Kaplowitz v. Lane County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 10-11-2016
  • Case #: 2016-029/030
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under ORS 197.829(1), a local government’s decision interpreting a local code is entitled to deference, so long as the resolution is plausible. See Siporen v. City of Medford, 349 Or 247, 258 (2010).

     The petitioners appealed a county decision holding that a use that began as an unpermitted commercial event venue in a converted horse barn, may continue to operate as an accessory use to an existing dwelling.    

     In 2012, Kaplowitz modified 2,800 square feet of a 5,000 square foot barn to create a guest room and recording studio, and he used the remaining space to conduct a business. Kaplowitz submitted an application to convert an existing agricultural structure to a residential structure, as required by Lane Code 16.211(8) (LC). The application was approved. Wiper (petitioner) then appealed the decision to the county. Both parties appealed the hearings official’s initial decision. After Kaplowitz limited the scope of social gatherings at the proposed residential accessory use, the hearings official approved the application, which was later affirmed by the board of commissioners. Wiper then filed a local appeal of the decision, and Kaplowitz requested that the board of commissioners not conduct a hearing on the appeal, and instead deem the hearings official’s decision to be the County’s final decision.

     Kaplowitz argued that the planning director should have rejected Wiper’s appeal under LC 14.520 due to the failure to meet time requirements. LUBA determined that the board of commissioners’ interpretation of LC 14.520 was entitled deference under ORS 197.829(1) because the interpretation and resolution of the provision were plausible. Siporen v. City of Medford, 349 Or 247, 258 (2010).

     Petitioners further argued that the county erred by relying on Kaplowitz’s offer to limit larger parties for the year without imposing a condition of approval. LUBA agreed with the petitioner and ordered that the county impose a condition of approval for the parties. 2016- 029 is AFFIRMED. 2016-030 is REMANDED.