Scenic Fruit Company, LLC v. Multnomah County

(1) Where a local government enters evidence into the record regarding the nature and extent of a nonconforming use, but where the applicant testifies that the nature and extent is less than that indicated by the evidence, a local government does not err by ignoring the evidence it entered into the record and relying instead on the applicant’s testimony. (2) Where a local code provision provides that a presumption that a nonconforming use has been lost due to reduced intensity can be rebutted by evidence that “long-term fluctuations are inherent in the type of use being considered,” while evidence that the applicant’s business model depends entirely on sporadic and intermittent local market demand can serve that purpose, an applicant must cite evidence linking the reduction in question to local market conditions or other circumstances that could be described as “long-term fluctuations” “inherent in” the industry. (3) Where a local government finds in its verification of a nonconforming use that the use complies with a particular local code provision and therefore requires no nonconforming use verification with respect to that provision, the local government errs by subsequently limiting the use more than the local code provision where the local code provision has not changed.

Petitioner has operated a fruit processing plant on the subject property since before zoning was applied. In 1977, the property was zoned Multiple Use Agricultural-20 acre minimum (MUA-20), in which such plants are conditional uses. In 2008, petitioner applied for verification of its plant as a nonconforming use. The county approved the application, verifying petitioner’s right to process 15 million pounds of fruit per year. In 2018, the county requested that petitioner apply for another verification to resolve any ambiguities as to the nature and extent of the use verified in 2008 and determine whether any portion of the use had since been lost or expanded.

Under Multnomah County Code (MCC) 39.8305(B)(7), a “reduction of scope or intensity of any part of a [nonconforming] use . . . for a period of two years or more creates a presumption that there is no right to resume the use above the reduced level. . . . [which] may be rebutted by substantial evidentiary proof that the long-term fluctuations are inherent in the type of use being considered.” Because only 10 million pounds of fruit were processed per year from 2011 to 2013, and because this reduction was due to market demand and not cyclic fluctuations affecting the industry, the county concluded petitioner lost the right to process more than 10 million pounds of fruit per year. Under MCC 39.4320(B)(2), fruit processing plants in the MUA-20 zone are limited to fruit “primarily raised or grown in the region.” The county therefore concluded the 2008 decision limited petitioner’s source of fruit to the Willamette Valley. This appeal followed.

In the first assignment of error, petitioner argues the county ignored a 2013 letter—which the county itself entered into the record—indicating that while petitioner purchased less than 10 million pounds of fruit directly from farmers, it purchased additional fruit from other processors, totaling the 15 million pounds verified in the 2008 decision. Because petitioner informed the county during this proceeding that it purchased only 10 million pounds of fruit per year from 2011 to 2013, because petitioner did not inform the county that that figure was based on only one source of fruit, and because the county relied on that figure, LUBA agrees with the county that it did not err in failing to consider the letter, even though county staff submitted it into the record.

Petitioner also argues the county erred in concluding the reduction to 10 million pounds of fruit was not due to “long-term fluctuations” “inherent in” petitioner’s industry, simply because it was due to market demand. While the Oregon Supreme Court has held that a nonconforming rock quarry was not abandoned or interrupted despite significant fluctuations in mining activity over many years where the business model depended entirely on sporadic and intermittent local market demand, petitioner cites no evidence linking the reduction from 2011 to 2013 to local market conditions or other circumstances that could be described as “long-term fluctuations” “inherent in” petitioner’s industry. The first assignment of error is therefore denied.

In the second assignment of error, petitioner argues the county erred in relying on MCC 39.4320(B) to conclude the 2008 decision limited its source of fruit to the Willamette Valley, since that provision is a conditional use standard and therefore has no bearing on the nature and extent of its nonconforming use. While LUBA agrees with petitioner that MCC 39.4320(B) was not directly applicable to the 2008 decision, LUBA infers the 2008 decision merely concluded that petitioner actually did process fruit “primarily raised or grown in the region,” thereby conforming with MCC 39.4320(B) and requiring no nonconforming use verification in that respect. However, because MCC 39.4320(B) requires only that plants process fruit primarily from the region, because the dictionary indicates “primarily” means “more than 50 percent,” and because MCC 39.4320(B) has not changed since the 2008 decision, LUBA agrees with petitioner that the county erred in limiting it to fruit exclusively from the Willamette Valley. The second assignment of error is therefore sustained, and the decision is REMANDED.