DEVNW v. BOLI

No. 867 September 16, 2026 25 IN THE COURT OF APPEALS OF THE STATE OF OREGON DEVNW, Petitioner, v. OREGON BUREAU OF LABOR AND INDUSTRIES, Respondent. Oregon Bureau of Labor and Industries 9523; A185490 Argued and submitted May 7, 2026. Courtney R. Caimona argued the cause for petitioner. Also on the briefs were Alexandra P. Hilsher and Hershner Hunter, LLP. Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. KAMINS, J. Reversed and remanded. Tookey, P. J., dissenting. 26 DEVNW v. BOLI Cite as 353 Or App 25 (2026) 27 KAMINS, J. In attempting to maintain the appearance of a neighborhood church that had stood for over 100 years, peti- tioner, an affordable housing developer, worked closely with the church congregation and neighborhood to come up with a plan that would minimally disrupt the community’s aes- thetics. Utilizing the foundation, exterior walls, and certain exterior windows of the church building, petitioner built 17 new affordable apartments. BOLI concluded that petition- er’s activity did not qualify for an exemption that applies to the residential construction of affordable housing because it used material from the preexisting church and thus did not amount to the “construction [of] housing.” Because the legis- lature did not intend such a result, we reverse and remand. The relevant facts are undisputed. Petitioner is a nonprofit organization whose mission includes the con- struction of affordable housing for low-income Oregonians. In accordance with that mission, petitioner purchased real property that consisted of a church and parsonage, in order to convert it to affordable housing. Petitioner demolished all but the foundation, exterior walls, and certain exterior win- dows of the former church building to construct new apart- ments where the church was formerly located. The final project consisted of 17 affordable apartments. Petitioner requested a determination from BOLI that its project would qualify for the residential construction exemption from the prevailing wage law, ORS 279C.810(2) (d). That provision exempts “[p]rojects for residential con- struction that are privately owned and that predominantly provide affordable housing,” id., from the general rule that “[t]he hourly rate of wage that a contractor or subcontractor must pay to workers upon all public works may not be less than the prevailing rate of wage.” ORS 279C.840(1). BOLI determined that the residential construction exemption did not apply. It reasoned that, “[w]hile the [p] roject will be privately owned and will predominately pro- vide affordable housing, the [p]roject does not meet the definition of ‘residential construction’ because the [p]roject includes the renovation of a church building, which is nei- ther an apartment building or a single-family home.” 28 DEVNW v. BOLI Petitioner sought a hearing in front of an ALJ. The parties stipulated that petitioner’s project was a public work; thus, the sole issue was whether the project qualified for the exemption. Petitioner argued that its project qualified as res- idential construction because the statutory language of the exemption uses inclusive language, meaning that the legis- lature did not intend for the listed types of residential con- struction to be exclusive. Petitioner further argued that the context of the exemption included a Department of Housing and Urban Development (HUD) memo that explained that the focus in making a determination “should be on project completion.” BOLI argued that the exemption did not apply because the project consisted of the “major renovation” of a church. BOLI also argued that its determination was con- sistent with previous coverage determinations and with fed- eral guidance cited in the statute. The ALJ affirmed BOLI’s determination. The ALJ examined common dictionary definitions, the stated policy goals of the prevailing wage statute, and the legislative his- tory to conclude that “when there is a ‘major renovation’ of an existing building, both the original status of the struc- ture and the final result must be ‘single-family houses or apartment buildings not more than four stories’ in order to satisfy the ‘residential construction’ exemption.” The ALJ further concluded that BOLI’s administrative rules, which define “construction” as “the initial construction of buildings and other structures,” OAR 839-025-0004(8), and “[m]ajor renovation” as “the remodeling or alteration of buildings and other structures within the framework of an existing building or structure and the alteration of exist- ing highways and roads, the contract price of which exceeds $50,000,” OAR 839-025-0004(21), were consistent with that legislative intent. The ALJ also reasoned that “initial con- struction” in BOLI’s rule “contemplate[d] construction from bare land.” Applying those rules to the facts of the case, the ALJ concluded that petitioner’s project did not qualify for the exemption because it was neither the “initial construc- tion” nor “major renovation” of affordable residential hous- ing. This petition for judicial review followed. Before this court, the parties renew their argu- ments on the meaning of the residential construction Cite as 353 Or App 25 (2026) 29 exemption. Petitioner argues that the dictionary definition of the term “construction” does not limit it to the act of put- ting parts together on bare land and that here that term means “the act of putting parts together to form a complete integrated object.” Petitioner further contends that BOLI’s interpretation of “residential construction” is flawed and that the federal guidance documents BOLI relied on do not require an evaluation of existing physical design before project completion. BOLI responds that the ALJ correctly interpreted the residential construction exemption to apply to the initial construction of residential housing. According to BOLI, the legislature intended to incorporate the defini- tions from its administrative rules into the residential con- struction exemption, and the federal guidance documents are not helpful in determining whether converting a church to affordable housing is “residential construction.” Thus, as framed by the parties, we must determine whether the legislature intended for petitioner’s activity— utilizing the foundation, exterior walls, and certain exterior windows of a previously existing structure to build afford- able housing—to fall within the residential housing con- struction exemption. We review BOLI’s statutory interpre- tation and legal conclusions for errors of law. ORS 183.482(8) (a); Springfield Education Assn. v. School Dist., 290 Or 217, 227, 621 P2d 547 (1980). “When a disputed statutory term is part of a regu- latory framework administered by an agency, we first deter- mine whether the term is an ‘exact’ term, an ‘inexact’ term, or a ‘delegative’ term.” Kaser v. PERS, 317 Or App 498, 502, 506 P3d 1134, rev den, 370 Or 214 (2022). The parties agree, as do we, that “construction” is an inexact term. Analyzing an inexact term “begin[s] with the statute’s text to analyze the meaning of the disputed term, ‘pay[ing] careful atten- tion to the exact wording of the statute.’ ” Id. (quoting DCBS v. Muliro, 359 Or 736, 745, 380 P3d 270 (2016) (brackets in Kaser)). “If the statute does not define the disputed term, we apply the ordinary tools of statutory construction to determine the term’s intended meaning.” Id. “We often con- sult dictionary definitions of the term, on the assumption that, if the legislature did not give the term a specialized 30 DEVNW v. BOLI definition, the dictionary definition reflects the meaning that the legislature would have intended.” Id. When con- struing a statute, our “paramount goal” is to discern the legislature’s intent by examining the text of the statute in context, relevant legislative history, and, if necessary, can- ons of construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). An agency’s interpretation of an inexact term is not entitled to deference on judicial review. Kaser, 317 Or App at 502. As we explain, BOLI did not err when it concluded that the legislature intended “construction” to refer to ini- tial construction of housing. We disagree, however, with BOLI on its application of that definition to this set of facts: Petitioner was engaged in the initial construction of hous- ing—as intended by the legislature in the affordable hous- ing exemption—because it was building affordable residen- tial housing on property where none previously existed. The statute at issue here, ORS 279C.810(2)(d), defines “residential construction” as follows: “ ‘Residential construction’ includes the construction, reconstruction, major renovation or painting of single- family houses or apartment buildings not more than four stories in height and all incidental items, such as site work, parking areas, utilities, streets and sidewalks, pursuant to the United States Department of Labor’s ‘All Agency Memorandum No. 130: Application of the Standard of Comparison ‘Projects of a Character Similar’ Under Davis- Bacon and Related Acts,’ dated March 17, 1978. However, the commissioner may consider different definitions of res- idential construction in determining whether a project is a residential construction project for purposes of this para- graph, including definitions that: “(i) Exist in local ordinances or codes; or “(ii) Differ, in the prevailing practice of a particular trade or occupation, from the United States Department of Labor’s description of residential construction.” (Emphasis added.) The statute does not define “construction.” By administrative rule, BOLI has defined “construction,” as Cite as 353 Or App 25 (2026) 31 used in its rules on prevailing wage, “unless the context requires otherwise,” as “the initial construction of buildings and other structures, or additions thereto, and of highways and roads.” OAR 839-025-0004(8) (emphasis added). The dictionary definition of “construction” is “the act of putting parts together to form a complete integrated object.” Webster’s Third New Int’l Dictionary 489 (unabridged ed 2002). Notably, that definition does not place an emphasis on where the parts came from or whether they were new or repurposed parts. Rather, the focus is on the final form: the complete, integrated object. As a purely textual matter, petitioner’s project fits neatly within this dictionary defini- tion: It is putting parts together—some new parts, some old parts—to form a complete integrated object. That commonsense dictionary definition is in har- mony with the context provided by the rest of the stat- ute. State v. Eggers, 372 Or 789, 800, 558 P3d 830 (2024) (“Context for a statute can include * * * other provisions of the same statute and other related statutes.” (Internal quota- tion marks omitted.)). The statute provides that “residential construction” includes “construction, reconstruction, major renovation or painting” and also allows the commissioner to consider additional definitions of “residential construction” from local ordinances, codes, or the prevailing practice of a particular trade or occupation. ORS 279C.810(2)(d). When the legislature uses the word “includes” in a definition, it “is often used to signal that the legislature did ‘not intend to confine the scope of a general term in a statute according to the characteristics of the listed examples.’ ” Bialostosky v. Cummings, 319 Or App 352, 361-62, 511 P3d 31 (2022) (quot- ing State v. Kurtz, 350 Or 65, 75, 249 P3d 1271 (2011)). “That is, ‘includes’ as used in a statutory provision often ‘convey[s] an intent that an accompanying list of examples be read in a nonexclusive sense.’ ” Id. (quoting Kurtz, 350 Or at 75) (brack- ets in Bialostosky). The use of the word “includes,” combined with the commissioner’s ability to consider additional defi- nitions, demonstrates that the legislature intended for the exemption to be a broad exemption for affordable housing, not the narrow carveout that BOLI claims that OAR 839- 025-0008(3), the “initial construction” rule, requires it to be. 32 DEVNW v. BOLI The Department of Labor’s (DOL) memo, cited within the statutory definition of “residential construction,” provides a similar context: It, too, reflects a broad definition with a focus on the final, integrated object. In that memo, the Wage and Hour Division sought to explain its policies “with regard to the determination of ‘projects of a character similar to the contract work’ for wage determination purposes under the Davis-Bacon and related acts.”1 DOL first explained the proper focus in determining the character of a project is “the nature of the project itself in a construction sense.” DOL Memo 1 (emphasis added). DOL further explained that it makes its determination by looking at several characteristics of the project, “including the construction techniques, the mate- rial and equipment being used on the project, the type of skills called for on the project work and other similar factors which would indicate the proper category of construction.” Id. at 2. The memo then lists different classifications of con- struction projects, such as “Building Construction” (which includes churches, alterations and additions to buildings, and apartment buildings over four stories) and “Residential Construction” (which includes “the construction, alteration, or repair of single family houses or apartment buildings of no more than four (4) stories in height”). The memo does not limit itself to “new” construction on bare land.2 As we understand BOLI’s rule, then, the “initial construction” of residential construction would mean the initial building of projects included within the “residential construction” label of the DOL memo, as opposed to the initial building of projects included within the “building construction” label. That is what occurred here: Petitioner engaged in the initial 1 The Davis-Bacon Act generally requires prevailing wage to be paid on fed- eral public works projects. Stockton v. Silco Construction Co., 319 Or 365, 368, 877 P2d 71 (1994) (citing 40 USC § 276a et seq, renumbered as 40 USC §§ 3141-3144, 3146, 3147). The wages “shall be based on the wages the Secretary of Labor deter- mines to be prevailing for the corresponding classes” of workers employed on “proj- ects of a character similar” to the federal public works project. 40 USC § 3142(b). 2 We note, too, that applying DOL’s memo to the facts of this case brings peti- tioner’s project squarely within the affordable housing exemption. For example, the “construction techniques” used to construct petitioner’s project included add- ing full kitchens and full bathrooms to every living unit—techniques much more associated with building housing than with renovating a church. The “materials and equipment” used on the project—which include different windows that allow for fire egress—are also more associated with residential building than commer- cial as well. Cite as 353 Or App 25 (2026) 33 building of housing, and housing is a project included within the “residential construction” label of the DOL memo. Next, the legislative history of the statute supports a broad definition of “construction” of residential hous- ing as the initial building of a residential housing proj- ect, regardless of whether the project began on bare land or repurposed older materials. Legislators and interested parties testified that the bill that would eventually become codified as ORS 279C.810(2)(d), the residential construc- tion exemption, was intended to provide clarity as to what projects would be subject to prevailing wage rates. Audio Recording, House Committee on Business and Labor, HB 2557, Feb 21, 2007, at 7:45 (testimony of Jessica Adamson, representative of Associated General Contractors), 12:27 (testimony of Bob Shiprack, Executive Secretary, Oregon Building Trades Council), 31:40 (testimony of Dan Gardner, Commissioner, Bureau of Labor and Industries), 1:16:52 (tes- timony of Sophia McDonald, Executive Director, Association of Oregon Community Development Organizations), https:// olis.oregonlegislature.gov (accessed Sept 1, 2026). Even before examining the relevant testimony, it seems evident that BOLI’s approach will lead to less clarity around pre- vailing wage rate requirements, not more. Under BOLI’s approach, it could be said that a project that utilizes the foundation, exterior walls, and certain exterior windows of a previously existing non-residential structure cannot qualify for the affordable housing exemption, because those kinds of facts can tip a project into becoming the “major renovation” of a non-residential building. But what about a project that only utilizes the foundation? Or a non-street facing exterior wall? Or a project that utilizes the same aspects of a resi- dential structure? We will be left in a situation where devel- opers cannot tell whether they qualify for the exemption, and—contrary to the purpose of the exemption—housing costs will rise as a result. Our approach, on the other hand, will provide greater clarity: By looking to the final char- acter of the project—as the legislature intended—one can easily assess whether it qualifies for an exemption or not. The testimony from affordable housing advocates and community development organizations in support of 34 DEVNW v. BOLI the bill was overwhelmingly positive, further reflecting the legislative intent to provide a strong and expansive exemp- tion. Phil Donovan from the Oregon Association of Housing Authorities, testified that, “perhaps most importantly, by passing this legislation we’ll keep private investments com- ing into affordable housing in Oregon.” Audio Recording, House Committee on Business and Labor, HB 2140, Apr 2, 2007, at 17:11 (testimony of Phil Donovan, Oregon Association of Housing Authorities), https://olis.oregonlegis- lature.gov (accessed Aug 10, 2026) (emphasis added). Taken with the text and context, then, the legislative history sup- ports a broad exemption from the general prevailing wage law and supports an interpretation of “construction” that is not limited to construction on bare land. Applying that interpretation to the facts of peti- tioner’s case, it is clear that petitioner’s project is the initial construction of affordable housing. In its final order, BOLI cited to its administrative rule as support that petitioner’s project is not residential construction because it was not the first time that buildings were constructed on the land. But that rule is not fatal to petitioner’s plans. Rather, petition- er’s project does qualify as affordable housing construction under BOLI’s rule, because it was the initial construction of affordable housing. Prior to petitioner’s project, there was no affordable housing on the church lot. Petitioner, for the first time, built internal walls, kitchens, and bathrooms, to create residential housing where none previously existed. Petitioner thus engaged in the initial construction “of single- family houses or apartment buildings” meant to be used as “affordable housing.” ORS 279C.810(2)(d). BOLI’s interpretation is contrary to the legisla- ture’s intent. As petitioner testified below, BOLI’s interpre- tation would “basically mean that we’re unable to look at building other than new construction * * * or rehab of where there are already apartments.” Indeed, petitioner raised the concern that other affordable housing developers would not be able to consider any projects that involve repurposing other buildings. As discussed above, that result would dif- fer significantly from the testimony the legislature received regarding how the affordable housing exemption would Cite as 353 Or App 25 (2026) 35 help promote continued private investment in affordable housing. It is additionally unlikely that affordable housing advocates and developers would be in full support of the exemption if “initial construction” of affordable housing meant never being able to utilize portions of existing struc- tures, as BOLI contends, because it would require them to completely tear down existing structures and start from scratch, when they could save money by repurposing use- ful materials. See Audio Recording, House Committee on Business and Labor, HB 2944, Apr 2, 2007, at 15:23 (tes- timony of Phil Donovan, Oregon Association of Housing Authorities), https://olis.oregonlegislature.gov (accessed Aug 10, 2026) (noting that neither housing authorities nor community development corporations, as the main afford- able housing developers in the states, are set up to be profit driven).3 Rather, a more likely interpretation is that the legislature intended for the exemption to cover afford- able housing, regardless of whether it uses some materials from a previous building. See Testimony, Senate Commerce Committee, HB 2944 A, Apr 2, 2007, Ex Q (statement of Sophia McDonald, Executive Director, Association of Oregon Community Development Organizations, describ- ing the early conversations around creating a law “to exempt small affordable housing projects from prevailing wages”); Audio Recording, House Committee on Business and Labor, HB 2944, Apr 2, 2007, at 25:55 (testimony of Bob Shiprack, Executive Secretary, Oregon State Building and Construction Trades Council), https://olis.oregonlegis- lature.gov (accessed Aug 10, 2026) (noting that the bill was supported by all the affordable housing organizations in the state and the community development networks). Because the text, context, and legislative history around the affordable housing exemption demonstrate that 3 For more on how adaptive reuse is being championed by affordable housing developers, see Tatiana Walk-Morris, How Adaptive Reuse Can Help Solve the Housing Crisis, Planning Magazine (May 1, 2021), https://www.planning.org/planning/2021/ spring/how-adaptive-reuse-can-help-solve-the-housing-crisis/. Adaptive reuse also has significant environmental benefits. See John R. Nolon, Pandemics and Housing Insecurity: A Blueprint for Land Use Law Reform, 46 Vt L Rev 422, 440 (2022) (“Adaptive reuse is often considered environmentally sustainable. It can help foster community density and fight urban sprawl, and some older buildings are built with seasoned materials that are often better quality and not even available today.”). 36 DEVNW v. BOLI the legislature intended for it to apply to the repurposing of an older structure to build affordable housing, we reverse. Reversed and remanded. TOOKEY, P. J., dissenting. The majority concludes that the Commissioner of the Bureau of Labor and Industries (BOLI) erred in its inter- pretation of ORS 279C.810(2)(d), which provides a residen- tial construction exemption from Oregon’s prevailing wage law. As the majority sees it, BOLI erred when it reasoned that, “[w]hile the [p]roject will be privately owned and will predominately provide affordable housing, the [p]roject does not meet the definition of ‘residential construction’ because the [p]roject includes the renovation of a church building, which is neither an apartment building or a single-family home.” According to the majority, “petitioner was engaged in the initial construction of housing—as intended by the legislature in the affordable housing exemption—because it was building affordable residential housing on property where none previously existed.” 353 Or App at 30. I see it differently; therefore, I respectfully dissent. Prevailing Wage Rate Requirements and Exceptions. “The hourly rate of wage that a contractor or subcontractor must pay to workers upon all public works may not be less than the prevailing rate of wage for an hour’s work in the same trade or occupation in the locality where the labor is performed.” ORS 279C.840(1). The legislature enacted the prevailing wage requirements, in part, “[t]o ensure that con- tractors compete on the ability to perform work competently and efficiently while maintaining community-established compensation standards,” and “[t]o recognize that local participation in publicly financed construction and family wage income and benefits are essential to the protection of community standards.” ORS 279C.805(1) - (2). “In accor- dance with applicable provisions of ORS chapter 183, the Commissioner of the Bureau of Labor and Industries shall adopt rules necessary to administer ORS 279C.800.” The legislature enacted an exception to the prevail- ing wage law for the development of affordable housing. In relevant part: Cite as 353 Or App 25 (2026) 37 “(2) ORS 279C.800 to 279C.870 do not apply to: “* * * * * “(d) Projects for residential construction that are pri- vately owned and that predominantly provide affordable housing. As used in this paragraph: “* * * * * “(D) ‘Residential construction’ includes the construc- tion, reconstruction, major renovation or painting of single- family houses or apartment buildings not more than four stories in height and all incidental items, such as site work, parking areas, utilities, streets and sidewalks, pursuant to the United States Department of Labor’s ‘All Agency Memorandum No. 130: Application of the Standard of Comparison ‘Projects of a Character Similar’ Under Davis- Bacon and Related Acts,’ dated March 17, 1978. However, the commissioner may consider different definitions of res- idential construction in determining whether a project is a residential construction project for purposes of this para- graph, including definitions that: “(i) Exist in local ordinances or codes; or “(ii) Differ, in the prevailing practice of a particular trade or occupation, from the United States Department of Labor’s description of residential construction.” ORS 279C.810. Evergreen Apartments Project. The underlying facts are uncontested. Petitioner purchased real property con- taining a church and a parsonage with the intent to develop affordable housing units. The parties agree that the project was privately owned, would receive more than $750,000 of public funds, and would predominantly provide affordable housing. Petitioner performed substantial demolition work on the church, leaving the foundation, exterior walls, and some exterior windows. Petitioner planned to build residen- tial apartments, leaving the existing foundation and exte- rior walls to look like a church. When petitioner sought a determination as to whether the project was subject to the prevailing wage laws, BOLI determined that the project did “not meet the definition of ‘residential construction’ ” because the project included “the renovation of a church building, 38 DEVNW v. BOLI which is neither an apartment building or a single-family home,” and therefore the project was subject to prevailing wage laws because no exception applied.1 Petitioner seeks review of BOLI’s determination, contending that BOLI erred in concluding that the project was not subject to the residential construction exemption under ORS 279C.810(2)(d) because, according to petitioner, it “involved the ‘construction’ of new apartments not more than four stories in height.” According to petitioner, the proj- ect “should have been categorized as ‘construction’ because it entail[ed] the initial construction of new apartments where the church formerly stood” and “[t]hat the [p]roject will repurpose some materials from the old church during construction does not change the fact that there will not be a church at project completion—only new apartments.” BOLI contends that the project was not “construction” as intended by the legislature, because the project would “utilize[ ] the old church’s exterior.” According to BOLI, “the legislature intended the term ‘construction’ to mean the initial con- struction of buildings or other structures.” The parties agree that the term at the heart of this case, “construction,” is an inexact term. “Determining what the legislature intended inexact statutory terms to mean is a question of law, accom- plished by applying the ordinary rules of statutory construc- tion.” Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or App 674, 680, 146 P3d 336 (2006), rev den, 342 Or 473 (2007). When construing a statute, our “paramount goal” is to discern the legislature’s intent by examining the text of the statute in context, any relevant legislative history, and, if necessary, canons of construction. See State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). We review BOLI’s stat- utory interpretation and legal conclusions for errors of law. ORS 183.482(8)(a); Springfield Education Assn. v. School Dist., 290 Or 217, 224-27, 621 P2d 547 (1980). Having reviewed the record, the law, and the legis- lative history, I would agree with BOLI. “We begin—as exer- cises in statutory interpretation always should begin—with 1 Petitioner does not contend that the project constituted a “major renova- tion” as defined by ORS 279C.810(2)(d)(D). Accordingly, the sole issue on appeal is whether the project should have been categorized as “construction” under ORS 279C.810(2)(d)(D). Cite as 353 Or App 25 (2026) 39 the text of the statute.” Gaines, 346 Or at 172. Under ORS 279C.810(2)(d)(D), “[r]esidential construction” is defined as “the construction * * * of single-family houses or apartment buildings not more than four stories in height.” (Emphasis added.) Looking to petitioner’s submitted plans and zon- ing application materials, BOLI concluded in its final order that the project would “retain the original structures and preserve the character of the buildings” and that petitioner “intended to preserve the walls of the church and as much of the exterior as possible so that the completed project would look like the church building that had been in the neigh- borhood for more than 100 years.” Based in part on those facts, BOLI concluded that the project involved the “ ‘major renovation’ of a church, rather than the ‘initial construction’ of an apartment building,” as contemplated by the statute. I would conclude that the statutory language supports BOLI’s conclusion that the project did “not meet the definition of ‘residential construction’ because the [p]roject includes the renovation of a church building, which is neither an apart- ment building or a single-family home.” Next, examining the text of the statute in context supports a conclusion that the legislature intended the term “construction” in ORS 279C.810(2)(d)(D) to mean the initial construction of buildings and other structures and not the kind of work proposed by petitioner. See OAR 839- 025-0004(5) (“ ‘Construction’ means the initial construc- tion of buildings and other structures, or additions thereto, and of highways and roads.” (Emphasis added.)).2 ORS 279C.810(2)(d)(D) defines residential construction “pursu- ant to the United States Department of Labor’s ‘All Agency Memorandum No. 130: Application of the Standard of Comparison ‘Projects of a Character Similar’ Under Davis- Bacon and Related Acts,’ dated March 17, 1978.” The All- Agency Memorandum (AAM No. 130) delineates several cat- egories of construction, including “Building Construction,” 2 OAR 839-025-0000 to 839-025-0750 refer to administrative rules gov- erning the application and enforcement of Oregon’s prevailing wage rate laws, including ORS 279C.810(2)(d)(D). BOLI’s definition of “construction” in OAR 839-025-0004(6) has been identical since at least 1997. See former OAR 839-016- 0004(5) (1997), renumbered as OAR 839-016-0004(6). The residential construc- tion exemption to the prevailing wage rate laws was passed in 2007. Or Laws 2007, ch 764, § 35. 40 DEVNW v. BOLI “Residential Construction,” “Heavy Construction,” and “Highway Construction.” All-Agency Mem. No. 130 at 2-6. “Building Construction” is defined as the “construction of sheltered enclosures with walk-in access for the purpose of housing persons.” Id. at 2. “Alterations and additions to buildings” and “[c]hurches” are listed as specific examples of “Building Construction.” Id. at 2-3. But ORS 279C.810(2)(d)(D) provides an exception to the prevailing wage rate laws only for “residential construc- tion,” not “building construction.” “Residential Construction” projects are defined by AAM No. 130 as those “involving the construction, alteration, or repair of single family houses or apartment buildings of no more than four (4) stories in height.” All-Agency Mem. No. 130 at 3. That language is consistent with the statutory text of ORS 279C.810(2)(d)(D) and the text of OAR 839-016-0004(5). Had the legislature intended for projects like peti- tioner’s to be exempt from the prevailing wage rate laws, it could have included a provision exempting “building con- struction” as defined by AAM No. 130 alongside the “residen- tial construction” exception. It did not. “In construing a stat- ute, we will not ‘insert what has been omitted.’ ” State v. Lee, 371 Or 200, 218, 532 P3d 894 (2023) (citing ORS 174.010). See also Morrison v. School District No. 48, 53 Or App 148, 152, 631 P2d 784 (1981) (stating that “we are guided by the general rule of statutory construction that exceptions to statutory requirements are to be narrowly construed”). Accordingly, I would not insert an additional exception for “building construction” into ORS 279C.810(2)(d)(D) here. Finally, the legislative history does not support peti- tioner’s argument. Testimony from the House Committee on Business and Labor for House Bill (HB) 2557 shows that the residential construction exemption to the prevailing wage rate laws was passed after the legislature heard testimony from labor associations, BOLI, construction contractors, and affordable housing nonprofit organizations. See Audio Recording, House Committee on Business and Labor, House Bill 2557, Feb 21, 2007, https://olis.oregonlegislature.gov/liz/ mediaplayer?clientID=4879615486&eventID=2007021190 (accessed May 19, 2026). The bill was intended to provide Cite as 353 Or App 25 (2026) 41 clarity as to what projects would be subject to prevailing wage rates. Id. None of the hearings included any testi- mony regarding the meaning of the term “construction” or whether the conversion of a non-residential building into residential housing would qualify as “residential construc- tion.” Accordingly, I would conclude that the legislative his- tory does not provide support for petitioner’s argument that BOLI erred when it concluded that the legislature intended “construction” to refer to “initial construction of buildings.” Reviewing for errors of law, and for the foregoing reasons, I would conclude that BOLI did not err as a matter of law when it determined that the project was a “renovation of a church building” and the attached parsonage, rather than construction of “an apartment building or single-family home.” Because BOLI found that no other exception to the prevailing wage rate laws under ORS 279C.810 applied to the project, I would hold that BOLI correctly determined that the prevailing wage rate laws, ORS 279C.800 to ORS 279C.870, and OAR Chapter 839, Division 025, applied to petitioner’s project. Therefore, I respectfully dissent.