504 P.3d 1249
Or. Ct. App.2021Background
- Petitioners Stanley and Rebecca Roberts applied for a development permit to build a 2,712 sq. ft. residence on a 5,394 sq. ft. ocean-facing lot in Tolovana Park, City of Cannon Beach.
- City concluded the lot (and the adjacent lot to the north) were “lots abutting the oceanshore,” applied the OM-overlay oceanfront setback (CBMC 17.42.050(A)(6)), and determined the ocean yard barred dwellings within the setback.
- The city identified the single affected building (the house immediately north), calculated an average setback (which equaled that building’s setback), and denied the permit for noncompliance; planning commission and city council affirmed.
- Petitioners appealed to LUBA, which affirmed the denial; they sought judicial review raising two principal claims: (1) the oceanfront setback is not a “clear and objective” standard under ORS 197.307(4); and (2) ORS 227.175(4)(c) and (e) bar applying any standard that reduces housing density (here, by reducing allowable floor area).
- The Court of Appeals reviewed legal questions de novo and affirmed LUBA: the ordinance is a clear and objective standard and ORS 227.175(4)(c) and (e) do not preclude application of a clear and objective standard that only incidentally decreases density.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CBMC 17.42.050(A)(6) (oceanfront setback) is a "clear and objective" standard under ORS 197.307(4) | Roberts: individual terms (e.g., “average,” “Oregon Coordinate Line,” “lot”) are ambiguous; any standalone ambiguity renders the standard not clear and objective | City/LUBA: the standard must be assessed in context; relevant terms are understandable in context and the ordinance provides clear objective rules for setback calculation | Held: The setback is a clear and objective standard when read in context; isolated ambiguities do not invalidate the standard (affirming LUBA) |
| Whether ORS 227.175(4)(c) and (e) prohibit applying a clear and objective standard that incidentally reduces density | Roberts: statute bars any standard that has the effect of reducing authorized density (even incidental effects) | City/LUBA: statute bars conditioning approvals on express density/height reductions, but does not preempt application of ordinary clear and objective local standards (e.g., setbacks) that incidentally reduce density | Held: ORS 227.175(4)(c) and (e) do not forbid applying clear and objective standards that only incidentally reduce density; statute not read to preempt such local regulation (affirming LUBA) |
Key Cases Cited
- Tirumali v. City of Portland, 169 Or. App. 241 (examination of ordinance ambiguity and "clear and objective" analysis)
- State v. Gaines, 346 Or. 160 (framework for statutory construction)
- Ruddell v. City of Bandon, 249 Or. App. 309 (application of clear-and-objective standards jurisprudence)
- Group B, LLC v. City of Corvallis, 275 Or. App. 557 (clarifying when standards are not clear and objective)
- Warren v. Washington County, 296 Or. App. 595 (noting 2017 expansion of clear-and-objective requirement to all housing)
- Owen v. City of Portland, 368 Or. 661 (preemption/home-rule principles require clear legislative expression)
- LaGrande/Astoria v. PERB, 281 Or. 137 (principle that legislature does not lightly displace local regulation)
- Garcia-Solis v. Farmers' Ins. Co., 365 Or. 26 (text-and-context canon of statutory interpretation)