1000 Friends of Oregon v. Linn County

432

Argued and submitted July 28, reversed and remanded September 10, petition

for review denied December 10, 2020 (367 Or 290)

1000 FRIENDS OF OREGON,

Respondent,

v.

LINN COUNTY,

Respondent Below,

and

Ronald HENTHORNE,

Virginia Henthorne, and Lynn Merrill,

Petitioners.

Land Use Board of Appeals

2019103, 2019104; A174056

475 P3d 121

Petitioners Ronald Henthorne, Virginia Henthorne, and Lynn Merrill seek

judicial review of a final order of the Land Use Board of Appeals (LUBA) that set

aside a decision of the Linn County Board of Commissioners approving an appli-

cation for a zone change and a comprehensive plan amendment. In that order,

LUBA reversed a decision by the county approving petitioners’ application for

a plan amendment and zone change from Farm Forest to Non-Resource 5 Acre

Minimum (NR-5) for a 108-acre vacant parcel. It did so because it read two provi-

sions of the county’s comprehensive plan to allow for only three potential resource

designations for such wildlife habitat, none of which were the NR-5 plan and zone

designation. On review, petitioners argue that LUBA legally erred in interpret-

ing the provisions at issue because it did not defer to the county’s plausible con-

trary interpretation. Petitioners also contend that, in any event, the provisions

at issue do not impose a categorical prohibition of the use of the NR-5 designation

on land mapped as wildlife habitat. Held: The county’s implicit interpretation of

the provisions at issue allow for planning and zoning amendments outside of the

three potential resource designations, such as the NR-5 designation, and that

interpretation is plausible.

Reversed and remanded.

Wendie L. Kellington argued the cause for petitioners.

Also on the brief was Kellington Law Group PC.

Andrew Mulkey argued the cause and filed the brief for

respondent.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

LAGESEN, P. J.

Reversed and remanded.

Cite as 306 Or App 432 (2020) 433

LAGESEN, P. J.

This case is before us on judicial review of a final

order of the Land Use Board of Appeals (LUBA) that set

aside a decision of the Linn County Board of Commissioners

approving an application for a zone change and a compre-

hensive plan amendment. We reverse and remand because,

in concluding that the requested plan amendment and zone

change was not authorized, LUBA erroneously failed to defer

to the county’s plausible interpretation of its own compre-

hensive plan, as required under Siporen v. City of Medford,

349 Or 247, 262, 243 P3d 776 (2010). As a result, LUBA erro-

neously concluded that the proposed zone change and com-

prehensive plan amendment were categorically prohibited

by two provisions of the county’s comprehensive plan.

Petitioners Ronald Henthorne, Virginia Henthorne,

and Lynn Merrill seek review of the LUBA final order at

issue. In that order, LUBA reversed a decision by the county

approving petitioners’ application for a plan amendment and

zone change from Farm Forest (F/F) to Non-Resource 5 Acre

Minimum (NR-5) for a 108-acre vacant parcel. One reason

that LUBA reversed the county’s decision is that petitioners’

property is in an area mapped as big game habitat. LUBA

reads two provisions of the county’s comprehensive plan

to preclude the use of the NR-5 plan and zone designation

for such land. Specifically, LUBA reads Linn County Code

(LCC) 903.550(A)(1) and LCC 903.510(B)(3), to require that

land mapped as wildlife habitat must be designated on the

comprehensive plan, and zoned, using one of three resource

designations that do not include NR-5.

Before us, petitioners argue that LUBA legally

erred in interpreting the provisions at issue because it did

not defer to the county’s plausible contrary interpretation

as required under Siporen, 349 Or at 262, and because,

in their view, the text and the context of the provisions at

issue, regardless of any deference owed to the county, do not

impose a categorical prohibition of the use of the NR-5 des-

ignation on land mapped as wildlife habitat. Petitioners also

contend that LUBA erred in denying their motion to strike

evidence from the local record pertaining to the standing of

434 1000 Friends of Oregon v. Linn County

respondent on appeal, 1000 Friends of Oregon, and to dis-

miss 1000 Friends’ LUBA appeal for lack of standing.

1000 Friends views LUBA’s order differently. It

responds that LUBA did not interpret the county’s plan

provisions in the way that petitioners claim that it did

and that we should affirm because, in its view, petitioners

have not challenged the actual basis for LUBA’s decision.

1000 Friends asserts that what LUBA actually addressed

was more a matter of timing than a conclusion that land

mapped as wildlife habitat could never be designated and

zoned NR-5: “LUBA determined that the county was wrong

to conclude that it could defer its analysis of the potential

impacts of the NR-5 zone on the property’s mapped big game

habitat.” 1000 Friends also argues that the county never

interpreted the plan provisions at issue, either implicitly or

explicitly, and that, therefore, there was no interpretation

to which LUBA was required to defer. Finally, 1000 Friends

contends that LUBA was correct to deny petitioners’ motion

to strike evidence from the local record.

As an initial matter, we reject without further dis-

cussion petitioners’ contention that LUBA erred in deny-

ing their motion to strike evidence from the local record.

As LUBA correctly noted, petitioners did not establish that

there was any authority for it to grant that particular relief,

and petitioners have not identified anything in their brief to

us that calls LUBA’s judgment on that point into question.

As for the remaining issues, the initial question

raised by the parties’ arguments is what, exactly, did LUBA

decide in the order on review? In particular, did LUBA

interpret the county’s plan in the manner that petitioners

claim that it did, that is, did LUBA’s decision hinge in whole

or in part on its determination that the county’s plan does

not permit the use of the NR-5 designation for land mapped

as wildlife habitat?

We conclude that it did. 1000 Friends is correct

that LUBA also construed the county’s plan provisions to

preclude the county from deferring its analysis regarding

the impact of the plan and zone change on wildlife habi-

tat until approval of development is sought. 1000 Friends

Cite as 306 Or App 432 (2020) 435

additionally is correct to observe that petitioners have not

challenged that aspect of LUBA’s ruling. That ruling, how-

ever, is not the only interpretive ruling that LUBA made.

LUBA reversed the county’s decision outright and did not

remand it to conduct the deferred analysis that LUBA held

the county had wrongfully deferred. LUBA took that path

because it concluded that the county’s plan categorically

precludes the use of the NR-5 designation for land mapped

as wildlife habitat:

“We will reverse a land use decision when the decision

‘violates a provision of applicable law and is prohibited as

a matter of law.’ OAR 661-010-0071(1)(c). Intervenors seek

a plan amendment and zone change to apply the NR plan

and zoning designation to property that is, at least par-

tially, mapped as peripheral big game habitat. In our res-

olution of the first assignment of error, we concluded the

LCC 903.510(B)(3) and LCC 903.550(A)(1) require resource

plan and zone designations for property that is mapped big

game habitat. Accordingly, changing the plan and zoning

designations of property that [is] mapped as a peripheral

big game habitat to [the] NR designation is ‘prohibited as a

matter of law.’ ”

Thus, petitioners’ arguments attack the very legal ruling

on which LUBA’s disposition turned. If LUBA’s resolution of

the case rested solely on the timing question, it would have

reversed and remanded the county’s decision to shore up the

deficiencies in its analysis, and it would not have reversed

outright.

The next question prompted by the parties’ argu-

ments is whether the county, in fact, interpreted the pro-

visions at issue to not categorically prohibit the requested

plan amendment and zone change. As we have explained,

a county’s interpretation of an ordinance or plan provision

need not be explicit; an interpretation may also be “inherent

in the way that [the county] applied the standard.” Alliance

for Responsible Land Use v. Deschutes County, 149 Or App

259, 267, 942 P2d 836 (1997), rev dismissed as improvidently

allowed, 327 Or 555 (1998). “[T]he test for whether an inter-

pretation is adequate for review is not a formulaic one and is

not to be applied rigidly.” Id. at 266.

436 1000 Friends of Oregon v. Linn County

Here, it is necessarily implicit in the county’s deci-

sion to approve petitioners’ application for a plan amendment

and zone change from F/F to NR-5 that the county inter-

prets its plan to permit the use of designations other than

the ones that LUBA determined were allowable. Beyond

that, in approving petitioners’ application, the county was

called upon to address whether the proposal would have a

“significant adverse impact on a sensitive fish or wildlife

habitat.” In so doing, the county identified LCC 903.510

as containing the “Plan polices for wildlife areas and hab-

itat,” and proceeded to evaluate how petitioners’ proposal

appeared consistent with the plan objectives of preserving

wildlife habitat. Under those circumstances, the county’s

understanding of its plan is not a matter that is genuinely

debatable: The county does not read its plan to impose the

categorical prohibition on the use of plan and zone desig-

nations that LUBA read into it. There would be no point

in conducting the analysis that the county conducted if the

county read its plan to impose that type of categorical bar.

The final question is whether the county’s read-

ing of the plan provisions at issue to allow for a plan and

zone designation other than the specific resource designa-

tions listed in LCC 903.510(B)(3) and LCC 903.550(A)(1) is

plausible, given the text and context of the provisions. Sky

Lakes Medical Center, Inc. v. Klamath Falls, 299 Or App

343, 346, 450 P3d 582 (2019) (“Under ORS 197.829(1), LUBA

is required to accept a local government’s interpretation of

its own land use ordinance if that interpretation ‘plausibly

accounts for the text and context’ of the ordinance.” (Quoting

Siporen, 349 Or at 262.)). It is.

LCC 903.510(B)(3) states:

“The major and peripheral habitats are protected from

most conflicting uses through application of the Forest

Conservation and Management (FCM), Exclusive Farm Use

(EFU), and Farm/Forest (F/F) zones. The FCM, EFU, and

F/F zones encourage resource activities and limit poten-

tially conflicting uses. Because of the recreational, eco-

nomic, aesthetic, and ecological value of fish and wildlife,

the potential impact on sensitive habitats will be assessed

on planning permit applications for conditional uses, vari-

ances, and zone and plan amendments. Siting standards,

Cite as 306 Or App 432 (2020) 437

including the use of setbacks and clustering methods, will

be used to lessen impact on habitats.”

LCC 903.550(A) states, in part:

“The policies set forth in LCC 903.510(B)(2) to (1) [sic]

shall be implemented by the following:

“(1) The Agricultural Resource, Forest Resource, and

Farm/Forest plan designations shall be used on the Linn

County Comprehensive Plan to conserve sensitive fish

and wildlife habitats. Land use proposals subject to Linn

County review that have undesirable impacts on these

resources shall be reviewed during the plan amendment,

zone amendment and conditional use permit process.”

LUBA’s reading of those provisions to bar a plan

amendment and zone change to something other than one

of the specified resource designations for land mapped as

wildlife habitat may be one plausible interpretation of those

provisions. But it is not the only one.

As petitioners point out, the references in each pro-

vision to plan and zone “amendments” make those provi-

sions ambiguous. Those references make it at least plausible

to think that the county intended to allow for amendments

away from the specified plan and zone designations.

Certainly, one way the provisions reasonably could be read

is to (1) require the particular designations for land mapped

as wildlife habitat no matter what; and (2) separately require

an analysis of wildlife impacts during any of the approval

processes described in the provisions, regardless of whether

the land at issue is mapped as wildlife habitat.

But another plausible interpretation is the interpre-

tation implicit in the county’s approval of petitioners’ appli-

cation. As petitioners argue, the provisions can be read to

set forth a two-step process for protecting wildlife resources.

Under that reading, the provisions first set the default plan

and zoning designations for land mapped as wildlife habi-

tat, designations that the county has concluded operate to

protect habitat “from most conflicting uses.” The provisions

then require the assessment of the impacts on wildlife hab-

itat of any proposed changes to those default designations

through plan amendments or zone changes. It is this latter

438 1000 Friends of Oregon v. Linn County

aspect of each provision—that is, the requirement to assess

impacts on wildlife habitats in the context of plan amend-

ments and zone amendments—that makes it plausible to

read both provisions as allowing for plan amendments and

zone changes away from the specified designations provided

the impacts on wildlife are analyzed and addressed in the

process so that habitats are not adversely affected by any

proposed change.

We have reviewed the context of these provisions

and see nothing that undercuts the plausibility of the county’s

implicit interpretation of these provisions or points defin-

itively to LUBA’s proposed interpretation of them. 1000

Friends has not identified anything either; as noted, its

arguments, in the main, assert that neither LUBA nor the

county interpreted the provisions at issue in the way that

petitioners claim. Although the county’s interpretation of

these provisions is by no means the only reasonable inter-

pretation of them, or even necessarily the strongest one, it

is one that plausibly accounts for their text and context. See

Nicita v. City of Oregon City, 286 Or App 659, 665, 399 P3d

1087, rev den, 362 Or 300 (2017) (“ ‘[T]he existence of a stron-

ger or more logical interpretation’ does not render a ‘weaker

or less logical interpretation “implausible.” ’ ” (Quoting Siegert

v. Crook County, 246 Or App 500, 509, 266 P3d 170 (2011).)).

Consequently, it is entitled to Siporen deference, even if

LUBA’s interpretation is also a plausible one.

For that reason, LUBA erred when it determined

that LCC 903.510(B)(3) and LCC 903.550(A)(1) preclude,

as a matter of law, petitioners’ requested plan and zone

amendments.

Reversed and remanded.