1000 Friends of Oregon v. Land Conservation and Development Com'n, Lane County

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: JONES; Warden
• Citation: 1000 Friends of Oregon v. Land Conservation and Development Com'n, Lane County, 752 P.2d 271, 305 Or. 384 (Or. 1988)
• Decision Date: 29 March 1988
• Docket Number: ACK-201
• Parties: 1000 FRIENDS OF OREGON, Petitioner/Respondent on review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, LANE COUNTY, Respondents/Petitioners on review, and Oregon Forest Industries Council, Intervenor-respondent (below). LCDC 84-; CA A33755; SC S33694; S33797; S33798; S34114; S33720.

Page 271

752 P.2d 271

305 Or. 384

1000 FRIENDS OF OREGON, Petitioner/Respondent on review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, LANE COUNTY Respondents/Petitioners on review and Oregon Forest Industries Council, Intervenor-respondent (below).

LCDC 84-ACK-201; CA A33755; SC S33694; S33797; S33798;

S34114; S33720.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 3, 1987.

Decided March 29, 1988.

[305 Or. 385-A] Allen L. Johnson, Eugene, argued the cause for Lane County. On the petition for review and supplemental petition was William A. Van Vactor, Lane County Counsel, Eugene.

Michael Reynolds, Asst. Atty. Gen., Salem, argued the cause for Land Conservation and Development Comn. On the petition for review were Dave Frohnmayer, Atty. Gen., William F. Gary, Deputy Atty. Gen., Virginia Linder, Sol. Gen., and Michael A. Holstun, Asst. Atty. Gen., Salem.

Robert L. Liberty, Portland, argued the cause and filed a petition for review on the merits and filed petitions for review on costs and attorney fees for 1000 Friends of Oregon.

JONES, Justice.

The principal issue in this land use case concerns Oregon's Statewide Planning Goal 4, which directs that forest lands be conserved for forest use. ¹ The disputes also raise important questions concerning the relationship between Goal 4 and Goal 3 ² and the respective burdens on all parties involved in the development and acknowledgment of comprehensive land use plans.

After several earlier attempts, Lane County presented its proposed comprehensive rural land use plan to the Land Conservation and Development Commission (LCDC) in February 1984. LCDC's initial response in July 1984 listed several deficiencies in the plan. LCDC granted Lane County a continuance, during which Lane County responded to LCDC's objections by revising the plan and presenting additional evidence to LCDC. In September 1984, LCDC acknowledged the Lane County plan as being in compliance with the statewide land use goals (goals). 1000 Friends of Oregon (1000 Friends) objected and sought judicial review by the Court of Appeals on seven assignments of error. The Court of Appeals reversed LCDC on all but one of the assignments of error. 1000 Friends of Oregon v. LCDC (Lane Co.), 83 Or.App. 278, 731 P.2d 457 (1987). Lane County, LCDC and 1000 Friends petitioned this court for review. We reverse the decision of the Court of Appeals in part, affirm in part, and remand the case to LCDC for further action.

The Court of Appeals was faced with seven assignments of error, each of which is also before this court. Most of these assignments require individual discussion, beginning with the question of whether the Lane County plan properly allows dwellings on lands zoned for forest uses.

DWELLINGS ON FOREST LANDS

The intent of Goal 4 is "to conserve forest lands for forest uses." The goal includes commercial forestry as well as wildlife habitat and watershed protection, forests as buffer zones, and several other uses of forest lands in Oregon. In its plan, Lane County zoned large portions of the county as forest land. Lane County established two types of forest zones, non-impacted forest lands and impacted forest lands. The latter lands Lane County defined as "impacted by non-forest uses." Lane County Development Code (LC) 16.211(1)(a). Residences were not permitted on non-impacted forest lands, but dwellings were permitted on impacted forest lands, if, among other reasons, they were "necessary and accessory" to forest management.

Specifically, LC 16.211(b)(3) provides that "[a] dwelling or mobile home, and any accessory structures, on a vacant legal lot containing at least 10 acres shall be deemed accessory and necessary to the forest management of the legal lot" if certain criteria are met. We return to this provision below. Because Lane County and LCDC argue that LCDC is entitled to a measure of judicial "deference" for its interpretation of the applicable legal standard, we first address how that argument applies to the Lane County plan provisions at issue here.

"Deference" is one of those general terms that can obscure rather than aid analysis if it is used to blanket a variety of distinct issues of judicial review. In this case, for instance, LCDC's brief invokes deference to its "interpretive discretion," but issues of "discretion" differ from issues of "interpretation." Compare ORS 183.482(8)(a) with ORS 183.482(8)(b).

The scope of review of another entity's decision, whether by an agency like the Land Use Board of Appeals (LUBA) or by LCDC or by a court, involves a rule of law. See Brodie and Linde, State Court Review of Administrative Action: Prescribing the Scope of Review, 1977 Ariz.St.L.J. 537. It ordinarily (except for any remaining common-law or equitable remedies) is derived from more or less explicit statutes, not invented by courts. Statutes can and generally do prescribe how far courts may go in reviewing an agency's determination of the factual predicate of its action, an agency's determination of the legal premises for its action, and its exercise of discretion within the range of discretion delegated to it by law. See Megdal v. Board of Dental Examiners, 288 Or. 293, 318-20, 605 P.2d 273 (1980). In Younger v. City of Portland, 305 Or. 346, 752 P.2d 262 (1988), also decided today, we set out the relations between review by the Land Use Board of Appeals (LUBA) of a local government's factfinding for "substantial evidence in the whole record," ORS 197.835(8)(a)(C), and review by the Court of Appeals of LUBA's application of that scope of review, ORS 197.850(9). Younger, supra, 305 Or. at 358-360, 752 P.2d 269-270. It is possible to describe these measures of review as "deference" to another agency's factfinding, but the difference between these reviewing functions and review of legal premises or of agency discretion cautions against a generalization, "deference," that does not appear in any statute. ³ The present issue concerns LCDC's application of written rules, its own Goals and Lane County's ordinance, not findings of fact or the exercise of discretion. On this issue, LCDC reviews Lane County's ordinance for "compliance with [statewide land use] goals." ORS 197.040(2)(d). Review is "confined to the record of proceedings before the local government, any comments, objections and exceptions * * * and the report of the director," ORS 197.251(4), and the acknowledgment order must "include a clear statement of findings which sets forth the basis for the approval * * * of acknowledgment," ORS 197.251(5), and, further, the findings shall "[i]nclude a clear statement of findings in support of the determination of compliance and noncompliance," ORS 197.251(5)(b). The Court of Appeals and this court review to see if LCDC "has erroneously interpreted a provision of law," ORS 197.650(1), 183.482(8)(a). The immediate question is what role LCDC's own interpretations play in the courts' review.

Ordinarily lawmakers expect courts themselves to decide disputed legal issues. Compare ORS 183.482(8)(a) (requiring court to correct errors of law) with ORS 183.482(7) (barring court from substituting its judgment on factual or discretionary decisions). See also Jaffe, Judicial Control of Administrative Action 556 (1965). This court has recognized that in some circumstances an agency's interpretation of a legal rule "though not binding is entitled to our careful consideration." Knapp v. City of North Bend, 304 Or. 34, 741 P.2d 505 (1987). The weight, or "consideration," "respect," "deference," "attention" (none of which should be taken as a term of art ⁴), to be given an agency's interpretation can be implied from a number of characteristics:

(1) The agency may have a broad mandate to promulgate rules to be administered by itself. This does not give an agency carte blanche in interpreting its rules. But the legislative choice to entrust the agency both with setting standards and with applying them can imply that the agency's view of its standards (assuming that they are within their authorizing law and are consistently applied) is to be given some appropriate respect by the courts. See, e.g., 5 Davis, Administrative Law Treatise 399-404, § 29.16 (1984). Sometimes the body interpreting the rule may have direct political authority from the affected community and be accountable to it. Anderson v. Peden, 284 Or. 313, 318 n. 3, 587 P.2d 59 (1978). ⁵

(2) A similar implication may arise when a statute assigns the agency's tasks in broad terms that delegate to the agency responsibility for completing a general legislative policy. See Springfield Education Assn. v. School Dist., 290 Or. 217, 621 P.2d 547 (1980). Particularly when an agency originated the statutory text that it interprets or when its administration of the statute has been actively examined and considered by the statute's legislative parents after its enactment, a court may be more cautious to conclude that the agency's consistent reading of the text misinterprets the agency's statutory assignment; though again, caution does not mean abdication. ⁶

(3) A third consideration, agency "expertise," generally relates to facts and to relations of past or predicted cause and effect in a particular field rather than to the interpretation of legal rules. ⁷ Expertise can relate to interpreting rules if their words have special or technical meaning. We distinguished "expertise" from delegation of a range of choice in McPherson v. Employment Division, 285 Or. 541, 549-50, 591 P.2d 1381 (1979):

"Judicial respect for an agency's interpretation of a legal term, though it is a question of law, is often explained on a theory of agency 'expertise.' That may apply where statutory terms are drawn from a technical vocabulary which takes its meaning from a particular science, industry, trade or occupation in which the agency has genuine expertise, but an agency's administration of a specialized program does not mean that its political...