FILED: April 20, 2005
IN THE COURT OF APPEALS OF THE STATE OF OREGON
and JOHN FOSTER,
CITY OF CORVALLIS
2004-091, 2004-093; A126868
Judicial Review from Land Use Board of Appeals.
Argued and submitted January 24, 2005.
Bill Kloos argued the cause for petitioner. With him on the brief was Law Office
of Bill Kloos, PC.
Jim Brewer argued the cause for respondent City of Corvallis. On the brief were
David E. Coulombe and Fewel & Brewer.
Michael J. Lilly argued the cause and filed the brief for respondent Group
Before Landau, Presiding Judge, and Brewer, Chief Judge,* and Armstrong,
LANDAU, P. J.
*Brewer, C. J., vice Leeson, J. pro tempore.
LANDAU, P. J.
This land use case comes to us with a history that is complex and saturated
with land use planning jargon. But the heart of the dispute involves a relatively
straightforward issue about whether the text of a comprehensive plan takes precedence
over the colors on a comprehensive plan map. The Land Use Board of Appeals (LUBA)
concluded that the text controls, and we agree. We therefore affirm.
Home Depot proposed to build a new store in the Corvallis area, located on
a 17.5-acre portion of an existing business park known as the Corvallis Station site. The
development required approval of, among other things, a zone change, a tentative
subdivision plat, and a sign variance. It is the zone change that is the subject of the
dispute before us now.
The context for the needed zone change is a complicated comprehensive
plan scheme, which includes a plan base designation with plan overlays. LUBA
described the comprehensive plan scheme in the following terms:
"The city uses comprehensive plan base map designations and
applies comprehensive plan map overlay designations to those
comprehensive plan base map designations. The city also employs zoning
base districts and applies zoning overlay districts to those zoning base
districts. To make things even more complicated, the same terminology is
sometimes used for both plan map designations and zoning map districts.
We set forth the comprehensive plan map designations that are at issue in
these assignments of error in the margin, along with their acronyms, to
provide a common point of reference and in an attempt to avoid confusion
in our discussion of those designations below."
Staus v. City of Corvallis, ___ Or LUBA ___, ___ (LUBA Nos 04-091, 04-093, Nov 16,
2004) (slip op at 12) (emphasis in original).
In a footnote, LUBA then set out the following designations:
Plan Base Designations Plan Overlay Designations
"General Industrial (GI Research Technology (RT)
"Light Industrial (LI) Planned Development (PD)
Regional Shopping Center (RSC)"
Id. at ___ n 12 (slip op at 12-13 n 12). It is undisputed that, in the 1980 comprehensive
plan, the Corvallis Station site carried an LI plan base designation and an RSC plan
At some point after 1980, the city began using the GI plan base designation
in place of the LI plan base designation. The comprehensive plan map, however, did not
reflect that change. Meanwhile, in 1993, the city council approved a plan map
amendment that replaced the RSC plan overlay designation with an RT designation for an
area that included the Corvallis Station site. Five years later, the 1998 comprehensive
plan reflected the RT plan overlay designation with a color on the new comprehensive
plan map. But the new map did not identify the base designation.
The city approved the Home Depot proposal, including a requested
rezoning of the Corvallis Station site to GI with a PD overlay. Petitioner Joan Rose
appealed to LUBA, arguing that, among other things, the city could not lawfully rezone
the subject property without a comprehensive plan amendment. According to petitioner,
the subject property actually has a plan base designation of RT, as shown on the 1998
comprehensive plan map. As a result, she argued, the city is obliged to change the base
designation in the comprehensive plan before it may rezone the property. The city
responded that, although there may be some ambiguity arising from the way that the
comprehensive plan map apparently was colored, the fact remains that the text of the
comprehensive plan describes RT as an overlay, not a plan base designation. The city
pointed out that a particular comprehensive plan policy--numbered 8.9.7--directs the
creation of an RT "district," which the city routinely uses as a synonym for a "zone," not a
base plan designation. The fact that the 1998 comprehensive plan map shows that the
Corvallis Station site is colored RT, the city insisted, does not mean that the plan base
designation is RT. According to the city, there simply is no authority in the text of the
comprehensive plan for treating RT as a plan base designation. Petitioner acknowledged
that the comprehensive plan text does not include a reference to treating RT as a plan base
designation. She argued that the text must have been inadvertently omitted.
LUBA rejected petitioner's argument. After reviewing the foregoing history
of the parcel's designation, the relevant portions of the plan, and the parties' arguments,
LUBA concluded that the comprehensive plan, as it pertains to the issues in this case, is
"exceedingly ambiguous." In light of that ambiguity, LUBA continued, the dispositive
question is whether the city's interpretation of the relevant ordinances is reasonable.
LUBA concluded that it is. ___ Or LUBA at ___ (slip op at 16-21).
On review, petitioner argues that LUBA erred "in relying on ambiguity
about the meaning of the RT plan designation to defer to a city interpretation that
concludes that the RT does not exist as a base plan designation." (Emphasis in original.)
As we understand it, petitioner's argument is that LUBA relied on a nonexistent conflict
between the text of the comprehensive plan and the 1998 comprehensive plan map. She
"in order to determine whether the RT plan designation exists as a base plan
designation, LUBA inquired into the meaning of the RT plan designation.
Finding ambiguity about its meaning through the absence of descriptive
language in the comprehensive plan, the Board deferred to the city's
interpreting away its existence. This conflicts, fatally, with the text and
context of the plan, which confirm that the RT designation exists as a base
The city and respondent Group MacKenzie argue that petitioner's argument
amounts to mere question-begging; it makes sense only if it is assumed that, by virtue of
the coloration of the 1998 comprehensive map, the city created an RT plan base
designation in the first place. If that conclusion is not merely assumed, respondents
argue, there is an apparent conflict between the text of the comprehensive plan and the
coloration of the map. That ambiguity, respondents insist, must be resolved in favor of
the city's interpretation, as it is not inconsistent with the wording of the plan or any other
source of law.
At the outset, we note that none of the parties has cited any plan provision
or other city ordinance that speaks to resolving ambiguities in relevant land use texts.
Our own review of the plan provisions in the record reveals no such interpretive aid to
guide the reader when seeking to resolve inconsistencies between, say, the comprehensive
plan text and the plan map.
The text of the plan itself, however, expressly identifies LI and GI as plan
base designations. RT is not listed as a base plan designation. Instead, it is expressly
listed as an overlay. There is, as respondents correctly assert, nothing in the text of the
plan that refers to RT as a base plan designation.
In addition, comprehensive plan policy 8.9.7 states that the city is to
designate RT as a distinct industrial district, and, as LUBA noted, it appears that the city
uses the term "district" to refer to a zone or overlay of the plan base designation in the
plan. In any event, had the drafters of the policy intended that the RT designation
function as a plan base designation, the policy would seem to be unnecessary.
In short, there is nothing in the text of the comprehensive plan that supports
petitioner's argument that RT actually amounts to a plan base designation. Her only
argument appears to be that the coloration of the map somehow takes precedence over the
text of the comprehensive plan. She cites no authority for that proposition, and we are
aware of none. Certainly nothing in the comprehensive plan suggests that the coloration
of the map has that effect. We therefore conclude that LUBA correctly determined that
the city's interpretation of relevant ordinances was reasonable.