Columbia Steel Castings Co. v. City of Portland

• Decision Date: 22 October 1992
• Citation: 314 Or. 424,840 P.2d 71
• Parties: COLUMBIA STEEL CASTINGS CO. Respondent on Review, and Columbia Slough Development Corporation, Intervenor-Respondent on Review, v. CITY OF PORTLAND, Petitioner on Review. LUBA 89-058; CA A66052; SC S37716.
• Court: Oregon Supreme Court

Page 71

840 P.2d 71

314 Or. 424

COLUMBIA STEEL CASTINGS CO. Respondent on Review and Columbia Slough Development Corporation Intervenor-Respondent on Review, v. CITY OF PORTLAND, Petitioner on Review.

LUBA 89-058; CA A66052; SC S37716.

Supreme Court of Oregon In Banc.

Argued and Submitted May 8, 1991.

Decided Oct. 22, 1992.

Ruth Spetter, Sr. Deputy City Atty., Portland, argued the cause and filed the petition for petitioner on review. With her on the petition was Jeffrey L. Rogers, City Atty., Portland.

James T. Waldron, Portland, argued the cause and filed the response for respondent on review. With him on the response were Mildred J. Carmack and Steven W. Abel of Schwabe, Williamson & Wyatt, Portland.

[314 Or. 425-A] John T. Bagg, Asst. Atty. Gen., filed a brief for amicus curiae Land Conservation and Development Com'n. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen.

GILLETTE, Justice.

In this land use case, the Land Use Board of Appeals (LUBA) affirmed amendments by the City of Portland (City) to its comprehensive plan and zoning map. The amendments applied an "environmental conservation overlay zone" to property in an area known as the Columbia Corridor, including property owned by Columbia Steel Castings Co. (Columbia Steel). The effect of the zone is to limit future uses that may be made of the property within the zone. After unsuccessfully seeking relief from LUBA, Columbia Steel petitioned for judicial review, arguing that City's manner of applying the environmental conservation overlay zone violated Oregon Land Use Goal 5 ¹ and the regulations that implement the Goal because, inter alia, City failed to make site-specific analyses of the economic, social, environmental, and energy (ESEE) consequences of applying the conservation overlay zone designation to property such as that owned by Columbia Steel.

The Court of Appeals agreed with Columbia Steel that, under the applicable land use rules, City's ESEE analyses had to be more site-specific than City had made them. The court remanded the case to LUBA with instructions to that agency "to determine * * * the precise site-specificity requirements that are applicable to these land use decisions under [the applicable rules]." Columbia Steel Castings Co. v. City of Portland, 104 Or.App. 244, 250, 799 P.2d 1142 (1990). We allowed City's petition for review and now modify the decision of the Court of Appeals to the extent set forth below.

The area around which the present dispute centers is a part of the Columbia Corridor, a 14,000-acre area located primarily within Portland and running east along the southern shore of the Columbia River from the Willamette River to N.E. 185th Avenue. The area includes natural resource areas, existing industrial operations, and land that is zoned for industrial use. In its present rezoning action, City divided the Corridor into five sub-areas. Pursuant to OAR 660-16-000, ² City also identified and inventoried 36 "resource sites" within the Corridor. Columbia Steel's property lies within one of those resource sites, Site 55. Site 55 contains 1,867 acres and encompasses the Smith and Bybee Lakes, an environmentally important wetland area. Columbia Steel is located on the bank of a watercourse called the Columbia Slough. The Slough runs the length of the Corridor and is connected to Smith and Bybee Lakes.

Columbia Steel has not questioned the permissibility of designating Site 55 as a resource site. However, Columbia Steel asserted both to LUBA and to the Court of Appeals that City had failed to perform properly the next steps in the Goal 5 resource protection process after identification of the resource, viz., identification of conflicting uses and performance of an ESEE analysis of the impact of the resource and of the conflicting use on each other, as required by OAR 660-16-005. That rule provides:

"It is the responsibility of local government to identify conflicts with inventoried Goal 5 resource sites. This is done primarily by examining the uses allowed in broad zoning districts established by the jurisdiction (e.g., forest and agricultural zones). A conflicting use is one which, if allowed, could negatively impact a Goal 5 resource site. Where conflicting uses have been identified, Goal 5 resource sites may impact those uses. These impacts must be considered in analyzing the economic, social, environmental and energy (ESEE) consequences:

"(1) Preserve the Resource Site: If there are no conflicting uses for an identified resource site, the jurisdiction must adopt policies and ordinance provisions as appropriate, which insure preservation of the resource site.

"(2) Determine the Economic, Social, Environmental, and Energy Consequences: If conflicting uses are identified, the economic, social, environmental and energy consequences of the conflicting uses must be determined. Both the impacts on the resource site and on the conflicting use must be considered in analyzing the ESEE consequences. The applicability and requirements of other Statewide Planning Goals must also be considered, where appropriate, at this stage of the process. A determination of the ESEE consequences of identified conflicting uses is adequate if it enables a jurisdiction to provide reasons to explain why decisions are made for specific sites."

LUBA ruled that City's conflicting use and ESEE findings, although those findings were made on an area, rather than on a resource-site-by-resource-site, basis, nonetheless were sufficiently detailed to meet the requirements of OAR 660-16-005. The Court of Appeals reversed, holding that City's ESEE findings were not sufficiently location-specific to satisfy the rule. As noted, the Court of Appeals then remanded the case to LUBA to determine just how specific City's findings would have to be to satisfy the requirements of the rule.

City argues that what it already has done with respect to conducting conflicting use and ESEE reviews for the five sub-areas of the Columbia Corridor is adequate to meet the requirements of OAR 660-16-005. This argument has two parts, a part about nomenclature and a part about specificity.

Concerning the nomenclature used in the pertinent rule, OAR 660-16-005, City argues (and amicus Land Conservation and Development Commission agrees) that the references in OAR 660-16-005 and throughout the Goal 5 implementing rules to "resource sites," "sites," "particular sites," and "specific sites" all refer to resource sites, not to smaller parcels (such as tax lots) within a resource site. We agree with this proposition, for two reasons.

First, even a casual reading of the Goal 5 implementing rules, OAR 660-16-000 et seq., shows that the foregoing words and phrases have been used interchangeably throughout. For example, OAR 660-16-000(5)(a) to (c), which concern identification of resource sites, provide:

"Based on the data collected, analyzed and refined by the local government, as outlined above, a jurisdiction has three basic options:

"(a) Do Not Include on Inventory: Based on information that is available on location, quality and quantity, the local government might determine that a particular resource site is not important enough to warrant inclusion on the plan inventory, or is not required to be included in the inventory based on the specific Goal standards. No further action need be taken with regard to these sites. The local government is not required to justify in its comprehensive plan a decision not to include a particular site in the plan inventory unless challenged by the Department, objectors or the Commission based upon contradictory information.

"(b) Delay Goal 5 Process: When some information is available, indicating the possible existence of a resource site, but that information is not adequate to identify with particularity the location, quality and quantity of the resource site, the local government should only include the site on the comprehensive plan inventory as a special category. The local government must express its intent relative to the resource site through a plan policy to address that resource site and proceed through the Goal 5 process in the future. The plan should include a time-frame for this review. Special implementing measures are not appropriate or required for Goal 5 compliance purposes until adequate information is available to enable further review and adoption of such measures. The statement in the plan commits the local government to address the resource site through the Goal 5 process in the post-acknowledgment period. Such future actions could require a plan amendment.

"(c) Include on Plan Inventory: When information is available on location, quality and quantity, and the local government has determined a site to be significant or important as a result of the data collection and analysis process, the local government must include the site on its plan inventory and indicate the location, quality and quantity of the resource site (see above). Items included on this inventory must proceed through the remainder of the Goal 5 process."

(Emphasis added.)

OAR 660-16-000(5) is most easily and sensibly read as outlining what happens to "resource sites," depending on their characteristics. It is difficult to imagine what type of site, other than a resource site, could be meant by this rule. In fact, Columbia Steel does not suggest that the words are referring to different types of sites in this particular rule.

The second reason why we accept City's nomenclature argument is that there is no usage or indication in other portions of OAR 660-16-000 et seq. suggesting that similar words are intended to have a different meaning, even in those rules that do not have resource sites as their principal focus. Generally, and in the absence of some specific indication of a contrary intent, terms are read consistently throughout a statute. See Knapp v. City of North Bend, 304 Or. 34, 41, 741...