Richard Siegert v. Crook County

2 The Crook County Court approved the location of a dog breeding kennel in

3 a zone where, under the current zoning code, such kennels are not permitted. The county

4 reasoned that, when the current zoning code was enacted in 1977, the kennel was already

5 in existence and lawful under the then-current code (1973), and such pre-existing lawful

6 uses could be subsequently "verified." See ORS 215.130(5). Petitioner Linda Siegert

7 appealed the county's decision to the Land Use Board of Appeals (LUBA). LUBA

8 affirmed the county, and petitioner now seeks judicial review, arguing that the county's

9 interpretation of the 1973 code is implausible; under that code as well as the current code,

10 she contends, the kennel was not a permitted use. Further, petitioner argues that the

11 county violated its own procedures by considering certain testimony that was admitted

12 after the hearing record closed. We affirm.

13 The property subject to this dispute is a 59.25-acre parcel that includes

grazing land, crops, and a dog breeding kennel. In February 2010, the property's owner1 14

15 filed an application to verify the kennel as a nonconforming use. The parties agree that,

16 under the current zoning code, the kennel is not a permitted use. They also agree that, if

17 the kennel complied with the applicable zoning code in effect at the time that the kennel

18 operation began in 1977--that is, the 1973 code--then the use may continue under ORS

19 215.130(5): "The lawful use of any building, structure or land at the time of the

20 enactment or amendment of any zoning ordinance or regulation may be continued."

1 The owner did not appear before LUBA or participate in this judicial review.

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1 They disagree, however, on whether the 1973 code would have permitted the breeding

2 kennel in its current location. The county planning department determined that, under the

3 1973 code, a dog breeding kennel was lawful, and verified the use (subject to conditions

4 that are not relevant to this review). Petitioner appealed to LUBA, and LUBA affirmed.

5 Thus, the issue before this court, subject to the standard of review described below,

involves interpretation of the 1973 Crook County Zoning Code (CCC).2 6

7 In reaching the conclusion that the dog kennel was a lawful use under the

8 1973 code, the county reasoned as follows: In 1977, although the property's zone did not

9 expressly permit kennels either outright or conditionally, one section--CCC 3.170, which

10 listed the uses permitted in the property's zone--allowed "farming" as an outright use.

11 Further, CCC 1.060 expressly exempted from all zoning restrictions certain agricultural

12 and farm uses, including "animal husbandry."

13 "Agriculture, grazing, horticulture and commercial uses shall be

14 exempt from the provisions of this ordinance, also farm dwellings and other

15 farm buildings. * * * Other farm uses included in this section are

16 beekeeping, dairying, swine raising, ranching of furbearing animals, animal

17 husbandry, and similar farm operations in the primary preparation and

18 storage of farm products grown on the premises."

19 The county determined that, at the time the property owner's kennel was established in

20 1977, a dog breeding kennel fell within the definition of "animal husbandry" and was

21 therefore exempt from zoning restrictions. In so concluding, the county cited this court's

22 opinion in Linn County v. Hickey, 98 Or App 100, 102, 778 P2d 509 (1989), in which we

2 References to the Crook County Zoning Code are to the 1973 version throughout.

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1 interpreted a pre-1985 version of the exclusive farm use zone statute, ORS 215.203, to

2 permit a dog breeding kennel operation as "animal husbandry." The county cited, in

3 addition to Hickey, the fact that the property had (and continues to have) farm status for

4 purposes of property tax; the fact that the county previously treated a dog breeding kennel

5 as "animal husbandry" on a 1976 "Zoning Clearance Request Form"; and the "testimony"

6 of Crook County Commissioner Weberg, who had been a commissioner since 1971, and

7 who had "personal knowledge of the purpose and intent of the 1973 zoning ordinance."

8 The county rejected petitioner's interpretation of the 1973 code. That

9 interpretation, as noted, relied on CCC 3.170, which described the uses permitted in the

10 property's zone but did not list breeding kennels as either a permitted or conditional use,

11 thereby implying that kennels were not permitted. Petitioner pointed out, further, that, at

12 the relevant time, kennels (including breeding kennels) were specifically listed as a

13 permitted or conditional use in six other zones, leading to the further inference that, if the

14 county had intended to permit kennels in the property's residential zone, the zone would

15 have listed that use as a permitted or conditional use. Also, petitioner pointed out that in

16 1973, the code provision for the general agricultural zone (AG-2) separately permitted

17 "farm uses" and "kennels," thereby leading to the inference that the two uses are separate,

18 i.e., that a kennel is not a farm use; had a kennel been farm use, there would have been no

19 need to separately name it. Thus, petitioner argued, a farm use, including "animal

20 husbandry," was not intended to encompass kennels. Petitioner contended that, pursuant

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1 to another code provision (CCC 10.103) that required the county to give effect to the

2 more restrictive provision when two provisions appeared to conflict, the county had to

3 give effect to CCC 3.170 (listing permitted uses) over CCC 1.060 (exempting animal

4 husbandry).

5 Petitioner appealed the county's decision to LUBA. LUBA began by

6 describing its standard of review, beginning with ORS 197.829:

7 "(1) The Land Use Board of Appeals shall affirm a local

8 government's interpretation of its comprehensive plan and land use

9 regulations, unless the board determines that the local government's

10 interpretation:

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

12 plan or land use regulation;

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

14 land use regulation;

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

16 for the comprehensive plan or land use regulation; or

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

18 comprehensive plan provision or land use regulation implements."

19 LUBA explained that, pursuant to ORS 197.829(1) and the Supreme Court's opinion in

20 Siporen v. City of Medford, 349 Or 247, 259, 243 P3d 776 (2010), LUBA was required to

21 affirm the county's interpretation of its own code unless the county's interpretation was

22 inconsistent with all of the express language of CCC 1.060 or the purpose or underlying

3 CCC 10.10 provided in part:

"Where the conditions imposed by a provision of this ordinance are less

restrictive than comparable conditions imposed by any other provisions

which are more restrictive, the more restrictive shall govern."

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1 policy on which the 1973 code was based.

2 Under that deferential standard, LUBA concluded that the county's

3 interpretation should be affirmed, explaining:

4 "Whether petitioners' contrary interpretation of CCC 1973 1.060 is

5 better or more consistent with the language, purpose and policy of CCC

6 1973 is not the relevant question. The relevant question to be addressed is

7 whether the county's interpretation of all of the relevant provisions of CCC

8 1973 is plausible. Siporen, 349 Or at 259. We agree with [the county] that

9 the county's interpretation of the relevant provisions of CCC 1973 is not

10 inconsistent with the express language, purpose and policy underlying the

11 provisions being interpreted. Given the county's explanation of its

12 interpretation of CCC 1973 1.060 embodied in the decision, we conclude

13 that the county's interpretation of the relevant provisions of CCC 1973 is

14 not inconsistent with the express language of the ordinance. ORS

15 197.829(1)(a). As explained above, the county rejected petitioner's

16 argument that CCC 1973 3.170 required the county to deny the

17 nonconforming use, and concluded that the breeding kennel operation was

18 'animal husbandry,' a 'farm use' under CCC 1973 1.060 that was exempted

19 from the provisions of CCC 1973 3.170. The county relied on the express

20 language of CCC 1973 1.060 and the Court of Appeals' interpretation of the

21 term 'animal husbandry' in the EFU zone as including a breeding kennel

22 operation."

23 LUBA concluded that the county's interpretation of the relevant provisions of the code

24 was not inconsistent with the express language of CCC 1.060 or other provisions of the

25 code, or with its purpose or underlying policy.

26 LUBA further explained that, although petitioner was correct that the

27 county could not properly rely on a planning commissioner's statements as legislative

28 history in support of its interpretation of CCC 1.060, any such reliance was harmless.

29 On judicial review, the parties acknowledge that our standard of review of

30 the county's interpretation of the zoning ordinance is, like LUBA's standard, described in

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1 Siporen, 349 Or at 259: whether the county's interpretation is "plausible." In Siporen,

2 the Supreme Court explained that, when a local government plausibly interprets its own

3 land use regulations "by considering and then choosing between or harmonizing

4 conflicting provisions, that interpretation must be affirmed, * * * unless it is inconsistent

5 with 'all of the express language that is relevant to the interpretation, or inconsistent with

6 the purpose or policies underpinning the regulations.'" Siporen, 349 Or at 259 (emphasis

7 in original; citations omitted).

8 The court described its role in determining whether the local government's

9 interpretation is plausible:

10 "[T]his court (like the Court of Appeals) must determine for itself

11 whether the interpretation underpinning the local government's decision is

12 'inconsistent with the express language' of the provision or provisions at

13 issue. To the extent that the interpretation is directed at a single term or

14 statement, that means determining whether the interpretation plausibly

15 accounts for the text and context of the term or statement. But, to the

16 extent that the interpretation is directed at multiple statements that may be

17 in conflict, the inconsistency determination is a function of two inquiries:

18 (1) whether the interpretation in fact is an interpretation, i.e., a considered

19 determination of what was intended that plausibly harmonizes the

20 conflicting provisions or identifies which ones are to be given full effect;

21 and (2) the extent to which the interpretation comports with the 'express

22 language' of the relevant provisions (including, necessarily, those

23 provisions that, according to the interpretation at issue, are to be given full

24 effect)."

25 349 Or at 262 (emphasis in original).

26 Thus, on judicial review, this court's function is to determine whether the

27 county's interpretation is a plausible one that is consistent with at least some of the

28 express language of the relevant code provisions. If the code provisions permit

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1 conflicting interpretations, we must affirm the local government's interpretation if (1) the

2 local government in fact engaged in a "considered determination" that either (a) plausibly

3 harmonizes conflicting provisions or (b) identifies which provisions are to be given full

4 effect; and (2) the local government's interpretation comports with at least some of the

5 express language of the relevant provisions. Siporen, 349 Or at 259.

6 Petitioner appears to accept, as she must, that the county's 27-page, single7

spaced opinion demonstrates that the county engaged in serious consideration. It is also

8 undeniable that the county identified which provision was to be given effect: the

9 provision allowing animal husbandry. Petitioner, however, contends in her first

10 assignment of error that the county's interpretation of the relevant CCC provisions to

11 conclude that a dog breeding kennel is "animal husbandry," and therefore a permitted

12 farm use, is not plausible. In support of her argument, she renews the arguments that she

13 made before the county and LUBA: (1) CCC 3.170 described the uses permitted in the

14 RR(M)-2 zone (of which the property was a part) but did not expressly permit kennels;

15 (2) kennels were expressly permitted in six other zones; (3) in describing the uses

16 allowed in an agricultural zone, the drafters of the 1973 code separately permitted

17 "kennels" and "farm uses," thereby suggesting that a kennel use is not a farm use; and (4)

18 CCC 10.10 requires us to give effect to CCC 3.170 and not CCC 1.060 because the

19 former is more restrictive than the latter. Petitioner also contends that LUBA failed to

20 properly apply well-settled rules of statutory construction because it used extrinsic

21 sources (Linn County, and the dictionary) to interpret an ambiguous term ("animal

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husbandry") instea 1 d of relying on the plain meaning of an express term ("kennel").

2 According to petitioner, when the code provisions are considered together, the only

3 plausible interpretation is that kennels were not intended to be a permitted use in the

4 RR(M)-2 zone.

5 Like LUBA, we conclude that, although petitioner's arguments may point to

6 a better or more plausible interpretation of the Crook County Zoning Code than the

7 county's own interpretation, the county's interpretation of CCC 1.060--"animal

8 husbandry" includes dog breeding kennels--remains plausible and is therefore entitled to

9 deference. At the relevant time, the code did not define animal husbandry, but the county

10 noted that, on one previous occasion in 1976, it had allowed an applicant to maintain a

11 dog breeding kennel as animal husbandry. Further, the county relied in part on this

12 court's opinion in Linn County, 98 Or App at 102, in which we held that a dog kennel

13 operation constituted "animal husbandry" under a pre-1985 version of ORS 215.203:

14 "[Linn] County enacted zoning ordinances in 1972 and 1980. The

15 ordinances defined the 'farm use' that was permitted outright in EFU zones

16 as including the 'feeding, breeding, management and sale of * * * livestock,

17 poultry, furbearing animals or honeybees * * * or animal husbandry.' See

18 ORS 215.203. They also defined 'kennels,' but made no specific provision

19 about their permissibility in EFU zones. County argues that, although the

20 1972 and 1980 ordinances did not expressly prohibit the use of EFU land

21 for kennels, they did not permit the use, outright or conditionally.

22 Defendant contends that, in the absence of more specific legislation bearing

23 on the subject, kennel operations constitute 'animal husbandry' and

24 therefore come within the definition of 'farm use.' We agree. 'Animal

25 husbandry' is defined by Webster's Third New International Dictionary 85

26 (1971) as 'a branch of agriculture concerned with the production and care of

27 domestic animals.'"

28 Like the court in Linn County, Crook County apparently applied the Webster's definition

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1 to its code. The county found that the breeding of dogs involves the production and care

2 of domestic animals, and is therefore animal husbandry under CCC 1.060. That is a

3 perfectly plausible interpretation.

4 The county's interpretation does not become implausible because of

5 redundancy with other provisions of the code. Redundancy is a fairly common feature of

6 legislative drafting. Friends of Yamhill County v. Yamhill County, 229 Or App 188, 194-

7 95, 211 P3d 297 (2009) (so noting). Contrary to petitioner's contention, the county was

8 free to interpret farming to include dog breeding kennels as animal husbandry and to also

9 separately list kennels as permitted uses in other zones, even though farming is permitted

10 in all zones and such a listing would be redundant.

11 Finally, to the extent that the redundancy in treating dog breeding kennels

12 as animal husbandry and, hence, farming, might be viewed as an inconsistency in the

13 code, the county has expressed its preference for an interpretation that permits dog

14 breeding kennels as farming. The county stated in its order that it interpreted the

15 exemption of CCC 1.060 as "absolute," which we understand to be a statement of the

16 county's intent that the exemption for farm uses would be broadly construed and would

17 trump other provisions.

18 Petitioner, as noted, insists that the county's interpretation is implausible

19 because it ignores an express provision of the code ("kennel") and, instead, uses extrinsic

20 sources (Linn County and Webster's) to define an ambiguous term ("animal husbandry").

21 We reject that argument for several reasons. First, the "express" provision to which

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1 petitioner refers is apparently a combination of the code's definition of "kennel" as

2 including breeding kennels, and the list of permitted uses in RR(M)-2 zones, which does

3 not include kennels. Those provisions, however, do not add up to an express prohibition

4 of breeding kennels. The fact that a list of permitted uses does not include Use X does

5 not mean that Use X is expressly prohibited; if that were the case, we could say that CCC

6 1973 expressly prohibits, say, used car lots or housing for space aliens. Second, the term

7 "animal husbandry" is not ambiguous. An ambiguous term is one that has multiple

8 plausible meanings; the process of disambiguation requires choosing which of the

9 meanings is operative in any given context. The problem posed by the term "animal

10 husbandry," as used in CCC 1973, is not that a reader cannot discern which of multiple

11 meanings it carries; rather, the problem is that the scope of the term--what it encompasses

12 and does not encompass--is unclear. Using case law and dictionary definitions to clarify

13 the meaning is not disambiguation; it is definition. And third, petitioner's argument is

14 based on an erroneous presumption: that the existence of a stronger or more logical

15 interpretation renders the weaker or less logical interpretation "implausible." That

16 presumption cannot be reconciled with Siporen.

17 For the same reasons, petitioner's argument based on CCC 10.10 is not

18 persuasive. That section requires the county to give effect to the more restrictive

19 provision when two provisions conflict. That preference, however, logically follows the

20 interpretative process; before one section can be deemed to be more restrictive than

21 another, we must know what the sections mean. In other words, CCC 10.10 is not an

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1 interpretative aid; it is an aid to be used after interpretation has occurred. In sum, we

2 conclude that LUBA did not err in affirming the county's interpretation of its 1973 code

3 to allow dog kennels in the zone of the subject property.

4 In her second assignment of error, petitioner argues that the county

5 erroneously admitted, after the close of the hearing record, the testimony of a current

6 county commissioner who was already in office at the time the 1973 ordinance was

7 enacted, and relied on that testimony as a factual basis for its final interpretation. We

8 agree with LUBA that, assuming that the county's consideration of the evidence was

9 error, in view of our standard of review of the county's interpretation, the error was

10 harmless. One of the parts of the county's opinion that refers to the commissioner's

11 statements is as follows:

12 "The Court finds that this interpretation [of 'animal husbandry'] is

13 consistent with the express language of Section 1.060, the personal

14 knowledge of the purpose and intent of the 1973 zoning ordinance provided

15 by Commissioner Weberg * * * and the general desire to protect farms and

16 farmland that existed in 1973[.]"

17 Thus, even if all of the references to the commissioner were excised, as petitioners

18 requested, the county would nonetheless have found that the interpretation of "animal

19 husbandry" that included breeding kennels was "consistent with the express language" of

20 the code--in other words, that the interpretation was not inconsistent with all of the

21 language in the code. That conclusion alone, with which (as discussed above) we agree,

22 is sufficient to compel us to affirm.



* * *



See: www.publications.ojd.state.or.us/A148909.pdf

23 Affirmed.