dissenting.
The majority’s opinion in this case demonstrates again the difficulty that the test articulated in Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992), causes in determining whether deference must be given to a local government’s interpretation of its own land use ordinances. In Clark, the court said:
“If a county has construed an ordinance in a manner that clearly is contrary to the enacted language, LUBA acts within its scope of review in finding that the county improperly construed the applicable law.” 313 Or at 514.
Here, there is express language in the ordinances governing approval of planned unit developments that says:
“Commission approval of the outline development plan shall constitute only a provisional approval of the planned unit development contingent upon approval of the preliminary development plan.” Section 6.110(3). (Emphasis supplied.)
“The Commission, having previously provisionally approved the proposed planned unit development shall then either reapprove, disapprove or reapprove with modifications the planned unit development based on the preliminary development plan.” Section 6.130(1). (Emphasis supplied.)
The county says that those provisions do not mean what they say, because the decision on the outline development plan about compliance with the comprehensive plan and zoning ordinance requirements is final. It explains:
“After a Development Proposal is given provisional approval at the Outline Plan stage, the developer should be entitled to rely on that approval and proceed with detailed and expensive engineering design work.
*15“At least to the extent a Development Proposal does not change between review stages in the PUD process, the applicant should be able to rely on the fact that issues resolved at an earlier stage cannot be readdressed subsequently. * * *
<<$ * * * $
“Finally, the notion that all issues resolved at one stage of the PUD review process shall be not be raised at a subsequent stage is critical to the economic development of the County.”
Those may be good reasons for promulgating an ordinance that says that the decision for a planned unit development at the Outline Plan stage is final, but they are contrary to the express language of sections 6.110(3) and 6.130(1). If those were the only ordinances that were germane to the analysis, we should have no trouble saying that the county’s interpretation “clearly is contrary to the enacted language.”
However, the majority and LUBA uphold the county’s interpretation because of the language of section 3.030(4) that pertains to the approval of subdivisions:
“The approval or disapproval of the Outline Development Plan by the Commission shall be final unless the decision is appealed to the County Court. The approval or disapproval shall be binding upon the county relative to compliance with the comprehensive plan and applicable zoning provisions.”
Section 6.100 makes the procedure for review and approval of a planned unit development, “[e]xcept as otherwise set forth in this Article,” the same as the procedure for review and approval of subdivisions. In the light of the quoted language, the only reasonable interpretation of the ordinances must be that section 3.030(4) does not control approval of planned unit developments, because the express language of sections 6.110(3) and 6.130(1) is contrary to its “finality” provisions.
The county deems section 3.030(4) to be controlling because it is consistent with a policy of decision finality. The majority says that is just another example of “grab bag” decision making for which the local government is entitled to deference under Clark. Petitioner says:
“LUBA’s deference to the county’s construction of its ordinance is appropriate where an ordinance lends itself to more than one reasonable interpretation. Here, however, the *16county ordinance does not support its own or LUBA’s interpretation. * * *
“The public, other government agencies, businesses and other entities who may come calling should not have cause to fear that the ordinance does not mean what it says. Particularly, where a right of appeal may be affected, those approaching a county ordinance should be able to rely on the plain language of the ordinance.”
Petitioner is right. Land use ordinances are intended to govern volatile issues that affect the public as well as private property owners. If a county can arbitrarily pick and choose what part of an ordinance it wishes to apply without considering the context of the entire ordinance, and then rationalize that choice in a way inconsistent with principles of statutory construction, there becomes no definition or certainty in meaning that can effectively govern those issues. Petitioner correctly relied on the express language of the ordinance. Either the majority makes the wrong application of Clark to this case or the Supreme Court needs to clarify what it meant in Clark. Otherwise, applicants for land use permits will continue to find themselves in a standardless jungle of rule interpretation.
I dissent.