Clackamas County v. Dunham

567 P.2d 605, 30 Or. App. 595, 1977 Ore. App. LEXIS 1635
CourtCourt of Appeals of Oregon
DecidedAugust 17, 1977
Docket91323, CA 6817
StatusPublished
Cited by4 cases

This text of 567 P.2d 605 (Clackamas County v. Dunham) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clackamas County v. Dunham, 567 P.2d 605, 30 Or. App. 595, 1977 Ore. App. LEXIS 1635 (Or. Ct. App. 1977).

Opinions

[597]*597JOHNSON, J.

Defendants appeal the trial court decree declaring their mobile home a public nuisance and enjoining its use as a residence on defendants’ property. On October 1, 1972, defendants erected a "double wide” mobile home on their property which is designated as RR (Recreational Residential) by Clackamas County. The county zoning ordinance provides:

* * * *
"22.3 Permitted Uses:
"In a recreational residential district, the following uses are allowed as hereinafter provided:
"A. Principal uses
"1. One single-family dwelling unit per lot or parcel of land.
"B. Conditional uses
"1. The following uses may be allowed as a conditional use subject to Section 8 and Section 12.4, procedure for public hearing, of this Ordinance:
c. Mobile home parks, with an allowable maximum density of four (4) mobile homes per acre;

Defendants do not have a conditional use permit. Section 3.2 of the ordinance sets forth the pertinent definitions:

* * * *
"Dwelling. A building designed for residential occupancy, but not a house trailer. * * *
"Dwelling, Single-Family. A detached building containing one kitchen, designed for and occupied exclusively by one family and the household employees of that family, but not a trailer house. * * *
******
"Trailer Houses. Building designed in such a manner that it may be moved from one location to another.”

The structure in question has 1,500 square feet and [598]*598is 65 x 24 feet. It was constructed and transported in two separate units which were subsequently anchored to a preconstructed foundation and bolted together. The house contains a kitchen, living room, dining room, family room, utility room and three bedrooms. The tongue, axles, wheels and springs were removed when the house was erected. The foundation has subsequently been skirted, a front porch added together with a back patio. The surrounding property has been landscaped, fenced, and a circular driveway installed. The structure has the appearances of a conventionally constructed home. The county contends the structure is a "trailer house” and thus a nonpermitted use.

In Clackamas County v. Ague, 27 Or App 515, 556 P2d 1386 (1976), Sup Ct review denied (1977), we held that the subject ordinance was constitutional in that a county could make a reasonable classification between conventionally constructed homes and mobile homes, stating:

"Defendants’ most recognizable constitutional argument is an equal protection claim: that it is unconstitutional to distinguish between conventionally constructed homes and mobile homes. Such a distinction may, as most of defendants’ argument attempts to show, be unwise. But the equal protection inquiry is only for minimum rationality. The distinction is minimally rational for several reasons; to cite only one, it is widely believed by realtors, tax appraisers, etc. that conventionally constructed homes tend to appreciate in value while mobile homes tend to depreciate in value. This is sufficient to enable zoning ordinances to distinguish between the two forms of housing. [Citing case.]” 27 Or App at 518

A pertinent constitutional question, which was not raised in either Ague or here and which we do not reach, is whether the ordinance definition of "trailer house” is sufficiently certain for purposes of determin[599]*599ing a non-permitted use.1 The question points up the underlying problem in applying a vague statute in this injunction proceeding.2 Conceivably, any building "may be moved from one location to another.” The ordinance presumably refers to structures that are readily movable, but there is no standard provided either to those charged with the enforcement or for the courts for making such determination. See Lane County v. Heintz Const. Co., 228 Or 152, 364 P2d 627 (1961).

The additional descriptive phrase in the definition "designed in such manner” adds little to our enlighten[600]*600ment. The term "design” infers that the structure is constructed with a conscious intent that it may be moved in the future. The requisite design feature must be interpreted to be prospective and not to refer to initial construction. Otherwise the ordinance would be a prohibition on all buildings. Any structure is movable in its initial construction. Materials must be delivered to the site. Even a conventionally constructed home entails some components, such as cabinets, that are prefabricated and assembled before delivery to the site. The modem prefabricated or modular house involves even fewer components that are readily movable to the site. The county’s only witness, a planner, testified that in his opinion the ordinance does not prohibit prefabricated modular homes. The definition is not concerned with the portability of materials or components to the construction site, but whether the design of the "building,” completed and in place, contains features that make it movable from one location to another.

Defendant contends that the county has not proved that defendants’ home was a trailer house as defined in the ordinance. The sole witness for the county was a planner who investigated zoning violations and investigated the alleged violation at issue here. He stated that the only basis for determining whether defendants’ home was a trailer house was his visual inspection and "the state insignia” affixed to the building. Presumably the state insignia reference is that which may be required under OES 446.170.3 Such insignia merely indicates compliance by the manufacturer with certain state requirements "to protect [against] * * * [601]*601substandard and unsafe plumbing, heating, ilhiminating, cooking and electrical equipment and installations.” ORS 446.185(2). The insignia is not evidence of whether the structure may be moved from one location to another.

The county’s witness conceded upon cross examination that there was nothing from Ids visual examination from which he could distinguish between defendants’ home and conventionally constructed homes as to movability or otherwise. The defendant testified to the construction of the foundation, the bolting together of the two units and anchoring the units to the foundation, removal of the tongue, axles, wheels and springs, the skirting of the foundation and construction of the adjoining porch, patio and fences. The county made no effort to rebut any of this evidence or to show that these steps had not rendered the structure immovable.

The county attempts to rely on defendant’s admission that the structure is characterized as a "mobile home” and that the terms "mobile home” and "trailer house” are used interchangeably in the Clackamas County ordinance. In Clackamas County v. Ague, supra, 27 Or App at 515, we acknowledged the interchangeability of these terms in the ordinance.

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Related

Clackamas County v. Dunham
579 P.2d 223 (Oregon Supreme Court, 1978)
Anderson v. Peden
569 P.2d 633 (Court of Appeals of Oregon, 1977)
Clackamas County v. Dunham
567 P.2d 605 (Court of Appeals of Oregon, 1977)

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Bluebook (online)
567 P.2d 605, 30 Or. App. 595, 1977 Ore. App. LEXIS 1635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clackamas-county-v-dunham-orctapp-1977.