Central Oregon LandWatch v. Deschutes County

439

Argued and submitted April 10; on petition, reversed, on cross-petition,

affirmed, June 14, 2023

CENTRAL OREGON LANDWATCH,

Respondent

Cross-Petitioner,

v.

DESCHUTES COUNTY,

Respondent

Cross-Respondent,

and

Michael GEMMET,

Petitioner

Cross-Respondent.

Land Use Board of Appeals

2022087; A180668

533 P3d 67

Petitioner Gemmet seeks judicial review of an order of the Land Use Board of

Appeals (LUBA) that remanded to Deschutes County a declaratory ruling that a

use had been “initiated” on the property acquired by Gemmet’s company. Central

Oregon LandWatch (COLW), on cross-petition, seeks judicial review of the same

order, arguing that LUBA erred in dismissing COLW’s challenge to the hearings

officer’s authority to consider Gemmet’s application. Held: On the cross-petition,

COLW did not preserve for review its proffered construction of the Deschutes

County Code that a use is not “initiated” until it is formally determined by the

county to be initiated, and LUBA did not err with respect to the argument raised

by COLW at LUBA. On the petition, LUBA erred in remanding the hearings offi-

cer’s decision, because the issue of whether the guest ranch use was abandoned

sometime after the use was “initiated” was beyond the scope of the specific pro-

ceeding brought, and irrelevant to the initiation determination.

On petition, reversed; on cross-petition, affirmed.

Lisa Andrach argued the cause for petitioner-cross-

respondent Michael Gemmet. Also on the briefs was Fitch

& Neary, PC.

Carol Macbeth argued the cause and filed the brief for

respondent-cross-petitioner Central Oregon LandWatch.

No appearance for respondent-cross-respondent Deschutes

County.

440 Central Oregon LandWatch v. Deschutes County

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

HELLMAN, J.

On petition, reversed; on cross-petition, affirmed.

Cite as 326 Or App 439 (2023) 441

HELLMAN, J.

Petitioner Gemmet seeks judicial review of an order

of the Land Use Board of Appeals (LUBA) that remanded

to Deschutes County a declaratory ruling that a use had

been “initiated” on the property acquired by Gemmet’s

company. Central Oregon LandWatch (COLW), on cross-

petition, seeks judicial review of the same order, arguing

that LUBA erred in dismissing COLW’s challenge to the

hearings officer’s authority to consider Gemmet’s applica-

tion. We review LUBA’s order to determine if it is “unlawful

in substance or procedure.” ORS 197.850(9)(a). Addressing

COLW’s cross-petition first, we conclude that LUBA did not

err with respect to the argument raised by COLW at LUBA.

In addition, we do not address COLW’s proffered construc-

tion of the Deschutes County Code (DCC) that COLW now

urges us to adopt, because COLW did not preserve that

issue below. Turning to Gemmet’s petition, we agree with

Gemmet that LUBA erred in remanding the hearings offi-

cer’s decision, because the issue of whether the guest ranch

use was abandoned sometime after the use was “initiated”

was beyond the scope of the specific proceeding brought,

and irrelevant to the initiation determination. Accordingly,

we reverse on Gemmet’s petition and affirm on COLW’s

cross-petition.

As background to understand the facts and LUBA’s

order, we start by setting out the applicable law. Under OAR

660-033-0140(1), a discretionary decision that approves a

“proposed development on agricultural or forest land out-

side an urban growth boundary * * * is void two years from

the date of the final decision if the development action is

not initiated in that period.” Deschutes County has imple-

mented that rule in DCC 22.36.010(B)(1), which provides

that “a land use permit is void two years after the date the

discretionary decision becomes final if the use approved in

the permit is not initiated within that time period.”1 DCC

22.36.010(D)(1) provides that “[a] determination of whether

1

Notably, DCC 22.36.010

“does not apply to * * * [t]hose determinations made by declaratory ruling

* * * that involve a determination of the legal status of a property, land use

or land use permit rather than whether a particular application for a spe-

cific land use meets the applicable standards of the zoning ordinance. Such

442 Central Oregon LandWatch v. Deschutes County

a land use has been initiated shall be processed as a declar-

atory ruling.” With respect to determining whether a land

use has been initiated, the DCC also provides:

“Notwithstanding any condition to the contrary in an

individual approval, a determination may be made for

any land use approval described in DCC 22.36.010(B) * * *,

under DCC 22.36.010(D)(1) as to whether a use was ‘ini-

tiated’ within the duration of the land use approval. If it

is determined that the use was ‘initiated’ during the life

of the permit, the permit will be considered to be a valid

existing permit and any land use described in the permit

will be deemed to be authorized under the County’s ordi-

nances, subject to any applicable revocation provisions.”

DCC 22.36.025(B). What must be shown for initiation of use

under a permit is set out in DCC 22.36.020, the elements of

which are not at issue in this judicial review.2

Finally, the code also sets out the declaratory rul-

ing process under DCC 22.40. What types of determinations

may be sought through the declaratory ruling process are

limited, and include, among other things, “[d]etermining

whether an approval has been initiated or considering the

revocation of a previously issued land use permit, quasi-

judicial plan amendment or zone change” and “[d]etermin-

ing the validity and scope of a nonconforming use.” DCC

22.40.010(A)(3), (4). That provision also provides that “[i]n

determinations, whether favorable or not to the applicant or landowner, shall

be final, unless appealed, and shall not be subject to any time limits.”

DCC 22.36.010(A)(2)(a).

2

DCC 22.36.020 provides:

“A. For the purposes of DCC 22.36.020, development action undertaken

under a land use approval described in DCC 22.36.010, has been ‘initiated’ if

it is determined that:

“1. The proposed use has lawfully occurred;

“2. Substantial construction toward completion of the land use approval

has taken place; or

“3. Where construction is not required by the approval, the conditions

of a permit or approval have been substantially exercised and any failure to

fully comply with the conditions is not the fault of the applicant.

“B. For the purposes of DCC 22.36.020, ‘substantial construction’ has

occurred when the holder of a land use approval has physically altered the

land or structure or changed the use thereof and such alteration or change

is directed toward the completion and is sufficient in terms of time, labor or

money spent to demonstrate a good faith effort to complete the development.”

Cite as 326 Or App 439 (2023) 443

all cases, as part of making a determination or interpreta-

tion the Planning Director (where appropriate) or Hearings

Body (where appropriate) shall have the authority to declare

the rights and obligations of persons affected by the ruling.”

DCC 22.40.010(A). However, that authority is limited by

DCC 22.40.010(B), (C), and (D), which provide:

“B. A declaratory ruling shall be available only in

instances involving a fact-specific controversy and to

resolve and determine the particular rights and obligations

of particular parties to the controversy. Declaratory pro-

ceedings shall not be used to grant an advisory opinion.

Declaratory proceedings shall not be used as a substitute

for seeking an amendment of general applicability to a leg-

islative enactment.

“C. Declaratory rulings shall not be used as a substi-

tute for an appeal of a decision in a land use action or for

a modification of an approval. In the case of a ruling on a

land use action a declaratory ruling shall not be available

until six months after a decision in the land use action is

final.

“D. The Planning Director may refuse to accept and

the Hearings Officer may deny an application for a declar-

atory ruling if:

“1. The Planning Director or Hearings Officer deter-

mines that the question presented can be decided in

conjunction with approving or denying a pending land

use action application or if in the Planning Director or

Hearings Officer’s judgment the requested determination

should be made as part of a decision on an application for

a quasi-judicial plan amendment or zone change or a land

use permit not yet filed; or

“2. The Planning Director or Hearings Officer deter-

mines that there is an enforcement case pending in district

or circuit court in which the same issue necessarily will be

decided as to the applicant and the applicant failed to file

the request for a declaratory ruling within two weeks after

being cited or served with a complaint.”

To obtain a declaratory ruling, the code requires

that “[e]ach application for a declaratory ruling shall

include the precise question on which a ruling is sought.

The application shall set forth whatever facts are relevant

444 Central Oregon LandWatch v. Deschutes County

and necessary for making the determination and such other

information as may be required by the Planning Division.”

DCC 22.40.020(B). Finally, as relevant here, DCC 22.40.040

provides that a declaratory ruling is conclusive, and an

applicant cannot reapply for a ruling on the same question.

The facts about the land use approval at issue here

are undisputed and were sufficiently set out by LUBA:

“The subject property is an approximately 155-acre tract

of land located near the city of Sisters, with the Deschutes

National Forest adjacent to the north, west, and southeast.

The subject property is zoned Exclusive Farm Use-Sisters/

Cloverdale (EFU-SC).

“In 2002, the county approved a conditional use permit

(CUP) for a guest ranch on the subject property. * * *

“The county approved a series of extensions of the CUP,

with the last extension ending on June 26, 2007. Some of

the infrastructure and cabins for the guest ranch were

partially constructed pursuant to the extended CUP. As

we understand it, development of the guest ranch under

the CUP may have been discontinued between 2009 and

2021. Running Waters Properties of Oregon LLC (Running

Waters) acquired the property in 2021. [Gemmet] is the

agent, owner, and managing member of Running Waters.

[Gemmet] submitted a county land use application in which

they stated that they were seeking a ‘Declaratory Ruling

for an Initiation of Use.’ ”

(Footnotes and record citations omitted.)

The county hearings officer held a public hearing

on Gemmet’s application for an initiation of use and issued

a declaratory ruling that the guest ranch had been “initi-

ated.” In making that determination, as relevant here, the

hearings officer addressed two issues raised by opponents

in that proceeding. The first issue related to COLW’s argu-

ment that the county could not issue a declaratory ruling

that the use had been initiated because the conditions in the

CUP had not been fulfilled. The hearings officer determined

that the arguments were outside the scope of the proceed-

ing, stating:

“This action is a Declaratory Ruling limited to the scope

of the question that is presented in the Application. This

Cite as 326 Or App 439 (2023) 445

Decision, by approving the Application, is not approving the

Guest Ranch. Rather, the Decision is determining solely

that the use already approved in the CUP Approval has

been initiated. The approval of the Guest Ranch already

occurred, and DCC 22.40.010(C) expressly prohibits using

the Declaratory Ruling as an appeal of an earlier land use

decision. * * * To the extent there is any question about the

permit holder’s compliance with conditions of approval, the

County has a separate enforcement process that can be

used to adjudicate those issues. The question of use initia-

tion can be determined whether or not the permit holder is

in compliance with conditions of approval and, therefore, is

not necessary to resolve in this proceeding.”

The hearings officer also addressed arguments that the

declaratory ruling of initiation could not issue because the

guest ranch use had been abandoned:

“Testimony from multiple participants asserts that the

Guest Ranch use has been ‘abandoned’ and, therefore, the

Application must be denied. For similar reasons, COLW

argues that the Application Notice and the Hearing Notice

were deficient because they did not identify Code provisions

relating to nonconforming uses. In support of these asser-

tions, COLW cites to ORS 215.130(5) et seq.

“ORS 215.130(5), and the subsequent statutes referring

to that statute, relate to nonconforming uses. Under that

statute, a use that lawfully existed at the time of a land

use regulation’s enactment can lawfully continue even if it

would no longer be allowed because of the new regulation.

Such uses, however, can lose that nonconforming status if

they are abandoned. That statute is not applicable here.

The Applicant does not seek to continue a nonconforming

use. Instead, the Applicant seeks only a determination that

a conforming, conditional use was initiated within a cer-

tain time. It was therefore also not an error for the County

to exclude nonconforming use criteria as part of its notices.”

COLW appealed the hearings officer’s decision to

the board of county commissioners, which issued an order

that it would not hear the appeal. Under DCC 22.32.035, the

hearing officer’s decision became the county’s final decision.

COLW then petitioned LUBA for review. As rele-

vant to our review, COLW first argued that Gemmet’s CUP

became void on the date of its expiration because proof of

446 Central Oregon LandWatch v. Deschutes County

initiation was not offered before the CUP expired. COLW

asserted that the hearings officer was thus unable, as a

matter of law, to determine that use was initiated under

a void permit. COLW also argued that the hearings officer

findings were inadequate and misconstrued the applica-

ble law for Gemmet’s declaratory ruling application with

respect to nonconforming use. COLW argued that the guest

ranch development ceased in 2009 and that the applicable

regulations had changed, making the use as a guest ranch

an abandoned nonconforming use, based on ORS 215.130(5)

and (7) and DCC 18.120.010. Relying on Fountain Village

Development Co. v. Multnomah Cty., 176 Or App 213, 31 P3d

458 (2001), rev den, 334 Or 411 (2002) (Fountain Village),

COLW asserted that the hearings officer erred in conclud-

ing that the nonconforming use statute was inapplicable

because the inchoate right to resume the guest ranch use

could be lost by abandonment unless Gemmet could demon-

strate conformance with current land use regulations for

guest ranches.

LUBA upheld the hearings officer’s decision on the

question of initiation. However, LUBA remanded to the

county with instructions to consider COLW’s arguments

of nonconforming use and abandonment. Gemmet peti-

tioned for review of LUBA’s remand order and COLW cross-

petitioned for review of LUBA’s decision on initiation.

We address COLW’s cross-petition first because a

decision in COLW’s favor on this issue would resolve this

case. COLW argues that LUBA’s ruling was unlawful in

substance in its interpretation of OAR 660-033-0140(1) and

DCC 22.36.020(A). In support of that assignment, COLW

argues that a land use is not “initiated” under the DCC

until the county has made a determination of initiation in

a declaratory ruling. COLW presents us with a code con-

struction argument that a development action was “initi-

ated” only if there was a formal determination by the county

that substantial construction or other actions listed in

DCC 22.36.020(A)(1) to (3) had occurred and the qualifying

actions alone were insufficient in the absence of that formal

determination. Based on that construction of the code pro-

vision, COLW argues that Gemmet brought the declaratory

Cite as 326 Or App 439 (2023) 447

application too late, because a determination of initiation

would have to have been made before the expiration of the

CUP.

We reject that argument because it was not pre-

served below. Before LUBA, COLW argued only that

Gemmet’s CUP became void on the date of its expiration

because proof of initiation was not offered before it expired.

COLW did not present LUBA with the code construction

argument that “initiation” means a formal determination

of use, not any on-the-ground actions that occurred under a

permit.

“Our rules and practice require a party to articulate

a contention in a lower court or tribunal in order to assert

on review that the court or tribunal erred in taking action

inconsistent with that contention.” Willamette Oaks, LLC v.

City of Eugene, 248 Or App 212, 225, 273 P3d 219 (2012).

That preservation requirement applies to review of LUBA

orders. Indeed, “the statutory context of the LUBA review

statutes lends particular force to the requirement of preser-

vation of error before the board.” Id. (citing VanSpeybroeck v.

Tillamook County, 221 Or App 677, 690-91, 691 n 5, 191 P3d

712 (2008)). Mindful of the statutory framework that defines

our review function of LUBA decisions, we decline to take up

COLW’s unpreserved construction of the DCC here, where

the county was not given the opportunity to address the pro-

posed construction and interpret its own code, and COLW

has not provided us with any reason why we should consider

its unpreserved argument. See Gage v. City of Portland, 133

Or App 346, 350, 891 P2d 1331 (1995) (“Although the task

of interpretation in cases such as this is ours, we will not

reverse a lower body’s interpretation on grounds that that

body was not given any required opportunity to consider.”).

To the extent that COLW argues that LUBA failed

to properly construe the DCC in addressing the argument

that COLW did bring before LUBA, we reject that argu-

ment. As LUBA correctly concluded, neither OAR 660-033-

0140(1) or the DCC require an application for declaration

of an initiation of use to be brought before the land use

approval expires. Moreover, both the OAR 660-033-0140(1)

and DCC 22.36.010(B)(1) provide that a permit is void only

448 Central Oregon LandWatch v. Deschutes County

if the use has not been initiated. As a result, by operation of

law, a land use approval is not void if the use has been initi-

ated. DCC 22.36.025(B) explicitly so provides, stating a per-

mit is a “valid existing permit” if “it is determined that the

use was ‘initiated’ during the life of the permit.” The DCC

does not similarly require that the determination must be

made during the life of the permit. As LUBA noted, based

on the context of the DCC including DCC 22.36.025 and

DCC 22.36.010(C)(1)(b), which contains a time limit for sub-

mitting an application to extend a CUP, “[t]he county clearly

knows how to insert a time requirement into an application

provision if it wishes to do so.” LUBA’s order was not unlaw-

ful in substance in rejecting COLW’s assignment of error.

Turning to Gemmet’s assignments of error in the

petition, we briefly address and reject his second assignment

of error first, in which he asserts that LUBA failed to defer

to the county’s interpretation of the DCC, as required by

Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010).

We have long held that when a governing body declines to

review a hearings officer’s decision, the hearings officer’s

interpretation is not imputed to the governing body, such

that it is due deference. Gutoski v. Lane County, 141 Or App

265, 268, 917 P2d 1048, rev den, 324 Or 18 (1996); see also

Gould v. Deschutes County, 322 Or App 340, 350, 520 P3d

433 (2022) (distinguishing between a hearings officer’s

interpretation and a hearings officer’s application of prior

interpretation made by the board of county commissioners

and holding that only the latter is due deference). Here, the

county did not adopt the hearings officer’s interpretation as

its own when it declined to review the decision on COLW’s

appeal. As a result, “the hearings officer’s interpretation is

to be reviewed for whether it is correct as a matter of law.”

Tonquin Holdings, LLC v. Clackamas County, 247 Or App

719, 722-23, 270 P3d 397, rev den, 352 Or 170 (2012).

Finally, we turn to Gemmet’s first assignment of

error, which directly challenges LUBA’s remand. Gemmet

argues that, under the text and context of the applicable law,

the declaratory ruling on initiation of use that he sought did

not involve the nonconforming use standards, so the hear-

ings officer correctly declined to consider COLW’s arguments

Cite as 326 Or App 439 (2023) 449

on nonconforming use and abandonment. Therefore, he

argues, LUBA’s order remanding to the county to consider

those arguments was unlawful in substance. We agree.

First, LUBA’s decision was based on a mistaken

factual premise. LUBA determined that the hearings officer

may have decided that a finding that the guest ranch was ini-

tiated “necessarily means that the guest ranch may, subject

to the conditions of approval, be constructed and operate on

the subject property without any other limitations.” Because

of that purported ambiguity, LUBA determined that the

hearings officer could have sua sponte expanded the scope of

the hearing to such a degree that it was required to consider

arguments on nonconforming use and abandonment.

LUBA incorrectly found an ambiguity in the hear-

ings officer’s ruling. The hearings officer repeatedly and

explicitly recognized that the only question before it was

whether the guest ranch use had been “initiated” during the

lifetime of the CUP. And the hearings officer was clear the

question of “initiated” was the only question it was deciding.

Nothing in the hearings officer’s decision suggested that the

hearings officer believed that the decision would allow the

guest ranch to be constructed and operate without regard to

any code compliance issues that may exist. Indeed, such a

ruling would conflict with DCC 22.36.025(B) which explic-

itly recognizes that even if “the use was ‘initiated’ during

the life of the permit,” further land use actions would be

“subject to any applicable revocation provisions.”

Relatedly, LUBA’s analysis misunderstands the law

as it applies here. A declaratory action is not an expansive

proceeding that covers any and all issues related to a land

use permit. Instead, it is narrowly confined to answering

the “precise question” presented by the applicant. DCC

22.40.020(B); see also DCC 22.40.010(B) (stating that a

declaratory ruling is “available only in instances involving

a fact-specific controversy and to resolve and determine

the particular rights and obligations of particular par-

ties to the controversy” (emphasis added)). Further limit-

ing the scope of the proceeding are the restrictions on who

can seek a declaratory ruling and for what purposes. See

DCC 22.40.020(A) (limiting the applicants to the owner of

450 Central Oregon LandWatch v. Deschutes County

property on questions of use of the property, to the holder

of a permit on questions of interpretation of a quasi-judicial

plan amendment, zoning change or land use permit, or the

Planning Director). We also note that under DCC 22.40.040,

the effect of a declaratory ruling is conclusive, binds the par-

ties, and prevents the parties from reapplying for a ruling

on the same question. The binding and preclusive nature of

a declaratory ruling supports our conclusion that the county

intended declaratory actions to have a limited scope.

In sum, those limits confirm that the hearings offi-

cer is not authorized to expand the scope of what is to be

decided by declaratory ruling on a particular application

beyond what the applicant has submitted. In this case, that

was the question submitted by Gemmet on his application:

“Declaratory Ruling for an Initiation of Use.” Thus, although

the hearings officer had authority to “declare the rights

and obligations of persons affected by the ruling,” DCC

22.40.010(A), that authority was not unlimited. It could only

be exercised within the contours established by the county

code, and under that code, by the “precise question” submit-

ted by Gemmet.

The issues raised by COLW related to nonconform-

ing use were not directed at initiation of use, which was

Gemmet’s “precise question.” Instead, they focused on the

lack of action on the part of the property owner after the ini-

tiation of the use. Those issues were thus outside the scope

of the declaratory ruling application. LUBA’s remand would

therefore have the effect of requiring the hearings officer to

decide a legal issue that was not before it, and which had not

been noticed as part of the hearing. But the hearings officer

cannot make advisory opinions or decide questions that are

more appropriately addressed to a different procedure. See

DCC 22.40.010(B), (C), (D).

LUBA’s reliance on Norvell v. Portland Area LGBC,

43 Or App 849, 604 P2d 896 (1979), for the proposition that

the hearings officer had to address the merits of COLW’s

arguments on nonconforming uses was also misplaced.

Given the scope of Gemmet’s “precise question,” the non-

conforming use standards do not inform whether a use had

been initiated. For all of those reasons, the hearings officer

Cite as 326 Or App 439 (2023) 451

properly addressed the arguments raised on nonconforming

use and abandonment when it correctly determined that

they were not within the scope of the proceeding.

Finally, COLW’s arguments based on Fountain

Village are unpersuasive. We understand COLW to be argu-

ing that, at most, Gemmet had an inchoate right to develop

(if the use had been initiated) that is analogous to the

common-law vested right discussed in Fountain Village. We

further understand COLW to argue that that to confirm that

kind of right Gemmet had to establish that the guest ranch

use could be continued as a nonconforming use as provided

in ORS 215.130(5) and (7) and DCC 18.120.010. Fountain

Village, however, is not analogous to the initiation of use

declaratory ruling that Gemmet sought because Gemmet’s

application did not involve a common-law property right.

The issue in Fountain Village was whether a land-

owner had a common-law vested right to complete construc-

tion of a log cabin on his property. 176 Or App at 215. A prior

owner had started building the cabin when the zoning on the

land allowed it as of right. Later, the zoning on the land had

changed such that the cabin was a conditional use. The land-

owner bought the property under the new zoning and did not

seek to resume construction of the cabin for a few years. Id. at

215-17. The county concluded that the landowner did not have

a vested right to complete the cabin because it was a discon-

tinued nonconforming use, explaining that a vested right is

simply a right to complete a nonconforming use. Id. at 217.

LUBA affirmed the county’s decision, and the landowner peti-

tioned for our review. We likewise concluded that common-law

vested rights are, in effect, inchoate nonconforming uses.

Id. at 221. As such, we concluded that the county had the

authority to apply the discontinued nonconforming use ordi-

nance to its determination of whether the landowner had a

vested right to complete the cabin. Id. at 223.

We revisited our Fountain Village opinion in Oregon

Shores v. Board of County Commissioners, 297 Or App 269,

441 P3d 647 (2019). That case involved landowners seeking

a vested right determination under Measure 49 to continue

developing a subdivision on their property. In address-

ing whether nonconforming use standards applied to that

452 Central Oregon LandWatch v. Deschutes County

determination, we explained the distinction between the

common-law vested right at issue in Fountain Village, and

the statutory right at issue in Oregon Shores. Id. at 276. A

common-law vested right to develop is an equitable claim

to an inchoate nonconforming use that requires showing a

current vested right to develop at the time that the claim is

made. Id. at 276, 279. The Measure 49 vested right, however,

was a statutory right to a particular remedy that required

showing a common-law vested right existed on the effective

date of the act, December 6, 2007. Id. at 277-78. As a result,

nothing that occurred after that date was relevant to the

statutory determination, such as the alleged discontinuance

of the nonconforming use in that case. Id. In addition, “[u]n-

like the right at issue in Fountain Village * * * a successful

claim under section 5(3) [of Measure 49] yields not an incho-

ate nonconforming use under the common law but, rather, a

development right expressly allowed by statute.” Id. at 279.

The issue here is more analogous to Oregon Shores

than Fountain Village. Gemmet is not seeking a determi-

nation of a common-law vested right, which we have said is

an inchoate nonconforming use. He is seeking a declaratory

ruling that the use allowed under the CUP was initiated

during the lifetime of the permit, because, if it was, the CUP

remains a valid, existing permit. That is not a right arising

under the common law, nor is it “inchoate,” because both the

applicable state rule, OAR 660-033-0140(1), and the appli-

cable DCC provisions provide that the CUP never was void

if the use was initiated. That is, there was no formless or

amorphous right that needed to be finalized or confirmed,

the CUP, as a matter of law, continued as a valid, existing

permit once the use was initiated during the lifetime of the

permit. Also, like in Oregon Shores, here, the applicable

DCC provisions place a date certain on which to make the

initiation of use determination—during the lifetime of the

permit—anything that occurred after that time was not rel-

evant to that determination.3 In sum, LUBA’s remand was

unlawful in substance, and we reverse it.

On petition, reversed; on cross-petition, affirmed.

3

Because it is unnecessary to our disposition, we do not address Gemmet’s

additional arguments that LUBA’s remand violates ORS 215.416(8)(a) and ORS

215.427(3).