Hood River Valley Residents’ Committee v. Hood River County

(1) LUBA must accept a local government’s interpretation of its land development code that is plausible and not inconsistent with the express language or purposes of or the policies underpinning the provisions at issue, (2) LUBA may not consider arguments raised for the first time on appeal, and (3) assignments of error directed at decisions other than the decision on appeal do not provide a basis for reversal or remand.

Petitioner appeals a county decision approving an extension of a permit. In 2014, the county approved an application from intervenor to construct an amphitheater on its property for concert and wedding use. In 2016, the county approved intervenor’s application for a one-year extension of the permit. In 2017, the county approved another one-year extension. This appeal followed.

Hood River County Zoning Ordinance (HRCZO) 1.140.A provides that a permit extension may be granted if “[t]he approval criteria for the original decision found in a state goal, policy, statute or administrative rule, the Comprehensive Plan or [the HRCZO] have not changed.” In its first subassignment of error, petitioner argues that the county erred in concluding that HRCZO 1.140.A was met because LUBA’s decision in a 2017 case changed the approval criteria applying to the subject property. LUBA must accept a local government’s interpretation of its land development code that is plausible and not inconsistent with the express language or purposes of or the policies underpinning the provisions at issue. Here, the county interpreted the phrase “have not changed” as referring to an administrative or legislative amendment to an administratively enacted or codified law, and as not including decisional law that is not administratively enacted or codified. Because LUBA cannot say that the county’s interpretation of HRCZO 1.140.A is implausible, the first subassignment of error is denied.

In its second subassignment of error, petitioner argues the county erred in failing to apply OAR 660-004-0018 to the extension application, which would have prohibited its approval. While LUBA agrees with the county and intervenor that petitioner failed to raise the issue below and is therefore precluded from raising the issue on appeal to LUBA, LUBA agrees with respondents that this assignment of error is most clearly a collateral attack on the county’s approval of the 2014 permit. Because assignments of error directed at decisions other than the decision on appeal do not provide a basis for reversal or remand, the second subassignment of error is denied, the first assignment of error is denied, and the county’s decision is AFFIRMED.