Gould v. Deschutes County

340

Argued and submitted August 30, reversed and remanded on petitions and

cross-petition October 12, 2022

Annunziata GOULD,

Respondent

Cross-Petitioner,

v.

DESCHUTES COUNTY,

Petitioner

Cross-Respondent,

and

20925 HARPER ROAD, LLC,

Respondent

Cross-Respondent.

Annunziata GOULD,

Respondent,

v.

DESCHUTES COUNTY,

Respondent below,

and

20925 HARPER ROAD, LLC,

Petitioner.

Land Use Board of Appeals

2022007; A178915

520 P3d 433

Deschutes County and the applicant for a conditional use permit to allow a

personal-use airport on land zoned for exclusive farm use (EFU) seek judicial

review of an order of the Land Use Board of Appeals (LUBA) remanding the

county’s approval for reconsideration, in part based on LUBA’s interpretation

of a Deschutes County Code provision relating to a requirement that the condi-

tional use by located on “least suitable” farmland, and in part based on LUBA’s

conclusion that the county hearings officer had failed to fully address the inter-

venor’s contentions relating to the compatibility of the use as relating to noise

from the intended aircraft. Intervenor Gould has filed a cross-petition, asserting

that LUBA erred in its determination that the applicant has satisfied the owner-

ship or control requirements for approval of aircraft on a personal-use airport.

Held: LUBA’s order is unlawful in substance because, as contended by the county

and by the applicant, LUBA failed to defer to the county’s plausible construction

of its own code provision relating to the “least suitable” requirement for a condi-

tional use on EFU land. LUBA’s order is also unlawful in substance because, as

contended by intervenor, its determination that the applicant had satisfied the

Cite as 322 Or App 340 (2022) 341

ownership or control requirements for the aircraft intended to be used at the

airport is contrary to statutory requirements.

Reversed and remanded on petitions and cross-petition.

David Doyle argued the cause and filed the briefs for

petitioner-cross-respondent Deschutes County.

J. Kenneth Katzaroff argued the cause and filed the briefs

for petitioner-respondent-cross-respondent 20925 Harper

Road, LLC. Also on the briefs were D. Adam Smith and

Schwabe, Williamson & Wyatt, P.C.

Jennifer M. Bragar argued the cause for respondent-

cross-petitioner. Also on the briefs were Stephen W. Thorpe

and Tomasi Bragar Dubay.

Before Tookey, Presiding Judge, and Egan, Judge, and

Kistler, Senior Judge.

KISTLER, S. J.

Reversed and remanded on petitions and cross-petition.

342 Gould v. Deschutes County

KISTLER, S. J.

The dispute in this Land Use Board of Appeals

(LUBA) case concerns the siting of a personal-use airport

on land in Deschutes County zoned for exclusive farm use

(EFU). The county, through a decision of a county hearings

officer, approved an application submitted by 20925 Harper

Rd, LLC (the applicant), for a conditional use permit to site

a 2,000-foot-long by 75-foot-wide personal-use airstrip on

EFU-zoned property. On intervenor Gould’s appeal, LUBA

remanded the matter to the county. The county and the

applicant have separately petitioned for judicial review,

and Gould has filed a cross-petition. Because we conclude

that LUBA’s order is unlawful in substance, we reverse and

remand on both the petition and the cross-petition. See ORS

197.850(9)(a) (setting out standard of review).1

The subject property is a 122-acre, largely non-

irrigated parcel that the applicant currently uses for alpaca

grazing. The property consists of soil types VI, VII, and VIII.

The applicant sought a permit for a personal-use airport,

which is allowed as a conditional use on EFU land. ORS

215.283(2)(h); Deschutes County Code (DCC) 18.16.030(L).2

The proposed location of the airport would be on land with

type VI soil. The county’s planning department approved

the application, and Gould requested a hearing, challenging

numerous aspects of the approval.

Before discussing the hearings officer’s decision,

we first provide some context for one of the issues that the

1

In considering the petitions, we have disregarded the county’s combined

reply and cross-answering brief, which does not conform to ORAP 4.66(1)(c) and

ORAP 5.70(3). Those rules do not allow a reply brief in a LUBA case except with

leave of the court. See ORAP 5.70(3). The court issued a deficiency notice to the

county with leave to correct the deficiency within 14 days, but no corrected brief

or request for leave to file a reply brief was submitted.

2

ORS 215.283(2)(h) provides a conditional use on EFU land for:

“Personal-use airports for airplanes and helicopter pads, including asso-

ciated hangar, maintenance and service facilities. A personal-use airport, as

used in this section, means an airstrip restricted, except for aircraft emer-

gencies, to use by the owner, and, on an infrequent and occasional basis,

by invited guests, and by commercial aviation activities in connection with

agricultural operations. No aircraft may be based on a personal-use airport

other than those owned or controlled by the owner of the airstrip.”

The county has adopted DCC 18.16.030(L), which mirrors the statutory provision.

Cite as 322 Or App 340 (2022) 343

hearings officer decided. DCC 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.”3 The DCC also requires that all nonfarm

dwellings be located on a parcel or part of a parcel that is

“generally unsuitable” for farm use. DCC 18.16.050(G)(1)(iii).

“Suitability” under the DCC is determined based on mul-

tiple criteria, including terrain, adverse soil or land condi-

tions, drainage and flooding, vegetation, location, and the

size of the tract. Id.4

In 2015, the Deschutes County Board of Com-

missioners issued a decision (the Clough decision) that con-

sidered the relationship between the “generally unsuitable”

and the “least suitable” standards. The board explained

in Clough that the “least suitable” for farm use standard

“applies to all conditional uses allowed in the exclusive

farm use zones” but that its application varies depending on

whether the proposed use will be sited on land that is suit-

able for farm use or on land that is generally unsuitable for

farm use.

When a proposed conditional use is sited on land

that is suitable for farm use—namely, land that “mer-

its Goal 3 protections because [it] contain[s] soils that are

predominantly Class I through Class VI soils or [is] other-

wise suitable for farm use”—the “least suitable” standard

requires that the conditional use be located on the portion of

the property that is “least suitable for the production of farm

crops and livestock.” In that situation, the “least suitable”

3

DCC 18.16.040(A)(3) requires:

“That the actual site on which the [conditional] use is to be located is the

least suitable for the production of farm crops or livestock.”

That standard is not required under state law but is a county standard that

applies to all conditional uses allowed in EFU zones.

4

See also ORS 215.284(2)(b) (providing, in part, that a nonfarm dwelling

may be established on EFU land upon a finding that “[t]he dwelling is situated

upon a lot or parcel or portion of a lot or parcel that is generally unsuitable land

for the production of farm crops and livestock or merchantable tree species, con-

sidering the terrain, adverse soil or land conditions, drainage and flooding, veg-

etation, location and size of the tract”). Other local and state standards use the

phrase “generally unsuitable” similarly. See, e.g., OAR 660-033-0130(4)(c)(B)(i);

DCC 18.16.055.

344 Gould v. Deschutes County

standard serves to minimize the loss of EFU land that could

otherwise be put to farm use.

When, however, a proposed conditional use is sited

on land that is “generally unsuitable” for farm use, that land

“is not of sufficient value for farm use to merit distinguish-

ing between areas that are generally unsuitable.” That is,

if two or more areas are “generally unsuitable” for farm

use, trying to decide whether one area is more unsuitable

for farm use than another does little to advance the pur-

pose of the “least suitable” rule, which is to minimize the

loss of EFU land that is suitable for farm use. It follows, the

board of commissioners ruled in Clough, that siting a pro-

posed conditional use on land that is generally unsuitable

for farm use will categorically satisfy the county’s “least

suitable” requirement. There is no need to go further and

decide whether the proposed site is the most unsuitable of

all the generally unsuitable land.

In this case, the county hearings officer found “that

the portion of the Subject Property to be used for the air-

strip is generally unsuitable for farm crops or livestock.”

Following the board’s decision in Clough, the hearings offi-

cer explained that the proposed site satisfied the county’s

“least suitable” requirement. Not only had the board

explained in Clough that its “decision is intended to provide

guidance to County hearings officers and staff regarding

the proper application of the least suitable criterion,” but the

hearings officer concluded that the board’s interpretation of

its own rule in Clough directly controlled the application

of the “least suitable” rule in this case. Because the hear-

ings officer agreed with the county’s determination that the

conditional use would be sited on land that was “generally

unsuitable” and, thus, was “least suitable,” he upheld the

approval.

The board of county commissioners declined to con-

sider Gould’s appeal, and the hearings officer’s order became

final.5 Gould then appealed to LUBA, which reversed the

county’s determination. Among other things, LUBA dis-

agreed with the hearings officer’s determination that the

5

The parties offer competing explanations as to why the board declined to

hear Gould’s appeal. We need not resolve that dispute to decide this case.

Cite as 322 Or App 340 (2022) 345

“least suitable” standard in DCC 18.16.040(A)(3) had been

met. Relying on Gutoski v. Lane County, 141 Or App 265,

268, 917 P2d 1048, rev den, 324 Or 18 (1996), LUBA ruled

initially that it need not defer to the hearings officer’s inter-

pretation of that standard. Gould v. Deschutes County,

___ Or LUBA ___, ___ (June 8, 2022) (slip op at 3). LUBA

explained that, because the county board of commissioners

had not reviewed the hearings officer’s order in this case,

there was no basis to impute the hearings officer’s interpre-

tation to the board of commissioners and, thus, no reason to

defer to the hearings officer’s interpretation. Id.

Having found that it need not defer to the hear-

ings officer’s interpretation of the “least suitable” standard,

LUBA quoted its opinion in Central Oregon Landwatch v.

Deschutes County, 78 Or LUBA 136, 147, aff’d, 295 Or App

451, 438 P3d 855 (2018), which, in turn, quoted another hear-

ings officer’s interpretation of the “least suitable” standard:

“ ‘Use of the word “least” indicates that there is only one

site on a subject parcel that can meet the criterion. * * * The

plain meaning of this criterion requires that the proposed

conditional use be located on the single site on the subject

property that is least suitable. On the other hand, the term

“generally unsuitable” is broader and may encompass large

swaths of land if it is all generally unsuitable for farm land.

“ ‘Since, by definition, every property will have a site

that is the least suitable for farm production, the question

is whether other sites on the subject property are less suit-

able than the proposed site.’ ”

Gould, ___ Or LUBA at ___ (slip op at 3) (quoting Central

Oregon Landwatch, which in turn was quoting the hearings

officer’s reasoning in that case).6 After quoting that passage

6

In Central Oregon Landwatch, no one argued before LUBA that the hear-

ings officer in that case had erred in interpreting the county’s “least suitable”

standard. See 78 Or LUBA at 147-48. Rather, the parties in Landwatch appear to

have taken the hearings officer’s interpretation of the “least suitable” standard

as a given and disputed only whether a proposed nonfarm dwelling was sited on

the least suitable part of a parcel that was generally unsuitable for farm use.

See id. In Coast Range Conifers, the Supreme Court declined to view comparable

statements as having precedential weight, which suggests that the hearings offi-

cer’s analysis that LUBA recited in Central Oregon Landwatch is relevant for its

persuasive value only. See Coast Range Conifers v. Board of Forestry, 339 Or 136,

148-49, 117 P3d 990 (2005).

346 Gould v. Deschutes County

from Central Oregon Landwatch, LUBA added that the hear-

ings officer’s interpretation of the least suitable standard in

this case was incorrect because it “improperly insert[ed] the

phrase ‘generally unsuitable’ into the [least suitable] stan-

dard.” Gould, ___ Or LUBA at ___ (slip op at 3).

After determining that the interpretation of the “least

suitable” standard quoted in Central Oregon Landwatch was

either the only permissible interpretation or the preferred

interpretation of that standard, LUBA concluded that

“[w]hether the entire property [in this case] is generally

unsuitable for the production of crops or livestock is not the

applicable inquiry for determining the least suitable portion

of the property for farm use.” Id. LUBA accordingly ruled:

“On remand, the hearings officer should consider other

sites on the property identified during the proceedings

below and determine the location of the least suitable site

on the property for the production of crops or livestock, con-

sidering other factors such as, but not limited to, soil capa-

bility; the location of roads, dwellings, and farm operations;

as well as any requirements necessary for the airport to

function as intended.”

Id. (slip op at 4).

Both the county and the applicant have petitioned

for judicial review of LUBA’s order and have assigned error

to its ruling interpreting the “least suitable” standard.7 They

contend that: (1) the board’s interpretation of the “least suit-

able” standard in Clough, which the hearings officer applied

in this case, is plausible and (2) LUBA erred in failing to

defer to that plausible interpretation. See City of Medford

v. Siporen, 349 Or 247, 261, 243 P3d 776 (2010) (requiring

LUBA to defer to a county’s plausible interpretation of its

own land use rules). Gould responds that, because the hear-

ings officer’s (and Clough’s) interpretation of the “least suit-

able” rule is inconsistent with the plain text of that rule,

it does not warrant any deference even if deference would

7

Gould argues that the county failed to preserve its objection to that ruling.

We need not decide whether Gould’s argument is correct. The applicant preserved

an objection to the ruling, which is sufficient to put the issue before us. See Just

v. City of Lebanon, 193 Or App 132, 135 n 2, 88 P3d 312 (2004) (reaching that

conclusion in the context of standing).

Cite as 322 Or App 340 (2022) 347

otherwise be due. Additionally, she argues that, even if

the hearings officer’s interpretation of the “least suitable”

standard were plausible, LUBA is obligated to defer to the

county board of commissioners’ plausible interpretation of

the county’s rule, not a hearing officer’s interpretation. We

review LUBA’s order to determine whether it is unlawful in

substance. ORS 197.850(9)(a).

We begin with the first issue that the county and

the applicant raise—whether the hearings officer’s interpre-

tation of the “least suitable” standard is plausible. In under-

taking that inquiry, we are mindful that our standard of

review is highly deferential. ORS 197.829(1) requires LUBA

to defer to a local government’s interpretation of its own

land use regulations unless the interpretation is inconsis-

tent 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, 398 P3d 478 (2017). The “existence of a stronger or more

logical interpretation does not render a weaker interpreta-

tion implausible.” Mark Latham Excavation, Inc. v. Deschutes

County, 250 Or App 543, 555, 281 P3d 644 (2012); see also

Gould v. Deschutes County, 272 Or App 666, 684-85, 362 P3d

679 (2015) (“Merely because a stronger or more logical inter-

pretation exists does not make a local government’s inter-

pretation implausible.”). As the court explained in Siporen,

“when a local government plausibly interprets its own land

use regulations by considering and then choosing between

or harmonizing conflicting provisions, that interpretation

must be affirmed, as held in [Clark v. Jackson County, 313

Or 508, 836 P2d 710 (1992),] and provided in ORS 197.829

(1)(a), unless the interpretation is inconsistent with all of

the ‘express language’ that is relevant to the interpreta-

tion, or inconsistent with the purposes or policies under-

pinning the regulations.”

349 Or at 259 (emphasis in original).

In arguing that the hearings officer’s interpreta-

tion is inconsistent with the plain language of the “least

suitable” rule and thus not plausible, Gould adopts two

propositions that LUBA set out in its opinion in this case.

348 Gould v. Deschutes County

First, LUBA explained (and Gould agrees) that the use

of the term “least” in the “least suitable” rule means that

“there is only one site on a subject parcel that can meet the

criterion.” Gould, ___ Or LUBA at ___ (slip op at 3) (inter-

nal quotation marks omitted). That observation led LUBA

to disagree with the hearings officer that a parcel of land

that is “generally unsuitable” for farm use can contain more

than one site that will satisfy the “least suitable” standard.

Second, LUBA faulted the hearings officer for “improperly

insert[ing] the phrase ‘generally unsuitable’ into the [least

suitable] standard.” Id. Gould concludes that, because the

hearings officer’s (and Clough’s) interpretation of the “least

suitable” rule is squarely inconsistent with the rule’s plain

text, it is not a plausible interpretation of the rule.

One difficulty with Gould’s textual argument is

that it focuses on the “least suitable” rule without asking

how that rule and the “generally unsuitable” rule should

be interpreted together; specifically, how should the “least

suitable” rule be interpreted when a conditional use is pro-

posed to be sited on land that is “generally unsuitable” for

farm use? As we read Clough and the hearings officer’s

order following it, neither the county board nor the hearings

officer impermissibly inserted the phrase “generally unsuit-

able” into the “least suitable” rule; rather, Clough and the

hearings officer used the phrase “generally unsuitable” in

seeking to read two potentially conflicting rules—the “least

suitable” rule and the “generally unsuitable” rule—together.

That is precisely what the Supreme Court has explained a

local government may and should do. See Siporen, 349 Or

at 259 (recognizing that, in interpretating its own land

use regulations, a local government may sometimes be

required to “choos[e] between or harmoniz[e] conflicting pro-

visions”).

Nor can we say, as Gould would, that Clough’s rec-

onciliation of those two rules is at odds with the plain text of

the “least suitable” rule. Gould’s textual argument focuses

on the word “least” but overlooks the word “suitable.” As

the board pointed out in Clough, the “least suitable” rule

assumes that a proposed conditional use will be sited on

land that is “suitable for the production of farm crops and

livestock.” When, however, a proposed conditional use is

Cite as 322 Or App 340 (2022) 349

sited on land that is “generally unsuitable” for farm use,

the board reasonably determined in Clough that the least

suitable rule does not require an applicant to prove that

one parcel of generally unsuitable land is more unsuitable

than another parcel of generally unsuitable land. Given the

text and the purposes of the “least suitable” rule, the board

reasonably determined that the marginal value of such an

inquiry is minimal, if not nonexistent.

It may well be that LUBA and Gould’s interpreta-

tion of the “least suitable” rule is a plausible one. However,

the board’s interpretation of the “least suitable” rule in

Clough, which the hearings officer followed, is an equally

plausible, if not a preferable, interpretation because it rea-

sonably reconciles both the “least suitable” rule and the

“generally unsuitable” rule. Having reached that conclusion,

we turn to the other issue that the county and the applicant

raise—whether LUBA should have deferred to the hearings

officer’s interpretation of the “least suitable” rule.

On that issue, LUBA reasoned that, although it

would owe deference to the county board of commissioners’

permissible interpretation of its own land use rule, it owed

no deference to the hearings officer’s interpretation of the

county’s rule. That was so, LUBA concluded, even though

the hearings officer in this case was merely applying the

county board of commissioners’ interpretation of the county’s

rule in Clough.

If, as no one disputes, LUBA must defer to a county’s

plausible interpretation of its own rule, it is difficult to see

why the result should be any different when, as in this case,

a hearings officer’s order involves nothing more than a

straightforward application of the county’s plausible inter-

pretation of its own rule. This is not a case in which a hear-

ings officer interpreted and applied a county rule that the

county had never interpreted. Nor is it a case in which the

hearings officer applied the county’s interpretation of its

rule in such a novel or unexpected manner that the hear-

ings officer’s application went beyond what the county had

intended. Rather, this case involved nothing more than a

run-of-the-mill application of the county board of commis-

sioners’ interpretation of the county’s rule in Clough.

350 Gould v. Deschutes County

LUBA, however, reasoned that, under our decision

in Gutoski, no deference was due the hearings officer’s

application of the county’s interpretation of its own rule. As

LUBA correctly noted, we explained in Gutoski that LUBA

must defer to a local governing body’s permissible interpre-

tation of its local land use legislation, not to the interpreta-

tions of hearings officers or other subordinate local officials.

141 Or App at 268 (citing Gage v. City of Portland, 319 Or

308, 877 P2d 1187 (1994)). And Gutoski held that, when a

county board of commissioners merely declines to review an

order of a county hearings officer, that fact does not warrant

imputing the hearings officer’s construction to the board of

commissioners. Id.

In Gutoski, however, the hearings officer was not

following a preexisting county construction of a county code

provision, as the hearings officer was in this case. Gutoski

thus provided no occasion to consider, as this case does,

whether a hearings officer’s application of a county govern-

ing body’s preexisting construction of its own land use rule

is entitled to deference. The distinction makes a difference.

In Gage, the Supreme Court explained that there

are “two fundamental principles” at play in the rule of def-

erence that the court articulated in Clark:

“First, deference is due a local governing body’s interpre-

tation of its own ordinance, because that governing body

is composed of the politically accountable representa-

tives elected by the community affected by the ordinance.

Second, and perhaps more important, deference is due a

local governing body’s interpretation of its own ordinance,

because that governing body is the legislative body respon-

sible for enacting the ordinance and may be assumed to

have a better understanding than LUBA or the courts of

the intended meaning of the ordinance.”

Gage, 319 Or at 316-17. For both those reasons, Gage

explained, deference is not warranted when the decision is

made by a county hearings officer rather than by a board of

commissioners. Id. at 317.

In this case, however, the hearings officer was

applying the county board of commissioners’ interpretation

of the “least suitable” rule, and the two reasons that the

Cite as 322 Or App 340 (2022) 351

court articulated in Gage for deferring to the county’s per-

missible interpretation of its own rule apply equally to the

hearings officer’s straightforward application of the county’s

interpretation in Clough. Gould offers no persuasive reason

why we should conclude otherwise. We accordingly hold that

LUBA’s failure to defer to the county’s construction of DCC

18.16.040(A)(3), which, as we have determined, is plausible,

was unlawful in substance. See Siporen, 349 Or at 261 (“A

LUBA decision is “ ‘unlawful in substance’ ” (in at least one

way) if, in contravention of the standard of review set out

at ORS 197.829(1), LUBA substitutes its own interpretation

of a local government’s land use regulations for a plausi-

ble interpretation of those regulations offered by the local

government.”).

The applicant’s petition for judicial review raises

three additional assignments of error, to which we now turn.8

All three assignments of error concern DCC 18.128.015(B),

which requires the hearings officer to determine the “com-

patibility” of the applicant’s “proposed use with existing and

projected uses on surrounding properties.”9 Before the hear-

ings officer, Gould challenged the county’s compatibility

determination regarding noise that she anticipated one of

the applicant’s two planes, a De Havilland, would generate.

8

We reject Gould’s contention that, technically, the applicant, 20925 Harper

Rd, LLC, did not “appear” before LUBA because of a minor misspelling of its

name in the appeal to LUBA. The typographical error did not change the appli-

cant’s identity or party status.

9

DCC 18.128.015 provides additional standards for most conditional uses:

“Except for those conditional uses permitting individual single family

dwellings, conditional uses shall comply with the following standards in

addition to the standards of the zone in which the conditional use is located

and any other applicable standards of the chapter:

“A. The site under consideration shall be determined to be suitable for

the proposed use based on the following factors:

“1. Site, design and operating characteristics of the use;

“2. Adequacy of transportation access to the site; and

“3. The natural and physical features of the site, including, but not lim-

ited to, general topography, natural hazards and natural resource values.

“B. The proposed use shall be compatible with existing and projected uses

on surrounding properties based on the factors listed in DCC 18.128.015(A).

“C. These standards and any other standards of DCC 18.128 may be met

by the imposition of conditions calculated to ensure that the standard will be

met.”

352 Gould v. Deschutes County

The hearings officer rejected Gould’s challenge, but LUBA

reversed, agreeing with Gould that the hearings officer had

not adequately addressed that issue. In its third and fourth

assignments of error, the applicant challenges LUBA’s

ruling.

The record shows that the hearings officer was

aware of the parties’ competing views about the noise a De

Havilland can generate on takeoff and landing. The hear-

ings officer did not separately address the issue of noise

regarding the De Havilland. However, he determined, in

essence, that any adverse impact from the combined noise

of the two aircraft taking off and landing from the proposed

strip was de minimis:

“Based on the minor and temporary addition of noise asso-

ciated with the proposed airstrip, I find that the use is com-

patible with other uses on surrounding properties as well.

With less than one takeoff and landing per day, each climb-

ing or descending over adjacent properties for 11 seconds or

less, it is likely that many users of the surrounding prop-

erties will not even observe the operation. The total take-

off and landing time when these impacts exist is less than

two hours spread out over the course of [an] entire year. I

agree with [intervenor] that this is a de minimis impact

and, therefore, compatible with those surrounding lands.”

Although Gould argued and LUBA agreed that the

hearings officer’s finding should have addressed the noise

generated by the De Havilland separately, we conclude that

the hearings officer’s order is sufficient. The finding of a

de minimis effect adequately addressed both the issues of

frequency and level of noise from both planes taking off and

landing on the proposed airstrip. LUBA erroneously con-

cluded otherwise.

In its fifth assignment of error, the applicant argues

that LUBA erroneously concluded that the hearings officer’s

findings—that the proposed airstrip is compatible with

golden eagle nesting sites on the surrounding properties—

were deficient in one respect and questionable in another.10

10

DCC 18.128.015(B) required the hearings officer to consider whether the

applicant’s proposed use is compatible with “existing and projected uses” on sur-

rounding properties. “Existing and projected uses” is not limited to environmen-

tal uses, such as golden eagle nesting sites. However, that is the one use on which

Cite as 322 Or App 340 (2022) 353

The applicant contends that the county has determined

that golden eagles and their nesting sites are a resource

under Goal 5 of the land use laws, that personal-use air-

ports are a potentially competing use, and that the county

has adopted an overlay zone that ensures, as a matter of

law, that the applicant’s proposed airstrip will be compatible

with the golden eagle nesting sites for the purposes of DCC

18.128.015(B).

As we read LUBA’s opinion, it concluded that the

hearings officer’s findings did not address the applicant’s

Goal 5 argument, and it remanded to the hearings officer to

do so.11 Additionally, LUBA explained that the single com-

patibility issue that the hearings officer did discuss—the

ability to get an incidental take permit under federal law

if the applicant’s personal-use airport resulted in death or

injury to a golden eagle—provided no reason to think that

the airport was compatible with the nesting sites on sur-

rounding land. We cannot say that LUBA erred. To be sure,

LUBA’s resolution of this issue avoided deciding the appli-

cant’s claim that the county’s Goal 5 program establishes,

as a matter of law, that its proposed airstrip is compatible

with the golden eagle nesting sites. However, we cannot say

that it was error to allow the hearings officer to address

that issue in the first instance, especially since the hearings

officer’s reliance on the ability to obtain an incidental take

permit seems, as LUBA explained, at odds with the compat-

ibility determination the hearings officer was charged with

making.

Having considered the county and the applicant’s

petitions for review, we turn to Gould’s cross-petition. ORS

215.283(2)(h) provides that a personal-use airport is

“restricted, except for aircraft emergencies, to use by the

owner, and, on an infrequent and occasional basis, by

the parties have focused. We observe, as LUBA noted, that the applicant has

not disputed that the phrase “existing and projected uses” in DCC 18.128.015(B)

includes golden eagle nesting sites.

11

LUBA’s instructions on remand can be read in more than one way, but we

conclude, as does Gould, that LUBA instructed the hearings officer to explain on

remand how much weight the county’s Goal 5 program should be given in deter-

mining whether the proposed personal-use airport is compatible with the golden

eagle nesting sites.

354 Gould v. Deschutes County

invited guests, and by commercial aviation activities in

connection with agricultural operations. No aircraft may

be based on a personal-use airport other than those owned or

controlled by the owner of the airstrip.”

(Emphasis added.) Under that statute, two questions are

relevant in deciding whether planes may be based on a per-

sonal-use airstrip: Who owns the airstrip and who owns or

controls the planes. Only if the entity that owns the airstrip

also owns or controls the aircraft based there is the statute

satisfied.

In this case, 20925 Harper Rd, LLC, holds title to

the land on which the airstrip is to be sited. Two other, sep-

arate LLCs own the two planes to be based on the airstrip.

The Willow Trust, a revocable trust, is the sole member of

each of the three LLCs, and Alexander Polvi is the trustor

and the trustee of the Willow Trust.

Given that structure, Gould argued before the hear-

ings officer that 20925 Harper Rd, LLC, owns the airstrip12

but that 20925 Harper Rd, LLC, neither owns nor controls

the two planes to be based there. The hearings officer dis-

agreed, reasoning:

“I find that, based on the current corporate structure, * * *

Mr. Polvi is the individual that controls the aircraft and he

also owns the airstrip.”

That is, the hearings officer concluded that ORS 215.283(2)(h)

was satisfied because the person who owns the airstrip

(Polvi) also controls the aircraft to be based there. The hear-

ings officer recognized, however, that the “current corporate

structure” could change in the future or, alternatively, that

other individuals or entities could become members of the

LLCs or trustees of Willow Trust. Accordingly, the hearings

officer conditioned approval of the site on a requirement that

the existing corporate structure remain unchanged or that,

if the corporate structure changed, only aircraft owned or

controlled by the owner of the airstrip be based there.

12

Gould’s argument assumes that the entity that owns the property on

which the airstrip will be sited “owns the airstrip,” as that phrase is used in ORS

215.283(2)(h). That assumption may not always be correct; however, this record

provides no basis for questioning Gould’s assumption.

Cite as 322 Or App 340 (2022) 355

Before LUBA, Gould argued, among other things,

that the hearings officer erred because Polvi does not own

the airstrip; she contended that 20925 Harper Rd, LLC,

does. LUBA disagreed, reasoning:

“[T]he plain, ordinary meaning of the word ‘owner’ includes

‘one that owns : one that has the legal or rightful title

whether the possessor or not.’ Webster’s Third New Int’l

Dictionary 1612 (unabridged ed 2002) (boldface in original;

emphasis added). Accordingly, the hearings officer correctly

interpreted ORS 215.283(2)(h) to conclude that the limited

liability company ‘owner of the airstrip’ is the same as the

limited liability companies that ‘own[ ] or control[ ]’ the air-

craft because all are owned by the same revocable trust of

which Polvi is the sole trustee, as explained by intervenor

during the proceedings before the hearings officer.”

(Emphasis LUBA’s.) LUBA concluded, in essence, that the

separate LLC identities of the aircraft and the airport could

be disregarded because Willow Trust, which is the sole

member of the various LLCs, owns both the airstrip and the

aircraft.

On judicial review, Gould repeats her claim that

neither Polvi nor Willow Trust owns the proposed airstrip.

Rather, 20925 Harper Rd, LLC, is the owner. Relatedly,

Gould argues that 20925 Harper Rd, LLC, does not own the

two aircraft. She also asserts, in a single sentence and with-

out any explanation, that 20925 Harper Rd, LLC, has not

established that it controls the aircraft. For those reasons,

Gould contends, LUBA erred in authorizing the two aircraft

to be based at the proposed airstrip. The applicant responds

that ORS 215.283(2)(h) does not specify the type of owner

or exclude “indirect ownership” such as that present here,

where Polvi ultimately is the owner of all the properties.

We agree with Gould that LUBA erred. As the dic-

tionary definition cited by LUBA shows, an “owner” is the

entity that holds title to the property. The titles to the land

and to the two aircraft are held by three separate LLCs

that, under Oregon law, are legally able to own property

and hold title. ORS 63.077(2)(b) (listing among the powers

of an LLC the ability to “[p]urchase, take, receive, lease, or

otherwise acquire, own, hold, improve, use and otherwise

deal in or with real or personal property or any interest in

356 Gould v. Deschutes County

real or personal property, wherever situated”). As the sole

member of each of the three LLCs, Willow Trust does not

have an ownership interest in the LLCs’ real or personal

property. See ORS 63.239 (“A membership interest is per-

sonal property. A member is not a co-owner of and has no

interest in specific limited liability company property.”). It

follows that, under Oregon law, neither Willow Trust nor

Polvi owns either the airstrip or the aircraft.13

We do not see any basis in either the text or context

of ORS 215.283(2)(h) for saying that the terms “own” and

“owner” should not be given their ordinary meaning. We

accordingly agree with Gould that neither Polvi nor Willow

Trust owns the proposed airstrip or the two planes. Rather,

20925 Harper Rd, LLC, owns the proposed airstrip, but it

does not own the two aircraft that will be based there. The

two separate LLCs do. LUBA’s order concluding otherwise is

unlawful in substance. See Mountain West Investment Corp.

v. City of Silverton, 175 Or App 556, 559, 30 P3d 420 (2001)

(“A LUBA order is unlawful in substance ‘if it represented a

mistaken interpretation of the applicable law.’ ”).

The remaining question under the statute is whether

20925 Harper Rd, LLC, the owner of the proposed airstrip,

controls the two aircraft. Neither the hearings officer nor

LUBA addressed that issue. It may be that Polvi, through

Willow Trust, controls each of the three separate LCCs. The

question, however, that the statute poses—whether 20925

Harper Rd, LLC, controls the other two LLCs or the planes

that those LLCs own—presents a separate, distinct issue.

Neither Gould nor the applicant has briefed that issue in

any substantial way, and we conclude that the better course

is to remand that issue so that the parties can brief and

LUBA can resolve it in the first instance.

Reversed and remanded on petitions and cross-

petition.

13

Consistently, in an action against one or all of the LLCs, ORS 63.165(1)

would shield the trust and derivatively Polvi from vicarious liability for the LLCs’

torts. See Cortez v. Nacco Materials Handling Group, 356 Or 254, 264-69, 337

P3d 111 (2014) (explaining when ORS 63.165(1) will shield the sole member of a

member managed LLC from liability).