Lee v. Marion County

LUBA is not authorized to second guess local decision makers’ judgment regarding the credibility of evidence presented in land use hearings.

Petitioner appeals a county decision denying a conditional use permit to operate a bed and breakfast inn. The subject property is zoned Special Agriculture (SA) and includes a dwelling with nine bedrooms and amenities that are not typically found in a single-family dwelling. Petitioner proposed to occupy one bedroom, while allowing the remainder of the dwelling and its amenities to be used by guests. Petitioner also testified that she owns a home in Lake Oswego, Oregon, where she spends “a couple of days a week.” The county denied the application and this appeal followed.

Marion County Code (MCC) 17.137.050(D)(1) allows home occupations including bed and breakfast inns as a conditional use in the SA zone. MCC 17.110.270 defines “[h]ome occupation” as a business operation by a resident of a dwelling “as a subordinate use of the building and its premises.” In addition, MCC 17.137.060(C) requires that home occupations be “operated by a resident of the dwelling on the property.” Because petitioner’s proposal would allow the relatively large remainder of the dwelling and its amenities to be used by guests, and because petitioner occupies the dwelling on a somewhat limited basis, the county concluded that the proposed use was neither subordinate to the residential use nor operated by a resident of the dwelling, and therefore not a “home occupation.” In the second and third assignments of error, petitioner argues the county’s conclusions misconstrue applicable law and are not supported by substantial evidence in the record. Because LUBA agrees with the county’s interpretation and application of the term “subordinate,” and because LUBA is not authorized to second guess local decision makers’ judgment regarding the credibility of evidence presented in land use hearings, the second and third assignments of error are denied and the county’s decision is AFFIRMED.