Rogue Advocates v. City of Ashland

Where the express language of a local government’s code states that an application must satisfy certain criteria to be approved, the local government must either find the application fully satisfies those criteria, or the local government must show how those criteria will be satisfied later in the development process in order to approve the application.

Petitioner appealed a City approval of an application to, among other things, annex a plot of land, create a subdivision of 230 apartments on that land, and request exceptions to the City’s street design standards, including the requirement that at least one on-street parking space per dwelling unit be provided. The City’s annexation standards required 25% or more of the development must be affordable units, and established a minimum square footage for those units. The minimum square footage of affordable studios was 350 square feet, and the minimum for one-bedroom units was 500 square feet. The application proposed affordable one-bedroom units with 499 square feet, and affordable micro-studios with 250 square feet. The City concluded that it would grant an exception to the on-street parking requirements and that the proposed affordable units were “similar in proportion to the market rate units[.]” The City approved the application. Petitioner appealed.

On appeal, LUBA’s review turned on the second subassignments of Petitioner’s first and fourth assignments of error: 1) the City misconstrued the local code when it decided it could grant an exception to the requirement of one on-street parking space per dwelling unit, and 4) that the City misconstrued the local code in finding the application’s proposed square footage of the affordable units was sufficiently “similar” to the code’s requirements when the text of the rule expressly stated the square footages “shall” comply with the code’s requirements. In response, the City argued 1) that the parking requirement was satisfied because some of the required parking would be on the development’s own land, and that Oregon’s Equitable Communities and Climate Friendly Act of 2023 barred it from requiring the on-street parking, and 4) that while the application proposed units smaller than required by its code, the applicant would be required to demonstrate compliance with the square footage minimums in the final plan approval stage.

Under Siporen v. City of Medford, 349 Or. 247, 259 (2010), “LUBA must defer to a local governing body's interpretation of its comprehensive plan and land use regulations unless the local government's interpretation is inconsistent with the express language, purpose, or underlying policy of the comprehensive plan or land use regulation.” That consistency “depends on whether the interpretation is plausible[.]” Crowley v. City of Hood River, 294 Or. App. 240, 244 (2018). 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 sustained the second subassignment of the first assignment of error, agreeing that the City’s interpretation of its provisions for allowing exceptions to on-street parking was inconsistent with the express language. LUBA first noted that, while the Equitable Communities and Climate Friendly Act of 2023 was apparently passed in January 2023, the application at issue was filed in December 2022, and thus the Act did not apply to the application. Because the City had not developed an argument showing that the Act would now prevent it from requiring the on-street parking on remand, LUBA declined to make that decision now. LUBA then found that the exceptions permitted in the City’s code did not provide the City with authority to approve an exception to these on-street parking requirements. LUBA also pointed out that, contrary to the City’s argument, the record showed the City had not found the application satisfied the on-street requirement by including some of the parking on the development’s own land, the City had approved an exception to the on-street requirements. LUBA concluded that it would not consider this reason now because it had appeared for the first time in the City’s brief.

LUBA also sustained the second subassignment of the fourth assignment of error, that the proposed affordable units did not comply with the square footage requirements of the local code. LUBA noted that the City had not identified a provision that would require the applicant to demonstrate compliance with the minimum square footage requirements at the final plan approval stage. LUBA further pointed out that the City had approved the application’s proposed unit sizes because they were “similar” or “comparable” to the requirements while the express language of the code stated “the proposed square footages ‘shall’ comply with those set forth in [the code].” LUBA concluded the City’s interpretation of its code was inconsistent with the express language of the provisions.

Remanded.