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State Court of Appeals Denies Another Non-Farm Use of Rural Land

May 18, 2012

The Oregon Court of Appeals put a major dent in an applicant’s plan to mine and process aggregate.  In Tonquin Holdings v. Clackamas County,  a county hearings officer had approved the plan subject to numerous conditions.  The Land Use Board of Appeals (LUBA) remanded the approval back to the county. The applicant appealed LUBA’s decision and the appeals court upheld the remand.

The case posed two main issues of dispute.  First, the hearings officer had ruled that the plan did not constitute an “industrial project,” as that term is used in the code.  That ruling absolved the applicant of having to meet several approval standards.  LUBA held that the industrial project standards do apply and the court agreed.

The hearings officer had noted that the code does not list “surface mining” as an industrial use.  LUBA and the Court of Appeals found this thinking a bit too technical.  In their mind, the term “industrial project” is not necessarily limited to those uses listed as industrial and surface mining is clearly industrial in nature.

The second significant subject of dispute was the impact the project would have on surrounding properties. The hearings officer would not allow the applicant to excavate certain wetlands on the site because of the impacts that activity would have on adjacent wetlands.  On appeal, the applicant cited a prior case in which the County approved a proposed airport expansion that would cause the loss of ten adjacent rural dwellings.  As such, the applicant argued, impacts on adjacent properties alone may not trigger denial.

The court was again not persuaded.  It noted that the area surrounding the proposed airport could accommodate the housing units that the expansion would take out.  In the present case, to the contrary, the impact would be destruction of wetland, “a finite and unique resource that is rare and exists only in a very limited geographic area.”   (The court did not observe whether the surrounding area included land on which the applicant could create new wetlands.)

Though this case applies directly only in Clackamas County, it certainly shows the increased difficulty encountered by property owners seeking approval to conduct non-farm uses on rural lands.

If you have any questions, please contact me at TWyman@dunncarney.com.

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