Roberts v. City of Cannon BeachRoberts v. City of Cannon Beach
Argued and submitted September 5, 2025.
Wendie Kellington, Kellington Law Group P.C., Lake Oswego, argued the cause and filed the briefs for petitioners on review. Also on the briefs were Sara Kobak and Garrett H. Stephenson, Schwabe, Williamson & Wyatt, P.C., Portland.
William L. Rasmussen, Miller, Nash LLP, Portland, argued the cause and filed the brief for respondent on review. Also on the brief were Steven G. Liday and Ivan Resendiz Gutierrez.
Bill Kloos, Eugene, filed the brief for amici curiae Western Oregon Builders Association and Environ-Metal Properties, LLC.
Jayme Pierce, League of Oregon Cities, Salem, filed the brief for amici curiae League of Oregon Cities and Association of Oregon Counties.
Andrew Stamp, VF Law, Lake Oswego, filed the brief for amici сuriae Home Building Association of Greater Portland, Oregon Home Builders Association, OPOA Legal Center, Proud Ground, and Stafford Homes and Land, LLC.
FLYNN, C.J.
The decision of the Court of Appeals is affirmed. The final order of the Land Use Board of Appeals is affirmed in part and reversed in part, and the case is remanded to the Land Use Board of Appeals for further proceedings.
This land use case arises from consolidated applications to the City of Cannon Beach for approval to develop a house on an oceanfront lot and to develop an adjacent, overgrown public right-of-way in order to provide vehicular access to the house. The right-of-way and lot are located in a landslide hazard zone, and the city code imposes certain land use restrictions in that zone, including that an applicant demonstrate either that there is no geolоgic hazard or that engineering and construction methods “will eliminate the hazard, or will minimize the hazard to an acceptable level.” The dispute before this court arises from a tension between a state statute that requires local standards regulating “the development of housing” to be “clear and objective” and the city‘s geologic hazards provision, which indisputably includes a subjective component.1
Although the city indicated that petitioners’ own analysis showed that the proposed road development would increase the landslide hazard at the site, the city did not apply its geologic hazards standards to either the house or the road application, because it concluded that the “clear and objective” requirement precluded it from doing so. The Land Use Board of Appeals (LUBA) agreed with the city‘s interpretation of that statute, Roberts v. City of Cannon Beach, ___ Or LUBA ___ (LUBA No 2023-066, Apr 24, 2024) (Roberts II), but the Court of Appeals reversed, Roberts v. City of Cannon Beach, 334 Or App 762, 557 P3d 1143 (2024) (Roberts III).
We allowed petitioners’ petition for review of the Court of Appeals’ decision, and we now affirm that decision. The proposed road development in this case would be a public road located on a public right-of-way adjacent to petitioners’ property, and developing the proposed road was not one of the city‘s criteria for approving development of the
I. BACKGROUND
Petitioners, Stanley and Rebecca Robеrts, own an oceanfront lot in Cannon Beach, Oregon, overlooking Haystack Rock. The property is located on a steep hillside west of South Hemlock Street, an area known as the “S-curves.” The property has no vehicular access, but it is bordered to the south by an undeveloped strip of land known as the Nenana Avenue right-of-way. The right-of-way runs east to west and could provide vehicular access from petitioners’ property to Hemlock Street. Respondent, Haystack Rock, LLC, owns property that surrounds petitioners’ lot to the north and to the east. That property also abuts the Nenana Avenue right-of-way and sits between petitioners’ lot and Hemlock Street.
In the proceeding from which the appeal is taken,2 petitioners submitted two land use applications that they asked the city to consolidate—an application for a permit to develop a house on the property and an application to develop the Nenana Avenue right-of-way from Hemlock Street to petitioners’ property.
Because the proposed dwelling and the right-of-way are located in the city‘s Oceanfront Management Overlay (OM) Zone, the applications were subject to particular standards under the Cannon Beаch Municipal Code (CBMC), including the geologic hazards standards. See CBMC 17.100.010 (describing purpose of OM zone); CBMC 17.100.040 (specifying particular standards to which “uses and activities” permitted in the OM Zone are subject). The geologic hazards standards provide, in relevant part, that, when “recommended by the geologic site investigation report, or required by the city manager, an engineering report” must be prepared to address the feasibility of the proposed development and that the applicant bears the burden of proof “to show construction feasibility.” CBMC 17.108.040.3 Of particular significance to this case, the code
Petitioners submitted geotechnical engineering reports for the proposed dwelling and for two alternative proposals for developing the Nenana Avenue right-of-way—one an elevated, bridge-like public road and the other an at-grade private “driveway” that depended upon petitioners being granted an easement by the city. Initially, the city‘s community development director granted conditional approval for the construction of the house and the development of a “driveway,” subject to the condition that, prior to any construction activity, petitioners obtain final design approval for any extension of Nenana Avenue or a driveway within the right of way. But the city had failed to provide respondent with notice of its decision and an opportunity to appeal, so LUBA remanded the matter to the city. Haystack Rock, LLC v. Cannon Beach, ___ Or LUBA ___ (LUBA No 2022-041, Sept 28, 2022). On remand, the city chose to hold a hearing to determine compliance with the city‘s land use regulations. Following that hearing, the city denied the applications to develop both the house and Nenana Avenue, on grounds unrelated to the geologic criteria set out in the city‘s geologic hazards code.
In a decision that addressed applicable code provisions, the city found that the proposed house met most of the applicable development standards, specifically including the requirements for access to a residential lot.4 But the city found that raised elements of both the proposed
Both parties challenged the city‘s decision in an appeal to LUBA. LUBA disagreed with the city‘s bases for denying the development applications, and it remanded for the city to determine whether a vegetation standard applied, but it otherwise affirmed. Roberts II, ___ Or LUBA at ___, ___ (slip op at 45:15-16; slip op at 75:12-20). Most pertinent to the issue in this court, LUBA rejected respondent‘s cross-assignment of error in which respondent contended that the city was required to consider whether petitioners complied with the geologic hazards code provision. LUBA agreed with the city thаt the legislature‘s “clear and objective standards” requirement in
Respondent sought judicial review of LUBA‘s order in the Court of Appeals, raising several challenges to LUBA‘s decision, only one of which is relevant here.5 In that challenge, respondent argued that LUBA had erred when it affirmed the city‘s conclusion that the proposed road development was the “development of housing” and therefore that the city was precluded from enforcing its geologic hazards standards given the subjective aspect of the standards. The Court of Appeals agreed with respondent and reversed LUBA‘s decision on that point. The Court of Appeals held that the requirement of “clear and objective standards” for land use decisions regarding “the development of housing” did not apply to the city‘s consideration of the application for land use approval to develop a public road. Roberts III, 334 Or App at 776. The court emphasized that its conclusion was “consistent with the principles of home rule and preemption,” under which ambiguous state legislation is presumed not to preempt local government powers. Id. Petitioners sought, and we allowed, review.
II. ANALYSIS
As we have indicated,
Three circumstances further narrow the scope of the issue before us. First, the dispute in this court has no bearing on whether the city approves the application to develop a house on petitioners’ lot; as indicated above, the city found that the access-related requirements for a residential lot were satisfied even if the proposals to develop right-of-way on Nenana Avenue were denied, LUBA affirmed those determinations, and respondent has not pursued a challenge to those conclusions in this court.7 Second, although petitioners proposed alternative ways to develop the right-of-way, only the proposal of a public road remains viable.8 Finally, as LUBA emphasized, the petitioners’ proposed public road would be “off-site vehicular access.” Roberts II, ___ Or LUBA at ___ (slip op at 65:3-8). LUBA distinguished earlier cases in which it had previously concluded that the “clear and
“[A] loсal government may adopt and apply only clear and objective standards, conditions and procedures regulating:
“(A) The development of housing; and
“(B) Tree removal codes related to the development of housing.”
Petitioners argue that developing the proposed road on the right-of-way is “the development of housing,” at least in this case, because the road is onе of the “necessary development components for the creation of functional housing” and because their application to develop the road was consolidated with their application to develop the house. Respondent argues, however, that the proposal to develop the right-of-way was a separate application for development on different property and ultimately subject to approval by the city‘s public works department under a different provision of the city code.9 Respondent contends that no provision of the city code governing development of a house on private property requires development of a road on the adjacent public right-of-way, and it emphasizes that both the city and LUBA rejected its arguments to the contrary. But respondent also argues that, even assuming the proposed road development is “necessary” as a practical matter to development of a house on petitioners’ property, that does not make petitioners’ separate land use application to develop a public road “the development of housing,” and it does not constrain the city‘s ability to apply its geologic hazards standards to regulate the development of a public road.
As is appropriate in a case involving statutory requirements, both parties focus on the meaning of the phrase “development of housing” and whether the legislature intended the “clear and objective” requirement to reach
Whether petitioners’ proposal to develop a public road is “the development of housing,” for which the city was constrained to apply only “clear and objective standards,” is a question of statutory interpretation, which we analyze using the now familiar framework described in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Under that framework, “our ‘paramount goal’ is to give effect to the intent of the legislature as demonstrated by the text, context, аnd any helpful legislative history.” State v. Giron-Cortez, 372 Or 729, 736, 557 P3d 505 (2024) (quoting Gaines, 346 Or at 171-72); see also
A. Text
As pertinent here,
“[A] local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing.”
The phrase “development of housing” is not defined in the statutes, but it is made up of terms of ordinary usage. In that situation, “we generally presume that the legislature intended the ordinary meaning of the term, for which we often consult contemporaneous dictionaries.” Brown v. GlaxoSmithKline, LLC, 372 Or 225, 231, 548 P3d 817 (2024).
Petitioners accept that roads are not “housing,” but they contend that the plain meaning of “development of housing” is not limited to the housing itself. (Emphasis added.) According to petitioners, standards “regulating the development of housing” in
B. Statutory Context
In context, however, it is more plausible that the legislature did not intend its restriction on city regulation of “the development of housing” to reach the regulation of a public road on an adjacent public right-of-way any time a person seeking to build a home also proposes to make that additional improvement. As this court has explained, statutory context includes, among other things, other provisions of the same statute and other related statutes, as well as the preexisting common law and the statutory framework within which the law was enacted. State v. Williams, 374 Or 648, 661, 582 P3d 637 (2025). Our understanding of what the legislature intended in requiring local governments to apply “clear and objective standards, conditions and procedures regulating the development of housing” is informed by other closely related statutes that likewise include the
As used in the phrase “application for a housing development,” the ordinary meaning of “a housing development” refers to a tangible thing—specifically “a group of individual dwellings or of apartment houses commonly of similar design and built and leased under one managemеnt.” Webster‘s at 1097; see also Black‘s Law Dictionary 857 (10th ed 2014) (defining a “housing development” as “[a] defined area containing many houses that have been built to a certain set of specific standards“); Randolph Quirk et al, A Comprehensive Grammar of the English Language 246, 253 (1985) (describing the indefinite article “a” as being used with a singular “count” noun, meaning a noun “seen as denoting individual countable entities and not as an undifferentiated mass“).
Petitioners do not contend that their application to develop a road is, itself, an application for “a housing development” as that term is used in
In addition, as the Court of Appeals observed, several specific provisions in those interrelated statutes support the conclusion that, when the legislature used the phrase “the development of housing,” it had in mind the housing itself. For instance,
The context tо which petitioners point does not persuade us otherwise. For example, petitioners rely on a definition of “development” in a statute applicable to a different land use provision, as suggesting that the legislature intended
But the statute does not support that broad proposition. The expressed concern that a city‘s regulation of “the development of housing” not create “unreasonable cost or delay” for “needed housing” says nothing about whether the legislature intended the “development of housing” to include the development of local infrastructure. Moreover, even a general legislative purpose to promote the development of “needed housing” does not establish that the legislature intended to broadly constrain the ability of local governments to regulate the development of public roads when the text and context of the provision suggest otherwise. See Burke v. DLCD, 352 Or 428, 441, 290 P3d 790 (2012) (“[A] statement of legislative findings, without more, is a slim
One final aspect of statutory context informs our conclusion that the legislature did not intend the constraint on local standards “regulating the development of housing” to necessarily constrain the city‘s regulation of public roads: the city‘s obligation to promote public safety. As the Court of Appeals observed, under LUBA‘s interpretation of
“Home-rule” authority to enact ordinances addressing matters of local concern is granted to cities by Article XI, section 2, and Article IV, section 1(5), of the Oregon Constitution. Rogue Valley Sewer Services v. City of Phoenix,
Although the limitation that
C. Legislative History
We have explained that we will consider legislative history to the extent that it is “helpful” to our understanding of what the legislature intended. Giron-Cortez, 372 Or at 736. Here, the legislative history adds nothing helpful to our understanding of whether the legislature intended “the development of housing” to include the development of public roads. It supports petitioners’ general proposition that the legislature was concerned аbout limiting local regulation that would discourage needed housing, but, for reasons similar to those just discussed, that history does not persuade us that the legislature intended that provision to apply in this context. Petitioners describe
Based on our examination of the statutе, we are not persuaded that an asserted need for access converts the proposed road development to “the development of housing,” at least when the city does not require the road development for approval of a housing development. Nor are we persuaded that the road application became “the development of housing” by virtue of petitioners’ request that it be consolidated with the application to develop housing on petitioners’ lot.
We understand LUBA to have relied on the fact that petitioner‘s application to develop a public road was “consolidated with other applications for residential development” as a significant factor in its determination that petitioner‘s road application was subject to the statutory limit on regulation of “the development of housing.” See Roberts II, ___ Or LUBA at ___ (describing GPA 1, LLC v. City of Corvallis, 73 Or LUBA 339, 350-51, 357-58 (2016), a case in which LUBA held that a stand-alone application to construct a road “necessary” to develop “needed housing” was not itself “the development of” needed housing and distinguishing it on the basis that the road application in GPA 1, LLC “was not consolidated with other applications for residential development“) (slip op at 63:12 - 64:4). But petitioners have not contended that they were required to consolidate their road application with the house application. Indeed, petitioners explained at oral argument that they submitted the road application along with the house application simply “to make sure that the city had enough information” to be able to decide that the standards governing “the development of this housing” application were met.
If LUBA and petitioners are correct that the fact that the applications were consolidated means that the proposed road improvements are the “development of housing,” then it would be the applicant‘s choice to combine applications that determines whether a city is constrained by
First, whether the applications were filed together or at different times does not affect our understanding of
III. CONCLUSION
In sum, our review of the text, context, and legislative history of
The decision of the Court of Appeals is affirmed. The final order of the Land Use Board of Appeals is affirmed in part and reversed in part, and the case is remanded to the Land Use Board of Appeals for further proceedings.