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Central Oregon Landwatch v. Deschutes County

Court of Appeals of Oregon

October 10, 2018

CENTRAL OREGON LANDWATCH, Respondent,
v.
DESCHUTES COUNTY, Petitioner.

          Argued and Submitted July 23, 2018

          Land Use Board of Appeals 2018007

          D. Adam Smith argued the cause and fled the brief for petitioner.

          Carol Macbeth argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.

         Case Summary:

         Deschutes County seeks review of a Land Use Board of Appeals (LUBA) order remanding the county's decision to allow churches, without limitation, in the county's Wildlife Area Combining Zone, which was an amendment to the county's Statewide Planning Goal 5 program. The county's decision was based on its economic, social, environmental, and energy (ESEE) analysis, which included as an economic consequence of not amending the program the threat of litigation under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). LUBA remanded the county's decision for the county either to adopt an analysis that does not rely on a mere threat of RLUIPA litigation or one that evaluates whether the existing Goal 5 program is inconsistent with RLUIPA. Held: LUBA correctly concluded that the county's ESEE analysis was insufficient because the county's bare identification of potential litigation did not analyze that consequence with respect to the requirements of Goal 5 or to the county's existing Goal 5 program, as required by OAR 660-023-0040(4) and (5).

         Affirmed.

         [294 Or.App. 318] ARMSTRONG, P. J.

         Deschutes County seeks review of a Land Use Board of Appeals (LUBA) order remanding the county's decision to amend the county's comprehensive plan and land use regulations to allow churches, without limitation, in the county's Wildlife Area Combining Zone (WA overlay zone), which was an amendment to the county's Statewide Planning Goal 5 program. The county had amended the Goal 5 program based on its economic, social, environmental, and energy (ESEE) analysis, which included as an economic consequence of not amending the program the threat of litigation under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 USC § 2000cc et seq. On the petition of Central Oregon LandWatch (LandWatch), LUBA remanded the county's decision, concluding that the county could not rely on the mere threat of RLUIPA litigation and must, on remand, adopt an analysis that does not rely on that mere threat or that evaluates whether the existing Goal 5 program is inconsistent with RLUIPA. On review, the county argues that LUBA ignored the text of OAR 660-023-0010(2) and OAR 660-023-0040(4), which it asserts permitted the analysis that the county undertook. Because we conclude that LUBA's order was not "unlawful in substance," ORS 197.850(9)(a), we affirm.

         We begin with the administrative rules that are at the center of the issue presented in this case. Statewide Planning Goal 5 is a land use planning goal to protect natural resources and conserve scenic and historic areas and open spaces. OAR 660-015-0000(5). Local governments are required to apply Goal 5 and the requirements in OAR chapter 660, division 23, when considering a "post-acknowledgment plan amendment," see OAR 660-023-0010(5) (defining "post-acknowledgement plan amendment" or "PAPA"), if the amendment affects a Goal 5 resource, including by "allow[ing] new uses that could be conflicting uses with a particular Goal 5 resource site on an acknowledged resource list." OAR 660-023-0250(3)(b). Under OAR 660-023-0040, the local government must analyze "the economic, social, environmental, and energy (ESEE) consequences that could result from a decision to allow, limit, [294 Or.App. 319] or prohibit a conflicting use." OAR 660-023-0040Q).[1] The term "ESEE consequences" is defined as "the positive and [294 Or.App. 320] negative economic, social, environmental, and energy (ESEE) consequences that could result from a decision to allow, limit, or prohibit a conflicting use." OAR 660-023-0010(2). Based on the ESEE analysis, the local government is required to "determine whether to allow, limit, or prohibit identified conflicting uses for significant resources sites." OAR 660-023-0040(5).

         Turning to the circumstances in this case, we take the relevant facts from LUBAs order, which the parties do not dispute on review:

"In 1992, during periodic review, the county adopted the WA overlay zone to fulfill its obligations under Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Space) with respect to significant wildlife resources. The WA overlay zone is intended to conserve all important wildlife areas identified in the Deschutes County Comprehensive Plan as a deer winter range, significant elk habitat, antelope range [, ] or deer migration corridor. Deschutes County Code (DCC) 18.88 sets out the regulations that govern uses in areas subject to the WA overlay zone. DCC 18.88.040(A) provides that the uses permitted conditionally by the underlying zone are also allowed as conditional uses in the WA overlay zone, with 10 exceptions set out in DCC 18.88.040(B). As we discuss in more detail below, in adopting the WA overlay zone and the 10 exceptions, the county determined that those 10 exceptions are 'conflicting uses' in the parlance of the Goal 5 rule, which conflict with the wildlife resources protected by the identified wildlife areas, and decided to prohibit those conflicting uses in the WA overlay zone.
"DCC 18.88.040(B) identifies 10 conditional uses that are not permitted in the portion of the WA overlay zone that is designated as deer winter range, significant elk habitat[, ] or antelope range, including a '[c]hurch.' DCC 18.88.040(B)(3). DCC 18.88.040(C) allows a church as a conditional use in that portion of the WA overlay zone that is designated as the Bend/La Pine deer migration corridor.
[294 Or.App. 321]"The plan and code amendments challenged in the present appeal did not arise from a legislative update or review prompted by the Interagency Wildlife Report, [2] but rather from a specific quasi-judicial dispute. * * *
"[After an unsuccessful attempt to have a church allowed on his property, which is in the WA overlay zone], John Shepherd wrote letters to the county threatening to file a lawsuit under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 USC § 2000 et seq., unless the county amended DCC 18.88.040(B) to eliminate the prohibition on churches. In written comments to the county, Shepherd wrote that 'the only code amendment that we would accept is ...

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