Willamette Law Online - Oregon Land Use Board of Appeals Updates - Rogue Advocates v. Jackson County

Court: Oregon Land Use Board of Appeals
Area(s) of Law: Land Use
Date Filed: 03-06-2015
Case #: 2014-100
Judge(s)/Court Below: Opinion by Ryan
Full Text Opinion

When a hearings officer’s decision is not required to specify the precise nature and extent of a nonconforming use, findings that would be relevant to a future application are dicta which do not provide a basis for reversal or remand on a challenge to the sufficiency of the evidence.

In Rogue Advocates v. Jackson County (LUBA No. 2013-103, April 22, 2014), LUBA reviewed a decision of a hearings officer denying nonconforming use verification for a batch plant modified from concrete to asphalt. The hearings officer had concluded though that this change did not alter the legal nonconforming use. LUBA remanded at that time for the hearings officer to “verify the nature and extent of the lawful nonconforming batch plant use, without considering … any unapproved alterations.” The hearings officer again denied the verification, and although Rogue Advocates received a favorable decision, they appealed to LUBA.

Rogue Advocates argued that the hearings officer’s decision, to the extent that it verified the concrete batch plant use, improperly considered evidence of the unapproved alterations. LUBA characterized the hearings officer’s decision as “not attempt[ing] to delineate the precise nature and extent of the 1992 batch concrete plant, for purposes of a future application for an alteration.” The board found that nothing in the hearings officer’s findings recited the scant evidence regarding the batch plant as it existed in 1992, but was just citing to evidence that may be relevant on a future application for alteration. LUBA held that nothing in the county development code or their remand required the hearings officer to “delineate, in this proceeding on this application, the precise nature and extent of the concrete batch plant operation as it existed in 1992” [emphasis in original]. Therefore the challenged findings of the hearings officer were dicta that did not provide a basis for reversal or remand. Rogue Advocates also argued that the conversion was a discontinuance of the nonconforming use. LUBA held that the issue was waived for failure to raise below, and that an alteration of a nonconforming use is a continuation of the use. AFFIRMED.