Agenda - Planning Commission - 04/03/2014

Home

Zoning Bulletin March 25, 2014 I Volume 8 I Issue 6 prohibited more than one truck on the site at any time; prohibited outdoor storage of trailers, parts or materials; prohibited use of maintenance machinery outdoors; limited truck trips to one outgoing trip and one incoming trip per truck per day; and limited truck maneuvering during nonbusiness hours to portions of the site within 100 feet of the adjacent road. Scott and Debra Stevens (the "Stevens") owned property adjacent to Fregulia's Property. Their dwelling was located within 125 feet of Fregulia's workshop and within 75 feet of the access driveway to Fregulia's workshop. The Stevens appealed the City's decision to the Land Use Board of Appeals ("LUBA"). Among other things, they contended that the City "erred by finding that the home occupation [was] secondary to the residence," as was required by the City's Development Code for home occupation approval. The Stevens alleged that Fregulia's home occupation consisted of: six semi -trucks making daily trips in and out of the residential property; a full-time mechanic; multiple supply vendors; and maintenance with the use of air compressors, air ratchets, fork lifts, and steam cleaners. They argued that "[b]y any empirical stan- dard, the main use of the [P]roperty [was] a commercial trucking operation." In having concluded that Fregulia's commercial trucking operation was a home occupation, the city had found: (1) "[Fregulia] and his fam- ily reside[d] in the home on site"; (2) "[t]here [were] no customers or product vending on site"; (3) "[n]o sign [was] proposed for the busi- ness"; and (4) the [C]ity had "adopted a condition limiting truck mainte- nance activities to working hours." Given those findings, the City had concluded "that the [P]roperty [was] primarily used as a residence, and the proposed home [-] occupation use [was] secondary to the residential use." LUBA remanded the City's decision approving the home occupation but denied the Stevens' argument challenging the City's conclusion that the Fregulia's occupation was secondary to the main use of the, property as a residence. LUBA concluded that the Stevens' "mere disagreement with the [C]ity's conclusion [did] slot establish a basis for reversal or remand." LUBA further concluded that the Stevens failed to establish that "no reasonable person could conchide, as the [C]ity council did, that as conditioned the home occupation [was] secondary to the main use of the [P]roperty as a residence." The Stevens appealed. DECISION: Decision of LUBA affirmed. The Court of Appeals of Oregon held that evidence was sufficient to support LUBA's finding that Fregulia's proposed home -occupation use of a commercial trucking operation was secondary to the residential use of the Property. In so concluding, the court emphasized the standard of review. It noted 2014 Thomson Reuters 7