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Stevens v. City of Island City

Court of Appeals of Oregon

February 5, 2014

SCOTT STEVENS and DEBRA STEVENS, Petitioners
v.
CITY OF ISLAND CITY and JON FREGULIA, Respondents

Argued and Submitted November 6, 2013.

Land Use Board of Appeals. 2013036.

Philip M. Wasley argued the cause for petitioners. With him on the brief was Wasley Law Office, P. C.

Jennifer M. Bragar waived appearance for respondent City of Island City.

No appearance for respondent Jon Fregulia.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 478

[260 Or.App. 769] ARMSTRONG, P. J.

Over objections of petitioners and others, the City of Island City approved an application for a home-occupation permit, which imposed conditions upon, but allowed the operation of, a commercial trucking company out of a rural residence in which Fregulia and his family lived. Petitioners appealed the city's decision to the Land Use Board of Appeals (LUBA), raising nine assignments of error. LUBA agreed, in part, with a number of petitioners' arguments and, accordingly, remanded the case to the city for further consideration. Petitioners seek judicial review of LUBA's decision. We write to address only petitioners' contention that LUBA erred when it concluded that Fregulia's home occupation was secondary to the main, residential use of his property, as required by the City of Island City Development Code (ICDC). For the reasons that follow, we affirm.

The basic facts, as set out in LUBA's opinion, are not in dispute:

" The subject property is a four-acre parcel 200 feet wide and 800 feet deep, zoned Low Density Residential (R-E). The parcel is developed with a single-family dwelling, and a 4,500 square foot workshop that [Fregulia] constructed in 2008. Surrounding property is also zoned R-E, except for property across Buchanan Lane, which is zoned and developed for industrial use. Petitioners are adjacent property owners. Their dwelling is located approximately 125 feet from [Fregulia]'s workshop, and the access driveway to the workshop is located approximately 75 feet from their back patio.
" [Fregulia] owns a commercial trucking operation consisting of six semi-trucks, along with a number of trailers, which [Fregulia] has operated from the subject property since 2008 without obtaining a home occupation permit. In response to neighbors' complaints, in June 2010 [Fregulia] applied for a home occupation permit. At that time the property was located in [Union County], but [was] within the city's urban growth boundary. The city processed and approved the permit with conditions, but the county board of commissioners ultimately denied the permit on appeal. In February 2012, the property was annexed into the city, and in September 2012 [Fregulia] filed with the city the present application for a home occupation permit and site plan review.
[260 Or.App. 770] " * * * * *
" [Fregulia] proposed to operate the commercial trucking business from a 600 square foot space in the 4,500 square foot workshop, and to engage one non-family employee to maintain and repair his trucks within that space. City staff recommended approval, based on a number of conditions limiting home occupation activities. The city council conducted a hearing on the application, at which petitioners appeared in opposition. On March 5, 2013, the city council voted to approve the application with conditions. Among other limitations, the conditions limit use of the workshop to 600 square feet, for maintenance of [Fregulia]'s trucks, prohibit more than one truck on the site at any time, ...

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