- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 04-29-2024
- Case #: 2023-087
- Judge(s)/Court Below: Opinion by Rudd
- Full Text Opinion
Petitioner appeals a hearing official’s decision denying an application for nonconforming use verification of a dwelling on an 82-acre property zoned Exclusive Farm Use.
ORS 215.310(5) provides, “the lawful use of any building, structure, or land at the time of the enactment or amendment of any zooming ordinance or regulation may be continued.” Similarly, Lane County Code (LC) 16.251 provides that, “the lawful use of a building or structure or of any land or premises lawfully existing at the time of the effective date of this Chapter or at the time of a change in the official zoning maps may be continued although such use does not conform with the provisions of this Chapter.”
Zoning was first applied to petitioner’s property in March 1980, and it has been improved with two outbuildings and two dwellings. In September 2021, petitioner applied for nonconforming use verification of the smaller dwelling, which is the subject of this appeal. The planning director denied the petitioners application, and the hearings official then denied the nonconforming use verification for more limited reasons.
Under ORS 215.213(1)(q), the alteration, restoration, or replacement of a lawfully established dwelling is a permitted use on land zoned for Exclusive Farm Use (EFU). The hearings official interpreted this provision to mean that lawfully established existing dwellings are conforming uses, and based on this reasoning, denied the petitioner's application for verification of a nonconforming use. The petitioner then appealed this denial to LUBA.
Petitioner’s first assignment of error, and part of their second assignment of error is that the hearings official misconstrued the law because they repeat the same error as Ferguson I. The hearings officials Findings I found that, “The applicant does not make clear the basis on which continued use of a lawfully established dwelling would be nonconforming under current EFU zoning.” Here the board finds that the hearings official made inconsistent findings than what were set out in Ferguson I. Intervenor argues that this is a “hyper-technical error” and harmless. However, the inconsistent findings will not be enough for reversal or remand if there is another valid basis for denial. Yamhill Creek Solar, LLC v. Yamhill County, 78 Or LUBA 245, 251 (2018). Intervenor claims there is another valid reason for denial, and the board agrees. However, the petitioner was still required to appeal these findings. In McGovern v. Crook County, a similar situation arose where the county made a finding that the petitioner had waived an issue (the legality of a prior boundary line adjustment), while also making findings on the merits. The court explained that in order to challenge the findings on the merits, the petitioner needed to assign error to the waiver finding and demonstrate that it was incorrect or unsupported by evidence. If a local government explicitly finds that an issue is not properly before it but adopts alternative findings as a precaution, the petitioner must challenge both the waiver finding and the merits. Here, the board sustained the first assignment of error and part of the second.
In the rest of the second assignment of error, Petitioner argued that the hearings official misinterpreted ORS 215.130(5) by concluding that the "Smaller Dwelling" did not become a nonconforming use in 1980. According to the hearings official, the dwelling would have been conforming in 1980 because zoning at that time allowed farm dwellings. The petitioner did not provide sufficient evidence to prove that the dwelling became nonconforming after the 1980 zoning change. The hearings official noted that the property was part of a larger farm, which supported the finding that it was conforming.
Intervenor countered that the issue was moot since the original 1980 structure no longer existed. However, the court found that existing dwellings became nonconforming when zoning laws regulating them were first applied in 1980, even if they were not explicitly prohibited. Therefore, the sub assignment of error was sustained in favor of the petitioner.
ORS 215.130(11) imposes a 20-year "look-back" period for verifying nonconforming use, meaning applicants must prove the use was continuous for the 20 years immediately preceding their application, not from the time it was first lawful. In this case, the petitioner needed to prove the dwelling was lawful in 1980 and its use continued from September 2001 to September 2021. The statute prohibits the county from requiring proof of continuity between 1980 and 2001.
The petitioner argued the hearings official misinterpreted ORS 215.130(11) by concluding the nonconforming use of the dwelling was abandoned in the 1990s, and claimed the official's findings were inadequate and unsupported, particularly regarding the dwelling’s status in 2001. The petitioner contended that ORS 215.130(11) prevents considering the dwelling's status before 2001. In response, the intervenor argued that if the dwelling was built after zoning laws were imposed, it could not be a nonconforming use.
The court in Reeder v. Multnomah County clarified that ORS 215.130(11) limits verification of nonconforming use to the 20 years before the application, and counties cannot require proof of the use’s existence before this period. However, the applicant must prove the use was lawfully established before zoning restrictions, even if that happened over 20 years ago. The county is barred from considering pre-2001 changes after lawful establishment is shown.
The hearings official found the dwelling was not lawfully established, as records indicated it was either new or significantly restored without necessary approvals between 1998 and 2004. The petitioner's claim that the official misconstrued ORS 215.130(11) was partially sustained, requiring new findings limited to the 20-year period prior to the 2021 application. The official could not consider events before 2001.
In the third assignment of error the petitioner argued that the hearings official misapplied the law and made a decision unsupported by sufficient findings by denying the application based on the abandonment of the use before September 2001. According to the petitioner, this is the earliest date the official should have considered when verifying the use. The hearings official had found that the residence was abandoned by 1983 and classified as a salvageable building by 1992. However, the petitioner claimed that the official improperly considered evidence outside the 20-year look-back period required by law. As a result, the third assignment of error was sustained, and new findings must be made on remand.
Additionally, in the fourth assignment of error, the petitioner claimed that the findings were inadequate and not supported by substantial evidence, particularly regarding the use of staff speculation about an electric utility letter and statements from an intervenor. While substantial evidence is required to support decisions, the need for new findings made it unnecessary to address this issue further.
Remanded.