762 September 5, 2024 No. 635

IN THE COURT OF APPEALS OF THE

 STATE OF OREGON

Stanley ROBERTS 

and Rebecca Roberts,

Respondents,

v.

CITY OF CANNON BEACH,

Respondent Below,

and

HAYSTACK ROCK, LLC,

Petitioner.

Land Use Board of Appeals

2023066; A184314

Argued and submitted July 3, 2024.

William L. Rasmussen argued the cause for petitioner. 

Also on the brief were Steven G. Liday, Iván Resendiz 

Gutierrez, and Miller Nash, LLP.

Wendie Kellington argued the cause for respondents. 

Also on the brief were Kelly Huedepohl and Kellington Law 

Group, P.C.; and Sara Kobak and Schwabe, Williamson & 

Wyatt, P.C.

Before Egan, Presiding Judge, Kamins, Judge, and 

Walters, Senior Judge.

KAMINS, J.

Reversed in part and remanded.
Cite as 334 Or App 762 (2024) 763
764 Roberts v. City of Cannon Beach (A184314)

KAMINS, J.

Petitioner Haystack Rock, LLC (Haystack) seeks judicial review of a final order by the Land Use Board of Appeals 

(LUBA) remanding the City of Cannon Beach’s decision 

denying an application by respondents Stanley Roberts and 

Rebecca Roberts (applicants) for a development permit to construct a residence on their inaccessible oceanfront lot located 

on the face of an active landslide. Haystack raises four assignments of error, asserting that LUBA erred by: (1) affirming 

the city’s determination that the application complied with 

tree-protection code provisions; (2) reversing the city’s determination that the application did not satisfy the clear-vision 

criterion; (3) reversing the city’s determination that the application does not comply with the oceanfront setback standard; 

and (4) affirming the city’s conclusion that the statute requiring that “housing development” be subject to “clear and objective standards,” ORS 197.307(4) (2017),1

 applies to the development of a public right-of-way. For the reasons stated below, we 

affirm LUBA’s decision in all aspects but one; we agree with 

Haystack that LUBA erred in affirming the city’s determination that public right-of-way development regulations must be 

“clear and objective.” Therefore, we reverse LUBA’s order in 

part and remand for further proceedings.

Applicants’ property is located on a steep, vegetated 

oceanfront slope overlooking Haystack Rock. The property 

is bordered to the north and east by Haystack’s property, 

and to the south by the undeveloped Nenana Avenue rightof-way (Nenana ROW). The property does not have improved 

vehicular access.

Applicants have submitted several applications to 

develop the property, producing a somewhat complex procedural backdrop. In 2020, applicants applied to construct 

a new residence on the property as well as a “public” road 

over Nenana ROW that would provide dedicated access to 

the residence. The city denied the development permit for 

the proposed residence because the proposal did not comply 

with the oceanfront setback standard, and LUBA affirmed. 

1 Former ORS 197.307(4) (2017) was amended and renumbered as ORS 

197A.400(1) in 2023. Or Laws 2023, ch 533, §§ 1, 2. In this opinion, all references 

are to the version enacted in 2017.
Cite as 334 Or App 762 (2024) 765

On judicial review, we affirmed and upheld the oceanfront 

setback standard as clear and objective. Roberts v. City of 

Cannon Beach, 316 Or App 305, 307, 504 P3d 1249 (2021), 

rev den, 370 Or 56 (2022).

In 2021, applicants submitted the application at 

issue, proposing a redesigned development of the property. 

The application was submitted alongside an application for 

a right-of-way permit for development of a raised “private 

driveway” built on Nenana ROW, which the city shelved 

upon Haystack’s request that the city refrain from making 

a decision regarding the proposed easement until after the 

legal questions at issue in this case are resolved.2

 Despite 

the lack of vehicular access, the city’s former community 

director conditionally approved the application.

That decision was remanded by LUBA, because the 

city had not provided Haystack or the public with notice of 

the decision and an opportunity to appeal. On remand, the 

city reversed course and denied the application for two reasons: (1) it did not comply with the oceanfront setback standard, and (2) it failed to demonstrate compliance with the 

clear-vision standard. Applicants appealed to LUBA.

LUBA reversed the city’s two grounds for denying 

the application but sustained Haystack’s cross-assignment 

of error challenging the city’s failure to address the city standard prohibiting removal of stabilizing vegetation within 

the oceanfront management overlay zone. LUBA remanded 

the decision to the city for evaluation of that standard. Both 

parties seek judicial review.3

We review LUBA’s order to determine whether it 

is “unlawful in substance or procedure,” ORS 197.850(9)(a), 

and for “whether LUBA correctly applied the substantial 

evidence standard.” Tylka v. Clackamas County, 330 Or App 

247, 248, 543 P3d 743 (2024). “A LUBA order is unlawful in 

substance if it represents a mistaken interpretation of the 

applicable law.” Id.

2 Whether the city may grant such an easement is the subject of a separate 

appeal in Case No. A182356.

3 Haystack initiated the present petition, and applicants filed a petition in 

Roberts v. City of Cannon Beach, ___ Or App ___ (Sept 4, 2024) (affirming LUBA’s 

decision).
766 Roberts v. City of Cannon Beach (A184314)

In its first assignment of error, Haystack contends 

that the application did not comply with the tree-removal 

standards contained in the Cannon Beach Municipal Code 

(CBMC) and that LUBA erred in failing to reverse on that 

basis.

The CBMC allows for the removal of trees when 

constructing an approved structure or development, so long 

as certain criteria are met. CBMC 17.70.020. The developer 

must obtain a tree-removal permit, submitted under the 

direction of a certified arborist, that includes a site plan 

showing the location of the development and the location 

of the trees on the subject property. CBMC 17.70.030(Q)(1). 

The site plan must also include measures to avoid damaging trees not approved for removal. CBMC 17.70.030(Q)(2). 

Trees not approved for removal must be protected during 

construction by a tree-protection zone, such as a fenced-off 

buffer around the tree, where excavation, vehicular traffic, 

and storage of materials are prohibited. CBMC 17.70.030(Q)

(4). Under CBMC 17.04.557—a provision contained in the 

section of the code entitled “Definitions,” rather than the 

section entitled “Tree Removal and Protection”—the radius 

of a tree-protection zone must be at least two feet for every 

inch of the diameter of the tree’s trunk at four and one-half 

feet above grade.

Haystack argues that the tree-protection zones 

contained in applicants’ tree-removal plan failed to meet 

the requirements of CBMC 17.04.557. Applicants respond 

that LUBA was correct to affirm the city’s approval of the 

application—including the tree-removal plan—because that 

approval was conditioned on ongoing compliance with the 

city’s tree-removal standards.

We agree with applicants. They agreed to ongoing 

compliance with all applicable tree-protection and removal 

standards and have not removed any trees in violation of the 

city standards. The city approved the application subject to 

that ongoing compliance: “To the extent the City approves 

the application for development, it would have been subject to 

conditions to ensure the other provisions of this chapter are 

met.” That approval does not necessarily indicate that applicants are entitled to implement the site plan as it is currently 
Cite as 334 Or App 762 (2024) 767

depicted in the application; instead, as we understand it, it 

means that the application must proceed for later (and ongoing) determination of compliance with city standards, before

any tree removal occurs. And applicants’ consulting arborist explained the steps that will be taken to ensure ongoing 

compliance with the applicable tree-protection and removal 

requirements contained in the CBMC. Specifically, the arborist explained that a site plan will be submitted to implement 

mitigation measures and strategies to avoid damaging trees 

not proposed for removal, to limit the potential impact of 

excavation, soil compaction, and storage of materials.

Haystack argues that the radii of the tree-protection zones in the application’s current site plan are insufficient. See CBMC 17.04.557 (describing the mandatory 

dimensions for tree-protection zones). But the city’s approval 

of the application made clear that applicants are required to 

comply with city tree removal and protection standards, and 

Haystack does not identify any error in LUBA’s finding that 

there has been no tree-removal or tree-protection violation.

In its second assignment of error, Haystack challenges LUBA’s determination that the application satisfied the clear-vision criterion as a matter of law. Under 

the CBMC, a “clear-vision area shall be maintained on the 

corners of all property adjacent to the intersection of two 

streets.” CBMC 17.90.040(A). The CBMC provides additional 

detail on how to determine compliance. CBMC 17.90.040(B).

In assessing whether applicants satisfied the 

clear-vision criterion for the proposed intersection of the 

Nenana ROW and South Hemlock Street, the city found that 

applicants had not provided sufficient information to make 

that determination. Specifically, the city noted that applicants failed to provide civil engineering plans sufficient for 

the city’s engineers to assess whether the proposed intersection complied with the clear-vision requirement. LUBA disagreed. Rather than finding that the city’s conclusion was 

not supported by substantial evidence, LUBA found that 

the clear-vision criterion was satisfied as a matter of law 

because the only evidence in the record with respect to sight 

lines is applicants’ expert testimony and reports showing 

compliance.
768 Roberts v. City of Cannon Beach (A184314)

Haystack first contends that LUBA applied the 

incorrect standard of review. Haystack is correct that, in 

reviewing LUBA’s consideration of a local government’s factual findings, we ordinarily “examine whether LUBA has 

applied the proper substantial-evidence standard of review.” 

S. St. Helens, LLC v. City of St. Helens, 271 Or App 680, 682, 

352 P3d 746 (2015) (quoting Stevens v. City of Island City, 260 

Or App 768, 772, 324 P3d 477 (2014)). “[W]here LUBA has 

properly understood and applied the ‘substantial evidence’ 

test ** *, a reviewing court should affirm its order, notwithstanding the reviewing court’s disagreement with LUBA as 

to whether the evidence is ‘substantial.’” Younger v. City of 

Portland, 305 Or 346, 358-59, 752 P2d 262 (1988). “Thus, 

where LUBA properly articulates its substantial-evidence 

standard of review under ORS 197.835(9)(a)(C), we will not 

reverse its determination unless there is no evidence to support the finding or if the evidence in the case is ‘so at odds 

with LUBA’s evaluation that a reviewing court could infer 

that LUBA had misunderstood or misapplied its scope of 

review.’” Stevens, 260 Or App at 772 (quoting Younger, 305 

Or at 359).

In this case, however, LUBA went further than 

deciding that the city’s determination was not supported by 

substantial evidence and remanding to permit reconsideration. LUBA determined that the only decision that the city 

could reach was that the applicant had satisfied the clear-vision criterion as a matter of law. LUBA apparently applied 

the principle (a principle with which Haystack does not 

quarrel) that it is permitted to reverse a city’s denial of an 

application for failure to meet an approval criterion rather 

than remanding for further consideration, when the record 

demonstrates that the criterion was satisfied as a matter of 

law.4 Jurgenson v. Union County Court, 42 Or App 505, 510, 

600, 15 P2d 1241 (1979). In such a situation, LUBA takes 

up a question of law, and, consequently, in the course of 

4 Jurgenson, which was a writ-of-review proceeding, was decided before 

LUBA’s scope of review was established with the passage of ORS 197.835. Rather 

than ground its analysis in statute, the Jurgenson court analogized the denial of 

a land use application to a negligence case where a defendant who did not have 

the burden of proof presented no evidence but still prevailed. 42 Or App at 510. 

Neither party raises the issue or asks us to consider whether Jurgenson remains 

good law in light of the statutory changes.
Cite as 334 Or App 762 (2024) 769

considering whether LUBA’s order is “unlawful in substance,” ORS 197.850(9)(a), we consider whether it “represents a mistaken application of the applicable law.” Tylka, 

330 Or App at 248.

On that question, Haystack argues that LUBA was 

legally incorrect—that, as a matter of law, applicants did not 

submit information necessary to demonstrate compliance.

We disagree. Haystack does not identify what additional information is necessary to assess clear-vision compliance. At oral argument, Haystack suggested that the 

proposal is missing a stop sign, and that a stop sign is necessary to measure sight-line distances. But that argument 

was not raised below or in the briefs. The need for a stop sign 

was not a stated basis for the city’s decision, nor is a stop 

sign required by CBMC 17.90.040. See CBMC 17.90.040(c) 

(excluding “traffic control signs” from sight line measurement requirements).

We also disagree with Haystack’s contention, if any, 

that there is more than one conclusion the city could have 

reached from the evidence presented. The evidence in the 

record, including reports and diagrams, requires a conclusion that vehicles exiting the property are not blocked by any 

obstacles within the required clear-vision area in the ways 

prohibited by CBMC 17.90.040. And applicants’ engineer 

submitted a report stating that the clear-vision analysis for 

the current proposed driveway options remains materially 

unchanged from a 2020 roadway intersection proposal that 

was approved by the city’s public works director as complying with the clear-vision requirement. The city’s engineer 

generally described additional needed information to assess 

overall compliance in its latest report but did not indicate 

that that information was necessary to address CBMC 

17.90.040’s clear-vision requirement.5

 And, after the city’s 

engineer produced the report requesting additional information, applicants’ engineer provided the missing information that relates to the clear-vision requirement.

5 Indeed, much of the report is unrelated to that requirement. Although the 

report mentioned “sight distance,” that mention was in relation to applicants’ 

failure to demonstrate compliance with CBMC 17.50.040—a provision relating to 

eliminating or minimizing geological hazards.
770 Roberts v. City of Cannon Beach (A184314)

The conclusion that more evidence was necessary is 

inconsistent with the record and the criterion itself, and the 

record supports only a determination that applicants satisfied the clear-vision criterion. Jurgenson, 42 Or App at 510.

In its third assignment of error, Haystack challenges LUBA’s reversal of the city’s finding that the application did not comply with the CBMC’s oceanfront setback 

standard. Rather than address whether the application 

complied with the standard, LUBA concluded that the standard could not be applied at all because it is not “clear and 

objective,” as required by Oregon law. ORS 197.307(4).

We review LUBA’s construction of a statute for 

legal error, Central Oregon LandWatch v. Deschutes County, 

285 Or App 267, 276-77, 396 P3d 968 (2017), employing 

the methodology described in PGE v. Bureau of Labor and 

Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and 

State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). As 

explained below, we agree with LUBA that the definition of 

“structure” as used in the CBMC is not clear and objective.

Local governments may “adopt and apply only clear 

and objective standards, conditions and procedures regulating the development of housing[.]” ORS 197.307(4); see 

also ORS 197.831 (placing burden on local government to 

show clear and objective standards on appellate review). 

The “clear and objective” standard includes two fundamental parts: First, a standard must be objective. Roberts, 316 

Or App at 311. “Objective” means “existing independent of 

mind.” Id. (internal quotation marks omitted). Standards 

are not objective “if they impose subjective, value-laden 

analyses that are designed to balance or mitigate impacts of 

the development on (1) the property to be developed or (2) the 

adjoining properties or community.” Id. (internal quotation 

marks omitted). Second, a standard must be clear. “[T]he 

term ‘clear’ means easily understood and without obscurity 

or ambiguity.” Id. at 312 (internal quotation marks omitted).

The CBMC establishes setback requirements for 

development bordering the ocean, including the property 

at issue. Specifically, “all lots abutting the oceanshore” are 
Cite as 334 Or App 762 (2024) 771

subject to an oceanfront setback standard6

 establishing 

the “ocean yard,” in which most development is prohibited. 

CBMC 17.42.050(A)(6); CBMC 17.10.040(B)(6). That standard helps “ensure that development is consistent with the 

natural limitations of the oceanshore,” to protect “identified 

recreational, aesthetic, wildlife habitat and other resources.” 

CBMC 17.42.010.

As relevant here, and as the parties agree, “structures” are prohibited in the ocean yard. CBMC 17.04.570 

(requiring that a yard be “an open space on a lot which is 

unobstructed from the ground upward except as otherwise 

provided”). CBMC 17.04.540 defines “structure” and sets out 

an illustrative list of exclusions to the term “structure”:

“‘Structure’ means any man-made assemblage of materials extending above the surface of the ground and permanently affixed or attached, or where not permanently 

affixed or attached to the ground not readily portable, but 

not including landscape improvements such as rock walls, 

retaining walls less than four feet in height, flag poles, 

and other minor incidental improvements similar to those 

described above.”

Taken together, those ordinances explain that “structures” 

are generally prohibited in the ocean yard, with certain 

exceptions (fences, decks, and beach access stairs) as well 

as exclusions (including “landscape improvements such as 

*** retaining walls”). CBMC 17.04.540. We are now tasked 

with determining whether LUBA correctly concluded 

that the term “structure” as used in CBMC 17.04.540 and 

17.42.050(A)(6)(b) is not “clear and objective” in violation of 

ORS 197.307(4).

We emphasize that our inquiry here is not to determine what the relevant terms mean in fact, but only to 

determine whether they could plausibly be interpreted in 

more than one way. If so, “they are ambiguous, and it would 

follow that the relevant city provisions are not ‘clear and 

objective.’” Tirumali v. City of Portland, 169 Or App 241, 

246, 7 P3d 761 (2000) (quoting ORS 197.015(10)(b)(B)).

6 We upheld the oceanfront setback line as clear and objective in Roberts, 316 

Or App at 307.
772 Roberts v. City of Cannon Beach (A184314)

LUBA correctly concluded that, in the absence of 

further definition, the term “structure” in CBMC 17.04.540 

is ambiguous. For example, a “retaining wall” that is 

less than four feet in height may qualify as a “landscape 

improvement” and is thus excluded from the definition of 

“structure.” CBMC 17.04.540. However, a “retaining wall” 

that is a “structural support” is an impermissible structure. 

CBMC 17.04.570; CBMC 17.42.060(A)(9). There are no criteria to determine when a retaining wall less than four feet 

high is an impermissible “structural support” as opposed to 

a permissible “landscape improvement” and, therefore, the 

definition of “structure” is not clear.

No context of which we are aware resolves that 

ambiguity, nor have the parties provided persuasive legislative history. We therefore agree with LUBA’s determination 

that the definition of “structure,” as used in the CBMC, is 

not clear and objective, in violation of ORS 197.307(4) and 

ORS 197.831. Because it is not clear and objective, it cannot 

be applied to bar applicants’ proposed development.

Rather than address whether the standard is clear 

and objective, Haystack argues that the driveway structure does not meet the code’s definition of a “retaining 

wall.” However, that argument fails to address the basis 

for LUBA’s decision—that the definition of “structure” contained in CBMC 17.04.540 is unclear. Because Haystack 

does not address LUBA’s decision or reasoning, it fails to 

demonstrate that LUBA erred. See Friends of Marion 

County v. Marion County, 233 Or App 488, 494-95, 227 P3d 

198 (2010) (rejecting assignment of error where the party 

failed to address LUBA’s reasoning and the court otherwise 

agreed with LUBA’s analysis).

In its fourth assignment of error, Haystack contends that LUBA erred in rejecting its argument that applicants’ proposed driveway on the public Nenana ROW did 

not satisfy the city’s geologic hazard standards. Specifically, 

Haystack challenges LUBA’s determination that the standards for the development of the public right-of-way must be 

“clear and objective,” and that because the geologic hazard 

standards are not “objective,” the city cannot require that 

the application comply with them.
Cite as 334 Or App 762 (2024) 773

The CBMC includes various requirements to ensure 

that proposed developments, including “the design and location of roads,” either eliminate or appropriately minimize 

geologic hazards. CBMC 17.50.040(A) - (B). The city made an 

initial finding that those geologic hazard requirements were 

not met, but despite that finding, the city determined—and 

LUBA agreed—that the geologic hazard requirements were 

inapplicable because they were not “clear and objective,” ORS 

197.307(4). According to the city and LUBA, the requirement 

that local governments apply “clear and objective” standards 

applies to the “development of housing,” which includes the 

process of making housing “usable”—such as connecting it 

to roads.

As discussed above, the statutory mandate that 

local governments must apply clear and objective standards 

applies only to “housing” and the “development of housing,” so we must determine what the legislature meant by 

those terms. ORS 197.307(4);7

 ORS 227.175(4)(b)(A);8 ORS 

197.831.9

 On judicial review, Haystack does not assert that 

the geologic hazard standard is clear and objective; instead, 

Haystack argues that LUBA should not have applied the 

“clear and objective” test at all, because the development of 

a public right-of-way is not “housing” or the “development 

of housing” and is thus not subject to that requirement. As 

explained below, we agree.

Whether LUBA correctly construed the scope of 

Oregon law requiring local governments to apply only “clear 

and objective” standards to the development of “housing” 

presents an issue of statutory interpretation. “To assess 

7 ORS 197.307(4) (2017) states, in relevant part: 

“[A] local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, 

included needed housing[.]”

8 ORS 227.175(4)(b)(A) states, in relevant part: 

“A city may not deny an application for a housing development * ** if the 

development complies with clear and objective standards * **.”

9 ORS 197.831 states, in relevant part:

“In a proceeding before the Land Use Board of Appeals or an appellate court 

that involves an ordinance required to contain clear and objective approval 

standards *** for housing ***, the local government *** shall demonstrate 

that the approval standards *** are capable of being imposed only in a clear 

and objective manner.”
774 Roberts v. City of Cannon Beach (A184314)

petitioner’s statutory construction argument, we examine 

the text and context of ORS 197.307(4) * * * and, to the extent 

it appears useful, the legislative history. We begin with 

the statute’s text, which is the most persuasive evidence of 

the legislature’s intent.” Warren v. Washington County, 296 

Or App 595, 599, 439 P3d 581, rev den, 365 Or 502 (2019) 

(citation and internal quotation marks omitted).

We must determine what the legislature meant by 

the terms “housing” and “development of housing.” Because 

the legislature did not define the terms, we give effect to 

the words’ “plain, natural, and ordinary meaning.” DCBS 

v. Muliro, 359 Or 736, 746, 380 P3d 270 (2016) (internal 

quotation marks omitted). We consult the dictionary definition “on the assumption that, if the legislature did not give 

the term a specialized definition, the dictionary definition 

reflects the meaning that the legislature would naturally 

have intended.” Id. “Housing” is defined as “shelter, lodging,” and “dwellings provided for numbers of people or for a 

community.” LandWatch Lane County v. Lane County, 330 

Or App 468, 471, 544 P3d 428 (2024) (quoting Webster’s Third 

New Int’l Dictionary 1097 (unabridged ed 2002)). Those definitions relate to the houses themselves, not to the roads that 

connect them. By their plain text, the terms “housing” and 

“development of housing” appear to refer to houses and the 

process of developing housing, not public roads.

Turning to the statutory context, both ORS 

197.307(4) and ORS 227.175(4) include provisions relating 

unambiguously to housing regulations. For example, those 

statutes require that local governments apply only clear and 

objective standards, conditions, and procedures when regulating “the density” and “height” of housing developments. 

Moreover, ORS 227.175(4) specifically includes a provision 

requiring that at “least 75 percent of the floor area applied 

for is reserved for housing” with no reference to road development. (Emphasis added.) Indeed, none of Oregon’s statutes requiring “clear and objective” standards address the 

development of roads. Additionally, Oregon’s land use system provides separate statewide planning goals for housing and transportation, again indicating to us that housing development and road development are separate and 
Cite as 334 Or App 762 (2024) 775

distinct processes under Oregon law. Statewide Planning 

Goals 10, 12.

Applicants point to the definition of “development” 

contained in ORS 227.215 as relevant context to argue that 

the term “development of housing” applies to vehicular 

access to residences. ORS 227.215(1) provides:

“As used in this section, ‘development’ means a building or 

mining operation, making a material change in the use or 

appearance of a structure or land, dividing land into two 

or more parcels, including partitions and subdivisions ***, 

and creating or terminating a right of access.”

That provision is clear, however, that it applies to the term 

“development” as used in ORS 227.215 to ORS 227.320. The 

statutes under review in this case are not contained in those 

sections, so the definition is not applicable. Moreover, that 

definition applies to the development of “land,” rather than 

the development of housing. See State ex rel Schrodt v. Jackson 

County, 262 Or App 437, 447, 324 P3d 615 (2014) (reviewing 

ORS 227.215 and explaining that the word “‘development’ 

*** encompasses the concept of a change in the use of land” 

(emphasis added)). And the scope of that provision is broader 

than either party is suggesting and would result in extending the clear and objective standard far beyond “housing” to 

include “mining operation[s].” ORS 227.215(1).

Relevant legislative history submitted by the parties supports our conclusion. Gaines, 346 Or at 166 (court 

may limit its consideration of legislative history to the information provided by the parties). ORS 197.307 was originally 

enacted in 1981, to address a concern that “local governments should not be able to use their land use regulations to 

exclude certain housing types, particularly manufactured 

housing[.]” Rogue Vally Assoc. of Realtors v. City of Ashland, 

35 Or LUBA 139, 156 (1998), aff’d, 158 Or App 1, 970 P2d 

685, rev den, 328 Or 594 (1999). The legislature adopted ORS 

197.307 to avoid those exclusionary practices and ensure 

that development of housing was subject to “clear and objective” standards. In 2017, the legislature adopted the most 

recent provision requiring clear and objective standards, 

ORS 227.175(4)(b)(A), and amended ORS 197.307, to expand 

the scope of the requirement from “development of needed 
776 Roberts v. City of Cannon Beach (A184314)

housing,” to “development of housing, included needed housing.” Or Laws 2017, ch 745, §§ 3, 5. That 2017 amendment 

to ORS 197.307 continued to focus on the city’s ability to 

regulate housing through clear and objective standards. See 

Roberts, 316 Or App at 311 (explaining that the 2017 amendment “was meant to expand application of the existing ‘clear 

and objective’ standard to all housing” (emphasis added)).

Our conclusion that the legislature did not intend 

that the “clear and objective” standard apply to public road 

development—as opposed to houses and driveways—is consistent with the principles of home rule and preemption. 

Where state legislation impinges upon the local government 

powers, home rule favors local government. City of Corvallis 

v. State of Oregon, 304 Or App 171, 174-75, 464 P3d 1127 

(2020). And where preemption is intended, the legislation 

must “unambiguously” preempt the city from adopting regulations. Gunderson, LLC v. City of Portland, 352 Or 648, 

660, 290 P3d 803 (2012). Here, the requirement that local 

governments apply only “clear and objective” standards to 

the development of housing does not, as LUBA concluded, 

extend unambiguously to all governance that relates to 

making housing usable—including the development of 

roads. That interpretation goes beyond what ORS 197.307(4) 

purports to require and is therefore broader than principles 

of home rule and preemption would support. See Roberts, 

316 Or App at 325 (“[W]here the legislature has enacted an 

ambiguous provision that, under one construction, would 

have the effect of divesting local governments of their ability 

to regulate in an area * * * within local control, * * * homerule principles undercut the argument that the legislature 

intended the statutory text to have broad meaning.”).

Applicants argue that, because vehicular access is 

necessary to develop and use the dwelling, the development 

of the public right-of-way falls within the definition of “development of housing.” ORS 197.307(4). But, had the legislature 

clearly intended that local governments apply “clear and 

objective” standards in reviewing any applications related 

to make housing usable, it could have done so (with the 

likely effect of regulating areas beyond housing and public 

road development, such as public utilities). Instead, both the 
Cite as 334 Or App 762 (2024) 777

text and legislative history focused specifically on residential buildings and developments.

Finally, applicants argue that, because the vehicular access proposal was submitted alongside an application for the development of housing, the approval of vehicular access must be subject to the “clear and objective” test 

applicable to the development of housing. That the vehicular 

access application was consolidated with the applications 

for residential development was one basis for LUBA’s decision that “clear and objective” standards must be applied to 

the right-of-way development. However, as LUBA has previously explained, “consolidation is for purposes of procedure, 

and it does not change the approval criteria applicable to 

a given application.” Tukwila Development, LLC v. City of 

Woodburn, LUBA No. 2021-058, 17-18 (holding that the city 

erred in applying street standards applicable to subdivision 

applications to an annexation application, even though the 

applications were consolidated). We agree with LUBA—the 

city’s decision to combine the housing application with the 

right-of-way application does not impact our construction of 

the statute.

We reverse in part and remand for a determination 

of whether the application for developing Nenana ROW complies with the geologic hazard standard, CBMC 17.50.040. 

We otherwise affirm.

Reversed in part and remanded.