Harrison v. City of Cannon Beach

Under ORS 197.829(1), and as it was interpreted in Siporen v. City of Medford, when a city council is approving or denying a planned development, the city council’s interpretation of its municipal code must be given deference. See Siporen v. City of Medford, 349 Or 247, 259 (2010).

     Jeff Nicholson, intervenor-respondent (intervenor), received preliminary approval of a planned development (PD) to create four residential lots. LUBA affirmed, but the planning commission held a final hearing and recommended denial. The city council eventually approved the application with conditions.

     Petitioners’ first two assignments of error challenged the city council’s conclusion that the plan satisfied Cannon Beach Municipal Code (CBMC) 17.40.040(C)(1). Petitioner argued that that the final plan application did not include detailed building and landscaping plans as required by CBMC 17.40.040(C)(1). Under ORS 197.829(1), a city council is entitled to deference when it adopts an interpretation of its own land use regulations. LUBA agreed with respondents that the city council’s interpretation of CBMC 17.40.040(C)(1) was not inconsistent with the provision’s text. LUBA also agreed with respondents that the PD conformed “in all major respects” to CBMC 17.40.040(C)(1).

     Petitioners then argued that the planning commission must give its approval in order to trigger the city council’s jurisdiction to decide on an application. The city council interpreted CBMC 17.40.040(C)(4) as requiring  the city council to hold a hearing on the application for final approval, and giving the city council the authority to make the final decision based on the planning commission’s recommendation. LUBA must affirm the city council’s interpretation when it is plausible, pursuant to ORS 197.829(1), as it was interpreted in Siporen v. City of Medford. LUBA determined the interpretation was not inconsistent with CBMC and was plausible.

     Petitioners further argued that CBMC 17.40.080(A) required a stage development schedule for the lots. Since the petitioners did not address the city’s findings, or dispute its conclusion that the application was for a single stage development, there was no basis for reversal or remand. LUBA found the petitioners failed to demonstrate that the city council erred in granting approval of the PD. AFFIRMED.