Morgan v. Jackson County

(1) An applicant need not submit physical or visible evidence in order to demonstrate the establishment of a nonconforming use, nor may a county reject verification of a nonconforming use simply because the county deems the size or scope of the use to be too small. (2) In determining the nature and extent of a nonconforming use, a county must be careful to describe it in a manner that does not inadvertently allow unauthorized expansions or alterations.

Petitioner appeals a county decision on remand, verifying an “auto yard” as a nonconforming use. In a prior appeal of the same decision, petitioner argued the county erred in failing to adopt findings regarding the nature and extent of the auto yard use before September 1, 1973, the date on which contrary zoning was adopted. LUBA rejected this argument because, under ORS 215.130(11), the county may not require the applicant to prove the nature and extent of a nonconforming use beyond a 20-year lookback period—even if the use at that time represents an unauthorized expansion of the use since it became nonconforming. Nonetheless, LUBA remanded the decision for a plenary evidentiary reevaluation. The county once again verified the nonconforming use, and this appeal followed.

In the first assignment of error, petitioner challenges the county’s finding that an auto yard use existed on the subject property prior to September 1, 1973, because aerial photographs show no physical indications of an auto yard use prior to 1975. Intervenors respond that, under the “law of the case” doctrine, because LUBA rejected a similar argument in the prior appeal, it can no longer form the basis for any challenges on remand. Because petitioner now argues that there must be objective or visible physical evidence of a use in order for it be recognized as a nonconforming use, and because this argument is different from the one made in the prior appeal, LUBA concludes it is not barred. However, on the merits, LUBA agrees with intervenors that an applicant need not submit physical or visible evidence in order to demonstrate the establishment of a nonconforming use, nor may the county reject verification of a nonconforming use simply because the county deems the size or scope of the use to be too small. Because a reasonable person could rely on the affidavits and other evidence on which the county relied to support its conclusion, the first assignment of error is denied.

Under Jackson County Land Development Ordinance 11.2.2(A), if a nonconforming use is discontinued for more than 2 years, it is lost. In the second assignment of error, petitioner argues the county erred in rejecting its argument that one of the components of the auto yard use, the purchase of used automobiles at off-site auctions, had been discontinued between 2008 and 2011. While LUBA agrees with petitioner that a discrete element of a nonconforming use can be discontinued while leaving the remaining elements in place, LUBA agrees with the county that bringing automobiles purchased off-site onto the subject property is not a separate and distinct land use, but rather the first step in the larger auto yard use, and that a temporary hiatus in that first step does not mean that any part of the nonconforming use was discontinued. LUBA also agrees with the county that intervenors’ temporarily ceasing to obtain automobiles at auction does not demonstrate that they ceased to obtain automobiles from other sources. The first and second subassignments of error are therefore denied.

Also in the second assignment of error, petitioner argues the county failed to limit the number of vehicles that can be stored on-site, which would potentially allow intervenors to impermissibly increase the number of vehicles stored there over historic levels. The county concluded that limitations on the physical extent of the auto yard use based on what was visible in aerial photographs 20 years before, and on the number of vehicles that could be sold each year based on the number sold 20 years before, would prevent this expansion. LUBA agrees with petitioner that, in determining the nature and extent of a nonconforming use, the county must be careful to describe it in a manner that does not inadvertently allow unauthorized expansions or alterations. Because neither of the limitations imposed by the county would necessarily prevent intervenors from storing increased numbers of vehicles on-site, the third subassignment of error is sustained and the county’s decision is REMANDED.