396 July 16, 2026 No. 31
IN THE SUPREME COURT OF THE
STATE OF OREGON
Stanley ROBERTS
and Rebecca Roberts,
Petitioners on Review,
v.
CITY OF CANNON BEACH,
Respondent below,
and
HAYSTACK ROCK, LLC,
Respondent on Review.
(LUBA 2023-066) (CA A184314) (SC S071436)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 5, 2025.
Wendie Kellington, Kellington Law Group P.C., Lake
Oswego, argued the cause and filed the briefs for petitioners
on review. Also on the briefs were Sara Kobak and Garrett H.
Stephenson, Schwabe, Williamson & Wyatt, P.C., Portland.
William L. Rasmussen, Miller, Nash LLP, Portland,
argued the cause and filed the brief for respondent on review. Also on the brief were Steven G. Liday and Iván Resendiz
Gutierrez.
Bill Kloos, Eugene, filed the brief for amici curiae Western
Oregon Builders Association and Environ-Metal Properties,
LLC.
Jayme Pierce, League of Oregon Cities, Salem, filed
the brief for amici curiae League of Oregon Cities and
Association of Oregon Counties.
* On judicial review from a final order of the Land Use Board of Appeals. 334 Or App 762, 557 P3d 1143 (2024).
Cite as 375 Or 396 (2026) 397
Eric Wriston, Portland, filed the brief for amici curiae Oregon Shores Conservation Coalition, Oregon Coast
Alliance, and The Surfrider Foundation.
Andrew Stamp, VF Law, Lake Oswego, filed the brief
for amici curiae Home Building Association of Greater
Portland, Oregon Home Builders Association, OPOA Legal
Center, Proud Ground, and Stafford Homes and Land, LLC.
FLYNN, C.J.
The decision of the Court of Appeals is affirmed. The
final order of the Land Use Board of Appeals is affirmed in
part and reversed in part, and the case is remanded to the
Land Use Board of Appeals for further proceedings.
398 Roberts v. City of Cannon Beach
FLYNN, C.J.
This land use case arises from consolidated applications to the City of Cannon Beach for approval to develop
a house on an oceanfront lot and to develop an adjacent,
overgrown public right-of-way in order to provide vehicular
access to the house. The right-of-way and lot are located in
a landslide hazard zone, and the city code imposes certain
land use restrictions in that zone, including that an applicant demonstrate either that there is no geologic hazard or
that engineering and construction methods “will eliminate
the hazard, or will minimize the hazard to an acceptable
level.” The dispute before this court arises from a tension
between a state statute that requires local standards regulating “the development of housing” to be “clear and objective” and the city’s geologic hazards provision, which indisputably includes a subjective component.1
Although the city indicated that petitioners’ own
analysis showed that the proposed road development would
increase the landslide hazard at the site, the city did not
apply its geologic hazards standards to either the house or
the road application, because it concluded that the “clear and objective” requirement precluded it from doing so. The Land
Use Board of Appeals (LUBA) agreed with the city’s interpretation of that statute, Roberts v. City of Cannon Beach, ___ Or LUBA ___ (LUBA No 2023-066, Apr 24, 2024) (Roberts II),
but the Court of Appeals reversed, Roberts v. City of Cannon
Beach, 334 Or App 762, 557 P3d 1143 (2024) (Roberts III).
We allowed petitioners’ petition for review of the
Court of Appeals’ decision, and we now affirm that decision. The proposed road development in this case would be
a public road located on a public right-of-way adjacent to
petitioners’ property, and developing the proposed road was
not one of the city’s criteria for approving development of the
1
At the time that the city considered the applications, the “clear and objective” requirement at issue in this case was set out in former ORS 197.307(4) (2021). In 2023, the provision was amended and renumbered as ORS 197A.400(1). Since then, both ORS 197A.400(1) and the other provisions of ORS 197A.400 have been amended multiple times. Or Laws 2024, ch 111, § 3; Or Laws 2025, ch 476, § 13. Although the substance remains largely the same, for clarity, we refer to former ORS 197.307(4) (2021), which the city and LUBA applied to the applications at issue in this case.
Cite as 375 Or 396 (2026) 399
house. Under those circumstances, we conclude that petitioners’ proposed road development is not “the development
of housing” as that term is used in former ORS 197.307(4)
(2021), and, thus, that statute’s “clear and objective standards” requirement did not preclude the city from applying its geologic hazards standards to the road application.
Accordingly, we affirm the decision of the Court of Appeals,
which reversed in part and remanded the case to LUBA.
I. BACKGROUND
Petitioners, Stanley and Rebecca Roberts, own
an oceanfront lot in Cannon Beach, Oregon, overlooking
Haystack Rock. The property is located on a steep hillside west of South Hemlock Street, an area known as the “S-curves.”
The property has no vehicular access, but it is bordered to the south by an undeveloped strip of land known as the Nenana
Avenue right-of-way. The right-of-way runs east to west and
could provide vehicular access from petitioners’ property to
Hemlock Street. Respondent, Haystack Rock, LLC, owns
property that surrounds petitioners’ lot to the north and to
the east. That property also abuts the Nenana Avenue rightof-way and sits between petitioners’ lot and Hemlock Street.
400 Roberts v. City of Cannon Beach
The Nenana Avenue right-of-way was created by
the 1908 Tolovana Park subdivision plat, which laid out
lots and blocks separated by streets and avenues, including Nenana Avenue, and dedicated the streets and avenues
“to the public for its use as thoroughfares forever.” Roberts
II, ___ Or LUBA at ___ (slip op at 47:12-14). The Nenana
Avenue right-of-way is not developed for vehicular access, in
part because of its location on a hillside with a 35 percent
grade that is part of an active landslide. The right-of-way
is vegetated, and access currently is blocked by a guardrail
along Hemlock Street.
In the proceeding from which the appeal is taken,2
petitioners submitted two land use applications that they
asked the city to consolidate—an application for a permit
to develop a house on the property and an application to
develop the Nenana Avenue right-of-way from Hemlock
Street to petitioners’ property.
Because the proposed dwelling and the rightof-way are located in the city’s Oceanfront Management
Overlay (OM) Zone, the applications were subject to particular standards under the Cannon Beach Municipal Code
(CBMC), including the geologic hazards standards. See
CBMC 17.100.010 (describing purpose of OM zone); CBMC
17.100.040 (specifying particular standards to which “uses
and activities” permitted in the OM Zone are subject).
The geologic hazards standards provide, in relevant part,
that, when “recommended by the geologic site investigation report, or required by the city manager, an engineering report” must be prepared to address the feasibility of
the proposed development and that the applicant bears the
burden of proof “to show construction feasibility.” CBMC
17.108.040.3 Of particular significance to this case, the code
2
Petitioners had previously submitted a different development permit application to construct a house on their property and a concurrent permit to develop the right-of-way. The city denied that house application, without addressing the right-of-way permit, because the size of the proposed house was larger than the city’s oceanfront setback requirements permitted. That decision is now final. Roberts v. City of Cannon Beach, 316 Or App 305, 307, 309, 504 P3d 1249 (2021), rev den, 370 Or 56 (2022) (Roberts I).
3
At the time that the permit applications were filed and when the city, LUBA, and the Court of Appeals rendered their decisions, the geologic hazards code was numbered as CBMC 17.50.040. The city renumbered that part of its Cite as 375 Or 396 (2026) 401
specifies that a proposed use will be permitted only where
the required reports indicate “that there is not a hazard to
the use proposed on the site or to properties in the vicinity” or specify “engineering and construction methods which
will eliminate the hazard or will minimize the hazard to an
acceptable level.” Id.
Petitioners submitted geotechnical engineering
reports for the proposed dwelling and for two alternative
proposals for developing the Nenana Avenue right-of-way—
one an elevated, bridge-like public road and the other an
at-grade private “driveway” that depended upon petitioners being granted an easement by the city. Initially, the
city’s community development director granted conditional
approval for the construction of the house and the development of a “driveway,” subject to the condition that, prior to
any construction activity, petitioners obtain final design
approval for any extension of Nenana Avenue or a driveway
within the right of way. But the city had failed to provide
respondent with notice of its decision and an opportunity to
appeal, so LUBA remanded the matter to the city. Haystack
Rock, LLC v. Cannon Beach, ___ Or LUBA ___ (LUBA No
2022-041, Sept 28, 2022). On remand, the city chose to hold
a hearing to determine compliance with the city’s land use
regulations. Following that hearing, the city denied the
applications to develop both the house and Nenana Avenue,
on grounds unrelated to the geologic criteria set out in the
city’s geologic hazards code.
In a decision that addressed applicable code provisions, the city found that the proposed house met most of
the applicable development standards, specifically including the requirements for access to a residential lot.4 But
the city found that raised elements of both the proposed
code in 2024 as CBMC 17.108.040, but its substance remained unchanged. We therefore refer to the current version of the code in this opinion.
4
The city’s decision cited the former Cannon Beach Municipal Code for the requirement that lots developed as residential “abut a street” for at least 25 feet and include two parking spaces that are accessible from a public street. Those same requirements are now set out at CBMC 17.68.010 to 17.68.030 and CBMC 17.60.020. Over respondent’s objections, the city determined that the existing, undeveloped right-of-way qualified as a “street” and that petitioners’ proposal for access along that right-of-way sufficed so that approval of the road development was not required.
402 Roberts v. City of Cannon Beach
parking area for the house and the proposed development of
Nenana Avenue included “structures” that did not meet the
“ocean yard” setback requirements. Although the decision
ultimately did not apply the geologic hazards standards,
the city addressed those standards in some detail. Relying
on the report of a geotechnical engineer, the city explained
that industry standards for landslide hazards are based
on “factors of safety,” or “FS.” With respect to the proposed
development of Nenana Avenue, the city emphasized that
petitioners’ “own analysis shows that construction of the
elevated roadway will actually reduce the FS at the site.”
The city ultimately concluded that petitioners had not met
their burden under the geologic hazards code to show that
the geologic hazards will be eliminated or minimized to an
acceptable level, but, as indicated, it did not apply that standard to petitioners’ permit applications. The city reasoned,
and it is undisputed, that its geologic hazards standards
require a subjective determination that the engineering and
construction methods specified in the petitioners’ expert
reports “will minimize the hazard to an acceptable level.”
Thus, the city concluded that it was precluded from applying
its geologic hazards standards to petitioners’ application to
develop the road by the statutory requirement that a local
government may adopt and apply only “clear and objective
standards” to the “development of housing.”
Both parties challenged the city’s decision in an
appeal to LUBA. LUBA disagreed with the city’s bases for
denying the development applications, and it remanded for
the city to determine whether a vegetation standard applied,
but it otherwise affirmed. Roberts II, ___ Or LUBA at ___,
___ (slip op at 45:15-16; slip op at 75:12-20). Most pertinent to the issue in this court, LUBA rejected respondent’s crossassignment of error in which respondent contended that the
city was required to consider whether petitioners complied
with the geologic hazards code provision. LUBA agreed with
the city that the legislature’s “clear and objective standards” requirement in former ORS 197.307(4) (2021) precluded the
city from applying its geologic hazards standards to petitioners’ application to develop the Nenana Avenue right-of-way.
Roberts II, ___ Or LUBA at ___ (slip op at 72:12-18). LUBA
emphasized that it had not previously addressed whether the
Cite as 375 Or 396 (2026) 403
“clear and objective” requirement applies to proposed development of “off-site vehicular access for a proposed residential development,” but it concluded that the city had correctly interpreted the phrase “development of housing” as encompassing
the proposed road development in this case. Id. at ___, ___
(slip op at 65:3-18; slip op at 72:12-18). As a result, LUBA held that the city could not deny petitioners’ application for failing to meet the city’s geologic hazards standards. Id.
Respondent sought judicial review of LUBA’s order
in the Court of Appeals, raising several challenges to
LUBA’s decision, only one of which is relevant here.5 In that
challenge, respondent argued that LUBA had erred when it
affirmed the city’s conclusion that the proposed road development was the “development of housing” and therefore that
the city was precluded from enforcing its geologic hazards
standards given the subjective aspect of the standards.
The Court of Appeals agreed with respondent and reversed
LUBA’s decision on that point. The Court of Appeals held
that the requirement of “clear and objective standards” for
land use decisions regarding “the development of housing”
did not apply to the city’s consideration of the application for land use approval to develop a public road. Roberts III, 334
Or App at 776. The court emphasized that its conclusion was
“consistent with the principles of home rule and preemption,”
under which ambiguous state legislation is presumed not
to preempt local government powers. Id. Petitioners sought,
and we allowed, review.
II. ANALYSIS
As we have indicated, former ORS 197.307(4) (2021),
renumbered ORS 197A.400(1) in 2023, provided that a “local
government may adopt and apply only clear and objective
standards, conditions and procedures regulating the development of housing, including needed housing.”6 Here, there
5
Petitioners separately sought judicial review of LUBA’s decision to remand for findings relating to a potentially applicable criterion concerning vegetation removal. The Court of Appeals affirmed LUBA’s decision in that case in a nonprecedential memorandum opinion, and petitioners did not seek review of that decision. Roberts v. City of Cannon Beach, 334 Or App 807 (2024) (nonprecedential memorandum opinion).
6
The legislature removed the phrase “including needed housing” in 2025. Or Laws 2025, ch 476, § 13. ORS 197A.400(1)(a) currently provides: 404 Roberts v. City of Cannon Beach
is no dispute that the city’s geologic hazards standards are
not entirely “objective,” because they require a subjective
determination that the engineering and construction methods used for the right-of-way development will either eliminate or “minimize the [geologic] hazard to an acceptable
level.” CBMC 17.108.040(A)(3)(b). Thus, the parties focus
their arguments on whether the application to develop vehicular access to petitioners’ property over the public rightof-way is “the development of housing” for purposes of the
requirement in former ORS 197.307(4) (2021) that the city
apply only “clear and objective” standards in considering the
application.
Three circumstances further narrow the scope of the
issue before us. First, the dispute in this court has no bearing on whether the city approves the application to develop
a house on petitioners’ lot; as indicated above, the city found that the access-related requirements for a residential lot
were satisfied even if the proposals to develop right-of-way
on Nenana Avenue were denied, LUBA affirmed those determinations, and respondent has not pursued a challenge to
those conclusions in this court.7 Second, although petitioners proposed alternative ways to develop the right-of-way,
only the proposal of a public road remains viable.8 Finally,
as LUBA emphasized, the petitioners’ proposed public road
would be “off-site vehicular access.” Roberts II, ___ Or LUBA
at ___ (slip op at 65:3-8). LUBA distinguished earlier cases
in which it had previously concluded that the “clear and
“[A] local government may adopt and apply only clear and objective standards, conditions and procedures regulating:
“(A) The development of housing; and
“(B) Tree removal codes related to the development of housing.”
7
LUBA concluded that the city permissibly interpreted Nenana Avenue as a “street” for purposes of the requirement that residential lots “abut a street” for at least 25 feet, CBMC 17.60.020, and LUBA reasoned that “[t]he fact that the city denied the vehicular access application does not undermine the city’s conclusion that the site plan and proposed vehicular access satisfy the parking area standard.” Roberts II, ___ Or LUBA at ___ (slip op at 49:1-11).
8
Shortly before oral argument in this case, the Court of Appeals—in a separate case involving these parties—held that the city lacks the authority to grant a private easement for a driveway on the Nenana Avenue right-of-way, because ownership of the platted street is shared, with each abutting property owner owning from the front of their lot to the mid-point of Nenana Avenue. Haystack Rock, LLC v. Roberts, 343 Or App 244, 259, 578 P2d 1235 (2025). That decision is now final. Cite as 375 Or 396 (2026) 405
objective” requirement applied to the standards that local
governments use in evaluating proposed streets that will be
within a proposed housing development, i.e., development on
the applicant’s property. See id. at ___ (describing and distinguishing cases) (slip op at 64:5 - 65:8). That conclusion
is not at issue in this appeal. Accordingly, we address only
petitioners’ argument that former ORS 197.307(4) (2021) precludes the city from applying its geologic hazards standards
to an application to develop a public road on land adjacent to the lot on which petitioners plan to construct a house.
Petitioners argue that developing the proposed
road on the right-of-way is “the development of housing,”
at least in this case, because the road is one of the “necessary development components for the creation of functional
housing” and because their application to develop the road
was consolidated with their application to develop the house.
Respondent argues, however, that the proposal to develop
the right-of-way was a separate application for development
on different property and ultimately subject to approval by
the city’s public works department under a different provision of the city code.9 Respondent contends that no provision
of the city code governing development of a house on private property requires development of a road on the adjacent
public right-of-way, and it emphasizes that both the city and
LUBA rejected its arguments to the contrary. But respondent also argues that, even assuming the proposed road
development is “necessary” as a practical matter to development of a house on petitioners’ property, that does not make
petitioners’ separate land use application to develop a public road “the development of housing,” and it does not constrain
the city’s ability to apply its geologic hazards standards to
regulate the development of a public road.
As is appropriate in a case involving statutory
requirements, both parties focus on the meaning of the
phrase “development of housing” and whether the legislature intended the “clear and objective” requirement to reach
9
CBMC 12.36.030 requires that a permit from the public works department is required before “placing or removing any improvement in the street right-ofway.” Petitioners do not dispute that the city could condition its approval of the development permits on petitioners separately obtaining approval for the road through the public works process.
406 Roberts v. City of Cannon Beach
an application for development of a public road on land not
owned by the applicant. In addition, respondent relies on the
proposition that developing and maintaining public roads
is a traditional “home-rule” function of municipalities and
that statutes should not be interpreted to prevent the exercise of home-rule authority unless that intent is clear. As
we will explain, we agree with respondent that developing
public roads is a traditional home-rule function of cities, and that context in part informs our ultimate conclusion that
petitioners’ road permit application is not an application for “the development of housing” as that term is used in former
ORS 197.307(4) (2021).
Whether petitioners’ proposal to develop a public
road is “the development of housing,” for which the city was
constrained to apply only “clear and objective standards,”
is a question of statutory interpretation, which we analyze
using the now familiar framework described in State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009). Under that framework, “our ‘paramount goal’ is to give effect to the intent of the legislature as demonstrated by the text, context, and
any helpful legislative history.” State v. Giron-Cortez, 372
Or 729, 736, 557 P3d 505 (2024) (quoting Gaines, 346 Or at
171-72); see also ORS 174.020(1)(a) (“In the construction of a statute, a court shall pursue the intention of the legislature if possible.”). In undertaking that analysis, we begin with
the text of the statute, in context. State v. Meiser, 372 Or
438, 450, 551 P3d 349 (2024).
A. Text
As pertinent here, former ORS 197.307(4) (2021)
provided:
“[A] local government may adopt and apply only clear and
objective standards, conditions and procedures regulating
the development of housing, including needed housing.”
The phrase “development of housing” is not defined in the
statutes, but it is made up of terms of ordinary usage. In
that situation, “we generally presume that the legislature
intended the ordinary meaning of the term, for which we
often consult contemporaneous dictionaries.” Brown v.
GlaxoSmithKline, LLC, 372 Or 225, 231, 548 P3d 817 (2024).
Cite as 375 Or 396 (2026) 407
The Court of Appeals reasoned that the terms, “[by] their
plain text, * * * “appear to refer to houses and the process
of developing housing, not public roads.” Roberts III, 334 Or
App at 774.
Petitioners accept that roads are not “housing,” but
they contend that the plain meaning of “development of housing” is not limited to the housing itself. (Emphasis added.)
According to petitioners, standards “regulating the development of housing” in former ORS 197.307(4) (2021) should
be understood as including “necessary development components for the creation of functional housing.” As a general
proposition, that is a plausible interpretation of the phrase. Relevant to the present context, “develop” is a transitive
(active) verb that means “cause to increase or improve : promote the growth of,” “to make actually available or usable,”
and “to convert ([something, such] as raw land) into an area
suitable for residential or business purposes.” Webster’s
Third New Int’l Dictionary 618 (unabridged ed 2002). And
“housing” is defined as “shelter, lodging” and “dwellings
provided for numbers of people or for a community.” Id. at
1097. Thus, in ordinary usage, the phrase “the development
of housing” could refer both to the process of making land
itself suitable for housing and to making that housing “actually available or usable” by providing access to it.
B. Statutory Context
In context, however, it is more plausible that the
legislature did not intend its restriction on city regulation
of “the development of housing” to reach the regulation of
a public road on an adjacent public right-of-way any time a
person seeking to build a home also proposes to make that
additional improvement. As this court has explained, statutory context includes, among other things, other provisions
of the same statute and other related statutes, as well as
the preexisting common law and the statutory framework
within which the law was enacted. State v. Williams, 374 Or
648, 661, 582 P3d 637 (2025). Our understanding of what
the legislature intended in requiring local governments to
apply “clear and objective standards, conditions and procedures regulating the development of housing” is informed
by other closely related statutes that likewise include the
408 Roberts v. City of Cannon Beach
“clear and objective” requirement. Those include ORS
227.175(4), which applies when cities consider “an application for a housing development,” and its counterpart, ORS
215.416(4), which is nearly identical but applicable to counties. Both of those statutes include wording precluding cities and counties from denying “an application for a housing
development located within the urban growth boundary if
the development complies with clear and objective standards,”
including clear and objective design standards contained in
the city or county comprehensive plan or land use regulations. ORS 227.175(4)(b)(A) (requirement for cities (emphasis added)); ORS 215.416(4)(b)(A) (requirement for counties
(emphasis added)).10 The legislature added those provisions
to ORS 227.175 and ORS 215.416 in 2017, at the same time
that it amended former ORS 197.307(4) (2017) to apply the
“clear and objective” requirement to standards regulating
“the development of housing.”11 Or Laws 2017, ch 745, §§ 2,
3, 5. Because those provisions were all part of the same act,
we understand the legislature to have intended the “clear
and objective standards” to which those statutes refer to be
the same “clear and objective standards” that former ORS
197.307(4) (2017) required a local government to adopt and
apply for the regulation of the “development of housing.” The
interrelationship between those three statutes also suggests
that the legislature intended “conditions and procedures regulating the development of housing” to be similar in scope
to the conditions and procedures that a local government
applies to “an application for a housing development.” And,
as we will explain, the ordinary meaning of an application
10
The Court of Appeals considered the possibility that ORS 227.175(4)(b) (A) itself potentially preempted the city’s application of its geologic hazards code and rejected that construction. Roberts III, 334 Or App at 774. We do not understand that conclusion to be at issue. LUBA identified only former ORS 197.307(4) (2021) as preempting the ordinance. Roberts II, ___ Or LUBA at ___, ___ (slip op at 66:9-14; slip op at 69:13-19). And petitioners have not relied on ORS 227.175(4) (b)(A) except as context, perhaps because it is challenging to fit a proposed road on adjacent property within the ordinary meaning of “a housing development.” See Webster’s at 1097 (“housing development” refers to “a group of individual dwellings or of apartment houses commonly of similar design and built and leased under one management”). In any event, we consider ORS 227.175(4)(b)(A) only to the extent it provides context for the meaning of former ORS 197.307(4) (2021).
11
Prior to 2017, the “clear and objective standards” requirement applied only to “the development of needed housing.” Or Laws 2017, ch 745, § 5. Cite as 375 Or 396 (2026) 409
for “a housing development” does not automatically extend
to an application to develop a public road.12
As used in the phrase “application for a housing
development,” the ordinary meaning of “a housing development” refers to a tangible thing—specifically “a group
of individual dwellings or of apartment houses commonly
of similar design and built and leased under one management.” Webster’s at 1097; see also Black’s Law Dictionary
857 (10th ed 2014) (defining a “housing development” as
“[a] defined area containing many houses that have been
built to a certain set of specific standards”); Randolph Quirk et al, A Comprehensive Grammar of the English Language
246, 253 (1985) (describing the indefinite article “a” as being used with a singular “count” noun, meaning a noun “seen as
denoting individual countable entities and not as an undifferentiated mass”).
Petitioners do not contend that their application to
develop a road is, itself, an application for “a housing development” as that term is used in ORS 227.175(4)(b)(A). And
we are persuaded that the ordinary usage of that term does
not reach an application to develop a public road beyond the
borders of the property on which the housing is located, at
least when the city does not require development of the proposed road as a condition of approval for a housing development.13
In addition, as the Court of Appeals observed, several specific provisions in those interrelated statutes support the conclusion that, when the legislature used the phrase “the development of housing,” it had in mind the housing itself. For instance, former ORS 197.307(4)(a) (2021) expressly called out
12
The parties agree that it is not uncommon for a local government to condition land use approval for a housing development on the creation of public infrastructure that requires approval through a separate process, such as the public works process for public roads in Cannon Beach. Petitioners do not ask us to conclude that the “clear and objective standards” requirement constrains a city’s authority to regulate those separate processes applicable to infrastructure, and that question is not before us.
13
The issue whether former ORS 197.307(4)(a) (2021) and ORS 197A.400(1) would require the city to apply only clear and objective standards to an application to develop a public road in circumstances where city does require development of the road as a condition of approval for a housing development is not before the court and we do not address it in this opinion.
410 Roberts v. City of Cannon Beach
“provisions regulating the density or height of a development” as examples of the “standards, conditions and procedures” to
which the clear and objective standards applied. Similarly,
the 2017 amendments to ORS 227.175(4) and ORS 215.416(4)
specifically added limits on the local government’s ability to reduce the “density” or “height” of a proposed “housing development.” ORS 227.175(4)(c), (d); ORS 215.416(4)(b)(c), (d); Or Laws 2017, ch 745, §§ 2, 3. Although not dispositive of legislative intent, the statutes’ express listing of characteristics related to the proposed housing itself, without any mention
of roads or other development on adjacent land, reinforces
our understanding that the legislature used the phrase “the
development of housing” to refer to the housing itself.
The context to which petitioners point does not
persuade us otherwise. For example, petitioners rely on a
definition of “development” in a statute applicable to a different land use provision, as suggesting that the legislature
intended former ORS 197.307(4) (2021) to reach the development of roads to provide access to proposed housing. The
statute on which petitioners rely governs a city’s ability to
“regulate the development of land” in a city and provides that, “[a]s used in this section, ‘development’ ” includes “creating or terminating a right of access.” ORS 227.215(1). Petitioners acknowledge that the quoted definition specifically applies
only to a single, unrelated statute. And, of course, “land”
clearly encompasses roads in a way that “housing” does not.
But petitioners view ORS 227.215 as suggesting that the
word “development” generally is understood to encompass
“vehicle access.” For our purposes, however, it is significant that the legislature did not cross-reference that definition or similarly specify that creating “a right of access” was part of the definition of “development of housing” for purposes of the “clear and objective” requirement. Even if we were to agree
that ORS 227.215 suggests that the legislature understood
“the development of housing” to encompass the development
of access, that is not enough to persuade us that the legislature intended to impose the “clear and objective standards”
requirement in former ORS 197.307(4) (2021) to an application to develop a public road whenever a person proposing to
build a house also seeks to improve a public right-of-way on
adjacent property.
Cite as 375 Or 396 (2026) 411
Petitioners also contend that the legislature’s purpose in requiring local governments to apply only “clear and
objective standards” to “the development of housing” was to
create a “broad prohibition against any unduly burdensome
standards and conditions on needed housing.” Petitioners
point to former ORS 197.307(4)(b) (2021), which provided
that local regulations “[m]ay not have the effect, either in
themselves or cumulatively, of discouraging needed housing
through unreasonable cost or delay.” They do not argue that
the provision applies to either of their applications; indeed
the city concluded that petitioners proposed oceanfront residence does not qualify as “needed housing” under the city’s
comprehensive plan. But petitioners view that provision as
evidence “that the legislature intended a ‘broad application
of the clear and objective standard to [local] regulations
that have the ultimate effect of discouraging development of
needed housing.’ ” (Quoting Roberts II, ___ Or LUBA at ___
(slip op at 68:3-7)). That provision, they argue, “confirms that [former] ORS 197.307(4) [(2021)] is concerned with the ‘effect’ of discouraging the development of housing.” Focusing on
that purpose, petitioners contend that we should interpret
the requirement that local governments apply only “clear
and objective standards” to the “development of housing”
as extending to “regulations that do not directly regulate
the development of dwelling structures,” such as the regulation of “local infrastructure improvements,” if the effect
of the regulation would “discourage” construction of needed
housing.
But the statute does not support that broad proposition. The expressed concern that a city’s regulation of
“the development of housing” not create “unreasonable cost
or delay” for “needed housing” says nothing about whether
the legislature intended the “development of housing” to
include the development of local infrastructure. Moreover,
even a general legislative purpose to promote the development of “needed housing” does not establish that the legislature intended to broadly constrain the ability of local governments to regulate the development of public roads when
the text and context of the provision suggest otherwise. See
Burke v. DLCD, 352 Or 428, 441, 290 P3d 790 (2012) (“[A]
statement of legislative findings, without more, is a slim
412 Roberts v. City of Cannon Beach
reed on which to rest an argument that the operative provisions of a statute should be taken to mean something other
than what they appear to suggest.”).
One final aspect of statutory context informs our
conclusion that the legislature did not intend the constraint
on local standards “regulating the development of housing”
to necessarily constrain the city’s regulation of public roads: the city’s obligation to promote public safety. As the Court
of Appeals observed, under LUBA’s interpretation of former
ORS 197.307(4)(a) (2021), the statute has the effect of interfering with the city’s ability to regulate the safety of public roads on public rights-of-way, which is a core function of a
city’s traditional “home-rule” authority. Roberts III, 334 Or
App at 776; see, e.g., ORS 221.415 (recognizing “the authority of cities to regulate use of municipally owned rights of way”); ORS 221.916 (authorizing cities to “[p]reserve the streets,
lights, side and crosswalks, bridges and public grounds from
injury, prevent the unlawful use of the same and regulate
their use”); ORS 223.005 -223.105 (giving cities authority to
appropriate property for public rights-of-way). Indeed, if a
local government does not adequately ensure the safety of its
rights-of-way, it could be subject to liability for injury resulting from its mismanagement. As this court stated nearly
a hundred years ago in Hendrickson v. City of Astoria, 127
Or 1, 7, 270 P 924 (1928), if a city opens a street to public
travel, that is an invitation to the public to use that street and sidewalk. If a city “knowingly and negligently permitted such improvements to get into such a condition of repair
as rendered them unsafe for public travel, and a traveler
thereon without fault on his part is injured by reason of such unsafe condition of the improvement, the city would be liable for such injury.” Id.; see also Pritchard v. City of Portland, 310 Or 235, 237, 796 P2d 1184 (1990) (city can be liable for
failing to maintain right-of-way); Donaca v. Curry Co., 303
Or 30, 36-37, 734 P2d 1339 (1987) (county can be liable for
unsafe road conditions).
“Home-rule” authority to enact ordinances addressing matters of local concern is granted to cities by Article
XI, section 2, and Article IV, section 1(5), of the Oregon
Constitution. Rogue Valley Sewer Services v. City of Phoenix,
Cite as 375 Or 396 (2026) 413
357 Or 437, 445, 353 P3d 581 (2015). As a result, we adhere
to a “presumption ‘that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law.’ ” Schwartz v. Washington County,
375 Or 227, 238, __ P3d __ (2026) (quoting Rogue Valley,
357 Or at 454). Before concluding that an ordinance promulgated under a city’s constitutional home-rule authority
is preempted by state legislation, the party advocating for
preemption must persuade us that the legislature “unambiguously” expressed that intent. Owen v. City of Portland,
368 Or 661, 668, 497 P3d 661 (2021) (internal quotations
omitted). For example, in Owen, we rejected an argument
that a statute barring any local law that “controls the rent”
should be understood to preempt a local law that “exercises
influence” over the rents, “[p]articularly when considered in
light of our cases holding that state law can preempt homerule authority only when, and to the extent that, the party
urging preemption can demonstrate that ‘the legislature
unambiguously expressed its intent * * *.’ ” Id. at 668-69, 675 (quoting Rogue Valley, 357 Or at 454).
Although the limitation that former ORS 197.307(4)
(a) (2021) imposes on a city’s authority to regulate “the
development of housing” does not entirely foreclose regulation, it would, if applied to every voluntary development
of a public road that a developer contends would promote
access to housing, significantly constrain local authority to
regulate the safety of public roads—a core home-rule function. We have already explained that the statutory text and
context do not point to a legislative intent that the phrase
“development of housing” encompass the development of
public roads. And, “[p]articularly when considered in light
of our cases holding that state law can preempt home-rule
authority only when, and to the extent that, the party urging preemption can demonstrate that the legislature unambiguously expressed its intent,” we are not persuaded that
the legislature intended the “clear and objective standards”
requirement to limit a city’s ability to regulate public roads on a public right-of-way adjacent to property on which housing will be developed, at least where the city does not make
road improvements a condition of approving a housing
414 Roberts v. City of Cannon Beach
development. See Owen, 368 Or at 674 (internal quotation
marks omitted).
C. Legislative History
We have explained that we will consider legislative
history to the extent that it is “helpful” to our understanding of what the legislature intended. Giron-Cortez, 372 Or
at 736. Here, the legislative history adds nothing helpful
to our understanding of whether the legislature intended
“the development of housing” to include the development
of public roads. It supports petitioners’ general proposition
that the legislature was concerned about limiting local
regulation that would discourage needed housing, but, for
reasons similar to those just discussed, that history does
not persuade us that the legislature intended that provision to apply in this context. Petitioners describe former
ORS 197.307 (1981)—the original enactment of the clear
and objective standards requirement—as codifying the
“St. Helens Housing Policy,” a policy that Oregon’s Land
Conservation and Development Commission had adopted
to address local government practices aimed at excluding
low-income housing from their jurisdictions. See Exhibit E,
House Committee on Environment and Energy, SB 419, Apr
24, 1981. Petitioners point to statements in the St. Helens
policy requiring that approval standards and conditions be
“clear and objective and * * * not have the potential effect
of discouraging a needed housing type.” Id. at 1. However,
nothing about those statements addresses whether the legislature intended the phrase “development of housing” itself to
encompass the development of public roads. In fact, the policy specifically indicated that a city could condition approval on the development being located on a “street paved to city
standards.” Id. at 4. In short, we agree with petitioners that developing needed housing was a legislative priority, but
nothing in the legislative history that petitioners have proffered persuades us that the legislature intended the clear
and objective standards requirement for “the development of
housing” to reach the development of a public road whenever
an applicant proposes to also develop housing on adjacent
property, at least when the city does not require the road
development for approval of a housing development.
Cite as 375 Or 396 (2026) 415
D. Application to Petitioners’ Arguments
Based on our examination of the statute, we are not
persuaded that an asserted need for access converts the proposed road development to “the development of housing,” at
least when the city does not require the road development for
approval of a housing development. Nor are we persuaded
that the road application became “the development of housing” by virtue of petitioners’ request that it be consolidated with the application to develop housing on petitioners’ lot.
We understand LUBA to have relied on the fact that
petitioner’s application to develop a public road was “consolidated with other applications for residential development”
as a significant factor in its determination that petitioner’s road application was subject to the statutory limit on regulation of “the development of housing.” See Roberts II, ___
Or LUBA at ___ (describing GPA 1, LLC v. City of Corvallis,
73 Or LUBA 339, 350-51, 357-58 (2016), a case in which
LUBA held that a stand-alone application to construct a
road “necessary” to develop “needed housing” was not itself
“the development of” needed housing and distinguishing it
on the basis that the road application in GPA 1, LLC “was
not consolidated with other applications for residential
development”) (slip op at 63:12 - 64:4). But petitioners have
not contended that they were required to consolidate their
road application with the house application. Indeed, petitioners explained at oral argument that they submitted the
road application along with the house application simply “to
make sure that the city had enough information” to be able
to decide that the standards governing “the development of
this housing” application were met.
If LUBA and petitioners are correct that the fact
that the applications were consolidated means that the proposed road improvements are the “development of housing,”
then it would be the applicant’s choice to combine applications that determines whether a city is constrained by former ORS 197.307(4) (2021) in its evaluation of the geologic
safety of a proposed road development. We do not agree.
First, whether the applications were filed together
or at different times does not affect our understanding of
416 Roberts v. City of Cannon Beach
the phrase “development of housing.” As LUBA stated in
GPA 1, LLC, “[a] road is simply not a ‘housing type[;]’ it is a road.” 73 Or LUBA at 357 (second brackets in original). We
have already explained that our examination of the text and
context of former ORS 197.307(4) (2021) does not persuade
us that the legislature intended the phrase “development
of housing” to include development of a public road on an
adjacent public right-of-way. The fact that the application to develop a public road was filed together with an application
to build a house does not convert the application to develop
the public road into an application for “the development of
housing.” Second, as discussed, the city, applying its geologic hazards code, found that petitioners’ proposed development of a road on the Nenana Avenue right-of-way would
not minimize the geologic hazards of the landslide area to
an acceptable level and, in fact, would increase the existing
risk. In other words, the city found that the proposed rightof-way would be unsafe. Nothing in the text or context of former ORS 197.307(4) (2021) persuades us that the legislature
intended petitioners’ choice regarding the timing of their
application to develop the public road to be the factor that
dictates whether the city must ignore its safety standards
applicable to the geologic hazard presented by the proposed
public road.
III. CONCLUSION
In sum, our review of the text, context, and legislative history of former ORS 197.307(4) (2021) does not persuade us that the legislature intended its limitation on local regulation of “the development of housing” to reach the circumstances here, “[p]articularly when considered in light
of our cases holding that state law can preempt home-rule
authority only when, and to the extent that, the party urging preemption can demonstrate that the legislature unambiguously expressed its intent * * *.” See Owen, 368 Or at 674 (internal quotation marks omitted). On the contrary, we have
concluded that, in requiring that a local government apply
“clear and objective standards” to regulations concerning
“the development of housing,” the legislature intended that
requirement to apply to the construction of housing and not
to the construction of public roads on a public right-of-way, at Cite as 375 Or 396 (2026) 417
least when, as here, the city does not require the road development for approval of a housing development. Accordingly,
we conclude that the city and LUBA incorrectly construed
former ORS 197.307(4) (2021) as precluding the city from
applying the geologic hazards standards of its land use code
to petitioners’ application to develop a public road.
The decision of the Court of Appeals is affirmed.
The final order of the Land Use Board of Appeals is affirmed
in part and reversed in part, and the case is remanded to
the Land Use Board of Appeals for further proceedings.