Wetherell v. Douglas County

ORS 214.441 does not provide an independent basis to approve dwellings on EFU-zoned property.

Petitioners appeal a county decision approving a remodel of a church, on land zoned Exclusive Farm Use (EFU), to create a residence for its pastor. Under Douglas County Land Use and Development Ordinance (LUDO) 3.4.075(5), existing churches may be enhanced on the same tract. Under ORS 215.203, EFU-zoned land must be used exclusively for farm use except as provided in ORS 215.283, among other provisions. Under ORS 215.283 and OAR 660-033-0120, while churches, cemeteries, and certain dwellings may be established on EFU-zoned land, no law provides for any dwelling within a church on such land. Under ORS 215.441(1), if a church is allowed on property under applicable law, a county must allow the reasonable use of the property for activities customarily associated with religious practices. While housing in a detached building is listed as one of those customarily associated activities, it is only allowed if the property is, among other things, zoned for residential use.

In approving the remodel, the county determined that (1) the remodel is an enhancement to the church under LUDO 3.4.075(5), (2) the list of uses in ORS 215.441(1) is not exclusive, and (3) a church dwelling is a reasonable use of church property that is customarily associated with religious practices under ORS 215.441. LUBA agrees with petitioners that ORS 215.441 does not provide an independent basis to approve dwellings on EFU-zoned property and, to the extent the county interprets LUDO 3.4.075(5) to independently allow residential use as an enhancement to a church, that interpretation impermissibly conflicts with ORS 215.203,.283, and .441.

Intervenor argues the county’s decision should be affirmed under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits governments from applying land use regulations that (1) treat religious groups on less than equal terms with nonreligious groups or (2) impose a substantial burden on the religious exercise of a person or group. Because intervenor has not identified any applicable law that treats religious and nonreligious residential uses on EFU-zoned land on unequal terms, or that imposes a substantial burden on intervenor’s religious exercise, and because the county will not be able to correct identified errors by adopting new findings or accepting additional evidence, the county’s decision is REVERSED.