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

LUBA will grant deference to a local government’s interpretation of an ambiguous land use regulation unless its interpretation is inconsistent with the express language, purpose, or underlying policy of the provisions. ORS 197.829(1). Where the provisions in question do not include express language contrary to a local government’s interpretation, but there is nevertheless a “strong implication” that a different interpretation is required, LUBA will not grant deference.

Petitioner appealed the City’s approval of a new collector road and improvements to existing streets. On appeal, Petitioner made two assignments of error, the second of which LUBA focused on. There were four subassignments of error: a) the City’s findings were inadequate to conclude what type of collector the road was and how its compliance should be assessed, b) the City erred in concluding that the lateral improvements for a collector could be constructed when the adjacent properties were developed rather than when the road was developed, c) the decision was not in compliance with numerous other building provisions, and d) the road was partly in another zone and required other evaluation criteria. In response, the City argued its interpretation of the ambiguous code provisions was reasonable and should be given deference.

LUBA will grant deference to a local government’s interpretation of an ambiguous land use regulation unless its interpretation is inconsistent with the express language, purpose, or underlying policy of the provisions. ORS 197.829(1). LUBA agreed with Petitioner’s second assignment of error most notably the second subassignment. LUBA found the City’s claim—that improvements such as streetlights, sidewalks, and driveways could be constructed when adjacent properties were developed rather than when the road was constructed—was inconsistent with collector code provisions. LUBA reasoned that while the provisions did not expressly state these improvements must occur when the road was constructed, there was a “strong implication” that they would be, and the City’s interpretation did not explain when improvements would be constructed if the property was already developed or was never developed, which could lead to some improvements not being constructed. Because the purpose of the provisions was to ensure lateral improvements would be constructed, LUBA concluded the City’s interpretation was inconsistent with the purpose of the code provisions, and remand was necessary for the City to address the inconsistency. LUBA similarly remanded under the first subassignment, finding the City had failed to adequately explain why the road qualified as one type of collector and not another with a more rigorous set of requirements.

LUBA denied Petitioner’s remaining subassignments for vagueness and lack of support. LUBA noted it was not obligated to hunt through the petition for review to find arguments Petitioner did not make themselves. Regency Centers, L.P. v. Washington County, 265 Or. App. 49, 61 (2014).

Remanded.