Estroff v. City of Dundee

(1) Under ORS 197.829(1), LUBA must affirm a governing body’s interpretation of a land use regulation unless the interpretation is implausible, or inconsistent with the express language or purpose of the regulation, and (2) the existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation implausible.

Petitioners appeal a city decision approving a four-lot subdivision on property zoned Single Family Residential (R-1). City of Dundee Municipal Code (DMC) Table 17.202.030 states that the minimum lot size in the R-1 zoned is 9,000 square feet, unless the slope exceeds 11 percent, in which case the minimum lot size increases. Because intervenors proposed grading that would reduce the slope of the subject property to less than 10 percent, intervenors argued DMC Table 17.202.030 did not operate to increase the minimum lot size. The city approved the application and this appeal followed.

In their single assignment of error, petitioners argue the city misconstrued applicable law by interpreting DMC Table 17.202.030 to provide that slope is based on finished or post-development grades and not on original, pre-development grades. Under ORS 197.829(1), LUBA must affirm a governing body’s interpretation of a land use regulation unless the interpretation is implausible, or inconsistent with the express language or purpose of the regulation. In addition, the existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation implausible. Because the text of DMC Table 17.202.030 is ambiguous and subject to multiple plausible interpretations, and because the city’s findings cite context supporting its chosen interpretation, LUBA concludes that the city’s interpretation is not implausible. The assignment of error is therefore denied and the city’s decision is AFFIRMED.