Rogue Advocates v. Bd. of Comm'rs of Jackson Cnty.

277 Or.App. 651

372 P.3d 587

ROGUE ADVOCATES; and Christine Hudson, Plaintiffs–Appellants,

v.BOARD OF COMMISSIONERS OF JACKSON COUNTY; and Mountain View Paving, Inc., Defendants–Respondents.

14CV11829

A158485.

Court of Appeals of Oregon.

Argued and Submitted Dec. 3, 2015.

Decided April 20, 2016.

Maura S. Fahey, Portland, argued the cause for appellants. With her on the briefs were Courtney Johnson and Crag Law Center.

Brett A. Baumann, Medford, argued the cause and filed the brief for respondent Board of Commissioners of Jackson County.

H.M. Zamudio argued the cause for respondent Mountain View Paving, Inc. With her on the brief was Huycke O'Connor Jarvis, LLP.

Before DUNCAN, Presiding Judge, and DeVORE, Judge, and FLYNN, Judge.

DeVORE, J.

Plaintiffs, Rogue Advocates and Christine Hudson, appeal a general judgment that dismissed their four claims against defendants Jackson County and Mountain View Paving, Inc. Those claims were brought in the context of an ongoing land use dispute over Mountain View's operation of an asphalt batch plant near a tributary of the Rogue River. Plaintiffs originally challenged those operations before the county and the Land Use Board of Appeals (LUBA). LUBA remanded certain land use application approvals for further proceedings, but, before their conclusion, plaintiffs initiated this action in the circuit court. The court granted defendants' motion to dismiss for lack of subject matter jurisdiction. We agree with that conclusion and therefore affirm.

The relevant facts are undisputed. In April 2001, Mountain View acquired property near the city of Talent. Prior to any contrary zoning, the property's previous owner had mined aggregate material on one portion of the property and leased another portion to a company that operated a concrete batch plant. Since 1973, the property has been subject to zoning that prohibits batch plants and other industrial uses. According to Jackson County land use ordinances, a substantial portion of the property is within the 100–year floodplain of Bear Creek and some of the property is within the designated floodway of Bear Creak. Jackson County's ordinances require a floodplain development permit for all development within a designated floodplain or floodway. Jackson County Land Development Ordinance 7.2.2(C). When Mountain View acquired the property, it constructed a permanent asphalt batch plant.

In 2011, a county code-enforcement officer issued a warning letter to Mountain View, requiring the business to submit a “verification of nonconforming use application.” In response, Mountain View began the process of securing that verification. What followed was a series of land use decisions that have yet to be resolved. Before we recap those proceedings, we first describe a lawful nonconforming use of land and the significance of verification of a nonconforming use.

A lawful nonconforming use of land is one that is contrary to a land use ordinance but that nonetheless is allowed to continue because the use “lawfully existed prior to the enactment of the ordinance.” Eagle Creek Rock Prod. v. Clackamas Co., 27 Or.App. 371, 374, 556 P.2d 150 (1976), overruled on other grounds by Forman v. Clatsop County, 63 Or.App. 617, 665 P.2d 365 (1983) ; ORS 215.130(5). To summarily prohibit a lawfully established use of land “would constitute a taking without compensation.” Bergford v. Clack. Co./Trans. Serv., 15 Or.App. 362, 367, 515 P.2d 1345 (1973). Nonconforming uses are recognized by ORS 215.130, which provides, in part, that “[t]he lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued.” ORS 215.130(5). The right to continue a lawful nonconforming use runs with the land and is not affected by a change in ownership or occupancy. ORS 215.130(5). Alterations to a non-conforming use may also be permitted as long as any changes to the use of land or in the structure or physical improvements of the land that accompany the alteration result in “no greater adverse impact to the neighborhood.” ORS 215.130(5), (9)(a). The statute also provides that “[a] local government may adopt standards and procedures to implement the provisions of this section,” including “[c]onditioning approval of the alteration of a use in a manner calculated to ensure mitigation of adverse impacts * * *.” ORS 215.130(10).

Jackson County has adopted such standards and placed them in its Land Development Ordinances (hereafter LDO or “ordinances”). Chapter 11 of the county's ordinances governs nonconforming uses and is introduced by this statement:

“The County recognizes the interests of property owners in continuing to use their property. It is the general policy of the County to allow nonconformities to continue to exist and be put to productive use, while bringing as many aspects of the use or structure into conformance with this Ordinance as is reasonably practicable.”

LDO 11.1.3(A). The county's ordinances establish a process though which an applicant can obtain a “verification of lawful nonconforming status.” LDO 11.8.1. They also establish a process by which a person can apply “to change a nonconforming use to another, no more intensive nonconforming use.” LDO 11.2.1(A). Consistent with ORS 215.130(5), the county ordinances require a person applying to alter a nonconforming use to “show that the proposed new use will have no greater adverse impact on the surrounding neighborhood.” LDO 11.2.1(A). Expansions of nonconforming uses are allowed under limited circumstances when the “expansion includes improvements to the existing use to a degree that the existing use, including the proposed expansion, complies with or is more in conformance with the development standards of Chapter 9, and will have no greater adverse impacts on the surrounding neighborhood.” LDO 11.2.1(B)(2).

In September 2012, county planning staff verified Mountain View's nonconforming use and approved its floodplain development application. Dissatisfied, plaintiffs appealed, and an administrative hearing was held. A hearings officer issued two separate decisions, one concerning the nonconforming use verification and the other concerning the floodplain development. In the first decision, the hearings officer concluded that the batch plant was a lawful nonconforming use, but that Mountain View's further development of the site had either altered or expanded that use. Because Mountain View's application had not asked the county to approve either an alteration or an expansion of a lawful nonconforming use, the hearings officer denied the application. In the second decision, the hearings officer denied the floodplain development permit because Mountain View's application for that permit was premised on the approval of its batch plant operations as a lawful nonconforming use.

After that ruling, the county and Mountain View entered into a stipulated agreement. The county agreed that it would not pursue certain enforcement action against Mountain View if it would remove structures that were not part of the original nonconforming batch plant use and apply for floodplain permits for the structures that do qualify as part of the lawful nonconforming use. Mountain View subsequently filed, and the county approved, an application for another floodplain development permit for the asphalt batch plant.

Meanwhile, plaintiffs appealed to LUBA, challenging the hearing officer's conclusion that a limited asphalt batch plant operation was a lawful nonconforming use on the property. Plaintiffs also appealed the county's approval of Mountain View's second floodplain development permit.

In April 2014, LUBA issued an opinion, Rogue Advocates v. Jackson County, 69 Or LUBA 271 (LUBA Nos.2013–102 and 2013–103, April 22, 2014) (Rogue I ), that dealt with the hearings officer's decision on the nonconforming use. LUBA observed, “We understand [plaintiff] to argue that replacing one kind of batch plant use with the other kind represents an ‘alteration’ of the original use that must be approved as such, and that absent such approval the alteration cannot be verified as part of the original nonconforming use.” Id. at 281. LUBA agreed that the hearings officer was incorrect when he concluded “that replacing a concrete batch plant with an asphalt batch plant has no significance in verifying the nature and extent of the nonconforming use.” Id. at 283. LUBA concluded, instead, that “[u]nder ORS 215.130(5) through (11), the only changes to a nonconforming use that do not require review and approval as alterations are (1) repairs or maintenance to the nonconforming use, or (2) restoration or replacement of the use after a fire or natural disaster.” Id. LUBA found that neither of those situations applied to Mountain View's application and that, therefore, the asphalt batch plant that Mountain View constructed “is lawful only if it qualifies and is approved as an alteration of the nonconforming concrete batch plant.” Id. LUBA remanded the application “for the hearings officer to verify the nature and extent of the lawful nonconforming batch plant use, without considering as part of the verified use any unapproved alterations that occurred in 2001 or at other relevant times since 1992.” Id. at 286.

In August 2014, LUBA issued another opinion, Rogue Advocates v. Jackson County, ––– Or LUBA –––– (LUBA No.2014–015, August 26, 2014) (Rogue II), that overturned Mountain View's floodplain development permit. LUBA explained that, because the county had improperly determined the scope and nature of the legal nonconforming use on Mountain View's property, the floodplain development permit may have allowed “structures that may have been added in 2001 when the then-existing concrete batch plant was converted to an asphalt batch plant or thereafter.” In Rogue II LUBA clarified that its “decision in Rogue I concludes that the nonconforming use only includes the concrete batch plant, and any related structures, ...