Warren v. Wash. Cnty.

• Decision Date: 20 March 2019
• Docket Number: A169547
• Citation: 296 Or.App. 595,439 P.3d 581
• Parties: Jill WARREN, Petitioner, v. WASHINGTON COUNTY and Venture Properties, Inc., Respondents.
• Court: Oregon Court of Appeals

296 Or.App. 595

439 P.3d 581

Jill WARREN, Petitioner,

v.WASHINGTON COUNTY and Venture Properties, Inc., Respondents.

A169547

Court of Appeals of Oregon.

Argued and submitted January 29, 2019.

March 20, 2019

Kenneth P. Dobson argued the cause and filed the brief for petitioner.

No appearance for respondent Washington County.

No appearance for respondent Venture Properties, Inc.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

HADLOCK, P. J.

Respondent Venture Properties applied for approval of a six-lot subdivision on land located in Washington County. A county hearings officer approved the application and petitioner Warren appealed that opinion to the Land Use Board of Appeals (LUBA). LUBA rejected each of petitioner’s challenges to the order and petitioner now seeks judicial review. Neither Venture Properties nor respondent Washington County has filed a brief in this court. For the reasons set out below, we affirm.

The pertinent facts are set out in LUBA’s order. Venture Properties applied for approval of a six-lot subdivision on a 2.8-acre parcel of land. A stream called Ash Creek runs through the parcel and approximately half of the parcel is included on a map of Significant Natural Resources (SNR) that is part of the county’s program for meeting Statewide Planning Goal 5.¹ The subdivision application proposed setting aside 58 percent of the property from development, including "the Ash Creek floodplain and associated wetlands and vegetated corridors." The application proposed "enhancement plantings" in a corridor adjacent to Ash Creek as required by regulations of Clean Water Services (CWS), the regional sewerage agency in that area. A county hearings officer approved the application with conditions, and LUBA affirmed the county’s decision.

Petitioner’s challenges to the LUBA order all relate to whether Washington County could apply certain provisions of its community development code (CDC) to prevent or restrict the proposed subdivision. To provide context for petitioner’s arguments and LUBA’s rationale for rejecting them, we set out the pertinent statutory provisions—in particular, ORS 197.307(4) —before discussing petitioner’s arguments in detail. However, we note at the outset that at least some of petitioner’s arguments are premised on an assumption that part of the 2.8-acre property at issue may not qualify as "buildable land" as that term is defined in ORS 197.295(1). That is a fact that LUBA also appears to have assumed for purposes of resolving petitioner’s challenges to the subdivision approval and, accordingly, we do so, too.²

The extent to which the county’s CDC provisions could apply to the subdivision application is controlled in part by ORS 197.307, which is sometimes referred to as one of Oregon’s "needed housing statutes." See, e.g. , Warren v. Washington County , ––– Or. LUBA ––––, –––– (LUBA No. 2018-089, Nov. 14, 2018) (slip op. at 6) ("The statutes that are set out at ORS 197.295 to 197.314 are commonly referred to as the Needed Housing Statutes."). The statute addresses, as "a matter of statewide concern," the "availability of affordable, decent, safe and sanitary housing opportunities for persons of lower, middle and fixed income, including housing for farmworkers." In various ways, the provisions of ORS 197.307 govern the circumstances under which local governments may apply standards, conditions, and procedures that have the effect of regulating or restricting the development of housing. The legislature amended several of the needed housing statutes in 2017. See Or. Laws 2017, ch. 745.

Petitioner’s arguments focus on the requirements of ORS 197.307(4). Before it was amended in 2017, ORS 197.307(4) provided that local governments generally could restrict development of "needed housing" on "buildable land" only through application of regulations and procedures that were "clear and objective":

"Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay."

ORS 197.307(4) (2015). By its terms, the "clear and objective" standard imposed by ORS 197.307(4) then applied only to development of needed housing on buildable land. The statute did not prevent local governments from applying standards, conditions, and procedures that were not clear and objective to regulate housing development on other types of land.³

As amended in 2017, ORS 197.307(4) now provides:

"Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. The standards, conditions and procedures:

"(a) May include, but are not limited to, one or more provisions regulating the density or height of a development.

"(b) May not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay."

Thus, ORS 197.307(4) no longer refers to "buildable land," and, by its terms, provides that local government can regulate the development of housing only through clear and objective standards, conditions, and procedures.

That 2017 version of ORS 197.307(4) applies to Venture Properties’ subdivision application. In rejecting petitioner’s arguments that certain CDC provisions should prevent the subdivision from going forward, LUBA ruled, as pertinent here: (1) ORS 197.307(4) prohibits Washington County "from applying any standards, conditions and procedures that are not clear and objective to [Venture Properties’] application to develop a six-lot residential subdivision, without regard to whether [Venture Properties’] property is ‘buildable land’ "; (2) aspects of CDC 422-3.3, which generally prohibits new or expanded alteration of vegetation in a riparian corridor, except in specified circumstances, and CDC 422-3.4, which relates to enhancements of degraded riparian corridors, are not "clear and objective"; and (3) substantial evidence supports the county hearing officer’s determination that a part of the property near Ash Creek is "degraded" for purposes of those CDC provisions. On judicial review, petitioner challenges each of those aspects of LUBA’s decision.

We begin our analysis by addressing petitioner’s overarching challenge to the LUBA decision, which is premised on petitioner’s contention that the 2017 amendments to ORS 197.307(4) did not have the effect of extending the "clear and objective" requirement to housing development on land that is not buildable land. Rather, according to petitioner, the "clear and objective" requirement in ORS 197.307(4)"still only appl[ies] to ‘buildable land.’ "

To assess petitioner’s statutory construction argument, we examine the text and context of ORS 197.307(4) as amended in 2017 and, to the extent it appears useful, the legislative history. TriMet v. Amalgamated Transit Union Local 757 , 362 Or. 484, 493, 412 P.3d 162 (2018). We begin with the statute’s text, which "is the most persuasive evidence of the legislature’s intent." Id. Again, the pertinent part of the amended statute provides:

"Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. * * *"

ORS 197.307(4).

Nothing in the wording of that provision suggests that the requirement that local governments regulate housing development only through "clear and objective" standards applies only to housing development on "buildable land." To the contrary, ORS 197.307(4) plainly states that the "clear and objective" requirement applies broadly to local governments’ application of standards, conditions, and procedures "regulating the development of housing" generally, including "needed housing." Reading that provision to apply only to housing that is developed on buildable land would impermissibly insert a limitation on the provision’s scope, in violation of ORS 174.010 (in construing a statute, a court should "ascertain and declare what is * * * contained therein" and should not "insert what has been omitted").

Consideration of context, including the previous version of ORS 197.307(4), does not change our view of the provision’s meaning. See State v. Spainhower , 251 Or. App. 25, 28, 283 P.3d 361 (2012) (context "includes prior versions of the statute"). The 2017 legislature expressly deleted the reference to "buildable land" from ORS 197.307(4), supporting our view that subsection (4) no longer relates only to development that occurs on that category of land. Or. Laws 2017, ch. 745, § 5. Moreover, other aspects of the 2017 legislation also reflect an intention to promote certain housing development. For example, the legislation includes provisions that, under specified circumstances, impose relatively short timelines for processing applications for development of affordable multifamily housing, prohibit counties from reducing the density associated with certain proposed housing developments, redefine "needed housing" to expressly address "affordab[ility] to households within the county with a variety of incomes," require certain municipalities to allow accessory dwelling units, and permit places of worship to use their real property to provide affordable housing. Or. Laws 2017, ch. 745, §§ 1, 2, 3, 4, 6, 7, 8. Each of those provisions may be viewed as promoting housing development—a goal that is consistent with making the "clear and objective" standard in ORS 197.307(4) applicable to housing development generally, not only to development of housing on "buildable land."

Nonetheless, in arguing that context...