Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kaplowitz v. Lane County

Court of Appeals of Oregon

June 1, 2017

Larry KAPLOWITZ and Karin Marcus, Respondents,
v.
LANE COUNTY, Respondent, and Charles WIPER, III, Petitioner. Charles WIPER, III, Petitioner,
v.
LANE COUNTY, Respondent, and Larry KAPLOWITZ and Karin Marcus, Respondents.

          Argued and submitted December 20, 2016

         Land Use Board of Appeals 2016029, 2016030

          Aaron J. Noteboom argued the cause for petitioner. With him on the brief was Arnold Gallagher P. C.

          Zachary P. Mittge argued the cause for respondents Larry Kaplowitz and Karin Marcus. On the brief were William H. Sherlock and Hutchinson Cox.

          No appearance for respondent Lane County.

          Before Sercombe, Presiding Judge, and DeHoog, Judge, and Haselton, Senior Judge.

         [285 Or.App. 765] Case Summary: Petitioner petitions for review of a decision by the Land Use Board of Appeals (LUBA), which affrmed the county's interpretation of a county ordinance. The county concluded that respondents' proposed use of their property complied with provisions of the Lane Code permitting "accessory" uses and development of land in F-2, forest conservation zones. On appeal to LUBA, petitioner argued that the county misinterpreted those code provisions. LUBA rejected petitioner's argument, concluded that the county's interpretation of the code provisions were plausible and, therefore, pursuant to ORS 197.829(1), deferred to the county's interpretation of the code provisions. On review, petitioner argues that LUBA erred in deferring to the county's interpretation of "accessory" uses and development. Held: The county's interpretation of the code provisions was not inconsistent with the text of the relevant code provisions or any related policies "providing the basis for" or "implemented" by the code provisions. It was, therefore, plausible and entitled to deference under ORS 197.829(1). Accordingly, LUBA's order was not unlawful in substance.

         Affrmed.

         [285 Or.App. 766] SERCOMBE, P. J.

         The issue in this land use case is whether the Land Use Board of Appeals (LUBA) properly deferred to Lane County's interpretation of the meaning of "accessory" use and development as used in the county's forestland zoning regulation. Under ORS 197.829(1), LUBA must affirm a county's interpretation of its land use regulations unless that interpretation is inconsistent with the text of the regulation or related policies.[1] Petitioner asserts that the county's interpretation is inconsistent with the purpose of the applicable forestland zoning provision and the state statutes and rules that regulate the content of that zoning regulation, and that, therefore, LUBA erred in deferring to the county's construction of the regulation. We review to determine whether the LUBA order was "unlawful in substance." ORS l97.85O(9)(a). On review, we conclude that LUBA properly deferred to the county's interpretation of its regulation.

         We state only the facts necessary to frame the code interpretation question at issue. Briefly put, intervenors-respondents Kaplowitz and Marcus (respondents) applied to Lane County for a zoning consistency determination to certify the lawfulness of an accessory use to their 3, 600 square foot home. That residence is located on a 9.7 acre tract in rural Lane County that is zoned Impacted Forest Land (F-2).[2] The requested accessory use to be certified was [285 Or.App. 767] 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 (yoga/dance/music studio, a guest room, a recording studio, two storage rooms, two bathrooms, and a mudroom/entry foyer) for use by the permanent residents of the property and their guests. Respondents call this converted space their "sanctuary."

         The proposed frequency of the sanctuary use changed during the local government proceedings. Ultimately, respondents proposed that they and their housemates would use the accessory structure on a daily basis for personal use (yoga, dance, meditation, and hobbies). Small groups of family and friends (five to 15 persons) 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, upon further review, that approval was affirmed by the county hearings officer in initial and reconsidered decisions. The county board of commissioners affirmed the hearings officer decisions. Petitioner obtained review by LUBA, and LUBA affirmed the county's interpretation of the meaning of "accessory" uses and development in the F-2 zoning district.[3]

         As noted, the F-2 zoning for the property allows "[u]ses and development accessory to existing uses and development." Lane Code (LC) l6.2ll(2)(o). LC 16.090 defines "accessory" to mean "[incidental, appropriate and subordinate to the main use of a tract or structure." Before [285 Or.App. 768] the county and LUBA, petitioner argued that the size and intensity of the proposed accessory use made it not "incidental, appropriate and subordinate" to the residential use of the property. The hearings officer initially ruled:

"Essentially [petitioner] is arguing that the proposed use of the horse barn/arena, as converted, is not subordinate or in proper scale with the residential use of the property. ***
"*** [The accessory use determination] is, by its very nature, quite broad and includes a determination of the appropriate use of the horse barn/arena. I maintain that the size of the structure has limited evidentiary value compared to the scope of the use proposed and its impact on the neighborhood. ***
"* * * The appropriate consideration, however, is whether the structure, as intended to be used in the future by [respondents], qualifies as a building and use that is truly accessory to the residential use of the subject property.
"The pertinent issue is whether the accessory structure is subordinate to the residence or vice versa. Two factors are relevant to this inquiry. First, the intensity of the use of the accessory structure should be weighed against the intensity of the use of the residence. Second, the impact on the neighborhood from the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.