# Coles Valley Church v. Oregon Land Use Board of Appeals

> District Court, D. Oregon · October 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10392546

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392546

## How later opinions describe it (automated extraction)

- explaining that Rooker-Feldman “has no application to judicial review . . . , including determinations made by a state administrative agency”
- noting that when a court lacks subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

COLES VALLEY CHURCH, Case No. 6:20-cv-00661-MK
a non-profit organization; and
JAMES MATTHEW ROYSTON, OPINION AND
ORDER
Plaintiffs,

v.

OREGON LAND USE BOARD
OF APPEALS, an Oregon State
Administrative Agency; DOUGLAS
COUNTY; and DOES 1–50,

Defendants,

_________________________________________
KASUBHAI, United States Magistrate Judge:
Plaintiffs Coles Valley Church and James M. Royston brought this lawsuit against
Defendants the Oregon Land Use Board of Appeals, Douglas County, and John Does 1–50
(collectively “Defendants”1) seeking declaratory and injunctive relief under the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. See generally
Compl., ECF No. 1. LUBA moved to dismiss arguing the Court lacks subject matter jurisdiction
based on the Rooker-Feldman doctrine and based on claim and issue preclusion. See Oregon
Land Use Board of Appeals’ Mot. Dismiss, ECF No. 8 (“LUBA’s Mot. Dismiss”). The Court

heard oral argument on July 17, 2020, and requested supplemental briefing, which Plaintiffs and
LUBA subsequently supplied. See ECF Nos. 21–24. All parties have consented to allow a
Magistrate Judge to enter final orders and judgment in accordance with Federal Rule of Civil
Procedure 73 and 28 U.S.C. § 636(c). See ECF No. 19. After a careful review of the parties’
submissions, for the reasons that follow, LUBA’s motion to dismiss is DENIED.
BACKGROUND
I. Factual and Procedural Background
Plaintiffs operate a small church in Umpqua, Oregon, a small farming community located
in Douglas County. Compl. ¶¶ 1–3, ECF No. 1. Plaintiffs’ property is zoned for exclusive farm

use (“EFU”), which allows churches and single-family residential dwellings not engaged in farm
use to exist on EFU zoned land. See Compl. Ex. A, ECF No. 1-2. County ordinances also permit
“accessory uses” of real property—i.e., “uses incidental, appropriate, and subordinate to the main
use of a lot or building”—on EFU zoned land. Id. Oregon law and county ordinance further
allow for primary or accessory dwellings to be established on EFU zoned land. Id.; see also Or.
Rev. Stat. (“ORS”) § 215.283(1)(e). Oregon law also authorizes churches on EFU zoned land in
certain circumstances. See ORS § 215.283(1)(a).

1 Where appropriate, this Opinion and Order refers to individual parties to this lawsuit as
follows: Plaintiffs Cole Valley Church (“CVC”) and Royston; Defendants Oregon Land Use
Board of Appeals (“LUBA”) and Douglas County.
Umpqua has little to no available housing for its pastor, Plaintiff Royston. Compl. ¶ 4.
Royston’s responsibilities as a pastor require his presence at CVC’s property on a full-time basis
to, among other duties, lead worship services, provide spiritual counsel, and maintain church
property. Id. Plaintiffs thus hold a sincere religious belief that in order to serve the Umpqua
community effectively, Royston must live fulltime in the community on church property. Compl.

¶ 3–4.
Plaintiffs applied to the Douglas County Planning Commission (the “Commission”) for a
permit to convert one room in the house of worship into a parsonage for Royston and his wife.
Id. A parsonage is a church-owned residential dwelling provided in conjunction with a church’s
religious use of its real property. Compl. ¶ 14. Initially, the Commission approved the
application. Id.
A neighboring vineyard owner (the “Wetherells”) challenged the Commissions’ approval
and appealed to LUBA, which has jurisdiction to review land use decisions of local governments
within the state of Oregon. Compl. ¶ 4–5. The Wetherells argued to LUBA that Oregon law

defines churches as “nonresidential place[s] of worship” and “mandates that any housing
churches provide for their clergy be detached from the churches’ houses of worship.” Compl. ¶
20 (emphasis added). See also ORS § 215.441(1)(g). Plaintiffs responded that the RLUIPA
required local governments to allow churches to use their own land for the free exercise of
religion “to the maximum extent permitted by the terms of” the United States Constitution and
RLUIPA and therefore the Wetherells’ challenge to the Commission’s application grant should
fail. Id. (citing 42 U.S.C. § 2000-cc(3)(g)).
Ultimately, LUBA denied Plaintiffs’ application in August 2019. Compl. ¶ 5; see also
Compl. Ex. C, ECF No. 1-4. The Oregon Court of Appeals affirmed LUBA’s decision without
opinion in October 2019. Compl. Ex. D, ECF No. 1-5. The Oregon Supreme Court denied the
petition for review approximately six months thereafter. Id., Ex. E. ECF No. 1-6.
II. RULIPA’s Enactment and Statutory Framework
Congress enacted RLUIPA to protect the free exercise of religion guaranteed by the First
Amendment from government regulation in the wake of several decisions by the Supreme Court.

See California-Nevada Annual Conference of the Methodist Church v. City & Cty. of San
Francisco, 74 F. Supp. 3d 1144, 1153 (N.D. Cal. 2014). Congress’ first attempt to legislate such
protections followed the Supreme Court’s decision in Employment Div., Dept. of Human Res. of
Or. v. Smith, 494 U.S. 872 (1990) (“Smith”).
In Smith, the Court held that neutral laws of general applicability could prohibit conduct
prescribed by an individual’s religion consistent with the Constitution. Id. The Court determined
that such laws were not subject to heightened scrutiny. Id. at 885. Even where the burden on
religion was substantial, the Court rejected the attempt to require state laws to serve a compelling
interest. Id. at 883–84.

After Smith, Congress enacted the Religious Freedom Restoration Act (“RFRA”), 42
U.S.C. § 2000bb et seq., relying on its enforcement powers under section 5 of the Fourteenth
Amendment. Through RFRA, Congress attempted to codify the pre-Smith free-exercise
jurisprudence by prohibiting the government from “substantially burden[ing] a person’s exercise
of religion” unless “it demonstrates that application of the burden to the person . . . is in
furtherance of a compelling government interest and . . . is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1(a).
The Supreme Court, however, held that RFRA was unconstitutional as applied to state
and local governments because it exceeded Congress’ section 5 powers. See City of Boerne v.
Flores, 521 U.S. 507, 536 (1997). Congress’ section 5 enforcement powers, the Court held, are
limited to enacting legislation that is “remedial” in nature. Id. And such powers were limited to
correcting documented constitutional violations—i.e., legislation required a “congruence and
proportionality between the injury to be prevented or remedied and the means adopted to that
end.” Id. at 520. Because RFRA was “so out of proportion to a supposed remedial or preventive

object,” and the legislative history “lack[ed] examples” of the wrongs sought to be corrected, the
Court deemed unconstitutional Congress’ application of RFRA to state and local governments.
Id. at 530, 532, 536.
In response to the Court’s partial invalidation of RFRA, Congress enacted RLUIPA, 42
U.S.C. § 2000cc. RLUIPA “‘replace[d] the void provisions of RFRA[,] and prohibit[ed] the
government from imposing ‘substantial burdens’ on ‘religious exercise’ unless there exists a
compelling governmental interest and the burden is the least restrictive means of satisfying the
governmental interest.” Guru Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978,
985–86 (9th Cir. 2006) (citing San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,

1033–34 (9th Cir. 2004). Specifically, RLUIPA provides that:
No government shall impose or implement a land use regulation in
a manner that imposes a substantial burden on the religious
exercise of a person, including a religious assembly or institution,
unless the government demonstrates that imposition of the burden
on that person, assembly, or institution—

(A) is in furtherance of a compelling governmental interest;
and

(B) is the least restrictive means of furthering that
compelling governmental interest.

42 U.S.C.A. § 2000cc. “Religious exercise” as defined by RLUIPA is limited to:
(A) In general

The term “religious exercise” includes any exercise of
religion, whether or not compelled by, or central to, a
system of religious belief.

(B) Rule

The use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be
religious exercise of the person or entity that uses or
intends to use the property for that purpose.

42 U.S.C.A. § 2000cc–5. To avoid RFRA’s fate, Congress limited RLUIPA’s reach to only
regulations regarding land use and prison conditions. See id. (citing Cutter v. Wilkinson, 544 U.S.
709, 715, (2005)). Of particular relevance here is RLUIPA § 2000cc-(a)(2)(c), which relates to
substantial burdens in the context of land use regulations. Congress defined the activities that
qualify as “land use” as follows:
The term “land use regulation” means a zoning or landmarking
law, or the application of such a law, that limits or restricts a
claimant’s use or development of land (including a structure
affixed to land), if the claimant has an ownership, leasehold,
easement, servitude, or other property interest in the regulated land
or a contract or option to acquire such an interest.

42 U.S.C. § 2000cc–5. RLUIPA thus applies if “the substantial burden is imposed in the
implementation of a land use regulation or system of land use regulations, under which a
government makes, or has in place formal or informal procedures or practices that permit the
government to make, individualized assessments of the proposed uses for the property involved.”
42 U.S.C. § 2000cc(a)(2)(C).
Under RLUIPA, the religious entity bears the burden of persuasion on whether zoning
laws, or the application of those zoning laws to a particular property, “substantially burdens” its
“exercise of religion.” San Jose Christian Coll., 360 F.3d at 1034. However, Congress directed
that RLUIPA “be construed in favor of a broad protection of religious exercise, to the maximum
extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C.A. § 2000cc–3.
STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of “subject-
matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or

waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court
lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative,
at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(b)(1). Courts
must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3);
see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks
subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a
case, the court must dismiss the complaint, even sua sponte if necessary).
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must
dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must

allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is
liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters,
719 F.2d 1422, 1424 (9th Cir. 1983). Nevertheless, bare assertions that amount to nothing more
than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be
assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009). Rather, to state a plausible claim
for relief, the complaint “must contain sufficient allegations of underlying facts” to support its
legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
LUBA moves to dismiss Plaintiffs’ RLUIPA claims on two principal grounds. First, they
argue that subject matter jurisdiction is nonexistent based on the Rooker-Feldman doctrine.
Second, they assert that Plaintiffs have failed to state a claim based on claim and issue
preclusion. Plaintiffs oppose the motion on both grounds. Because the Court finds that Plaintiffs’

claims are not of the kind that Rooker-Feldman divests from a federal district court’s
jurisdiction, the motion is denied on that ground. Further, because the Court finds neither claim
nor issue preclusion bar Plaintiffs’ claims, the motion is denied as to that argument as well.
A. Rooker-Feldman
The Rooker-Feldman doctrine derives its name from the Supreme Court cases of Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983). In both cases, the Supreme Court held that the district courts did
not have subject-matter jurisdiction over claims seeking to reverse state judicial determinations
because appellate jurisdiction over state actions is left exclusively to the Supreme Court. See
Rooker, 263 U.S. at 415–416; Feldman, 460 U.S. at 482.2 More recently, however, the Supreme

Court has explained that the “narrow ground occupied by Rooker-Feldman ” is confined to
“cases brought by state-court losers complaining of injuries caused by state-court judgments

2 Specifically, in Rooker, the losing party in a state supreme court—who failed to obtain review
in the United States Supreme Court—filed an action in federal district court arguing the state
court ruling was unconstitutional. 263 U.S. at 414–15. The Court rejected the argument and
explained that the “aggrieved litigant [could not] be permitted to do indirectly what he no longer
can do directly.” Id. at 416. Likewise, in Feldman, decided 60 years later, the plaintiffs had been
refused admission to the District of Columbia bar by the District of Columbia Court of Appeals
and sought review in federal district court. 460 U.S. at 474–76. The Court held that to the extent
that the plaintiffs challenged the Court of Appeals’ decisions themselves—as opposed to the bar
admission rules promulgated nonjudicially by the Court of Appeals—their sole avenue of review
was through United States Supreme Court. Id. at 476.
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280,
284 (2005); see also Lance v. Dennis, 546 U.S. 459, 464 (2006) (“[n]either Rooker nor Feldman
elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our
cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule”). In

other words, Rooker-Feldman is not triggered simply by entry of a state court judgment. Id. at
292.
A federal district court must engage in a two-step inquiry to determine whether Rooker-
Feldman forecloses subject matter jurisdiction. First, the Court must determine whether the
action contains a forbidden de facto appeal of a state court decision. Noel v. Hall, 341 F.3d 1148,
1158 (9th Cir. 2003). If the Court determines that the plaintiff’s lawsuit is a de facto appeal, there
is no subject matter jurisdiction over any issue that is “inextricably intertwined” with the state
court judicial opinion. Id. at 1158. “The ‘inextricably intertwined’ language from Feldman is not
a test to determine whether a claim is a de facto appeal, but is rather a second and distinct step in

the Rooker-Feldman analysis.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013). In other
words, “[s]hould the action not contain a forbidden de facto appeal” at the first step, “the Rooker-
Feldman inquiry ends” and there is no need to proceed to the second step. Id.
LUBA assert that this lawsuit is a de facto appeal of the judgment of the Oregon Supreme
Court. Essentially, LUBA contends that because the administrative decision of LUBA contains
“substantive consideration and analysis of RLUIPA issues”—and because Oregon’s appellate
courts did not reverse that decision—Plaintiff’s “requested relief . . . necessarily overturns the
Oregon Supreme Court order upholding LUBA’s ruling.” LUBA’s Mot. Dismiss 6, ECF No. 8.
The Court is unpersuaded for at least three reasons. First, the Supreme Court has
indicated that the Rooker-Feldman doctrine does not apply with the same force to state
administrative agency determinations such as the decision here by LUBA. See Verizon
Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 644 n.3 (2002) (explaining that
Rooker-Feldman “has no application to judicial review . . . , including determinations made by a

state administrative agency”).3
Second, Plaintiffs plead that their express purpose of seeking review in the Oregon
appellate courts was to exhaust administrative remedies. See Compl. ¶ 21 (“CVC appealed
LUBA’s order to the Oregon Court of Appeals . . . in order to exhaust state administrative
remedies.”); see also ORS § 197.850(3)(a) (explaining that the initial process for review of
Board orders begins by “filing a petition in the [Oregon] Court of Appeals”).
Third, and most importantly, even if LUBA could establish that Plaintiffs’ lawsuit is
tantamount to a de facto appeal, given the Oregon appellate court’s total lack of discussion of the
merits of Plaintiff’s RLUIPA claim, it cannot be said that any issue addressed here is

“inextricably intertwined” with the state court decisions or reasoning. Compl. Ex. D (Oregon
Court of Appeals affirming LUBA decision “WITHOUT OPINION”) (capitalization in original),
ECF No. 1-5; Ex. E (Oregon Supreme Court denying petition for review without explanation),
ECF No. 1-6.

3 LUBA’s attempt to distinguish Verizon on the grounds that the administrative decision in that
case had not been subject to judicial review whereas Plaintiffs here “appealed LUBA’s decision
all the way to the Oregon Supreme Court” is unavailing. LUBA’s Mot. Reply 3, ECF No. 13.
LUBA has not directed the Court to any binding authority suggesting that a plaintiff’s exhaustion
of state administrative remedies that includes state court judicial review automatically divests
district courts of jurisdiction based on Rooker-Feldman. Moreover, the non-binding cases
Plaintiff does cite are readily distinguishable. Finally, the Court declines to consider new
arguments not raised in LUBA’s initial motion to dismiss.
A close reading of Bell v. City of Boise is instructive on the issue. In that case, a group of
individuals experiencing homelessness sued the City of Boise in federal court, alleging that
ordinances criminalizing sleeping in public places violated federal law. 709 F.3d at 893. Among
other relief, the plaintiffs in Bell asked the federal court to order expungement of the records of
any individuals unlawfully cited or arrested under the ordinances. Id. at 894. The district court

dismissed the plaintiffs’ claims under Rooker-Feldman. Id. at 895-96.
The Ninth Circuit reversed. Reinstating the plaintiffs’ claims, the court explained that
“[a] de facto appeal exists when ‘a federal plaintiff asserts as a legal wrong an allegedly
erroneous decision by a state court, and seeks relief from a state court judgment based on that
decision.’” Bell, 709 F.3d at 897 (citing Noel, 341 F.3d at 1164). The court emphasized that
“even if a plaintiff seeks relief from a state court judgment, such a suit is a forbidden de facto
appeal only if the plaintiff also alleges a legal error by the state court.” Id. (emphasis added); see
also Kougasian v. TMSL Inc., 359 F.3d 1136, 1140 (9th Cir. 2004) (“[A] plaintiff must seek not
only to set aside a state court judgment; he or she must also allege a legal error by the state court

as the basis for that relief”).
Plaintiffs here do not allege that the state court committed legal error. Rather, they take
issue with the reversal of the parsonage permit granted to them by Douglas County and argue
LUBA specifically violated the standards mandated by Congress in enacting the RLUIPA. See
Compl. ¶¶ 24–31, ECF No. 1. As such, Plaintiffs’ claims arise from LUBA’s allegedly erroneous
application of RLUIPA, not from any legal error committed by the Oregon state courts. Rooker-
Feldman therefore does not deprive this Court of subject matter jurisdiction. LUBA’s motion to
dismiss is denied as to its Rooker-Feldman argument.
B. Preclusive Effect of Prior Decision4
1. Claim Preclusion
LUBA next argues that Plaintiffs’ lawsuit is barred by claim preclusion. LUBA’s Mot.
Dismiss 7–8, ECF No. 8. The parties disagree as to whether federal or state law is the appropriate
source of authority on the issue of claim preclusion. Under the federal test, to properly invoke

claim preclusion the asserting party must establish: “(1) an identity of claims, (2) a final
judgment on the merits, and (3) privity between parties.” Headwaters Inc. v. U.S. Forest Serv.,
399 F.3d 1047, 1052 (9th Cir. 2005) (citation and quotation marks omitted). Similarly, the
Oregon test “generally prohibits a party from relitigating the same claim or splitting a claim into
multiple actions against the same opponent.” Lincoln Loan Co. v. City of Portland, 340 Or. 613,
617–18 (2006). In Lincoln, the Oregon Supreme Court explained:
a plaintiff who has prosecuted one action against a defendant
through to a final judgment binding on the parties is barred by
[claim preclusion] from prosecuting another action against the
same defendant where the claim in the second action is one which
is based on the same factual transaction that was at issue in the
first, seeks a remedy additional or alternative to the one sought
earlier, and is of such a nature as could have been joined in the first
action.

Id. (citation and quotation marks omitted).

4 “For clarity, [this] Opinion refers to ‘claim preclusion’ and ‘issue preclusion’ rather than ‘res
judicata’ and ‘collateral estoppel.’” Gonzales v. California Dep’t of Corr., 739 F.3d 1226, 1230
(9th Cir. 2014) (citation omitted). “Claim preclusion forecloses successive litigation of the very
same claim, whether or not re[-]litigation of the claim raises the same issues as the earlier suit.
Issue preclusion bars successive litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior judgment, even if the issue recurs in
the context of a different claim.” Id. (internal citation and quotation marks omitted).
The Court need not resolve which test applies here, however, because under either
standard LUBA’s argument fails. As Plaintiffs correctly highlight, the issues and claims before
the and this Court are sufficiently distinct as are the parties. Pls.’ Opp’n 18–19, ECF No. 9.
Significantly, LUBA’s decision specifically notes that “the county did not actually apply or rely
on RLUIPA in reaching its decision.” Compl. Ex. D at 7, EFC No. 1-4. Moreover, the Wetherells

initiated the appeal to LUBA from the County Commission in which Plaintiffs intervened.
Compl. ¶ 19. Here, by contrast, Plaintiffs have brought their lawsuit specifically against LUBA.
Compl. ¶¶ 26–31. Although the issues, claims, and parties before LUBA and this Court arguably
overlap in some respects, on this record, Plaintiffs’ claims are not bared by claim preclusion.
2. Issue Preclusion
Next, LUBA asserts that Plaintiffs’ claims are barred by issue preclusion. Mot. Dismiss
8, ECF No. 8. The Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal courts to give
state court judgments the same preclusive effect that the law of the state where the judgment was
rendered would give. Gonzales v. California Dep’t of Corr., 739 F.3d 1226, 1230 (9th Cir. 2014)

(citation omitted). The parties again cite to both federal and state law standards in identifying the
appropriate test for issue preclusion. LUBA relies on the federal test, which requires the party
invoking preclusion to show:
(1) the issue at stake must be identical to the one alleged in the
prior litigation;

(2) the issue must have been actually litigated in the prior
litigation; and

(3) the determination of the issue in the prior litigation must have
been a critical and necessary part of the judgment in the earlier
action.
Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992). Plaintiffs cite federal law, as
well as Oregon caselaw which:
precludes future litigation on a[n] issue only if the issue was
actually litigated and determined in a setting where its
determination was essential to the final decision reached.

Drews v. EBI Companies, 310 Or. 134, 139 (1990) (citation and quotation marks omitted).
As with LUBA’s claim preclusion argument, the Court need not decide the appropriate
standard for applying issue preclusion in the context of RLUIPA challenges to state
administrative decisions because LUBA’s contentions fail under either test. Here, as discussed
above, the issues before LUBA and this Court sufficiently differ so as to render issue preclusion
inappropriate. Moreover, whether Plaintiffs’ RLUIPA claim was actually litigated before LUBA
or in the Oregon appellate courts is at best muddled. The Wetherells’ assignment of error before
LUBA asserted that the Douglas County Planning Commission erroneously applied Oregon law.
See Compl. Ex. D at 8, EFC No. 1-4 (“In the sole assignment of error, petitioners argue that the
county misinterpreted and misconstrued [Oregon law] and failed to make adequate findings
supported by substantial evidence.”). And Plaintiff’s primary response to that argument before
LUBA—in support of the Commission as intervenors—rested on Oregon law, not RLUIPA. See
Compl. Ex. D at 8, EFC No. 1-4. In other words, Plaintiff’s could not have argued to LUBA that
any action of the Commission violated RLUIPA because the Commission initially found in their
favor.5 Finally, given the Oregon appellate courts’ complete lack of discussion in declining to
reverse the Board’s determination, the Court cannot conclude that the RLUIPA issue was
critical, necessary, or essential the judgments entered by those courts sufficient to make issue

5 Plaintiffs did argue RLUIPA raised an alternative ground to affirm the Board’s decision.
Compl. Ex. D at 8, EFC No. 1-4. Given the procedural posture of the parties before LUBA,
however, the Court is not convinced that issue preclusion applies in such a context.
preclusion appropriate in this context. See Compl. Exs. D–E; Clark, 966 F.2d at 1320; Drews,
310 Or. At 139. See also ORS § 197.850(8)–(9) (explaining the limited scope of judicial review
and deference owed to LUBA’s decisions).
In sum, the Court finds that neither claim nor issue preclusion apply to Plaintiffs’ claims.
As such, LUBA’s motion to dismiss is denied as to this issue.

ORDER
For the reasons above, LUBA’s motion to dismiss (ECF No. 8) is denied.
DATED this 27th day of October 2020.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392546. Public record. Not legal advice.