Ferguson Creek Investment v. Lane County

In assessing the lawfulness of a nonconforming use, the moving party has to show that the use was lawfully established before the relevant zoning laws went into effect. If the use was lawfully established, the movant must show that the use had been continuous. The ‘use’ is specific to the building, not the property it is on.

Petitioner sought judicial review of a Land Use Board of Appeals order which determined that the county had erred when it looked back more than 20 years to determine whether a house built on the property is the same or different dwelling from a farmhouse on that same property. Petitioner argued that LUBA misconstrued ORS 215.130(11) and incorrectly concluded that the current dwelling was lawfully established prior to 1980. The Court of Appeals held that the county was correct, contrary to LUBA’s holding, in looking back as far as necessary beyond the 20-year limitation to determine the house at issue was lawfully established as a nonconforming use. Further, the court held that the newly-built house at is a different dwelling than the original farmhouse and therefore, respondent had failed to prove that the use of the newly-built house was lawfully established prior to the zoning laws taking effect. REVERSED AND REMANDED.