author: LAGESEN, P. J.

text:
    COLUMBIA RIVERKEEPER, Petitioner Cross-Respondent, and 1000 Friends of Oregon, Intervenor-Petitioner-below, v. COLUMBIA COUNTY, Respondent Cross-Respondent, and Port of Columbia County, Respondent Cross-Petitioner.
    A169901
    Court of Appeals of Oregon.
    Argued and submitted March 15, 2019. May 22, 2019
    Maura C. Fahey, Portland, argued the cause for petitioner-cross-respondent. Also on the briefs was Crag Law Center.
    Spencer Q. Parsons argued the cause for respondent-cross-petitioner. Also on the brief was Beery, Elsner & Hammond, LLP.
    No appearance for respondent-cross-respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.
   LAGESEN, P. J.

This judicial review proceeding arises from a final order of the Land Use Board of Appeals (LUBA). In that order, LUBA remanded a decision of the Board of Commissioners for Columbia County (the county). The county's decision approved a reasons exception to Statewide Planning Goal 3 (Agricultural Land)-and related comprehensive plan and zoning changes-for an area of agricultural land adjacent to Port Westward, a deepwater port on the Columbia River. The county granted the exception to allow for the expansion of the port. LUBA concluded that the county's findings in support of the exception were inadequate in one respect, but that the decision was otherwise sound. Columbia Riverkeeper (Riverkeeper) petitions for judicial review, contending that LUBA erred by concluding that the county properly determined that two other applicable requirements for the reasons exception were satisfied; the Port of Columbia County (the port) cross-petitions for review, contending that LUBA erred when it determined that some of the county's findings were inadequate. We conclude that neither party has demonstrated that LUBA erred. We therefore affirm on the petition and cross-petition.

I. LEGAL AND FACTUAL BACKGROUND

A. Legal Standards at Issue

We start with the legal standards applicable to the county decision at the heart of this proceeding. Here, the port seeks authorization for industrial uses on land designated agricultural in the county's comprehensive plan. To obtain that authorization, the port must demonstrate justification for an exception to Statewide Planning Goal 3, which requires counties to preserve and maintain agricultural lands for farm use. One type of allowable exception-the type at issue in this case-is a "reasons exception" under ORS 197.732(2)(c) and OAR 660-004-0020(2). Four standards must be met to permit a reasons exception to a state-wide land use goal:

"(A) Reasons justify why the state policy embodied in the applicable goals should not apply;
"(B) Areas that do not require a new exception cannot reasonably accommodate the use;
"(C) The longterm environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and
"(D) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts."

ORS 197.732(2)(c) ; Statewide Planning Goal 2: Part II (Exceptions); OAR 660-004-0020(2) (restating and amplifying statutory standard).

OAR 660-004-0022 elaborates on the various types of reasons that can justify the conclusion that "the state policy embodied in the applicable goals" should not apply to preclude a particular use. See generally OAR 660-004-0022. Under that rule, one identified reason to allow "siting of industrial development" on resource land outside an urban growth boundary is proximity to a "unique resource," such as-as is the case here-a port: "The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include *** river or ocean ports[.]" OAR 660-004-0022(3)(a).

B. County Proceedings

This proceeding began in 2013. Port Westward is a deepwater port on the Columbia River. It is a self-scouring site, which means that the property can accommodate deep-draft vessels without being dredged. To lay the groundwork for expanding Port Westward, the port applied to the county for exceptions to Goal 3, along with corresponding amendments to the comprehensive plan and zoning changes, for an 837-acre area of land adjacent to Port Westward. In its application, the port requested that a broad array of industrial uses be allowed on the site, contending that several different exceptions to Goal 3 applied to the property in question. The county approved three exceptions, including a reasons exception, as well as the corresponding plan and zone amendments. However, the matter was appealed to LUBA and LUBA remanded to the county on a number of grounds, including that the county had failed to justify the reasons exception for the wide range of uses proposed.

On remand, the port modified its application. The modified application sought only a reasons exception to permit a limited set of industrial uses on the land. Specifically, the port sought a reasons exception under OAR 660-004-0020(2) and OAR 660-004-0022(3)(a) for five particular uses:

"(1) Forestry and Wood Products processing, production, storage and transportation; (2) Dry Bulk Commodities transfer, storage, production and processing; (3) Liquid Bulk Commodities processing, storage, and transportation; (4) Natural Gas and derivative products, processing, storage, and transportation; and (5) Breakbulk storage, transportation, and processing."

Relying primarily on analysis contained in a report denominated the "Mackenzie Report," the port sought to demonstrate that the reason the policies underlying Goal 3 should not apply to preclude the requested uses is because those uses are "significantly dependent on [the] unique resource" of a deepwater port. OAR 660-004-0022(3)(a). The Mackenzie Report explained:

"Uses with foreign trade markets and marine-served domestic markets for products that are shipped by marine vessel are, by definition, reliant on deepwater port facilities. Table 2 demonstrates that each of the five proposed uses for [the Port Westward expansion] involve foreign import/export operations and are thus dependent upon a deepwater port. The proposed uses will achieve a significant operational advantage due to deepwater port access with nearby storage yards. As the proposed uses are low-margin businesses, port proximity is necessary to minimize operational costs for both import/export and domestic shipping operations. An external benefit of these firms' locations near port facilities is that locating their yards close to the port minimizes impacts on offsite transportation infrastructure."

Further, the port contended, the other criteria for a reasons exception were met, including the requirement that "[a]reas that do not require a new exception cannot reasonably accommodate the use[s]," OAR 660-004-0020(2)(b), as well as the requirement that the "proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts," OAR 660-004-0020(2)(d).

The county agreed that a reasons exception should be granted for the five proposed uses. The county looked to OAR 660-004-0022(3), as noted, a rule establishing particular exception requirements for the siting of industrial development on rural resource land. The county determined that the deepwater port at Port Westward was the type of "unique resource" that would permit an exception to Goal 3 for uses that are "significantly dependent" on a deepwater port: "[T]he approved uses each involve the act (or acts) of getting the subject goods processed, transferred, imported and/or exported via deepwater port and accordingly serve as a valid basis for taking an exception to Goal 3." However, the county noted that opponents of the exception had legitimate concerns as to whether some of the approved uses when implemented might, in fact, lack the requisite dependence on a deepwater port. To account for those concerns, the county explained that, even though it did not construe the port's application to seek approval for any nondependent uses-it characterized the port's application as "self-limiting"-it would impose measures to safeguard against uses that did not actually depend on a deepwater port:

"To the extent opponents have expressed concern that future rural industrial Port tenant uses could potentially lack a nexus with the deepwater port at Port Westward, and thereby undermine the basis for granting the exception, the Board finds that the terms of the Port's application on remand is self-limiting in that the sole basis the Port has put forward is significant dependence on the deepwater port at Port Westward. Given that limitation, any potential tenant seeking to locate in the new expansion area would be limited not only to the five authorized uses, but to the five authorized uses in a form that would be significantly dependent on the deepwater port at Port Westward.
"Nevertheless, the Board acknowledges that the opponents' concern is a reasonable one and notes that Condition 5 has accordingly been imposed for additional clarity. The condition requires that the five uses authorized be significantly dependent on and have demonstrated access to the deepwater port at Port Westward. With that condition in place, the Board finds that the only rural industrial uses the approval authorizes in the new expansion area are those that will be significantly dependent on actual deepwater port usage at Port Westward."

Addressing the requirements of OAR 660-004-0020(2)(b), the county determined that the proposed uses could not be "reasonably accommodated" instead by "areas that do not require a new exception." It concluded that the relevant areas to consider for purpose of its analysis were the five other deepwater ports in Oregon, rejecting arguments that it must look to out-of-state sites, or to ports that were not deepwater ports. The county then found that the Port of Portland and the Port of Astoria were not viable alternative sites to accommodate the proposed uses because of space limitations and other constraints. It determined that the other three deepwater ports in Oregon-the Port of Coos Bay, the Port of Newport, and the Port of Tillamook-were not viable alternative sites that could reasonably accommodate the same uses because those sites were located too far from the Columbia River/M-84 marine highway corridor commerce. Addressing the Port of Coos Bay, the county explained:

"The Board finds that the Oregon International Port of Coos Bay is not a viable alternative. The Mackenzie Report explains that Coos Bay serves a completely different economic area because it is 200 nautical miles from the mouth of the Columbia River and does not serve Columbia River/M-84 corridor commerce, and because it is 230 road miles from the Portland metropolitan area. The Mackenzie Report also notes that over 60% of Oregon's manufacturing, warehousing, and transportation-based economy is located along the Columbia River Corridor. For commerce beyond Oregon, the confluence of national or regional waterways (Columbia River/M-84), freeways (I-5, I-84), and rail net-works (Union Pacific and BNSF Class I rail lines) occurs at the metro area only 50 miles from Port Westward, but 230 road miles from Coos Bay. Based on that, the Mackenzie Report concludes that properties in Coos Bay are not economically comparable to Port Westward to serve the Columbia River Corridor economy. Accordingly, [the] Board concludes that the Oregon International Port of Coos Bay is not a viable alternative for the approved uses."

The county explained that, because of similar reasoning based on location, the Port of Newport and the Port of Tillamook also were not sites that could reasonably accommodate the proposed uses. The Port of Tillamook, the county added, was not suitable for an additional reason: it "entirely lacks maritime access."

Addressing the requirements of OAR 660-004-0020(2)(d), the county determined that the "proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts." It found that the approval contained numerous conditions that could mitigate any adverse impacts from the proposed uses. Addressing the opponents' argument that the proposed uses were too poorly defined to conduct a meaningful compatibility analysis, the county found that there was no evidence that the proposed uses would impact adjacent uses differently from the industrial uses currently permitted at Port Westward:

"Opponents have argued that the approved uses are so broad as to prohibit maintaining such compatibility, but have not explained how compatibility is not adequately maintained between one or more of those approved uses. The Board notes that under ORS 197.732(1)(a) and OAR 660-004-0020(2)(d) 'compatible' as a term 'is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses.' The Board finds no evidence in the record of any meaningful distinction between the anticipated impacts of the approved uses and those of existing industrial uses at Port Westward on neighboring uses and therefore finds that the approved uses will be similarly compatible with existing adjacent uses."

Thereafter, the county adopted Ordinance No. 2018-1 granting the port's application with conditions.

C. LUBA Proceedings

Riverkeeper appealed to LUBA, as did 1000 Friends of Oregon. Pertinent to this proceeding, Riverkeeper contended that, for numerous reasons, the county erred in concluding that (1) the five proposed uses were "significantly dependent" on the "unique resource" of a deepwater port; (2) other sites that did not require an exception could not reasonably accommodate the five proposed uses; and (3) the proposed uses were compatible with adjacent uses, or could be made compatible with measures designed to address the impacts of the uses. Riverkeeper contended that, in reaching those conclusions, the county erroneously interpreted the applicable rules, and also that its determinations were not supported by substantial evidence.

LUBA rejected Riverkeeper's first two assertions but agreed with the third. Regarding Riverkeeper's challenges to the board's "significantly dependent" determination, LUBA rejected the argument that, because certain components of the five uses might not, on their own, be significantly dependent on a deepwater port, that meant that the fives uses as a whole were not significantly dependent. In particular, LUBA pointed to the analysis in the Mackenzie Report explaining how the five uses, including their components, were "highly dependent" on proximity to a deepwater port because of the low-margin operations involved:

"The port argues, and we agree, that petitioners have not demonstrated that the county erred in concluding that the five identified uses are 'significantly dependent' on the deepwater port, notwithstanding that some components of the uses could theoretically be separated from the others and located elsewhere. As the Mackenzie Report notes, import/export uses of this kind are low-margin operations, and proximity to a deepwater port represents a significant operational and cost advantage. That advantage clearly extends to the import/export operation as a whole. Stated differently, an otherwise integrated import/export operation that is allowed to locate only storage yards and loading/unloading facilities at the port, but is forced to locate processing and other components of the operation elsewhere, could be at a significant economic disadvantage *** that may preclude siting any facilities entirely at Port Westward. We conclude that the county did not err in evaluating the five identified uses as a whole, including components such as processing or production of goods and commodities transshipped via the port, to determine whether the use as a whole is significantly dependent on the deepwater port."

LUBA also rejected the contention that the board's inclusion of Condition 5 (requiring a demonstration that any use allowed in the exception area is, in fact, significantly dependent on the deepwater port) meant that the county was, in effect, impermissibly deferring its finding regarding significant dependence until a later date. LUBA elaborated:

"However, we disagree that Condition 5 represents a deferral of findings of compliance with OAR 660-004-0022(3)(a). The county adopted several pages of findings intended to establish that uses authorized under the exception are limited to those that are significantly dependent on the port facility. Record 18-21. The county imposed Condition 5 only because opponents, including petitioners, expressed concerns that there were inadequate safeguards to prevent approval of industrial uses that are not in fact significantly dependent on the port facility. That the county agreed to impose additional safeguards does not mean that the county deferred findings of compliance with OAR 660-004-0022(3)(a) to the permit stage."

Addressing whether there were other sites not requiring an exception that could reasonably accommodate the five proposed uses, LUBA first rejected Riverkeeper's argument that the county erred by limiting its consideration to the other deepwater port sites in Oregon. LUBA explained that, "because the exception is justified based solely on the 'unique resource' of a deepwater port-in this case, a self-scouring deepwater port that requires no dredging in order to accommodate ocean-going cargo vessels-the county properly limited its analysis to alternative sites with access to a deepwater port."

LUBA next addressed Riverkeeper's contention that the county erred when it concluded that the three coastal ports could not reasonably accommodate the uses proposed for the expansion area because of their location outside the Columbia River corridor; Riverkeeper argued that it "is error under OAR 660-004-0022(3)(a) to reject an alternative site simply because it does not serve the same economic region as the preferred site." Rejecting that argument, LUBA explained that, under OAR 660-004-0020(2)(b), the county was permitted to consider economic factors in determining whether other sites could reasonably accommodate the proposed uses and, further, that

"[p]art of what makes the Port Westward site a unique resource is its status as one of three deepwater ports along a primary maritime artery, connecting national and international markets within the Portland Metropolitan area, the state's largest economic area. The three coastal ports are located hundreds of miles away from that economic area and serve very different and more isolated regional markets. We conclude that in conducting an alternative site analysis for industrial uses justified based on proximity to the 'unique resource' of a river or ocean port under OAR 660-004-0022(3)(a), the county is not required to evaluate other port sites in the state (or elsewhere) that serve entirely different economic markets."

LUBA did not, however, accept the county's decision in every respect. It determined that the county's analysis regarding the compatibility between the proposed uses and adjacent uses was not supported by adequate findings or substantial evidence. Observing that the county inferred that the impacts of the proposed uses would not adversely affect adjacent uses based on the types of impacts from past industrial uses, LUBA explained that the inference was not reasonable absent evidence that the impacts of the proposed uses would be comparable to the impacts of existing uses:

"[T]he Port does not cite to any evidence supporting the county's finding that the likely adverse impacts of the proposed uses are similar to the impacts of the existing industrial uses at Port Westward. The findings simply state that there is no evidence that the impacts would be different. However, the absence of evidence that the impacts would be different is not a basis to conclude that the impacts would be similar. The unsupported presumption that the impacts would be similar is the foundation for much of the county's subsequent analysis. Because that presumption is not supported by substantial evidence, we agree with petitioners that remand is necessary to adopt more adequate findings regarding compatibility, supported by substantial evidence."

(Emphasis in original.)

Board member Zamudio concurred in the decision "based on the facts that the exception is based on a single unique resource, the river port, the exception authorizes only those uses that are significantly dependent on the river port, and the exception area is uniquely situated by the river port." She wrote separately to address several of her concerns with the county's decision.

D. Issues and Arguments on Judicial Review

As noted, Riverkeeper has petitioned for judicial review of LUBA's final order, and the port has cross-petitioned. Riverkeeper assigns error to LUBA's determinations that (1) the county correctly determined that the five proposed uses are significantly dependent on the unique resources of a deepwater port and (2) the county correctly concluded that there were no other sites that could, without an exception, reasonably accommodate the proposed uses. The port assigns error to LUBA's conclusion that the county's determination regarding the compatibility of the proposed uses with adjacent uses was not supported by adequate findings or substantial evidence.

II. STANDARD OF REVIEW

In the order on review, LUBA did not engage in any factfinding under ORS 197.835(2), and, before us, neither party contends that LUBA's order is unconstitutional. We therefore review LUBA's order to determine whether it is "unlawful in substance or procedure." ORS 197.850(9)(a) ; Central Oregon Landwatch v. Deschutes County , 285 Or. App. 267, 269, 396 P.3d 968 (2017). To the extent that the parties' assignments of error challenge LUBA's determinations as to whether substantial evidence supports the county's order, we review to assess whether LUBA correctly understood its role in conducting its review for substantial evidence. Root v. Klamath County , 260 Or. App. 665, 670, 320 P.3d 631 (2014).

III. ANALYSIS

A. Riverkeeper's Petition

1. Significant dependence

In its first assignment of error, Riverkeeper argues that LUBA erred in upholding the county's determination that the five proposed uses identified in the port's application are significantly dependent on the unique resource of a deepwater port. Specifically, Riverkeeper contends that LUBA erred in three different ways: (1) by misconstruing its arguments; (2) by misconstruing the "significant dependence" standard articulated in OAR 660-004-0022(3)(a) ; and (3) by rejecting the argument that the county impermissibly deferred a finding of significant dependence until a later time. The central thesis of Riverkeeper's arguments is that the approved uses are broad and contain subcategories of uses that, in and of themselves, could not be found (on this record, anyway) to be significantly dependent on a deepwater port. In Riverkeeper's view, OAR 660-004-0022(3)(a) required the county to separately analyze those subcategories of uses to determine whether they were significantly dependent on a deepwater port; further, the fact that the record would not support the conclusion that those subcategories are significantly dependent on a deepwater port means that the county erred in approving the application. Riverkeeper also contends that the county's imposition of Condition 5, requiring that the five uses allowed, in fact, be significantly dependent on a deepwater port, demonstrates that the county impermissibly deferred making a "significant dependence" determination.

Riverkeeper's arguments do not demonstrate that LUBA's order is "unlawful in substance." As to Riverkeeper's first point, having reviewed the record, we are not convinced that LUBA misunderstood the arguments that Riverkeeper presented to it. As for Riverkeeper's remaining arguments, they appear to rest on a characterization of the county's decision that LUBA was not required to accept, given the plain terms of the decision. Riverkeeper's arguments appear to rest on the proposition that the county's exception allows for the five proposed uses in the broadest of terms. If that were the case, then Riverkeeper might be right that the county's "significant dependence" determination could not be sustained on this record. But, the county's decision, as LUBA recognized, is not so broad.

Specifically, the county construed the port's application to be "self-limiting," that is, to seek approval only for those uses that were in fact dependent on a deepwater port. With the application so construed, the county then found that the evidence demonstrated that those uses were dependent on a deepwater port based on the analysis in the Mackenzie Report explaining how the five proposed uses involved "low-margin" import and export operations that were "highly dependent" on access to a deepwater port. The county evaluated each of the five approved uses "as a whole" in determining significant dependence on a deepwater port, that is, the county interpreted the allowed use categories to require each use to be dependent upon port transportation services.

Finally, the county adopted an exception statement in its comprehensive plan that limited the allowed uses in the exception area to the five categories of uses that are significantly dependent on the deepwater port at Port Westward. The exception statement determined that "each of the five proposed uses for [Port Westward] involve foreign import/export operations and are thus dependent upon a deepwater port." In addition, to ensure that any uses eventually allowed would comport with the county's narrow construction of the port's application (and the evidence that supported the approval of the application, as narrowly construed), the county imposed Condition 5.

When the county's decision is understood in that manner, Riverkeeper's arguments do not demonstrate any error in LUBA's rejection of Riverkeeper's arguments regarding the county's interpretation and application of OAR 660-004-0022(3)(b). Under OAR 660-004-0018(4)(a), when a local government takes a reasons exception, "plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception." ORS 197.732(1)(b) and the equivalent part of Statewide Planning Goal 2: Part II define an "exception" as "a comprehensive plan provision" that applies to specific properties and avoids a goal requirement by meeting the standards for taking an exception. See Waste Not of Yamhill County v. Yamhill County , 240 Or. App. 285, 288, 246 P.3d 493 (2010) ("When a city or county wishes to adopt a property-specific plan provision that is inconsistent with a goal requirement, it approves an exception to that goal requirement as part of the comprehensive plan.").

That is precisely what the county did in adopting an exceptions statement that approved the five categories of rural industrial uses-each of which has a storage and transportation component-while limiting those uses to ones that are "substantially dependent on a deepwater port and have demonstrated access rights to the dock." The exceptions statement requires that any allowed use be integrated with the port operations through demonstrated access rights for the required storage and transportation components of the use and that the use be "substantially dependent" on Port Westward. That is sufficient to comply with the demands of OAR 660-004-0018(4)(a) and to rebut Riverkeeper's contention that the use allowances were too broad or insufficient in form.

2. Alternative sites analysis

Riverkeeper next challenges LUBA's determination that the county correctly determined that there was no alternative site that could accommodate the proposed uses without a goal exception, OAR 660-004-0020(2)(b). As we understand Riverkeeper's argument, it contends that the county excluded from consideration other coastal ports that did not serve the Columbia River corridor, and yet the county never adequately explained why proximity to the Columbia River corridor was relevant to the inquiry of whether other sites could reasonably accommodate the proposed uses. Riverkeeper further contends that LUBA's decision upholding the county's determination that it need not take into account the ocean ports is inconsistent with OAR 660-004-0020(2)(b) because, in its view, "[n]othing in the text of [the rule] limits the 'reasonable accommodation' analysis to sites located within the same geographic area or economic market." Riverkeeper asserts that LUBA impermissibly relied on findings and conclusions not contained in the county's decision when it addressed the fact that it is permissible under the rule to rely on economic factors when evaluating the viability of a proposed alternative site.

Riverkeeper's contentions do not convince us that LUBA's decision is "unlawful in substance" in upholding the county's determination regarding coastal ports. First, contrary to Riverkeeper's arguments, the terms of OAR 660-004-0020(2)(a) and (b) indicate that a local government may limit its consideration of alternative sites to ones that are near the proposed exception area. That provision states, in full:

"(2) The four standards in Goal 2 Part II(c) required to be addressed when taking an exception to a goal are described in subsections (a) through (d) of this section, including general requirements applicable to each of the factors:
"(a) 'Reasons justify why the state policy embodied in the applicable goals should not apply.' The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations, including the amount of land for the use being planned and why the use requires a location on resource land;
"(b) 'Areas that do not require a new exception cannot reasonably accommodate the use.' The exception must meet the following requirements:
"(A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use that do not require a new exception. The area for which the exception is taken shall be identified;
"(B) To show why the particular site is justified, it is necessary to discuss why other areas that do not require a new exception cannot reasonably accommodate the proposed use. Economic factors may be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under this test the following questions shall be addressed:
"(i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not?
"(ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses not allowed by the applicable Goal, including resource land in existing unincorporated communities, or by increasing the density of uses on committed lands? If not, why not?
"(iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not?
"(iv) Can the proposed use be reasonably accommodated without the provision of a proposed public facility or service? If not, why not?
"(C) The 'alternative areas' standard in paragraph B may be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception unless another party to the local proceeding describes specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described, with facts to support the assertion that the sites are more reasonable, by another party during the local exceptions proceeding."

OAR 660-004-0020(2)(a), (b) (emphasis added).

The italicized wording in OAR 660-004-0020 (2)(a) and (b) explains that a local government need initially examine generally whether "similar types of areas in the vicinity" could reasonably accommodate the proposed use or uses, and need not examine specific locations. The use of the word "vicinity" suggests that a local government may, consistent with the rule, limit its consideration of alternative sites to those that are near the proposed exceptions area. The common meaning of "vicinity" in this context is "[t]he quality or state of being near: NEARNESS , PROPINQUITY , PROXIMITY " or, along the same lines, "[a] surrounding area or district: LOCALITY , NEIGHBORHOOD ." Webster's Third New Int'l Dictionary 2550 (unabridged ed. 2002). Although the rule specifies that a local government must conduct a "site specific comparison" if a party to the proceeding suggests a specific site for consideration, the terms of the rule do not compel the conclusion that that obligation extends to consideration of specific sites outside of the "vicinity" of the proposed exceptions.

In any event, even if a party's proposal of a specific site can operate to require consideration of sites outside the "vicinity" of a proposed exception area, a local government's obligation to conduct a site-specific comparison between the proposed exceptions area and another site proposed by a party to the proceeding arises only when another party to the proceeding "describes specific sites that can more reasonably accommodate the proposed use." OAR 660-004-0020 (2)(b)(C) (emphasis added). The rule specifies further that the local government may take into account "economic factors" in evaluating whether alternative sites are ones that could reasonably accommodate a particular use. OAR 660-004-0020(2)(b). Here, the county found, based on the analysis in the Mackenzie Report, that the coastal ports were not "economically comparable" to Port Westward, given their distance from the Columbia River Corridor market that Port Westward serves and, based on that finding, did not conduct further analysis regarding the coastal ports' ability to accommodate the uses proposed for the requested exception area.

Riverkeeper has not persuaded us that that analysis contravenes the requirements of OAR 660-004-0020(2)(b). Essentially, assuming that the county was obliged to consider the ocean ports although they are outside the "vicinity" of Port Westward, the county's finding that the coastal ports were not "economically comparable" to Port Westward effectively foreclosed on this record a conclusion that those proposed alternative sites are ones that "can more reasonably accommodate" the proposed uses. For that reason, the county's decision not to engage in further analysis of those sites' capacity to accommodate the proposed uses was not inconsistent with the requirements of the rule. Therefore, we reject Riverkeeper's contention that LUBA's decision to uphold the county's alternative sites analysis is "unlawful in substance."

B. The Port's Cross-Petition

In its cross-petition, the port assigns error to LUBA's conclusion that the county's determination that the proposed uses are "compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts" was not supported by adequate findings. The port contends that LUBA misinterpreted the county's findings on the point and, based on that misinterpretation, erroneously concluded that the county's findings were not adequate to support its conclusion regarding the compatibility of the proposed uses with adjacent uses.

We are not convinced. We understand LUBA's rejection of the county's compatibility determination to turn on an application of the substantial evidence standard of review. LUBA, in essence, determined that the county's compatibility determination was not supported by substantial evidence because it turned, by it terms, on a finding that there is "no evidence" that the impacts of the proposed uses would be different from the impacts of the existing uses: "The Board finds no evidence in the record of any meaningful distinction between the anticipated impacts of the approved uses and those existing industrial uses at Port Westward on neighboring uses, and therefore finds that the approved uses will be similarly compatible with existing adjacent uses." But, as LUBA correctly recognized, an absence of evidence about the differences between impacts from current and proposed uses is not, by itself, a basis on which to logically infer that the impacts are the same.

As noted above, our task in evaluating LUBA's application of the substantial evidence standard of review is to determine whether LUBA correctly understood its role in applying that standard. Root , 260 Or. App. at 670, 320 P.3d 631. We may not displace its decision 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.' " Citizens for Responsibility v. Lane County , 218 Or. App. 339, 345, 180 P.3d 35 (2008) (quoting Younger v. City of Portland , 305 Or. 346, 359, 752 P.2d 262 (1988) ). Although the port correctly points out that the county's compatibility determination was based on more expansive findings than that on which LUBA focused, the county nonetheless expressly tethered its compatibility determination to its factual finding that there was "no evidence" that impacts of the proposed uses would be different from those of the existing uses. Under those circumstances, LUBA's decision to remand does not reflect a misunderstanding of its role on substantial evidence review, or otherwise demonstrate legal error.

IV. CONCLUSION

For the foregoing reasons, the parties have not convinced us that LUBA erred in any respect.

Affirmed on petition and cross-petition.

      For each of the four criteria listed in OAR 197.732(2)(c), OAR 660-004-0020(2) describes in greater detail the analysis a local government must undertake in determining whether the criteria are met.

      OAR 660-004-0022(3) provides, in relevant part:
      "Rural Industrial Development: For the siting of industrial development on resource land outside an urban growth boundary, appropriate reasons and facts may include, but are not limited to, the following:
      "(a) The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include geothermal wells, mineral or aggregate deposits, water reservoirs, natural features, or river or ocean ports."

      1000 Friends of Oregon is not a party to this judicial review proceeding. Before LUBA, the arguments of Riverkeeper and 1000 Friends had significant overlap. References to arguments made by Riverkeeper below at times encompass overlapping arguments by 1000 Friends.

      We note that the exception statement is part of a "comprehensive plan," defined by ORS 197.015(5) to be "a generalized, coordinated land use map and policy statement *** that interrelates all functional and natural systems and activities relating to the use of lands ***. *** 'Comprehensive' means all-inclusive, both in terms of the geographic area covered and functional and natural activities and systems occurring in the area covered by the plan." We need not decide whether the alternative lands evaluated in a plan's exception statement are necessarily confined to the same geographic area as the plan so as to qualify the plan as "comprehensive" and its provisions as interrelated.

      Under OAR 660-004-0020(2)(a) and (b), alternative lands are those that can "reasonably accommodate the proposed use." The "proposed use" is the use specified in the reasons exception, and the suitability of land as an alternative depends upon whether it can satisfy that specified land use need. Where the need is for port-related land on the Columbia River, as may be the case here, the evaluated alternative lands would seem to be confined to those proximate to a port on the river that could "reasonably accommodate the proposed use."


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF K. H., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. K. H., Appellant.
    A168959
    Court of Appeals of Oregon.
    Submitted May 3, 2019. July 10, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Oregon Health Authority for a period not to exceed 180 days. ORS 426.130. Appellant contends that the trial court erred because the record does not contain clear and convincing evidence that appellant is "[u]nable to provide for basic personal needs that are necessary to avoid serious physical harm in the near future, and is not receiving such care as is necessary to avoid such harm." ORS 426.005(1)(f)(B). The state concedes that the evidence is legally insufficient to support appellant's commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of commitment.

Reversed.


author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jameson Cole PLUEARD, Defendant-Appellant.
    A162112
    Court of Appeals of Oregon.
    May 22, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, for petition.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, for response.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Defendant seeks reconsideration of our opinion in State v. Plueard , 296 Or. App. 580, 439 P.3d 556 (2019), in which we reversed and remanded based on our determination that the trial court erred when it admitted certain evidence about "grooming" and that the error was not harmless. In his petition for reconsideration, defendant asks us to delete footnote 1 from the opinion. That footnote states:

"When the Supreme Court remanded for further proceedings in [ State v. Henley , 363 Or. 284, 422 P.3d 217 (2018) ], it suggested that the parties might-on remand-develop 'the evidentiary record concerning admissibility' of the proffered grooming evidence and that the trial court could then determine, in the first instance, whether the state had established the scientific validity of that evidence. It appears that, under Henley , the trial court has that option in this case on remand. If it determines that the evidence was, after all, admissible, then no new trial will be necessary."

Plueard , 296 Or. App. at 582 n. 1, 439 P.3d 556. Defendant challenges that footnote on several grounds. With the following exception, we reject those arguments without discussion.

We grant reconsideration, however, to address one argument that defendant makes in his petition. Reduced to its essence, that argument is that we were overly directive in the last sentence of the quoted footnote. Defendant relies on State v. Baughman , 361 Or. 386, 411, 393 P.3d 1132 (2017), in which the Supreme Court reversed and remanded because the trial court had erred in determining the purpose for which certain other-acts evidence could be admitted, undermining the soundness of its balancing determining under OEC 403. The Supreme Court explained that, on remand, the state would "be entitled to make new arguments about the purposes, if any, for which [that] evidence is relevant," and the trial court could then conduct a new OEC 403 analysis. The court further explained that a new trial might be necessary, whether or not the trial court again ruled the evidence admissible, "to allow the parties to make new arguments, and the court to give new instructions, to the jury," given the possibility that the evidence would be admitted for a different reason on remand than it was originally. 361 Or. at 411, 393 P.3d 1132. Because the trial court would be "in the best position to assess the need for a new trial after it *** determined the purposes for which the challenged evidence [was] relevant," the Supreme Court "[left] it to the trial court to determine the nature of the proceedings that are necessary or appropriate on remand." Id .

Defendant contends that, under Baughman , we erred by stating that "no new trial will be necessary" in this case if the trial court determines, on remand, that the grooming evidence was admissible. In response, the state asserts that it is much less likely here that a new trial will still be needed if, on remand, the state is able to lay an adequate foundation for the challenged grooming evidence because, unlike in Baughman , the purpose for which that evidence was offered will not have changed. The state acknowledges, however, "that the question whether a new trial is necessary will ultimately be one for the trial court to resolve after it reconsiders the foundational admissibility of the challenged evidence on remand." (Emphasis in state's brief.)

The state may be correct that it is less likely here than in Baughman that the trial court will determine that a new trial still is necessary, even if it ultimately determines on remand that the evidence at issue (here, the grooming evidence) was admissible. Nonetheless, we agree with defendant that we should not have foreclosed that possibility. Moreover, as we explain below, the footnote was not only too limiting, it was unnecessary.

We have emphasized that "appellate taglines must be read in the context of the opinion as a whole." State v. Barajas , 262 Or. App. 364, 366, 325 P.3d 772 (2014). In the absence of other direction or limitation in the appellate opinion, "when our tagline specifies, in toto , 'Reversed and remanded,' the 'reversed' part of the tagline negates the appealed judgment or order and the 'remanded' part sends the case back to the lower tribunal as though the original proceeding did not occur." Allen v. Premo , 251 Or. App. 682, 686, 284 P.3d 1199 (2012). However, "[t]here may be exceptions, such as when something in the text of the opinion itself clearly indicates that the remand is partial." Id .

In light of that understanding of our taglines, footnote 1 in our original opinion was surplusage. Our use of the "Reversed and remanded" tagline was sufficient to signal to the trial court that it would have authority, on remand from this court, to "determine the nature of the proceedings that are necessary or appropriate on remand." Baughman , 361 Or. at 411, 393 P.3d 1132. Accordingly, we grant the petition for reconsideration and delete footnote 1 from the opinion.

Reconsideration allowed; former opinion modified and adhered to as modified.

      Judge Aoyagi continues to dissent from the majority's holding, but she has joined in this opinion on reconsideration because she agrees that removal of footnote 1 is appropriate under the circumstances.


text:
    PACIFIC EVERGREEN HOMES, LLC v. COSMA
    A168936
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    SMITH, Winterhawk Samuel, aka Smith, Guy Samuel v. STATE of Oregon
    A166625
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    STATE v. GETTMAN, Jason Paul
    A165709
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    STATE v. REED, Abraham Nathaniel
    A165104
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    Becky SUMSION, Appellant, v. J. LYNE ROBERTS AND SONS, INC. and H&H Steel Fabricators, Inc., Appellees.
    No. 20180347
    Supreme Court of Utah.
    Filed April 26, 2019
    Allen K. Young, Tyler S. Young, Provo, for appellant
    Vincent J. Velardo, Thomas J. Rollins, Salt Lake City, for appellee J. Lyne Roberts and Sons, Inc.
    S. Spencer Brown, Jack D. Smart, Salt Lake City, for appellee H&H Steel Fabricators, Inc.
    Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.
    On Direct Appeal
   Associate Chief Justice Lee, opinion of the Court:

¶1 In this case we are asked to decide whether a contractor who created an artificial condition on the land of another owes a duty of reasonable care to the employees of the land owner. Becky Sumsion, the plaintiff-appellant in this case, contends that we answered this question in the affirmative in Tallman v. City of Hurricane , 1999 UT 55, 985 P.2d 892. She argues that Tallman announced a categorical rule establishing a duty of all contractors who create artificial conditions on the land of another, which extends to all foreseeable users of such conditions. The defendants-appellees see the matter differently. They insist that the existence of a duty in this circumstance depends on an analysis of the factors set forth in AMS Salt Industries, Inc. v. Magnesium Corp. of America , 942 P.2d 315 (Utah 1997).

¶2 The district court agreed with the defendants. It granted their motion to dismiss the plaintiff's claims on the ground that she had failed to carry the burden of presenting grounds for the establishment of a duty under AMS Salt and its progeny. We reverse and remand. We hold that the Restatement (Second) of Torts framework endorsed in Tallman , and not the factors set forth in AMS Salt , controls in a case like this one. And we thus reverse the district court's decision, which was premised on a contrary conclusion. In so doing, however, we do not conclusively resolve the extent of a contractor's duty in a case like this one. We stop short of resolving that question because the parties failed to brief a few dimensions of the relevant duty inquiry under the Restatement (Second) of Torts framework adopted in Tallman . Instead we offer some points of clarification under the Tallman framework in a manner that we hope will be useful to the parties and the district court on remand.

I

¶3 In 2012, the City of Springville decided to construct a "splash pad" recreation area in a public park. The City retained MGB+A as the lead architect. MGB+A hired JRCA Architects, Inc. ("JRCA") to help design a pump house that would host the pumps supplying water to the splash pad. The city contracted with J. Lyne Roberts and Sons, Inc. ("JLR") to construct the splash pad and pump house. JLR was instructed to install a ladder in the pump house to access the pump pit, which housed some of the controls. JLR subcontracted with H&H Steel Fabricators, Inc. ("H&H") to manufacture the ladder. The entire splash pad project was completed in April 2013.

¶4 Becky Sumsion began working for the City in May 2014. Her duties required her to make regular adjustments to the pumps located in the pump pit. On June 2, 2015, Sumsion fell off the pump house ladder as she was climbing down into the pump pit and broke her ankle. That injury gave rise to this suit.

¶5 Sumsion first sued JLR alleging negligence related to the design and manufacture of the ladder in question. Four months later, she amended her complaint to include MGB+A, JRCA, and H&H. The claim against each party was substantially the same-failure to properly design and construct the access ladder leading to the pump pit resulted in her injury. MGB+A and JRCA settled claims against them, leaving JLR and H&H as the only named defendants.

¶6 In September 2017, H&H and JLR filed motions for summary judgment. They both contended that summary judgment was appropriate because they owed Sumsion no duty of care. They further argued that Sumsion could not prove that her fall was directly and proximately caused by a defect in the ladder.

¶7 The district court granted JLR and H&H's motions for summary judgment on the ground that they did not owe Sumsion a legal duty. In framing its decision, the court first cited what it believed to be the relevant duty standard-a standard requiring consideration of four factors: "(1) the extent that the [defendant] could foresee that its actions would cause harm; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against it; and (4) the consequences of placing the burden on the defendant." Niemela v. Imperial Mfg., Inc. , 2011 UT App 333, ¶ 19, 263 P.3d 1191 (quoting Slisze v. Stanley-Bostitch , 1999 UT 20, ¶ 12, 979 P.2d 317 ). Sumsion offered no substantial analysis on the last three of these factors. She instead argued that as an employee of the City she was a foreseeable user of the ladder. And she insisted that JLR and H&H thus owed her a duty to provide a reasonably safe ladder for her authorized use.

¶8 Sumsion cited Tallman v. City of Hurricane , 1999 UT 55, 985 P.2d 892, in support of her position. In Tallman we held that "Utah follows the foreseeability rule set forth in the Restatement (Second) of Torts and followed by a majority of states" in assessing whether a manufacturer of an artificial condition owes another a duty of care. Id. ¶ 8. The Restatement rule first states:

One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.

RESTATEMENT (SECOND) OF TORTS § 385 (1965). Subsequent sections of the Restatement provide further elaboration. They identify standards for determining the duty for one who makes a chattel for the use of others. See id. §§ 394-98, 403-04.

¶9 The district court acknowledged the Tallman holding and its adoption of the Restatement. But it concluded that Tallman speaks only to the first of the four factors set forth in Niemela -foreseeability of the harm. And it read Tallman to say that harm is foreseeable only in instances where a contractor knew, or had reason to know, that the condition it created was, or was likely to be, dangerous for use. See id. § 394. The court held that Sumsion had provided insufficient analysis to reach that conclusion.

¶10 The court further held that Sumsion had the burden of addressing the other Niemela factors-the likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing the burden on the defendant. See Niemela , 2011 UT App 333, ¶ 19, 263 P.3d 1191. And because she failed to do so, the court determined that summary judgment in JLR and H&H's favor was appropriate. Sumsion then filed this appeal.

II

¶11 Sumsion contends that Tallman alone resolves the issue before us. We agree that Tallman controls in this case and thus hold that the district court applied the wrong legal standard in dismissing Sumsion's claims. In so holding we do not conclusively resolve the question whether the defendants owe plaintiff a duty here, however. We stop short of resolving that question due to inadequacies in the parties' briefing-inadequacies that, in turn, stem from imprecisions in our decision in Tallman . We highlight some of the unanswered questions and imprecisions in the law in our discussion below, in the hopes of providing guidance for the parties and the district court on remand.

A

¶12 Duty is one of four essential elements a plaintiff must prove to establish negligence. "As a general rule, we all have a duty to exercise care when engaging in affirmative conduct that creates a risk of physical harm to others." B.R. ex rel. Jeffs v. West , 2012 UT 11, ¶ 21, 275 P.3d 228. Our courts, however, have carved out some exceptions to this general rule. Historically, one such exception functioned to cut off a contractor's liability to third parties after the contractee accepted the work. Tallman v. City of Hurricane , 1999 UT 55, ¶ 7, 985 P.2d 892. This "acceptance" doctrine found its roots in English courts, which premised a contractor's liability on privity of contract. See Winterbottom v. Wright (1842) 152 Eng. Rep. 402. The doctrine began to fade out of American jurisprudence in the mid-twentieth century in favor of a rule based on the foreseeability of the harm. We noted the shift towards the foreseeability rule in Leininger v. Stearns-Roger Manufacturing Co. , 17 Utah 2d 37, 404 P.2d 33, 36 (1965). But it wasn't until our Tallman decision that we abrogated the old "acceptance" doctrine.

¶13 In Tallman we "announce[d] unambiguously that Utah follows the foreseeability rule set forth in the Restatement (Second) of Torts and followed by a majority of states." 1999 UT 55, ¶ 8, 985 P.2d 892. In so doing we eliminated the "archaic principle of privity" inherent in the acceptance doctrine. Id. But we did not clearly establish the terms and conditions of a contractor's duty to third persons-to whom the duty is owed, when it is imposed, and the relevant standard of care.

¶14 The Tallman opinion stated that "[t]he creator of an artificial condition on land may be liable to others ... for physical harm caused by its dangerous nature." Id. ¶ 9. In that case we also noted that "[t]he subsequent acceptance by the possessor of the completed condition does not abrogate this duty." Id. And we cited section 385 of the Restatement to define the breadth of a contractor's potential liability:

One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.

Id. (quoting RESTATEMENT (SECOND) OF TORTS § 385 (1965) ).

¶15 In Tallman we said that the rules for "determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others" are in turn defined in sections 394-398 and 403-404. Id. ¶ 9. Yet we never delved into any of the details of the cited Restatement sections. Instead we analogized "[t]he digging of an unsafe and inherently dangerous trench"-the alleged cause of the Tallman's injury-"to the manufacture of an unfinished, inherently dangerous product." Id. We then quoted the Restatement section underscoring "the nature of the duty owed by the supplier of an unfinished, inherently dangerous product." Id. ¶ 10.

One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use.

Id. (emphasis omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 389 ). Beyond reciting this language, we did little to explain which of it-if any-speaks to the conditions for the imposition of a duty on a contractor. And we at least arguably offered conflicting signals on the basis for the imposition of a duty.

¶16 At one point we suggested that a duty of care exists "where the supplier of a chattel knows or has reason to know that the chattel 'is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put.' " Id. ¶ 12 (quoting RESTATEMENT (SECOND) OF TORTS § 389 ). And we highlighted a number of material facts that needed to be resolved before we could conclude that a duty existed, including the contractor's knowledge of the dangerous condition, the foreseeability of the harm, and the likelihood of injury. Id. ¶ 24. Elsewhere, however, we made categorical statements seemingly in tension with the above-that "the creator of an artificial condition on land has a duty to perform its work with reasonable care to avoid harm to people who might foreseeably come in contact with the condition," id. ¶ 20, and that a contractor has a "duty to take reasonable precautions to protect persons exposed" to a condition if it "created an inherently dangerous condition," id. ¶ 19.

¶17 This tension within the Tallman opinion leaves some unanswered questions that have yet to be resolved in this case. See infra ¶ 28. But Tallman is clear in concluding that the Restatement's conception of duty controls in cases like this one. We thus reject the argument advanced by JLR and H&H and accepted by the district court-that our pre- Tallman cases (specifically AMS Salt Industries v. Magnesium Corp. of America and Slisze v. Stanley-Bostitch ) control the outcome of this case. Those cases, which detail four factors courts should consider when assessing whether a contractor owes a third person a duty of care, are distinguishable.

¶18 AMS Salt Industries, Inc. v. Magnesium Corp. of America , 942 P.2d 315 (Utah 1997) concerned a dispute between two adjacent facilities (AMS and Mag Corp) along the shores of the Great Salt Lake. Both facilities pumped water out of the lake and into ponds where it would then evaporate leaving behind salt that could be extracted. And both facilities employed a system of dikes to keep water from escaping back into the lake. Mag Corp's dikes were breached during a severe storm. That breach resulted in the destruction of some of AMS's ponds and served as the basis for AMS's suit against Mag Corp. AMS argued that Mag Corp owed it a duty to construct and maintain its own dikes. We rejected that argument, going so far as to say that it would be "absurd" in those circumstances to hold that "Mag Corp owed some legally actionable duty to AMS." Id. at 324.

¶19 JLR and H&H believe that our holding in AMS Salt naturally extends to this case. But the facts at issue in AMS Salt bear little resemblance to the facts at issue here. In contrast to the present case-where Sumsion has sued JLR and H&H for the negligent construction of an artificial condition on Springville City's land-the basis for AMS's suit was "that Mag Corp was negligent in the design, construction, and maintenance of Mag Corp's perimeter dike" on Mag Corp's own land. Id. at 318. So we see little reason for extending what we said about duty in AMS Salt to this case.

¶20 Slisze v. Stanley-Bostitch , 979 P.2d 317 (Utah 1999) is likewise distinguishable. There we dealt with a construction worker who sustained a head injury following an accident involving the use of a nail gun. The worker sought to recover under a theory that the manufacturer marketed a non-defective product when a safer model was available. That theory of recovery is quite different from the one presented here. Sumsion is suing JLR and H&H for their negligence in designing and manufacturing the actual chattel that was installed in the pump house. She is not seeking to prevail on a theory of negligent marketing, but rather on a theory that the chattel itself was unsafe. We thus reject the call to apply the duty standard discussed in Slisze to the present case.

¶21 The four-factor test detailed in both AMS Salt and Slisze may be relevant in future cases, but it does not define the scope of a contractor's duty in a case such as this one. Although some aspects of Tallman may be confusing, one thing is clear: we use the Restatement (Second) of Torts to define the scope of a contractor's duty to third parties in a case in which the contractor built an artificial condition on land.

¶22 Beyond this the Tallman opinion is less than a model of clarity. See supra ¶¶ 14-17. The Restatement, however, establishes a clear framework for assessing the scope of a contractor's duty. It does so by first providing:

One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land ... under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.

RESTATEMENT (SECOND) OF TORTS § 385. "The rules determining the liability as one who as manufacturer or independent contractor makes a chattel for the use of others" are subsequently defined "in §§ 394-398, and §§ 403-404." Id. § 385 cmt. a. Each of those sections establishes and defines the scope of a manufacturer's duty, dependent on the nature of the manufactured chattel. For instance, section 395 defines the duty imposed on a manufacturer who manufactures a chattel "which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm." Id. § 395. Section 394, in contrast, provides that those who manufacture a chattel that is known to be dangerous owe the same duty as a supplier of a chattel that is known to be dangerous. Id. § 394. And the rules defining the scope of such a supplier's duty are established in sections 388-390. Id. § 394 cmt. a.

¶23 Sections 397 and 398 speak to two distinct duties-one where a chattel is compounded under a secret formula and another where a chattel is made under a dangerous plan or design. Id. §§ 397-98. And sections 403 and 404 do not themselves establish separate duty standards. They instead direct us to sections previously referenced. Section 403 essentially mirrors section 394. It applies where an independent contractor creates a chattel known to be dangerous and applies the same liability rules that apply to suppliers of such chattel. Id. § 403; see also id. §§ 388-90. And section 404 applies where an independent contractor negligently "makes, rebuilds, or repairs a chattel for another." Id. § 404. Such a contractor is "subject to the same liability as that imposed" "under the rules stated in §§ 395-398." Id. § 404 & cmt. a. Because each of these cited Restatement sections establishes a duty and fully explains the scope of that duty, the task before us in this case is to determine which Restatement section applies and determine whether the duty identified therein extends to Sumsion.

¶24 The district court failed to do this. Its resolution was based on an application of the AMS Salt factors rather than the duty analysis Tallman demands. The court opened its opinion by citing the AMS Salt factors and explaining that Sumsion failed to adequately brief each of them. And it concluded in like manner-noting that Sumsion failed to "offer any analysis whatsoever respecting the other applicable factors courts should consider when determining whether a duty of care exists." The court considered some of the Restatement's language. But it did so merely in an attempt to apply the "foreseeability of harm" factor under AMS Salt . And as previously stated, we do not see the AMS Salt framework as controlling the duty analysis in a case like this one. That alone gives us cause to reverse.

¶25 The court further erred when it determined that Sumsion was required to prove things that have nothing to do with whether JLR and H&H owe her a duty of care. For instance, the court stated that Sumsion was required to "show how [JLR and H&H] failed to exercise reasonable care in the manufacture of the ladder." And it held that Sumsion was required to demonstrate "how the ladder posed an unreasonable risk of harm to foreseeable users." Both of these considerations go to "the specifics of the alleged tortious conduct" and thus are outside the bounds of a duty analysis. See B.R. ex rel. Jeffs , 2012 UT 11, ¶ 25, 275 P.3d 228 (quoting Normandeau v. Hanson Equip., Inc. , 2009 UT 44, ¶ 20, 215 P.3d 152 ). We reverse the decision of the district court for these reasons.

B

¶26 In a typical case we might explain the standard that should be applied on remand. But this is not a typical case. We lack the kind of briefing that would help us confidently resolve the question before us. And in the absence of such briefing, we choose not to provide a definitive answer to that question. See Zimmerman v. Univ. of Utah , 2018 UT 1, ¶ 28, 417 P.3d 78 (reaching the same conclusion in the context of a certified question from a federal district court).

¶27 We are generally limited to considering issues raised by the parties. Allen v. Friel , 2008 UT 56, ¶ 7, 194 P.3d 903. But merely raising an issue is not enough.

The parties must also adequately brief it. UTAH R. APP. P. 24. And when they fail to do so, we may have the discretion to defer deciding the issue until a later time. We have noted the existence of such discretion in the context of a case certified to us from a federal court. See Zimmerman , 2018 UT 1, ¶ 28, 417 P.3d 78. But we also retain some discretion here, where the option of a remand is a disposition available to us.

¶28 Here we are tasked with resolving a significant issue concerning the scope of a contractor's duty to third parties. Sumsion is of the view that Tallman resolved this issue. But it did not. Although Tallman provided some direction, it did not conclusively resolve the question presented in this case. Instead it sent some mixed signals, and failed to clarify the analysis called for by the Restatement. This problem is compounded by the imprecisions in the plaintiff's theory of its case. Sumsion has not clearly identified which Restatement section she relies on in support of her claims. And in these circumstances we conclude that a remand would better serve the parties and better help the courts in our resolution of the question of whether and to what extent a duty is owing in the circumstances of this case.

¶29 JLR and H&H largely ignore the problems highlighted above. They instead argue that our pre- Tallman cases ( AMS Salt and its progeny) control the duty analysis in a case like this one. But that is incorrect.

¶30 In short, the parties largely argue past each other in the briefing before us. They fail to confront the questions highlighted above-as to which Restatement section the plaintiff is relying on, which elements of that section go to the existence of a duty, and whether the elements of a duty can be established in this case. Without the benefit of adversarial briefing on these issues, we are reluctant to announce a categorical duty standard as it applies to this case. Instead we exercise our discretion and remand without fully resolving the issue before us.

¶31 On remand we encourage the parties to clarify their positions on the language of section 385 and the sections it incorporates by reference-sections 394-398 and 403-404. RESTATEMENT (SECOND) OF TORTS § 385 cmt. a. This is the language that should inform the decision of whether the defendants owe a duty in a case like this one-where a contractor creates an artificial condition on the land of another and an employee of the land owner is injured while using that condition.

¶32 By way of example, if the parties determined that section 395 applied here, the language of that section would fully define the scope of JLR and H&H's duty. Whether that duty extends to Sumsion would appear to depend on whether she falls within the class of individuals identified therein-those "lawful[ly]" using the chattel "in a manner and for a purpose for which it is supplied." Id. § 395. If she does, JLR and H&H would owe her a duty "to exercise reasonable care in the manufacture" of the chattel at issue. Id.

III

¶33 We reverse the decision of the district court for the reasons discussed above. But we stop short of deciding whether JLR and H&H owe Sumsion a legal duty. The answer to that question should be decided using the standards articulated in the Restatement (Second) of Torts-specifically in section 385 and the sections it incorporates by reference.

      Hunsaker v. State , 870 P.2d 893, 897 (Utah 1993) ("To prevail on a negligence claim, a plaintiff must establish four essential elements: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the proximate cause of the plaintiff's injury, and (4) that the plaintiff in fact suffered injuries or damages.").

      See, e.g. , Hanna v. Fletcher , 231 F.2d 469 (D.C. Cir. 1956), cert. denied , 351 U.S. 989, 76 S.Ct. 1051, 100 L.Ed. 1501 (1956) ; Montijo v. Swift , 219 Cal.App.2d 351, 33 Cal.Rptr. 133 (1963) ; MacPherson v. Buick Motor Co. , 217 N.Y. 382, 111 N.E. 1050 (1916) ; Evans v. Otis Elevator Co. , 403 Pa. 13, 168 A.2d 573 (1961).


author: Justice Petersen, opinion of the Court:

text:
    In the MATTER OF the DISCIPLINE OF Charles W. DAHLQUIST, II
    Office of Professional Conduct, Appellant, v. Charles W. Dahlquist, II, Appellee.
    No. 20170550
    Supreme Court of Utah.
    Filed April 30, 2019
    Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellant
    Michael F. Skolnick, Salt Lake City, for appellee
    Justice Petersen authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.
    On Direct Appeal
   Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 The Office of Professional Conduct (OPC) filed an attorney discipline case against Charles W. Dahlquist, II for repeatedly violating a judge's order in limine during a 2008 jury trial. No one present at the trial alerted the OPC to the conduct. Rather, the OPC learned of it from our opinion reversing the jury's verdict and granting a new trial based in part on Dahlquist's violations of the order. Wilson v. IHC Hosps., Inc. , 2012 UT 43, ¶ 27, 289 P.3d 369 (stating that the "persistent and deliberate references to collateral source evidence in violation of the trial court's in limine order substantially prejudiced the jury").

¶2 The OPC immediately opened an investigation. But by this time, over three-and-a-half years had passed since the original trial. Nevertheless, the OPC proceeded with its investigation and communicated with the plaintiffs in the underlying case. The plaintiffs eventually filed an informal complaint with the Utah State Bar in 2015. After a hearing on the informal complaint before a screening panel of the Ethics and Discipline Committee, the OPC filed this case in the district court in 2016.

¶3 Dahlquist moved for summary judgment based on the statute of limitations, and the district court granted the motion. The OPC appeals, arguing that the district court misinterpreted what begins and ends the running of the limitations period.

¶4 Rule 14-529 of the Supreme Court Rules of Professional Practice governs this issue. It establishes a four-year limitations period for attorney discipline cases that begins to run upon the "discovery" of the alleged attorney misconduct and stops when "[p]roceedings under this article" commence. The issues before us are: (1) whose "discovery" triggers the running of the limitations period and (2) what constitutes "proceedings under this article."

¶5 We hold that discovery by a party with an interest in filing an informal complaint under rule 14-510, as is the case here, is sufficient to start the running of the statute of limitations. And we interpret "proceedings" to mean the filing of an informal complaint under that rule.

¶6 Accordingly, we conclude that the district court correctly dismissed the complaint against Dahlquist as untimely, and we affirm.

BACKGROUND

¶7 Dahlquist represented IHC Hospitals, Inc. in a medical malpractice lawsuit filed against it by Jerome and Leilani Wilson. The jury trial took place from October 29 to November 21, 2008. Before trial, the Wilsons prevailed on a motion in limine to exclude evidence of collateral source benefits they had received. But during the trial, Dahlquist made repeated references to those benefits. Wilson v. IHC Hosps., Inc. , 2012 UT 43, ¶ 12, 289 P.3d 369.

¶8 The Wilsons moved for a new trial based in part on Dahlquist's conduct, but the trial court denied their request. The jury returned a verdict in favor of IHC, and the case was dismissed on December 9, 2008.

¶9 The Wilsons appealed the dismissal, based in part on Dahlquist's violations of the in limine order. In an opinion published on July 20, 2012, we agreed that IHC had "persistently and deliberately violated the trial court's order," and we granted the Wilsons a new trial. Id. at ¶ 2.

¶10 On the day the opinion was published, the OPC was notified of this court's decision and opened an investigation into Dahlquist's conduct. Over the course of its investigation, the OPC corresponded with the Wilsons' counsel.

¶11 On March 2, 2015, the Wilsons sent a letter to the OPC seeking to file a bar complaint against Dahlquist. That same month, they verified the letter in accordance with rule 14-510(a)(2) of the Rules of Professional Practice. The OPC consolidated the Wilsons' informal complaint with its pending investigation.

¶12 A screening panel of the Ethics and Discipline Committee of the Utah Supreme Court held a hearing on the informal complaint. The panel recommended that the OPC file a formal complaint against Dahlquist in district court. This case followed.

¶13 In the district court, Dahlquist filed a motion for summary judgment, arguing that the applicable four-year statute of limitations barred the OPC's complaint. The rule governing the limitations period in attorney discipline cases states: "Proceedings under this article shall be commenced within four years of the discovery of the acts allegedly constituting a violation of the Rules of Professional Conduct." SUP. CT. R. PROF'L PRACTICE 14-529.

¶14 The OPC argued that the statute of limitations should run from the time that it discovered Dahlquist's misconduct in July 2012-when this court issued its decision in Wilson . And the OPC argued that it commenced proceedings against Dahlquist when it opened its investigation the same day, which was within the four-year limitations period.

¶15 The district court disagreed. The district court reasoned that discovery by any person permitted to file an informal complaint for attorney discipline "will ordinarily be sufficient to trigger the limitations clock." Accordingly, the district court found that discovery of the alleged misconduct took place at the trial in 2008 because the Wilsons, their counsel, and others-any of whom could have filed an informal complaint-witnessed the misconduct. The district court also ruled that "proceedings" commenced when the Wilsons filed their informal complaint with the Utah State Bar in March 2015, not in July 2012 when the OPC opened its investigation.

¶16 The OPC appeals. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(c) and article VIII, section 4 of the Utah Constitution, which grants this court governance of the "discipline of persons admitted to practice law."

STANDARD OF REVIEW

¶17 Generally, we review the district court's interpretation of our Rules of Professional Practice for correctness. In re Discipline of Welker , 2004 UT 83, ¶ 11, 100 P.3d 1197. But because of our constitutional authority in attorney discipline cases, "we employ a unique standard of review." In re Discipline of Barrett , 2017 UT 10, ¶ 11, 391 P.3d 1031 (citation omitted). "We presume the district court's findings of facts to be correct 'unless they are arbitrary, capricious, or plainly in error,' but we ... 'reserve the right to draw inferences from basic facts which may differ from the inferences drawn' by the district court." Id. (citation omitted).

ANALYSIS

¶18 In this case, we must interpret one of our own rules governing lawyer discipline. Rule 14-529 of the Rules of Professional Practice contains a four-year limitations period and reads, "Proceedings under this article shall be commenced within four years of the discovery of the acts allegedly constituting a violation of the Rules of Professional Conduct."

¶19 The parties disagree as to whose "discovery" starts the running of the limitations period and what constitutes the commencement of "[p]roceedings under this article." We turn first to the question of what begins the limitations period and then to the question of what ends it.

I. "DISCOVERY"

¶20 The question of whose discovery starts the running of the four-year limitations period in rule 14-529 is not easily answered because the rule is entirely silent on the matter. It refers to "the discovery of the acts allegedly constituting a violation" but does not tell us whose discovery is contemplated. The relevant portion of the rule contains no subject.

¶21 The usual methods of statutory interpretation guide our analysis. "[W]e interpret a court rule in accordance with its plain meaning" with our objective being "to give effect to the intent of the body that promulgated it." In re Discipline of Brussow , 2012 UT 53, ¶ 14, 286 P.3d 1246 (citation omitted) (internal quotation marks omitted). Because this court is the body that promulgates these rules, the constitutional considerations that require us to take a purely textual approach to statutory enactments may not apply with equal force here.

¶22 The OPC argues that only its discovery of the alleged misconduct should trigger the running of the limitations period. In support, the OPC points to prior iterations of this rule. The predecessor to the Rules of Professional Practice was the Revised Rules of the Utah State Bar Governing Professional Conduct and Discipline, adopted in 1937. See Vol. XXII, Utah Bar Bulletin, November 1952 (stating that the Supreme Court approved the Revised Rules on March 1, 1937). Rule V(3) of the 1971 Revised Rules barred disciplinary action after three years "from the discovery by the aggrieved party of the facts upon which such action is based." Rules of Discipline of the Utah State Bar, Rule V(3) (1971) (emphasis added). By 1981, the rules changed to read that a complaint must be filed within four years from "the discovery by the complainant of the fact upon which the claim of unprofessional conduct is based." Rules of Discipline of the Utah State Bar, Rule XV (1981) (emphasis added).

¶23 The OPC claims that the removal of references to "the aggrieved party" and "the complainant" was intended to broaden the possible cases that could be brought to the OPC for investigation and prosecution. But adopting the OPC's interpretation would effectively eliminate the statute of limitations for attorney discipline cases-a result inherently inconsistent with the title of rule 14-529 ("Statute of limitations") and the inclusion of a discovery provision in the text itself.

¶24 Further, it is unclear to us how removal of the actor in the rule serves to limit those whose discovery triggers the four-year period to only the OPC. Rather, it seems to do the opposite. While the rule once identified specific actors' discovery of the alleged misconduct as starting the limitations clock, it is now silent and seemingly open-ended on this question. Accordingly, we reject the OPC's interpretation because it adds words to the rule and would effectively eliminate the statute of limitations for attorney discipline cases.

¶25 On the other hand, the interpretation put forward by Dahlquist, and adopted by the district court, would allow discovery by any party to trigger the statute of limitations. The district court looked to rule 14-510, which outlines the procedures for prosecuting attorney misconduct. That rule states in part that a "disciplinary proceeding may be initiated against any member of the Bar by any person, OPC counsel or the Committee." SUP. CT. R. PROF'L PRACTICE 14-510(a)(1). In light of this language, the district court held:

Because multiple parties may bring a complaint, discovery by any one of them will ordinarily be sufficient to trigger the limitations clock. ... [T]he underlying actions were taken in open court, on the record in front of a judge, parties, counsel, and anyone else there to see.

Accordingly, the district court ruled that discovery under rule 14-529 occurred at the 2008 trial because the alleged misconduct occurred in open court, where many parties-whether they had an interest in filing a complaint or not-were present.

¶26 This interpretation is also problematic. Because the class of entities able to file a complaint is so broad under rule 14-510, almost anyone's discovery of the misconduct will start the clock, even if that person has little or no incentive to file a complaint. This reading effectively turns rule 14-529 into a statute of repose, leading to situations where attorney misconduct goes unreported for years before the OPC is informed and allowing attorneys to avoid disciplinary action.

¶27 We thus decline to adopt either interpretation in full. The OPC's interpretation is not supported by the language of the rule, and it is so narrow that in practice it would eliminate the statute of limitations. While more in line with the text of the rule, Dahlquist's interpretation is so broad that it transforms the statute of limitations into a statute of repose. Anyone's discovery of the conduct, even a person with no interest in filing a complaint, would trigger the running of the limitations period. Especially in the context of attorney misconduct, it is problematic to broaden the discovery rule to reach those who are not aggrieved and who may even have an incentive to stay silent.

¶28 Given the ambiguity in the language of rule 14-529, there are good policy reasons to modify it. But we think it best to do so through a prospective re-examination of the rule rather than by straining the bounds of its current language.

¶29 However, we are able to affirm the district court's decision on the facts of this case. Where misconduct is discovered by a party with an interest in filing an informal complaint, that is sufficient to start the running of the statute of limitations under the current version of the rule. The facts of this case do not implicate our concerns about over-expanding the discovery rule to reach those who are unaffected by the misconduct. The Wilsons had an interest in filing a bar complaint, as they were the party most aggrieved by Dahlquist's conduct. And they "discovered" his conduct during the trial because they witnessed it firsthand. But they did not file a bar complaint until after they were contacted by the OPC-years after the incident when the claim was already time-barred.

¶30 We therefore affirm the decision of the district court. Under rule 14-529, discovery in this case was triggered when the Wilsons learned of the alleged misconduct. Here, that was in 2008 at the time of the jury trial.

II. "PROCEEDINGS UNDER THIS ARTICLE"

¶31 The OPC argues that the phrase "[p]roceedings under this article" in rule 14-529 encompasses OPC investigations-meaning that one manner in which proceedings can commence is by the OPC opening an investigation into alleged attorney misconduct. Under that reading, the OPC argues that proceedings in this case began when it opened its investigation of Dahlquist on July 20, 2012. The district court rejected this argument. And we agree that the language of rule 14-529 does not support the OPC's reading.

¶32 The term "[p]roceedings" is not defined in the Rules of Professional Practice. Accordingly, we look to the plain meaning of the word by considering both its dictionary definition as well as its appearance in legal corpora. See Nemelka v. Ethics & Discipline Comm. of the Utah Supreme Court , 2009 UT 33, ¶ 14, 212 P.3d 525.

¶33 The first definition of "proceeding" in Black's Law Dictionary is "[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment." Proceeding , BLACK'S LAW DICTIONARY (10th ed. 2014). The Rules of Professional Practice also regularly refer to a "disciplinary proceeding," which is defined as "[a]n action brought to reprimand, suspend, or expel a licensed professional or other person from a profession or other group because of unprofessional, unethical, improper, or illegal conduct." Disciplinary Proceeding , BLACK'S LAW DICTIONARY (10th ed. 2014). The definitions of "proceeding" and "disciplinary proceeding" both refer to an action or lawsuit. Neither an action nor a lawsuit traditionally encompasses an investigation, which happens before the commencement of both.

¶34 In addition to dictionary definitions, we can better understand the ordinary meaning of "proceeding" within the context of rule 14-529 by considering how it has actually been used in a given body of language. See State v. Rasabout , 2015 UT 72, ¶ 58, 356 P.3d 1258 (Lee, A.C.J., concurring). A legal database, such as Westlaw, is one such body of language that we find to be particularly illuminating in this case. See id. ¶ 63.

¶35 A survey of Utah disciplinary cases shows that "proceeding" is used in a manner consistent with the above definitions-referring to an action or lawsuit commenced by filing a complaint in some form rather than one triggered by an investigation. And a broader search of all United States Supreme Court cases reveals that when the Court refers to "proceedings" being "commenced," the majority of the time the Court is speaking in terms of a legal proceeding commenced by the filing of a complaint or other legal document.

¶36 "Proceeding" is also used in other parts of the Rules of Professional Practice. Under the canon of consistent meaning, "where a word has a clear and definite meaning when used in one part of ... a document, but not when used in another, the presumption is that the word is intended to have the same meaning in the latter as in the former." Utley v. Mill Man Steel, Inc. , 2015 UT 75, ¶ 72, 357 P.3d 992 (Durrant, C.J., concurring in part and dissenting in part) (alteration in original) (quoting ANTONIN SCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012) ).

¶37 Rule 14-510, a proximate rule in the procedures for prosecuting attorney discipline matters, states:

A disciplinary proceeding may be initiated against any member of the Bar by any person, OPC counsel or the Committee, by filing with the Bar, in writing, an informal complaint in ordinary, plain and concise language setting forth the acts or omissions claimed to constitute unprofessional conduct. Upon filing, an informal complaint shall be processed in accordance with this article.

SUP. CT. R. PROF'L PRACTICE 14-510(a)(1).

¶38 Accordingly, a "proceeding," as used in rule 14-510, is commenced by the filing of an informal complaint. There is no indication that the term was intended to be used differently in rule 14-529, and thus we presume that "proceeding" has the same meaning in both rules.

¶39 The OPC argues that the use of the word "may" in rule 14-510 means that a proceeding can be commenced by means other than the filing of an informal complaint. To support its proposition, the OPC points to rule 14-504(b), which outlines the powers and duties of OPC counsel. That rule authorizes the OPC to screen information; conduct investigations; and dismiss, decline, or refer to our Ethics and Discipline Committee matters not covered by rule 14-510. Under this language, the OPC reasons that by opening an investigation of Dahlquist in July 2012, it was also commencing a proceeding under article 5-specifically, under rule 14-504(b).

¶40 But the language and structure of rules 14-504 and 14-510 give no indication that an OPC investigation initiates a "proceeding."

And although the prosecutorial duties of the OPC, as contained in article 5, encompass more than filing an informal or formal complaint, that does not mean its other duties equate to beginning a proceeding. As the prosecutorial arm of the attorney discipline system in Utah, this would be akin to state or federal prosecutors protecting potential charges from applicable statutes of limitation by simply questioning a suspect or investigating an accusation, without filing charges. As the district court aptly observed, "If merely subjectively opening an investigation were enough to satisfy that rule, there would be no real deadline for action at all ...."

¶41 Our case law supports the district court's reading. While we have acknowledged that an OPC investigation can occur before or after the start of a disciplinary proceeding, the event that "commences" or initiates the proceeding is the filing of a complaint, not the opening of an investigation. See, e.g. , In re Discipline of Sonnenreich , 2004 UT 3, ¶ 28, 86 P.3d 712 (providing that "disciplinary proceedings ... 'may be initiated ...' by filing an informal complaint .... Once an informal complaint is filed, OPC counsel is required to 'conduct a preliminary investigation ....' " (citations omitted) ); In re Discipline of Pendleton , 2000 UT 77, ¶ 22, 11 P.3d 284 ("In the typical case, a disciplinary proceeding is initiated by the filing of an informal complaint with the OPC. After the informal complaint is filed, the OPC has the opportunity to conduct a preliminary investigation into the allegations of misconduct ...." (citation omitted) ).

¶42 Reading rules 14-529 and 14-510 together, we hold that "[p]roceedings under this article ... commence[ ]" when an informal complaint is filed with the Bar in accordance with rule 14-510(a)(1) and (a)(2). The dictionary definition and use of "proceeding" in the broader legal corpora support the district court's analysis that "the ordinary means of stopping the running of a statute of limitations is the filing of a complaint. That common understanding is perhaps the most sensible means of construing [rule] 14-529." Accordingly, we affirm the district court's ruling that proceedings against Dahlquist began in March 2015 when the Wilsons verified their informal complaint. This was over six years after the discovery of Dahlquist's misconduct and was barred by rule 14-529.

CONCLUSION

¶43 We hold that, under rule 14-529, the limitations period was triggered when the Wilsons learned of the alleged misconduct. The limitations period stops running when any party, including the OPC, files an informal complaint with the Bar in accordance with rule 14-510. Here, this took place when the Wilsons verified their informal complaint with the Bar. Because Dahlquist's misconduct was discovered in October and November 2008, and proceedings against him did not begin until March 2015, this case is barred by the statute of limitations. We affirm.

      This refers to article 5 of chapter 14, Rules Governing the Utah State Bar, of the Rules of Professional Practice. Article 5 is titled "Lawyer Discipline and Disability."

      A statute of repose is "[a] statute barring any suit that is brought after a specified time since the defendant acted ... even if this period ends before the plaintiff has suffered a resulting injury." Statute of Repose , Black's Law Dictionary (10th ed. 2014).

      See, e.g. , In re Discipline of Steffensen , 2018 UT 53, ¶ 20, 428 P.3d 1104 (discussing "proceedings" before a district court); Discipline of Gilbert v. Utah Down Syndrome Found., Inc. , 2012 UT 81, ¶ 9, 301 P.3d 979 (stating that a "disciplinary proceeding" followed an "investigation and screening"); In re Discipline of Trujillo , 2001 UT 38, ¶ 19, 24 P.3d 972 ("[T]he OPC commenced a disciplinary proceeding ... by filing a petition for [ ] interim suspension ....").

      Of the cases that use the terms "proceeding" and "commence" in the same sentence, roughly 90 percent refer to legal proceedings-such as "foreclosure proceedings," "proceedings by mandamus," or proceedings "commenced by filing a document"-and not merely an investigation.

      See, e.g. , Sup. Ct. R. Prof'l Practice 14-501(c) ("All disciplinary proceedings shall be conducted in accordance with this article and Article 6 ...."); id. 14-504(b)(4) (providing that the OPC has the power to "prosecute ... all disciplinary cases and proceedings"); id. 14-506(d) ("Part-time judges, while in office, are subject to lawyer disciplinary and disability proceedings ...."); id. 14-511(c) ("All proceedings instituted by the OPC shall be styled 'In the Matter of the Discipline of (name of respondent and respondent's Bar number), Respondent.' "); id. 14-602(b)-(c) (describing the "[p]urpose of lawyer discipline proceedings" and the "[p]ublic nature of lawyer discipline proceedings"). Notably, the use of "proceedings" or "disciplinary proceedings" in the above rules suggests that a proceeding involves an attorney discipline case rather than an OPC investigation.