Siporen v. City of Medford

• Decision Date: 18 November 2010
• Docket Number: (LUBA 2008185; CA A142541; SC S058025).
• Parties: Wendy SIPOREN, Petitioner, and Ivend Holen and Medford Citizens for Responsible Development, Petitioners on Review, v. CITY OF MEDFORD and Wal-Mart Stores, Inc., Respondents on Review.
• Court: Oregon Supreme Court

243 P.3d 776

349 Or. 247

Wendy SIPOREN, Petitioner,andIvend Holen and Medford Citizens for Responsible Development, Petitioners on Review,

v.CITY OF MEDFORD and Wal-Mart Stores, Inc., Respondents on Review.

(LUBA 2008185; CA A142541; SC S058025).

Supreme Court of Oregon, En Banc.

Argued and Submitted May 18, 2010.

Decided Nov. 18, 2010.

On review from the Court of Appeals.^*

Kenneth D. Holm, Beaverton, argued the cause and filed the brief for petitioners on review.

John R. Huttl, City Attorney's Office, Medford, argued the cause and filed the brief for respondent on review City of Medford.

Gregory S. Hathaway, of Davis Wright Tremaine, LLP, Portland, argued the cause and filed the brief for respondent on review Wal-Mart Stores, Inc. With him on the brief was E. Michael Connors.

Peter A. Kasting, Chief Deputy City Attorney, Office of City Attorney, Portland, and Sandra N. Duffy, Multnomah County Counsel's Office, Portland, filed the joint brief for amici curiae League of Oregon Cities and Association of Oregon Counties.

GILLETTE, J.

The subject of this land use case is a decision by the Medford City Council approving a "site plan and architectural review" application for a large store that Wal-Mart Stores, Inc., proposes to build within the city's boundaries. Certain individual citizens of Medford and a citizens' group, Medford Citizens for Responsible Development (collectively, petitioners) appealed the city's decision to the Land Use Board of Appeals (LUBA), arguing that Wal-Mart's application did not comply with certain provisions of the Medford Land Development Code (MLDC), which (in petitioners' view) required Wal-Mart to comprehensively address the traffic impacts of the proposed development as a condition for obtaining site plan and architectural review approval. Wal-Mart responded that, under the city's interpretation of the MLDC, the provisions on which petitioners relied did not apply to site plan and architectural review decisions. LUBA sustained petitioners' claim of error and remanded the matter for further proceedings. Siporen v. City of Medford, 59 Or. LUBA 78 (2009). Wal-Mart sought judicial review of that decision in the Court of Appeals. That court reversed LUBA's decision, holding that the city's interpretation of the relevant MLDC provisions was plausible and that LUBA and the Court of Appeals therefore were required to accept that interpretation for purposes of review. Siporen v. City of Medford, 231 Or.App. 585, 220 P.3d 427 (2009). We allowed petitioners' request for review and now affirm the decision of the Court of Appeals.

As noted, the controversy in this case arose out of Wal-Mart's proposal to build a large store in an area of Medford that is zoned for such retail/commercial uses. To obtain a permit to build the store, Wal-Mart was required to obtain certain "plan authorizations," ¹ including approval ofan applicationfor "site plan and architectural review." Wal-Mart submitted an application for site plan and architectural review, which contained information required for such applications under the relevant provisions of the code,² to the body authorized to review such applications-the Site Plan and Architectural Review Commission (SPAC). Wal-Mart attached to its application a Traffic Impact Analysis (TIA) that dealt with the ingress and egress points for the proposed store's parking areas, but not with the impact its development might have on nearby arterial and collector streets. The limited TIA apparently had originally been submitted in response to earlier decisions by LUBA with respect to Wal-Mart's application for site plan and architectural review of an earlier proposal to build a slightly larger store in Medford.³

In the ensuing proceeding before SPAC, petitioners argued that, as part of the site plan and architectural review process, Wal-Mart was required to submit a comprehensiveTIA and to show that its proposed development would not cause the "level of service" (LOS) on the roads surrounding the project to fall below a certain designated level-LOS level "D." Petitioners relied on three provisions of the development code, MLDC 10.460, MLDC 10.461, and MLDC 10.462, which appear in a section of the MLDC that pertains generally to "the establishment and application of development standards for public improvements," including streets. MLDC 10.007. The first of those provisions, MLDC 10.460, describes the function and purpose of a TIA in terms of "specifically identif[ying] the generation, distribution, and assignment of traffic to and from a proposed development" and "identify[ing] the traffic impacts that a proposed development will have on the existing and future street network." The second provision, MLDC 10.461, describes the process of determining the appropriate scope of a TIA and, as relevant here, when a TIA is required:

"If a proposed application has the potential of generating more than 250 net average daily trips (ADT) or the Public Works Department has concerns due to the operation or accident history, a TIA will be required to evaluate development impacts to the transportation system. The Public Works Department may waive a TIA if it is concluded that the impacts are not substantial."

MLDC 10.461(3). The third provision cited by petitioners, MLDC 10.462, describes six potential levels of service (Levels A through F) for arterial and collector streets in terms of average speeds, delays, volume-to-capacity ratio and similar considerations, and then provides:

"Whenever level of service is determined to be below level D for arterials or collectors, development is not permitted unless the developer makes the roadway or other improvements necessary to maintain level of service D respectively."

Petitioners took the position that, by their clear terms, the foregoing provisions are directed at analyzing and controlling the traffic impacts of proposed "development[s]." Petitioners argued that, because Wal-Mart's store construction proposal incontrovertibly was a proposed"development," ⁴ the TIArequirement at MLDC 10.461 and the LOS requirement at MLDC 10.462 therefore applied to it. Finally, petitioners argued that, as long as Wal-Mart failed to comply with those two requirements, SPAC could not lawfully approve Wal-Mart's site plan and architectural review application. That was so, in petitioners' view, because, under yet another MLDC provision, MLDC 10.290(2), SPAC must find that a proposed development "complies with the applicable provisions of all city ordinances" in order to approve a site plan and architectural review application.

SPAC rejected that analysis of the ordinances. It concluded that the TIA requirement at MLDC 10.461 and the level of traffic service requirement at MLDC 10.462 were not within SPAC's scope of authority as defined in other provisions of the MLDC and that, as such, those provisions were not "applicable provisions" that, under MLDC 10.290(2), SPAC was required to enforce through its site plan and architectural review process. SPAC observed that, for 20 years, the city had been interpreting the MLDC as placing authority over the subject matter of MLDC 10.461 and MLDC 10.462 solely in the Planning Commission and as requiring that agency, at the time of any zone change, to analyze the level of traffic service and ensure that the specific minimum level of traffic service would be maintained. SPAC concluded that, because zone change decisions regarding street capacity and adequacy are directed not only at the existing uses, but also at the allowed uses within a zone, the traffic issues relating to site development are dealt with as part of zoning decisions, rendering MLDC 10.461 and MLDC 10.462 inapplicable at the time of site development. Having thus explained its interpretation of the ordinances that petitioners had cited(including the city's conclusion that the TIA and level-of-traffic-service requirements were not applicable to site plan and architectural review), SPAC approved Wal-Mart's application without applying those requirements. The City Council affirmed that approval and adopted SPAC's reasoning.

Petitioners appealed the City Council's decision to LUBA. At the outset, LUBA observed that its focus was only on the city's interpretation of the MLDC, and that, under the relevant standard-of-review statute, ORS 197.829(1), it was required to affirm that interpretation unless it determined that it was inconsistent with the express language, purpose, or underlying policy of the MLDC.⁵Siporen, 59 Or. LUBA at 85. LUBA went on to determine that MLDC 10.290(2) (requiring SPAC to limit approvals to applications that comply with all "applicable provisions") was textually ambiguous with respect to whether the two provisions upon which petitioners relied-MLDC 10.461 and MLDC 10.462-were "applicable." Id. at 86-87. But, after examining the contextual material that the city offered in support of its conclusion that those provisions were not "applicable"-specifically, various other provisions of the MLDC that, in the city's view, placed the requirements set out in MLDC 10.461 andMLDC 10.462 under the authority of the Planning Commission at the time of zone changes-LUBA concluded that the city'sinterpretation was not sustainable, even under the deferential standard of review that it believed that it was required to use. Id. at 91-92. Accordingly, LUBA remanded the case to the city, stating that, if the city wished to approve the Wal-Mart proposal without applying the TIA and level-of-traffic-service requirements, it would have to amend MLDC 10.290(2). Id. at 93.

Wal-Mart and the city sought judicial review, arguing that LUBA had failed to apply the correct standard of review- i.e., that it failed to acknowledge that the text of MLDC 10.290(2) is capable of supporting more than one interpretation, and that the city's reconciliation of conflicting provisions should be given deference.

In response to that argument, the Court of Appeals attempted to translate...