Rogue Advocates v. Jackson County

Local government decisions which verify or alter non-conforming uses of property must apply the appropriate statutory framework, which includes ORS 197.763 (notice and hearing requirements), ORS 215.130 (state requirements for nonconforming use statutes), and the applicable local land development ordinance.

Intervenors-respondents, Donald and Jean Rowlett, after being denied a conditional use permit, sought declaratory relief from Jackson County Circuit Court. The “Findings of Fact, Conclusions of Law and Decree” (Original Decree) stated that the Rowletts had a vested right that permitted them to complete certain development of the property as a non-conforming use. In 2013, Jackson County and the Rowletts entered into a second stipulation to amend the Original Decree (Second Stipulation) that revived development rights that had expired, and determined that a number of buildings and uses had been “lawfully established.” Petitioners, Rouge Advocates, argued that both the county and circuit court erred when executing the Second Stipulation to expand the non-conforming use of the property due to lack of compliance with the substantive and procedural requirements that govern the expansion of a non-conforming use.

Since LUBA’s review is limited by ORS 197.835(9) to errors made by local governments or special districts, LUBA limited its review to the allegation that the county erred. Rogue Advocates cited to ORS 197.763 (notice and hearing requirements), ORS 215.130 (state minimum requirements for non-conforming use statutes), and Jackson County Land Development Ordinance (LDO) Chapter 11 (standards for reviewing applications for verifying, altering, or expanding non-conforming uses), arguing that these provisions must apply to any decision which verifies or alters non-conforming uses. LUBA agreed with Rogue Advocates, stating that land use decisions must be made in accordance with the aforementioned appropriate land use statutory framework. LUBA determined that the county failed to properly apply the standards. Rouge Advocate’s assignment of procedural error was rejected because the petition for review failed to include an argument that the county’s failure to follow applicable procedures prejudiced its substantial rights. REMANDED.