Thrive Hood River v. Hood River County

In 2014, the county approved intervenor’s application to construct an amphitheater on land zoned Industrial (M-1) in an exception area. The county subsequently granted three extensions of the amphitheater permit. In 2019, intervenor applied for a fourth extension. Under Hood River County Zoning Ordinance (HRCZO) 1.130(A)(4), the county may grant such extensions if “[t]he approval criteria for the original decision found in a state goal, policy, statute or administrative rule, the Comprehensive Plan or this Ordinance have not changed.” The board of commissioners approved the fourth extension application and this appeal followed.

Although the county adopted new off-street parking requirements in 2018 that would have applied to the 2014 approval, the board of commissioners interpreted the phrase “approval criteria for the original decision” in HRCZO 1.130(A)(4) to mean the criteria that were “actually applied” to the 2014 approval. Because the new off-street parking requirements had not been adopted and were not applied in the 2014 approval, the board of commissioners concluded that it could approve the fourth extension. In the first assignment of error, petitioner argued that the board of commissioners improperly construed HRCZO 1.130(A)(4). Because nothing in HRCZO 1.130(A)(4) limited its application to approval criteria that were “actually applied” to the original decision, because ORS 174.010 prohibits interpretations that insert words that have been omitted, and because HRCZO 1.130(A)(4) expressly precludes extensions when approval criteria for the original decision “found in” the HRCZO have changed, LUBA agreed with petitioner that the board of commissioners’ interpretation of HRCZO 1.130(A)(4) was inconsistent with that provision’s express language. LUBA also agreed with petitioner that the board of commissioners’ interpretation was inconsistent with the underlying purpose of HRCZO 1.130(A)(4), which was to allow extensions only when proposed development is consistent with existing law at the time of the extension. Because the board of commissioners’ interpretation was inconsistent with the express language and underlying purpose of HRCZO 1.130(A)(4), LUBA agreed with petitioner that the board of commissioners improperly construed that provision. The first assignment of error was therefore sustained.

In 2019, the county began requiring development in the M-1-zoned portions of the exception area to comply with OAR 660-004-0018. Although HRCZO 1.130(A)(4) precludes extensions where “policy” has changed, the county interpreted the term “policy” to mean “state policy.” Because the county’s application of OAR 660-004-0018 was a change in county policy, the board of commissioners concluded that it could approve the fourth extension. In the second assignment of error, petitioner argued that the board of commissioners improperly construed HRCZO 1.130(A)(4). Because the text of HRCZO 1.130(A)(4) divided state law (i.e., “state goal, policy statute or administrative rule”) from county law (i.e., “the Comprehensive Plan or this Ordinance”), and because the term “policy” was grouped with state law, LUBA agreed with respondents that the board of commissioners’ interpretation was not inconsistent with the express language of HRCZO 1.130(A)(4) in that respect, even though some sources suggested that a semicolon would have been necessary between the instances of state law and the instances of county law in order to convey the board of commissioners’ interpretation. The second assignment of error was therefore denied.

Because the county adopted new off-street parking requirements in 2018 that would have applied to the 2014 approval, LUBA concluded that “[t]he approval criteria for the original decision” had changed for purposes of HRCZO 1.130(A)(4) and that the county was prohibited as a matter of law from granting the fourth extension. Accordingly, the county’s decision was REVERSED.