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Circuit court can enforce land-use laws, opinion states

In an opinion that is not legally binding, the Oregon Supreme Court said last week that the public can seek court enforcement of state and local land-use laws when it ruled on a case brought against Jackson County commissioners and a paving firm by an environmental group and a neighbor.

Rogue Advocates and Chris Hudson had appealed to the Supreme Court after the state’s appeals court ruled Jackson County Circuit Judge Timothy Gerking correctly had found he did not have jurisdiction in a long-fought battle that pitted Mountain View Paving of Talent against the appellants.

Oregon’s highest court found that the primary case was now moot as Mountain View Paving has relocated, but in a concurring opinion, Justice Martha Walters wrote, “When a landowner uses land in violation of a local land use regulation….a circuit court has jurisdiction to issue an injunction prohibiting that illegal use.” Chief Justice Thomas Balmer joined Walters in the opinion.

Jackson County allowed the paving firm to operate for nearly five years while applications were made and appeals filed in an effort to obtain approval for the paving operation next to Bear Creek.

“The concurring opinion is not binding on any party, it is not precedential,” said County Counsel Joel Benton. “The county hasn’t had a chance to digest (the opinion). We would see if there is anything there to implement.”

County policy is to allow non-conforming land uses to continue to operate while owners seek to come into compliance, said Benton. Decision makers would be the ones who would make any changes to that policy, he said.

“We are hopeful that the decision will provide guidance to the lower courts going forward,” said Maura Fahey, attorney with Crag Law Center, Portland, which represented the appellants. “The opinion confirms the intent of Oregon’s land-use system to give the public the powers to protect their use and enjoyment of their property where their local government fails to respond.”

Walters said it was important to call attention to when a circuit court may act when land use is illegal. Oregon Land Use Board of Appeals' exclusive jurisdiction to review land-use decisions does not always preclude circuit court jurisdiction to enforce existing law, she wrote. That stands even if a landowner might obtain use approval in the future, Walters wrote.

The asphalt operation was located across Bear Creek from Hudson’s Mountain View Estates retirement community. Residents complained of fumes, odors and noise from the operation. She and the group contended the firm lacked county approval for the operation, an opinion that was ultimately upheld by LUBA.

Jackson County allowed the firm to continue to operate while it sought land-use approval beginning in 2011. The issue went through six land-use applications and saw LUBA look at appeal cases four times. As the fight dragged on, Rogue Advocates and Hudson asked the circuit court to rule in 2014 while the issue was again under appeal.

Rogue Advocates President Steve Rouse contended during the appeals that the firm was being allowed to pay “legal rent” to continue working at the site while rulings were sought or applications were made to the county.

Mountain View Paving started working at the site, a former concrete and aggregate operation, in 2001 and contended that it was a grandfathered use. The firm had never applied for a floodplain development permit or verification of a non-conforming use. A county hearings officer ruling in 2015 said the use of the site had changed so substantially it could not be considered a grandfathered use.

“The opinion levels the playing field to provide folks with an option to enforce land-use safeguards that help protect neighbors from harm,” said Rouse. The group was pleased with the directive, although disappointed that the resolution was case dismissal.

Tony Boom is an Ashland freelance writer. Reach him at tboomwriter@gmail.com.