Red Grapes, LLC et al v. Clackamas County

Where a building is to be “constructed resembling a house,” but to “function as a clinic,” LUBA will find that the building is not an accessory building normally associated with the primary uses in a zone which allows only one single-family dwelling, duplex, or manufactured dwelling per lot unless an accessory dwelling unit or temporary permit is received. Where a local ordinance limits accessory buildings or uses to those “the function of which is clearly incidental to that of the main building or use on the same lot,” LUBA will construe “subordinate” and “clearly incidental” to require more than a tangential relationship to the dwelling.

Petitioner appealed a hearings officer’s approval of a home occupation in the Rural Residential Farm Forest 5-acres (RRFF-5) zone that would consist of a 1,200 to 1,500 square foot clinic building for massage therapy, yoga, and chiropractic services. On the property is a 4,000 square foot dwelling, where the landowner resides, located 900 feet uphill and out of sight of a dilapidated structure sought as the home occupation site. The site is within 380 feet of four neighboring homes. The home occupation would match the siding, roofing, and details of the dwelling and would likely need separate utility systems.

A home occupation is “[a]n occupation or business activity what results in a product or service and is conducted, in whole or in part, in a dwelling unit, an accessory building normally associated with primary uses allowed in the subject zoning district, or both.” An accessory building or use is “[a]subordinate building or use, the function of which is clearly incidental to that of the main building or use on the same lot.” Clackamas County Zoning and Development Ordinance (ZDO) 202.

In their first assignment of error, Petitioner argued the hearings officer misconstrued ZDO 202 by finding that the clinic building was “an accessory building normally associated with primary uses allowed” in the RRFF-5 zone. The RRFF-5 zone allows only one single-family dwelling, duplex, or manufactured dwelling per lot unless an accessory dwelling unit or temporary permit is received. ZDO Table 316-1. Petitioner argued using a home occupation to construct a building not otherwise allowed in the zone violated ORS 215.448(3), which provides that counties are unable to “permit construction of any structure that would not otherwise be allowed in the zone” of the future home occupation. The County argued “home occupations are uses normally associated with primary residential uses,” so therefore any structure which could be used for an accessory use is permitted. The County’s argument centered on a local practice of “allowing dwelling structures to be used for accessory uses when a dwelling is replaced.” LUBA noted no code provision was cited for that practice. LUBA agreed with Petitioner, explaining that ZDO 202 is focused on the building, not the use, and the clinic structure resembles that of a home, which is not “normally associated with the primary uses allowed in the RFF-5 zone.” The first assignment of error is sustained.  

In their second assignment of error, Petitioner argued the hearings officer erred by determining that the proposed structure was “subordinate” and “clearly incidental” to the dwelling. LUBA agreed with the County that the substantially smaller size and the restricted hours of use of the home occupation supported that it was subordinate and clearly incidental to the dwelling. However, when addressing all factors together, LUBA agreed with Petitioner that the location, exterior design, and associated improvements did not show the subordinate and clearly incidental function of the proposed clinic. LUBA looked to common definitions of “clearly” and “incidental” to determine that the home occupation must be “easy to perceive or determine with certainty” and “readily recognized” as “subordinate, nonessential, or attendant in position or significance” to the dwelling. The blocked line of sight between the proposed clinic and the dwelling, and the proximity of other homes to the proposed clinic, did not show a “clearly incidental” relationship between the buildings. The matching exterior design did not render the clinic subordinate and clearly incidental because an observer could not see both buildings at once and the clinic was likely to be mistaken as a residence. Lastly, the need for the clinic’s own access, parking, and utility systems showed that it was independent of, not subordinate or clearly incidental to, the dwelling. The second assignment of error is sustained. Reversed.