Grabhorn v. Washington County

A Land Use Board of Appeal's decision may not lack substantial evidence when the date of lawful nonconforming presence is in dispute, if there would not have been a lawful presence under either date presented by petitioner.

Petitioners Howard Grabhorn and Grabhorn, Inc. (Grabhorn), appealed the Land Use Board of Appeals (LUBA) final order that denied the verification of petitioner's composting facility as a lawful nonconforming use. On appeal, the petitioners challenged the decision as lacking substantial evidence. To prove a nonconforming use, the petitioner needed to establish a 20 year uninterrupted period, and show the use was lawful at the time when the zoning ordinance was enacted. Petitioner satisfied the first prong, but as to the second, LUBA cited 1984, as opposed to 1962 as the when the property was first zoned. While petitioner disagreed with the LUBA’s decision as to when the use began, the court noted that regardless of whether 1962 or 1984 was used, petitioners did not have a lawful presence the day it was made nonconforming. Further, all evidence regarding use of the property from 1962 and beyond was examined. Affirmed.