Stevens v. City of Island City

Island City Development Code (ICDC) 2.02(E) does not require the city council to defer to an interpretation made by the planning official or planning staff, nor does ICDC 2.02(E) require the city council to end the interpretative process at the planning official’s desk.

Following LUBA’s initial remand of Stevens v. City of Island City, 68 Or LUBA 112, aff’d 260 Or App 768 (2014), two of the initial grounds for remand remained relevant on this second appeal. In the initial LUBA proceeding, Scott and Debra Stevens sought review of the city council’s approval of a home occupation permit for a commercial truck operation (having determined that the proposal complied with ICDC 10.07(B)). Stevens argued that the city council misconstrued ICDC 10.07(B), and adopted findings regarding floor area usage that were not supported by substantial evidence. LUBA agreed, and held that the city council’s determination was insufficient, and that a condition of permit approval requiring compliance with the ICDC was not an adequate means of ensuring compliance with that standard. LUBA then remanded to the city to consider whether and where office functions for the trucking would be conducted on the property.

In this second appeal, LUBA addressed Stevens’s assignment of error and found that Stevens misread ICDC 2.02(E); the provision does not require the city council to defer to an interpretation made by the planning official or planning staff, or to end the interpretative process at the planning official’s desk. Furthermore, LUBA held that nothing in ICDC 2.02 suggests an intent to make the planning official’s interpretation controlling over the city council’s interpretation. Nevertheless, LUBA found that remand was necessary for the city to re-open the record in order to allow submission of critical evidence regarding the floor area (outside the footprint of the vehicles and equipment) likely to be used while performing home occupation functions. LUBA agreed with Stevens that the city’s finding that the proposed home occupation will not utilize more than 600 square feet in floor area was not supported by substantial evidence. LUBA sustained the assignment of error. REMANDED.