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Bishop v. KC Development Group, LLC

Court of Appeals of Oregon

November 20, 2019

Thomas BISHOP and Dorbina Bishop, Trustees of the Bishop Family Trust, Plaintiffs-Appellants,
v.
KC DEVELOPMENT GROUP, LLC, an Oregon limited liability company; Eric Cadwell and Brianna Cadwell, individually and as Trustees of the Cadwell Family Trust; Carlton Cadwell, an individual; Lynda Cadwell, an individual; Harris Kimble, an individual; Nancy Kimble, an individual; Tumalo Irrigation District, an irrigation district organized under the laws of the State of Oregon; and Deschutes County, a municipal corporation organized under the laws of the State of Oregon, Defendants-Respondents.

          Argued and submitted August 29, 2019.

          Deschutes County Circuit Court 17CV21383; Stephen P. Forte, Judge.

          Jennifer M. Bragar argued the cause for appellants. Also on the briefs were Tomasi Salyer Martin; and Megan K. Burgess and Peterkin & Associates.

          Sara Kobak argued the cause for respondents. Also on the joint briefs were Elizabeth Howard and Schwabe, Williamson & Wyatt, P.C.; and Adam Smith and John E. Laherty.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and James, Judge.

         [300 Or.App. 585] Case Summary: Plaintiffs appeal the trial court's dismissal of their complaint to enforce Deschutes County land use ordinances. The trial court determined that it lacked subject matter jurisdiction over the complaint and dismissed it. Defendants contend that we should dismiss plaintiffs' appeal, because subsequent events have rendered it moot. Held: The appeal is moot because plaintiffs' complaint is premised on the developer not having the required land use approvals for improvements on its property that the developer has now obtained, and which are final. Further, the court declines to exercise its discretion, as allowed under ORS 14.175, to hear an otherwise moot case.

          [300 Or.App. 586]

          ORTEGA, P. J.

         Plaintiffs appeal the trial court's dismissal of their complaint to enforce Deschutes County land use ordinances. The trial court determined that it lacked subject matter jurisdiction over the complaint and dismissed it. Defendants now contend that we should dismiss plaintiffs' appeal, because subsequent events have rendered it moot. For the reasons explained below, we agree with defendants and dismiss the appeal.

         We briefly recite the history of this case, as necessary to understand the mootness issue on appeal. The defendants in this action are, among others, Deschutes County, Tumalo Irrigation District, and KC Development Group, LLC (KCDG).[1] The property in this case is located in Deschutes County and was formerly the site of a large aggregate mining operation. After the mines were closed and reclaimed, the property was zoned Rural Residential 10-acre minimum (RR-10). The property is also subject to the county's Wildlife Area (WA) combining zone, which protects deer winter range. In 2014, KCDG excavated the reclaimed mining pits and built two recreational lakes, which are lined with impervious surfaces. One lake is designed as a water-skiing lake-it is a long, narrow oval, holds about 68-acre feet of water, and is equipped with two islands, ramps, a dock, and pilings for three boathouses. The other lake is designed for passive recreation, such as nonmotorized boating and swimming-it is round, holds about 57-acre feet of water, and is equipped with three docks. In May 2014, KCDG filled the lakes with water from the Tumulo Irrigation District (the district).

         After KCDG had finished filling the lakes, the county determined that KCDG needed land use approvals for its activities. In 2015, KCDG and the district submitted applications to the county for conditional use permits for a "large-acreage recreation-oriented facility" and "surface mining to construct a reservoir in conjunction with an irrigation district." In 2016, the county denied those applications [300 Or.App. 587] (the 2016 Denial), and KCDG discontinued water skiing and irrigation district water storage uses.

         Plaintiffs filed their complaint in May 2017, premised on the circuit court's jurisdiction to enforce Deschutes County's land use ordinances, under ORS 197.825(3),[2] ORS 215.185(1),[3] and ORS 215.190.[4] Plaintiffs alleged that, in 2014, KCDG constructed the lakes and a new road without obtaining required land use approvals, water storage permits, or a surface mining operator's permit necessary for the excavation of the reclaimed mining pits. Plaintiffs sought declaratory and injunctive relief that would enforce the 2016 Denial, require KCDG to fill in the lakes and restore the property to its former state, and enjoin the county from processing any new land use applications from KCDG until the lakes are removed and the property restored. The court dismissed that complaint based on its conclusion that it lacked subject matter jurisdiction. This appeal is plaintiffs' appeal of that judgment.

         [300 Or.App. 588] While plaintiffs' complaint was still pending below, KCDG submitted two new land use applications to the county that addressed deficits in their 2015 application which had been identified by the county in the 2016 Denial. One of the applications sought retroactive authorization for construction of the lakes as part of a planned unit development and a conditional use permit to use the lakes as private recreation-oriented facilities, with one lake to be used as a ski lake and the other for passive recreational uses. The second application sought to have the lakes included in the county's inventory of nonsignificant mineral and aggregate resources, an "after-the-fact" conditional use permit to use the lakes as reservoirs for use by the district, and "after-the-fact" approval for surface mining needed to construct the lakes. In 2018, the county approved both of those applications, subject to certain conditions (the 2018 Approvals).

         As relevant here, the 2018 Approvals determined that the provisions of Deschutes County Code (DCC) 22.20.015[5] did not apply to prevent the approvals because "no 'violation,' as defined by the code had been found to exist," [300 Or.App. 589] DCC 22.28.040[6] grants the right to refile denied applications and obtain new decisions on the merits of the new applications, the excavation to create the lakes was in conjunction with an irrigation district, and the county was authorized to grant the "after-the-fact" approvals. The county further noted that "this decision is intended to, and in fact does, supersede and replace all other decisions, including denials, of previous land use applications on the subject property. This decision expressly supersedes and replaces the permit denials" issued in 2016.

         Plaintiffs appealed the 2018 Approvals to LUBA, which affirmed. Bishop v. Deschutes County, ___Or LUBA___ (LUBA No 2018-111/112, May 1, 2019). LUBA made several conclusions that are relevant here. First, LUBA determined that plaintiffs' complaint in the circuit court, and this appeal, did not deprive the county of the authority to consider defendants' applications or issue the 2018 Approvals, nor did it limit LUBA's scope of review of the 2018 Approvals. Id. at___ (slip op at 16-17). LUBA next determined that the county's interpretation of DCC 22.20.015 was consistent with the text and purpose of the ordinance and, under that interpretation, the county reasonably concluded that the ordinance did not apply. Id. at___ (slip op at 23). In the alternative, LUBA determined that, even if DCC 22.20.015 applied, the county complied with its requirements. Id. at___ (slip op at 24-25). LUBA also determined that the county was not prohibited from issuing the 2018 Approvals by the doctrines of issue or claim preclusion and that the county could rely on DCC 22.28.040 to allow the refiling of the denied applications. Id. at___, ___(slip op at 27-28, 31-32). Finally, LUBA determined that the county was not prohibited from authorizing retroactive approval of the construction of the lakes and road. Id. at___ (slip op at 52-53).

         Plaintiffs sought judicial review of LUBA's decision, and we affirmed without an opinion. Bishop v. Deschutes [300 Or.App. 590] County,298 Or.App. 841, 449 P.3d 574 (2019). Plaintiffs did not seek Supreme Court review of our decision. In this appeal, defendants argue that, because the 2018 ...


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