Central Eastside Industrial Council v. City of Portland

Under ORS 197.829 (1)(a), LUBA must affirm a governing body’s code interpretation unless it is inconsistent with the language, context, purpose, or policy of the underlying provision; a city need only show that its interpretation is “plausible”. See Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010).

     R2DToo (respondent) requested a “zoning confirmation” letter from the city to determine if a proposed tent camp would be a permitted, conditionally permitted, or prohibited use in the General Industrial zone (IG1). IG1 zoning does not permit any type of residential use, and entirely prohibits the residential use category of “Group Living.” The city planning staff issued a confirmation letter stating that the tent camp was a “Community Services use,” which is an outright permitted use under Portland City Code (PCC). The petitioners appealed.

     LUBA must affirm a “governing body’s code interpretation that is ‘plausible,’ considering the text, context, purpose and policy underlying the code provision, even if the code could be plausibly interpreted in other ways.” Siporen v. City of Medford, 349 Or 247 (2010). Petitioners appealed this decision on both procedural and substantive grounds. LUBA dismissed the procedural arguments, since petitioners were misguided as to whether this was a zoning approval or a zoning classification decision. Petitioners’ substantive argument challenged the city’s determination that the tent camp was not a mass shelter. LUBA determined that the city’s conclusion that the tent camp was not a mass shelter rested solely on the argument that the tent camp had physical differences from those described in the definition of “mass shelter” under PCC 33.910.030. LUBA evaluated the physical differences and arrived at the conclusion that the differences were non-discernable. LUBA agreed that the adopted findings were inconsistent with the relevant PCC provisions, and therefore, even with the deference afforded to the city, were not affirmable under ORS 197.829(1)(a).          

     LUBA also agreed with petitioners that PCC 33.920.420.D.3 applied to exclude the proposed use from the Community Services category as a residential use, which is prohibited in IG1 zones. REVERSED.