FILED: February 16, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CAMPERS COVE RESORT, LLC,

Respondent,

v.

JACKSON COUNTY,

Respondent,

and

SOUTHERN OREGON CITIZENS FOR
RESPONSIBLE LAND USE

PLANNING,
SANDY SPEASL,
and SHELLEY MORRISON,

Petitioners.

Land Use Board of Appeals
2009117
A145328

Argued and submitted on November 02, 2010.

Pamela Hardy argued the cause and filed the brief for petitioners.

Roger A. Alfred argued the cause for respondent Campers Cove Resort, LLC. With him on the brief was Perkins Coie LLP.

Frank Hammond argued the cause for respondent Jackson County. With him on the brief was County Counsel.

Sydnee B. Dreyer argued the cause amici curiae for Jim Salyer, Jodi Salyer, Carl Sieg, Jeanette Sieg, John Mytinger, Angie Mytinger, Rob Collins, Dea Collins, Walter Wilkins, Annette Wilkins, Jeffrey Wells, Julia Wells, Allen Dinardi, Sheraine Dinardi, Gary Whittle, Sandi Whittle, Jim Hill, Charlene Hill, Jeff Feyerharm, Jill Feyerharm, Tom Hazel, Felicia Hazel, Michael Schooler, Robin Schooler, Mike Mahar, and Mary Mahar. With her on the brief was Huycke, O'Connor, Jarvis & Lohman, LLP.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore.

SERCOMBE, J.

Affirmed.

SERCOMBE, J.,

Petitioner owns and operates a lakeside resort in Jackson County.(1) The resort has been used historically for camping and temporary residential occupancies. The current zoning of the property limits the types and intensity of the resort land uses. Petitioner applied for and obtained a decision from the county that certified particular uses of the property as nonconforming uses and determined whether to allow alteration or expansion of those nonconforming uses. In concluding that some of the current uses of the property--specifically long-term occupancy of small manufactured dwellings lodged on campsites (so-called "park model recreational vehicle (RV) units" or "park model units")--were not nonconforming uses, the county decision noted that those uses would require completion of particular approval processes in order to be legitimized.

Petitioner appealed the county decision to the Land Use Board of Appeals ("LUBA" or "the board"), arguing, among other things, that the county erred in deciding both the lawfulness of and the appropriate process to legitimize the existing park model unit uses, because those determinations were outside the scope of its application for a land use decision. Petitioner also argued that the park model uses were lawful because they had been approved earlier by the county.

Respondents are opponents of intensive land uses in the resort, including the continuation of the existing park model unit uses, and had participated in the local government proceedings. Respondents intervened in the LUBA appeal, defended the contested part of the county decision, and sought a LUBA decision that the county determination was both material and correct. LUBA decided that the contested part of the county decision was dictum and, if erroneous, that the error was harmless. On review, respondents contend that LUBA erred in concluding that the county determination was dictum. Petitioner, the county, and amici resort residents respond that the contested part of the county decision decided a hypothetical or abstract question and that judicial review of that determination is not justiciable. Those parties alternatively assert that, if review is justiciable, the LUBA decision was correct. We conclude that the appeal is justiciable and that LUBA correctly decided the matter, and, therefore, affirm.

The facts are drawn from the opinion of the board. Petitioner is the owner and operator of Hyatt Lake Resort, located on the lake of the same name in Jackson County. The resort dates from the middle part of the last century and was improved with a restaurant and lodge, bait shop, tent sites, a number of pull-through RV sites (22 with full electric, water, and sewer hook-ups and others with only electric and water connections), rental cabins, a dock, a sewage treatment system, and other related uses.

Petitioner obtained building permits and installed "park model" RV units on the 22 full-service sites in 2007. A "park model" RV unit is a manufactured dwelling that is not more than 400 square feet in size and is towed and installed for permanent use at a site. Petitioner seeks to install park model units at 13 additional campsites and to construct various accessory structures and an office building for the resort.

The resort is located on productive forestland. Some of the existing and planned resort uses are not permitted under contemporary state and local land use controls limiting the uses of land that is capable of producing timber. See OAR 660-015-0000(4) (Statewide Planning Goal 4 (Forest Lands)); OAR 660-006-0025(4)(e) (Goal 4 Rule) (allowing only temporary occupancies in tents, travel trailers, and recreational vehicles for campgrounds on land zoned for forest use). In order to legitimize those existing and future uses, petitioner applied to the county for a permit to verify and alter the nonconforming uses that existed at the resort before and after the imposition of those land use controls.

The permit was sought under state and local laws regulating nonconforming uses. A nonconforming use is one that "'lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area.'" Clackamas Co. v. Port. City Temple, 13 Or App 459, 461 n 1, 511 P2d 412 (1973) (quoting 1 Anderson, American Law of Zoning