LandWatch Lane County v. Lane CountyLandWatch Lane County v. Lane County
PAGÁN, J.
Affirmed.
PAGÁN, J.
Petitioner seeks judicial review of a final opinion and order issued by the Land Use Board of Appeals (LUBA).1 Petitioner challenges LUBA‘s determination that
We review LUBA‘s order to determine whether it is “unlawful in substance or procedure[.]”
We begin with some relevant background facts. Petitioner applied to Lane County for approval of a relative farm help dwelling on land zoned EFU. Permitted uses in an area zoned EFU include:
“[a] dwelling on real property used for farm use if the dwelling is occupied by a relative of the farm operator or the farm operator‘s spouse, which means a child, parent, stepparent, grandchild, grandparent, stepgrandparent, sibling, stepsibling, niece, nephew or first cousin of either, if the farm operator does or will require the assistance of the relative in the management of the farm use and the dwelling is located on the same lot or parcel as the dwelling of the farm operator.”
A planning director approved petitioner‘s application for a relative farm help dwelling and a county hearings officer affirmed the
decision, the county will be required to consider and apply the discretionary approval criteria before approving the application, including, for example, considering whether the dwelling will be occupied by a relative of the farm operator and whether that operator will continue to play the predominant role in management of the farm.
On judicial review, the sole assignment of error concerns whether LUBA correctly construed the scope of
The text of
Petitioner argues that the statutory text was plain and unambiguous, and that the statute applied broadly to any application for “housing,” including an application for a relative farm help dwelling on farmland. According to petitioner, LUBA impermissibly usurped the role of the legislature and essentially amended the statute when LUBA determined that the statute did not apply to an application for a dwelling on land zoned EFU. We are not persuaded by petitioner‘s argument.
In Warren, we construed the same statutory text. 296 Or App at 599. We explained:
“Nothing in the wording of that provision suggests that the requirement that local governments regulate housing development only through ‘clear and objective’ standards applies only to housing development on ‘buildable land.’ To the contrary,
ORS 197.307(4) plainly states that the ‘clear and objective’ requirement applies broadly to local governments’ application of standards, conditions, and procedures ‘regulating the development of housing’ generally, including ‘needed housing.’ Reading that provision to apply onlyto housing that is developed on buildable land would impermissibly insert a limitation on the provision‘s scope[.]”
Id. at 599-600. Because the legislature had amended the statute in 2017 to apply to “housing, including needed housing,” and because the legislature removed the reference to “buildable land,” those changes certainly expanded the statute‘s scope.
Nevertheless, Warren did not address whether the statute applied to all housing regardless of the location. Warren concerned an application for approval of a subdivision on land that was included in Metro‘s Buildable Land Inventory.5 296 Or App at 596-97 n 2. That land appears to have been within an urban growth boundary because Metro is required to “““[i]nventory the supply of buildable lands within the urban growth boundary and determine the housing capacity of the buildable lands.“” Housing Land Advocates v. LCDC, 311 Or App 326, 329, 492 P3d 765, rev den, 368 Or 702 (2021) (quoting
Because the text of the statute does not resolve the issue, we consider the statute‘s context. Statutory context includes other parts of the same statute, other relevant statutes, and other parts of the same bill. See Unger v. Rosenblum, 362 Or 210, 221, 407 P3d 817 (2017) (“[W]e do not consider the meaning of a statute in a vacuum; rather, we consider all relevant statutes together, so that they may be interpreted as a coherent, workable whole.“); see also Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997) (“[W]e
construe each part [of a statute] together with the other parts in an attempt to produce a harmonious whole.“); see also Hon. Jack L. Landau, Oregon Statutory Construction, 97 Or L Rev 583, 640 (2019) (“The idea that the legislature was likely aware of other parts of the ‘same statute’ refers to other parts of the same bill[.]“).
Here, the 2017 amendments to
“(b)(A) A county may not deny an application for a housing development located within the urban growth boundary if the development complies with clear and objective standards, including but not limited to clear and objective design standards contained in the county comprehensive plan or land use regulations.
“(B) This paragraph does not apply to:
“(i) Applications or permits for residential development in areas described in
ORS 197.307(5) ; or“(ii) Applications or permits reviewed under an alternative approval process adopted under
ORS 197.307(6) .”
Or Laws 2017, ch 745, § 2 (emphasis added).
of local governments performing land use planning functions ***“).7 Thus, based on the concurrent amendments to
The legislative history of the 2017 amendments provides the clearest indication of what the legislature intended in this instance. Representative Tina Kotek, who was Speaker of the House in 2017, provided testimony in support of HB 2007, the bill that became SB 1051. Kotek explained that the goal of the bill was to remove barriers to the development of affordable housing. Testimony, House Committee on Human Services and Housing, HB 2007, Apr 13, 2017 (statement of Rep Tina Kotek). According to Kotek, the bill
“will require cities and counties to approve applications that meet clear and objective standards as outlined in local zoning or planning codes within urban growth boundaries. I understand that some cities have concerns about having to state clear and objective standards, but I have also heard from cities that have no issue with this requirement because it is their status quo. It is possible to have a permitting process that allows for local control regarding design and clear and objective standards related to those design preferences.”
Id. (Underscoring in original; emphasis added.) A summary of the bill prepared for the same hearing stated that the bill addressed applications for housing within urban growth boundaries. Summary, Taylor Smiley Wolfe, Office of the Speaker of the House, House Committee on Human Services and Housing, Apr 13, 2017. At another public hearing on HB 2007, Representative Duane Stark testified:
“Think of the alternative, if we need more homes, we have a couple of options, we can build inside the *** UGB [urban growth boundary] or we can build outside it. And I haven‘t seen a lot of fans in this state that want to go out onto farm-lands, that want us to sprawl out into rural communities;
and instead, we say *** let‘s make it difficult to build *** outside those limits but also let‘s make it so that there are good, productive, thought out, strategic ways to build within the urban growth boundary.”
Audio Recording, Joint Committee on Ways and Means, Subcommittee on Natural Resources, HB 2007 A, June 22, 2017, at 39:07 (comments of Rep Duane Stark), https://olis.oregonlegislature.gov (accessed January 23, 2024). That legislative history provides strong support for LUBA‘s conclusion that
In arguing against reliance on those legislative history materials, petitioner quotes from State v. Gaines, 346 Or 160, 173, 206 P3d 1042 (2009), in which the Supreme Court indicated that “[w]hen the text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests—or even confirms—that legislators intended something different.” But, in Gaines, the Supreme Court also pointed out that
“we no longer will require an ambiguity in the text of a statute as a necessary predicate to the second step—consideration of pertinent legislative history that a party may proffer. Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute‘s text, where that legislative history appears useful to the court‘s analysis.”
Id. at 171-72. In addition, “a party *** may use legislative history to attempt to convince a court that superficially clear language actually is not so plain at all—that is, that there is a kind of latent ambiguity in the statute.” Id. at 172.
Here, petitioner suggests that the language of
statute). Petitioner‘s own reliance on the statute‘s context undermines petitioner‘s suggestion that the text of
Petitioner urges us to adopt an expansive reading of
Affirmed.