Sherman v. Deschutes County

Under DCC 215.283(1), placement of a necessary public utility in the public right-of-way constitutes a reconstruction or modification of public roads and highways. DCC 18.84.050(A) does not require a new structure exempt from needing a building permit to obtain site plan approval in accordance with DCC 18.84 prior to construction.

Petitioner appealed the county hearings officer’s approval of the siting of Intervenor’s wireless communications facility (the Facility) in Highway 20’s public right-of-way. The Facility would be sited in a 50-square foot area on property zoned exclusive farm use (EFU).

In their first assignment of error, Petitioner argued that the hearings officer misconstrued ORS 215.283(1)(i), which allows for “[r]econstruction or modification of public roads and highways, including the placement of utility facilities overhead and in the subsurface of public roads and highways along the public right of way” in EFU zones. Petitioner argued that the Facility needed to be placed in conjunction with a “reconstruction or modification of public roads and highways.” In interpreting a statute, LUBA examines the statutory text, context, and legislative history with the goal of discerning the enacting legislature's intent. State v. Games, 346 Or 160, 171-72 (2009); PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12 (1993). LUBA disagreed with Petitioner, holding that the statutory text, context, and legislative history of ORS 215.283(1) indicated that the placement of utility facilities is a form of reconstruction or modification of public roads and highways. Textually, including indicated that placing utility facilities along a public right-of-way is an example of an activity constituting reconstruction or modification of public roads and highways. Contextually, the related statute ORS 215.275(2) indicated the legislative intent to favor siting utility facilities within existing rights-of-way, therefore reducing undesirable fragmentation of agricultural land in line with Statewide Planning Goal 3 to “preserve and maintain agricultural lands.” The first assignment of error is denied.

In their second assignment of error, Petitioner argued the hearings officer misconstrued Deschutes City Code (DCC) 18.84.050(A) which provides that “any new structure or substantial exterior alteration of a structure requiring a building permit or an agricultural structure shall obtain site plan approval in accordance with DCC 18.84 prior to construction.” Petitioner argued for the use of the grammatical rule of the last antecedent, in that ‘requiring a building permit’ applied only to the ‘substantial exterior alterations’ and did not modify ‘any new structure,’ which would require the Facility to undergo a site plan review process. LUBA will construe a regulation in a manner that gives effect, if possible, to all its provisions. ORS 174.010; Crystal Communications, Inc. v. Dept of Rev., 353 Or 300, 311 (2013); Northwest Natural Gas Co. v. Dept. of Rev., 347 Or 536, 556 (2010). LUBA found that the grammatical construction was ambiguous and agreed with Intervenor’s argument construing the regulation in a manner that gives effect to all its provisions. LUBA explained if ‘any new structure’ applied to all structures whether they require building permits or not, then adding ‘agricultural structure’ as a third category would be redundant, as agricultural structures are generally exempt from requiring a building permit. The context of the DCC supported this construction, as lists of three items used commas and one ‘or,’ and lists of two items both connected to the subsequent modifying phrase use ‘or’ with no commas. Petitioner’s argument implicated legislative history and policy to support their proffered construction, but LUBA resolved the dispute on text and context alone because “even if legislative history supports claimant’s interpretation,” text is the primary interpretive consideration. Suchi v. Saif, 238 Or. App. 48 (2010). The second assignment of error is denied. The county’s decision is affirmed.

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