Richard Green v. Douglas County

2 After Douglas County (the county) approved an expanded conditional use

3 permit for respondents' home business, petitioners appealed to the Land Use Board of

4 Appeals (LUBA). Because it determined that the county's decision was inconsistent with

5 ORS 215.448(1), a statute that regulates home businesses in exclusive farm and forest

6 zones, LUBA remanded the case to the county. However, LUBA sustained the county's

7 determination that approval of the proposed development was consistent with Douglas

8 County Land Use and Development Ordinance (LUDO) 1.040.2, a code provision that

9 requires correction of ordinance violations as part of development approval. On review,

10 petitioners contend that LUBA applied the wrong standard when it reviewed the county's

11 application of LUDO 1.040.2. Respondents, who filed a cross-petition for review, assert

12 that LUBA erred in its interpretation of ORS 215.448(1). We conclude that LUBA erred

13 in its review of the county's interpretation of LUDO 1.040.2 and in its own interpretation

14 of the term "building" in ORS 215.448(1). Accordingly, we reverse and remand.

15 Respondents operate "Romantic River Gardens" on a parcel of land that

16 fronts the Umpqua River in Douglas County. The property is improved with a dwelling,

17 a shop, a gazebo, a 40-foot by 100-foot open-air pavilion, a 12-foot by 22-foot "catering

18 building," and a small building identified as a "bridal cottage" near the existing dwelling.

19 The property is zoned as a statutory exclusive farm use (EFU) zone that permits, as a

20 conditional use, a "[h]ome occupation as a use accessory to an existing dwelling."

21 LUDO 3.4.100(9).

2

1 In 2003, respondents were granted a conditional use permit that allowed

2 them to host "weddings and receptions, reunions, and anniversaries" on their property.

3 The permit imposed a number of conditions on the operation of the home business,

4 including that the business would be limited to "one event per weekend" during the

period after Memorial Day through the end of September.1 5

6 LUBA's opinion describes the operation of respondents' business:

7 "The operational details of the authorized events are not very clear from the

8 record. But for purposes of this appeal there does not appear to be any

9 dispute that [respondents'] participation in the events is largely limited to

10 providing their property with its supporting facilities. The actual

11 production of the events (conducting ceremonies, preparation of food and

12 drinks, playing recorded music and other entertainment and parking

13 management) is provided by caterers and other contractors, not by

14 [respondents] or employees of [respondents]. There also does not appear to

15 be any dispute that at least some of the events will be held in significant

16 part outdoors, weather permitting, in the grassy area behind the house along

17 the river, next to the gazebo and pavilion. For example[,] the record

18 includes photographs showing a large number of folding chairs set up in the

19 grassy area, presumably for a wedding."

20 In 2010, respondents applied for an amendment to the conditional use

21 permit in order to expand their business. Specifically, they sought to host (1) luncheons,

1 The permit imposed a total of 10 conditions, some of which pertain to physical

changes to the property. Condition 1 required that

"[t]he Home Occupation shall be limited to conducting weddings and

receptions, reunions, and anniversaries, and shall conform to the definition

and standards for Home Occupations, as specified in Section 1.090 of the

Douglas County Land Use and Development Ordinance (LUDO)."

Conditions 7, 8, and 9 related to noise mitigation (installation of a "neighborhood

sensitive sound system," preclusion of rented sound systems, and installation of a noise

barrier fence).

3

1 teas, business meetings, memorial services, birthday parties, bridal showers, and other

2 small events and (2) up to two events on weekends and one event during the week, with a

3 maximum of 300 people per week. The Douglas County Planning Commission entered

4 findings and approved the application as requested. After the board of county

5 commissioners denied review, petitioners appealed to LUBA. Respondents intervened in

the LUBA proceedings.2 6

7 Before LUBA, petitioners asserted that the county misconstrued local and

8 state law in issuing the amended conditional use permit. Petitioners argued that the

9 county could not issue the amended permit because of past violations of applicable law.

10 Further, according to petitioners, the requested amended conditional use permit would

11 likely violate those same legal standards. Those contentions largely related to the

12 application of ORS 215.448(1), which provides that

13 "[t]he governing body of a county or its designate may allow, subject

14 to the approval of the governing body or its designate, the establishment of

15 a home occupation and the parking of vehicles in any zone. However, in an

16 exclusive farm use zone, forest zone or a mixed farm and forest zone that

17 allows residential uses, the following standards apply to the home

18 occupation:

19 "(a) It shall be operated by a resident or employee of a resident of

20 the property on which the business is located;

21 "(b) It shall employ on the site no more than five full-time or part22

time persons;

23 "(c) It shall be operated substantially in:

2 Douglas County did not appear before LUBA and has not appeared in these

review proceedings.

4

1 "(A) The dwelling; or

2 "(B) Other buildings normally associated with uses permitted in the

3 zone in which the property is located; and

4 "(d) It shall not unreasonably interfere with other uses permitted in

5 the zone in which the property is located."

6 Petitioners claimed that both the original and the amended conditional use permit were

7 inconsistent with ORS 215.448(1)(c) because the event uses had not been and would not

8 "be operated substantially in" allowed buildings, in that most events occurred outside

9 enclosed buildings. Petitioners also asserted that more than five full-time or part-time

10 persons were used and would continue to be used to staff events, contrary to ORS

11 215.448(1)(b), and that there were inadequate findings to determine whether noise

12 generated by the events unreasonably interfered with adjacent uses under ORS

13 215.448(1)(d).

14 Before the county, petitioners had claimed that, under LUDO 1.040.2,

15 before approving the permit, the county had to consider past violations of LUDO 3.4.100

16 (the local code equivalent of ORS 215.448(1)) and the conditions of the 2003 conditional

17 use permit. LUDO 1.040.2 provides:

18 "A development shall be approved by the Director or other Approving

19 Authority according to the provisions of this ordinance. The Director shall

20 not approve a development or use of land that has been previously divided

21 or otherwise developed in violation of this ordinance, regardless of whether

22 the applicant created the violation, unless the violation can be rectified as

23 part of a development proposal."

24 The county concluded that the proceeding before it was "not a proceeding to determine

25 whether the current operation complies with the 10 approval conditions. That would be

5

1 the proper subject of an enforcement action."3

2 Before LUBA, petitioners contended that the county erred in its application

3 of LUDO 1.040.2. LUBA disagreed and held:

4 "We understand the planning commission to have interpreted LUDO

5 1.040.2 to require more than petitioners' allegations and presentation of

6 evidence that [respondents'] current event-site home occupation may violate

7 the LUDO or the 2003 CUP. We understand the planning commission to

8 have implicitly interpreted LUDO 1.040.2 to require a completed

9 enforcement action that concludes that [respondents'] event-site home

10 occupation is in violation of the LUDO or 2003 CUP. While the planning

11 commission's interpretation is not entitled to any deference under ORS

12 197.829(1), we cannot say that interpretation is erroneous. ORS

13 197.835(9)(a)(D)."

14 (Footnote omitted.)

15 On the other hand, LUBA concluded that the county did err in its

16 application of ORS 215.448(1) to the proposed conditional use permit amendment.

17 LUBA determined that (1) "in requiring that the home occupation operation be conducted

18 substantially 'in' a dwelling or building, the legislature had in mind and intended that

19 qualifying structures be enclosed, in order to reduce the size, impacts and externalities of

20 home occupations" so that activities within the gazebo and pavilion would not qualify as

21 being conducted "in" a "building"; (2) even if activities under the roofs of the pavilion

22 and gazebo were in buildings, the expanded home occupation might not be conducted

23 substantially in the dwelling and associated buildings, at least without any limiting

3 Although LUDO 1.040.2 refers to "the Director," the parties assume, as do we,

that it also regulates determinations by the planning commission when a decision has

been referred to the commission by the director of the planning department under LUDO

2.100.3.

6

conditions, 1 because the operations would not be conducted "largely" or "mainly" in the

2 dwelling or buildings; and (3) the home occupation business "'employs' the persons who

3 are required to produce events on the site, within the meaning of ORS 215.448(1)(b),

4 whether they are [respondents'] employees or independent contractors or whether they are

5 the employees or independent contractors of the attendees of the events" so that the

6 amended conditional use permit would need to be conditioned to avoid that statutory

violation.4 7

8 On review, petitioners assign error to LUBA's adoption of the county's

9 "implicit" interpretation that LUDO 1.040.2 applies only to implementation of completed

10 enforcement proceedings. Petitioners contend that LUBA's reasoning was incorrect

11 because (1) the county was obliged to, but in fact did not, interpret the code provision at

12 issue; (2) if the provision was interpreted by the county, no deference should be given to

13 the county's interpretation because it was not plausible; and (3) the interpretation was, in

14 any event, inconsistent with the text and context of the provision. Respondents, for their

15 part, suggest that the county did interpret LUDO 1.040.2 in stating its understanding of

16 the provision's effect on the pending land use application and that the interpretation was

17 plausible and entitled to deference under ORS 197.829(1).

18 We review LUBA's order to determine whether it is "unlawful in

4 LUBA also concluded that the county findings were adequate to explain why the

county believed that the noise impacts did not violate ORS 215.448(1)(d) or the local

code equivalent, and that the evidentiary record supported those findings. Those

determinations are not challenged on review.

7

1 substance." ORS 197.850(9)(a). In addressing whether LUBA properly analyzed the

2 county's interpretation of LUDO 1.040.2, we first determine the board's standard of

3 review. Pursuant to ORS 197.829(1), LUBA must affirm a local government's

4 interpretation of its land use regulations,

5 "unless the board determines that the local government's interpretation:

6 "(a) Is inconsistent with the express language of the comprehensive

7 plan or land use regulation;

8 "(b) Is inconsistent with the purpose for the comprehensive plan or

9 land use regulation;

10 "(c) Is inconsistent with the underlying policy that provides the basis

11 for the comprehensive plan or land use regulation; or

12 "(d) Is contrary to a state statute, land use goal or rule that the

13 comprehensive plan provision or land use regulation implements."

14 Thus, the statute requires LUBA (as well as a reviewing court) to defer to a local

15 government's interpretation of its land use regulations that is "plausible, and is not

16 inconsistent with the 'express language' of the provisions at issue or the purposes or

17 policies underpinning them." Siporen v. City of Medford, 349 Or 247, 266, 243 P3d 776

18 (2010). "A LUBA decision is 'unlawful in substance' * * * if, in contravention of the

19 standard of review set out at ORS 197.829(1), LUBA substitutes its own interpretation of

20 a local government's land use regulations for a plausible interpretation of those

21 regulations offered by the local government." Id. at 261. The rationale for that rule of

22 deference was explained in Siporen:

23 "[W]e note that ORS 197.829(1) is, in large part, a codification of this

24 court's holding in Clark v. Jackson County, 313 Or 508, 836 P2d 710

25 (1992). As Clark implied, 313 Or App at 515 (citing and describing

8

1 Anderson v. Peden, 284 Or 313, 587 P2d 59 (1978)), and as this court's

2 decision in Gage v. City of Portland, 319 Or 308, 316-17, 877 P2d 1187

3 (1994), later spelled out, at least one of the fundamental ideas behind

4 applying that standard is that, when a governing body is responsible for

5 enacting an ordinance, it may be assumed to have a better understanding

6 than LUBA or the courts of its intended meaning."

7 349 Or at 257-58 (footnote omitted). In light of the standard described in Siporen,

8 deference is owed under ORS 197.829(1) when (1) a governing body of a local

9 government; (2) makes an "interpretation" of its own land use policies; (3) that is

10 plausible and not inconsistent with the standards set out in the statute.

11 Here, the parties agree--as do we--that the decision at issue was made by

the local governing body.5 12 We turn, then, to whether the county made a reviewable

13 interpretation of LUDO 1.040.2. Petitioners contend that the county's decision does not

14 contain an interpretation that is adequate for review. Respondents, on the other hand,

15 contend that, in its decision, the county adequately interpreted the ordinance and that

16 interpretation "can be understood from reading its decision."

17 Whether a pronouncement suffices as an interpretation that is adequate for

18 review will depend upon the case. We observed in Alliance for Responsible Land Use v.

19 Deschutes Cty., 149 Or App 259, 266, 942 P2d 836 (1997), rev dismissed as

20 improvidently allowed, 327 Or 555 (1998), that "the test for whether an interpretation is

5 The Douglas County Board of Commissioners, the appropriate governing body in

this case, affirmed the decision of the planning commission and explained its reasons to

decline review--concluding, in effect, that the commission's decision was correct--and

ratified the commission's decision by incorporating that decision "as the Board's final

decision."

9

1 adequate for review is not a formulaic one and is not to be applied rigidly." However, to

2 be sufficient, an interpretation must suffice "'to identify and explain in writing the

3 decisionmaker's understanding of the meaning of the local legislation.'" Id. (quoting

Weeks v. City of Tillamook, 117 Or App 449, 452-53 n 3, 844 P2d 914 (1992)).6 4 Tested

5 by that measure, the county determination did not interpret LUDO 1.040.2 in a manner

6 sufficient for review.

7 The county's decision contains no explicit interpretation of LUDO 1.040.2.

8 The bare conclusion that the ordinance provision was immaterial ("[t]his is not a

9 proceeding to determine" how LUDO 1.040.2 applies to violations of approval

10 conditions) speaks to the scope of the provision, but not to its meaning. The county

11 finding does not discuss the text or substance of LUDO 1.040.2. Just as significantly, the

6 We note that ORS 215.416, which regulates the issuance of county land use

permits, also imposes an obligation on the county to explain its decisions. Pursuant to

ORS 215.416(9),

"[a]pproval or denial of a permit or expedited land division shall be

based upon and accompanied by a brief statement that explains the criteria

and standards considered relevant to the decision, states the facts relied

upon in rendering the decision and explains the justification for the decision

based on the criteria, standards and facts set forth."

A sufficient explanation pursuant to that statutory standard must identify the applicable

standards and criteria (those "considered relevant to the decision") and "explain" their

relevance if that association is not plain or obvious in the application. Conversely, when

a proposed standard or criterion is determined to be immaterial, to satisfy the requirement

of the statute, a local government must explain that disassociation unless it is plain or

obvious in the application. See Gould v. Deschutes County, 216 Or App 150, 159, 171

P3d 1017 (2007) (county master plan approval findings held insufficient under ORS

215.416(9) because of a lack of a sufficient description of the plan and justification based

on applicable approval standards).

10

1 county decision, after finding that violation of any operational condition was immaterial

2 under LUDO 1.040.2, then provides that "[s]ubstantial evidence in the record shows the

3 current operation complies with the 10 approval criteria imposed in 2003" and makes

4 factual findings on compliance with those conditions. Those findings seemingly

5 backtrack from any determination that LUDO 1.040.2 is immaterial to an approval of the

6 permit.

7 Nor can the county observation about the conditions reasonably be viewed

8 as an "implicit" interpretation of LUDO 1.040.2. An implicit interpretation of an

9 ordinance provision that is eligible for ORS 197.829(1) deference is one where "[t]he

10 practical effect of the findings is to give definition to the term" and where the "county's

11 understanding of [the term] is inherent in the way that it applied the standard." Alliance

12 for Responsible Land Use, 149 Or App at 267. That is, a local government's implicit

13 interpretation of an ordinance must carry with it only one possible meaning of the

14 ordinance provision and an easily inferred explanation of that meaning.

15 The county's application of LUDO 1.040.2 has neither of those qualities.

16 Again, the provision precludes "development or use of land that has been previously

17 divided or otherwise developed in violation of this ordinance * * * unless the violation

18 can be rectified as part of a development proposal." There are a number of ways that the

19 provision could apply or not apply to the conditional use permit conditions. It could only

20 limit, as LUBA inferred, development or use when there has been a past adjudicated

21 violation of land use or land division ordinances that cannot be remedied by the

11

1 development proposal.

2 On the other hand, "previously divided or otherwise developed" could mean

3 the physical status of the property as finally divided or developed so that the provision

4 only requires correction of any unlawful physical conditions at the time of the

5 development request. LUDO 1.090 defines "development" in this sense, as "[a]ny manmade

change to improved or unimproved real estate[.]"7 6 Alternatively, as suggested by

7 petitioners, the term "previously divided or otherwise developed" could include unlawful

8 actions taken to divide, develop, or use the property as part of its development even if the

9 ultimate physical status of the property is lawful.

10 Thus, a past violation of the operational conditions of the conditional use

11 permit here could be immaterial under LUDO 1.040.2 for different reasons, depending

12 upon the meaning of the provision (i.e., whether the ordinance provision only regulates

13 divisions of and physical changes to land, whether it supplements or depends upon other

14 enforcement remedies, or whether it only affects violations that can be "rectified" or

15 cured). The county's reason for arriving at any of those interpretations is not apparent.

16 Nor is that reason inherent in the result reached. Thus, we conclude that the county did

17 not interpret LUDO 1.040.2 as part of its decision, and that LUBA's opinion and order

18 was "unlawful in substance" under ORS 197.850(9)(a) in concluding that it did so.

7 Relatedly, LUDO 3.52.025 also regulates the physical condition of land at the time

of a permitting action and provides that "[n]o permit shall be issued by the Building

Official or any government agency for the construction, erection, location, maintenance,

repair, alteration or enlargement, or the change of use of a structure or property that does

not conform to the requirements of this ordinance."

12

1 Lacking an adequate interpretation to which deference could be owed, ORS

2 197.829(2) provides that "[LUBA] may make its own determination of whether the local

3 government decision is correct." As we noted in Alliance for Responsible Land Use:

4 "If the county decision does contain a reviewable interpretation of the local

5 provision, LUBA's and our review would be subject to the deferential

6 standard of Clark and ORS 197.829(1)(a)-(c). However, if a local decision

7 does not contain an interpretation of an applicable local provision, or no

8 interpretation that suffices for review, then ORS 197.829(2) becomes

9 applicable. It provides:

10 "'If a local government fails to interpret a provision of its

11 comprehensive plan or land use regulations, or if such interpretation

12 is inadequate for review, [LUBA] may make its own determination

13 of whether the local decision is correct.'

14 "We have interpreted the statute to mean that, when a local

15 governing body's land use decision lacks an essential interpretation of

16 applicable local legislation--or lacks an interpretation that is adequate for

17 review--LUBA and, in turn, this court, may interpret the legislation ab

18 initio and independently, as part of the process of reviewing the local

19 government's decision. * * * In such circumstances, the deferential standard

20 of Clark and of ORS 197.829(1) is, of course, inapplicable, because there is

21 no local interpretation to which deference can be accorded."

22 149 Or App at 264-65. However, as we stated in Opp v. City of Portland, 153 Or App

23 10, 14, 955 P2d 768, rev den, 327 Or 620 (1998):

24 "The statute itself says that LUBA may make an independent determination

25 concerning the correctness of the local decision in circumstances where the

26 local government has failed to interpret local legislation--at all or

27 adequately for review--that is pertinent to the decision. The statute makes

28 the reviewing body's exercise of the interpretive authority permissive rather

29 than mandatory. It thereby gives LUBA and the appellate courts the

30 alternative of remanding the decision to the local government to provide

31 any essential interpretation that the decision omits."

32 (Emphasis in original.)

33 Here, we conclude that the proceeding should be remanded to the county

13

1 for an interpretation and potential application of LUDO 1.040.2. As in Opp, the county

2 "is in a far better position than LUBA or we to interpret the ordinance provision and,

3 then, to make the largely factual and largely interdependent determination of whether the

4 provision as it interprets it applies to" respondents. Id. at 15. The meaning of LUDO

5 1.040.2 is far from obvious and could be clarified through interpretation of contextually

6 related ordinance provisions and the legislative history of the code section and its

7 application in other settings, insights that the county is better able to provide. Moreover,

8 for reasons explained below, the proceeding must be remanded to the county for further

9 action in any event, and no finality could be gained through an interpretation of LUDO

1.040.2 by LUBA or us.8 10

11 This brings us to the cross-petition for review. Respondents claim that

12 LUBA erred in concluding that (1) activities within the gazebo and pavilion would not

13 qualify as "in * * * buildings" under ORS 215.448(1)(c); (2) the requested permit would

14 need to be conditioned to assure that the home occupation activities occur "largely" or

15 "mainly" in the dwelling and any buildings in order to be "substantially in" those

16 structures under that statutory subsection; and (3) in order to comply with the

17 requirement that the home occupation "employ on the site no more than five full-time or

18 part-time persons," ORS 215.448(1)(b), a necessary condition of approval is that the

8 The parties do not discuss, and we do not decide, the applicability of ORS

197.835(11)(b). That statute requires LUBA to affirm a land use decision,

notwithstanding insufficient findings, if "the parties identify relevant evidence in the

record which clearly supports the decision."

14

1 home occupation business use five or fewer persons to produce events on the site,

2 without regard to whether those persons are employed by the property resident or

3 someone else. For the reasons set forth in LUBA's opinion, Green v. Douglas County,

4 ___ Or LUBA ___ (LUBA No 2010-106, Apr 4, 2011) (slip op at 18-28), we agree with

5 its conclusions on the meaning of "substantially" and "employ" under ORS 215.448(1).

6 We part company with LUBA, however, with regard to its conclusion that

7 the legislature intended the term "building" in ORS 215.448(1)(c) to mean "that

8 qualifying structures be enclosed, in order to reduce the size, impacts and externalities of

9 home occupations." LUBA looked to the plain meaning of the term, and cited the

10 definition of "building" in Webster's Third New Int'l Dictionary 292 (unabridged ed

11 1981):

12 "'[A] constructed edifice designed to stand more or less permanently,

13 covering a space of land, usu[ally] covered by a roof and more or less

14 completely enclosed by walls, and serving as a dwelling, storehouse,

15 factory, shelter for animals, or other useful structures--distinguished from

16 structures not designed for occupancy (as fences or monuments) * * *.'"

17 LUBA reasoned that ORS 215.448(1)(c) required that a home occupation be operated

18 substantially "in" a dwelling and other buildings, and "in" meant location in a "'materially

19 bounded object.'" (Quoting the definition of "in" at Webster's at 1139.) Thus, according

20 to LUBA, the legislature intended that, to be a building within the meaning of ORS

21 215.448, a structure in question would need to be "'more or less completely enclosed by

22 walls.'" LUBA concluded that this meaning of "building" was consistent with the

23 purpose of ORS 215.448 to "reduce the size, impacts and externalities of home

15

1 occupations." In light of those conclusions, LUBA held that approval of the requested

2 home occupation permit would need to be conditioned to assure that it operated

3 substantially in enclosed buildings.

4 Board Member Holstun concurred with the board majority that, because the

5 amended conditional use permit allowed activities "substantially" outside the "dwelling"

6 and any "buildings" as well as the on-site employment of more than five persons, the

7 permit authorized a use that is inconsistent with ORS 215.448. He disagreed, however,

8 with the majority's conclusion that the gazebo and pavilion were not "buildings" under

9 the statute. Holstun noted that ORS 215.448(1)(d) directly requires that the home

10 occupation not interfere with other land uses, so there is no reason to read into ORS

11 215.448(1)(c) any implicit intent that "building" should be interpreted in a way to

12 minimize off-site effects. Instead, in his view, the more likely legislative intent was "to

13 ensure that buildings other than those 'normally associated with uses permitted in the

14 zone' would not be constructed to house home occupations." (Footnote omitted.) He

15 concluded:

16 "Rather than speculate that ORS 215.448(1)(c) must have been

17 adopted to address concerns about noise or other externalities, I believe it is

18 more appropriate to view that legislative word choice in context. Again,

19 ORS 215.448(1)(c) requires that a home occupation be operated in a

20 'dwelling' or in 'buildings normally associated with uses permitted in the

21 zone.' [Respondents'] property is zoned FC. The FC zone is a statutory

22 EFU zone and permits, among other things, 'farm uses' and 'buildings and

23 accessory uses customarily provided in conjunction with farm use.' LUDO

24 3.4.050(1) and (3). Structurally, the pavilion closely resembles a pole barn.

25 Pole barns and other farm buildings are frequently open sided. I think the

26 legislature was well aware that agricultural buildings commonly are not

27 fully enclosed by walls. If the legislature wanted home occupations to be

16

1 limited to agricultural buildings that are fully enclosed by walls it would

2 have said so. I see no basis for writing in a requirement that the 'buildings'

3 referenced in ORS 215.448(1)(c) must be fully enclosed by walls. Doing

4 so, I believe, runs afoul of ORS 174.010 by inserting a limitation that is not

5 fairly inferred from the text and, I believe, is inconsistent with the context."

6 (Footnote omitted.)

7 On review, respondents embrace this logic without significant

8 embellishment. Petitioners, for their part, assert that the reasoning of the board majority

9 on the meaning of "building" is more cogent. We conclude that the concurring opinion is

10 the better analysis.

11 The method by which we discern the legislature's intended meaning of a

12 statute is familiar. We glean that intent from the text, context, and legislative history of

13 the statute, resorting, if necessary, to maxims of statutory construction. State v. Gaines,

14 346 Or 160, 171-72, 206 P3d 1042 (2009). The common meaning of "building,"

15 suggested by the Webster's definition cited by LUBA, is a permanent edifice that usually

16 has a roof and walls and that is designed for occupancy. That is to say, it is not essential

17 to the categorization of a structure as a building that it be bounded by walls.

18 But that meaning of "building" for purposes of ORS 215.448(1) is only the

19 beginning of the analysis. A more particular meaning of a statutory term can result from

20 an examination of its context. See Dept. of Transportation v. Stallcup, 341 Or 93, 99-

21 100, 138 P3d 9 (2006) (rejecting reliance on a dictionary definition of a statutory term in

22 favor of a meaning suggested by the statute's context). LUBA found that the relevant

23 context of ORS 215.448(1)(c) was another subsection of the statute--ORS 215.448(1)(d),

17

1 providing that a home occupation "shall not unreasonably interfere with other uses

2 permitted in the zone in which the property is located." LUBA inferred that the effect of

3 that subsection, i.e., limiting the external effects of a home occupation use, was the

4 intended effect of ORS 215.448(1)(c). Thus, according to LUBA, "building" means a

5 structure designed to mask the external effects of a home occupation use, i.e., one that is

6 enclosed by walls.

7 The problem with that reasoning is that it is not necessarily true that the

8 legislature intends that each component of a statutory definition advance the same

9 objective. There may be a number of reasons to narrow the definition of a statutory term.

10 In this case, for example, "home occupation" is defined by characteristics that go to the

11 affiliation of the enterprise (operated by the property resident or resident's agent), the size

12 of the operation (limitation on the number of employees), and its external effects

13 (proscription on unreasonable interference with other uses). Each component of the

14 home occupation definition arguably advances a particular objective (promotion of work

15 at home, encouragement of small operations in order to lessen any demand on public

16 facilities and services, prevention of interference with resource land uses). There is no

17 basis to conclude that the objective intended from the limitation to dwellings and

18 associated buildings is the same or different than the objective intended by any other part

19 of the definition, including ORS 215.448(1)(d). Confinement of operations to a dwelling

20 advances the work-at-home and size objectives; confinement of operations to associated

21 buildings could be to limit the size of the business or to reduce its external effects, or

18

1 neither or both. Any legislative intent to narrow the meaning of "building" is not

2 apparent from the relation of ORS 215.448(1)(c) to the other factors in the definition.

3 Nor is that intent suggested by any other contextual analysis, legislative

4 history, or rule of construction advanced by the parties. We conclude that the LUBA

5 concurrence got it right. The meaning of "building" under ORS 215.448(1)(c) is not

6 confined to only walled structures.

7 Instead, the limiting factor for the allowed types of buildings under ORS

8 215.448(1)(c)(B) is expressly stated. That limitation is not a matter of the design of the

9 structure; it is whether the building is commonplace--whether it is "normally associated

10 with uses permitted in the zone in which the property is located." If gazebos and

11 pavilions are normally associated with farm dwellings or other agricultural uses permitted

12 by the applicable zoning district, then they are the type of buildings for housing a home

13 occupation under ORS 215.448(1)(c). LUBA erred in concluding that ORS

14 215.448(1)(c)(B) imposes an additional limitation on the types of buildings that can be

15 used by a home occupation business.

16 On petition and cross-petition, reversed and remanded.



* * *



See: http://www.publications.ojd.state.or.us/A148427.pdf

On petition and cross-petition, reversed and remanded.