Appeal from Circuit Court, Marion County. George A. Jones, Judge.
Bruce W. Williams, Salem, argued the cause and filed the brief for appellants.
Norma Paulus, Salem, argued the cause for respondent. With her on the brief were Paulus & Callaghan, Salem.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
This is a land use case. Plaintiffs have appealed from a circuit court order sustaining action of the Marion County Board of Commissioners and the Marion County Planning Commission which allowed a variance under the Marion County Uniform Zone Code pertaining to a particular piece of property in an RA (residential agricultural) zone.
The fundamental question is whether a variance could be validly granted in such a zone to allow a home-school for about 30 mentally retarded, educable children.
Sally Gearhart sought to establish such a home-school in a rural setting where animals could be kept and there would be approximately five acres of
ground. She produced evidence which indicates that there is a critical need in Marion County on account of a constant population of mentally retarded, educable children for several such homes and that none exist.
Evidence indicated that she had made efforts to find other property upon which she could establish such a home but had been unable to find a suitable location. The use envisioned by Mrs. Gearhart is not specifically provided for by the Marion County Uniform Zone Code. The only use category under which her use would be permitted without the grant of a variance appears to be that of a group care home. Under the county zoning ordinance the only zone in which such a group care home is allowed is RM (residential-multiple). The only areas zoned RM are urban, where density of population precludes the rural atmosphere which the testimony indicated is desirable for the establishment planned by Mrs. Gearhart.
She located and acquired the property which is the subject of this proceeding and applied under the county zoning ordinance for a conditional use of a conditional home occupation to implement her plan. The Planning Commission and the county granted the conditional use. However, the conditional use section of the zoning ordinance provides:
"120.075. CONDITIONAL HOME-OCCUPATION provided:
"(a) The occupation or activity be carried on solely by the resident of a dwelling as a secondary use, in connection with ...