Background
Michael Paxton owned a building near Sandy, Oregon, that had historically operated as a restaurant and bar before restrictive zoning took effect in 1967. Clackamas County verified the restaurant as a lawful nonconforming use in 1974 and, in 2005, approved an alteration from restaurant use to office use. After a March 2024 fire significantly damaged the building, Paxton purchased the property and applied in March 2025 to verify the nonconforming office use and obtain approval to repair the damage.
The county planning director denied the application, and a hearings officer upheld the denial after a de novo hearing. The hearings officer found that the applicants had not shown that the office use continued without an interruption exceeding 24 consecutive months, citing evidentiary gaps and periods of residential or potentially non-office use. The Land Use Board of Appeals affirmed, concluding that the applicants had failed to make the initial showing required for the rebuttable presumption under Clackamas County Zoning and Development Ordinance 1206.05(B).
The Court’s Holding
The Oregon Court of Appeals affirmed. It held that an applicant proceeding under ZDO 1206.05(B) must prove the existence, continuity, nature, and extent of the nonconforming use during the 10 years immediately preceding the application. Proving continuity requires showing that the use was not discontinued for more than 24 consecutive months, the period specified in ZDO 1206.04(A).
The court reasoned that ZDO 1206.05(A) and (B) use the same phrase—“existence, continuity, nature and extent”—and that the ordinance supplies its operative continuity standard through the discontinuation provision. Because Paxton and McDonald bore the burden of making that threshold showing and did not establish uninterrupted office use under the 24-month standard, LUBA’s order was not unlawful in substance.
Key Takeaways
- An applicant seeking the rebuttable presumption under ZDO 1206.05(B) must establish continuity of the claimed nonconforming use throughout the preceding 10-year period.
- Continuity under the ordinance requires proof that the use was not discontinued for more than 24 consecutive months.
- A hearings officer’s interpretation of a county ordinance receives no deference when the interpretation was not made by the county’s governing body.
Why It Matters
The decision clarifies the evidentiary burden for verifying nonconforming uses in Clackamas County. Applicants relying on the ordinance’s 10-year rebuttable-presumption pathway must document not merely some activity at the property, but continuity of the particular nonconforming use without a disqualifying interruption.
The ruling also illustrates how Oregon courts read related ordinance provisions together: an undefined continuity requirement may be given concrete meaning by a separate provision specifying when a use is legally discontinued.