Royal Blue Organics v. City of Springfield

518

Argued and submitted on January 25; on petitioner-respondent Springfield

Utility Board’s motion to take judicial notice filed December 24, 2020, and

petitioner-respondent Royal Blue Organics’ response to the motion to take

judicial notice filed January 7, Springfield Utility Board’s motion to take

judicial notice allowed in part, denied in part; LUBA order reversed and

remanded on Springfield Utility Board’s petition, affirmed on Royal Blue

Organics’ petition April 7, 2021

ROYAL BLUE ORGANICS,

Respondent,

v.

CITY OF SPRINGFIELD,

Respondent,

and

SPRINGFIELD UTILITY BOARD,

Petitioner.

ROYAL BLUE ORGANICS,

Petitioner,

v.

CITY OF SPRINGFIELD

and Springfield Utility Board,

Respondents.

Land Use Board of Appeals

2019092, 2019094, 2019095, 2019134;

A175041

487 P3d 440

The City of Springfield and Lane County conditionally approved Springfield

Utility Board’s (SUB) applications to construct an electrical substation and power

lines in the community of Glenwood. Royal Blue Organics (RBO) challenged that

conditional approval. It argued, among other things, that (1) the geotechnical

reports submitted by SUB in connection with its hillside development permit

application did not conform to the applicable local standards and (2) SUB was

precluded from building its substation on the proposed site because it contained a

wetland protected from development by the Springfield Development Code (SDC).

The local authorities rejected RBO’s arguments and RBO then appealed to the

Land Use Board of Appeals (LUBA). LUBA rejected RBO’s argument that the

geotechnical reports were deficient but agreed that the wetland on SUB’s pro-

posed site restricted development of the substation. Specifically, LUBA concluded

that the site contained a “watercourse” subject to protection under SDC 4.3-115,

and that remand was necessary to determine whether development would be

prohibited altogether. SUB and RBO each seek judicial review of LUBA’s final

order. Additionally, SUB requests that the Court of Appeals take judicial notice

of several documents related to the project and the local development standards.

Held: First, the Court of Appeals agreed to take judicial notice of some, but not

Cite as 310 Or App 518 (2021) 519

all, of SUB’s proffered documents. On the merits of the parties’ arguments, the

court concluded that (1) LUBA did not err in determining that SUB’s geotechni-

cal reports were sufficient to support hillside development under the applicable

ordinances and (2) LUBA erred in concluding that the wetland on SUB’s pro-

posed site was subject to the prohibitions listed in SDC 4.3-115. The plain text

and context of the applicable ordinances demonstrate that SUB could develop

the site so long as it complied with state and federal wetland permitting require-

ments. Because it had done so, the city correctly approved SUB’s application.

Springfield Utility Board’s motion to take judicial notice allowed in part,

denied in part. LUBA order reversed and remanded on Springfield Utility Board’s

petition; affirmed on Royal Blue Organics’ petition.

Zack Mittge argued the cause for petitioner-respondent

Royal Blue Organics. On the opening brief for petitioner

were William H. Sherlock, Jonathan Hood, and Hutchinson

Cox. On the answering brief for respondent were William H.

Sherlock, Zack Mittge, and Hutchinson Cox.

Michael J. Gelardi argued the cause for petitioner-

respondent Springfield Utility Board. Also on the briefs was

Gelardi Law P.C.

No appearance for respondent City of Springfield.

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

MOONEY, J.

Springfield Utility Board’s motion to take judicial notice

allowed in part, denied in part. LUBA order reversed and

remanded on Springfield Utility Board’s petition; affirmed

on Royal Blue Organics’ petition.

520 Royal Blue Organics v. City of Springfield

MOONEY, J.

The City of Springfield (city) approved the

Springfield Utility Board’s (SUB) applications for site plan

review, tree felling, and hillside development permits for

a new electrical substation and related power lines in the

unincorporated community of Glenwood, in Lane County.

Royal Blue Organics (RBO) appealed those decisions to

the local planning commission and hearings official, who

jointly affirmed the city’s approvals. RBO filed an appeal

with the Land Use Board of Appeals (LUBA) and LUBA,

in turn, remanded all three decisions for further consid-

eration of limited issues. RBO and SUB each seek judicial

review of certain aspects of LUBA’s final order. In its sole

assignment of error, SUB seeks reversal of LUBA’s deter-

mination that the substation site is a “watercourse” subject

to protection under Springfield Development Code (SDC)

4.3-115. In its sole assignment of error, RBO seeks reversal

of LUBA’s determination that the geotechnical reports sub-

mitted by SUB in connection with its hillside development

permit application conformed to the applicable local stan-

dards. We reverse on SUB’s petition and we affirm on RBO’s

petition.

SUB’S MOTION TO TAKE JUDICIAL NOTICE

We begin by resolving SUB’s motion to take judicial

notice of certain laws, plans, and facts in order to clarify

the record on review. SUB filed a motion requesting that we

take judicial notice of several categories of documents that

are not in the record, to which RBO filed a memorandum in

opposition. We deferred ruling on the motion and turn to it

now, beginning with general principles of jurisdiction and

the record before us for review.

Jurisdiction for judicial review of LUBA orders resides

exclusively with the Court of Appeals. ORS 197.850(2) and (3).

The “entire record of the proceeding under review” is that

which is transmitted to us by LUBA. ORS 197.850(5). Our

review is confined to that record and “we may not substi-

tute [our] judgment for that of the board as to any issue of

fact.” ORS 197.850(8). ORAP 4.67 requires the petitioner

to include “copies of all provisions of local government

documents (e.g., ordinances, plans) * * * pertinent to its

Cite as 310 Or App 518 (2021) 521

arguments on judicial review in the excerpt of record if the

provisions are part of the record or in an appendix * * * if

the provisions are not part of the record.” The purpose of

the appendix is to provide “materials that would be helpful

in understanding and resolving an issue raised on appeal,”

but it should not include “materials from the record of the

tribunal from which the appeal is taken that should be in

the excerpt of record.” ORAP 5.52. With these principles and

rules in mind, we turn to the specific documents that SUB

requests we judicially notice.

OEC 202(7) provides for taking judicial notice of

city and county ordinances and comprehensive plans.1 In

accordance with that provision, we take judicial notice of

the following ordinances:

i.  Springfield Development Code (SDC) sections 4.3-110,

4.3-115, 4.3-117, 5.17-125, and 6.1-110. SUB’s Opening

Brief, Appendix 1-27.

ii.    Ordinance No. 6021, including Water Quality Limited

Watercourse Map. SUB’s Opening Brief, Appendix

28-73.

iii. Ordinance 6265 (2011). Appendix 139-140.

We decline to take judicial notice of the following docu-

ments, because they are neither city nor county ordinances

or plans:

i.   Glenwood Local Wetland Inventory Report (2010).

ii.    Springfield Natural Resource Study Report, October

2005 (updated 2011).

OEC 202(2)2 provides for taking judicial notice of

official acts of the state and federal governments, and OEC

1

OEC 202 provides, in part:

“ ‘Law judicially noticed’ is defined as:

“* * * * *

“(7) An ordinance, comprehensive plan or enactment of any county or

incorporated city in this state, or a right derived therefrom.”

2

OEC 202 provides, in part:

“Law judicially noticed is defined as:

“* * * * *

522 Royal Blue Organics v. City of Springfield

201(b)3 permits judicial notice of facts not subject to reason-

able dispute that are capable of accurate and ready determi-

nation. We take judicial notice of the fact that Army Corps

Permit No. NWP-2018-610 (2020) and Oregon Department

of State Lands (ODSL) Removal-Fill Permit No. 61795-RF

(2020) were issued by each respective agency. See McGee

Plumbing, Inc. v. Building Codes Div., 221 Or App 123, 131,

188 P3d 420 (2008) (“An agency decision is an official act

within the scope of [OEC 202(2)].”). Except as to the fact of

permit issuance itself, we decline to take judicial notice of

the associated “permit documents.”

We likewise decline to take judicial notice of SUB’s

city code interpretation application (Appendix 473-483)

and the city planning director’s response (Appendix 484).

Neither the application nor the response are official acts

noticeable under OEC 202(2).

BACKGROUND

The pertinent facts and procedural background

are taken from LUBA’s final order and from undisputed

evidence in the record. Glenwood is situated alongside the

Willamette River between the City of Springfield on the east

and the City of Eugene on the west. Glenwood is partly within

Springfield city limits, partly within unincorporated Lane

County, and entirely within the Springfield urban growth

boundary (UGB). Its development has been discussed and

studied extensively since at least 1982, when the Eugene-

Springfield Metro Plan (Metro Plan) established a process to

urbanize Glenwood. In 2014, the Glenwood Refinement Plan

(Glenwood Plan) was adopted to govern the development of

Glenwood’s riverfront. It requires SUB to provide electric

“(2) Public and private official acts of the legislative, executive and judi-

cial departments of this state, the United States, any federally recognized

American Indian tribal government and any other state, territory or other

jurisdiction of the United States.”

3

OEC 201(b) provides:

“A judicially noticed fact must be one not subject to reasonable dispute in

that it is either:

“(1) Generally known within the territorial jurisdiction of the trial court;

or

“(2) Capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.”

Cite as 310 Or App 518 (2021) 523

service to Glenwood and to work with the city to evaluate

sites for the installation of a new electrical substation and

transmission lines to facilitate Glenwood’s mixed-use urban-

ization. In 2015, the Eugene-Springfield Metropolitan Area

Public Facilities and Services Plan (PFSP) was amended

to reflect general locations for the substation and power

lines.

In 2019, SUB applied for a federal wetland fill

permit and for associated Oregon DEQ water quality cer-

tification for the substation site. Both were granted. SUB

also applied for and received city approval of the substa-

tion and power line project from the city planning direc-

tor. RBO appealed the director’s decisions concerning the

substation site to the Springfield planning commission,4

and it appealed the director’s decisions concerning the tree

felling and hillside development permits to the Springfield

hearings official.5 The planning commission and the hear-

ings official conducted joint hearings and affirmed the site

plan approval, hillside development permit, and tree fell-

ing permit with some conditions attached. RBO appealed

those decisions to LUBA. While the LUBA appeals were

pending, the city planning director issued an interpretation

related to the site plan approval. RBO filed an appeal of that

interpretation as well. LUBA consolidated the four appeals

and issued its Final Opinion & Order in LUBA Nos. 2019-

092/094/095/134 on November 12, 2020. LUBA rejected

some assignments of error, sustained others, and remanded

for further proceedings at the local level.

The questions on appeal have been narrowed con-

siderably, with RBO and SUB each raising a single assign-

ment of error in their respective petitions.

STANDARD OF REVIEW

Our task is to determine whether LUBA’s order is

“unlawful in substance or procedure[.]” ORS 197.850(9)(a).

4

The planning commission has jurisdiction over the substation site, tax

lot 101, and a portion of tax lot 1100, because that property is located within

Springfield city limits.

5

The hearings official has jurisdiction over the site for utility poles and trans-

mission lines, because the property in question, tax lots 300, 1000, and a portion

of 1100, is located outside city limits but within the urban growth boundary.

524 Royal Blue Organics v. City of Springfield

RBO’S PETITION

RBO seeks reversal of LUBA’s order affirming

approval of the hillside development permit. It challenges

the order as “unlawful in substance,” assigning error only to

that “portion of LUBA’s order that affirmed a local hearings

official’s determination that [SUB’s] geotechnical reports

conformed to applicable hillside development and site

review standards.” In particular, RBO argues that LUBA

“misconstrued geotechnical report requirements,” affirmed

“inadequate findings” with respect to debris flows, land-

slides, and minimum variance from natural conditions, and

affirmed findings with respect to slope movement that are

“not based on substantial reasons and substantial evidence

in the whole record.”

RBO argues that the standard of review for “LUBA’s

evaluation of local code provisions” is to apply “the ordinary

principles of statutory construction” as per PGE v. Bureau

of Labor and Industries, 317 Or 606, 611-12, 859 P2d 1143

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

(2009). SUB counters that RBO “does not identify any issue

with how LUBA construed the City’s rules,” but instead chal-

lenges the sufficiency of the evidence in the record by claim-

ing that LUBA erred in affirming the local determination

that the reports satisfied the report requirements. We agree

that RBO’s argument that the Foundation Engineering, Inc.

(FEI) reports do not contain all the information required by

SDC 3.3-530(A) is a challenge to the adequacy of the content

of SUB’s geotechnical reports and not to LUBA’s interpreta-

tion of the city’s rules regarding those reports.

It follows that our task under ORS 197.835(9)(a)(C)

is to evaluate whether LUBA properly applied the substan-

tial evidence standard. In doing so,

“we do not substitute our judgment for LUBA’s on whether

a reasonable person could make a finding of fact based

upon the entire local government record. Instead, we eval-

uate whether LUBA properly stated and applied its own

standard of review. If LUBA does not err in the articulation

of its substantial evidence standard of review under ORS

197.835(9)(a)(C), we would reverse LUBA’s decision only

when there is no evidence to support the finding or if the

evidence in the case is ‘so at odds with LUBA’s evaluation

Cite as 310 Or App 518 (2021) 525

that a reviewing court could infer that LUBA had mis-

understood or misapplied its scope of review.’ ”

Citizens for Responsibility v. Lane County, 218 Or App 339,

345, 180 P3d 35 (2008) (quoting Younger v. City of Portland,

305 Or 346, 359, 752 P2d 262 (1988)).

The parties agree that the Hillside Development

Overlay District requirements (SDC 3.3-500) apply here,

because portions of the property proposed for the utility poles

and power lines intended to connect the substation to an

existing uphill power source exceed 15 percent in slope. SDC

3.3-510. SUB was, thus, required to submit certain reports,

including a geotechnical report, along with its application

for a hillside development permit, in order to “prevent or

mitigate possible hazards to life and property and adverse

impacts on the natural environment[.]” SDC 3.3-530. The

geotechnical report must contain

“data regarding the geology of the site, the nature, distri-

bution, and strength of existing soils, conclusions and rec-

ommendations for grading procedures, design criteria for

corrective measures, and options and recommendations to

maintain soil and slope stability and minimize erosion of

the site to be developed in a manner imposing the minimum

variance from the natural conditions. Where geologic condi-

tions of the site indicate that a hazard may exist, the report

shall show that the proposed Subdivision or Partition shall

result in lots/parcels that are suitable for development.

The investigation and report shall be prepared by a civil

engineer/geologist or a geotechnical engineer.”

SDC 3.3-530(A).

SUB submitted three geotechnical reports in the

course of the hillside development application process:

1. The September 19, 2018, “Geotechnical Investigation

and Seismic Hazard Study: SUB Glenwood Sub-

station” prepared by FEI;

2. The December 27, 2018, “Slope Stability Review in

Felling Areas” memorandum prepared by FEI; and

3. The July 24, 2019, “ Geotechnical Investigation for

Transmission Line Pole Structures” memorandum

prepared by FEI.

526 Royal Blue Organics v. City of Springfield

RBO submitted its own reports written by licensed engi-

neering geologist Gunnar Schlieder, Ph.D., of GeoScience,

Inc.:

1. July 30, 2019, letter concerning “Slope Stability

Concerns, SUB Power Line, Vicinity of E. 22nd

Avenue”; and

2. August 6, 2019, letter concerning “Review of FEI

7/24/19 Submission, SUB Power Line, E. 22nd

Avenue.”

In the end, RBO’s challenge to LUBA’s order affirming the

hillside development permit and SUB’s response to that

challenge amount to a battle between the experts regarding

current and historic geologic features of the subject property,

assessment of landslide, erosion, and seismic risks, and rec-

ommendations to maintain stability, mitigate erosion, and

minimize impact. Assessing the credibility of the evidence—

which includes resolving competing expert opinions—

is up to the factfinder. Root v. Klamath County, 260 Or App

665, 671, 320 P3d 631 (2014); Tigard Sand and Gravel, Inc. v.

Clackamas County, 151 Or App 16, 20, 949 P2d 1225 (1997),

rev den, 327 Or 83 (1998). RBO’s arguments concerning the

weight to be given to the competing reports is beyond the

scope of our review. LUBA’s review was for substantial sup-

porting evidence in the whole record.

LUBA’s order reflects its understanding of the sub-

stantial evidence review that was its task to conduct.

Specifically, LUBA concluded:

“[RBO] argues that the hearings official improperly con-

strued applicable law and made a decision that is not

supported by adequate findings or substantial evidence

in concluding that SUB’s geotechnical reports conformed

to SDC 3.3-530(A). [RBO] argues that the hearings offi-

cial’s decision is not based on substantial evidence because,

according to [RBO], SUB’s geotechnical reports did not

adequately respond to GeoScience’s slope stability concerns

or criticism that FEI’s subsurface samples are not repre-

sentative of actual soil conditions.”

It then went on to say that

“[t]he hearings official found, and we agree, that FEI

adequately responded to GeoScience’s concerns. [RBO]

Cite as 310 Or App 518 (2021) 527

provides us no reason to second-guess the hearings offi-

cial’s decision to give more weight to SUB’s geotechnical

evaluation. We conclude that the hearings official did not

misconstrue SDC 3.3-530(A) and the finding that SDC

3.3-530(A) is satisfied is supported by substantial evidence.”

We infer that LUBA understood its role in reviewing for

substantial evidence from its reference to the substantial

evidence standard and its statement that it had “no reason

to second-guess” the local hearings official’s decision to “give

more weight” to FEI’s reports.

It is important to note that, in describing the hear-

ings official’s findings concerning slope stability and earth

movement hazards, LUBA described the FEI reports, the

various concerns raised by GeoScience about test locations

and methods, and FEI’s response to those concerns, all of

which were in the record before the hearings official. To be

sure, the engineering experts provided different views about

soil stability, historic earth movement data, and risk assess-

ments for the proposed utility pole installations and hillside

development. But, as LUBA clearly understood, it was not

LUBA’s role to substitute its own judgment about the evi-

dence for that of the hearings official. And we cannot say

that the hearings official’s findings were “so at odds” with

the evidence in the entire record that we must “infer that

LUBA misunderstood or misapplied its standard of review.”

Root, 260 Or App at 671.

We affirm on the sole assignment of error in RBO’s

petition for review.

SUB’S PETITION

SUB seeks reversal of that portion of LUBA’s final

order that concludes that tax lot 101, the proposed site for the

substation, contains a watercourse subject to water quality

protection under SDC 4.3-115. SUB assigns error to LUBA’s

interpretation of the SDC 4.3-115 water quality rules, and

it argues that LUBA’s remand order is “unlawful in sub-

stance or procedure.” ORS 197.850(9)(a). Specifically, SUB

argues that LUBA “conflated” the city’s definition of “water-

course” with the city’s definition of “water quality limited

watercourse” when LUBA found that “[w]etlands are spe-

cifically shown on the [Water Quality Limited Watercourse

528 Royal Blue Organics v. City of Springfield

(WQLW)] Map and protected by SDC 4.3-115.” Further, SUB

argues that LUBA was incorrect when it concluded that the

planning commission “misconstrued” the SDC in finding

otherwise. RBO, for its part, responds that LUBA “correctly

determined that the waterside protection regulations pro-

hibited development of an electrical substation” on tax lot

101.

SUB’s challenge to LUBA’s remand order depends

on the correct construction of the SDC. We defer to the city’s

plausible interpretation of its own code when the interpre-

tation in question was made by the city’s governing body.

Hulme v. City of Eugene, 299 Or App 76, 79 n 1, 448 P3d

705 (2019). But the question here is whether the Springfield

Planning Commission and the Springfield Hearings Official,

both subordinates of the city governing body, properly con-

strued the city development code. Given that posture, “we

apply our ordinary principles of statutory construction with-

out any deference to the planning commission’s, or LUBA’s,

construction of the” city code. Simons Investment Properties,

LLC v. City of Eugene, 303 Or App 199, 205, 463 P3d 57

(2020). Thus, in reviewing whether LUBA’s decision was

“unlawful in substance,” ORS 197.850(9)(a), we review the

pertinent city code provisions to determine whether LUBA

interpreted them consistently with the ordinary principles

of statutory, or code, construction.

The parties appear to agree that the proposed sub-

station site (tax lot 101) contains a “wetland.” The city devel-

opment code defines “wetlands”:

“Wetlands. Areas inundated or saturated by surface or

groundwater at a frequency and duration sufficient to sup-

port, and that under normal circumstances to support, a

prevalence of hydrophilic vegetation typically adapted for

life in saturated soil conditions. Wetlands include swamps,

marshes, bogs, and similar areas excluding those con-

structed as water quality or quantity control facilities.”

SDC 6.1-110 (boldface in original). SDC 6.1-110 also defines

“watercourse” to include wetlands:

“Watercourse. Rivers, streams, sloughs, drainages

including intermittent stream and seeps, ponds, lakes,

aquifers, wetlands and other waters of the State. This

Cite as 310 Or App 518 (2021) 529

definition also includes any channel in which a flow of water

occurs, either continuously or intermittently, and if the lat-

ter with some degree of regularity. Watercourses may be

either natural or artificial. Specific watercourses that are

protected by this Code are those shown on the water qual-

ity Limited Watercourse Map.”

SDC 6.1-110 (boldface in original). The question is whether

the most restrictive water quality protection standards

of SDC 4.3-115 apply to the proposed substation site or

whether, instead, the natural resources standards of SDC

4.3-117 apply. LUBA concluded that SDC 4.3-115 applies.

We construe the water quality and natural resources rules

to determine if LUBA was correct.

We begin our navigation through the complex and

interconnected provisions of the SDC where the parties and

LUBA have focused their attention: SDC 4.3-115. That ordi-

nance regulates development on lands containing, or adja-

cent to, certain water features. The parties agree that, if the

most restrictive components of SDC 4.3-115 apply to tax lot

101, development of the substation would be prohibited. As

pertinent here, section 4.3-115 applies “only to those sites

that require * * * approval as specified in Section 5.12-100.”

Section 5.12-125(E), the relevant ordinance within SDC

5.12-100, in turn, states that “[p]hysical features, including,

but not limited to * * * watercourses shown on the WQLW

Map and their associated riparian areas; [and] other ripar-

ian areas and wetlands specified in Section 4.3-117 * * * shall

be protected as specified in this Code or in State or Federal

law.” SDC 4.3-115, thus, applies to (1) “watercourses shown

on the WQLW map and their associated riparian areas” and

(2) “other riparian areas and wetlands specified in Section

4.3-117.”

The development setbacks and other natural

resource protections found in section 4.3-117 apply to

“[l]ocally significant protected wetlands, listed in the

Springfield Local Wetland Inventory shown on the Local

Wetland Inventory Map.” Those protections do not apply

to wetlands that the city does not designate as significant.

SDC 4.3-117(B)(1)(b); SDC 4.3-117(B)(3)(b). And, RBO does

not dispute that the city designated the wetland on tax lot

101 as “non-significant” in 2010. Because the wetland on tax

530 Royal Blue Organics v. City of Springfield

lot 101 is not a locally significant wetland, it is not one that

section 4.3-117 designates for more stringent protections.

The remaining question is whether the wetland on tax lot

101 is a “watercourse[ ] shown on the WQLW map.”

The parties agree that tax lot 101 contains a wet-

land that, by definition, is a watercourse, as shown on the

2016 version of the WQLW map. However, SUB argues that

the wetland’s status as a watercourse does not mean that it

is subject to the most stringent protections of SDC 4.3-115.

We agree. LUBA concluded that subsections (A), (B), and (C)

of SDC 4.3-115 each contain rules that apply to tax lot 101.

However, the plain text of those provisions, considered in

context, demonstrates that they do not, in fact, apply to tax

lot 101. We address them one-by-one, as LUBA did.

First, SDC 4.3-115(A) protects “riparian areas along

watercourses shown on the [WQLW] Map.” It creates a series

of rules regarding setbacks, relocation of watercourses, and

other conservation requirements. LUBA concluded that,

because the wetland on tax lot 101 was shown on the WQLW

map,6 SDC 4.3-115(A) applies to tax lot 101. That reading

disregards the entire context of SDC 4.3-115(A).

SDC 4.3-115(A) reads:

“When addressing criterion E. (as specified in Sections

5.12-125 and 5.17-125) to protect riparian areas along

watercourses shown on the [WQLW] Map, the following

riparian area boundaries shall be utilized:

“1. Along all watercourses shown on the WQLW Map

with average annual stream flow greater than 1,000 cubic

feet per second (CFS), the riparian area boundary shall be

75 feet landward from the top of the bank. Existing native

vegetative ground cover and trees shall be preserved, con-

served, and maintained between the ordinary low water

line and the top of bank and 75 feet landward from the top

of bank.

“* * * * *

“2. Along all watercourses shown on the WQLW Map

with average annual stream flow less than 1,000 CFS the

riparian area boundary shall be 50 feet landward from the

6

We discuss the WQLW map in more detail, below.

Cite as 310 Or App 518 (2021) 531

top of the bank. Existing native vegetative ground cover

and trees shall be preserved, conserved, and maintained

both between the ordinary low water line and the top of

bank and 50 feet landward from the top of bank.

“* * * * *

“3. Where a watercourse divides a lot/parcel and the

existing riparian area along that watercourse is degraded

in riparian function, the applicant may relocate the water-

course to another portion of the property as approved by

the Public Works Director and applicable State or Federal

agency.

“4. If an expansion of the riparian area described

in Subsections 4.3-115A.1. and 2. occurs as a result of a

Federal or State agency permit process, the applicant shall:

“a. Resubmit the preliminary Site Plan for additional

review, as specified in Section 5.17-105;

“b. Submit a Site Plan Modification application, as

specified in Section 5.17-145; or

“c. Resubmit the Tentative Plan for additional review

as specified in Section 5.12-105.”

Importantly, SDC 4.3-115(A) refers specifically to

“riparian areas along watercourses” as specified on the

WQLW map. (Emphasis added.) “Riparian area[s]” are

defined in SDC 6.1-110 as “vegetated areas (generally con-

sisting of trees, shrubs, and grasses) located along both sides

of water bodies and are transitional boundaries between

land and water environments. Riparian zones act as buffers

to protect surface waters from contamination and are hab-

itats for a large variety of animals and birds.” The WQLW

map displays water quality limited watercourses and their

riparian areas (i.e., rivers and streams with their associ-

ated vegetated areas). Subsection (A) clearly applies only to

those bodies of water and their “riparian zones.” It does not

apply to all “watercourses.” Paragraphs 1 and 2 refer only to

the types of watercourses with certain strengths of stream

flows. There is no indication that any of the “watercourses”

referred to in subsection (A) are wetlands. LUBA miscon-

strued subsection (A) by concluding that “watercourses”

referred to all watercourses on the WQLW map.

532 Royal Blue Organics v. City of Springfield

Next, LUBA focused on SDC 4.3-115(B)(9). That

code provision states that “[r]epair, replacement or improve-

ment of utility facilities” is permitted “as long as the ripar-

ian area is restored to its original condition.” But, again,

tax lot 101 is not located within a riparian area. It contains

a wetland. Wetlands and riparian areas are distinct hydro-

logical features, and the city code recognizes them as such.

The code’s restrictions on utility facilities within riparian

areas therefore does not apply to tax lot 101, and LUBA was

incorrect in concluding that it did.

Finally, LUBA discussed SDC 4.3-115(C)(1)(a). That

code provision requires that developers “[a]void development”

of [u]nsuitable areas,” including “wetlands and riparian

areas.” And, because tax lot 101 contains a wetland, LUBA

concluded that SUB must “avoid development” on that lot.

LUBA misconstrued that provision, because it ignored its

broader context within the city code. SDC 4.3-115(C) states

that, “[f]or the protection of water quality and protection of

riparian area functions as specified in Section 4.3-110, the

following standards apply[.]” The code then lists a series

of goals and regulations, including the one in paragraph

(C)(1)(a) admonishing developers to avoid development of

wetlands. But it makes clear that it applies only to “riparian

area functions as specified in Section 4.3-110.” (Emphasis

added.)

SDC 4.3-110 governs the city’s stormwater manage-

ment regulations. Its subsection (F) requires the creation

of the WQLW map and assigns the public works director

to “designate certain watercourses” to be included on the

map. Those watercourses include ones that are “included by

the State of Oregon Department of Environmental Quality

(ODEQ) on its most recently adopted ‘303(d)’ List of Impaired

and Threatened Waterbodies,” SDC 4.3-110(F)(1)(a), and

watercourses “with significant water quality impairment

identified by water quality monitoring and sampling done in

accordance with approved quality assurance/quality control

* * * protocols,” SDC 4.3-110(F)(1)(b). Section 4.3-110 also

specifies that the WQLW map shall be adopted as a part of

the city code, and that any revisions must be approved by

the city council as amendments to the code.

Cite as 310 Or App 518 (2021) 533

Returning then to SDC 4.3-115(C)(1)(a), its provision

requiring developers to “[a]void development” in wetlands

refers only to those specified on the WQLW map or deemed

“significant.” The WQLW map was adopted as part of the city

code in 2002 as part of ordinance 6021. However, the map

adopted with, and as a part of, ordinance 6021, does not

reflect that tax lot 101 contains a wetland or that it otherwise

contains a watercourse. The parties’ agreement on the pres-

ence of a wetland on tax lot 101 derives from a newer version

of the WQLW map, which was published—but not formally

adopted by city ordinance—in 2016. The 2016 map states

that it was “reprinted with current base data,” and it indi-

cates that there is a wetland on tax lot 101. That indication,

in turn, derives from the city’s recognition, in 2010, that a

“non-significant” wetland exists on tax lot 101. Thus, the 2016

map contains the base data from 2002, which was adopted

by ordinance, and additional data, which was not adopted by

ordinance. That additional data includes an indication that

there is a wetland on tax lot 101. The fact that the wetland is

shown on the 2016 map is not relevant for purposes of SDC

4.3-110—and therefore not relevant for purposes of SDC

4.3-115—because the wetland on tax lot 101 is neither “sig-

nificant” nor is it identified or shown on the 2002 WQLW map

adopted as part of city ordinance 6021. LUBA was therefore

incorrect in determining that the wetland on tax lot 101 was

a protected watercourse for purposes of the WQLW map.

The water quality protection standards of SDC

4.3-115(C)(1)(a) do not apply to the proposed substation site

on tax lot 101. Instead, the natural resource protections

of SDC 4.3-117 apply and, because the wetland on the site

was designated by the city as nonsignificant, the required

protections are through the federal and state permits SUB

received for the site development.

LUBA’s remand order based on its conclusion that

“the planning commission improperly construed SDC 4.3-115

in approving the substation” is unlawful in substance.

Springfield Utility Board’s motion to take judicial

notice allowed in part, denied in part. LUBA order reversed

and remanded on Springfield Utility Board’s petition; affirmed

on Royal Blue Organics’ petition.