475 P.3d 910
Or. Ct. App.2020Background
- Dispute concerns a 30-acre portion of a 75.5-acre parcel in Deschutes County zoned SM (surface mining); mining on the site dates to the 1940s.
- A DOGAMI mining permit covered 30 acres in 1981 (and later encompassed the whole parcel); DOGAMI permit/reclamation requirements remain in effect.
- In 1990 Deschutes County adopted Ordinance 90-014 and codified surface-mining rules in DCC chapter 18.52, which exempts “preexisting sites” that held a valid DOGAMI (or county) permit on the ordinance effective date from most chapter 18.52 requirements.
- Cascade Pumice obtained county site-plan approval in 1997 authorizing slot mining of white pumice on ~30 acres; county approvals did not record restrictions on the deed.
- County enforcement action alleged defendants (Pink Pit, LLC and Mark Latham Excavation) violated the 1997 site plan (e.g., by removing overburden and processing materials). Defendants counterclaimed for a declaration that the site is either a preexisting site under DCC 18.52.160(B) or a lawful nonconforming use under ORS 215.130(5).
- The trial court ruled the use was a lawful nonconforming use and dismissed the county’s enforcement action. The Court of Appeals reversed the nonconforming-use ruling but held the property is a preexisting-site exempt from DCC 18.52, affirmed the dismissal, and remanded to correct the declaratory judgment.
Issues
| Issue | Plaintiff's Argument (Deschutes County) | Defendant's Argument (Pink Pit / Latham) | Held |
|---|---|---|---|
| Subject-matter jurisdiction to decide defendants’ declaratory claim in enforcement proceeding | Circuit court lacked jurisdiction because LUBA had exclusive jurisdiction over land-use decisions raised earlier | Circuit court may grant declaratory relief in enforcement proceedings under ORS 197.825(3)(a) | Court had jurisdiction to decide declaratory counterclaim in enforcement action |
| Whether defendants’ mining constituted a lawful nonconforming use under ORS 215.130(5) | County argued the site lost any nonconforming status when it submitted to county land-use regulation or that extraction of Tumalo Tuff was not a previously lawful inconsistent use | Defendants argued extraction predated 1990 ordinance and thus could be continued as a nonconforming use | Court held the mining use is not a nonconforming use because the current SM zone expressly permits the uses at issue |
| Whether the property is a preexisting site exempt from DCC chapter 18.52 | County disputed effect of prior approvals and defendants’ conduct; contended they waived or lost preexisting status | Defendants showed (and argued) DOGAMI permit predated Ordinance 90-014 and site is therefore a preexisting site exempt from most DCC 18.52 regulation | Court held the site meets DCC 18.52.160(B) as a preexisting site and is exempt from DCC 18.52 (except registration and expansion rules) |
| Waiver / laches / estoppel defenses to preexisting-site claim | County argued defendants waived or were estopped from asserting exemption by applying for site plans and litigating under the 1997 approval; also argued laches | Defendants argued no intentional relinquishment of right, explicitly reserved preexisting-site claim in 2007, and had no reason to seek declaratory relief earlier | Court found no affirmative waiver (supported by record) and laches did not bar the claim; county failed to show prejudice or unreasonable delay |
Key Cases Cited
- Polk County v. Martin, 292 Or 69 (defines nonconforming-use doctrine)
- Clackamas County v. Holmes, 265 Or 193 (describes nonconforming use as lawful preexisting use inconsistent with new zoning)
- Thomas v. Wasco County, 284 Or App 17 (circuit court jurisdiction to grant declaratory relief in enforcement proceedings under ORS 197.825(3)(a))
- Bergford v. Clackamas County, 15 Or App 362 (use permitted under zoning is not a nonconforming use)
- Merten v. Portland General Electric Co., 234 Or App 407 (standard of review for questions of law and interpretation)
- Illingworth v. Bushong, 297 Or 675 (appellate review cannot reject trial fact findings supported by any evidence)
- Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 170 (waiver requires intentional relinquishment of a known right)
- Corvallis Sand & Gravel v. Land Board, 250 Or 319 (laches as equitable defense; inapplicable to purely legal claims)
- Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566 (declaratory proceedings may be legal or equitable depending on relief sought)