Pioneer Asphalt Inc. v. Umatilla County

Under OAR 660-023-0180(5)(g), the term “currently approved” can be supported by substantial evidence that the operator held a conditional use permit issued by the county, and the operator is in good standing with the conditions placed on the permit.

Humbert Asphalting was issued a conditional use permit by Umatilla County (County) in 1987 to operate an asphalt plant on 30 acres. In 1992 the county approved a modification which imposed the same conditions of approval as the 1987 permit, and required that the applicant be issued a county zoning permit prior to the operation of the batch plant. Additionally, the 1992 permit required an annual review to determine “if all the conditions of approval have been met.” Letters from the planning department in 1993, 1996, 1998, 1999, 2000, 2002, and 2006 all state that the county renewed the conditional use permit. The 2006 letter stated that no more yearly reviews were required unless complaints were received.

Central Washington Asphalt Inc., et al., (Central) applied for a comprehensive plan text amendment to add 33.26 acres of property zoned for Exclusive Farm Use to the comprehensive plan’s Rock Material Inventory. Central also applied for a zoning map amendment to apply the Aggregate Resources Overlay to the property. Both amendments were granted by County. Pioneer Asphalt, Inc. (Pioneer), a competing quarry operator, appealed the county’s approval.

Pioneer argued that the 1992 Permit was expired and should be revoked because (1) a zoning permit was not obtained prior to the operation of the batch plant, and (2) the conditions of the 1992 Permit have not been completed. Petitioners argued that the batch plant was operating without being “currently approved” under OAR 660-023-0180(5)(g), which addresses how a “currently approved aggregate processing operation” can “process material from a new or expansion site without requiring a reauthorization . . . .” The County interpreted the phrase “currently approved” to mean that the permit authorizing the batch plant remained effect,. LUBA agreed with the interpretation, and upheld County’s determination that the 1992 Permit had not expired and all conditions had been met by Central. Pioneer also argued that the county misconstrued Umatilla County Development Code (UCDC) 152.593 governing nonconforming uses, stating that the asphalt batch plant had been abandoned, and was therefore in violation of UCDC 152.593. AFFIRMED.