Friends of the Metolius v. Jefferson County

DURHAM, J.,

concurring.

I agree with the lead opinion that, under the vestigial scope of review that remains after Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992), we are compelled to accept the county’s interpretations of the ordinance. I write separately to note that, if meaningful review of the kind that predated Clark were possible, the county’s failure to apply the density requirements for single-family dwellings could not be sustained.

The units that respondents propose to install are both traveler’s accommodations and single-family dwellings. The county’s order appears to admit as much, but then goes on to apply only the standards for approving traveler’s accommodations, because the “use proposed for the cabins is as * * * traveler’s accommodations.” In other words, the county *262has “interpreted” the ordinance to make the applicable approval criteria depend on the applicants’ stated intention of what they will do with the cabins, rather than on what the cabins are. The fallacy in that interpretation is graphic in the light of section 1001, which expressly contemplates that one facility can embody two separate “uses” and, when it does, the criteria for approving the more restricted use apply.

However, it is impossible for us to say that the interpretation is “clearly wrong,” and thus reversible under Clark. See Goose Hollow Foothills League v. City of Portland, 117 Or App 211, 217, 843 P2d 992 (1992). There are too many provisions and too many interpretations that enter into the county’s rationale for us to reject its end result.1 For example, as the lead opinion indicates, we cannot ascribe clear error to the county’s reliance on the ordinance provision that ostensibly makes its conditional use approval criteria exclusive for the proposal to alter this existing conditional use. Nevertheless, were it not for Clark, that reliance could and would be readily rejected. It is a transparent device for bolstering the county’s assiduous efforts to remove the single-family dwelling approval criteria from the picture, although respondents’ proposal is for the installation of single-family dwellings.

We suggested in Goose Hollow Foothills League v. City of Portland, supra, 117 Or App at 217, that the sheer number of separate provisions in local land use legislation, which can arguably be read as applying to any given land use decision, makes “local interpretation” an open-ended exercise that can seldom fail the Clark test. Similarly, we said in Westv. Clackamas County, 116 Or App 89, 93, 840 P2d 1354 (1992), that the ordinance there “contains a grab bag of [arguably relevant] provisions” and, under Clark, “the selection from the grab bag is for the local deciding entity to make.”

This case does not appear to involve acknowledged local provisions that directly implement specific requirements of the statewide planning goals. However, the interpretive latitude that local governments now enjoy could as *263readily be applied to provisions of that kind as to those in question, with the effect that local legislation that complies facially with the goals is applied in a manner that violates them.2 Accordingly, this case illustrates the accuracy of our prediction in Cope v. City of Cannon Beach, 115 Or App 11, 18, 836 P2d 775 (1992), aff’d, on unrelated grounds 317 Or 339, 855 P2d 1083 (1993): Clark “may well have the effect of making post-acknowledgment compliance with state law a matter of local option.”

Because Clark does not allow otherwise, I agree that the local interpretation must be upheld.

Over and above the provisions that it was necessary for the lead opinion to mention specifically, the county’s order and the parties’ arguments touch on numerous provisions in four separate articles of the zoning ordinances, as well as language in an appendix to the county comprehensive plan.

State statutes, unlike the goals, remain directly applicable to post-acknowledgment land use decisions by local governments. Forster v. Polk County, 115 Or App 475, 839 P2d 241 (1992).