Tarr v. Multnomah County

(1) Where statutory text is ambiguous, but where available legislative history strongly supports one interpretation over another, a local government errs by adopting the unsupported interpretation even if the supported interpretation could be construed as creating meaningless surplusage. (2) Where a local code provision allows conditional uses that are “consistent with the character of the area,” a local government does not err in approving a conditional use which generates greater traffic and noise impacts than uses allowed outright if a majority of the conditional uses generate similarly greater impacts.

Intervenors applied to construct a mosque on property zoned Multiple Use Agriculture (MUA-20) that is surrounded by rural, residential development but near urban development. Under Multnomah County Code (MCC) 39.4320(A) and 39.7520(A)(1), “place[s] of worship” are conditional uses in the MUA-20 zone. Under MCC 39.7515(A), such uses must be “consistent with the character of the area[.]” Under ORS 215.441(1), where a county allows places of worship, it must allow the “reasonable” use of the property for activities customarily associated with such worship. Under ORS 215.441(2), counties “may” subject places of worship to “reasonable regulations, including site review or design review, concerning the physical characteristics of the uses.” The county concluded that, under ORS 215.441, it could not apply MCC 39.7515(A) to the application. Alternatively, the county concluded the mosque was consistent with the character of the area, including both the surrounding rural development and the nearby urban development. The county approved the application and this appeal followed.

In the first assignment of error, petitioners argue the county misconstrued ORS 215.441 in concluding it could not apply MCC 39.7515(A). Specifically, because ORS 215.441(2) uses the term “may” instead of mandatory or prohibitive terms such as “shall,” because ORS 215.441(1) requires counties to allow only the “reasonable” use of property for worship activities, and because the final version of ORS 215.441(2) was amended by the legislature to remove express restrictions on county authority from earlier drafts of the bill, petitioners argue ORS 215.441 does not eliminate counties’ authority to apply conditional use standards to places of worship. Respondents respond that, because counties have long been able to apply design review and similar standards to places of worship, the only way not to render ORS 215.441(2) redundant is to interpret ORS 215.441(1) as precluding counties from applying conditional use standards. Respondents also argue that ORS 215.441(3) supports their interpretation since it provides that religious schools are subject to applicable law “notwithstanding” ORS 215.441(1) and (2). Because ORS 215.441(1) does not expressly preclude counties from applying conditional use standards, because the list of standards that counties may apply in ORS 215.441(2) is not exclusive, and because petitioners correctly characterize the legislative history of ORS 215.441, LUBA agrees with petitioners that the county erred in concluding it could not apply MCC 39.7515(A). The first assignment of error is therefore sustained.

In the second assignment of error, petitioners argue the county misconstrued MCC 39.7515(A) in determining the “area” with which the mosque was required to be compatible. Specifically, petitioners argue the “area” for such purposes is the area set out in the application materials and, because intervenors’ application set out only the surrounding rural development, the county erred in evaluating the mosque’s consistency with the nearby urban development. Because MCC does not define the relevant “area,” because petitioners do not argue the county committed procedural error by failing to give them an opportunity to address consistency with the urban development, and because the county concluded the mosque was consistent with the rural development in any event, LUBA concludes petitioners’ argument provides no basis for reversal or remand.

In the third assignment of error, petitioners argue the county misconstrued MCC 39.7515(A) by concluding the mosque was consistent with the character of the surrounding rural development despite the fact that it would generate more traffic and noise impacts than residential uses. LUBA agrees with respondents that petitioners waived this issue by not raising it below. However, because a majority of conditional uses allowed in the MUA-20 zone generate more traffic and noise than residential uses, and because petitioners’ interpretation would preclude a majority of those uses from ever being approved, LUBA concludes the county did not misconstrue MCC 39.7515(A). The third assignment of error is denied, and the county’s decision is AFFIRMED.