Crowley v. City of Hood River

Under ORS 197.829(1), “LUBA must defer to a local government’s interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation is inconsistent with the express language, purpose, or underlying policy of the comprehensive plan or use regulation.”

Petitioner seeks review of an order by the Land Use Board of Appeals (LUBA) who affirmed the City of Hood River’s (City) decision to approve a quasi-judicial zone change from "Open Space/Public Facilities" to "Urban High Density Residential." Petitioner assigned error to LUBA’s deference to the city’s interpretation of the policy, which allowed the change. On appeal, Petitioner argued that the City’s interpretation of the policy violated the policy’s purpose and underlying policies because the policy’s purpose was to “satisfy the recreational needs of the citizens” of the City, not to “limit” that need. Additionally, Petitioner argued the city’s narrow scope of the policy added “qualifying language” to the policy, that was not there, in order to reach the City’s preferred interpretation. In response, the City argued the policy’s protection did not apply to the instant rezoning application of an already established “Open Space/Public Facility” because the policy’s purpose was limited to regulating the use of nearby properties, not to regulating the use of park sites themselves. Under ORS 197.829(1), “LUBA must defer to a local government’s interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation is inconsistent with the express language, purpose, or underlying policy of the comprehensive plan or use regulation.” The Oregon Court of Appeals concluded that LUBA’s order was “unlawful in substance” because LUBA erred in allowing the City’s interpretation of the policy when it was inconsistent with the policy’s express language and purpose.

Reversed and remanded.