Posted by: Patricia Salkin | February 24, 2012

Oregon Appeals Court Upholds Board’s Interpretation that Dog Breeding Kennel Permitted as Nonconforming Use Because it is Considered Animal Husbandry

The Crook County Court verified a dog breeding kennel as a nonconforming use.  The petitioner, Siegert, appealed this determination to the Land Use Board of Appeals, which affirmed.  Siegert appealed to the Court of Appeals of Oregon, asserting that the kennel was not a rightful land use under the prior code, and thus could not constitute a nonconforming use, and alleged that the County violated its own procedural rules.  The Court of Appeals affirmed the County’s decision. 

This matter arose when a kennel owner sought to have the kennel verified as a non-conforming use.  All parties to the action agree that the kennel would not be permitted on its current site under the existing code, and they also agree that if it did lawfully exist under the former code, it would be awarded non-conforming use status.  The parties do, however, disagree as to whether the prior code authorized the use in the kennel’s location.

Under the former code, farming was permitted on the kennel’s site and animal husbandry was exempt from all zoning restrictions.  The County determined that the breeding of dogs fell within the meaning of animal husbandry, citing evidence in support, such as a 1976 zoning form treating the dog breeding kennels as animal husbandry.  Thus, the County found that the dog breeding kennel lawfully existed under the prior code and should be verified as a non-conforming use.

The petitioner asserted this interpretation was incorrect, as numerous portions of the code specifically provided for dog breeding kennels.  Since this term was absent from the zone designation of the property and the animal husbandry definition, it must not have been intended to be within the same.  On appeal to the Land Use Board of Appeals, the Board would not overturn the County’s determination as the Board’s review was limited to whether the County’s interpretation was plausible, not whether the petitioner’s was “better or more consistent with the language, purpose and policy of” the code.  Thus, given the deference afforded to the County’s decision, the Board affirmed. 

The Court of Appeals stated that it as well is limited to determining whether the County’s interpretation is plausible.  The court further stated that if the code permits conflicting interpretations, the court must affirm the County’s interpretation if it engaged in a considered determination that either plausibly harmonizes the conflicting provisions or identifies which provisions are to be afforded full effect, and if the County’s interpretation comports with some of the express language of the code. 

The petitioner conceded that the County seriously considered the issue and identified which provision is to be given full effect.  The petitioner argued, however, that the County’s interpretation was not plausible, echoing the argument made to the Board.  The court determined that although it may not be the best interpretation, the County’s interpretation was plausible and thus should not be overturned. 

Siegert v. Crook County, 246 Or.App. 500 (Ct. App. Or. 2011),

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=1317147899105138869&hl=en&as_sdt=2&as_vis=1&oi=scholarr.


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