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Oral Argument 2026-018 Paxton et al v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=hsj-MV84xys). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Mhm. >> Mhm. Good morning. Uh this is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. Uh we had not seen the petitioning yet, so we will restart now. Okay. Good morning. This is the time set for oral argument in Luba number 2026-018, Paxton versus Clackamas County. I'm board chair Samudio. Board members Wilson and Basham are also present. Please keep your audio muted when you're not speaking, which will help with the recording quality. And this oral argument is being recorded and live-streamed. I'm not aware of any pending matters in this appeal. Is there anything that the parties need to bring to our attention? Negative from both parties. Okay, thank you. Uh oral argument is a total of 30 minutes. Petitioner, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Uh yes, please. Uh 5 minutes. Thank you. >> Okay. And I will keep track of time and ask that you also keep track of time on your end. The clock that's on the screen is just for reference and is not keeping exact time. And then respondent will also have a total of 15 minutes for responsive argument. So with that, petitioner, please state your name for the record and begin. >> Thank you, chair. Good morning, good morning, members of the board. Tyler McDonald appearing pro se for petitioners Michael Paxton For context, this case began with a roof. On March 4th, 2024, there was a fire at a building and then the fire department cut a hole in the roof to fight it, leaving the roof open to the weather. We applied for a like-for-like roof repair permit. We did not come to the county in doubt about what this building was. Our pre-purchase due diligence pointed one direction. The assessor's record, the 2005 approval, the county's on files, all commercial. The county held the permit and required us to verify the non-conforming use first, so we did. A roof repair began as a full A roof repair became a full verification and alteration proceeding. Then the county denied the verification. What began as a permit to keep the rain out became a fight over land use right that a final unappealed decision settled 20 years ago. The application has three questions. Was the use lawfully established? Was it discontinued for 24 consecutive months? And was it lawfully resumed within 1 year of the fire? The hearing's officer answered the first in our favor. He found the office use lawfully established in 2005 and that finding is not before you. But it matters because the county's first theory was that the 2005 approval was never valid for a lack of permits. Permits the county itself never required in 2005. That attempt to rewrite the 2005 decision failed. The hearings officer ruled against us on discontinuance and restoration, and those are the rulings before you. Before I turn to them, a framing principle. Many non-conforming uses reach this board with no prior lawful establishment decision. This case has one. The 2005 decision Z0797.05 is our source of truth. A final decision is worth what it says on its face, not what anyone wishes it had said 20 years later. Redefining the scope of a final decision by later observation is the Marcom Farms error. So, I'm not asking you to re-weigh evidence. I'm asking whether the hearings officer applied the right standard and what findings you can actually review. I will start with discontinuance and with what was approved in 2005. The county approved a service commercial office use of the entire 2,962 square foot building at record 264 condition 2. No floor allocation, no square foot allocation, no documentation requirement. The county conceded at record 33 to 34 that the 2005 file contained no floor plan, no architectural drawings, and no request for site plan. Only a narrative, a hand-drawn plot map, and a one-page 1987 tax valuation request. That was enough for a full change of use from restaurant to office. Now, look at what the final order demands in 2026. Floor by floor, tenant by tenant documentation from petitioners applying to repair roof. A higher evidentiary standard for a roof repair than the county applied for a change of use 20 years ago. And the division of of the building by floor was not our idea. The county introduced it after the fire as the only only path it offered to get the roof repaired. We never conceded the building wide approval. And here's the part the hearings officer cannot get around because he wrote it. At paragraph 5E, he held the county could not 20 years later reverse the 2005 finding that no permits were necessary because a final unappealed decision cannot be changed by requirements it would never imposed. And he was right. He then imposed floor allocation, tenant documentation, and subcategory restrictions the 2005 decision did not contain. Same principle, opposite result. He treats the same use as a build building wide when he establishes it and down serves only when he counts it. A decision that cannot say what is approved cannot tell which standard applies and cannot be reviewed. Our first assignment of error. That rewrite drives the discontinuance ruling and it starts with the burden. Five weeks before the staff denial, the county's own planning director put the framework in writing. Record 534. Director Hughes wrote that on a 10-year showing of continuity, quote, the burden then shifts to the county to demonstrate whether a discontinuance occurred. On a recorded call at record 243 to 244, she told us what would establish that showing. Tax records, business records, old photographs. We produced exactly that. The hearings officer recited that framework at paragraph 6B never told you which standard applied. The burden going forward never moved to the county. Third assignment of error. And look at the evidence on each side. Petitioners produced primary evidence of commercial use throughout the 10-year window and beyond. Business registrations at the site. Continuous commercial tax payment through present day. Mr. Parker's continuity statement at record 615. Against that, the county had secondary evidence requiring inference, a water consumption gap from 2010 to 2013 despite the account remaining active and being outside the 10-year window, and alleged power disconnected May of 2023, 10 months before the fire, and 18 months before the sale to Mr. Paxton, and an alleged registration gap. None of these identifies a single continuous 24-month period of continued uh of office use cessation. Discontinuance requires one unbroken period, and the order never ties these scattered years into one. That is a gap in the findings, not a dispute about weight, for the assignment of error. The order also contradicts itself on the rule that governs this. At paragraph 10e2, the hearings officer acknowledged Coons that residential use of one portion of a building does not terminate the office use of another. He then applied the opposite. The mere presence of residential use in part of the building does not show the office use stopped anywhere. Turning to the second ground, the 1-year deadline >> Or uh Mr. McDonald, before we we turn to that, um it's a little unclear to me from the decision and your brief exactly what what is your position? Like what happened between What was going on there between 2015 and 20 2025? Cuz that seems what the real issue is here, and it seems like maybe there was overlapping offices. Was there one office? Was there two offices? Was there three offices? Was there residential use? Could you sort of give me a timeline from 2015 to 20 2025 that shows what you are arguing what office use occurred there for those years. >> Of course. Yeah, uh the the timeline provided uh within the uh record um uh has a outline of the uh multiple businesses that were there. Um it was actually being leased to Hood Alternative um Medical LLC. >> Is there a Is there an actual timeline in the record? You refer to the record, but is there a page number we can look at that will show us that? >> There is. Yes. >> kind of jump around, so I think we're trying to figure out a continuity. Um I believe it is around uh record 615. Um I don't have it on this sheet here, but I do believe it is record around record 615. It was towards the beginning of our um it was in response to the incomplete notice from March 28th, 2025. We submitted it on May 22nd May 21st or May 22nd of 2025. Um I don't have the exact citation in front of me right now. >> That's fine. If you could just summarize that also. >> Sure. Yeah, it is a full uh full timeline from 2005 all the way to uh 2025. It dives into uh it's color-coded. It goes into multiple facts of the businesses that were there, uh utility records, commercial taxes. It puts it all on a timeline for them to be able to see um that there is no 24-month um uh discontinuance period um including uh the COVID-19 state of emergency as well. >> So there were multiple offices operating out of the building at some points? >> Correct. Uh I don't think at one period, no. Uh there were multiple throughout this time period that were uh conducting business like but alternative uh uh Mr. Parker, the previous owner, uh had multiple LLCs, uh property management LLCs that he ran out of the building as well. >> So just one office use or one specific office at a time? >> From our From our understanding of what we've gathered, yes. That is our understanding. Correct. >> Okay. Thank you. >> Yes. Uh uh turning to the second ground, one year deadline to restore the use. ZDO >> You have about 30 seconds left for your primary argument. You're welcome to continue on and shorten your rebuttal period, but I just wanted to let you >> Fair. Okay. Thank you. Appreciate that. Um Yeah, moving to the second ground. Um The ZDO reads that the law for resumption there are two pathways. The permit is one pathway, the resumption is is another. Um for the first time he recast the upstairs as an expansion and decided the restaurant permits alone. Um the whole building was approved in 2005, so moving within it is not an expansion. Um there are three distinct reasons that this should not stand. A resumption was shown on the record. Um a specific response by Mr. Parker Um on uh explained that he was using this after the fire. It was a direct response to Miss Ganzers question of how it was being used. The final order takes the narrow answer and labels it as storage, reads the file access language out of it. Um even so, Mr. Paxton's affidavit at record 653, Mr. Aaronson's invoices at 656, and the McDonald affidavit at 658 are all within the one one-year window. Um Uh you know, this In In closing here, um we ask you to remand as we have provided extensive records in this In the In the 900 place records, you can see multiple businesses, questions answered, and efforts to uh get this property fixed after a fire. So we just ask you to look at the entire record. I reserve >> Thank you. You will have 4 minutes for your rebuttal and we will turn to the county for your argument. Please state your name for the record and begin. >> Thank you. Caleb Hugel for respondent. As has been said, the hearings officer had two reasons for denying the application. The first was that the petitioners didn't show that the office use of the building hadn't been discontinued. And the second was that because the office use in the upstairs portion of the building had been discontinued, petitioners using the upstairs as an office after the fire wasn't sufficient to lawfully resume the use within a year. I think the three the three most interesting arguments that petitioners advanced are those related to medical office use, storage use, and whether the discontinuance findings were supported by substantial evidence. Those are I think the sort of media's issues here. Um We don't understand petitioners to argue that office use includes medical office use. Rather, in the petition for review, we understand petitioners to argue that service commercial uses includes medical office use. Our point is that the 2005 decision didn't authorize all service commercial uses. It authorized one in particular, office use. The hearings officer concluded as evidenced by the ZDO that medical offices are not the same as other types of offices. And I think that makes intuitive sense. >> Mr. Hugel, sorry to interrupt, but did did the hearings officer find that that that Hood alternative was actually operating there and and then said it was a medical office, not a a another kind of office, or did he just find that we can't he couldn't tell what was going on? >> The hearings officer concluded that there was no evidence that Hood was operating an office to the extent that they were operating a medical office. He said that is not the same. The hearings officer did not conclude that there was and there and and truth be told if you look at the record, there is no evidence that a medical office was happening at all. So even if Luba were to conclude that uh you know, medical office as it's defined in the code could qualify as an office use as it's undefined in a non-conforming use decision, there's still there's still no evidence that office use took place, medical or otherwise. >> Okay, that's what I that's what I thought. I just want to make sure you weren't saying that a medical office was occurring, so. >> No, I no, I'm not. And and sort of going back to your I think um record 13 to 15 is where the hearings officer and I agree he jumps around. 13 to 15 is where uh he adopts the finding saying, "Well, petitioners argue these offices were operating on the property at these times." There was some overlap, by the way. Um I think the gist of the hearings officer's conclusion is that yeah, so so some businesses were associated with the property. They used it as their mailing address or their their uh their office address. That is not office use of the building. Anyone can say that an address is where I would like my mail sent or where I am conducting business. That is a far cry from actually using the space for office purposes. That's what I wanted to get to. Yeah. >> Um so and and again, like you said, the hearings off the decision jumps around a lot and I'm having trouble telling exactly when he found those 24 months were where there was no office. He's not I think I think you did an excellent job of trying to pull out the important stuff from the decision and make it more understandable, but if you could tell me what what what which 24 months did they not show that there was office use? Or where in the decision does that say? >> I think that the hearings officer reading the hearings officer's finding is none of the evidence that was presented showed that office use was happening for any of those 24 month any for any of those 24 months in the prior 10 years. The hearings officer you pointed to it was it was petitioners burden to identify the evidence demonstrating office use. Petitioner pointed to how businesses were associated with the site but not that that not how they were using it for office purposes. So I think the fair reading of the >> that the hearings officer found that none of that 10-year period from 2015 to 2025 there was not sufficient evidence that there was any office use during that 10-year period. >> No, I don't think the >> you know that from the findings? >> I don't I don't think the hearings officer found that the hearings officer didn't find that there was no office use for a specific 24-month period. Petitioners are correct about that. I don't think the hearings officer was required to was not the hearings officer's job to say and during this period it was discontinued. It was petitioners job to say and it was an office use for the entire 10 years and here's the evidence demonstrating that and the hearings officer said, well, none of the evidence you provided demonstrates that there was office use. >> Okay, so then the the my question again is for that 10-year period from 2015 to 2025 your position as the hearings officer found that there was no office use during that entire 10-year period. >> The hearings officer found that petitioners didn't demonstrate that there was any office use for that 10-year period. >> So your position is hearings officer found there was inadequate evidence to show that there was any office use for that 10-year period and if that finding is accurate the hearings officer wasn't required to find any particular 24 months of discontinuance. It's any time within that 10 years. >> That's correct. All of the evidence that petitioners pointed to the hearings officer didn't say any of it was was sufficient to demonstrate office use. >> So your reading of the findings is the hearings officer said all of the evidence that the petitioner presented shows that there was no office or does not establish that there was any office use. >> Correct. >> It's hard to find that in those findings, but I understand that's your position. >> Well, but but I mean I think it's record 14 to 15. It goes through all of the evidence that the petitioners provided for why there were there was office use going on and it was the fact that certain businesses were associated with the property. And the hearings officer goes on to say, "Yeah, but none of that evidence explains how they were actually using the property." The hearings officer was of course responding to evidence provided by the petitioners. It wasn't the hearings officer's job to come forward with evidence on his own. Um uh that that office use was not happening. It was whether the petitioners presented evidence that it was and the hearings officer clearly found that it that they didn't. >> Thank you. >> Was it Is it clear from the findings that he was finding that uh there was no office use for this for this for a 20 Well, I guess for the whole 10 years, no office use of the entire building and no storage use? Like, let's say let's say we we agree with petitioner that they didn't have to like split up the building. As long as there was a use anywhere in the building, they're okay. And that office storage was okay. Even if they get all of that, is there still something in the decision that says even if they even if that's true, they still didn't show the whole 10 years? >> I don't think so. As I read the hearings officer's findings, um it is that storage use of upstairs began taking place uh after the fire. I I don't read uh the hearings officer's findings or the evidence he points as saying storage use of the upstairs happened before the fire happened. So, I think you you're still left with a 10-year gap. But I think I think even if even if and and and I don't think resuming office use or office-related storage use, if you consider it office use, of the upstairs even though that happened after the fire, the hearings officer's point on the restoration or replacement and the one-year timeline was that that was not sufficient because there were there there the upstairs there is no evidence that the upstairs was ever used as an office. So, office use afterwards can't resume that portion of the >> Okay, thank you. >> Um >> I understand you're in a position where you didn't write the decision and you have to be defending it. I'm just having a little bit of trouble finding that idea that there's no no office use was established during that 10-year period. Can you point me to specific finding? >> The the hearings officer did not find there is no there was no office use during the 10-year period. The hearings officer framed this in terms of petitioners' burden. Petitioners were required to put forth evidence demonstrating that there was office use for the full 10 years. And the hearings officer addressed every piece of evidence that they provided and concluded that doesn't demonstrate office use. And accordingly, the hearings officer concluded petitioners didn't meet their burden. But the hearings officer wasn't required to find that there was discontinuance for 24 months. The hearings officer was required to find or determine whether petitioners demonstrated that there wasn't a discontinuance for 24 months. It's all about the burden. And and the hearings officer adopted a finding specifically addressing the argument we see in the petition for review that it was the hearings officer's job or staff's job to come up with a 24-month period in which no office use was happening. That wasn't the case. It was petitioners' job to come up with a full 10-year timeline, not just that businesses were associated with the property, but that they were using it as an using it as an office. And petitioners didn't meet that burden. >> Okay. And then you make some distinctions in your brief about different types of office use or office storage versus office use as is described in the current code. Are all of those code provisions that you rely on, were those in effect at the time of the 2005 decision? >> That's not in the record. I don't think, but I don't think it it was and and maybe that would strengthen the hearing's officer's decision. I don't think the hearing's officer was saying because these provisions were in effect at the at the time of the 2005 decision, the terms must be based on them. I think the point is that uh because this is a non-conforming use, office use has to be construed narrowly as a matter of policy. That's the park's decision. And and and because the current code >> Why would you look at the current code to Sorry, you were getting there. I'm going to >> Yeah, I was going to say yeah yeah I think I think the the distinctions between medical office use and office use and distinctions between office use and accessory uses including storage demonstrate that they are not one in the same. Uh I think it's a matter of how how uses are characterized. We have to We have to construe non-conforming use decisions narrowly. Uh and and how could we construe the term office use in a non-conforming use decision to mean something broader than it would mean under the commercial zoning today where where office-related storage is is specifically called out as an accessory use. It it's not automatically >> your argument's a contextual argument cuz I think counterargument to that would be well, if it wasn't distinguished in 2005, then the county would have had no reason to to describe all of the sub uses or all of the uses which again, like nobody can attack the 2005 decision at this point. I don't think anybody is arguing that you can't. So I understand your >> And though that And that was all I was going to get at. I think we've touched on all the arguments I wanted to make. Substantial evidence. Importantly, who had the burden of putting forward evidence? And and and did the hearing's officer do an adequate job of explaining why they did not meet petitioners burden. And then the office use versus medical office use, office use versus storage use, and it comes down to we have to construe these narrowly. Um and and that's all I have. I will um yield the rest of my time unless there are further questions. >> Um yeah, so kind of getting back to my earlier question, I understand your argument that you know, it's their the petitioners burden to establish that they had the continuous use for 10 years, but I still think if the the the decision's got to point to some 24 months that he found they didn't establish. And I think I understand you say the whole 10 years they didn't establish. And I'm looking I'm trying to find a finding that would support that. And I'm looking at it's page 13 of this decision and I think it's 9B sub four. He's talking about the Hood Alternative Medical Center, and he says therefore, absent some evidence demonstrating that Hood Alternative Medical Center LLC used as an office rather than a medical center or other use between 2014 and 2020, the hearing's officer must find that the non-conforming use of the site was discontinued during the period and may not be resumed. Is that enough to hang your hat on to say they did not show for that 6 years that there was office use of the of the of any of the building? >> That's enough, and I think I think there are similar findings as to the other two businesses that were operating during this 10-year period, Parkland and Rockport Crane. The point is that the evidence that was provided saying, "Oh, well, we've got an office operating here." didn't actually demonstrate that there was an office operating here. >> Okay. I thought it was more clear on that one than it was on the other ones. >> And and I'm not going to say that it's not more clear there. My reading of the decision was that sort of it was the same response to all of the evidence. A business being associated with a property is not the same as them conducting an office use there. >> And then my final question is, he's also got a couple sections about stuff that happened between like 2010 and 2015 and I don't see why that's relevant. I think you sort of said even assuming argue window that petitioners right that's not relevant. Is is that anything between 2010 and 2015 relevant? >> I don't think so for purposes of of of petitioner trying to meet their burden. I I suppose no I no I no I don't think it's relevant. The hearings officer could have adopted findings saying well even assuming petitioners had met their burden for the 10-year period these things exist during the 20-year period which defeated. Hearings officer didn't adopt those findings so I'm not you obviously can't impute them to the hearings officer. But I but the question of course is looking at the record um even if you excluded the things prior to the 10-year period could a reasonable person conclude it as the hearings officer did and I think they could have. >> So the stuff he has in there about the water in 2010 that's just surplusage that we don't have to worry about. >> I think the decision is supported by substantial evidence even without that. >> Okay, thank you. That's all I got. >> Okay, no further questions from the board. We will return to petitioner for your rebuttal. You will have 4 minutes for your rebuttal. Go ahead. >> Thank you. Um addressing uh you know the respondents positions here I want to call out clearly I there's nothing in the record that indicates that this is a medical center. Um the comments are based off of the name of the of the business. Um I mean the same the same thing could have been done for Rockport Crane. It's it you know we could make the assumption that that is a uh construction company. Um because they're you know cranes are operating cranes out of there. I mean we're really jumping to conclusions here based on a name um and within the actual hearing itself um there were many opportunities for for these types of clarifying things to be directed at you know the petitioners to get this type of information. Um you know moving to the to the you know the record being thin and not supported by substantial evidence, I believe is my understanding of the respondents arguments. Our words and our affidavits should should matter. And the reason I bring that up is I I point to the 2005 where the complete change of use was was hanging on a hand-drawn site map, a narrative description, and a 1987 request to change the market valuation of that to to then require >> Mr. Dodd, I want to jump in before we run out of time. Going back to that finding I I quoted to Mr. Hugo. So, is it your argument that it was Hood Alternative Medical Center that was the office use between 2014 and 2020? Or was there some other uses there, too? >> It's it's office use. That is >> No, but was it Hood Medical or was it a different company? Hood Alternative Medical. >> Hood Alternative Medical LLC, I believe is the full business name. >> Right. So, you're not relying on some other company doing office use between 2014 and 2020. >> It does overlap because the building was being leased out the overall building that owned the last owner also had LLCs. I don't believe they're maintaining at the same time. I would have to review the timeline again. But specifically, there were multiple throughout that time period commercial businesses active. >> Were there at least 2 years where only Hood Alternative Medical Center was your your office use you're relying on? >> No. >> No? >> No. >> Okay. All right. Thank you. >> In closing, I just I ask you guys to again review the record and specifically the 2005 decision. Specifically regarding the, you know, no jurisdiction to talk about, you know, delays in the expansion as outlined in the reply brief and petition for review, that should be our source of truth and our North Star. Thank you. >> Thank you. No further questions from the board. That will conclude oral argument. The due date for statutory due date for a decision in this appeal is June 15th. We'll ask the parties to to agree to an extension so that we issue our opinion no later than July 6th. Is that okay with these parties? >> Yes. >> Yes, it is. >> Okay. Thank you. Uh