Posted by: Patricia Salkin | June 1, 2017

OR Appeals Court Holds County’s Interpretation of the Code Definition of “Accessory” Uses was Not Inconsistent with the Text of the Relevant Laws

Respondents applied to Lane County for a zoning consistency determination to certify the lawfulness of an accessory use to their home. The requested accessory use was a conversion of a 2,800 square foot portion of a 5,200 square foot horse barn and riding arena on the property into rooms for use by the permanent residents of the property and their guests. Respondents referred to this area as the “sanctuary.” Respondents proposed that they and their housemates would use the accessory structure on a daily basis for personal use, and small groups of family and friends would use the sanctuary on a weekly basis. Respondents proposed to host parties of less than 40 persons, up to eight times each year; and gatherings of 40 to 80 persons three or four times a year; and to conduct larger events for more than 80 persons, such as a wedding or bar mitzvah, no more than once a year. The county planning director approved the application to certify the accessory use, and the county board of commissioners affirmed the hearings officer decisions. Petitioner obtained review by Land Use Board of Appeals (“LUBA”), and LUBA affirmed the county’s interpretation of the meaning of “accessory” uses and development in the F-2 zoning district.

On appeal, petitioner argued that LUBA erred in deferring to the county’s interpretation of “accessory” use and development because the interpretation was “contrary to Goal 4 and inconsistent with the purpose of LC 16.211 and the underlying policies which are the basis for the Lane Code.” The county interpreted LC 16.090, defining “accessory” as “incidental, appropriate and subordinate to the main use” of a structure, and taking into account the intensity of the use of the accessory structure as weighed against the intensity of the use of the residence. The county concluded that an “incidental, appropriate and subordinate” accessory use in the forestland zone would be one that was confined to use by residents of the tract and their guests, and not open to general use by the public, or commercial by nature. The court found the use was not inconsistent with the conservation of forestland to allow particular accessory uses for forestland dwellings, subject to siting standards for those uses. Additionally, the court found that the county’s interpretation of the code definition of “accessory” uses and development was not inconsistent with the text of the relevant laws. Accordingly, the county’s interpretation was plausible and entitled to deference.

Kaplowitz v Lane County, 2017 WL 2375752 (OR App. 6/1/2017 )

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