Hardtla v. City of Cannon Beach

52 P.3d 437, 183 Or. App. 219, 2002 Ore. App. LEXIS 1216
CourtCourt of Appeals of Oregon
DecidedAugust 7, 2002
Docket992219; A110719
StatusPublished
Cited by2 cases

This text of 52 P.3d 437 (Hardtla v. City of Cannon Beach) 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
Hardtla v. City of Cannon Beach, 52 P.3d 437, 183 Or. App. 219, 2002 Ore. App. LEXIS 1216 (Or. Ct. App. 2002).

Opinion

KISTLER, J.

The City of Cannon Beach approved defendants’ application to build a garage with a guest room on their property.1 Plaintiff filed a complaint in the trial court challenging the city’s decision to approve the application. The court dismissed the complaint because the Land Use Board of Appeals (LUBA) has exclusive jurisdiction to review the city’s decision.2 Plaintiff appeals, and we affirm.

Plaintiff and defendants are neighbors. Defendants have a single family dwelling on their property. They applied to the city for a building permit to construct a “garage w/ guest house” on their property. The application stated that the proposed building would involve new residential construction and would contain, in addition to the garage, one bedroom and one bathroom. The area for the garage was listed as 912 square feet, as was the area for the guest house. A space on the application form for “kitchen” was left unchecked.

The description of the project as a “garage w/ guest house” appeared in the “remarks” portion of the application form. After reviewing defendants’ proposal, the city building official, Tim Lindsey, crossed out the word “house” in the description and substituted the word “room.” The city approved the application, as amended, on July 9,1996.

Following the city’s approval, defendants built a two-story structure consisting of a garage below and a living space above the garage. The living space includes a bedroom, bathroom, and what plaintiff describes as a kitchen area because it includes a sink, cupboards, microwave, and a [222]*222refrigerator. The structure has electrical, plumbing, telephone, and cable services. It has been used by family and nonpaying guests and is occupied, on average, two weekends a month.

On October 21, 1996, plaintiff sought a hearing before the Cannon Beach City Council concerning the city’s approval of the building permit. The city manager wrote plaintiff that the council would not grant her request for a hearing. He added, however, that plaintiffs request had been considered at the city council meeting on November 12,1996. He said that the council

“determined that there was no action to be taken by that body. A garage or accessory dwelling is a permitted use within an R-2 zone. The application meets the criteria of the City’s zoning ordinance, and there is no basis for requiring a hearing in this matter.”

After more correspondence, the city modified its position and told plaintiff that the use was approved as an “accessory structure,” not as an accessory dwelling or guest house.

Plaintiff did not seek review of the city’s ruling before LUBA. Rather, on August 18, 1999, she filed a complaint in Clatsop County Circuit Court, alleging that the city’s decision to issue the building permit was inconsistent with its land use regulations.3 She sought, among other things, a declaration that the building permit had been issued in error and an injunction requiring removal of the structure. Defendants moved for summary judgment asserting, among other defenses, that the circuit court lacked jurisdiction over the controversy because the decision to issue the building permit was a ‘land use decision” subject to LUBA’s exclusive review authority. The trial court agreed that LUBA had exclusive jurisdiction, see ORS 197.825(3)(a), and dismissed plaintiffs complaint.

On appeal, plaintiff raises two assignments of error. She argues initially that the trial court erred in holding that it lacked jurisdiction to determine whether the building permit complied with the city’s zoning ordinances. She notes [223]*223that, although LUBA has exclusive jurisdiction to review land use decisions, the circuit courts retain jurisdiction to review local government decisions that “approvfe] or den[y] a building permit issued under clear and objective land use standards.” ORS 197.015(10)(b).4 Plaintiff argues that the applicable provisions of the city’s zoning ordinance are clear and unambiguous, while defendants contend that the question of which provision applies is itself ambiguous and thus subject to LUBA’s jurisdiction. See Tirumali v. City of Portland, 169 Or App 241, 7 P3d 761 (2000), rev den 331 Or 674 (2001).

More specifically, plaintiff argues that defendants’ building should be classified as either a “guest house” or an “accessory dwelling.” Cannon Beach Zoning Ordinance (CBZO) 17.04.285 defines a “guest house” as “a structure of no more than four hundred fifty square feet of site area used in conjunction with the main building for temporary housing of non-paying visitors and guests and containing no cooking facilities.” An “accessory dwelling” is defined as “an attached or detached dwelling unit which is located on the same lot on which a single-family dwelling * * * is located * * * and which is rented only for periods of thirty calendar days or more.” CBZO 17.04.008. Accessory dwellings may not exceed 600 square feet. CBZO 17.54.080(B). Plaintiff asserts that, whichever of these two provisions applies, each clearly and objectively prohibited the city from approving defendants’ proposed structure, which was 912 square feet. It follows, plaintiff reasons, that the trial court had jurisdiction to review the city’s decision.

Defendants note that the city concluded that their structure should be considered as an “accessory use” rather than as either a “guest house” or an “accessory dwelling.” See CBZO 17.04.010 (defining accessory structure or use).5 They [224]*224also note that both a guest house and an accessory dwelling are subcategories of the general category of “accessory uses.” They contend that not only does their structure, a “garage w/ guest room,” not qualify as either a “guest house” or an “accessory dwelling,” but also that nothing in the zoning code prevented the city from concluding that the general category of “accessory structures or uses” is broad enough to include uses, such as theirs, that are not included within either of those two subcategories. Defendants conclude that the city’s choice among those competing categories was sufficiently uncertain that the governing standards cannot be described as clear and objective.6 See St. John v. Yachats Planning Commission, 138 Or App 43, 47, 906 P2d 304 (1995). It follows, they reason, that LUBA had exclusive jurisdiction to review the city’s decision. See id.

In analyzing the parties’ arguments, we start from the proposition that the hybrid structure that defendants proposed — a garage with a guest room — does not fit within either of the two subcategories of accessory uses — guest houses and accessory dwellings — that, in plaintiffs view, apply. At a minimum, neither category includes structures such as garages, with or without guest rooms. The issue accordingly reduces to the question whether the general category for accessory uses on which defendants rely is broad enough to include defendants’ hybrid structure. More specifically, the question is whether the city’s zoning ordinance is ambiguous on that point.

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Cite This Page — Counsel Stack

Bluebook (online)
52 P.3d 437, 183 Or. App. 219, 2002 Ore. App. LEXIS 1216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardtla-v-city-of-cannon-beach-orctapp-2002.