483 P.3d 706
Or. Ct. App.2021Background
- Property: 12.5-acre EFU-zoned parcel in Clackamas County with a residence and two barns (a larger "lower" barn and smaller "upper" barn).
- Applicant (Herkamp) applied for a conditional use permit to host events as a "home occupation" under ORS 215.448, proposing renovations to both barns and a new freestanding restroom building sized/capacityed to serve up to 300 guests.
- Hearings officer approved the permit with conditions, finding Herkamp would be the operator, no more than five persons would be employed on-site at any one time, the barns would retain their character as barns, and the restroom building was accessory to the dwelling.
- 1000 Friends appealed to LUBA, arguing (among other things) that renters/contractors — not the resident — would operate events, the five-person limit was exceeded, the barn renovations converted barns into prohibited commercial event halls, and the restroom building was not an allowed accessory structure.
- LUBA affirmed the hearings officer on the operator and five-person-concurrent-limit issues but remanded to the county, concluding the barn renovations and restroom building were more extensive than ORS 215.448 authorizes.
- Both sides sought judicial review: 1000 Friends challenged LUBA’s affirmances; Herkamp cross-petitioned on LUBA’s remand regarding the barns and restroom building.
Issues
| Issue | Plaintiff's Argument (1000 Friends) | Defendant's Argument (Herkamp/County) | Held |
|---|---|---|---|
| Whether the home occupation must be "operated by a resident or employee of a resident" (ORS 215.448(1)(a)) | Renters/third-party contractors will actually operate events, so requirement not met | Applicant exercises operational control (scheduling, monitoring, bookings), so he is the operator | Affirmed LUBA: applicant qualifies as operator based on evidence of managing/operational control |
| Whether the five-person limit means total persons employed on-site ever versus concurrent cap (ORS 215.448(1)(b)) | Five-person limit should be a total/absolute limit (counts all persons used on-site regardless of timing) | Limit applies to persons employed on-site at the same time; off-site employees/contractors not counted if not concurrently present | Affirmed LUBA: five-person cap is concurrent (count persons present/engaged on-site at a given time) |
| Whether proposed renovations convert barns into structures not "normally associated with uses permitted in the zone" (ORS 215.448(1)(c) & (3)) — lower barn | Renovations (dance floor, soundproofing, prep area, garage doors, siding) convert barns to commercial event halls prohibited in EFU | Changes are minor relative to barn size/character; lower barn retains barn character | Reversed LUBA as to lower barn: LUBA substituted judgment; hearings officer had substantial evidence to find lower barn would remain a barn |
| Whether new freestanding restroom building (septic sized for 300) is accessory/customarily associated with a dwelling on EFU land (ORS 215.448(3)) | Not accessory; freestanding restroom sized for 300 is for a non-residential use and not customarily associated with a dwelling on EFU land | Restroom is an accessory structure and allowed; county interpreted its code to permit accessory restroom | Affirmed LUBA: remand upheld as there was not substantial evidence that such a freestanding restroom (with 300-person septic capacity) is accessory/customary to a dwelling on EFU land |
Key Cases Cited
- PGE v. Bureau of Labor & Indus., 317 Or 606 (methodology for statutory interpretation)
- State v. Gaines, 346 Or 160 (statutory interpretation framework)
- Green v. Douglas County, 245 Or App 430 (construction of "employ" and application to event-site home occupations)
- Martin v. City of Albany, 320 Or 175 (interpretive significance of verb tense)
- Columbia Pacific v. City of Portland, 289 Or App 739 (standard of review for LUBA’s substantial-evidence application)
- Siporen v. City of Medford, 349 Or 247 (deference to local government interpretation of its zoning ordinance)
- Tonquin Holdings, LLC v. Clackamas County, 247 Or App 719 (distinction on deference to hearings officer interpretations)