Morgan v. Jackson Cnty.

290 Or.App. 111

414 P.3d 917

Karen MORGAN, Respondent,

v. JACKSON COUNTY, Respondent below,andLarry Perkett and Susan Perkett, Petitioners.

A166034

Court of Appeals of Oregon.

Argued and submitted November 21, 2017.

February 7, 2018

H. M. Zamudio, Medford, argued the cause for petitioners. With her on the brief was Huycke O'Connor Jarvis, LLP.

Wendie L. Kellington, Lake Oswego, argued the cause for respondent. With her on the brief was Kellington Law Group PC.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

DEVORE, J.

Petitioners, Larry and Susan Perkett, seek review of an order of the Land Use Board of Appeals (LUBA) that reversed the decision of a Jackson County hearings officer who had, in part, verified their application to continue their nonconforming use of their property as an auto yard business in an area zoned for exclusive farm use (EFU). LUBA had agreed with respondent, Morgan, an adjoining property owner, that the Perketts' auto yard had not been a "lawful use" of the property, within the meaning of ORS 215.130(5), at the time that zoning was enacted and so could not continue as a permissible nonconforming use.¹ The Perketts assign error, arguing that LUBA misconstrued the term "lawful use" to encompass consideration of a violation of a former licensing statute for motor vehicle dealers. We agree, and we reverse and remand.

We state the facts as recounted in LUBA's order. Regency Centers, L.P. v. Washington County , 265 Or.App. 49, 52, 335 P.3d 856 (2014). The Perketts own 10 acres of which 1.6 acres is devoted to the purchase, repair, and sale of used vehicles and the storage of impounded or abandoned vehicles. In September 1973, Jackson County applied the first zoning to the property. It was an Open Space Development 5 zone, which did not allow an auto yard use. That use remained unpermitted when the county rezoned the property for EFU in 1982.

In June 2016, the Perketts filed an application asking the county to verify the auto yard, as well as three storage structures, as a permissible, nonconforming use under ORS 215.130 and the Jackson County Land Development Ordinance (LDO) chapter 11. The county issued a notice of a tentative decision to verify the nonconforming use. Morgan objected. A hearings officer considered Morgan's challenges and determined that the auto yard use, but not three storage structures, should be verified as a permissible, nonconforming use.

Morgan appealed to LUBA, arguing, among other things, that the auto yard use had not been lawful prior to September 1973. Morgan argued that the use of the property as an auto yard was not a lawful use (a) because former ORS 481.305 (1971) prohibited buying and selling vehicles without a license from the Motor Vehicles Division of the Department of Transportation (DMV), and (b) because the Perketts lacked such a license at the time.² See former ORS 481.305(1) (providing in part that "no person shall carry on or conduct in this state the business of buying, selling or dealing in new or used motor vehicles * * * unless he has a license from the division authorizing him to carry on or conduct such business"); see also former ORS 481.990(8) (making violations of ORS 481.305 punishable by up to a $500 fine and up to six months' imprisonment).

LUBA looked to its own decisions to find the meaning of "lawful use" in ORS 215.130(5). In Coonse v. Crook County , 22 Or. LUBA 138 (1991), LUBA considered a nonconforming logging business. LUBA held that the construction of a structure allegedly in violation of fire and building codes did not make the nonconforming use an "unlawful use." Id. at 144-45. In Rogue Advocates v. Jackson County , 69 Or. LUBA 271 (2014), LUBA addressed an asphalt batch plant. LUBA held that the failure to obtain an air quality permit from the Oregon Department of Environmental Quality did not render the use unlawful for purposes of ORS 215.130(5). Id. at 278-81. In both cases, LUBA deemed the statute to be chiefly concerned with compliance with then-existing zoning and land use regulations.

Now faced with Morgan's appeal, LUBA determined that "lawful use" in ORS 215.130(5) was "not concerned only with whether the use complied with state or local land use laws." Instead, LUBA reasoned that "lawful use"

"may also be concerned with whether the use complied with state, federal or local non-land use laws, regulations or licensing requirements that are either (1) integrally related to zoning or land use requirements, or (2) for some other reason must be satisfied for a use to be ‘lawful.’ "

(Emphasis added.) LUBA observed that the DMV license requirement "may not be ‘integrally related’ to zoning or land use requirements," but it determined that DMV licensing fit its second category involving authorization that should be received to make an activity lawful. LUBA concluded that "where an applicable local, state or federal law requires authorization of the use itself, such authorization must be obtained on or before the date the use becomes nonconforming, in order for the use to be a ‘lawful use’ for purposes of ORS 215.130(5)." LUBA reversed the county's recognition of the Perketts' auto yard as a permissible, nonconforming use.

We review LUBA's order to determine whether LUBA correctly construed the statute. See ORS 197.850(9)(a) (court may reverse or remand if it finds an order to be unlawful in substance). We give no deference to LUBA's rulings on legal questions. Grabhorn v. Washington County , 279 Or.App. 197, 203, 379 P.3d 796, rev. den. , 360 Or. 568, 385 P.3d 79 (2016).

Generally, "[a] lawful nonconforming use of land is one that is contrary to a land use ordinance but that nonetheless is allowed to continue because the use lawfully existed prior to the enactment of the ordinance." Rogue Advocates v. Board of Comm. of Jackson County , 277 Or.App. 651, 654, 372 P.3d 587 (2016), rev. dismissed , 362 Or. 269, 407 P.3d 795 (2017) (internal quotation marks omitted); ORS 215.130(5). To summarily prohibit a lawfully established use of land "would constitute a taking without compensation." Bergford v. Clack. Co./Trans. Serv. , 15 Or.App. 362, 367, 515 P.2d 1345 (1973). "Under state and local law, a nonconforming use can continue until abandoned, but alterations or replacements of the use are regulated." VanSpeybroeck v. Tillamook County , 221 Or.App. 677, 681, 191 P.3d 712 (2008).

Those principles are expressed in ORS 215.130. Its several subsections provide text and context for the issue presented. In its relevant parts, ORS 215.130 provides:

"(5) The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued. Alteration of any such use may be permitted subject to subsection (9) of this section. * * *

" * * * * *

"(7)(a) Any use described in subsection (5) of this section may not be resumed after a period of interruption or abandonment unless the resumed use conforms with the requirements of zoning ordinances or regulations applicable at the time of the proposed resumption.

" * * * * *

"(9) As used in this section, ‘alteration’ of a nonconforming use includes:

"(a) A change in the use of no greater adverse impact to the neighborhood; and"(b) A change in the structure or physical improvements of no greater adverse impact to the neighborhood."

The parties arguments turn on those provisions and the context in which they appear.

On review before this court, the Perketts argue that LUBA erred in construing ORS 215.130(5).³ They contend that the issue of "lawful use" is determined with reference to local zoning or land use regulations. They assert that LUBA erred when enlarging its understanding of the issue to consider whether their use was unlawful with reference to compliance with dealer-licensing statutes. Morgan responds that the phrase "lawful use" requires the Perketts to show "an activity that is lawful under all laws, not just land use laws." (Emphasis in original; boldface omitted.) In Morgan's view, "a ‘use’ that is ‘lawful’ is one that complies with all local, state, and federal laws in effect at the time the restrictive zoning ordinance is enacted." Morgan focuses particularly on the word "lawful" itself, arguing that the legislature could have, but failed, to narrow the term "lawful" to land use.

The issue is one of first impression. As presented, the issue is a question whether the phrase, "lawful use," in ORS 215.130(5) is determined with reference to land use laws or, more broadly, with reference to other laws that would include business or occupational licensing. See Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997) (court's responsibility for identifying the correct interpretation of a statute). In resolving that question, our task is to discern the legislature's intent, beginning with an examination of the text of the statute in its context. See State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009) (text and context provide the best evidence of the legislature's intent). That means that we do not ordinarily focus on a single word or phrase in isolation. Rather, "we construe each part [of a statute] together with the other parts in an attempt to produce a harmonious whole." Lane County v. LCDC , 325 Or. 569, 578, 942 P.2d 278 (1997). In doing so, "we consider all relevant statutes together, so that they may be interpreted as a coherent, workable whole." Unger v. Rosenblum , 362 Or. 210, 221, 407 P.3d 817 (2017).

We find helpful an introductory observation about the chapter in which ORS 215.130 may be found. Such an observation is helpful because the context of a statute includes other related provisions on the same subject. In this instance, ORS chapter 215 "generally governs county zoning and planning," Warburton v. Harney County , 174 Or.App. 322, 327, 25 P.3d 978 (2001), and "the authority of counties to zone land," Lane County , 325 Or. at 573, 942 P.2d 278. Generally speaking, ORS 215.130 concerns the application...