Crowley v. City of Hood River

(1) Where LUBA seemingly addresses an issue in its opinion, but where the petitioner only raised that issue before the local government, in their reply brief, and at oral argument, and did not raise the issue in their petition for review, such petitioner has not “raised” and LUBA has not “decided” that issue for purposes of the law of the case doctrine. (2) A local government need not interpret the term “protect” the same way in the context of a statewide planning goal which does not protect a specific unique natural resource or area that it does in the context of a goal that does protect a specific unique natural resource or area, even where the definitions of “protect” in the relevant goal or comprehensive plan are identical.

In 2017, the city rezoned a city park from Open Space/Public Facilities (OS/PF) to Urban High Density Residential (R-3) to meet the city’s need for affordable housing. Under Hood River Comprehensive Plan (HRCP) Goal 8, Policy 1, “[e]xisting parks sites will be protected from incompatible uses[.]” In rezoning the park, the city interpreted this policy to require only that parks be protected from incompatible uses on surrounding lands. Petitioner appealed to LUBA, which affirmed the city’s decision. Petitioner appealed to the Court of Appeals. The court concluded that the city’s interpretation did not “account for the text and context of the policy,” and remanded the decision to LUBA based on that assignment of error alone. LUBA then remanded the decision back to the city to adopt a sustainable interpretation of the policy. On remand, the city rezoned only a portion of a city park from OS/PF to R-3. This appeal followed.

In the early 1980s, the city adopted and incorporated into the HRCP its Goal 8 Recreational Resource Inventory. The park is listed on the inventory. In the second assignment of error, petitioner argues the city cannot rezone the park from OS/PF to R-3 while it is listed on the inventory. The city responds that this issue was rejected in the prior appeal. Alternatively, the city argues the issue was not raised in the prior appeal at all. Either way, the city argues LUBA is precluded from reviewing the issue in this appeal under the law of the case doctrine. Petitioner argues she raised the issue in the prior case, both before the city as well as in her reply brief and during oral argument at LUBA, and that LUBA did not resolve the issue. Because LUBA does not typically address arguments that arise for the first time in the reply brief or at oral argument, LUBA agrees with the city that petitioner did not “raise” the issue in the prior appeal. For the same reason, even if the issue could be considered raised, although LUBA seemingly addressed the issue in a footnote in its opinion in the prior appeal, LUBA concludes the issue was not “decided” because it was not properly before LUBA. Thus, under the law of the case doctrine, LUBA is precluded from reviewing the issue in this appeal.

The city concluded that the term “protect” in HRCP Goal 8, Policy 1, does not prohibit it from rezoning a portion of a park to a non-park use so long as the non-park use is compatible with the rest of the park. In the first assignment of error, petitioner argues the city misconstrued HRCP Goal 8, Policy 1. Because, in Columbia Riverkeeper v. Clatsop County, 61 Or LUBA 96, aff’d, 238 Or App 439 243 P3d 82 (2010), LUBA concluded that the definition of “protect” in Statewide Planning Goal 16 (Estuarine Resources) entirely prohibits incompatible uses and does not allow for mitigation to make them compatible, and because the definition of “protect” in the HRCP is identical, petitioner argues the city misconstrued the term “protect.” However, because Goal 16 requires protection of estuaries which they provide unique natural resource values, whereas Statewide Planning Goal 8 (Recreational Needs) merely requires local governments to satisfy peoples’ recreational needs and does not protect a specific unique natural resource or area, LUBA concludes the city was not require to interpret “protect” the same way, and affirms its interpretation.

Petitioner also argues that private residential use is per se “incompatible” with public park use because, even if a majority of the park will be maintained for public use, the portion of the park that will be rezoned will no longer be accessible for public use. Under HRCP Goal 8, Policy 2, “recreational opportunities and park sites will be located so as to be accessible to a maximum number of people.” In addition, HRCP Goal 8, Policy 3, calls for “development of parks which are accessible by means of walking or bicycling.” Because the dictionary defines “incompatible” as “incapable of coexisting together,” because petitioner identifies no aspects of affordable housing that are incompatible with public park use on the remaining portion of the park, and because the city found that residential and park uses can coexist together—specifically because siting affordable housing adjacent to the park will facilitate use of the park by residents of the development, thereby promoting HRCP Goal 8, Policies 2 and 3—LUBA affirms the city’s interpretation.

Finally, petitioner argues that, because the rezone will diminish the land area of the park, it does not protect the “park site.” Although “site” can refer to an entire bounded area such as a legal lot, LUBA concludes it can also refer to less than an entire area of land. LUBA therefore affirms the city’s interpretation that the “park site” can be protected without maintaining the entire land area of the park for park use. The first assignment of error is therefore denied, and the city’s decision is AFFIRMED.