263 P.3d 355
Or. Ct. App.2011Background
- Respondents operate Romantic River Gardens on a parcel zoned as EFU, with a home occupation CUP allowing weddings, receptions, reunions, and anniversaries.
- Original 2003 CUP restricted events to one per weekend from Memorial Day through September and imposed conditions including use of contractors for event production and noise controls.
- In 2010, respondents sought an amendment to expand the home occupation to include more types of events and up to two weekend events and one weekday event, with a cap of 300 people per week; planning commission approved, board denied review, and petitioners appealed to LUBA.
- LUBA held that the county misapplied ORS 215.448(1) but sustained the county’s reliance on LUDO 1.040.2 and remanded for interpretation of that provision.
- The county’s decision lacked an explicit, adequate interpretation of LUDO 1.040.2, and its findings treated the provision as immaterial to approval, prompting further review under ORS 197.829(2).
- The court concludes that LUBA erred in interpreting LUDO 1.040.2 and that the meaning of ORS 215.448(1)(c) regarding “building” is broader than a strictly enclosed structure, necessitating remand for interpretation and potential reapplication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did LUBA properly review the county's interpretation of LUDO 1.040.2? | Green argues the county failed to provide a reviewable interpretation and LUBA misapplied deference. | Douglas County contends its interpretation was plausible and entitled to deference under ORS 197.829(1). | Remanded for explicit interpretation of LUDO 1.040.2. |
| What does 'building' mean in ORS 215.448(1)(c)? | Gazebos/pavilions are not buildings, so operation cannot be substantially in a building. | Building meaning includes structures like gazebos/pavilions if normally associated with farm uses; enclosure is not required. | Meaning is not confined to enclosed structures; gazebos/pavilions may count if reasonably associated with the zone. |
| Is 'employ' under ORS 215.448(1)(b) limited to employees of the residents? | The five-person limit applies to all individuals producing events on site, regardless of employment source. | Limit counts those employed by the resident or their agents; attendees’ staff do not count. | Agree with LUBA that 'employ' includes those producing events on site, regardless of employer. |
| Should the case be remanded for interpretation of LUDO 1.040.2? | Yes, because the county did not provide an adequate interpretation. | No intrinsic basis to remand beyond the existing record. | Remanded for county interpretation of 1.040.2 under proper standards. |
Key Cases Cited
- Siporen v. City of Medford, 349 Or. 247 (2010) (defers to local interpretation if plausible and consistent with text and policy)
- Alliance for Responsible Land Use v. Deschutes Cty., 149 Or. App. 259 (1997) (adequacy of interpretation for review depends on useful written explanation)
- Opp v. City of Portland, 153 Or. App. 10 (1998) (permissive independent interpretation when local interpretation is missing or inadequate)
- Clark v. Jackson County, 313 Or. 508 (1992) (deference to local interpretation under ORS 197.829(1))
- Gage v. City of Portland, 319 Or. 308 (1994) (foundation for deference to local land use interpretations)
- State v. Gaines, 346 Or. 160 (2009) (statutory construction and contextual approach to statutory terms)