Jacobs v. Clackamas County

Clackamas County Zoning and Development Ordinance (ZDO) 822.05 (home occupation standards and limitations) applies to any space, equipment or vehicle even when the space, equipment or vehicle is similarly used under an approved conditional use permit, and when the same activity is subject to multiple permit approval standards, the more restrictive ZDO standard controls.

Presenting five assignments of error, petitioner Jacobs appeals the hearings officer’s decision, which granted intervenor Mark Fritch Log Homes two separate permits to authorize a log home manufacturing business on his property. The first permit was a conditional use permit for the primary processing of raw logs. The second was for a Level Three Major Home Occupation pursuant to Zoning and Development Ordinance (ZDO) 822. Jacobs only challenges the findings approving the home occupation permit.

Jacobs’s first, third and fourth assignments of error were combined due to the joint legal theory used to support them, that the hearing officer erred in allowing the applicant to “artificially segment an otherwise unitary business operation into two separate operations, subject to two different discretionary permits, in order to avoid limitations necessary to comply with the respective applicable permit approval requirements.”

LUBA denied the first assignment of error, finding that the hearings officer is not obligated to adopt findings complying with the “substantially in” requirement in regard to where the business be conducted. LUBA sustained the third assignment of error stating that the present record and decisions do not provide a basis to avoid application of the home occupation limits and standard to at least some outdoor activities. On the fourth assignment of error, LUBA remanded with regard to ZDO 822.05(k) (vehicle limits), since there was insufficient findings in the record.

ZDO 822.02(D) defines home occupation as a business that “is clearly subordinate to the residential use of the property.” On the second assignment of error, LUBA agreed with Jacobs by stating that the hearings officer’s findings regarding the “clearly subordinate” test were inadequate, not supported by substantial evidence, and that the hearings officer must consider the full scope of the home occupation. LUBA also ruled that remand was necessary to ensure compliance with ZDO 822.05(F) (fumes emitted from vehicles). REMANDED.