396 P.3d 968
Or. Ct. App.2017Background
- Caldera Springs, a destination resort in Deschutes County, was originally approved in 2006 and includes 320 single‑family homes and 38 privately owned “Caldera Cabins.” Each cabin has 3–5 bedrooms; each bedroom has a full bath and both interior and exterior lockable doors (the "lock‑off rooms").
- Under ORS 197.445 (destination‑resort statutes applicable in eastern Oregon), a resort must provide at least 150 "overnight lodging" units and a maximum residential‑to‑lodging ratio of 2.5:1; ORS 197.435(5)(b) defines "overnight lodgings."
- Pine Forest sought approval to expand the resort onto adjacent federal forest land, increasing single‑family homes and proposing additional overnight lodging units modeled on the Caldera Cabins (lock‑off rooms) to meet the statutory minimum.
- LandWatch challenged the expansion to LUBA, arguing (1) ORS 197.445 forbids expansion unless the expansion area alone meets all resort criteria, and (2) the lock‑off rooms cannot be counted as "overnight lodging" under ORS 197.435(5)(b). LUBA remanded, holding the lock‑off rooms were not overnight lodgings.
- On judicial review, the Oregon Court of Appeals affirmed that ORS 197.445 does not categorically bar expansions so long as either the expanded resort as a whole or the expansion area alone meets criteria; but it reversed LUBA’s legal interpretation that an "individually owned unit" requires separate ownership and remanded for further factual analysis of whether the lock‑off rooms qualify as separate rentable overnight units.
Issues
| Issue | Pine Forest's Argument | LandWatch's Argument | Held |
|---|---|---|---|
| Whether ORS 197.445 allows expansion of an existing destination resort that uses existing facilities to satisfy criteria | Expansion allowed; "proposed development" can include existing parts so long as the proposed development as a whole meets criteria | Expansion not allowed unless the expansion area alone meets all destination‑resort criteria | Held for Pine Forest/LUBA: statute permits expansion if the expanded resort as a whole meets the statutory requirements or if the expansion alone qualifies; affirmed on cross‑petition |
| Whether LandWatch’s challenge to counting existing lock‑off rooms is an impermissible collateral attack on prior approvals | Challenge is collateral and barred because prior approvals are final | Not collateral: the new proposal must be judged as a whole so prior finality does not bar review of the proposal’s claimed lodgings | Held for LandWatch/LUBA: not a collateral attack; LUBA correctly allowed challenge |
| Meaning of "individually owned units" in ORS 197.435(5)(b) | "Individually owned" means privately owned (not resort‑owned); does not require separate ownership of each lock‑off room | LUBA had read it to mean units must be separately owned (i.e., capable of separate ownership) | Court: "individually owned" means not owned by the resort (private ownership); LUBA erred by treating it as requiring separate ownership |
| Whether the Caldera lock‑off rooms qualify as "overnight lodgings" as a matter of law | Lock‑off rooms are separately rentable, functionally like hotel rooms, and thus qualify | Lock‑off rooms are bedrooms within single‑family residences (available for residential use) and therefore do not qualify absent evidence they are truly separate, rentable units | Court: LUBA misapplied ORS 197.435(5)(b); but lock‑off rooms do not automatically qualify. Remand required for factual determination whether each claimed individually owned unit is in fact a separate, rentable unit meeting the statute (including practical rental availability, separation, and whether the arrangement undermines policy goals) |
Key Cases Cited
- Friends of Marion County v. Marion County, 233 Or App 488 (2010) (discusses Goal 8 purpose and destination‑resort context)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (framework for reviewing agency statutory interpretation)
- State v. Gaines, 346 Or 160 (2009) (statutory construction principles)
- Gunderson, LLC v. City of Portland, 352 Or 648 (2012) (appellate duty to interpret statutes correctly regardless of parties’ positions)
- McCaw Communications, Inc. v. Marion County, 96 Or App 552 (1989) (narrow construction of statutory exceptions to protect resource uses)
- Central Oregon LandWatch v. Deschutes County, 276 Or App 282 (2016) (context on destination‑resort/goal issues)
- McKay Creek Valley Assn. v. Washington County, 118 Or App 543 (1993) (limitations on relitigation where local code does not make earlier legality a criterion)
- Marshall v. City of Yachats, 158 Or App 151 (1999) (followed McKay on scope of permissible challenges)
- Carlsen v. City of Portland, 169 Or App 1 (2000) (limits on raising errors from prior final decisions)
- Comcast Corp. v. Dept. of Rev., 356 Or 282 (2014) (use of dictionary definitions in statutory interpretation)
- State v. Kurtz, 350 Or 65 (2011) (approach to identifying common characteristics among listed examples)