*1 6, Argued 23, 21, May rehearing March reversed denied June COUNTY, Petitioner, CLACKAMAS
v. ux, DUNHAM et Respondents.
(TC 25644) CA SC
Mark P. respondents. argued the cause for Gerber, Portland, LENT, J. opinion. dissenting J.,
Howell, dissenting opinion. J., Linde, LENT, J. and application
This case involves the construction (Ordi of a Clackamas Ordinance County Zoning only nance) In mobile home. it to defendants’ pertains defend enjoin Clackamas filed suit County residence and to their mobile home as a ants’ use of to ORS use as a nuisance pursuant abate such public (1975).1 (1975) The trial court 215.180 and 215.185 mobile home as found that defendants’ use of their Ordinance, declared a public residence violated the nuisance and ordered it enjoined permanently to the Court of abated. The defendants appealed Clack reversed, which, court, a divided Appeals, ux, P2d amas v. Dunham et 595,567 30 Or App (1977), and defendants’ mobile home held that We the Ordinance. an use under outright permitted inconsistency allowed review to address an apparent reached between this result and that v. rev County Ague, Í386, 27 Or 556 P2d S Ct App (1976). den *3 undisputed. facts are
The essential Prior to October (which (1975), repealed by § 1 ORS215.180 was 1977 Laws ch 766 Or 16), provided: location, erection, construction, maintenance, repair, altera- "The subdivision, structure, building a or other other tion or use of or the land, regulation partitioning, in or use of violation of an ordinance or by shall be ORS 215.010 to 215.190 and 215.402 to 215.422 authorized deemed a nuisance.” (which 6), (1975), § by amended 1977 Or Laws ch 766 215.185 ORS provided: be, is, proposed is building or other structure or "In case a used, any altered, land maintained, or constructed, repaired, or located, regulation used, or be, in of an ordinance is, violation proposed to or is 215.422, the to a 215.190 and 215.402 by 215.010 to ORS authorized governing whose county person attorney or body district or by the county affected or be property in the is in real interest law, by institute provided violation, may, other remedies in addition to abatement, proceedings mandamus, appropriate or other injunction, abate, remove enjoin, or permanently temporarily or prevent, alteration, or maintenance, construction, repair, location, unlawful instituted suit granted in a restraining temporary order a use. When undertakings furnishing or exempt bonds from is not by person who in provided undertaking as 22.010, person furnish shall ORS under to 32.060.” ORS 32.010 in eastern 1, 1972, defendants owned a 8-acre parcel designation zoning Clackamas which bore the County, (Recreational Residential). of "RR” This designation allowed a outright as the "single family dwelling” only Ordinance, permitted use.2 The defines passed "single as: family dwelling” kitchen,
"A building detached one de- containing for and signed occupied exclusively by one the household a trailer employes family, of that but not added) Zoning (emphasis housed Ordinance, § 3.2. house,” turn,
A "trailer the Ordi- is defined nance as a: "* * * building designed such a manner (§ 3.2)
may be moved from one location to another.” is defined as: Finally, "building” "* * h= shelter, structure any support, built for the animals, any person, property enclosure of chattels or (§ 3.2) kind.” any 1, 1972, installed the defendants On October their land. is the of this suit on subject structure which wide structure, as a "double which is known are bolted home,” consists of two units which 24 feet (approxi- and measures feet by 68 together Each feet of usable living space). mately square included with a chassis which was manufactured unit Ordinance, 22.3, County Zoning pertinent § provides, 2 Clackamas part: "22.3 Permitted Uses: district, following are "In recreational residential uses provided: allowed as hereinafter Principal "A. uses single-family dwelling per parcel "1. unit of land. One lot or "B. Conditional uses *4 following subject "1. The use uses be allowed as a conditional 12.4, hearing, procedure public to Section 8 and Section for this Ordinance: «‡ í}: ij( ‡ sf: parks, density "c. with Mobile home an allowable maximum of four * * *” (4) acre; per mobile homes
[422] tongue springs a with and three Two axles attached. wheels were attached Each was to each axle. unit independently property delivered the to defendants’ poured a behind diesel tractor. The had a defendants prior delivery concrete foundation to the of the two arrived, units. When the units removed defendants tongue, cutting springs axles, wheels and with a placed and torch had the emits on the side side together foundation. The units were then bolted kitchen, anchored down. The structure contains living dining utility room, room, area, room, three bedrooms and two It self- bathrooms. has heating, plumbing systems. contained and electrical began immediately to reside Defendants only its been and, children, with have their structure occupants. front skirted, and a The was structure backyard patio porch property Defendants’ were added. landscaped un- A circular was and fenced. highway driveway paved leads from a two-lane defendants’ structure.3 investigated September agents plaintiff’s
In question, it as "trailer the structure house” identified Ordinance, under the and informed defendants they April In were violation thereof. seeking injunction plaintiff complaint filed a an against use defendants’ further of their mobile a residence violation of the Ordinance public permanent nuisance which abatement of allegedly de- Defendants defendants’ use constituted. interposed affirmative nied the violation and various including allegations a was defenses, single-family that their house outright
dwelling permitted and thus an vagueness, void for use, that the Ordinance was violating applied ORS Ordinance void as appear- states, has "The structure opinion below The After App 598. at 30 Or conventionally home.” constructed of a ances characteriza- disagree with this must we photograph-exhibits, viewing the case. disposition this however, important our is not point, tion. *5 215.055 (1975),4 the Ordinance was unconstitu- tional as applied as an creating impermissible classifi- cation in violation of the Fourteenth Amendment of the U.S. I, Constitution and Art § of the Oregon Constitution, and that the Ordinance as vio- applied lated the policy provisions of the Clackamas County Comprehensive Plan.
The trial court issued a decree permanently abating defendants’ use of the structure as a residence as a public nuisance and such enjoining use. Defendants (1) to the appealed Court of Appeals, error assigning the trial court’s failure to invalidate the application the Ordinance to the present case as a violation of ORS 215.055 and the policies set out in the Clackamas (2) County Comprehensive Plan; the trial court’s failure to deny plaintiff’s requested injunction based (3) on "unclean plaintiff’s hands”; the trial court’s failure to find the Ordinance to defend- inapplicable (4) ants’ "mobile particular home”; and the trial court’s failure to find the Ordinance unconstitutional to the applied defendants as a denial of equal protec- tion.
The Court of reversed, Appeals holding defendants’ structure was not a under "trailer house” 215.055(1) (1975) provides: ORS "Any comprehensive plan zoning, and all other subdivision or regulations ordinances and authorized ORS 215.010 to 215.233 and adopted 215.402 to prior 215.422 and expiration year to the of one following approval the date of the planning goals of state-wide and guidelines under ORS 197.240 designed promote public shall be health, safety general and welfare following and shall be based on the considerations, among others: The various characteristics of the county, various areas in the suitability particular of the areas for improvements, land uses and improvements the land uses and areas, improvement, trends in land density development, property values, the needs of enterprises development economic in the future areas, particular areas, needed access to sites in the natural resources, including energy utilization, county incident solar of the prospective thereof, development needs for and utilization and the healthful,
public safe, need for surroundings aesthetic and conditions.” Ordinance, the definition in the it was a single- dwelling thus an outright permitted use.5 Schwab, dissent, decrying Judge his Chief In homes, majority’s holding result —"that removed, an are etc., axles, wheels, are once sing- County use in all Clackamas outright permitted 608, opines Or at zones” —30 le-family App residential Ordinance in the house” the definition "trailer had failed what Columbia accomplishes v. 25 Or App County Kelly, in Columbia accomplish *6 (1976) rev den (dissenting opinion S Ct 548 P2d Schwab): a "once the embody principle to Judge Chief house], home.” trailer a mobile always [or of the reversal for review seeks Plaintiff’s petition that the defendants’ determination Court Appeals’ the not a "trailer house” as defined structure was the trial court We reverse and reinstate Ordinance. decree. the indicates
The tenor of below majority opinion was for being plaintiff’s that the decree reversed to the in question failure structure prove it sat on its foundation and therefore movable as We "trailer house” under the ordinance definition. case, of this as one an assess- involving conceive not the such, but involving ment of the evidence as as one the of the Ordinance pertinent construction of sections facts. undisputed their to the basically application here of "trailer house” We the definition repeat in the Ordinance: given *«* * it building such a manner designed from location to another.” may be moved one manufacture refer to for the design Does "designed” the the for installation building design the building? opinion vagueness pointedly of the court the issue but discusses Judge Lee, rejects concurring opinion, this
does not it. in a brief resolve discussion, indicated, the issue does dissent. As below Appeals. properly was not before Court of Appeals
The Court of latter; i.e., chose if portability destroyed by is installation, manner of "building” longer is no a "trailer house.” This allowing would have the effect of the owner of the highway containing smallest travel trailer a kitchen proscription by simply to avoid the of the ordinance affixing the trailer to his RR land in such manner permanently destroy portability. its We cannot believe that the framers of the ordinance intended absurdity. logical former; i.e.,
We choose the we find it more "designed” design refers to for the manufacture of building. probably It that, is true that this means "building” manufacturer, is a as it leaves the which If is forever a mobile home.6 the authors mobile home otherwise, ordinance intended it have would easy say. building hold, been so to We therefore that a meaning is a trailer house within the of this ordinance building designed if the be manufactured such manner that be moved from one location to being expressly Such a structure, another. excluded single-family dwelling, from the definition of a is not outright permitted an use in the RR zone.7 *7 implies 6 The a of the ordinance below that such construction component parts necessarily would of conven all include within its ambit tionally ignores constructed "building” homes. That the word in the definition of "trailer house.” A truckload of lumber meet or bricks cannot "building” the definition of contained in the ordinance. installation, logically argued "designed” that even if refers to 7 Itcan be installation, portable. by proof, their mobile home was Its defendants’ own words, following: consisted of the in defendants’ own place "The unit together was slid into and bolted and anchored down.” Presumably, present it could be moved from its location to another i.e., reversing process; anchors, removing unbolting the above the the units sliding and portability them out to be moved to another location. On the continuum, highway conventionally with a travel trailer on one end and a other, clearly portability constructed house on the it is closer to the end of the continuum. reversed, the decision is Appeals Court of
The
decree reinstated.8
trial court
8
assignments
error
of
cited four
previously, defendants
As indicated
Appeals reversal obviated
Appeals.
of
The Court
the Court of
before
them
assignments.
each of
of
We have considered
consideration
these
requires
the
carefully
reversal of
concluded that none
either a
and have
decree or extensive discussion here.
trial court
against
be
that the Ordinance should not
enforced
Defendants claim
215.055(1),
law,
the
of
is
with mandates
state
ORS
them it
inconsistent
health, safety
5,
"promote
supra, requiring
public
the
n.
it to
see
welfare,”
including
encouragement
cost
the
of low
general
housing.
such welfare
However,
requires
"prop-
consideration of
the same statute also
safe,
healthful,
public
surround-
erty
ings
need for
aesthetic
values” and "the
potentially
The choice of how to balance these
and conditions.”
legislative
prevent enforce-
conflicting
a
one and cannot
considerations is
particular
in this
ment of the Ordinance
case.
against
the
the Ordinance
also claim that
enforcement of
Defendants
Plan,
County Comprehensive
with
them is inconsistent
the
general policy
"[m]obile
as a
modular homes should
which states
fulfilling
encouraged
appropriate, as means
limited income
be
where
a
added)
housing
language again
(emphasis
indicates
needs.”
The italicized
encouragement
legislative
the
is
discretion about where
of mobile homes
this
appropriate.
not
It is not for the courts to disturb the exercise of
is
legislative judgment in a case such as this one.
plaintiff
guilty
appears
This
Defendants claim
of "unclean hands.”
merely
repeat
argument
be
of the
above.
to
discussed
inapplicable
struc-
the Ordinance is
to defendants’
Defendants claim
home)
(double
ture,
at the
wide mobile
was unknown
since such structure
was drafted in 1960. The fact that defendants’
time the Ordinance
longer
not
than
existed in 1960 does
structure was wider and
those which
earlier date.
it does not fall within
definition set out at the
mean that
As demonstrated
opinion,
cited
in the text of this
it does fall within the
argument
such
to leave
definition.
result
defendants’
would be
totally unregulated,
compel its
structures
result so unreasonable as
rejection.
Finally,
Ordinance
the enforcement of the
defendants claim
against
impermissible
homes
constitutes an
classification of mobile
them
homes,
conventionally
denying
thus
them
as distinct from
constructed
however,
classification,
such,
not
equal protection
subject
That
of the laws.
(Art
Oregon
I
protection
equal protection
clauses
20)
(14th Amendment) Constitutions,
it
§
since
or the United States
however,
Defendants,
things,
persons.
not
involves the classification of
wealth,
underlying
since
is one based on
claim that
mobile homes
classification
provide housing primarily
persons. Even
for
low-income
classification,
equal
efficacy
passes
assuming
the latter
Constitution,
Oregon
ex rel
v. State
protection tests
under the
Olsen
both
(1976),
Johnson,
Constitution,
United States
Or
HOWELL, dissenting. I dissent. The majority opinion misconstrues ordinance, Clackamas County giving a meaning that potentially violates County Clackamas Com- prehensive Plan the goals of the state’s Land Conservation Commission. Development
The issue before this court is whether defendants William and Mary Dunham violated a Clackamas County zoning ordinance when their new they put 1,500 square foot mobile home on their property. ordinance provides, as follows: part,
"Permitted Uses: "In a District, Recreational following Residential are uses allowed as provided: hereinafter "A. Principal Uses "1. single-family One dwelling unit lot or per (§ 22.3)
parcel of land.” is "Single-family dwelling” defined the ordinance as: kitchen,
"A building containing detached de- one signed occupied for and exclusively by one the household employees family, of that a trailer but not (§ 3.2) house.” is "Trailer house” defined as: "* * * building designed that it such a manner (§ 3.2) be moved from one location another.” Thus, is issue whether modem mobile specific homes are "trailer houses” within meaning County ordinance.1 way, Stated another are modem mobile homes manner such a designed that be moved from one they may location to another?
It is conceded a mobile to be built place moved from the initial manufacture to its But I do not believe homesite. the ordinance decision this case 1 The the mobile home in proscribed trailer under constitutes house the 1960 Clackamas bearing municipal should no on ordinance ordinance have some other homes, houses, relating to mobile trailer or modular homes. ]
[428 The words initial movement. to cover intended *9 from moved a manner that it be in such "designed a design to another” connotes one location words, In other movement. foresees continual to be that are designed buildings ordinance proscribes and off again. on the lot moved be to are designed modem mobile homes Generally, If the to the homesite. the dealer once —from moved then the controlling, initial design manufacturer’s of feet home, 1,500 over square this mobile size of of difficulty and the cost and floor space, usable design the manufacturer’s it is evidence moving initially placed. moved after it was it not be was that installer’s hand, we must look to the If, the other on foun- to a the mobile home’s attachment then design, wheels, and of the axles dation, the detachment skirt and driveway, patio the addition of a tongue, fix on the design part purchaser all to a point so home to that of piece property the mobile had if installer moved again. Surely, would not be he would the mobile again, intent to move home any wheels, axles, springs have removed not home on torch and cutting placed with a tongue foundation. itself,
In to the of the ordinance language addition argues of trailer houses and mobile homes history different result this case. The ordinance for a in the time art when the state of the passed was such that industry phrase home had a unrelated "trailer houses” meaning modem mobile homes. reality homes, and early house trailers were not mobile "The perma- by occupants or intended their regarded not vehicles, recreational dwellings. They were small nent manufac- design long, simple 10 or feet usually useful, and ture, easily light, transportable, practical, Roberson, Mobile Hodes and The Law economical.” (3d 1974). 1.1 ed Homes Ch. from trailer houses excluding reason for major One trailer was the transient nature residential areas dwellers: "The development of mobile homes generally as a acceptable form of housing has come about recently so the stereotyped picture of the 'trailer dweller’ still
raises the hackles of many tradition bound community planners.” Shepard’s Mobile Homes and Mobile Home (1975). Parks 3
When the ordinance was enacted, trailer houses were vehicles whose mobility was determined one’s desire to go. Today, mobile homes are an alternative type economical housing. The of modem "mobility” mobile homes is more myth than reality. "The mobile home dweller is not inclined to move his * * * required unless to do so. Most of the
occupants of mobile homes prefer to long remain for periods park neighborhood which they have * * * grown to like. *10 "Mobility, fact, has become important only moving the home from center, factory to dealer’s sales and from there to homesite. A 20-foot-wide mobile home comprising two sections requires two high- licenses for movement, way but only one for mobile park (Footnote registration.” omitted.) Roberson, Hodes and supra at 8. Thus, given language of the ordinance and the history development homes, it seems clear that the ordinance was to exclude designed structures be moved on and off the land like trailer houses. This mobile home does not fit definition.
I cannot believe that a x 24' with structure 68' 1,500 square feet living kitchen, space containing room, living area, dining room, room, utility three bedrooms two bathrooms on a con- placed crete foundation constitutes a trailer house within the of the 1960 meaning Clackamas ordinance.2 County I would affirm the Court of Appeals. 2 I my interpretation also conclude that of the 1960 ordinance is consistent with County Comprehensive Clackamas Plan and with the
goals guidelines of the state Development Land Conservation and Commission. dissenting. LINDE, J., dissenting opinion join
I in Justice Howell’s question "trailer house” here not a the structure County meaning of the 1960 Clackamas within only add to stress I a few sentences Ordinance. opinion well as point in the made general rule this no dissent, concerning decision states solely inter- or but mobile modular homes governments particular prets that ordinance. Local may, adopt their law, and amend within limits of objectives, even the use to meet their ordinances carry necessarily the same the same words does not interpretation in the ordinances different cities words if there is reason to that the counties conclude they in a were meant different sense when were might adopted. cho- have when include structures such the Dunhams’ sen to they for use, but made "trailer houses” conditional I not Howell, reasons stated Justice do believe did so.