Tylka v. Clackamas County

When a local government interprets its own code, LUBA will apply the "plausible" test under Siporen v. City ofMedford, 349 Or 247, 4 243 P3d 776 (2010), and give deference to the governing body's interpretation.

The County previously amended its code to allow short-term rental use of dwelling units and guest houses (Ordinance ZDO-273). LUBA remanded ZDO-273 to the County to adequately address housing affordability policies in the Clackamas County Comprehensive Plan (CCCP) pursuant to ORS 197.175(2)(d). 1000 Friends of Oregon v. Clackamas County, __ Or LUBA ___ (LUBA No 2021-003, Jan 24, 2022), aff’d, 514 P3d 553 (2022). Ordinance ZDO-282 amended, in part, the housing provision of the CCCP (chapter 6) in response to the remand. The decision was appealed to LUBA.

The CCCP advances “development that will provide a range of choices in housing type, density, and price throughout the County.” CCCP Housing Goal 2. CCCP policies for housing type include, in part, “a range of housing types throughout the county in a range of zoning districts” (6.B.1); “middle housing in urban, low density residential areas” (6.B.3); and “increased capacity for multifamily development in the urban area" (6.B.6). CCCP policies for housing affordability include, in part, allowing for “a variety of housing densities and price ranges throughout the county” (6.C.1) and “rental units with a variety of size, location and accessibility” (6.C.2).

Further, the CCCP advances “housing opportunities that meet the economic, social, and cultural needs of community members while using energy, land, and public facilities as efficiently as possible.” CCCP Housing Goal 3. CCCP policies for housing livability include, in part, providing “a variety of middle housing opportunities that meet the design standards that apply in existing, urban residential neighborhoods” (6.D.5) and “greater flexibility for duplexes, triplexes, and quadplexes in the urban area” (6.D.6).

The CCCP also advances housing availability through short- and long-term stable housing for houseless individuals. CCCP Housing Goal 1.

In their first assignment of error, Petitioner argued that the County erred when it amended the CCCP because the County’s decision diverged from CCCP housing policies. Specifically, Petitioner argued that the County failed to consider that the decision undermined the housing policies by hindering the availability of housing for ownership and long-term rentals. Respondent argued, and LUBA agreed, that the housing type, affordability, and "livability" provisions did not apply to the County’s decision because those provisions required the County to promote development, not to safeguard new developments for long-term occupancy. Respondent also argued, and LUBA agreed, that the houselessness provision did not apply to the County’s decision. ORS 174.010. LUBA determined that it must defer to the decision under ORS 197.829(1) because the County’s interpretation was "plausible." Siporen v. City of Medford, 243 P3d 776 (2010).

Petitioner also argued in their first assignment of error that the County erred when it determined that the housing affordability provisions (CCCP 6.C.1 and 6.C.2) applied to the decision, therefore putting more weight on housing affordability than availability, because the County relied on an inadequate factual base. Statewide Planning Goal 2 (Land Use Planning). LUBA determined that Petitioner did not establish that Goal 2, or any other criterion, required the County to rely on a factual base in making the decision. CAPA v. City of Mosier, 44 Or LUBA 452, 462 (2003). LUBA further determined that Petitioner failed to provide a basis for reversal or remand.  

Accordingly, LUBA held that the first assignment of error was denied.

Chapter 11 of the CCCP provides for amendments and implementation procedures. In their second assignment of error, Petitioner argued that the County erred when it failed to comply with statewide planning goals, the Metro Urban Growth Management Functional Plan, or the Metro Regional Framework Plan because the decision did not adopt responsive findings (11.B.1). Respondent argued, and LUBA agreed, that the record showed the County considered 11.B.1. Accordingly, LUBA held that the second assignment of error was denied.