Crowley v. City of Hood River ( 2020 )

44
Argued and submitted September 22, reversed and remanded
December 16, 2020
Susan Garrett CROWLEY,
Petitioner,
v.
CITY OF HOOD RIVER,
Respondent.
Land Use Board of Appeals
2019054; A174363
480 P3d 1007
Petitioner seeks review of a Land Use Board of Appeals (LUBA) order that
affirmed the City of Hood River’s decision to approve a zone change to a portion of
city park from Open Space/Public Facilities to Urban High Density Residential.
In affirming the city’s decision, LUBA deferred to the city’s interpretation of a
policy within the Hood River Comprehensive Plan regarding the use of exist-
ing park sites. On review, petitioner argues that LUBA erred in deferring to
the city because the city’s interpretation of the policy was inconsistent with the
policy’s express language and purpose. Held: LUBA’s order was unlawful in sub-
stance because LUBA erred in deferring to the city’s interpretation of its policy.
The city’s interpretation did not plausibly account for the text and context of the
policy.
Reversed and remanded.
Susan Garrett Crowley argued the cause and filed the
brief for petitioner pro se.
Daniel Kearns argued the cause and filed the brief for
respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Reversed and remanded.
Armstrong, P. J., dissenting.
Cite as 308 Or App 44 (2020) 45
TOOKEY, J.
In this land use case, petitioner seeks review of a
Land Use Board of Appeals (LUBA) order that affirmed the
City of Hood River’s decision to approve a quasi-judicial zone
change to a portion of a city park from Open Space/Public
Facilities (OS/PF) to Urban High Density Residential (R-3).
In affirming the city’s decision, LUBA deferred to the city’s
interpretation of Hood River Comprehensive Plan (HRCP)
Goal 8 Policy 1, under ORS 197.829(1)1 and Siporen v. City
of Medford, 349 Or 247, 243 P3d 776 (2010).
On review, in her first assignment of error, peti-
tioner argues that LUBA erred in granting the city def-
erence, because the city’s interpretation of the policy was
inconsistent with the policy’s express language and pur-
pose. We conclude that LUBA’s order was “unlawful in sub-
stance,” ORS 197.850(9)(a), because LUBA erred in defer-
ring to the city’s interpretation of its policy, which did not
plausibly account for the text and context of the policy. Our
decision obviates the need to address other issues raised in
petitioner’s first assignment of error and petitioner’s second
assignment of error. We therefore reverse and remand.
I. BACKGROUND
As context for our analysis of this petition for
review, we recount the pertinent historical facts, which we
largely draw from Crowley v. City of Hood River, 294 Or App
240, 430 P3d 1113 (2018) (Crowley I) and the LUBA order on
review.
1
ORS 197.829 provides, in part:
“(1) The Land Use Board of Appeals shall affirm a local government’s
interpretation of its comprehensive plan and land use regulations, unless the
board determines that the local government’s interpretation:
“(a) Is inconsistent with the express language of the comprehensive plan
or land use regulation;
“(b) Is inconsistent with the purpose for the comprehensive plan or land
use regulation;
“(c) Is inconsistent with the underlying policy that provides the basis for
the comprehensive plan or land use regulation; or
“(d) Is contrary to a state statute, land use goal or rule that the compre-
hensive plan provision or land use regulation implements.”
46 Crowley v. City of Hood River
A. Morrison Park and HRCP Goal 8
The property at issue in this case is a section
of Morrison Park. Morrison Park sits on various tax lots,
including tax lot 700 (TL 700), which is approximately 5.33
acres. Morrison Park was zoned OS/PF under Goal 8 of the
HRCP. Goal 8 states that the city’s goal is to “satisfy the rec-
reational needs of the citizens of the community and visitors
to the area.” Goal 8 Policy 1 provides that “[e]xisting park
sites will be protected from incompatible uses and future
expansion alternatives at some sites will be developed.” The
HRCP defines the term “protect” as to “[s]ave or shield from
loss, destruction, or injury or for future intended use.” We
have previously observed that Goal 8 Policy 1 is phrased as
a “mandatory requirement.” Crowley I, 294 Or App at 247.
Goal 8 also contains other policies which are phrased
in terms of “aspirational goals.” Id. at 246. Specifically,
Goal 8 Policy 2 provides that, “[w]hen feasible, recreational
opportunities and park sites will be located so as to be acces-
sible to a maximum number of people,” and Goal 8 Policy 3
provides that “[t]he development of parks which are accessi-
ble by means of walking or bicycling is encouraged.”
B. The City’s Decision to Rezone a Portion of TL 700
On September 14, 2015, the city council approved
a housing strategy to develop affordable housing, which
included an action to rezone land to allow additional
high-density residential development and identify publicly
owned lands that could be used for affordable housing.
On August 16, 2016, the city submitted an applica-
tion to rezone a portion of TL 700 from OS/PF to R-3, and on
May 22, 2017, the city voted to approve rezoning 5.03 acres
of TL 700. In doing so, the city rejected the argument that
Goal 8 Policy 1 precludes the rezoning because allowing the
park to be developed for high-density residential develop-
ment fails to protect the park from incompatible uses. After
finding that that policy is ambiguous in several respects,
the city determined that the most logical interpretation of
the policy is that it requires the protection of parks from
incompatible uses on other nearby properties that could
adversely affect the parks, but does not prevent rezoning
Cite as 308 Or App 44 (2020) 47
of the parks themselves. The city rejected the argument
that Goal 8 Policy 1 requires all existing parks, including
Morrison Park, to be protected from incompatible uses of
the park, as opposed to protecting parks from incompatible
nearby uses on surrounding land.
C. Petitioner’s First Appeal to LUBA
Petitioner appealed the city’s decision to LUBA,
arguing that the city incorrectly interpreted Goal 8 Policy 1
by narrowing the scope of “incompatible uses” to refer
only to uses on properties outside of park sites themselves.
Petitioner contended that the city’s interpretation impermis-
sibly inserted into the policy a qualification—i.e., “incompat-
ible uses on other properties”—that had been omitted.
LUBA rejected petitioner’s contention. It concluded
that the city’s interpretation of the policy was plausible and
was not inconsistent with the policy’s express language,
purpose, or underlying policies.
D. The Court of Appeals Decision in Crowley I
Petitioner sought review of LUBA’s decision, lead-
ing to our decision in Crowley I. In Crowley I, we determined
that the city’s interpretation of Goal 8 Policy 1—i.e., “that
it applies only to incompatible uses on nearby properties”—
was “implausible, when considering the text and context of
the policy.” 294 Or App at 246 (emphasis in original). We
explained:
“The problem with the city’s interpretation is that it adds
language to the express text of Goal 8 Policy 1 to limit the
preservation of parks, which is inconsistent with Goal 8
Policy 1’s mandatory text—‘[e]xisting park sites will be pro-
tected from incompatible uses’—and the purpose of Goal
8—to satisfy the city’s recreational needs by developing
and maintaining public parks.”
Id. at 247 (emphases and brackets in original). We further
explained:
“The city’s interpretation requires the addition of
terms not present in Goal 8 Policy 1’s text—incompatible
uses means incompatible uses only on nearby properties.
* * * Here, Goal 8 Policy 1 does not limit the scope of its
48 Crowley v. City of Hood River
applicability, and a plain and natural reading of the pol-
icy suggests that there are no limitations on the phrase
‘incompatible uses.’ Nevertheless, the city has inserted
language to place limitations on that phrase. By narrow-
ing the application of the policy to apply only to nearby
properties, the city’s interpretation allows for incompati-
ble uses within existing park sites. Such an interpretation
effectively rewrites the explicit text of the policy so that
the area surrounding the park must be compatible with the
recreational needs of the citizens of the community and vis-
itors to the area, while the area within the park does not
need to be compatible with those needs at all. This cannot
be squared with Goal 8 Policy 1’s text, when viewed in the
context of Goal 8’s purpose of maintaining and developing
public parks.”
Id. at 247-48 (emphases in original).
Accordingly, in Crowley I, we determined that
“LUBA’s order deferring to the city’s interpretation of Goal 8
Policy 1 was unlawful in substance, ORS 197.850(9)(a),” and
we reversed and remanded to LUBA for further proceed-
ings. Id. at 249.
E. LUBA’s Remand to the City
After we remanded to LUBA, LUBA remanded to
the city for further proceedings, specifically for the city to
adopt a sustainable interpretation of Goal 8 Policy 1 and to
apply that policy, as interpreted, to the application before it.
F. The City’s Quasi-Judicial Proceeding on Remand and
Ordinance Number 2048 Rezoning TL 700
On remand, the city issued findings of fact and con-
clusions of law in a quasi-judicial proceeding, in which the
city determined that the rezoning of TL 700 to R-3 was in
compliance with the HRCP and, specifically, consistent with
Goal 8 Policy 1.
In its findings of fact and conclusions of law, the city
explained that, in its view, Goal 8 Policy 1 was “ambiguous”
and that, “as a matter of general policy,” the city did not
“interpret any of the Goal 8 policies as prohibiting the
Council from making the policy decision that a portion of
a particular park property is suited to a non-park use and
Cite as 308 Or App 44 (2020) 49
rezoning it for a future non-park development, so long as
that non-park use is suitably conditioned to render it com-
patible and protect the park.”
The City explained that Morrison Park is an “exist-
ing park site” within the meaning of Policy 1. The city
explained, however, that, as it interpreted the word “pro-
tected” in Goal 8 Policy 1, that policy did not impose a prohi-
bition “of non-park uses” on park sites. Rather, in the city’s
view, “the code clearly anticipates that certain non-park
uses are appropriate for park sites” and that “some non-park
uses are appropriate ‘future intended uses’ and can be made
compatible with underlying park uses.”2
The city also determined that the “affordable hous-
ing project that is envisioned for a portion of Morrison Park,”
although a “non-park use,” is not “incompatible” with the
use of “TL 700 as a city park, especially when conditioned to
ensure that it is compatible with park uses on the balance of
TL 700.” The city explained its reasoning, in pertinent part,
as follows:
“Several other Goal 8 policies provide important context and
support * * *. In particular, Goal 8, Policy 2 requires that
‘recreational opportunities and park sites will be located so
as to be accessible to a maximum number of people.’ Policy
3 calls for the ‘development of parks which are accessible by
means of walking or bicycling.’ * * * It is critical, in our view,
that urban density housing, such as the affordable housing
project anticipated for part of this site, be located in close
proximity to and integrated with city parks such as this
one. * * * By limiting the extent of non-park development to
2.76 acres, we achieve Goal 8, Policy 1’s directive to protect
today’s 10.83-acre Morrison Park site from incompatible
uses, and, consistent with Policies 2 and 3, this affordable
housing project will be integrated with this existing park
site to foster walking and bicycle use by the future resi-
dents, improving the park’s accessibility to meet the recre-
ational needs of Hood River’s citizens and visitors.”
2
The city determined that the “code clearly anticipates that certain non-park
uses are appropriate for park sites” because, among other reasons, (1) “Policy 1
requires existing park sites to be ‘protected’ from incompatible uses and does
not simply prohibit all non-park uses” and (2) “the definition of ‘protect’ antici-
pates the need to protect park sites for future intended uses, which * * * include[s]
future intended park as well as non-park uses.”
50 Crowley v. City of Hood River
The city ultimately adopted Ordinance Number
2048, which approves a quasi-judicial zone change of the
portion of Morrison Park situated on TL 700 from OS/PF
to R-3 and determines that, as conditioned, doing so is con-
sistent with HRCP Goal 8 Policy 1. The ordinance includes
conditions of approval that (1) a maximum of 2.76 acres of
TL 700 may be developed as affordable housing, and the
“balance of tax Lot 700 shall be retained and used only for
park uses”; and (2) the city shall work with a housing agency
to develop affordable housing on the property.
G. Petitioner’s Second Appeal to LUBA
After passage of Ordinance Number 2048, petitioner
again appealed to LUBA. Petitioner contended, among other
points, that the city’s interpretation of Goal 8 Policy 1 is
inconsistent with the text, purpose, and underlying policy of
HRCP Goal 8 Policy 1 and, thus, not affirmable even under
the deferential standard of review that LUBA must apply.
LUBA rejected petitioner’s appeal, determining that
the city’s interpretation of HRCP Goal 8 Policy 1 accounts
for the text, context, purpose, and policy of HRCP Goal 8
Policy 1.
LUBA explained that, under the city’s interpreta-
tion of the word “protect,” “public park sites will be protected
for public park use, unless and until the city determines
that a portion of the park site should be used for a different,
non-park use, and that non-park use can be made compat-
ible with the remaining park uses.” LUBA deferred to that
interpretation of “protect,” given the “deferential standard
of review in ORS 197.829(1).”
Regarding the city’s consideration of whether the
rezoning of TL 700 was “incompatible” under Goal 8 Policy 1,
LUBA determined that, when considering “HRCP Goal 8,
Policy 1, in context with HRCP Goal 8, Policies 2 and 3,
the city’s interpretation of ‘incompatible’ is consistent with
the policy’s express language, its purpose, and underlying
policy.” LUBA reasoned that the city “reserved 8.07 acres of
Morrison Park for public park use,” that the “2.76 acres for
residential use is conditioned to be compatible with park use
Cite as 308 Or App 44 (2020) 51
on the remaining park property,” and that the city “empha-
size[d] that siting multi-family affordable housing adjacent
to the park will facilitate use of the park by residents of
the affordable housing development, thus promoting HRCP
Goal 8 polices [2 and 3] of making parks accessible to a
maximum number of people and developing parks that are
accessible by walking or bicycling.”
Additionally, LUBA agreed with the city that the
“park site” can be protected “without maintaining the entire
land area of Morrison Park for public park use.” LUBA rea-
soned that because “the park site is protected from incom-
patible uses, some compatible uses are presumably allowed,
suggesting that some compatible non-park uses are allowed.”
LUBA further noted that the term “site” is “sometimes used
in land use regulations to define the location or placement
of particular development,” and in that context, “ ‘site’ is
less than the total land area of the particular parcel or
lot.”
II. ANALYSIS
As noted above, petitioner seeks review of LUBA’s
order affirming the city’s decision to approve a quasi-judicial
zone change to a portion of a city park from Open Space/
Public Facilities (OS/PF) to Urban High Density Residential
(R-3).
Under ORS 197.829(1) and Siporen, 349 Or at 259,
LUBA “must defer to a local government’s interpretation
of its comprehensive plan and land use regulations, unless
the board determines that the local government’s interpre-
tation is inconsistent with the express language, purpose,
or underlying policy of the comprehensive plan or land use
regulation.” Crowley I, 294 Or App at 244. In Crowley I, we
explained:
“Whether the city’s interpretation of its comprehensive
plan is inconsistent with the plan, or the purposes or pol-
icies underlying that plan, depends on whether the inter-
pretation is plausible, given the interpretive principles that
ordinarily apply to the construction of ordinances under
the rules of PGE v. Bureau of Labor and Industries, 317 Or
52 Crowley v. City of Hood River
606, 610-12, 859 P2d 1143 (1993), as modified by State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).”
Id. (brackets and internal quotation marks omitted). As we
explained in Kaplowitz v. Lane County, 285 Or App 764, 775,
398 P3d 478 (2017),
“[a]lthough the analysis echoes the statutory construction
methodology set out in PGE and Gaines, we emphasize that
the plausibility determination under ORS 197.829(1) is not
whether a local government’s code interpretation best com-
ports with principles of statutory construction. Rather, the
issue is whether the local government’s interpretation is
plausible because it is not expressly inconsistent with the
text of the code provision or with related policies that ‘pro-
vide the basis for’ or that are ‘implemented’ by the code
provision, including any ordained statement of the specific
purpose of the code provision at issue.”
(Emphasis in original.)
The standard of review under ORS 197.829(1) and
Siporen is “highly deferential” to the city, and the “existence
of a stronger or more logical interpretation does not render
a weaker or less logical interpretation ‘implausible.’ ” Mark
Latham Excavation, Inc. v. Deschutes County, 250 Or App
543, 555, 281 P3d 644 (2012). “Put simply, our task on review
in this case is to determine whether the city’s interpretation
of Goal 8 Policy 1 plausibly accounts for the text and context
of that provision.” Crowley I, 294 Or App at 245 (brackets
and internal quotation marks omitted).
On appeal, petitioner contends that LUBA erred
in giving deference to the city’s interpretation of Goal 8
Policy 1, because the city’s interpretation of Goal 8 Policy 1
is inconsistent with the policy’s express language and pur-
pose. In petitioner’s view, LUBA affirmed an implausible
interpretation of Goal 8 Policy 1, because the city’s inter-
pretation added terms that are not present. For example,
petitioner contends that, as interpreted by the city, Goal 8
Policy 1 only protects “certain areas” of the park site.
The city, for its part, argues that Goal 8 Policy 1
contains three “undefined operative terms that are inher-
ently ambiguous”—i.e., “park sites,” “protected,” and “incom-
patible uses”—and that the city’s interpretation of those
Cite as 308 Or App 44 (2020) 53
terms and what Goal 8 Policy 1 requires was “thorough and
plausible.”
In this case, we conclude that LUBA’s order defer-
ring to the city’s interpretation of Goal 8 Policy 1 is unlawful
in substance, ORS 197.850(9)(a), and we reverse and remand
for further proceedings.
As explained by LUBA, under the city’s interpreta-
tion of Goal 8 Policy 1, “public park sites will be protected for
public park use, unless and until the city determines that a
portion of the park site should be used for a different, non-
park use, and that non-park use can be made compatible
with the remaining park uses.” Here, the city determined
that the “affordable housing project that is envisioned for a
portion of Morrison Park,” although a “non-park use,” is not
“incompatible” with the use of “TL 700 as a city park,” and
that the rezoning was achieving “Goal 8, Policy 1’s directive
to protect today’s 10.83-acre Morrison Park site from incom-
patible uses” because it was limiting “the extent of non-park
development to 2.76 acres” of TL 700.
In this case, as in Crowley I, the difficulty with the
city’s interpretation is that “it adds language to the express
text of Goal 8 Policy 1 to limit the preservation of parks,
which is inconsistent with Goal 8 Policy 1’s mandatory
text—‘[e]xisting park sites will be protected from incom-
patible uses.’ ” 294 Or App at 247 (emphasis in original). As
noted above, in Crowley I, we observed that “Goal 8 Policy 1
does not limit the scope of its applicability, and a plain and
natural reading of the policy suggests that there are no lim-
itations on the phrase ‘incompatible uses.’ ” Id. Therefore, in
Crowley I, we rejected an interpretation of Goal 8 Policy 1
that “inserted language to place limitations on that phrase,”
which would have allowed “for incompatible uses within
existing park sites.” Id. (emphasis in original).
Here, the city’s interpretation of Goal 8 Policy 1, in
effect, rewrites Goal 8 Policy 1 to provide that “portions of
existing park sites will be protected from incompatible uses,”
and would allow incompatible uses within existing park
sites, as it would allow portions of existing park sites to be
developed in a manner that is inconsistent with use of those
54 Crowley v. City of Hood River
portions as park.3 That cannot be squared with the “plain
and natural reading” of Goal 8 Policy 1, which suggests that
there are no limitations on the phrase “incompatible uses.”
Id.; see also Friends of the Hood River Waterfront v. City of
Hood River, 263 Or App 80, 90, 326 P3d 1229 (2014) (holding
city’s interpretation implausible where it added words not
originally included in text of implementation strategy). Nor
can it be squared with Goal 8 Policy 1’s text, “when viewed
in the context of Goal 8’s purpose of maintaining and devel-
oping public parks,” Crowley I, 294 Or App at 248, because,
rather than maintaining and developing existing park sites,
it would allow the city to reduce the size of existing park
sites.
Put another way, it is simply not plausible that, by
developing 2.76 acres of Morrison park for “non-park” uses,
such as housing, the city “achieves” Goal 8 Policy 1’s “direc-
tive to protect [the] 10.83-acre Morrison Park site from
incompatible uses,” as the city contends.4 Although we are
3
The city does not undertake a meaningful effort to argue that the 2.76
acres of TL 700 that are anticipated to be used for housing under Ordinance
Number 2048 will be compatible with park use on that 2.76 acres. We do not fore-
close, however, the possibility that some nonpark uses of a particular portion of a
park site could be compatible with park use on that particular portion.
4
The dissent faults the majority for “assum[ing] that Goal 8 Policy 1 pro-
hibits reduction of the entire area of an existing park site.” 308 Or App at 58
(Armstrong, P. J., dissenting). In the dissent’s view, “ ‘site’ can refer to an area
that is less than the entire area of a lot or parcel,” and, therefore, the city can
reduce the size of Morrison Park by building housing on 2.76 acres of it while still
protecting Morrison Park from incompatible uses. 308 Or App at 59 (Armstrong,
P. J., dissenting). But it is not plausible to assert that the 2.76 acres of Morrison
Park that the city intends to use for housing is not part of the Morrison Park
“park site.” That the dissent does not articulate any limitation on its interpreta-
tion of “park site” demonstrates why its interpretation of “park site” is not plausi-
ble: Would building housing on 5.83 acres of Morrison Park while preserving five
acres for use as a park protect the Morrison Park “park site” from incompatible
uses? It seems that the only plausible answer is no, but under the dissent’s inter-
pretation, it very well could be yes, because in the dissent’s view Goal 8 Policy 1
does not prohibit reducing the size of an existing park.
The dissent also argues that we should “tread carefully when applying ORS
174.010 under a Siporen standard of review.” 308 Or App at 59 n 2 (Armstrong,
P. J., dissenting). ORS 174.010 provides that, “[i]n the construction of a statute,
the office of the judge is simply to ascertain and declare what is, in terms or in
substance, contained therein, not to insert what has been omitted, or to omit
what has been inserted.” We have historically considered the principles set forth
in ORS 174.010 when determining whether a city’s construction of its policy is
plausible, including in our decision in Crowley I. Crowley I, 294 Or App at 243
n 2 (noting “we apply the principles that ordinarily apply to construing the text
Cite as 308 Or App 44 (2020) 55
mindful that our task is not to determine “whether a local
government’s code interpretation best comports with princi-
ples of statutory construction, we do look to those principles
in determining whether the city’s interpretation plausibly
accounts for the policy’s text.” Id. at 247 (emphasis in origi-
nal; citation omitted).
The city is perhaps correct that placing residential
housing next to a park promotes the “aspirational goals” ref-
erenced in Goal 8 Policies 2 and 3—i.e., that “[w]hen feasible,
recreational opportunities and park sites will be located so
as to be accessible to a maximum number of people,” and that
“[t]he development of parks which are accessible by means
of walking or bicycling is encouraged.” Id. at 246-47. But it
is not plausible that promotion of those aspirational goals
excuses the city from the mandatory obligation imposed by
Goal 8 Policy 1 to “protect” park sites from “incompatible
uses.”
In sum, we conclude that LUBA’s order deferring
to the city’s interpretation of Goal 8 Policy 1 is unlawful in
substance, ORS 197.850(9)(a), and we reverse and remand
for further proceedings.
Reversed and remanded.
ARMSTRONG, P. J., dissenting.
Goal 8 Policy 1 of Hood River’s comprehensive plan
provides that “[e]xisting park sites will be protected from
incompatible uses.” In the city’s view, Goal 8 Policy 1 per-
mits the rezoning of a 5-acre tax lot, which in turn is part of
the city’s 10.83-acre Morrison Park, to residential use when
the rezoning is conditioned as it is in this case—for afford-
able housing on a maximum of 2.76 acres of the rezoned tax
of a statute in determining whether the city’s interpretation is plausible,” includ-
ing “the one embodied in ORS 174.010”); see also Western Land & Cattle, Inc. v.
Umatilla Cty., 230 Or App 202, 210, 214 P3d 68 (2009) (noting that “in determin-
ing whether a local government’s interpretation of its land use plan or regulation
is inconsistent with the express language of the comprehensive plan or land use
regulation under ORS 197.829(1)(a), we apply the statutory construction princi-
ples in ORS 174.010 and ORS 174.020(2)” (internal quotation marks omitted));
Friends of the Hood River Waterfront, 263 Or App at 90 (holding city’s interpre-
tation implausible where it added words not originally included in text of imple-
mentation strategy). The approach that we take in this opinion is in accordance
with that precedent.
56 Crowley v. City of Hood River
lot. The city reasons that the future nonpark development
contemplated by the rezoning is “suitably conditioned to ren-
der it compatible with and protect the park” and, in that
way, the park site will be protected from incompatible uses,
as required by Goal 8 Policy 1. In my view, if the review
task at hand is correctly identified—viz., assessing whether
the city’s construction of Goal 8 Policy 1 is “inconsistent
with the express language of the comprehensive plan,” ORS
197.829(1)(a), and “plausibly accounts for [its] text and con-
text,” Siporen v. City of Medford, 349 Or 247, 262, 243 P3d
776 (2010)—the city’s construction of Goal 8 Policy 1 is not
implausible. Because LUBA was correct to conclude that
the city’s construction is not implausible, its order is not
“unlawful in substance or procedure,” ORS 197.850(9)(a),
and I would therefore affirm it.1 Consequently, I respectfully
dissent.
Like LUBA, my assessment of the plausibility of the
city’s construction of Goal 8 Policy 1 turns on an examina-
tion of the operative terms of the policy, and I begin with
whether the term “protected” is susceptible, in context, of
the meaning that the city gives it. “Protect” is defined by
the city’s comprehensive plan to mean “Save or shield from
loss, destruction, or injury or for future intended use.” As
the city sees it, there is park use and nonpark use; not all
nonpark use is “incompatible use.” Therefore, the city does
not construe the term “protected” to be a prohibition against
all nonpark uses in parks. Further, the city sees the defini-
tion of “protect” as anticipating the need to protect “future
intended use,” which includes both park and nonpark uses
but, again, does not include incompatible uses. The city pos-
its that, if the operative term “protected” were meant to pre-
vent or prohibit all nonpark uses on existing park sites, then
Goal 8 Policy 1 would say that. Instead, the policy refers to
protection against “incompatible uses,” which implies that
parks are not protected against compatible uses. Hence, the
policy can be understood to allow nonpark uses in parks so
long as they are compatible with underlying park uses. I fail
to find fault with the plausibility of that construction and,
like LUBA, agree with the city that the term “protected” is
1
I would reject petitioner’s remaining assignments and subassignments of
error without written discussion.
Cite as 308 Or App 44 (2020) 57
susceptible to meaning that public park sites are protected
for public park use and, if the city decides that a portion of
a park site should be used for a nonpark use, nonpark use
is allowable so long as it is compatible with the underlying
park use.
As for the term “incompatible uses,” which is not
defined in the comprehensive plan, the city views an afford-
able housing project, although a nonpark use, as compatible
with the remainder of the rezoned tax lot and the balance
of Morrison Park because the city set out conditional mea-
sures to ensure its compatibility. Those conditions are that
the residential development permitted by the rezoning must
(1) be affordable housing (2) be limited to only 2.76 acres of
the tax lot that the city seeks to rezone, and (3) require con-
struction of pedestrian and bicycle connections to other city
parks and pathways through the remainder of the rezoned
tax lot and Morrison Park. The city supports its view that
those conditions ensure compatibility by relying on two
other provisions in Goal 8, viz., Policy 2, which provides that,
“[w]hen feasible, recreational opportunities and park sites
will be located so as to be accessible to a maximum number
of people,” and Policy 3, which provides that the “develop-
ment of parks which are accessible by means of walking or
bicycling is encouraged.”
With those policies in mind, the city reasons that
its “parks are supposed to be an amenity used by urban
dwellers, and the population that city parks are supposed
to serve includes low income residents, whose recreational
opportunities are limited by an inability to afford other high
cost options.” And, although “the users of Morrison Park
may change as a result of [the rezoning,] overall more peo-
ple with limited means will be served by this urban park if
they live adjacent to the remaining park space that will be
integrated into the non-park use.” Moreover, the city empha-
sizes that any housing development on the rezoned tax lot
will be limited to 2.76 acres and that the affordable housing
project would be integrated with the park to promote walk-
ing and bicycle use, which in turn would improve the park’s
accessibility and better serve the recreational needs of the
city’s residents and its visitors. I fail to see the implausibil-
ity of the city’s view of “incompatible uses”—which rests on
58 Crowley v. City of Hood River
the understanding that the proposed change to the park,
although it decreases the park’s size somewhat, will increase
recreational use for a broader range of its citizens for whom
recreational space has not historically been accessible. That
construction is in keeping with Goal 8 of the comprehensive
plan, which is to “satisfy the recreational needs of the citi-
zens and visitors to the area.”
Further, the city’s construction of the term “incom-
patible uses” avoids the problem that we identified in
Crowley v. City of Hood River, 294 Or App 240, 430 P3d 1113
(2018) (Crowley I). In Crowley I, the city asserted that Goal 8
Policy 1 applied only to incompatible uses on nearby proper-
ties and not to the park itself. We concluded that that con-
struction was implausible because it placed limitations on
the term “incompatible uses” where there were none. Id. at
247. Here, the city’s conditions of the rezoning, which are
neither categorical nor definitive, do not likewise limit the
meaning of “incompatible uses.” That is, the city’s view that
the limited residential use and park use can coexist on the
same park site if the residential development satisfies Goal
8 and its policies is not a construction that narrows or limits
the scope of the policy’s applicability.
With that said, I turn to petitioner’s argument that,
because the city inserted qualifiers—“portion,” “remain-
der,” or “balance”—to the term “park site” several times in
explaining its construction of Goal 8 Policy 1, the city’s con-
struction of the policy violates the injunction “not to insert
what has been omitted,” ORS 174.010, and the majority
opinion’s agreement with that argument when it says that
the city’s construction of the policy effectively rewrites it to
mean that “portions of existing park sites will be protected
from incompatible uses.” 308 Or App at 53. There are two
reasons why I find that view unavailing.
First, that view necessarily assumes that Goal 8
Policy 1 prohibits reduction of the entire area of an exist-
ing park site. However, neither the policy’s express lan-
guage nor any other provision in the comprehensive plan
says that. And, because the meaning of “site” can refer to an
entire area or to less than the entire area, it cannot be said
that the “plain and natural reading” of “park site” is the
Cite as 308 Or App 44 (2020) 59
entire area of a park site. As LUBA explained in its order,
“ ‘site’ is sometimes used in land use regulations to define
the location or placement of particular development,” and,
therefore, “site” can refer to an area that is less than the
entire area of a lot or parcel, or put differently, a portion of a
lot or parcel. See also Kamps-Hughes v. City of Eugene, 305
Or App 224, 232, 470 P3d 429 (2020) (recognizing that the
City of Eugene’s posited meaning of “siting” could refer both
to the placement of a particular type of building or facility
within a larger area, such as one of the city’s residential
zones, or to placement within a smaller area like an indi-
vidual lot). Additionally, if some nonpark uses are permit-
ted so long as they are not incompatible uses, see 308 Or
App at 54 n 3 (acknowledging that “some non-park uses of
a particular portion of a park site could be compatible with
park use on that particular portion”), I cannot imagine an
instance where a nonpark use would not reduce the size of
the park in some way. For example, adopting a provision to
allow a bicycle or skate rental business to be established in
Morrison Park would remove the portion of land dedicated
to that use from use as park land while promoting the use
of the balance of the park by people renting the skates and
bicycles.
Second, there are analytical difficulties with apply-
ing ORS 174.010—the proscription “not to insert what has
been omitted”2 —to the task at hand here—reviewing, in
accordance with ORS 197.829(1)(a), whether a city’s con-
struction of its policy is implausibly “inconsistent with the
express language” of its comprehensive plan. It is to be
expected that construction of a city’s policy provision uses
additional language—collected from logic, dictionaries, case
2
ORS 174.010 provides, in part, that when we determine the meaning of a
statute, our task is to “ascertain and declare what is, in terms or in substance,
contained therein, not to insert what has been omitted, or to omit what has been
inserted.” That proscription is part of the statutory-construction methodology set
out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143(1993), and State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), which we
use when reviewing the plausibility of a city’s construction of its land-use regu-
lations. Setniker v. Polk County, 244 Or App 618, 633-34, 260 P3d 800, rev den,
351 Or 216 (2011). As I explain, reviewing the plausibility of a city’s construction
of its land-use regulations and engaging in the task of statutory construction,
although similar endeavors, are different enough to caution that we should tread
carefully when applying ORS 174.010 under a Siporen standard of review.
60 Crowley v. City of Hood River
law, other provisions in the comprehensive plan, or the pol-
icy’s enactment history. As LUBA has put it, “Any interpre-
tation of ambiguous language necessarily restates or para-
phrases the understood meaning of the text using different
words than found in the text.” Estroff v. City of Dundee, ___
Or LUBA ___, ___ (LUBA No. 2018-139, Feb 27, 2019) (slip
op at 10). In this case, the city construes Goal 8 Policy 1
to mean that its purpose is to protect a park site from
incompatible nonpark uses and not from all nonpark uses.
As a matter of logic, a nonpark use cannot be a park use
and must occupy some portion of the entire area of a park
site. The city cannot therefore evade words like “portion”
or “remainder” in the course of its construction and, when
the proper level of deference is given to its construction, it
is hazardous to rely on the no-insertion-of-terms principle
when the operative terms of Goal 8 Policy 1 are susceptible
to more than one meaning.
That is not to say that petitioner’s arguments and the
majority’s conclusion would be incorrect were we to review
the city’s construction of Goal 8 Policy 1 for legal error. The
plausibility of those views, however, is not the issue. The
issue is whether the city’s construction is plausible, and our
assessment of the plausibility of the city’s construction must
be “highly deferential.” Mark Latham Excavation, Inc. v.
Deschutes County, 250 Or App 543, 555, 281 P3d 644 (2012).
Accordingly, heeding what Siporen instructs, I respectfully
dissent.