Friends of the Metolius v. Jefferson County

*258DEITS, P. J.

Respondents Richartz (respondents) applied to Jefferson County for a conditional use permit, to allow them to modify an existing resort and RV park in the Camp Sherman resort residential zone and to establish a 15-cabin facility for “traveler’s overnight accommodations.” The county granted the application and petitioners appealed to LUBA. LUBA remanded the county’s decision, but it rejected all but one of petitioners’ assignments. Petitioners seek our review, contending that LUBA misapplied Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992), and our decisions that implement Clark, in rejecting three of petitioners’ assignments. We affirm.

Under the county’s zoning ordinance for the area, single-family dwelling units are permitted uses “subject to siting standards” that are set forth in the ordinance. “Traveler’s accommodations” are conditional uses that are “subject to additional criteria,” which the ordinance also sets forth. The ordinance establishes a one-acre minimum lot size for any single-family dwelling unit, and a two-acre minimum lot size for most other uses, including traveler’s accommodations, regardless of the number of units they contain. Respondents’ property consists of slightly more than three acres and, under their proposal, it will contain 15 separate units. Petitioners contend that the single-family dwelling density requirement is applicable to the proposed use and that the proposal does not satisfy the requirement.

The county governing body disagreed. It construed the ordinance provisions and concluded that, although the units might come within the definitions of both traveler’s accommodations and single-family dwellings, the use that respondents propose is only the former and the approval criteria and density requirements for traveler’s accommodations are, therefore, the sole applicable ones. Further, relying on an ordinance section that provides generally that alterations of certain preexisting conditional uses are subject to the ordinance’s requirements for conditional uses, the governing body concluded that the siting standards for permitted uses, including single-family dwellings, are not applicable to respondents’ proposal to modify the existing conditional use on the property.

*259LUBA applied the standard of review defined in Clark v. Jackson County, supra, which allows it to reject local interpretations of local legislation only if they are contrary to the language, or “apparent” purpose or policy of the legislation, read in its context. LUBA concluded that

“the county’s interpretation expressed in its decision that the proposal constitutes traveler’s accommodations, and is only subject to standards applicable to traveler’s accommodations, is not clearly contrary to the express words, policy or context of the [ordinance], and we defer to it.”

LUBA also rejected petitioners’ reliance on section 1001 of the ordinance, which provides:

“Where the conditions imposed by a provision of this ordinance are less restrictive than comparable conditions imposed by any other provisions which are more restrictive, the more restrictive shall govern.”

LUBA reasoned that, given the county’s interpretation that traveler’s accommodations “need only comply with standards applicable to them, and not with standards applicable to single-family dwellings, including density standards,” the approval conditions applicable to the two uses are not “comparable” and section 1001 does not apply.

Finally, again on the strength of Clark, LUBA rejected petitioners’ challenge to the county’s determination that the proposed use comes within the definition of “traveler’s accommodations,” notwithstanding the county’s condition of approval that allows the owners of the units to occupy them for up to 36 days a year.

In their first assignment to us, petitioners argue that the county’s interpretation is reversible, even under the Clark standard. They contend that the proposed use clearly comes within the unambiguous definitions of both traveler’s accommodations and single-family dwellings and, under section 1001, the more restrictive density requirements for the latter apply. According to petitioners, nothing in the ordinance suggests or supports the interpretation that the existence of or criteria for the two uses are mutually exclusive, or that the more restrictive standards cannot be applied when a proposal that entails both uses is presented.

*260We do not agree that the county’s interpretation is beyond the insulation for local interpretations that Clark v. Jackson County, supra, creates. The density requirements for the two uses do differ. Although the actual physical structures that respondents seek to place on the property might come within the definitions of both uses, the only use to which respondents propose to put them are traveler’s accommodations. Moreover, the interpretation that only conditional use approval criteria apply to the proposal lends independent support to the county’s conclusion that the single-family dwelling density requirements are not applicable. However we might interpret the ordinance if the question were for us to decide, we agree with LUBA that Clark requires us to accept the county’s interpretation. It is not clearly wrong. See Goose Hollow Foothills League v. City of Portland, 117 Or App 211, 217, 843 P2d 992 (1992).

In their second assignment, petitioners argue that the county’s findings are inadequate to support the interpretation that LUBA attributed to them, and that LUBA, in effect, adopted its own interpretation of the ordinance in the guise of construing the county’s order. See Weeks v. City of Tillamook, 117 Or App 449, 453-54, 844 P2d 914 (1992), and authorities there cited. We do not agree with petitioners that the county’s order fails to express its interpretation. Although Weeks does hold that the initial responsibility to articulate an interpretation of relevant local legislation belongs to the local government, rather than to LUBA, we do not share petitioners’ understanding that Weeks precludes LUBA from considering and analyzing what the local government has said. We do not find the county’s interpretation here to be unclear or inadequate, and we do not find anything in LUBA’s discussion to be inconsistent with the county’s order or to depart from its meaning. We reject the second assignment.

In their third assignment, petitioners challenge LUBA’s affirmance of the county’s interpretation that the proposed use can constitute “traveler’s accommodations” under the ordinance. Petitioners assert that the allowance of owner-occupancy during part of the year is inconsistent with that use and appears to be a ‘ ‘gratuitous grafting of the single-*261family use onto the traveler’s accommodation use.” According to petitioners, the owner-occupancy provision could be implemented to make the units de facto single-family “part-time vacation residences,” which are never used to accommodate travelers and which have not been tested against and do not meet the criteria for single-family dwellings.1

We agree with LUBA that, under Clark, it and we are bound to accept the county’s interpretation that the “de minimis” owner-occupancy condition does not defeat the qualification of the units as traveler’s accommodations. Insofar as petitioners’ concern is that the units may, in fact, be used or marketed for something other than the traveler’s accommodations defined in the proposal and approved by the county, the occasion and opportunity for rectifying that problem would be in connection with any later land use decision giving rise to it or through other remedies that may become available if it does arise. See ORS 197.825(3)(a).

Affirmed.

No thing in the proposal requires rentals to nonowners during the periods that the owners do not occupy the cabins.