1.1.1 Administrative Law – Interpretation of Law

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1.1.1 Administrative Law – Interpretation of Law – Generally. To the extent that LUBA’s

holding in Perry v. Yamhill County, 26 Or LUBA 73, 80, aff’d, 125 Or App 588, 865 P2d 1344

(1993), that the reasoning in Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992), extends

to a local government’s interpretation of a prior land use decision, was correct, it was superseded

by ORS 197.829(1), which requires LUBA to affirm “a local government’s interpretation of its

comprehensive plan and land use regulations” but does not require LUBA to affirm a local

government’s interpretation of a prior land use decision, findings adopted in support thereof, or

conditions of approval attached thereto, which LUBA reviews under ORS 197.835(9)(a)(D) to

determine whether the local government “[i]mproperly construed the applicable law.” M & T

Partners, Inc. v. City of Salem, 80 Or LUBA 221 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a significant resource

overlay zone provision requires that (1) resource sites not be altered or impacted to a degree that

destroys their significance, (2) the proposed development not result in the loss of habitat for

threatened or endangered species, (3) all feasible alternatives to the development that would not

result in a substantial adverse impact on identified resource values be considered and rejected, (4)

the development be sited on the property in such a manner that minimizes adverse impacts on

identified resources, and (5) documentation be provided regarding requirements for state or federal

permits or licenses and that appropriate resource management agencies have reviewed the

development proposal against their plans, policies, and programs, the local government does not

err in concluding that that provision applies at the development stage rather than the PAPA stage.

VanSickle v. Klamath County, 80 Or LUBA 241 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Although the holding in Beaver

State Sand and Gravel vs. Douglas County, 187 Or App 241, 65 P3d 1123 (2003), determined that

ORS 215.298(2) prohibits surface mining on EFU-zoned lands unless the property is included on

a Goal 5 inventory of significant aggregate resources, nothing in OAR 660-023-0180 prohibits a

local government from otherwise maintaining a “Non-Significant Mining Mineral and Aggregate

Inventory,” adding properties to that inventory, or allowing surface mining on properties included

on that inventory pursuant to local code provisions regulating surface mining, and a local

government is not required to apply any rules implementing Goal 5 to its decision to add property

to that inventory. Central Oregon Landwatch v. Deschutes County, 80 Or LUBA 252 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code provision

requires that a minimum of 250 square feet of “outdoor area” be provided for each residential lot

and specifically states that the outdoor area may include “decking” and a “covered patio,” as long

as that covered patio is not “fully enclosed,” the local government does not err by concluding that

a covered deck that is attached to the dwelling, but not enclosed, can satisfy the minimum outdoor

area requirement. Bohan v. City of Portland, 80 Or LUBA 263 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code provision

generally prohibits development and grading in “areas of land movement,” LUBA will affirm a

hearings officer’s interpretation of that provision to prohibit development and grading in “an area

where a land slide or some other earth movement has already occurred—not an area where such

activity could occur.” Chang v. Clackamas County, 80 Or LUBA 321 (2019).

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1.1.1 Administrative Law – Interpretation of Law – Generally. A local government errs by

finding that compliance with a local code provision prohibiting diversion of storm water into areas

with steep slopes and “areas of land movement, slump or earth flow, and mud or debris flow” is

satisfied by compliance with a separate local code provision requiring development to provide

“[p]ositive drainage and adequate conveyance of surface water * * * from roofs, footings,

foundations, and other impervious or near-impervious surfaces to an appropriate discharge point.”

Chang v. Clackamas County, 80 Or LUBA 321 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. The planning commission’s

conclusion that the subject properties are subject to “site review requirements” is not supported by

anything in the text of the Old Code, Ordinance 20224, or the New Code. Simons Investment

Properties, LLC v. City of Eugene, 80 Or LUBA 458 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. In the context of an application

to construct a 94-unit apartment complex, where a local code provision defines “net density” to

mean “the number of dwelling units per acre of land in actual residential use and reserved for the

exclusive use of the residents in the development, such as common open space or recreation

facilities,” while a maintenance building and internal parking circulation areas are properly

included in the net density calculation, a leasing office should be excluded from the acreage used

to calculate net density. Hulme v. City of Eugene, 80 Or LUBA 488 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the Court of Appeals

determines that LUBA’s decision was “unlawful in substance” pursuant to ORS 197.850(9)(a)

because LUBA affirmed the city’s interpretation of Goal 8, Policy 1, and according to the court,

the city’s interpretation of Goal 8, Policy 1 is not affirmable under ORS 197.829(1) because the

city’s interpretation does not “plausibly account for the text and context of the policy,” the

appropriate disposition according to OAR 661-010-0071(2)(d) is for LUBA to remand the decision

to the city for further proceedings, specifically for the city to adopt a sustainable interpretation of

Goal 8, Policy 1, and apply that policy, as interpreted to the application before it. Crowley v. City

of Hood River, 79 Or LUBA 77 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code provision

prohibits uses that “alter the character of the surrounding area in a manner that substantially limits,

impairs, or precludes the use of surrounding properties,” a hearings officer errs in reducing the

inquiry into a single inquiry into whether the proposed use makes the use of nearby properties

“substantially worse,” since the words “limit” and “impair’ have different meanings and since,

where a local code uses two different terms in the same provision, it is presumed that the enacting

body intends two different meanings. York v. Clackamas County, 79 Or LUB 278 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code provision

requires a finding that a proposed use “will not significantly increase fire hazard or significantly

increase fire suppression costs or significantly increase risks to fire suppression personnel,” the

proper comparison is between the proposed use and the pre-existing use, not between the proposed

use and typical uses of the same type. York v. Clackamas County, 79 Or LUB 278 (2019).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where the predominant use of

a proposed facility controls whether it is permitted in a zone, a local government does not err in

concluding that the allocation of two-thirds of the physical space in a building to office uses makes

the office use the predominant use of the building, even where the primary purpose of the office

uses is to facilitate other uses in the building which are not allowed in the underlying zone. Sky

Lakes Medical Center, Inc. v. City of Klamath Falls, 79 Or LUBA 490 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. The fact that a proposed second

dwelling would have a smaller footprint, less square footage, and fewer bedrooms than an existing

dwelling on the same lot is by itself insufficient to establish that the second dwelling is “accessory

to” the existing dwelling for purposes of ORS 197.312(5). Kamps-Hughes v. City of Eugene, 79

Or LUBA 500 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. The fact that a proposed second

dwelling would be located on the same lot as an existing dwelling is sufficient to establish that the

second dwelling is “used in connection with” the existing dwelling for purposes of ORS

197.312(5), regardless of whether either dwelling is occupied by the owner of the lot. Kamps-

Hughes v. City of Eugene, 79 Or LUBA 500 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code amendment is not

inconsistent with an administrative rule, so as to require reversal or remand of the amendment

decision, merely because the amendment uses the phrase “ministerial decision” while the rule uses

the phrase “administrative decision,” where the code does not treat those phrases differently. In

addition, a local code amendment is not inconsistent with an administrative rule authorizing

counties to grant extensions of permits if they determine the applicant was unable to begin or

continue development “for reasons for which the applicant was not responsible” merely because

the amendment provides a list of examples of such reasons, especially where the rule provides no

definition or guidance for that phrase. McCaffree v. Coos County, 79 Or LUBA 512 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. While a variance should not be

used as a substitute for rezoning, a local government does not err in granting a variance without a

showing that strict application of the zoning ordinance would cause “practical difficulties or

unnecessary hardships because of exceptional or extraordinary circumstances or conditions

affecting the applicant’s property” in a zone which the local code specifically exempts from that

standard. City of Albany v. Linn County, 79 Or LUBA 528 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the only variable

between multiple Urban Growth Area-Urban Growth Management (UGA-UGM) zones is lot size,

and where a county code provision provides that “[t]he density of one UGA-UGM zoning district

is not interchangeable with the density of another UGA-UGM zoning district without prior review

and approval by the affected city and * * * County,” an interpretation by the county that the

provision applies to zone changes of the subject property or changes to the underlying density of

the zone in which the subject property is located, but that it does not apply to lot size variances, is

inconsistent with the express language of the provision. In such cases, where the local code does

not define “density” and the dictionary defines “density” as the quantity or number per unit of area,

LUBA will make its own determination that a lot size variance in a UGA-UGM zone may qualify

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as an “interchange[]” with the density of another UGA-UGM zone, thereby requiring city review

and approval. City of Albany v. Linn County, 79 Or LUBA 528 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code provision

provides that “[a]pproval of [a] variance is limited to the minimum necessary to permit otherwise

normal development of the property for the proposed use,” an interpretation by the local

government that the provision means a variance may be approved if it permits development

consistent with the surrounding land use pattern and the uses permitted in the underlying zone, and

that it does not mean a variance may only be approved if it is necessary to permit development that

is allowed in the zone, is not inconsistent with the language of the code or the purposes or policies

underpinning the provision. City of Albany v. Linn County, 79 Or LUBA 528 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. The fact that a tentative plan

for a destination resort proposes a different pace of development than the final master plan, such

as by sub-phasing development, does not materially affect the findings of fact on which the final

master plan approval was based so as to constitute a “substantial change” to the final master plan,

thereby requiring a new application, where neither the final master plan nor applicable regulations

require that all development authorized in the first phase of the final master plan occurs at the same

time. Gould v. Deschutes County, 79 Or LUBA 561 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the final master plan for

a destination resort includes a mitigation plan requiring the applicant to replace the water

consumed by the resort with a quantity and quality of water that will maintain fish habitat in an

impacted stream, the fact that the tentative plan for one phase of development modifies the timing,

but not the overall amount, of the mitigation water required to be provided does not materially

affect the findings of fact on which the final master plan approval was based so as to constitute a

“substantial change” to the final master plan, thereby requiring a new application, where there is

no evidence that such modification will impact the efficacy of mitigation and there is evidence that

such modification will result in more gradual, spread out impacts. Gould v. Deschutes County, 79

Or LUBA 561 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code provision

provides that issuance of a conditional use permit requires a determination that “[t]he proposed

use is or may be made compatible with existing adjacent permitted uses and other uses permitted

in the underlying zone,” an interpretation by the local government that it need not consider the

impact of the proposed use on property values and neighbor peace of mind is not inconsistent with

the provision’s express language or underlying policies. Currie v. Douglas County, 79 Or LUBA

585 (2019).

1.1.1 Administrative Law – Interpretation of Law – Generally. When the county is entitled to

deference under ORS 197.829(1), the decision can be reversed only if the interpretation is

inconsistent with the express language, purpose or policy underlying the relevant code language.

Under a non-deferential standard of review petitioner must demonstrate that the commissioners’

interpretation is reversible. Oregon Coast Alliance v. Curry County, 78 Or LUBA 81 (2018).

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1.1.1 Administrative Law – Interpretation of Law – Generally. A petitioner may not also

operate an exotic animal rescue facility, which is undisputedly not a “farm use,” on EFU land

where the petitioner uses his or her EFU-zoned property for certain “farm uses,” under ORS

215.203. The existing “farm use[s]” do not “legitimize” the concurrent unpermitted uses, nor do

they shield the unpermitted uses from county code enforcement action. A Walk on the Wild Side v.

Washington County, 78 Or LUBA 356 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. The statute of limitations in

ORS 131.125(8)(c) is inapplicable to a county’s separate land use enforcement proceeding

procedures pursuant to a county code that does not contain any time limitation for enforcement

actions for violations of the county’s land use code, because the county has authority over land use

code enforcement matters independent from any statutorily derived authority in ORS Title 14

pursuant to county charter, and because ORS 153.030(4) expressly provides that “[n]othing in this

chapter affects the ability of any other political subdivision of this state to provide for the

administrative enforcement of the charter, ordinances, rules and regulations of the political

subdivision, including enforcement through imposition of monetary penalties.” A Walk on the Wild

Side v. Washington County, 78 Or LUBA 356 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer’s

interpretation is inadequate for review before LUBA where the hearings officer finds that that a

proposed bed and breakfast inn designed for occupancy by an employee caretaker and up to eight

non-resident guests qualifies as a “bed and breakfast inn,” without explaining how a caretaker

occupancy is consistent with the county code which defines a bed and breakfast inn as an “owner-

occupied” “single-family dwelling unit.” Elenes v. Deschutes County, 78 Or LUBA 483 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county hearings officer errs

in denying a forest template dwelling application on the sole basis that petitioner had not provided

a fire safety inspection, where the applicable ordinance provision entitled “Wildfire Safety

Requirements” requires “[o]ther measures as recommended by the fire agency commenting on the

application or the County Fire Safety Inspector,” and no fire agency recommended any measures

or a fire inspection in any submitted comments. Blu Dutch LLC v. Jackson County, 78 Or LUBA

495 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Even though an applicant

provides evidence of ownership of 200 or more acres in western Oregon after the application is

deemed complete, a hearings officer correctly concludes that an application for a forest template

dwelling satisfies ORS 215.740(3), where nothing in the statute or local development ordinances

requires an applicant for a large tract forest dwelling to prove ownership of the parcel at the time

an application is submitted. Blu Dutch LLC v. Jackson County, 78 Or LUBA 495 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer correctly

interprets ORS 215.740(3) in concluding that the minimum acreage requirement that applies to an

application for a forest template dwelling is the minimum acreage for the applicant’s tracts located

in western Oregon where the forest template dwelling is proposed to be located, rather than the

non-contiguous parcel located in an adjacent county designated as eastern Oregon. ORS 215.740

allows an owner seeking a dwelling on a tract that is located in western Oregon to rely on non-

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contiguous land in another adjacent county to meet the minimum acreage requirements; it does not

require that the minimum acreage requirements for the non-contiguous county be the applicable

standard. Blu Dutch LLC v. Jackson County, 78 Or LUBA 495 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Petitioner’s argument that the

county hearings officer’s failure to adopt findings of compliance with a county code provision

(Washington County Development Code (CDC 421-7.8)) is not a position presented “without

probable cause” sufficient to entitle an award of attorney fees against a non-prevailing party, where

LUBA agreed with petitioner that the hearings officer’s failure to adopt any findings explicitly

addressing CDC 421-7.8 would warrant remand, unless, as occurred here, other findings with

respect to other standards (CDC 422) in the hearings officer’s decision were sufficient to address

the substantive standards set forth in CDC 421-7.8, and therefore the hearings officer’s failure to

adopt findings addressing CDC 421-7.8 was harmless error. McAndrew v. Washington County, 78

Or LUBA 1094 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. That different setbacks

standards with different language are interpreted to require the same setback distance does not run

afoul of the general interpretative requirement to give different effect to different words used in

the same statute, where the local government shows that the different words nevertheless support

requiring the same setback distance. Brannon v. Multnomah County, 77 Or LUBA 275 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. The undefined standard

categories “site-related development standards” and “use-related development standards” are

ambiguous; a front setback standard and a maximum height standard could fall into either category.

Patel v. City of Portland, 77 Or LUBA 349 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a general category called

“use-related development standards” is followed by a nonexclusive list of examples, and minimum

front setback and maximum height standards are not included on the list, that is some support for

concluding that minimum front setback and maximum height standards are not use-related

development standards. But where one of the specified examples of a general category called “use-

related development standards” is “size of use standards,” it is certainly possible that a maximum

height standard qualifies as a “size of use standard” and thus could qualify as a “use-related

development standard.” Patel v. City of Portland, 77 Or LUBA 349 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a hearings officer’s

findings provide an inadequate explanation for why he concluded minimum front setback and

maximum building height standards qualify as “site-related development standards,” that prior city

hearings officers and the city council have reached the same conclusion is some support for the

hearings officer’s conclusion. Patel v. City of Portland, 77 Or LUBA 349 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Although local legislative

history is generally not subject to official notice by LUBA and cannot be considered on appeal if

it is not included in the local record, where the legislative history is contemporary commentary

that was adopted by the city council when it adopted the legislation, LUBA will consider the

commentary. Patel v. City of Portland, 77 Or LUBA 349 (2018).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where a prior version of the

zoning ordinance only allowed modifications for setback and height standards, and the zoning

ordinance was amended to allow a general category of standards, that lends some support to the

local government’s position that the general category of standards includes setback and height

standards. Patel v. City of Portland, 77 Or LUBA 349 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Although LUBA may take

official notice of commentary that was adopted with an ordinance, where that ordinance does not

enact or amend the ambiguous zoning ordinance language at issue, it is of no significance in

resolving the ambiguity. Patel v. City of Portland, 77 Or LUBA 349 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer’s findings

cannot be faulted for failing to address the impacts of a modification (variance) on petitioner’s

nearby residence, where the findings expressly address those impacts and the relationship between

the proposed structure and petitioner’s residence and point out that the proposed structure is

downslope and offset from petitioner’s residence. Patel v. City of Portland, 77 Or LUBA 349

(2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer’s failure to

adopt findings that address potential impacts of a proposed building on one nearby dwelling in

granting a maximum height modification (variance) is not a basis for remand, where the “on

balance” nature of the modification (variance) approval standard does not necessarily require

individual findings for every nearby residence, a public walkway between that dwelling and the

proposed dwelling reduces any legitimate expectation of privacy, and the topography and scale of

the proposed building is such that where the two structures adjoin each other they will be of similar

height. Patel v. City of Portland, 77 Or LUBA 349 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Oregon Laws 2008, chapter 12,

legislatively overruled the holding in Phillips v. Polk County, 53 Or LUBA 194, aff’d, 213 Or App

498, 162 P3d 338 (2007), which provided that it was unlawful to adjust property boundaries in a

way that results in parcels that fail to comply with applicable minimum parcel sizes. Oregon Laws

2008, chapter 12, authorizes property line adjustments of substandard size lots and parcels, even

if the resulting lots or parcels continue to fail to comply with applicable minimum parcel sizes.

Oregon Laws 2008, chapter 12, section 6 made that legislation retroactive to “property line

adjustments approved before, on or after the effective date of this 2008 Act.” Therefore, Oregon

Laws 2008, chapter 12 applies to a property line adjustment that took place in 2007, because the

property line adjustment was “approved * * * before, on or after” the effective date of the 2008

Act. Landwatch Lane County v. Lane County, 77 Or LUBA 486 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Petitioner fails to meet her

burden to demonstrate that LUBA has subject matter jurisdiction over a city council’s decision to

remove 35 trees from a city park, where petitioner argues the decision constitutes “logging”

because it was motivated at least in part to generate revenue, and “logging” is not authorized under

the Public Open Space zone that applies to the park. Simply because a city decides to offset the

costs of removing hazardous trees to avoid the cost of treating and maintaining other compromised

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trees that are not yet hazardous does not convert the tree removal proposal into a logging operation,

or otherwise make the decision a “land use decision.” Carlson v. City of Brookings, 77 Or LUBA

497 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. Petitioner has not demonstrated

that a city’s decision to remove 35 trees from a 33-acre city park will have a significant qualitative

or quantitative impact on present or future land uses. The decision does not alter any of the land

uses allowed in the park’s zone or any of the present or future land uses in the park, and the trees

themselves are not land “uses” in any legally cognizable sense. Carlson v. City of Brookings, 77

Or LUBA 497 (2018).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will reject an argument

that a legislative text amendment prohibiting new or expanded fossil fuel terminals is inconsistent

with the Metro Framework Plan and Metro Transportation Plan where the city’s code requires only

that code text amendments are consistent with Metro’s Urban Growth Management Functional

Plan. Columbia Pacific v. City of Portland, 76 Or LUBA 15 (2017).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer errs in

interpreting a condition of approval for a multi-phase planned unit development (PUD), which

requires that the applicant for final phase approval submit a traffic stud y to determine if additional

improvements are necessary to comply with the Transportation Planning Rule, to effectively

supersede a different condition of approval applicable to all phases of the PUD that limits

maximum development on the site to produce no more than a specified number of vehicle trips,

where the two conditions can instead be interpreted to give effect to both. Willamette Oaks LLC v.

City of Eugene, 76 Or LUBA 187 (2017).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county reasonably interprets

its road vacation ordinance to apply to vacation of public easements, notwithstanding that the

ordinance does not expressly refer to the vacation of public easements, where the ordinance

implements ORS 368.326, a statute that authorizes counties to establish vacation procedures for,

among other things, public easements. Neighbors for Smart Growth v. Washington County, 76 Or

LUBA 319 (2017).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a comprehensive plan

policy calls on the city to “[m]aintain the existing residential housing stock in established older

neighborhoods by maintaining existing Comprehensive Plan and zoning designations where

appropriate,” and the city commission adopts a number of reasons why it believes maintaining

existing planning and zoning designations is “not appropriate,” a petitioner must do more than set

out reasons why he thinks maintaining the existing planning and zoning is appropriate without

directly challenging the city commission’s reasoning. Nicita v. City of Oregon City, 74 Or LUBA

176 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a comprehensive plan

policy requires that a city “ensure that potential loss of affordable housing is replaced” when

changing comprehensive plan and zoning map designations, city findings that city-wide efforts to

encourage affordable housing will be sufficient to make up for the loss of five dwellings through

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construction of a medical center made possible under new comprehensive plan and zoning map

designations are sufficient to demonstrate the policy will not be violated. Nicita v. City of Oregon

City, 74 Or LUBA 176 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. A comprehensive plan goal of

“protecting and maintaining neighborhoods” is not necessarily violated by a development that will

displace five existing houses. A city commission interpretation that the proposal complies with the

goal, notwithstanding the loss of the five houses, so lo ng as the proposal will otherwise protect

and maintain the nearby neighborhood, is not reversible under ORS 197.829(1). Nicita v. City of

Oregon City, 74 Or LUBA 176 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the zoning code does

not define “hospital structures” but does separately list “Hospitals” and “Medical and dental

clinics, outpatient; [and] infirmary services” as permitted uses, a city does not misconstrue the

zoning code by concluding that a “medical office building “does not qualify as a “hospital” and

therefore need not have a backup source of electricity, which hospitals are required to have under

the zoning code. Nicita v. City of Oregon City, 74 Or LUBA 176 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 475B.340(2) and ORS

475.500(2) allow local governments to adopt “reasonable regulations” on marijuana production,

processing, and sales. A county zoning ordinance that prohibits marijuana production in a rural

residential zone while al lowing marijuana production in an exclusive farm use zone and on lands

zoned farm and forest, which together include more than one million acres in the county, is a

“reasonable regulation” within the meaning of the statutes. Diesel v. Jackson County, 74 Or LUBA

286 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a hearings

officer’s interpretation of a code provision that prohibits the filing of an application within two

years that is “substantially similar” to an application that the county denied as requiring a high

degree of similarity. Under the rules of interpretation, LUBA will affirm the hearings officer’s

conclusion that an application to develop a 62-lot subdivision on land zoned R 10 is not

substantially similar to a previously denied application to develop a 72-lot subdivision on land

zoned R 10, where the new subdivision proposes approximately 15 percent fewer lots, an increase

in average lot size of approximately 20 percent, a decrease of approximately 100 daily trips, an

increase in on-street parking, and wider streets. Reinert v. Clackamas County, 74 Or LUBA 427

(2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a hearings

officer’s interpretation of a code provision that requires the county to (1) incorporate tree

preservation into a development plan “wherever feasible,” and (2) balance the preservation of

natural features with the needs of development provided such balancing shall not require a

reduction in the number of lots or dwelling units that would otherwise be permitted, to not require

additional trees beyond the 90 of 423 that were proposed to be preserved where preservation of

the additional trees would require a reduction in the number of lots or dwelling units that would

otherwise be permitted. Reinert v. Clackamas County, 74 Or LUBA 427 (2016).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where an assignment of error

challenges an interpretation that the decision on appeal does not adopt, the assignment of error

does not establish a basis for reversal or remand. Fernandez v. City of Portland, 73 Or LUBA 107

(2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. In some circumstances a local

government may have to provide some interpretation or findings explaining its understanding of a

subjective standard such as a requirement to adopt buffers that “ensure compatibility” between

urban and rural agricultural uses. However, in the context of a legislative proceeding to adopt

regulations for such buffers there is no inherent obligation to adopt an interpretation of the

standard, and the failure to adopt an interpretation is not in itself a basis for reversal or remand.

Forest Park Neighborhood Assoc. v. Washington County, 73 Or LUBA 193 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where one of seven factors that

the comprehensive plan describes as “guid[ing] the determination of the most appropriate zone”

guides the county to consider “[a]vailability of transit” and provides that “land within walking

distance (approximately one-quarter mile) of a transit stop should be zoned for smaller lots,” a

hearings officer errs in concluding that land within approximately one-quarter mile of a transit stop

is not within “walking distance” because sidewalks are not present. Lennar Northwest, Inc. v.

Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the comprehensive plan

sets out seven factors that “guide the determination of the most appropriate zone,” a hearings

officer errs in weighing some of the factors as less important than other factors without any support

for that weighting in the express language of the factors or other parts of the comprehensive plan.

Lennar Northwest, Inc. v. Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where one of seven factors that

the comprehensive plan describes as “guid[ing] the determination of the most appropriate zone”

guides the county to consider “proximity to jobs, shopping, and cultural activities” and guides that

areas in proximity to jobs, shopping and cultural activities should be considered for smaller lots, a

hearings officer errs in concluding that land that is proximate to jobs and shopping should not be

zoned for smaller lots based on the hearings officer’s negative assumptions about the quality of

the jobs and shopping. Lennar Northwest, Inc. v. Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where one of seven factors that

the comprehensive plan describes as “guid[ing] the determination of the most appropriate zone”

guides that areas that have historically developed on large lots should “remain zoned consistent

with the existing development pattern, “and the hearings officer interprets the “existing

development pattern” to be synonymous with the existing zoning, remand is required in order for

the hearings officer to explain why a change from 10,000-square-foot lots to 8,500-square-foot

lots in an area with some 8,500-square-foot lots is not “consistent with the existing development

pattern.” Lennar Northwest, Inc. v. Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the comprehensive plan

sets out seven factors that “guide the determination of the most appropriate zone,” and the factors

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are not competing policies and do not work at cross purposes, a hearings officer errs in weighting

some of the factors as less important than other factors without any support for that weighting in

the express language of the factors or other parts of the comprehensive plan. Lennar Northwest,

Inc. v. Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer correctly

interprets the provisions of the comprehensive plan’s Housing chapter as not applying to an

application for a zone change because a residential zone change proposes only a change in the

zoning and possible density of housing but does not propose a particular type of housing. Lennar

Northwest, Inc. v. Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer correctly

interprets the provisions of the comprehensive plan’s Public Facilities and Services chapter as not

applying to an application for a zone change, where the chapter’s policies are directed at

development, and the adopted land use regulations implement the policies and apply at the time of

development. Lennar Northwest, Inc. v. Clackamas County, 73 Or LUBA 240 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county finding that wind

turbines are a conditional use in a commercial zone is not reversible error, even though wind

turbines are not listed as a conditional use in the zone, where the balance of the decision clearly

demonstrates the county in fact utilized its authority to approve uses that are similar to listed

permitted and conditional uses in the zone to approve the wind turbines. Burgermeister v.

Tillamook County, 73 Or LUBA 291 (2016).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where LUBA sustains three

assignments of error, but denies a fourth assignment of error, rejecting petitioner’s challenge to a

county commissioners’ interpretation that a permit expiration standard that requires a finding that

the applicant is not at fault for failing to complete the use authorized by the permit is met because

the county’s multi-stage destination resort process is so complicated, and LUBA’s decision is

reversed on appeal, with the Court of Appeals concluding that making the complexity of the multi-

stage resort process the only consideration in applying the standard is an implausible interpretation

of the standard, LUBA will sustain the fourth assignment of error as well. Gould v. Deschutes

County, 72 Or LUBA 258 (2015).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer is not

required to interpret and apply a county code provision that is similar, but not identical, to a

different county code provision that was at issue in a thirteen-year-old board of county

commissioner’s decision that applied to a different application and property in the same way that

the board of commissioners previously applied the different code provision. Head v. Lane County,

72 Or LUBA 411 (2015).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the word “property” is

not defined in the local code, the county correctly considers context provided by the definitions of

“property line adjustment” and “property line,” both of which include reference to a “lot of record,”

in order to interpret the meaning of “property” to refer generally to whatever units of land (parcel,

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lot, or lot of record) that are subject to a property line adjustment. LaBare v. Clackamas County,

71 Or LUBA 25 (2015).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under ORS 197.829(2), LUBA

is authorized to interpret county land use regulations in the first instance in cases where the local

government has failed to do so. Where a party raises an argument that a building used to board

horses is authorized as a permitted use under the zoning and development ordinance, and the

hearings officer does not consider the argument and does not adopt findings in response to the

party’s argument, LUBA may interpret the zoning ordinance and determine whether the building

used to board horses is a permitted or conditional use in the zone. Stavrum v. Clackamas County,

71 Or LUBA 290 (2015).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a city’s code does not

expressly provide that the city’s decisions are “final” for purposes of appeal to LUBA on the date

notice is mailed to the parties, but a city code provision directs the planning director to include a

statement in the notice of decision that the decision is final and may be appealed to LUBA within

21 days of the date of mailing, LUBA will interpret the code provision as intended to make the

city’s decisions final on the date of mailing for purposes of OAR 661-010-0010(3), which

authorizes local governments to determine the date of finality by local rule or ordinance. Stevens

v. City of Island City, 71 Or LUBA 373 (2015).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer correctly

concludes that an isolated wetland is not a “riparian corridor,” where the code defines riparian

corridor as “an area, adjacent to a water area,” and the isolated wetland is not “adjacent to a water

area.” Carver v. Washington County, 70 Or LUBA 23 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the Court of Appeals

interpreted similar operative language in a county’s code to determine that “riparian zones” are

areas adjacent to water areas designated in a community plan, a hearings officer correctly interprets

the term “riparian corridor” in that code to apply only to riparian areas that are proximate to

designated water areas. Carver v. Washington County, 70 Or LUBA 23 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code provision

authorizing a private street if the street is “not needed to provide access to other properties in the

area” is not violated by a required pedestrian/bicycle connection between the proposed private

street and offsite transit facilities, because “other properties in the area” does not refer to transit

facilities in a public right-of-way. Carver v. Washington County, 70 Or LUBA 23 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer’s approval

of an extension of a PUD construction schedule that has been modified several times since the

original PUD approval is consistent with a code section governing extensions of PUDs, where

nothing in the original PUD approval or a condition of approval requiring the parties to enter into

a Performance Agreement detailing the construction schedule prohibits extending the construction

schedule. Goodpasture Partners LLC v. City of Eugene, 70 Or LUBA 59 (2014).

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1.1.1 Administrative Law – Interpretation of Law – Generally. A later-enacted section of the

city’s development code governing PUD modifications that includes similar provisions to a prior

superseded version of the development code is the “corresponding provision” of the superseded

code for purposes of the new code provision applicable to PUD modifications. Goodpasture

Partners LLC v. City of Eugene, 70 Or LUBA 59 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Generally use of the same

phrase in different provisions of the same statute indicates that the phrase has the same meaning.

Because ORS 197.772(1) uses the term “property owner” to refer to the property owner at the time

that the property is designated a historic resource, the use of the same term in ORS 197.772(3),

which allows a property owner to request removal of the designation, suggests that “property

owner” as used in ORS 197.772(3) refers to the owner at the time of designation, not subsequent

purchasers of the property. Lake Oswego Preservation Society v. City of Lake Oswego, 70 Or

LUBA 103 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Notwithstanding that ORS

197.772(1) and (3) both use the same phrase “property owner,” the two sub-sections operate in

entirely different, non-overlapping circumstances, which suggests that “property owner” as used

in ORS 197.772(3) may not be limited by context, as is ORS 197.772(1), to the property owner at

the time property is designated a historic resource. Lake Oswego Preservation Society v. City of

Lake Oswego, 70 Or LUBA 103 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where legislative history of

ORS 197.772(3) indicates that the legislators proposing that section believed the phrase “property

owner” as used in that provision referred only to the property owner at the time property was

designated for historic resource, and did not include subsequent purchasers, and an amendment

intended to specify that “property owner” also included subsequent purchasers was later deleted

in conference, the strongest inference is that the legislature intended “property owner” as used in

ORS 197.772(3) to include only the property owner at the time of designation, and not subsequent

purchasers. Lake Oswego Preservation Society v. City of Lake Oswego, 70 Or LUBA 103 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where legislative history of

ORS 197.772(3) indicates that legislators intended to offer remedial relief to property owners who

were “coerced” into having their property designated as a historic resource, but the legislative

history does not indicate that the legislature was equally concerned with subsequent purchasers

who acquire the property knowing it is designated as a historic resource, that legislative history

supports the conclusion that “property owner” as used in ORS 197.772(3) is limited to owners at

the time the property was designated, not subsequent purchasers. Lake Oswego Preservation

Society v. City of Lake Oswego, 70 Or LUBA 103 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer correctly

rejects an interpretation that connecting two dwellings by a causeway creates a single “dwelling,”

with two or more “dwelling units,” based on a general code definition of “dwelling,” where a

narrower definition of dwelling that limits “dwelling” to a single dwelling unit applies in the zone.

Macfarlane v. Clackamas County, 70 Or LUBA 126 (2014).

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1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a planning

commission’s interpretation of a code net density calculation requirement to exclude “public and

private streets and alleys, public parks, and other public facilities “as not requiring the exclusion

of acreage that is encumbered by easements for sewer and water lines where the phrase “other

public facilities” is not defined and the applicable code provision does not use the word

“easement.” Oakleigh-McClure Neighbors v. City of Eugene, 70 Or LUBA 132 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. A planning commission

improperly construes a requirement in the local code to adequately screen a proposed PUD from

adjacent properties when it concludes that existing open space provides adequate screening, where

it does not require the PUD to be visually shielded or obscured from the adjacent property through

any of the means specified in the definition, because it fails to give meaning to the word

“screening.” Oakleigh-McClure Neighbors v. City of Eugene, 70 Or LUBA 132 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Legislative Counsel’s decision

to renumber as ORS 215.284(1) to (6) what the legislature enacted as ORS 215.283(3) to (8) does

not change the fact that what is now codified at ORS 215.284(1) to (6) was enacted by the

legislature as part of ORS 215.283 and 215.283. ORS 215.283 is the statutory regime that applies

to non-marginal lands counties rather than marginal lands counties. Landwatch Lane County v.

Lane County, 70 Or LUBA 325 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a hearings

officer’s interpretation of provisions of the city’s development code and the city’s utility licensing

code section that apply to wireless communications facilities to exempt a wireless communication

facility tower (WCF Tower) that is proposed to be located in the public right-of-way, where all of

the applicable provisions, read together, support a conclusion that the city intended to exempt WCF

towers located in the public right-of-way from special use review under the city’s development

code. Weston Kia v. City of Gresham, 70 Or LUBA 483 (2014).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a decision maker

identifies the dictionaries relied on to clarify the meaning of ambiguous terms, it is not error to fail

to identify which edition of those dictionaries was used where the dictionary definitions are

generally consistent with the definitions of those terms in the 2002 unabridged edition of Webster’s

Third New Int’l Dictionary. Schnitzer Steel Industries Inc. v. City of Eugene, 68 Or LUBA 193

(2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. It is not error to consult

dictionary definitions of the component terms of a larger complete term, where the larger complete

term is not defined by local land use code that uses the larger complete term. Schnitzer Steel

Industries Inc. v. City of Eugene, 68 Or LUBA 193 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where it can be established

that a local government intended a technical or industry-based meaning for an ambiguous term, it

is error to instead rely on general dictionary definitions. However, it is not error to rely on general

dictionary definitions where the record does not establish a technical or industry-based meaning

was intended. Schnitzer Steel Industries Inc. v. City of Eugene, 68 Or LUBA 193 (2013).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where there is nothing in the

record to suggest the enacting city council understood the separate steps in metals recycling or the

industry understanding of the scope of activities in scrap and recycling facilities, there is no reason

to believe the enacting local government’s understanding of the scope of “scrap and dismantling

yard” was influenced by the industry’s understanding of the meaning of that term. Schnitzer Steel

Industries Inc. v. City of Eugene, 68 Or LUBA 193 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where there is no reason to

believe the enacting governing body was aware of or considered statutes and rules governing

dismantling of scrap metal processing yards when it enacted the local term “scrap and dismantling

yard,” the fact that those statutes and rules exclude metal shredders is not context for determining

whether the local term “scrap and dismantling yard” includes metal shredders. Schnitzer Steel

Industries Inc. v. City of Eugene, 68 Or LUBA 193 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the city zoning listing

of permitted uses includes “scrap and dismantling yard,” and the zoning ordinance provides that

“‘or’ may be read as ‘and’ and ‘and’ may be read as ‘or,’ if the sense requires it,” it is questionable

whether the permitted use must both accept scrap and engage in dismantling. Schnitzer Steel

Industries Inc. v. City of Eugene, 68 Or LUBA 193 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the record is such that

a reasonable decision maker could have concluded that a metal shredder is a sufficiently unique

step in metals recycling that it should be viewed as different in kind and therefore a different use

from a “scrap and dismantling yard,” but the record and dictionary definitions also would permit

a reasonable decision maker to view a metal shredder as simply a different piece of equipment to

allow more complete recycling, LUBA will conclude that the local decision maker did not

“[i]mproperly construe the applicable law” in adopting the latter view. Schnitzer Steel Industries

Inc. v. City of Eugene, 68 Or LUBA 193 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where some zoning ordinances

take a “laundry list” approach and include an exhaustive list of allowed uses and other zoning

ordinances list more generally allowed categories of uses, followed by a non-exclusive listing of

examples, it may be more appropriate to narrowly construe uses listed in zoning ordinances taking

the former approach and more broadly construe uses listed in zoning ordinances taking the latter

approach. But where a zoning ordinance is not easily categorized into either approach, and includes

elements of both, a local decision maker does not err by failing to adopt a narrow construction of

the term “scrap and dismantling yard.” Schnitzer Steel Industries Inc. v. City of Eugene, 68 Or

LUBA 193 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code definition of “lot”

as an “area of land owned by or under the lawful control and in the lawful possession of one distinct

ownership” does not have the legal effect of aggregating adjacent, separately owned areas of land.

Mackenzie v. Multnomah County, 68 Or LUBA 327 (2013).

Page 16 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm as correct a

hearings officer’s interpretation that a local code provision that requires aggregation of contiguous

parcels in common ownership for development of a “Lot of Record” in a particular zoning district

is not self-effecting. Such a code provision does not have the effect of aggregating contiguous

parcels in common ownership merely because the parcels were, for three years, included in the

particular zoning district, where no development was proposed or completed during the three-year

period when the property was included in the zoning district. Mackenzie v. Multnomah County, 68

Or LUBA 327 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm as correct a

hearings officer’s conclusion that a prior dwelling approval for one property did not aggregate

adjacent contiguous parcels in common ownership, where nothing in the local code criteria that

applied to the prior dwelling approval required aggregation in order to obtain a development

permit, and the dwelling approval was not conditioned on aggregation of the parcels. Mackenzie

v. Multnomah County, 68 Or LUBA 327 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the language of a

development code is such that it anticipates an application for declaratory ruling will be submitted

by a single owner of a single property, the development code is therefore ambiguous regarding

whether an application for a declaratory ruling is possible when the application concerns more

than one property and is ambiguous regarding whether the application must be signed by all

property owners or may be signed by any property owner. Gould v. Deschutes County, 67 Or

LUBA 1 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where competing

interpretations of a development code are equally plausible, and there is some contextual support

for the interpretation selected by a hearings officer, LUBA will conclude that the hearings officer

did not “[i]mproperly construe[] the applicable law,” within the meaning of ORS

197.835(9)(a)(D). Gould v. Deschutes County, 67 Or LUBA 1 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government errs in

construing a previous decision that deferred finding compliance with an applicable approval

criterion to final planned unit development stage to restrict the local government’s obligation to

determine whether the applicable criterion that was deferred is satisfied by only considering

whether the information required by a condition of approval was submitted, where the previous

decision makes clear that the local government completely deferred making a determination of

compliance with the applicable criterion to the final PUD stage. Willamette Oaks, LLC v. City of

Eugene, 67 Or LUBA 33 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will not consider

whether a county has authority to approve conditional zoning where the applicant modified its

proposal making conditional zoning unnecessary before the board of commissioners could make

a decision about whether the county had such authority. Warren v. Josephine County, 67 Or LUBA

74 (2013).

Page 17 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a planning

commission’s conclusion that ponds and a slough area were included within the city’s Willamette

River Greenway boundary for their important natural values, and not because the area is a

“channel” of the Willamette River, where the city’s adopted greenway boundary map and a study

the city relied on in setting the boundaries support the city’s conclusion. Willamette Oaks, LLC v.

City of Eugene, 67 Or LUBA 351 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the county zoning that

applied to recently annexed territory inside a city’s urban growth boundary provided that dwellings

were allowed only if the property “was designated for residential use by the city,” and the city took

the position in its brief that the property was not designated for residential use, LUBA will assume

that the city is correct where (1) petitioners do not argue in their petition for review that property

was designated for residential use and (2) petitioners fail to respond to the city’s argument in its

brief. Knaupp v. City of Forest Grove, 67 Or LUBA 398 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will not interpret a

statute differently than the Court of Appeals interpreted the statute, based on legislative history

that the Court of Appeals may not have considered, where LUBA cannot determine from the Court

of Appeals’ decision whether it declined to consider the legislative history under PGE v. Bureau

of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), because it found the statutory

meaning was resolved by examining the text and context, or whether the Court of Appeals simply

found the legislative history unpersuasive or not sufficient to overcome the text and context. Roads

End Water District v. City of Lincoln City, 67 Or LUBA 452 (2013).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a city

decision that an applicant’s methodology for estimating trip generation from a proposed discount

superstore is consistent with the guidelines set out in an applicable traffic generation manual,

where nothing in the manual requires that another method be used where no similarly situated store

is located in the city, or calls into question the extrapolation method that the traffic engineer used.

Neighbors for Dallas v. City of Dallas, 66 Or LUBA 36 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a city

council’s interpretation of local code provisions governing when a traffic impact analysis (TIA) is

required for a land use application that concludes that a TIA is not required where ODOT is the

road authority with jurisdiction over the affected roads, and petitioners merely disagree with the

city’s interpretation but do not explain why the interpretation is not plausible. Siporen v. City of

Medford, 349 Or 247, 259, 243 P3d 776 (2010). Neighbors for Dallas v. City of Dallas, 66 Or

LUBA 36 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. A one-half-acre size

requirement threshold for requiring PUD approval is not a mere application requirement that can

be overlooked to require PUD approval for proposals of less than one-half acre. Even if the city

intended to delete that threshold for PUD proposals near transit stations, where the threshold

clearly applies it cannot be overlooked to give effect to an intent that is inconsistent with the text

of the zoning ordinance. Mintz v. City of Beaverton, 66 Or LUBA 118 (2012).

Page 18 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. A petitioner fails to establish

that a city erroneously interpreted a county “ten percent/10,000 square foot” limitation on

commercial development in a mixed-use zone to apply to individual development proposals rather

than the larger comprehensive plan areas when a large number of small developments might be

proposed where there is textual support f or both the city’s and petitioner’s interpretation. Mintz v.

City of Beaverton, 66 Or LUBA 118 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Unless presented with some

evidence to the contrary, a city decision maker could reasonably assume that proposed residential

development will generate negligible air and noise pollution. Rosenzweig v. City of McMinnville,

66 Or LUBA 164 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the issue in an appeal

of a decision authorizing expansions to a winery under the ORS 215.283(2)(a) authority for

“commercial activities that are in conjunction with farm use” is whether that expansion exceeds

the judicially created requirement that such winery activities must be incidental and secondary

activities that are supportive of vineyards, the legislature’s treatment of wineries in different

subsequently enacted statutes that specifically authorize wineries in EFU zones is relevant, even

though those subsequently enacted statutes are not part of the statutory context of ORS

215.283(2)(a). Friends of Yamhill County v. Yamhill County, 66 Or LUBA 212 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. In resolving ambiguities in the

text of an ordinance that amends a local government’s zoning ordinance, the title of the amending

ordinance may be considered. Cassidy v. City of Glendale, 66 Or LUBA 314 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under State v. Gaines, 346 Or

160, 171-72, 206 P3d 1042 (2009), LUBA is free to consider any legislative history it considers

useful and where the available legislative history is completely consistent with the city’s

interpretation and completely inconsistent with petitioner’s interpretation, the legislative history is

useful in resolving the different interpretations. Cassidy v. City of Glendale, 66 Or LUBA 314

(2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Before it is appropriate to

consider the non-regulatory ESEE Consequences Determination portion of Goal 5 planning for a

site as context for interpreting the regulatory Resource Protection Program there must first be an

ambiguity in the Resource Protection Program. Mark Latham Excavation Inc. v. Deschutes

County, 65 Or LUBA 32 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Text of an acknowledged

Resource Protection Program may be unambiguous when read in isolation but may be ambiguous

when read in context with the ESEE Consequences Determination. Mark Latham Excavation Inc.

v. Deschutes County, 65 Or LUBA 32 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Representations by a former

owner that it only intended to mine 25 acres of an 80-acre site are insufficient legislative history

to establish that the acknowledged Resource Protection Program for the site limits mining to 25

Page 19 of 61

acres, where the programs for other sites expressly limited mining geographically but the program

for the 80-acre site zoned all 80 acres for mining and imposed no express geographical limits.

Mark Latham Excavation Inc. v. Deschutes County, 65 Or LUBA 32 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will remand a decision

where the findings are inadequate to explain why a hearings officer interprets setback provisions

that require a 100-foot setback to apply only to a proposed new kennel building and to not apply

to outdoor dog play areas. Butcher v. Washington County, 65 Or LUBA 263 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a zoning ordinance

would allow a VA outpatient clinic use as “Government Services” uses only if the use is not

“specifically listed” uses in other zoning districts, and the zoning ordinance authorizes “Medical

Health Facilities” in other zoning districts, the critical question is whether authorizing “Medical

Health Facilities” in those other zones is sufficient to “specifically list” the proposed VA outpatient

clinic use. In resolving that question, the maxim of statutory construction in ORS 174.020 that

calls for selection of a particular provision over a more general provision where they conflict is of

no particular assistance. Randazzo v. City of Eugene, 65 Or LUBA 272 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Whether a city council initially

tries to reverse a hearings official’s interpretation of the city zoning code by amending the zoning

code has no bearing on whether the city council could also effectively reverse the hearings

official’s interpretation by adopting an interpretation of its own. Randazzo v. City of Eugene, 65

Or LUBA 272 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the applicable approval

criteria require an applicant to demonstrate that noise from its operations will not create a

significant health or safety risk to nearby uses, and the evidence in the record shows that noise

from its operations will satisfy the ongoing operating standard, LUBA will reject an argument that

the applicable approval criteria require the applicant to demonstrate that total noise from all noise

sources in the area will satisfy the applicable criteria. Cottonwood Capital Property Mgmt. LLC v.

City of Portland, 65 Or LUBA 370 (2012).

1.1.1 Administrative Law – Interpretation of Law – Generally. In interpreting a zoning

standard that requires a permit applicant to “[i]nsure that natural features of the landscape, such as

land forms, natural drainageways, trees and wooded areas, are preserved as much as possible and

protected during construction,” the doctrine of the last antecedent would suggest that the obligation

that natural features be “preserved as much as possible and protected” is not limited to the period

of “construction.” Tonquin Holdings LLC v. Clackamas County, 64 Or LUBA 68 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. The terms “commercial use”

and “industrial use” are plainly general categories of uses that include more than one individual

member. Where the zoning code defines “industrial use” to include the use of land for “processing

primary, secondary, or recycled materials into a product, “that definition is sufficiently broad to

include a proposed aggregate mine where the application states that “[e]xtracted material will be

processed through a crusher to make the aggregate product desired.” Tonquin Holdings LLC v.

Clackamas County, 64 Or LUBA 68 (2011).

Page 20 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a zoning code expressly

states that “a dimensional or development standard” set out in a latter part of the zoning ordinance

applies in place of standards in an earlier part of the zoning ordinance when the earlier and latter

standards “differ,” a hearings officer erroneously interprets the zoning ordinance in concluding

that the latter standards wholly displace the earlier standards without first establishing that they

“differ.” Tonquin Holdings LLC v. Clackamas County, 64 Or LUBA 68 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. A 1996 special siting statute

for light rail projects specifically authorizes highway improvements and therefore may be used to

site a light rail extension that includes substantial highway bridge and freeway improvements.

Weber Coastal Bells v. Metro, 64 Or LUBA 221 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. It is not error to rely in part on

compensation at fair market value when property must be condemned and relocation assistance

for displaced businesses, as mitigation, when siting a regional light rail facility under a special

siting statute. Weber Coastal Bells v. Metro, 64 Or LUBA 221 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a zoning ordinance

requires that a notice of local appeal “include” “a clear and distinct identification of the specific

grounds” for appeal and that compliance with that requirement is “jurisdictional,” a local

government may insist on strict compliance with the zoning ordinance requirements of a local

notice of appeal. It is not inconsistent with the text of the zoning ordinance to conclude that a local

appeal should be dismissed where the notice of intent to appeal includes no grounds for appeal and

instead attempts to incorporate by reference legal issues stated in a different document that was

created for a different reason, without attaching a copy of that document. Lang v. City of Ashland,

64 Or LUBA 250 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a city zoning ordinance

delegates authority to a hearings official to “interpret” the zoning ordinance, the hearings official

does not err by interpreting that delegation not to authorize the hearings official to declare city

land use legislation ineffective to achieve the purpose it was clearly adopted to accomplish. Such

a request is not a request for an “interpretation.” Goodpasture Partners LLC v. City of Eugene, 64

Or LUBA 258 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a city zoning ordinance

delegates authority to a hearings official to “interpret” the zoning ordinance, without expressly

limiting such interpretations to ambiguous zoning text, that delegation nevertheless does not

authorize the hearings official to interpret unambiguous zoning text to say what it does not say.

Goodpasture Partners LLC v. City of Eugene, 64 Or LUBA 258 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city council’s interpretation

that a comprehensive plan policy that requires adequate off-street parking is fully implemented by

code off-street parking standards is plausible and LUBA will affirm the interpretation. Rosenzweig

v. City of McMinnville, 64 Or LUBA 402 (2011).

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1.1.1 Administrative Law – Interpretation of Law – Generally. In conducting the alternatives

analysis required under the local code for a proposal to develop access to a property over an

unimproved right-of-way in an environmentally sensitive zone, a hearings officer correctly limits

the alternatives analysis required under the local code to those alternatives that provide access to

the location of the approved home site on the subject property, and correctly rejects alternatives

that provide access to potential home sites in different locations on the property that have not

received county approval. Mackenzie v. City of Portland, 63 Or LUBA 148 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under DEQ’s noise regulations

a wind energy generation facility may add 10 decibels to the background ambient noise level. In

determining whether the facility violates that noise standard the operator may assume that the

background ambient noise level is 26 decibels or actually measure the background ambient noise

level and the operator’s selection of the assumed 26 decibel background ambient noise level at one

measuring location and time does not preclude the operator from selecting actual measured

background ambient noise level at other measurement locations and times. Mingo v. Morrow

County, 63 Or LUBA 357 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under Flying J. Inc. v. Marion

County, 49 Or LUBA 28, 36-37, aff’d, 201 Or App 99, 117 P3d 1027 (2005), where the text of an

ordinance that adopts zoning designation amendments expresses a clear intent that the prior zoning

for a parcel be retained but the map attached to the ordinance shows a change in zoning, that

conflict is resolved in favor of the text. Turner v. Jackson County, 62 Or LUBA 199 (2010).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where one sentence of a zoning

ordinance provides that “any dispute” concerning the zoning of property is to be resolved by

reference to the official zoning map, but that sentence appears immediately after a sentence that

states that initial zoning boundary determinations are to be made based on maps generated by the

local government’s GIS system, those sentences should be read together to require that any

disputes that arise based on the GIS maps or facts that arise after the zoning ordinance was adopted

be resolved in favor of the official zoning map. But those sentences of the zoning ordinance do not

require that a text/map conflict in the enacting zoning ordinance itself be resolved in favor of the

official zoning map, where it is clear the new zoning shown for a property on the official zoning

map was a mistake, and the text of the enacting ordinance clearly states that the zoning of the

property was not changed by the ordinance. Turner v. Jackson County, 62 Or LUBA 199 (2010).

1.1.1 Administrative Law – Interpretation of Law – Generally. An interpretation of a city

landslide hazard regulation that gives no effect to the main clause of the regulation and only gives

effect to the subordinate clause arguably runs afoul of the interpretive principle embodied in ORS

174.010, which prohibits interpreting statutes in a way that omits statutory language that has been

included in the statute. Gravatt v. City of Portland, 62 Or LUBA 382 (2011).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the Goal 4 rule

incorporates a definition in the Oregon Structural Specialty Code, the version of the Code in effect

when the Goal 4 rule was adopted controls, not the Code as subsequently amended, to avoid

running afoul of constitutional prohibitions on delegating legislative authority. Central Oregon

Landwatch v. Jefferson County, 62 Or LUBA 443 (2011).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where one section of a zoning

ordinance permits the city engineer to approve more than one driveway access to lots and parcels

“subject to access requirements,” and another section of the zoning ordinance setting out the city’s

access requirements generally prohibits direct access to arterials where a lot or parcel already has

access to a lower category roadway, a city correctly denies the request for the direct arterial access.

In that case the two sections of the zoning ordinance do not conflict; the contingent authority to

grant more than one driveway is simply limited by the section setting out access requirements.

Athletic Club of Bend, Inc. v. City of Bend, 61 Or LUBA 349 (2010).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government’s

interpretation of its ordinance is not “inconsistent” with the language of the ordinance, within the

meaning of ORS 197.829(1)(a), if the interpretation 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 606, 859 P2d 1143 (1993). Scovel v. City of Astoria, 60 Or LUBA 371

(2010).

1.1.1 Administrative Law – Interpretation of Law – Generally. In determining whether a local

government’s interpretation of local land use law is inconsistent with the “express language” of

the local land use law, LUBA and the appellate courts apply the statutory construction principles

in ORS 174.010, which preclude interpretations that insert or delete words. Scovel v. City of

Astoria, 60 Or LUBA 371 (2010).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government’s

interpretation of its own land use laws to allow the planning commission complete discretion to

grant an unlimited number of one-year permit approval extensions will not be affirmed under ORS

197.829(1), where the local government’s interpretation adds language that is not present in the

local land use law, and the interpretation defeats the purpose of the local land use law, which is to

limit the life of a permit decision that is not acted on. Scovel v. City of Astoria, 60 Or LUBA 371

(2010).

1.1.1 Administrative Law – Interpretation of Law – Generally. Land use regulations that

simply require that permit applications comply with “applicable” provisions in the land use

regulations are frequently ambiguous, since they require an unguided review of the land use

regulations to determine which provisions are “applicable.” Siporen v. City of Medford, 59 Or

LUBA 78 (2009).

1.1.1 Administrative Law – Interpretation of Law – Generally. The applicability of a local

government’s land use regulations, viewed in isolation, may be unambiguous. However, when

those same land use regulations are viewed in context with others parts of the local government’s

land use regulations, the applicability of those land use regulations may be qualified or limited.

Siporen v. City of Medford, 59 Or LUBA 78 (2009).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government

misinterprets an ordinance that implements the OAR 660-023-0090(8) safe harbor provision that

allows alterations to occupy up to 50 percent of the “width” of certain riparian corridors to mean

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alterations that take up less than 50 percent of the entire riparian area are permitted. The proper

interpretation is that alterations may only occur within the 50 percent of the riparian corridor

farthest from the river. ODFW v. Josephine County, 59 Or LUBA 174 (2009).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a code provision

prohibits development approval for property that is not in full compliance with all code

requirements and prior approvals, unless the approval results in the property coming into full

compliance, a hearings officer does not err in interpreting the code to require the applicant to apply

for all permits and approvals necessary to correct all code or permit violations as part of the

development application, and to reject as insufficient the applicant’s willingness to seek future

permit approvals. Reeder v. Multnomah County, 59 Or LUBA 240 (2009).

1.1.1 Administrative Law – Interpretation of Law – Generally. A street connectivity standard

that requires that development must “include street connections to any streets that abut, are

adjacent to, or terminate at the development site” is not correctly interpreted to allow a

development proposal that would extend an abutting street a short distance into the development

and then terminate the street without connecting it to an adjoining street. Konrady v. City of

Eugene, 59 Or LUBA 466 (2009).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings official does not err

by finding that a street connectivity standard that requires that development street systems not

create “excessive travel lengths” is violated by a subdivision proposal that will result in eleven

existing residents and the residents of three of the proposed lots having to drive one quarter of a

mile out of direction to make certain trips. While the hearings official likely could have adopted a

more permissive reading of the standard, it was not error to adopt the strict interpretation that the

hearings official adopted. Konrady v. City of Eugene, 59 Or LUBA 466 (2009).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will remand a decision

determining that a conditional use is inconsistent with one of seven purposes of the underlying

zone, where it is not clear whether the county must address each of the seven purposes and

determine whether the proposed use is, on balance consistent with those purposes, or whether

inconsistency with a single zone purpose is sufficient to deny the application, and the county’s

decision does not address the issue. Davis v. Polk County, 58 Or LUBA 1 (2008).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government does not

misconstrue its ordinance when it interprets the term “contiguous” to mean lands adjacent to and

within 2000 feet of the subject property. Hermanson v. Lane County, 56 Or LUBA 433 (2008).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government does not

err in determining that a holder of an option to purchase property is not an “owner” for purposes

of the local code definition of owner where the definition restricts owners to legal title holders or

entities purchasing property under a written contract. Vilks v. Jackson County, 56 Or LUBA 451

(2008).

1.1.1 Administrative Law – Interpretation of Law – Generally. A code provision allowing a

“property owner” to request a declaratory ruling related “to the use of the owner’s property” does

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not permit a neighborhood association to request a declaratory ruling related to the use of property

that the association does not own. Cushman v. City of Bend, 55 Or LUBA 234 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. Remand is necessary where

entitlement to initiate a declaratory ruling request rests on whether the applicant is the “permit

holder,” use of the subject property was arguably authorized by a number of different permits, and

the hearings officer rejected a neighborhood’s association’s claim to be a “permit holder” without

determining which permits are at issue and which persons hold those permits. Cushman v. City of

Bend, 55 Or LUBA 234 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. Interpretations of a local code

provision offered for the first time in a response brief at LUBA are not interpretations made by the

local government. Munkhoff v. City of Cascade Locks, 54 Or LUBA 660 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under Maxwell v. Lane County,

178 Or App 210, 35 P3d 1128 (2001), adh’d to as modified, 179 Or App 409, 40 P3d 532 (2002),

if directly applicable legislation expressly requires that an analysis of existing lots or parcels must

be limited to an analysis of legally created lots or parcels, then it follows that only lawfully created

lots or parcels can be considered. However, even if the directly applicable legislation does not

expressly require that lots or parcels have been legally created, that requirement may be found in

related enactments and the legislative context in which the directly applicable legislation appears.

Reeves v. Yamhill County, 53 Or LUBA 4 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. When the local code requires a

comparison to densities suggested in the comprehensive plan but the decision does not address any

suggested densities, remand is necessary to determine if the comprehensive plan includes any

suggested densities and, if so, either address them or explain why they need not be addressed.

Coquille Citizens for Resp. Growth v. City of Coquille, 53 Or LUBA 186 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. When a code provision

regarding riparian corridors could plausibly be required to be satisfied at the stage of the challenged

decision or at a later stage, the issue was raised below, and the decision does not address the issue,

the decision must be remanded for the local government to address the issue. Coquille Citizens for

Resp. Growth v. City of Coquille, 53 Or LUBA 186 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. When a local government

imposes a condition of approval based on a code provision regarding excessive demand created by

a proposed development, but the local government does not find that the proposed development

will cause excessive demand, ignores the developer’s proposed interpretation of excessive

demand, and does not provide its own interpretation, the decision must be remanded. PacWest II,

Inc. v. City of Madras, 53 Or LUBA 241 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the text of a city’s

development code only requires that the city not provide certain services in the absence of an

annexation agreement, the city’s interpretation of its code to allow it to require an annexation

agreement at the time of partition approval, while not required by the text of the development code,

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is not inconsistent with the text of the development code. Wickham v. City of Grants Pass, 53 Or

LUBA 261 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city’s interpretation of a

development code provision to allow it to require execution of an annexation agreement at the time

of partition, rather than waiting until the property is developed, is consistent with contextual

development code provisions that require annexation agreements at the time of partition approval

without regard to whether development is proposed at the time of partition approval. Wickham v.

City of Grants Pass, 53 Or LUBA 261 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county does not err by

interpreting a development code approval criterion that requires that proposed uses must be shown

to be compatible with surrounding uses to require consideration of only the existing surrounding

uses and not potential future uses. Clark v. Coos County, 53 Or LUBA 325 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county does not err by

interpreting a development code compatibility standard for the first time in its written decision,

where the interpretation was not beyond the range of interpretations that could reasonably have

been anticipated during the evidentiary phase of the county’s proceedings, and petitioners do not

demonstrate (1) that there is specific evidence that they could present that differs in substance from

the evidence that they already submitted or (2) that the new evidence is directly responsive to the

county’s interpretation. Gutoski v. Lane County, 155 Or App 369, 963 P2d 145 (1998). Clark v.

Coos County, 53 Or LUBA 325 (2007).

1.1.1 Administrative Law – Interpretation of Law – Generally. Even assuming a local

government must evaluate the combined effect of multiple misstatements in the application that

individually are immaterial, in determining whether to refer a revocation request to a hearing,

where the alleged misstatements of fact have no relation to each other, there can be a “combined

effect” to evaluate. Emami v. City of Lake Oswego, 52 Or LUBA 18 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county’s interpretation that

a comprehensive plan policy, which implements Statewide Planning Goal 18 (Beaches and Dunes)

and provides criteria for a determination whether development is appropriate in a beaches and

dunes area, requires the county to address only adverse geologic or geotechnical impacts and not

general development issues, is consistent with the text and context of the policy and the goal.

Borton v. Coos County, 52 Or LUBA 46 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county’s interpretation that

a comprehensive plan policy, which implements Statewide Planning Goal 7 (Natural Disasters and

Hazards), requires regulation of development in known areas potentially subject to natural

disasters and is aimed at reducing risks to life and property that are caused by natural hazards, is

not applicable in the context of a determination whether development is appropriate in a beaches

and dunes area, pursuant to a comprehensive plan policy that implements Statewide Planning Goal

18 (Beaches and Dunes), which is aimed at reducing impacts that may be caused by the proposed

development. Borton v. Coos County, 52 Or LUBA 46 (2006).

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1.1.1 Administrative Law – Interpretation of Law – Generally. A county grading permit

standard stating that grading activities “shall also occur pursuant to” the standards of the local

sanitary sewer agency does not incorporate those standards into the code or require that the county

determine whether the grading permit complies with the agency’s standards. Angius v. Washington

County, 52 Or LUBA 222 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where no county approval was

required to create parcels of more than 20 acres in a transitional timber zone if the parcel was to

be used for forest use and the question is whether a parcel that was created 16 years ago was created

for forest use, the fact that the parcel was used only for growing trees for 16 years is sufficient to

show the parcel was created for forest use and it does not matter that no trees were harvested during

that 16-year period. Neal v. Clackamas County, 52 Or LUBA 248 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. The broad statutory definition

of “owner” under statutory lot-of-record provisions, which includes certain relatives of the fee title

owner as the owner, does not apply in determining whether parcels are part of the same “tract” for

purposes of approving a forest template dwelling. Neal v. Clackamas County, 52 Or LUBA 248

(2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. As a general rule there is no

reason why a local government could not interpret an “orderly development” land division

criterion to impose a more stringent standard than Oregon Department of Transportation’s standard

that the performance of failing intersections not be worsened by a proposal. However, where such

an interpretation appears to be inconsistent with other city criteria and those apparent

inconsistencies are not addressed in the decision maker’s findings, LUBA will reject the

interpretation as incorrect. Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government’s authority

to interpret the scope and meaning of land use regulations adopted to implement statewide

planning goals and administrative rules is constrained by ORS 197.829(1)( d), which requires

LUBA to reverse an interpretation of a local regulation contrary to the goal, statute or rule it

implements, notwithstanding the acknowledged status of that regulation. Central Oregon

Landwatch v. Deschutes County, 52 Or LUBA 582 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under Friends of Neabeack

Hill v. City of Philomath, 139 Or App 39, 911 P2d 250 (1996), LUBA may apply ORS

197.829(1)(d) to review a local government’s interpretation of an acknowledged code provision

that implements a statewide planning goal, statute or rule only if the code provision is ambiguous.

If the code provision is subject to more than one reasonable interpretation, one of which is

consistent with the goal, statute or rule implemented, the local government cannot choose an

interpretation that is inconsistent with the goal, statute or rule implemented. Central Oregon

Landwatch v. Deschutes County, 52 Or LUBA 582 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the local code fire siting

standards require that secondary fuel breaks (i.e., a fuel break extending 130 feet in all directions

around structures) “or their equivalent” apply to new residences, the county does not err in

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determining that secondary fuel breaks are not required in the riparian setback area, where the

findings adopted in support of the riparian vegetation setback regulations acknowledge that

riparian vegetation provides a sufficient natural barrier against the spread of fire. Lovinger v. Lane

County, 51 Or LUBA 29 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. The Oregon Laws 1987, chapter

737, section 3 standard requiring that property have “sewer and water lines paid for and installed

by the property owner” is not correctly interpreted to require that the property have a “significant

amount” of sewer and water lines paid for and installed by the property owner. Leupold & Stevens,

Inc. v. City of Beaverton, 51 Or LUBA 65 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. The Oregon Laws 1987, chapter

737, section 3 standard requiring that property have “sewer and water lines paid for and installed

by the property owner” is not correctly interpreted to require that the sewer and water lines also be

installed off-site. Leupold & Stevens, Inc. v. City of Beaverton, 51 Or LUBA 65 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Oregon Laws 1987, chapter

737, section 3 does not unambiguously provide that lateral sewer and water lines may qualify as

“sewer and water lines paid for and installed by the property owner “and thus satisfy one of the

law’s requirements to qualify for protection from nonconsensual annexation. Therefore, resort to

legislative history is appropriate. Leupold & Stevens, Inc. v. City of Beaverton, 51 Or LUBA 65

(2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. The Oregon Laws 1987, chapter

737, section 3 standard requiring that property have “sewer * * * lines paid for and installed by

the property owner” is not satisfied where the property owner merely relocated sewer lines that

were originally installed and paid for by a special district. Leupold & Stevens, Inc. v. City of

Beaverton, 51 Or LUBA 65 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the definition of “home

occupation” in the local code includes a business activity that is conducted in a dwelling or

accessory building normally associated with the primary uses allowed in the underlying zone, a

local government need not determine whether the proposed business is normally associated with

the permitted uses allowed in the zone. Watts v. Clackamas County, 51 Or LUBA 166 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the local noise standard

applicable to home occupations provides that the proposed home occupation “shall not create noise

that, when measured off the subject property, exceeds the greater of 60 dba or the ambient noise

level,” the hearings officer errs in interpreting that provision to allow noise spikes in excess of 60

dba. Watts v. Clackamas County, 51 Or LUBA 166 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local home occupation

standard prohibits external evidence of a home occupation, an interpretation of that standard that

allows a vehicle related to the home occupation to traverse the subject property to access an

accessory structure in which the vehicle will be stored is reasonable. Watts v. Clackamas County,

51 Or LUBA 166 (2006).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where access from a county

road to a home occupation is obtained via a driveway located on the pole portion of the subject

property, the county does not err in determining that a local standard requiring that “the subject

property have frontage on, and direct access from, a constructed public, county or state road” is

satisfied, notwithstanding that the driveway crosses an existing easement providing access to

neighboring properties. Watts v. Clackamas County, 51 Or LUBA 166 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. When the approval criterion

calls for a tree survey that “provides the location of all trees” of certain specifications, the local

government may not use a one-acre sample to extrapolate for a 70-acre site without a showing that

it is representative of the entire site. Butte Conservancy v. City of Gresham, 51 Or LUBA 194

(2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a city is required by the

Metro Code to prepare and release a report prior to annexation that describes how the annexation

is consistent with agreements that the city is not a party to, but the Metro Code review criteria that

govern review of the annexation on appeal do not require that the annexation be consistent with

agreements the city is not a party to, Metro may not deny the annexation ordinance based on the

city’s failure to comply with the report requirement without explaining why that violation of the

report requirements has the same status as a violation of one of the review criteria and provides a

basis for denial. City of Damascus v. Metro, 51 Or LUBA 210 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Some caution is warranted in

determining the intended scope of a term based on dictionary definitions, given the descriptive and

all-inclusive nature of modern reference dictionaries. In many cases, the text and context of the

code term may indicate that the governing body did not intend the term to encompass all possible

dictionary meanings. Horning v. Washington County, 51 Or LUBA 303 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a variance criterion

requires the city to find that “public need” outweighs “adverse impacts” of developing wetlands

and a party argues there is no market demand for the commercial development that the variance

would allow, the city must address in its findings the role, if any, that market demand plays under

the variance criterion and explain why the public need, as the city interprets those words,

outweighs the identified potential adverse impacts. Neighbors 4 Responsible Growth v. City of

Veneta, 51 Or LUBA 363 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. The legislature’s use of

different terms to describe the actions required to have standing to appeal to LUBA is some

indication that the legislature intended to impose different standing requirements. Century

Properties, LLC v. City of Corvallis, 51 Or LUBA 572 (2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. To have standing to appeal a

post-acknowledgment plan amendment under ORS 197.620(1) an appellant must have

“participated” during the local proceedings, whereas to have standing to appeal under ORS

197.830(2) an appellant must have “appeared.” The dictionary definitions of “participated” and

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“appeared” suggest more is required to participate than to appear, but those definitions do not

identify what more is required. Century Properties, LLC v. City of Corvallis, 51 Or LUBA 572

(2006).

1.1.1 Administrative Law – Interpretation of Law – Generally. A comprehensive plan policy

that merely describes the county’s resource designations is not a mandatory tentative subdivision

plan approval criterion, and the county was therefore not required to adopt findings addressing it.

Doob v. Josephine County, 50 Or LUBA 209 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where “tract,” “lot” and

“parcel” are defined terms and a comprehensive plan policy uses the undefined term “ownership,”

a county decision that applies that policy as though “ownership” meant the same thing as “lot” or

“parcel” but does not explain why must be remanded so that the county can explain its

interpretation of the undefined term. Just v. Lane County, 50 Or LUBA 399 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. A general code standard

requiring streets to be improved with curbs and other facilities “if required” is not properly

interpreted to require curbs for a private street, where the specific standards governing private

streets do not require curbs. Paterson v. City of Bend, 49 Or LUBA 160 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where an interpretation of an

ambiguous code standard that bars variances in some circumstances is needed to explain why the

local government believes that standard did not bar an approved variance, and the appealed

decision does not include either an express or implied interpretation of the code standard, remand

is required. Doyle v. Coos County, 49 Or LUBA 574 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. Although LUBA is authorized

to interpret ambiguous local land use legislation in the first instance if the local government fails

to adopt a needed interpretation, where interpreting the land use legislation in a way that would be

consistent with the local government’s decision is problematic, LUBA will not attempt to interpret

the legislation in the first instance. Doyle v. Coos County, 49 Or LUBA 574 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. If a local government wishes

to interpret and apply traditional variance standards differently than those standards have

traditionally been interpreted and applied, it must articulate an interpretation of those standards

that is sufficient for review. Doyle v. Coos County, 49 Or LUBA 574 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government does not

lose its inherent authority to interpret or reinterpret an ambiguous code provision in a quasi-judicial

context when it decides to initiate a legislative code amendment process to resolve the code

ambiguity. Bemis v. City of Ashland, 48 Or LUBA 42 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. While ORS 227.178(3), as

interpreted in Holland v. City of Cannon Beach, 154 Or App 450, 926 P2d 701 (1998), prohibits a

local government from changing its position with respect to the applicability of approval standards

during the proceedings on a permit application, neither the statute nor Holland prohibit a local

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government from reinterpreting the meaning of indisputably applicable approval standards. Bemis

v. City of Ashland, 48 Or LUBA 42 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. References in contextual laws

that the Metropolitan Service District is to work cooperatively and use non-mandatory approaches

in requiring action by cities and counties do not provide much assistance in determining whether

a statute that specifically authorizes the Metropolitan Service District to require that city and

county comprehensive plans and land use regulations be amended authorizes Metro to mandate

such changes in a particular case. City of Sandy v. Metro, 48 Or LUBA 363 (2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. Express statutory authority for

the Metropolitan Service District to take over local services if properly authorized to do so and to

require changes in city and county land use regulations to address particular housing needs,

patterns and practices of improper decision making does not necessarily mean that other statutes

do not grant the Metropolitan Service District general authority to mandate changes in city and

county land use regulations in other circumstances. City of Sandy v. Metro, 48 Or LUBA 363

(2005).

1.1.1 Administrative Law – Interpretation of Law – Generally. A comprehensive plan citizen

participation provision that requires appointment of a three-person citizens’ advisory committee

when the planning commission is considering a major change to the local government’s land use

regulations is not correctly interpreted to give the planning commission unlimited discretion in

deciding what changes constitute major changes. Dobson v. City of Newport, 47 Or LUBA 267

(2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city code that requires

planned development proposals to preserve trees “to the greatest degree possible” does not require

that the applicant fundamentally change the nature of the application to maximize tree

preservation. Frewing v. City of Tigard, 47 Or LUBA 331 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city may not interpret a code

exception for tree cutting permits to exempt a subdivision from a separate local code requirement

for a tree protection plan, where the exemption for tree cutting permits has nothing to do with the

separate tree protection plan requirement. Frewing v. City of Tigard, 47 Or LUBA 331 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city does not err by

interpreting a code requirement that 20 percent of the site for a planned development be landscaped

to allow an applicant to include areas of the site that will be included in common open space and

left in their natural state. Frewing v. City of Tigard, 47 Or LUBA 331 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city council’s conclusion that

a tennis facility is accessory to residential use of a property is inconsistent with the text and context

of its code, where the code defines an accessory use as uses incidental and subordinate to the

primary use, and a city interpretation relies on the seasonal and nonprofit characteristics of the

tennis facility and ignores other characteristics that demonstrate that the tennis facility is of much

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greater scale and intensity than the residential uses located on the property. McCormick v. City of

Baker City, 46 Or LUBA 50 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code requirement that

a house could only be allowed in a floodplain if “no alternative exists on the subject property which

would allow the structure to be placed outside of the flood plain,” does not require that an applicant

reconfigure the proposed house or reduce the size of its footprint to locate the house outside the

floodplain. Bonnett v. Deschutes County, 46 Or LUBA 318 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will affirm a city

decision that interprets a comprehensive plan community park policy to describe a type of park

and not to impose approval criteria for particular park developments, where relevant plan policies

describe four categories of parks within the city, but neither the plan nor the zoning code includes

minimum standards for the development of parks. Monogios and Co. v. City of Pendleton, 46 Or

LUBA 356 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the challenged decision

does not explain why the area of large covered porches attached to approved dwellings was not

included in calculating the maximum “buildable area,” and relevant code definitions suggest that

such accessory structures are part of “buildings,” remand is necessary to interpret the code and

determine whether such structures should be included in calculating the buildable area. Friends of

the Metolius v. Jefferson County, 46 Or LUBA 509 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a county code defines

“owner” to be the “legal owners(s) of record as shown on the tax rolls of the County,” an

interpretation that the fee simple owners are not owners because the value of the fee ownership is

minimal in comparison to the value of the easement that crosses that property is not sustainable.

Baker v. Washington County, 46 Or LUBA 591 (2004).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a standard requires that

a developer design a subdivision to “minimize” its impact on significant natural areas, and a

hearings officer interprets that standard not to limit the developer to the minimum number of lots

allowed in the zone, that interpretation is reasonable, where the text and context of the standard

show that the “minimization” envisioned by the standard is modification to site design, and not to

the number of lots in the development. Neketin v. Washington County, 45 Or LUBA 495 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. Local code requirements that a

recreational use “shall not be the primary enterprise” of the property and that the recreational use

must “be subordinate to the commercial agricultural operation in scope, scale and impact,” need

not be interpreted to require that the commercial agricultural use generate more income than the

recreational use. A county’s interpretation of those code requirements to necessitate comparison

of the physical characteristics of the recreational use and the commercial farm use instead is not

inconsistent with the language of the code. Underhill v. Wasco County, 45 Or LUBA 566 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer’s

interpretation of a local code to conclude that a “wholesale nursery” is properly viewed as an

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“agricultural use” is consistent with the text of the code’s definition of “agricultural use,” where

the term is expressly defined to include “horticultural use.” Lorenz v. Deschutes County, 45 Or

LUBA 635 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government

interpretation that the subject property constitutes a “neighborhood” for the purpose of determining

whether a proposed development is consistent with a plan policy that requires maintaining existing

residential density levels within existing neighborhoods is not subject to deference under ORS

197.829(1) because it is inconsistent with the definition of “neighborhood” set out in the zoning

ordinance and the dictionary definition of that term. Roberts v. Clatsop County, 44 Or LUBA 178

(2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government

interpretation that defines “existing residential density levels” as the maximum density allowed in

the most intensive residential zoning district within the neighborhood is inconsistent with the text

and apparent purpose of a policy that requires the local government to maintain existing residential

density levels in established neighborhoods, because it does not take into account the majority of

the property in the neighborhood that is zoned and developed at substantially lower density levels.

Roberts v. Clatsop County, 44 Or LUBA 178 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where LUBA and the Court of

Appeals have already decided that local ordinance provisions require that an applicant for a lot

line adjustment demonstrate that the proposed use of the property after the lot line adjustment is

served by adequate public facilities and is compatible with comprehensive plan policies, a city

may not interpret those same provisions in such a way as to relieve an applicant of that burden.

Robinson v. City of Silverton, 44 Or LUBA 308 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city did not err in interpreting

a local code criterion that requires that “walkways” connect to “areas of the site such as * * *

adjacent streets” to require that petitioner deed an easement to the city for a sidewalk crossing in

front of petitioner’s building through the center of its property in order to connect with adjacent

streets on each side, where the city’s definition of “walkway” requires that walkways be

“accessible to the public.” Hallmark Inns v. City of Lake Oswego, 44 Or LUBA 605 (2003).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local governing body’s

interpretation of its ordinance to allow it to impose conditions of approval when a dwelling is

approved through the county’s conditional use process, to address the impacts that the dwelling

may have on big game habitat, is within the interpretive discretion afforded by ORS 197.829(1)

and will be afforded deference by LUBA. Botham v. Union County, 43 Or LUBA 263 (2002).

1.1.1 Administrative Law – Interpretation of Law – Generally. The noise standard at OAR

340-034-0035(1)(b)(B) applies to a proposal to expand an existing aggregate mining site onto a

neighboring property that has not been used for either industrial or commercial purposes within

the 20-year period immediately preceding the application to mine the property. Morse Bros., Inc.

v. Linn County, 42 Or LUBA 484 (2002).

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1.1.1 Administrative Law – Interpretation of Law – Generally. The noise standard at OAR

340-034-0035(1)(b)(B) applies to a proposal to expand an existing aggregate mining site onto a

neighboring property that has not been used for either industrial or commercial purposes within

the 20-year period immediately preceding the application to mine the property. Morse Bros., Inc.

v. Linn County, 42 Or LUBA 484 (2002).

1.1.1 Administrative Law – Interpretation of Law – Generally. A planning director’s

interpretation that the base point from which a building height is calculated is established by

determining the elevation of property after fill has been placed on the property is correct where the

context makes it clear that some manipulation of the elevation may be done so long as the fill has

been placed pursuant to approved grading plans. Tirumali v. City of Portland, 41 Or LUBA 231

(2002).

1.1.1 Administrative Law – Interpretation of Law – Generally. A governing body’s

interpretation of a local provision is adequate for review where its findings articulate or

demonstrate the governing body’s understanding of the provision to a degree sufficient to resolve

the issues raised in the petition for review. Huff v. Clackamas County, 40 Or LUBA 264 (2001).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a county ordinance

requires that “major service activity areas” be “oriented away from existing dwellings,” it is

reasonable and correct to interpret the ordinance to be satisfied by modification and conditions that

direct impacts of service activities away from existing dwellings. Knudsen v. Washington County,

39 Or LUBA 492 (2001).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the first clause of a local

code provision requires that design review comply with a set of criteria used to rezone property

and the second clause requires that design review also comply with those criteria addressed at the

time the subject property was rezoned, a hearings officer’s interpretation limiting design review to

the subset of criteria addressed at the time the property was rezoned fails to give effect to the first

clause of the code provision, and is therefore not reasonable and correct. Blazer Construction, Inc.

v. City of Eugene, 36 Or LUBA 391 (1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government errs in

declaring that an intergovernmental agreement no longer controls whereby the terms of that

agreement it governs until specified recommendations are implemented, and the record shows that

the recommendations have been only partially implemented. City of Salem/Marion County v. City

of Keizer, 36 Or LUBA 262 (1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. An interpretation of a zoning

ordinance that shifts the burden of demonstrating compliance with minimum lot size approval

standards to opponents of the application is erroneous. Wood v. Crook County, 36 Or LUBA 143

(1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a code provision

requires an applicant for expansion of a golf course on EFU-zoned land to demonstrate that

alternative urban sites are not available and an applicant applies to expand an existing golf course,

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a hearings officer’s interpretation of the provision as limiting the requisite alternative site analysis

to locations where the existing golf course can expand is reasonable and correct. DLCD v. Jackson

County, 36 Or LUBA 88 (1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city council’s implicit

interpretation that a planning director’s letter is not an “action or ruling” that may be appealed to

the planning commission is inadequate for review, when LUBA cannot determine the legal basis

for the city council’s determination. Schultz v. City of Forest Grove, 35 Or LUBA 712 (1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. The term “farm use” as defined

in ORS 215.203(2)(a) is not a “delegative term,” and a county commits no error by failing to adopt

county legislation to clarify the meaning in advance of making a decision about whether a

particular use qualifies as a “farm use.” Best Buy in Town, Inc. v. Washington County, 35 Or LUBA

446 (1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. In determining whether a

particular use qualifies as an “other agricultural or horticultural use,” as that phrase is used in ORS

215.203(2)(a), there is no requirement that a county hearings officer develop a list of salient

characteristics of such uses. Best Buy in Town, Inc. v. Washington County, 35 Or LUBA 446

(1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. A proposal to site a drug and

alcohol recovery facility within a single-family dwelling in a residential zone must be permitted

when the relevant code provision permits outright those activities that are conducted in buildings

“designed or used for the occupancy of one family” and the proposed recovery facility is to be

located in such a structure. Recovery House VI v. City of Eugene, 35 Or LUBA 419 (1999).

1.1.1 Administrative Law – Interpretation of Law – Generally. A legislative enactment

supersedes all of an administrative rule only if the enactment specifically and comprehensively

contradicts all or nearly all of the critical components of an administrative rule. Northwest

Aggregates Co. v. City of Scappoose, 35 Or LUBA 30 (1998).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 222.170(4) applies only

to annexations conducted under ORS 222.170(1) and is not applicable to annexations conducted

under ORS 222.125. Northwest Aggregates Co. v. City of Scappoose, 34 Or LUBA 498 (1998).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code requires

that sewer facilities be “available” as a condition of approval for annexation, the local

government’s interpretation of the “available” criterion as being met where extension of sewer

services is feasible within the current planning period is not clearly wrong. Northwest Aggregates

Co. v. City of Scappoose, 34 Or LUBA 498 (1998).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA’s analysis of a local

government’s interpretation of a local ordinance is not limited to the text and context of the

provisions, but may also consider their purpose, and the effects thereon of a literal interpretation.

Recovery House VI v. City of Eugene, 34 Or LUBA 486 (1998).

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1.1.1 Administrative Law – Interpretation of Law – Generally. A code requirement that each

lot in a subdivision be approved with provisions for sewage disposal is reasonably interpreted as

not applying to lots that are not to be developed. Rochlin v. City of Portland, 34 Or LUBA 379

(1998).

1.1.1 Administrative Law – Interpretation of Law – Generally. There is no basis for applying

the doctrine of unique circumstances to local land use decisions. If local regulations make failure

to timely file an appeal a jurisdictional defect, LUBA has no authority to develop an equitable

remedy that overcomes such a defect. Mountain Gate Homeowners v. Washington County, 34 Or

LUBA 169 (1998).

1.1.1 Administrative Law – Interpretation of Law – Generally. Amendments to ORS

197.830(6) that shorten the statutory deadline for filing a motion to intervene in a LUBA appeal

impair the existing right to participate in an appeal. Thus, the statute applies prospectively in the

absence of an expression of legislative intent to the contrary. Gutoski v. Lane County, 33 Or LUBA

866 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. Generally, where the legislature

fails to express any intention concerning the retroactivity of a statute, the statute applies only

prospectively if the statute will impair existing rights, create new obligations or impose additional

duties with respect to past transactions. Gutoski v. Lane County, 33 Or LUBA 866 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. Although LUBA may interpret

a local ordinance, it is not required to do so. Opp v. City of Portland, 33 Or LUBA 654 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where local code includes two

different definitions of “campgrounds,” a county decision approving a campground must address

both definitions and determine whether one or both definitions apply and whether the proposed

use complies with whatever definition applies. Donnelly v. Curry County, 33 Or LUBA 624

(1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. The text and context of ORS

215.750 establish that a governing body may impose standards in addition to those in ORS

215.750. Evans v. Multnomah County, 33 Or LUBA 555 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. While LUBA does not formally

defer to agency interpretations, it may properly look to agency interpretations for guidance in

interpreting agency rules. DLCD v. Jackson County, 33 Or LUBA 302 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. The word “shall,” used in a

regulation, expresses what is mandatory. A local government interpretation to the contrary is

indefensible and will not be affirmed by LUBA. DLCD v. Tillamook County, 33 Or LUBA 163

(1997).

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1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 215.705 precisely states

comprehensive criteria that govern when a lot-of-record dwelling may be allowed. Under ORS

183.400 and ORS 215.304(3), OAR 660-33-020(4) cannot be interpreted to prohibit what the

statute otherwise allows. DeBates v. Yamhill County, 32 Or LUBA 276 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 215.705 cannot be

interpreted or supplemented by LCDC rule to provide that the reconfiguration of a tract through

the sale of one or more lots extinguishes the right to build a dwelling on at least one of the lots of

record within the original tract. DeBates v. Yamhill County, 32 Or LUBA 276 (1997).

1.1.1 Administrative Law – Interpretation of Law – Generally. Lot-of-record provisions should

be interpreted as limited in their application to property owners who had a reasonable expectation

in 1985 of a right to build a home. Walz v. Polk County, 31 Or LUBA 363 (1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. The term “present owner,” as

it is used in ORS 215.705(1)(a), refers to a land sale contract vendee, not a land sale contract

vendor. Walz v. Polk County, 31 Or LUBA 363 (1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. The word “owner,” as it is used

in ORS 215.705, is not defined, and when applied to land generally, has no fixed and inflexible

meaning. Walz v. Polk County, 31 Or LUBA 363 (1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. A requirement that a significant

amount of firearms training occur at a firearms training facility is not demanding enough under

OAR 660-06-025(4)(m), because it places no limitation on other activities not directly related to

or justified by firearms training. J.C. Reeves Corp. v. Washington County, 31 Or LUBA 115

(1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will not defer to the

opinion of an agency official, given informally after the adoption of an administrative rule, as to

the meaning of that rule. J.C. Reeves Corp. v. Washington County, 31 Or LUBA 115 (1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. A zoning ordinance provision

that states land use districts may “float” within the boundaries of a proposed planned development

can be interpreted to mean that such districts may be dissolved and totally reconfigured, with

densities reallocated. Huntzicker v. Washington County, 30 Or LUBA 397 (1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 197.829(2) permits

LUBA, in cases where a local government fails to interpret adequately a provision of its land use

regulations, to make its own determination of whether the local government decision is correct.

Thompson v. City of St. Helens, 30 Or LUBA 339 (1996).

1.1.1 Administrative Law – Interpretation of Law – Generally. A comprehensive plan policy

that does not set out approval criteria for a land use permit decision may nevertheless state an

underlying purpose or policy with which the county’s interpretation of its zoning ordinance must

be consistent. DLCD v. Tillamook County, 30 Or LUBA 221 (1995).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Although ORS 197.829(2)

allows LUBA, in certain circumstances, to interpret a local ordinance to the extent necessary to

determine whether a local land use decision is correct, it is still the local government’s

responsibility to interpret its own comprehensive plan and land use regulations in the first instance,

and LUBA is not required to do so. Marcott Holdings, Inc. v. City of Tigard, 30 Or LUBA 101

(1995).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 197.835(9)(b) and

197.829(2) authorize LUBA to remedy minor oversights and imperfections in local government

land use decisions, but do not permit or require LUBA to assume the responsibilities assigned to

local governments, such as the weighing of evidence, the preparation of adequate findings and the

interpretation of comprehensive plans and local land use regulations. Marcott Holdings, Inc. v.

City of Tigard, 30 Or LUBA 101 (1995).

1.1.1 Administrative Law – Interpretation of Law – Generally. When petitioners fail to satisfy

the county’s jurisdictional appeal provision requiring local appellants to state the basis of their

standing, the county is not at liberty to take notice of petitioner s’ standing or to excuse their failure

satisfy the requirement as “harmless error.” Tipton v. Coos County, 29 Or LUBA 474 (1995).

1.1.1 Administrative Law – Interpretation of Law – Generally. When a county zoning

ordinance provision states that a local appeal will be dismissed if the requirements of the provision

are not satisfied, the provision is jurisdictional. An appellant’s failure to satisfy a jurisdictional

requirement results in dismissal of the appeal. Tipton v. Coos County, 29 Or LUBA 474 (1995).

1.1.1 Administrative Law – Interpretation of Law – Generally. Code demolition permit pre-

application requirements that the owner of historic property “endeavor to prepare an economically

feasible plan” for preservation and “solicit purchase offers” must be interpreted in light of other

code demolition permit provisions which clearly leave the decision to sell or not sell the historic

property up to the property owner. Save Amazon Coalition v. City of Eugene, 29 Or LUBA 335

(1995).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local government’s

zoning ordinance establishes a process for administrative actions to determine the existence of

nonconforming uses, and another local ordinance gives a compliance hearings officer jurisdiction

over complaints regarding violations of the zoning ordinance, it is reasonable and correct to

interpret these ordinances to require that the existence of a nonconforming use be determined

through an administrative action, not raised as a defense in a compliance proceeding. Watson v.

Clackamas County, 28 Or LUBA 602 (1995).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local code requires

that a second farm dwelling be shown “conclusively” to be “necessary for the operation of the

commercial farm,” but does not define the term necessary, it is appropriate to use the dictionary

definition of the term “necessary.” Louks v. Jackson County, 28 Or LUBA 501 (1995).

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1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA assigns no particular

weight to a post-enactment statement by an agency administrator concerning the meaning of an

administrative rule. Sensible Transportation v. Washington County, 28 Or LUBA 375 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Documents prepared during

the proceeding leading to the adoption of an administrative rule are legitimate administrative

history which LUBA may consider in interpreting the administrative rule. Sensible Transportation

v. Washington County, 28 Or LUBA 375 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the local code defines

the term “feedlot” to involve animals that are prepared for shipment to “market,” it is neither

reasonable nor correct to interpret “market” to mean only the “final” market to which the animals

are shipped. Derry v. Douglas County, 28 Or LUBA 212 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county does not err by

interpreting a local code provision allowing “commercial or processing activities that are in

conjunction with timber and farm uses,” in a rural residential zone, in the same way the Oregon

Supreme Court has interpreted similar language in the exclusive farm use zoning statutes. Stroupe

v. Clackamas County, 28 Or LUBA 107 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. A hearings officer correctly

construes a local code provision allowing “commercial or processing activities that are in

conjunction with timber and farm uses “in the relevant rural area to require that a landscaping

business’ sales and purchases be primarily to customers and from suppliers that constitute timber

or farm uses in the relevant rural area. Stroupe v. Clackamas County, 28 Or LUBA 107 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the term “farm use” is

defined in a rural residential zone to include noncommercial farms, and it appears from the

challenged decision that the hearings officer may not have considered noncommercial farms in

determining whether a landscaping business qualifies as a commercial or processing activity “in

conjunction with timber and farm uses,” the decision will be remanded. Stroupe v. Clackamas

County, 28 Or LUBA 107 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local government

decision amending its land use regulations does not interpret comprehensive plan goals and map

designations as being inapplicable to such amendments, but rather explains how the proposed

amendment implements certain comprehensive plan goals and is consistent with certain plan map

designations, it is clear the governing body interprets those plan goals and map designations as

being applicable to the land use regulation amendment. Melton v. City of Cottage Grove, 28 Or

LUBA 1 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 197.307(5)(d) expresses

an alternative standard that is satisfied if the exterior materials of a manufactured home either (1)

are similar those commonly used on dwellings in the community, or (2) are comparable to those

used on surrounding dwellings. Because local governments cannot adopt standards more

restrictive than those set out in ORS 197.307(5), a city cannot interpret a local regulation

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implementing ORS 197.307(5)(d) as allowing it to require, in a particular instance, that a

manufactured home must satisfy the second alternative. Brewster v. City of Keizer, 27 Or LUBA

432 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 215.316(1) (1993)

expresses a legislative intent to retroactively prohibit counties from designating resource lands as

marginal lands, and from adopting plan and code provisions allowing additional nonresource uses

on such marginal lands, after January 1, 1993. ORS 215.316(1) (1993) does not express an intent

to retroactively prohibit counties that have not designated marginal lands from applying either

ORS 215.283 (1991) or the supposedly stricter provisions of 215.213(1) to (3) (1991) to their

exclusive farm use zones. 1000 Friends of Oregon v. Marion County, 27 Or LUBA 303 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under ORS 197.829, LUBA is

required to defer to a local government’s interpretation of its own enactments, unless the local

interpretation is contrary to the express words, purpose or policy of the enactment, or is

inconsistent with a statute, goal or rule that the enactment implements. Shelter Resources, Inc. v.

City of Cannon Beach, 27 Or LUBA 229 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. The comprehensive plan

provisions comprising a city’s urban growth management program are clearly designed to

implement Statewide Planning Goals 11 and 14. Therefore, a city errs in interpreting such plan

provisions to allow the extension of urban sewage treatment service outside an urban growth

boundary. DLCD v. City of Donald, 27 Or LUBA 208 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a code provision

requires that effects on an area’s “appearance and function” be determined based specifically on

factors set out in that provision, a local government may interpret the code provision to be satisfied

by a determination based solely on those factors, even if the code also provides that words have

their “normal dictionary meaning,” and the dictionary definitions of “appearance” and “function”

suggest additional factors are relevant. Wilson Park Neigh. Assoc. v. City of Portland, 27 Or LUBA

106 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 197.829(1), (2) and (3)

essentially codify the standard of review imposed by Clark v. Jackson County, 313 Or 508, 836

P2d 710 (1992). ORS 197.829(4) limits or qualifies the Clark standard of review in certain

circumstances. Zippel v. Josephine County, 27 Or LUBA 11 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government

interpretation of one of its forest zones in a manner that would permit asphalt batch plants to

operate permanently, so long as there were periodic interruptions, does not conflict with the Goal

4 rule, which envisions both permanent and temporary asphalt batch plants. Zippel v. Josephine

County, 27 Or LUBA 11 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. Absent some specific indication

of contrary intent, terms are read consistently throughout a statute. Zippel v. Josephine County, 27

Or LUBA 11 (1994).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Where an exclusive farm use

zone does not allow asphalt batch plants or their accessory uses, and petitioner contends the county

erred by permitting a private access road across exclusive farm used zoned property to serve an

asphalt batch plant, the county must respond in its decision to that interpretive question. Where

the county fails to do so and simply concludes such roads are allowable, the decision must be

remanded so that the county can adopt an interpretive response adequate for LUBA review. Zippel

v. Josephine County, 27 Or LUBA 11 (1994).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county surface mining

ordinance that retains several operating and reclamation standards from the prior surface mining

ordinance did not “repeal” the prior ordinance, because the new ordinance does not “supersede all

material particulars” of the prior ordinance. Oregon City Leasing, Inc. v. Columbia County, 26 Or

LUBA 203 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local government has

not adopted traditional, strict variance standards, it may interpret a variance approval standard

requiring a variance to be “the minimum variance necessary to make reasonable use of the

property” as requiring that (1) the proposed use be a reasonable use of the subject property, and

(2) the requested variance be the minimum necessary to allow the proposed use. Friends of Bryant

Woods Park v. Lake Oswego, 26 Or LUBA 185 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government cannot

simply conclude its failure to list shopping centers as a permitted or conditional use in any existing

zoning district creates an ambiguity and, on that basis, determine it will allow shopping centers as

a conditional use in a particular zoning district. Such an action constitutes improperly amending

the zoning ordinance in the guise of interpreting it. Loud v. City of Cottage Grove, 26 Or LUBA

152 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under ORS 215.448(1)(c),

home occupations may not be conducted outside the dwelling and other buildings normally

associated with permitted uses in the zone. ORS 215.448(1)(c) does not provide for a de minimis

exception to that requirement. Weuster v. Clackamas County, 25 Or LUBA 425 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code provision

requiring that “consideration * * * be given to [certain specified] factors” does not establish

mandatory approval standards for local government decisions, but rather merely lists “factors”

which the local government must consider. Frankton Neigh. Assoc. v. Hood River County, 25 Or

LUBA 386 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA must defer to a local

government’s interpretation of its own land use regulations unless the interpretation is clearly

wrong. A county interpretation that a facility for an annual equestrian event qualifies as a “rodeo”

or a “livestock arena” is not clearly wrong. Cooley v. Deschutes County, 25 Or LUBA 350 (1993).

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1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA is not bound by legal

precedents established by circuit court decisions in unrelated cases. Skydive Oregon v. Clackamas

County, 25 Or LUBA 294 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the local code requires

that the subject property be reasonably suited for the “use proposed,” a local government does not

err by determining the suitability of the entire parcel for the proposed use and not just the site of

the proposed residence. Clarke v. City of Hillsboro, 25 Or LUBA 195 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government

interpretation of a local code provision which prohibits direct access to major collectors by

commercial, industrial and institutional uses with more than 150 feet of frontage as not applying

to proposed residential subdivisions with more than 150 feet of frontage is reasonable. Miller v.

Washington County, 25 Or LUBA 169 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local government may

interpret the term “processing of aggregate,” as used in an industrial zoning district of its code, to

include asphalt plants, even though the code language was adopted at a time when LUBA had

interpreted similar language in the EFU statute not to include asphalt plants. O’Mara v. Douglas

County, 25 Or LUBA 25 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. While a local government is

not obliged to respond to a taking claim raised during the local proceedings, the local government

should, in the first instance, have an opportunity to respond to a taking issue during the local

proceedings. Where there is more than one possible interpretation of the local approval standards,

the local government should have the opportunity to adopt an interpretation that is constitutional.

Larson v. Multnomah County, 25 Or LUBA 18 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. A requirement in a local code

that development be “consistent” with comprehensive plan policies and standards, is a general

requirement that does not transform otherwise nonmandatory plan standards into approval

standards. McGowan v. City of Eugene, 24 Or LUBA 540 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. While a local government is

not obliged to respond to a taking claim raised during the local proceedings, the local government

should, in the first instance, have an opportunity to respond to a taking issue during the local

proceedings. Where there is more than one possible interpretation of the local approval standards,

the local government should at least have the opportunity, if possible, to adopt an interpretation

that is constitutional. Larson v. Multnomah County, 24 Or LUBA 629 (1993).

1.1.1 Administrative Law – Interpretation of Law – Generally. It is clearly contrary to the

express terms of a local ordinance standard requiring a determination that “the type of farm

products produced on the applicant’s farm” be unrepresented within a particular area, to determine

the standard is satisfied by a showing that there are no similar farm management methodologies

employed on farms in the designated area. Giesy v. Benton County, 24 Or LUBA 328 (1992).

Page 42 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. That area farms produce either

purebred cattle or sheep, rather than a combination of purebred cattle and she ep, is not a basis for

determining there are no similar farm products produced in the designated area. Giesy v. Benton

County, 24 Or LUBA 328 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a “substantial

construction” standard in a local code is clear enough for an applicant to know what he must show

during the application process, such a standard is not impermissibly vague. Columbia River

Television v. Multnomah County, 24 Or LUBA 82 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. In evaluating the compliance

of an application for a conditional use permit for a bed and breakfast with a local traffic impacts

approval standard, it is proper to evaluate the impacts of a reasonable residential use of the

dwelling, together with the proposed bed and breakfast use. Adler v. City of Portland, 24 Or LUBA

1 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the local code lists uses

as conditionally permitted, such listing does not, of itself, imply that the local government must

approve all applications for conditional uses or that it is limited to the imposition of conditions of

approval. Adler v. City of Portland, 24 Or LUBA 1 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Subsequent changes in county

ordinances do not affect an energy facility for which a site certificate has been approved by EFSC.

Under ORS 469.400(5), a county is required to issue the “appropriate permits” for such an energy

facility, regardless of whether a subsequent change in county ordinances makes the “appropriate

permit” a type different from that which was appropriate when the site certificate was approved.

McDole v. Lane County, 23 Or LUBA 500 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the maximum penalty

for each separate violation of an ordinance is 500 dollars, and there is no possibility of

imprisonment for violating the ordinance, the penalties provided by the ordinance are civil, not

criminal, in nature. Therefore, a vagueness challenge based solely on the constitutional vagueness

analysis applied where criminal sanctions are possible, provides no basis for reversal or remand of

such ordinance. Cope v. City of Cannon Beach, 23 Or LUBA 233 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local ordinance that prohibits

the short term rental use of dwellings in residential zones is not an unlawful rent control regulation

under ORS 91.225. Cope v. City of Cannon Beach, 23 Or LUBA 233 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code jurisdictional

requirement that the local appeal document, which under the code includes the required appeal fee,

be “signed” but which does not state where such signature must be located, is satisfied by the local

appellant’s signature on his personal check submitted as the filing fee. Breivogel v. Washington

County, 23 Or LUBA 143 (1992).

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1.1.1 Administrative Law – Interpretation of Law – Generally. The language in ORS

197.247(1)(a) that “[t]he proposed marginal land was not managed, during three of the five

calendar years preceding January 1, 1983 * * *” applies to forest as well as farm operations. DLCD

v. Lane County, 23 Or LUBA 33 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a local government

elects to limit the length of cul-de-sac streets, it may also establish how the length of such streets

is to be measured. However, where no particular method of measuring the length of cul-de-sac

streets is specified in its land use regulations, the local government must determine length applying

the regulations as they are written and applying the plain and ordinary meaning of the operative

term “length.” Sully v. City of Ashland, 23 Or LUBA 25 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code requirement that

a review body may not consider a request for a conditional use permit within one year following a

previous denial of “such” request, prohibits submission of a conditional use permit application for

the same use on the same property as previously denied. It does not prohibit the submission of a

conditional use permit application for a different use of the property. Silani v. Klamath County, 22

Or LUBA 734 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a proposed residential

detoxification facility will take blood pressure and body temperature of potential admittees, but

will refuse to admit anyone in need of medical attention and will not provide any medication or

medical treatment on site, a local government’s determination that the proposed facility will

provide “primarily” health care is erroneous as a matter of law. Harmony House, Inc. v. City of

Salem, 22 Or LUBA 629 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. A permit condition stating all

log trucks must “depart the [subject] property as near to 4:00 a.m. as possible “is correctly

interpreted to require that all log trucks must leave the subject property at 4:00 a.m., unless it is

not possible to do so. Such a condition is violated where log trucks departed from the property on

several occasions at 6:30 a.m. for the convenience of the applicant’s logging operation. Marson v.

Clackamas County, 22 Or LUBA 497 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. A statutory change in the

tribunal with appellate jurisdiction affects the legal rights and obligations of parties arising out of

past transactions, and retrospective application of such a change in jurisdictional statutes to

pending appeals is not appropriate. Schultz v. City of Grants Pass, 22 Or LUBA 457 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. The factors listed in ORS

822.140(3)(a) to (f) are considerations for the adoption of ordinances regulating the siting or

expansion of wrecking yards. These factors are not approval standards for applications for local

approval of individual Department of Motor Vehicles wrecking certificates. Bradbury v. City of

Independence, 22 Or LUBA 398 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. A comprehensive plan

provision requiring that conflicts between conditional uses and airports be “minimized” is not

Page 44 of 61

violated by approval of a proposed conditional use simply because other possible uses allowed in

the zone would have fewer conflicts with airports. So long as conflicts between the proposed

conditional use and airports are minimized, that other possible uses might have fewer conflicts is

irrelevant. Waker Associates, Inc. v. Clackamas County, 22 Or LUBA 233 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Whether the provisions of a

zoning ordinance “purpose” section are approval criteria for individual land use decisions depends

on the wording of the specific provisions and their context. Tylka v. Clackamas County, 22 Or

LUBA 166 (1992).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a zoning ordinance

definition of “motel” is broad enough to include transient housing available only to groups using

a convention center, the city may properly consider such transient housing as motel units available

to satisfy temporary housing demand. Hay v. City of Cannon Beach, 21 Or LUBA 364 (1991).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA cannot take official

notice of local legislative history. Therefore, because LUBA’s review is confined to the record of

the local proceeding, LUBA cannot consider local legislative history if it is not in the record. 19th

Street Project v. City of the Dalles, 20 Or LUBA 440 (1991).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the comprehensive plan

requires an “urban level of service” of schools, but does not define “urban level of service,” a city

does not err in interpreting that term consistent with the school district’s “considerations” for

providing adequate school facilities. However, because those school district considerations were

not adopted by the city as standards, the city did not err by failing to adopt findings specifically

addressing each consideration when approving a development. Axon v. City of Lake Oswego, 20

Or LUBA 108 (1990).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where plan standards identify

nonfarm uses that may be allowed in the county’s exclusive farm use zone and require that such

uses be “minimized,” a plan standard requiring that “development” not occur on lands capable of

sustaining accepted farming practices is properly interpreted as not applying to the nonfarm uses

specifically allowed in the exclusive farm use zone. Von Lubken v. Hood River County, 19 Or

LUBA 404 (1990).

1.1.1 Administrative Law – Interpretation of Law – Generally. There is no irresolvable conflict

between a plan standard directing that golf courses be allowed in an exclusive farm use zone and

a plan standard providing that development may not occur on lands capable of sustaining accepted

agricultural practices. Von Lubken v. Hood River County, 19 Or LUBA 404 (1990).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the comprehensive plan

is defined as including the plan policy document, plan map, zoning map and zoning and

subdivision ordinances, as well as a number of other documents, a local code provision requiring

that individual land use decisions comply with the comprehensive plan is not correctly interpreted

as requiring compliance with only the zoning map and zoning and subdivision ordinances. Von

Lubken v. Hood River County, 19 Or LUBA 404 (1990).

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1.1.1 Administrative Law – Interpretation of Law – Generally. The legislative history of a bill

includes all items in the official state records documenting its enactment, including staff measure

analyses and exhibits to legislative committee hearing minutes. Foland v. Jackson County, 18 Or

LUBA 731 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The destination resort statute

was intended to codify the parallel provisions of Goal 8, as they were interpreted when the statute

was enacted; and, therefore, the administrative history of those Goal 8 provisions is relevant to

interpretation of the destination resort statute. Foland v. Jackson County, 18 Or LUBA 731 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. LUBA will consider legislative

or administrative history materials, when such materials are necessary to its interpretation of

statutes, administrative rules or ordinances, regardless of whether the materials are in the record

of the proceedings below. Foland v. Jackson County, 18 Or LUBA 731 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Some weight should be given,

in interpreting the destination resort statute, to DLCD’s interpretations of the identical Goal 8

provisions, as DLCD is charged with adopting and administering the statewide planning goals.

Foland v. Jackson County, 18 Or LUBA 731 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. When LUBA interprets a

provision of a comprehensive plan or zoning ordinance, it construes the plan or ordinance as a

whole and gives effect to its overall policy. Beck v. City of Tillamook, 18 Or LUBA 587 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The meaning of local

legislation is a question of law which must be decided by LUBA on appeal. Beck v. City of

Tillamook, 18 Or LUBA 587 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where city ordinance (1) allows

“public facility” as a conditional use in a commercial zone, (2) defines public facility as a facility

deemed necessary for “the maintenance of public purposes,” (3) does not distinguish between

residential and nonresidential “public facilities,” and (4) lists hospitals and nursing homes as

examples of uses considered to be “public facilities,” “public facility” can include uses which are

residential in nature, such as a homeless shelter. Beck v. City of Tillamook, 18 Or LUBA 587

(1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where county comprehensive

plan policies provide that structural methods of shoreline stabilization will only be allowed if (1)

an existing structure is threatened by erosion, (2) that threat creates a critical need to protect the

structure, and (3) higher priority methods will not work to provide adequate protection to the

structure, LUBA interprets “critical need to protect the structure” to mean that it is reasonably

probable that the structure will suffer damage due to the threatened erosion in the near future. Gray

v. Clatsop County, 18 Or LUBA 561 (1989).

Page 46 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. When LUBA interprets a

provision of a comprehensive plan or zoning ordinance, it construes the plan or ordinance as a

whole and gives effect to its overall policy. Also, where possible, LUBA reads plan or ordinance

provisions together in a manner which gives meaning to all their parts. Gray v. Clatsop County,

18 Or LUBA 561 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The correct interpretation of

local ordinance provisions is a question of law. The provisions of a comprehensive zoning

ordinance should be construed as a whole, and effect given to the ordinance’s overall policy. Miller

v. City of Dunes City, 18 Or LUBA 515 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where standards embodied in

a local comprehensive plan goal and the policies that follow the goal are subjective and generally

worded, the local government applying such goa ls and policies enjoys significant discretion in

determining whether particular factors are sufficient to show that a proposal is consistent with or

supportive of the goal. Henry v. City of Portland, 18 Or LUBA 440 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Internally contradictory and

generally worded local planning goals must be read as a whole, so that the overall public policy

expressed in the goal is not frustrated. Henry v. City of Portland, 18 Or LUBA 440 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The application of a particular

zoning designation to a parcel is not the equivalent of a determination that an existing use on such

parcel conforms with the particular zoning designation applied. Moorefield v. City of Corvallis, 18

Or LUBA 95 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where an ordinance provision

requires both that a proposed use comply with all “local, state and federal standards,” and that the

proposed use not “create a nuisance,” the local government’s determination that the proposed use

complies with DEQ regulations does not remove the necessity for an independent determination

that the proposed use will not “create a nuisance.” Moorefield v. City of Corvallis, 18 Or LUBA

95 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 215.448(1)(c) requires

only that an existing building proposed to be used for a home occupation, be a structure normally

found in association with uses permitted in the zone. It does not require, in an exclusive farm use

zone, that any part of such building be used for farm use concurrently with its use for the home

occupation. Joseph v. Lane County, 18 Or LUBA 41 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where local government

ordinance provisions are drafted to correspond to a state statute, it is appropriate to construe those

ordinance provisions consistently with the statute. Joseph v. Lane County, 18 Or LUBA 41 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 215.448(3) limits the

approval of new buildings for use for home occupations. It does not impose additional limitations

Page 47 of 61

on the use of existing buildings for home occupations. Joseph v. Lane County, 18 Or LUBA 41

(1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the county code

provides that types of uses not otherwise permitted in an exclusive farm use zone may be allowed

as home occupations, it is incorrect to interpret a code requirement that a home occupation not

interfere with nearby existing uses or with other uses permitted under the exclusive farm use zone

as presuming that noise not agricultural in nature constitutes interference with adjoining uses.

Joseph v. Lane County, 18 Or LUBA 41 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. A plan policy which provides

guidance as to which zoning district to apply to a given area is not an approval criterion for

conditional use permits. Highway 213 Coalition v. Clackamas County, 17 Or LUBA 1284 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The wording and context of a

specific code intent and purpose statement determines whether that provision should be interpreted

to impose mandatory approval criteria. Randall v. Washington County, 17 Or LUBA 1202 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The legislature’s use of the

term “may” in ORS 443.600(3), 215.213(2)(m) and 215.283(2)(n), with regard to allowing

“residential homes” on land zoned for exclusive farm use, demonstrates that the legislature did not

intend to require counties to authorize “residential homes” as a conditional use on EFU zoned

land. Mental Health Division v. Lake County, 17 Or LUBA 1165 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. A county interpretation that a

notice of appeal from a planning commission decision is properly filed prior to the date the

planning commission decision became final, is a correct interpretation of the ordinance, absent

ordinance language requiring the decisions of the planning commission be reduced to writing

before those decisions may be considered final for purposes of appeal. Thompson v. Columbia

County, 17 Or LUBA 818 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. A local code that is internally

inconsistent is ambiguous. Kenton Neighborhood Assoc. v. City of Portland, 17 Or LUBA 784

(1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. The courts and LUBA are

finally responsible for the interpretation of local enactments. However, where an erroneous

interpretation of other code provisions results in a city failing to interpret and apply an ambiguous

provision of its code, LUBA will remand the decision to the city for it to interpret and apply the

applicable provision in the first instance. Great Northwest Towing v. City of Portland, 17 Or

LUBA 544 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. To find a proposed conditional

use is “appropriate,” as required by local standards governing conditional uses, does not require a

finding that there will be no adverse impacts. Coffey v. City of North Bend, 17 Or LUBA 527

(1989).

Page 48 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. Where an ordinance expressly

provides that listed examples are not an inclusive list of “governmental structures or land uses,” a

public educational facility and county office building may be considered governmental structures

of land uses. Bennett v. City of Dallas, 17 Or LUBA 450 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a city ordinance

provides that structures must have “comparable scale” and “comparable architectural features” to

the existing structures in the neighborhood, LUBA cannot agree with the city that a proposed 110-

foot water tower and adjacent houses have comparable scale and architectural features. Sunburst

II Homeowners v. City of West Linn, 17 Or LUBA 401 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. An approval criterion which

requires the provision of an adequate buffer and that certain factors be assessed in determining the

adequacy of such buffer, vests considerable discretion in the approval authority. Sunburst II

Homeowners v. City of West Linn, 17 Or LUBA 401 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the county code’s

“commercial activities that are exclusively used in conjunction with farm use” (emphasis added)

standard is worded more stringently than ORS 215.283(2)(a), it is appropriate to interpret the code

provision to restrict severely the commercial activities allowed. The county’s interpretation of its

code standard not to include a use which would process an unspecified amount of minerals, and

other materials that are not farm or forest products, is both reasonable and correct. Kellogg Lake

Friends v. Clackamas County, 17 Or LUBA 369 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where local government

ordinance was drafted to implement a state statute or statewide planning goal, and adopts the

statutory or goal language without expressing an intent to deviate from the statutory or goal intent,

it is proper to construe the ordinance provisions consistently with the statute or goal. Kellogg Lake

Friends v. Clackamas County, 17 Or LUBA 277 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Interpreting the county’s

Willamette River Greenway zoning district requirement for a setback from “mean low water level”

to refer only to the Willamette River, and not to other bodies of water within the Greenway, is

reasonable and consistent with other related plan and ordinance provisions. Kellogg Lake Friends

v. Clackamas County, 17 Or LUBA 277 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where local ordinance

language corresponds to the overall “Goal” statement of Statewide Planning Goal 15 (Willamette

River Greenway), and there are no other local plan or ordinance provisions or legislative history

which indicates an intent that the ordinance phrase “lands along the Willamette River” be

interpreted differently than the same phrase in Goal 15, the phrase is interpreted to include all land

within the Greenway. Kellogg Lake Friends v. Clackamas County, 17 Or LUBA 277 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. After-the-fact testimony from

persons involved in the legislative process concerning their opinion as to what legislators intended

Page 49 of 61

when they enacted legislation is incompetent for the purpose of determining legislative intent.

Kellogg Lake Friends v. Clackamas County, 17 Or LUBA 277 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a provision of county

ordinance was drafted to correspond to a state statute, it is appropriate to construe that ordinance

provision consistently with the statute, in light of any existing authority analyzing or applying that

statute. McCaw Communications, Inc. v. Marion County, 17 Or LUBA 206 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. The amendment of ORS

215.213(1)(d) by Oregon Laws 1983, chapter 827, section 27b was clearly intended to limit

transmission towers, previously allowable in EFU zones as “utility facilities necessary for public

service,” to those 200 feet or less in height. McCaw Communications, Inc. v. Marion County, 17

Or LUBA 206 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where the county code defines

a structure as “anything * * * constructed and located on * * * the ground,” and exemptions from

the requirement for a development permit for certain accessory uses apply only if no structure is

permitted, LUBA will conclude that a bridge and sidewalk incidental to residential construction

are subject to the development permit requirement. Peyton v. Washington County, 17 Or LUBA

92 (1989).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where ORS 215.213(2),

together with the county code, require that commercial activities in conjunction with farm use

comply with the purpose and intent of the county’s EFU zone, the county properly concluded a

proposed restaurant in conjunction with a winery was inconsistent with the intent and purpose of

the EFU zone, unless conditioned to make the restaurant subordinate and auxiliary to the winery.

Flynn v. Polk County, 17 Or LUBA 68 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Statutory prohibitions against

retroactive land use regulations protect uses that exist when the regulations are adopted, not uses

that could have been, but were not, initiated. Schoonover v. Klamath County, 16 Or LUBA 846

(1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Under ORS 197.605 to 197.635

(1981), the running of the 30-day period for filing objections to or appeals of post-acknowledgment

amendments is contingent upon the objector or appellant being given the notice of the decision

required by ORS 197.615. Kellogg Lake Friends v. City of Milwaukie, 16 Or LUBA 755 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. An ordinance provision which

states that a county appellate body overturning or modifying a previous decision must make certain

findings will not be interpreted to alter the general authority given by the ordinance to county

decision makers to impose conditions when approving land use actions. Sevcik v. Jackson County,

16 Or LUBA 710 (1988).

Page 50 of 61

1.1.1 Administrative Law – Interpretation of Law – Generally. The interpretation of local

ordinance provisions is a question of law which LUBA reviews for correctness. Sevcik v. Jackson

County, 16 Or LUBA 710 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. County interpretation of a

condition of partition approval requiring dust free maintenance of a road to apply only during

construction is incorrect because such interpretation is inconsistent with the common meaning of

“maintenance” and the use of that term elsewhere in the county code. Barbee v. Josephine County,

16 Or LUBA 695 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where neither county plan nor

implementing ordinances identify Douglas fir as the sole indicator species for determining whether

land is “commercial forest land,” the plan’s definition of “commercial forest land” cannot be

interpreted as encompassing only production of Douglas fir. Holland v. Lane County, 16 Or LUBA

583 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. The city’s decision to allow

use of the subject property for other than a school is not error where the city comprehensive plan

and zoning maps identify the subject property as a future school site, but the plan text clearly

provides that school sites are intended to indicate general locations and not specific sites. Dickas

v. City of Beaverton, 16 Or LUBA 574 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. It is reasonable and correct to

interpret an ordinance standard that a proposed use “at the particular location is desirable to the

public convenience and welfare” as requiring determinations that (1) there is a public need for the

proposed use, and (2) the proposed location is suitable for meeting that public need. Tournier v.

City of Portland, 16 Or LUBA 546 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. City’s interpretation of its code

to require compliance with both preexisting use reestablishment standards and current Greenway

Scenic Development Overlay (WSD) standards applicable to changes and intensification is

reasonable. Sellwood Harbor Condo Assoc. v. City of Portland, 16 Or LUBA 505 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where ambiguity exists in

acknowledged comprehensive plan and code provisions, the county’s reasonable interpretation of

the provisions will be upheld. Bergstrom v. Klamath County, 16 Or LUBA 435 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. An ordinance requirement that

a proposed nonfarm partition and dwelling “does not materially alter the stability of the overall

land use pattern of the area” is not satisfied by consideration only of parcels adjoining the proposed

development site or the access road leading to the proposed development site, as such

consideration would not provide analysis of the “overall land use pattern of the area.” Morley v.

Marion County, 16 Or LUBA 385 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Zoning ordinance provision

requiring that development be compatible with the “scenic view” does not require city to consider

Page 51 of 61

compatibility of a proposed motel with other existing structures in the vicinity. Marineau v. City

of Bandon, 16 Or LUBA 375 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where city comprehensive plan

includes policies promoting development along a bluff above the ocean and policies which address

the view of the ocean from this bluff, the city may interpret its zoning ordinance provision

requiring that development on the bluff be compatible with the “scenic view” to protect only the

view of the Pacific Ocean from the bluff, not the scenic view of the bluff from the beach. Marineau

v. City of Bandon, 16 Or LUBA 375 (1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Absent clear language limiting

the time a waiver may be granted under a code section providing for waiver of appeal fees, the

county’s interpretation of that provision to allow waiver of the appeal fee after the appeal period

has run is reasonable and LUBA will defer to it. Rustrum v. Clackamas County, 16 Or LUBA 369

(1988).

1.1.1 Administrative Law – Interpretation of Law – Generally. Absent a showing that a

residential PUD will increase noise levels beyond those expected of residential development

permitted by right in the subject zone, there can be no violation of a city policy which protects

neighborhoods from “detrimental noise pollution.” Semler v. City of Portland, 16 Or LUBA 320

(1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. It is reasonable to interpret an

ordinance permit approval criterion that the proposed use “not have a significant adverse impact

on identified fish or wildlife habitat “to refer only to sensitive fish or wildlife habitat areas

identified as such on maps in the county’s comprehensive plan. McCoy v. Linn County, 16 Or

LUBA 295 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. “Compatibility,” as used in the

planning and zoning context, requires that uses be capable of co-existing harmoniously, not that

there be no adverse impact or interference of any type. McCoy v. Marion County, 16 Or LUBA

284 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a county ordinance

prohibits “contamination or impairment” of groundwater aquifers, but neither “contamination” nor

“impairment” is defined in the county plan or ordinances, a county interpretation that there is no

“contamination” or “impairment” so long as the turbidity increase does not exceed 10 percent is

reasonable. Lousignont v. Union County, 16 Or LUBA 272 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. A road vacation petition signed

by contract purchasers, rather than owners, of subject and abutting property does not authorize a

county to conduct summary road vacation proceedings under ORS 368.351, even if the county

makes the vacation contingent upon completion of purchase. Harding v. Clackamas County, 16

Or LUBA 224 (1987).

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1.1.1 Administrative Law – Interpretation of Law – Generally. ORS 368.351 allowing a

shortened procedure for vacation of county roads, without notice and hearing, when “owners of

100% of any private property proposed to be vacated and * * * owners of 100% of the property

abutting any public property proposed to be vacated” consent to the vacation, is available only

when all owners of all recorded interests consent to the street vacation. Harding v. Clackamas

County, 16 Or LUBA 224 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where county ordinance

defines mobile homes as structures manufactured after a certain date, a unit manufactured before

that date is not a mobile home within the definition of the county’s ordinance. Schnidrig v. Hood

River County, 16 Or LUBA 215 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where county ordinance

describes a double-wide mobile home as affixed to real property by a continuous concrete wall

foundation or other appropriate foundation, LUBA will sustain the county in its interpretation that

this foundation requirement is a set-up requirement, not a feature defining whether a particular unit

is or is not a double-wide mobile home. Schnidrig v. Hood River County, 16 Or LUBA 215 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where county ordinance does

not define the width of double-wide mobile homes, and nothing in the ordinance suggests the width

of a particular structure meets or does not meet the definition of a single-wide or a double-wide

mobile home, petitioner’s claim that the county erred in applying its definitions of single-wide and

double-wide mobile homes by failing to make findings on the width of a particular mobile home

will fail. Schnidrig v. Hood River County, 16 Or LUBA 215 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a county ordinance

defines a double-wide mobile home as a combination or joining of two or more chassis or sections,

but does not define “chassis,” a county interpretation that each section of a type of mobile home

which is single width when transported, but which extends along its full length when installed in

the ground, is supported by its own chassis is reasonable and not contrary to the language of the

ordinance. Schnidrig v. Hood River County, 16 Or LUBA 215 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. A city is entitled to weigh

conflicting provisions in its planning documents, particularly where the provisions are stated in

general terms rather than as approval standards applicable to all development. Marshall v. City of

Eugene, 16 Or LUBA 206 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. City tentative PUD approval

of a golf course does not violate a charter provision authorizing use of bond proceeds to acquire

property for “recreational uses.” Marshall v. City of Eugene, 16 Or LUBA 206 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Increasing the types of uses

authorized in existing commercial areas does not violate plan policy that areas for commercial

centers should not be increased without a showing of need. Greenwood Inn v. City of Beaverton,

16 Or LUBA 177 (1987).

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1.1.1 Administrative Law – Interpretation of Law – Generally. Plan provision describing the

effect on auto use from limited commercial development in CI zone is a description, not a goal or

policy, and therefore not a criterion for the selection of types of commercial use appropriate in the

CI zone. Greenwood Inn v. City of Beaverton, 16 Or LUBA 177 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Adding hotels to the list of

authorized commercial uses in the CI zone is not inconsistent with zone provision that all new

commercial uses, including those listed, offer products or services primarily for the convenience

or necessity of employees and businesses in the CI zone. Greenwood Inn v. City of Beaverton, 16

Or LUBA 177 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Given a comprehensive plan

policy allowing a limited number of complementary commercial uses in industrial parks, the city

may interpret the policy to allow hotels in its Campus Industrial (CI) zone. Greenwood Inn v. City

of Beaverton, 16 Or LUBA 177 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Because nothing in Goal 15 or

case law suggests that “greatest possible degree,” as used in Goal 15, means something more

restrictive than the city’s definition, the city’s interpretation is reasonable and LUBA will not

overturn it. Urquhart v. City of Eugene, 16 Or LUBA 102 (1987).

1.1.1 Administrative Law – Interpretation of Law – Generally. Where a city’s plan provides

that planning decisions must be in accord with the “policies of the comprehensive plan,” LUBA

will interpret the plan policies as mandatory standards rather than mere guidelines. Hummel v. City

of Brookings, 16 Or LUBA 1 (1987).

Administrative Law – Interpretation of Law. Where a county ordinance provides considerable

discretion in deciding whether a proposed use will have more than a “minimal” impact on the area,

LUBA is not empowered to substitute its judgment for the county’s on matters of aesthetics and

ordinance interpretation, providing the county’s interpretation is reasonable. Valley View Nursery

v. Jackson County, 15 Or LUBA 591 (1986).

Administrative Law – Interpretation of Law. Where county ordinance and ORS 215.283(1)(f)

allow “dwellings and other buildings customarily provided in conjunction with farm use” as

permitted uses, a county determination as to whether a proposed dwelling is “customarily provided

in conjunction with farm use” involves the exercise of judgment and discretion and, therefore, a

building permit for such a proposed dwelling falls within the definition of “permit” found in ORS

215.402(4). Doughton v. Douglas County, 15 Or LUBA 576 (1986).

Administrative Law – Interpretation of Law. LUBA will deter to a county’s interpretation of

ambiguous provisions in its ordinance providing the interpretation is not contrary to the express

language of the ordinance. Mill Creek Glen Protec. Assn. v. Umatilla County, 15 Or LUBA 563

(1986).

Administrative Law – Interpretation of Law. Where city ordinance provides that variances

“ordinarily” should not be granted if the special circumstances upon which the applicant relies are

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a result of actions of the applicant, owner or previous owner, the city may approve a variance even

where the exceptional circumstances relied upon are self-created. Cope v. Cannon Beach, 15 Or

LUBA 546 (1986).

Administrative Law – Interpretation of Law. An ordinance variance standard that there be

“exceptional or extraordinary circumstances or conditions * * * which do not apply generally to

other properties in the same zone” requires a strict interpretation, that the “exceptional or

extraordinary circumstances “must arise out of the land itself. Cope v. Cannon Beach, 15 Or LUBA

546 (1986).

Administrative Law – Interpretation of Law. Comprehensive plan policies which are described

in the plan as serving “as a guide” to land use decision s are not mandatory approval standards,

and therefore nonconformance with such policies is not grounds for remand by LUBA. Citizens

for Better Transit v. Metro Service Dist., 15 Or LUBA 482 (1986).

Administrative Law – Interpretation of Law. Ordinance which uses but does not define “special

education,” and refers to the financial impact on school districts imposed by state law but makes

no reference to federal law, will be interpreted to use the definition of special education found in

state law. Lane County School Dist. 71 v. Lane County, 15 Or LUBA 476 (1986).

Administrative Law – Interpretation of Law. Although public rights-of-way are generally

assumed to be permitted in every zone, ordinance Greenway zone purpose and setback provisions

limiting this zone designation to uses which are clearly water-dependent or water-related, together

with an express provision that roads are not generally considered dependent on or related to a water

location, make a city’s interpretation of its Greenway zone as permitting freeways unreasonable.

Allen v. City of Portland, 15 Or LUBA 464 (1986).

Administrative Law – Interpretation of Law. A city’s interpretation of an ordinance Greenway

exemption provision as applying to a freeway on-ramp is not reasonable where the ordinance

provision reads as an exhaustive list of exempt uses, rather than as a guide to interpreting the

ordinance, and freeway systems are not listed as exempt. Allen v. City of Portland, 15 Or LUBA

464 (1986).

Administrative Law – Interpretation of Law. A local government is entitled to interpret

ambiguous provisions of its zoning code, and LUBA will defer to that interpretation if it is

reasonable. Hood River Valley Residents Comm. v. City of Hood River, 15 Or LUBA 458 (1986).

Administrative Law – Interpretation of Law. Under county ordinance definition of “lot,”

adjacent t ax lots under common ownership do not constitute separate “lots.” Hopper v. Clackamas

County, 15 Or LUBA 413 (1986).

Administrative Law – Interpretation of Law. Under county ordinance definition of “lot,”

property under common ownership does not lose its unitary character as one lot simply because it

happens to be divided by a road. Hershberger v. Clackamas County, 15 Or LUBA 401 (1986).

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Administrative Law – Interpretation of Law. Land division ordinance street alignment

requirement will be interpreted as applying to preexisting streets serving the proposed land

division, absent specific ordinance language to the contrary. Jarvis v. Wallowa County, 15 Or

LUBA 390 (1986).

Administrative Law – Interpretation of Law. Where a governing body is not required to take

action on a submitted amendment to an urban renewal plan, its proceedings to consider the

proposed amendment are legislative in nature. Estate of Paul Gold v. City of Portland, 15 Or

LUBA 385 (1986).

Administrative Law – Interpretation of Law. City ordinance definition of multi-family dwelling

will not be interpreted as including motels where such interpretation would allow motels in the

city’s residential zone, a result clearly inconsistent with the purpose of that zone. Marineau v. City

of Bandon, 15 Or LUBA 375 (1986).

Administrative Law – Interpretation of Law. Ordinance design standard which expressly

applies to “subdivisions, attached un it residential developments and commercial developments”

will not be interpreted as applying to mobile home parks, because to do so would be adding words

to the ordinance that are plainly not there. Everts v. Washington County, 15 Or LUBA 358 (1986).

Administrative Law – Interpretation of Law. In the absence of a provision in a new ordinance

preserving approval procedures in the former ordinance, the new ordinance will control approval

of all subdivision plats, including those plats receiving preliminary approval prior to the effective

date of the new ordinance. Rosenfeld v. City of Lake Oswego, 15 Or LUBA 312 (1986).

Administrative Law – Interpretation of Law. County ordinance criterion for partitioning of an

existing dwelling on forest land; which requires a finding that the dwelling “will not be needed to

house forest help, does not require that a partition be denied because an existing dwelling might

someday be needed to house forest workers. Such a criterion does require consideration of present

use of the subject property, and perhaps of probable uses in the near future. Rex v. Marion County,

15 Or LUBA 293 (1986).

Administrative Law – Interpretation of Law. City’s “judicial notice” of prior city approvals

does not encompass supporting evidence submitted during the prior proceedings. McNulty v. City

of Lake Oswego, 15 Or LUBA 283 (1986).

Administrative Law – Interpretation of Law. Where an ordinance provision is unambiguous,

LUBA will not go beyond its plain language to create additional standards based upon speculation

about legislative intent. Wagner v. Marion County, 15 Or LUBA 260 (1986).

Administrative Law – Interpretation of Law. Where the property petitioners wished the county

to accept as a county road was not offered for dedication in the subdivision plat, approval of the

subdivision did not constitute acceptance of the roadway. Kegg v. Clackamas County, 15 Or LUBA

239 (1986).

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Administrative Law – Interpretation of Law. Where city ordinance imposed standard that there

be no “objectionable conditions” associated with the proposed development, a city interpretation

of this standard to allow consideration o f demands the use would impose on public safety services

was reasonable, and a city finding that the proposal would overburden the city’s police protection

services is a proper basis for denial of the development application. Texaco, Inc. v. King City, 15

Or LUBA 198 (1986).

Administrative Law – Interpretation of Law. Where the text of an ordinance is clear, but the

description of the text in an order applying the ordinance is incorrect, the text of the ordinance will

control. Texaco, Inc. v. King City, 15 Or LUBA 198 (1986).

Administrative Law – Interpretation of Law. Where an ordinance can reasonably be interpreted

in several ways, the interpretation by the body responsible for enacting it should control, especially

where its interpretation is consistent with the ordinance as a whole. Texaco, Inc. v. King City, 15

Or LUBA 198 (1986).

Administrative Law – Interpretation of Law. The term “automobile service station” is

ambiguous, and therefore susceptible to more than one reasonable interpretation. Texaco, Inc. v.

King City, 15 Or LUBA 198 (1986).

Administrative Law – Interpretation of Law. A plan statement that “one aspect of flood plain

management involves balancing the economic gain from flood plain development against the

increase in flood hazard” need not be read as a plan policy or an approval standard. Storey v. City

of Stayton, 15 Or LUBA 165 (1986).

Administrative Law – Interpretation of Law. Applicable plan policies which refer to “vacant

lands within the corporate city limits” and “the city’s useable land” require the city to consider all

undeveloped land in the city, not just land in a single zoning district. Storey v. City of Stayton, 15

Or LUBA 165 (1986).

Administrative Law – Interpretation of Law. Ordinance provisions requiring conformity with

the comprehensive plan generally and with specific plan provisions listed in the ordinance require

consideration of the entire comprehensive plan. Storey v. City of Stayton, 15 Or LUBA 165 (1986).

Administrative Law – Interpretation of Law. Plan policy calling for referral of land use

applications to agencies providing services to subject area does not suggest that the county loses

jurisdiction over the application if the affected agencies are not notified, the policy is interpreted

as a procedural requirement. Lane County School Dist. 71 v. Lane County, 15 Or LUBA 150

(1986).

Administrative Law – Interpretation of Law. Ordinance provision requiring governing body to

request a report and recommendation from the planning commission before taking action on a

comprehensive plan amendment will not be interpreted as applying to a plan amendment which

has been remanded to the governing body from a reviewing body such as LUBA. Lane County

School Dist. 71 v. Lane County, 15 Or LUBA 150 (1986).

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Administrative Law – Interpretation of Law. Plan policy requiring proposed recreational uses

to be compatible with surrounding development is not met by findings addressing compatibility

only with adjacent EFU-zoned agricultural land. Leonard v. Union County, 15 Or LUBA 135

(1986).

Administrative Law – Interpretation of Law. Statutes allowing preexisting uses to continue

after restrictive regulations are adopted do not permit expansion of the preexisting use. Cantrell v.

Wasco County, 15 Or LUBA 127 (1986).

Administrative Law – Interpretation of Law. Where city ordinance distinguishes between

“conventional subdivision” and “mobile home subdivision” but does not define either term, city

refusal to redesignate a subdivision which included a conventionally built home to a mobile home

subdivision was proper. Joy v. City of Talent, 15 Or LUBA 115 (1986).

Administrative Law – Interpretation of Law. Where a prior major partitioning included [in] a

condition limiting the number of dwellings on a parcel, a division of the parcel will not defeat the

prior condition. Enderson v. Marion County, 15 Or LUBA 60 (1986).

Administrative Law – Interpretation of Law. A county may consider the effect of partition

applications against possible future applications under a criterion requiring that a nonfarm

dwelling “not materially alter the stability of the overall land use pattern of the area.” Enderson v.

Marion County, 15 Or LUBA 60 (1986).

Administrative Law – Interpretation of Law. A finding that a proposed dwelling will have an

adverse impact on farming or forest practices requires an explanation of the alleged adverse

impact. Enderson v. Marion County, 15 Or LUBA 60 (1986).

Administrative Law – Interpretation of Law. A nonfarm dwelling may be sited on land

generally not suitable for farm use although a majority of the parcel is suitable for farm use. The

county should review the whole parcel for farm use suitability but may not insist the whole parcel

be found unsuitable for farm use. Enderson v. Marion County, 15 Or LUBA 60 (1986).

Administrative Law – Interpretation of Law. Decisionmaker’s requirement of a “heightened

burden of proof” because of the magnitude of the requested change does not render proceeding

constitutionally defective. City of Wilsonville v. Metropolitan Service District, 15 Or LUBA 44

(1986).

Administrative Law – Interpretation of Law. Denial of a requested zone change is not a de facto

amendment of the comprehensive plan. Robert Randall Company v. City of Wilsonville, 15 Or

LUBA 26 (1986).

Administrative Law – Interpretation of Law. Where a city plan designates particular geographic

areas as “areas of special concern” to which special design criteria apply, the city must identify the

area of special concern within which the affected property lies and the particular criteria to be

applied. Robert Randall Company v. City of Wilsonville, 15 Or LUBA 26 (1986).

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Administrative Law – Interpretation of Law. Where a city code does not state clearly that either

“objectives” or “policies” must be satisfied but only requires compliance with comprehensive plan

generally, a decision may be based on consideration of both plan “objectives” and “policies.”

Robert Randall Company v. City of Wilsonville, 15 Or LUBA 26 (1986).

Administrative Law – Interpretation of Law. Where a city comprehensive plan provides a

method to resolve conflict between plan provisions, LUBA will sustain a city’s reasonable

interpretation utilizing the plan policy. Robert Randall Company v. City of Wilsonville, 15 Or

LUBA 26 (1986).

Administrative Law – Interpretation of Law. Where city ordinance required that a structure be

“complementary” to the “built environment” and the “natural environment,” the city’s findings

stating only conclusions that the temple design meets the standard are not sufficient. McNulty v.

City of Lake Oswego, 15 Or LUBA 16 (1986).

Administrative Law – Interpretation of Law. Where a provision of city’s building design

standard is not clear and unambiguous, LUBA may defer to a local government interpretation

which is reasonable and not contrary to the ordinance. McNulty v. City of Lake Oswego, 15 Or

LUBA 16 (1986).

Administrative Law – Interpretation of Law. Where governing body is not required to take

action on an urban renewal amendment, LUBA will consider the amendment procedure to be

legislative in nature. Union Station Business Community Association v. City of Portland, 15 Or

LUBA 4 (1986).

Administrative Law – Interpretation of Law. ORS 197.835(8)(a)(C) authorizes relief where the

decision is unsupported by substantial evidence, but does not require that there be substantial

evidence addressing “issues” raised during permit hearings. Oatfield Ridge Residents Rights v.

Clackamas County, 14 Or LUBA 766 (1986).

Administrative Law – Interpretation of Law. Statutes authorizing creation of parcels for

nonfarm dwellings must be read in conjunction with ORS 215.243(3), which states a policy of

preserving the maximum amount of agricultural land in large blocks. Hearne v. Baker County, 14

Or LUBA 743 (1986).

Administrative Law – Interpretation of Law. A code provision allowing modification of off-

street parking requirements if “substantially equal protection to the surrounding properties is

afforded,” requires consideration of the number of spaces and their location. Callahan v. City of

Portland, 14 Or LUBA 678 (1986).

Administrative Law – Interpretation of Law. Where city parking regulation requires “legal

evidence * * * that property is and will remain available for use as off-street parking space,” an

agreement permitting the parking space owner to cancel at will does not meet the regulation

requirement. Callahan v. City of Portland, 14 Or LUBA 678 (1986).

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Administrative Law – Interpretation of Law. The date the county mails statutorily required

written notice of a permit decision is the date the decision becomes final for purposes of tolling

the 21-day period of appeal under ORS 197.830(7). Bainbridge v. Lane County, 14 Or LUBA 546

(1986).

Administrative Law – Interpretation of Law. Although ORS 197.015(10) empowers a “local

government” to make land use decisions, LUBA interprets ORS 215.050 and ORS 215.060 to

grant exclusive responsibility for comprehensive plan adoption and amendments to county

governing bodies rather than county planning commissioners or hearings officers. 1000 Friends of

Oregon v. Washington County, 14 Or LUBA 416 (1986).

Administrative Law – Interpretation of Law. A county comprehensive plan map amendment is

not a “contested case” within the meaning of ORS 215.402(1) which can be decided by a planning

commission under ORS 215.406. 1000 Friends of Oregon v. Washington County, 14 Or LUBA

416 (1986).

Administrative Law – Interpretation of Law. Where a city comprehensive plan is ambiguous

on question of whether a variance from a restriction may be allowed, the city’s interpretation that

a variance is allowable can be sustained if it is not clearly contradictory to the express language

and intent of the plan. Downtown Community Association v. City of Portland, 14 Or LUBA 382

(1986).

Administrative Law – Interpretation of Law. Where comprehensive plan calculates parking

spaces in mixed-use building based on floor area for office uses in the building, city cannot approve

the parking spaces while allowing developer the option of not constructing the office-use

component of the building. Downtown Community Association v. City of Portland, 14 Or LUBA

382 (1986).

Administrative Law – Interpretation of Law. Where a component of a city’s comprehensive

plan expresses parking ratio regulations in unambiguous, mandatory language, LUBA will not

interpret these regulations as advisory despite other references to the ratios as “guidelines.”

Downtown Community Association v. City of Portland, 14 Or LUBA 382 (1986).

Administrative Law – Interpretation of Law. A city is not required to read a comprehensive

plan goal in isolation, but may balance one goal with another in determining whether a project

complies with the comprehensive plan. Downtown Community Association v. City of Portland, 14

Or LUBA 382 (1986).

Administrative Law – Interpretation of Law. Greenway policy in ORS 390.314 does not limit

intensification of land use to “existing residential, commercial and agricultural uses” but rather

declares the necessity of restriction on all development within the Greenway to preserve its

“natural, scenic, historical and recreational qualities.” Urquhart v. LCOG and City of Eugene, 14

Or LUBA 335 (1986).

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Administrative Law – Interpretation of Law. An airstrip used by the owner as a base for owner’s

one airplane used in owner’s logging business is a personal use airport as defined in ORS

215.213(2)(h). Todd v. Douglas County, 14 Or LUBA 307 (1986).

Administrative Law – Interpretation of Law. A City’s reasonable interpretation of its

comprehensive plan will be upheld. Hannon v. Gresham, 14 Or LUBA 192 (1986).

Administrative Law – Interpretation of Law. ORS 215.416(8) requires only that county

standards for approval or denial of a permit application be clear enough for an applicant to know

what must be shown during the application process. Columbia River Television v. Marion County,

14 Or LUBA 179 (1986).

Administrative Law – Interpretation of Law. Plan policies which prescribe performance or

evaluation standards for specific actions or projects must be applied in the review of subdivision

applications; county cannot disregard such plan policies on grounds zoning ordinance defines

lands subject to regulation. McCoy v. Tillamook County, 14 Or LUBA 108 (1985).

Administrative Law – Interpretation of Law. Not all segments of a plan are intended to serve

as decision making criteria. The legal effect of particular plan language depends largely on the text

itself. McCoy v. Tillamook County, 14 Or LUBA 108 (1985).

Administrative Law – Interpretation of Law. Statute permitting a dwelling “customarily

provided in conjunction with farm use” requires a showing that the dwelling will be sited on a

parcel wholly devoted to farm use. Matteo v. Polk County, 14 Or LUBA 67 (1985).

Administrative Law – Interpretation of Law. LUBA will not read comprehensive plan and

implementing ordinances to have retroactive effect without some provision in the plan and

ordinances suggesting such a reading is required. Warren v. Lane County, 14 Or LUBA 36 (1985).

Administrative Law – Interpretation of Law. Zone change criterion requiring that proposed

mining site be in closest proximity to utilization area is not impermissibly vague and does not

require refinement before it can be applied in decision making process. Panner v. Deschutes

County, 14 Or LUBA 1 (1985).

Administrative Law – Statutory Interpretation – Clinic. In the absence of a statement of

reasons explaining why the facts found led the county to conclude that a sole practitioner’s dental

office constituted “a clinic” within the meaning of the county’s ordinance, it could not be said that

the county correctly applied its ordinance. Theland v. Multnomah County, 4 Or LUBA 284 (1981).

Administrative Law – Statutory Interpretation – Delegative Term. The court’s function on

review of an agency’s refinement of delegative terms is to ascertain whether the refinement and

application to specific facts falls within the generally expressed policy of the statute. Theland v.

Multnomah County, 4 Or LUBA 284 (1981).

Administrative Law – Statutory Interpretation – Inexact Term – Findings. When dealing with

an inexact term, the reasoning of the agency as to what a particular term means and why a particular

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set of facts falls within the “compass” of the term must, in a contested case proceeding, be set forth

in the agency’s order. Theland v. Multnomah County, 4 Or LUBA 284 (1981).

Administrative Law – Interpretation of Statutory Terms – Classes of Terms. The

responsibility of a judicial or quasi-judicial body in the review of administrative decisions

requiring interpretation of statutory terms hinges on whether the term is a “term of precise

meaning,” an “inexact term,” or a “term of delegation.” Theland v. Multnomah County, 4 Or LUBA

284 (1981).