Friends of Yamhill County v. Yamhill County

Under ORS 215, LUBA will find the operation of a bed and breakfast is allowed as a “home occupation” permitted in the “dwelling house” on a property zoned exclusive farm use.

In 2020, the owners of a vineyard applied to the County for a permit to construct a dwelling house in an exclusive farm use (EFU) zone and a conditional use permit (CUP) to operate a bed and breakfast in the dwelling. The proposed dwelling had one resident bedroom, nine guest rooms, common hallways, a full bathroom, and a kitchen. The applications were approved, but the dwelling was not constructed. In 2022, the property was purchased, and the new owner began construction of a dwelling house based off the 2020 permit and applied for the same use as a bed and breakfast. The application was approved, and Petitioner appealed.

On appeal, LUBA focused on the first two subassignments of the first of Petitioner’s two assignments of error, in which Petitioner claimed that the County misconstrued the county code and ORS 215, respectively. Petitioner argued that: 1) the proposed building was not a “dwelling” under county code, which defines a “dwelling” as “occupied  by one family only” and does not allow for transient occupancy, and 2) the building was not a “dwelling” authorized on EFU land under ORS 215.283 because its construction and operation were similar to a motel or hotel, and therefore the proposed use did not fall within the scope of a “home occupation” under ORS 215.448.

Under ORS 215.283(1), uses allowed on EFU properties can include “primary or accessory dwellings and other buildings customarily provided in conjunction with farm use.” ORS 215.283(2) allows for a “home occupation” as a conditional use allowed on EFU property. Under ORS 215.448, a local government may allow a “home occupation” provided that: “[i]t shall be operated by a resident or employee of a resident of the property on which the business is located” and “shall be operated substantially in: (A) [t]he dwelling . . . or (B) [o]ther buildings normally associated with uses permitted in the zone in which the property is located.” ORS 215.448 further provides that a local government may not, under its provisions, “permit construction of any structure that would not otherwise be allowed in the zone in which the home occupation is to be established.”

LUBA first addressed Petitioner’s second subassignment of error. LUBA began by noting that the language of ORS 215.283 includes no ongoing limitation on the use of a primary dwelling used in conjunction with farm uses after approval, nor did the 2020 approval contain any such condition. While “dwelling” is not defined in ORS 215, LUBA noted the Court of Appeals has concluded that a dwelling “requires use as a home,” and that “[a] home is occupied by a group of people sharing a household—not by individuals and groups who share no social or legal relationship—on a long-term or permanent basis—not in a transitory way.” 1000 Friends v. Clackamas County, 514 P.3d 553 (Or. App. 2022). LUBA found Petitioner’s claim that “dwelling” should be determined by building code had no authority to support it and the County’s findings as to the building’s status as a “dwelling” were not inconsistent with the definition of “dwelling” articulated by the Court of Appeals. LUBA reasoned there was no indication that the building could not be used as a dwelling. LUBA also pointed out that, contrary to Petitioner’s assertion that the County’s interpretation of “dwelling” was inconsistent with the state goal of preserving agricultural land, the “characterization of [a] building as a dwelling does not automatically allow nonagricultural use of the property” because the application is subject to the farm use impacts test and the CUP must meet “home occupation” criteria.

Turning to Petitioner’s first subassignment of error, LUBA agreed with the County that the building’s construction as a single-family residence to be occupied by one full-time resident and containing shared living spaces and facilities fell within the meaning of “dwelling unit” under county code. However, LUBA agreed with Petitioner that county code requires a dwelling to be occupied by “one family only” and not to be used for transient occupancy, restrictions which are inconsistent with the subject building’s operation as a bed and breakfast. ORS 174.020(2) requires that when general and particular provisions are in conflict, the intent of the particular provision controls. LUBA reasoned the definition of “dwelling” under county code and the related prohibition on transient occupancy were general provisions and inconsistent with the specific intent of provisions allowing a bed and breakfast as a home occupation, and thus the latter controlled. As the County’s interpretation was consistent with the provisions allowing a bed and breakfast as a home occupation, LUBA concluded the County had not erred in considering the building a “dwelling.”

LUBA concluded the County had not erred in approving the building permit and CUP.

Affirmed.