26
Argued and submitted July 8; affirmed on petition, cross-petition dismissed as
moot August 19, 2020; petition for review denied January 21, 2021 (
367 Or 496)
Skip TARR
and Ruth Tarr,
Petitioners
Cross-Respondents,
v.
MULTNOMAH COUNTY,
Respondent,
and
Masjid IBRAHIM,
Ahmed Omer, and Arshad Ashfaq,
Respondents
Cross-Petitioners.
Land Use Board of Appeals
2019097; A173800
473 P3d 603
Petitioners Skip and Ruth Tarr petition for judicial review, and respondents
Masjid Ibrahim, Ahmed Omer, and Arshad Ashfaq (intervenors) cross-petition
for review, of an order of the Land Use Board of Appeals (LUBA). That order
affirmed respondent Multnomah County’s decision approving intervenors’ application to build a mosque on land that they own in Multnomah County. In doing
so, LUBA concluded that ORS 215.441 did not preclude Multnomah County from
requiring intervenors to show that their proposed mosque conformed to county
compatibility standards, but that intervenors had nevertheless made that showing. On review, petitioners contend in four assignments of error that intervenors did not make that showing. Multnomah County argues that intervenors did
make that showing. And intervenors argue that, although their proposed mosque
meets Multnomah County’s compatibility standards, ORS 215.441 precludes
Multnomah County from requiring intervenors to make that showing. Held: ORS
215.441 does not allow a county to condition the approval of a proposed religious
land use otherwise allowed in a particular zone on compliance with a compatibility standard like Multnomah County’s.
Affirmed on petition; cross-petition dismissed as moot.
Gregory S. Hathaway argued the cause for petitionerscross-respondents. Also on the briefs were Sara Brennan
and Hathaway Larson LLP.
Katherine Thomas argued the cause and filed the brief
for respondent.
Cite as 306 Or App 26 (2020) 27
Robert A. Koch argued the cause for respondents-cross-petitioners. Also on the brief were Tonkon Torp LLP, Wendie
L. Kellington, and Kellington Law Group, PC.
Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and James, Judge.
LAGESEN, P. J.
Affirmed on petition; cross-petition dismissed as moot.
28 Tarr v. Multnomah County
LAGESEN, P. J.
Petitioners Skip and Ruth Tarr petition for judicial
review, and respondents Masjid Ibrahim, Ahmed Omer,
and Arshad Ashfaq (intervenors)1 cross-petition for review,
of an order of the Land Use Board of Appeals (LUBA). In
that order, LUBA affirmed respondent Multnomah County’s
decision approving intervenors’ application to build a proposed mosque on land that they own in the Bethany area
of Multnomah County. On review to determine whether
LUBA’s order is unlawful in substance, ORS 197.850(9)(a),
we affirm LUBA’s decision to affirm the county’s order
approving the proposed mosque, although our reasons for
doing so are different from LUBA’s.
Intervenors own a 2.2-acre parcel of land in the
county’s Multiple-Use Agriculture (MUA-20) zone. The surrounding properties, also zoned MUA-20, generally contain
large single-family residences on large lots.
Single-family residences are not the only land
use permitted in the MUA-20 zone. Among other uses,
“Community Service Uses” are allowed as conditional uses
in that zone. Multnomah County Code (MCC) 39.4320(A);
MCC 39.7520(A)(1). “Community Service Uses” include
“church” and “other nonresidential place of worship.” MCC
39.7520(A)(1).
One of the general standards for approval for a community service use, including a place of worship, is what
the parties and LUBA call the “compatibility standard.”
That standard, on which this dispute centers, specifies that
for a community service use to be approved, it must be one
that “[i]s consistent with the character of the area.” MCC
39.7515(A).
Intervenors wish to use their land to construct a
mosque to serve approximately 150 families living within
two to three miles of the property. To that end, they applied
to the county for the necessary conditional use and design
review approval.
1
Consistent with the requirement in ORAP 5.15(1) for designating parties in
briefs, in this opinion we refer to respondents Ibrahim, Omer, and Ashfaq collectively as “intervenors,” their designation below.
Cite as 306 Or App 26 (2020) 29
Petitioners live in a home next to intervenors’ land.
They are of the view that the proposed mosque and the traffic and other impacts likely to be associated with it are not
consistent with the residential character of the area, and
oppose its construction. To that end, they participated in the
hearing on intervenors’ application, contending that intervenors’ proposal did not meet the compatibility standard
contained in MCC 39.7515(A).
Intervenors responded that ORS 215.441, a state
statute governing the permissible use of land for religious
purposes, precluded the county from applying its compatibility standard, effectively displacing it. That statute provides:
“(1) If a church, synagogue, temple, mosque, chapel,
meeting house or other nonresidential place of worship is
allowed on real property under state law and rules and
local zoning ordinances and regulations, a county shall
allow the reasonable use of the real property for activities
customarily associated with the practices of the religious
activity, including:
“(a) Worship services.
“(b) Religion classes.
“(c) Weddings.
“(d) Funerals.
“(e) Meal programs.
“(f) Child care, but not including private or parochial
school education for prekindergarten through grade 12 or
higher education.
“(g) Providing housing or space for housing in a building or buildings that are detached from the place of worship, provided:
“(A) At least 50 percent of the residential units provided under this paragraph are affordable to households
with incomes equal to or less than 60 percent of the median
family income for the county in which the real property is
located;
“(B) The real property is in an area zoned for residential use that is located within the urban growth boundary;
and
30 Tarr v. Multnomah County
“(C) The housing or space for housing complies with
applicable land use regulations and meets the standards
and criteria for residential development for the underlying
zone.
“(2) A county may:
“(a) Subject real property described in subsection (1) of
this section to reasonable regulations, including site review
or design review, concerning the physical characteristics of
the uses authorized under subsection (1) of this section; or
“(b) Prohibit or restrict the use of real property by a
place of worship described in subsection (1) of this section if
the county finds that the level of service of public facilities,
including transportation, water supply, sewer and storm
drain systems is not adequate to serve the place of worship
described in subsection (1) of this section.
“(3) Notwithstanding any other provision of this section, a county may allow a private or parochial school for
prekindergarten through grade 12 or higher education to
be sited under applicable state law and rules and local zoning ordinances and regulations.
“(4) Housing and space for housing provided under
subsection (1)(g) of this section must be subject to a covenant appurtenant that restricts the owner and each successive owner of a building or any residential unit contained
in a building from selling or renting any residential unit
described in subsection (1)(g)(A) of this section as housing
that is not affordable to households with incomes equal to
or less than 60 percent of the median family income for the
county in which the real property is located for a period of
60 years from the date of the certificate of occupancy.”
ORS 215.441.
Intervenors contended that, under the plain terms
of the statute, a county must allow land to be used for a
proposed place of worship and related activities where state
law and local zoning ordinances and regulations permit
the use of land for a place of worship on the land in question unless the criteria for prohibiting that use, identified
in ORS 215.441(2)(b), are present. This means, according
to intervenors, that the county could not prohibit the use
of intervenors’ land for a mosque on the ground that the
Cite as 306 Or App 26 (2020) 31
mosque and related religious activity would not be consistent with the character of the area. Alternatively, intervenors argued that the proposed mosque is consistent with the
character of the area for purposes of the compatibility standard. They supported that assertion with evidence of uses
on nearby properties zoned MUA-20, as well as evidence
of uses in close geographic proximity to the site, including
uses on differently zoned land contained within the nearby
urban growth boundary (UGB).
The county hearings officer agreed with intervenors on both points. He agreed that ORS 215.441 displaced
the county’s compatibility standard with respect to proposed places of worship in the MUA-20 zone. He also agreed
that, in all events, the proposed mosque was “consistent
with the character of the area” within the meaning of MCC
39.7515(A). On the latter point, the hearings officer concluded that the proposed mosque met the compatibility standard where the pertinent “area” of consideration included
only the surrounding properties zoned MUA-20 (as intervenors had viewed it) or, alternatively, a more expanded area.
He reasoned:
“In addition, the plain language of the Code does not limit
the ‘area’ to the surrounding rural zoned properties. The
site is not located in an isolated rural area. As shown in
Exhibit A.22, the site is in close proximity to the UGB,
which contains a variety of more intensive uses, including
two schools directly south of the site and another school to
the northwest.”
Ultimately, the hearings officer issued an order approving the intervenors’ application, subject to 27 conditions
of approval, including conditions addressing parking and
traffic.
Petitioners appealed to LUBA. In four assignments
of error, petitioners contended that (1) the hearings officer
erred in determining that ORS 215.441 barred application
of the compatibility standard; (2) the hearings officer erred
in two different ways in determining that the proposed
mosque comported with the compatibility standard—by
assessing compatibility based on an incorrect area, and by
not comparing the impacts of the proposed mosque to the
32 Tarr v. Multnomah County
impacts of single-family residences; and (3) some of the
conditions of approval were not supported by substantial
evidence.
LUBA sustained petitioners’ first assignment of
error, agreeing with them that ORS 215.441 did not displace the county’s compatibility standard. LUBA nonetheless affirmed the order based on the hearings officer’s
alternative conclusion that the proposed mosque satisfied
the compatibility standard. In so doing, LUBA rejected petitioners’ argument that the hearings officer analyzed the
wrong area on the merits and rejected as unpreserved their
contention that the hearings officer was required to compare the impacts of the proposed mosque with the impacts
of single-family residences. LUBA also rejected petitioners’
substantial-evidence challenge to the conditions of approval
on the merits.
Petitioners then petitioned for judicial review in
this court. In four assignments of error, petitioners contend that LUBA erred in multiple respects in upholding the
hearings officer’s determination that the proposed mosque
satisfied the compatibility standard. Intervenors and the
county respond that petitioners’ arguments are, in the
main, not preserved and that, in all events, LUBA correctly
affirmed the hearings officer’s determination that the proposed mosque comports with the compatibility standard.
Intervenors further contend that ORS 215.441 precludes
the application of the county’s compatibility standard to proposed places of worship, including their proposed mosque.2
Intervenors argue that the hearings officer’s order should be
affirmed on that basis, and that LUBA erred in concluding
otherwise.
We begin with the ORS 215.441 issue. We end with
it too because it is dispositive: ORS 215.441 does not allow a
county to condition the approval of a proposed religious land
use otherwise allowed in a particular zone on compliance
with a compatibility standard like the county’s. For that
reason, none of petitioners’ claims of error—all of which are
2
Although styled as a cross-petition for review, the argument presents an
alternative basis for affirming LUBA’s decision, and we treat it that way rather
than as a separate cross-petition.
Cite as 306 Or App 26 (2020) 33
predicated on the theory that the compatibility standard
applies to intervenors’ application—provide a basis for displacing LUBA’s ultimate decision to affirm the hearings
officer’s order.
We review LUBA’s order to determine whether it is
unlawful in substance, ORS 197.850(9)(a), and do not substitute our judgment for LUBA’s as to any factual issue, ORS
197.850(8). At issue in this case is LUBA’s interpretation of
ORS 215.441. That is something we review “for legal error,
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).” Central Oregon LandWatch v. Deschutes County,
285
Or App 267, 276-77,
396 P3d 968 (2017). Our role, as always,
is to determine the meaning of the provision at issue that the
enacting legislature most likely intended. State v. Robinson,
288 Or App 194, 198-99,
406 P3d 200 (2017). We do so by
examining the statutory “text, in context, and, where appropriate, legislative history and relevant canons of construction.” Chase and Chase,
354 Or 776, 780,
323 P3d 266 (2014).
In conducting that examination, we keep in mind what the
legislature has told us about how it wants us to read the
words it has written: “In the construction of a statute, the
office of the judge is simply to ascertain and declare what
is, in terms or in substance, contained therein, not to insert
what has been omitted, or to omit what has been inserted[.]”
ORS 174.010.
Here, the plain terms of ORS 215.441(1) and (2),
in context, leave no room for the application of the county’s
compatibility standard—or standards like it—to proposed
religious land uses where, as here, a place of worship is
allowed on a particular piece of real property under state
law and county zoning laws. And, even if we are wrong
about that, and the statutory terms allow for reasonable
debate, the legislative history of the statute shows that the
point of enacting it was to displace approval standards, like
the county’s compatibility standard, that were making it
difficult for proposed places of worship otherwise permitted
to gain approval through the conditional use process due to
neighborhood opposition.
34 Tarr v. Multnomah County
We start with the words of ORS 215.441(1). They
say that, if a proposed place of worship “is allowed on real
property under state law and rules and local zoning ordinances and regulations,” then “a county shall allow the reasonable use of the real property for activities customarily
associated with the practices of the religious activity.” ORS
215.441(1) (emphasis added). The legislature’s specification
that a county “shall allow” the use of property for such religious activities shows that the legislature did not intend to
let counties assess whether such activities and their impacts
were “consistent with the character of the area” when called
upon to approve a proposed place of worship. A county “shall
allow” land to be used for such activities. Period.
We next consider the words of ORS 215.441(2), and
we focus on ORS 215.441(2)(b) in particular. That provision
carves out an exception to the general rule set forth in ORS
215.441(1). It gives a county the discretionary authority to
prohibit or restrict the use of real property for religious
activities if the public service facilities serving the property
are insufficient:
“A county may:
“…
“(b) Prohibit or restrict the use of real property by a
place of worship described in subsection (1) of this section if
the county finds that the level of service of public facilities,
including transportation, water supply, sewer and storm
drain systems is not adequate to serve the place of worship
described in subsection (1) of this section.”
ORS 215.441(2)(b) is important to the understanding of ORS 215.441(1)’s “shall allow” rule for two reasons.
First, it shows that the legislature knew how to craft an
exception to that rule when it wanted one and, in particular,
that it knew how to set forth the scope of any such exception.
Second, absent from ORS 215.441(2) is any similar exception
authorizing a county to prohibit or restrict the use of real
property for religious activities that it finds it to be incompatible with the surrounding area, or otherwise inconsistent
with a county’s approval standards. If we were to conclude
that ORS 215.441 allows a county to reject a proposed religious land use on the grounds that it is not consistent with
Cite as 306 Or App 26 (2020) 35
the character of the area or otherwise does not satisfy the
county’s approval standards, we would be rewriting ORS
215.441 to include an exception to the “shall allow” rule that
the legislature itself did not write. But rewriting statutes
“to insert what has been omitted” falls outside of “the office
of the judge.” ORS 174.010. For that reason, we may not do it
under the cloak of interpretation.
Id.
Concluding our investigation of the text and context of ORS 215.441(1)’s “shall allow” rule, we examine ORS
215.441(3). As intervenors note, it supplies important context
for resolving the question before us. That provision states
that, in determining whether to allow a parochial school at
a particular site, a county remains free to apply its usual
rules of approval, and not the ones contained in the balance
of ORS 215.441:
“(3) Notwithstanding any other provision of this section, a county may allow a private or parochial school for
prekindergarten through grade 12 or higher education to
be sited under applicable state law and rules and local zoning ordinances and regulations.”
Thus, when the legislature meant for the usual local
approval standards to apply, it said so. This confirms what
the plain terms of ORS 215.441(1) and (2) signal: The legislature intended to require counties to allow the reasonable
use of land for customary religious activities, if the land is
located in an area in which state law and local zoning law
allow for a place of worship, subject to the specific exceptions
set forth in the statute. In other words, when a proposed
religious land use falls within the ambit of ORS 215.441(1),
the legislature intended for the standard in the statute to
displace local approval standards other than those contemplated by ORS 215.441.
LUBA, as noted, reached a contrary conclusion
about the operation of ORS 215.441. After reviewing the
text and context of ORS 215.441(2)(b), it concluded that the
legislature’s intentions remained opaque and turned to the
statute’s legislative history. Although it acknowledged that
that history contained some significant gaps, it ultimately
determined that the legislature did not intend to displace
36 Tarr v. Multnomah County
a county’s authority to apply approval standards like the
compatibility standard.
We do not agree that the text and context of ORS
215.441(1) and (2) leave the legislature’s intentions in doubt.
When considered under our methodology for construing statutes, the legislature’s word choices and the rule/exception
structure it gave ORS 215.441 clearly signal its intentions.
Nevertheless, consistent with ORS 174.020(3), we have considered the legislative history submitted by the parties with
their briefs and that considered by LUBA.3 We see nothing
suggesting that the legislature intended anything other
than what the plain terms of the statute indicate. On the
contrary, the legislative history tends to support the conclusion that the legislature intended to displace local approval
standards that were making it difficult for proposed places
of worship to obtain approval based on neighbor concerns
about the impacts on the neighborhood.
Senate Bill (SB) 470, the measure that became
ORS 215.441,4 was introduced by Senator Lenn Hannon
at the request of John Hassen. Audio Recording, Senate
Committee on Natural Resources, Agriculture, Salmon and
Water, SB 470, Mar 28, 2001, at 53:30 (statement of John
Hassen), https://olis.leg.state.or.us (accessed Aug 13, 2020).
Hassen, a land use lawyer practicing in Medford, had represented churches that had difficulty obtaining necessary
land use approvals. Id. at 53:30-56:44. He explained that the
conditional use permitting process presented an obstacle to
approval because the churches would have to prove that a
proposed church would have a minimal adverse impact on
the surrounding neighborhood, something that was difficult to do when neighbors objected. Id.; see also Exhibit K,
Senate Committee on Natural Resources, Agriculture,
Salmon and Water, SB 470, Mar 28, 2001 (memorandum
3
ORS 174.020(3) states that “[a] court may limit its consideration of legislative history to the information that the parties provide to the court. A court
shall give the weight to the legislative history that the court considers to be
appropriate.”
4
ORS 215.441 was enacted by the 2001 legislature. 2001 Or Laws, ch 886,
§ 2. Although the legislature has since amended and reorganized it, the operative
provisions on which our analysis turns have not been altered in any material
way.
Cite as 306 Or App 26 (2020) 37
submitted by John R. Hassen, Hornecker, Cowling, Hassen
& Heysell, L.L.P.).
Hassen supplied two examples to illustrate the
problem that the measure was intended to address:
“Two examples will help illustrate the problem.
“1. The First Presbyterian Church of Jacksonville
has 10 acres of land zoned Border Residential inside the
Jacksonville City limits. In Jacksonville, churches are
allowed under the conditional use permit process and must
meet the minimal adverse impact standard. The property
is in Phase II of Pheasant Meadows Subdivision. Phase I
of said subdivision is subject to CC&Rs which provide that
a church may be built in Phase II under the conditional
use permit process. … Nevertheless, some homeowners
in Phase I of the subdivision, who had bought their properties subject to the CC&R provisions, objected to the
new church, and the Jacksonville City Council denied the
church a conditional use permit based on the failure to
meet minimal adverse impact standards. This result happened despite the Church’s attempts to design buildings,
reduce lighting, increase parking and enhance buffering
to satisfy the neighbors. At one point the City Council indicated it might approve the conditional use permit if the
Church would agree not to perform weddings or funerals
and other events which are part of a church’s mission at the
new church facility.
“2. The Church of Jesus Christ of Latter Day Saints
(hereinafter ‘LDS Church’) applied for a conditional use
permit for a church on 5.8 acres of land zoned F-5 (Farm
Residential) in Jackson County. To be approved the Church
had to prove it would cause no more than a minimal adverse
impact on the surrounding neighborhood. There was substantial neighborhood opposition based on traffic, noise,
impact on view and value of nearby properties, and other
reasons. The Jackson County Hearings Officer found that
the Church had not carried its burden of proof and denied
the application.”
Exhibit K, Senate Committee on Natural Resources,
Agriculture, Salmon and Water, SB 470, Mar 28, 2001
(memorandum submitted by John R. Hassen, Hornecker,
Cowling, Hassen & Heysell, L.L.P.). He explained that “[t]he
purpose of SB 470 is to address the problems” he had
38 Tarr v. Multnomah County
identified, including the problems that religious institutions were having in obtaining conditional use approvals
over neighbor objections. Id. He explained further that the
measure was “patterned, in part, after similar legislation”
adopted in Massachusetts, noting that the United States
Court of Appeals for the First Circuit has sustained that legislation against a First Amendment Establishment Clause
challenge in Boyajian v. Gatzunis,
212 F3d 1 (1st Cir 2000).
Id.
The legislative history reflects that SB 470 met with
substantial opposition, and it is true that the law that the
legislature ultimately enacted looked a lot different from
the one that Hassen initially proposed and Hannon initially
introduced.5 But nothing in that history suggests that the
statute ultimately adopted by the legislature strayed from
SB 470’s initial purpose of displacing the local approval standards that were impeding the ability of places of worship
to use their land for customary religious activities in zones
where places of worship are permissible uses. Although, at
one point, one proposed version of the measure contained
a provision that would have authorized a county to evaluate a proposed place of worship’s adverse impacts and to
deny approval in the conditional use permitting process if
the county determined that there was “a significant adverse
impact on the surrounding area,” see SB 470, A-Engrossed,
section 2, subsection (3) (May 21, 2001), the legislature ultimately did not enact that provision. That tends to suggest,
consistent with the text of the statute that the legislature
actually did enact, that the legislature did not intend to
retain for counties the discretion to deny approval for a proposed place of worship based on its neighborhood impacts or
5
As introduced, SB 470, section 2, provided, in relevant part:
“(2) Notwithstanding any statewide planning goals adopted under ORS
chapters 195, 196 or 197 that are inconsistent with this section and except as
provided in subsection (3) of this section, a local government may not prohibit
or restrict the use of real property for religious or educational purposes if the
real property is owned or leased by a governmental unit, a religious organization or a nonprofit educational organization.
“(3) A local government may subject real property described in subsection (2) of this section to reasonable regulations concerning the physical characteristics of the authorized uses including, but limited to, site review and
design review.”
Cite as 306 Or App 26 (2020) 39
perceived consistency with the character of a neighborhood
in which the applicable zoning laws make places of worship
and related activities allowable land uses.
In sum, we conclude that ORS 215.441 precluded
the county from applying the compatibility standard to
intervenors’ application. This means—as petitioners properly and candidly acknowledged at oral argument—that
their arguments before LUBA and us challenging the hearings officer’s interpretation and application of the compatibility standard provide no basis for displacing the hearings
officer’s order approving intervenors’ application. For these
reasons, we affirm LUBA’s decision to affirm the hearings
officer’s order.
Affirmed on petition; cross-petition dismissed as
moot.
