Roberts v. City of Cannon Beach (A184314)

762 September 5, 2024 No. 635

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Stanley ROBERTS

and Rebecca Roberts,

Respondents,

v.

CITY OF CANNON BEACH,

Respondent Below,

and

HAYSTACK ROCK, LLC,

Petitioner.

Land Use Board of Appeals

2023066; A184314

Argued and submitted July 3, 2024.

William L. Rasmussen argued the cause for petitioner.

Also on the brief were Steven G. Liday, Iván Resendiz

Gutierrez, and Miller Nash, LLP.

Wendie Kellington argued the cause for respondents.

Also on the brief were Kelly Huedepohl and Kellington Law

Group, P.C.; and Sara Kobak and Schwabe, Williamson &

Wyatt, P.C.

Before Egan, Presiding Judge, Kamins, Judge, and Walters,

Senior Judge.

KAMINS, J.

Reversed in part and remanded.

Cite as 334 Or App 762 (2024) 763

764 Roberts v. City of Cannon Beach (A184314)

KAMINS, J.

Petitioner Haystack Rock, LLC (Haystack) seeks judi-

cial review of a final order by the Land Use Board of Appeals

(LUBA) remanding the City of Cannon Beach’s decision

denying an application by respondents Stanley Roberts and

Rebecca Roberts (applicants) for a development permit to con-

struct a residence on their inaccessible oceanfront lot located

on the face of an active landslide. Haystack raises four assign-

ments of error, asserting that LUBA erred by: (1) affirming

the city’s determination that the application complied with

tree-protection code provisions; (2) reversing the city’s deter-

mination that the application did not satisfy the clear-vision

criterion; (3) reversing the city’s determination that the appli-

cation does not comply with the oceanfront setback standard;

and (4) affirming the city’s conclusion that the statute requir-

ing that “housing development” be subject to “clear and objec-

tive standards,” ORS 197.307(4) (2017),1 applies to the develop-

ment of a public right-of-way. For the reasons stated below, we

affirm LUBA’s decision in all aspects but one; we agree with

Haystack that LUBA erred in affirming the city’s determina-

tion that public right-of-way development regulations must be

“clear and objective.” Therefore, we reverse LUBA’s order in

part and remand for further proceedings.

Applicants’ property is located on a steep, vegetated

oceanfront slope overlooking Haystack Rock. The property

is bordered to the north and east by Haystack’s property,

and to the south by the undeveloped Nenana Avenue right-

of-way (Nenana ROW). The property does not have improved

vehicular access.

Applicants have submitted several applications to

develop the property, producing a somewhat complex pro-

cedural backdrop. In 2020, applicants applied to construct

a new residence on the property as well as a “public” road

over Nenana ROW that would provide dedicated access to

the residence. The city denied the development permit for

the proposed residence because the proposal did not comply

with the oceanfront setback standard, and LUBA affirmed.

1

Former ORS 197.307(4) (2017) was amended and renumbered as ORS

197A.400(1) in 2023. Or Laws 2023, ch 533, §§ 1, 2. In this opinion, all references

are to the version enacted in 2017.

Cite as 334 Or App 762 (2024) 765

On judicial review, we affirmed and upheld the oceanfront

setback standard as clear and objective. Roberts v. City of

Cannon Beach, 316 Or App 305, 307, 504 P3d 1249 (2021),

rev den, 370 Or 56 (2022).

In 2021, applicants submitted the application at

issue, proposing a redesigned development of the property.

The application was submitted alongside an application for

a right-of-way permit for development of a raised “private

driveway” built on Nenana ROW, which the city shelved

upon Haystack’s request that the city refrain from making

a decision regarding the proposed easement until after the

legal questions at issue in this case are resolved.2 Despite

the lack of vehicular access, the city’s former community

director conditionally approved the application.

That decision was remanded by LUBA, because the

city had not provided Haystack or the public with notice of

the decision and an opportunity to appeal. On remand, the

city reversed course and denied the application for two rea-

sons: (1) it did not comply with the oceanfront setback stan-

dard, and (2) it failed to demonstrate compliance with the

clear-vision standard. Applicants appealed to LUBA.

LUBA reversed the city’s two grounds for denying

the application but sustained Haystack’s cross-assignment

of error challenging the city’s failure to address the city stan-

dard prohibiting removal of stabilizing vegetation within

the oceanfront management overlay zone. LUBA remanded

the decision to the city for evaluation of that standard. Both

parties seek judicial review.3

We review LUBA’s order to determine whether it

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

and for “whether LUBA correctly applied the substantial

evidence standard.” Tylka v. Clackamas County, 330 Or App

247, 248, 543 P3d 743 (2024). “A LUBA order is unlawful in

substance if it represents a mistaken interpretation of the

applicable law.” Id.

2

Whether the city may grant such an easement is the subject of a separate

appeal in Case No. A182356.

3

Haystack initiated the present petition, and applicants filed a petition in

Roberts v. City of Cannon Beach (A184314), 334 Or App 762, ___ P3d ___ (2024)

(affirming LUBA’s decision).

766 Roberts v. City of Cannon Beach (A184314)

In its first assignment of error, Haystack contends

that the application did not comply with the tree-removal

standards contained in the Cannon Beach Municipal Code

(CBMC) and that LUBA erred in failing to reverse on that

basis.

The CBMC allows for the removal of trees when

constructing an approved structure or development, so long

as certain criteria are met. CBMC 17.70.020. The developer

must obtain a tree-removal permit, submitted under the

direction of a certified arborist, that includes a site plan

showing the location of the development and the location

of the trees on the subject property. CBMC 17.70.030(Q)(1).

The site plan must also include measures to avoid damaging

trees not approved for removal. CBMC 17.70.030(Q)(2). Trees

not approved for removal must be protected during con-

struction by a tree-protection zone, such as a fenced-off buf-

fer around the tree, where excavation, vehicular traffic, and

storage of materials are prohibited. CBMC 17.70.030(Q)(4).

Under CBMC 17.04.557—a provision contained in the sec-

tion of the code entitled “Definitions,” rather than the sec-

tion entitled “Tree Removal and Protection”—the radius of a

tree-protection zone must be at least two feet for every inch

of the diameter of the tree’s trunk at four and one-half feet

above grade.

Haystack argues that the tree-protection zones

contained in applicants’ tree-removal plan failed to meet

the requirements of CBMC 17.04.557. Applicants respond

that LUBA was correct to affirm the city’s approval of the

application—including the tree-removal plan—because that

approval was conditioned on ongoing compliance with the

city’s tree-removal standards.

We agree with applicants. They agreed to ongoing

compliance with all applicable tree-protection and removal

standards and have not removed any trees in violation of the

city standards. The city approved the application subject to

that ongoing compliance: “To the extent the City approves

the application for development, it would have been subject to

conditions to ensure the other provisions of this chapter are

met.” That approval does not necessarily indicate that appli-

cants are entitled to implement the site plan as it is currently

Cite as 334 Or App 762 (2024) 767

depicted in the application; instead, as we understand it, it

means that the application must proceed for later (and ongo-

ing) determination of compliance with city standards, before

any tree removal occurs. And applicants’ consulting arbor-

ist explained the steps that will be taken to ensure ongoing

compliance with the applicable tree-protection and removal

requirements contained in the CBMC. Specifically, the arbor-

ist explained that a site plan will be submitted to implement

mitigation measures and strategies to avoid damaging trees

not proposed for removal, to limit the potential impact of

excavation, soil compaction, and storage of materials.

Haystack argues that the radii of the tree-protec-

tion zones in the application’s current site plan are insuf-

ficient. See CBMC 17.04.557 (describing the mandatory

dimensions for tree-protection zones). But the city’s approval

of the application made clear that applicants are required to

comply with city tree removal and protection standards, and

Haystack does not identify any error in LUBA’s finding that

there has been no tree-removal or tree-protection violation.

In its second assignment of error, Haystack chal-

lenges LUBA’s determination that the application satis-

fied the clear-vision criterion as a matter of law. Under

the CBMC, a “clear-vision area shall be maintained on the

corners of all property adjacent to the intersection of two

streets.” CBMC 17.90.040(A). The CBMC provides additional

detail on how to determine compliance. CBMC 17.90.040(B).

In assessing whether applicants satisfied the

clear-vision criterion for the proposed intersection of the

Nenana ROW and South Hemlock Street, the city found that

applicants had not provided sufficient information to make

that determination. Specifically, the city noted that appli-

cants failed to provide civil engineering plans sufficient for

the city’s engineers to assess whether the proposed intersec-

tion complied with the clear-vision requirement. LUBA dis-

agreed. Rather than finding that the city’s conclusion was

not supported by substantial evidence, LUBA found that

the clear-vision criterion was satisfied as a matter of law

because the only evidence in the record with respect to sight

lines is applicants’ expert testimony and reports showing

compliance.

768 Roberts v. City of Cannon Beach (A184314)

Haystack first contends that LUBA applied the

incorrect standard of review. Haystack is correct that, in

reviewing LUBA’s consideration of a local government’s fac-

tual findings, we ordinarily “examine whether LUBA has

applied the proper substantial-evidence standard of review.”

S. St. Helens, LLC v. City of St. Helens, 271 Or App 680, 682,

352 P3d 746 (2015) (quoting Stevens v. City of Island City, 260

Or App 768, 772, 324 P3d 477 (2014)). “[W]here LUBA has

properly understood and applied the ‘substantial evidence’

test * * *, a reviewing court should affirm its order, notwith-

standing the reviewing court’s disagreement with LUBA as

to whether the evidence is ‘substantial.’ ” Younger v. City of

Portland, 305 Or 346, 358-59, 752 P2d 262 (1988). “Thus,

where LUBA properly articulates its substantial-evidence

standard of review under ORS 197.835(9)(a)(C), we will not

reverse its determination unless there is no evidence to sup-

port the finding or if the evidence in the case is ‘so at odds

with LUBA’s evaluation that a reviewing court could infer

that LUBA had misunderstood or misapplied its scope of

review.’ ” Stevens, 260 Or App at 772 (quoting Younger, 305

Or at 359).

In this case, however, LUBA went further than

deciding that the city’s determination was not supported

by substantial evidence and remanding to permit reconsid-

eration. LUBA determined that the only decision that the

city could reach was that the applicant had satisfied the

clear-vision criterion as a matter of law. LUBA apparently

applied the principle (a principle with which Haystack does

not quarrel) that it is permitted to reverse a city’s denial

of an application for failure to meet an approval criterion

rather than remanding for further consideration, when the

record demonstrates that the criterion was satisfied as a

matter of law.4 Jurgenson v. Union County Court, 42 Or App

505, 510, 600, 15 P2d 1241 (1979). In such a situation, LUBA

takes up a question of law, and, consequently, in the course

4

Jurgenson, which was a writ-of-review proceeding, was decided before

LUBA’s scope of review was established with the passage of ORS 197.835. Rather

than ground its analysis in statute, the Jurgenson court analogized the denial of

a land use application to a negligence case where a defendant who did not have

the burden of proof presented no evidence but still prevailed. 42 Or App at 510.

Neither party raises the issue or asks us to consider whether Jurgenson remains

good law in light of the statutory changes.

Cite as 334 Or App 762 (2024) 769

of considering whether LUBA’s order is “unlawful in sub-

stance,” ORS 197.850(9)(a), we consider whether it “rep-

resents a mistaken application of the applicable law.” Tylka,

330 Or App at 248.

On that question, Haystack argues that LUBA was

legally incorrect—that, as a matter of law, applicants did not

submit information necessary to demonstrate compliance.

We disagree. Haystack does not identify what addi-

tional information is necessary to assess clear-vision com-

pliance. At oral argument, Haystack suggested that the

proposal is missing a stop sign, and that a stop sign is nec-

essary to measure sight-line distances. But that argument

was not raised below or in the briefs. The need for a stop sign

was not a stated basis for the city’s decision, nor is a stop

sign required by CBMC 17.90.040. See CBMC 17.90.040(c)

(excluding “traffic control signs” from sight line measure-

ment requirements).

We also disagree with Haystack’s contention, if any,

that there is more than one conclusion the city could have

reached from the evidence presented. The evidence in the

record, including reports and diagrams, requires a conclu-

sion that vehicles exiting the property are not blocked by any

obstacles within the required clear-vision area in the ways

prohibited by CBMC 17.90.040. And applicants’ engineer

submitted a report stating that the clear-vision analysis for

the current proposed driveway options remains materially

unchanged from a 2020 roadway intersection proposal that

was approved by the city’s public works director as comply-

ing with the clear-vision requirement. The city’s engineer

generally described additional needed information to assess

overall compliance in its latest report but did not indicate

that that information was necessary to address CBMC

17.90.040’s clear-vision requirement.5 And, after the city’s

engineer produced the report requesting additional infor-

mation, applicants’ engineer provided the missing informa-

tion that relates to the clear-vision requirement.

5

Indeed, much of the report is unrelated to that requirement. Although the

report mentioned “sight distance,” that mention was in relation to applicants’

failure to demonstrate compliance with CBMC 17.50.040—a provision relating to

eliminating or minimizing geological hazards.

770 Roberts v. City of Cannon Beach (A184314)

The conclusion that more evidence was necessary is

inconsistent with the record and the criterion itself, and the

record supports only a determination that applicants satis-

fied the clear-vision criterion. Jurgenson, 42 Or App at 510.

In its third assignment of error, Haystack chal-

lenges LUBA’s reversal of the city’s finding that the appli-

cation did not comply with the CBMC’s oceanfront setback

standard. Rather than address whether the application

complied with the standard, LUBA concluded that the stan-

dard could not be applied at all because it is not “clear and

objective,” as required by Oregon law. ORS 197.307(4).

We review LUBA’s construction of a statute for

legal error, Central Oregon LandWatch v. Deschutes County,

285 Or App 267, 276-77, 396 P3d 968 (2017), employing

the methodology described in PGE v. Bureau of Labor and

Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and

State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). As

explained below, we agree with LUBA that the definition of

“structure” as used in the CBMC is not clear and objective.

Local governments may “adopt and apply only clear

and objective standards, conditions and procedures reg-

ulating the development of housing[.]” ORS 197.307(4); see

also ORS 197.831 (placing burden on local government to

show clear and objective standards on appellate review).

The “clear and objective” standard includes two fundamen-

tal parts: First, a standard must be objective. Roberts, 316

Or App at 311. “Objective” means “existing independent of

mind.” Id. (internal quotation marks omitted). Standards

are not objective “if they impose subjective, value-laden

analyses that are designed to balance or mitigate impacts of

the development on (1) the property to be developed or (2) the

adjoining properties or community.” Id. (internal quotation

marks omitted). Second, a standard must be clear. “[T]he

term ‘clear’ means easily understood and without obscurity

or ambiguity.” Id. at 312 (internal quotation marks omitted).

The CBMC establishes setback requirements for

development bordering the ocean, including the property

at issue. Specifically, “all lots abutting the oceanshore” are

Cite as 334 Or App 762 (2024) 771

subject to an oceanfront setback standard6 establishing

the “ocean yard,” in which most development is prohibited.

CBMC 17.42.050(A)(6); CBMC 17.10.040(B)(6). That stan-

dard helps “ensure that development is consistent with the

natural limitations of the oceanshore,” to protect “identified

recreational, aesthetic, wildlife habitat and other resources.”

CBMC 17.42.010.

As relevant here, and as the parties agree, “struc-

tures” are prohibited in the ocean yard. CBMC 17.04.570

(requiring that a yard be “an open space on a lot which is

unobstructed from the ground upward except as otherwise

provided”). CBMC 17.04.540 defines “structure” and sets out

an illustrative list of exclusions to the term “structure”:

“ ‘Structure’ means any man-made assemblage of mate-

rials extending above the surface of the ground and per-

manently affixed or attached, or where not permanently

affixed or attached to the ground not readily portable, but

not including landscape improvements such as rock walls,

retaining walls less than four feet in height, flag poles,

and other minor incidental improvements similar to those

described above.”

Taken together, those ordinances explain that “structures”

are generally prohibited in the ocean yard, with certain

exceptions (fences, decks, and beach access stairs) as well

as exclusions (including “landscape improvements such as

* * * retaining walls”). CBMC 17.04.540. We are now tasked

with determining whether LUBA correctly concluded that

the term “structure” as used in CBMC 17.04.540 and CBMC

17.42.050(A)(6)(b) is not “clear and objective” in violation of

ORS 197.307(4).

We emphasize that our inquiry here is not to deter-

mine what the relevant terms mean in fact, but only to

determine whether they could plausibly be interpreted in

more than one way. If so, “they are ambiguous, and it would

follow that the relevant city provisions are not ‘clear and

objective.’ ” Tirumali v. City of Portland, 169 Or App 241,

246, 7 P3d 761 (2000) (quoting ORS 197.015(10)(b)(B)).

6

We upheld the oceanfront setback line as clear and objective in Roberts, 316

Or App at 307.

772 Roberts v. City of Cannon Beach (A184314)

LUBA correctly concluded that, in the absence of

further definition, the term “structure” in CBMC 17.04.540

is ambiguous. For example, a “retaining wall” that is

less than four feet in height may qualify as a “landscape

improvement” and is thus excluded from the definition of

“structure.” CBMC 17.04.540. However, a “retaining wall”

that is a “structural support” is an impermissible structure.

CBMC 17.04.570; CBMC 17.42.060(A)(9). There are no crite-

ria to determine when a retaining wall less than four feet

high is an impermissible “structural support” as opposed to

a permissible “landscape improvement” and, therefore, the

definition of “structure” is not clear.

No context of which we are aware resolves that

ambiguity, nor have the parties provided persuasive legisla-

tive history. We therefore agree with LUBA’s determination

that the definition of “structure,” as used in the CBMC, is

not clear and objective, in violation of ORS 197.307(4) and

ORS 197.831. Because it is not clear and objective, it cannot

be applied to bar applicants’ proposed development.

Rather than address whether the standard is clear

and objective, Haystack argues that the driveway struc-

ture does not meet the code’s definition of a “retaining

wall.” However, that argument fails to address the basis

for LUBA’s decision—that the definition of “structure” con-

tained in CBMC 17.04.540 is unclear. Because Haystack

does not address LUBA’s decision or reasoning, it fails to

demonstrate that LUBA erred. See Friends of Marion

County v. Marion County, 233 Or App 488, 494-95, 227 P3d

198 (2010) (rejecting assignment of error where the party

failed to address LUBA’s reasoning and the court otherwise

agreed with LUBA’s analysis).

In its fourth assignment of error, Haystack con-

tends that LUBA erred in rejecting its argument that appli-

cants’ proposed driveway on the public Nenana ROW did

not satisfy the city’s geologic hazard standards. Specifically,

Haystack challenges LUBA’s determination that the stan-

dards for the development of the public right-of-way must be

“clear and objective,” and that because the geologic hazard

standards are not “objective,” the city cannot require that

the application comply with them.

Cite as 334 Or App 762 (2024) 773

The CBMC includes various requirements to ensure

that proposed developments, including “the design and loca-

tion of roads,” either eliminate or appropriately minimize

geologic hazards. CBMC 17.50.040(A) - (B). The city made an

initial finding that those geologic hazard requirements were

not met, but despite that finding, the city determined—and

LUBA agreed—that the geologic hazard requirements were

inapplicable because they were not “clear and objective,” ORS

197.307(4). According to the city and LUBA, the requirement

that local governments apply “clear and objective” standards

applies to the “development of housing,” which includes the

process of making housing “usable”—such as connecting it

to roads.

As discussed above, the statutory mandate that

local governments must apply clear and objective standards

applies only to “housing” and the “development of hous-

ing,” so we must determine what the legislature meant by

those terms. ORS 197.307(4);7 ORS 227.175(4)(b)(A);8 ORS

197.831.9 On judicial review, Haystack does not assert that

the geologic hazard standard is clear and objective; instead,

Haystack argues that LUBA should not have applied the

“clear and objective” test at all, because the development of

a public right-of-way is not “housing” or the “development

of housing” and is thus not subject to that requirement. As

explained below, we agree.

Whether LUBA correctly construed the scope of

Oregon law requiring local governments to apply only “clear

and objective” standards to the development of “housing”

presents an issue of statutory interpretation. “To assess

7

ORS 197.307(4) (2017) states, in relevant part:

“[A] local government may adopt and apply only clear and objective stan-

dards, conditions and procedures regulating the development of housing,

included needed housing[.]”

8

ORS 227.175(4)(b)(A) states, in relevant part:

“A city may not deny an application for a housing development * * * if the

development complies with clear and objective standards * * *.”

9

ORS 197.831 states, in relevant part:

“In a proceeding before the Land Use Board of Appeals or an appellate court

that involves an ordinance required to contain clear and objective approval

standards * * * for housing * * *, the local government * * * shall demonstrate

that the approval standards * * * are capable of being imposed only in a clear

and objective manner.”

774 Roberts v. City of Cannon Beach (A184314)

petitioner’s statutory construction argument, we examine

the text and context of ORS 197.307(4) * * * and, to the extent

it appears useful, the legislative history. We begin with

the statute’s text, which is the most persuasive evidence of

the legislature’s intent.” Warren v. Washington County, 296

Or App 595, 599, 439 P3d 581, rev den, 365 Or 502 (2019)

(citation and internal quotation marks omitted).

We must determine what the legislature meant by

the terms “housing” and “development of housing.” Because

the legislature did not define the terms, we give effect to

the words’ “plain, natural, and ordinary meaning.” DCBS

v. Muliro, 359 Or 736, 746, 380 P3d 270 (2016) (internal

quotation marks omitted). We consult the dictionary defini-

tion “on the assumption that, if the legislature did not give

the term a specialized definition, the dictionary definition

reflects the meaning that the legislature would naturally

have intended.” Id. “Housing” is defined as “shelter, lodg-

ing,” and “dwellings provided for numbers of people or for a

community.” LandWatch Lane County v. Lane County, 330

Or App 468, 471, 544 P3d 428 (2024) (quoting Webster’s Third

New Int’l Dictionary 1097 (unabridged ed 2002)). Those defi-

nitions relate to the houses themselves, not to the roads that

connect them. By their plain text, the terms “housing” and

“development of housing” appear to refer to houses and the

process of developing housing, not public roads.

Turning to the statutory context, both ORS

197.307(4) and ORS 227.175(4) include provisions relating

unambiguously to housing regulations. For example, those

statutes require that local governments apply only clear and

objective standards, conditions, and procedures when regu-

lating “the density” and “height” of housing developments.

Moreover, ORS 227.175(4) specifically includes a provision

requiring that at “least 75 percent of the floor area applied

for is reserved for housing” with no reference to road devel-

opment. (Emphasis added.) Indeed, none of Oregon’s stat-

utes requiring “clear and objective” standards address the

development of roads. Additionally, Oregon’s land use sys-

tem provides separate statewide planning goals for hous-

ing and transportation, again indicating to us that hous-

ing development and road development are separate and

Cite as 334 Or App 762 (2024) 775

distinct processes under Oregon law. Statewide Planning

Goals 10, 12.

Applicants point to the definition of “development”

contained in ORS 227.215 as relevant context to argue that

the term “development of housing” applies to vehicular

access to residences. ORS 227.215(1) provides:

“As used in this section, ‘development’ means a building or

mining operation, making a material change in the use or

appearance of a structure or land, dividing land into two

or more parcels, including partitions and subdivisions * * *,

and creating or terminating a right of access.”

That provision is clear, however, that it applies to the term

“development” as used in ORS 227.215 to 227.320. The stat-

utes under review in this case are not contained in those sec-

tions, so the definition is not applicable. Moreover, that defi-

nition applies to the development of “land,” rather than the

development of housing. See State ex rel Schrodt v. Jackson

County, 262 Or App 437, 447, 324 P3d 615 (2014) (reviewing

ORS 227.215 and explaining that the word “ ‘development’

* * * encompasses the concept of a change in the use of land”

(emphasis added)). And the scope of that provision is broader

than either party is suggesting and would result in extend-

ing the clear and objective standard far beyond “housing” to

include “mining operation[s].” ORS 227.215(1).

Relevant legislative history submitted by the par-

ties supports our conclusion. Gaines, 346 Or at 166 (court

may limit its consideration of legislative history to the infor-

mation provided by the parties). ORS 197.307 was originally

enacted in 1981, to address a concern that “local govern-

ments should not be able to use their land use regulations to

exclude certain housing types, particularly manufactured

housing[.]” Rogue Vally Assoc. of Realtors v. City of Ashland,

35 Or LUBA 139, 156 (1998), aff’d, 158 Or App 1, 970 P2d

685, rev den, 328 Or 594 (1999). The legislature adopted ORS

197.307 to avoid those exclusionary practices and ensure

that development of housing was subject to “clear and objec-

tive” standards. In 2017, the legislature adopted the most

recent provision requiring clear and objective standards,

ORS 227.175(4)(b)(A), and amended ORS 197.307, to expand

the scope of the requirement from “development of needed

776 Roberts v. City of Cannon Beach (A184314)

housing,” to “development of housing, included needed hous-

ing.” Or Laws 2017, ch 745, §§ 3, 5. That 2017 amendment

to ORS 197.307 continued to focus on the city’s ability to

regulate housing through clear and objective standards. See

Roberts, 316 Or App at 311 (explaining that the 2017 amend-

ment “was meant to expand application of the existing ‘clear

and objective’ standard to all housing” (emphasis added)).

Our conclusion that the legislature did not intend

that the “clear and objective” standard apply to public road

development—as opposed to houses and driveways—is con-

sistent with the principles of home rule and preemption.

Where state legislation impinges upon the local government

powers, home rule favors local government. City of Corvallis

v. State of Oregon, 304 Or App 171, 174-75, 464 P3d 1127

(2020). And where preemption is intended, the legislation

must “unambiguously” preempt the city from adopting reg-

ulations. Gunderson, LLC v. City of Portland, 352 Or 648,

660, 290 P3d 803 (2012). Here, the requirement that local

governments apply only “clear and objective” standards to

the development of housing does not, as LUBA concluded,

extend unambiguously to all governance that relates to

making housing usable—including the development of

roads. That interpretation goes beyond what ORS 197.307(4)

purports to require and is therefore broader than principles

of home rule and preemption would support. See Roberts,

316 Or App at 325 (“[W]here the legislature has enacted an

ambiguous provision that, under one construction, would

have the effect of divesting local governments of their ability

to regulate in an area * * * within local control, * * * home-

rule principles undercut the argument that the legislature

intended the statutory text to have broad meaning.”).

Applicants argue that, because vehicular access is

necessary to develop and use the dwelling, the development

of the public right-of-way falls within the definition of “devel-

opment of housing.” ORS 197.307(4). But, had the legislature

clearly intended that local governments apply “clear and

objective” standards in reviewing any applications related

to make housing usable, it could have done so (with the

likely effect of regulating areas beyond housing and public

road development, such as public utilities). Instead, both the

Cite as 334 Or App 762 (2024) 777

text and legislative history focused specifically on residen-

tial buildings and developments.

Finally, applicants argue that, because the vehic-

ular access proposal was submitted alongside an applica-

tion for the development of housing, the approval of vehic-

ular access must be subject to the “clear and objective” test

applicable to the development of housing. That the vehicular

access application was consolidated with the applications

for residential development was one basis for LUBA’s deci-

sion that “clear and objective” standards must be applied to

the right-of-way development. However, as LUBA has previ-

ously explained, “consolidation is for purposes of procedure,

and it does not change the approval criteria applicable to

a given application.” Tukwila Development, LLC v. City of

Woodburn, LUBA No. 2021-058, 17-18 (holding that the city

erred in applying street standards applicable to subdivision

applications to an annexation application, even though the

applications were consolidated). We agree with LUBA—the

city’s decision to combine the housing application with the

right-of-way application does not impact our construction of

the statute.

We reverse in part and remand for a determination

of whether the application for developing Nenana ROW com-

plies with the geologic hazard standard, CBMC 17.50.040.

We otherwise affirm.

Reversed in part and remanded.