Gould v. Deschutes County

ORS 197.829(1) requires LUBA to defer to a local government’s interpretation of its own land use regulations unless the interpretation is inconsistent with the express text of the regulation, the purpose of the regulation, the underlying policy implemented by the regulation, or a state law that the regulation purportedly carries out. See Kaplowitz v. Lane County, 285 Or App 764, 773 (2017).

The County approved an application for a conditional use permit to site a personal-use airstrip on property zoned for exclusive farm use, but LUBA overturned the approval following Gould’s appeal. The County and applicant petitioned for judicial review, and Gould filed a cross-petition. Deschutes County Code 18.16.040(A)(3) requires that any conditional use allowed in EFU zones be sited on land that is “the least suitable for the production of farm crops and livestock.” The County and applicant assigned error to LUBA’s interpretation of the “least suitable” standard, and Gould assigned error to the hearing officer’s interpretation of the “least suitable” standard. ORS 197.829(1) requires LUBA to defer to a local government’s interpretation of its own land use regulations unless the interpretation is inconsistent with the express text of the regulation, the purpose of the regulation, the underlying policy implemented by the regulation, or a state law that the regulation purportedly carries out. See Kaplowitz v. Lane County, 285 Or App 764, 773 (2017). The Court found that the hearing officer’s interpretation of the “least suitable” rule was plausible, if not preferable. Because LUBA must defer to the local governing body’s permissible interpretation of its own land use regulations, its failure to do so here was unlawful. Reversed and remanded on petitions and cross-petition.