Elenes v. Deschutes County

Under ORS 197.829(2), in the absence of a reviewable interpretation, LUBA has discretion to determine whether a decision is correct or to allow local governments to interpret ambiguous code language in the first instance.

Petitioners appeal a county decision approving a conditional use permit application for establishment of a bed and breakfast. The subject property is zoned Multiple Use Agricultural (MUA). Intervenor’s application proposed to remove an existing modular dwelling on the property and replace it with a new 2,200 square-foot single-story structure.

Deschutes County Code (DCC) 18.04.030 defines “bed and breakfast inn” as a “single-family dwelling unit” in which no more than three rooms are provided for no more than eight guests and defines “family” as “an individual…providing meals or lodging to not more than three additional unrelated persons.” In their third assignment of error, petitioners argue the proposed occupancy does not constitute a family because the applicant proposes to provide lodging to more than three additional unrelated persons. While the county found that the caretaker does indeed constitute a family, LUBA states this finding is conclusory, containing no explanation or analysis.

DCC 18.128.310.A provides that bed and breakfast inns are a conditional use in the MUA zone, but requires that they be restricted to owner-occupied residences. In their application, intervenor stated that the house’s caretaker would be a member of its organization and a staff member of its foundation. In their third assignment of error, petitioners also argue the county erred in concluding that the proposal qualifies as a “bed and breakfast inn” because caretakers are defined as those who take care of houses in the absence of owners and therefore cannot themselves be owners. The county responds that the DCC definition of “owner,” which includes “the authorized agent thereof,” supports the conclusion that occupancy by a caretaker is permissible. Under ORS 197.829(2), in the absence of a reviewable interpretation, LUBA has discretion to determine whether a decision is correct or to allow local governments to interpret ambiguous code language in the first instance. Here, given the absence of reviewable findings and interpretations in the county’s decision, the potentially significant consequences of adopting either interpretation, and uncertainty over the county’s intent, LUBA concludes that the county should provide an interpretation in the first instance on this point, as well as an explanation of whether the caretaker constitutes a “family” under the relevant code definitions. The third assignment of error is therefore sustained and the county’s decision is REMANDED.