Klein v. Lane County

A special use permit that explicitly does not address a prior verified nonconforming use does not require application of nonconforming use criteria.

Petitioner appeals a county decision granting a special use permit for park and campground uses on property zoned Rural Residential (RR). Intervenor has hosted a three-day festival on the property annually since 1971, which has been verified as a nonconforming use. In addition to the festival and its related support activities, intervenor has conducted other non-festival related uses and activities. By authorizing park and campground uses on the property, the challenged decision provides land use approval for these other non-festival related uses and activities.

Verification of a nonconforming use is required prior to changing a nonconforming use. LC 16.251(1). In the first assignment of error, petitioners argue that, because the uses authorized by the special use permit overlap in time and space with the festival, the county erred in failing to apply nonconforming use criteria to the application. However, because the county limited the approval of the proposed special uses to clarify that festival-related uses were not allowed by the approval, LUBA agrees that the county properly construed the LC in not applying nonconforming use criteria. The first assignment of error is denied.

In the second assignment of error, petitioners argue that the proposed intensity and frequency of the special uses is too intense to qualify as a park in the RR zone per LC 16.290(4)(p) and is inconsistent with the purpose of the RR zone set forth in LC 16.290(1)(b). LUBA notes that the LC does not include a definition of park and that the county relied upon a publication from the National Recreation and Park Association noting that “parks . . . generate significant revenues . . . from . . . special events such as arts, music and holiday festivals.” LUBA held that the county’s interpretation of LC to authorize the proposed uses as park uses based on the types of park uses recognized nationally and found in a City of Eugene park and in other county parks is plausible and entitled to deference. The second assignment of error is denied.

In the third assignment of error, petitioners argue that the county misconstrued applicable law by permitting a “youth camp” in the RR zone, which is not specifically allowed in RR zone. LUBA agrees with the county’s determination that intervenor’s activities are consistent with the county’s definition of a “campground,” which is a permitted use in the RR zone. While a “youth camp” as defined in the LC must be a permanent use, intervenor’s activities are of a limited duration and were thus appropriately treated as a campground. The third assignment of error is denied, and the county’s decision is AFFIRMED.