Weston Kia v. City of Gresham

When a code revision omits language which changes the scope of its application, intentionally or otherwise, it is error for a hearings officer to reinsert the language that is now missing while interpreting the code.

New Cingular Wireless (Cingular) applied to install a 297-foot equipment shelter on private property to provide support for a 100-foot tower to be located in the city’s right of way. The city planning manager approved and was affirmed by a hearings officer. Weston appealed to LUBA, arguing that the wireless communication facility (WCF) should be subject to special use review despite an exception in the Gresham Development Code (GDC) for those when located in the public right of way, because part of the facility will be on private land. LUBA found that the City had chosen to regulate equipment shelters adjacent to a “utility pole” under the Gresham Revised Code, and that also contained a provision for equipment shelters on private property “abutting the public right of way.” The Board held that the City was correct in the conclusion that the equipment shelter was subject to GDC requirements and the exclusion of the tower from those requirements. Weston next argued that a 2013 change in GDC 8.0122(C), from providing setback and co-location requirements on “all WCF tower proposals” to all “WCF proposals” applied to the proposal for the equipment shelter. Cingular argued that the change represented a mere “scrivener’s error” and that there was no intention to change the meaning of the Code. LUBA held that despite whether the change was intentional, the hearings officer erred by reinserting the “tower” language back into the Code. REMANDED.