Crowley v. City of Hood River

44

Argued and submitted September 22, reversed and remanded

December 16, 2020

Susan Garrett CROWLEY,

Petitioner,

v.

CITY OF HOOD RIVER,

Respondent.

Land Use Board of Appeals

2019054; A174363

480 P3d 1007

Petitioner seeks review of a Land Use Board of Appeals (LUBA) order that

affirmed the City of Hood River’s decision to approve a zone change to a portion of

city park from Open Space/Public Facilities to Urban High Density Residential.

In affirming the city’s decision, LUBA deferred to the city’s interpretation of a

policy within the Hood River Comprehensive Plan regarding the use of exist-

ing park sites. On review, petitioner argues that LUBA erred in deferring to

the city because the city’s interpretation of the policy was inconsistent with the

policy’s express language and purpose. Held: LUBA’s order was unlawful in sub-

stance because LUBA erred in deferring to the city’s interpretation of its policy.

The city’s interpretation did not plausibly account for the text and context of the

policy.

Reversed and remanded.

Susan Garrett Crowley argued the cause and filed the

brief for petitioner pro se.

Daniel Kearns argued the cause and filed the brief for

respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

TOOKEY, J.

Reversed and remanded.

Armstrong, P. J., dissenting.

Cite as 308 Or App 44 (2020) 45

TOOKEY, J.

In this land use case, petitioner seeks review of a

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

City of Hood River’s decision to approve a quasi-judicial zone

change to a portion of a city park from Open Space/Public

Facilities (OS/PF) to Urban High Density Residential (R-3).

In affirming the city’s decision, LUBA deferred to the city’s

interpretation of Hood River Comprehensive Plan (HRCP)

Goal 8 Policy 1, under ORS 197.829(1)1 and Siporen v. City

of Medford, 349 Or 247, 243 P3d 776 (2010).

On review, in her first assignment of error, peti-

tioner argues that LUBA erred in granting the city def-

erence, because the city’s interpretation of the policy was

inconsistent with the policy’s express language and pur-

pose. We conclude that LUBA’s order was “unlawful in sub-

stance,” ORS 197.850(9)(a), because LUBA erred in defer-

ring to the city’s interpretation of its policy, which did not

plausibly account for the text and context of the policy. Our

decision obviates the need to address other issues raised in

petitioner’s first assignment of error and petitioner’s second

assignment of error. We therefore reverse and remand.

I. BACKGROUND

As context for our analysis of this petition for

review, we recount the pertinent historical facts, which we

largely draw from Crowley v. City of Hood River, 294 Or App

240, 430 P3d 1113 (2018) (Crowley I) and the LUBA order on

review.

1

ORS 197.829 provides, in part:

“(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.”

46 Crowley v. City of Hood River

A. Morrison Park and HRCP Goal 8

The property at issue in this case is a section

of Morrison Park. Morrison Park sits on various tax lots,

including tax lot 700 (TL 700), which is approximately 5.33

acres. Morrison Park was zoned OS/PF under Goal 8 of the

HRCP. Goal 8 states that the city’s goal is to “satisfy the rec-

reational needs of the citizens of the community and visitors

to the area.” Goal 8 Policy 1 provides that “[e]xisting park

sites will be protected from incompatible uses and future

expansion alternatives at some sites will be developed.” The

HRCP defines the term “protect” as to “[s]ave or shield from

loss, destruction, or injury or for future intended use.” We

have previously observed that Goal 8 Policy 1 is phrased as

a “mandatory requirement.” Crowley I, 294 Or App at 247.

Goal 8 also contains other policies which are phrased

in terms of “aspirational goals.” Id. at 246. Specifically,

Goal 8 Policy 2 provides that, “[w]hen feasible, recreational

opportunities and park sites will be located so as to be acces-

sible to a maximum number of people,” and Goal 8 Policy 3

provides that “[t]he development of parks which are accessi-

ble by means of walking or bicycling is encouraged.”

B. The City’s Decision to Rezone a Portion of TL 700

On September 14, 2015, the city council approved

a housing strategy to develop affordable housing, which

included an action to rezone land to allow additional

high-density residential development and identify publicly

owned lands that could be used for affordable housing.

On August 16, 2016, the city submitted an applica-

tion to rezone a portion of TL 700 from OS/PF to R-3, and on

May 22, 2017, the city voted to approve rezoning 5.03 acres

of TL 700. In doing so, the city rejected the argument that

Goal 8 Policy 1 precludes the rezoning because allowing the

park to be developed for high-density residential develop-

ment fails to protect the park from incompatible uses. After

finding that that policy is ambiguous in several respects,

the city determined that the most logical interpretation of

the policy is that it requires the protection of parks from

incompatible uses on other nearby properties that could

adversely affect the parks, but does not prevent rezoning

Cite as 308 Or App 44 (2020) 47

of the parks themselves. The city rejected the argument

that Goal 8 Policy 1 requires all existing parks, including

Morrison Park, to be protected from incompatible uses of

the park, as opposed to protecting parks from incompatible

nearby uses on surrounding land.

C. Petitioner’s First Appeal to LUBA

Petitioner appealed the city’s decision to LUBA,

arguing that the city incorrectly interpreted Goal 8 Policy 1

by narrowing the scope of “incompatible uses” to refer

only to uses on properties outside of park sites themselves.

Petitioner contended that the city’s interpretation impermis-

sibly inserted into the policy a qualification—i.e., “incompat-

ible uses on other properties”—that had been omitted.

LUBA rejected petitioner’s contention. It concluded

that the city’s interpretation of the policy was plausible and

was not inconsistent with the policy’s express language,

purpose, or underlying policies.

D. The Court of Appeals Decision in Crowley I

Petitioner sought review of LUBA’s decision, lead-

ing to our decision in Crowley I. In Crowley I, we determined

that the city’s interpretation of Goal 8 Policy 1—i.e., “that

it applies only to incompatible uses on nearby properties”—

was “implausible, when considering the text and context of

the policy.” 294 Or App at 246 (emphasis in original). We

explained:

“The problem with the city’s interpretation is that it adds

language to the express text of Goal 8 Policy 1 to limit the

preservation of parks, which is inconsistent with Goal 8

Policy 1’s mandatory text—‘[e]xisting park sites will be pro-

tected from incompatible uses’—and the purpose of Goal

8—to satisfy the city’s recreational needs by developing

and maintaining public parks.”

Id. at 247 (emphases and brackets in original). We further

explained:

“The city’s interpretation requires the addition of

terms not present in Goal 8 Policy 1’s text—incompatible

uses means incompatible uses only on nearby properties.

* * * Here, Goal 8 Policy 1 does not limit the scope of its

48 Crowley v. City of Hood River

applicability, and a plain and natural reading of the pol-

icy suggests that there are no limitations on the phrase

‘incompatible uses.’ Nevertheless, the city has inserted

language to place limitations on that phrase. By narrow-

ing the application of the policy to apply only to nearby

properties, the city’s interpretation allows for incompati-

ble uses within existing park sites. Such an interpretation

effectively rewrites the explicit text of the policy so that

the area surrounding the park must be compatible with the

recreational needs of the citizens of the community and vis-

itors to the area, while the area within the park does not

need to be compatible with those needs at all. This cannot

be squared with Goal 8 Policy 1’s text, when viewed in the

context of Goal 8’s purpose of maintaining and developing

public parks.”

Id. at 247-48 (emphases in original).

Accordingly, in Crowley I, we determined that

“LUBA’s order deferring to the city’s interpretation of Goal 8

Policy 1 was unlawful in substance, ORS 197.850(9)(a),” and

we reversed and remanded to LUBA for further proceed-

ings. Id. at 249.

E. LUBA’s Remand to the City

After we remanded to LUBA, LUBA remanded to

the city for further proceedings, specifically for the city to

adopt a sustainable interpretation of Goal 8 Policy 1 and to

apply that policy, as interpreted, to the application before it.

F. The City’s Quasi-Judicial Proceeding on Remand and

Ordinance Number 2048 Rezoning TL 700

On remand, the city issued findings of fact and con-

clusions of law in a quasi-judicial proceeding, in which the

city determined that the rezoning of TL 700 to R-3 was in

compliance with the HRCP and, specifically, consistent with

Goal 8 Policy 1.

In its findings of fact and conclusions of law, the city

explained that, in its view, Goal 8 Policy 1 was “ambiguous”

and that, “as a matter of general policy,” the city did not

“interpret any of the Goal 8 policies as prohibiting the

Council from making the policy decision that a portion of

a particular park property is suited to a non-park use and

Cite as 308 Or App 44 (2020) 49

rezoning it for a future non-park development, so long as

that non-park use is suitably conditioned to render it com-

patible and protect the park.”

The City explained that Morrison Park is an “exist-

ing park site” within the meaning of Policy 1. The city

explained, however, that, as it interpreted the word “pro-

tected” in Goal 8 Policy 1, that policy did not impose a prohi-

bition “of non-park uses” on park sites. Rather, in the city’s

view, “the code clearly anticipates that certain non-park

uses are appropriate for park sites” and that “some non-park

uses are appropriate ‘future intended uses’ and can be made

compatible with underlying park uses.”2

The city also determined that the “affordable hous-

ing project that is envisioned for a portion of Morrison Park,”

although a “non-park use,” is not “incompatible” with the

use of “TL 700 as a city park, especially when conditioned to

ensure that it is compatible with park uses on the balance of

TL 700.” The city explained its reasoning, in pertinent part,

as follows:

“Several other Goal 8 policies provide important context and

support * * *. In particular, Goal 8, Policy 2 requires that

‘recreational opportunities and park sites will be located so

as to be accessible to a maximum number of people.’ Policy

3 calls for the ‘development of parks which are accessible by

means of walking or bicycling.’ * * * It is critical, in our view,

that urban density housing, such as the affordable housing

project anticipated for part of this site, be located in close

proximity to and integrated with city parks such as this

one. * * * By limiting the extent of non-park development to

2.76 acres, we achieve Goal 8, Policy 1’s directive to protect

today’s 10.83-acre Morrison Park site from incompatible

uses, and, consistent with Policies 2 and 3, this affordable

housing project will be integrated with this existing park

site to foster walking and bicycle use by the future resi-

dents, improving the park’s accessibility to meet the recre-

ational needs of Hood River’s citizens and visitors.”

2

The city determined that the “code clearly anticipates that certain non-park

uses are appropriate for park sites” because, among other reasons, (1) “Policy 1

requires existing park sites to be ‘protected’ from incompatible uses and does

not simply prohibit all non-park uses” and (2) “the definition of ‘protect’ antici-

pates the need to protect park sites for future intended uses, which * * * include[s]

future intended park as well as non-park uses.”

50 Crowley v. City of Hood River

The city ultimately adopted Ordinance Number

2048, which approves a quasi-judicial zone change of the

portion of Morrison Park situated on TL 700 from OS/PF

to R-3 and determines that, as conditioned, doing so is con-

sistent with HRCP Goal 8 Policy 1. The ordinance includes

conditions of approval that (1) a maximum of 2.76 acres of

TL 700 may be developed as affordable housing, and the

“balance of tax Lot 700 shall be retained and used only for

park uses”; and (2) the city shall work with a housing agency

to develop affordable housing on the property.

G. Petitioner’s Second Appeal to LUBA

After passage of Ordinance Number 2048, petitioner

again appealed to LUBA. Petitioner contended, among other

points, that the city’s interpretation of Goal 8 Policy 1 is

inconsistent with the text, purpose, and underlying policy of

HRCP Goal 8 Policy 1 and, thus, not affirmable even under

the deferential standard of review that LUBA must apply.

LUBA rejected petitioner’s appeal, determining that

the city’s interpretation of HRCP Goal 8 Policy 1 accounts

for the text, context, purpose, and policy of HRCP Goal 8

Policy 1.

LUBA explained that, under the city’s interpreta-

tion of the word “protect,” “public park sites will be protected

for public park use, unless and until the city determines

that a portion of the park site should be used for a different,

non-park use, and that non-park use can be made compat-

ible with the remaining park uses.” LUBA deferred to that

interpretation of “protect,” given the “deferential standard

of review in ORS 197.829(1).”

Regarding the city’s consideration of whether the

rezoning of TL 700 was “incompatible” under Goal 8 Policy 1,

LUBA determined that, when considering “HRCP Goal 8,

Policy 1, in context with HRCP Goal 8, Policies 2 and 3,

the city’s interpretation of ‘incompatible’ is consistent with

the policy’s express language, its purpose, and underlying

policy.” LUBA reasoned that the city “reserved 8.07 acres of

Morrison Park for public park use,” that the “2.76 acres for

residential use is conditioned to be compatible with park use

Cite as 308 Or App 44 (2020) 51

on the remaining park property,” and that the city “empha-

size[d] that siting multi-family affordable housing adjacent

to the park will facilitate use of the park by residents of

the affordable housing development, thus promoting HRCP

Goal 8 polices [2 and 3] of making parks accessible to a

maximum number of people and developing parks that are

accessible by walking or bicycling.”

Additionally, LUBA agreed with the city that the

“park site” can be protected “without maintaining the entire

land area of Morrison Park for public park use.” LUBA rea-

soned that because “the park site is protected from incom-

patible uses, some compatible uses are presumably allowed,

suggesting that some compatible non-park uses are allowed.”

LUBA further noted that the term “site” is “sometimes used

in land use regulations to define the location or placement

of particular development,” and in that context, “ ‘site’ is

less than the total land area of the particular parcel or

lot.”

II. ANALYSIS

As noted above, petitioner seeks review of LUBA’s

order affirming the city’s decision to approve a quasi-judicial

zone change to a portion of a city park from Open Space/

Public Facilities (OS/PF) to Urban High Density Residential

(R-3).

Under ORS 197.829(1) and Siporen, 349 Or at 259,

LUBA “must defer to a local government’s interpretation

of its comprehensive plan and land use regulations, unless

the board determines that the local government’s interpre-

tation is inconsistent with the express language, purpose,

or underlying policy of the comprehensive plan or land use

regulation.” Crowley I, 294 Or App at 244. In Crowley I, we

explained:

“Whether the city’s interpretation of its comprehensive

plan is inconsistent with the plan, or the purposes or pol-

icies underlying that plan, depends on whether the inter-

pretation 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

52 Crowley v. City of Hood River

606, 610-12, 859 P2d 1143 (1993), as modified by State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).”

Id. (brackets and internal quotation marks omitted). As we

explained in Kaplowitz v. Lane County, 285 Or App 764, 775,

398 P3d 478 (2017),

“[a]lthough the analysis echoes the statutory construction

methodology set out in PGE and Gaines, we emphasize that

the plausibility determination under ORS 197.829(1) is not

whether a local government’s code interpretation best com-

ports with principles of statutory construction. Rather, the

issue is whether the local government’s interpretation is

plausible because it is not expressly inconsistent with the

text of the code provision or with related policies that ‘pro-

vide the basis for’ or that are ‘implemented’ by the code

provision, including any ordained statement of the specific

purpose of the code provision at issue.”

(Emphasis in original.)

The standard of review under ORS 197.829(1) and

Siporen is “highly deferential” to the city, and the “existence

of a stronger or more logical interpretation does not render

a weaker or less logical interpretation ‘implausible.’ ” Mark

Latham Excavation, Inc. v. Deschutes County, 250 Or App

543, 555, 281 P3d 644 (2012). “Put simply, our task on review

in this case is to determine whether the city’s interpretation

of Goal 8 Policy 1 plausibly accounts for the text and context

of that provision.” Crowley I, 294 Or App at 245 (brackets

and internal quotation marks omitted).

On appeal, petitioner contends that LUBA erred

in giving deference to the city’s interpretation of Goal 8

Policy 1, because the city’s interpretation of Goal 8 Policy 1

is inconsistent with the policy’s express language and pur-

pose. In petitioner’s view, LUBA affirmed an implausible

interpretation of Goal 8 Policy 1, because the city’s inter-

pretation added terms that are not present. For example,

petitioner contends that, as interpreted by the city, Goal 8

Policy 1 only protects “certain areas” of the park site.

The city, for its part, argues that Goal 8 Policy 1

contains three “undefined operative terms that are inher-

ently ambiguous”—i.e., “park sites,” “protected,” and “incom-

patible uses”—and that the city’s interpretation of those

Cite as 308 Or App 44 (2020) 53

terms and what Goal 8 Policy 1 requires was “thorough and

plausible.”

In this case, we conclude that LUBA’s order defer-

ring to the city’s interpretation of Goal 8 Policy 1 is unlawful

in substance, ORS 197.850(9)(a), and we reverse and remand

for further proceedings.

As explained by LUBA, under the city’s interpreta-

tion of Goal 8 Policy 1, “public park sites will be protected for

public park use, unless and until the city determines that a

portion of the park site should be used for a different, non-

park use, and that non-park use can be made compatible

with the remaining park uses.” Here, the city determined

that the “affordable housing project that is envisioned for a

portion of Morrison Park,” although a “non-park use,” is not

“incompatible” with the use of “TL 700 as a city park,” and

that the rezoning was achieving “Goal 8, Policy 1’s directive

to protect today’s 10.83-acre Morrison Park site from incom-

patible uses” because it was limiting “the extent of non-park

development to 2.76 acres” of TL 700.

In this case, as in Crowley I, the difficulty with the

city’s interpretation is that “it adds language to the express

text of Goal 8 Policy 1 to limit the preservation of parks,

which is inconsistent with Goal 8 Policy 1’s mandatory

text—‘[e]xisting park sites will be protected from incom-

patible uses.’ ” 294 Or App at 247 (emphasis in original). As

noted above, in Crowley I, we observed that “Goal 8 Policy 1

does not limit the scope of its applicability, and a plain and

natural reading of the policy suggests that there are no lim-

itations on the phrase ‘incompatible uses.’ ” Id. Therefore, in

Crowley I, we rejected an interpretation of Goal 8 Policy 1

that “inserted language to place limitations on that phrase,”

which would have allowed “for incompatible uses within

existing park sites.” Id. (emphasis in original).

Here, the city’s interpretation of Goal 8 Policy 1, in

effect, rewrites Goal 8 Policy 1 to provide that “portions of

existing park sites will be protected from incompatible uses,”

and would allow incompatible uses within existing park

sites, as it would allow portions of existing park sites to be

developed in a manner that is inconsistent with use of those

54 Crowley v. City of Hood River

portions as park.3 That cannot be squared with the “plain

and natural reading” of Goal 8 Policy 1, which suggests that

there are no limitations on the phrase “incompatible uses.”

Id.; see also Friends of the Hood River Waterfront v. City of

Hood River, 263 Or App 80, 90, 326 P3d 1229 (2014) (holding

city’s interpretation implausible where it added words not

originally included in text of implementation strategy). Nor

can it be squared with Goal 8 Policy 1’s text, “when viewed

in the context of Goal 8’s purpose of maintaining and devel-

oping public parks,” Crowley I, 294 Or App at 248, because,

rather than maintaining and developing existing park sites,

it would allow the city to reduce the size of existing park

sites.

Put another way, it is simply not plausible that, by

developing 2.76 acres of Morrison park for “non-park” uses,

such as housing, the city “achieves” Goal 8 Policy 1’s “direc-

tive to protect [the] 10.83-acre Morrison Park site from

incompatible uses,” as the city contends.4 Although we are

3

The city does not undertake a meaningful effort to argue that the 2.76

acres of TL 700 that are anticipated to be used for housing under Ordinance

Number 2048 will be compatible with park use on that 2.76 acres. We do not fore-

close, however, the possibility that some nonpark uses of a particular portion of a

park site could be compatible with park use on that particular portion.

4

The dissent faults the majority for “assum[ing] that Goal 8 Policy 1 pro-

hibits reduction of the entire area of an existing park site.” 308 Or App at 58

(Armstrong, P. J., dissenting). In the dissent’s view, “ ‘site’ can refer to an area

that is less than the entire area of a lot or parcel,” and, therefore, the city can

reduce the size of Morrison Park by building housing on 2.76 acres of it while still

protecting Morrison Park from incompatible uses. 308 Or App at 59 (Armstrong,

P. J., dissenting). But it is not plausible to assert that the 2.76 acres of Morrison

Park that the city intends to use for housing is not part of the Morrison Park

“park site.” That the dissent does not articulate any limitation on its interpreta-

tion of “park site” demonstrates why its interpretation of “park site” is not plausi-

ble: Would building housing on 5.83 acres of Morrison Park while preserving five

acres for use as a park protect the Morrison Park “park site” from incompatible

uses? It seems that the only plausible answer is no, but under the dissent’s inter-

pretation, it very well could be yes, because in the dissent’s view Goal 8 Policy 1

does not prohibit reducing the size of an existing park.

The dissent also argues that we should “tread carefully when applying ORS

174.010 under a Siporen standard of review.” 308 Or App at 59 n 2 (Armstrong,

P. J., dissenting). ORS 174.010 provides that, “[i]n the construction of a statute,

the office of the judge is simply to ascertain and declare what is, in terms or in

substance, contained therein, not to insert what has been omitted, or to omit

what has been inserted.” We have historically considered the principles set forth

in ORS 174.010 when determining whether a city’s construction of its policy is

plausible, including in our decision in Crowley I. Crowley I, 294 Or App at 243

n 2 (noting “we apply the principles that ordinarily apply to construing the text

Cite as 308 Or App 44 (2020) 55

mindful that our task is not to determine “whether a local

government’s code interpretation best comports with princi-

ples of statutory construction, we do look to those principles

in determining whether the city’s interpretation plausibly

accounts for the policy’s text.” Id. at 247 (emphasis in origi-

nal; citation omitted).

The city is perhaps correct that placing residential

housing next to a park promotes the “aspirational goals” ref-

erenced in Goal 8 Policies 2 and 3—i.e., that “[w]hen feasible,

recreational opportunities and park sites will be located so

as to be accessible to a maximum number of people,” and that

“[t]he development of parks which are accessible by means

of walking or bicycling is encouraged.” Id. at 246-47. But it

is not plausible that promotion of those aspirational goals

excuses the city from the mandatory obligation imposed by

Goal 8 Policy 1 to “protect” park sites from “incompatible

uses.”

In sum, we conclude that LUBA’s order deferring

to the city’s interpretation of Goal 8 Policy 1 is unlawful in

substance, ORS 197.850(9)(a), and we reverse and remand

for further proceedings.

Reversed and remanded.

ARMSTRONG, P. J., dissenting.

Goal 8 Policy 1 of Hood River’s comprehensive plan

provides that “[e]xisting park sites will be protected from

incompatible uses.” In the city’s view, Goal 8 Policy 1 per-

mits the rezoning of a 5-acre tax lot, which in turn is part of

the city’s 10.83-acre Morrison Park, to residential use when

the rezoning is conditioned as it is in this case—for afford-

able housing on a maximum of 2.76 acres of the rezoned tax

of a statute in determining whether the city’s interpretation is plausible,” includ-

ing “the one embodied in ORS 174.010”); see also Western Land & Cattle, Inc. v.

Umatilla Cty., 230 Or App 202, 210, 214 P3d 68 (2009) (noting that “in determin-

ing whether a local government’s interpretation of its land use plan or regulation

is inconsistent with the express language of the comprehensive plan or land use

regulation under ORS 197.829(1)(a), we apply the statutory construction princi-

ples in ORS 174.010 and ORS 174.020(2)” (internal quotation marks omitted));

Friends of the Hood River Waterfront, 263 Or App at 90 (holding city’s interpre-

tation implausible where it added words not originally included in text of imple-

mentation strategy). The approach that we take in this opinion is in accordance

with that precedent.

56 Crowley v. City of Hood River

lot. The city reasons that the future nonpark development

contemplated by the rezoning is “suitably conditioned to ren-

der it compatible with and protect the park” and, in that

way, the park site will be protected from incompatible uses,

as required by Goal 8 Policy 1. In my view, if the review

task at hand is correctly identified—viz., assessing whether

the city’s construction of Goal 8 Policy 1 is “inconsistent

with the express language of the comprehensive plan,” ORS

197.829(1)(a), and “plausibly accounts for [its] text and con-

text,” Siporen v. City of Medford, 349 Or 247, 262, 243 P3d

776 (2010)—the city’s construction of Goal 8 Policy 1 is not

implausible. Because LUBA was correct to conclude that

the city’s construction is not implausible, its order is not

“unlawful in substance or procedure,” ORS 197.850(9)(a),

and I would therefore affirm it.1 Consequently, I respectfully

dissent.

Like LUBA, my assessment of the plausibility of the

city’s construction of Goal 8 Policy 1 turns on an examina-

tion of the operative terms of the policy, and I begin with

whether the term “protected” is susceptible, in context, of

the meaning that the city gives it. “Protect” is defined by

the city’s comprehensive plan to mean “Save or shield from

loss, destruction, or injury or for future intended use.” As

the city sees it, there is park use and nonpark use; not all

nonpark use is “incompatible use.” Therefore, the city does

not construe the term “protected” to be a prohibition against

all nonpark uses in parks. Further, the city sees the defini-

tion of “protect” as anticipating the need to protect “future

intended use,” which includes both park and nonpark uses

but, again, does not include incompatible uses. The city pos-

its that, if the operative term “protected” were meant to pre-

vent or prohibit all nonpark uses on existing park sites, then

Goal 8 Policy 1 would say that. Instead, the policy refers to

protection against “incompatible uses,” which implies that

parks are not protected against compatible uses. Hence, the

policy can be understood to allow nonpark uses in parks so

long as they are compatible with underlying park uses. I fail

to find fault with the plausibility of that construction and,

like LUBA, agree with the city that the term “protected” is

1

I would reject petitioner’s remaining assignments and subassignments of

error without written discussion.

Cite as 308 Or App 44 (2020) 57

susceptible to meaning that public park sites are protected

for public park use and, if the city decides that a portion of

a park site should be used for a nonpark use, nonpark use

is allowable so long as it is compatible with the underlying

park use.

As for the term “incompatible uses,” which is not

defined in the comprehensive plan, the city views an afford-

able housing project, although a nonpark use, as compatible

with the remainder of the rezoned tax lot and the balance

of Morrison Park because the city set out conditional mea-

sures to ensure its compatibility. Those conditions are that

the residential development permitted by the rezoning must

(1) be affordable housing (2) be limited to only 2.76 acres of

the tax lot that the city seeks to rezone, and (3) require con-

struction of pedestrian and bicycle connections to other city

parks and pathways through the remainder of the rezoned

tax lot and Morrison Park. The city supports its view that

those conditions ensure compatibility by relying on two

other provisions in Goal 8, viz., Policy 2, which provides that,

“[w]hen feasible, recreational opportunities and park sites

will be located so as to be accessible to a maximum number

of people,” and Policy 3, which provides that the “develop-

ment of parks which are accessible by means of walking or

bicycling is encouraged.”

With those policies in mind, the city reasons that

its “parks are supposed to be an amenity used by urban

dwellers, and the population that city parks are supposed

to serve includes low income residents, whose recreational

opportunities are limited by an inability to afford other high

cost options.” And, although “the users of Morrison Park

may change as a result of [the rezoning,] overall more peo-

ple with limited means will be served by this urban park if

they live adjacent to the remaining park space that will be

integrated into the non-park use.” Moreover, the city empha-

sizes that any housing development on the rezoned tax lot

will be limited to 2.76 acres and that the affordable housing

project would be integrated with the park to promote walk-

ing and bicycle use, which in turn would improve the park’s

accessibility and better serve the recreational needs of the

city’s residents and its visitors. I fail to see the implausibil-

ity of the city’s view of “incompatible uses”—which rests on

58 Crowley v. City of Hood River

the understanding that the proposed change to the park,

although it decreases the park’s size somewhat, will increase

recreational use for a broader range of its citizens for whom

recreational space has not historically been accessible. That

construction is in keeping with Goal 8 of the comprehensive

plan, which is to “satisfy the recreational needs of the citi-

zens and visitors to the area.”

Further, the city’s construction of the term “incom-

patible uses” avoids the problem that we identified in

Crowley v. City of Hood River, 294 Or App 240, 430 P3d 1113

(2018) (Crowley I). In Crowley I, the city asserted that Goal 8

Policy 1 applied only to incompatible uses on nearby proper-

ties and not to the park itself. We concluded that that con-

struction was implausible because it placed limitations on

the term “incompatible uses” where there were none. Id. at

247. Here, the city’s conditions of the rezoning, which are

neither categorical nor definitive, do not likewise limit the

meaning of “incompatible uses.” That is, the city’s view that

the limited residential use and park use can coexist on the

same park site if the residential development satisfies Goal

8 and its policies is not a construction that narrows or limits

the scope of the policy’s applicability.

With that said, I turn to petitioner’s argument that,

because the city inserted qualifiers—“portion,” “remain-

der,” or “balance”—to the term “park site” several times in

explaining its construction of Goal 8 Policy 1, the city’s con-

struction of the policy violates the injunction “not to insert

what has been omitted,” ORS 174.010, and the majority

opinion’s agreement with that argument when it says that

the city’s construction of the policy effectively rewrites it to

mean that “portions of existing park sites will be protected

from incompatible uses.” 308 Or App at 53. There are two

reasons why I find that view unavailing.

First, that view necessarily assumes that Goal 8

Policy 1 prohibits reduction of the entire area of an exist-

ing park site. However, neither the policy’s express lan-

guage nor any other provision in the comprehensive plan

says that. And, because the meaning of “site” can refer to an

entire area or to less than the entire area, it cannot be said

that the “plain and natural reading” of “park site” is the

Cite as 308 Or App 44 (2020) 59

entire area of a park site. As LUBA explained in its order,

“ ‘site’ is sometimes used in land use regulations to define

the location or placement of particular development,” and,

therefore, “site” can refer to an area that is less than the

entire area of a lot or parcel, or put differently, a portion of a

lot or parcel. See also Kamps-Hughes v. City of Eugene, 305

Or App 224, 232, 470 P3d 429 (2020) (recognizing that the

City of Eugene’s posited meaning of “siting” could refer both

to the placement of a particular type of building or facility

within a larger area, such as one of the city’s residential

zones, or to placement within a smaller area like an indi-

vidual lot). Additionally, if some nonpark uses are permit-

ted so long as they are not incompatible uses, see 308 Or

App at 54 n 3 (acknowledging that “some non-park uses of

a particular portion of a park site could be compatible with

park use on that particular portion”), I cannot imagine an

instance where a nonpark use would not reduce the size of

the park in some way. For example, adopting a provision to

allow a bicycle or skate rental business to be established in

Morrison Park would remove the portion of land dedicated

to that use from use as park land while promoting the use

of the balance of the park by people renting the skates and

bicycles.

Second, there are analytical difficulties with apply-

ing ORS 174.010—the proscription “not to insert what has

been omitted”2 —to the task at hand here—reviewing, in

accordance with ORS 197.829(1)(a), whether a city’s con-

struction of its policy is implausibly “inconsistent with the

express language” of its comprehensive plan. It is to be

expected that construction of a city’s policy provision uses

additional language—collected from logic, dictionaries, case

2

ORS 174.010 provides, in part, that when we determine the meaning of a

statute, our task is to “ascertain and declare what is, in terms or in substance,

contained therein, not to insert what has been omitted, or to omit what has been

inserted.” That proscription is part of the statutory-construction methodology set

out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143

(1993), and State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), which we

use when reviewing the plausibility of a city’s construction of its land-use regu-

lations. Setniker v. Polk County, 244 Or App 618, 633-34, 260 P3d 800, rev den,

351 Or 216 (2011). As I explain, reviewing the plausibility of a city’s construction

of its land-use regulations and engaging in the task of statutory construction,

although similar endeavors, are different enough to caution that we should tread

carefully when applying ORS 174.010 under a Siporen standard of review.

60 Crowley v. City of Hood River

law, other provisions in the comprehensive plan, or the pol-

icy’s enactment history. As LUBA has put it, “Any interpre-

tation of ambiguous language necessarily restates or para-

phrases the understood meaning of the text using different

words than found in the text.” Estroff v. City of Dundee, ___

Or LUBA ___, ___ (LUBA No. 2018-139, Feb 27, 2019) (slip

op at 10). In this case, the city construes Goal 8 Policy 1

to mean that its purpose is to protect a park site from

incompatible nonpark uses and not from all nonpark uses.

As a matter of logic, a nonpark use cannot be a park use

and must occupy some portion of the entire area of a park

site. The city cannot therefore evade words like “portion”

or “remainder” in the course of its construction and, when

the proper level of deference is given to its construction, it

is hazardous to rely on the no-insertion-of-terms principle

when the operative terms of Goal 8 Policy 1 are susceptible

to more than one meaning.

That is not to say that petitioner’s arguments and the

majority’s conclusion would be incorrect were we to review

the city’s construction of Goal 8 Policy 1 for legal error. The

plausibility of those views, however, is not the issue. The

issue is whether the city’s construction is plausible, and our

assessment of the plausibility of the city’s construction must

be “highly deferential.” Mark Latham Excavation, Inc. v.

Deschutes County, 250 Or App 543, 555, 281 P3d 644 (2012).

Accordingly, heeding what Siporen instructs, I respectfully

dissent.