Gage v. City of PortlandGage v. City of Portland
In
Clark v. Jackson County,
“[I]n reviewing a [local government’s] land use decision, [the Land Use Board of Appeals (LUBA)] is to affirm the [local government’s] interpretation of its own ordinance [that is part of an acknowledged comprehensive plan,] unless LUBA determines that the [local government’s] interpretationis inconsistent with express language of the ordinance or its apparent purpose or policy. LUBA lacks authority to substitute its own interpretation of the ordinance unless the [local government’s] interpretation was inconsistent with that ordinance, including its context.”
In this land use case, LUBA applied that deferential standard of review in affirming the interpretation of a city code provision by a city hearings officer. On judicial review, the Court of Appeals agreed with that aspect of LUBA’s decision, stating that the deference required by
Clark
“extend[s] as fully to a final local decision made by a hearings officer as to one made by the governing body.”
Gage v. City of Portland,
In September 1984, the City of Portland approved a final development plan for the 35-unit Cedаr Meadows Planned Unit Development (PUD) in southwest Portland. In November 1991, the developers filed an application for a minor amendment to the PUD, seeking to reduce the number of residential structures on the site from six to three and to make an accompanying change in the location of the structures. 1 The Bureau of Planning approved the amendment, and a city hearings оfficer upheld the Bureau’s decision on appeal. Under the procedure applicable to such cases, the hearings officer’s decision was the final local government action. 2
On appeal of the hearings officer’s decision to LUBA, petitioners argued, among other things, that the hearings officer had failed to apply to the proposed PUD аmendment certain relevant provisions of the Portland City Code (PCC). Those provisions — contained in PCC chapter 33.299 (Temporary Prohibition on the Disturbance of Forests) — prohibited, subject to certain exceptions, the cutting, damaging, or removing of vegetation in forests within certain areas of the city. LUBA agreed with petitioners that PCC chapter 33.299 was applicable to the рroposed PUD amendment and that the city had failed to apply that ordinance to test the proposed amendment. Accordingly, LUBA remanded the decision on the amendment to the hearings officer so that the hearings officer could interpret and apply the city code provisions in the first instance.
On remand, the hearings officer concluded that the site of the PUD met the definition of “forest” in PCC section 33.299.020 and that the development of the PUD would require the cutting and removing of trees and other vegetation — activities generally prohibited by PCC section 33.299.030(C). The hearings officer further concluded, however, that the proposed amendment fell within PCC section 33.299.040(F), an exception to the general prohibition. Section 33.299.040(F) provided that, “[notwithstanding the general prohibition of Section 33.299.030 above, the following activities are allowed: * * * F. Any activity authorized by a land use decision accepted and recorded before the effective date of this ordinance.” 3 The hearings officer reasoned:
“The area to be developed under the amended plan includes less of the forested area than under the originally approved PUD. Fewer trees will bе removed and the structures have been consolidated to reduce the area to be disturbed. All the development activity that will disturb forest area [under the amended plan] was approved in that original approval.”
Petitioners once again sought review of the hearings officer’s decision by LUBA, this time arguing, among other things, that the hearings officer had construed PCC sectiоn
33.299.040(F) improperly. Petitioners
LUBA rejected petitioners’ arguments and affirmed the hearings officer’s decision. In affirming the hearings officer’s interpretation of PCC section 33.299.040(F), LUBA applied Clark’s deferential standard of review. LUBA concluded that Clark was applicable because, “so long as the decision maker in question has authority to interpret local enactments, its interpretation becomes the interpretation of the local government, to which we are required to defer under Clark.”
Petitioners sought judicial review of LUBA’s order in the Court of Appeals. Before that court, petitioners argued that LUBA’s affirmance of the decision of the hearings officer was “unlawful in substance,” ORS 197.850(9)(a), because, among other things, LUBA should not have deferred to the hearings officer’s interpretation of PCC section 33.299.040(F). 4 The Court of Appeals rejected that argument, concluding, as previously noted, that Clark permits no distinction between an interpretation of a local ordinance by a hearings officer and an interpretation by the local gоverning body itself. The Court of Appeals then reversed and remanded LUBA’s order on other grounds. See supra note 4. After the Court of Appeals adhered to its opinion on reconsideration, 5 we allowed review to consider whether the deference required by this court’s decision in Clark applies to an interpretation of a local ordinance by a hearings officer. For the reasons that follow, we conclude that it does not.
We begin our analysis by summarizing this court’s decision in
Clark v. Jackson County, supra. Clark
was a land use case involving an application for a conditional use permit to mine shale on a 40-acre portion of a 400-acre tract of grazing land in Jackson County. A Jackson County ordinance provided that the proposed conditional use could be approved by the County only if the use was situated “upon generally unsuitable land for the production of farm crops and livestock.” The county board of commissioners found that the 40-acre area met that standard and
On review, this court noted that LUBA’s decision was “predicated on rejection of the county’s interpretation of the ‘generally unsuitable land’ criterion and substitution of LUBA’s own interpretation of the meaning of ‘generally unsuitable land’ in the local ordinance.”
Clark v. Jackson County, supra,
“Under ORS 197.835(7)(a)(D), LUBA is granted review authority over a county’s interpretation of a local land use ordinance. If a county has construed an ordinance in a manner that clearly is contrary to the enacted language, LUBA acts within its scope of review in finding that the county improperly construed the applicable law. See Yamhill County v. Ludwick,294 Or 778 , 789,663 P2d 398 (1983) (applying principle); West Hills & Island Neighbors v. Multnomah Co.,68 Or App 782 , 787,683 P2d 1032 (1984) (affirming LUBA’s conclusion that county’s interpretation was contrary to language and intent of county ordinance).
"* * * * *
“As Yamhill County v. Ludwick, supra, indicates, LUBA may review the county’s application of its own law for consistency with the intended purpose of the county law. See Anderson v. Peden,284 Or 313 , 318-20,587 P2d 59 (1978) (where more than one interpretation is tenable, county may reasonably act on its view of what authority it meant to reserve in its ordinance).
“These cases illustrate that, in reviewing a county’s land use decision, LUBAis to affirm the county’s interpretation of its own ordinance unless LUBA determines that the county’s interpretation is inconsistent with express language of the ordinance or its apparent purpose or policy. LUBA lacks authority to substitute its own interpretation of the ordinance unless the county’s interpretation was inconsistent with that ordinance, including its context.”
Clark v. Jackson County, supra,
In essence, then, this court’s decision in Clark requires LUBA, in certain circumstances, to defer to a local government’s interpretation of its own ordinance. The local governmental body responsible for the interpretation of the ordinance in Clark was the governing body of the county that had enacted the ordinance; therefore, this court had no occasion to address whether such deference must be given to an interpretation of an ordinance by someone other than the governing body, e.g., a hearings officer. The principles underlying this court’s decision in Clark, discussed infra, however, support the conclusion that the deference required by that decision does not apply to the interpretation of a local ordinance by a hearings officer — when, as was true here, there was no appeal of the hearings officer’s decision to the responsible political body.
The principles underlying
Clark
are perhaps best illustrated by an examinatiоn of several earlier cases involving deference to a local government’s interpretation of its own enactments.
In Fifth Avenue Corp. v. Washington Co.,
In
Anderson v. Peden, supra,
the court applied the rule of deference stated in
Fifth Avenue Corp.
to an interpretation by Deschutes County of one of its own land use ordinances. The court noted that, where two interpretations of the ordinance are “tenable, * * * the county may reasonably act on its view of what authority it meant to reserve in its ordinance.”
In
Bienz v. City of Dayton,
“In administrative law we have generally held that it is the responsibility of the agency entrusted with the administration of a statute, rather than the courts, to fill the statutory interstices. * * * The same rule should apply in construing municipal ordinances. The city council is not only charged with administering the ordinance, but is the legislative authority from which the ordinance originates and thus is in a superior position to discern legislative intent. Here, we have an ambiguity in the ordinance. We defer to the city’s resolution of that ambiguity where as here the city’s construction is not contrary to the express terms of the ordinance.”
The Court of Appeals’ analogy in
Bienz
to the administrative law context is an apt one, because some of the reasons for giving deference to an administrative agency’s interpretation of a legal rule are identical to the reasons for giving deference to a local government’s interpretation of its own ordinance. For example, in
Springfield Education Assn. v. School Dist.,
Based on the foregoing authorities, it is apparent that there are two fundamental principles behind the rule of deference announced by this cоurt in Clark. First, deference is due a local governing body’s interpretation of its own ordinance, because that governing body is composed of the politically accountable representatives elected by the community affected by the ordinance. Second, and perhaps more important, deference is due a local governing body’s interpretation оf its own ordinance, because that governing body is the legislative body responsible for enacting the ordinance and may be assumed to have a better understanding than LUBA or the courts of the intended meaning of the ordinance.
When this court’s decision in
Clark
is viewed in the light of those fundamental principles, it becomes evident that the reasons for requiring deference to a local government’s interpretation of its own ordinance do not apply when the interpretation is that of a hearings officer. As petitioners aptly pointed out in their arguments before LUBA, “a policy of interpretive deference to a city council or county commission when it is interpreting ‘its own ordinance’ has little meaning in the context of an interpretation by a hearings officer, a relatively independent administrative law judge without policy-maMng, legislative or enforcement authority.” Because a hearings officer is not a member of
It follows from the foregoing that LUBA’s order in this case was “unlawful in substance,” ORS 197.850(9)(a), because LUBA applied the Clark rule of deference to a set of circumstances not governed by the Clark rationale. Consеquently, this matter must be remanded to LUBA, so that LUBA can determine in the first instance, and without according the deference required by Clark, whether the hearings officer “[i]mproperly construed the applicable law,” viz, PCC section 33.299.040(F). If, on remand, LUBA’s decision on that issue does not result in reversal of the hearings officer’s decision, the matter must be remanded to the city, so that the city can addrеss the expiration issue discussed in the Court of Appeals’ opinion. See supra note 4.
The decision of the Court of Appeals is affirmed in part and reversed in part. The matter is remanded to the Land Use Board of Appeals with instructions.
Notes
The total number of dwelling units within the structures was to remain the same.
The decision on the amendment to the PUD in this case was subject to what the City of Portland refers to as its “Type II” review procedure. See Portland City Code ch 33.730 (“Quasi-Judicial Procedures”). Under that procedure, the decision of the hearings officer “is final and may not be appealed to another review body within the City.” Id. § 33.730.020(I)(10). Thus, in this case, the Portland City Council did not have any review authority over the decision of the hearings officer.
The provisions of PCC chapter 33.299 took effect on January 1,1991.
Petitioners also argued that LUBA’s order was unlawful in substance because LUBA did not remand the decision to the hearings officer for consideration of petitioners’ argument that, under certain other provisions of the Portland City Code, the original PUD approval had expired prior to the approval of the amendment. The Court of Appeals agreed with that argument, reversed LUBA’s order, and remanded with instructions to remand the decision to the city.
Gage v. City of Portland,
In an initial petition for review to this court, petitioners argued that the Court of Appeals had given more deference to the local interpretation than was required by
Clark v. Jackson County,
In their petition to this court following the Court of Appeals’ opinion on reconsideration, petitioners again argued that the Court of Appeals had given more deference than required by Clark, in that the court had improperly narrowed the “context” of the local legislation. We need not address that argument, however, because — as discussed further below — we conclude that the deference required by Clark does not apply to an interpretation of a local ordinance by a hearings officer.
Petitioners also have raised an argument regarding the jurisdiction of the hearings officer to address the application of PCC chapter 33.299 to the PUD on the original remand from LUBA. The Court of Appeals rejected that argument without comment, and we decline to address that aspect of the Court of Appeals’ decision further.
As noted above, see supra note 2, defendant the Portland City Council did not retain any review authority over the decision of the hearings officer in this сase.
In 1993, the legislature enacted a statute that expressly addresses LUBA’s review of “a local government’s interpretation of its comprehensive plan and land use regulations” and that, for the most part, appears to codify this court’s decision in Clark. Or Laws 1993, ch 792, § 43 (codified at ORS 197.829). That statute does not apply here, however, because it went into effect only after LUBA’s review of the decision in this case.