Rawson v. Hood River County

Under Siporen v. City of Medford, 349 Or 247 (2010), a local governing body’s interpretation is entitled to deference when it “plausibly interprets its own land use regulations . . . unless the interpretation is inconsistent with all of the ‘express language’ relevant to the interpretation, or is inconsistent with the purposes of policies underpinning the regulations.”

Intervenor, Verizon Wireless, applied for an industrial land use permit to construct a wireless transmission tower on eight acres of land zoned Light Industrial (M-2). This land abuts land zoned exclusive farm use , owned by Hood River Valley High School, and land zoned for rural residential use, owned by petitioner. The planning director approved the application and petitioner appealed. The planning commission held a public hearing, upon which it denied petitioner’s appeal. Thereafter, petitioner appealed the decision to the board of county commissioners. The board denied petitioner’s appeal and sustained the planning commission’s decision. This appeal followed.

Petitioner’s first contention was that the county misconstrued HRCZO Article 32 when it authorized petitioner’s wireless tower in the M-2 zone as a permitted use. Article 32 allows two types of specific utilities in the M-2 zone: (1) distribution plants and substations, and (2) service yards. Petitioner argues that because HRCZO 32.15(F) explicitly lists two types of utilities, the county adopted an implausible interpretation of HRCZO when it included a wireless communication tower as a utility. In response, intervenor argued the proposed wireless communication tower is a utility permitted in the M-2 zone and is not reversible under the deferential “plausibility standard” set forth in Siporen v. City of Medford, 349 Or 247 (2010) and ORS 197.829(1). LUBA found merit to petitioner’s argument and directed the county, on remand, to determine whether the proposed wireless communication tower qualifies as either of the defined utility uses authorized by HRCZO 32.15(1) or (2). REMANDED.