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Crowley v. City of Hood River

Court of Appeals of Oregon

September 26, 2018

Susan Garrett CROWLEY, Petitioner,
v.
CITY OF HOOD RIVER, Mid-Columbia Housing Authority, and Columbia Cascade Housing Corporation, Respondents.

          Argued and submitted April 27, 2018

          Land Use Board of Appeals 2017071

          Susan Garrett Crowley argued the cause and fled the brief pro se.

          Daniel Kearns and Jennifer Bragar argued the cause for respondents. Also on the joint brief were Reeve Kearns, PC, and Tomasi Salyer Martin.

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

         Case Summary: Petitioner seeks review of a Land Use Board of Appeals (LUBA) order that affirmed the City of Hood River's decision to approve a zone change to a city park from Open Space/Public Facilities to Urban High Density Residential. In affirming the city's decision, LUBA deferred to the city's interpretation of a provision within the Hood River Comprehensive Plan regarding the use of existing park sites. On review, petitioner argues that LUBA erred in deferring to the city because the city's interpretation of the policy was inconsistent with the policy's express language, purpose, and underlying policies. Held: LUBA's order was unlawful in substance 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.

         Reversed and remanded.

         [294 Or.App. 241] SHORR, J.

         In this land use case, petitioner, a citizen of Hood River, 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 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 197.829CL)[1] and Siporen v. City of Medford, 349 Or. 247, 259, 243 P.3d 776 (2010). On review, 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, purpose, and underlying policies. 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 petitioner's second and third assignments of error. We therefore reverse and remand.

         We take the uncontested facts from LUBA's order. Reinert v. Clackamas County, 286 Or.App. 431, 432, 398 P.3d 989 (2017). The property at issue in this case is Morrison Park, a city park that was zoned OS/PF under Goal 8 of the HRCP, which 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."

         [294 Or.App. 242] On August 24, 2015, the city council adopted and incorporated into the HRCP a new Buildable Lands Inventory and a Housing Needs Analysis, which concluded that the city had enough land within its urban growth boundary to meet expected growth within the next 20 years, but noted that the city's supply of land zoned for high-density residential land is limited. The reports indicated that, if growth exceeds expectations, the city will exhaust its supply of buildable land. Among other solutions, the Housing Needs Analysis recommends that the city identify "surplus city land for development of government-subsidized housing[.]" 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 Morrison Park from OS/PF to R-3. The planning commission conducted three public hearings, and ultimately voted to recommend approval of the zone change. The city council subsequently conducted two public hearings on the recommendation and, on May 22, 2017, voted to approve the rezone. In doing so, the city rejected the argument that Goal 8 Policy 1 precludes the rezoning of Morrison Park 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. The city explained:

"We interpret this policy as providing a tool that the City can use to protect its parks from near-by incompatible uses through zoning of surrounding lands and permit reviews for near-by properties. The definition of 'protect' in the Comprehensive Plan supports our interpretation because [294 Or.App. 243] the focus of the term protect is on 'future intended use.' As we make clear in this decision, our 'future intended use' for this property is an affordable housing project. We reject any interpretation of this policy that suggests the City Council cannot rezone a park to some non-park designation."

         Ultimately, the city concluded that Goal 8 Policy 1 is irrelevant to the city's application to rezone Morrison Park from OS/PF to R-3.

         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 the park sites themselves. Petitioner contended that the city's interpretation impermissibly inserted into the policy a qualification-incompatible uses on other properties-that was omitted.[2] Petitioner also argued to LUBA that the city's interpretation was inconsistent with the purpose of the goal and the policies underlying the goal, which are to preserve public spaces. Petitioner relied on other goals-such as Goal 5 (Open Spaces, Scenic and Historic Areas and Natural Resources) and Goal 4 (Forest Lands)-as context for a more ...


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