v. Wash. Cnty., LUBA No. 2018-067

A WALK ON THE WILD SIDE, Petitioner, v. WASHINGTON COUNTY, Respondent.

LUBA No. 2018-067

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

November 5, 2018

FINAL OPINION AND ORDER

Appeal from Washington County.

Geordie Duckler, Tigard, filed the petition for review and argued on behalf of petitioner.

Jacquilyn Saito-Moore, County Counsel, Hillsboro, filed the response brief and argued on behalf of respondent.

ZAMUDIO, Board Member; RYAN, Board Chair; BASSHAM, Board Member, participated in the decision.

RYAN, Board Chair, concurring.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Opinion by Zamudio.

NATURE OF THE DECISION

Petitioner appeals a county hearing officer's code enforcement decision.

FACTS

The subject property is zoned exclusive farm use (EFU) and identified as high-value farmland based on its soil.¹ Petitioner is an Oregon nonprofit corporation that operates an exotic animal rescue facility. Petitioner leases the subject property and keeps on the property a mix of domesticated animals, native wild animals, and exotic animals. Petitioner has constructed multiple enclosures on the subject property to house large exotic animals such as lions and tigers. Petitioner modified a barn on the subject property to house smaller exotic animals.

In August 2017, after multiple communications from the county advising petitioner that keeping exotic animals is not a permitted use on the subject property, county code enforcement issued notices of civil violations to petitioner's executive director and secretary, as individuals, for violations of the Washington County Community Development Code (CDC). The notices alleged that in April 2017, petitioner violated the CDC by feeding and managing exotic animals on EFU property, failing to obtain permits for exotic animal structures,and proposed sales of exotic animal dung and that in July 2017, petitioner violated the CDC by feeding and managing exotic animals on EFU property.² Record 1.

In November 2017, the county hearings officer held a code enforcement hearing and subsequently suspended the proceeding to allow time for the county to issue notices of civil violations to petitioner, the nonprofit corporation. OnMarch 16, 2018, the county issued notices of civil violations to petitioner, as well as each of petitioner's corporate officers and executive director for violations that occurred on April 18, 2017 and July 7, 2017. A code enforcement hearing was scheduled for May 17, 2018. Petitioner filed a motion to dismiss the county proceeding and sought a temporary restraining order and petition for writ of review in the circuit court. The circuit court denied petitioner's requested relief. The county hearings officer denied petitioner's motion to dismiss and issued a final order imposing civil penalties for petitioner's code violations.³ This appeal followed.

FIRST ASSIGNMENT OF ERROR

Oregon land use law preserves land for agricultural uses by restricting uses allowed in EFU zones. ORS 215.203.⁴ Those regulations do not define "farmanimal," but provide that "farm use" includes "feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof[,]" stabling or training equines, and "the propagation, cultivation, maintenance and harvesting of aquatic, bird and animal species that are under the jurisdiction of the State Fish and Wildlife Commission, to the extent allowed by the rules adopted by the commission." ORS 215.203(2)(a); see n 4. It is undisputed in thiscase that petitioner keeps exotic wild animals on the property and keeping those animals is not a "farm use" under ORS 215.203.

The hearings officer found that the petitioners do use the property for certain "farm uses," including "raising, breeding, and selling a variety of livestock and poultry (horses, sheep, goats, pigs, cows, donkeys, alpaca, llamas, chickens, turkeys, and ducks); selling livestock and poultry products (eggs and meat); raising and selling fruit (Asian pears); and boarding and training horses." Record 5. There is no dispute that those uses are farm uses permitted on the subject property. ORS 215.203(2)(a); OAR 660-033-0120 (providing uses authorized on agricultural lands); CDC 106-79 (defining "farm use"); CDC 340-2 through 340-5.⁵ However, the hearings officer also found that petitioner engaged in unpermitted uses on the subject property:

"[O]n April 18, 2017, and July 7, 2017, [petitioner] was also operating an exotic animal rescue facility and housing, feeding, and keeping a variety of exotic animals on the site, including binturong,caracal, coatimundi, crested porcupine, European lynx, Geoffroy's cat, kinkajou, lion, Patagonian cavy, ring-tailed lemur, Siberian lynx, tiger, wallaby, and zebra." Record 5.

The hearings officer concluded that housing, feeding, and keeping exotic animals are not permitted "farm use[s]" and that the animal enclosures and barn modifications constituted unpermitted improvements that existed on the site on April 18, 2017, and July 7, 2017. Record 7. The hearings officer rejected petitioner's argument that it had not violated the county code because it also used the subject property for permitted farm uses. The hearings officer reasoned:

"The fact that [petitioner] is also operating a farm use on the majority of the site is irrelevant. The existence of a farm use on EFU land does not authorize any and all other uses on the site. [Petitioner's] exotic animal rescue facility is a separate and independent use from the farm use. It is not an accessory use or hobby undertaken by a resident of the site. Under [petitioner's] interpretation, so long as the majority of an EFU zoned property is dedicated to farm use, any other use, for instance an auto repair shop or a small retail market, would also be allowed on the same property. This is clearly inconsistent with the plain language of the [CDC] and state law." Record 5-6.

The parties agree that petitioner uses the property for permitted farm uses and that housing, feeding, and keeping exotic animals are not permitted farm uses. Petitioner does not dispute that the animal enclosures and barn modifications are used to keep exotic animals. Petitioner does not argue that keeping exotic animals is a "farm use"; rather, petitioner argues that because the subject property is primarily used for "normal" farm use, petitioner may also use the subject property and the unpermitted improvements for keeping exoticanimals. Petition for Review 16. The county responds that the hearings officer correctly concluded that the farm uses do not legitimize the concurrent unpermitted uses. We agree.

The challenged decision imposes penalties for violations for keeping exotic animals and not for any of the permitted farm uses on the property. As the county emphasizes, land that is planned and zoned for exclusive farm use must be used exclusively for defined "farm uses" or listed exceptions. ORS 215.203; ORS 215.213. Housing, feeding, and keeping exotic animals are not listed farm uses or exceptions. The fact that petitioner also uses the property for permitted farm uses does not shield the unpermitted uses from code enforcement action.

The first assignment of error is denied.

SECOND ASSIGNMENT OF ERROR

In the second assignment of error, petitioner contends that the hearings officer misconstrued the applicable law by not dismissing the notices of civil violations as untimely. Petitioner's premise is that county code enforcement action for violations of the CDC is subject to ORS Title 14, Chapters 131 through 153, which governs procedures in criminal matters generally. Chapter 153 governs violations and fines. ORS 153.030(1) provides:

"The procedures provided for in this chapter apply to violations described in ORS 153.008. Except as specifically provided in this chapter, the criminal procedure laws of this state applicable to crimes also apply to violations."

ORS 153.008(1)(c) provides that an offense is a "violation" if"[t]he offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment."

ORS 153.030(3) provides "The statute of limitations for proceedings under this chapter is as provided in ORS 131.125." ORS 131.125(8)(c) provides a six-month limitation on prosecutions for violations.⁶ The cited violations occurred on April 18, 2017 and July 7, 2017. The county issued the pertinent notices of civil violations to petitioner on March 29, 2018, approximately 11 months after the first violation and nine months after the second violation.

The county responds that ORS 131.125(8)(c) is inapplicable because the land use violations were enforced under Washington County Code (WCC) 1.14, which sets out county code compliance and enforcement procedures, and the county has authority over land use code enforcement matters independent from any statutorily derived authority in ORS Title 14. See Washington CountyCharter, ch II, § 20 (f) (providing that the county shall have authority over matters of county concern, including "[e]nacting and enforcing planning and zoning ordinances and regulations in any part [of] the entire County outside cities"). The county argues that the code enforcement procedures under WCC 1.14 are "in lieu of" and not governed by the processes for prosecuting violations provided in ORS 153, and that ORS 153.030 expressly allows for county enforcement separate from the violation provisions of ORS Title 14.

WCC1.14.010 provides:

"Washington

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