Botts Marsh, LLC v. City of Wheeler

Under Gutoski v. Lane County, 155 Or App 369, a LUBA remand would be improper only “if (1) the applicant had at least minimally adequate notice of the local government’s interpretation of its standards in time to submit responsive materials in support of its application” and “(2) the applicant has not shown that it could have put in more evidence with adequate notice.” “If the local government’s interpretation ‘plausibly accounts for the text and context’ of the provision, then LUBA and [the Court] must defer to that interpretation” Siporen v. City of Medford, 349 Or. 247 (2010).

The City of Wheeler petitioned for judicial review of The Land Use Board of Appeals’ (LUBA) decision to reverse and remand of its decision to deny Respondent’s (Botts Marsh) application to construct a building to process, store, and sell fish and shellfish on two parcels in the city. The city made three assignments of error to LUBA’s reversal decision: that LUBA addressed a procedural unfairness argument that Respondent did not make; that LUBA improperly remanded for a new evidentiary hearing; and that LUBA improperly rejected the city’s interpretation of its design-review standards due to their implausibility. To the first assignment of error, the Court stated that while Respondent’s argument could have been better articulated, “[i]t was not so underdeveloped as to preclude LUBA from considering it.” To the second assignment of error, the Court rejected the city’s argument because the record showed that Respondent met both standards for a reopening of the evidentiary record. Under Gutoski v. Lane County, 155 Or App 369, a LUBA remand would be improper only “if (1) the applicant had at least minimally adequate notice of the local government’s interpretation of its standards in time to submit responsive materials in support of its application” and “(2) the applicant has not shown that it could have put in more evidence with adequate notice.” The Court reasoned that because the city first announced its interpretations of its design-review standards in the city’s order denying Respondent’s application the “applicant could not have reasonably foreseen the city’s interpretations” of its design-review standards. To the third assignment of error, the Court agreed with LUBA’s implausibility findings in two of the three design-review standards at issue. “If the local government’s interpretation ‘plausibly accounts for the text and context’ of the provision, then LUBA and [the Court] must defer to that interpretation” Siporen v. City of Medford, 349 Or. 247 (2010). While the Court held that the city’s interpretation of its monotony-of-design and view impact standards were implausible, the Court also held that its interpretation of its primary-entrance standard was not, and reversed only to that one point. Reversed in part and remanded.