1000 Friends of Oregon v. Clackamas County

(1) Where an applicant for a conditional use permit to host events as a home occupation on land zoned exclusive farm use plans to be on-site during events to assist with general coordination, parking, and other activities, and where conditions of approval make the applicant responsible for operational matters such as maintaining the event calendar to comply with limits on the number of events as well as monitoring noise and sign removal, substantial evidence exists to support the conclusion that the applicant will “operate[]” the home occupation under ORS 215.448(1)(a), even where they plan to have no full-time employees and to allow customers to hire their own contractors as necessary. (2) Where an applicant for a conditional use permit to host events as a home occupation on land zoned exclusive farm use explains how events can be conducted with no more than 5 employees on site at one time by scheduling activities, preparing food off site, utilizing buffet style service, and planning and making arrangements in advance, and where a condition of approval limits the home occupation to no more than 5 employees on site, substantial evidence exists to support the conclusion that the applicant will “employ on site no more than five full-time or part-time persons” under ORS 215.448(1)(b), even given the complex planning and implementation that a 300-guest wedding entails. (3) Where an applicant for a conditional use permit to host events as a home occupation on land zoned exclusive farm use plans to renovate two existing barns by adding a dance floor, sound proofing, and a catering preparation area to one barn, and adding restrooms and “Brides and Grooms rooms” and eliminating horse stalls in the other barn, and where the applicant plans to construct a new building containing restrooms with septic system capacity to serve 300 people per event, such home occupation violates the requirement at ORS 215.448(3) that counties may not “permit construction of any structure that would not otherwise be allowed in the zone.” (4) Under ORS 197.763(1), raising concerns about traffic safety impacts is not sufficient to preserve an argument that the guests-per-vehicle assumption on which the local government relied is not supported by substantial evidence, where opponents did not specifically challenge that assumption in the applicant’s traffic impact analysis below.

The applicant applied for a conditional use permit to host events as a home occupation on land zoned exclusive farm use (EFU). The applicant’s development plans include renovating two existing barns by adding a banquet area, dance floor, and catering preparation kitchen, and constructing a new building containing restrooms. The county approved the application with conditions and this appeal followed.

Under ORS 215.448(1)(a), home occupations in the EFU zone must be “operated by a resident or employee of a resident of the property.” The applicant explained below that their plans were to have no full-time employees and to allow customers to hire their own contractors as necessary. In its first subassignment of error, petitioner argues there is not substantial evidence in the record that the applicant, another resident of the property, or one of their employees will “operate” the home occupation. Under Clackamas County Zoning and Development Ordinance (ZDO) 806.01(C), an “operator” is “[t]he person who conducts the home occupation, has majority ownership interest in the home occupation, and is responsible for strategic decisions and day-to-day operations.” Because the applicant explained below that they would be on-site during events to assist with general coordination, parking, and other activities, and because the conditions make the applicant responsible for operational matters such as maintaining the event calendar to comply with limits on the number of events as well as monitoring noise and sign removal, LUBA concludes there is substantial evidence that the applicant will operate the home occupation. This subassignment of error is therefore denied.

Under ORS 215.448(1)(b), home occupations in the EFU zone may “employ on site no more than five full-time or part-time persons.” In its second subassignment of error, petitioner argues that, given the complex planning and implementation that a 300-guest wedding entails, there is not substantial evidence in the record that the applicant will employ no more than 5 persons. Because the applicant explained below how the 5-employee limit can be achieved by scheduling activities, preparing food off site, utilizing buffet style service, and planning and making arrangements in advance, LUBA concludes the decision is supported by substantial evidence. In addition, even if petitioner is correct that it is impossible to host a 300-person wedding with only 5 employees on site, because one of the conditions limits the home occupation to no more than 5 employees on site, the applicant will simply have to decrease the size of events. This subassignment of error is therefore denied.

In Green v. Douglas County, 67 Or LUBA 234 (2013), LUBA held that the 5-employee limit refers to employees on site at one time. In its third subassignment of error, petitioner argues LUBA should overrule Green and that ORS 215.448(1) doesn’t prohibit home occupations from having more than 5 employees on site at any given time, but rather prohibits home occupations from employing more than 5 people to carry out the use. LUBA states that its reasoning remains the same as it was in Green. This subassignment of error is therefore denied.

Under ORS 215.448(3), in approving home occupations, counties may not “permit construction of any structure that would not otherwise be allowed in the zone.” LUBA has held that ORS 215.448 prohibits remodeling to such an extent that the building could not be newly constructed in the zone. In its fourth subassignment of error, petitioner argues that, because commercial dance and banquet halls are not allowed in the EFU zone, the home occupation violates ORS 215.448(3). LUBA agrees with petitioner that adding a dance floor, sound proofing, and a catering preparation area to one barn, and adding restrooms and “Brides and Grooms rooms” and eliminating horse stalls in the other barn, are extensive renovations that change the character of the barns and violate ORS 215.448(3). In addition, LUBA agrees with petitioner that, while restrooms are a common component of dwellings, there is no evidence that the proposed restroom building, with septic system capacity to serve 300 people per event, would be allowed in the EFU zone. This subassignment of error is therefore sustained, and petitioner’s assignment of error is sustained, in part.

Under ZDO 1203.03(C), the “safety of the transportation system [must be] adequate to serve the proposed use.” Because the conditions limit the number of attendees per event, limit the event times, and require the applicant to work with ODOT to develop traffic control plans, and because the applicant’s traffic impact analysis (TIA) assumed that there would be an average of 1 vehicle per 3 attendees, the county concluded this criterion was met. In their assignment of error, intervenors argue the county’s general conclusion that this criterion is met, and its specific conclusion that there will be 3 attendees per vehicle, are not supported by substantial evidence. Intervenors argue these issues were preserved because intervenors raised concerns about traffic safety impacts below. However, because intervenors did not specifically challenge the guests-per-vehicle assumption in the applicant’s TIA, LUBA concludes neither the county nor the applicant had an opportunity to respond to that argument, and it is therefore waived under ORS 197.763(1). In addition, because the county’s conclusion that ZDO 1203.03(C) is met was based on testimony by ODOT and the applicant’s traffic engineer, LUBA concludes it is supported by substantial evidence. This assignment of error is therefore denied, and the county’s decision is REMANDED.