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  • LUBA to hear asphalt-plant appeal

    Neighbor maintains approval went through wrong permit process
  • TALENT — Jackson County should not have issued a flood-plain development permit for Mountain View Paving's asphalt production facilities next to Bear Creek, asserts an appeal filed last week with Oregon's Land Use Board of Appeals by an environmental group and a nearby landowner.
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  • TALENT — Jackson County should not have issued a flood-plain development permit for Mountain View Paving's asphalt production facilities next to Bear Creek, asserts an appeal filed last week with Oregon's Land Use Board of Appeals by an environmental group and a nearby landowner.
    LUBA is being asked to reverse the decision because it is moot based on prior rulings, lawyer Maura Fahey, with Crag Law Center in Portland, argued in the brief. Fahey represents Rogue Advocates and Chris Hudson, who owns Mountain View Estates, located across the creek from the plant.
    As an alternative to reversal, a remand to the county is sought because a different review process with public notice should have been used, the filing contends. The brief also asserts the county acted outside its authority, because an earlier case was on appeal to LUBA.
    Jackson County, the paving firm, environmentalists and neighbors have been in a tussle since 2011 over the legality of the firm to operate as it has since 2001 just east of town. County development officials have approved the operation several times — only to face legal challenges. Nearby residents are unhappy with disturbances caused by the operation.
    A September ruling by county Hearings Officer Donald Rubenstein appeared to say facilities constructed before 2003 were legal. But on appeal, LUBA remanded that decision back to the county for further consideration. The county and the firm are in discussion on the remand process, which is separate from the latest filing.
    County officials issued permits in January — based on Rubenstein's ruling — which allow the operation with restrictions. But, Fahey argued, because Rubenstein declared the flood plain development issue moot, there is not a basis to determine what the legal nonconforming use is.
    "Because the remand hasn't been processed, we still don't know what qualifies as a nonconforming use, so it is the same which has been determined to be moot before," said Fahey "It's a little complicated." Mountain View Paving's attorney said he was uncertain about that argument.
    "I just don't get what they are trying to accomplish on that one," said Dan O'Connor.
    Rogue Advocates President Steve Rouse said he's waiting to see responses from Mountain View Paving and the county.
    "We think we have a really good case," said Rouse. "Basically Mountain View Paving doesn't have any nonconforming use authority from the county. You need the nonconforming verification before you can do flood-plain development."
    When asked for comment, county Development Director Kelly Madding wrote in an email response that county staff will meet Monday afternoon to discuss specifics of the appeal.
    Jackson County also should have processed the flood plain development permit as a Type II application, which calls for public notice and input, instead of a Type I, the appeal contends. O'Connor disagreed with that argument.
    "It is a Type I flood-plain permit," said O'Connor.
    Jackson County acted outside its authority to process the development permit because it cannot modify a decision that is pending on appeal, Fahey argued. LUBA should either reverse or remand the decision because the county acted without jurisdiction in the case.
    After the earlier case was remanded to the county, Mountain View appealed that ruling to Oregon's Court of Appeals. They have since withdrawn that appeal and will need to request that the county hold a new hearing.
    "The appeal was just dismissed last week, so it's pretty fresh," said O'Connor. "We'll get it figured out."
    Tony Boom is a freelance writer living in Ashland. Reach him at tboomwriter@gmail.com.
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