Landwatch Lane County v. Lane County

(1) Uses that are allowed conditionally in resource zones under state law may only be allowed conditionally in local ordinances, notwithstanding any DLCD model ordinance provisions to the contrary. (2) Where an entire decision is appealed to LUBA, and LUBA sustains assignments of error, it is inappropriate for LUBA to affirm in part and remand in part.

Petitioner appeals an ordinance which amends several provisions of the Lane Code (LC). The ordinance amends LC 16.210(3)(d) to allow “in-home commercial activities” outright on resource lands. In the first assignment of error, petitioner argues in-home commercial activities are not allowed on resource lands under state law. Additionally, even if those activities could be allowed, they are subject to a discretionary review process not provided in LC Chapter 16.210. In-home commercial activities are not included in the list of permitted or conditionally allowed uses in ORS 215.213, ORS 215.317, or OAR 660-006-0025. The closest allowed use is a home occupation, which requires a conditional use approval. The county argues that in-home commercial activities are indistinguishable from residential uses, such as an internet-based business. The proposed in-home commercial activities approach would avoid the conditional use process required for home occupations. LUBA agrees with petitioner that the amendments allowing in-home commercial activities as outright permitted uses are inconsistent with state law. The first assignment of error is sustained.

In the third assignment of error, petitioner argues that the decision improperly relies upon provisions of an earlier ordinance that LUBA remanded. LUBA concludes that, when it remands a land use decision, absent some authority to the contrary, the remanded decision becomes ineffective unless and until the local government takes action on remand to re-adopt the decision. The potential survival of any provisions of the earlier ordinance was not raised or expressly addressed in the earlier LUBA appeal. In addition, LUBA recounts that the Court of Appeals has strongly suggested that where an entire decision is appealed to LUBA, and LUBA sustains assignments of error, it is inappropriate for LUBA to affirm in part and remand in part. Therefore, LUBA agrees with petitioner’s argument that the current decision impermissibly relies upon portions of the earlier ordinance. The third assignment of error is sustained and the county’s decision is REMANDED.