Columbia County v. Kelly

THORNTON, J.

Plaintiff county appeals from the decision of the circuit court which denied its request to have defendant’s dwelling declared a nuisance and to enjoin defendant from keeping what the county considers to be a mobile home on his property.

The sole issue presented is whether the trial court erred in refusing to declare defendant’s structure a nuisance and to enjoin defendant from permanently maintaining it at its present location.

The facts are as follows: Sometime in 1970 defendant purchased the mobile home in issue in Portland, Oregon, and had it towed to Columbia County. Defendant first placed the mobile home on leased property about 1,000 feet from its present location. While the home was in the first location defendant proceeded to attach a 20' by 50' building or addition to the side of the mobile home.

On or about November 4, 1974, defendant moved both the mobile home and the addition to its present location, which is a parcel of real property being purchased by defendant and his wife. The area is zoned 'rural residential.’ Mobile homes are permitted on land zoned 'rural residential’ only temporarily while the property owner is constructing a permitted use. A special permit to temporarily site a mobile home is also required.

On or about that same date, namely, November 4, defendant applied for such a permit, but his request was denied on the ground that he did not meet one of the requirements for a permit, namely, having a valid building permit. Defendant was notified that the mobile home would have to be removed within 15 days.

The same day plaintiff learned that defendant was arranging to hook up utilities to his mobile home, and preparing to occupy it as a dwelling, notwithstanding the fact that he had no permit and that he had not yet appealed the decision of the planning commission.

On December 6, 1974, the county applied to the circuit court for a temporary restraining order, requesting that defendant be prohibited from occupying his mobile home. The temporary restraining order was granted and subsequently vacated, on or about December 6.

On December 11 defendant’s appeal to the county commission from the decision of the planning commission denying his special permit was likewise denied.

Although the record is unclear on this point, apparently about the same time defendant proceeded to reattach the 20' by 50' building or addition on the side of his mobile home, and to place both structures on wooden posts which had been imbedded in concrete blocks. The wheels and axles on defendant’s mobile home were still attached and in place at the time this suit was filed, although the structure is apparently resting chiefly on the posts and blocks.

On December 26 a hearing was held on the county’s request for a temporary injunction. The court then granted the injunction.

On June 20, 1975, a second hearing was held before a different circuit judge to determine whether the temporary injunction should be made permanent. The court considered the matter and denied the injunction on the ground that defendant’s residence was not a mobile home within the meaning of Columbia County Zoning Ordinance #100. This is the order challenged on this appeal.

Defendant argues that his structure is now on a foundation; that it has therefore been transformed into a single family dwelling and a use which is permitted outright in a rural residential zone.

Our review is de novo. City of Salem, v. Trussell, 3 Or App 465, 474 P2d 371, Sup Ct review denied (1970).

We conclude that the trial court erred in refusing to declare defendant’s structure a nuisance, ORS 215.180 et seq, and to enjoin defendant from maintaining it at its present location without a special permit.

Section 104-2(46) of Columbia County Zoning Ordinance #100 defines a "mobile home” as:

"Any vehicle or similar portable structure having no foundation other than wheels, jacks or skirtings and so designed or constructed as to permit occupancy for living or sleeping purposes.”

Defendant acknowledged that his abode was a mobile home by applying to the planning commission for a special permit under Section 253-1 of the Columbia County Zoning Ordinance. When his request was denied because he did not have a valid building permit, he appealed that decision to the board of county commissioners. Again defendant’s request was denied.

Instead of pursuing his statutory remedy by writ of review in the circuit court as authorized by ORS ch 215, defendant proceeded to reattach the 20' by 50' addition to the side of his mobile home and occupy it as a dwelling.

Defendant now asks that we give judicial sanction to his actions because he has, in disregard of the zoning ordinance requirements, placed his mobile home on wooden posts and concrete blocks, and has attached a frame addition to it.

We cannot do so. Defendant cannot avoid the prohibitions of this zoning ordinance simply by placing his mobile home on blocks or jacks. To hold otherwise would reward law defiance and make a mockery of the entire ordinance.

Secondly, defendant contends that the ordinance is unconstitutional because it is unreasonable and does not have a substantial relationship to the public health, safety and general welfare. We are satisifed that the challenged prohibition is not unreasonable, and does have a substantial relationship to the public health, safety and general welfare of the citizens of Columbia County. See authorities collected in Annotation, "Exclusionary Zoning,” 48 ALR3d 1210 et seq (1973). Also, see generally, Jehovah’s Witnesses v. Mullen et al, 214 Or 281, 330 P2d 5 (1958), appeal dismissed 359 US 436 (1959); Kroner v. City of Portland et al., 116 Or 141, 240 P 536 (1925), and authorities cited therein.

Reversed and remanded with instructions to enter a decree not inconsistent with this opinion.

Reversed and remanded with instructions.