275 P.3d 1010
Or. Ct. App.2012Background
- Petitioners own two contiguous lots in the City of Bandon's shore land overlay seeking a house permit.
- City denied based on foredune prohibition under Bandon Municipal Code 17.24.040(D).
- LUBA remanded for more factfinding, then upheld the denial.
- City on remand defined foredune per BMC 16.42.010 and interpreted the term using dictionary definitions.
- FEMA 44 CFR § 59.1 guided initial FEMA-based rationale; City later rejected that approach for the remand decision.
- Petitioners challenge both LUBA's deference to the city’s interpretation and the clarity/objectivity of that interpretation under ORS 197.307(6) and ORS 227.173(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LUBA properly deferred to the city’s foredune interpretation. | Rudell contends no ambiguity exists; FEMA/Goal 18 definitions should apply. | City/DLCD contend interpretation is necessary to define scope; not inconsistent with law. | LUBA properly affirmed; city interpretation not inconsistent. |
| Whether the foredune interpretation is clear and objective under ORS 197.307(6) and ORS 227.173(1). | Rudell argues the term ‘relatively flat’ is subjective and not clear/ objective. | City/DLCD argue the term is sufficiently clear and objective; ORS 227.173(1) preserved issues. | Interpretation is clear and objective; standards not inconsistent; ORS 227.173 preserved issues; LUBA did not err. |
Key Cases Cited
- Siegert v. Crook County, 246 Or.App. 500 (2011) (scope of term interpretation may require dictionary guidance even without ambiguity)
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (1993) (text and context analysis to discern intent (modified by Gaines))
- State v. Gaines, 346 Or. 160 (2009) (modified context approach to statutory interpretation for land use)
- Rogue Valley Assoc. of Realtors v. City of Ashland, 158 Or.App. 1 (1999) (clear/objective approval standards; avoid subjective housing barriers)