Dept. of Land Conservation v. Clackamas County

No. 677 September 25, 2024 205

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

DEPARTMENT OF LAND CONSERVATION

AND DEVELOPMENT,

Respondent,

v.

CLACKAMAS COUNTY

and Jessey Cereghino,

Petitioners.

Land Use Board of Appeals

2023078;

A184663 (Control), A184684

Argued and submitted August 29, 2024.

Garrett H. Stephenson argued the cause for petitioner

Jessey Cereghino. Also on the brief was Schwabe Williamson

& Wyatt P. C.

Jane E. Vetto and Caleb Huegel filed the brief for peti-

tioner Clackamas County.

Robert M. Wilsey, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Carrie A. Richter, William K. Kabeiseman, and Bateman

Seidel P.C. filed the brief amicus curiae for City of Oregon

City.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

TOOKEY, P. J.

Affirmed.

206 Dept. of Land Conservation v. Clackamas County

Cite as 335 Or App 205 (2024) 207

TOOKEY, P. J.

These two petitions for judicial review of an order

of the Land Use Board of Appeals (LUBA) (A184684 and

A184663), consolidated for resolution by this opinion, con-

cern the construction of OAR 660-004-0040, an admin-

istrative rule of the Land Conservation and Development

Commission (LCDC). The Clackamas County Board of

Commissioners approved a change in the zoning of interve-

nor’s rural residential property from 10-acre to 2-acre mini-

mum without taking an exception from Statewide Planning

Goal 14 (Urbanization).1 LUBA determined that, under

OAR 660-004-0040(7), the county was required to evaluate

the zone change under Goal 14 and remanded the order to

the county for that purpose.

On judicial review, the county and intervenor con-

tend that LUBA erred in its construction of the adminis-

trative rule and in concluding that the county was required

to evaluate the zone change under Goal 14. Intervenor fur-

ther contends that LUBA misapplied its statutory scope of

review and lacked authority to remand the county’s decision.

The Department of Land Conservation and Development

(DLCD) responds that LUBA correctly remanded the

county’s decision for consideration of Goal 14.2

We review the issues raised on judicial review

for whether LUBA’s order is unlawful in substance. ORS

197.850(9) (setting forth the standard and scope of judicial

review of a LUBA order); Mountain West Investment Corp.

v. City of Silverton, 175 Or App 556, 559, 30 P3d 420 (2001)

(A LUBA order is unlawful in substance “if it represent[s]

a mistaken interpretation of the applicable law.”); Foland

v. Jackson County, 215 Or App 157, 163-64, 168 P3d 1238,

rev den, 343 Or 690 (2007) (A LUBA order is unlawful in sub-

stance if LUBA misapplied the governing law). We conclude

1

Statewide Planning Goal 14 (Urbanization) is:

“To provide for an orderly and efficient transition from rural to urban land

use, to accommodate urban population and urban employment inside urban

growth boundaries, to ensure efficient use of land, and to provide for livable

communities.”

2

The City of Oregon City has filed an amicus brief in support of DLCD’s

position on judicial review.

208 Dept. of Land Conservation v. Clackamas County

that the order is not unlawful in substance and therefore

affirm.

We begin our discussion with a summary of the

Supreme Court’s opinion in 1000 Friends of Oregon v. LCDC

(Curry County), 301 Or 447, 724 P2d 268 (1986), which is

foundational to our analysis. Curry County involved a chal-

lenge by 1000 Friends of Oregon (1000 Friends) to LCDC’s

acknowledgment of Curry County’s comprehensive land use

plan. 1000 Friends challenged the zoning the county had

applied to several thousand acres of land to allow residen-

tial development at densities of one to five acres, without

taking a Goal 14 exception. The county had previously taken

exceptions to Goals 3 and 4, which had been acknowledged

by LCDC. In support of its decision, the county took the posi-

tion, and LCDC and this court agreed, that the exceptions to

Goals 3 and 4 were sufficient to address any issues related

to urban development, and that no exception to Goal 14 was

necessary. 1000 Friends of Oregon v. LCDC, 73 Or App 350,

698 P2d 1027 (1985).

In Curry County, the Supreme Court concluded that

an exception to Goal 14 was necessary. The court stated that

it had before it the question of “what Oregon’s land use plan-

ning law requires a county to do before the county allows

‘urban uses’ of lands located outside [urban growth bound-

aries (UGB)].” Id. at 449. The technical question presented

to the court was when, “having justified ‘exceptions’ to allow

uses other than the farming and forestry that Statewide

Planning Goals 3 [Agricultural lands] and 4 [Forest Lands]

would otherwise require on certain lands,” “must a county

justify for those same lands ‘exceptions’ to Goal 14, which

aims ‘[t]o provide for an orderly and efficient transition from

rural to urban land use.’ ” Id.

The Supreme Court explained that urban uses are

not permitted outside of urban growth boundaries unless

an exception to Goal 14 is taken or the use is compliant with

Goal 14.3 In reversing and remanding LCDCs acknowledge-

ment of Curry County’s comprehensive plan and zoning

3

A Statewide Planning Goal exception is a comprehensive plan provision

by which a local government recognizes or allows for a use of land that any goal

would otherwise prohibit. See ORS 197.732(1)(b); OAR 660-015-0000(14).

Cite as 335 Or App 205 (2024) 209

ordinance, the Supreme Court held that LCDC’s acknowl-

edgment must determine whether Curry County’s compre-

hensive plan and zoning ordinance converted rural land to

urban uses and, if so, whether the county had adequately

considered the criteria of Goal 14. Id. at 521. As a practical

matter, the Supreme Court’s opinion in Curry County means

that Goal 14 compliance or an exception is required when

the potential effect of zoning on rural land outside of a UGB

is to convert the land to an urban use.

In response to Curry County, in 2000, LCDC adopted

OAR 660-004-0040, (the Rural Residential Rule) to delin-

eate the circumstances under which a Goal 14 exception is

required for a change to zoning of rural lands in acknowl-

edged exception areas planned for residential development.

The relevant provisions of the rule provide:

“(1) The purpose of this rule is to specify how Goal

14 ‘Urbanization’ applies to rural lands in acknowledged

exception areas planned for residential uses.

“(2) For purposes of this rule, the definitions in ORS

197.015, the Statewide Planning Goals and OAR 660-004-

0005 shall apply. In addition, the following definitions shall

apply:

“* * * * *

“(f) ‘Rural residential areas’ means lands that are

not within an urban growth boundary, that are planned

and zoned primarily for residential uses, and for which

an exception to Goal 3 ‘Agricultural Lands’, Goal 4 ‘Forest

Lands’, or both has been taken.

“(g) ‘Rural residential zone currently in effect’ means

a zone applied to a rural residential area that was in effect

on October 4, 2000, and acknowledged to comply with the

statewide planning goals.

“(3)(a) This rule applies to rural residential areas.

“* * * * *

“(4)(a) ***

“(b) Some rural residential areas have been reviewed

for compliance with Goal 14 and acknowledged to com-

ply with that goal by the department or commission in a

210 Dept. of Land Conservation v. Clackamas County

periodic review, acknowledgment, or post-acknowledgment

plan amendment proceeding that occurred after the Oregon

Supreme Court’s 1986 ruling in [Curry County], and before

October 4, 2000. Nothing in this rule shall be construed to

require a local government to amend its acknowledged com-

prehensive plan or land use regulations for those rural resi-

dential areas already acknowledged to comply with Goal 14

in such a proceeding. However, if such a local government

later amends its plan’s provisions or land use regulations

that apply to any rural residential area, it shall do so in

accordance with this rule.

“(5) The rural residential areas described in subsec-

tion (2)(f) of this rule are ‘rural lands.’ Division and devel-

opment of such lands are subject to Goal 14, which prohibits

urban use of rural lands.

“(6)(a) A rural residential zone in effect on October 4,

2000 shall be deemed to comply with Goal 14 if that zone

requires any new lot or parcel to have an area of at least two

acres[.]

“* * * * *

“(7) After October 4, 2000, a local government’s require-

ments for minimum lot or parcel sizes in rural residential

areas shall not be amended to allow a smaller minimum

for any individual lot or parcel without taking an exception

to Goal 14 pursuant to OAR chapter 660, division 14, and

applicable requirements of this division.”

(Emphases added.)

OAR 660-004-0040(5) states the default requirement

that the division and development of “rural lands” “are subject

to Goal 14, which prohibits urban use of rural lands.” But the

rule includes an exception. In OAR 660-004-0040(4)(b), LCDC

recognized that, in response to the Supreme Court’s opinion in

Curry County, and before the adoption of the Rural Residential

Rule, some local governments had already adopted compre-

hensive plan and land use regulation amendments that had

been acknowledged by LCDC. OAR 660-004-0040(4)(b) pro-

vides that local governments that had already adopted such

comprehensive plan and land use regulation amendments

were not required to further amend their comprehensive plans

and land use regulations to comply with OAR 660-004-0040.

The then-existing comprehensive plans and regulations were

Cite as 335 Or App 205 (2024) 211

thus deemed to be in compliance with Goal 14. Similarly,

OAR 660-004-0040(6)(a) states that a rural residential zone

of at least two acres in effect on October 4, 2000, “shall be

deemed to comply with Goal 14.” But OAR 660-004-0040(4)(b)

provides that, if a local government amends those previously

acknowledged comprehensive plans and land use regulations,

the local government must “do so in accordance with [OAR

660-004-0040],” under which a Goal 14 exception is required.

That requirement is emphasized in OAR 660-004-0040(7),

which provides that, if after the October 4, 2000, effective

date of the administrative rule, a local government amends

its “requirements for minimum lot or parcel sizes in rural

residential areas” “to allow a smaller minimum for any indi-

vidual lot or parcel,” the requirements “shall not be amended

without taking an exception to Goal 14 pursuant to OAR

chapter 660, division 14, and applicable requirements of this

division.”

We turn to the undisputed facts underlying of this

case. The subject property is 111 acres of rural land located

approximately one mile south of Oregon City’s urban growth

boundary and one mile northwest of the unincorporated

community of Beavercreek. The property is directly east of

and adjacent to Highway 213, and across the highway from a

golf course. The subject property is within the boundaries of

the Clackamas River Water District service area. It is also

within an area for which exceptions to Statewide Planning

Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands) were

taken in 1980, when the county’s comprehensive plan was

adopted. The subject property is designated “Rural” on

the Clackamas County Comprehensive Plan (CCCP) map.

That designation allows rural residential uses and is imple-

mented by zoning map designations of Farm/Forest 10-Acre

(FF-10), Rural Residential Farm Forest 5-acre (RRFF-5),

and Rural Area Residential 2-acre (RA-2). Since 1981, the

subject property has been zoned FF-10 on the county’s zon-

ing map. The FF-10 zone allows 10-acre minimum parcels.

The CCCP Policy 4.MM.11 sets forth specific, man-

datory criteria governing the application of each rural

residential zoning district, including the criteria for the

RA-2 zoning. The CCCP Rural Residential policies allow

212 Dept. of Land Conservation v. Clackamas County

the rezoning of rural residential properties to zones with

smaller minimum lot sizes (“upzoning”) according to the cri-

teria in CCCP Policy 4.MM.11, which do not require a Goal

14 exception.

In January 2002, as part of a periodic review,

LCDC acknowledged the county’s Rural comprehensive plan

designation and RRFF-5 and RA-2 zoning designations as

complying with Goal 14. LCDC’s periodic review approval

included approval of the county’s “Work Task 13,” which was

specifically intended to “[r]esolve the Goal 14 issues raised

in the Curry County Supreme Court decision for the areas

zoned RRFF-5[ and] RA-2.”

In 2023, intervenor applied to change the zoning

map designation for the subject property from FF-10 to RA-2,

which allows two-acre minimum parcels, and which would

allow for future subdivision and development of the subject

property for up to 55 two-acre lots. As proposed, the change

would not change the rural designation of the property or

require a comprehensive plan amendment; it would simply

change the zoning of the property from 10-acre to 2-acre

minimum, pursuant to the criteria stated in the county’s

acknowledged CCCP Policy 4.MM.11.

As explained above, in Curry County, in reversing

and remanding LCDCs acknowledgement of Curry County’s

comprehensive plan and zoning ordinance, the Supreme

Court held that urban uses are not permitted outside of

urban growth boundaries unless an exception to Goal 14 is

taken or the use is compliant with Goal 14. The court said:

“Exceptions to Oregon Statewide Planning Goals 3,

4 and other resource goals cannot generally suffice as

exceptions to Goal 14 because the former necessitate only

a determination that a narrow category of uses, the par-

ticular resource uses that are required by the Goal, are

impracticable, while the latter necessitates a finding that

not merely resource uses, but all other rural uses, are

impracticable.”

301 Or at 485. A local government must undertake a Goal

14 analysis to determine whether rural land is to be con-

verted to an urban use. Id. at 521.

Cite as 335 Or App 205 (2024) 213

And, as noted, the Rural Residential Rule delin-

eates the circumstances under which an exception to Goal

14 is required on rural residential land in exception areas.

Among those circumstances is a reduction in minimum

lots size. The dispute on this judicial review centers on the

meaning of OAR 660-004-0040(7), which states:

“After October 4, 2000, a local government’s requirements

for minimum lot or parcel sizes in rural residential areas

shall not be amended to allow a smaller minimum for any

individual lot or parcel without taking an exception to Goal

14 pursuant to OAR chapter 660, division 14, and applica-

ble requirements of this division.”

(Emphasis added.)

Under ORS 197.610, a local government is required

to submit proposed changes in a land use regulation,

including zoning map changes, to DLCD. ORS 197.610

(3)(b) (requiring submission of a proposed zoning map

change in accordance with ORS 197.610 to 197.625 post-

acknowledgement procedures); ORS 197.615(2)(b) (same);

OAR 660-018-0020(1) (same); OAR 660-018-0010(l)(a) (“a

change” for purposes of post-acknowledge procedures means

an amendment to the plan or implementing land use regu-

lations, “including an amendment to the plan text or map”);

OAR 660-018-0010(l)(g) defining a “map change” to mean “a

change in the designation or boundary of an area as shown

on the comprehensive plan map, zoning map or both, includ-

ing an area added to or removed from a comprehensive plan

or zoning map”). DLCD then notifies interested parties of the

proposed change. ORS 197.610(4). ORS 197.610(7) provides:

“When the director determines that a proposed change

to an acknowledged comprehensive plan or a land use reg-

ulation may not be in compliance with land use statutes or

the statewide land use planning goals, including adminis-

trative rules implementing either the statutes or the goals,

the [Department of Land Conservation and Development]

shall notify the local government of the concerns at least 15

days before the final evidentiary hearing, unless there is

only one hearing or the proposed change has been modified

to the extent that resubmission is required under subsec-

tion (6) of this section.”

214 Dept. of Land Conservation v. Clackamas County

Thus, a proposed change to a comprehensive plan or land use

regulation must be “in compliance with land use statutes or

the statewide land use planning goals, including adminis-

trative rules implementing either the statutes or the goals.”

Upon being notified of the county’s proposed zone

change, the DLCD submitted a letter to the county, taking

the position that, in view of the fact that the county’s compre-

hensive plan would allow the zone change without an excep-

tion to Goal 14, OAR 660-004-0040(7) applied directly to the

application and required intervenor to obtain an exception

to Goal 14 for the requested upzoning. DLCD stated that

a Goal 14 exception is necessary, because the zone change

would “amend the applicable requirements regarding mini-

mum parcel size to allow a greater amount of development,

triggering OAR 660-004-0040(7).” 4

Intervenor responded that once a local government’s

comprehensive plan and land use regulations are acknowl-

edged under ORS 197.251, the Statewide Planning Goals

no longer apply directly to its land use decisions, other than

those decisions that amend the acknowledged plan or regu-

lations. Intervenor contended that, because the CCCP had

already been acknowledged by DLCD, and Work Task 13

had been approved on periodic review, it must be assumed

that DLCD had determined that the county was in compli-

ance with OAR 660-004-0040(7); thus, intervenor asserted,

no Goal 14 exception was required.

A county hearings officer agreed with intervenor,

concluding that OAR 660-004-0040(7) did not require a

Goal 14 exception for the upzoning, because both the FF-10

and the RA-2 zones, as stated in the CCCP Policy,5 had

4

Although LCDC is entitled to deference in the construction of its own

administrative rule if that construction is not inconsistent with the wording of

the rule, its context, or any other source of law, Barkers Five, LLC v. LCDC, 261

Or App 259, 302, 323 P3d 368 (2014), DLCD’s understandings and interpretations

of the goals and rules adopted by LCDC are entitled to no deference, because the

rule is a rule adopted by LCDC. DLCD v. Jackson County, 151 Or App 210, 220-

21, 948 P2d 731 (1997). Thus, although DLCD drafted the rule for LCDC, DLCD’s

construction of the rule is not entitled to deference.

5

CCCP Policy 4.MM.11.1 states:

“The RA-2 zoning district shall be applied when all the following criteria

are met:

a. Parcels are generally two acres or smaller.

“

Cite as 335 Or App 205 (2024) 215

previously been acknowledged by LCDC as consistent with

Goal 14. The hearings officer’s order became the county’s

final order.

DLCD appealed the hearings officer’s order to

LUBA, contending that the hearings officer had improperly

construed OAR 660-004-0040(7), which, in DLCD’s view,

is straightforward and requires consideration of Goal 14

whenever a county increases development density zoning

in a rural residential area. DLCD argued that, by its plain

terms, OAR 660-004-0040(7) is triggered by an amendment

that allows a smaller minimum for any individual lot or par-

cel, without distinction between a zoning code text amend-

ment and a zoning map amendment. DLCD also argued

that the amendment of the zoning is a post-acknowledgment

amendment to the county’s zoning code that is subject to

the provisions for post-acknowledgment amendments, ORS

197.610 to 197.625, including compliance with the goals and

LCDC administrative rules.

Intervenor and the county (together, respondents)

argued to LUBA that the phrase “local government require-

ments for minimum lot or parcel sizes” refers only to changes

in a county’s comprehensive plan and zoning ordinance text

criteria that apply to rural residential areas, not to zoning

map designations. The proposed zone change would not

change any of the criteria for the RA-2 zone as stated in

acknowledged CCCP Policy 4.MM.11; thus, respondents con-

tended that the change in the zoning was not subject to OAR

660-004-0040(7)’s requirement for consideration of Goal 14.

Respondents also argued that, because the comprehensive

plan and the county’s RA-2 zoning map designation had pre-

viously been acknowledged by LCDC to comply with Goal

14, DLCD’s current construction of the Rural Residential

Rule constituted a collateral attack on the acknowledged

comprehensive plan. Intervenor further contended that ORS

197.835, which state’s LUBA’s scope of review of a county’s

“b. The area is significantly affected by development.

“c. There are no natural hazards, and the topography and soils are suit-

able for the location of homes.

“d. A public or private community water system is available.

“e. Areas are in proximity or adjacent to an Unincorporated Community

or incorporated city.”

216 Dept. of Land Conservation v. Clackamas County

decision, did not provide LUBA with authority to review

DLCD’s appeal.

LUBA disagreed with intervenor that it lacked

authority to review the county’s order and reviewed the coun-

ty’s order under the scope of review stated in ORS 197.835

(9)(a)(D), which provides that LUBA will reverse or remand

a local government decision that improperly construes the

applicable law. As for the merits of respondents’ statutory

construction argument, LUBA noted a lack of precision in

the Rural Residential Rule, particularly its reference to a

local government’s requirements for minimum lot or parcel

sizes. LUBA disagreed with DLCD’s characterization of

OAR 660-004-0040(7) as “straightforward” and described

the phrase “local government requirements for minimum

lot or parcel sizes” as ambiguous:

“That phrase could refer to criteria set forth in the text of

a local government’s comprehensive plan or land use reg-

ulations, as respondents read it, or it could refer to both

criteria and plan or zoning map designations that establish

minimum lot or parcels sizes, as petitioner reads it. The

text of the rule is ambiguous, and could support either par-

ty’s construction of the rule.”

LUBA explained that it understood the county hearings

officer’s construction of the term “requirements” to be a ref-

erence to the textual requirements for minimum lot sizes

in the county’s comprehensive plan or ordinances, not a

reference to the zoning shown on maps. But LUBA none-

theless concluded that DLCD’s construction was correct.

LUBA reasoned that OAR 660-004-0040(7) does not limit

“requirements” to changes to “legislative” textual provi-

sions such as comprehensive plans, as urged by respon-

dents. LUBA further noted that ORS 197.015(11) defines a

“land use regulation” as “any local government zoning ordi-

nance, land division ordinance adopted under ORS 92.044

or 92.046, or similar general ordinance establishing stan-

dards for implementing a comprehensive plan,” and that the

Clackamas County Zoning and Development Ordinance,

ZDO 103.02(A), expressly incorporates zoning maps into the

county’s ordinance:

Cite as 335 Or App 205 (2024) 217

“Zoning district boundaries are hereby established as

shown on the zoning maps of the unincorporated terri-

tory of Clackamas County, Oregon, which maps are hereby

made a part of this Ordinance.”

Thus, LUBA concluded, zoning maps are a part of the ordi-

nance, and the county’s proposed amendment to the zoning

map designation for the subject property was an amend-

ment to a land use regulation within the meaning of OAR

660-004-0040(7).

Finally, examining the legislative history of the

Rural Residential Rule, LUBA determined that the intention

of LCDC in the adoption of OAR 660-004-0040(7) was that

zoning of two acres or more in effect on October 4, 2000 would

be deemed to comply with Goal 14, but that any upzoning

to a higher density, either through zoning map amendments

or plan and zoning or ordinance text amendments, would

require an exception to Goal 14. Thus, LUBA interpreted the

phrase “a local government’s requirements for minimum lot

or parcel sizes” to refer generally to then-existing provisions

in the acknowledged plan or zoning ordinance, including plan

or map designations, that established minimum lot or parcel

sizes in rural residential exception areas.

LUBA addressed intervenor’s contention that the

above construction is inconsistent with DLCD’s 2002

approval of the county’s “Periodic Review Work Task 13”

and acknowledgment of the comprehensive plan in response

to Curry County, after LCDC’s adoption of the Rural

Residential Rule. LUBA held:

“Section (4)(b) and Section (6)(a) of the Rural Residential

Rule and the administrative rule history discussed above

make clear that LCDC intended to recognize counties that

had achieved, during the time between the court’s decision

in Curry County and the effective date of the rule, acknowl-

edgement of existing rural residential zones as compliant

with Goal 14. Section 7 of the rule makes clear that LCDC

intended to prevent Upzoning of properties to an existing

higher density rural residential zoning designation with-

out a Goal 14 exception. [DLCD] is correct that Upzoning

the property to a higher density zoning map designa-

tion requires an exception to Goal 14, pursuant to OAR

660-004-0040(7).”

218 Dept. of Land Conservation v. Clackamas County

LUBA also distinguished its own order in Oregon

Shores Coalition v. Curry County, 53 Or LUBA 503 (2007).

In that case, Coos County had sought to amend its zoning to

allow a 2-acre parcel size. The county agreed that to do so

required a Goal 14 exception. The petitioners contended that

the county must also take Goal 14 exceptions to the existing

10 and 5-acre lot sizes that the county was not amending.

LUBA rejected that contention, stating:

“While the text of [OAR 660-004-0040(7)] could be clearer,

we believe it refers to the amendment to allow a smaller

minimum lot size and does not refer to an existing acknowl-

edged zoning ordinance that already allowed a reduction

from a ten-acre minimum lot size to a five-acre minimum

lot size in the RR zone without an exception.”

Thus, LUBA concluded that only amendments to compre-

hensive plans or zoning were subject to consideration under

Goal 14, and LUBA allowed to stand the unamended,

acknowledged portion of the plan, which had allowed 5- and

10-acre lot sizes without a Goal 14 exception. In contrast

here, where the county seeks to change zoned minimum lot

sizes, LUBA determined that the county erred in failing

to review the proposed zone change under Goal 14; LUBA

therefore remanded the county’s order for that purpose.

We turn initially to intervenor’s contention in its

first assignment of error that LUBA misapplied its scope

of review. ORS 197.835 states LUBA’s scope of review and

provides, in relevant part:

“(6) The board shall reverse or remand an amendment

to a comprehensive plan if the amendment is not in compli-

ance with the goals.

“(7) The board shall reverse or remand an amendment

to a land use regulation or the adoption of a new land use

regulation if:

“(a) The regulation is not in compliance with the com-

prehensive plan; or

“(b) The comprehensive plan does not contain specific

policies or other provisions which provide the basis for the

regulation, and the regulation is not in compliance with the

statewide planning goals.”

Cite as 335 Or App 205 (2024) 219

“* * * * *

“(9) In addition to the review under subsections (1) to

(8) of this section, the board shall reverse or remand the

land use decision under review if the board finds:

“(a) The local government or special district:

“* * * * *

“(D) Improperly construed the applicable law[.]”

Intervenor contends that the proposed zone change is not

subject to reversal by LUBA under any of the above provi-

sions of ORS 197.835. Intervenor asserts that the zone change

is not subject to review under ORS 197.835(6), because the

zone change does not effect an amendment to the acknowl-

edged comprehensive plan and is, in fact, in compliance with

the plan. And, intervenor asserts, because LUBA concluded

that the zone change had resulted in an amendment of the

county’s zoning ordinance, only ORS 197.835(7) can provide

a basis for LUBA’s review of the county’s decision, but that

that subsection also does not apply, because the zone change

is in compliance with the comprehensive plan, which inter-

venor asserts includes specific policies or other provisions

that provide the basis for the change. ORS 197.835(7)(a), (b).

Thus, in intervenor’s view, LUBA lacked authority to reverse

and remand the county’s decision on DLCD’s appeal.

We reject intervenor’s argument relating to scope of

review. As LUBA correctly explained, DLCD’s assignment

of error to LUBA, which LUBA concluded was preserved,

was that the county’s decision was the result of an improper

construction of OAR 660-004-0040(7), which DLCD con-

cluded is the “applicable law.” As discussed more fully below

in this opinion, we agree with LUBA’s conclusion that OAR

660-004-0040(7) is the applicable law; thus, we agree with

LUBA that its authority to reverse and remand the county’s

order is stated in ORS 197.835(9)(a)(D).

We turn to the merits of respondents’ assignments

of error. On judicial review, as before LUBA, the county and

intervenor contend that LUBA misconstrued OAR 660-004-

0040(7) to apply to zoning map changes, contending that

the rule only applies to changes to comprehensive plan or

ordinance criteria for zoning. Additionally, respondents

220 Dept. of Land Conservation v. Clackamas County

point out that an acknowledged comprehensive plan is the

controlling land use planning instrument for a city. Foland

v. Jackson County, 311 Or 167, 171, 807 P2d 801 (1991)

(“[O]nce LCDC grants acknowledgement, the city or county

no longer is technically required to make land use decisions

in compliance with the goals”); Cape v. City of Beaverton,

187 Or App 463, 467, 68 P3d 261 (2003) (“[O]nce a local gov-

ernment’s comprehensive plan and land use regulations are

acknowledged under ORS 197.251, the Statewide Planning

Goals no longer apply directly to its land use decisions.”);

Kenagy v. Benton County, 115 Or App 131, 134, 838 P2d 1976,

rev den, 315 Or 271 (1992) (“After a county’s comprehensive

plan and land use regulations have been acknowledged as

complying with the statewide planning goals, the local leg-

islation becomes directly applicable to most of its land use

decisions, and the goals cease to be applicable.”). They assert

that LUBA’s order applying OAR 660-004-0040(7) conflicts

with the established precedent that a local government land

use decision in compliance with an acknowledged plan is

not subject to review under the Statewide Planning Goals.

Thus, respondents contend, LUBA erred in determining

that the county’s upzoning decision must be reviewed under

Goal 14.

We address first respondents’ contention (raised in

intervenor’s first assignment of error and in the county’s

single assignment of error) relating to the construction of

OAR 660-004-0040(7). The issue presents a question of

construction of the administrative rule, which we consider

under the same principles applicable to the construction of

statutes, examining the rule’s text, context, and, if neces-

sary, the administrative rule history, with the goal of dis-

cerning the intent of LCDC, the body that adopted the Rural

Residential Rule. LandWatch Lane County v. LCDC, 290

Or App 694, 415 P3d 1064 (2018) (citing State v. Gaines, 346

Or 160, 171-72, 206 P3d 1042 (2009); PGE v. Bureau of Labor

and Industries, 317 Or 606, 859 P2d 1143 (1993)). For all the

reasons provided by DLCD to LUBA and on judicial review,

we conclude that the zone map amendment triggered the

requirement to consider Goal 14 in the county’s evaluation

of the requested zone change. As LUBA held, the phrase

“a local government’s requirements for minimum lot or

Cite as 335 Or App 205 (2024) 221

parcel sizes” is susceptible to a plausible construction that

it refers only to legislative textual requirements stated in

a comprehensive plan or zoning ordinance. But we readily

conclude that the more plausible construction of OAR 660-

004-0040(7) is that the requirement for compliance with, or

an exception to, Goal 14 is intended to apply also to zoning

map changes that increase density. As LUBA pointed out,

the rule does not limit “requirements” to textual require-

ments. Additionally, as LUBA also pointed out, the county’s

zoning map is a part of its ordinance. Thus, a change in the

zoning map is an amendment of the ordinance. We there-

fore conclude that an amendment of an ordinance to upzone

is an amendment of “the requirements for minimum lot or

parcel sizes.” Additionally, we conclude that context—OAR

660-004-0040(4)(b), (5), and (6)—as well as the adminis-

trative rule’s adoption history, make clear the intention of

LCDC that, consistent with the Supreme Court’s opinion in

Curry County relating to the urbanization of rural lands,

after October 4, 2000, upzoning of rural residential land is

to be subject to evaluation under Goal 14.

We turn to the county’s second argument under its

first assignment of error and intervenor’s second assign-

ment of error, in which respondents appear to contend that

LUBA’s order is unlawful in substance because it allows a

collateral attack on the county’s acknowledged comprehen-

sive plan, in violation of ORS 197.175(2)(d). That statute pro-

vides, in part:

“(2) Pursuant to ORS chapters 195, 196, 197 and 197A,

each city and county in this state shall:

“* * * * *

“(d) If its comprehensive plan and land use regulations

have been acknowledged by the commission, make land use

decisions and limited land use decisions in compliance with

the acknowledged plan and land use regulations[.]”

Respondents are correct that, as ORS 197.175(2)(d) is con-

strued, the generally applicable principle is that, after a

local government’s comprehensive plan and land use reg-

ulations have been acknowledged by LCDC, its land use

decisions can be reviewed only for their compliance with the

acknowledged plan and land use regulations; the goals do

222 Dept. of Land Conservation v. Clackamas County

not apply directly to post-acknowledgment land use deci-

sions of a local government. See generally State ex rel Butler

v. City of Bandon, 204 Or App 690, 131 P3d 855, adh’d to as

modified on recons, 206 Or App 288, 136 P3d 1199 (2006)

(explaining effect of ORS 197.175(2)(d) and the interaction of

that statute with ORS 197.829(1)(d))6; Friends of Neabeack

Hill v. City of Philomath, 139 Or App 39, 45-46, 911 P2d

350, rev den, 323 Or 136 (1996); Ludwick v. Yamhill County,

72 Or App 224, 696 P2d 536, rev den, 299 Or 443 (1985).

But despite that general principle, there are circumstances

in which a governing body’s post-acknowledgment land use

decisions must be evaluated under the goals. Among those

circumstances are post-acknowledgment plan amendments.

A land use decision that amends an acknowledged compre-

hensive plan is directly reviewable for goal compliance. ORS

197.835(6) (“The board shall reverse or remand an amend-

ment to a comprehensive plan if the amendment is not in

compliance with the goals.”). A post-acknowledgment plan

amendment “encompasses actions taken in accordance with

ORS 197.610 through 197.625, including amendments to an

acknowledged comprehensive plan or land use regulation and

the adoption of any new plan or land use regulation.” OAR

660-023-0010(5) (Emphasis added). The challenged zoning

map change was an amendment of a land use regulation;

thus, it was subject to the requirements for a plan amend-

ment, including evaluation under the goals.

Finally, we note that state law, viz., statutes or

administrative rules, can require consideration of goals irre-

spective of acknowledgment. See Butler, 204 Or App at 701

(“Because the city’s plan * * * and implementing ordinances

6

ORS 197.829 provides:

“(1) The Land Use Board of Appeals shall affirm a local government’s

interpretation of its comprehensive plan and land use regulations, unless the

board determines that the local government’s interpretation:

“(a) Is inconsistent with the express language of the comprehensive plan

or land use regulation;

“(b) Is inconsistent with the purpose for the comprehensive plan or land

use regulation;

“(c) Is inconsistent with the underlying policy that provides the basis for

the comprehensive plan or land use regulation; or

“(d) Is contrary to a state statute, land use goal or rule that the compre-

hensive plan provision or land use regulation implements.”

Cite as 335 Or App 205 (2024) 223

* * * have been acknowledged, the pertinent permit approval

criteria inhere in those documents and in any state laws or

regulations that apply irrespective of an acknowledgment.”

(Emphasis added.)); Leathers v. Marion County, 144 Or App

123, 130, 925 P3d 148 (1996) (even after acknowledgment

“questions pertaining to the need for or sufficiency of state-

wide goal exceptions are governed by applicable provisions

of state law.”).

OAR 660-004-0040(4)(b) is such a rule. It provides

that, “if [after acknowledgment] such a local government

later amends its plan’s provisions or land use regulations

that apply to any rural residential area, it shall do so in

accordance with this rule.” As we have explained above, the

challenged zoning map change was subject to OAR 660-

004-0040(4)(b), which explicitly requires consideration of

Goal 14 upon an intensification of density in a rural residen-

tial area. The rule applies irrespective of acknowledgment.

The county’s amendment of its zoning map was an ordi-

nance amendment that triggered OAR 660-004-0040(7).

See also ORS 197.610(3)(b) (requiring submission to DLCD

of a proposed zoning map change in accordance with ORS

197.610 to ORS 197.625 post-acknowledgement procedures);

ORS 197.615(2)(b) (same); OAR 660-018-0020(1) (same);

OAR 660-018-0010(l)(a) (“a change” for purposes of post-

acknowledge procedures means an amendment to the plan

or implementing land use regulations, “including an amend-

ment to the plan text or map”); OAR 660-018-0010(l)(g)

defining a “map change” to mean “a change in the designa-

tion or boundary of an area as shown on the comprehensive

plan map, zoning map or both, including an area added to or

removed from a comprehensive plan or zoning map”). Thus,

the requirements of the Rural Residential Rule, OAR 660-

004-0040(7), apply irrespective of any previously acknowl-

edged comprehensive plan, and LCDC’s prior acknowledg-

ment and approval of periodic review of the Clackamas

County comprehensive plan did not insulate the county from

the requirements of OAR 660-004-0040(7) with respect to

later ordinance amendments. See also ORS 197.646 (requir-

ing local governments to amend their comprehensive plans

and land use regulations to comply with new requirements

in the administrative rules that implement the statewide

224 Dept. of Land Conservation v. Clackamas County

planning goals, and which provides that, when a local gov-

ernment does not do so, the new requirements apply directly

to the local government’s land use decisions). We empha-

size that, under OAR 660-004-0040, zoning that has been

acknowledged as of October 4, 2000, is deemed to be in com-

pliance with Goal 14, and there is no need for consideration

of Goal 14. The rule requires consideration of Goal 14 only

in the context of an upzoning change of an existing zone. In

that circumstance, we do not perceive a conflict between an

application of OAR 660-004-0040(7) and the general prin-

ciple that land use decisions that comply with an acknowl-

edged comprehensive plan are not subject to the goals.

Affirmed.