439 P.3d 581
Or. Ct. App.2019Background
- Venture Properties applied to Washington County for a six‑lot subdivision on a 2.8‑acre parcel crossed by Ash Creek; about half the parcel is on the county's Significant Natural Resources map.
- The application proposed to set aside 58% of the parcel (including Ash Creek floodplain/wetlands) and to perform "enhancement plantings" in a riparian corridor as required by regional agency rules.
- A county hearings officer approved the subdivision with conditions; petitioner Warren appealed to LUBA, which affirmed the county. Warren sought judicial review in circuit court.
- Central legal question arises under ORS 197.307(4) (2017 amendment) — whether local governments may apply non‑clear-and‑objective standards to regulate housing development, and whether that constraint is limited to "buildable land."
- LUBA ruled the 2017 amendment removed the "buildable land" limitation so the clear‑and‑objective requirement applies to regulation of housing generally, and held that certain county code provisions (CDC 422‑3.3/422‑3.4) are not clear and objective as applied (specifically the term "measurably improved").
Issues
| Issue | Plaintiff's Argument (Warren) | Defendant's Argument (County/Venture) | Held |
|---|---|---|---|
| Does ORS 197.307(4) (2017) limit the clear‑and‑objective requirement to "buildable land"? | The 2017 amendment did not extend the requirement beyond "buildable land"; subsection (4) should be read as still limited. | The plain text and context show subsection (4) now applies to regulation of housing generally, without a "buildable land" limitation. | Held: The 2017 text deleted "buildable land" and the clear‑and‑objective requirement applies to regulation of housing generally. |
| Are CDC 422‑3.3/422‑3.4 "standards, conditions, or procedures" subject to ORS 197.307(4)? | The definition of "enhancement" is only a definitional provision, not a standard/condition/procedure, so ORS 197.307(4) does not apply. | Application of CDC 422‑3.3/3.4 to permit or deny riparian alterations regulates housing development and thus is a condition/standard subject to ORS 197.307(4). | Held: CDC 422‑3.3/3.4 govern whether enhancement plantings are allowed and impose conditions (e.g., "measurably improved"), so they are standards/conditions/procedures under ORS 197.307(4). |
| Is the term "measurably improved" in CDC 422‑3.4 clear and objective under ORS 197.307(4)? | Warren did not directly argue the phrase is clear; instead contended the provision is a definition or severable from an otherwise clear prohibition. | LUBA found "measurably improved" is not clear and objective, so the county could not rely on that exception to prohibit enhancement plantings. | Held: Court agreed LUBA appropriately treated the phrase under the clear‑and‑objective test; the opinion does not express a view on whether the phrase itself meets the standard. |
| Can the county rely on the general prohibition against alteration (apart from the enhancement exception) if the enhancement definition is invalid? | The general prohibition is clear and objective and severability preserves it even if the enhancement exception is invalid. | Preservation not meaningfully argued below; contention inadequately preserved for judicial review. | Held: Argument not preserved; court declined to address severability issue. |
Key Cases Cited
- TriMet v. Amalgamated Transit Union Local 757, 362 Or. 484, 412 P.3d 162 (2018) (text of statute is primary evidence of legislative intent)
- State v. Spainhower, 251 Or. App. 25, 283 P.3d 361 (2012) (context includes prior versions of a statute)
- Willamette Oaks, LLC v. City of Eugene, 295 Or. App. 757, 437 P.3d 314 (2019) (issues not raised before LUBA are generally not preserved for judicial review)