1st John 2:17, LLC v. City of Boardman

Where the record shows that a party has been granted advance occupancy of an easement, it is not inconsistent with the express language of a local ordinance applying to “record owner[s] of property (person(s) whose name is on the most recently recorded deed)” to classify that party as “a record owner." Even when a private utility company is providing a service to the general public it is not inconsistent with a local ordinance applying to “[p]rivate utilities (e.g. natural gas, electricity, telephone, cable, and similar facilities)” to classify the company as a “private utility.”

Petitioner appealed the city council's approval of a zoning permit to Umatilla Electric Cooperative (the Cooperative) for a 230-kilovolt transmission line which would cross their property. The subject property is zoned C-SC.

In Petitioner's first assignment of error, they argued that Umatilla Electric Cooperative was not a "a record owner" for purposes of BDC 4.1.700(D)(1)(a)(4). BDC 4.1.700(D)(1)(a)(4) provides that "a record owner of property (person(s) whose name is on the most recently recorded deed)" may initiate an application for land use approval. Petitioner argued that the parenthetical following "record owner" exclusively defines "record owner," and because the Cooperative's name was not on the most recently recorded deed for the subject property, the city council erred in determining that the Cooperative qualified as a "record owner." The Cooperative argued the parenthetical is ambiguous and can be read as defining or providing an example of “a record owner.” The city council found that the Cooperative was granted advance occupancy of the easement and found them to be "a record owner" for purposes of BDC 4.1.700(D)(1)(a)(4).  LUBA affirms a governing body's interpretation of its own land use regulation if the interpretation is not inconsistent with the regulation's express language, purpose, or underlying policy. ORS 197.829(1). The inquiry is if the city council's interpretation was "plausible," not if it was the correct or best interpretation. LUBA agreed the city council's interpretation was not inconsistent with BDC 4.1.700(D)(1)(a)(4) because the article "a'" before "record owner" indicates there could be multiple record owners. Additionally, "record owner" is a legal term of art defined in Black's Law Dictionary as a "property owner in whose name the title appears in the public records," and “public record" is defined as a "record that a governmental unit is required by law to keep, such as land deeds kept at a county courthouse." Therefore, the referenced owner may not necessarily be shown in the county's real property records. Furthermore, Petitioner's argument would result in a situation where Petitioner could withhold their written authorization as "the owner" and prevent the very installment that a court-ordered easement in a condemnation action, as provided for in ORS 35.275, was granted for. LUBA recognized interpretations of local code provisions should not be read to repeal a state law and believed Petitioner's interpretation would be too close to nullifying ORS 35.275. The first assignment of error is denied.

Petitioners argued in their second assignment of error that the Cooperative was not a private utility allowed in the S-SC zones under BDC Table 2.2.200(B)(2)(b) because the intent of the transmission line was to serve the public in general, not specific private homes or businesses. BDC Table 2.2.200(B)(2)(b) provides that "[p]rivate utilities (e.g. natural gas, electricity, telephone, cable, and similar facilities)" are authorized in the C-SC zone. LUBA responded that the city council's determination of the transmission line as a private utility was not inconsistent with the express language, purpose, or underlying policy of the provision because the Cooperative is a private entity, and the provision does not distinguish between types of private utilities. The second assignment of error is denied.