1000 Friends of Oregon v. Clackamas County1000 Friends of Oregon v. Clackamas County
Affirmed on petition; reversed in part and remanded on cross-petition.
Andrew Mulkey argued the cause and filed the briefs for petitioner-cross-respondent.
Tyler Smith argued the cause and filed the briefs for respondent-cross-petitioner.
Carol Macbeth filed the brief amicus curiae for Central Oregon LandWatch.
No appearance for respondent Clackamas County.
Before Lagesen, Presiding Judge, and James, Judge, and Hadlock, Judge pro tempore.
JAMES, J.
Affirmed on petition; reversed in part and remanded on cross-petition.
JAMES, J.
This case involves a decision by the Land Use Board of Appeals (LUBA) that remanded Clackamas County‘s order granting a conditional use permit to the applicant, Mark Herkamp, to host events as a “home occupation” within the meaning of
1000 Friends of Oregon petitioned for judicial review of LUBA‘s order, arguing that LUBA erred by affirming the hearings officer‘s decision on Herkamp‘s stаtus as an operator and the five-person limitation. Herkamp cross-petitioned for review of the two issues on which LUBA had remanded to the county—the renovation of the barns and the construction of the restroom building. For the reasons explained below, we reverse LUBA‘s final order as to the renovation of one of the barns, but we otherwise affirm on the petition and cross-petition.
I. BACKGROUND
We draw the pertinent background facts from LUBA‘s final order and from undisputed evidence in the record. The property at issue, located south of Oregon City in Clackamas County, is approximately 12.5 acres and is zoned EFU. In addition to an existing residence, there are two barns on opposite corners of the property: a lower barn in one corner and an upper barn in another. Herkamp applied to the county for a conditional use permit to allow him to host events on the property as a “home occupation.”
“Home occupations” are among the exceptions to the general prohibition on nonfarm uses in EFU zones. See
“(a) It shall be operated by a resident or employee of a residеnt of the property on which the business is located;
“(b) It shall employ on the site no more than five full-time or part-time persons;
“(c) It shall be operated substantially in:
“(A) The dwelling; or
“(B) Other buildings normally associated with uses permitted in the zone in which the property is located; and
“(d) It shall not unreasonably interfere with other uses permitted in the zone in which the property is located.”
Herkamp‘s proposed plans for the “home occupation” included renovating the two existing barns to accommodate event use. The upper barn was the smaller of the two, and the proposed renovation would create space for small meetings and ancillary spaces (“brides and grooms” rooms) that could be used in conjunction with larger events held outside or in the lower barn. The renovation also would add two single-user ADA restrooms to that barn.
The lower barn, which was much larger, was framed on top of naturally sloped dirt, and the walls did not extend to the ground. Herkamp‘s proposed renovation included a new entry vestibule, emergency exit doors, and six large garage-style doors along the building‘s sides. He also proposed new siding, weаtherization, and soundproofing; a floor for dancing; a catering preparation area with sink but no cooking equipment; a service entrance; a patio; and a parking lot.
In addition to those renovations, Herkamp proposed a separate new building for two restrooms to serve the lower barn, with new septic and water systems with a capacity to serve up to 300 people. One of the restrooms had two toilet stalls, and the other had a toilet stall and a urinal. Each restroom had two sinks.
A hearings officer for the county received testimony at a public hearing on the application, including opposition from 1000 Friends. Among other things, 1000 Friends asserted that the renters, not Herkamp nor his employees, would be “operating” the events for purposes of
The hearings officer ultimately approved the application, with certain conditions. 1000 Friends then appealed that decision to LUBA, arguing that the heаrings officer misconstrued the “operator” requirement in
LUBA rejected the assignments of error regarding the operator and five-person requirements, but it agreed with 1000 Friends about the extent of the renovations and new construction. LUBA further concluded that, “because it may be possible for the county to approve the home occupation without the extensive renovations and construction elements for the barns and additional restroom building, remand is the appropriate remedy.”
Neither side was wholly satisfied with that decision. 1000 Friends seeks judicial review of LUBA‘s order regarding the operator and five-person requirements under
II. DISCUSSION
A. Petition for Review
We begin with the issues presented in 1000 Friends’ petition. In doing so, we review LUBA‘s order to determine whether it is unlawful in substance,
Both of the issues presented in 1000 Friends’ petition challenge LUBA‘s construction of
1. Prior construction of ORS 215.448
The petition for review by 1000 Friends is directed at LUBA‘s interpretation and application of
“The ‘It’ referred to in
ORS 215.448(1)(a) and (b) is intervenors’ home occupation. UnderORS 215.448(1)(a) the home occupation must be operated by ‘a resident or employee of a resident.’ Intervenors are the residents and as far as we are informed they have not operated and will not operate the event-site home occupatiоn, and intervenors have no employees and do not intend to hire employees to produce events on the site. Assuming as we do that the 2010 CUP permits intervenors’ home occupation to operate in that manner, it would appear to violate theORS 215.448(1)(a) requirement that intervenors event-site home occupation must be operated by intervenors and their employees.”
Id. at 224 (emphases added). However, the “operator” issue had not been raised by the petitioners, who had focused instead on the five-person limit in
Turning to the petitioner‘s challenge to the five-person limit, LUBA disagreed with the county‘s distinction between the use of independent contractors and employees on the site:
“We agree with petitioners that as
ORS 215.448(1)(b) is worded, its five person limit is not so easily avoided. The ‘it’ inORS 215.448(1)(b) is intervenors’ event-site home occupation. UnderORS 215.448(1)(b) , that event-site home occupation may not ‘employ’ more than ‘five persons.’ Intervenors event-site home occupation ‘employs’ the persons who are required to produce events on the site, within the meaning ofORS 215.448(1)(b) , whether they are intervenors’ employees or independent contractors or whether they are the employees or independent contractors of the attendees of the events. In either case the event-site home occupation employs those persons to produce the event.”
63 Or LUBA at 224-25 (footnote omitted). LUBA‘s opinion referenced the Webster‘s definition for “employ,” which includes “1a : to make use of b : to use or occupy (as time) advantageously c : to use or engage the services of; also : to provide with a job that pays wages or a salary or with a means of earning a living d : to devote to or direct toward a particular activity or person e : OCCUPY.” Webster‘s Third New Int‘l Dictionary 743 (unabridged ed 1981), quoted in Green I, 63 Or LUBA at 225 n 26 (emphases added).
The petitioners sought judicial review of that decision. In a published opinion, we affirmed LUBA‘s decision with regard to
On remand, LUBA noted that our decision had not disturbed its conclusion that contractors can be “employed” for purposes of the five-person requirement. Green v. Douglas County, 67 Or LUBA 234, 244 (2013) (Green III). However, LUBA then proceeded to address an additional argument that the county raised on remand specifically about what it means to be employed “on the site.” Because LUBA‘s analysis in Green III directly informed its decision in this case, we recite it at length:
“In one respect,
ORS 215.448(1)(b) appears to be unambiguous. UnderORS 215.448(1)(b) it would appear that a home occupation in an EFU zone could employ an unlimited number of full-time and part-time persons, so long as those persons are employed off-site rather than ‘on the site.’ The ambiguity inORS 215.448(1)(b) concerns persons who are employed on the site, and more specifically the ambiguity inORS 215.448(1)(b) is limited to determining how to count persons who are employed part-time on the site, since any employee who is employed full-time on the site would clearly count as one of the five persons permitted byORS 215.448(1)(b) .“*****
“Under the planning commission‘s interpretation, more than five different persons could be employed on the site, so long as no more than five persons are employed on the site at the same time.
“Petitioners contend
ORS 215.448(1)(b) limits the number of persons who are emplоyed on the site, whether they are employed on the site ‘full-time or part-time.’ Under petitioners’ interpretation ofORS 215.448(1)(b) a person who is employed on the site for one hour would count as one of the five personsORS 215.448(1)(b) permits the home occupation to employ on the site, and any part-time person who was employed on site for one hour that day after the first person left would count as another of the five personsORS 215.448(1)(b) permits. ***“Both petitioners’ interpretation and the planning commission‘s interpretation is
possible, because ORS 215.448(1)(b) does not specify the period of time that the five person limit is to be applied. ***“*****
“We doubt the legislature envisioned home occupations like the one at issue in this appeal. We also doubt the legislature considered the possibility that home occupations would employ potentially large numbers of persons who would shuttle onto and off of the site. The legislature likely intended the five person limit to apply at any given point in time (the planning commission‘s position) or per day (petitioners’ position), as opposed to per week, per month or per year. But the statute is simply silent about the period of time that the five person limit is applied to. Although it is a reasonably close call, we conclude the planning commission‘s interpretation is at least as consistent with the language of
ORS 215.488(1)(b) as petitioners‘. Under the planning commission‘s interpretation all that is required is to count the number of persons who are employed on the site at any given time. In our view, that interpretation requires less embellishment of the statute than petitioners’ interpretation.”
Green III, 67 Or LUBA at 244-46.
2. “Employ on the site” no more than five persons
With that backdrop, we turn back to the issues raised by 1000 Friends on judicial review, beginning with their argument that LUBA, relying on the same reasoning articulated in Green III, misinterpreted the requirement that the home occupation “shall employ on the site no more than five full-time or part-time persons” in
Rather than repeat LUBA‘s analysis, which essentially readopted the analysis in Green III, we supplement it to explain why we agree that the five-person requirement limits a home occupation to five persons concurrently employed on the site and reject 1000 Friends’ narrower construction.
As LUBA has pointed out,
In light of that prior construction, the phrase “employ on the site” refers to using or engaging the services of persons on the site to carry out the home occupation business. And, we can draw two additional conclusions from that text. The first is that the verb “employ” is in the present tense, suggesting an ongoing or current use or engagement rather than past or future use or engagement of services. Martin v. City of Albany, 320 Or 175, 181, 880 P2d 926 (1994) (“The use of a particular verb tense in a statute can be a significant indicator of the legislature‘s intention.“). In other words, the text supplies no reason to believe that the limit was intended to reach back to count persons who were employed or used in the past to operate a business.
Second, by implication, the phrase “employ on the site” suggests that a home occupation
Considering those features of the text and its history, we agree with LUBA‘s conclusion that the five-person limit refers to persons who are presently used for or engaged in services on the site for the home occupation. It is not, as 1000 Friends contends, a “total and absolute limit on the number of people employed on site by a home occupation.”
The hearings officer found that it was feasible for Herkamp to staff events with no more than five persons on the site at one time, and LUBA determined that there was substantial evidence to support that finding. We are not persuaded that LUBA‘s determination was based on a misinterpretation of
3. “Operated by a resident or employee of a resident”
We turn next to 1000 Friends’ contention that Herkamp‘s events will not be “operated by a resident or employee of a resident” as required under
Regardless of what LUBA said in the context of an undeveloped issue in Green II, we agree with its construction of the statute in this case. The plain meaning of the term “operate,” in the context of “operating” a business, is to “manage and put or keep in operation whether with personal effort or not < operated a grocery store >.” Webster‘s at 1581; see also id. (defining an “operator,” in part, as “a person that actively operates a business (as a mine, a farm, or a store) whether as owner, lessor, or employee“). Given that ordinary meaning, and the absence of any context or legislative history that suggests a different meaning of that term, we agree with LUBA‘s conclusion in this case that evidence that “the applicant is responsible for operational matters such as maintaining the event calendar and monitoring noise and sign removal” is “evidence upon which a reasonable person would rely to conclude that the applicant will operate the home occupation.”2
In his cross-petition, Herkamp challenges LUBA‘s decision to remand in two respects. First, he argues that LUBA improperly substituted itself as the factfinder in determining that the proposed alterations to the barns would change their character. Seсond, he argues that LUBA erred in its treatment of the proposed restroom building near the lower barn.
1. Character of the barns
Herkamp‘s first assignment of error requires us to consider LUBA‘s application of the substantial evidence rule to the hearings officer‘s finding that the proposed modifications to the lower and upper barns “would hardly change their identification as barns.” In doing so, we review “LUBA‘s application of the substantial evidence rule for legal correctness and do not review the evidence independently for substantiality.” Columbia Pacific v. City of Portland, 289 Or App 739, 756, 412 P3d 258, rev den, 363 Or 390 (2018) (internal quotation marks, citation, and brackets omitted). Thus, “where LUBA properly articulates the substantial evidence standard of review, we will affirm unless the evidence is so at odds with LUBA‘s evaluation that we can infer that LUBA misunderstood or misapplied the proper standard.” Id. (internal quotation marks, citation, and brackets omitted). Applying that standard, we agree with Herkamp that LUBA erred in remanding the hearings officer‘s decision regarding the renovations to the lower barn but affirm with regard to the upper barn.
At the county level, 1000 Friends argued that Herkamp was transforming the existing barns into event centers. The hearings officer rejected that claim, finding that, “[w]hile the applicant proposes to improve the barns by adding [] hard floors (rather than dirt) and sound/water
proofing[,] that would hardly change their identification as barns.” LUBA, however, reversed that finding:
“[W]e agree that changes to the lower barn with a dance floor, sound proofing, and an area described in the application narrative as catering preparation area (without cooking equipment) is an extensive renovation that changes the character of the building and is therefore not allowed by
ORS 215.448(3) [(providing that ‘[n]othing in this section authorizes the governing body or its designate to permit construction of any structure that would not otherwise be allowed in the zone in which the home occupation is to be established‘)]. The upper barn renovations add restrooms and ‘Brides and Grooms rooms‘; the floor plan does not show the existing barn horse stalls or other barn features and we assume they are proposed to be eliminated. We agree with petitioner that the upper barn renovations also violateORS 215.448(3) .”
(Emphases added.)
After reviewing the record, we agree with Herkamp that LUBA‘s conclusion as to the character of the lower barn is so at odds with the evidence that we can infer that LUBA misunderstood or misapplied the substantial evidence standard and instead substituted itself as factfinder. The evidence in the record is that the proposed “catering preparation area” is a walled off area in the corner of the structure. The structure itself is approximately 100 feet by 34 feet, or 3400 square feet. The walled off preparation area is approximately 10 feet by 25 feet, or 250 square feet—approximately seven percent of the structure. The evidence regarding the dance floor is that it will be a “hard floor” as opposed to the existing dirt, and the plans show a “slab.” In short, there is nothing
We reach a different conclusion as to the upper bаrn. Although Herkamp‘s arguments on judicial review sometimes refer to both barns, he represented at oral argument that he does not independently challenge LUBA‘s treatment of the upper barn. To the extent that he is raising arguments as to that barn, we reject them. In his briefing to LUBA, Herkamp referred to the upper barn as his “horse stall barn” or “horse stalls barn.” LUBA determined that the proposed plans for that smaller structure (864 square feet) showed renovations to divide up the structure for space for small meetings and to accommodate ancillary spaces (bride and groom rooms), and to add two bathrooms (an additional 124 square feet), but the plans showed no horse stalls or other barn features. Regardless of whether we would reach the same conclusion as LUBA in the first instance, we cannot say that LUBA‘s determination about the change in character of that barn, in light of the plans submitted and the briefing before LUBA, was based on a misunderstanding of the substantial evidence standard.
2. Restroom building
Last, we consider Herkamp‘s second assignment, in which he contends that LUBA erred in overturning the hearings officer‘s determination concerning the additional restroom building proposed near the lower barn. The hearings officer determined that the restrooms were “‘uses and structures customarily accessory and incidental to a dwelling‘” and therefore “other buildings which are normally associated with uses permitted” in the EFU zone. On that issue, LUBA disagreed, reasoning:
“Although restrooms are a common component of modern dwellings, the new restroom building and its associated septic field are needed to provide ADA compliant restrooms and septic systems to accommodate up to 300 people at a time for a non-residential and non-agricultural use. There is no evidence to support a conclusion that the restroom building is accessory to the existing dwelling. Moreover, there is no evidence in the record that a free-standing restroom with the septic system capаcity to serve 300 people per event is a structure or use customarily associated with a dwelling on EFU land.”
(Emphasis omitted.)
As we understand Herkamp‘s assignment of error, it is that LUBA failed to appreciate that a restroom building is “permitted outright and it is an allowed use” in the EFU zone. For that reason, Herkamp contends, LUBA‘s order is unlawful in substance because it failed to defer to the county‘s interpretation of what is allowed as an “accessory” structure under its own code. See Siporen v. City of Medford, 349 Or 247, 261, 243 P3d 776 (2010) (“A LUBA decision is ‘unlawful in substance’ (in at least one way) if, in contravention of the standard of review set out at
We disagree with Herkamp‘s contention that the county interpreted its own code in this case in a way that would require any deference. Even assuming that the hearings officer‘s interpretation could qualify,3
Rather, we understand LUBA to have concluded that the hearings officer‘s decision that this restroom structure was “accessory” to a dwelling was not supported by substantial evidence. As described above, our review in that context is for legal correctness of LUBA‘s application
of the substantial evidence standard; we do not review the evidence independently for substantiality. Columbia Pacific, 289 Or App at 756. Under that deferential standard, we cannot say that LUBA‘s determination—that there was no evidence in the record that a freestanding restroom building of this type, with septic capacity for accommodating up to 300 people, is a structure accessory to a dwelling or customarily associated with а dwelling on EFU land—is so at odds with the evidence that it reflects a misunderstanding of the substantial evidence standard of review. For that reason, we reject Herkamp‘s second assignment of error.4
III. CONCLUSION
For the foregoing reasons, we reverse and remand LUBA‘s order to the extent that LUBA determined that proposed renovations to the lower barn would violate
Affirmed on petition; reversed in part and remanded on cross-petition.