dissenting.
The equities are admittedly not with the defendant in this case, but I fear that fact has caused the majority to reach an incorrect result.
The majority finds defendant to be in violation of the zoning ordinance because he "placed his mobile home on wooden posts and concrete blocks, and has attached a frame addition to it.” 25 Or App at 5. The *7majority cites no provision of the zoning ordinance prohibiting such actions, and I am aware of none.1
Nor has Columbia County ever contended that defendant’s construction activities violate the zoning ordinance. The actual issue in this case, as framed by the county’s amended complaint, is whether defendant’s abode is a "mobile home,” a prohibited use under the zoning ordinance, or a "single family dwelling,” a permitted use under the zoning ordinance. The relevant definitions provide:
"MOBILE HOME - Any vehicle or similar portable structure having no foundation other than wheels, jacks or skirtings and so designed or constructed as to permit occupancy for living or sleeping purposes.” Ordinance #100, Section 104-2(46).
"DWELLING: SINGLE OR ONE-FAMILY - a detached structure designed for occupancy by one family.” Ordinance #100, Section 104-2(21).
To be a mobile home under these definitions, defendant’s abode must be: (1) portable, and (2) have no foundation other than wheels. The "portability” evidence is conflicting, indicating that even on-site constructed buildings can usually be moved, and that, therefore, this issue is ultimately a matter of degree. As I read the record, the evidence predominates in favor of finding that defendant’s abode is closer to the relatively not-portable end of the spectrum. There is no conflict regarding the other component of the definitions — all the evidence indicates that defen*8dant’s abode now does have a foundation other than wheels.
The ultimate flaw in the majority’s analysis, I submit, is the apparent belief: once a mobile home, always a mobile home. I think local governments are, of course, free to define the term so as to reach that result. But Columbia County’s definition does not do so. Regardless of what it once was, defendant’s abode has ceased to be a mobile home under the controlling definition. The possibility of such a metamorphosis is not unknown to the law — a fixture has been defined as "real property with a chattel past and the fear of a chattel future.”2
I respectfully dissent.
As the trial court’s opinion succinctly points out, this case presents no building-code issue:
"It is to be noted that the plaintiff proceeds strictly upon the * * * zoning ordinance and presented no theory with respect to violation of the building code, except tangentially in that the Columbia County planning director indicated in his testimony that he largely relied upon the building code in determining whether the residence of defendant is a mobile home within the meaning of the zoning ordinance.
"Because there is no basis in the pleadings * * * [or] evidence, I do not reach the question of whether this structure violates the building code.”
Fuller & Braucher, Basic Contract Law 806 (1964).