Roberts v. City of Cannon Beach

• Decision Date: 15 December 2021
• Docket Number: A176601
• Parties: Stanley ROBERTS and Rebecca Roberts, Petitioners, v. CITY OF CANNON BEACH; Haystack Rock, LLC; and Oregon Coast Alliance, Respondents.
• Court: Oregon Court of Appeals

316 Or.App. 305

504 P.3d 1249

Stanley ROBERTS and Rebecca Roberts, Petitioners,

v.CITY OF CANNON BEACH; Haystack Rock, LLC; and Oregon Coast Alliance, Respondents.

A176601

Court of Appeals of Oregon.

Argued and submitted October 4, 2021.

December 15, 2021

W. Michael Gillette, Portland, argued the cause for petitioners. Also on the brief were Schawabe Williamson & Wyatt, P.C., and Wendie L. Kellington, and Kellington Law Group, PC.

William K. Kabeiseman argued the cause for respondent City of Cannon Beach. Also on the brief were Carrie A. Richter and Bateman Seidel Miner Blomgren Chellis & Gram, P.C.

William L. Rasmussen, Portland, argued the cause for respondent Haystack Rock, LLC. Also on the brief were Steven G. Liday and Miller Nash, LLP.

Sean Malone filed the brief for respondent Oregon Coast Alliance.

Bryan W. Cavaness filed the brief amicus curiae for Stafford Land Company.

James D. Howsley filed the brief amicus curiae for Home Builders Association of Metropolitan Portland. Also on the brief was Jordan Ramis, PC.

Patricia M. Mulvihill filed the brief amicus curiae for League of Oregon Cities.

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

ARMSTRONG, P.J.

Petitioners seek judicial review of a decision of the Land Use Board of Appeals (LUBA) affirming the City of Cannon Beach's denial of their application for a development permit to construct a residence. Petitioners raise two assignments of error in which they argue that LUBA's decision is unlawful in substance because it affirms the city's application of the oceanfront setback established in Cannon Beach Municipal Code (CBMC) section 17.42.050(A)(6) to their application.¹ As explained below, we conclude that the oceanfront setback is a clear and objective standard, ORS 197.307(4), and that ORS 227.175(4)(c) and (e) do not prohibit application of the oceanfront setback to petitioners’ application. Accordingly, we affirm.

We begin by considering petitioners’ first assignment of error. Before recounting the facts, we set out the relevant code provisions, which we take from LUBA's opinion:

"The purpose of the [oceanfront management (OM)] overlay zone

" ‘is to regulate uses and activities in the affected areas in order to: ensure that development is consistent with the natural limitations of the oceanshore; to ensure that identified recreational, aesthetic, wildlife habitat and other resources are protected; to conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of beach and dune areas; and to reduce the hazards to property and human life resulting from both natural events and development activities.’ Cannon Beach Municipal Code (CBMC) 17.42.010.

"The OM overlay zone includes all ‘lots abutting the oceanshore.’ CBMC 17.42.020(A)(1). ‘ "Lot abutting the oceanshore" means a lot which abuts the Oregon Coordinate Line or a lot where there is no buildable lot between it and the Oregon Coordinate Line.’ CBMC 17.04.320. CBMC 17.42.050(A)(6) provides the oceanfront setback standard for lots abutting the oceanshore, establishing the ‘ocean yard.’ ‘ "Ocean yard" means a yard measured horizontally at right angles from the most easterly of [the] Oregon Coordinate Line or the western property line, to the nearest point of a building. An ocean yard may be a front yard, a rear yard or a side yard.’ CBMC 17.04.578. The only structures permitted in the ocean yard are fences, decks, or beach access stairs. CBMC 17.42.060(A)(9). Accordingly, a dwelling cannot be constructed in the ocean yard.

"The oceanfront setback and resulting ocean yard established by CBMC 17.42.050(A)(6) are at the center of the city's denial and petitioners’ arguments in this appeal. CBMC l 7.42.050(A)(6) provides:

" ‘Oceanfront Setback. For all lots abutting the oceanshore, the ocean yard shall be determined by the oceanfront setback line.

" ‘a. The location of the oceanfront setback line for a given lot depends on the location of buildings on lots abutting the oceanshore in the vicinity of the proposed building site and upon the location and orientation of the Oregon Coordinate Line.

" ‘b. For the purpose of determining the oceanfront setback line, the term "building" refers to the residential or commercial structures on a lot. The term "building" does not include accessory structures.

" ‘c. The oceanfront setback line for a parcel is determined as follows:

" ‘i. Determine the affected buildings; the affected buildings are those located one hundred feet north and one hundred feet south of the parcel's side lot lines.

" ‘ii. Determine the setback from the Oregon Coordinate Line for each building identified in subsection (A)(6)(c)(i) of this section.

" ‘iii. Calculate the average of the setbacks of each of the buildings identified in subsection (A)(6)(c)(ii) of this section.

" ‘d. If there are no buildings identified by subsection (A)(6)(c)(i) of this section, then the oceanfront setback line shall be determined by buildings that are located two hundred feet north and two hundred feet south of the parcel's side lot lines. " ‘e. Where a building identified by either subsection (A)(6)(c)(i) of this section or subsection (A)(6)(d) of this section extends beyond one hundred feet of the lot in question, only that portion of the building within one hundred feet of the lot in question is used to calculate the oceanfront setback.

" ‘f. The setback from the Oregon Coordinate Line is measured from the most oceanward point of a building which is thirty inches or higher above the grade at the point being measured. Projections into yards, which conform to Section 17.90.070, shall not be incorporated into the required measurements.

" ‘g. The oceanfront setback line shall be parallel with the Oregon Coordinate Line and measurements from buildings shall be perpendicular to the Oregon Coordinate Line.

" ‘h. The minimum ocean yard setback shall be fifteen feet.

" ‘i. Notwithstanding the above provisions, the building official may require a greater oceanfront setback where information in a geologic site investigation report indicates a greater setback is required to protect the building from erosion hazard.

" ‘j. As part of the approval of a subdivision, the city may approve the oceanfront setback for the lots contained in the subdivision. At the time of building construction, the oceanfront setback for such a lot shall be the setback established by the approved subdivision and not the oceanfront setback as it would be determined by subsections (A)(6)(a) through (i) of this section. Before granting a building permit, the building official shall receive assurance satisfactory to such official that the location of the oceanfront setback for said lot has been specified at the required location on the plat or has been incorporated into the deed restriction against the lot.’ "

Roberts v. City of Cannon Beach , No. 2020-116, July 23, 2021) (slip op at 7-10) (brackets in LUBA opinion; internal footnotes omitted).

The subject property is a 5,394-square-foot lot on a steep hillside facing the Pacific Ocean in the Tolovana Park subdivision. Petitioners submitted an application to construct a new 2,712-square-foot residence on the property.

The city determined that petitioners’ lot and the lot immediately to the north of petitioners’ lot were both "lots abutting the oceanshore," CBMC 17.42.020(A)(1), and, consequently, that the oceanfront setback, CBMC 17.42.050(A)(6), applied. The city determined that the required method of determining the oceanfront setback was, as set out in CBMC 17.42.050(A)(6)(c), to identify the "affected buildings" and average the oceanfront setbacks of those buildings. The city determined that, in this case, there was only one affected building, the house on the lot to the north of petitioners’ lot. Applying CBMC 17.42.050(A)(6)(c), the city averaged the setbacks of the "affected buildings" and concluded that the average was the same as the setback of the single affected building.

Ultimately, the city denied the permit on the ground that petitioners’ proposed house did not comply with the oceanfront setback. Petitioners challenged the denial before LUBA, and LUBA affirmed the denial. On judicial review, petitioners contend that LUBA's decision is unlawful in substance because LUBA misapplied the statutory requirement that approval standards for housing be "clear and objective." ORS 197.307(4).²

We review LUBA's construction of a statute for legal error. Central Oregon LandWatch v. Deschutes County , 285 Or.App.267, 276-77, 396 P.3d 968 (2017). As explained below, we reject petitioners’ view that a standard is not "clear and objective" any time that one of its terms, considered apart from its context, has more than one plausible meaning, and we agree with LUBA that the challenged terms of the oceanfront setback are clear and objective.

Local governments have long been required to "adopt and apply only clear and objective standards, conditions and procedures regulating the development" of "needed housing." ORS 197.307(4) ; see Nieto v. City of Talent , ––– Or LUBA ––––, –––– (LUBA No. 2020-100, Mar 10, 2021) (slip op at 8) (explaining that the needed-housing statutes were enacted in 1981). When clear and objective standards are required for needed housing, "the local government imposing the provisions of the ordinance shall demonstrate that the approval standards, conditions and procedures are capable of being imposed only in a clear and objective manner." ORS 197.831.

In 2017, the legislature extended the "clear and objective" requirement to the development of all housing. See Or Laws 2017, ch 754, § 5; see also Warren v. Washington County , 296 Or. App. 595, 598, 439 P.3d 581, rev. den. , 365 Or. 502, 451 P.3d 988 (2019) (after the 2017 amendments, ORS 197.307(4) "provides that local government can regulate the development of housing only through clear and objective standards, conditions, and procedures").³ The legislature accomplished that change by simply...