*1 August May reversed Argued COUNTY, Respondent, CLACKAMAS ux, Appellants. et DUNHAM 6817) (No. 91323, CA P2d 605 argued Mark P. O’Donnell, Portland, the cause for appellants. With him on the brief were John W. Shonkwiler O’Donnell, Gerber, Rhoades & Port- land. *2 Parker,

Scott H. Counsel, Clackamas Ore- gon City, argued the cause and filed the brief for respondent. Judge, Schwab,

Before Chief and Lee Johnson, Judges.

JOHNSON, J.

JOHNSON, J. declaring decree

Defendants the trial court appeal its their mobile home a nuisance and enjoining public October use as a residence on defendants’ On property. 1, 1972, wide” mobile defendants erected a "double RR home designated on their which property (Recreational Residential) The County. county zoning ordinance provides:

* * * *

"22.3 Permitted Uses: district,

"In a recreational residential the fol- hereinafter lowing pro- uses are allowed as vided:

"A. Principal uses

"1. dwelling One unit lot or single-family per

parcel of land.

"B. Conditional uses

"1. following uses be allowed as a may subject

conditional use to Section 8 and 12.4, Section procedure public hearing, this Ordinance:

c. Mobile home with an allowable parks, (4) maximum density of four mobile homes acre;

per Defendants do not use permit. have conditional Section 3.2 of the ordinance sets the pertinent forth definitions:

* * * * A "Dwelling. building designed for residential occu- * * * pancy, but not a trailer. house A "Dwelling, Single-Family. detached con- kitchen, taining designed occupied one for and exclusive- one and ly by family employees the household of that * * * family, but not a trailer house. ^[******] Building designed

"Trailer Houses. in such a manner may be moved from one location to another.” 1,500 The structure in has feet and square question x 24 is 65 feet. It was constructed and transported two units separate which were anchored subsequently to a preconstructed together. foundation bolted kitchen, room, The house contains living dining room, room, family room and three bedrooms. utility axles, The tongue, wheels and were removed springs when the house was erected. The foundation has skirted, been subsequently a front added to- porch with a gether back patio. surrounding property has been fenced, landscaped, driveway and a circular installed. The structure has the appearances conventionally constructed home. The contends county the structure is a "trailer house” and thus a nonper- mitted use.

In Ague, (1976), P2d 1386 review denied Ct we held the subject ordinance was constitutional in that a could make a county reasonable classification between conventionally homes, constructed homes and mobile stating: recognizable

"Defendants’ most argu- constitutional ment is an equal protection claim: that it is unconstitu- distinguish tional to conventionally between constructed homes and mobile homes. Such a may, distinction show, most of argument defendants’ attempts equal unwise. But protection inquiry only minimum rationality. minimally The distinction is ra- reasons; one, tional for several to cite it is widely realtors, believed appraisers, tax etc. that convention- ally constructed homes appreciate tend to in value while mobile homes tend depreciate in value. This is sufficient zoning distinguish enable ordinances to between the forms housing. [Citing case.]” two A constitutional pertinent question, which was not *4 Ague or raised in either here and which we do not reach, is whether the ordinance definition "trailer of house” is sufficiently certain for of determin- purposes

[598] up points use.1 The question a non-permitted ing in this statute a vague underlying problem applying any Conceivably, injunction proceeding.2 another.” location to be moved from one "may that are to structures ordinance refers presumably movable, provided is no standard but there readily for the or those with the enforcement charged either to Lane Coun- determination. See making courts for such (1961). 627 Co., 152, 364 P2d v. Heintz Const. 228 Or ty in the definition phrase The additional descriptive to our enlighten- manner” adds little such "designed Schwab, Judge dissenting opinion respect of Chief all due for the With to be implication definition that we would hold the ordinance there is no unconstitutionally vague. possible issue this constitutional We mention apply difficulty by attempting posed to illustrates the because case difficulty compounded vague statutory language to concrete facts. The changing technology. past or "mobile In the the terms "trailer house” equip commonly type refer to a of vehicular home” were understood to However, changing technology home” because of the term "mobile ment. appears encompass just equipment. Mobile home more than vehicular apparently prefabricating and has become a method of construction transporting components stationary nature. for residential structures of a type County may prohibit structure The if Ordinance the latter of However, proof in-place that the is still movable. there is structure question any presented, more irrespective there are constitutional precise quoted in footnote which definitions available such as those prohibit type of this structure. 1, 548 County Kelly, P2d Ct review 2In Columbia upheld zoning we a ordinance which differentiated between denied there, Significantly, the ordinance at issue mobile and conventional homes. unlike the Clackamas ordinance, only portability applied test not home, defining physical a mobile but also to other characteristics. in The ordinance looked defined mobile home to be: " having 'Any portable foundation vehicle or similar structure no wheels, jacks skirtings designed as than or and so or constructed ” other permit occupancy living sleeping purposes.’ at 5 or 14.03, Anderson, 2d, Zoning points § more American to an even 2 R. explicit Law Charlotte, Carolina, a mobile which defines ordinance North home as follows: " (32) portable dwelling thirty-two 'A feet movable or over (8) wide, transported length eight on its and over feet constructed to be foundation, designed permanent whether or own chassis without permanent subsequently provided, which includes foundation is not a transporting purposes components be retracted for one or more and that can (2) subsequently expanded capacity, or more for additional or two integral designed joined separately transportable into units but ” unit, composed single portable dwelling unit.’ well as a *5 ment. The term infers the "design” that structure constructed with a conscious intent it may be moved the future. The feature must requisite design be be interpreted to and refer prospective not to to initial construction. Otherwise the ordinance would be prohibition all buildings. Any structure mov- able its initial construction. Materials must be delivered the site. Even conventionally con- structed home entails some such as components, cabinets, that are and assembled before prefabricated to the delivery site. The modem or prefabricated modular house involves even fewer components are readily movable to the The site. county’s only witness, a planner, testified that in his the opinion ordinance does not modular prohibit prefabricated homes. The definition is not concerned with the of materials portability or to the construc- components site, tion but whether the of the design "building,” and completed make it place, contains features that movable from one location to another.

Defendant contends that county has not proved that defendants’ home was a trailer house as defined in the ordinance. The sole witness for the was a county planner who investigated violations and inves- zoning tigated violation at issue here. He stated alleged basis for whether defend- determining ants’ home was a trailer house was his visual inspec- tion and "the state affixed to the insignia” building. the state Presumably reference is that which insignia may under OES 446.170.3 required insignia Such merely indicates with compliance by manufacturer * * * certain state "to requirements protect [against] provides: 446.170

3ORS "(1) subject provisions of Trailers and recreational vehicles 446.200, upon 446.155 to and and recreational vehicles ORS trailers illuminating, plumbing, heating, of installations which alterations of cooking equipment thereto an or electrical are made shall have affixed insigne compliance. "(2) person insigne compliance place on a trailer or No shall except provided by 446.155 to 446.200 and recreational vehicle ORS regulations promulgated and thereunder.” rules plumbing, heating, substandard unsafe ilhiminat- ing, cooking equipment and electrical and installa- 446.185(2). insignia tions.” ORS whether the structure The not evidence of

may be moved from one location to another. county’s upon

The witness cross examina- examina- conceded nothing tion that there was from Ids visual distinguish tion from defend- which he could between conventionally ants’ home and constructed homes as movability or otherwise. defendant testified to the together bolting foundation, construction *6 anchoring the two units and the units the founda- tongue, springs, tion, axles, removal of the and wheels skirting of and of the foundation construction adjoining porch, patio county The no fences. made any effort to rebut or that this evidence to show steps these had not rendered the structure immovable. county attempts rely The on defendant’s admis that sion the structure is characterized as a "mobile home” and that the terms "mobile home” and "trailer interchangeably house” are used in the Clackamas County County Ague, ordinance. In v. supra, acknowledged we interchangeability of these in terms the ordinance. county’s argument in The defect ordinance does not define "mobile home” and thus the definition of "trailer house” is defendants’ home is called a "mobile home” and that it

applicable. fact The originally transported was on in wheels two units does not make it a trailer house. The issue is not how the place site, arrived on the but whether in design readily retained features that made it movable any from its location. The record is devoid of evidence movability. prove Plaintiff has failed to that defend ants’ home a trailer house. appellant County Ague, supra,

In Clackamas v. argued also that his mobile home not would constitute opinion a trailer house. Our in that case did not deal merely upheld issue, with that but the statute as to the constitutionality of in that the classification. The facts was case are different in that there the mobile home single property unit stored on the with its wheels App 449, Schumacher, intact. In Yates citing Ague, affirmed, we P2d 771 Per Curiam injunction abating a home as a nuisance mobile mobile The under the Clackamas ordinance. practically identical home at issue there was in Yates the distinction is that defendants’. county proceedings instituted before the construction completed. It the factual differ- was is doubtful that Ague in either Yates or were of substantive ences significance. Appellants the same in both cases made assignments in both of error as made here. However primarily appellant cases, here, those relied constitutionality arguments relating of the to the any in our In event we did not address classification. Ague assignments opinions error Yates the or relating county’s proof mobile that the to the failure question to that were trailer houses and homes we were error. extent Reversed. concurring. J.,

LEE, county prove failed to concur because house.” We defendant’s "mobile home” a "trailer *7 App County Ague, erred in Clackamas (1976), Sup Ct review denied 556 P2d 1386 equated "trailer with we "mobile home” when Ague progeny be should to that extent and its house”— appro- requires Technological modified. evolution agree priate I the of home.” with definition "mobile vagueness not be should the issue of dissent raised. dissenting.

SCHWAB, J.,C. cases, from Clackamas a all We have had series of attorney, apparently County, the same which association, part representing has home trade a mobile ^[602] repeatedly presented "Brandéis briefs” about the wis- desirability allowing dom and mobile homes. Were I legislator, many a state or local I would find of these arguments cogent. today argu- However, until these judicially cognizable by ments not were deemed single judge. Today perseverance repeatedly the praising produces the virtues of mobile homes majority opinion holding that mobile are an homes outright permitted single family use in all residential County. zones in Clackamas disagree I specifically with this conclusion, and (I) disagree majority points: with the on three (II) constitutionality zoning ordinance; (HI) interpretation of applica- the ordinance; and tion of the ordinance in this case. majority implies that the definition of mobile County Zoning

home in the Clackamas Ordinance— "Building designed may in such a it manner that moved might from one location to be void another” — vagueness. majority As the notes, that issue "was parties not raised” in the trial court or this App majority court. 30 Or do not reach” the at 598. The next claims "we

vagueness issue. 30 Or at 598. majority But the then enters into a discussion of the issue, only the thrust of that, which had been raised, the definition of "trailer house” in the Clack- County Zoning amas Ordinance would be held uncon- stitutionally vague.1 suggestion fraught potential

This with for wreak- ing Oregon appropri- havoc with which, land-use law referring vagueness being "pertinent constitutional After text standard,” provides question” complaining that the ordinance "no point 598-99, majority intent to in a footnote the claims Or precise App at n 1. If more out "there are definitions available.” imply zoning majority’s least textual comments do not at respect, unconstitutionally vague, with due I do not then all ordinance any gratuitous on the relative comments think it is of our business make statutory precision definitions. *8 submit, I What is filled with elastic terms.

ately See congestion”? convenience” and "traffic "public 281, al, Or 330 Witnesses v. Mullen et 214 Jehovah’s 5, 74 and cert P2d ALR2d 347 dismissed appeal (1959). accessory 359 436 What a "detached den US Means, 56, See, structure”? Yunker v. 271 530 P2d Or (1975). estab- What is a "commercial amusement 846 See, v. County Morgan, lishment”? Clatsop (1974). of "predom- What are areas 1393 P2d 173, 526 cannot be generally to IV soils that I Class inantly” the continua- smaller size than for "appropriate lots enterprise agricultural tion of the commercial existing Land and Develop- within the area”? Conservation 660- Commission, Administrative Rule ment Oregon 10-060, A, Lands. 13, Goal p Agricultural Appendix 3— many is that land-use law contains point Oregon My County at least as as the Clackamas ambiguous terms vagueness definition of mobile home. The majority’s doubt, least, validity on the say discussion casts of law.2 large body raised the Since the has majority spontaneously I feel it problem, necessary respond. vagueness v. State Bd. doctrine was discussed Palen vagueness P2d Education, 442, 446-47, 525 Or App Higher (1974): Ct review denied " rough is a idea doctrine vagueness 'The root of 104, 110, 92 S Ct fairness.’ 407 US Kentucky, Colten (1972). 1953, 32 being The ultimate criterion L Ed 2d fairness, in statutes and degree required of precision the con regulations upon depending varies somewhat greatest spectrum text. At one end —where majority certain.provisions from ch which contains 2The cites ORS statutory subject homes. The statutes on the of mobile extensive state subject apply to which these statutes reads: definition of " means a vehicle or structure constructed "Mobile home’ cooking sleeping, public highways, that has movement being facilities, occupancy used plumbing is intended for human and is 446.003(19). purposes.” for residential ORS constitutionality of the Clackamas majority has If the doubts about definition, moved, i.e., designed presume doubts these same to be substantially apply the foundation of to ORS ch 446 which is built on would definition, i.e., constructed for movement. the same defining statutes precision required degree —are *9 491 21, P2d See, Hodges, 254 Or 457 crimes. State v. 239, P2d White, 495 (1969); City Portland v. of (1972). end 778, the other Ct review denied Toward defining the are, example, the for statutes spectrum of its and relationship employer governmental between a a common typically that articulate employes—statutes per- employes applicable myriad standard forming to different widely tasks. disparate "Thus, upheld the has Supreme United States Court of context broadly statutory worded standards in the 134, S Kennedy, 416 US 94 public employment. Arnett v. 1633, (1974), 40 L v. Letter Ct Ed 2d 15 and CSC Carriers, 548, 2880, 413 L Ed 2d 796 US 93 S Ct 37 court are the In Arnett the leading examples. § 5 USC federal civil upheld provides 7501 which such cause employes discharged 'only service could be for In Letter as will promote efficiency the of the service.’ the prohibition Carriers court the Hatch Act upheld part active against taking certain federal 'an employes 5 political political campaigns.’ in or in management 7324(a)(2). Oklahoma, 413 also, §USC See Broadrick v. (1973).” 601, 93 S Ct Ed 2d US 37 L 830 Where on the precision continuum between required do permitted regulations land-use imprecision I hold nature of fall? would in some instances the impre- the at least as much subject requires permitted in the context cision as public employer-employe in Palen. involved limited

The uses to land can be put only which are man, seemingly ranging the infinite of ingenuity a wilderness to a mine. Govern- from preserve strip be as efforts land use mental control can An subject example as the matter permits.3 specific Goal— Lands Agricultural cited LCDC previously brief define, an in a few attempt manageably the State millions of acres paragraphs, 3 controls, height limitation, land-use with Some such as be stated can precision. issues, power siting mathematical Other such as the a nuclear plant, general simply precise cannot be determined based standards 460-63, Elect., applicability. See Marbet v. Portland Gen. (1977). P2d 154

Oregon where the use must principal permitted agricultural. implication refuse to join majority’s Agricultural Lands Goal and much of Oregon land-use law is unconstitutionally vague.

II In discussion, the constitutional com- majority * * * * * * plains "there is no standard provided courts of what making” determination is a mobile home. 30 Or majority 599. Yet has no we apparently difficulty what have deciding here is not. The is in fact majority actually supplying the standard the defini- through interpretation tion of home mobile in the Zoning Ordinance.

In dissent my Columbia County Kelly, *10 Or 1, 163, 548 P2d App Ct review denied I stated that local governments are free define mobile to home, home in a such that "once a way always mobile a mobile home.” 25 Or at 8. the App zoning Whether ordinance involved in that case had done so was the that question divided court. the it, that issue us. I the Again As read Clack- splits amas County in such "Building a designed definition — manner that moved may be from one location to home, another” —does mean "once a mobile always mobile home.” definition determina- only requires tion of whether a at building, the moment construction was was be completed, designed readily so as to portable always assuming, course, it has not — been so altered as to lose its substantially original identity.

It is not clear to me whether the intends to majority hold that local governments are powerless provide home, "once a mobile home.” It always mobile clear to me that the hold that intends to majority not do Comity Clackamas Ordinance does so. Zoning This from re- partial clarity emerges majority’s defend- peated emphasis question is whether at 30 Or "in home place.” is a mobile ants’ abode 600, 601. the completed-and-in-place reasons

The majority in- construction because all "must” be adopted test movable readily that are "components volves here is fallacy at 600. The 30 Or App site.” whether focuses County definition unit; as a moved designed building building aup that make components portability irrelevant. m of the application theories of the divergent Our interpreta- different ordinance follow from our zoning defendants’ believes The majority apparently tions. onto it was towed a mobile home the day abode was October defendants’ "On property, stating: home on wide’ mobile defendants erected a 'double * * In the 597. their Or property view, a mobile being this ceased majority’s axles, were springs home when the wheels and tongue, to be "designed it was no longer removed because within the of the ordinance.4 meaning moved” home, hand, a mobile On the other under "once my the ordi- a mobile interpretation home” always home. Its nance, defendants’ is now a mobile abode and use is violation occupation continued the trial court’s ordinance. would affirm zoning use. this injunction abating illegal IV *11 sweeping makes a In summary, majority today axles, wheels, homes, once the mobile holding: repeatedly concurring opinion state opinion prevailing and the 4The home, suggesting prove is a mobile county defendants’ abode failed to Actually, basis. being narrow factual decided on a case is this holding: legal that a a broad majority’s is based on conclusion etc., wheels, removed. are "designed being be moved” once ceases any county present standard, impossible legal it is this Under remains wheels home sans that a mobile that would establish evidence home. mobile ^[607] etc., removed, are are outright use all permitted single family residential zones. This follows from the majority’s implicit conclusion if defendants’ abode not prohibited mobile home must abe permitted family single dwelling. This holding will come as a undoubtedly surprise defendants’ who neighbors watched defendants’ abode towed onto the subject In common sense and property. common usage, defendants’ would neighbors have regarded the thing saw towed into the they neighbor- hood as a But, mobile home. according to majority, it ceased to be a mobile home once the wheels were removed. "It is a scheme which would fool lawyer.” Martin v. Oregon Building Authority, 276 Or (1976). 135, 145, P2d I respectfully dissent.