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Judge dismisses one Mt. View Paving case

An environmental group has lost its attempt to halt operations of an asphalt batch plant outside Talent until land-use issues are resolved.

Jackson County Circuit Judge Timothy Gerking dismissed a suit brought against Mountain View Paving by Rogue Advocates and Chris Hudson, owner of neighboring Mountain View Estates, saying the court lacked jurisdiction over the matter. Rogue Advocates says it may appeal.

The suit alleged the county failed to enforce land-use regulations and that the asphalt plant was in violation of those rules and should halt operations until the plant was brought into compliance.

Regulations do provide for circuit court jurisdiction in land-use matters, said Rogue Advocates President Steve Rouse and attorney Maura Fahey of Crag Law, Portland.

“We are in consultation with Crag to consider an appeal,” said Rouse. “Even the land development code states that the circuit court does have certain land-use oversight.”

Neighbors of the plant, including Mountain View Estates, and Rogue Advocates have battled the operation since 2011 citing noise, odors and potential environmental dangers. County rulings have determined the current operation lacks approval, but Mountain View Paving is now seeking authorization.

“Essentially the court wasn’t saying that their claims were wrong or we were in violation. They were just saying they should be heard in a different venue,” said Hilary Zamudio, attorney with Huycke O’Connor Jarvis LLP, which represents Mountain View Paving.

Zamudio said the firm shared the same argument with the county in seeking dismissal.

“Our argument was that the circuit court was not the appropriate place under Oregon Revised Statues,” said Joel Benton, county counsel. “The appropriate place to litigate those issues is under the Land Use Board of Appeals.”

“It’s an important issue for both parties," Zamudio said. "I see the interests that both parties have, but I think it needs to play out in the land-use process and the judge agrees with that.”

Rogue Advocates will explore other paths besides appealing the ruling, said Rouse. Those bringing the suit had wanted operations at the plant to cease until the land-use process determines the plant’s legitimacy to operate.

"It’s quite clear they don’t have any land-use authorization,” said Rouse.

A county ruling said the firm must seek new authorization as a grandfathered facility because site use changed substantially when it was switched from a concrete to an asphalt batch plant.

County policy has been to allow operations to continue without approval if land-use actions to remedy a situation are in process.

Tony Boom is a freelance writer living in Ashland. Reach him at tboomwriter@gmail.com.