Gould v. Deschutes County

Generally, parties in quasi-judicial land use proceedings have a right to present and rebut evidence. Fasano v. Washington Co. Comm., 507 P2d 23 (1973). However, "there is no unlimited right to rebut rebuttal evidence, and Fasano does not require endless opportunities to rebut rebuttal evidence." Rice v. City of Monmouth, 53 Or LUBA 55, 60 (2006), aff’d, 154 P3d 786 (2007).

Petitioner challenged a decision by a hearings officer approving the Final Master Plan (FMP) and site plan review application modification for the phased development of the Thornburgh Destination Resort. Under Deschutes County Code (DCC), developments must establish a fish and wildlife mitigation plan (FWMP) demonstrating "[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource." DCC 18.113.070(D). To meet this “no net loss standard,” and as a condition (Condition 17) of approval for the development’s Phase A-1 tentative plan (TP), Thornburg was required to mitigate effects on off-site fish habitat by securing water rights from Big Falls Ranch and Central Oregon Irrigation District, as specified in the FWMP, or from an alternate source demonstrated to be equivalent in quantity and quality.

In Gould VIII, LUBA concluded that TP Condition 17 violated the right to a public hearing on whether the no net loss standard would be satisfied for Phase A-1 by mitigation from water sources not specified in FWMP. On remand, Thornburgh did not acquire approval for alternate sources, and instead presented evidence that it had secured the necessary water rights solely from Big Falls Ranch. The hearings officer concluded that TP Condition 17 was unneeded because Thornburgh did not propose any sources other than those already approved.

In their first assignment of error, Petitioner argued that the hearings officer's conclusion that the Phase A-1 TP complies with the FWMP without TP Condition 17 misconstrued the applicable law and was not supported by substantial evidence in the record. Petitioner argued that under the FWMP, at the time of the approval, Thornburgh was required to establish that the mitigation water had been transferred instream before the water use associated with Phase A-1 commenced. The County responded that based on the narrow remand, Thornburgh needed merely to establish that it had secured the water rights to satisfy the mitigation requirements of Phase A-1. LUBA agreed, noting that in Gould X, it was established that the FWMP did not require proof of mitigation actions prior to the third-stage development application.

Petitioner also argued that there was evidence in the record that the Big Falls Ranch water rights were insufficient to result in mitigation compliant with the no net loss standard. Petitioner pointed to evidence that there is not enough actual water in the source creek to support the rights. The County responded that the FWMP does not require Thornburgh to demonstrate that adequate actual water exists within the creek, but rather their obligation was only to purchase water rights. LUBA sided with the County, explaining that though the FWMP requires actual water to satisfy the no loss standard, it does not require Thornburgh to establish a sufficient amount of actual water at the tentative plan stage. The first assignment of error is denied. 

In their second assignment of error, Petitioner argued the County committed a procedural error when it denied Petitioner the opportunity to rebut evidence Thornburgh submitted on remand that it had purchased Big Falls Ranch's mitigation water rights. Petitioner requested the hearings officer reopen the record to submit a letter from their water rights counsel arguing that the purchase of water rights from Big Falls Ranch was legally insufficient. The County responded, and LUBA agreed, that the Petitioner had not demonstrated that they have a right to reopen the record to submit further rebuttals to evidence. LUBA explained that generally, parties in quasi-judicial land use proceedings have a right to present and rebut evidence. Fasano v. Washington Co. Comm., 264 Or 574,588, 507 P2d 23 (1973). However, "there is no unlimited right to rebut rebuttal evidence, and Fasano does not require endless opportunities to rebut rebuttal evidence." Rice v. City of Monmouth, 53 Or LUBA 55, 60 (2006), aff’d, 154 P3d 786 (2007). The second assignment of error is denied. 

Affirmed.