Underwood v. Clackamas County

Under ORS 215.130(9), in determining whether a proposed alteration to a nonconforming use will have any “greater adverse impact on the neighborhood,” the county must compare the proposed alteration with the originally verified nonconforming use.

In 2011, a candy-making and sales business on the subject property received nonconforming use verification. In 2018, the county approved an application to alter the nonconforming use to allow marijuana production and processing, with a condition limiting the number of employees on site at any one time to 12. In 2019, intervenor applied to alter the nonconforming use again to allow baking and food processing. Under ORS 215.130(9), the county may approve alterations to nonconforming uses if they will have no greater adverse impact on the neighborhood. Concluding that the traffic impacts under the proposed alteration would not be greater than those that could be generated under the 2018 alteration, the county approved the application with another condition limiting the number of employees on site at any one time to no more than 12. This appeal followed.

In the first assignment of error, petitioner argues the county improperly construed ORS 215.130(9). Specifically, petitioner argues the county was required to compare the traffic impacts under the proposed alteration with those that are currently generated by the nonconforming use which, at the time of intervenor’s application, were less than what could have been generated under the 2018 alteration. LUBA agrees with the county that, under ORS 215.130(9), the county must compare the proposed alteration with the originally verified nonconforming use. The first assignment of error is therefore denied.

In the third assignment of error, petitioner argues the county’s decision is not supported by substantial evidence. Because, pursuant to ORS 215.130(9), the 2018 alteration could not have had greater adverse impacts than the originally verified nonconforming use, LUBA agrees with the county that it could rely on the 2018 alteration as evidence of the adverse impacts generated by the originally verified nonconforming use. In turn, because the record includes evidence that the proposed alteration would generate 10 to 15 cars per day while the 2018 alteration allowed up to 12 employees at any one time and relied on delivery trucks and small loading vans without restriction on the number of visits, LUBA agrees with the county that a reasonable person could have concluded that the proposed alteration would not have greater adverse impacts than the originally verified nonconforming use. The third assignment of error is therefore denied and the county’s decision is AFFIRMED.