Botts Marsh LLC v. City of Wheeler

During the design review stage of an application, a local government’s interpretation of its design criteria must be shown to be supported by the text, context, and purpose of the standards used in the ordinance.

The Court of Appeals reversed part of LUBA’s decision in Petitioner’s appeal of a City denial of a design review application. In Botts Marsh, LLC v. City of Wheeler, __ Or. LUBA __ (LUBA No. 2022-079, Jan. 4, 2023) (Botts Marsh I), Petitioner had, among other things, assigned error claiming the City’s interpretation that certain space was required for tree growth under one of its ordinances was inconsistent with the express language of the ordinance. LUBA agreed the interpretation was not supported by the express language of the ordinance. LUBA’s decision was appealed in Botts Marsh, LLC v. City of Wheeler, 326 Or. App. 215 (2023) (Botts Marsh II), and while the Court upheld LUBA’s decision on the other assignments of error, it disagreed with LUBA’s conclusion regarding the City’s interpretation of its ordinance requiring space for tree growth. Instead, the Court found it was plausible to require some space for tree growth under the ordinance, provided the City notified Petitioner of the number of trees, the space required per tree, how the space will be measured, and how these were “supported by the text, context, and purpose of the standard.” On remand to LUBA, LUBA accordingly denied this assignment of error. Remanded.