Griffin Oak Prop. Invs., LLC v. City of Rockaway Beach
| Decision Date | 06 April 2022 |
| Docket Number | A169584 |
| Citation | 318 Or.App. 777,509 P.3d 643 |
| Parties | GRIFFIN OAK PROPERTY INVESTMENTS, LLC; Tai N. Dang; Hue P. Le; and Tue Nguyen, Plaintiffs-Respondents, v. CITY OF ROCKAWAY BEACH, Oregon and Terri Michel, Defendants-Appellants. |
| Court | Oregon Court of Appeals |
Janet M. Schroer, Portland, argued the cause for appellants. Also on the briefs was Hart Wagner LLP.
Jonathan M. Radmacher, Portland, argued the cause for respondents. Also on the brief was McEwen Gisvold LLP.
Before Egan, Presiding Judge, and Pagán, Judge, and DeHoog, Judge pro tempore.*
DeHOOG, J. pro tempore In this mandamus action under ORS 227.179, the circuit court entered a judgment requiring defendant, the City of Rockaway Beach, to approve relators’ application for a zoning permit to rebuild a deck on their oceanfront home.1 The city appeals, contending that, contrary to the circuit court's ruling, the city "show[ed] that the approval would violate a substantive provision of the local comprehensive plan or land use regulations." ORS 227.179(5). That is so, the city contends, because the city showed that the approval would violate Rockaway Beach Zoning Ordinance (RBZO) § 5.060, which imposes a setback from the Oregon Coordinate Line established in ORS 390.770 on oceanfront dwellings. Here, the city contends, the setback is 60.6 feet. Relators’ application seeks approval to rebuild the deck less than 60.6 feet from the Oregon Coordinate Line.
As explained below, we conclude, contrary to the city's argument, that, given the circuit court's factual findings and the relevant provisions of the ordinance, the city planner correctly applied RBZO § 5.060 to relators’ lot in 2008, when she concluded that the oceanshore setback was 30.3 feet. However, we agree with the city's alternative argument that it nevertheless showed that the approval of relators’ current application would violate RBZO § 5.060 because the application sought permission to rebuild the deck closer to the ocean than allowed under the 30.3-foot setback. The circuit court erred in reasoning that the city's previous sign-off on relators’ site plan and building inspection precluded it from asserting that approval of relators’ separate application in this later proceeding would violate RBZO § 5.060. Given that conclusion, we need not address the city's third assignment of error, regarding attorneys’ fees. We reject without discussion the city's second assignment of error, regarding issue preclusion, and relators’ contention that this appeal is moot. We deny relators’ motion to dismiss the appeal as moot. We reverse and remand.
In a proceeding under ORS 227.179, we review legal conclusions for errors of law and findings of fact for any evidence. State ex rel West Main Townhomes v. City of Medford , 233 Or. App. 41, 43, 225 P.3d 56 (2009), adh'd to as modified on recons. , 234 Or. App. 343, 228 P.3d 607 (2010).
We begin with the basic facts and procedural history. We state the facts in a manner consistent with the circuit court's findings. The subject property is a lot abutting the oceanshore within the City of Rockaway Beach. For a lot abutting the oceanshore, RBZO § 5.060(1)(b) requires an oceanshore setback measured eastward from the Oregon Coordinate Line, which is a statutorily defined line that marks the eastern edge of the oceanshore. ORS 390.770.
In 2008, relators applied for a permit to build a new home on the property. At that time, the city was enthusiastic about having a home built on the property. Surveyor Cook had recently prepared a survey of the property in consultation with then-city-planner Pearson; the circumstances surrounding the creation of that survey are discussed in more detail below.
Consulting the survey, Pearson determined that the oceanshore setback required by RBZO § 5.060 for relators’ property was 30.3 feet from the Oregon Coordinate Line. Relators then submitted a site plan that showed only a 20-foot oceanshore setback. Despite a survey showing a requirement of a 30.3-foot oceanshore setback and a site plan showing only a 20-foot oceanshore setback, the city proceeded to approve the issuance of a building permit, and relators built their house and deck in approximately the location shown on the site plan. As built, the most oceanward point of the deck was 25.4 feet from the Oregon Coordinate Line. After construction was complete, the city signed off on an inspection card and sent a letter to relators indicating that all setbacks were correct.
ORS 227.179(5).
The city contended that approval of relators’ application would violate substantive provisions of the local comprehensive plan and land use regulations. First, the city contended that Pearson's 2008 determination of the oceanshore setback—as 30.3 feet—was incorrect both because of the facts and because her interpretation of RBZO § 5.060 was wrong. The city contended that, under a correct understanding of the facts and a correct interpretation of RBZO § 5.060, the oceanshore setback was 60.6 feet. Relators disagreed, and also contended that a variety of legal principles, which we discuss below in our analysis of the city's alternative argument, prevented the city from taking a position in this proceeding that was inconsistent with Pearson's 2008 application of RBZO § 5.060 to require a 30.3 foot setback.
Alternatively, the city contended that, even if the 30.3-foot ocean setback was appropriate, approval of relators’ application would still violate RBZO § 5.060, because the application sought approval to rebuild the deck closer to the ocean than allowed under the 30.3-foot setback.3 Relators responded that Pearson could have reasonably interpreted the zoning ordinance to allow the house to be built where it was and, alternatively, that if the court concluded that the deck had to be rebuilt 30.3 feet from the Oregon Coordinate Line, the court could impose a condition to that effect on the application before ordering the city to approve it. Relators also contended that the city's issuance of the building permit based on a site plan showing a 20-foot oceanshore setback and its post-construction letter confirming that the setbacks were correct precluded it from enforcing the 30.3-foot setback in this later application to rebuild the deck.
The circuit court agreed with relators on nearly all of their arguments and entered a judgment in their favor and a peremptory writ ordering the city to approve the application without any conditions.
On appeal, the parties renew the arguments they made below. We begin by interpreting the city's ordinance. As we explain in more detail below, under the unique circumstances presented here, we interpret the ordinance as a matter of law. Thus, we follow the procedure established in State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) : With the aim of discerning the intention of the enacting body, we consider the text of the ordinance in context. We may also consider its enactment history and, finally, if necessary to resolve any remaining ambiguity, maxims of interpretation. Accord Central Oregon Landwatch v. Deschutes County , 315 Or. App. 673, 677, 501 P.3d 1121 (2021) ( ).
We first consider the correctness of Pearson's 2008 conclusion that the oceanshore setback was 30.3 feet. The city contends that that conclusion was wrong and that, because this is a statutory mandamus action, we should not defer to Pearson's, or the city's, interpretation of the ordinance. See State ex rel. Coastal Management, Inc. v. Washington Cty. , 159 Or. App. 533, 537-42, 979 P.2d 300 (1999) (). We need not decide whether we should defer to Pearson's interpretation of the ordinance because, even interpreting the ordinance independently, we conclude that Pearson's interpretation of the ordinance was correct.
Because the first dispute that we address is whether Pearson's 2008 determination of the oceanshore setback was correct when it was made, we set out the relevant provisions of the RBZO as they existed in 2008. The oceanshore setback is established in RBZO § 5.060, entitled "General Exceptions to Yard Requirements." The provision states:
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