Thrive Hood River v. Hood River County

Whether a use, such as a home occupation, may be considered “incidental and subordinate” to the predominant existing use depends on “any relevant circumstances, including the nature, intensity, and economic value of the respective uses,” including frequency, “but frequency is only one factor.” Friends of Yamhill County v. Yamhill County, 31 Or. App. 726, 739 (2020).

Petitioner appealed a County approval of a conditional use permit (CUP) application to operate a bed and breakfast as a home occupation on land zoned forest use (F-1). The application described that the existing structure had four bedrooms, one of which would be occupied by a resident caretaker on a long-term basis while the other rooms would be available for a portion of the year as short-term bed and breakfast rentals. The local code provided a bed and breakfast could be permitted as a use in a single-family dwelling as a conditional home occupation provided that it was “clearly incidental, accessory and subordinate to the residential use.”

On appeal, LUBA’s review turned on Petitioner’s fourth assignment of error: that the County misconstrued the applicable local provisions, and that the County’s conclusion that the residential use was predominate over the bed and breakfast use was not supported by substantial evidence.

Whether a use may be considered “incidental and subordinate” to the predominant existing use depends on “any relevant circumstances, including the nature, intensity, and economic value of the respective uses,” including frequency, “but frequency is only one factor.” Friends of Yamhill County v. Yamhill County, 31 Or. App. 726, 739 (2020). “Uncontradicted representations from an applicant can constitute substantial evidence.” King v. Deschutes County, 77 Or. LUBA 339, 345-46 (2018). “However, when a local government relies on an applicant's voluntary limitations on a proposed use to find that approval criteria are satisfied, those limitations must be memorialized in conditions of approval. More than testimony by the applicant expressing willingness to provide such features is required.” M & T Partners, Inc. v. City of Salem, 80 Or. LUBA 221 (2019), aff’d, 302 Or. App. 159 (2020).

LUBA sustained the fourth assignment of error, in part. LUBA first noted that Petitioner’s argument that the County erred in collapsing the “incidental, accessory and subordinate” criteria into an overall predominant purpose inquiry was undeveloped and failed to explain how the interpretation was inconsistent with the underlying policy or purpose of the regulations. LUBA deferred to the County’s interpretation of its own regulations.

However, LUBA found the County did err in considering only the duration of the proposed bed and breakfast’s use to conclude the use was “incidental” and “subordinate” to the residential use. LUBA found that under Friends of Yamhill County, the County was required to consider other factors in addition to frequency in reaching their conclusion, and the record did not show the County considered any other factors to support its decision. LUBA also agreed that the County did not have sufficient evidence to support its conclusion that the bed and breakfast would be subordinate or incidental to the residential use. The County relied heavily on a draft caretaker lease, which was a commercial lease that made it clear the caretaker resided on the property solely to look after the bed and breakfast property as a commercial use, and LUBA reasoned this was not evidence that could reasonably support the conclusion that the commercial use was subordinate or incidental to the residential use, but was “a case of the tail wagging the dog.”

Finally, LUBA agreed that the County erred in finding that the limited frequency of use of the bed and breakfast indicated its subordinate status to the predominant residential use. LUBA found the decision was not supported by substantial evidence because there was nothing in the record or in the conditions of approval that would prevent the bed and breakfast from being used for a longer term than originally stated. While the record did show the applicant had proposed a 180-day limitation on the bed and breakfast use as a condition of approval, LUBA pointed out the County never adopted that condition, and the County could not rely on the applicant’s voluntary compliance alone to find the criteria for approval was satisfied.  

Remanded.