No. 304 June 14, 2023 439

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

CENTRAL OREGON LANDWATCH,

Respondent

Cross-Petitioner,

v.

DESCHUTES COUNTY,

Respondent

Cross-Respondent,

and

Michael GEMMET,

Petitioner

Cross-Respondent.

Land Use Board of Appeals

2022087; A180668

Argued and submitted April 10, 2023.

Lisa Andrach argued the cause for petitioner-crossrespondent Michael Gemmet. Also on the briefs was Fitch 

& Neary, PC.

Carol Macbeth argued the cause and filed the brief for 

respondent-cross-petitioner Central Oregon LandWatch.

No appearance for respondent-cross-respondent Deschutes 

County.

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

Hellman, Judge.

HELLMAN, J.

On petition, reversed; on cross-petition, affirmed.
440 Central Oregon LandWatch v. Deschutes County
Cite as 326 Or App 439 (2023) 441

HELLMAN, J.

Petitioner Gemmet seeks judicial review of an order 

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

to Deschutes County a declaratory ruling that a use had 

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

company. Central Oregon LandWatch (COLW), on crosspetition, seeks judicial review of the same order, arguing 

that LUBA erred in dismissing COLW’s challenge to the 

hearings officer’s authority to consider Gemmet’s application. We review LUBA’s order to determine if it is “unlawful 

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

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

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

In addition, we do not address COLW’s proffered construction of the Deschutes County Code (DCC) that COLW now 

urges us to adopt, because COLW did not preserve that 

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

Gemmet that LUBA erred in remanding the hearings officer’s decision, because the issue of whether the guest ranch 

use was abandoned sometime after the use was “initiated” 

was beyond the scope of the specific proceeding brought, 

and irrelevant to the initiation determination. Accordingly, 

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

cross-petition.

As background to understand the facts and LUBA’s 

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

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

“proposed development on agricultural or forest land outside an urban growth boundary *** is void two years from 

the date of the final decision if the development action is 

not initiated in that period.” Deschutes County has implemented that rule in DCC 22.36.010(B)(1), which provides 

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

discretionary decision becomes final if the use approved in 

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

 DCC 

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

1 Notably, DCC 22.36.010 

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

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

or land use permit rather than whether a particular application for a specific land use meets the applicable standards of the zoning ordinance. Such 
442 Central Oregon LandWatch v. Deschutes County

a land use has been initiated shall be processed as a declaratory ruling.” With respect to determining whether a land 

use has been initiated, the DCC also provides:

“Notwithstanding any condition to the contrary in an 

individual approval, a determination may be made for 

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

under DCC 22.36.010(D)(1) as to whether a use was ‘initiated’ within the duration of the land use approval. If it 

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

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

existing permit and any land use described in the permit 

will be deemed to be authorized under the County’s ordinances, subject to any applicable revocation provisions.”

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

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

which are not at issue in this judicial review.2

Finally, the code also sets out the declaratory ruling process under DCC 22.40. What types of determinations 

may be sought through the declaratory ruling process are 

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

whether an approval has been initiated or considering the 

revocation of a previously issued land use permit, quasijudicial plan amendment or zone change” and “[d]etermining the validity and scope of a nonconforming use.” DCC 

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

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

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

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

2 DCC 22.36.020 provides:

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

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

it is determined that:

“1. The proposed use has lawfully occurred;

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

has taken place; or

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

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

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

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

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

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

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

money spent to demonstrate a good faith effort to complete the development.”
Cite as 326 Or App 439 (2023) 443

all cases, as part of making a determination or interpretation the Planning Director (where appropriate) or Hearings 

Body (where appropriate) shall have the authority to declare 

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

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

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

“B. A declaratory ruling shall be available only in 

instances involving a fact-specific controversy and to 

resolve and determine the particular rights and obligations 

of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. 

Declaratory proceedings shall not be used as a substitute 

for seeking an amendment of general applicability to a legislative enactment.

“C. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for 

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

land use action a declaratory ruling shall not be available 

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

final.

“D. The Planning Director may refuse to accept and 

the Hearings Officer may deny an application for a declaratory ruling if:

“1. The Planning Director or Hearings Officer determines that the question presented can be decided in 

conjunction with approving or denying a pending land 

use action application or if in the Planning Director or 

Hearings Officer’s judgment the requested determination 

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

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

use permit not yet filed; or

“2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district 

or circuit court in which the same issue necessarily will be 

decided as to the applicant and the applicant failed to file 

the request for a declaratory ruling within two weeks after 

being cited or served with a complaint.”

To obtain a declaratory ruling, the code requires 

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

include the precise question on which a ruling is sought. 

The application shall set forth whatever facts are relevant 
444 Central Oregon LandWatch v. Deschutes County

and necessary for making the determination and such other 

information as may be required by the Planning Division.” 

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

provides that a declaratory ruling is conclusive, and an 

applicant cannot reapply for a ruling on the same question.

The facts about the land use approval at issue here 

are undisputed and were sufficiently set out by LUBA:

“The subject property is an approximately 155-acre tract 

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

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

The subject property is zoned Exclusive Farm Use-Sisters/

Cloverdale (EFU-SC).

“In 2002, the county approved a conditional use permit 

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

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

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

the infrastructure and cabins for the guest ranch were 

partially constructed pursuant to the extended CUP. As 

we understand it, development of the guest ranch under 

the CUP may have been discontinued between 2009 and 

2021. Running Waters Properties of Oregon LLC (Running 

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

agent, owner, and managing member of Running Waters. 

[Gemmet] submitted a county land use application in which 

they stated that they were seeking a ‘Declaratory Ruling 

for an Initiation of Use.’”

(Footnotes and record citations omitted.)

The county hearings officer held a public hearing 

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

a declaratory ruling that the guest ranch had been “initiated.” In making that determination, as relevant here, the 

hearings officer addressed two issues raised by opponents 

in that proceeding. The first issue related to COLW’s argument that the county could not issue a declaratory ruling 

that the use had been initiated because the conditions in the 

CUP had not been fulfilled. The hearings officer determined 

that the arguments were outside the scope of the proceeding, stating:

“This action is a Declaratory Ruling limited to the scope 

of the question that is presented in the Application. This 
Cite as 326 Or App 439 (2023) 445

Decision, by approving the Application, is not approving the 

Guest Ranch. Rather, the Decision is determining solely 

that the use already approved in the CUP Approval has 

been initiated. The approval of the Guest Ranch already 

occurred, and DCC 22.40.010(C) expressly prohibits using 

the Declaratory Ruling as an appeal of an earlier land use 

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

permit holder’s compliance with conditions of approval, the 

County has a separate enforcement process that can be 

used to adjudicate those issues. The question of use initiation can be determined whether or not the permit holder is 

in compliance with conditions of approval and, therefore, is 

not necessary to resolve in this proceeding.”

The hearings officer also addressed arguments that the 

declaratory ruling of initiation could not issue because the 

guest ranch use had been abandoned:

“Testimony from multiple participants asserts that the 

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

Application must be denied. For similar reasons, COLW 

argues that the Application Notice and the Hearing Notice 

were deficient because they did not identify Code provisions 

relating to nonconforming uses. In support of these assertions, COLW cites to ORS 215.130(5) et seq.

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

to that statute, relate to nonconforming uses. Under that 

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

use regulation’s enactment can lawfully continue even if it 

would no longer be allowed because of the new regulation. 

Such uses, however, can lose that nonconforming status if 

they are abandoned. That statute is not applicable here. 

The Applicant does not seek to continue a nonconforming 

use. Instead, the Applicant seeks only a determination that 

a conforming, conditional use was initiated within a certain time. It was therefore also not an error for the County 

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

COLW appealed the hearings officer’s decision to 

the board of county commissioners, which issued an order 

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

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

COLW then petitioned LUBA for review. As relevant to our review, COLW first argued that Gemmet’s CUP 

became void on the date of its expiration because proof of 
446 Central Oregon LandWatch v. Deschutes County

initiation was not offered before the CUP expired. COLW 

asserted that the hearings officer was thus unable, as a 

matter of law, to determine that use was initiated under 

a void permit. COLW also argued that the hearings officer 

findings were inadequate and misconstrued the applicable law for Gemmet’s declaratory ruling application with 

respect to nonconforming use. COLW argued that the guest 

ranch development ceased in 2009 and that the applicable 

regulations had changed, making the use as a guest ranch 

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

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

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

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

COLW asserted that the hearings officer erred in concluding that the nonconforming use statute was inapplicable 

because the inchoate right to resume the guest ranch use 

could be lost by abandonment unless Gemmet could demonstrate conformance with current land use regulations for 

guest ranches.

LUBA upheld the hearings officer’s decision on the 

question of initiation. However, LUBA remanded to the 

county with instructions to consider COLW’s arguments 

of nonconforming use and abandonment. Gemmet petitioned for review of LUBA’s remand order and COLW crosspetitioned for review of LUBA’s decision on initiation.

We address COLW’s cross-petition first because a 

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

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

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

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

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

until the county has made a determination of initiation in 

a declaratory ruling. COLW presents us with a code construction argument that a development action was “initiated” only if there was a formal determination by the county 

that substantial construction or other actions listed in 

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

actions alone were insufficient in the absence of that formal 

determination. Based on that construction of the code provision, COLW argues that Gemmet brought the declaratory 
Cite as 326 Or App 439 (2023) 447

application too late, because a determination of initiation 

would have to have been made before the expiration of the 

CUP.

We reject that argument because it was not preserved below. Before LUBA, COLW argued only that 

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

because proof of initiation was not offered before it expired. 

COLW did not present LUBA with the code construction 

argument that “initiation” means a formal determination 

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

permit.

“Our rules and practice require a party to articulate 

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

on review that the court or tribunal erred in taking action 

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

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

That preservation requirement applies to review of LUBA 

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

statutes lends particular force to the requirement of preservation of error before the board.” Id. (citing VanSpeybroeck v. 

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

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

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

COLW’s unpreserved construction of the DCC here, where 

the county was not given the opportunity to address the proposed construction and interpret its own code, and COLW 

has not provided us with any reason why we should consider 

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

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

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

reverse a lower body’s interpretation on grounds that that 

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

To the extent that COLW argues that LUBA failed 

to properly construe the DCC in addressing the argument 

that COLW did bring before LUBA, we reject that argument. As LUBA correctly concluded, neither OAR 660-033-

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

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

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

and DCC 22.36.010(B)(1) provide that a permit is void only 
448 Central Oregon LandWatch v. Deschutes County

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

law, a land use approval is not void if the use has been initiated. DCC 22.36.025(B) explicitly so provides, stating a permit is a “valid existing permit” if “it is determined that the 

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

does not similarly require that the determination must be 

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

on the context of the DCC including DCC 22.36.025 and 

DCC 22.36.010(C)(1)(b), which contains a time limit for submitting an application to extend a CUP, “[t]he county clearly 

knows how to insert a time requirement into an application 

provision if it wishes to do so.” LUBA’s order was not unlawful in substance in rejecting COLW’s assignment of error.

Turning to Gemmet’s assignments of error in the 

petition, we briefly address and reject his second assignment 

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

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

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

We have long held that when a governing body declines to 

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

interpretation is not imputed to the governing body, such 

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

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

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

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

interpretation and a hearings officer’s application of prior 

interpretation made by the board of county commissioners 

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

county did not adopt the hearings officer’s interpretation as 

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

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

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

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

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

Finally, we turn to Gemmet’s first assignment of 

error, which directly challenges LUBA’s remand. Gemmet 

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

the declaratory ruling on initiation of use that he sought did 

not involve the nonconforming use standards, so the hearings officer correctly declined to consider COLW’s arguments 
Cite as 326 Or App 439 (2023) 449

on nonconforming use and abandonment. Therefore, he 

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

those arguments was unlawful in substance. We agree.

First, LUBA’s decision was based on a mistaken 

factual premise. LUBA determined that the hearings officer 

may have decided that a finding that the guest ranch was initiated “necessarily means that the guest ranch may, subject 

to the conditions of approval, be constructed and operate on 

the subject property without any other limitations.” Because 

of that purported ambiguity, LUBA determined that the 

hearings officer could have sua sponte expanded the scope of 

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

arguments on nonconforming use and abandonment.

LUBA incorrectly found an ambiguity in the hearings officer’s ruling. The hearings officer repeatedly and 

explicitly recognized that the only question before it was 

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

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

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

Nothing in the hearings officer’s decision suggested that the 

hearings officer believed that the decision would allow the 

guest ranch to be constructed and operate without regard to 

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

ruling would conflict with DCC 22.36.025(B) which explicitly recognizes that even if “the use was ‘initiated’ during 

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

“subject to any applicable revocation provisions.”

Relatedly, LUBA’s analysis misunderstands the law 

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

proceeding that covers any and all issues related to a land 

use permit. Instead, it is narrowly confined to answering 

the “precise question” presented by the applicant. DCC 

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

declaratory ruling is “available only in instances involving 

a fact-specific controversy and to resolve and determine 

the particular rights and obligations of particular parties to the controversy” (emphasis added)). Further limiting the scope of the proceeding are the restrictions on who 

can seek a declaratory ruling and for what purposes. See

DCC 22.40.020(A) (limiting the applicants to the owner of 
450 Central Oregon LandWatch v. Deschutes County

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

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

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

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

the effect of a declaratory ruling is conclusive, binds the parties, and prevents the parties from reapplying for a ruling 

on the same question. The binding and preclusive nature of 

a declaratory ruling supports our conclusion that the county 

intended declaratory actions to have a limited scope.

In sum, those limits confirm that the hearings officer is not authorized to expand the scope of what is to be 

decided by declaratory ruling on a particular application 

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

was the question submitted by Gemmet on his application: 

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

the hearings officer had authority to “declare the rights 

and obligations of persons affected by the ruling,” DCC 

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

be exercised within the contours established by the county 

code, and under that code, by the “precise question” submitted by Gemmet.

The issues raised by COLW related to nonconforming use were not directed at initiation of use, which was 

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

lack of action on the part of the property owner after the initiation of the use. Those issues were thus outside the scope 

of the declaratory ruling application. LUBA’s remand would 

therefore have the effect of requiring the hearings officer to 

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

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

cannot make advisory opinions or decide questions that are 

more appropriately addressed to a different procedure. See 

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

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

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

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

arguments on nonconforming uses was also misplaced. 

Given the scope of Gemmet’s “precise question,” the nonconforming use standards do not inform whether a use had 

been initiated. For all of those reasons, the hearings officer 
Cite as 326 Or App 439 (2023) 451

properly addressed the arguments raised on nonconforming 

use and abandonment when it correctly determined that 

they were not within the scope of the proceeding.

Finally, COLW’s arguments based on Fountain 

Village are unpersuasive. We understand COLW to be arguing that, at most, Gemmet had an inchoate right to develop 

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

common-law vested right discussed in Fountain Village. We 

further understand COLW to argue that that to confirm that 

kind of right Gemmet had to establish that the guest ranch 

use could be continued as a nonconforming use as provided 

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

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

declaratory ruling that Gemmet sought because Gemmet’s 

application did not involve a common-law property right.

The issue in Fountain Village was whether a landowner had a common-law vested right to complete construction of a log cabin on his property. 176 Or App at 215. A prior 

owner had started building the cabin when the zoning on the 

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

changed such that the cabin was a conditional use. The landowner bought the property under the new zoning and did not 

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

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

a vested right to complete the cabin because it was a discontinued nonconforming use, explaining that a vested right is 

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

LUBA affirmed the county’s decision, and the landowner petitioned for our review. We likewise concluded that common-law 

vested rights are, in effect, inchoate nonconforming uses. 

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

authority to apply the discontinued nonconforming use ordinance to its determination of whether the landowner had a 

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

We revisited our Fountain Village opinion in Oregon 

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

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

a vested right determination under Measure 49 to continue 

developing a subdivision on their property. In addressing whether nonconforming use standards applied to that 
452 Central Oregon LandWatch v. Deschutes County

determination, we explained the distinction between the 

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

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

common-law vested right to develop is an equitable claim 

to an inchoate nonconforming use that requires showing a 

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

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

was a statutory right to a particular remedy that required 

showing a common-law vested right existed on the effective 

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

nothing that occurred after that date was relevant to the 

statutory determination, such as the alleged discontinuance 

of the nonconforming use in that case. Id. In addition, “[u]nlike the right at issue in Fountain Village ** * a successful 

claim under section 5(3) [of Measure 49] yields not an inchoate nonconforming use under the common law but, rather, a 

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

The issue here is more analogous to Oregon Shores

than Fountain Village. Gemmet is not seeking a determination of a common-law vested right, which we have said is 

an inchoate nonconforming use. He is seeking a declaratory 

ruling that the use allowed under the CUP was initiated 

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

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

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

applicable state rule, OAR 660-033-0140(1), and the applicable DCC provisions provide that the CUP never was void 

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

amorphous right that needed to be finalized or confirmed, 

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

permit once the use was initiated during the lifetime of the 

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

DCC provisions place a date certain on which to make the 

initiation of use determination—during the lifetime of the 

permit—anything that occurred after that time was not relevant to that determination.3

 In sum, LUBA’s remand was 

unlawful in substance, and we reverse it.

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

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

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

215.427(3).