City of Portland v. Carriage Inn
| Decision Date | 22 February 1984 |
| Citation | 676 P.2d 943,67 Or.App. 44 |
| Parties | CITY OF PORTLAND, a municipal corporation, Appellant, v. CARRIAGE INN, James W. Flad, John M. Molendyk, Gordon A. Caron, Learoi Shite, William M. Ofstad, Robert Petrix, Mary C. Bline, Paul Henry and Judy Alberton, Respondents. A8006-03622; CA A25873. |
| Court | Oregon Court of Appeals |
Paul C. Elsner, Portland, argued the cause and filed the briefs for appellant.
Rex Armstrong, Portland, argued the cause for respondents. With him on the brief were Leslie M. Roberts and Kell, Alterman & Runstein, Portland.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
This action was brought to enjoin defendants' use of an apartment building for "transient occupancy," claiming that such use violates the Portland Planning and Zoning Code. The trial court granted defendants' motion to dismiss the amended complaint for failure to state ultimate facts sufficient to constitute a claim for relief. Plaintiff appealed. We dismissed the appeal for want of an appealable order. City of Portland v. Carriage Inn, 64 Or.App. 751, 669 P.2d 1185. The Supreme Court reversed, reinstated the appeal and remanded to this court for consideration on the merits. 296 Or. 191, 673 P.2d 531 (1983). We affirm.
In 1978, defendants constructed an apartment building, the Carriage Inn, at 2025 N.W. Northrup Street in Portland. At that time, the area was zoned AO. All necessary building permits and final inspections had been obtained prior to occupancy. After learning that the structure was being used for transient occupancy, plaintiff requested defendants to stop that use, and when defendants failed to comply, this action was filed, allegedly to enforce the provisions of chapter 33.34 of the Code, which plaintiff contends prohibits the use of an apartment building for transient occupancy. Defendants maintain that the Code contains no such restriction.
Even if it is still true that a zoning law or ordinance, being in derogation of the common law rights of property owners, should be strictly construed in their favor, see Lane County v. Heintz Const. Co. et al., 228 Or. 152, 158-59, 364 P.2d 627 (1961), the primary function of the courts is to discern and declare the intent of the legislative body. Thompson v. IDS Life Ins. Co., 274 Or. 649, 652, 549 P.2d 510 (1976); State Highway Com. v. Rawson, 210 Or. 593, 609, 312 P.2d 849 (1957). We start with the language of the ordinance. Whipple v. Howser, 291 Or. 475, 479, 632 P.2d 782 (1981).
Chapter 33.34 of the Code is devoted to the "AO Apartment Residential Zone." Section 33.34.020 sets out the following permitted uses in that zone:
"Apartment dwelling" is defined in the definitional section of the Code as:
"a building or portion thereof, designed for occupancy by three or more families living independently of each other." § 33.12.090. (Emphasis supplied.)
"Family," in turn, is defined in section 33.12.310 as:
Section 405 of the Uniform Building Code defines "dwelling unit" as:
"A single unit providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation." (Emphasis supplied.)
As defendants point out, the foregoing definitions indicate that an apartment dwelling is defined primarily in terms of design or structure. It is a building comprised of three or more dwelling units in which each dwelling unit contains all of the facilities necessary for one or more persons to live independently.
Although the Code contains its own definition of "apartment dwelling," plaintiff would have us bifurcate that phrase and use the definition of "dwelling" found in Code § 33.12.260 as:
"a building or portion thereof designed for residential occupancy." (Emphasis supplied.)
Then it would have us adopt a dictionary definition of "residential" as "the act or fact of abiding or dwelling in a place for some time," Webster's Third New International Dictionary 1931 (1976), and make the inference that transient occupancy is prohibited in an apartment dwelling.
Even if we accepted plaintiff's premise that the separate definition of dwelling governs, plaintiff's argument fails for two reasons: (1) that definition is related to design, and (2) its definition of "residential" is inconsistent with the Code's use of that term in various contexts. For example, it defines "residential care facility" as:
"an establishment operated with twenty-four hour supervision for the purpose of serving not more than fifteen persons who by reason of their circumstances or condition require care while living as a single housekeeping unit in a dwelling unit.
"Care is defined as room and board and the provision of a planned treatment program; and planned treatment means a previously determined program of counseling, therapy, or other rehabilitative social service * * *." § 33.12.165.
One who enters a residential care facility for counseling, therapy or rehabilitation may do so for a period ranging from days to months. Thus, "transient occupancy" appears to be permitted in a "residential" care facility.
"Residential," as used in this context, is unambiguously used to describe a facility in which an individual may stay for as little as a week at a time. Finally, Code...
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Brown v. Sandy City Bd. of Adjustment
...short-term leases is correct. 9 Our conclusion is consistent with the case law of other jurisdictions. See City of Portland v. Carriage Inn, 67 Or.App. 44, 676 P.2d 943, 945 (1984) (holding transient occupancy permitted in zone when no durational requirement was expressed); Strauss v. Zonin......
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Davis v. Jackson County
...is no basis in the code to distinguish between short-term rentals and long-term rentals. Petitioners cite to City of Portland v. Carriage Inn, 67 Or App 44, 676 P2d 943 (1984), for the proposition that unless a zoning ordinance expressly prohibits transient or short-term occupancy of dwelli......