The opinion
502
Argued and submitted August 20, affirmed November 18, 2020
Mitchell JONES,
Harold K. Lonsdale,
and Clackamas County,
Respondents,
v.
WILLAMETTE UNITED FOOTBALL CLUB,
Petitioner.
Land Use Board of Appeals
2019135; A174182
479 P3d 326
In a land use action, the Land Use Board of Appeals (LUBA) reversed and
remanded a Clackamas County hearings officer’s decision approving an applica-
tion by a soccer club for a conditional use permit to develop and operate a pro-
posed sports facility. LUBA concluded that the hearings officer erred when he
approved the conditional use permit without first determining for himself that
the proposed facility was a conditionally permitted use within the location’s zon-
ing. He believed that he was bound, due to local ordinance, to a prior determi-
nation by the county’s planning director that the proposed use was similar to
an expressly listed conditional use. On review, the soccer club contends that the
hearings officer properly treated as binding a prior determination by the county
planning director. Held: LUBA’s order was not unlawful in substance. LUBA’s
decision did not represent a collateral attack on the earlier similar use determi-
nation of the planning director; the planning director’s determination was not
a “standard and criterion,” nor fixed “goal-post,” that the hearings officer must
follow; and LUBA’s decision did not preclude the hearings officer from giving the
opinion of the planning director whatever consideration is due in reaching an
independent decision on the conditional use permit.
Affirmed.
Anna M. Joyce argued the cause for petitioner. Also on
the brief were Paul S. Bierly and Markowitz Herbold P.C.
Carrie A. Richter argued the cause for respondents
Mitchell Jones and Harold K. Lonsdale. Also on the brief
was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.
No appearance for respondent Clackamas County.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Affirmed.
Cite as 307 Or App 502 (2020) 503
DeVORE, P. J.
In this case, we review a final order of the Land
Use Board of Appeals (LUBA). The order remanded a
Clackamas County hearings officer’s decision approving an
application for a conditional use permit for the Willamette
United Football Club (Willamette United). LUBA concluded
that the hearings officer erred when he approved the con-
ditional use permit without first determining for himself
that Willamette United’s proposed sports facility was a
conditionally permitted use within the location’s zoning.
Willamette United contends that the hearings officer prop-
erly treated as binding a prior interpretation by the county
planning director that the proposed sports facility would
be a use that is “similar” to a recreational use—a use that
is expressly permitted. Willamette United urges a number
of reasons why the planning director’s prior interpretation
should be binding on the subsequent, conditional use deci-
sion. We review those reasons and, ultimately, conclude that
LUBA is correct. We affirm.
I. PARALLEL PROCEEDINGS
We take the facts from LUBA’s opinion and the
decision of the hearings officer. Willamette United seeks to
develop a sports facility on Borland Road on a 24-acre prop-
erty that is zoned Rural Residential Farm Forest 5-Acre
(RRFF-5). The proposed facility includes
“three outdoor artificial turf sports fields, an indoor turf
training field, an operational building containing a group
training room, a concessions area, restrooms, equipment
storage, and staff offices. Other park facilities would
include parking, an outdoor sports court, picnic area,
barbeque area, playground, walking and jogging [trails],
an ecological observation station, runoff water retention
ponds, and a septic [field].”
(Brackets in LUBA opinion.)
In 2017, Willamette United sought an interpre-
tation of the Clackamas County Zoning and Development
Ordinance (ZDO) to determine whether the proposed
facilities are conditionally allowed uses as uses similar to
504 Jones v. Willamette United Football Club
conditionally allowed “Recreational Uses.”1 We will refer
to that process as the “similar use determination.”2 It was
allowed and limited by a provision of the ZDO, which stated:
“The Planning Director has the authority to interpret the
Comprehensive Plan and this Ordinance and their appli-
cability to specific properties, except where such authority
is specifically granted by this Ordinance to the Hearings
Officer, or to the Planning Commission or Board of County
Commissioners on appeal.”
ZDO 1308.01. That general ZDO provision did not indicate
whether an interpretation would be deemed to be influen-
tial advice or a binding authorization with regard to any
proceedings when a permit application might later be con-
sidered by a hearings officer, the planning commission, or
the board of commissioners. A related ZDO provision at that
time made reference to such later proceedings, stating:
“If a use is found to be similar to a primary, accessory,
limited, or conditional use, it shall be subject to the same
approval criteria, review process, dimensional standards,
and development standards as the use to which it is found
to be most similar.”
ZDO 106.02(E) (2016).3 Again, that provision did not explic-
itly indicate whether the planning director’s similar use
determination would necessarily predetermine that issue
when subsequent approval or review proceedings ensued
before decision-making bodies.
In December 2017, the planning director issued his
similar use determination. In it, the planning director con-
cluded that Willamette United’s proposed uses are similar
uses to recreational uses and are conditionally allowed on
any property zoned RRFF-5. As it happened, two property
owners who own property within 500 feet of the site, Jones
1
ZDO Table 316-1 lists the uses permitted in the RRFF-5 zone, which
includes “recreational uses.”
2
The determination has been variously termed an interpretation or an
authorization. For example, ZDO 106.02(A) (2016) provided, “Authorization of a
similar use is a type of interpretation application processed pursuant to Section
1308, Interpretation.”
3
As part of amendments to the ZDO in 2018, the language in ZDO 106.02(E)
was moved to ZDO 106.01(C) and revised, but not in a material way that affects
our analysis.
Cite as 307 Or App 502 (2020) 505
and Lonsdale, had not received notice of the similar use
proceeding.
In May 2018, the county commissioners amended
the ZDO to add a new provision, ZDO 106.01(B), stating:
“An authorization of a similar use is not a site-specific
application, but rather it is a use-specific application. The
decision on an application for authorization of a similar
use is applicable to all land in the zoning district for which
the request was made and is applicable only to the use
described in the application.”
As later explained, that new provision would become a focus
of arguments in this case, as a purported indication of the
binding effect of a similar use determination.
In April 2019, Willamette United applied for a con-
ditional use permit to develop and operate its sports facility
on the site. Jones and Lonsdale received notice of the condi-
tional use permit application and, as a consequence, learned
of the earlier, similar use determination made by the plan-
ning director. Jones and Lonsdale challenged the similar
use determination in an appeal to LUBA. That appeal, how-
ever, was not decided at the time of the hearings officer’s
decision on the conditional use permit in this case.4
In the meantime, the county’s hearings officer
approved the conditional use permit. In his order, he framed
the issue raised by the parties. He explained that ZDO
“1203.03 provides the approval criteria for conditional uses”
and that the criterion in “ZDO 1203.03(A) requires that the
proposed use be listed as a conditional use in the zoning
district in which the property is located.” He recognized
that, in 2017, Willamette United had obtained a similar use
determination from the planning director, who determined
that the proposed uses are similar to recreational uses and
may be allowable conditional uses in the RRFF-5 zone. That
4
In a separate decision issued on the same date as the final order on review
here, LUBA remanded the 2017 similar use determination because the county
had committed a procedural error in failing to provide notice to Jones and
Lonsdale of Willamette United’s application as required under the ZDO. Jones v.
Clackamas County, ___ Or LUBA ___ (LUBA No 2019-063, June 8, 2020). LUBA’s
decision in this case does not rest on the invalidation of the similar use determi-
nation for lack of notice. It rests on independent grounds that we review.
506 Jones v. Willamette United Football Club
presented the issue of the effect, if any, of the planning
director’s similar use determination in the conditional use
proceeding. The hearings officer responded:
“The parties devote substantial argument to the effect
of the [similar use determination] on this case. [Jones and
Lonsdale] devote extensive arguments to why issue pre-
clusion does not apply to the Planning Director’s decision.
Similarly, [Willamette United] devotes extensive argu-
ments as to why the Planning Director’s decision cannot be
collaterally attacked. Finally, the parties devote extensive
argument as to whether the Planning Director’s decision
was correct.
“I tend to agree with [Jones and Lonsdale] that issue
preclusion alone would not bar me considering whether the
proposed uses are similar uses to recreations uses. I also
tend to agree with [Willamette United] that the Planning
Director’s decision cannot be collaterally attacked in this
proceeding. I also do not think [Jones and Lonsdale] are
trying to collaterally attack the Planning Director’s deci-
sion or that [Willamette United] is claiming issue pre-
clusion. Finally, I am not going to consider whether the
Planning Director’s decision was correct. While that deci-
sion could have been appealed to me during the County
appeal period, the decision is now before LUBA and it is
for LUBA to decide the merits. The question as I see it, is
whether the Planning Director’s decision is binding on me
under the ZDO.
“* * * * *
“[Willamette United] argues that the [similar use deter-
mination] is binding pursuant to ZDO 106.01(B) because
the Planning Director’s decision ‘is applicable to all land
in the zoning district for which the request was made
* * *.’ * * * [Willamette United] argues that the Planning
Director’s decision essentially amended the ZDO to now
include the proposed uses as similar uses to ‘recreational
uses.’ Just as I could not overrule the ZDO to say that ‘rec-
reational uses’ are not allowed in the RRFF-5 zone, I sim-
ilarly cannot overrule the essentially amended ZDO to say
that the proposed uses are not similar useto ‘recreational
uses.’ ”
(Footnote omitted; emphases added.) The hearings officer
continued by explaining that:
Cite as 307 Or App 502 (2020) 507
“While I admit it seems somewhat odd that the ZDO could
essentially be amended this way (and [Jones and Lonsdale]
make a number of persuasive policy arguments against
such a method), the ZDO certainly seems to be set up to
allow such authorizations of similar uses to be binding
on any subsequent applications for such uses in the corre-
sponding zone.
“[Willamette United] is proceeding solely on the basis
of the [similar use determination] to establish that the pro-
posed use is allowed as a conditional use in the RRFF-5
zone. [Willamette United] specifically argued that I should
not independently consider whether the proposed use is
allowed as a conditional use in the RRFF-5 zone. Therefore,
I do not consider that issue. Based on the [similar use deter-
mination], the proposed use is listed as a conditional use in
the zoning district in which the subject property is located.”
(Footnote omitted; emphasis added.) Without making a
determination himself, the hearings officer accepted the
planning director’s interpretation that the proposed use
was a similar use and thus a conditionally permitted use in
the RRFF-5 zone. Finding that the other applicable criteria
were satisfied, the hearings officer approved the application
for a conditional use permit.
Jones and Lonsdale appealed that decision to LUBA,
and, in the order we consider here, LUBA reversed and
remanded the county’s decision. LUBA held that the hear-
ings officer improperly construed the applicable law when
ruling that he could not make an independent determina-
tion whether the proposed sports facility is a use allowed
in the RRFF-5 zone as a similar use. LUBA determined
that the hearings officer misconstrued the scope, effect, and
meaning of ZDO 106.01(B) as making the planning direc-
tor’s similar use determination preclusive or binding in the
conditional use permit proceeding. LUBA expressed its rea-
soning in two related ways.
First, in LUBA’s view, the hearings officer erred in
understanding the effect or scope of the planning director’s
interpretation when making a similar use determination.
LUBA explained:
“The hearings officer erred in relying on [ZDO] 106.01(B)
(2018) to conclude that the Similar Use Determination
508 Jones v. Willamette United Football Club
‘essentially amended’ the [ZDO]. * * * [ZDO] 106.01(B) (2018)
was not in effect in 2017 when the planning director made
the Similar Use Determination, and the hearings officer
erred in relying on that new [ZDO] provision to conclude
that the Similar Use Determination applied county-wide
to all land in the RRFF-5 zoning district, and ‘essentially
amended’ the [ZDO]. * * * [ZDO] 106.01(B) (2018) cannot be
used as a tool to recast the 2017 Similar Use Decision into
a decision of county-wide applicability.”
With that, LUBA indicated that the 2018 amendment, ZDO
106.01(B) (2018), could not recharacterize the significance
of an earlier similar use determination after the fact, nor
could the similar use determination accomplish a de facto
amendment of the ZDO on a county-wide basis.
Second, LUBA determined that the similar use
determination—a planning director’s interpretation—could
not be binding on the hearings officer in the conditional use
process, because the director’s interpretation was not an
applicable standard or criterion set forth in local ordinance
as required by state statute. That statute, ORS 215.416(8)(a),
states:
“Approval or denial of a permit application shall be based
on standards and criteria which shall be set forth in the
zoning ordinance or other appropriate ordinance or reg-
ulation of the county and which shall relate approval or
denial of a permit application to the zoning ordinance and
comprehensive plan for the area in which the proposed use
of land would occur and to the zoning ordinance and com-
prehensive plan for the county as a whole.”
In essence, LUBA explained, the planning director’s similar
use determination “is an interpretation of a criterion. It is
not the criterion.”
II. ISSUES ON REVIEW
A. Overview
On review before this court, Willamette United con-
tends that LUBA, not the hearings officer, mistakenly inter-
preted the applicable law. Willamette United asserts four
reasons why LUBA erred: (1) that LUBA permitted a collat-
eral attack on the similar use determination; (2) that LUBA
Cite as 307 Or App 502 (2020) 509
erred when concluding that the similar use determination
was not a “standard and criterion” for the hearings officer
to follow; (3) that, contrary to LUBA’s decision, the simi-
lar use determination and ZDO 106.01(B) (2018) together
are the rules in effect at the time of Willamette United’s
application, serving as fixed “goal posts” for issuance of the
conditional use permit; and (4) LUBA erred when seeming
to prevent the hearings officer’s consideration of the simi-
lar use determination. We consider the arguments, each in
turn.
We will reverse a LUBA order if we determine “[t]he
order to be unlawful in substance.” ORS 197.850(9)(a). That
is, we assess whether LUBA’s decision “represented a mis-
taken interpretation of the applicable law.” Mountain West
Investment Corp. v. City of Silverton, 175 Or App 556, 559, 30
P3d 420 (2001).
B. Collateral Attack?
Willamette United first asserts that LUBA’s deci-
sion impermissibly allows Jones and Lonsdale to collaterally
attack the validity of the 2017 similar use determination in
this proceeding. It argues that the similar use determina-
tion is a “prior final decision” that cannot be attacked in
a subsequent phase of the approval process. Willamette
United acknowledges that Jones and Lonsdale did not
receive notice of the 2017 similar use proceedings, but it
asserts that the lack of notice has no bearing on the validity
of the conditional use permit obtained in 2019.
Jones and Lonsdale respond that they and LUBA
have not collaterally attacked the similar use determination
in this proceeding by challenging whether it was rightly
decided or contending that it was improperly decided due to
inadequate notice. Jones and Lonsdale note that the similar
use determination is not the decision that is before us on
review and that separate determination was the subject of
a another appeal to LUBA, Jones v. Clackamas County, ___
Or LUBA ___ (LUBA No 2019-063, June 8, 2020). Jones and
Lonsdale add that, to the extent that Willamette United is
asserting here that any procedural defect in the 2017 similar
use determination does not compromise that determination
510 Jones v. Willamette United Football Club
in this conditional use proceeding, Willamette United’s
argument is misdirected because LUBA did not hold in this
case that the notice defect in that case was the basis for
remanding the county’s conditional use permit decision.
Rather, the issue here is the separate question whether
the hearings officer erred by treating the similar use
determination as preclusive in this conditional use permit
proceeding.
On that point, we agree with Jones and Lonsdale.
Willamette United’s argument about collateral attack is
inapt, and their argument about notice is misdirected. Seen
properly, LUBA’s opinion focused on what effect the 2017
similar use determination could have in the 2019 condi-
tional use proceeding. The issue in this case is whether the
similar use determination “essentially amended” the ZDO,
was itself a standard or criterion, or was otherwise binding
on the hearings officer considering the conditional use per-
mit. LUBA concluded that the planning director’s interpre-
tation did not amend the ZDO, was not a standard or crite-
rion, and was not otherwise binding on the hearings officer.
Given those conclusions in this case, LUBA did not make
any determination about whether the similar use determi-
nation itself was correct and did not rely on the notice defect
in the other proceeding as a basis for its remand in this
proceeding. LUBA’s rationale was not a collateral challenge
to the similar use determination. Instead, LUBA’s rationale
addressed what impact the director’s prior interpretation
should have. LUBA did not entertain a collateral attack on
the similar use determination.5
C. Standards and Goal Posts
We address Willamette United’s second and third
arguments together, because they are closely related. They
proceed from a common premise that rejects LUBA’s conclu-
sion that the planning director’s similar use determination
cannot be a “standard and criterion” within the meaning
5
Although our role is not to evaluate the hearings officer’s decision, we note
that he, too, stated that he did not believe that Jones and Lonsdale were making
a collateral attack on the similar use determination. He did not review whether
the planning director’s decision was correct; he only made a determination about
whether that decision was binding on him.
Cite as 307 Or App 502 (2020) 511
of ORS 215.416(8)(a). That statute, quoted above, requires
that a decision on a permit application be based on “stan-
dards and criteria which shall be set forth in the zoning
ordinance or other appropriate ordinance or regulation of
the county.” Contrary to LUBA, Willamette United argues
that the similar use determination should be a “standard” or
“criterion.”
Assuming that to be true, Willamette United next
relies on ORS 215.427(3), which is known as the “goal-post
rule.” In relevant part, ORS 215.427(3)(a) states:
“If the application [for a permit, limited land use deci-
sion or zone change] was complete when first submitted or
the applicant submits additional information * * * within
180 days of the date the application was first submitted and
the county has a comprehensive plan and land use regula-
tions acknowledged under ORS 197.251, approval or denial
of the application shall be based upon the standards and
criteria that were applicable at the time the application
was first submitted.”
That statute “provides, in essence, that the rules in exis-
tence when an application is complete are the rules that
govern the approval or rejection of the application—
government, in other words, cannot ‘move the goal-posts’
after the applicant has (to complete the sports metaphor)
kicked the ball.” Setniker v. Polk County, 244 Or App 618,
624, 260 P3d 800, rev den, 351 Or 216 (2011). Willamette
United argues that the hearings officer was required
under the goal-post rule, ORS 215.427(3), to consider the
ordinances in existence at that time, including the quasi-
judicial interpretations of those ordinances, and that the
hearings officer complied with ORS 215.427(3) by basing
his decision on the similar use determination, along with
applicable ordinances. Among applicable ordinances was
ZDO 106.01(B) (2018), and, according to Willamette United,
it requires adhering to the similar use determination.
Jones and Lonsdale respond that LUBA correctly
decided that the similar use determination was not a stan-
dard or criterion under ORS 215.416(8)(a). They argue that,
because the similar use determination was not a standard
or criterion under ORS 215.416(8)(a), it was not a standard
512 Jones v. Willamette United Football Club
under the goal-post statute either.6 They insist that a plan-
ning director’s interpretation of the ZDO, which has not
been “ratified” by the Board of Commissioners, cannot be
a “standard and criteria.” In addition, Jones and Lonsdale
contend that ZDO 106.01(B) (2018) did not make the earlier,
similar use determination binding on the hearings officer.
Willamette United assails LUBA’s conclusion that
the similar use determination is not a “standard” or “crite-
rion” set forth in the [ZDO] by relying on two cases: Davenport
v. City of Tigard, 121 Or App 135, 854 P2d 483 (1993) and
Holland v. City of Cannon Beach, 154 Or App 450, 962 P2d
701, rev den, 328 Or 115 (1998). Reliance on those cases is
misplaced.
In Davenport, we observed that the term—standards
and criteria—has a protective purpose:
“The role that the terms play in the two statutes[7] is to
assure both proponents and opponents of an application
that the substantive factors that are actually applied and
that have a meaningful impact on the decision permitting
or denying an application will remain constant throughout
the proceedings.”
Id. at 141. Willamette United relies on our subsequent state-
ment that “standards and criteria” does “not refer only to
the local provisions that the local government must apply
in acting on an application; it also includes provisions * * *
that the government does apply and that have a mean-
ingful impact on its decision.” Id. (emphases in original).
Willamette United contends that construing “standards
and criteria” in ORS 215.427(3)(a) should include a planning
director’s interpretation, like the similar use determination
here. Willamette United contends that that interpretation is
an application of a provision.
Willamette United fails to appreciate the nature
of the provisions at issue in Davenport. In that case, the
6
Willamette United does not develop an argument that there is a differ-
ence in the meaning of “standards and criteria” under the two statutes, and we
assume for purposes of this opinion that the meaning is the same.
7
The two statutes referred to were the “goal post” statutes in ORS chapter
227, which applied to city permit decisions, and a materially identical statute in
ORS chapter 215, which applied to county permit decisions.
Cite as 307 Or App 502 (2020) 513
provisions in question as “standards and criteria” concerned
formal amendments to the Tigard Comprehensive Plan
Transportation Map, not an administrative interpretation of
them. The petitioners there argued that the plan’s amend-
ments could not constitute “standards and criteria” because
they did not also contain “rules ‘for determining whether to
approve or deny a development application.’ ” Id. at 139. The
amendments designated new streets and street extensions
and changed the classification of some streets around the
subject property. Id. at 137. We concluded that “standards and
criteria” is “not limited to the provisions that may be charac-
terized as ‘approval criteria’ in a local comprehensive plan or
land use regulation.” Id. at 141. Because the government did
apply them as criteria, they qualified as such independently
of whether they were categorized that way. Id. The criteria
in question in that case were part of the city’s comprehensive
plan. By contrast, here the planning director’s similar use
determination is not contained in the ZDO, the comprehen-
sive plan, or any amendments of them. Rather, it is an inter-
pretation by one person—a county planning director.
In Holland, we reviewed a LUBA decision that
involved whether a section of the city’s subdivision design
standards in its land use regulations was in effect at the
time of the developer’s subdivision application. Sometime
earlier, the city attorney had given a letter opinion to the
city manager that those design standards were impliedly
repealed by certain amendments that the city council had
made to the comprehensive plan. Thereafter, the city council
had effectively adopted that interpretation in a prior subdi-
vision decision. We concluded that the city council’s decision
on a previous subdivision application “served as a ratifica-
tion by the highest city body of what other city officials had
said generally and of what the staff report had said in con-
nection with this application particularly.” 154 Or App at
459. We concluded that the city council’s treatment of the
design standards—as repealed—represented the state of
the “standard and criteria” to be applied.8
8
We also noted that, “as an abstract proposition” we accepted the premise that
a local government may “correct” its earlier interpretation of legislation, but where
the goal-post statute applies, its emphasis is on consistency and therefore that was
the basis for our ruling given the circumstances there. Holland, 154 Or App at 459.
514 Jones v. Willamette United Football Club
Although Holland is similar to the present case
insofar as it began with a staff interpretation of standards,
that case is dissimilar in that it involved the ratification of
the status of which standards were in effect as determined
by the city council—the local government’s policy-making
body. The case did not turn on just one employee’s interpre-
tation of the meaning of a standard.
We are not persuaded that Davenport or Holland
supports Willamette United’s contention that the similar
use determination here qualifies as a “standard and crite-
ria.” In plain terms, ORS 215.416(8)(a) requires that a deci-
sion on a permit application be based on “standards and
criteria which shall be set forth in the zoning ordinance or
other appropriate ordinance or regulation of the county.”
The planning director’s interpretation was not something
set forth in the zoning ordinance or other appropriate ordi-
nance or regulation of the county. Therefore, we agree with
LUBA’s conclusion that the planning director’s similar use
determination was only an interpretation of a criterion and
not a criterion itself.
The adoption of ZDO 106.01(B) (2018), after the plan-
ning director’s determination, does not change that con-
clusion. Willamette United argues, however, that, under
ORS 215.427(3), the hearings officer was required to apply
the ZDO that was in effect when the conditional use per-
mit application was filed. Willamette United argues that,
because ZDO 106.01(B) (2018) was in effect in 2019 when
it applied for a conditional use permit, the goal-post rule
required that ZDO 106.01(B) (2018) be applied as part of the
conditional use analysis. Because that should be so, argues
Willamette United, then ZDO 106.01(B) (2018) should make
the similar use determination binding on the hearings offi-
cer in the conditional use proceeding, just as he determined.
The problems with that argument are compound:
It makes a debatable interpretation of ZDO 106.01(B) (2018)
and assumes that interpretation compels a result that would
be permissible. The first problem is apparent; the second is
dispositive.
First, nothing in the terms of ZDO 106.01(B) (2018)
addresses whether the planning director’s interpretation
Cite as 307 Or App 502 (2020) 515
is binding on subsequent proceedings before deliberative
bodies. It only provides that a similar use determination
is use specific, not property specific and that the determi-
nation as to a particular developer’s proposed use is appli-
cable to all land in the zoning district. That provision is
followed by ZDO 106.01(C) (2018) (previously contained in
ZDO 106.02(E) (2016) as quoted above), which adds that, if
a similar use determination is made, the proposed use shall
be subject to the same approval criteria and review process
as the use to which it is similar. In parallel fashion, ZDO
1308.01 grants authority for the planning director to offer
interpretations of the ZDO or comprehensive plan, except
where such authority is granted to a hearings officer, the
planning commission, or the board of commissioners. Those
provisions could be construed to reserve judgment to the
decision-making bodies, while allowing the planning direc-
tor’s interpretation to be considered as worthy but advisory.
That we do not decide. It suffices to say that, at best, ZDO
106.01(B) (2018) begs the question whether it is intended to
preclude the normal review process so as to predetermine
that a use is similar to a conditional use permitted in the
zoning district.
Second, even if ZDO 106.01(B) (2018) were con-
strued to provide that an earlier similar use determination
were preclusive as to the later question whether a condi-
tional use is permitted in the zoning district, that prospect
does not permit the similar use determination to escape the
requirement of ORS 215.416(8)(a) that the land use permit
decision must be based on “standards and criteria which
shall be set forth in the zoning ordinance or other appropri-
ate ordinance or regulation of the county.” The local ordi-
nance, ZDO 106.01(B) (2018), cannot serve as a blank check
to legitimize an interpretation of a planning director that
itself is not a part of the zoning ordinance or other similar
regulations. Cf. Nicklaus v. Goodspeed, 56 Or 184, 187-88,
108 P 135 (1910) (“What the board cannot do directly it can-
not do indirectly.”); Wuepper and Wuepper, 109 Or App 172,
176, 818 P2d 964 (1991) (“[T]he court cannot do indirectly
what it cannot do directly.”).
Whether the similar use determination is viewed
in isolation or together with ZDO 106.01(B) (2018), they do
516 Jones v. Willamette United Football Club
not excuse the failure of the hearings officer to exercise his
own judgment to determine under ZDO 1203.03(A) that the
proposed use is indeed a conditional use in the zoning dis-
trict in which the property is located. The planning direc-
tor’s similar use determination did not preclude the hear-
ings officer’s determination of that issue. For that reason,
we reject Willamette United’s second and third arguments.
D. Non-issue
Finally, Willamette United urges that the similar
use determination provided the hearings officer with insight
about how the applicable ordinances should be interpreted.
Willamette United argues that LUBA concluded that ORS
215.416(8) prohibited the hearings officer from considering
the interpretation when he approved Willamette United’s
conditional use permit. We do not read LUBA’s decision to
prevent the hearings officer from giving the studied opin-
ion of the planning director whatever consideration is due
in reaching an independent decision on the conditional use
permit. However, the appropriate weight to be given the
planning director’s interpretation is an issue that was not
presented below, and we do not address it here.
III. CONCLUSION
We conclude that LUBA’s order was not “unlawful
in substance” and that LUBA did not err in remanding the
conditional use decision.
Affirmed.