Suess v. City of Port Orford

In 2017, the city council approved conditional use permits (CUPs) authorizing intervenor to develop pipelines to transport recycled wastewater to a planned golf course. Under Port Orford Municipal Code (POMC) 17.32.060, CUPs generally expire after one year “unless substantial construction has taken place.” However, the city “may extend authorization for an additional period not to exceed one year.” The city approved one-year extensions for the CUPs in 2018 and 2019. In 2020, the city council approved a third one-year extension. On appeal of the 2020 extension, petitioner argued that, because POMC 17.32.060 authorizes “an” extension, the city council misconstrued that provision in concluding that it could grant unlimited extensions. Because the provision’s language did not expressly prohibit multiple extensions, LUBA concluded that it was required to defer to the city council’s interpretation under ORS 197.829(1). Petitioner also argued that the city’s interpretation made the provision that a CUP does not expire if “substantial construction” has taken place superfluous because, if the city can grant unlimited extensions, then no CUP would ever expire. LUBA disagreed with petitioner, concluding that the “substantial construction” provision was not superfluous because, if such construction took place, a developer would not need to apply for an additional extension. The city’s decision was therefore AFFIRMED.