Posted by: Patricia Salkin | September 23, 2020

OR Appeals Court Grants Declaratory Judgement Stating that Mining Operation was Not Subject to Land Use Regulation

This post was authored by Matthew Loescher, Esq.

Defendants Pink Pit, LLC, and Mark Latham Excavation, Inc. owned surface mine for gravel and pumice that had been in existence at their property since the 1940s. In 1981, Cascade Pumice, defendants’ predecessor in interest, acquired a permit from the Department of Geology and Mining Industries (“DOGAMI”) to mine on the property. In this case, Deschutes County appealed from a judgment for defendants Pink Pit, LLC, and Mark Latham Excavation, Inc., dismissing the county’s code enforcement action against defendants and granting defendants’ request for a declaration that defendants’ mining operation was a “lawful nonconforming use” and not subject to land use regulation.

 The court found that all of defendants’ current uses on the subject property fell within the uses permitted outright in a SM zone pursuant to the Deschutes County Code (“DCC”). It further noted that properties within the SM zone could carry out all of the these uses outright, subject to approval of a site plan; however , the county’s code exempts sites that are “preexisting” or “nonconforming.” As defined in the DCC, a preexisting site is a site that has “a valid DOGAMI permit or exemption and/or County permit on the effective date of Ordinance No. 90-014, and which is zoned SM.” Under this definition, the trial court found that the subject property was zoned SM and that surface mining operations on the subject property had been conducted under a valid DOGAMI mining permit since at least 1981, which predated the county’s enactment of Ordinance 90-014.

 As the defendants’ use of the subject property for mining was permitted under the current SM zone, it was not deemed a nonconforming use. As such, the court rejected the county’s contention that the subject property lost “any” nonconforming use status when defendants or their predecessors sought a site plan approval. The trial court found that there had been no waiver through conduct, and the Deschutes County Code did not state that the county’s approval of a site plan waived a property’s preexisting-site status. Moreover, there was no evidence that when Cascade Pumice filed its site plan approval application in 1995, or when defendants filed their application in 2007, they sought to waive the property’s preexisting-site status. Accordingly, the case was reversed and remanded for entry of corrected judgment declaring that the subject property had a preexisting-site exemption under the DCC.

 Deschutes County v Pink Pit, LLC, 206 Or. App. 563 (9/23/2020)

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