Campbell v. Columbia County

(1) Under ORS 197.829(1)(d), where a county code provision implementing ORS 215.130(10)(b) provides that nonconforming uses “may be resumed if the discontinuation is for a period of less than 1 year,” LUBA will affirm a county’s interpretation of the word “discontinuation” if it is not inconsistent with the dictionary definition of the word “interruption” in ORS 215.130(7)(a). (2) A local government does not err in relying on previously adopted code provisions to implement a later enacted statute where the statute neither prevents it from doing so nor requires it to adopt new code provisions pursuant to it. (3) While LUBA has held that, where a nonconforming use is actually several aggregated but discrete uses, the right to continue one of those uses can be lost through discontinuance, a mobile home park is a unified use for which vacancy of individual spaces does not lead to partial discontinuance. (4) Where a decision is a “land use decision” under ORS 197.825(1), LUBA may reverse or remand the decision where the local government “[i]mproperly construed the applicable law,” regardless of whether the “applicable law” is a land use regulation under ORS 197.015(10)(a)(A).

In 1996, the county verified intervenor’s 46-space mobile home park as a nonconforming use. In 2016, the county suspended new placements of mobile homes on then-vacant spaces until intervenor repaired its septic system. The county issued a land use compatibility statement to authorize those repairs, which petitioner appealed locally but which eventually became final. After intervenor completed the repairs, the county lifted the suspension, which petitioner appealed to LUBA and which LUBA transferred to circuit court. In 2019, intervenor applied for permits to place a mobile home on a vacant space.

Under ORS 215.130(7)(a), nonconforming uses “may not be resumed after a period of interruption or abandonment.” Under ORS 215.130(10)(b), counties may “[e]stablish[] criteria to determine when a use has been interrupted or abandoned.” Under Columbia County Zoning Ordinance (CCZO) 1506.4, nonconforming uses “may be resumed if the discontinuation is for a period of less than 1 year.” In approving the permits, the county concluded a use is not “discontinued” for purposes of CCZO 1506.4 if the owner is pursuing permits, performing substantial efforts to repair it, or responding to appeals of permits issued to perform repairs. Thus, because intervenor had actively pursued permits to make repairs, actually made those repairs, and responded to appeals of permits issued to authorize those repairs, use of the vacant space had not been discontinued during the suspension period. The county therefore approved the permits and this appeal followed.

In several assignments of error, petitioner argues the county’s interpretation of the word “discontinuance” in CCZO 1506.4 is inconsistent with the dictionary definition of the word “interruption” in ORS 215.130(7)(a). Because ORS 215.130(7)(a) does not direct counties as to how to determine whether “interruption” has occurred, because ORS 215.130(10)(b) allows counties to establish their own criteria to make that determination, and because the dictionary definition of “discontinue” that the county applied is not contrary to the meaning of the word “interruption,” LUBA agrees with respondents that the county did not err. LUBA also agrees with respondents that the fact that the legislature enacted ORS 215.130(10)(b) after the county adopted CCZO 1506.4 is irrelevant where that statute neither requires the county to adopt new code provisions pursuant to it nor prevents the county from relying on previously adopted code provisions to implement it. These assignments of error are therefore denied. 

In other assignments of error, petitioner argues that, because each space in the mobile home park is a separate nonconforming use, the vacancy of 13 spaces for more than 1 year during the suspension period, including the space at issue, means intervenor lost the right to continue use of those spaces. While LUBA has held that, where a nonconforming use is actually several aggregated but discrete uses such as a shooting range, firearms training facility, and clubhouse, the right to continue one of those uses can be lost through discontinuance, a mobile home park is a unified use for which, like an apartment building, vacancy of individual spaces and units does not lead to partial discontinuance. These assignments of error are therefore denied.

Finally, petitioner argues that the county should have, but did not, apply ORS 446.095(1), the Uniform Fire Code, and County Road Standards to the decision. Respondents argue that, because those provisions are not “[l]and use regulations” under ORS 197.015(11), LUBA lacks jurisdiction to resolve the issue. LUBA agrees with petitioner that, while LUBA has jurisdiction over “land use decisions” under ORS 197.825(1), and while that includes decisions concerning the application of “land use regulations” under ORS 197.015(10)(a)(A), once LUBA has jurisdiction over an appeal, ORS 197.835(9)(a)(D) authorizes it to reverse or remand a decision where the local government “[i]mproperly construed the applicable law,” regardless of whether the “applicable law” is a land use regulation. Because the county did not explain why those provisions do not apply, remand is necessary for it to address them. These assignments of error are therefore sustained, and the county’s decision is REMANDED.