Friends of Yamhill County v. Yamhill County

282

Argued and submitted March 8, reversed April 19, petition for review allowed

September 14, 2023 (371 Or 333)

See later issue Oregon Reports

FRIENDS OF YAMHILL COUNTY,

Petitioner,

v.

YAMHILL COUNTY

and Grange Hill LLC,

Respondents.

Land Use Board of Appeals

2022081; A180472

529 P3d 1007

Petitioner 1000 Friends of Yamhill County seeks judicial review of an order

of the Land Use Board of Appeals (LUBA) upholding Yamhill County’s approval

of a conditional use permit (CUP) for the applicant, Grange Hill LLC, to operate

a bed and breakfast as a “home occupation” in a structure to be built on land

zoned for exclusive farm use. Held: In reviewing LUBA’s order to determine if it is

“unlawful in substance,” ORS 197.850(9)(a), the Court of Appeals concluded that

the proposed building is not a “dwelling” under ORS chapter 215 or the Yamhill

County Zoning Code and that it therefore cannot provide a location for a home

occupation bed and breakfast. The court held for that reason, that LUBA’s affir-

mance of the county’s approval of the CUP is unlawful in substance.

Reversed.

Andrew Mulkey argued the cause and filed the brief for

petitioner.

Elaine Albrich argued the cause for respondent Grange

Hill LLC. Also on the brief were Olivier F. Jamin and Davis

Wright Tremaine LLP.

No appearance for respondent Yamhill County.

Before Tookey, Presiding Judge, and Egan, Judge, and

Kamins, Judge.

EGAN, J.

Reversed.

Cite as 325 Or App 282 (2023) 283

EGAN, J.

Petitioner Friends of Yamhill County seeks judicial

review of an order of the Land Use Board of Appeals (LUBA)

upholding Yamhill County’s approval of a conditional use

permit (CUP) for the applicant, Grange Hill LLC, to operate

a bed and breakfast as a “home occupation” in a structure

to be built on land zoned for exclusive farm use. We review

LUBA’s order to determine if it is “unlawful in substance,”

ORS 197.850(9)(a), and conclude that it is. We therefore

reverse the order.

The subject property is approximately 18.89 acres

of high-value farmland zoned for exclusive farm use (EFU)

and planted in approximately 13 acres of grapes. The dis-

puted CUP concerns the proposed construction of a two

story, 8,200 square-foot, structure on the subject property,

proposed to be used as a bed and breakfast, as a “home occu-

pation” in a permitted farm dwelling.

Land within an EFU zone “shall be used exclusively

for farm use except as otherwise provided in ORS 215.213,

215.283 or 215.284.” ORS 215.203(1). As a “permitted” use in

an EFU zone, “[s]ubject to ORS 215.279,” ORS 215.283(1)(e)

allows the construction of “primary or accessory dwellings

and other buildings customarily provided in conjunction

with farm use[.]” ORS 215.279 in turn provides that the

Land Conservation and Development Commission (LCDC)

may adopt a rule that establishes a farm income standard

to determine whether a dwelling is “customarily provided in

conjunction with farm use on a tract[.]”

LCDC has adopted administrative rules implement-

ing ORS 215.283, setting forth the requirements for dwell-

ings on high-value farmland. OAR 660-033-0135.1 Yamhill

1

OAR 660-033-0135(4) provides, in part:

“On land identified as high-value farmland, a dwelling may be consid-

ered customarily provided in conjunction with farm use if:

“(a) The subject tract is currently employed for the farm use, as defined

in ORS 215.203, on which the farm operator earned at least $80,000 in gross

annual income from the sale of farm products in each of the last two years or

three of the last five years, or in an average of three of the last five years; and

“(b) Except for seasonal farmworker housing approved prior to 2001,

there is no other dwelling on lands designated for exclusive farm use

284 Friends of Yamhill County v. Yamhill County

County has adopted zoning ordinances that are consistent

with those rules. As relevant here, Yamhill County Zoning

Ordinance (YCZO) 402.03 provides, in part:

“The following residential uses shall be permitted in

the Exclusive Farm Use District[.] * * *

“A. Principal dwelling customarily provided in con-

junction with farm use on high-value farmland, subject to

the following * * *:

“l. The subject tract is currently employed for farm

use, and produced at least $80,000 in gross annual income

from the sale of farm products in each of the last two years,

or three of the last five years. * * *

“2. The dwelling will be occupied by a person or persons

who produced the commodities which grossed the income in

subsection (1) of this Section.”

(Emphases added.)

YCZO 202 defines a “dwelling” as:

“A building containing one (1) dwelling unit designed and

occupied by one family only. The term dwelling includes a

manufactured dwelling but does not include a hotel, motel,

travel trailer, boarding, lodging or rooming house, private

hospital, rest home or nursing home or other accommoda-

tions used for transient occupancy.”

(Emphases added.) YCZO 202 defines a “dwelling unit” as:

“One (1) room or rooms connected together, constituting

an independent housekeeping establishment designed and

used for occupancy by one (1) family, including dependent

relatives and caretakers, and includes permanent provi-

sions for living, sleeping, cooking (limited to one kitchen

only) and sanitation (full bathroom).”

(Emphasis added.) YCZO 202 defines a “motel” as

“One (1) or more attached or detached buildings containing

housekeeping or sleeping units designed and used for the

pursuant to ORS chapter 215 or for mixed farm/forest use pursuant to OAR

660-006-0057 owned by the farm or ranch operator or on the farm or ranch

operation; and

“(c) The dwelling will be occupied by a person or persons who produced the

commodities that grossed the income in subsection (a) of this section[.]”

(Emphasis added.)

Cite as 325 Or App 282 (2023) 285

temporary accommodation of tourists or transients with off-

street parking space for each such unit.”

(Emphasis added.)

As a conditional use on EFU land, ORS 215.283(2)

provides that a county may approve a “home occupation.”

ORS 215.448 sets forth the standards for a “home occupa-

tion” and provides, as relevant:

“(1)(a) It shall be operated by a resident or employee of

a resident of the property on which the business is located;

“* * * * *

“(c) It shall be operated substantially in:

“(A) The dwelling[.]

“* * * * *

“(3) Nothing in this section authorizes the governing

body or its designate to permit construction of any structure

that would not otherwise be allowed in the zone in which the

home occupation is to be established.”

(Emphases added.)

YCZO 402.04(1) conditionally allows a “home occu-

pation” in an EFU zone, “subject to the standards and lim-

itations set forth in Section 1004.” YCZO 1004, in turn,

defines a “home occupation” as

“[a]n activity involving off-site sales, the manufacture of a

product or the provision of a service carried on in compli-

ance with Section 1004 of this ordinance by a resident of

the property on which the business in located.”

Similarly, YCZO 1004 states the requirements for a

home occupation and, as relevant here, provides:

“A. The home occupation will be operated by a resident

of the property on which the business is located.

“* * * * *

“C. The home occupation will be operated substantially

in the dwelling or in other buildings normally associated

with uses permitted in the zone in which the property is

located. * * *

“* * * * *

286 Friends of Yamhill County v. Yamhill County

“F. A home occupation shall not be used to permit

construction of any structure that would not otherwise be

allowed in the zone in which the home occupation is estab-

lished, nor shall a home occupation be used as justification

for a zone change.”

(Emphases added.)

The YCZO allows a “bed and breakfast inn” as a

home occupation. YCZO 202 defines a “bed and breakfast

inn” as:

“A single family dwelling where lodging is offered for com-

pensation, having no more than nine (9) sleeping rooms for

the purpose. A bed and breakfast inn may offer a morning

meal for overnight guests only. A bed and breakfast inn is

conducted within the residence of the operator.”

(Emphasis added.) YCZO 1012.01(A)(l) provides:

“A bed and breakfast inn is a single-family dwelling where

lodging is offered for compensation, having no more than

nine (9) sleeping rooms for this purpose. Bed and break-

fast operations that are undertaken from within a residence

shall be considered as home occupations, and shall comply

with the standards and limitations of Section 1004. A bed

and breakfast inn may offer a morning meal for overnight

guests only.”

(Emphases added.)

With that legal context, we turn to the facts of this

case. In May 2020, BW Vineyard received county approval

to construct a farm-use dwelling on the subject property

and received separate approval for a CUP to operate a bed

and breakfast inn as a home occupation within the dwell-

ing. As described in the original application, the bed and

breakfast inn would be a two-story single-family dwelling

containing a dining area, living room, kitchen, one resident

“innkeeper’s suite,” and nine guest bedrooms, for a total of

30 occupants, including 28 overnight guests. The building

was to be built to hotel building standards. The CUP stated

that it was personal to BW Vineyard and that a subse-

quent owner wishing to operate a bed and breakfast in the

dwelling would be required to obtain land use approval to

do so.

Cite as 325 Or App 282 (2023) 287

Grange Hill LLC (the applicant) acquired the prop-

erty and again sought approval of a CUP to build and operate

the bed and breakfast inn as previously authorized. The cur-

rent drawings describe a two-story structure of 8,200 square

feet that includes an “innkeeper’s suite,” a small (26 square

foot) kitchen, a common area, a fitness room, and nine guest

suites, each with a full bathroom, to accommodate paying

overnight guests. The county planning director approved

the applicant’s home occupation CUP. On petitioner’s appeal,

the board of county commissioners affirmed the planning

director’s decision. Petitioner appealed to LUBA.

In its first assignment of error to LUBA, petitioner

contended that the county’s approval of the CUP violates

both ORS 215.448 and YCZO 1004.01. As a “sub-assign-

ment of error,” petitioner contended that the CUP should

not be approved, because the building to be constructed is

not a “dwelling” permitted within an EFU zone under ORS

215.448, as it will not be “a primary dwelling in conjunction

with farm use.”

LUBA agreed with petitioner that, as originally

approved, the building was required to be “occupied by a per-

son or persons who produced the commodities that grossed

the income” required by YCZO 402.03, i.e., the farm income.

But LUBA reasoned that the building’s approval and the

relevant statutes do not include any limitation on the size,

configuration, or future occupancy or use of the building.

LUBA then proceeded to narrowly address whether

the structure constituted a dwelling under ORS 215.448, for

purposes of a “home occupation.” LUBA rejected petitioner’s

contention that building construction standards applicable

to the structure bear on the nature of the structure. Rather,

LUBA reasoned, the nature of the structure depended on

its planned use. LUBA noted our opinion in 1000 Friends of

Oregon v. Clackamas County, 320 Or App 444, 453, 514 P3d

553 (2022), in which we said:

“[A] ‘dwelling’ or ‘residence’ requires use as a home. A home

is occupied by a group of people sharing a household—not

by individuals and groups who share no social or legal

relationship—on a long-term or permanent basis—not in

a transitory way.”

288 Friends of Yamhill County v. Yamhill County

Id. at 453. LUBA reasoned that, as long as the structure could

serve as a residence, it qualified as a dwelling for purposes

of ORS 215.448. LUBA deferred to the county’s determina-

tion that the design of the structure qualified as a dwelling,

because it would provide a residence for the innkeeper and

because “each bedroom of the proposed structure is accessed

by a shared hallway that shares common atmosphere with

the rest of the house, with common areas and living space

on both floors.” LUBA concluded that the county’s determi-

nation that the bed and breakfast was within a “dwelling”

and constituted a “home occupation” was consistent with the

YCZO and with ORS chapter 215.

On judicial review, petitioner contends that ORS

chapter 215 authorizes only dwellings that are connected

to the farm use—i.e., farm dwellings, and not hotels, and

authorizes home occupations only within a farm dwelling.

Petitioner argues, in essence, that the building applicant

seeks to construct is not a “dwelling” within the meaning

of ORS chapter 215 or the YCZO, but a motel or hotel, as

demonstrated by its compliance with building code require-

ments for those types of structures, and that the county’s

approval therefore violates ORS 215.448(3) (prohibiting

any structure that would not be allowed in the EFU zone).

Petitioner further contends that, even assuming that the

building proposed by the applicant includes a dwelling

because it provides a residence for the innkeeper, the pro-

posed bed and breakfast inn is not to be operated within the

dwelling and is therefore not permitted as a “home occu-

pation,” under either ORS 215.448(1)(c)(A) (requiring that

the home occupation be operated in “a dwelling”), or YCZO

1004. As reframed by the applicant, the question on judicial

review is whether LUBA erred in “affirming the County’s

findings under ORS 215.448(3) that the subject dwelling

was a ‘dwelling’ under ORS [chapter 215] and allowed in the

Exclusive Farm Use Zone.” For the reasons explained below,

we agree with petitioner that the proposed building is not

a dwelling under ORS chapter 215 or the YCZO and that

it therefore cannot provide a location for a home occupation

bed and breakfast.

We review LUBA’s order for whether it is unlawful

in substance, ORS 197.850(9)(a), and do not substitute our

Cite as 325 Or App 282 (2023) 289

judgment for LUBA’s as to any factual issue, ORS 197.850(8).

We review LUBA’s construction of ORS 215, ORS 215.283

(1)(e), and ORS 215.448 for legal error, under the methodology

of State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009),

and PGE v. Bureau of Labor Industries, 317 Or 606, 610-12,

859 P2d 1143 (1993). See 1000 Friends of Oregon v. Clackamas

County, 309 Or App 499, 504, 483 P3d 706, rev den, 368 Or

347 (2021) (reviewing LUBA’s construction of ORS 215.448).

LUBA’s order is unlawful in substance if it “presents a mis-

taken interpretation of applicable law.” Central Oregon

Landwatch v. Deschutes County, 315 Or App 673, 501 P3d

1121 (2021) (citing Kine v. Deschutes County, 313 Or App 370,

496 P3d 1136, rev den, 369 Or 69 (2021)).

We briefly address and reject LUBA’s reasoning

affirming the county’s conclusion that the structure is

a dwelling because it is possible for it to be used as such.

There are innumerable potential similarities in spaces that

constitute homes and those that provide transient lodging.

An inn, lodge, rooming house, boarding house, or hostel

may be someone’s home, or it may be dedicated solely to the

lodging of the public, or something in between. The question

here is not whether the proposed structure can be used as

a dwelling or even whether it will contain someone’s resi-

dence, but whether it is authorized as a dwelling under ORS

chapter 215—that is, whether the proposed structure is pri-

marily dedicated as a dwelling for the use of a farm family,

or whether it is a motel, primarily dedicated to the lodging

of guests or tourist. The former use is permitted under ORS

chapter 215 and the YCZO; the latter is not.

Seeking the answer to that question, the parties

have turned to our recent opinion in Clackamas County, 320

Or App at 452-53, which involved a challenge to an amend-

ment of the Clackamas County zoning code to authorize the

short-term rental use of dwelling units and guest houses for

up to 30 consecutive nights throughout the county, including

on farm and forest land, so as to allow lodgers seeking accom-

modations through web-based applications such as Airbnb,

HomeAway, VRBO, VacationRentals.com, or Booking.com.

The county zoning code provision defining “dwelling unit”

had provided that it was a building “designed for residential

occupancy by one family.” The challenged amendments added:

290 Friends of Yamhill County v. Yamhill County

“A dwelling unit may be occupied by one family or, except

as otherwise provided in this Ordinance, may be used for

residential occupancy by no more than 15 persons for a

period that does not exceed 30 consecutive nights by any

one person.”

The challenged amendments also removed a requirement

that the “[o]ccupants of the guest house and the primary

dwelling shall live together as one housekeeping unit,” and

removed a prohibition on a guest house being a source of

rental income. 320 Or App at 447.

LUBA concluded that the challenged amendments

were not authorized by ORS chapter 215:

“ORS 215.283 and related statutes demonstrate that state

law strictly regulates transient lodging on resource land

with consideration of its effects on accepted farm and for-

est practices. The question is not whether the short-term

rental use of dwellings is expressly prohibited on land

zoned for resource uses. Instead, the question is whether

state law expressly allows the short-term rental use of dwell-

ings on land zoned for resource uses. The county has not

demonstrated that it does.”

Id. at 452-53 (emphasis added). The question on judicial

review was whether LUBA’s order was unlawful in sub-

stance in determining that the challenge zoning ordinance

amendment was not consistent with state law. In address-

ing that question, we quoted from LUBA’s order interpret-

ing “dwelling” and “residence,” as used in ORS chapter 215:

“ ‘ORS Chapter 215 provides no generally applicable defi-

nition of “dwelling” or “residence,” and we therefore look

to the plain, ordinary meaning of those words. “Dwelling”

means ‘a building or construction used for a residence’ and

“residence” means “a building used as a home : dwelling.”

Webster’s Third New Int’l Dictionary 706, 1931 (unabridged

ed 2002) (boldface in original; emphases added). As the

county points out, the term “dwelling,” considered alone,

does not necessarily require owner occupancy or occupancy

of a given duration. However, the term “residence” refers

to “a building used as a home,” and “home” is defined not

only as “a private dwelling : house” but also as “the house

and grounds with their appurtenances habitually occupied

by a family : one’s principal place of residence : domicile.”

Cite as 325 Or App 282 (2023) 291

Webster’s at 1082 (boldface in original). The various terms

connote a distinction between a building used as a “home”

and a building used as something other than a “home,” for

example, a hotel.’ ”

Id. at 451. In affirming LUBA’s order and rejecting the coun-

ty’s contention that a short-term rental is indistinguishable

from the ordinary residential use of a dwelling, we stated:

“[A] ‘dwelling’ or ‘residence’ requires use as a home. A home

is occupied by a group of people sharing a household—not

by individuals and groups who share no social or legal

relationship—on a long-term or permanent basis—not in

a transitory way.”

Id. at 453. We noted that ORS 215.283(2) conditionally

allows certain nonfarm uses of existing dwellings, subject

to the farm impacts test in ORS 215.296, on EFU land:

“ORS 215.283(2)(u) permits ‘[r]oom and board arrange-

ments for a maximum of five unrelated persons in exist-

ing residences’; ORS 215.283(2)(o) provides for ‘[r]esidential

homes as defined in ORS 197.660, in existing dwellings’;

and ORS 215.283(2)(i) authorizes ‘home occupations as pro-

vided in ORS 215.448.’ ”

Id. at 457. We observed that short-term rentals, as per-

mitted by the challenged ordinances, were different from

ordinary residential uses, because they include groups of

strangers who occupy a building in a transitory way—“for

a period that does not exceed 30 consecutive nights,” and

expand “dwelling” to permit occupancy beyond that allowed

by the statutory exceptions. Id. at 454. In affirming LUBA’s

order rejecting the challenged zoning code amendments and

determining that the order was not unlawful in substance,

we concluded:

“Having reviewed the statutory scheme as it relates to the

use of resource land, we conclude that regardless of whether

the question is whether the short-term rental use of dwell-

ings is implicitly included in the allowance of ‘dwellings’

or ‘residences’ on that land or, instead, whether state law

expressly allows the short-term rental use of dwellings on

land zoned for resource uses, the answer is the same: It

does not.”

Id. at 459.

292 Friends of Yamhill County v. Yamhill County

We adhere to our conclusion in Clackamas County

that state law does not expressly allow the short-term rental

use of dwellings on land zoned for resource uses. We adhere

further to our conclusion in Clackamas County that

“a ‘dwelling’ or ‘residence’ requires use as a home. A home

is occupied by a group of people sharing a household—not

by individuals and groups who share no social or legal

relationship—on a long-term or permanent basis—not in

a transitory way.”

Id. at 453. We conclude, further, for the reasons explained

below, that the proposed structure is not a “dwelling” under

either ORS chapter 215 or the YCZO, for which a “home

occupation” can be authorized, and that, for that reason,

LUBA’s affirmance of the county’s approval of the CUP is

unlawful in substance.

As noted, ORS 215.283(1)(e) allows, “[s]ubject to ORS

215.279, primary or accessory dwellings and other buildings

customarily provided in conjunction with farm use.” As an

initial matter, it does not appear that the proposed structure

could qualify as a “primary dwelling,” because the record

does not indicate whether the “resident” would be the per-

son who manages the vineyard. See OAR 660-033-0135(4)(c)

(requiring that a dwelling on high-value farm land “be occu-

pied by a person or persons who produced the commodities

that grossed the income in subsection (a) of this section”);

YCZO 402.03 (same). However, the parties do not raise that

issue on judicial review, and we therefore do not address it.

As LUBA correctly stated, in reviewing the county’s

approval, LUBA reviews the county’s interpretation of its

own regulations under ORS 197.829(1) and is required to

affirm that interpretation so long as it is not inconsistent

with the regulation’s express language, purposes, or under-

lying policies—that is, if it is plausible.2 Siporen v. City of

2

ORS 197.829 provides:

“(1) The Land Use Board of Appeals shall affirm a local government’s

interpretation of its comprehensive plan and land use regulations, unless the

board determines that the local government’s interpretation:

“(a) Is inconsistent with the express language of the comprehensive plan

or land use regulation;

“(b) Is inconsistent with the purpose for the comprehensive plan or land

use regulation;

Cite as 325 Or App 282 (2023) 293

Medford, 349 Or 247, 259, 243 P3d 776 (2010). As noted,

before the county and LUBA, petitioner had argued that the

structure’s design and planned construction pursuant to

building codes for places of public accommodation show that

it is intended as a motel rather than a dwelling. The county

did not consider construction standards to be dispositive,

and LUBA agreed with the county that that factor had no

bearing: “We have not been directed to any evidence that the

building code standards utilized or the number of bedrooms

render the use of the building as a residence impossible.”

On judicial review, petitioner continues to emphasize that

factor.3 Although not dispositive, we agree with petitioner

that a structure’s design, including applicable building code

standards, certainly is relevant to a determination of the

nature of structure.

LUBA affirmed the county’s finding that, despite

its size, design, and planned construction standards, the

proposed structure is a “dwelling,” because it could serve

as someone’s residence, it will be the innkeeper’s residence,

and the guest rooms shared a hallway, a common “atmo-

sphere,” and “common areas.” But, as LUBA recognized,

the county’s finding is based on a reading of the definition

of “dwelling” in YCZO 202 that is not plausible, because a

“dwelling” is “[a] building containing one (1) dwelling unit

designed for and occupied by one (1) family only.” See also

Clackamas County, 320 Or App at 453 (a dwelling is a “home

occupied by a group of people sharing a household—not

“(c) Is inconsistent with the underlying policy that provides the basis for

the comprehensive plan or land use regulation; or

“(d) Is contrary to a state statute, land use goal or rule that the compre-

hensive plan provision or land use regulation implements.

“(2) If a local government fails to interpret a provision of its comprehen-

sive plan or land use regulations, or if such interpretation is inadequate for

review, the board may make its own determination of whether the local gov-

ernment decision is correct.”

3

For example, petitioner points out that the structure is designed accord-

ing to the Oregon Structural Specialty Code occupancy classification Residential

Group R-1, which is an occupancy classification that applies to nonresidential

structures designed for transient lodging such as hotels and motels. Petitioner

notes that there is a separate occupancy classification, R-3, within the Oregon

Residential Specialty Code, which includes a category for a “lodging house” that

can include up to five guest rooms, designed for residential group occupancy, but

for which the proposed structure does not qualify because it exceeds the guest

room and occupancy limitations.

294 Friends of Yamhill County v. Yamhill County

by individuals and groups who share no social or legal

relationship—on a long-term or permanent basis—not in a

transitory way.”) Additionally, the county’s interpretation is

in isolation from that same section’s definition of “motel.”

When both definitions are considered together, it is apparent

that, even if a portion of the structure could provide a resi-

dence for an innkeeper, the design features of the proposed

structure as a whole are those of a motel, for transient lodg-

ing. In answering the question on judicial review as reframed

by the applicant, it does not appear that the proposed struc-

ture is properly characterized as a primary or accessory

dwelling customarily provided in conjunction with farm

use.4

Although LUBA recognized that the county’s find-

ing that the structure was a dwelling was inconsistent with

the requirement of YCZO 202 that a “dwelling” is designed

to be occupied “by one family only,” LUBA noted that the

county had not considered its interpretation of “dwelling”

in light of the provisions for bed and breakfast inns, YCZO

1012.01(A)(a), and LUBA therefore embarked on that consid-

eration. See ORS 197.829(2) (“If a local government fails to

interpret a provision of its comprehensive plan or land use

regulations, or if such interpretation is inadequate for review,

the board may make its own determination of whether the

local government decision is correct.”). LUBA reasoned

that the county’s interpretation of “dwelling” was plausible

and consistent with the zoning code as a whole when con-

sidered in light of YCZO 1012.01(A)(l), which allows a bed

and breakfast inn with nine guest suites—an indication, in

LUBA’s view, that the county intends a dwelling to encom-

pass a structure designed for transient lodging. As the more

“particular” provision, see ORS 174.020(2) (“When a general

provision and a particular provision are inconsistent, the

latter is paramount to the former so that a particular intent

controls a general intent that is inconsistent with the par-

ticular intent.”), LUBA reasoned, the provisions relating to

bed and breakfast inns, as authorized home occupations,

controlled the meaning of “dwelling.” LUBA stated: “[R]ead-

ing the YCZO as a whole, the limitations in the definition of

4

We recognize that only the approval of the CUP is at issue on judicial

review.

Cite as 325 Or App 282 (2023) 295

‘dwelling’ are inconsistent with the more specific intent of

the county that single-family dwelling may be used for a bed

and breakfast as a home occupation.”

We reject LUBA’s construction of the YCZO as incon-

sistent with the code’s text and with statutory requirements

and, therefore, implausible. The statutory scheme makes

clear that the entire structure—not merely a portion of it—

must be a farm dwelling that provides a “home occupied by

a group of people sharing a household—not by individuals

and groups who share no social or legal relationship—on

a long-term or permanent basis—not in a transitory way.”

Clackamas County, 320 Or App at 453. And, as required

by ORS 215.448, a home occupation is one that is carried

out in a “dwelling.” YCZO 202 and YCZO 1012.01(A)(l) both

describe a bed and breakfast inn as a home occupation

within a dwelling. Thus, under both ORS 215.448 and the

zoning code, the structure within which the bed and break-

fast inn exists must be, first, a dwelling. LUBA reached its

conclusion through inverse reasoning, concluding that the

structure is a dwelling because it has a dwelling in it and

because the county code allows a bed and breakfast inn that

includes nine guest units within a dwelling. But because

the proposed structure is not itself a “dwelling” under either

ORS 215.283 or the YCZO, it also cannot provide a location

for a bed and breakfast inn or a “home occupation.” It is

false logic to reason that, because a bed and breakfast inn

with nine guest rooms is permitted within a dwelling as a

home occupation under the YCZO, any structure contain-

ing such an inn must be a dwelling. Such reasoning is also

contrary to ORS 215.448(3), which provides that “[n]othing

in this section authorizes the governing body or its desig-

nate to permit construction of any structure that would not

otherwise be allowed in the zone in which the home occupa-

tion is to be established.” We therefore reverse LUBA’s order

as well as the county’s approval of the CUP.

Reversed.