Thomas Bishop v. Deschutes Cnty.

THOMAS BISHOP, DORBINA BISHOP,and TRUSTEES OF THE BISHOP FAMILY TRUST, Petitioners,andCENTRAL OREGON LANDWATCH, Intervenor-Petitioner, v. DESCHUTES COUNTY, Respondent,andKC DEVELOPMENT GROUP, LLC, Intervenor-Respondent.

LUBA No. 2017-002

LUBA No. 2017-003

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

January 5, 2018

FINAL OPINION AND ORDER

Appeal from Deschutes County.

Jennifer M. Bragar, Portland, represented petitioners.

Carol E. Macbeth, Bend, represented intervenor-petitioner.

David Doyle, Deschutes County Counsel, Bend, represented respondent.

J. Kenneth Katzaroff, Bend, represented intervenor-respondent.

BASSHAM, Board Member; RYAN, Board Chair; HOLSTUN 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 Bassham.

NATURE OF THE DECISION

In LUBA No. 2017-002, petitioners appeal a December 14, 2016 land use compatibility statement (LUCS) concluding that storage of water in two reservoirs to support various land uses is not regulated by the county's land use ordinance (hereafter, the 2016 Groundwater LUCS decision). In LUBA No. 2017-003, petitioners appeal a December 30, 2016 county decision concluding that there is no local right to appeal the 2016 Groundwater LUCS decision.

MOTION TO DISMISS FOR MOOTNESS

On December 14, 2016, the county issued a LUCS requested by the Oregon Water Resources Department (OWRD), regarding the proposed use of water storage in two reservoirs, to support several land uses proposed by intervenor-respondent KC Development Group, LLC (KCDG). On February 7, 2017, the county issued a LUCS regarding a proposed temporary storage of water for the same set of uses involved in the 2016 Groundwater LUCS decision. We refer to the February 7, 2017 LUCS as the 2017 Limited License LUCS. The 2017 Limited License LUCS decisions are the subject of a separate but related set of appeals, LUBA Nos. 2017-018/019, which we dispose of in a separate final opinion and order issued this date.

On August 17, 2017, the county issued a new set of LUCS decisions involving water storage supporting a very different land use proposal for the subject property, a residential subdivision (hereafter, the 2017 New LUCSdecisions). KCDG subsequently requested that OWRD "substitute" the 2017 New LUCS decisions for the 2016 Groundwater LUCS decision and the 2017 Limited License LUCS, for purposes of obtaining OWRD permits for the proposed storage of water in the two reservoirs.

Subsequently, KCDG moved to dismiss the appeals of the 2016 Groundwater LUCS decision and the related appeal of the county's December 30, 2016 decision concluding there is no local right of appeal of the 2016 Groundwater LUCS decision, arguing that the 2017 New LUCS decisions had implicitly superseded or revoked the 2016 Groundwater LUCS decision. In an order dated November 3, 2017, we denied KCDG's motion, concluding in relevant part that "[u]nless and until the county takes action to withdraw, revoke or supersede" the 2016 Groundwater LUCS decision, that decision remains valid, and a potential basis for KCDG to seek OWRD permits for the use evaluated in the 2016 Groundwater LUCS decision. Bishop v. Deschutes County, ___ Or LUBA ___ (LUBA No. 2017-002/003, Order, November 3, 2017) (slip op at 6). We noted that the 2017 New LUCS decisions included no language purporting to withdraw, revoke or supersede the 2016 Groundwater LUCS decision. Id. at 7. We indicated that an effective means to moot the present appeal would be for KCDG to request that the county "issue a new decision that rescinds or withdraws" the 2016 Groundwater LUCS decision. Id. at 8.

Subsequently, the county and KCDG (respondents) filed a joint motion to dismiss the appeal of the 2016 Groundwater LUCS decision as moot, supported by the declaration of Peter Gutowsky, the county planning manager. Following a recitation of the factual history, Gutowsky declares:

"KC Development Group's statements to the Oregon Water Resources Department [to substitute the 2017 New LUCS for the older ones] were consistent with my understanding of the intended effect of the 2017 New LUCSs when I issued those documents, namely that the 2017 New LUCS[] withdrew, revoked, or otherwise superseded the 2016 Groundwater LUCS and the 2017 Limited License LUCS. If Deschutes County does not approve KC Development Group's currently pending land use applications, and if, as a result, KC Development Group intends to use the subject property for those purposes previously identified in the 2016 Groundwater LUCS or the 2017 Limited License LUCS, Deschutes County will not consider the 2016 Groundwater LUCS nor the 2017 Limited License LUCS valid or applicable to such intended uses." Declaration of County Planning Manager Peter Gutowsky in Support of Joint Motion to Dismiss, 3.

Based on Gutowsky's declaration that the county no longer considers the 2016 Groundwater LUCS decision to be "valid," the county and KCDG argue that LUBA should dismiss the appeal of the 2016 Groundwater LUCS decision as moot.

Petitioners oppose the motion, arguing that the Gutowsky declaration is insufficient to constitute a "decision" that effectively withdraws, revokes or supersedes the 2016 Groundwater LUCS decision. According to petitioners, Gutowsky's declaration that the county no longer considers the 2016 Groundwater LUCS decision to be "valid" simply states the current planningmanager's future position in the event that KCDG attempts to seek county land use approval based on the 2016 Groundwater LUCS decision. Petitioners argue that the declaration is not binding on the county, and a future planning manager may well reach a different conclusion and decide to recognize the 2016 Groundwater LUCS decision as valid.

However, we agree with respondents that the Gutowsky declaration is a binding county determination that the 2016 Groundwater LUCS decision is no longer valid. It is true that that declaration lacks the indicia of a formal decision, and does not use magic words such as: "I hereby revoke the 2016 Groundwater LUCS." Nonetheless, it is difficult to see how a more formal decision declaring that the 2016 Groundwater LUCS decision is no longer "valid" would differ in substance from the declaration. Petitioners do not dispute that Gutowsky, as the county planning manager, has the authority to withdraw, revoke or rescind the 2016 Groundwater LUCS decision, or otherwise bind the county to recognize that it is no longer a valid decision. If Gutowsky had issued a formal decision stating in so many words that the 2016 Groundwater LUCS decision is no longer "valid," we see no reason why such a decision would not be binding on the county, and effective to revoke or rescind the 2016 Groundwater LUCS decision. We see no reason why a more formal decision or more precise words are necessary to accomplish that purpose, which the applicant clearly desires and the county has clearly agreed to.

Nonetheless, petitioners argue that in a related declaratory ruling action in circuit court, county counsel took the position that the 2016 Groundwater LUCS decision is a "land use decision" subject to LUBA's jurisdiction. See Petitioners' Opposition to the Joint Motion to Dismiss, Appendix B 1-2.¹ Petitioners argue that the county's current position embodied in the Gutowsky declaration—that the 2016 Groundwater LUCS decision is no longer "valid"—is inconsistent with the position expressed by county counsel in the declaratory ruling proceeding. However, we see no inconsistency. In the declaratory ruling proceeding, county counsel argued that LUBA, rather than the circuit court, had subject matter jurisdiction over county decisions involving land uses on the subject property. Counsel did not take the position that decisions pending in appeals before LUBA, such as the 2016 Groundwater LUCS, cannot be mooted by later county decisions. If the 2016 Groundwater LUCS is invalid and its appeal to LUBA is therefore moot, then LUBA must dismiss the appeal. Like LUBA, the circuit court generally lacks jurisdiction over matters that become moot. See Rogue Advocates v. Board of Comm. of Jackson County, 362 Or 269, 272, ___ P3d ___ (2017) (action in circuit court seeking to enforce the county's land use regulations is moot once the disputed land use of the property is abandoned).

On December 26, 2017, petitioners filed an additional response arguing in relevant part that the appeal is not moot under ORS 14.175, which provides that, notwithstanding that the act of a public body challenged in a court no longer has a practical effect on the parties, the court "may issue a judgment on the validity of the challenged act" if it determines that the challenged act is "capable of repetition" and is "likely to evade judicial review in the future."² Petitioners argue that the 2016 Groundwater LUCS decision is "capable of repetition" in the sense that KCDG could request a new LUCS from the county on the same terms as the 2016 Groundwater LUCS, or seek to revive the 2016 Groundwater LUCS. According to petitioners, because the county and KCDGhave not conceded that the 2016 Groundwater LUCS decision was erroneous, the county may well at some point in the future consent to issue a new or revived LUCS that is substantively identical to the LUCS on appeal.

Petitioners also argue that the history of the present appeal illustrates that any new or revived LUCS would be "likely to evade judicial review in the future." Petitioners argue that the county and KCDG have taken inconsistent positions at different points in this appeal and before the circuit court in a related enforcement action filed by petitione...