In a decision issued yesterday, the Oregon Land Use Board of Appeals rejected Jackson County’s approval of an asphalt batch plant operating without any land use permits in the floodway of Bear Creek near Talent, Oregon. Crag filed the appeal on behalf of Rogue Advocates last year, arguing that the asphalt plant does not qualify as a grandfathered use exempt from land use laws.
Jackson County determined that there was historically a concrete plant on the property prior to any land use laws. The area has since been zoned for residential use — a zoning that does not allow high impact industrial uses like asphalt plants. The residents of nearby Mountain View Estates know all too well why these uses are not compatible, as they have been exposed to dust and fumes associated with the operation since it began in 2001. Jackson County approved the asphalt plant as a continuation of the historic concrete batch plant, despite the uncontroverted evidence that the asphalt plant was newly installed in 2001.
Oregon’s land use laws only allow this type of alteration of a nonconforming use where the new use will have no greater impact on the neighborhood. In it’s decision, LUBA determined that the 2001 asphalt plant was at minimum an alteration of the pre-existing use, and remanded the decision to the county for a determination of the non-conforming use prior to, and not including, the 2001 asphalt plant. The practical effect of this decision is that the current asphalt plant is not verified as a nonconforming use exempt from land use laws. On remand, the County must consider the nature and extent of the non-conforming use without including the alterations from 2001 forward. In the meantime, the plant should not be allowed to continue operations unless and until it is determined to be a lawful use of the property in this residential area.