline to address it.
6
LUBA owed no deference to the county’s interpretation of FMP Conditions
10 and 38; its role, instead, was to review for legal error—that is, for whether
the city “[i]mproperly construed the applicable law” under ORS 197.835(9)(a)(D).
M & T Partners, Inc. v. Miller, 302 Or App 159, 460 P3d 117 (2020).
Cite as 322 Or App 11 (2022) 21
the FWMP does not require proof of mitigation actions in
advance of pumping. That is, the FWMP does not require
proof of mitigation actions at the third-stage develop-
ment application. Instead, FMP Condition 38 requires
Thornburgh to act in accordance with the FWMP and to
submit an annual report of mitigation actions. Presumably,
the triggering event for that annual reporting requirement
is actual resort development activity or water pumping.
However, the FWMP does not require mitigation actions
and reporting as a condition to site plan approval.”
Then, in a separate analysis of the text and context of FMP
Condition 38 and the FWMP, LUBA reaffirmed that FMP
Condition 38 does not require proof of the current availabil-
ity of water in the mitigation source—Deep Canyon Creek—
as a precondition for site-plan approval.
On judicial review, in her first assignment, peti-
tioner contends that LUBA has erred in affirming the
county’s interpretation of FMP Condition 38, “thereby vio-
lating Petitioner’s and other interested person’s rights to
a public hearing on whether Thornburgh is abiding by the
FWMP.” Petitioner’s argument is somewhat hard to dis-
cern but appears to depend again on the assumption, which
LUBA has previously rejected, that the pending challenge to
Permit G-17036 prevents reliance on that permit as a basis
for satisfaction of FMP Condition 38. Petitioner contends
that the requirement in FMP Condition 38 that the devel-
oper must “abide by” the FWMP means that Thornburgh
must establish at the site-plan review phase—without reli-
ance on Permit G-17036—that it can meet the water flow
requirements of the FMP sufficient to meet the mitigation
requirements and, further, that it must actually carry out
the mitigation in advance of approval. Petitioner reasons:
“The site plan stage is truly the final stage in the public
review process and thus the only step in advance of water
use where Thornburgh can show that it has the legally
transferable water resources actually available and capa-
ble of being placed timely instream to mitigate the impacts
of the water it will consume with that stage.”
Thus, petitioner contends, Thornburgh must establish, at
the site-plan review stage, that the necessary water is
actually available under existing water rights, excluding
22 Gould v. Deschutes County
consideration of Permit G-17036. Petitioner contends in
this assignment that the county’s interpretation that FMP
Condition 38 does not require this proof at the time of site-
plan approval, together with its interpretation of FMP
Condition 10 to require only paper documentation of water
rights, deprived petitioner of her right to a public hearing
and caused her substantial prejudice, the prejudice not
otherwise described but presumably based on petitioner’s
inability to present evidence the conditions cannot be satis-
fied because no water is available to fulfill them. Further, in
petitioner’s view, substantial evidence supports the finding
that water will not be available.7 In her second assignment
of error, petitioner repeats some her challenges to LUBA’s
interpretation of FMP Conditions 10 and 38 and also asserts
that LUBA erred in relying on rationale from an earlier
order, Bouman v. Jackson County, 23 Or LUBA 628, 631-32
(1992), that petitioner asserts is not applicable in the pres-
ent posture.
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 prop-
erly 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 interpre-
tation of the applicable law.” Kine v. Deschutes County, 313
Or App 370, 370-71, 496 P3d 1136 (2021) (internal quotation
marks omitted). To the extent that petitioner challenges
LUBA’s determinations 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,
7
Again, as noted, petitioner’s arguments appear to be based on the underly-
ing assumption that water rights and mitigation requirements of the FWMP can
only be satisfied through Permit G-17036. Petitioner argues that Permit G-17036
will not be sufficient to meet the requirements of the FWMP. We agree with
Thornburgh that that issue was not presented to LUBA and therefore is not pre-
served. We nonetheless agree with Thornburgh that, to the extent it is preserved,
the argument is based on an erroneous premise. Thornburgh is correct that there
is no requirement in the FWMP that the water rights and mitigation can only be
satisfied through Permit G-17036.
Cite as 322 Or App 11 (2022) 23
640, 443 P3d 1184, rev den, 365 Or 721 (2019) (citing Root v.
Klamath County, 260 Or App 665, 670, 320 P3d 631 (2014)).
We address each of petitioner’s challenges in turn, conclude
that LUBA did not err, and therefore affirm.
Petitioner’s arguments in her first assignment of
error turn on LUBA’s interpretations of both FMP Conditions
10 and 38, which we review as a matter of law. As noted,
several of those interpretative issues have been decided in
previous LUBA orders that have been affirmed on judicial
review and that we therefore do not consider here. Beck v.
Tillamook, 313 Or 148, 153, 831 P2d 678 (1992) (A party is
not entitled to relitigate issues that have been resolved on
review of previous phases of the same land use litigation).
LUBA has previously held, in orders that we have affirmed
without opinion, that the requirements of FMP Condition 10
were satisfied by the documentation provided by Thornburgh,
including documentation of the continued existence of
Permit G-17036 and mitigation data. Gould VIII; Gould Golf.
Thus, we decline to consider petitioner’s contention in her
first assignment that Thornburgh has failed to show that it
holds a valid water permit or that it has not presented suf-
ficient data on mitigation. And we decline to consider peti-
tioner’s argument, resolved in previous litigation, that FMP
Condition 10 requires proof, at this stage, of the availability
of actual water behind Thornburgh’s water right. Thus, all
of petitioner’s arguments relating to FMP Condition 10 have
previously been rejected and we reject them here.
Most of petitioner’s arguments in her first assign-
ment of error relating to FMP Condition 38 have also been
previously addressed and rejected by LUBA in earlier
orders. Petitioner’s primary argument is that the require-
ment in FMP Condition 38 that Thornburgh “abide by”
“the April 2008 Wildlife Mitigation Plan, the August 2008
Supplement, and agreements with the BLM and ODFW for
management of off-site mitigation efforts” means that peti-
tioner must prove, at every approval stage, that it has ful-
filled those requirements, which are set forth in the FWMP.
LUBA noted in its order that “the plain meaning of ‘abide
by’ is ‘to act or behave in accordance with or obedience
to (as a rule or promise) * * *: conform to.’ Webster’s Third
New Int’l Dictionary (unabridged ed 2002). The opposite of
24 Gould v. Deschutes County
‘conform to’ is ‘deviate from.’ ” (Omission LUBA’s.) LUBA
agreed with petitioner’s contention that the requirement
that Thornburgh abide by the requirements of the FWMP
at every stage means that it must comply with the FWMP
at every stage. But LUBA noted that it has held, in an order
that we have affirmed without opinion on judicial review,
Gould VIII, that neither the FWMP nor FMP Condition 38
requires pre-development mitigation, and that the require-
ment to “abide by” the FWMP in FMP Condition 38 is sat-
isfied by the reports filed by Thornburgh that address the
requirements of the FWMP. As interpreted by the county
and affirmed by LUBA, compliance with FMP Condition 38
is measured by annual reporting filed after water use has
begun. We are satisfied that, in light of the requirements of
the FWMP, with which FMP Condition 38 requires compli-
ance and which imposes no requirement for pre-development
mitigation, LUBA’s interpretation of FMP Condition 38 is
correct as a matter of law. We therefore reject that portion of
petitioner’s first assignment of error.
To the extent that petitioner argues in her first
assignment that LUBA erred in its application of the sub-
stantial evidence standard relating to compliance with
FMP Condition 38, we also reject that argument. LUBA has
correctly applied the substantial evidence standard.
The remaining contention raised by petitioner in
her first assignment is that FMP Condition 38 should be
read to provide for a public hearing on the applicant’s com-
pliance with mitigation. As noted, the conditions, as well as
the mitigation plan itself, have been the subject of exten-
sive litigation in which petitioner has participated. And, as
LUBA correctly held, the text of FMP Condition 38 makes
no provision for public review or hearing relating to the
reporting and mitigation requirements associated with each
stage of development as required by the FWMP. We there-
fore affirm LUBA’s rejection of that contention.
Petitioner’s second assignment of error again
addresses LUBA’s interpretation of FMP Conditions 10 and
38 and repeats many of the arguments that we have rejected
in the first assignment. Petitioner additionally contends
that LUBA’s order erroneously relied on a rationale from
Cite as 322 Or App 11 (2022) 25
an earlier order, Bouman, in which LUBA has held that, at
the preliminary review stage, to establish compliance with
conditions for development, an approval of an application
for development simply must be based on evidence that the
applicant is not precluded from obtaining required state
agency permits as a matter of law. Petitioner argues that
LUBA’s order is based on that rationale of Bouman and rep-
resents an unwarranted extension of that rationale to the
site-plan-approval phase, which is the concluding approval
phase before development. At the site-plan-approval phase,
petitioner contends, it is not sufficient to establish that the
applicant can feasibly satisfy conditions: conditions must
actually be satisfied.
Petitioner’s contention is again premised in part on
her view that Permit G-17036 is cancelled and cannot form
the basis for compliance with the conditions. As explained,
that understanding has been rejected by LUBA orders that
have been upheld on judicial review. But we reject petition-
er’s argument in her second assignment for the additional
reason that, even assuming that LUBA’s reliance on the
analysis of Bouman at this current site-plan approval phase
of development would be reviewable under our standard
of review, but see Central Oregon Landwatch v. Deschutes
County, 315 Or App 673, 680, 501 P3d 1121 (2021) (The peti-
tioner provided “no basis under our standard of review that
would permit us to displace LUBA’s application of its own
precedent.”), it is not apparent to us that LUBA in fact relied
on Bouman. LUBA did not cite Bouman in its current order
under review or mention the rationale in its order. LUBA’s
order (and the orders on which it relied) analyzed the texts of
FMP Conditions 10 and 38 and reached conclusions rejecting
petitioner’s proposed interpretations based on that analysis,
as well as the conclusion that substantial evidence supported
the county’s determination that the conditions had been sat-
isfied. We accordingly reject petitioner’s second assignment.8
Affirmed.
8
We reject petitioner’s contention, in a memorandum of supplemental author-
ity, that our recent opinion in Golden Rule Farms v. Water Resource Dept., 321 Or
App 43, 515 P3d 908 (2022), somehow supports its argument that the pendency
of the challenge to Permit G-17036 has some bearing on Thornburgh’s ability to
satisfy FMP Conditions 10 and 38 or the interpretation of those provisions.