Roberts v. City of Cannon Beach (A184314)Roberts v. City of Cannon Beach (A184314)
KAMINS, J.
Reversed in part and remanded.
KAMINS, J.
Petitioner Haystack Rock, LLC (Haystack) seeks judicial review of a final order by the Land Use Board of Appeals (LUBA) remanding the City of Cannon Beach’s decision denying an application by respondents Stanley Roberts and Rebecca Roberts (applicants) for a development permit to construct a residence on their inaccessible oceanfront lot located on the face of an active landslide. Haystack raises four assignments of error, asserting that LUBA erred by: (1) affirming the city’s determination that the application complied with tree-protection code provisions; (2) reversing the city’s determination that the application did not satisfy the clear-vision criterion; (3) reversing the city’s determination that the application does not comply with the oceanfront setback standard; and (4) affirming the city’s conclusion that the statute requiring that “housing development” be subject to “clear and objective standards,”
Applicants’ property is located on a steep, vegetated oceanfront slope overlooking Haystack Rock. The property is bordered to the north and east by Haystack’s property, and to the south by the undeveloped Nenana Avenue right-of-way (Nenana ROW). The property does not have improved vehicular access.
Applicants have submitted several applications to develop the property, producing a somewhat complex procedural backdrop. In 2020, applicants applied to construct a new residence on the property as well as a “public” road over Nenana ROW that would provide dedicated access to the residence. The city denied the development permit for the proposed residence because the proposal did not comply with the oceanfront setback standard, and LUBA affirmed. On judicial review, we affirmed and upheld the oceanfront setback standard as clear and objective. Roberts v. City of Cannon Beach, 316 Or App 305, 307, 504 P3d 1249 (2021), rev den, 370 Or 56 (2022).
In 2021, applicants submitted the application at issue, proposing a redesigned development of the property. The application was submitted alongside an application for a right-of-way permit for development of a raised “private driveway” built on Nenana ROW, which the city shelved upon Haystack’s request that the city refrain from making a decision regarding the proposed easement until after the legal questions at issue in this case are resolved.2 Despite the lack of vehicular access, the city’s former community director conditionally approved the application.
That decision was remanded by LUBA, because the city had not provided Haystack or the public with notice of the decision and an opportunity to appeal. On remand, the city reversed course and denied the application for two reasons: (1) it did not comply with the oceanfront setback standard, and (2) it failed to demonstrate compliance with the clear-vision standard. Applicants appealed to LUBA.
LUBA reversed the city’s two grounds for denying the application but sustained Haystack’s cross-assignment of error challenging the city’s failure to address the city standard prohibiting removal of stabilizing vegetation within the oceanfront management overlay zone. LUBA remanded the decision to the
We review LUBA’s order to determine whether it is “unlawful in substance or procedure,”
In its first assignment of error, Haystack contends that the application did not comply with the tree-removal standards contained in the Cannon Beach Municipal Code (CBMC) and that LUBA erred in failing to reverse on that basis.
The CBMC allows for the removal of trees when constructing an approved structure or development, so long as certain criteria are met.
Under
Haystack argues that the tree-protection zones contained in applicants’ tree-removal plan failed to meet the requirements of
We agree with applicants. They agreed to ongoing compliance with all applicable tree-protection and removal standards and have not removed any trees in violation of the city standards. The city approved the application subject to that ongoing compliance: “To the extent the City approves the application for development, it would have been subject to conditions to ensure the other provisions of this chapter are met.” That approval does not necessarily indicate that applicants are entitled to implement the site plan as it is currently depicted in the application; instead, as we understand it, it means that the application must proceed for later (and ongoing) determination of compliance with city standards, before any tree removal occurs. And applicants’ consulting arborist explained the steps that will be taken to ensure ongoing compliance with the applicable tree-protection and removal requirements contained in the CBMC. Specifically, the arborist explained that a site plan will be submitted to implement mitigation measures and strategies to avoid damaging trees not proposed for removal, to limit the potential impact of excavation, soil compaction, and storage of materials.
Haystack argues that the radii of the tree-protection zones in the application’s current site plan are insufficient. See
In its second assignment of error, Haystack challenges LUBA’s determination that the application satisfied the clear-vision criterion as a matter of law. Under the CBMC, a “clear-vision area shall be maintained on the corners of all property adjacent to the intersection of two streets.”
In assessing whether applicants satisfied the clear-vision criterion for the proposed intersection of the Nenana ROW and South Hemlock Street, the city found that applicants had not provided sufficient information to make that determination. Specifically, the city noted that applicants failed to provide civil engineering plans sufficient for the city’s engineers to assess whether the proposed intersection complied with the clear-vision requirement. LUBA disagreed. Rather than finding that the city’s conclusion was not supported by substantial evidence, LUBA found that the clear-vision criterion was satisfied as a matter of law because the only evidence in the record with respect to sight lines is applicants’ expert testimony and reports showing compliance.
Haystack first contends that LUBA applied the incorrect standard of review. Haystack is correct that, in reviewing LUBA’s consideration of a local government’s factual findings, we ordinarily “examine whether LUBA has applied the proper substantial-evidence standard of review.” S. St. Helens, LLC v. City of St. Helens, 271 Or App 680, 682, 352 P3d 746 (2015) (quoting Stevens v. City of Island City, 260 Or App 768, 772, 324 P3d 477 (2014)). “[W]here LUBA has properly understood and applied the ‘substantial evidence’ test * * *, a reviewing court should affirm its order, notwithstanding the reviewing court’s disagreement with LUBA as to whether the evidence is ‘substantial.’” Younger v. City of Portland, 305 Or 346, 358-59, 752 P2d 262 (1988). “Thus, where LUBA properly articulates its substantial-evidence standard of review under
In this case, however, LUBA went further than deciding that the city’s determination was not supported by substantial evidence and remanding to permit reconsideration. LUBA determined that the only decision that the city could reach was that the applicant had satisfied the clear-vision criterion as a matter of law. LUBA apparently applied the principle (a principle with which Haystack does not quarrel) that it is permitted to reverse a city’s denial of an application for failure to meet an approval criterion rather than remanding for further consideration, when the record demonstrates that the criterion was satisfied as a matter of law.4 Jurgenson v. Union County Court, 42 Or App 505, 510, 600, 15 P2d 1241 (1979). In such a situation, LUBA takes up a question of law, and, consequently, in the course
of considering whether LUBA’s order is “unlawful in substance,”
On that question, Haystack argues that LUBA was legally incorrect—that, as a matter of law, applicants did not submit information necessary to demonstrate compliance.
We disagree. Haystack does not identify what additional information is necessary to assess clear-vision compliance. At oral argument, Haystack suggested that the proposal is missing a stop sign, and that a stop sign is necessary to measure sight-line distances. But that argument was not raised below or in the briefs. The need for a stop sign was not a stated basis for the city’s decision, nor is a stop sign required by
The conclusion that more evidence was necessary is inconsistent with the record and the criterion itself, and the record supports only a determination that applicants satisfied the clear-vision criterion. Jurgenson, 42 Or App at 510.
In its third assignment of error, Haystack challenges LUBA’s reversal of the city’s finding that the application did not comply with the CBMC’s oceanfront setback standard. Rather than address whether the application complied with the standard, LUBA concluded that the standard could not be applied at all because it is not “clear and objective,” as required by Oregon law.
We review LUBA’s construction of a statute for legal error, Central Oregon LandWatch v. Deschutes County, 285 Or App 267, 276-77, 396 P3d 968 (2017), employing the methodology described in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). As explained below, we agree with LUBA that the definition of “structure” as used in the CBMC is not clear and objective.
Local governments may “adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing[.]”
The CBMC establishes setback requirements for development bordering the ocean, including the property at issue. Specifically, “all lots abutting the oceanshore” are subject to an oceanfront setback standard6 establishing the “ocean yard,” in which most development is prohibited.
As relevant here, and as the parties agree, “structures” are prohibited in the ocean yard.
“‘Structure’ means any man-made assemblage of materials extending above the surface of the ground and permanently affixed or attached, or where not permanently affixed or attached to the ground not readily portable, but not including landscape improvements such as rock walls, retaining walls less than four feet in height, flag poles, and other minor incidental improvements similar to those described above.”
Taken together, those ordinances explain that “structures” are generally prohibited in the ocean yard, with certain exceptions (fences, decks, and beach access stairs) as well as exclusions (including “landscape improvements such as * * * retaining walls”).
We emphasize that our inquiry here is not to determine what the relevant terms mean in fact, but only to determine whether they could plausibly be interpreted in more than one way. If so, “they are ambiguous, and it would follow that the relevant city provisions are not ‘clear and objective.’” Tirumali v. City of Portland, 169 Or App 241, 246, 7 P3d 761 (2000) (quoting
LUBA correctly concluded that, in the absence of further definition, the term “structure” in
No context of which we are aware resolves that ambiguity, nor have the parties provided persuasive legislative history. We therefore agree with LUBA’s determination that the definition of “structure,” as used in the CBMC, is not clear and objective, in violation of
Rather than address whether the standard is clear and objective, Haystack argues that the driveway structure does not meet the code’s definition of a “retaining wall.” However, that argument fails to address the basis for LUBA’s decision—that the definition of “structure” contained in
In its fourth assignment of error, Haystack contends that LUBA erred in rejecting its argument that applicants’ proposed driveway on the public Nenana ROW did not satisfy the city’s geologic hazard standards. Specifically, Haystack challenges LUBA’s determination that the standards for the development of the public right-of-way must be “clear and objective,” and that because the geologic hazard standards are not “objective,” the city cannot require that the application comply with them.
The CBMC includes various requirements to ensure that proposed developments, including “the design and location of roads,” either eliminate or appropriately minimize geologic hazards.
As discussed above, the statutory mandate that local governments must apply clear and objective standards applies only to “housing” and the “development of housing,” so we must determine what the legislature meant by those terms.
Whether LUBA correctly construed the scope of Oregon law requiring local governments to apply only “clear and objective” standards to the development of “housing” presents an issue of statutory interpretation. “To assess
petitioner’s statutory construction argument, we examine the text and context of
We must determine what the legislature meant by the terms “housing” and “development of housing.” Because the legislature did not define the terms, we give effect to the words’ “plain, natural, and ordinary meaning.” DCBS v. Muliro, 359 Or 736, 746, 380 P3d 270 (2016) (internal quotation marks omitted). We consult the dictionary definition “on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended.” Id. “Housing” is defined as “shelter, lodging,” and “dwellings provided for numbers of people or for a community.” LandWatch Lane County v. Lane County, 330 Or App 468, 471, 544 P3d 428 (2024) (quoting Webster’s Third New Int’l Dictionary 1097 (unabridged ed 2002)). Those definitions relate to the houses themselves, not to the roads that connect them. By their plain text, the terms “housing” and “development of housing” appear to refer to houses and the process of developing housing, not public roads.
Turning to the statutory context, both
Applicants point to the definition of “development” contained in
“As used in this section, ‘development’ means a building or mining operation, making a material change in the use or appearance of a structure or land, dividing land into two or more parcels, including partitions and subdivisions * * *, and creating or terminating a right of access.”
That provision is clear, however, that it applies to the term “development” as used in
Relevant legislative history submitted by the parties supports our conclusion. Gaines, 346 Or at 166 (court may limit its consideration of legislative history to the information provided by the parties).
Our conclusion that the legislature did not intend that the “clear and objective” standard apply to public road development—as opposed to houses and driveways—is consistent with the principles of home rule and preemption. Where state legislation impinges upon the local government powers, home rule favors local government. City of Corvallis v. State of Oregon, 304 Or App 171, 174-75, 464 P3d 1127 (2020). And where preemption is intended, the legislation must “unambiguously” preempt the city from adopting regulations. Gunderson, LLC v. City of Portland, 352 Or 648, 660, 290 P3d 803 (2012). Here, the requirement that local governments apply only “clear and objective” standards to the development of housing does not, as LUBA concluded, extend unambiguously to all governance that relates to making housing usable—including the development of roads. That interpretation goes beyond what
Applicants argue that, because vehicular access is necessary to develop and use the dwelling, the development of the public right-of-way falls within the definition of “development of housing.”
Finally, applicants argue that, because the vehicular access proposal was submitted alongside an application for the development of housing, the approval of vehicular access must be subject to the “clear and objective” test applicable to the development of housing. That the vehicular access application was consolidated with the applications for residential development was one basis for LUBA’s decision that “clear and objective” standards must be applied to the right-of-way development. However, as LUBA has previously explained, “consolidation is for purposes of procedure, and it does not change the approval criteria applicable to a given application.” Tukwila Development, LLC v. City of Woodburn, LUBA No. 2021-058, 17-18 (holding that the city erred in applying street standards applicable to subdivision applications to an annexation application, even though the applications were consolidated). We agree with LUBA—the city’s decision to combine the housing application with the right-of-way application does not impact our construction of the statute.
We reverse in part and remand for a determination of whether the application for developing Nenana ROW complies with the geologic hazard standard,
Reversed in part and remanded.