Ferguson Creek Investment v. Lane County

The continuation of a lawful nonconforming use on land zoned exclusive farm use (EFU) under ORS 215.130 is not inconsistent with ORS 215.213(1)(q) or ORS 215.219 allowing the “alteration, restoration or replacement of a lawfully established dwelling” on EFU-zoned land because a “continued” use and an “alteration, restoration or replacement” are two different activities which are not mutually exclusive.

Petitioner appealed a County denial of an application for verification of a lawful nonconforming dwelling on land zoned exclusive farm use (EFU). The County determined that Heceta Water District v. Lane County, 24 Or. LUBA 402 (1993), had concluded that the alteration of existing nonconforming uses on EFU-zoned property were to be treated as conforming uses exempt from ORS 215.130, and that interpretations of the local code had found the provisions for replacement of a use on EFU-zoned land and those for nonconforming uses were mutually exclusive. The County concluded that the existing dwelling was considered a conforming use eligible only for alteration, restoration, or replacement under ORS 215.213(1)(q) and was thus not eligible for nonconforming use verification and denied the application. Petitioner appealed.

On appeal to LUBA, Petitioner made one assignment of error: that the County “misinterpreted the law, applied standards that are not in the law, and made inadequate findings.”

ORS 215.213(1)(q) “provides that uses permitted on EFU land include ‘[a]lteration, restoration or replacement of a lawfully established dwelling, as described in ORS 215.291.’” ORS 215.219(1) governs the conditions when a county may permit “a lawfully established dwelling” on EFU-zoned property to be altered, restored, or replaced.

ORS 215.130(5) allows nonconforming uses, stating “[t]he lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued.” “Generally, ‘[a] lawful nonconforming use of land is one that is contrary to a land use ordinance but that nonetheless is allowed to continue because the use lawfully existed prior to the enactment of the ordinance.’” Morgan v. Jackson County, 290 Or. App. 111, 114, rev den, 362 Or. 860 (2018).

“Local code may not be interpreted inconsistently with the state law that it implements.” Johnson v. Jefferson County, 56 Or. LUBA 72, 91, aff’d 221 Or. App. 156, (2008), rev dismissed, 347 Or. 259 (2009).

LUBA sustained Petitioner’s assignment of error, pointing out that the Petitioner did not request alteration or replacement of the structure, but asked for verification to continue their lawful nonconforming use. LUBA noted that its holding in Heceta Water District, which the County partially relied on, concerned the alteration of a structure and was prior to the enactment of ORS 215.219, which governed the alteration of a structure on EFU land. LUBA found that the text of ORS 215.130(5) distinguished between a “continued” use that was already present and did not involve a change of the structure, and an “alteration,” which “may” be permitted and did involve a change in the structure. LUBA reasoned these were not mutually exclusive because they referred to different actions, and that nothing indicated the legislature had intended to eliminate the right to verify a continued lawful nonconforming use by enacting ORS 215.129 or ORS 215.213(1)(q), both of which addressed the alteration of a structure and not a continued use. LUBA concluded that the County had misconstrued ORS 215.213(1)(q), ORS 215.129, and ORS 215.130 by finding uses on EFU-zoned property were eligible only for alteration, restoration, or replacement.

Remanded.