Gould v. Deschutes County
272 Or. App. 666
Or. Ct. App.2015Background
- Thornburgh Resort CMP approved May 2006; LUBA remanded; Gould II remanded further by this Court.
- April 15, 2008, Deschutes County approved CMP with 42 conditions, some requiring an approved FMP.
- October 8, 2008, county approved FMP; LUBA remanded; subsequent appellate review followed (Gould V–VI).
- Two-year limit: DCC 22.36.010(B)(1) voids CMP two years after final decision if use not initiated; extensions allowed under DCC 22.36.020.
- Loyal Land sought declaratory ruling pre-expiration (Nov 11, 2011); hearings officer ruled CMP initiated; county declined discretionary review; LUBA remanded Gould VII.
- On remand, county found 19–1 conditions fully/substantially exercised; 22 contingent; fault-of-applicant prong deemed not at fault due to three-step process; LUBA later reversed on fault interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the county’s fault prong interpretation is lawful | Loyal Land argues county misreads text, effectively exempting destination resorts from fault prong. | Loyal Land contends county harmonized code to fit destination resorts within purpose and structure of DCC 22.36.020(A)(3). | Petitioner’s first issue: county’s fault interpretation is unlawful in substance. |
| Whether the county’s findings support not-at-fault for contingent conditions | Record shows Loyal Land not at fault; evidence supports it was unable to meet contingent conditions due to process. | County reasoned that contingent conditions depend on FMP; fault analysis applied to all conditions in context of three-step process. | Yes; LUBA erred in affirming plausibility of county’s not-at-fault finding; remand to develop factual record. |
| Whether the law-of-the-case doctrine bars reinterpreting the substantial-exercise prong on remand | Gould VII fixed the interpretation; county cannot revisit interpretive issues on remand. | County may reinterpret where permitted; loyalty to deference under ORS 197.829 is due to local interpretation. | Law-of-the-case doctrine applies; county cannot revisit Gould VII interpretation on remand. |
| Whether the availability of extensions affects plausibility of fault | Extensions could affect fault assessment; failure to seek extensions cannot justify not at fault. | Extensions are discretionary; mere availability does not mandate fault finding. | Extensions issue cannot salvage a sole reliance on process complexity; still not plausibly excusable as the sole factor. |
Key Cases Cited
- Gould v. Deschutes County, 256 Or. App. 520 (2013) (reaffirmed that all 42 conditions viewed as a whole must be considered; law-of-the-case context)
- Siporen v. City of Medford, 349 Or. 247 (2010) (standard for deference to local interpretations under ORS 197.829(1))
- Beck v. City of Tillamook, 313 Or. 148 (1992) (law-of-the-case doctrine and finality principles in review)
- Gage v. City of Portland, 319 Or. 308 (1994) (deference to local interpretations when appropriate)
- Devin Oil Co. v. Morrow County, 252 Or. App. 101 (2012) (Beck guidance on law-of-the-case and remand issues)
- Hatley v. Umatilla County, 256 Or. App. 91 (2013) (law-of-the-case applicability to legislative land use decisions)