The opinion
No. 919 October 22, 2025 383
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
REDSIDE RESTORATION PROJECT ONE, LLC;
William Buchanan; Elizabeth Buchanan;
Keystone Cattle & Performance Horses, LLC;
Petitioners,
and
Lori Anderson JOHNSON,
Richard Del Johnson, Kelsey Nonella,
Pamela Mayo Phillips,
Tim W. Phillips, and Paul Lipscomb,
Intervenors-Petitioners below,
v.
DESCHUTES COUNTY;
710 Properties, LLC; Charles Thomas; and Robert Turner,
Respondents.
Land Use Board of Appeals
2024082;
A187729 (Control), A187760
1000 FRIENDS OF OREGON,
Petitioner,
and
William BUCHANAN;
Elizabeth Buchanan;
and Keystone Cattle & Performance Horses, LLC,
Intervenors-Petitioners below,
v.
DESCHUTES COUNTY;
710 Properties, LLC; Charles Thomas; and Robert Turner,
Respondents.
Land Use Board of Appeals
2024083;
A187727
CENTRAL OREGON LANDWATCH,
Petitioner
and
384 Redside Restoration v. Deschutes County
William BUCHANAN;
Elizabeth Buchanan; and Keystone Cattle & Performance
Horses, LLC,
Intervenors-Petitioners below,
v.
DESCHUTES COUNTY;
710 Properties, LLC; Charles Thomas; and Robert Turner,
Respondents.
Land Use Board of Appeals
2024085
Argued and submitted July 30, 2025; on respondents
710 Properties, LLC, Charles Thomas, and Robert Turner’s
motion to strike filed July 31, 2025, and petitioner Redside
Restoration Project One, LLC’s response filed August 6,
2025.
Ezra Hammer argued the cause for petitioner Redside
Restoration Project One, LLC. Also on the briefs were James
D. Howsley and Jordan Ramis PC.
F. Blair Batson argued the cause for petitioners William
Buchanan, Elizabeth Buchanan, Keystone Cattle &
Performance Horses, LLC, and 1000 Friends of Oregon. Also
on the brief for petitioners William Buchanan, Elizabeth
Buchanan, Keystone Cattle & Performance Horses, LLC
was John D. Butterfield. Also on the brief for petitioner 1000
Friends of Oregon was Eve Goldman.
Carol MacBeth argued the cause and filed the brief for
petitioner Central Oregon LandWatch.
J. Kenneth Katzaroff argued the cause for respondents
710 Properties, LLC, Charles Thomas, and Robert Turner
and Deschutes County. Also on the briefs were Sara Koback
and Schwabe, Williamson & Wyatt, P.C.; David Doyle and
Stephanie Marshall for Deschutes County.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief amicus curiae for Land Conservation
and Development Commission.
Cite as 344 Or App 383 (2025) 385
Samantha J. Bayer, David J. Hunnicutt, and OPOA Legal
Center filed the brief amicus curiae for Oregon Property
Owners Association.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
O’CONNOR, J.
Motion to strike granted; affirmed.
386 Redside Restoration v. Deschutes County
O’CONNOR, J.
In separate petitions, petitioners Redside Restoration
Project One, LLC (Redside), 1000 Friends of Oregon (1000
Friends), Central Oregon LandWatch (LandWatch), and
William and Elizabeth Buchanan (the Buchanans) seek
judicial review of a final order of the Land Use Board of
Appeals (LUBA). LUBA’s order upheld Deschutes County’s
approval of an application by applicant 710 Properties, LLC
to redesignate a 710-acre tract of land (the subject prop-
erty) from agricultural to rural residential exception area
(RREA) and to rezone the subject property from exclusive
farm use (EFU) to rural residential (RR-10) use.1 Because
we affirm LUBA’s order, we do not address applicant’s con-
ditional cross-assignment of error. The redesignation and
rezoning changes would allow applicant to divide the prop-
erty into 71 10-acre residential lots. The Land Conservation
and Development Commission (LCDC) has submitted an
amicus brief supporting the Buchanans’ position, and OPOA
Legal Center has submitted an amicus brief supporting the
applicant’s position. For the reasons explained in this opin-
ion, we affirm LUBA’s order.
I. BACKGROUND
This is the second time that disputes relating to
the rezoning of the subject property have come before us. In
Central Oregon Landwatch v. Deschutes County, 330 Or App
321, 543 P3d 736 (2024) (Landwatch II), we affirmed LUBA’s
order remanding the county’s determination that the appli-
cant’s 710-acre tract of range land did not meet the defini-
tion of agricultural land under Goal 3 of Oregon’s Statewide
Planning Goals2 and OAR 660-033-0020(1)(a). LUBA’s
order required the county to consider on remand whether
1
Respondents filed a motion to strike page four, line 12, through page nine,
line 11, of petitioner Redside’s answering brief to applicant’s cross-assignment
of error. Those pages include discussion of other issues outside the scope of the
cross-assignment of error, which violates Rule 4.66(1)(c) of the Oregon Rules of
Appellate Procedure (prohibiting reply briefs on judicial review of a LUBA deci-
sion). We grant the motion.
2
Goal 3, set out in OAR 660-015-0000(3), is a directive “[t]o preserve and
maintain agricultural lands” and describes that statewide land use goal in part
as follows:
“Agricultural lands shall be preserved and maintained for farm use, con-
sistent with existing and future needs for agricultural products, forest and
Cite as 344 Or App 383 (2025) 387
the subject property’s resource designation and zoning
were “necessary” to permit “farm practices” on “adjacent or
nearby lands” under the pertinent statutes and regulations.
Central Oregon Landwatch v. Deschutes County, LUBA Case
Nos 2023-006/009 (Jul 28, 2023) (Landwatch I). The remand
order also required the county to consider whether the sub-
ject property was “suitable for farm use” if it was used in
conjunction with adjacent or nearby lands. Id.
In our opinion affirming LUBA’s remand order, we
explained that LUBA correctly concluded that “consider-
ation of whether land is ‘agricultural land’ under OAR 660-
033-0020(1)(a)(C) must include consideration of whether the
land’s resource designation and zoning is ‘necessary to per-
mit farm practices to be undertaken on adjacent or nearby
agricultural lands.’ ” Landwatch II, 330 Or App at 333 (quot-
ing OAR 660-033-0020(1)(a)(C); footnote omitted). We also
agreed with LUBA that the rule creates a “high standard”:
“[W]e do not understand land to be agricultural land under
OAR 660-033-0020(1)(a)(C) merely because its designation
as such would merely be ‘useful’ or ‘desirable’ for nearby
farm practices. Rather, for ‘land’ to be agricultural land
under OAR 660-033-0020(1)(a)(C), that land, considering
its resource designation and zoning, must truly be neces-
sary to adjacent and nearby farm practices.”
Id.
LUBA specifically limited the county’s decision on
remand to four considerations. First, LUBA remanded for
the county to consider “the ability to use the subject prop-
erty for farm use in conjunction with other property, includ-
ing the [Redside] property,” without “limit[ing] its review
to the profitability of farm use of the subject property as
open space and with the state’s agricultural land use policy expressed in ORS
215.243 and 215.700.
“USES
“Counties may authorize farm uses and those nonfarm uses defined by
commission rule that will not have significant adverse effects on accepted
farm or forest practices.
“IMPLEMENTATION
“Zoning applied to agricultural land shall limit uses which can have sig-
nificant adverse effects on agricultural and forest land, farm and forest uses
or accepted farming or forest practices.”
388 Redside Restoration v. Deschutes County
an isolated unit.” Second, LUBA remanded for the county
to consider “the ability to import feed for animals,” with-
out “limit[ing] its consideration to the raising of animals
where adequate food may be grown on the subject property.”
Third, LUBA remanded for the county to consider “whether
the subject property is suitable for farm use as a site for
construction and maintenance of farm equipment.” Fourth,
LUBA directed the county to “consider the evidence and
adopt findings, addressing the impacts of redesignation of
the property related to water, wastewater, and traffic and
whether retaining the property’s agricultural designation is
necessary to permit farm practices on adjacent or nearby
lands.”
On remand, the county adhered to its original deter-
mination and issued a post-acknowledgement plan amend-
ment changing the comprehensive plan designation of the
applicant’s 710-acre tract from agricultural land to RREA
and rezoning the tract from EFU to RR-10. LUBA affirmed
the county’s order. The petitions on judicial review raise
multiple arguments challenging LUBA’s order. Following a
brief overview of governing law, we address the arguments
in each petitioner’s brief in turn. In each section, we include
the facts necessary to understanding our resolution of the
arguments discussed in that section.
A. Statutory and Regulatory Context
“The legislature’s primary statement of agricul-
tural land use policy is contained in ORS 215.243 * * *.” Stop
the Dump Coalition v. Yamhill County, 364 Or 432, 441-42,
435 P3d 698 (2019). It provides, in pertinent part, that “[t]
he preservation of a maximum amount of agricultural land
is necessary to the conservation of the state’s economic
resources * * *.” ORS 215.243(2). EFU-zoned land “shall be
used exclusively for farm use,” unless an exception applies.
ORS 215.203(1). The legislature has defined “farm use” as
“the current employment of land for the primary purpose of
obtaining a profit in money” by engaging in a list of activi-
ties. ORS 215.203(2)(a). The LCDC has enacted administra-
tive rules that implement land use statutes, including OAR
660-033-0020(1)(a), which defines agricultural lands:
“ ‘Agricultural Lands’ as defined in Goal 3 includes:
Cite as 344 Or App 383 (2025) 389
“* * * * *
“(B) Land in other soil classes that is suitable for farm
use as defined in ORS 215.203(2)(a), taking into consid-
eration soil fertility; suitability for grazing; climatic con-
ditions; existing and future availability of water for farm
irrigation purposes; existing land use patterns; techno-
logical and energy inputs required; and accepted farming
practices; and
“(C) Land that is necessary to permit farm practices to
be undertaken on adjacent or nearby agricultural lands.”
In that definition, LCDC incorporated the statutory defini-
tion of farm use and listed other factors for the local gov-
ernment to consider when determining what is agricultural
land. Additionally, OAR 660-033-0030(3) requires the con-
sideration of “nearby and adjacent land” when determining
whether land is agricultural land:
“Goal 3 attaches no significance to the ownership of a
lot or parcel when determining whether it is agricultural
land. Nearby or adjacent land, regardless of ownership,
shall be examined to the extent that a lot or parcel is either
‘suitable for farm use’ or ‘necessary to permit farm prac-
tices to be undertaken on adjacent or nearby lands’ outside
the lot or parcel.”
B. Summary of the Petitions
1. Redside Restoration
Redside raises two assignments of error. In its first
assignment of error, Redside asserts that the county’s deci-
sion was invalid and must be vacated and remanded under
ORS 215.422(3),3 because a Deschutes County commissioner
failed to disclose ex parte contacts received during a public
3
ORS 215.422 provides, in part:
“(3) No decision or action of a planning commission or county governing
body shall be invalid due to ex parte contact or bias resulting from ex parte
contact with a member of the decision-making body, if the member of the
decision-making body receiving the contact:
“(a) Places on the record the substance of any written or oral ex parte
communications concerning the decision or action; and
“(b) Has a public announcement of the content of the communication and
of the parties’ right to rebut the substance of the communication made at the
first hearing following the communication where action will be considered or
taken on the subject to which the communication related.
390 Redside Restoration v. Deschutes County
meeting of the LCDC. In its second assignment of error,
Redside asserts that LUBA mistakenly interpreted OAR
660-033-0020(1)(a)(B) and (C) when it evaluated the impact
that redesignation and rezoning would have on groundwa-
ter. We conclude that LUBA’s order was not unlawful in
substance. First, the contacts at the LCDC hearing were
not ex parte contacts or communications under LUBA’s defi-
nition of ex parte, and Redside does not challenge LUBA’s
definition. Second, LUBA correctly stated and applied
the substantial evidence standard when it evaluated the
impact that the development would have on groundwater.
Accordingly, we reject Redside’s assignments.
2. 1000 Friends
LUBA ruled that 1000 Friends had waived its argu-
ment that OAR 660-033-0020(1)(a)(C) requires that the
county evaluate potential new farm practices on nearby and
adjacent lands. On review, 1000 Friends argues that LUBA
erred in concluding that 1000 Friends had waived its argu-
ment. We agree with LUBA that 1000 Friends waived the
argument under the principles of waiver established in Beck
v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992), because
it could have been, but was not, raised on the first appeal to
LUBA or to the county on remand.
3. Central Oregon LandWatch
LandWatch raises four assignments of error. It
argues in its first two assignments of error that LUBA
erred by misconstruing and misapplying the substantial
evidence standard. In its third and fourth assignments
of error, LandWatch argues that LUBA misinterpreted
the meaning of “nearby or adjacent” under OAR 660-033-
0030(3). We conclude that LUBA properly articulated and
applied the substantial evidence standard and accordingly
reject LandWatch’s first and second assignments of error.
Additionally, we agree with LUBA that LandWatch waived
its argument regarding which properties the county should
have evaluated for conjoined use, because that was resolved
“(4) A communication between county staff and the planning commis-
sion or governing body shall not be considered an ex parte contact for the
purposes of subsection (3) of this section.”
Cite as 344 Or App 383 (2025) 391
or could have been resolved in Landwatch I. Accordingly, we
reject LandWatch’s four assignments of error.
4. The Buchanans
The Buchanans raise two assignments of error.
They argue in their first assignment of error that LUBA
erred when it gave undue weight to the consideration of prof-
itability in affirming the county’s interpretation and appli-
cation of Goal 3. In their second assignment, the Buchanans
argue that LUBA misinterpreted Goal 3 in its application
of the objective “reasonable farmer test” to evaluate profit-
ability. LCDC makes similar arguments in its amicus brief.4
We conclude that LUBA did not misconstrue the definition
of agricultural land, and therefore reject the Buchanans’
first assignment of error. LUBA correctly applied the sub-
stantial evidence standard in reviewing the county’s deter-
mination of profitability under the reasonable farmer test.
Additionally, the parties waived the challenge to the appli-
cation of an objective reasonable farmer standard because
LUBA applied that standard in Landwatch I and no parties
challenged that standard on judicial review in Landwatch
II. Accordingly, we reject the Buchanans’ two assignments
of error and LCDC’s arguments.
II. STANDARD OF REVIEW
We review a LUBA order for whether it is unlawful
in substance. ORS 197.850(9)(a). A LUBA order is unlawful
in substance “if it represents a mistaken interpretation of
the applicable law.” Kine v. Deschutes County, 313 Or App
370, 372, 496 P3d 1136 (2021) (internal quotation marks
omitted).
Some of petitioners’ arguments require us to inter-
pret statutes and administrative rules. We interpret stat-
utes to identify the legislature’s intent by examining the
text of the statute in context and consulting any relevant
4
LCDC argues that LUBA’s “objective test” for whether land is “agricultural
land” because it is “suitable for farm use” is inconsistent with ORS 215.203(2)(a),
ORS 215.243(2) and OAR 660-033-0020(1)(a)(B). Instead, LCDC argues, whether
a person has the “primary purpose of obtaining a profit in money” from their use
of “the land is a subjective test, that can be satisfied by evidence that an actual
farmer intends to currently use the land for the primary purpose of obtaining a
profit in money.”
392 Redside Restoration v. Deschutes County
legislative history. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009). We interpret administrative rules to
“ ‘divine the intent of the rule’s drafters’ by considering ‘the
text of the rule in its regulatory and statutory context.’ ”
Landwatch II, 330 Or App at 739-40 (quoting Shaefer v.
Marion County, 318 Or App 617, 620, 509 P3d 718 (2022)).
Others of petitioners’ arguments challenge LUBA’s
review of the county’s decision for substantial evidence.
When a party before LUBA challenges a county’s factual
finding as unsupported by substantial evidence, “LUBA con-
siders all the evidence in the entire record * * * and deter-
mines whether a reasonable person could make that find-
ing.” Citizens for Responsibility v. Lane County, 218 Or App
339, 345, 180 P3d 35 (2008) (citation omitted). We first review
whether LUBA properly stated and applied that standard of
review. Id. If it did, then “we would reverse LUBA’s decision
only when there is no evidence to support the finding or if
the evidence in the case is ‘so at odds with LUBA’s evaluation
that a reviewing court could infer that LUBA had misunder-
stood or misapplied its scope of review.’ ” Id. (quoting Younger
v. City of Portland, 305 Or 346, 359, 752 P2d 262 (1988)).
III. ANALYSIS
A. Petitioner Redside’s First Assignment of Error
In its first assignment of error, Redside asserts
that the county’s decision is invalid and must be vacated
and remanded under ORS 215.422(3), because DeBone, a
Deschutes County commissioner, failed to disclose alleged
ex parte communications that occurred at a 2022 Department
of Land Conservation and Development (DLCD) hearing, at
which DeBone testified at. Redside argues that DeBone vio-
lated ORS 215.422(3) by failing to disclose those communi-
cations at the county’s July 24, 2024, public hearing, where
the county commissioners deliberated after LUBA’s remand
order. When the county maintained its decision and Redside
again challenged the decision, Redside raised the ex parte
contacts argument to LUBA, and LUBA rejected it. Redside
contends that LUBA’s order is unlawful in substance,
because it misinterpreted and misapplied the prohibition
against ex parte contacts in land use matters. Respondents
Cite as 344 Or App 383 (2025) 393
argue that LUBA correctly concluded that the communi-
cations received by DeBone at the LCDC hearing did not
constitute ex parte contacts. We affirm LUBA’s conclusion
that the communications did not constitute ex parte contacts
under LUBA’s definition, and Redside does not challenge
LUBA’s definition on judicial review.
We briefly provide an overview of the context for the
alleged ex parte communications. After the county initially
approved the rezoning of the subject property in a 2022 vote
by the Deschutes County commissioners, DLCD sought to
appeal the order to challenge the county’s decision. DLCD
needed LCDC’s authorization to appeal, and LCDC held a
public hearing to consider whether to authorize the DLCD
appeal.
Redside argues that five ex parte communications
occurred at that DLCD hearing. The hearing was open to
the public and recorded. Applicants do not dispute that the
communications occurred. Instead, they argue that LUBA
correctly concluded they did not constitute ex parte commu-
nications in the circumstances of this case. The first commu-
nications are statements from the parties’ attorneys at the
hearing. Second, LCDC Commissioner Boyer asked DeBeone
questions and DeBone responded. Third, applicant’s attor-
ney described the physical features of the subject property.
Fourth, a DLCD staff person made statements to DeBone
after the hearing, and those statements were not recorded.
Fifth, a statement by a DLCD staff member Jinings regard-
ing the role of profitability in the county’s decision.
After deliberation, LCDC authorized the DLCD
appeal. On DLCD’s appeal, as noted above, LUBA reversed
the county’s order and remanded it for reconsideration.
During the first county hearing on remand, on July 24, 2024,
DeBone did not disclose that he had appeared at the LCDC
hearing. He did subsequently disclose that appearance at a
county hearing in September 2024, when the county main-
tained its decision to rezone the property, but he did not
describe the details of his appearance.
A litigant in a land use matter is entitled to a “tri-
bunal which is impartial in the matter—i.e., having had no
394 Redside Restoration v. Deschutes County
prehearing or ex parte contacts concerning the question at
issue.” Fasano v. Washington Co. Comm., 264 Or 574, 588,
507 P2d 23 (1973). Shortly after Fasano, the legislature
enacted ORS 215.422(3) to address when an ex parte contact
invalidates a land use decision. ORS 215.422(3) provides that
“[n]o decision or action of a planning commission or county
governing body shall be invalid due to ex parte contact or
bias resulting from ex parte contact with a member of the
decision-making body, if the member of the decision-making
body receiving the contact” places the communication on the
record and provides an opportunity for the opposing parties
to rebut it “at the first hearing following the communication
where action will be considered or taken on the subject to
which the communication related.” The legislature did not
define “ex parte contact” or “ex parte communication.” The
parties appear to agree that if DeBone had ex parte contacts
at the LCDC hearing, then he did not comply with the dis-
closure process in ORS 215.422(3).
LUBA has defined the term ex parte communication
for use in its orders and opinions:
“An ex parte communication is a communication between
a party and a decision-maker, made outside the hear-
ing process, concerning a decision or action before the
decision-maker.”
Oregon Shores Conservation Coalition v. Coos County, 81 Or
LUBA 839, 846 (2020). Additionally, in applying Fasano,
LUBA has required a showing that the ex parte contacts
were relevant to the issues before the local governmental
body:
“[I]n order to provide a basis for remand based on ex parte
contacts, there must be some indication that the commu-
nication had something to do with the factual determina-
tions or legal standards that govern approval or denial of
the application.”
Link v. City of Florence, 58 Or LUBA 348, 353 (2009).
Redside does not challenge LUBA’s definition of
ex parte communication. Redside argues that LUBA misap-
plied that definition when it erroneously concluded that the
communications received by DeBone did not concern factual
Cite as 344 Or App 383 (2025) 395
determinations or legal standards that would govern the
county’s decision on the application. Before LUBA, Redside
argued that the communications that DeBone received
through his appearance at the LCDC hearing concerned
the factual and legal issues before the county on remand
from LUBA and were therefore ex parte. LUBA rejected
that argument, concluding that the communications that
Redside cited did not constitute ex parte communications
under ORS 215.422(3), primarily because the legal and fac-
tual issues discussed at the LCDC hearing were outside the
scope of LUBA’s remand to the county.
On judicial review, in its first assignment, Redside
contends that there were five communications during the
LCDC hearing that amounted to ex parte communications
and that LUBA’s rejection of its ex parte argument con-
stitutes a mistaken application of ORS 215.422(3) that is
unlawful in substance. In a cross-assignment of error, the
applicant contends that LUBA erred in rejecting its argu-
ments that ex parte communications are only those that are
received by a decision-maker relating to a pending matter
and, further, that communications received in the context
of a public hearing are not ex parte. We do not reach the
applicant’s arguments on cross-assignment, because, as
explained below, we affirm LUBA’s conclusion that DeBone
was not required to disclose the communications under ORS
215.422(3).
As to the first alleged ex parte communication,
Redside argues that statements and arguments made at the
LCDC hearing by legal counsel for DLCD and the applicant
regarding the criteria for agricultural land had bearing on
the county’s determination on remand whether the prop-
erty should remain agricultural land. Those statements
included the lawyers’ arguments related to an interpreta-
tion of the Supreme Court’s opinion in Wetherell v. Douglas
County, 342 Or 666, 683, 160 P3d 614 (2007). In that case,
the court addressed how a county should evaluate the ele-
ment of “profitability” when determining the “suitability”
of land for “farm use” as defined in ORS 215.203(2)(a) and
under OAR 660-033-0020(1)(a)(B). The court held that, “in
determining whether land is ‘suitable’ for ‘farm use’ * * * a
396 Redside Restoration v. Deschutes County
local government may not be precluded from considering the
costs or expenses of engaging in those activities.” Id. at 680.
The attorneys at the LCDC hearing that DeBone
attended differed in their views as to how the county should
consider profitability in evaluating whether land was “suit-
able for farm use.” DLCD’s attorney argued that the law as
to profitability was unsettled and that an appeal to LUBA
would help to clarify the issue. The applicant’s attorney
argued that the law was settled and that the profitability
of the subject property itself was one of the primary consid-
erations in determining whether land was agricultural.5 In
Redside’s view, the applicant’s attorney incorrectly explained
the law, and the discussion was an indirect ex parte commu-
nication to DeBone.
In its order, LUBA first rejected the applicant’s con-
tention that the requirement in ORS 215.422(3) for disclo-
sure of ex parte communications did not apply to communi-
cations received during the LCDC hearing, because there
was no matter pending before the county at the time the
communications were received. LUBA explained that if the
county matter was on review, remand was a foreseeable
result, “and a decision-maker should be prepared to conduct
hearings on remand consistent with ORS 215.422(3), includ-
ing disclosure of ex parte communications received during
the appellate phase of the case.” Thus, LUBA concluded that
it did not matter that there was no matter then pending
before the county at the time of the communications.
LUBA then concluded that the arguments made
by the applicant’s attorneys to DeBone and the rest of the
commission related only to a resolved issue of law. LUBA
explained that the law clearly required a county to con-
sider profitability when evaluating the use of the subject
property in conjunction with nearby and adjacent proper-
ties. Accordingly, LUBA concluded that issue could not have
been, and indeed was not, at issue on remand to the county.
5
The applicant’s counsel argued:
“And pretty clearly tells you that profitability is one of the main factors, and
that indeed it is the land itself; the particular property that has to be able
to support the agricultural use and that’s important because it’s different
when you start to get into some issues about having a farm tract, which is not
something that is at issue in this case.”
Cite as 344 Or App 383 (2025) 397
LUBA noted its definition of “ex parte” communica-
tion as
“a communication between a party and a decision-maker,
made outside the hearing process, concerning a decision or
action before the decision-maker[.]”
(Internal quotation marks omitted; emphasis added.) LUBA
focused on whether the substance of the communications
that DeBone received at the LCDC hearing had bearing
on issues that might come before the county on a potential
remand and therefore concerned a decision or action by the
county. LUBA determined that the arguments by the attor-
neys involved issued that LUBA settled in Landwatch I and
that this court affirmed in Landwatch II. Thus, LUBA con-
cluded, the attorneys’ argument could have had no bearing
on the county’s decision-making on LUBA’s remand. Redside
challenges that conclusion.
Redside does not challenge LUBA’s definition of
ex parte communications. Applicant’s conditional cross-
assignment of error challenges LUBA’s definition, includ-
ing calling into question LUBA’s conclusion that statements
heard by DeBone at the public hearing did not constitute
ex parte communications. Because we affirm on Redside’s
assignment of error, we do not reach applicant’s argument.
We address only whether LUBA properly concluded that
the communications received by DeBone at the LCDC hear-
ing did not constitute ex parte contact or communications,
as LUBA has defined those terms. We express no opinion
about whether those definitions are consistent with ORS
215.422(3).6
We agree with LUBA that the legal issues discussed
by the attorneys at the LCDC hearing had been settled by
LUBA in its first order in Landwatch I. LUBA’s remand to
6
We note that ex parte has been defined differently in other contexts. For
example, in defining the term ex parte in the context of a lawyer disciplinary mat-
ter, the Oregon Supreme Court has cited the definition in Black’s Law Dictionary
616 (8th ed 2004):
“ ‘Done or made at the instance and for the benefit of one party only, and with-
out notice to, or argument by, any person adversely interested; of or relating
to court action taken by one party without notice to the other, usu. for tempo-
rary or emergency relief.’ ”
In re Hendrick, 346 Or 98, 102, 208 P3d 488 (2009) (quoting Black’s at 616).
398 Redside Restoration v. Deschutes County
the county had specifically required the county to consider
the profitability of the subject property in conjunction with
use with other properties.7 That issue was thus not open for
determination by the county on remand from LUBA. Beck,
313 Or at 153. For that reason, we agree with LUBA that
the attorneys’ earlier disagreement on that point, prior to
the first appeal to LUBA, could not have had bearing on the
matter once it was on remand to the county and thus did not
qualify as ex parte communication under LUBA’s definition.
Redside also argues that the attorneys’ arguments
had bearing on other issues relating to profitability that
would potentially have been before the county on remand.
But Redside does not elaborate on how the attorneys’ argu-
ments, as heard by DeBone, might have had bearing on
those asserted unsettled legal issues. We agree with LUBA
that the communication between the attorneys at the LCDC
hearing did not raise issues that might arise on remand
concerning profitability and therefore did not constitute an
ex parte communication that DeBone was required to dis-
close under ORS 215.422(3).
As to the second alleged ex parte communication,
Redside argues that DeBone received an ex parte commu-
nication in the form of questions by LCDC Commissioner
Boyer. Boyer asked DeBone whether studies had been done
regarding the impact of the applicant’s proposed develop-
ment on surrounding farm properties, and DeBone pro-
vided a response. LUBA rejected Redside’s contention that
DeBone’s response constituted an ex parte communication,
explaining that an ex parte communication is one that is
“received” by the member of the decision-making body rather
than given.
We agree with LUBA. The legislature in ORS
215.422(3) required a member of a decision-making body
7
As discussed above, LUBA’s remand stated:
“On remand, the board of commissioners must consider the ability to use the
subject property for farm use in conjunction with other property, including
the [Redside] property, and may not limit its review to the profitability of
farm use of the subject property as an isolated unit. The board of commis-
sioners must consider the ability to import feed for animals and may not limit
its consideration to the raising of animals where adequate food may be grown
on the subject property.”
Cite as 344 Or App 383 (2025) 399
“receiving” an ex parte contact to comply with the disclosure
process outlined in that subsection. The legislature in ORS
215.422(3) said nothing about when or where a member of a
decision-making body may make statements about a pend-
ing land use matter. DeBone did not “receive” his own state-
ment in response to Boyer’s question, and ORS 215.422(3)
did not apply to DeBone’s statement. Additionally, we agree
with LUBA that Boyer did not assert a factual or legal
position that could have had any bearing on an issue to be
decided by the county on remand by asking DeBone the
question. Thus, under LUBA’s definition of ex parte commu-
nication, ORS 215.422(3) did not require DeBone to disclose
the exchange with Boyer.
As to the third alleged ex parte communication,
Redside challenges a description of the physical features of
the subject property by applicant’s attorney that DeBone
heard, in response to a question by Boyer:
“[This property] is unique. It is on a very steep elevated
plateau and there is some irrigated agriculture uh to the
northwest, but that is uh quite some distance off and an
elevation change of something like 300 feet on pretty sheer
cliff walls.
“And then on kind of the southeastern side, there are
other properties that are in fact zoned EFU also. But
almost every single one of them have received a non-farm
dwelling approval and so they’ve actually been taken out of
agricultural because the soils are so bad here.”
LUBA wrote that the question was close but ultimately
determined that the comments by applicant’s attorney were
not ex parte communications. The attorney’s description of
the property was consistent with the county’s findings that
were not disputed by Redside or at issue on remand from
LUBA, LUBA explained. Thus, LUBA concluded, the phys-
ical characteristics described by applicant’s attorney would
not have had any bearing on an issue on remand.
Redside argues that the asserted facts “are clearly
relevant to the profitability and suitability factors in OAR
660-033-0020(1)(a)(B) and (C),” which was the issue on
remand. Although that is correct in general, some factual
issues had been settled prior to the remand. The physical
400 Redside Restoration v. Deschutes County
description of the property was one of the settled issues. The
description of the subject property provided by applicant’s
attorney concerned uncontested findings that had already
been made by the county. Thus, the attorney’s physical
description of the subject property would not have had any
bearing on the issues to be decided by the county on a poten-
tial remand, and they were not ex parte communications
that DeBone had to disclose under ORS 215.422(3), based on
LUBA’s definition of the term.
As to the fourth alleged ex parte communication,
Redside argues that an unrecorded communication that
DeBone received from a DLCD staff person after the hearing
constituted an ex parte communication. DeBone submitted
an affidavit in which he said that the staff person told him
that there were public funds available to provide the county
with information about why DLCD’s position was correct.
Redside asserts that the staff person was vouching for the
correctness of DLCD’s position relating to profitability, and
the statement thus meets LUBA’s definition of an ex parte
communication. We agree with LUBA that the staff person’s
offer to provide information about funding a study to show
how DLCD was correct had no bearing on the issues before
the county on remand.
Finally, Redside challenges as an ex parte commu-
nication a statement by DLCD’s staff member, Jinings:
“[O]f course profitability counts if * * * we didn’t mention
it in our comments I think it was we believe it was self-
evident * * * profitability means different things to differ-
ent people[.]
“[T]here is pretty decent rangeland I mean capable of
supporting you know one AUM [animal unit month] for
five or ten acres is pretty good * * * we believe it deserves
protection.”
(Brackets in original.) LUBA does not mention Jinings’s
statement in its opinion. Applicant responds that LUBA
did not mention the statement because Redside did not
argue before LUBA that Jinings’s statement constituted
an ex parte communication. Applicant is correct. We reject
the argument for that reason. See Devin Oil Co. v. Morrow
County, 252 Or App 101, 113, 286 P3d 925 (2012) (holding
Cite as 344 Or App 383 (2025) 401
that a party waives a challenge to a local government’s deci-
sion when that challenge “could have been raised, but was
not raised,” in a party’s appeal to LUBA).
To summarize, applying LUBA’s definition of
ex parte communications that Redside does not contest on
judicial review, we agree with LUBA’s conclusions that the
communications received and statements made by DeBone
were not ex parte communications that DeBone had to dis-
close under ORS 215.422(3). We therefore reject Redside’s
first assignment of error.
B. Petitioner Redside’s Second Assignment of Error
LUBA’s original remand required the county to “con-
sider the evidence of impacts on surrounding agricultural
lands vis-à-vis water, wastewater, and traffic.” On remand,
the county was presented with evidence that 71 homes would
reduce the aquifer slightly but that the reduction would have
no appreciable effect on when nearby farms have to deepen
wells or dig new wells because of the relatively small amount
of water the homes would use. Specifically, there was evi-
dence that 71 residential wells would draw at most 51-acre
feet of water per year, which amounted to 0.0000182 percent
of the annual recharge rate of the aquifer. The county relied
on that evidence to find that the proposed development of 71
homesites on the subject property would have no impact on
surrounding farmers’ ability to irrigate.
Before LUBA, Redside argued that the county’s
determination that the impact of development of the subject
property on irrigation of neighboring farms would be mini-
mal was not supported by substantial evidence. Specifically,
Redside argued that any reduction in the aquifer could
require nearby farms to deepen irrigation wells. Redside
argued that the county had failed to consider that cost,
instead incorrectly relying on evidence of the cost of domes-
tic well deepening, which would be much less costly.
LUBA responded that Redside misunderstood the
county’s decision. LUBA explained that “the county did not
draw any conclusions regarding the cost of deepening irriga-
tion wells from the testimony regarding the cost of deepen-
ing a domestic well.” And LUBA concluded that the county’s
402 Redside Restoration v. Deschutes County
finding that the impact on surrounding farms would be
slight was supported by substantial evidence:
“A reasonable fact—finder could conclude from the record
that the impact of 71 domestic wells on the aquifer would
not significantly hasten the day when irrigation wells must
be deepened in any event.”
On judicial review, Redside challenges both LUBA’s
conclusion that the county did not rely on the cost of deepen-
ing domestic wells and LUBA’s conclusion that substantial
evidence supported the county’s finding that proposed resi-
dential development on the property would not “significantly
hasten the day when irrigation wells must be deepened[.]”
Redside notes that, in determining whether land is suit-
able for farming, OAR 660-033-0020(1)(a)(B) requires the
county to consider the “existing and future availability of
water for farm irrigation purposes.” Redside further notes
that OAR 660-033-0020(1)(a)(C) and OAR 660-033-0030(3)
define agricultural land to include “[l]and that is necessary
to permit farm practices to be undertaken on adjacent or
nearby agricultural lands,” and require consideration of the
effect of zoning on nearby or adjacent land. Redside cites
evidence before the county that the aquifer is declining and
argues that water is finite. The increased draw on the aqui-
fer from 71 residential homes necessarily will reduce the
water available to surrounding farms for irrigation, Redside
argues. Redside also argues that LUBA failed to consider
the potential cost to adjacent farms of deepening irrigation
wells should the development be built.
We reject Redside’s arguments. As explained above,
we review LUBA’s substantial evidence review to determine
whether LUBA properly stated and applied that standard
of review. Citizens for Responsibility, 281 Or App at 345. If
it did, then “we would reverse LUBA’s decision only when
there is no evidence to support the finding or if the evidence
in the case is ‘so at odds with LUBA’s evaluation that a
reviewing court could infer that LUBA had misunderstood
or misapplied its scope of review.’ ” Id.
LUBA did consider evidence of the cost of well-deep-
ening to surrounding farmers. It nonetheless concluded that
substantial evidence supported the county’s finding. LUBA
Cite as 344 Or App 383 (2025) 403
correctly stated and supplied the substantial evidence stan-
dard of review. There is some evidence to support the find-
ing. Finally, contrary to Redside’s argument, the evidence
in the record is not so at odds with LUBA’s evaluation that
we could infer that LUBA misunderstood or misapplied its
scope of review. The county heard evidence that the addi-
tional water used by the 71 proposed residences would not
appreciably reduce the aquifer. Although Redside disputes
that evidence and disagrees with the county’s reliance on it,
our standard of review does not permit us to second-guess
the county’s factfinding.
Finally, Redside contends in its second assignment
that LUBA legally erred in failing to address both the “risk
of an [adverse] impact” from the rezoning of the subject
property and the “cost of the impact” of the development on
nearby and adjacent farms. Respondents argue that Redside
waived the argument because it did not raise the argument
to LUBA.
In this context, the concept of waiver derives from
statutes that set out procedural requirements in land use
cases. The Supreme Court interpreted those statutes in
Beck. We summarize the statutes and the court’s explana-
tion of them in Beck, because they impact our resolution of
many of the parties’ arguments on judicial review.8
The legislature has made a policy choice “that
time is of the essence in reaching final decisions in matters
involving land use and that those decisions be made con-
sistently with sound principles governing judicial review.”
ORS 197.805. The legislature enacted the statutes govern-
ing land use decisions “to accomplish these objectives.” Id.
The statutes require a party to preserve issues for appeal
8
The legislature has renumbered the pertinent statutes since Beck. We cite
to the current versions of the statutes. Since Beck, in 2023, the legislature deleted
the phrase “shall be limited to those” in ORS 197.835(3) and added the phrase
“The board may only review”. Or Laws 2023, ch 551, § 3 (HB 3458 (2023)). The
parties have not argued that the change alters the legislature’s intent as inter-
preted in Beck. We have reviewed the text, context, and legislative history, and
we have found no indication that the legislature intended to relieve parties of the
preservation rules as explained in Beck. To the contrary, the legislative history
shows that the legislature intended HB 3458 (2023) to tighten the preservation
and law-of-the-case rules that apply in land use cases.
404 Redside Restoration v. Deschutes County
to LUBA by raising them before the local decision-making
body:
“The following procedures shall govern the conduct of
quasi-judicial land use hearings conducted before a local
governing body, planning commission, hearings body or
hearings officer on application for a land use decision and
shall be incorporated into the comprehensive plan and land
use regulations:
“(1) An issue which may be the basis for an appeal to
the Land Use Board of Appeals shall be raised not later
than the close of the record at or following the final eviden-
tiary hearing on the proposal before the local government.
Such issues shall be raised and accompanied by statements
or evidence sufficient to afford the governing body, plan-
ning commission, hearings body or hearings officer, and
the parties an adequate opportunity to respond to each
issue.”
ORS 197.797. Relatedly, with exceptions not applicable
here, the statute provides that LUBA “may only review
issues raised by any participant before the [county].” ORS
197.835(3).
The legislature has also directed LUBA to decide
every issue properly before it at the first opportunity. LUBA
“shall decide all issues presented to it when reversing
or remanding a land use decision[.]” ORS 197.835(11)(a).
That is, LUBA cannot decline to reach an issue even if has
already decided to reverse or remand on a separate issue. As
the Supreme Court has explained, ORS 197.835(11)(a) limits
the “scope of the remand to those issues that require further
exploration. Doing so can avoid redundant proceedings and
thereby facilitate the” legislative policy expressed in ORS
197.805. Beck, 313 Or at 152.
Additionally, ORS 197.797(7) provides:
“When a local governing body, planning commission,
hearings body or hearings officer reopens a record to admit
new evidence, arguments or testimony, any person may
raise new issues which relate to the new evidence, argu-
ments, testimony or criteria for decision-making which
apply to the matter at issue.”
Cite as 344 Or App 383 (2025) 405
“In other words, when the record is reopened, parties may
raise new, unresolved issues that relate to new evidence.”
Beck, 313 Or at 153. As the Supreme Court summarized in
Beck:
“The logical corollary is that parties may not raise old,
resolved issues again. When the record is reopened at
LUBA’s direction on remand, the ‘new issues’ by defini-
tion include the remanded issues, but not the issues that
LUBA affirmed or reversed on their merits, which are old,
resolved issues.”
Id. (footnote omitted).
When a county reconsiders an issue on remand
from LUBA “then a subsequent appeal to LUBA generally
is limited” to the issues raised before the county during the
hearing on reconsideration. Id. at 154. Thus, under Beck,
“issues that LUBA decided in earlier proceedings, and upon
which judicial review was not sought, are not subject to
review in a judicial review of a subsequent LUBA order.”
Griffin Oak Prop. Invest. v. City of Rockaway Beach, 318 Or
App 777, 794, 509 P3d 643 (2022) (internal quotation marks
omitted)). Additionally, a party waives a challenge to a local
government’s decision when that challenge “could have been
raised, but was not raised,” in a party’s first appeal to LUBA.
Devin Oil Co., 252 Or App at 113.
We agree that Redside waived the argument that
LUBA erred in failing to address both risk of an adverse
impact from the rezoning of the subject property and the
cost of the impact of the development on nearby and adja-
cent farms by failing to raise the argument to LUBA. We
therefore decline to address it.
C. Petitioner 1000 Friends’ Assignment of Error
In its only assignment of error, petitioner 1000
Friends contends that LUBA erred in concluding that 1000
Friends had waived its argument that the county mistak-
enly evaluated only whether the subject property was nec-
essary to continuing farm practices under OAR 660-033-
0020(1)(1)(C), rather than potential new farm practices. We
agree with LUBA that 1000 Friends waived its argument.
406 Redside Restoration v. Deschutes County
As the prior discussion shows, the scope of LUBA’s
remand and the arguments raised on remand determine
whether 1000 Friends waived the argument it makes in this
judicial review. Thus, we summarize the two county deci-
sions in this case, the two appeals to LUBA, and the argu-
ments and issues raised in each.
Before the county in 2022, DLCD had argued
that “OAR 660-033-0020(1)(a)(C) requires an evaluation of
‘farming and ranching practices that are associated with
existing and potential farm uses in the surrounding area.’ ”
(Emphasis added.) In its first appeal to LUBA, 1000 Friends
argued that the county had misconstrued OAR 660-033-
0020(1)(a)(C) and that the EFU zoning of a property is neces-
sary to permit farm practices on adjacent and nearby lands
under OAR 660-033-0020(1)(a)(C) if the impacts from the
nonresource use of the land would prevent farm practices
on adjacent or nearby lands. 1000 Friends did not make a
specific argument to LUBA about potential farm practices
on nearby and adjacent lands.
In its 2024 decision on remand from LUBA’s order,
the county described the issue on remand as whether “the
[p]roperty’s existing designation [is] ‘necessary’ to permit
the continuance of farm practices on nearby and adjacent
lands?” Before LUBA on appeal of the county’s decision on
remand, 1000 Friends argued that the county had mistak-
enly evaluated only the continuation of existing farm prac-
tices and should have also evaluated the establishment of
potential new farm practices on nearby and adjacent lands.
1000 Friends also argued that that issue was not waived,
because 1000 Friends could not have reasonably anticipated
the county’s interpretation of OAR 660-033-0020(1)(a)(C) as
limited to existing farm practices.
In its order on review, LUBA cited Beck, Devin Oil
Co., and Currie v. Douglas County, 308 Or App 235, 481 P3d
427 (2020), as authority for its conclusion that 1000 Friends
had waived its argument under the “law of the case.” In
Griffin Oak Prop. Invest., we explained that “the waiver prin-
ciple articulated in Beck is a variation on the law of the case
doctrine.” 318 Or App at 794. The law of the case doctrine pro-
vides that “issues that LUBA decided in earlier proceedings,
Cite as 344 Or App 383 (2025) 407
and upon which judicial review was not sought, are not sub-
ject to review in a judicial review of a subsequent LUBA
order.” Id. (internal quotation marks omitted). That doctrine
draws on the same principles as the law of the case doctrine
that applies to litigation in a circuit court. A trial court must
follow decisions made on appeal in the same litigation, and
we must adhere to our prior decisions in a subsequent appeal
in the same litigation. Gould v. Deschutes County, 272 Or App
666, 686, 362 P3d 679 (2015). So too in a land use case. An
issue decided by LUBA that becomes final because a party
did not seek judicial review of that issue may not be chal-
lenged on judicial review of a subsequent LUBA order.
The waiver principle explained in Beck is related
but distinct from the law of the case doctrine. A party to
a land use decision waives an issue by failing to raise it at
the earliest opportunity. Devin Oil Co., 252 Or App at 113;
Beck, 313 Or at 153-54. That is a case-by-case inquiry akin
to the appellate courts’ rules on preserving claims of error
on appeal. See State v. Skotland, 372 Or 319, 326-27, 549
P3d 534 (2024). Sometimes, the earliest opportunity to raise
an issue will be before the county. Sometimes, it may be on
appeal to LUBA. See Devin Oil Co., 252 Or App at 113 (hold-
ing that a petitioner’s challenge to a limitation imposed by
the county was waived because the challenge “could have
been, but was not raised, in the petitioner’s first appeal in
[the] case[.]” (Emphasis added.)).
The point, as explained in Beck, is that an issue
could be waived without the law of the case doctrine specif-
ically applying. A party may not have raised that issue to
the county or to LUBA, and LUBA may not have addressed
the issue. If a party then raised the issue for the first time
on judicial review before us, there would be no prior decision
subject to the law of the case doctrine. However, we might
still conclude that the issue had been waived and refuse to
reach it under the principles of waiver. Whether a party to
a land use decision waived an issue involves a case-specific
evaluation. Beck, 313 Or at 154. Accordingly, we summarize
the records below that are relevant to 1000 Friends’ argu-
ment about potential farm practices on nearby and adjacent
lands.
408 Redside Restoration v. Deschutes County
The county’s 2022 decision had included three
tables as part of its findings regarding “[l]and that is nec-
essary to permit farm practices to be undertaken on adja-
cent or nearby agricultural lands.” Those tables listed sur-
rounding EFU-zoned properties, their current farm uses,
and their potential farm practices. The county found that
none of those surrounding EFU properties needed the sub-
ject property to conduct those farm practices:
The county included those tables again in its 2024 decision,
with its findings that the subject property was not “ ‘neces-
sary’ to permit the continuance of farm practices on nearby
and adjacent lands”:
In its 2024 decision, the county referred to those agricul-
tural lands as the “study area.” According to LUBA, that
inventory of farm uses and practices inventoried only exist-
ing uses and practices, and no party challenged the ade-
quacy of the inventory or argued that the inventory was
inadequate in failing to refer to potential uses on nearby
and adjacent land.
As discussed, in Landwatch I and Landwatch II,
1000 Friends challenged the adequacy of the county’s 2022
findings on the ground that the county failed to evaluate
whether the EFU zoning was necessary for farm practices to
be undertaken on nearby and adjacent lands. We agree with
LUBA, however, that 1000 Friends did not challenge which
nearby and adjacent properties or which farm practices the
county must evaluate, which had been defined in the included
tables relied on by the county in its 2022 decision.
In 2024, on remand before the county, 1000 Friends
did not argue that the county must evaluate potential new
farm practices on nearby and adjacent land. Applicant
Cite as 344 Or App 383 (2025) 409
submitted exhibits, available to all parties, as part of their
presentation at the July 24, 2024, county hearing for the
decision on remand. The applicant’s exhibits included the
tables with the column heading “[is] EFU Zoning Necessary
for Farm Practices to Continue?” The county later adopted
the applicant’s tables in its findings. 1000 Friends submitted
a four-page memorandum on August 7, 2024, that focused
on the potential development’s impacts on existing nearby
and adjacent farming operations. In the memorandum, 1000
Friends argued that “[t]he subject property’s existing agri-
cultural lands designation and zoning is necessary to permit
the continuation of ordinary and accepted farm practices on
adjacent and nearby agricultural lands.” The memorandum
did not include a challenge to the impacts of redesignation
and rezoning on potential farm uses.
To excuse its failure to raise the challenge in 2022,
1000 Friends relies on the fact that the county’s 2024 deci-
sion identified the information in the tables as the “study
area” but did not do so in the 2022 decision. We disagree.
The county evaluated the same properties and uses under
both the 2022 and 2024 tables. See Devin Oil Co., 252 Or
App at 113 (explaining that “[t]he fact that the same lim-
itation was applied through a different mechanism” did
not alter the waiver analysis). And we see no reason why
1000 Friends could have not raised its argument about the
development’s impacts on potential farm uses until after the
county changed the title to “study area.”
In sum, we agree with LUBA that 1000 Friends
waived its argument regarding potential farm uses under
OAR 660-033-0020(1)(a)(C). The challenge could have been,
but was not, raised in the first appeal to LUBA or to the
county on remand. See Beck, 313 Or at 154.
D. Petitioner LandWatch’s First Assignment of Error
In its first assignment of error, LandWatch asserts
that LUBA’s order was unlawful in substance in its review of
the evidence evaluating whether the subject property could
be used in conjunction with the adjacent Buchanan ranch
for the primary purpose of obtaining a profit in money. The
Buchanans have a 37-acre property that abuts the subject
410 Redside Restoration v. Deschutes County
property, and they are engaged in raising cattle. They pre-
sented evidence to the county that they could profitably
incorporate the subject property into their existing enter-
prise. We conclude that LUBA properly articulated and
applied the substantial evidence standard, and we accord-
ingly reject LandWatch’s first assignment of error.
As we explained above, if LUBA properly articu-
lates the substantial evidence standard of review, we will
affirm “unless there is no evidence to support the [county’s]
finding or the evidence in the case is ‘so at odds with LUBA’s
evaluation that a reviewing court could infer that LUBA had
misunderstood or misapplied its scope of review .’ ” Stevens v.
City of Island City, 260 Or App 768, 772, 324 P3d 477 (2014)
(quoting Younger, 305 Or at 359).
In its order, LUBA thoroughly discussed both whether
the subject property could be used in conjunction with the
Buchanan ranch for the primary purpose of obtaining a profit
and the evidence the county reviewed to make that determina-
tion. LUBA concluded that LandWatch did “not demonstrate[ ]
that the county’s choice to rely on the applicant’s evidence * * *
is not supported by substantial evidence, or that, as a mat-
ter of law, a reasonable decision—maker could only rely on
the Buchanans’ testimony.” LUBA’s order correctly identified
and applied the substantial evidence standard. Therefore, we
reject LandWatch’s first assignment of error.
E. Petitioner LandWatch’s Second Assignment of Error
In its second assignment of error, LandWatch
asserts that LUBA’s order was unlawful in substance in its
review of the evidence because LUBA failed to adequately
consider evidence of “identity” between the subject property
and cattle grazing property in central Oregon. LandWatch
did not argue to the county or to LUBA that the county must
consider “identity” evidence. A party must raise an argu-
ment to LUBA in order to assert on review that LUBA erred
when it did not address that argument. Central Oregon
LandWatch v. Deschutes County, 326 Or App 439, 447, 533
P3d 67 (2023) (citing Willamette Oaks, LLC v. City of Eugene,
248 Or App 212, 225, 273 P3d 219 (2012)). Thus, we reject
Cite as 344 Or App 383 (2025) 411
LandWatch’s second assignment of error because it was not
preserved below.
F. Petitioner LandWatch’s Third Assignment of Error
In its third assignment of error, LandWatch asserts
that LUBA’s order was unlawful in substance because it con-
cluded that the county satisfied the requirement to examine
“[n]earby and adjacent land, regardless of ownership,” under
OAR 660-033-0030(3), when the county only examined four
nearby farms. As discussed above, OAR 660-033-0030(3)
provides:
“Goal 3 attaches no significance to the ownership of a lot or
parcel when determining whether it is agricultural land.
Nearby or adjacent land, regardless of ownership, shall be
examined to the extent that a lot or parcel is either ‘suit-
able for farm use’ or ‘necessary to permit farm practices to
be undertaken on adjacent or nearby lands’ outside the lot
or parcel.”
LUBA concluded that LandWatch’s argument was
waived under Beck, because “all potential challenges to the
Study Area or which lands should be studied for conjoined
use were resolved or could have been resolved in Landwatch
I.” LandWatch did not challenge on either the first appeal
to LUBA or to the county on remand which nearby and
adjacent properties the county must evaluate for conjoined
use. LandWatch argues that the argument was not waived
because the term “study area” was not used until the coun-
ty’s 2024 decision.
We agree with LUBA that LandWatch waived its
argument regarding which properties the county should
have evaluated for conjoined use for the same reasons we
reject 1000 Friends’ reliance on the term “study area” in the
2024 table to excuse raising challenges to the party’s tables
earlier. LUBA correctly concluded that all potential chal-
lenges to the study area or which lands should be studied
for conjoined use were resolved or could have been resolved
in Landwatch I and are thus waived under Beck.
G. Petitioner LandWatch’s Fourth Assignment of Error
In its fourth assignment of error, LandWatch argues
that LUBA’s order was unlawful in substance in concluding
412 Redside Restoration v. Deschutes County
that a ranch that is less than a mile away from the subject
property is not “nearby,” as that term is used in OAR 660-
033-0030(3). LandWatch challenges LUBA’s statement that
it had not established that the Johnson ranch was “nearby”
under the circumstances of the case, even though it was only
one mile away from the subject property. LUBA made that
statement as an alternative basis for its decision, however,
after deciding that LandWatch had waived its argument
that the county should have included the Johnson ranch in
the “study area” tables. We agree for the same reasons we
conclude that LandWatch waived its other challenges to the
land that the county should have considered. Accordingly,
we reject LandWatch’s fourth assignment of error.
H. Petitioner Buchanans’ First Assignment of Error
The Buchanans’ assignments of error challenge
the county’s and LUBA’s decisions about whether they or
another person could use the subject property as farm or
agricultural land for the purpose of obtaining a profit. As
noted above, EFU zones “shall be used exclusively for farm
use,” unless an exception applies. ORS 215.203(1). The leg-
islature defined “farm use” as “the current employment of
land for the primary purpose of obtaining a profit in money,”
by engaging in a list of activities. ORS 215.203(2)(a). LCDC
incorporated that definition of farm use into its definition of
“agricultural land” for Goal 3:
“(1)(a) ‘Agricultural Land’ as defined in Goal 3 includes:
“(A) Lands classified by the U.S. Natural Resources
Conservation Service (NRCS) as predominantly Class I-IV
soils in Western Oregon and I-VI soils in Eastern Oregon;
“(B) Land in other soil classes that is suitable for farm
use as defined in ORS 215.203(2)(a), taking into consider-
ation soil fertility; suitability for grazing; climatic condi-
tions; existing and future availability of water for farm
irrigation purposes; existing land use patterns; techno-
logical and energy inputs required; and accepted farming
practices; and
“(C) Land that is necessary to permit farm practices to
be undertaken on adjacent or nearby agricultural lands.”
Cite as 344 Or App 383 (2025) 413
OAR XXX-XX-XXXX (emphasis added). A local government
may consider the “costs and expenses”—”profitability”—of
engaging in the farm or agricultural activities listed in ORS
215.203(2) when deciding whether land is suitable for farm
use. Wetherell, 342 Or at 680.
The Buchanans own a 37.51-acre parcel that adjoins
the subject property. They operate a business that involves
grazing cattle. They graze cattle on a separate parcel of irri-
gated pastureland about 20 miles from the subject property.
In the winter, the cattle graze on the 37.51-acre pastureland
that is adjacent to the subject property. They submitted a
business plan to the county that proposed to use the sub-
ject property for seasonal grazing as part of an expansion
of their business. They told the county that doing so would
increase their profits. Respondents presented testimony that
contested whether the Buchanans’ plan could be profitable,
based largely on evidence that the subject property was not
suitable for grazing even when used in conjunction with the
Buchanans’ adjacent parcel. The county relied on respondent’s
evidence, not the evidence presented by the Buchanans.
In their first assignment of error, the Buchanans
argue that LUBA misconstrued the definition of agricul-
tural land under OAR 660-033-0020(1)(a)(B) by giving
undue weight to considerations of profitability in determin-
ing whether land is suitable for farm use. We conclude that
LUBA did not misconstrue the definition of agricultural
land and, therefore, reject the Buchanans’ first assignment
of error.
On appeal to LUBA, the Buchanans argued that
the county had “again” misconstrued the applicable law
by overemphasizing profitability and improperly weighing
the other considerations listed in OAR 660-033-0020(1)(a)
(B). However, LUBA disagreed that the “ ‘undue weight’
basis for remand” was premised on the county’s failure
to give “appropriate weight * * * to consideration of profit-
ability compared to the weight given other considerations.”
Instead, it understood that the remand was “directed at the
county’s exclusive focus on the subject property.” LUBA con-
cluded that, although the county’s decision on remand did
address profitability at length, “that differential presumably
414 Redside Restoration v. Deschutes County
correlates to the relative volume of evidence submitted,” and
the Buchanans did “not establish that the county erred in
giving short shrift to other considerations, or otherwise
elevated considerations of profitability over considerations
listed in the rule.”
The Buchanans argue that profitability is not one
of the seven considerations that Goal 3 uses to determine
whether land is suitable for farm use. However, as dis-
cussed above, OAR 660-033-0020(1)(a)(B) defines “agricul-
tural land” to include “land that is suitable for farm use as
defined in ORS 215.203(2)(a) taking into consideration” a
number of other factors. ORS 215.203(2)(a) defines farm use
to mean “the current employment of land for the primary
purpose of obtaining a profit in money * * *.” Those provi-
sions permit a county to consider profitability when deciding
whether land is suitable for farm use. Wetherell, 342 Or at
683. Here, LUBA correctly understood the definition of agri-
cultural land, and it correctly applied that definition when it
evaluated the county’s decision. Therefore, we conclude that
LUBA’s order was not unlawful in substance with regards to
the Buchanans’ first assignment of error.
I. Petitioner Buchanans’ Second Assignment of Error
In their second assignment of error, the Buchanans
contend that LUBA’s treatment of “profitability” is incon-
sistent with the intent to preserve farmland, as expressed
in ORS 215.203 and in Goal 3. Specifically, we understand
their argument to be that LUBA misconstrued the “prof-
itability” requirement of OAR 660-033-0020(1)(a)(B) as
requiring an inquiry into whether a farmer can make a
profit from the land. The Buchanans argue that the correct
inquiry is whether a farmer could undertake an agricul-
tural use on the land for the purpose of obtaining a profit,
not whether the farmer would, in fact, make a profit. But
LUBA’s order does not reflect that claimed misunderstand-
ing of ORS 215.203(2)(a). The premise of the Buchanans’
second assignment of error is incorrect, and we therefore
reject the argument.
In responding to the Buchanans’ arguments, LUBA
characterized their argument as taking a position that a
Cite as 344 Or App 383 (2025) 415
local government must accept a neighboring farmer’s state-
ment that they intended to farm the land for the purposes
of a making profit. The Buchanans argue here that LUBA
mischaracterized their argument. Their argument, they
explain, was that the “primary purpose” of profit as used
in ORS 215.203(2)(a) relates to a person’s intent to farm
and that the county erred in disregarding the Buchanans’
evidence of their intent to graze cattle on the land for the
purpose of profit. The Buchanans contend that LUBA erred
in failing to give sufficient weight to the objective and sub-
jective evidence of their intention to farm the property for
profit.
The Buchanans argument is a challenge to the coun-
ty’s decision to rely on applicant’s evidence instead of their
testimony, regardless of how it is framed. The county was not
required, as a matter of law, to rely on the Buchanans’ tes-
timony, and it was not required to reject the countervailing
evidence submitted by the applicant. LUBA concluded that
substantial evidence supported the county’s determination
regarding the profitability of the conjoined use of the subject
property. LUBA correctly applied the substantial evidence
standard in reviewing the county’s determination, and we
must affirm under our standard of review. See Citizens for
Responsibility, 281 Or App at 345 (stating standard).
We note that the Buchanans’ argument relating to
objective and subjective evidence of profitability is similar
to an argument raised by LCDC in its amicus brief that the
definition of “farm use” in ORS 215.203 supports application
of a “subjective intent” standard in evaluating profitability.
LUBA applied an “objective” standard when it evaluated
profitability in its first order in Landwatch I:
“[W]hether land may be employed ‘for the primary pur-
pose of obtaining a profit in money,’ for purposes of ORS
215.203(2)(a), is an objective test that focuses on the activi-
ties that would be occurring on the land.
“Accordingly, we have explained that the question
under OAR 660-033-0020(1)(a)(B) is ‘whether a reason-
able farmer would be motivated to put the land to agri-
cultural use, for the primary purpose of obtaining a profit
in money. * * *. Similarly, we have said that the question
416 Redside Restoration v. Deschutes County
is whether the property is capable of farm use with a rea-
sonable expectation of yielding a profit in money. * * *. The
Board of Commissioners did not err in considering whether
a ‘reasonable farmer’ would have an expectation [intent]
of obtaining a profit in money from growing crops on the
subject property.”
Landwatch I, LUBA Case Nos 2023-006/009 at 28.
No party challenged LUBA’s application of the objec-
tive “reasonable farmer” standard applied by LUBA in its
first order, and the issue is therefore waived. See Beck, 313
Or at 154 (holding that parties may not raise “old resolved
issues again”).
IV. CONCLUSION
LUBA’s order was not unlawful in substance. We
therefore affirm LUBA’s order.
Motion to strike granted; affirmed.