1000 Friends of Oregon v. Marion County

While hosting events may be a permissible home occupation on EFU-zoned property under ORS 215.448 and ORS 215.283(2)(i), ORS 215.448(1)(b) limits the number of employees allowed on the property at any time to five. This five-employee limit is an “indirect limit on the size and scope of the home occupation activities” allowed in an EFU zone.

Petitioners appealed a county code amendment permitting home occupations on exclusive farm use (EFU) property to include events with up to 750 guests. On appeal, Petitioners claimed that the County misinterpreted “home occupation” under ORS 215.448 and ORS 215.283(2)(i) by allowing events that could not take place in the home itself and were covered under the provisions for agritourism, and that the County’s decision to adopt the 750-guest maximum was not supported by adequate findings or ORS 215.448(1)(b).

Home occupations are a permitted nonfarm use on EFU-zoned property. ORS 215.283(2)(i). The standard for a “home occupation” in farm-use and forest zones is provided in ORS 215.448, including that it “(a) shall be operated by a resident or employee of a resident of the property on which the business is located; (b) It shall employ on the site no more than five full-time or part-time persons; [and] (c) It shall be operated substantially in: (A) The dwelling; or (B) Other buildings normally associated with uses permitted in the zone in which the property is located[.]”

While LUBA agreed the definition of “home occupation” was appropriately “an activity that a person engages in at their principal place of residence to earn a living,” LUBA rejected Petitioners’ claim that the text of ORS 215.448 limited home occupation activities to only those that could be carried out in the home itself. Instead, LUBA noted the text allowed for activities in “buildings normally associated with uses permitted in the zone in which the property is located,” and reasoned the home occupation could be carried out in a nonresidential building on the property, provided it was a structure normally associated with farms, such as a barn. LUBA also rejected Petitioner’s claim that the agritourism provisions in ORS 215.283(4) precluded event businesses from operating as home occupations in resource zones. LUBA noted that when the legislature added the provisions for agritourism in ORS 215.283(4), it not only declined to specify the provisions would supplant 215.283(2)(i) as the only pathway to conducting events on resource land, but further stated that ORS 215.283(4) was “in addition to other authorizations that may be provided by law[.]” LUBA concluded Petitioner’s interpretation was not supported by the text or intent of the statute and that events could be a permitted home occupation on EFU-zoned property.

ORS 215.448(1)(b) states a home occupation “shall employ on the site no more than five full-time or part-time persons.” LUBA and the Court of Appeals have interpreted this to mean no more than five employees may be on the property at any one time, rather than restricting the total number of employees of a home occupation to five. Green v. Douglas County (Green III), 67 Or. LUBA 234, 244-46, aff’d, 258 Or. App. 534 (2013).

LUBA acknowledged there was no limit on the number of guests allowed under ORS 215.448, but LUBA agreed with Petitioners that the five-employee requirement under (1)(b) was an “indirect limit on the size and scope of the home occupation activities.” LUBA found that the record did not show the County considered the five-employee maximum in making the code amendment, and that it was difficult to see how only five employees could adequately provide for up to 750 guests. LUBA concluded remand was necessary for the County to consider how or whether the maximum of five employees could support a maximum of 750 guests for a home occupation.

Remanded.