Agenda - Planning Commission - 01/04/2000

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Page 6 -- November 25, 1999 g.g, Enforcement - Man claims rental tree houses are a school OREGON (10/13/99) - Gamier owned property' in an area zoned for exclusive farm use. A residence, a guest cabin, and a barn were located on the property. Gamier began building tree houses on his property. The county would not is- sue permits for the tree houses because they lacked concrete foundations. Ney~ ertheless, Gamier rented them to paying overnight guests. The state Building Codes Structure Board issued a ruling that allowed al- ternative building designs and testing of nontraditional structures, such., as tree houses,' for safety complia~c.e.. The.coun. ty and Gamier agreed on a testing procedure for the tree houses, which, included safety~ testing for structural in- tegrity, horizontal stress loading, etc. The tests were never compl6ted and no occupancy permits were ever issued. Gamier continued renting the tree houses to.overnight guests.' He attempted t9 do so legally by selling "treeshirts," each' of which, depicted a particulm'' tree house and each of which was priced ac. cording to the amenities of the tree house it depicted. Purchasers of the treeshirts would take a "Tree Muskeieer" oath, which Garnier's advertisements explained would make them "a friend of both the tree houses, trees,' and, by extension, [Gamier]. And while, legally, [Gamier] is alloWed to sell only treeshirts, it is perfectly acceptable for his friends to spend the night in one of his tree houses." Guests also were entitled to participate in the "Treehouse Institute," which offered "avocational instru'b- tion in basic engineering, design, and construction methods'Tor building tree houses." ' 'The county sued, seeking an order that Gamier could not use'his tree houses because he did not have all applicable permits. It asked for judgment without a trial, and the court awarded the requested order. .- Gamier appealed, arguing the county had to show the tree houses had pro- duced a substantial and positive injury.' He also argued the tree houses were essential to the operation of an avocational school, a use permitted as a matter of right in an area zoned for exclusive farm use. DECISION: Affirmed. " - Gamier could not use the tree houses. Proof of irreparable harm is generally required, when a court disallows use of property. However, the law does not require state or local governments to wait until h'arm actually Occurs before stopping violations of health and safety regulations: Members of the public stayed in the tree houses when the tree houses had not been completely safety tested for structural integrity, horizontal stress loading, etc, as required by state and local building regulations. Courts could not make or review land use decisions, bu~ they could decide all land use issues that arose in a properly brought enforcement action. State law said local governing bodies could not impose additional criteria on certain classes of uses in certain areas. However, this did not mean that conditions could not be imposed upon a permitted use. Simply because a school was located