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Land use regulation is primarily accomplished through the application of local government-adopted plans and regulations. Oftentimes, application of these local standards requires interpretation – for example, identifying the location of a steep slope or determining whether a particular use is compatible.

The standard that Oregon courts and the Land Use Board of Appeals use for evaluating the correctness of local government interpretations has been to give some deference; however, predicting when to defer and how much deference is due has proven more difficult, especially since the standard seems to change continuously.

The rationale for giving deference is that the elected body charged with creating the plan or regulation is in the best position to interpret it. From this premise, LUBA and the courts give no deference to planning commission, hearings officer and staff decisions.

The first test for reviewing a local government interpretation was that it would be affirmed unless it was inconsistent with express language of the ordinance or its apparent purpose or policy. This was known as the “clearly wrong” standard. A state law articulating LUBA’s scope of review followed.

In general, a local government interpretation must be affirmed unless it is inconsistent with the express language, the context of the provision or the purpose or policy upon which it is based. This standard required the court to look behind the interpretation itself and if some support existed, then affirm. This anything goes approach set the bar for affirming decisions so low that almost any interpretation would likely be affirmed.

In 2009, the Oregon Supreme Court further opined that where two interpretations comply with the law, the courts and LUBA will affirm any local interpretation that is “plausible.” One might expect that, given the frequency that these types of questions come up coupled with an extraordinary low plausibility threshold, that LUBA’s scope of review would be predictable. But it turns out that finding the line where plausibility prevails over areas where the language appears to conflict either internally or with other policies has proven to be anything but banal.

Last month, in Friends of the Hood River Waterfront v. City of Hood River, the Court of Appeals considered whether LUBA erred when it rejected as implausible the city’s interpretation of certain provisions of its comprehensive plan addressing development in flood hazard areas and remanded the case to the city to apply those provisions by requiring the mapping of the flood areas.

The applicant sought a conditional use permit to locate an office building and hotel in an area within the 100-year floodplain that was not designated within the city’s floodplain (FP) overlay zone. One of the applicable comprehensive plan policies prohibited locating structures “within a flood hazard area unless the structure or the area meets the criteria set forth in the ‘FP’ overlay zone.” The city interpreted this plan policy not to apply to the proposal because the phrase “flood hazard area” in the policy meant an “area within the ‘FP’ zone” and as such, this policy did not apply.

The court agreed with LUBA that the city’s interpretation was inconsistent with the plain text that the provision applied to structures in any flood hazard area. The court further agreed that the city’s interpretation added an additional limitation – “those areas within the ‘FP’ overlay” does not appear in the plan provision. The court found that by restricting application of this policy to areas already designed within the ‘FP’ area would make the provision a nullity because areas designated ‘FP’ were expressly subject to the additional regulations.

The city argued that LUBA was required to accept the city’s interpretation because the interpretation represented a ‘considered determination’ that was necessary to harmonize a conflict between the FP overlay regulations in the comprehensive plan and the flood hazard regulations in the local code. The court rejected this finding language elsewhere in the city’s decision suggesting that the two different regulatory documents could work in tandem such that the ‘FP’ overlay designated areas were only a “subset” of the lands that were regulated by the code.

Notwithstanding the court’s agreement with LUBA regarding the city’s interpretation of the plan policy, the court reversed LUBA’s identification of the solution – requiring that the applicant map the location of the 100-year floodplain. The policy required the identification of the 100-year floodplain, but LUBA went too far by not affirming the city’s plausible interpretation that the identification must take the form of a map. Although it is not clear what other types of identification might suffice, presumably a legal description or other narrative would suffice.

This case illustrates how this seemingly low standard of review – requiring simple “plausibility” for affirming local government interpretation still allows courts to conduct a searching review. Not only must an interpretation be consistent with the ordinary language as identified by the court, it must also be internally consistent not only with other regulatory provisions, but also with the way it is discussed within the decision findings. In a sense, this is a plausibility standard, but only so long as LUBA or an appellate court finds that it is also correct.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at [email protected].

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at [email protected].