OR Appeals Court Reverses Decision to Deny Nonconforming Use Status to Property as Auto Yard on the Basis of a Business Licensing Violation

This post was authored by Matthew Loeser, Esq.

Petitioners, Larry and Susan Perkett, sought review of an order of the Land Use Board of Appeals (LUBA), which reversed the decision of a Jackson County hearings officer who had verified their application to continue their nonconforming use of their property as an auto yard business in an area zoned for exclusive farm use (EFU). In its decision, LUBA agreed with the respondant Morgan, an adjoining property owner, that the Perketts’ auto yard had not been a “lawful use” of the property, within the meaning of ORS 215.130(5), at the time that zoning was enacted. As such, LUBA held the property could not continue as a permissible nonconforming use.

On appeal, the Perketts contended that LUBA erred in construing ORS 215.130(5]. Specifically, they argued that LUBA erred when considering whether the Perketts’ use was unlawful with reference to compliance with dealer-licensing statutes. Morgan argued that the phrase “lawful use” required the Perketts to show “an activity that is lawful under all laws, not just land use laws.” Here, the court found that the legislature intended to narrow the term “lawful use” by reference to “lawful use of any building, structure, or land,” and the legislature gave context with reference to “enactment or amendment of any zoning ordinance or regulation.” Accordingly, the court found that a violation of business or occupational licensing laws becoming grounds to deny a land owner recognition of a right to continue an otherwise lawful, nonconforming use would be a sanction that the legislature did not provide or intend in the licensing statutes.

Finally, the court held that LUBA’s construction of “lawful use” to include dealer licensing as a requirement that “for some other reason must be satisfied for a use to be ‘lawful’,” was in error. The court determined that this construction suggested a broad reading of “lawful use” that was inconsistent with the legislative intent expressed in the distinctly different schemes of land use and business licensing. Here, ORS 215.130(5), which referred to the lawful use of buildings, structures, and land, did not refer to compliance with the dealer licensing statute. Therefore, the court held that LUBA erred in reversing the decision of the county hearings officer on the basis of a business licensing violation, and reversed LUBA’s order on that basis.

Morgan v Jackson County, 290 OR App. 111 (2/7/2018)