Oregon Coast Alliance v. Clatsop County

Where, on remand from LUBA, a local government is instructed to interpret a subsection of its code, it is not a procedural error for the local government to also interpret the surrounding provisions without opening the record. Where a term is sufficiently limited by a local government’s interpretation of adjacent or related terms that its interpretation can be implied, that interpretation is adequate for review. LUBA will evaluate a local government’s interpretations of terms within its own code under the deferential Siporen standard.

Petitioners appealed the County’s approval of a conditional use permit (CUP) to develop an access road on an unimproved public right-of-way. The decision was on remand from LUBA for the County to interpret a subsection of the approval criteria provision and adopt adequate findings. The County held a hearing and interpreted the subsection and the provision in general, deciding the subsections were factors, not elements, and that an issue with one factor did not render the site unsuitable for development. The County adopted supplemental findings and approved the CUP. On appeal to LUBA, Petitioners made three assignments of error: 1) the County impermissibly expanded its scope of review on remand by interpreting the broader provision without providing an opportunity to submit new evidence, 2) the County’s supplemental findings were inadequate because they failed to interpret a term necessary to approval, and 3) the County misinterpreted several terms in its code.

LUBA denied the first assignment of error, finding Petitioners had an opportunity to object to the expansion of interpretation below, but failed to do so, and thus had waived the issue. “Where a party has the opportunity to object to a procedural error before the local government, but fails to do so, that error cannot be assigned as grounds for reversal or remand of the resulting decision.” Torgeson v. City of Canby, 19 Or. LUBA 511, 519 (1990). LUBA noted that, even if the issue was not waived, Petitioners had not provided an authority to support the proposition that refusing to let Petitioners submit new evidence was a procedural violation. “On remand, if the county determines that its findings are inadequate, it may prepare new findings without opening the record." Roberts v. Crook County, 33 Or. LUBA 267, 271 (1997). Further, LUBA concluded that under State v. Gaines, 346 Or. 160, 171 (2009), interpretation of a statute first involves interpretation of the text and context, and thus the County did not impermissibly expand its scope of review.

LUBA denied the second assignment of error, reasoning that the County's interpretation of other terms within the approval criteria implicitly constrained the limits of the term at issue, and that implied interpretation is adequate for review. Alliance for Responsible Land Use v. Deschutes County, 149 Or. App. 259, 266-67, (1997), rev dismissed as improvidently allowed, 327 Or. 555 (1998).

LUBA denied the third assignment of error, noting Petitioners did not appear to challenge the County’s conclusion that the subsections were factors, not elements, but rather, Petitioners disputed the County’s interpretations of the terms of its code. “Under ORS 197.829(1), LUBA must affirm 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. The test under ORS 197.829(1) is not whether the interpretation is correct, or the best or superior interpretation, but whether the governing body's interpretation is "plausible," given its text and context.” Siporen v. City of Medford, 349 Or. 247, (2010). The "existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation 'implausible.'" Mark Latham Excavation, Inc. v. Deschutes County, 250 Or. App. 543, 555 (2012) (citing Siegert v. Crook County, 246 Or. App. 500, 509 (2011)). LUBA examined the various terms at issue under the deferential Siporen standard and concluded Petitioners had not established the County’s interpretations were implausible, and that merely arguing another interpretation was more logical did not render a weaker interpretation implausible.

Affirmed.