# Friends of Yamhill County v. Yamhill County

> Court of Appeals of Oregon · April 19, 2023 · 325 Or. App. 282

URL: https://www.frixlaw.com/law-library/cases/10610129

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** April 19, 2023
- **Citations:** 325 Or. App. 282; 529 P.3d 1007
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Egan
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10610129. Public record. Not legal advice.