PAXTON v. CLACKAMAS COUNTY (2026)

In this petition for judicial review from a Land Use Board of Appeals (LUBA) order, we are asked to interpret the Clackamas County Zoning and Development Ordinance (ZDO) 1206.05, which sets out how an applicant can verify a nonconforming use. Under ZDO 1206.05(B), an applicant can obtain a rebuttable presumption that a nonconforming use was lawfully established and has continued uninterrupted since the adoption of restrictive zoning, if the applicant proves “[t]he existence, continuity, nature and extent of the nonconforming use for the 10-year period immediately preceding the date of the application.” The county hearings officer, which LUBA affirmed, determined that petitioners were required to prove that the use had not been discontinued for any 24-month period during that 10-year period, based on the definition of discontinuation in ZDO 1206.04(A). On review, petitioners assert that that interpretation is legally incorrect. As explained below, we conclude that proving continuity in ZDO 1206.05(B) does require proof that the nonconforming used has not been discontinued, as provided in ZDO 1206.04(A). Accordingly, LUBA's order was not “unlawful in substance,” ORS 197.850(9)(a), and we affirm.

We take the following facts from the county hearings officer's decision and LUBA's order. Petitioner Paxton owns a two-story building on a .92-acre property near Sandy, Oregon. Prior to any zoning restrictions, the building was used as a restaurant and bar. The county established restrictive zoning starting in 1967 that precluded the restaurant and bar use. In 1974, the county verified the restaurant as a legally established nonconforming use. In 2005, the county again verified the nonconforming use of a restaurant and approved an alteration of the nonconforming use to office use. On March 4, 2024, the building was significantly damaged in a fire. In November 2024, Paxton purchased the property, and on March 4, 2025, Paxton applied to the county to verify the nonconforming use of office use and to obtain an alteration to repair the fire damage.

The county planning director denied Paxton's application, and the hearings officer affirmed that denial after a de novo hearing. The hearings officer determined that Paxton failed to demonstrate that “[t]he previously approved nonconforming office use of the site continued without interruptions of more than 24 consecutive months,” and thus could not be verified under ZDO 1206.05.¹ The hearings officer identified several gaps in Paxton's evidence that did not meet that burden, including no evidence demonstrating actual use of the site as an office by Parkland Property Management Inc. or Rockport Crain LLC, and no evidence that Hood Alternative Medical Center LLC used the site as an office from 2014 to 2020, as opposed to a medical clinic, for retail sales of alternative medicines, or other non-office use. There was also evidence that the office use was displaced by illegal residential use, including that the lower floor of the building was gutted and remodeled for residential use in 2014, the second story and the rear of the lower floor of the building was used as a residence from May 2015 to January 2020, and the entire lower floor was used as a residence before the fire in March 2024.

LUBA affirmed the county's denial. LUBA's decision was largely based on rejecting petitioner's reading of the hearings officer's decision and determining that the hearings officer correctly applied the two-step, burden-shifting approach for the rebuttable presumption in ZDO 1206.05, because the hearings officer determined that petitioners had not met their initial burden. LUBA stated, “The hearings officer correctly determined that petitioners bore the burden of establishing the continuity of the nonconforming use for the ten-year period preceding the application. The hearings officer reviewed the evidence submitted by petitioners and determined that they had not met that burden.”

On judicial review of LUBA's order, petitioner argues that LUBA misconstrued ZDO 1206.05(B) when it held petitioners were required to prove as part of their threshold showing that the nonconforming use was not discontinued for any 24-month period during the 10-year period preceding the application. The county asserts that petitioner did not preserve that argument before LUBA. We reject the county's preservation argument. Although petitioners framed their argument differently before LUBA, in our view, petitioners’ essential argument about what ZDO 1206.05(B) requires has remained the same. We thus turn to the merits of that argument.

Because the county's decision came from the hearings officer and not the county's governing body, the hearings officer's interpretation of the county ordinance is not due any deference. Gage v. City of Portland, 319 Or 308, 317, 877 P2d 1187 (1994). Thus, the proper construction of the county's ordinance “is a question of law, which we resolve using the same rules of construction that we use to interpret statutes.” City of Eugene v. Comcast of Oregon II, Inc., 359 Or 528, 540, 375 P3d 446 (2016). In this case, we start and end with the text and context. See State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (“[T]here is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes.” (Internal quotation marks omitted.)).

We start with the text of the ordinance that governs verifying nonconforming uses, ZDO 1206.05, which provides in full:²

“Verification of nonconforming use status requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:

“A. The nonconforming use lawfully existed at the time of the adoption of zoning regulations, or a change in zoning regulations, which prohibited or restricted the use, and the nonconforming use has not been subsequently abandoned or discontinued. Once an applicant has verified that a nonconforming use was lawfully established, an applicant need not prove the existence, continuity, nature and extent of the nonconforming use for a period exceeding 20 years immediately preceding the date of application for verification; or

“B. The existence, continuity, nature and extent of the nonconforming use for the 10-year period immediately preceding the date of the application is proven. Such evidence shall create a rebuttable presumption that the nonconforming use, as proven, lawfully existed at the time of, and has continued uninterrupted since, the adoption of restrictive zoning regulations, or a change in the zoning or zoning regulations, that have the effect of prohibiting the nonconforming use under the current provisions of this Ordinance.”

ZDO 1206.05 provides two pathways for verification. Under subparagraph (A), an applicant can verify a nonconforming use by proving that the use was lawfully established and not subsequently abandoned or discontinued for a period not to exceed 20 years immediately preceding the application. Through the second sentence in subparagraph (A), whether a use has not been abandoned or discontinued is linked to proving “the existence, continuity, nature and extent of the nonconforming use.”

Under the second pathway in subparagraph (B), which is the pathway petitioners sought to use, an applicant can verify a nonconforming use by relying on a rebuttable presumption that the use was lawfully established and continued uninterrupted. That presumption is obtained by proving “[t]he existence, continuity, nature and extent of the nonconforming use for the 10-year period immediately preceding the date of the application.” Thus, subparagraph (B) uses the exact same phrase as used in subparagraph (A) as the means for proving a use has not been abandoned or discontinued. That context suggests that “existence, continuity, nature and extent of the nonconforming use” means, at least in part, not abandoned or discontinued. Petitioners’ argument that only the first pathway requires the applicant to show that a use has not been discontinued or abandoned does not address the full text or context of those two provisions.

Further, the context of the entire nonconforming use section of the ZDO supports our reading that proving continuity of use means proving the use has not been discontinued. Several provisions in the nonconforming use section refer to “continuity” and “continued,” but those terms are not defined or given a standard. See ZDO 1206.01 (“Section 1206 is adopted to provide standards, criteria, and procedures under which a nonconforming use may be continued, maintained, verified, restored, replaced, and altered and under which a vested right may be determined.”); ZDO 1206.02 (“A nonconforming use may be continued although not in conformity with the regulations for the zoning district in which the use is located.”); ZDO 1206.05 (verification requires proving “continuity”). However, ZDO 1206.04(A), which is titled “discontinuation,” provides, “[i]f a nonconforming use is discontinued for a period of more than 24 consecutive months, the use shall not be resumed unless the resumed use conforms to the requirements of this Ordinance and other regulations applicable at the time of the proposed resumption.”

The juxtaposition of not providing standards for showing continuity but instead providing a standard for discontinuation in ZDO 1206.04, strongly suggests that the county intended that applying ZDO 1206.04 was how continuity would be determined. Reading the provisions as whole, we conclude that whether a nonconforming use has continuity requires confronting whether it has been discontinued for long enough that the use cannot be resumed as provided in the county code; otherwise, showing continuity would not be tethered to the time frame the county has set for when a use is considered discontinued.

We thus conclude that LUBA's order is not unlawful in substance, because, under ZDO 1206.05(B) petitioners bore the burden of establishing the continuity of the nonconforming use for the 10-year period preceding the application, which required showing that the use was not discontinued for a period of more than 24 consecutive months, as provided in ZDO 1206.04(A), during that 10-year period.

Affirmed.

FOOTNOTES

1.   The hearings officer also denied the application because Paxton did not demonstrate that “[t]he nonconforming office use was ‘lawfully resumed’ within one year of the fire that damaged the structure,” as required by ZDO 1206.06. That basis of denial is not at issue on judicial review because LUBA did not address it after concluding the first basis for denial was sufficient.

2.   We note that the county's ordinances for nonconforming uses implements ORS 215.130.

JOYCE, P. J.