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Once every few years, there is a court decision that is so anticipated by land use wonks that it comes up in everyday conversation and is referenced only by its first name: 鈥淚f only we had a ruling on Roberts.鈥� 鈥淲e will know so much more once Roberts is decided.鈥� That case is Roberts v. City of Cannon Beach, and last month, after 15 months in limbo, the Oregon Supreme Court weighed in.

The question was to determine what types of activities are encompassed in the term 鈥渢he development of housing,鈥� which thereby triggers a limitation under state statutory law that a local government apply only 鈥渃lear and objective鈥� standards. Discretionary local standards that would otherwise apply to the 鈥渄evelopment of housing鈥� cannot be applied. Without any definition of this term in the statute itself and the legislature actively awaiting this ruling, the suspense was palpable.

This dispute has a long history that is not relevant to the court鈥檚 decision. Stanley and Rebecca Roberts filed two applications that were processed together 鈥� one to build a single-family house on an oceanfront lot and a second to improve a very steep, undeveloped, adjacent right-of-way for a road providing access to that house. The city considered these applications through a consolidated procedure and denied them both. However, with respect to the road application, the city elected not to apply certain geologic hazards criteria 鈥� for example, 鈥渆ngineering and construction methods which will eliminate the hazard or will minimize the hazard to an acceptable level鈥� 鈥� because they were not clear and objective.

The petitioners appealed to the Oregon Land Use Board of Appeals (LUBA), challenging other portions of the decision that led to the denial. An adjacent property owner, respondent Haystack Rock LLC, cross-appealed, challenging the city鈥檚 decision for failure to apply the geologic hazard-related discretionary standards because the road improvements were not within the scope of the 鈥渄evelopment of housing.鈥�

LUBA concluded that the city was correct in concluding that the 鈥渃lear and objective鈥� requirement precluded the application of the discretionary geologic hazards standards but remanded for other reasons. The Court of Appeals reversed, agreeing with the respondent that the housing laws did not apply to an application to develop a road.

The Oregon Supreme Court took review. The petitioners argued that improvement of the right-of-way is 鈥渄evelopment of housing鈥� because the road is one of the 鈥渘ecessary development components for the creation of functional housing鈥� and because it was consolidated with the application to develop the house. The respondent countered that no provision of the city code required the development of a public road on the adjacent public right-of-way through a separate application.

As the court framed it, the question was whether the legislature intended to include an application for the development of an adjacent road on land not owned by the applicants within the scope of the 鈥渄evelopment of housing.鈥� Proceeding through the long-standing, statutory interpretation test that focuses on the text, context and legislative history, the court first concluded that the text alone could refer 鈥渂oth to the process of making land itself suitable for housing and to making that housing 鈥榓ctually available or usable鈥� by providing access to it.鈥� Relying on context gleaned from other similarly worded statutes, the court concluded that 鈥渁 housing development鈥� refers to 鈥渁 tangible thing鈥� or a dwelling. Focusing on this ordinary usage, the court concluded the term does not extend to include an off-site road 鈥渨hen the city does not require development of the proposed road as a condition of approval for a housing development.鈥�

The petitioners, focusing on the legislative history, emphasized the broad intent to pre-empt regulations that have the effect of discouraging housing. The respondent, with support from the League of Oregon Cities as amicus, argued that such an expansive view would constrain the city鈥檚 regulation of public roads on public right-of-way for safety 鈥� part of the core function of a city鈥檚 home rule authority. The court agreed, as to do otherwise would foreclose the application of discretionary standards 鈥渢o every voluntary development of a public road that a developer contends would promote access to housing.鈥� For these reasons, the court was not persuaded that 鈥渁n asserted need for access converts the proposed road development to 鈥榯he development of housing,鈥欌�� particularly, as in this case, when this road is not a requirement for the housing application.

While this opinion is strong with respect to doctrinal purity, it does not offer a bright-line rule that will easily lend itself to other cases. There is language that appears on its face to demand clear and objective standards for all conditions necessary for housing that will be championed by housing-above-all-else advocates. This case also emphasizes the need for engineering discretion when evaluating public utility infrastructure needs, given the critical, public health and safety concerns.

Notwithstanding this expansive analysis, in multiple places the court clearly narrows the opinion scope to determining only those situations in which a house can be approved pursuant to criteria that do not also require an improved roadway for access. This is a unique circumstance, given the oceanfront landscape combined with anomalies within the Cannon Beach code. In footnotes, the court explains that this decision does not rule on public infrastructure required through a different public works process or where 鈥渢he city does require development of the road as a condition of approval for a housing development.鈥� For local governments, exercising engineering judgment to evaluate levels of safety in the provision of public improvements is paramount. The court unambiguously refused to answer.

During the 2026 legislative session, as introduced, HB 2138 proposed expanding the scope to include 鈥渦rban services 鈥� necessary for the development of housing.鈥� This language was subsequently removed from the bill before adoption, presumably awaiting the Roberts ruling. Setting aside the broader policy concern over safety, this amendment would still fail to clear up the confusion. Although 鈥渦rban services鈥� is defined, what does it mean for something to be 鈥渘ecessary鈥� for housing. Would it be the physical structure alone, the required public utilities or any owner鈥檚 preference for what functional housing includes 鈥� a pool, perhaps?

As such, we (the authors) must swallow hard to advocate that the legislature should step in, particularly when led by this governor. But when the only alternative will be waiting years in limbo for the courts to give this term meaning on a case-by-case basis, trusting the legislature may be the better of two bad options.

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].

Note that Bateman Seidel, in its role as special land use counsel to the city of Cannon Beach, participated in this case before LUBA but did not take any position on appeal.

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 author nor the 91视频 guarantees the accuracy or completeness of any information published herein.