Kine and Kine Properties v. Deschutes County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 06-13-2017
  • Case #: 2017-005/2017-006
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

Deschutes board of county commissioners’ interpretation that land “developed as a golf course,” under DCP Policy 4.8.2, refers to all land developed and used for golf in 2001, is not inconsistent with the express language or purpose of Policy 4.8.2.

Petitioner appeals a board of county commissioners’ decision denying its application for subdivision of a large remainder parcel, developed as a golf course, within the Seventh Mountain/Widgi Creek Resort community. The proposed subdivision would create nine residential lots on a 0.9-acre portion (the Fairway Site) of the subject parcel. The parcel is subject to DCC 2001-047/48, which adopted DCP Policy 4.8.2, providing that “areas developed as golf courses shall remain available for that purpose or . . . open space/recreational use.”

On the first assignment of error, petitioner contends that the board misconstrued Policy 4.8.2 in concluding that the Fairway Site was “developed as a golf course.” Petitioner notes that DCC 18.04.030 defines “golf course” as “highly maintained natural turf” and the dictionary meaning of “developed” denotes a physical change or improvement to land. Petitioner contends that the Fairway Site lacks physical improvements or identifiable features of a “golf course” under DCC 18.04.030 and is thus not “developed as golf course.” However, the commissioners adopted a broader interpretation, reading Policy 4.8.2 to include all lands used and managed for golf in 2001, when the county adopted Policy 4.8.2. The county cited evidence showing the Fairway Site was in-bounds and playable in 2001. Under ORS 197.829(1), LUBA must affirm the commissioners’ interpretation of Policy 4.8.2 unless it is inconsistent with the language or purpose of Policy 4.8.2. LUBA did not find the commissioners’ broad interpretation of “developed as a golf course” implausible or inconsistent and, accordingly, affirmed the county’s interpretation.

On the second sub-assignment of error, petitioner contends that the county’s findings were inadequate and fail to address petitioner’s evidence submitted to show that the Fairway site is not developed as a golf course. However, LUBA disagreed, noting that Heiller v. Josephine County does not require local government to adopt findings addressing evidence that conflicts with evidence it chose to rely on. AFFIRMED.