Medford Walmart heads towards Oregon Supreme Court
Medford Citizens for Responsible Development, 11.12.2009 23:21
Medford, Oregon, December 11, 2009--Medford Citizens for Responsible Development (MCRD) has not given up on the fight against powerful Walmart's legal team and the Superstore planned for South Medford. The fight continues and so do the worries about traffic congestion. Building such a monster store will bring on a super traffic nightmare, yet Medford refuses to do a traffic study which is required in their code. The area is already becoming a traffic nightmare even without building a Walmart Superstore.
MCRD has now petitioned the Oregon Supreme Court requesting a review of the earlier Court of Appeals Decision to Overturn a LUBA Ruling in the Matter of Requiring a Traffic Study for the Wal-Mart Superstore. (LUBA is Oregon's Land Use Board of Appeals)
We anticipate a decision by the Court to consider our appeal within 30 to 60 days.
Attached below is the petition for review delivered by MCRD's attorney to the Oregon Supreme Court earlier this week.
Superstore = Supertraffic
MCRD's argument is that the Supreme Court ruled in a case in 1992, Clark v. Jackson County, 313 Or 508, that LUBA and other judicial bodies must give due consideration to conflicting interpretations of land use laws before making decisions regarding them. The Oregon Court of Appeals, in deciding previous cases involving conflicting interpretations of land use regulations, used a "not clearly wrong" standard, which deferred to the interpretation of local governmental bodies. This standard was considered inadequate and was superseded, and subsequently a differing standard was codified by the Legislature as ORS 197.829.
MCRD contends that a standard of "plausibility" used by the Oregon Appeals Court, which gives deference to the local governmental interpretation if it is "plausible", is little different in principle or effect from that of the "not clearly wrong" standard, and should also be found to be inadequate, and overturned.
This argument is that where there are two differing interpretations of a land use statute (including those embodied within a city code), the standard which should be used is the: "interpretation (which) is most consistent with the text and context of the land use regulation at issue."
The attached legal filing provides a brief but remarkably clear set of arguments as to why the standard should be "text and context" rather than "plausibility", and it is based upon the contention that the "plausibility" standard is a "shorthand" interpretation that does not fulfill the requirements of case law, and has not been consistently applied by the Oregon Appeals Court. In summary, MCRD's appeal to the Oregon Supreme Court is that a "plausibility" standard is unfair because it permits the local governmental body to interpret land use regulations arbitrarily and inconsistently.
We anticipate a decision by the Court to consider our appeal within 30 to 60 days.
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INDEX OF CONTENTS
I. Historical and Procedural Facts 2
II. Legal Questions Presented on Review 4
III. Proposed Rules of Law 4
IV. Reasons Review Should Be Allowed 5
V. Legal Arguments 6
INDEX OF APPENDICIES
1. Court of Appeals November 4, 2009 decision (Reversed) App - 1
2. LUBA decision App - 2
INDEX OF AUTHORITIES
Cases
Church v. Grant County, 187 Or App 518 (2003) 7, 8, 9
Clark v. Jackson County, 313 Or 508 (1992) 3, 7, 8
Foland v. Jackson County, 215 Or App 157 (2007) 9
Goose Hollow Foothills League v. City of Portland, 117 Or App 211, 217 (1992) 7, 8
Hodge v. Lincoln County, 194 Or App 50 (2004) 9
Huntzicker v. Washington County, 141 Or App 257, 261 (1996) 8
Just v. City of Lebanon, 193 Or App 121 (2003) 9
PGE v. BOLI, 317 Or 606 (1993) 7, 8, 9
Siporen v. City of Medford, __Or App__, (2009), (A142541) 3, 4, 9, 10
Siporen v. City of Medford, Or LUBA , (LUBA No. 2006-124, September 7, 2007) 4
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Siporen v. City of Medford, __Or LUBA __, (LUBA No. 2008-185, June 1, 2009) 4
Wal-Mart Stores, Inc. v. City of Medford, 49 Or LUBA 52 (2005) 3
Statutes
ORS 197.829 3, 5, 6, 7, 8, 9, 10
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I. Historical and Procedural Facts
This case presents the opportunity for the Supreme Court to clarify and standardize the
application by the Land Use Board of Appeals and the Court of Appeals of ORS 197.829 and the
Court’s decision in Clark v. Jackson County, 313 Or 508 (1992). Since the Court’s decision in
Clark, the Court of Appeals has attempted to streamline its application by implementing two
shorthand standards. The first was the “not clearly wrong” standard. The Court ultimately found
that standard lacking and retreated from it. The second is the Court of Appeal’s new shorthand
standard, the “plausibility” rule – announced in the appealed decision. Neither one of these
shorthand standards adequately reflects the requirements of ORS 197.829 or Clark.
The Court of Appeals decision in Siporen v. City of Medford, __Or App__, (2009),
(A142541) is the culmination of a trilogy of LUBA decisions dating back to 2005. In 2004, the
Medford City Council denied Wal-Mart’s application for a 206,533-square foot retail store on
20.51 acres in the city. That decision was appealed by Wal-Mart and LUBA remanded the
decision for various reasons. Wal-Mart Stores, Inc. v. City of Medford, 49 Or LUBA 52 (2005)
(“Wal-Mart I”). Among other deficiencies in the city’s decision, LUBA identified problems
with the city’s findings on the question of whether a traffic impact analysis was required by the
city’s development ordinance. The Board stated:
Although the findings state that the adequacy of public facilities is determined
only at the time of a zone change, the findings fail to explain why MC 10.462
applies only when the zoning is changed and not also at the time an application
for site plan and architectural review approval is submitted. * * * On remand, the
city must address MC 10.462 and either apply that provision to the disputed
application or explain why it does not apply. Wal-Mart I at 64.
On remand, the city reversed its decision and approved Wal-Mart’s application. Petitioners
appealed, and LUBA once again remanded on procedural grounds. Siporen v. City of Medford,
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Or LUBA , (LUBA No. 2006-124, September 7, 2007), (“Wal-Mart II”). In that decision,
LUBA held that the city had prejudiced petitioners’ substantial rights by refusing to allow them
to testify on traffic related issues during the city’s remand proceedings. One of the issues that
petitioners desired to comment upon was whether the city’s development code required a traffic
impact analysis at the time of site plan review. In order to restore petitioners’ quasi-judicial
rights, the Board found:
On remand the city will be required to conduct additional evidentiary proceedings to
provide petitioners with the substantial rights they were deprived in the city’s remand
proceedings, and the city presumably will be required to adopt new or supplemental
findings at the conclusion of those proceedings. Wal-Mart II at slip op. 26.
On remand for the second time, the city adopted findings attempting to explain why the
Medford code did not require a traffic impact analysis for the Wal-Mart store. Petitioners
appealed the city’s decision, and LUBA remanded again finding that the city failed to show that
the text and context of the city’s code supported its position that a traffic impact analysis is only
required at the time of rezoning. Siporen v. City of Medford, __Or LUBA __, (LUBA No. 2008-
185, June 1, 2009), (“Wal-Mart III”). In that case, LUBA found:
Under ORS 197.829(1), Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992)
and Church v. Grant County, 187 Or App 518, 69 P3d 759 (2003), the city council’s
interpretation and our review of that interpretation are guided by the principles
articulated in PGE v. Bureau of Labor and Industries. Our review in this case begins
and ends with the text of MLDC 10.290(2) and the contextual sections of the MLDC
that the city council relied on. We are mindful that under Clark and Church LUBA is
to give the city council “some deference.” Wal-Mart Stores, Inc. v. City of Oregon
City, 204 Or App 359, 364-65, 129 P3d 702 (2006). But the city’s interpretation finds
almost no support in that text. Given the paucity of textual support for the city’s
interpretation of MLDC 10.290(2), we cannot defer to that interpretation. Slip op. at
16.
It is this LUBA decision that the Court of Appeals reversed in Siporen v. City of Medford, __Or
App__, (2009), (A142541). There, the Court of Appeals found that despite the paucity of textual
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support for the city’s interpretation, it was “plausible” and therefore, both LUBA and the Court
were required to defer to it under ORS 197.829.
II. Legal Questions Presented on Review
1. Must LUBA defer to a local government’s interpretation of its own land use regulations
under ORS 197.829(1) 1 where that local government interpretation is merely plausible rather
than consistent with the text and context of the provisions being interpreted?
2. Must LUBA defer to such plausible interpretations even where participants in the land
use process argue a more rational interpretation which shows the local government interpretation
is inconsistent with the subject code provisions and the relevant provisions of the comprehensive
plan and zoning code?
III. Proposed Rules of Law
1. Where LUBA is presented with two conflicting interpretations of a local government land
use regulation, it need not automatically defer, under ORS 197.829, to the local government
interpretation simply because that interpretation is plausible.
2. Where alternative interpretations of the same land use regulation undermine the local
government interpretation and are more harmonious with the comprehensive plan and zoning
code, LUBA may determine which interpretation is most consistent with the text and context of
the land use regulation at issue
1 1) The Land Use Board of Appeals shall affirm a local government’s interpretation of its comprehensive
plan and land use regulations, unless the board determines that the local government’s interpretation:
(a) Is inconsistent with the express language of the comprehensive plan or land use regulation;
(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation;
(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or
land use regulation; or
(d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or
land use regulation implements.
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IV. Reasons Review Should Be Allowed
This case presents significant issues of law. The correct application of ORS 197.829 is
central to insuring that local governments follow their own comprehensive plans and land use
regulations which in turn implement the state wide land use system indentified in ORS Chapters
197, 215 and 227.
The application of ORS 197.829 is an issue which arises often in local land use decisions
and is a consideration for LUBA in a significant number of the cases it hears each year.
The citizens of almost every city and county in the state are directly affected by the land
use decisions made by their elected officials. Thousands of discretionary land use decisions are
made in the state each year, and a majority of those involve some level of interpretation of local
comprehensive plans and zoning ordinances.
The correct application of ORS 197.829 is an issue of state law.
Petitioners have properly preserved the legal questions presented in this petition. The
case is free from factual disputes or procedural obstacles that might prevent the Supreme Court
from reaching the legal issue.
The record before the Court of Appeals in this case squarely presents the questions of law
identified above.
The Court of Appeals’ case law on the application of ORS 197.829(1) has been
inconsistent because the Court has twice attempted to impose a shorthand standard for the
implementation of ORS 197.829(1). After the statute was adopted by the Legislature in 1993,
the Court imposed a shorthand standard for its application by ruling that LUBA must defer to a
local government’s code interpretation unless the board found that the code interpretation was
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“clearly wrong.” Goose Hollow Foothills League v. City of Portland, 117 Or App 211, 217
(1992). About a decade later, the Court rejected that shorthand standard in Church v. Grant
County, 187 Or App 518 (2003), in part because the shorthand standard was found to be
inconsistent with ORS 197.829. Now, the Court has once again adopted a shorthand
“plausibility” standard. It is very likely that this new “plausibility” standard will work no better
than the prior “not clearly wrong” standard, and the Court in a few years will find that it needs to
retreat from this new standard as well.
The issue of the correct application of ORS 197.829(1) is well presented in the briefs
before the Court of Appeals.
The Court of Appeals decision was not en banc.
The Court of Appeal’s decision is wrong because the new “plausibility” shorthand
standard for applying ORS 197.829(1) side steps a determination of whether the local
government’s interpretation is consistent with the text and context of the provision are consistent
with the principles set forth in PGE v. BOLI, 317 Or 606 (1993). It also focuses solely on the
local government’s interpretation and ignores or discounts alternative interpretations offered by
other participants to the land use proceeding.
V. Legal Arguments
The Court of Appeals decision in Siporen v. City of Medford is inconsistent with prior
Court of Appeals’ rulings on the application of ORS 197.829(1).
The legal principle set forth in ORS 197.829(1) was first articulated by this Court’s
decision in Clark v. Jackson County, 313 Or 508 (1992). In Clark, the Court ruled that LUBA’s
role in reviewing local government code interpretations is to:
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* * * [a]ffirm the county’s interpretation of its own ordinance unless LUBA determines
that the county’s interpretation is inconsistent with express language of the ordinance or
its apparent purpose or policy. LUBA lacks authority to substitute its own interpretation
of the ordinance unless the county’s interpretation was inconsistent with that ordinance,
including its context. Id. at 515.
The following year, the Oregon Legislature codified the Court’s decision in ORS
197.829.
Thereafter, the Court of Appeals quickly developed its first shorthand standard for
applying ORS 197.829. This standard was articulated in Goose Hollow Foothills League v. City
of Portland, 117 Or App 211, 217 (1992) where the Court ruled “[t]he question under Clark for
LUBA and us, as to both the city’s determination that the provisions were in conflict and of how
to reconcile them, is not whether the city’s was ‘right’ but whether it was clearly wrong.”
Several years after Goose Hollow, the Court of Appeals admonished LUBA for independently
applying the statutory construction method identified in PGE v. BOLI because that test is
intended to find the “right” interpretation for a statutory rule or provision. In Huntzicker v.
Washington County, 141 Or App 257, 261 (1996), the Court found that LUBA should not have
determined whether the county’s interpretation made sense applying the “general rules of
statutory construction” because that was not the test imposed by Clark. The Court held:
The rules of statutory construction, as explained in PGE, are designed to arrive at a ‘right’
understanding of the meaning of an enactment. Although it might be abstractly correct
that, if an interpretation is right, it cannot be wrong, the converse is by no means true:
LUBA’s and our post-Clark cases amply illustrate that there are many points on the
continuum between “right” and ‘clearly wrong.”
The Court’s “not clearly wrong” shorthand standard essentially remained in place until 2003
when the Court retreated from it significantly. In Church v. Grant County, 187 Or App 518
(2003), the Court reiterated the holding from Clark quoted above and recalibrated its approach to
implementing ORS 197.829. The Court held:
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We continue to believe that that standard of review is mandated by Clark. We note,
however, that we have summarized that standard of review as requiring that a local
government's interpretation of its code is not reversible unless it is "clearly wrong."
Schwerdt v. City of Corvallis, 163 Or App 211, 218, 987 P2d 1243 (1999); Goose Hollow
Foothills League v. City of Portland, 117 Or App 211, 217, 843 P2d 992 (1992). We now
conclude that that shorthand summary of the standard of review is not precisely
consistent with Clark . The specific language from Clark describing the proper scope of
review is that "LUBA is to affirm the county's interpretation of its own ordinance unless
LUBA determines that the county's interpretation is inconsistent with express language of
the ordinance or its apparent purpose or policy." 313 Or at 515. To the extent our
summary description of the standard of review under Clark suggests that LUBA must
sustain all but the most unreasonable interpretations of local land use controls, that
description is inaccurate. The legitimacy of an interpretation of a local plan and ordinance
provision depends on its consistency with the terms of the provision, the context of the
provision, and the purpose or policy behind the provisions. Conversely, the validity of the
interpretation is not determined solely by the reasonableness of an argument created to
support it. The Clark decision and ORS 197.850(9), which was enacted after Clark, are
more correctly characterized as consistent with the rules of construction announced in
PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Id. at 524.
Emphasis added.
The Court went on to say that the application of ORS 197.829 must be consistent with the
holding quoted above.
In reaching its holding in Church, the Court strongly implies that prior decisions in which
the “not clearly wrong” shorthand standard was applied may have been wrongly decided. In post
Church cases, the Court of Appeals has both abandoned the shorthand “not clearly wrong”
standard and has tested local government interpretations, and LUBA’s review of them, using the
principles set forth in PGE v. BOLI, and ORS 197.829. More often than not, the Court has
affirmed LUBA’s underlying decision. See, Hodge v. Lincoln County, 194 Or App 50 (2004),
Just v. City of Lebanon, 193 Or App 121 (2003), and Foland v. Jackson County, 215 Or App 157
(2007).
The Court’s decision in Siporen v. City of Medford, __Or App__, (2009), (A142541),
departs sharply from the Court’s post-Church cases and reimposes a shorthand standard for
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reviewing LUBA decisions under ORS 197.829. The Court’s new shorthand standard is a
“plausibility” standard. The Court announced its new shorthand standard as follows:
Thus, on review in this case, our task is to determine whether, based on the
express language of the code, the city's interpretation concerning the applicability of
MLDC 10.462 is "plausible" in light of the interpretive principles of PGE. Foland, 215
Or App at 164 (emphasis added). That is, LUBA's task--and now ours in reviewing
whether LUBA's order comports with ORS 197.829(1)(a)--is not to determine whether
the city's interpretation of its code was "correct" in some absolute sense of choosing
among various plausible interpretations, but, instead, merely whether that interpretation
satisfied PGE's first level threshold of plausibility. If it does, then, under ORS
197.829(1)(a), LUBA should have, and we must, sustain that interpretation, even if
another interpretation might be "better" or more sensible or persuasive. App-1 at 16.
How this new “plausibility” standard is different from the old shorthand “not clearly wrong”
standard is not explained. However, what is clear is that the Court desires to only focus on the
local government interpretation of the contested land use regulation – and to nearly eliminate the
relevance of argument and evidence from other participants in the land use proceeding which
demonstrate alternative interpretations. The Court’s new standard is inconsistent with the
Court’s prior holding in Church and departs from its post-Church decisions as well. By focusing
on the “plausibility” of the local government’s interpretation in isolation it implements a standard
in which the bar is set so low as to essentially return the application of ORS 197.829 to
shorthand “not clearly wrong” standard that this same Court has so recently rejected.
Below, petitioners argued to the Court and demonstrated in their brief that the City of
Medford’s interpretation of key provisions of its zoning and development code were in fact
inconsistent with the text and context of the code. In particular, Petitioners showed that the six
sections of the Medford development ordinance were necessarily interrelated and could not
operate independently.2 Petitioners also argued and demonstrated that in order to find the city’s
2 Petitioners argued that LUBA had found this to be true as a matter of fact. Neither the Respondents nor
the Court disputed this.
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interpretation to be consistent with the text and context of the development code, the Court
would have to agree with the city’s interpretation of the defined term “development.” The city’s
interpretation of the defined term “development” necessitated adding the word “rezoning” to the
definition where that word did not exist. This, petitioners argued, clearly violates rules of
statutory construction set forth in ORS 174.010. Petitioners contend here that their arguments
made to the Medford city council and LUBA do not simply represent an alternative interpretation
of the city’s development code, but are arguments which undermine and contradict the city’s
interpretation to such an extent that it is not possible for the city to reach the interpretation it did
consistent with the text and context of the subject land use regulations. The Court of Appeals
erred by viewing petitioners’ arguments as nothing more than an alternative reading of the
zoning code. By focusing on whether the city’s interpretation was “plausible,” the Court ignored
or discounted substantial evidence and argument in the record that supported LUBA’s finding
that the city’s code interpretation has almost no support in the text and context of the applicable
code provisions..
For the foregoing reasons, Petitioners respectfully request that the Court take review of
the Court of Appeals’ decision Siporen v. City of Medford, __Or App__, (2009), (A142541).
Respectfully submitted this ____ day of December, 2009.
_________________________
Kenneth D. Helm, OSB # 955170
Of Attorneys for Petitioners Ivend Holen and
Medford Citizens for Responsible Development
