Morgan v. Jackson County

Under ORS 215.130(5), for a structure or land use to be “lawful,” an applicant must be in compliance with federal, state or local regulations or licensing requirements that apply to some aspect of the land use or structure that are integrally related to the zoning or land use regulation requirements.

The challenged decision approved intervenors-respondents’ (intervenors) application with the county to verify an auto yard, including three storage structures, as nonconforming pursuant to ORS 215.130(5)-(10) and Jackson County Land Development Ordinance (LDO) chapter 11. The auto yard is located on a 10-acre parcel zoned for exclusive farm use (EFU).  The central issue on appeal is whether the auto yard use is a “lawful use” for the purpose of ORS 215.130(5).

Petitioner contends that intervenors did not demonstrate the auto yard use was a “lawful use” on September 1, 1973, the relevant date for purposes of ORS 215.130(5). Under ORS 215.130(10)(a), an applicant seeking to verify a nonconforming use can initially demonstrate the existence, continuity, nature and extent of the use for the 10-year period preceding the date of application. Doing so creates a rebuttable presumption that the use “lawfully existed at the time the applicable zoning ordinance or regulation was adopted and has continued uninterrupted until the date of application,” even if the use became nonconforming more than 10 years ago. If that presumption is rebutted, the applicant must demonstrate the existence, continuity, nature and extent of the use back in time to the date the use became nonconforming. Applicant must demonstrate that the nonconforming use was a “lawful use” on the date it became nonconforming, even if that date is more than 20 years from the date of application. Intervenors’ operated the auto yard without the required DMV dealer license between 1971 and 1973, which is not only unlawful for purposes of ORS 215.130(5) but also a criminal act. An activity that is a crime cannot be a “lawful use” under ORS 215.130(5). REMANDED.