Eagle Creek Rock Products, Inc. v. Clackamas County
556 P.2d 150
Or. Ct. App.
1976
Check Treatment

*1 15, 27, vacated, Argued judgment November September dismissed 1976, petition review denied December reconsideration April denied PRODUCTS, INC., Appellant, EAGLE CREEK ROCK

v. al, Respоndents. CLACKAMAS COUNTY et 6107) (No. 93300, CA 556 P2d 150 Yeats, Elizabeth Portland, argued cause for With appellant. ‍​‌‌​‌​‌​‌‌‌‌‌​​​​‌​‌‌‌​‌​​​​​​​​​​​‌‌​​​​‌‌‌​​‌‌‍Seifer, her J. on briefs were Daniel and Kobin & Meyer, Portland.

[371 Oregon Attorney, Deputy Parker, H. District Sсott City, argued respondents. On the brief the cause Attorney, Roger J. Ross Rook, were District Oregon City. Attorney, Deputy Cravens, District Judge, and Thorn- Schwab, Chief and Fort Before *2 Judges. ton,

SCHWAB, C. J.

[ SCHWAB, C. J. proceeding petitioner appeals

In this writ of review from a determination of the Board of Commissioners County, of Clackamas court, affirmed the circuit aspects that no use existеd for most gravel sand and business. petitioner operated Prior to 1973 its business on County land in Clackamas which was unzoned. The business included the extraction time to and, of rock from operation

time, crusher, of a rock cement plant asphalt plant. In November Clack County adopted through initiative thе Clack applicable Ordinance, amas River law land bordering the Clackamas River. In December response ‍​‌‌​‌​‌​‌‌‌‌‌​​​​‌​‌‌‌​‌​​​​​​​​​​​‌‌​​​​‌‌‌​​‌‌‍petitioner’s request preliminary opinion waste-discharge permit, Department on a Quality (DEQ) of Environmental stated that such a permit County would not be issued until Clackamas compliаnce DEQ notified was in *3 the Clackamas River Ordinance.1 Petitioner then operation ceased of its business to await certification county. from thе 1973,

In June land was zoned in a permit previously manner which would not uses engaged by petitioner. in In June 1974 the Clackamas County Planning responded petition- Commissiоn to many requests county certify er’s that the DEQ to that petitioner compliance county’s zoning was in with the by notifying petitioner laws that it had determined pеtitioner nonconforming that had established a use for rock, the removal of but had not established a controversy entirely 1The in requirement this case stеms from DEQ’s petitioner by county county that compliance he certified the to be in with zoning laws. statutory We cannot understand from the record under what authority proceeding establishing was in DEQ as a criterion for the waste-discharge permits compliance issuance of zoning with local laws. powers 468.035(l)(a) regard DEQ’s this seem to be circumscribed ORS 468.735(1), and authority pollution which limit to matters DEQ’s of pollution immediately perceive compliance control. We do not how with upon pollution local generated laws could bear the level of an activity.

[ 373 nonconforming operation use the of the cement for asphalt plant, plant. crusher, or the Petitioner the rock declaratory sought court, relief in but then the circuit grounds that the dismissed thе court on the suit was county petitioner had not exhausted all available ‍​‌‌​‌​‌​‌‌‌‌‌​​​​‌​‌‌‌​‌​​​​​​​​​​​‌‌​​​​‌‌‌​​‌‌‍did not administrative remedies. Petitioner sought ruling the of this but instead to have board planning commissioners amend decision of ruling by Upon an unfavorable the board commission. request commissioners, a this of filed of writ review. petitionеr argues appeal, of

On decision was not based on substantial board of commissioners probative consequently the and that and circuit cоurt should have evidence

allowed the of the issuance however, we issue, writ. not reach this We need power governments conclude that laсk may adjudicate question of a landowner whether nonconforming continue a use.

A use of land is a use inconsistent lawfully with a ordinance but which existed ‍​‌‌​‌​‌​‌‌‌‌‌​​​​‌​‌‌‌​‌​​​​​​​​​​​‌‌​​​​‌‌‌​​‌‌‍prior See Clack the enactment of ordinance. (1973). Holmes, 265 Or 508 P2d 190 Co. v. right continue a use is The specifically property right established 215.130(4): any or land at building, lаwful use of structure "The zoning regulation or any the enactment of thereto, time of although as such be continued amendment * * *.” conformity zoning regulation not in App See Bergford 15 Or Serv., v. Clack. Co./Trans. (1973). such, of a 515 P2d 1345 As the existence only depends upon the use use whether meets standards established land the state 215.130(4). *4 govern- necessary may It desirable for a local be or determining hearing its assist it in ment a to to hold nonconforming position a whether a landowner has on example, a standard; when use within the state ] [ 374 applies building permit. landowner But this is hearing being quasi-judicial ‍​‌‌​‌​‌​‌‌‌‌‌​​​​‌​‌‌‌​‌​​​​​​​​​​​‌‌​​​​‌‌‌​​‌‌‍not a in the sense of a adjudication meaning government is — primary and factfinder, decisionmaker with its being judicially only decision evidence. reviewed for substantial primary jurisdiction Instead, to determine whether a courts. See use exists lies in the circuit County Comm.,

Jackson v. Clackamas 26 denied(1976). App Sup Or 552 P2d Ct review controversy may presented Such a be in one of three (1) postures: declaratory a suit for relief instituted (2) injunction landowner;2 the by a suit for an instituted (3) zoning authority or the landowner; or a suit compel for mandamus the landowner any permits issuance of authority withheld grounds on the that the landowner was in violation of ordinances. See Jackson v. Clack County supra, App Only Comm., 26 Or at 269. through one of these avenues the existence or nonexistence of a use be established. It follows that the order of the board of commission purporting adjudicate ers whether had nullity. established a use was a It also procedures only follows, since writ-of-review are avail quasi-judicial able to review determinations, that the jurisdiction present circuit court was without over the cause.

Judgment appeal vacated; dismissed. dissenting. THORNTON, J., agree 1 cannot with the central conclusion of majority opinion, namely, primary jurisdic- that "the previously, petitionеr unsuccessfully sought declaratory As noted judgment planning after the initial determination commission. proper remedy point Petitioner’s at that was not tо seek further action but, county, instead, appeal declaratory-judgment the dismissal of its suit. We need not now decide whether failure to declaratory-judgment precludes bringing dismissal of its action it from declaratory-judgment another action.

[ 375 *5 use exists tion determine whether a contrary my the it is view lies in the circuit courts.” To jurisdiction appellate that circuit courts have the this to determine primary jurisdiction rather than See, 215.402 et Indeed the seq. majority issue. ORS a mixed recognize that this is opinion seems by law fact initial of and determination question it states: body the local administrative when necessary govern- a local "It be or desirable for hearing determining it its to hold a to assist in ment has position on whether a landowner standard; when a example, use within thе state *” * * building applies permit. landowner 215.130(4) local I that under agree would ORS in the noncon- allowing has no discretion zoning body estab- properly use оnce use has been forming However, as I lished the landowner. understand of the ORS ch the initial determination scheme of made use to be existence оf is in zoning evidentiary hearing after an body issue, of except any the same manner as other noted in to the matter of no discretion as course as is If the dissatis- sentence. owner preceding property of right he has the fied with that determination and ORS ORS 215.422 judicial review as provided adminis- 34.100, other contested any 34.010 to as in determination process. trative of ORS 215.180 Additionally, terms "may, an county aggrieved or person 215.185 law, institute remedies provided by to other аddition mandamus, appropri- or injunction, abatement other * * * * * * the unlawful proceedings prevent ate use.” 215.422(4) under

Accordingly, I believe that if the ordеr record and determine we must review this of court the determination affirming of circuit sub- is county supported commissioners board 34.040(3). stantial evidence. ORS

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