Warren v. Washington County

ORS 197.307(4) prohibits local governments from applying standards, conditions, and procedures that are not clear and objective to proposals for housing development, without regard to whether the property is “buildable land.”

Petitioner appeals a county decision approving a six-lot subdivision. The subject property is a 2.8-acre parcel zoned R-5 (Residential 5 Units Per Acre). A creek runs through the property, and approximately half of the property is included in the county’s map of Significant Natural Resources (SNR Map) as defined under Washington County Community Development Code (CDC) Chapter 422. Intervenor proposed to subdivide the property while setting approximately 58 percent of it aside from development. ORS 197.307(3) requires that local governments plan for and permit needed housing within their jurisdictions. Prior to 2017, ORS 197.307(4) prohibited local governments from subjecting proposals for housing development on buildable land to standards, conditions, and procedures that are not “clear and objective.” In 2017, however, Senate Bill 1051 (SB 1051) deleted the phrase “on buildable land” from ORS 197.307(4). Concluding that this amendment prohibited the county from applying provisions of CDC Chapter 422 to intervenor’s application, the county approved the subdivision. This appeal followed.

In their first assignment of error, petitioner argues that notwithstanding the changes made in SB 1051, ORS 197.307(4) still only applies to proposals for development on buildable land. This is so, petitioner argues, because the administrative rule implementing Statewide Planning Goal 10 (Housing) and ORS 197.307(3) both continue to include the phrase “buildable land” and because the legislative history of SB 1051 does not include any expressions of the legislature’s intent to prohibit the county from applying the relevant CDC provisions. Intervenor responds, and LUBA agrees, that the express language of SB 1051 is unambiguous and that the continuing reference to “buildable land” elsewhere is not context for interpreting it otherwise. Furthermore, ORS 197.307(5) and the legislative history of SB 1051 demonstrate that the legislature knew how to create specific exemptions from the requirements of ORS 197.307(4). Because ORS 197.307(4) prohibits local governments from applying standards, conditions, and procedures that are not clear and objective to proposals for housing development, without regard to whether the property is “buildable land,” the first assignment of error is denied and the county’s decision is AFFIRMED.