Stevens v. City of Island City

324 P.3d 477, 260 Or. App. 768, 2014 WL 465294, 2014 Ore. App. LEXIS 130
CourtCourt of Appeals of Oregon
DecidedFebruary 5, 2014
Docket2013036; A155003
StatusPublished
Cited by14 cases

This text of 324 P.3d 477 (Stevens v. City of Island City) 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
Stevens v. City of Island City, 324 P.3d 477, 260 Or. App. 768, 2014 WL 465294, 2014 Ore. App. LEXIS 130 (Or. Ct. App. 2014).

Opinion

ARMSTRONG, P. J.

Over objections of petitioners and others, the City of Island City approved an application for a home-occupation permit, which imposed conditions upon, but allowed the operation of, a commercial trucking company out of a rural residence in which Fregulia and his family lived. Petitioners appealed the city’s decision to the Land Use Board of Appeals (LUBA), raising nine assignments of error. LUBA agreed, in part, with a number of petitioners’ arguments and, accordingly, remanded the case to the city for further consideration. Petitioners seek judicial review of LUBA’s decision. We write to address only petitioners’ contention that LUBA erred when it concluded that Fregulia’s home occupation was secondary to the main, residential use of his property, as required by the City of Island City Development Code (ICDC). For the reasons that follow, we affirm.

The basic facts, as set out in LUBA’s opinion, are not in dispute:

“The subject property is a four-acre parcel 200 feet wide and 800 feet deep, zoned Low Density Residential (R-E). The parcel is developed with a single-family dwelling, and a 4,500 square foot workshop that [Fregulia] constructed in 2008. Surrounding property is also zoned R-E, except for property across Buchanan Lane, which is zoned and developed for industrial use. Petitioners are adjacent property owners. Their dwelling is located approximately 125 feet from [Fregulia]’s workshop, and the access driveway to the workshop is located approximately 75 feet from their back patio.
“[Fregulia] owns a commercial trucking operation consisting of six semi-trucks, along with a number of trailers, which [Fregulia] has operated from the subject property since 2008 without obtaining a home occupation permit. In response to neighbors’ complaints, in June 2010 [Fregulia] applied for a home occupation permit. At that time the property was located in [Union County], but [was] within the city’s urban growth boundary. The city processed and approved the permit with conditions, but the county board of commissioners ultimately denied the permit on appeal. In February 2012, the property was annexed into the city, and in September 2012 [Fregulia] filed with the city the present application for a home occupation permit and site plan review.
[770]*770“ [Fregulia] proposed to operate the commercial trucking business from a 600 square foot space in the 4,500 square foot workshop, and to engage one non-family employee to maintain and repair his trucks within that space. City staff recommended approval, based on a number of conditions limiting home occupation activities. The city council conducted a hearing on the application, at which petitioners appeared in opposition. On March 5, 2013, the city council voted to approve the application with conditions. Among other limitations, the conditions limit use of the workshop to 600 square feet, for maintenance of [Fregulia]’s trucks, prohibit more than one truck on the site at any time, prohibit outdoor storage of trailers, parts or materials, prohibit use of maintenance machinery outdoors, limit truck trips to one outgoing trip and one incoming trip per truck per day, and limit truck maneuvering during non-business hours to portions of the site within 100 feet of Buchanan Lane.”

Stevens v. Fregulia,___Or LUBA___,___(LUBA No 2013-036, Aug 7, 2013) (slip op at 2-3).

Petitioners appealed the city’s decision to LUBA, raising nine assignments of error. As pertinent here, petitioners contended that the city “erred by finding that the home occupation is secondary to the residence,” as required by ICDC 10.07 (2001).1 In reaching that conclusion, the city had found that (1) “[Fregulia] and his family reside in the home on site,” (2) “[t]here are no customers or product vending on site,” (3) “[n]o sign is proposed for the business,” and (4) the city had “adopted a condition limiting truck maintenance activities to working hours.” Given those findings, the city concluded “that the property is primarily used as a residence, and the proposed home [-] occupation use is secondary to the residential use.” Before LUBA, the entirety of petitioners’ argument reduced to a single paragraph:

[771]*771“The City glossed over this requirement without addressing the impact of the home occupation. The home occupation in this case consists of six (or any [number]) [of] semi-trucks making daily trips in and out of a rural residential property, a full-time mechanic, multiple supply vendors, and maintenance with the use of air compressors, air ratchets, fork lifts, and steam cleaners. The home occupation occurs mainly on the grounds and in the shop. It runs almost 24 hours a day. By any empirical standard, the main use of the property is a commercial trucking operation.”

In response, the city contended that each of the factors on which it had relied in reaching its decision was based on substantial evidence in the record and that petitioners’ contrary characterization of the home occupation did not provide a basis on which LUBA could reverse the city’s decision. As to petitioners’ characterization of the home occupation, the city contended that it was full of errors, pointing specifically to the conditions of approval that “provide limits on the extent of the home [-] occupation use, limit the number of vehicles allowed on-site to [Fregulia’s] six[-]vehicle fleet, and limit the hours and location of maintenance operations.” In any event, the city contended that, to the extent that evidence in the record might support petitioners’ characterization of the home occupation, the mere citation to opposing evidence in the record does not establish that the evidence on which the city relied is not substantial evidence.

In a divided opinion, LUBA remanded the city’s decision approving the home occupation permit, but it denied petitioners’ assignment of error challenging the city’s conclusion that the home occupation was secondary to the main use of the property as a residence. After restating the city’s findings in support of its conclusion, a majority of the LUBA members concluded:

“Petitioners disagree with [the city’s] conclusion, arguing that by any empirical measure the commercial trucking operation is the main use of the property. However, petitioners’ mere disagreement with the city’s conclusion does not establish a basis for reversal or remand. Petitioners have not established that no reasonable person could conclude, as the city council did, that as conditioned the home occupation is secondary to the main use of the property as a residence.”

[772]*772Stevens,___Or LUBA at___(slip op at 7).2 Petitioners sought judicial review.

When reviewing a land use decision, LUBA may reverse or remand the local government’s decision if the decision is based on facts that are “not supported by substantial evidence in the whole record.” ORS 197.835(9)(a)(C). If, viewing the record as a whole, a reasonable person could make the disputed factual finding, then the finding is supported by substantial evidence. Wetherell v. Douglas County, 209 Or App 1, 4, 146 P3d 343 (2006) (citing Younger v. City of Portland, 305 Or 346, 360, 752 P2d 262 (1988)). So long as that standard is met, LUBA cannot substitute its view of the evidence for that of the local government. 1000 Friends of Oregon v.

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Cite This Page — Counsel Stack

Bluebook (online)
324 P.3d 477, 260 Or. App. 768, 2014 WL 465294, 2014 Ore. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-city-of-island-city-orctapp-2014.