Central Oregon Landwatch v. Deschutes County

Under DDC 18.88.040(B), where a WA Zone overlays an underlying EFU zone, the uses “conditionally permitted” in the WA Zone are those uses conditionally permitted in the underlying EFU zone. The uses “conditionally permitted” in the EFU zone include any use conditionally permitted, subject to discretionary review, or not “permitted outright.”

The subject property is a 216-acre parcel, which is zoned exclusive farm use (EFU) with a Metolius Deer Winter Range Wildlife Area (WA) overlay zone. The owners use the parcel as a wedding venue. After failing to receive approval to operate the venue as a “private park,” they now seek approval for a church on the property. The hearings officer approved the church, subject to limitations.

Petitioner argues, and LUBA agrees, that the proposed church is a prohibited use in the WA overlay zone that governs the subject property. Under DCC 18.88, when a WA Zone is combined with an underlying zone, the uses permitted outright are those permitted outright in the underlying zone. Under DDC 18.88.040(B), the conditional uses allowed in the WA Zone are also those permitted conditionally in the underlying zone, except that certain conditional uses, including churches, are “not permitted” in particular types of wildlife resources like Metolius Deer Winter Range. Thus, the permissibility of a church on the subject property depends on whether church use is “permitted outright” or “permitted conditionally” in the underlying EFU zone.

Here, the EFU zone does not list a church under the “permitted outright” uses under DDC 18.16.020. Rather, it classifies churches as “Permitted Subject to Special Provisions.” Further, OAR 660-033 and ORS 215.441 require or authorize discretionary reviews of church use EFU zones, making it inaccurate to classify churches as “permitted outright.” LUBA agreed with Petitioner that the reference to “conditional uses” in DDC 18.88.040(B) is not concerned exclusively with uses listed as “conditional uses” in the underlying zone, but with any category of use that, as here, are subject to discretionary reviews and not “permitted outright.” LUBA concluded that church use is “conditionally permitted” in the underlying zone for the purposes of WA Zone restrictions, and under DDC 18.88.040(B) a church on winter range is “not permitted.” REVERSED.