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Looking back at the land use cases that have drawn our attention over the past year, one of the more interesting categories is when a court (or the Land Use Board of Appeals) has been asked to evaluate whether a local government requirement to 鈥渁dopt and apply only clear and objective standards, conditions and procedures regulating the development鈥� of 鈥渘eeded housing鈥� has been violated. Although this regulation has been in place for some time for certain housing types, the Legislature extended the 鈥渃lear and objective鈥� requirement to development of nearly all housing in 2017. The result has been to drive local governments to large-scale legislative amendment efforts that are frequently challenged as inadequate. A similar issue is presented when existing regulations are challenged as applied to a particular proposal for housing development.

The best examples of these legislative efforts have come out of the city of Eugene, which has been trying for years to come up with a regulatory scheme that will pass the 鈥渃lear and objective鈥� muster. A LUBA decision last month 鈥� Conte v. City of Eugene 鈥� exemplifies a too frequent result.

The regulation at issue required the provision of sidewalks connecting certain amenities 鈥渨ithin a 录 mile radius of the development site.鈥� The petitioner argued that determining whether the point of origin or destination for measuring was the middle or edge of the property was not 鈥渃lear and objective.鈥� Relying on a previous holding, LUBA explained that the term 鈥渃lear鈥� means 鈥渆asily understood鈥� and 鈥渨ithout obscurity or ambiguity,鈥� and that the term 鈥渙bjective鈥� means an outcome 鈥渆xisting independent of mind.鈥� Since determining the location of the starting and ending points for triggering the sidewalk obligations allowed the city to exercise 鈥渟ignificant discretion,鈥� it was not 鈥渃lear and objective鈥� and required remand.

Another 鈥渃lear and objective鈥� housing case was decided this past month 鈥� this time by the Oregon Court of Appeals, which illustrates that such challenges are not necessarily fatal to local governments. In Roberts v. City of Cannon Beach, the city denied a permit to develop a residence for failure to comply with the oceanfront setback. Generally described, the applicable oceanfront setback is determined to be an average of the setback of existing oceanfront lot structures within 100 feet of subject property, as measured from the 鈥淥regon Coordinate Line.鈥� Applying these standards, the city found that only one oceanfront lot contained a structure and that taking the average was the same as the setback of the single affected building.

Petitioners argued that terms such as 鈥渁verage,鈥� 鈥淥regon Coordinate Line鈥� or 鈥渓ot,鈥� when divorced from their context and ordinance purpose, were capable of different meanings and as such, violated the clear and objective requirement. The Court of Appeals disagreed and framed the question as: 鈥渨hether any ambiguity in those terms makes the oceanfront setback standard itself ambiguous in a way that cannot be resolved by reference to its context, its purpose, or some other appropriate consideration.鈥�

Applying this test, the court explained that even though an average is typically based on more than one number, the context of the regulation indicates that it can be determined by a singular set of one. The reference to the 鈥淥regon Coordinate Line鈥� could only refer to the surveyed line that crosses the state鈥檚 oceanfront referenced in those state laws upon which the subject overlay regulations were based. Finally, the court rejected the petitioners鈥� claim that there was ambiguity in what might qualify as a nearby 鈥渙ceanfront lot.鈥� Whether the adjacent lot that served to set the setback line could be partitioned in the future or was impacted by a platted right-of-way that could in the abstract defeat its oceanfront character was of no significance when considered in the regulatory context that did not contemplate such limitations.

With respect to the Oregon Coordinate Line argument, petitioners argued that understanding the multiple data points set forth in the statewide survey were too difficult for a layperson to understand and thus failed to be sufficiently 鈥渃lear鈥� to comport with the standard. The court responded that local government regulations under the law need only be 鈥渃lear and objective鈥� and 鈥渘ot simplistic.鈥�

These two cases aptly illustrate the conundrum that continues to confound local government planners and decision makers. Sound planning calls for regulation that takes into account all of the nuance and variability in allowing housing development that continues to address health, safety and livability objectives. But doing so in a way that is 鈥渃lear and objective鈥� requires not only surgical precision with respect to word selection but also context and policy-description necessary to survive challenge to their unambiguous application.

Disclosure: It should be noted that the law firm employing one of the authors represented the city of Cannon Beach in the Roberts case.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.