Friends of the Hood River Waterfront v. City of Hood River

ORS 197.175(2) represents a mandatory requirement to identify the 100-year floodplains in connection with a project on a site where the floodplains have not yet been identified; however, nothing in the text or context of that provision expressly requires that identification to take the form of a map prepared by the applicant.

Petitioners NBW Hood River, LLC, (NBW) and the City of Hood River (the city) petitioned for judicial review of a final order of the Land Use Board of Appeals (LUBA). The order remanded the city's decision granting conditional use and preliminary site plan approval for a waterfront office and hotel development proposed by NBW. The issue on review was whether LUBA erred when it rejected as implausible the city's interpretation of certain provisions of its comprehensive plan addressing development in flood hazard areas and remanded to the city to apply those provisions--as interpreted by LUBA--in determining whether to grant the approval requested by NBW. ORS 197.175(2) required all cities to adopt a comprehensive plan to facilitate its compliance with statewide planning goals, including Goal 7. To meet Goal 7, the plan sets forth "policies," "implementation strategies," and "land use designations and standards" regarding land use and development in floodplains, that is, areas subject to flooding. Pertinent to this case, one of the policies relating to flood hazards--Policy 2--provides that "[t]he City will continue participation in the Housing and Urban Development National Insurance Program." Another policy--Policy 4--identifies the steps that the city will take where 100-year floodplains have yet to be adequately mapped. LUBA concluded that Policy 4 did create "an applicable mandatory requirement to identify the location of the 100-year floodplain on the property, because detailed mapping of the 100-year floodplain on the property is not available." Based on that conclusion, LUBA concluded that, "[o]n remand, the city will need to have the applicant prepare that map" of the 100-year floodplain on the property. The city's interpretation of Goal 7, Implementation Strategy 4, conflicted with that provision's text and context. LUBA properly rejected that interpretation under ORS 197.829. However, the city's interpretation of Goal 7, Policy 4, was plausible, and, thus, LUBA erred when it rejected that interpretation. The Court agreed that LUBA erred to the extent that it construed that provision to require NBW to map the 100-year floodplain. Although the Court agreed with LUBA that the provision represented a mandatory requirement to identify the 100-year floodplains in connection with a project on a site where the floodplains have not yet been identified, nothing in the text or context of that provision expressly required that identification to take the form of a map prepared by the applicant. Accordingly, the city's implicit interpretation of Policy 4 to not require NBW to produce a map of the 100-year floodplain is a plausible reading of Policy 4, and LUBA erred when it ruled that, "[o]n remand, the city will need to have the applicant prepare that map [of the 100-year floodplain]." On petitions, reversed in part. On cross-petition, affirmed.