Posted by: Patricia Salkin | November 7, 2016

OR Court of Appeals Holds Land Use Compatibility Statement (LUCS) Did Not Establish Property’s Nonconforming Use as a Composting Facility

Petitioners Howard Grabhorn and Grabhorn, Inc., sought judicial review of an order of the Land Use Board of Appeals (LUBA) that affirmed a Washington County hearings officer’s decision denying petitioners’ application to verify that a composting facility on their property was a lawful nonconforming use. Petitioners contended that “LUBA made a decision unlawful in substance and unsupported by substantial evidence in affirming the Hearings Officer’s decision on the grounds that Petitioners’ composting operation had not been lawfully established in 1962 or in 1984.”

At the outset, the court noted that to prove the existence of a nonconforming use, the applicant must establish: “that a use continued interrupted for the specified period of time” (here, the 20–year “look-back” period); and “that the use was lawful at the time a zoning ordinance or regulation went into effect.” In this case, it was undisputed that petitioners established that the composting use continued uninterrupted during the 20–year “look back” period, from 1994 to 2014, when petitioners filed the subject application. At issue in this case was whether petitioners had a lawfully established composting operation on the property on the date that restrictive zoning made it a nonconforming use.

LUBA argued that the hearings officer reviewed “all the evidence regarding use of the property back to 1962 and beyond, and ultimately rejected petitioners’ claims that evidence of wood chipping or similar recycling operations conducted before 1989 constituted composting.” Since that finding was supported by substantial evidence, LUBA reasoned that regardless of whether target date 1962 or 1984, petitioners failed to demonstrate that the composting facility was lawfully established on the date zoning was applied that made that use nonconforming. Accordingly, LUBA argued the flaw in the hearings officer’s use of 1984 as the target date was a harmless error, since the composting activities did not begin until 1989. Conversely, petitioners contended that the county was required to approve their application for verification of a nonconforming use because the 2011 franchise authorization or the 1991 LUCS had conclusively established the use to be lawful, and LUBA’s decision to the contrary was therefore unlawful in substance.

The court determined it was the applicant who was responsible for describing the nature and scope of the land use compatibility determination sought by the LUCS. The county was then required to make that determination and state in writing the facts and criteria on which it relied. Here, petitioners did not include composting in their LUCS request, nor did the findings on which the county relied in issuing the LUCS reference or describe composting activities. The court found it did not necessarily follow that if composting was occurring on the property when the 1991 LUCS was issued, that composting was covered by the LUCS. Accordingly, the court held that LUBA did not err in sustaining the county hearings officer’s denial of petitioners’ application for verification of their composting facility as a nonconforming use.

Grabhorn v Washington County, 279 Or App. 197 (OR App 6/29/16)

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