270 P.3d 397
Or. Ct. App.2012Background
- Tonquin Holdings petitions for judicial review of a LUBA order in two consolidated appeals involving a proposed surface mining operation on 35.5 acres in unincorporated Clackamas County (RRFF-5).
- The site includes three wetlands (Wetlands A, B, C); 2.2 acres of wetlands would be mined or filled, with mitigation contemplated via a wetlands bank.
- A county hearings officer approved the conditional use with over 130 conditions, including Condition 55 restricting excavation of Wetlands B and C and mandating vegetative buffers.
- Petitioner argued that ZDO 1203.01(D) was misapplied and that general development standards (ZDO 1000) should apply rather than the special mining standards (ZDO 818).
- LUBA affirmed the hearings officer, and the court reviews LUBA’s interpretation of the zoning code de novo (no deference to the hearings officer) under ORS 197.850.
- Petitioner contends Gordon v. Clackamas County requires a broader impact area than adjacent properties; the court rejects that view and upholds the ZDO 1203.01(D) interpretation and the imposition of Condition 55.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ZDO 1203.01(D) applies to impairments of primary uses on adjacent land | Tonquin argues Gordon requires a broader impact area, so adjacent wetlands alone are insufficient. | Tonquin reads Gordon too broadly; the primary uses at stake are adjacent land uses, including conservation/wildlife. | ZDO 1203.01(D) applies to impairment of primary uses on adjacent land; Condition 55 affirmed. |
| Whether Gordon v. Clackamas County dictates a broader geographic scope for impact area | Gordon requires considering more distant affected uses beyond adjacent properties. | Gordon’s context is airport expansion; here the affected resource is local and limited; broader scope not required. | Gordon is distinguishable; broader scope not required; affirmed City’s/County’s interpretation under ZDO 1203.01(D). |
| Whether general development standards (ZDO 1000) apply or are displaced by special mining standards (ZDO 818) | Surface mining is a special use and should be governed solely by ZDO 818, not 1000. | Special uses modify but do not wholly displace general standards; 1000 standards apply unless in conflict with 818. | General development standards apply; 818 does not wholly displace 1000, and remand to resolve conflicts was proper. |
| Whether mining of Wetlands B and C constitutes a substantial impairment under ZDO 1203.01(D) | Mining can proceed with buffers without substantially impairing adjacent primary uses. | Mining would substantially impair adjacent wetlands and conservation areas absent buffers. | The hearings officer’s conclusion that wetlands impairment would occur was supported; Condition 55 affirmed. |
| Whether ZDO 1000 and ZDO 200 definitions adequately classify mining as an industrial use | Mining is not expressly listed as commercial/industrial in definitions; thus 1000 applies/limits mining. | Industrial use is broadly defined to include processing and rock crushing; mining fits within that definition. | Mining constitutes an industrial use under the code; 1000 standards apply unless superseded by 818 when inapplicable. |
Key Cases Cited
- Gage v. City of Portland, 319 Or 308 (1994) (hearing officers' interpretations reviewed for correctness, not deference)
- Siporen v. City of Medford, 349 Or 247 (2010) (deferential standard for governing body interpretations of zoning regulations)
- Gordon v. Clackamas County, 10 Or LUBA 240 (1984) (scope of impact area under ZDO 1203.01(D) discussed)