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OA 2025-056 City of Irrigon v. Morrow County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Up6vZlMi01E). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. If council could come on >> Hi, good morning. Can you hear me? >> Yes, we can hear you loud and clear. Thank you. >> Thanks. >> Council Sully, I'm not sure if you have >> Yeah, this is council crane and I am not able to get my video up. I apologize. >> Uh, that's all right. We could wait a moment if you'd like to try again or >> Yes, >> go ahead. >> I'm at the limit of my IT abilities. I will keep working on it here. And uh council Sully, we also do not have you on video. Do you have video availability or do you want to just proceed with audio? Um excuse me. I should have video availability. For some reason I do not. Um so u for the time being I u would ask to uh just proceed with audio. >> Okay. And then uh point of order before we officially start. I want to check my pronunciation on the city. Is it the city of Iran as in Oregon or is it IGN? >> It's irrun. >> Urggon. All right. >> As in [laughter] Oregon. Yes. >> UN Oregon. That's what we were told. So I just wanted to confirm before we go on the record with that. Okay. And council for the city of Boardman. Uh we still are not There you go. We are seeing you. So we will >> Thank you. Good morning. This is the time set for oral argument in luba number 2025-056 the city of Iran versus Mororrow County. Uh I'm board chairs. Board members Wilson and Basham are also present. And please mute your audio when you're not speaking. That will help with the quality of our recording. And I'm not aware of any pending motions in this in these appeals. Is there anything or this appeal? Is there anything that parties need to bring to our attention? No. Okay. Oral argument is a total of 30 minutes. Petitioner and interviewing petitioner, you have 15 minutes to share. Have you agreed how you will >> We we have um irran will um use the first 10 minutes and um boardman the last five minutes. We do not anticipate reserving anything for rebuttal. >> Okay, that sounds good. That was my next question. Thank you for clarifying. And I'll watch the clock here, but ask that you also keep track of your own time and then the county will have their 15 minutes for response. So with that, whomever's starting on the petitioner side, please say your name for the Council Sully, is that you? Go ahead. >> That is good. Good morning. This is Paige Sully, city attorney for the city of Oregon. uh the petitioner in this matter [clears throat] and uh the the issues that I would like to address with you briefly this morning have to do with that lack of evidence in the record to support the the findings that the approval criteria were established in in this matter primarily with regard to the findings on the part of Mororrow County that this activity qualified as a home occupation. and that uh the finding that there the findings that there would not be uh any reasonable interference or detrimental impact on the adjacent residential properties. First and foremost, uh Mororrow Countyy's ordinance 1.030 030 provides that home occupations must be conducted primarily within the home, not simply collaterally within the home or uh on a limited basis, but the home occupation must be conducted primarily within the home. There is just a der of evidence in this record as to any activities taking place within the home whatsoever. Um the uh finding referenced at page 63 of the record refers to uh explicitly states applicant proposes quote parking trucks unquote. Um and the that finding goes on to further identify that that is in fact what is identified as the home occupation parking trucks. uh in in that particular finding there is no evidence whatsoever of any activity taking place in any in any structure whatsoever. The map that was presented with the application does not indicate any activities taking place in any structure on the property. The application materials do not address any activity other than the parking uh of the trucks on the on the property. again, what has been identified as the home occupation. And there's no testimony uh in in the record about any activity taking place um in the home or a homebased uh structure that of any nature. Much much less that would give rise to the uh implication the reasonable inference or even that this was the prim primary business activity. uh it's been suggested that it it is reasonable to infer that in fact uh there is uh business activity taking place within the the the structure having to do with scheduling uh booking billing that sort of thing. However, that's not a reasonable inference in this day and age where folks can conduct those activities from he could be conducting that using his phone from a you know a truck stop that they could be hiring a third party to be providing those services from him. I in some there that activity could be taking place completely offsite and there is no evidence whatsoever that it is taking place anywhere on the property much less w within the the the home uh that would would uh result in this actually qualifying as a home occupation under uh Mororrow County zone or ordinance. It's been suggested that um uh that this is a a just a a a review of the facts and that um uh the moral county is entitled to difference on the their decision that this is a u that this is a home occupation. However, uh you can't draw any inferences where there's no facts on which to to draw them from. uh if there's no facts, it's not an inference. It's simply uh in this case an aspiration uh or or speculation. [clears throat] So there that that approval criteria necessarily fails as a result. Moving on, uh Mororrow County zone ordinance 6.05G 05G uh sub sub 10 provides that uh there the that the the homebased occupation must must not unnecessarily unreasonably interfere with adjacent residential properties. Uh and then the argument's been made that the conditions of approval uh are designed and adequately uh uh address that and appropriately uh mitigate any uh interference such that it is no longer unreasonable. Well, I unfortunately the approval criteria itself must demonstrate that all d all discretionary criteria is feasible prior to establishing any conditions of approval. There's no showing that the solutions that have been suggested in the conditions of approval uh are likely reasonably or certain to succeed in terms of limiting the the quite uh quite a large amount of evidence about the impacts on the adjacent properties as a result of this activity. such that uh the the approval criteria has been met as opposed to um attempting to circumvent it by application of conditions of approval. They they've got to meet their uh their criteria first. Uh and in this case, they they have not not met that one. And it's arguable that the conditions of approval that are being used to um substitute for compliance with the approval criteria are even likely or reasonable to succeed in mitigating that impact. More importantly, subsection 4 of 6.050 provides that no mechanical equipment shall be used resulting in detrimental impacts. There's no way that that that that can be said based on the evidence that's been presented here. Um there's been no evidence presented nor would likely any be taken that trucks are anything other than mechanical equipment. Um and there's been no evidence presented that they the operation of the trucks will result in anything other than detrimental impacts. Um the the fact that there is these limiting conditions of approval uh demonstrate the the detrimental impacts that necessarily result from the operation of the parking of the these trucks uh on the on this property. As such, it cannot be said that no mechanical equipment will be used resulting in that that in detrimental impacts to adjacent residences. Uh quite quite frankly, the the the application in and of itself simply does not meet the criteria approval criteria for approval of this cup. This is not a homebased occupation. Uh it does the the the evidence that's been presented does not demonstrate that the impacts are uh uh reasonable. Uh that they can are likely to be addressed sufficiently with conditions of approval and um that the detrimental impacts are not the result of the use of this mechanical equipment. As such, there's no difference owed to the inferences that that may be drawn from the lack of evidence that that is in the record and where there are no facts to support in in terms of of meeting the the applicant's burden. then uh they are not entitled to to any difference with regard to being uh to the reasonable per person's standard. A as such this decision necessarily fails for for lack of evidence to support the the legal requirements. With that, I have nothing further unless >> No questions from Yep. No questions from the board. Thank you. >> Hearing none, I'll close. Thank you. >> Thank you. We'll turn to the city of Boardman. >> Uh thank you Chris Crane for the city petitioner city of Boardman. I'm only going to address our uh first assignment of error which is that the decision directly conflicts with the plain language of the code and the county is not entitled to difference under 197.829 sub1. The code section at issue is uh county zoning ordinance 3.051E2 051E2 that prohibits trucking businesses in the SR2A zone. And it says, quote, "In suburban residential 2A2 acre zone, commercial trucks and trucking businesses are not an allowed use. A landowner may be allowed to use a truck or tractor unit as personal transportation to the resident parcel. No more than one truck or tractor unit is allowed per parcel." End quote. The county's position is that this only applies to a standalone commercial truck trucking business, but not one that's part of a home occupation, but this interpretation of the code provision. Um, it is not supported by either the text or the context of the provision itself. Um, the county argues that they're entitled to deference for one of two reasons. Either because the code provision is ambiguous or because to it resolves a conf conflict between code sections. Neither one stands up to scrutiny. Um, first the decision, nothing in the decision describes what is ambiguous about this code section because it's not. It's plain on its face. Commercial trucks and trucking businesses are not an allowed use. Full stop. Um, second, and significantly, there are no findings in the decision for this code provision. None. So, there's not even an interpretation put forth by the county. The only interpretation of this is in the findings for a different section later on in this the decision in the record of page 10 zoning ordinance section 6.050 G1 but there are there the county does not point out what's ambiguous about this text and there are no findings in the decision specific to this code provision with respect to the language in the findings in 6.050 050 point G1 and again this is page 10 of the record. Um the county inserts the words or the phrase standalone in this code section to find that well a standalone um trucking business may be prohibited in the SR2A zone. A home occupation trucking business is not. Um obviously you can't add words to a section without violating 174.0100. It also is either redundant, unnecessary or conflicts because 6.050 G1 is a requirement for home occupations that they be subordinate or sorry secondary to the residential use. A standalone to it reads standalone into 3.050e2 would duplicate that. Um, right. Obviously, if it's a home occupation, it has to be secondary to the residential use. And if you're going to add standalone for trucking businesses as a home occupation in an SR2A zone, what about home occupations that might be a yoga studio or a real estate business? Why doesn't the code say those can't be standalone businesses? It either duplicates the secondary requirement in 6.050 G1 or swallows it or it in any event is redundant and completely unnecessary and reads language into the text that isn't there in violation of 174.0. Um, with respect to the context, the home occupation is a conditional use in the SR2A zone. So, it's subject to the conditional use standards in 6.030 and 6.050. And the purpose statement in 6.030 says the standards and conditions for conditional uses for uh are intended to limit the detrimental impact of those uses on the surrounding area and otherwise protect the surrounding area from the adverse impacts. the county's interpretation is inconsistent with this by allowing a use with obvious adverse impacts. There's plenty of testimony in the record about it. Um on the theory that oh it's okay as a uh because it's a home occupation. Um but there's it obviously for the if you read the prohibition in 3.051E2 051E2 to prohibit trucking uses in the AR2A zone. It's then consistent with the purpose of the standards and conditions allowed under 6.030 and 050 to limit detrimental impacts from business uses in a residential zone. Also, this notion that there's somehow a conflict between 1.030 and 6.050 that supports the county's interpretation of 3.051 is just a straw man. There is no conflict. The county's problem is the absolute prohibition in 3.051E2 051E2 on trucking businesses. Um, not that there's somehow a conflict and in fact the prohibition on trucking businesses in an SR2A zone is perfectly consistent with the purpose of the standards criteria for conditional uses. Finally, the county knows this isn't an allowed use in the zone. The first page of the decision at fa page five of the record says quote the approval of this cup will serve to temporarily rectify outstanding code violations while incentivizing its relocation to a suitable zone site within one year. If it's a code violation, how can it be an allowed use in the zone? If it's an allowed use in the zone, how is it a code violation? It's plainly not allowed in the zone. It allows that at the bottom of the first page of decision, page five in the record, it notes that the 3.051E2 allows a landowner to use a truck or tractor as personal transportation, but no more than one truck is allowed. And it says, "Well, but the applicant's proposing four trucks." The county knows this is a code violation. They're trying to buy time to give the applicant a year to find another site, but we frankly have no confidence that in a year from now the county won't just kick the can down the road again. It's it's a code violation. >> And we're we're at 15 minutes now. So, [clears throat] >> quick question. >> That reason that the decision should be reversed, frankly. >> Well, well, just because something's a code violation now doesn't mean it can't be cured. Like say for instance there wasn't the prohibition against trucking businesses, they still wouldn't they'd still [clears throat] be doing some sort of commercial business wasn't allowed, but they could come in and get a a home occupation. So curing a code violation doesn't in and of itself mean that what you're coming in for can't be approved, right? >> So in in this case, the code does prohibit the specific use. uh if without that prohibition and if they could resolve Iran's substantial evidence issues, presumably a trucking business could be subordinate to a residential use of a property as a home occupation. But in this case, you're we're in the we're facing a a direct prohibition prohibition in the code against this particular kind of home occupation. Um so but in in general, yes, a code violation just sometimes means you have to come in and get a permit, >> right? which is what I think they're arguing they're doing here. Um, so lots of home occupations that you could get like I don't know I'm not sure exactly for the city or this county but like you know a plumbing business or an electrical business um those wouldn't be allowed without getting the permit. Right. So is your point that you know maybe those would be okay but those aren't specifically prohibited in the zone and that since we've got this specific prohibition that just sort of cancels out even the opportunity of trying to get this >> correct and I think we I can't remember how we phrased it exactly in our brief but we said it's essentially a subspecies of a home occupation. All other home occupations are fine but the code calls out this one and says yeah those all are fine except this one. You can't do this one not a trucking business. There are also some some restrictions on livestock activities or agricultural activities in the SR. So that's E1 3.050.E1 is the restriction on agricultural activities and then E2 is the restriction or prohibition on trucking businesses. And the all other home occupations are fine in the SR2A zone, but this one is not by code. But yes, if somebody were operating a plumbing business in the SR2A zone, all they would have to do is come in and get a home occupation permit. >> Okay. Okay. And then real quickly on your second assignment of air, I know you don't want to talk about that one, but I'm having trouble seeing how that is independent basis for reversal remand. It seems like that's going to either fly or die with your first assignment of air. >> Uh well, correct. If you rule in our favor on the first assignment of air, the second assignment of error is moved, right? Um and then we would be talking we'll go back and talk to the county about how they the enforcement process. But significantly under the enforcement process, there's like a 10-day turnaround time for the applicant for the property owner to either bring the property into compliance uh or stop the activity. Whereas in this case, it's a year for the permit and then again, we have not much confidence that the county won't just kick the can down the road again in a year. So the the remedies are very different in the co in the code enforcement process versus the land use process. >> Okay. Thank you. >> Any further questions from the board? No. All right. Thank you. Uh we will turn to the county for their argument. And since we went over on time for the primary argument, uh county, you'll have 18 minutes if you want to use it for your argument. >> Okay. Thank you very much. Uh for the record, Daniel Karens. I'm here on behalf of the respondent uh Mororrow County. And um let me begin with a few brief responses to arguments. And it kind of goes to partly uh boardman's as well. And what they're looking for is kind of a more elaborate description of the business operation. What's what appears to be missing in their view from the record is a description of what business aspects uh happen in the house or in the structures on the property. And this is an extremely small business. This is a family. They have uh they've had up till recently one truck. and now they have two trucks and they uh haul egg commodities for 2 months in the fall. Otherwise, they're working other jobs in the egg business. So, there is some bookkeeping associated with it. And so, what's implicitly what's missing implicitly is the the bookkeeping aspect of it. The trucks are parked outside. Um the that's just the way it is. If you ran a plumbing business, guess where the plumbing truck is going to be parked? um what happens in the structure in that case is the bookkeeping part of it. Um so there is for sure bookkeeping as some aspect to this business. Um it only happens for two months out of the year though and of course it doesn't happen outside. Maybe it happens on their phone. Um but >> what is the evidence that supports these statements of fact that you're making about what the these applicants do and the other time that bookkeeping occurs? Is that supported by evidence in the record? >> Because the the business is so diminishingly small. They're no one talked about. >> How do we know that? How do we know any of these things from the record that's before us? >> Well, the application talks about how they used the truck and when they use a truck and how often they use it. And uh a second truck showed up because the um Mr. Campbell's brother-in-law died and so the truck is there. >> Okay. So the evidence you're referring to to support the inferences that you're stating to the board today are from the statements that are in the application solely or is that evidence? Okay. >> Yes. It is it is such a diminishingly small business that there's no you know we don't have any information about you know what bookkeeping is involved. I assume there is some there can't be much. uh and it isn't very often um but it happens in the house much like uh the plumbing business the bookkeeping [clears throat] would happen in the house a plumbing business would happen year round um you know 247 the way plumbers are available this is much much smaller um so at at the heart of it though this is I think the interpretational question is the most um was the most difficult certainly for the board of commissioners to deal with. Um and this this situation it represents a a surprisingly common scenario in Mororrow County and I think also Union and Umatillaa counties where there's a large number of Hispanic families that work multiple jobs often associated with the egg industry that is common in Mororrow County. And sometimes these families operate a truck or two during the harvest season from their homes transporting egg commodities just during those one or two months. Um I've been with the county for three or four years now and we've um in my time here we've run into about 15 of these operations. So in Mororrow County it's a thing um it's a thing that's not really reflected in the code. That's why we have this appeal here and the interpretational conflict that we have to deal with. But it is definitely a thing that the county has struggled with to to find a way to get these permitted and rectified with when you have conflicts with the neighbors. This one has had the most extreme conflict uh at least in terms of testimony at the uh during the two hearings that we had. And so the county uh added the additional condition that uh no opportunity to renew it. It's a 12-month maximum limit. Um and ultimately, as we discussed this with the board and with these other operators, that is the county is going to try and find a commercial property owner or an industrial site where they can just park their trucks during the off season, which is most of the year, and that would resolve these. They arise because these people live in rural residential areas and they operate a truck or two trucks uh during the egg season. Um these aren't standard trucking operations. They're they don't have year round impacts through the 24-hour day, 7 days a week with many >> How do we know from this record or from the code what a trucking business is? What is a trucking business? How do we know what the code means by that terminology? >> The [clears throat] trucking a trucking business, the one that's prohibited is could be huge. Could be much huge huger than this certainly. Um I'm anticipating that, you know, just trucking businesses that I've encountered have these kinds of impacts or more. It's I don't >> So we're looking at an interpretation of this code and whether what the county did here is consistent with the terminology in the code that says commercial trucks and trucking businesses are not an allowed use. Did the county expressly say what a trucking business is? How do we know what a trucking business is? Do we just use the plain meaning of trucking business? >> I think the plain meaning. Um, and if it doesn't, >> what would you what would you describe the plane meaning for our purposes? >> It it it's potentially expansive. It could be very small, but it it to be a vibrant truck business, it has to be more than just one or two trucks. It has to be year round potentially, 24 hours a day coming and going. It involves truck repairs. And so, one of the conditions that we've applied to these >> is any of that definitionally within the code? Are you arguing to us today that >> those are the impacts that we try to avoid by conditioning these operations? So, we anticipate, you know, we're aware of the prohibition and we're aware of how open-ended that uh that rubric commercial truck operation can be. And that is what the the county is attempting to rope in to limit so it doesn't uh have that open-ended expansive nature to it. So it could be huge. It's not clear. >> So or it could be very small it seems to me just from the plain language here. So >> I'm looking at the context of where this 2e sits in the uh SR2A zone. So there's section D that has conditional uses permitted which includes se subsection 3 home occupations. Then subsection D is limitations on use which as uh accounting for the city of Boardman mentioned has a lot of limitations on how many livestock one could have. Doesn't seem to be that section does not seem to be tied to agricultural home occupations. Uh section two specifically calls out trucking businesses as not an allowed use. There's no other commercial use set out as limitations on use in this section. >> Right? The the big difference between the what's prohibited and what was permitted here is the home. It's operated out of their home and your average trucking operation doesn't have a home associated with it. Wouldn't qualify. And the conditions attached to this are designed to make it consistent with a rural residential type setting. A commercial trucking operation would be untethered to any of that. So it's the homeness that is the difference between what's prohibited and what was permitted here. The connection with the home that it's secondary to the home. So, how does that argument fit into the fact that 2A allows someone, a landowner, to use the truck as personal transportation to residential parcel with no more than one truck or tractor per parcel. That a seems to think about trucks and houses being together. >> I agree. and not so much. Um the the truck in that kind of context is a truck that's just sitting there, just parked there and it's not coming and going on a constant basis. It's not an active trucking operation when it's parked there. And that's basically what this is. Um, and so kind of the one way that we get at the impacts and what's permissible and and what needs to be limited through conditions of approval is that permission for people can have a a truck there. They can park a truck at their property, which also reflects that this isn't a kind of Beaverton situation. This is a rural residential situation in the context of an egg economy where you have a lot of people that work out in the field and they have heavy equipment and they come and go from their homes. Presumably the board of county commissioners that adopted this prohibition in section E2 were aware of the social circumstances and economic circumstances in the county and yet made a decision to prohibit commercial trucks and trucking businesses. And >> not when this code provision, not when the prohibition came up. This this has arisen in the p I'm told in the past 10 years. I've been with the county for maybe five years, not even. and it has become kind of a bigger deal. Um, I don't know why, but when this when this prohibition was imposed, it wasn't anticipated. >> Is any of that in the record or do we have anything from the board of commissioners that would indicate that? Any reasoning there? >> No, I'm just >> seems to me that there really is a code problem here. And if there's a code problem, it would be incumbent on the county to amend their code rather. >> For sure. And I and I'm kind of sharing with you that conversation that the the county board of commissioners and the planning department have had that this is not a an isolated oneoff and we have to amend the code to address this. And the big problem is this prohibition. Um but that in itself won't you know make people like Ian happy. So we'll still have to address this in some way. And ultim ultimately it's to okay if this is really a thing people have to park these we have to find a commercial or industrial zone where they can be parked throughout the year and that eliminates the problem entirely. Ultimately that's the best solution but for this particular case the county had these two conflicting provisions. one that prohibited these kind of commercial operations that were open-ended, undefined, and another one that allowed home occupations that are defined and limited to something as compatible with a rural residential setting. And the county articulated that conflict and you know there is a certain amount of wrestling back and forth in the findings and record page 65 and I quote that in my response to Boardman's first assignment of error. Um but it's not if there if Boardman is looking for a disambiguation of the prohibition, it's going to be not satisfied because it's it's we're stuck with the prohibition. But we also have a home occupation allowed and that would anticipate conditions that would make something that's otherwise not allowed compatible with the setting. And in this case, I mean that's when they ask, you know, how is how does the the county resolve this? You know, if it's it's with this code enforcement matter with the with the code enforcement matter, there were no conditions, no limitations, and the neighbors were unhappy. I mean, all of these that I mentioned that I've encountered have come to the county through code enforcement because residential neighbors were unhappy. So, the county applied conditions through a home occupation permit process which is allowed in the code and it brought this otherwise unallowed use into a a consistent category under the code. This one in particular has a 12-month deadline to it. Um, and so that's an allowed use category, home occupations. These are extremely small businesses. And this is a an avenue that's allowed under the code. and the Luba and the Court of Appeals defer to local governments when they are wrestling with these code conflicts and plausibly provide an interpretation that is consistent with at least some of the applicable language. You're not going to find everyone happy here in this case. This is one of those cases and only and Boardman had the resources to take this up. But rest assured that the county is on this problem and is going to enforce this express condition that it goes away after 12 months. It didn't have that condition before. It didn't have these limitations before, but it does now. And So, unless you have further questions, >> No questions. Board member Wilson, I saw a question in your in your face, but maybe you did not want you wanted to ask until [laughter] Yes. All right. Um, okay. That will conclude or argument. Thank you to all of the parties for your argument today. The statutory due date for our decision is January 27th. Uh, we'll ask that the parties agree that we can issue our decision uh no later than February 10th. Is that okay with these parties? Got a thumbs up? >> Absolutely. Thank you. >> No objection. No objection. >> City of irrig