Botts Marsh LLC v. City of Wheeler ( 2023 )

215
Argued and submitted March 16, reversed in part and remanded June 7, 2023
BOTTS MARSH LLC,
Respondent,
v.
CITY OF WHEELER,
Petitioner.
Land Use Board of Appeals
2022079; A180520
532P3d 544
The City of Wheeler denied applicant’s application for design review of a
proposed development on applicant’s property. The Land Use Board of Appeals
(LUBA) reversed the denial and remanded for the city to reopen the record to
give applicant an opportunity to submit additional materials and respond to the
city’s newly articulated interpretations of its design-review standards. The city
seeks judicial review, raising three assignments of error. Held: As to the first two
assignments, the Court of Appeals concluded that, in these circumstances, LUBA
did not err in remanding for the city to reopen the record. As to the third assign-
ment, the Court of Appeals concluded that LUBA did not err in deciding that
the city’s interpretations of the avoid-monotony and view-impact standards were
implausible under Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010),
but that LUBA erred in rejecting part of the city’s interpretation of the primary-
entrance standard.
Reversed in part and remanded.
William K. Kabeiseman argued the cause for petitioner.
Also on the brief was Bateman Seidel Miner Blomgren
Chellis & Gram, P.C.
Jennie L. Bricker argued the cause for respondent. Also
on the brief were Land Shore Water Legal Services, LLC,
and Reilley D. Keating, Sarah Stauffer Curtiss, and Stoel
Rives, LLP.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Reversed in part and remanded.
216 Botts Marsh LLC v. City of Wheeler
AOYAGI, P. J.
The City of Wheeler denied applicant’s application
for design review of a proposed development on applicant’s
property. The Land Use Board of Appeals (LUBA) reversed
the denial and remanded for the city to reopen the record to
give applicant an opportunity to submit additional materi-
als and respond to the city’s newly articulated interpreta-
tions of its design-review standards. The city seeks judicial
review, raising three assignments of error. As to the first
two assignments, we conclude that, in these circumstances,
LUBA did not err in remanding for the city to reopen the
record. As to the third assignment, we conclude that, with
respect to the three design-review standards at issue on
judicial review, LUBA did not err in concluding that the
city’s interpretations of the avoid-monotony and view-impact
standards were implausible under Siporen v. City of Medford,
349 Or 247, 243 P3d 776 (2010), but did err in rejecting part
of the city’s interpretation of the primary-entrance stan-
dard. Accordingly, we reverse as to the primary-entrance
standard and otherwise affirm.
FACTS
We take the facts, which are undisputed, from LUBA’s
opinion.
“[Applicant’s] property is located west of Highway 101
and east of the Nehalem River. Botts Marsh, an intertidal
wetland adjacent to Nehalem Bay, is located to the north.
To the south is vacant land, and to the north is property
located outside of the city limits. The property is comprised
of two parcels, with a .45-acre parcel zoned Industrial (I),
and a 1.72-acre parcel zoned Water Related Commercial
(WRC). Wheeler Zoning Ordinance (WZO) 2.020(7) pro-
vides that ‘retail/wholesale fish and shellfish sales’ is a per-
mitted use in the WRC zone, and WZO 3.020(7) provides
that ‘seafood processing’ is a permitted use in the I zone.
However, WZO 11.050(1) provides that “all commercial and
industrial development in any zone * * * is subject to design
review by the [p]lanning [c]ommission.”
(Brackets in original, except first brackets added; footnote
omitted.)
Cite as 326 Or App 215 (2023) 217
In 2021, applicant applied for design review for a
building for the processing, storage, and retail sale of fish
and shellfish. As LUBA explained,
“The project is in two distinct parts. An 8,780 square
foot fish processing and warehousing facility will be located
entirely on [the] Industrial zoned portion of the site. * * *
Attached to this structure, and located entirely within the
WRC zoned portion of the site, will be a 1,500 square foot
retail market. This part of the structure includes a second
floor to be used as an office and for storage.”
(Brackets in original; internal quotation marks omitted.)
“The city manager and city planner prepared a staff
report that evaluated the building’s compliance with the
design review criteria in WZO 11.050, and recommended
approval of the application.
“On September 23, 2021, the planning commission held
a hearing on the application, and at the conclusion, con-
tinued the hearing to October 7, 2021, and kept the record
open for new evidence and rebuttal. Prior to the October
7, 2021 hearing, [applicant] submitted additional materi-
als to address comments from the public at the first plan-
ning commission hearing. At the conclusion of the contin-
ued hearing on October 7, 2021, the planning commission
voted three in favor and three opposed, with one planning
commissioner abstaining after declaring that they had a
conflict of interest. The parties agree that a tie vote is the
equivalent of denial by the planning commission. * * *.
“[Applicant] appealed the planning commission deci-
sion to the city council, which held a de novo hearing on
the application on November 16, 2021. The city planner
provided a staff report that recommended approval of the
application. Some members of the public testified that they
believed the uses proposed for the building should not be
allowed because they are not ‘water-related.’ Two members
of the planning commission testified in opposition to the
application. One member of the public testified that the
design of the parking lot created a safety hazard. During
deliberations on the application, two city council members
also expressed concern that the proposed use of the build-
ing was not ‘water-related.’
218 Botts Marsh LLC v. City of Wheeler
“At the conclusion of the hearing, the city council voted
three to two to deny the application. After the vote, the
city’s planner advised the city council that the city was
required to supply reasons for its denial, and recommended
that the city planner draft proposed findings in support of
the decision to deny the application based on their review
of the meeting recording, for the city council to review at its
next meeting.
“At its December 15, 2021 meeting, the city council
adopted a written decision, including findings that the city
planner prepared after the November 16, 2021 hearing.
The decision concluded that [applicant’s] application failed
to satisfy five of the design review criteria, WZO 11.050
(4)(a)(6), 11.050(4)(b)(l), (2), (3) and (5).”
(Internal citations omitted.) Thus, after a city council meet-
ing at which there was no discussion of how to interpret
the design-review standards, the city issued a final written
order denying the application based on newly announced
interpretations of the city’s design-review standards that
differed from those implicit in the city staff’s draft findings.
Applicant appealed to LUBA. LUBA ruled that
the city was required, and had failed, to adopt findings
“sufficient to inform [applicant] of the nature and types of
changes in the proposal that will be necessary to obtain
approval, that is, sufficient to avoid [applicant] ‘having [its]
success or failure determined by guessing under which shell
lies the pea.’ ” Botts Marsh, LLC v. City of Wheeler, ___ Or
LUBA ___ (LUBA No 2022-002, May 11, 2022) (slip op at
39) (Botts Marsh I) (quoting Commonwealth Properties, Inc.
v. Washington County, 35 Or App 387, 399, 582 P2d 1384(1978) (Commonwealth) (first brackets added)). LUBA also
noted its assumption that, on remand, the city would com-
municate with applicant about the necessary changes to the
application and reopen the record: “We also assume, as the
court assumed in Commonwealth, that ‘in many instances
planning authorities will communicate, at least prelimi-
narily, much of this information to [applicants] on an infor-
mal basis prior to the hearing.’ ” Id. at (slip op at 30 n 8)
(quoting Commonwealth, 35 Or App at 400).
On remand, the city denied applicant’s requests to
reopen the record to provide evidence or argument, further
Cite as 326 Or App 215 (2023) 219
interpreted its design-review standards, and again denied
the application for failure to demonstrate compliance with
the design-review standards. Applicant again appealed to
LUBA.
On the second appeal, LUBA concluded that five
of the city’s new interpretations of its standards were
implausible and did not comply with the standard set out
in Commonwealth. It also concluded that the city’s failure to
provide applicant with any opportunity to submit evidence
or argument to respond to the city’s evolving interpretations
of its design-review standards was procedurally unfair, and
it remanded with express instructions for the city to reopen
the record in the proceedings on remand.
The city seeks judicial review, asserting that LUBA
erred by (1) addressing a procedural-fairness argument
that, in the city’s view, applicant did not make to LUBA,
(2) remanding for a new evidentiary hearing, and (3) reject-
ing as implausible the city’s current interpretations of its
design-review standards on primary entrance, avoiding
monotony, and view impact.1
FIRST ASSIGNMENT OF ERROR
In its first assignment of error, the city contends that
applicant never argued to LUBA that procedural unfairness
required the city to reopen the record on remand and that,
consequently, LUBA lacked authority to order that. The
city frames the issue as one of preservation: that applicant
did not expressly argue that the city’s failure to reopen the
record on remand was a procedural error that affected appli-
cant’s substantial rights; that the issue is therefore unpre-
served; and that LUBA addressing an unpreserved issue
violates ORS 197.805, which requires LUBA decisions to “be
made consistently with sound principles governing judicial
review,” such that LUBA’s order is “unlawful in substance,”
ORS 197.850(9)(a).
In our view, the city’s argument is best under-
stood as raising a question regarding LUBA’s authority to
1
The city does not challenge LUBA’s rejection of the city’s interpretation of
two other design-review standards as implausible.
220 Botts Marsh LLC v. City of Wheeler
address arguments that are underdeveloped or not clearly
articulated. That is so because preservation principles
relate to a party’s arguments to a lower tribunal or deci-
sionmaker, whereas the issue that the city raises here per-
tains to the quality of applicant’s arguments to LUBA itself.
Conceptually, we agree with the city that rejecting unde-
veloped arguments helps achieve the same goals as pres-
ervation requirements, particularly “procedural fairness
to the parties.” State v. Haynes, 352 Or 321, 335, 284 P3d
473 (2012) (internal quotation marks omitted). At the same
time, we recognize that it is not uncommon for tribunals to
be faced with arguments that could be better developed or
more clearly articulated, and, generally, determining which
arguments are appropriate to address and which are not
is a prudential matter for the tribunal to which they are
addressed. See State v. Brand, 257 Or App 647, 650, 307 P3d
525 (2013) (declining to address an undeveloped constitu-
tional argument “as a prudential matter”); Beall Transport
Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2,
64 P3d 1193, adh’d to on recons, 187 Or App 472, 68 P3d 259
(2003) (discussing when we will decline to address an under-
developed argument).
Here, the city essentially argues that any procedural
unfairness argument that applicant made to LUBA was
underdeveloped to the point that LUBA could not address
it while acting “consistently with sound principles govern-
ing judicial review.” ORS 197.805. The city also argues that
LUBA’s approach here was inconsistent with other cases in
which LUBA has declined to consider undeveloped or inade-
quately developed arguments.
We are unpersuaded. Our own review of the record
leads us to conclude that applicant adequately argued to
LUBA that the city’s procedure on remand was unfair.
Applicant focused more on substance than process, and
applicant did not specifically request a remand to reopen the
record. But applicant’s arguments are imbued with objec-
tions to the city’s procedure on the first remand, including
describing the city as creating “a moving target” for appli-
cant and asserting that the city had made it impossible for
applicant to know what the standards were before the record
Cite as 326 Or App 215 (2023) 221
closed and, thus, made it impossible to meet them. On the
latter point, applicant argued, “Contrary to ORS 227.173(3)
and [Commonwealth], the City has also failed to explain
how [applicant] could comply. Indeed, by refusing to accept
any supplemental materials, the City has made compliance
impossible.” Applicant also generally requested a reversal or
remand of the city’s order.
Certainly, applicant could have expanded its pro-
cedural-unfairness argument or articulated it more clearly.
The issue was raised sufficiently, however, to provide the
city an opportunity to defend the fairness of its procedure.
It was not so underdeveloped as to preclude LUBA from con-
sidering it, nor was the decision to address it at odds with
prior LUBA decisions to the point that LUBA needed to
explain addressing it, even assuming arguendo that LUBA
has some obligation to be consistent in determining when
to address less developed arguments. Lastly, we do not per-
ceive any error in LUBA choosing to remedy the error by
remanding with specific instructions. Although applicant
did not expressly request a remand for an evidentiary hear-
ing, that remedy was within the scope of its general request
for reversal or remand of the city’s decision, and LUBA did
not err in specifying a remedy tailored to the error.
SECOND ASSIGNMENT OF ERROR
In its second assignment of error, the city argues
that, even if applicant’s briefing allowed LUBA to consider
requiring the city to reopen the record on remand, that
disposition is legally incorrect, such that LUBA’s order is
“unlawful in substance.” ORS 197.850(9)(a). In the city’s
view, applicant was not entitled to an opportunity to respond
to the city’s interpretations of its design-review standards
within the same application process and, relatedly, requir-
ing the city to reopen the record for that purpose is inconsis-
tent with Gutoski v. Lane County, 155 Or App 369, 963 P3d
145 (1998).
This case requires the balancing of two compet-
ing interests: local governments’ interests in promulgating
broad standards that they can then interpret in the course of
processing applications, and applicants’ interests in having
222 Botts Marsh LLC v. City of Wheeler
at least minimally adequate notice of the standards that
will apply to their applications so that they have a meaning-
ful opportunity to present evidence and argument in sup-
port of their applications. Many prior Oregon decisions have
addressed that balance in the administrative context gen-
erally. See, e.g., Marbet v. Portland General Electric, 277 Or
447, 463, 561 P2d 154 (1977) (in the context of energy facil-
ity siting, agency must provide notice of a standard “suffi-
ciently in advance of the final decision so that the applicant
and other parties can address the import of the standard for
the particular project”); Martini v. OLCC, 110 Or App 508,
513, 823 P2d 1015 (1992) (agreeing with an agency “that it
may make policy refinements in deciding contested cases
and that those may include changes in its interpretations
of statutes and rules” but also concluding that, when an
agency changes “the established interpretation of a rule” to
a “substantial extent” during the course of a contested case
proceeding, “the parties must be given the opportunity to
present evidence and arguments that are responsive to the
new standard”).
Both we and LUBA have also addressed that bal-
ance in the land-use context specifically. In Gutoski, the
applicant sought rezoning of his residential property to a
higher density residential zone that would allow him to build
a second residence. 155 Or App at 371. His property was
adjacent to an agricultural zone, where his neighbors, the
petitioners, operated an orchard. Id. The county approved
the application, and, on review, we held that the county had
erred by failing to apply Goal 3, policy 8 of its comprehensive
plan, which required the county to “[p]rovide maximum pro-
tection to agricultural activities by minimizing activities,
particularly residential, that conflict with such use” and to
interpret planning goals, policies, and regulations “in favor
of agricultural activities” whenever possible. Id. (internal
quotation marks omitted).
On remand, the county held a new evidentiary
hearing and, after the record closed, issued a final order
that “interpreted Policy 8 to permit a conflicting residen-
tial use as long as it did not force a significant change in or
significantly increase the cost of accepted farming practices
Cite as 326 Or App 215 (2023) 223
on petitioners’ farm.” Id. (internal quotation marks omit-
ted). LUBA affirmed the county’s decision, including reject-
ing the petitioners’ arguments that the county had erred
“by refusing to reopen the evidentiary record after [it]
announced [its] interpretation of policy 8 to allow petitioners
to present evidence and argument relevant to the standard
as interpreted.” Id. at 372 (internal quotation marks omit-
ted). LUBA pointed to its “test” from Heceta Water District v.
Lane County, 24 Or LUBA 402 (1993), as to when a local gov-
ernment may be required to reopen the evidentiary record,
and explained:
“In the present case, petitioners do not argue that the
county has changed an established interpretation, nor do
they identify what responsive evidence not already in the
record they seek to submit. As the county and intervenor
point out, the meaning of Policy 8 was an intensely debated
issue in both proceedings below. Where the interpretation
of a local provision is a matter of first impression for the
local government, the participants should have realized
that a variety of interpretations might be adopted, and
should have presented their evidence accordingly.”
Gutoski, 155 Or App at 372-73 (internal quotation marks
omitted).
We affirmed LUBA’s decision on review. We agreed
with LUBA that the county did not have to provide the peti-
tioners with another opportunity to present evidence under
the particular circumstances:
“Generally, as in the trial court and the agency setting,
interrelated questions of fact and law are ‘tried’ and decided
simultaneously in the local land use hearing process. From
the standpoint of both litigants and decisionmakers, ques-
tions of fact and of law can have reciprocal effects on the
answers to one another, and the ability to deal with the
two as part of the same exercise is an essential tool of the
advocate’s craft. Hence, what petitioners appear to perceive
as a chicken-and-egg problem that is somehow unique to
this case is, in our view, simply a variation of a standard
practice in which lawyers and judges have been engaging
for centuries.”
Id. at 373.
224 Botts Marsh LLC v. City of Wheeler
At the same time, we agreed with LUBA that, in
other circumstances, “the parties to a local land use proceed-
ing should be afforded an opportunity to present additional
evidence and/or argument responsive to the decisionmaker’s
interpretations of local legislation and that the local body’s
failure to provide such an opportunity when it is called for
can be reversible error.” Id. (citing, 110 Or App 508). We
identified two conditions that, at a minimum, would need to
be present to reverse on that basis:
“First, the interpretation that is made after the conclusion
of the initial evidentiary hearing must significantly change
an existing interpretation or, for other reasons, be beyond
the range of interpretations that the parties could rea-
sonably have anticipated at the time of their evidentiary
presentations. Second, the party seeking reversal must
demonstrate to LUBA that it can produce specific evidence
at the new hearing that differs in substance from the evi-
dence it previously produced and that is directly responsive
to the unanticipated interpretation.”
Id. at 373-74 (emphasis in original; footnote omitted).2
Neither of those conditions was met in Gutoski.
First, from the text and context of policy 8, the petition-
ers could have anticipated that the county would adopt an
interpretation prohibiting residential development only if it
would have a “substantial effect” on agriculture and, indeed,
LUBA had noted that the petitioners actually did submit
evidence relevant to such an interpretation. Id. at 373, 374.
Even if the petitioners disagreed with the interpretation
that the county ultimately adopted, they should have “rea-
sonably foreseen” it. Id. at 374 (emphasis omitted). Second,
the petitioners had not identified any additional evidence,
“specifically or by kind,” that they could have presented. Id.
2
In Heceta Water District, LUBA explained the relevance of those consid-
erations as going to LUBA’s inquiry overall—whether the local government
committed a procedural error and whether the error prejudiced the petition-
er’s substantial rights. 24 Or LUBA at 415-19; see also ORS 197.835(9)(a)(B)
(LUBA shall reverse or remand a decision if it finds that the local government
“[f]ailed to follow the procedures applicable to the matter before it in a manner
that prejudiced the substantial rights of the petitioner”). We understand Gutoski
to take the same approach, i.e., showing what evidence the party would have
submitted if given the opportunity goes to prejudice, not whether there was a
procedural error.
Cite as 326 Or App 215 (2023) 225
“In the absence of any demonstration that petitioners have
a meaningful and nonredundant showing to make, LUBA
properly did not, and we cannot, conclude that the county
erred by not acceding to their request for a second hearing.”
Id. at 375.
In this case, the city argues that LUBA erred in
remanding with instructions to reopen the record, because
neither of the conditions discussed in Gutoski is present.
LUBA implicitly disagreed. We also disagree.
As to the first Gutoski condition, the city inter-
preted its design-review standards for the first time after
the evidentiary hearing on applicant’s application. Because
it announced its interpretations for the first time, rather
than changing existing interpretations,3 the question is
whether the city’s interpretations are “beyond the range of
interpretations that the parties could reasonably have antic-
ipated at the time of their evidentiary presentations.” Id. at
374.
Three aspects of Gutoski shed light on what we
meant by the range of interpretations that “could reason-
ably have been anticipated at the time of [the] evidentiary
presentations.” First, the comprehensive plan policy at issue
in Gutoski did not purport to absolutely prohibit residen-
tial development near agricultural uses, id., such that the
petitioners reasonably should have anticipated the county
adopting a standard that looked at the effect of proposed
residential development on nearby agricultural operations
and any evidence presented on that issue. Second, the
meaning of policy 8 had been “intensely debated” in the
two proceedings before the county, id. at 373 (internal quo-
tation marks omitted), which suggests that the petitioners
in Gutoski had some notice of the possible interpretations
under consideration. Third, the petitioners in Gutoski did
anticipate the county’s interpretation to some extent, in that
3
This likely is not the first time the city has interpreted the standards
at least by applying them, but there is no established interpretation to which
the parties agree or that is demonstrated by the record. Accordingly, for cur-
rent purposes, we assume that there is no existing interpretation. See generally
Martini, 110 Or App at 511 n 3 (noting that, although the Oregon Liquor Control
Commission’s previous interpretation of the relevant rule was unclear from the
record, the parties agreed that it existed and agreed on its substance).
226 Botts Marsh LLC v. City of Wheeler
they “did submit evidence relevant to the impacts of residen-
tial development on their farming operations, in the form of
the prior lawsuit and testimony about the changes and costs
resulting therefrom.” Id. at 373 (internal quotation marks
omitted).
In this case, we conclude that applicant could not
have reasonably foreseen the city’s interpretations of the
three design-review standards at issue on judicial review.4
As noted in Gutoski, litigating the facts and the law at the
same time is part of advocacy, and advocates may need to
tailor their evidentiary presentations to address several
possible interpretations of a legal standard, including any
evident from reading the text in context and any advocated
or discussed during the proceedings. Id. at 372-73. However,
that principle finds its limit where, as here, the text of the
standards is so subjective as to allow for dozens of poten-
tial interpretations and resulting evidentiary requirements,
and, at the same time, there was no debate or discussion
before the record closed of any interpretations like the ones
the city later announced.
Consider the city’s requirement that “[m]onotony
of design in single or multiple building projects shall be
avoided. Variety of detail, form, and site design shall be
used to provide visual interest.” WZO 11.050(4)(b)(3). Absent
guidance from the city as to what it considers “monotonous”
or what it means by “visual interest,” an applicant could
never reasonably foresee and address all possible interpre-
tations of that standard.
4
We also reject the city’s argument that applicant reasonably should have
anticipated the city’s interpretation of another standard, the direct pedestrian
connection standard, which appears in WZO 11.050(4)(a)(6) and that, conse-
quently, LUBA should have affirmed the city’s denial of the application based on
applicant’s failure to meet that standard. After remanding the city’s first attempt
at interpreting that standard, LUBA concluded in its second opinion that the
city’s interpretation was plausible. We observe that an interpretation of a vague
standard may be plausible and yet still one of so many possible interpretations
that an applicant could not reasonably anticipate it. We also note that the bur-
den on an applicant increases exponentially with each additional vague standard
that a local government interprets for the first time (or reinterprets significantly
differently) after closing the record. In these particular circumstances, we con-
clude that the city’s plausible interpretation of the direct pedestrian connection
standard did not require LUBA to affirm the city’s denial of the design-review
application.
Cite as 326 Or App 215 (2023) 227
As previously discussed, city staff recommended
approving applicant’s application as meeting all applicable
standards, hearings were held, the record closed, the city
then voted to deny the application on grounds apparently
unrelated to the design-review standards, and a month
later the city made findings based on newly announced
interpretations of the design-review standards. Applicant
could not have reasonably anticipated the interpretations
that the city announced, so as to preemptively address them
before the record closed. That is particularly so in light of
how broadly the standards are written. The first Gutoski
condition is met.
The second Gutoski condition is that “the party
seeking reversal must demonstrate to LUBA that it can pro-
duce specific evidence at the new hearing that differs in sub-
stance from the evidence it previously produced and that is
directly responsive to the unanticipated interpretation.” 155
Or App at 374. That condition is also met. On remand, appli-
cant “attempted to submit supplemental application materi-
als, and asked the city to reopen the record and consider the
materials.” The city rejected that request, which is why the
materials are not in the record. Under the circumstances,
LUBA was satisfied that applicant had demonstrated that
it actually had responsive materials that it would have sub-
mitted if given the opportunity. We agree that the demon-
stration was sufficient in these circumstances.
To summarize, under Gutoski, it would be improper
for LUBA to remand to a local government with instructions
to reopen the record if (1) the applicant had at least mini-
mally adequate notice of the local government’s interpreta-
tion of its standards in time to submit responsive materials
in support of its application, which some standards provide
merely by virtue of having relatively few plausible inter-
pretations, or (2) the applicant has not shown that it could
have put in more evidence with adequate notice. Neither is
the case here. We therefore reject the city’s argument that
LUBA requiring the city to reopen the record on remand is
inconsistent with Gutoski. As for whether there is any incon-
sistency within LUBA’s own case law, that is a matter for
LUBA, as LUBA cases are not binding on this court. See
228 Botts Marsh LLC v. City of Wheeler
Friends of Yamhill County v. Board of Commissioners, 351
Or 219, 251-52, 264 P3d 1265 (2011) (noting that LUBA deci-
sions are not binding on the Supreme Court).5
THIRD ASSIGNMENT OF ERROR
In its third assignment of error, the city argues that
LUBA’s order is “unlawful in substance,” ORS 197.850(9)(a),
because, as to three of the city’s design-review standards,
LUBA wrongly concluded that the city’s interpretation was
implausible under Siporen and inadequately explained under
Commonwealth.
LUBA may reject a local government’s interpreta-
tion of its own zoning ordinances only if the interpretation is
inconsistent with “the express language of” the ordinance,
“the purpose for” the ordinance, or “the underlying policy
that provides the basis for” the ordinance, or if it is “con-
trary to a state statute, land use goal[,] or rule that the
[zoning ordinance] implements.” ORS 197.829(1). We apply
“ ‘the interpretative principles that ordinarily apply to the
construction of ordinances under the rules of PGE v. Bureau
of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143(1993), as modified by State v. Gaines, 346 Or 160, 171-
72, 206 P3d 1042 (2009).’ ” Gould v. Deschutes County, 272
Or App 666, 675, 362 P3d 679 (2015) (quoting Setniker v.
Polk County, 244 Or App 618, 633-34, 260 P3d 800, rev den,
351 Or 216 (2011) (brackets omitted)). If the local govern-
ment’s interpretation “plausibly accounts for the text and
context” of the provision, then LUBA and we must defer to
that interpretation. Siporen, 349 Or at 262. The fact that “a
stronger or more logical interpretation exists does not make
a local government’s interpretation implausible.” Gould, 272
Or App at 675.
5
Among other things, the city argues that in Schatz v. City of Jacksonville, 25
Or LUBA 327, 339, aff’d without opinion, 122 Or App 299 (1993), LUBA “held that
a local government has the right to approve or deny an application based upon
the original application and ‘nothing requires the city to allow modifications to
the application for proposed development’ on remand.” Because the city excluded
applicant’s additional materials from the record, it is unclear whether they
were simply additional materials or would modify the application, but LUBA’s
order seems to contemplate the possibility of a modified application in this case.
We are unpersuaded that Schatz alone establishes that LUBA erred in that
regard.
Cite as 326 Or App 215 (2023) 229
As for Commonwealth, in that case, the county
denied preliminary approval of a subdivision based on its
interpretation of general policies in its comprehensive plan.
35 Or App at 389. On appeal from a judgment on writ of
review, we rejected the notion that the comprehensive plan’s
“broadly worded general policy statements were too vague
to serve as standards by which approval of the proposed
subdivision plat could be granted or denied.” Id. at 389, 396.
At the same time, we recognized that a local government’s
power to rely on broad standards in quasi-judicial proceed-
ings is tempered by an applicant’s right to notice of the stan-
dards to be applied: “It is not necessary that every standard
used by an agency [be] specifically articulated prior to the
initiation of an administrative proceeding ‘as long as it is
in fact adopted as a standard * * * sufficiently in advance of
the final decision so that the applicant * * * can address the
import of the standard for a particular project * * *.’ ” Id. at 400(quoting Marbet, 277 Or at 463 (ellipses in Commonwealth));
see also id. (“[I]t is necessary for the county, at some time,
to announce to a subdivider both which plan policies will
govern the granting of such approval and specifically how
those policies will be applicable to the project in question.”).
Further, in the subdivision context, if the planning author-
ity were to deny tentative approval, the grounds “must be
articulated in a manner sufficiently detailed to give a sub-
divider reasonably definite guides as to what it must do to
obtain final plat approval, or inform the subdivider that it is
unlikely that a subdivision will be approved.” Id.
We concluded that the county’s order at issue in
Commonwealth did not provide the applicant with suf-
ficiently definite information as to what was needed to
obtain approval. Id. at 400-01. For example, as to the broad
comprehensive-plan standard that “the distinctive natural
features (of a site) * * * be retained and incorporated into
all developments,” the county relied on previously unartic-
ulated numerical standards. Id. at 397-98. “Nowhere did
the [county] indicate why it chose trees of 8-inch caliper, lot
clearance of 35 percent or road cuts of over 7 feet as the
standards by which compliance with the policy involved here
was to be measured. More importantly, nowhere did it indi-
cate what figures, if any, would be acceptable.” Id. (internal
230 Botts Marsh LLC v. City of Wheeler
citations omitted). We therefore reversed and remanded “for
more adequate findings and conclusions.” Id. at 389.6
With that understanding of the applicable stan-
dards, we turn to the three design-review standards as to
which the city challenges LUBA’s conclusion that the city’s
interpretations were implausible under Siporen and inade-
quate under Commonwealth.
Primary Entrance (Street Trees). The first standard
at issue is the primary-entrance standard, which appears
in WZO 11.050(4)(a)(6) and requires a pedestrian courtyard/
plaza with “street trees.” The city interprets that standard
as requiring not only the trees themselves but “some open
area to allow for tree growth.” LUBA concluded that the
city’s interpretation was inconsistent with the text. We dis-
agree. We agree with the city that it is plausible to interpret
that standard to require at least some space for the trees to
grow. We therefore reverse LUBA’s order on that point.
At the same time, we note that, to comply with
Commonwealth, the city must communicate to applicant
how many trees are required and how that determination is
supported by the text, context, and purpose of the standard;
the minimum amount of “open space” required for each tree
and how that determination is supported by the text, con-
text, and purpose of the standard; and how the space will be
measured. Cf. Commonwealth, 35 Or App at 398-99.
Avoid Monotony. The second design-review standard
at issue requires visual interest: “Monotony of design in sin-
gle or multiple building projects shall be avoided. Variety of
detail, form, and site design shall be used to provide visual
interest. In a Planned Development, no more than 25% of
all buildings in the development shall replicate the same
roofline or footprint.” WZO 11.050(4)(b)(3).
In its first order, the city indicated that appli-
cant’s proposed design of the north and west elevations was
6
We did not directly address in Commonwealth what should be done about
the lack of notice that the applicant had received. Nonetheless, we agree with
LUBA that our discussion of notice requirements in Commonwealth lends some
support to its decision to remand for a new evidentiary hearing, although we
ultimately view Gutoski as more on point.
Cite as 326 Or App 215 (2023) 231
monotonous. LUBA concluded that the city’s explanation
for that position was inadequate under Commonwealth. In
its second order, the city explained that, because no side of
the building would be shielded from public view, the design
of each elevation had to independently meet the avoid-
monotony standard. Using the south elevation as a refer-
ence point, because it had been found to be nonmonotonous,
the city stated that it “relies on a 25% replication reference
and concludes that a change in roof line, wall recess, mate-
rials, window size and placement for every quarter of linear
length of an elevation could satisfy WZO 11.050(4)(b)(3).” In
a footnote, the city “acknowledged that the 25% requirement
is not ‘directly required’ by the provision, and that other
alternative approaches could satisfy the criterion.”
Applicant argued to LUBA that the city’s interpre-
tation of the standard—which would mean that, on each ele-
vation of the building, there must be three changes in roof
line, three changes in wall recess, three changes in materi-
als, and three changes in window size and placement—was
implausible. Applicant further argued that the provision
that, “[i]n a Planned Development, no more than 25% of all
buildings in the development shall replicate the same roof-
line or footprint,” WZO 11.050(4)(b)(3), did not apply because
applicant was not proposing a planned development and,
in any event, even in planned developments the standard
refers to 25 percent of all buildings, not 25 percent of each
elevation of a single building.
LUBA agreed with applicant that the city’s inter-
pretation of the avoid-monotony standard was inconsistent
with the written standard. It rejected an elevation-based
25 percent requirement as unsupported by anything in the
written standard. LUBA further stated that the written
standard itself was “exceedingly vague” and that, absent
any clear direction in the standard itself, “the city’s dis-
cretion to require changes to petitioner’s design on remand
is extremely narrow. On remand, for the east, north, and
west elevations, the city may require petitioner to submit a
revised design that includes similar features that the city
has already concluded would satisfy the Avoid Monotony
Standard on the south elevation.”
232 Botts Marsh LLC v. City of Wheeler
The city argues that LUBA erred because, although
the 25 percent requirement does not come from the text of
the standard as it applies to single buildings, it is (1) sup-
ported by the context of the sentence that applies to planned
developments, which does include a 25 percent requirement,
and (2) based on the south elevation of applicant’s proposed
development. The city also asserts that LUBA’s decision
“puts local governments in an impossible situation” by,
on the one hand, requiring specificity in findings regard-
ing broad and vague standards while, on the other hand,
rejecting the city’s attempt to provide that specificity—by
giving objective and quantifiable directions to applicant—as
unmoored from the standard’s text and thus “implausible”
under Siporen.
We agree with LUBA that the city’s interpretation
of the avoid-monotony standard is implausible, because it
adopts the 25 percent replication rate that the standard
applies only to evaluate monotony in a multi-building
planned development and applies it to each elevation of a
single building that is not in a planned development. As
the city essentially acknowledges, nothing remotely like the
city’s proposed method is suggested by the exhortations to
avoid monotony and that “[v]ariety of detail, form, and site
design shall be used to provide visual interest.”
As for the city’s claim that it is in an “impossible”
position, it is the city’s choice to have an exceedingly vague
standard. The trade-off for that vagueness is that, to satisfy
fair notice requirements, the city must communicate infor-
mally or formally with applicants to provide specific informa-
tion about how the city interprets the standard, and the city
must deal with appeals and judicial review when applicants
feel they did not have fair notice. Accord Commonwealth,
35 Or App at 397-98 (noting the lack of textual support in
vague policies for the numerical standards that the county
had applied).
View Impact. WZO 11.050(4)(b)(5) provides that “[t]he
impact that structures will have on views from adjacent or
other areas will be taken into account.”
In its first decision, the city stated that the stan-
dard was “intended to protect views, including those from
Cite as 326 Or App 215 (2023) 233
adjacent structures or structures in other areas,” and
that the proposed development did not meet the standard
because a house across Highway 101 “would have its view
of the Nehalem Bay adversely affected” by the develop-
ment. On review, LUBA rejected that reasoning as failing
to account for the fact that 90 percent of the site was pro-
tected open space, that the proposed development complied
with the maximum height allowed in the zone (24 feet), and
that the proposed development was for uses allowed outright
in the zone. LUBA also noted that any development on the
site would affect views of the bay, because “there is noth-
ing obstructing that view presently.” LUBA directed that,
“[o]n remand, the city must evaluate compliance with WZO
11.050(4)(b)(5) with the understanding that [applicant’s] use
is permitted outright on the property, and that the city can-
not, consistent with the United States Constitution, inter-
pret the provision in a manner that results in a de facto view
easement over petitioner’s property.” Botts Marsh I, ___ Or
LUBA at ___ (slip op at 32).
On remand, the city made findings that suggest
a needs-based approach to approving building height and
size:
“Designing a building that is responsive to WZO
11.050(4)(b)(5) requires some analysis of the degree to
which the proposal affects views and whether there are
any design changes that could provide greater view protec-
tions while not compromising the applicant’s desired use.
For example, it may be that a functioning fish processing
facility requires machinery or systems that require a 24
[foot] tall building. If so, it may be that the building[’s] roof
cannot be reduced.”
The city noted that the proposed development might affect
views from a variety of locations, including downtown
Wheeler, and faulted applicant for not submitting “drawings
or renderings that would allow the Council to consider the
impacts of this development on the views from any location.”
The city explained:
“[The] design of the building does not acknowledge its loca-
tion adjacent to the bay or factor in the views from downtown
Wheeler. It is simply a full block at the maximum permitted
height. A design that stepped back, sloped up to the east,
234 Botts Marsh LLC v. City of Wheeler
or otherwise acknowledged and addressed view concerns
would be more likely to satisfy this criterion. Moreover,
the appropriate consideration of the compatibility in WZO
11.050(4)(b)(1) and architectural style in WZO 11.050(4)(b)(2)
may well address most of the concerns regarding views.
But again, without any renderings showing how this build-
ing will look in context from town, Highway 101, the bay, or
anywhere else, and without some analysis of the identified
issues, it is not possible to determine the degree to which
the view will be impacted and without some explanation
for the need for a building at maximum height for its full
length, the Council cannot conduct the necessary review.
For this reason, the Council finds that the applicant has
not demonstrated that WZO 11.050(4)(b)(5) is satisfied.”
On review, LUBA concluded that the city’s inter-
pretation of the view-impact standard improperly imposed
“a need-based requirement for developing a building” that
will house a use that is allowed outright in the zone. LUBA
further concluded that the city’s interpretation did not com-
ply with Commonwealth, because it did not “give petitioner
assurance regarding what would be required to satisfy the
View Impact Standard, except to suggest that ‘a design that
stepped back, sloped up to the east, or otherwise acknowl-
edged and addressed view concerns would be more likely to
satisfy this criterion.’ ” (Emphases in LUBA opinion.) LUBA
also noted that the city had yet to address the fact that 90
percent of the subject property will remain open space.7
Ultimately, LUBA concluded that the city had “very
limited” discretion to require design changes on remand
under the circumstances, relying on its treatment of an
analogous issue in GPA 1, LLC v. City of Corvallis, 73 Or
LUBA 339 (2016), and GPA 1, LLC v. City of Corvallis, 74 Or
LUBA 527 (2016), which it discussed extensively. In conclu-
sion, LUBA explained:
“Similarly, here, because petitioner’s proposal is for a
use permitted outright on the property, the city has very
limited discretion on remand to require changes to the
design to comply with the View Impact Standard. That
7
LUBA also addressed the city’s criticism of applicant for failing to provide
drawings or renderings of the view impact from various locations. Because the
matter is being remanded to the city with instructions to reopen the record, we
do not address that aspect of LUBA’s second order.
Cite as 326 Or App 215 (2023) 235
limited discretion does not allow the city to require peti-
tioner to lower the height of the building that is otherwise
allowed under WZO 2.040(1) and WZO 3.040(1). Moreover,
as we cautioned in Botts Marsh I, the city may not inter-
pret or apply the View Impact Standard in a manner that
results in a de facto view easement on petitioner’s property.”
We agree with LUBA that the city’s imposition of
a needs-based requirement for developing a building for a
use permitted outright on the subject property is implausi-
ble. That is, the requirement that “[t]he impact that struc-
tures will have on views from adjacent or other areas will
be taken into account,” WZO 11.050(4)(b)(5), does not plausi-
bly require an applicant to persuade the city that the appli-
cant’s use “requires” a building of a certain size because of
what it must contain (such as fish-processing machinery).
Rather, the only necessary explanation of the applicant’s
need or desire to develop the building is that the use, and,
thus, the building, is permitted in that location. The city
may require the applicant to show that the view impact has
been taken into account in some way, but it may not require
the applicant to show a case-specific “need” for a building of
a certain height or width.
Finally, the city questions LUBA’s statement that
the city has “very limited” discretion on remand under the
circumstances here. The city points out that it is permit-
ted to deny applications that fail to comply with its design
review standards, and it asserts that it is simply trying
“to follow its code, which requires an application for design
review to take views ‘into account,’ ” and suggests that it
should be free to reinterpret the view-impact standard on
remand, including addressing any arguments by applicant.
We do not disagree with the city that it is permitted to deny
applications for design review that do not show compliance
with its standards. However, as we have explained, we agree
with LUBA that, in this case, the city has repeatedly failed
to give applicant adequate notice of what those standards
are and how compliance with them will be assessed. To
the extent that LUBA lacked authority to limit how many
times the city may freely reinterpret a vague provision that
applies to a use permitted outright, the city has failed to
meaningfully develop its argument on that issue, and we
236 Botts Marsh LLC v. City of Wheeler
are not presently persuaded that LUBA could not do what it
did.
Reversed in part and remanded.