Grabhorn Inc. v. Washington County

Pursuant to Oregon v. Portland Gen. Elec. Co., 52 Or 502 (1908), a petitioner bringing an equitable estoppel claim against a local government must establish that (1) the local government made a false representation; (2) the false representation was made with knowledge of the facts; (3) the petitioner was ignorant of the truth; (4) the false representation was made with the intention that it should be acted upon by the petitioner; and (5) the petitioner was induced to act upon the false representation; where any one of the elements are not met, estoppel will not lie against the local government.

Howard Grabhorn and Grabhorn, Inc. (petitioners) appealed the county’s decision denying their application for verification that a composting facility on six acres of high-value farmland, zoned Exclusive Farm Use (EFU), was a lawful nonconforming use. The single lot composting facility originated in the 1950s as a landfill. Despite zoning ordinances prohibiting the establishment of landfills on high value farmland, it was allowed to continue as a lawful nonconforming use beginning in the 1960s, pursuant to county zoning ordinances and the enactment of Land Conservation and Development Commission administrative rules applying to the EFU zone. The landfill ceased operation in 2009. The central issue on appeal was when the composting facility was established.

In their first assignment of error, petitioners contended that a recycling operation at the landfill had engaged in wood waste “composting” prior to 1962, and therefore the current facility constituted a lawfully established nonconforming use under ORS 215.130(5) and county regulations. Petitioners additionally relied on the landfill’s 1991 land use compatibility statement (LUCS) to substantiate the lawfulness of the facility. LUBA denied that assignment of error, determining, based on its definition of a composting facility as “[A] facility that employs the biological decomposition of waste to produce ‘compost,’” that composting did not begin until 1989, and that the 1991 LUCS, partially because it never explicitly used the word “compost,” did not include a composting facility. LUBA additionally denied petitioners’ third assignment of error, arguing that the county should be equitably estopped from denying the application because of its repeated representations that the facility was actually a lawful use. LUBA held that in order for it to apply equitable doctrines, the petitioner must establish that LUBA has statutory authority to do so, which the petitioners failed to do. The second and fourth assignments of error were also denied. AFFIRMED.