Meyer v. Jackson County

Under Jackson County Land Development Ordinance (LDO) 11.2.1(A) an existing nonconforming use may be changed "to another, no more intensive nonconforming use" if "the proposed new use will have no greater adverse impact on the surrounding neighborhood[,]" and where a change from a nonconforming concrete batch plant to a nonconforming asphalt batch plant results in a greater risk of fire and explosion to a surrounding neighborhood it will be deemed to have a greater adverse impact on the surrounding neighborhood.

Paul and Kristen Meyer appealed a county decision denying their request for after-the-fact approval of an alteration of a nonconforming concrete batch plant to convert that concrete batch plant to an asphalt batch plant. The batch plant is located on a 10.98-acre parcel of land in Jackson County adjacent to Interstate 5, and is the subject of three previous appeals to LUBA.

In their third assignment of error, the Meyers challenged the adequacy of the county’s findings regarding greater risk of fire and explosion from the asphalt batch plant in comparison to the former concrete batch plant because the Meyers’ asphalt batch plant allegedly “operates differently than asphalt batch plants where there have been fires and explosions.” LUBA denied that assignment of error, having found that the county had acknowledged in its findings the Meyers’ testimony regarding a diminished risk of fire and explosion at their asphalt batch plant when compared to others, but that the county’s findings were not defective in the way that the Meyers alleged, and thus provided no basis for reversal or remand. The Meyers’ fourth assignment of error challenged the county’s findings concerning fuel storage, proximity of the asphalt batch plant to the surrounding neighborhood, and a comparison between the number of employees at the former concrete batch plant and the current asphalt batch plant as unsupported by substantial evidence. LUBA disagreed with the Meyers’ arguments and denied that assignment of error as well, noting that the county had accounted for testimony in support of the relative safety of the Meyers’ manner of producing asphalt compared with other asphalt batch plants, but it found that such testimony was not dispositive, and, more importantly, the county determined that the Meyers’ asphalt batch plant would be more susceptible to explosions than the prior concrete batch plant. AFFIRMED.