Date: 03-01-2017

Case Style: Kenneth A. Thomas v. Wasco County

Case Number: A155511

Judge:

Court: Oregon Court of Appeal on appeal from the Circuit Court, Wasco County

Plaintiff's Attorney: Peter Livingston

Defendant's Attorney: Jill D. Bowman, Jeremy D. Sacks and Elaine R. Albrich

Steven D. McCoy filed the brief amicus curiae for 1000
Friends of Oregon.

Description: Petitioner Kenneth Thomas appeals from judgments
of the circuit court dismissing his petition for a writ
of review and his second amended complaint seeking a
declaratory judgment.1 The proceedings arise out of petitioner’s
objections to an order of the Wasco County Board
of Commissioners granting a permit for an “outdoor mass
gathering” to petitioner’s neighbor. ORS 433.750 (2013)
(authorizing a county governing body to “issue a permit
upon application” for an outdoor mass gathering).2 The
issues on appeal relate to the interplay of Oregon’s land use
laws and those governing outdoor mass gatherings. For the
reasons explained in this opinion, we conclude that the circuit
court did correctly enter judgment for respondents on
the writ of review petition but that it erred in dismissing the
second claim of petitioner’s second amended complaint in
the declaratory judgment action. We therefore reverse and
remand the judgment dismissing the declaratory judgment
action and otherwise affirm.
I. BACKGROUND
A. Issuance of the Outdoor-Mass-Gathering Permit
The relevant facts and chronology are undisputed.
Respondent Wolf Run Ranch, LLC (Wolf Run) owns 254
acres in Wasco County. The subject property is partially forested
and is zoned for forest use; within the parcel is a field of
approximately 92 acres. The property also includes a singlefamily
dwelling, several small barns, garages and other outbuildings,
and a driveway to the dwelling. Petitioner owns
timbered land adjacent to the subject property.
In March 2013, respondent Moonshine Events, LLC,
doing business as “What the Festival” (Moonshine), filed an
application with the county seeking a permit for an outdoor
1 The appeals of the two judgments have been consolidated. For convenience,
throughout this opinion, we refer to Thomas as “petitioner,” although he is also
the plaintiff in the declaratory judgment action.
2 ORS 433.750 was amended in 2015, effective June 16, 2015. Or Laws 2015,
ch 428, § 1. The amendments are not applicable to this proceeding. Except as
noted, all references in this opinion to provisions in ORS chapter 433 are to the
2013 version, which was in effect when the permit was granted.
20 Thomas v. Wasco County
mass gathering on Wolf Run, with an anticipated festival
attendance of 4,000 to 5,000 attendees and 600 to 800 staff.
The event was to be held from July 25 to 28, 2013. The permit
application included a site plan showing proposed development
to the property to accommodate the festival, including
additional and expanded roads, several parking areas,
an area to be leveled by “cut and fill” for use as a splash
pool, and other water storage areas. A proposed new roadway
would provide primary access to the festival.
ORS 433.735(1) defines an “outdoor mass gathering”
as
“an actual or reasonably anticipated assembly of more
than 3,000 persons which continues or can reasonably be
expected to continue for more than 24 consecutive hours
but less than 120 hours within any three-month period and
which is held primarily in open spaces and not in any permanent
structure.”
Under ORS 433.745(1), a person who seeks to “hold, conduct,
advertise or otherwise promote” an outdoor mass gathering
may do so by permit.3 ORS 433.745(2) states that a permit
for an outdoor mass gathering “does not entitle the organizer
to make any permanent physical alterations to or on
the real property.”4
3 As relevant here, ORS 433.745(1) provided:
“No organizer shall hold, conduct, advertise or otherwise promote an outdoor
mass gathering or allow an outdoor mass gathering to be held on real
property the organizer owns, leases or possesses unless a permit to hold such
outdoor mass gathering has been issued by the county governing body in
which the outdoor mass gathering is to take place.”
ORS 433.745(1) was amended in 2015. Oregon Laws 2015, chapter 428, section
11. The 2015 amendments are not applicable here.
4 As relevant here, ORS 433.745(2) provided:
“A permit issued under this section does not entitle the organizer to make
any permanent physical alterations to or on the real property which is the
site of the outdoor mass gathering.”
As amended by Oregon Laws 2015, chapter 428, section 1, ORS 433.745(2) now
provides:
“A permit issued under this section does not entitle the organizer to make
any permanent development to or on the real property. Any permanent development
on the real property must be made in accordance with any applicable
state or local land use law.”
(Emphasis added.) The 2015 amendments are not applicable here.
Cite as 284 Or App 17 (2017) 21
The procedures for seeking a permit for an outdoor
mass gathering are set forth in ORS 433.750(1), which
provides that the governing body of a county shall issue a
permit
“when the organizer demonstrates compliance with or the
ability to comply with the health and safety rules governing
outdoor mass gatherings to be regulated according to
the anticipated crowd and adopted by the Oregon Health
Authority.”
A county must hold a hearing on an application for an outdoor
mass gathering, publish notice of the hearing, and give
notice to local law enforcement, fire, and health officials. ORS
433.750(2) - (4). A county’s authorization of an outdoor mass
gathering is not a land use decision. ORS 197.015(10)(d).5
The county held a public hearing on May 8, 2013.
Witnesses described the development that would be necessary
to hold the festival and to satisfy state health and
safety standards, including the cutting of trees to accommodate
the construction of a parking area, a ticket booth, and
new access road; multiple vehicle-arrival lanes; a stream
crossing for vehicles; and a culvert.6
Petitioner appeared at the hearing and contended
that the proposed improvements would effect permanent
alterations to the property that were not allowed without
permits and that had not been approved under applicable
land use statutes and ordinances. A county planner testified
that the county did not intend to permit any sort of
permanent infrastructure in conjunction with the outdoormass-
gathering permit, and that the required road (which
the parties do not dispute is a permanent improvement)
was a “driveway” already allowed in conjunction with the
5 We note for context that becomes significant to our analysis below, see
284 Or App at 30-31, that ORS chapter 433 also sets out distinct procedures for
permits for gatherings anticipated to last longer than 120 hours. In particular,
under ORS 433.763(1)(c)(A), an application for a gathering anticipated to last
longer than 120 hours must be presented to the county planning commission and
is explicitly subject to land use requirements.
6 OAR 333-039-0005 to 333-039-0055 “govern health and safety at outdoor
mass gatherings[.]” Among those provisions is one requiring “easily accessible
roads of all-weather construction at the outdoor mass gathering site.” OAR
333-039-0055.
22 Thomas v. Wasco County
existing residential use.7 At the conclusion of the hearing
on May 8, 2013, the Wasco County Board of Commissioners
unanimously approved respondents’ application for a permit
for an outdoor mass gathering on the subject property, and
it issued an order approving that gathering, with 11 conditions.
Moonshine undertook to improve the property as
required by the county’s order.
B. Petitioner’s Challenges to the Permit and the Trial
Court’s Rulings
1. Petitioner’s LUBA challenge
Petitioner challenged the county’s order granting
the outdoor-mass-gathering permit through various channels.
One of those routes involved an appeal of the county’s
order to the Land Use Board of Appeals (LUBA). Petitioner
acknowledged that the county’s granting of the permit was
not itself a land use decision subject to LUBA’s jurisdiction.
See ORS 197.015(10)(d) (excluding from the definition of a
“land use decision” the “authorization of an outdoor mass
gathering as defined in ORS 433.735”). Nonetheless, petitioner
argued, the county’s approval encompassed a separate
land use decision to approve permanent alterations to
the property, specifically an access road and a parking lot,
that are expressly prohibited by ORS 433.745(2). LUBA dismissed
petitioner’s appeal, explaining that “the county made
only a single decision * * * which approves the [outdoor mass
gathering], including the access road and the parking areas.”
LUBA reasoned, further, that petitioner’s arguments that
the county had erroneously approved permanent physical
7 The planner testified:
“[W]e are not intending to permit any sort of permanent infrastructure
in conjunction with the request * * *. We don’t think that’s allowed in the
statute. That’s not what we’re intending to do. The road that was described
on this property is a driveway. There’s an existing driveway. It’s a residential
use on the property. It would be—it’s infrastructure that goes with the
residential use, which is permitted on this property and it’s permitted in this
zone[.]”
Although the county planner characterized the new road as a “driveway” permitted
in conjunction with the existing residence, it is clear that the county understood
that the road was intended to serve the festival. The application for the
road approach permit listed the purpose of the approach as “commercial,” and
the permit itself described as its purpose “constructing new approach to access
[festival] parking lot.”
Cite as 284 Or App 17 (2017) 23
alterations to the land in violation of ORS 433.745(2) should
be presented to the circuit court, on petition for review of the
order. Petitioner did not seek review of LUBA’s order.
2. Petitioner’s code-compliance complaint
Petitioner also sought relief from the county’s order
granting the outdoor-mass-gathering permit via Wasco
County’s Land Use and Development Ordinance (LUDO),
Section 15.010, under which it is the duty of the county planning
director or the director’s designee to “to enforce the provisions”
of the county’s ordinances “pertaining to property
use and to the construction, erection, location or enlargement
of any structure located within Wasco County[.]”8
Petitioner filed a complaint with the county’s code compliance
officer, alleging that the improvements required by
the permit would result in permanent physical alterations
to the subject property in violation of ORS 433.745(2) and
in violation of state and local land use laws. On May 23,
2013, the county’s compliance officer rejected petitioner’s
complaint and issued a “notification of non-violation” (NNV),
stating that the county did not find any code violations in
connection with the county’s conditions for the permit. The
NNV explained that the parking and vehicle staging areas
were “temporary” and that the “driveway” and culvert were
permitted in conjunction with the existing dwelling and residential
use. The NNV stated additionally that the county’s
code compliance program was not the mechanism for challenging
the approval of an outdoor mass gathering, and that
any challenge to the permit must be taken up in the circuit
court, pursuant to ORS 433.750(5). Petitioner did not appeal
the May 23 NNV to LUBA or otherwise challenge it.9
8 LUDO Section 15.030 provides:
“Whenever necessary to enforce the provisions of this Ordinance, the Director,
or the Director’s designee, shall have the authority in addition to other remedies
provided by law, to issue compliance notices and orders, assess penalties,
record violations and liens with the County Clerk, issue citations, to institute
injunction, mandamus, abatement or other appropriate proceedings to prevent,
temporarily, or permanently enjoin or abate a violation.”
9 We take judicial notice that, in August 2013, petitioner filed a second
code-compliance complaint, asserting that the development of roads, parking
areas, and water storage areas shown on the site plan on the subject property
occurred without the necessary development approvals. The county’s code compliance
officer again concluded that there had been no land use violations on the
24 Thomas v. Wasco County
3. The writ of review proceeding
As the county’s NNV signaled, ORS 433.750(5) provides
that “[a]ny decision of a county governing body on an
application for a permit to hold an outdoor mass gathering
may be appealed to a circuit court for the county as provided
in ORS 34.020 to 34.100.” On May 14, 2013, petitioner filed
a circuit-court petition for a writ of review of the county’s
order granting the outdoor-mass-gathering permit. Among
other contentions, petitioner alleged that the permanent
improvements to be made to the property to comply with
the county’s health and safety conditions are prohibited by
state land use laws. Petitioner sought a stay of the permit
to prevent further alterations of the property. The county
responded that the improvements were temporary or were
allowed under previous land use authorizations. The county,
Wolf Run, and Moonshine also contended that petitioner
should have challenged the outdoor-mass-gathering permit
indirectly, by appealing the NNV to LUBA.
In early July 2013, the circuit court issued a letter
opinion affirming the county’s decision to issue the permit.
The court rejected petitioner’s contention that the county’s
outdoor-mass-gathering permit had authorized permanent
alterations on the property, in violation of ORS 433.745(2).
The court reasoned that, although ORS 433.745(2) states
explicitly that an outdoor-mass-gathering permit does not
authorize permanent improvements, any inquiry as to
whether proposed permanent improvements complied with
land use laws was beyond the county’s jurisdiction in the
context of the permitting process, and that the “county governing
body * * * is not charged with considering the potential
for a violation of this statute when reviewing the permit
application.” The court explained:
“Although I agree with the premise that the County lacks
jurisdiction in the [outdoor mass gathering] Permit process
to approve permanent improvements, I cannot find from
the record that the County did any such thing.
“Petitioner does not argue that the County expressly
approved unlawful permanent improvements on the property.
property. Petitioner appealed that decision to LUBA, which has held the case in
abeyance pending the outcome of this appeal.
Cite as 284 Or App 17 (2017) 25
Rather, Petitioner argues that the County was aware, or
should have been aware, that applicant would be making
unlawful permanent improvements to the property in
anticipation of holding the [outdoor mass gathering], and
by approving the [outdoor mass gathering] permit the
County tacitly approved the unlawful permanent improvements,
thus exceeding its jurisdiction.
“This argument is buttressed somewhat by certain
statements made in the Order approving the [outdoor mass
gathering] permit. In its second Finding of Fact, the Board
‘recognizes the procedural and legal requirements of * * *
the Wasco County Land Use and Development Ordinance.’
* * * In its Conclusions of Law, the Board notes that its decision
is ‘consistent with * * * the Wasco County Land Use
and Development Ordinance.’
“In my view, however, these statements are surplusage,
not license. During the May 1 [outdoor mass gathering]
permit hearing, the County directed Petitioner to take any
land use concerns to the County’s Code Compliance Office.
* * * The County’s Order specifically states: ‘This decision
does not constitute tacit approval for any other development
or use.’
“Given the criteria for the granting of [outdoor mass
gathering] permits described above, the issue whether
applicant intended to make unlawful improvements to
the property could play no role in the decision, either for
or against. It is simply not relevant to the permit process.
[Footnote omitted.] During oral argument on July 2,
Petitioner characterized the County’s disregard of his concerns
regarding permanent improvements as a ‘de facto
approval’ of the improvements. I feel the County’s disregard
is more properly characterized as recognition that, in
the context of the [outdoor mass gathering] permit process,
the County has no jurisdiction to delve into it. By ignoring
Petitioner’s concerns regarding permanent improvements,
the County did not exceed its jurisdiction, it limited itself to
matters within its jurisdiction.”
(Emphasis circuit court’s.)
Thus, the court concluded, in the outdoor-massgathering
permitting process, the county’s “jurisdiction”
is limited to considering whether the property owner can
comply with health and safety requirements, and does not
26 Thomas v. Wasco County
include consideration of whether the property owner has the
land use approvals required to comply with conditions for
the issuance of the permit. The court also considered and
rejected petitioner’s challenges to the sufficiency of the evidence
in support of the county’s findings with respect to
public safety and health requirements, and concluded that,
because health and safety requirements had been met, the
county was required to grant the permit.10 Thus, the court
dismissed petitioner’s writ of review petition.11
4. The declaratory judgment action
On the same day that the circuit court rejected
the petition for writ of review, petitioner filed a declaratory
judgment action in the Wasco County Circuit Court, naming
as defendants the county, Wolf Run, and Moonshine, and
seeking a declaration that the permit had been issued in
violation of land use laws. Petitioner asserts that the claim
for declaratory relief is proper under ORS 197.825(3), which
provides that the circuit courts retain jurisdiction to grant
declaratory, injunctive, or mandatory relief in a proceeding
brought to enforce the provisions of an adopted comprehensive
plan or land use regulation. Petitioner also relied on
LUDO section 15.040, which provides:
“When a building or other structure is, or is proposed to
be, located, constructed, maintained, repaired, altered, or
used, or any land is, or is proposed to be, used in violation
of this Ordinance, * * * any person whose interest in real
property within the County is or may be affected by the
violation, may, in addition to other remedies provided by
law, institute injunction, mandamus, abatement, or other
10 Relying on an opinion of the Ninth Circuit Court of Appeals in Southern
Oregon Barter Fair v. Jackson County, Oregon, 372 F3d 1128 (9th Cir 2004), the
court also concluded that, because an outdoor mass gathering implicates constitutionally
protected expression, the county has no discretion to withhold a permit
when an applicant demonstrates compliance with health and safety regulations.
Because we uphold the court’s rejection of the writ of review petition for other
reasons, we need not address that additional rationale.
Petitioner does not challenge the trial court’s sufficiency-of-evidence rulings
on appeal, and we do not discuss those rulings further.
11 Despite its “dismissal” of the petition for writ of review, we understand
the court to have rejected petitioner’s claims on the merits. No party attaches
significance to the court’s use of the term “dismissal” in this context, so we do not
address that point further.
Cite as 284 Or App 17 (2017) 27
appropriate proceedings to prevent, temporarily or permanently
enjoin, abate, or remove the unlawful location, construction,
maintenance, repair, alteration or use.”
In his declaratory judgment action, petitioner also sought an
injunction requiring removal of unpermitted improvements
and prohibiting further development on the subject property
in violation of state and federal law or in the absence of
required permits.
The circuit court dismissed petitioner’s declaratory
judgment action on July 16, 2013, for the reasons set out
below. The festival was held, as scheduled, less than two
weeks later.
II. ANALYSIS
A. The Trial Court Correctly Entered Judgment for
Respondents in the Writ of Review Petition.
Petitioner appeals both the judgment dismissing
the writ of review proceeding and the judgment dismissing
the declaratory judgment action. We begin our analysis
with the writ of review judgment. As noted, ORS 433.750(5)
provides:
“Any decision of a county governing body on an application
for a permit to hold an outdoor mass gathering may
be appealed to a circuit court for the county as provided in
ORS 34.020 to 34.100.”
In a writ of review proceeding, the circuit court is required
to allow the writ “in all cases in which a substantial interest
of a plaintiff has been injured” and in which
“an inferior court including an officer or tribunal other
than an agency as defined in ORS 183.310(1) in the exercise
of judicial or quasi-judicial functions appears to have:
“(a) Exceeded its jurisdiction;
“(b) Failed to follow the procedure applicable to the
matter before it;
“(c) Made a finding or order not supported by substantial
evidence in the whole record;
28 Thomas v. Wasco County
“(d) Improperly construed the applicable law; or
“(e) Rendered a decision that is unconstitutional.”
ORS 34.040(1). As explained above, the trial court dismissed
the writ of review proceeding because, it ruled, the
county was not required to determine compliance with land
use laws as part of its permitting of an outdoor mass gathering
and, therefore, had properly confined its jurisdiction
in granting that permit. Petitioner challenges that ruling
on appeal.
Before discussing the merits of petitioner’s challenge,
we note that the 2013 festival has been held and that
the permit authorizing it has expired. That might give rise to
questions concerning the justiciability of petitioner’s appeal
and whether it has become moot. But, as petitioner points
out, the improvements to the subject property that form the
basis for petitioner’s objections to the permit remain, and
those improvements allegedly continue to adversely affect
petitioner’s property by creating a fire hazard. See Barnes
v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den,
329 Or 447 (1999) (even if the main issue in controversy
has been resolved, collateral consequences may prevent the
controversy from being moot under some circumstances).
Further, it is undisputed that the festival is anticipated
to be an annual event with a requirement for annual permits
and that the permanent improvements already made
to the property will bear on the issuance of future permits.
Respondents do not argue to the contrary. Given the continuing
collateral effects, we agree with petitioner that the
writ of review challenge of the county’s order is not moot,
and we therefore proceed to the merits.
In petitioner’s first assignment of error challenging
the dismissal of the writ of review petition, petitioner asserts
that the trial court erred in concluding that the county was
not required to consider whether Wolf Run and Moonshine
had the land use approvals necessary to allow them to comply
with the health and safety conditions that the county imposed
as a condition of granting the outdoor-mass-gathering
permit.12 Respondents do not dispute petitioner’s assertion
12 We reject respondents’ contention that petitioner failed to preserve that
argument and invited any error by conceding during colloquy that the county
Cite as 284 Or App 17 (2017) 29
that the planned improvements did not have land use
approvals. Rather, they contend that the circuit court correctly
interpreted the statutory provisions to preclude
consideration of land use issues in the context of the outdoor-
mass-gathering permitting process, and also to preclude
consideration of whether land use approvals had been
obtained for permanent improvements required to satisfy
health and safety conditions for the permit. That dispute
presents a question of statutory construction that we review
as a matter of law. PGE v. Bureau of Labor and Industries,
317 Or 606, 610-12, 859 P2d 1143 (1993).
We begin with the text of the key statutory provisions.
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042
(2009). As we have previously explained, under ORS
433.745(1), a person seeking to organize an outdoor mass
gathering must obtain a permit from the county governing
body. ORS 433.750 and ORS 433.755 describe the process for
applying for and reviewing an application for a permit for
an outdoor mass gathering. ORS 433.750(1) provides that in
considering an application for an outdoor mass gathering,
“[t]he governing body of a county in which an outdoor mass
gathering is to take place shall issue a permit upon application
when the organizer demonstrates compliance with or
the ability to comply with the health and safety rules governing
outdoor mass gatherings to be regulated according to
the anticipated crowd and adopted by the Oregon Health
Authority.”
(Emphasis added.)
Petitioner argues that a permit may be granted
under ORS 433.750 only if the applicant satisfies a burden
to “demonstrate compliance with or the ability to comply
was required by statute to grant the permit even if permanent improvements
were required to satisfy safety and health concerns. We have reviewed the transcript
of the hearing and, although the excerpt cited by respondents could be
viewed in isolation to make that concession, when the transcript is considered in
its entirety, it is clear that petitioner’s counsel made the exact opposite argument:
that the county’s Board of Commissioners lacked authority, in the context of the
hearing on the permit, to issue the permit if health and safety considerations
required permanent changes to the property. And it is clear that the trial court
understood petitioner’s counsel to be making that argument. We therefore conclude
that the issue is preserved for our review.
30 Thomas v. Wasco County
with the health and safety rules for outdoor mass gatherings.”
When necessary land use approvals have not been
obtained, petitioner contends, an applicant cannot meet
that burden. Petitioner further contends that, because ORS
433.745(2) provides that an outdoor-mass-gathering permit
“does not entitle the organizer to make any permanent
physical alterations to or on the real property,” the applicant
must demonstrate that any permanent improvements
necessary to comply with health and safety rules are separately
permitted or approved. If, petitioner contends, “compliance
means breaking the law, the organizer does not
have the necessary ‘ability’ ” to comply with the health and
safety requirements.
Respondents do not dispute that, necessarily,
approvals for permanent improvements must be pursued
through means other than the outdoor-mass-gathering permitting
process. However, they contend that whether an
applicant has obtained the necessary approvals is beyond
the scope of the county’s consideration in the context of
an application for an outdoor-mass-gathering permit. In
respondents’ view, the part of ORS 433.750 that we have
emphasized above requires the county to issue a permit
for an outdoor mass gathering if the applicant shows that
it can comply with the health and safety rules governing
outdoor mass gatherings, regardless of whether the permanent
improvements necessary to achieve compliance would
require land use approvals.
As support for their construction, respondents invoke
statutory context, including, specifically, ORS 197.015(10)(d)
and ORS 433.763(1)(c)(A). Respondents reason that, because,
under ORS 197.015(10)(d), an authorization of an outdoor
mass gathering is not a land use decision, land use considerations
do not come into play in the outdoor-mass-gathering
permitting process. Respondents contrast that statutory
provision to ORS 433.763(1)(c)(A), which applies when a
gathering is anticipated to last longer than 120 hours, and
under which the applicant must show that “[a]ny permits
required by the applicable land use regulations have been
granted.” Respondents contend that if the legislature had
also intended that an applicant must show necessary land
Cite as 284 Or App 17 (2017) 31
use approvals to obtain a permit for an outdoor mass gathering,
it could have so stated.13
After considering the pertinent statutory provisions
in context, we conclude that respondents are correct:
ORS 433.750 does not require an applicant for an outdoormass-
gathering permit to demonstrate compliance with
land use regulations. First, the text of the pertinent statutes
does not include that requirement. ORS 433.750, which
prescribes what must be included in an application for an
outdoor-mass-gathering permit, does not specify that the
applicant must demonstrate compliance with land use regulations.
And ORS 433.745 states only that the outdoormass-
gathering permit does not, itself, authorize permanent
physical alterations to the property on which the gathering
will occur. It simply is silent regarding how authorization for
any such alterations might be obtained.
Consideration of statutory context points to the
same conclusion. ORS 433.763 applies to gatherings that
are expected to last longer than gatherings that may be
authorized by outdoor-mass-gathering permits. That statute
expressly requires that a county considering whether
to authorize a longer-duration gathering determine that
“[a]ny permits required by the applicable land use regulations
have been granted.” ORS 433.763(1)(c)(A). We will not,
as petitioner urges, read a similar requirement into ORS
433.750, which governs applications for outdoor mass gatherings;
such an interpretation would conflict with our duty
“not to insert what has been omitted” from that statute.
ORS 174.010; see also State v. Bailey, 346 Or 551, 562, 213
P3d 1240 (2009) (when the legislature includes an express
requirement in one statute but omits it from another, it may
be inferred that the omission is deliberate).
Indeed, the distinctions between the statutes related
to outdoor mass gatherings and those of longer duration
13 Respondents also cite legislative history showing that when the legislature
amended ORS 433.750 in 1985, it explicitly rejected text that would have
required an applicant to demonstrate compliance with “any other applicable
rules.” As previously noted, as amended in 2015, Or Laws 2015, ch 428, § 1, ORS
433.745(2) now explicitly provides that “[a]ny permanent development on the real
property must be made in accordance with any applicable state or local land use
law.” That amendment does not apply here, however.
32 Thomas v. Wasco County
suggest that the legislature contemplated that outdoor
mass gatherings would be held in the open air and would
not require permanent improvements of the sort that might
implicate land use regulations. That is reflected both in
ORS 433.735(1), which defines an “outdoor mass gathering”
as one “which is held primarily in open spaces and not in
any permanent structure,” and in ORS chapter 197, which
excludes authorization of outdoor mass gatherings from
the definition of “land use decisions.” ORS 197.015(10)(d).
It is unsurprising, then, that applications for outdoor-massgathering
permits are not subject to land use requirements,
in contrast with applications for gatherings of longer duration.
That an outdoor mass gathering may, nonetheless,
sometimes involve permanent alterations does not alter the
meaning or operation of the applicable statutes.
We conclude that neither ORS 433.745 nor ORS
433.750 requires an applicant for an outdoor-mass-gathering
permit to demonstrate compliance with land use laws. Nor
do those statutes require a county to consider an applicant’s
compliance with those laws in evaluating an application for
an outdoor mass gathering. The circuit court therefore did
not err in entering judgment for respondents in the writ of
review proceeding.
B. The Trial Court Erred in Dismissing the Declaratory
Judgment Action.
Petitioner’s remaining assignments of error challenge
the trial court’s dismissal of his second claim for
declaratory relief.14 In that claim, petitioner alleged that
14 Petitioner’s second amended declaratory judgment complaint asserted two
claims. The first claim alleged that the county had allowed the festival to be conducted
without a “valid” mass-gathering permit and without all necessary federal
and state permits required for development on the property. Petitioner sought a
declaration that Wolf Run and Moonshine “shall not hold, and the County shall
not allow, the [festival] without a valid mass gathering permit * * * and without
all other required permits for development undertaken in preparation for
or associated with the event.” The court ruled that the writ of review process
was the exclusive means for challenging the validity of the permit, and therefore
dismissed the allegations of petitioner’s first claim for declaratory relief for lack
of jurisdiction. The court also held that its determination on the petition for writ
of review either preclusively resolved or rendered moot petitioner’s allegations in
the first claim for relief seeking a declaration that Wolf Run and Moonshine shall
not hold the festival in the absence of a valid permit. Petitioner does not challenge
the circuit court’s dismissal of the first claim for declaratory relief.
Cite as 284 Or App 17 (2017) 33
Wolf Run and Moonshine have constructed and are constructing
various permanent improvements for which they
did not seek county approval and for which no development
permits had been issued, and that the county was allowing
the development in violations of land use regulations and
state law. Petitioner also alleged that the improvements
would cause him irreparable harm. Accordingly, he sought
a preliminary injunction prohibiting the county from allowing
the development and the use of the improvements, and a
permanent injunction ordering Wolf Run and Moonshine to
cease development of the improvements, to desist from using
the improvements, and to remove them.
In dismissing petitioner’s second claim for declaratory
relief, the trial court relied on three alternative
grounds. We consider each in turn.
The trial court first concluded that the allegations
of petitioner’s second claim for declaratory judgment were
“so lacking in clarity” as to not present a justiciable controversy
as to whether the development was being carried
out in violation of law. We have reviewed the complaint and
conclude that the allegations sufficiently alleged controversies
as to whether Wolf Run and Moonshine had obtained
the land use approvals necessary for the development of the
subject property and whether the county was allowing the
development in violation of land use laws and regulations.
The trial court next concluded that petitioner’s
challenges presented land use issues within LUBA’s exclusive
jurisdiction that should have been pursued through an
appeal of the county’s NNV, and not through a claim for
declaratory relief. ORS 197.825(1) (LUBA is vested with
exclusive jurisdiction to review land use decision). Wolf Run
and Moonshine continue to assert on appeal that the NNV
was a final decision applying land use regulations that could
have been appealed directly to LUBA.
The trial court was incorrect, because the NNV
was not a land use decision reviewable by LUBA. ORS
197.015(10)(a) defines a “land use decision” as a final decision
that “concerns the * * * application of” “[a] land use regulation.”
Arguably, the county’s NNV did concern land use
regulations, given that it determined that the improvements
34 Thomas v. Wasco County
proposed in conjunction with the festival did not violate the
LUDO. But, we conclude for two reasons that the NNV did
not constitute an “application” of land use regulations, as
contemplated by ORS 197.015(10)(a).
First, the NNV was not issued in response to an
application or other filing seeking a determination as to
whether certain uses are permissible. Second, the NNV did
not purport to directly interpret or apply land use regulations,
but instead determined only whether the improvements
properly were allowed pursuant to existing uses of the
property. Those characteristics of the NNV are significant
under Mar-Dene Corp. v. City of Woodburn, 149 Or App 509,
514, 944 P2d 976 (1997). In that case, a land owner appealed
to LUBA from the City of Woodburn’s decision not to take
enforcement action against a property owner that had substantially,
but not fully, complied with a previously granted
access condition for development. LUBA concluded that the
city’s action was not a “land use decision” and was, instead,
subject to the circuit court’s jurisdiction over enforcement
proceedings. That was so, LUBA reasoned, because the city’s
decision was not based on the interpretation of a previous
land use decision or the application of the city’s zoning ordinance
but instead on a determination that a previous condition
had been substantially complied with and others had
not. 149 Or App at 513. LUBA observed that, “[a]lthough
these could be relevant considerations during enforcement
proceedings, they do not proceed from the interpretation
and application of land use regulations.” Id.
We affirmed LUBA’s order, noting that the city’s
decision did not have the “direct effect of determining
whether a use could be conducted” and was not “responsive
to applications or other filings that sought determinations
about whether the uses were permissible.” Id. at 515.
Rather, the city determined only whether to take action to
enforce a previously imposed development condition.
Here, similarly, the NNV decided only that the
challenged uses did not violate land use laws because they
were allowed under the existing residential use. As in
Mar-Dene, that decision did not have the direct effect of
approving the challenged uses. Nor was the NNV a response
Cite as 284 Or App 17 (2017) 35
to an application or other filing that sought a determination
as to whether the uses that were required as conditions
for the festival permit were permissible. The NNV simply
determined that the uses were permitted under previous
authorizations. Under Mar-Dene, the NNV was therefore
not a land use decision.
That conclusion comports with the part of ORS
197.015(10) that defines what is not a land use decision,
and provides that it does not include a decision “[t]hat is
made under land use standards that do not require interpretation
or the exercise of policy or legal judgment[,]”
ORS 197.015(10)(b)(A), or that “approves or denies a
building permit issued under clear and objective land use
standards.” ORS 197.015(10)(b)(B). In Tirumali v. City of
Portland, 169 Or App 241, 7 P3d 761 (2000), rev den, 331
Or 674 (2001), we explained that, in determining whether
a decision that would otherwise qualify as a “land use decision”
is exempt from the statutory definition of that term by
ORS 197.015(10)(b)(A) and (B) because it does not require
an interpretation of an ordinance or land use regulation or
the exercise of policy or judgment, the inquiry is
“whether [the applicable land use regulations] can plausibly
be interpreted in more than one way. If so, they are
ambiguous, and it would follow that the relevant city provisions
are not ‘clear and objective,’ ORS 197.015(10)(b)(B),
and that they cannot be applied without interpretation,
ORS 197.015(10)(b)(A).”
Id. at 246.
Here, the NNV did not purport to resolve ambiguities
in the county’s permitting ordinances or to provide an interpretation
of the ordinances or the existing permits resulting
from the exercise of policy or legal judgment. Tirumali, 169
Or App at 246. Rather, the NNV merely determined that
there had been no violation, reasoning that the parking and
vehicle staging areas required by the permit were “temporary”
and reciting the conclusion of planning staff that the
proposed “driveway” and culvert were permitted in conjunction
with the existing dwelling and residential use. It is not
apparent to us how those determinations were the result of
an interpretation of an ambiguous ordinance or regulation,
36 Thomas v. Wasco County
as described in Tirumali. Our conclusion that the NNV
fell outside the definition of a land use decision under ORS
197.015(10)(b) is consistent with Tirumali’s approach to that
question. In sum, we conclude that petitioner could not have
pursued an appeal of the NNV to LUBA to address his concerns
relating to development on the subject property.15
As the premise for its final alternative ground
for dismissal, the trial court observed that petitioner had
appealed the county’s order approving the outdoor-massgathering
permit to LUBA. The court agreed with respondents’
contention that the LUBA appeal was “another action
pending between the same parties for the same cause,”
ORCP 21 A(3). That conclusion was incorrect. The appeal
to LUBA challenged the county’s order granting the permit,
which, as we have held, was reviewable only by writ
of review. The declaratory judgment action, in contrast,
challenges the development that Wolf Run and Moonshine
completed to satisfy conditions for the permit but without
necessary land use approvals. Thus, the LUBA appeal is not
an action “for the same cause.”16
The remaining question is whether petitioner’s second
claim for declaratory relief presented land use issues
that were, for other reasons, beyond the trial court’s jurisdiction.
17 In light of LUBA’s exclusive jurisdiction over land
use decisions, the circuit courts cannot engage in land use
decision making or administrative review of land use decisions.
But the circuit courts do have jurisdiction to grant
declaratory, injunctive, or mandatory relief in a proceeding
15 Nor did the county’s procedures offer an opportunity for petitioner to challenge
the NNV in a way that might have resulted in a land use decision. See
Doney v. Clatsop County, 142 Or App 497, 502, 921 P2d 1346 (1996) (LUBA’s
jurisdiction is exclusive where a land use decisional process was available, even
if not pursued.). The county’s ordinance permitted only the owner of the affected
property to seek administrative review of the NNV.
16 Additionally, as the trial court correctly held, a LUBA appeal was not the
proper way to challenge the county’s order granting the permit, because that
order was not a land use decision subject to LUBA’s review. ORS 197.015(10)(d).
17 No party contends that the NNV was a “quasi-judicial” determination that
would have been subject to challenge by a writ of review under ORS 34.020. See
Hicks v. Central Point School Dist., 270 Or App 532, 348 P3d 307, rev den, 357 Or
743 (2015) (A quasi judicial function is one that involves or requires an adjudicatory
process).
Cite as 284 Or App 17 (2017) 37
arising from a decision described in ORS 197.015(10)(b) or in
a proceeding brought to enforce land use regulations. ORS
197.825(3)(a).18 We said in Doughton v. Douglas County, 90
Or App 49, 55, 750 P2d 1174 (1988), that the purpose of ORS
197.825(3)(a) is “to enable local governments and members
of the public to compel compliance with local land use legislation,
under circumstances where the noncompliance is
not embodied in a discrete land use decision.” And more
recently, we explained in Flight Shop, Inc. v. Leading Edge
Aviation, Inc., 277 Or App 638, 644, 373 P3d 177 (2016), that
a party “may bring an enforcement action in circuit court
when a violator engages in an land use contrary to a zoning
ordinance and that violator ‘has filed no application to allow
that use or have it declared permissible through a land use
decision.’ ” (quoting Clackamas County v. Marson, 128 Or
App 18, 22, 874 P2d 110, rev den, 319 Or 572 (1994)). We conclude
that petitioner’s second declaratory judgment claim is
such a proceeding and is authorized by ORS 197.825(3). The
circuit therefore erred in dismissing it.19
In A155158, dismissal of plaintiff’s second claim
for declaratory relief reversed and remanded; otherwise
affirmed. In A155511, affirmed.
18 ORS 197.825(3) provides:
“Notwithstanding [LUBA’s exclusive jurisdiction over land use decision],
the circuit courts of this state retain jurisdiction:
“(a) To grant declaratory, injunctive or mandatory relief in proceedings
arising from decisions described in ORS 197.015(10)(b) or proceedings
brought to enforce the provisions of an adopted comprehensive plan or land
use regulations[.]”
19 We note that LUDO, section 15.040, also explicitly authorizes “any person
whose interest in real property within the County is or may be affected” by a
violation to seek separate civil relief, including an injunction.

Outcome: therefore erred in dismissing it.19
In A155158, dismissal of plaintiff’s second claim
for declaratory relief reversed and remanded; otherwise
affirmed. In A155511, affirmed.

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