Crowley v. City of Hood River

• Decision Date: 16 December 2020
• Docket Number: A174363
• Citation: 308 Or.App. 44,480 P.3d 1007
• Parties: Susan Garrett CROWLEY, Petitioner, v. CITY OF HOOD RIVER, Respondent.
• Court: Oregon Court of Appeals

308 Or.App. 44

480 P.3d 1007

Susan Garrett CROWLEY, Petitioner,

v.CITY OF HOOD RIVER, Respondent.

A174363

Court of Appeals of Oregon.

Argued and submitted September 22, 2020.

December 16, 2020

Susan Garrett Crowley argued the cause and filed the brief for petitioner pro se.

Daniel Kearns, Portland, argued the cause and filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

In this land use case, petitioner seeks review of a Land Use Board of Appeals (LUBA) order that affirmed the City of Hood River's decision to approve a quasi-judicial zone change to a portion of a city park from Open Space/Public Facilities (OS/PF) to Urban High Density Residential (R-3). In affirming the city's decision, LUBA deferred to the city's interpretation of Hood River Comprehensive Plan (HRCP) Goal 8 Policy 1, under ORS 197.829(1)¹ and Siporen v. City of Medford , 349 Or. 247, 243 P.3d 776 (2010).

On review, in her first assignment of error, petitioner argues that LUBA erred in granting the city deference, because the city's interpretation of the policy was inconsistent with the policy's express language and purpose. We conclude that LUBA's order was "unlawful in substance," ORS 197.850(9)(a), because LUBA erred in deferring to the city's interpretation of its policy, which did not plausibly account for the text and context of the policy. Our decision obviates the need to address other issues raised in petitioner's first assignment of error and petitioner's second assignment of error. We therefore reverse and remand.

I. BACKGROUND

As context for our analysis of this petition for review, we recount the pertinent historical facts, which we largely draw from Crowley v. City of Hood River , 294 Or. App. 240, 430 P.3d 1113 (2018) ( Crowley I ) and the LUBA order on review.

A. Morrison Park and HRCP Goal 8

The property at issue in this case is a section of Morrison Park. Morrison Park sits on various tax lots, including tax lot 700 (TL 700), which is approximately 5.33 acres. Morrison Park was zoned OS/PF under Goal 8 of the HRCP. Goal 8 states that the city's goal is to "satisfy the recreational needs of the citizens of the community and visitors to the area." Goal 8 Policy 1 provides that "[e]xisting park sites will be protected from incompatible uses and future expansion alternatives at some sites will be developed." The HRCP defines the term "protect" as to "[s]ave or shield from loss, destruction, or injury or for future intended use." We have previously observed that Goal 8 Policy 1 is phrased as a "mandatory requirement." Crowley I , 294 Or. App. at 247, 430 P.3d 1113.

Goal 8 also contains other policies which are phrased in terms of "aspirational goals." Id. at 246, 430 P.3d 1113. Specifically, Goal 8 Policy 2 provides that, "[w]hen feasible, recreational opportunities and park sites will be located so as to be accessible to a maximum number of people," and Goal 8 Policy 3 provides that "[t]he development of parks which are accessible by means of walking or bicycling is encouraged."

B. The City's Decision to Rezone a Portion of TL 700

On September 14, 2015, the city council approved a housing strategy to develop affordable housing, which included an action to rezone land to allow additional high-density residential development and identify publicly owned lands that could be used for affordable housing.

On August 16, 2016, the city submitted an application to rezone a portion of TL 700 from OS/PF to R-3, and on May 22, 2017, the city voted to approve rezoning 5.03 acres of TL 700. In doing so, the city rejected the argument that Goal 8 Policy 1 precludes the rezoning because allowing the park to be developed for high-density residential development fails to protect the park from incompatible uses. After finding that that policy is ambiguous in several respects, the city determined that the most logical interpretation of the policy is that it requires the protection of parks from incompatible uses on other nearby properties that could adversely affect the parks, but does not prevent rezoning of the parks themselves. The city rejected the argument that Goal 8 Policy 1 requires all existing parks, including Morrison Park, to be protected from incompatible uses of the park , as opposed to protecting parks from incompatible nearby uses on surrounding land.

C. Petitioner's First Appeal to LUBA

Petitioner appealed the city's decision to LUBA, arguing that the city incorrectly interpreted Goal 8 Policy 1 by narrowing the scope of "incompatible uses" to refer only to uses on properties outside of park sites themselves. Petitioner contended that the city's interpretation impermissibly inserted into the policy a qualification—i.e. , "incompatible uses on other properties"—that had been omitted.

LUBA rejected petitioner's contention. It concluded that the city's interpretation of the policy was plausible and was not inconsistent with the policy's express language, purpose, or underlying policies.

D. The Court of Appeals Decision in Crowley I

Petitioner sought review of LUBA's decision, leading to our decision in Crowley I . In Crowley I , we determined that the city's interpretation of Goal 8 Policy 1—i.e. , "that it applies only to incompatible uses on nearby properties"—was "implausible, when considering the text and context of the policy." 294 Or. App. at 246, 430 P.3d 1113 (emphasis in original). We explained:

"The problem with the city's interpretation is that it adds language to the express text of Goal 8 Policy 1 to limit the preservation of parks, which is inconsistent with Goal 8 Policy 1's mandatory text—’[e]xisting park sites will be protected from incompatible uses’—and the purpose of Goal 8—to satisfy the city's recreational needs by developing and maintaining public parks."

Id. at 247, 430 P.3d 1113 (emphases and brackets in original). We further explained:

"The city's interpretation requires the addition of terms not present in Goal 8 Policy 1's text—incompatible uses means incompatible uses only on nearby properties . * * * Here, Goal 8 Policy 1 does not limit the scope of its applicability, and a plain and natural reading of the policy suggests that there are no limitations on the phrase ‘incompatible uses.’ Nevertheless, the city has inserted language to place limitations on that phrase. By narrowing the application of the policy to apply only to nearby properties, the city's interpretation allows for incompatible uses within existing park sites. Such an interpretation effectively rewrites the explicit text of the policy so that the area surrounding the park must be compatible with the recreational needs of the citizens of the community and visitors to the area, while the area within the park does not need to be compatible with those needs at all. This cannot be squared with Goal 8 Policy 1's text, when viewed in the context of Goal 8's purpose of maintaining and developing public parks."

Id. at 247-48, 430 P.3d 1113 (emphases in original).

Accordingly, in Crowley I , we determined that "LUBA's order deferring to the city's interpretation of Goal 8 Policy 1 was unlawful in substance, ORS 197.850(9)(a)," and we reversed and remanded to LUBA for further proceedings. Id. at 249, 430 P.3d 1113.

E. LUBA's Remand to the City

After we remanded to LUBA, LUBA remanded to the city for further proceedings, specifically for the city to adopt a sustainable interpretation of Goal 8 Policy 1 and to apply that policy, as interpreted, to the application before it.

F. The City's Quasi-Judicial Proceeding on Remand and Ordinance Number 2048 Rezoning TL 700

On remand, the city issued findings of fact and conclusions of law in a quasi-judicial proceeding, in which the city determined that the rezoning of TL 700 to R-3 was in compliance with the HRCP and, specifically, consistent with Goal 8 Policy 1.

In its findings of fact and conclusions of law, the city explained that, in its view, Goal 8 Policy 1 was "ambiguous" and that, "as a matter of general policy," the city did not

"interpret any of the Goal 8 policies as prohibiting the Council from making the policy decision that a portion of a particular park property is suited to a non-park use and rezoning it for a future non-park development, so long as that non-park use is suitably conditioned to render it compatible and protect the park."

The City explained that Morrison Park is an "existing park site" within the meaning of Policy 1. The city explained, however, that, as it interpreted the word "protected" in Goal 8 Policy 1, that policy did not impose a prohibition "of non-park uses" on park sites. Rather, in the city's view, "the code clearly anticipates that certain non-park uses are appropriate for park sites" and that "some non-park uses are appropriate ‘future intended uses’ and can be made compatible with underlying park uses."²

The city also determined that the "affordable housing project that is envisioned for a portion of Morrison Park," although a "non-park use," is not "incompatible" with the use of "TL 700 as a city park, especially when conditioned to ensure that it is compatible with park uses on the balance of TL 700." The city explained its reasoning, in pertinent part, as follows:

"Several other Goal 8 policies provide important context and support * * *. In particular, Goal 8, Policy 2 requires that ‘recreational opportunities and park sites will be located so as to be accessible to a maximum number of people.’ Policy 3 calls for the ‘development of parks which are accessible by means of walking or bicycling.’ * * * It is critical, in our view, that urban density housing, such as the affordable housing project anticipated for part of this site, be located in close proximity to and integrated with city parks such as this one. * * * By limiting the extent of non-park development to 2.76 acres, we achieve Goal 8, Policy 1's directive to protect today's 10.83-acre Morrison Park site from incompatible uses, and, consistent with Policies 2

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