266 P.3d 170
Or. Ct. App.2011Background
- Crook County approved a dog breeding kennel in RR(M)-2 where kennels are not permitted under the current code.
- The county verified the pre-existing kennel as a lawful use under ORS 215.130(5) by treating it as a nonconforming use from 1977.
- Dispute centers on whether the 1973 code would have permitted the kennel, i.e., whether it falls under 'animal husbandry' exempt from zoning restrictions.
- County relied on CCC 1.060 and on Linn County v. Hickey to classify the kennel as animal husbandry.
- LUBA affirmed the county; Siegerts sought judicial review; the court applies Siporen's deferential Plausibility standard to the county's interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1973 code allowed kennels as animal husbandry | Siegert kennels are not farm uses under 1973 code; 3.170 and 1.060 conflict. | County's interpretation that animal husbandry includes dog kennels is plausible and consistent with 1973 code. | Plausible interpretation; affirmed county's construction. |
| Whether admission of post-record testimony was harmless error | Weber testimony improperly used as factual basis. | Even if error occurred, it was harmless under review standard. | Harmless error; affirmed. |
| Whether the court properly applied the Siporen plausibility framework | County's method is not a plausible interpretation of express language. | County conducted a 'considered determination' harmonizing provisions. | County's interpretation was plausible and entitled to deference. |
Key Cases Cited
- Linn County v. Hickey, 98 Or. App. 100, 778 P.2d 509 (1989) (Or. App. 1989) (dog kennel within animal husbandry under pre-1985 ORS 215.203)
- Siporen v. City of Medford, 349 Or. 247, 243 P.3d 776 (2010) (Or. 2010) (plausibility standard for interpreting local land use regulations)