Bishop v. Deschutes Cnty., LUBA No. 2018-111

THOMAS BISHOP, DORBINA BISHOP,TRUSTEES OF THE BISHOP FAMILY TRUST, Petitioners,andPAUL LIPSCOMB, ARCHIE BLEYER,KEN GRAHAM, GISELA RYTER,JANET SLEATH, PAUL SLEATH,CENTRAL OREGON LANDWATCH,ROY DWYER, SUSAN STRAUSS,JEFF COUGHENOUR and SUSAN COUGHENOUR, Intervenors-Petitioners, v. DESCHUTES COUNTY, Respondent,andTANAGER DEVELOPMENT, LLC, andKC DEVELOPMENT GROUP, LLC, Intervenors-Respondents.

LUBA No. 2018-111

LUBA No. 2018-112

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

May 1, 2019

FINAL OPINION AND ORDER

Appeal from Deschutes County.

Jennifer M. Bragar, Portland, filed a petition for review and argued on behalf of petitioners. With her on the brief was Tomasi Salyer Martin PC.

Carol E. Macbeth, Bend, filed a petition for review and argued on behalf of intervenor-petitioner Central Oregon Landwatch.

Roy Dwyer, Bend, filed a petition for review on his own behalf. With him on the brief was Dwyer Williams Cherkoss.

Paul Lipscomb, Archie Bleyer, Ken Graham, Gisela Ryter, Janet Sleath, Paul Sleath, Susan Strauss, Jeff Coughenour and Susan Coughenour, Bend, represented themselves.

No appearance by Deschutes County.

Liz Fancher, Bend, filed a response brief and argued on behalf of intervenor-respondent KC Development Group, LLC.

J. Kenneth Katzaroff, Bend, filed a response brief and argued on behalf of intervenor-respondent Tanager Development, LLC.

RYAN, Board Chair; RUDD, Board Member; ZAMUDIO, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Ryan.

NATURE OF THE DECISION

Petitioners appeal two decisions by the board of county commissioners (BOCC) that approve construction of two reservoirs on land within deer winter range.

REPLY BRIEF

Petitioners (Bishops) and intervenors-petitioners Roy Dwyer (Dwyer) and Central Oregon Landwatch (COLW) move to file a joint reply brief. Intervenors-respondents Tanager Development, LLC (Tanager), and KC Development Group, LLC (KCDG) (jointly, intervenors), oppose the reply brief, arguing that portions of the reply brief are not limited to "new matters" raised in the response brief. OAR 661-010-0039 (2017). We agree with intervenors. The Board shall not consider Sections I and III of the reply brief, but will consider Section II, which responds to allegations of waiver raised in the response briefs.

FACTS

The property that is the subject of these appeals consists of a tract of 12 parcels zoned Rural Residential 10-acre minimum (RR-10). The tract is also subject to the county Wildlife Area (WA) combining zone, an overlay zone implementing Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) that protects deer winter range. The WA zone was applied to the property in 1992, at a time when the property was zoned Surface Mining (SM) and the site of a large aggregate mining operation. In 2007,after the mining pits were closed and reclaimed, the property was rezoned RR-10.

In March 2014, KCDG excavated the reclaimed mining pits in order to construct two reservoirs, each lined with impervious surfaces. The southern reservoir has a capacity of 68 acre-feet of water, is shaped as a long oval, and is constructed with islands, ramps, a dock and pilings to support three boathouses. The southern reservoir is designed to be used as a tournament-style water-skiing, wake-boarding and wake-surfing lake. The northern reservoir has a capacity of 57 acre-feet of water, is round in shape, includes three docks, and is designed for passive recreational activities such as fishing and swimming. Based on conversations with county planning staff, KCDG did not believe that excavation and construction of the reservoirs required county land use approvals, and did not seek or obtain any such approvals. However, in August 2014, a county building official issued a stop work order for construction of a marina and boathouses without a building permit. Record 9444.

In May 2014, KCDG filled the reservoirs with water obtained from the Tumulo Irrigation District (TID). To obtain state agency approval to transfer the water, in August 2014, KCDG filed an application with the county for a land use compatibility statement (LUCS), seeking a determination that the proposed transfer, storage and use of the TID water is consistent with the county's land use regulations (2014 LUCS Decision). County staff initially concluded that the water transfer and proposed use of the reservoirs required no county land usereview or approvals. However, after the LUCS decision was appealed to the hearings officer, on October 10, 2014, county staff issued a notice of violation to KCDG for operating a "recreation-oriented facility" without required land use approval. The hearings officer, and ultimately the BOCC, determined that the construction and proposed use of the reservoirs requires county land use approvals. Bishop v. Deschutes County, 72 Or LUBA 103 (2015) (affirming the BOCC's decision to that effect). Subsequently, KCDG ceased use of the two reservoirs for recreational and irrigation purposes.

In April 2015, KCDG and TID filed conditional use permit applications seeking retroactive land use approval to excavate, construct and use the two reservoirs for two distinct land uses that are listed as conditional uses in the RR-10 zone. The first is a large-acreage recreation-oriented facility (ROF); the second is for a conditional use permit to engage in surface mining to construct a reservoir in conjunction with an irrigation district (SMCUP). In 2016, the county denied the applications for a ROF and SMCUP on several grounds, concluding in part that the uses could not be approved unless and until the site was added to the county's comprehensive plan inventory of non-significant mineral and aggregate sites, which would require a post-acknowledgment plan amendment (PAPA). We refer to this decision as the 2016 Denial. The 2016 Denial also denied the ROF application for failure to comply with some of the standards applicable to a ROF. The Bishops appealed the 2016 Denial to LUBA, butultimately sought dismissal of that appeal, which LUBA dismissed. Bishop v. Deschutes County, ___ Or LUBA ___ (LUBA No 2016-023, Apr 12, 2016).

Subsequently, in May 2017, the Bishops filed an action for declaratory and injunctive relief in circuit court, seeking in part to enforce the 2016 Denial and obtain a circuit order requiring that the two reservoirs be removed and the site restored to its former state.

In July 2017, intervenors filed two applications resulting in the two decisions currently before LUBA in these appeals. The first application, filed by Tanager, sought approval of a 10-unit residential planned unit development (PUD), sought to retroactively authorize construction of the reservoirs and associated development and sought a conditional use permit (CUP) to use the two reservoirs as a private large-acreage ROF. Much of the proposed PUD area consists of open space, to be managed under a wildlife management plan. However, the two reservoirs are not located within the boundaries of the proposed PUD, and their use as a private recreational facility would be subject to a separate management agreement.

The second application, filed by KCDG, sought (1) a PAPA to include the site of the two reservoirs on the county's inventory of non-significant mineral and aggregate resources, (2) CUP approval to excavate and construct the two reservoirs as facilities used in conjunction with TID's irrigation system, and (3) approval to fill the reservoirs with TID water. Each application is intended tostand as an independent basis to approve excavation, construction and use of the two reservoirs.

The county hearings officer conducted a consolidated hearing on the two applications and, on February 7, 2018, issued a decision approving the applications. The applicants, the Bishops and COLW all filed appeals of the hearings officer's decision to the BOCC.

Meanwhile, on October 2, 2017, with the two land use applications still pending before the county, the circuit court dismissed the Bishops' action for declaratory and injunctive relief for lack of subject matter jurisdiction. On October 31, 2017, the Bishops appealed that circuit court decision to the Court of Appeals, where the appeal is currently pending. Bishop v. KC Development Group, LLC (A166238). For convenience, we sometimes refer to the circuit court decision and the associated appeal as the 2017 Circuit Court litigation.

On August 23, 2018, the BOCC approved each application, in separate decisions issued the same date. The decision approving Tanager's applications for PUD/ROF approval is referred to here as the ROF Decision. We refer to the decision approving KCDG's applications for a PAPA and surface mining permit allowing excavation and construction of reservoirs for storing irrigation water as the Excavation Decision.

These appeals followed.

INTRODUCTION

As noted, intervenors presented the county with two legal theories for retroactive approval to excavate and construct the two reservoirs. Excavation of the two reservoirs involved digging tons of rock, an activity that generally constitutes "surface mining" as defined at Deschutes County Code (DCC) 18.04.030. "Surface mining" is a use category that is not allowed in the RR-10 zone, with one exception discussed below. Intervenors' first theory for approval to excavate the two reservoirs is that such approval is subsumed into the approval of the two reservoirs as "recreation-oriented facilities," a conditional use allowed in the RR-10 zone. DCC 18.60.030(G). If so, intervenors argued to the county, the reservoirs qualify for an exception to the definition of "surface mining" included in DCC 18.04.030(A) for mining activities necessary for "on-site construction" of a use allowed in the RR-10 zone.

Approval of the reservoirs as ROFs would not authorize filling the two reservoirs with TID water for irrigation district purposes....