Agenda - Planning Commission - 03/06/2000

Home

Page 8 January 25, 2000 Z.B. Nonconforming Use -- Owner claims continuous use of 40-year-old go-cart racetrack .: OREGON (12/22/99) -- Lawrence owned'property outside Of Damascus} She maintained a single-family home,'an auto'repair business; and a quarter-mile- loop go-cart racetrack. Lawrence's prede, cessor OPened the track to public use in 1960.' In 1964, the county enacted a z~ning oi:dinance deClaring'the track an unlawful U~e._ .The owners continued td~'3iS~rate' ~he tracE'at l~ast Until' 1968~ Lawrence bought the property in 1971 aiid~'61~nited the track frOm that date:bn. Lawsence's 3perafion'of the track g~fi~r'~iCd fi hUrh)~er of Coi~piain~' from neighboring residei~ts and Whs: th~ subject '6'f se3ei?'~"~ff0r%ment a6fi'O~s: In resp~n~'~ t6 ' ............"' ~ "''?' ~'~''r ........ ~. ,~ one of the enforcement actions; Lawrence filed ~ hpplication seek- ing veri.fid'ifi0~i' th~ii th~'traCk Was'~i prr~'~i~d'non~ohf0~fing us'k:" :':"' "' The'plug' dii~eCt°r'deriied the ai~i~ii~htion:i A~0rding tO ~'"di~t0r,' a noncOnforming uSe bould continue as 10~'}'aslit ~iS not aband°nedi'The: direc- tor f6uhd L~iwreri~e failed to eitablish th~'~h'acl~'~0htinued to operate between 1968 and I970.' Lawrenc~ aPPealed.' me hearing's 0~i~i~i ~10wed her._, io' ~Ubmit a~iditi0nal evidence but Stated he would give "c0risiderable deference'; to'the director's findings and 'would n0i, without comp6~h}'~e"asons, allow Lawrence'to bol- ster her appeal with evidence not given to the director. Lawrence argued she established sh~ ~U'Se~I the'go-cart track for the preced- ing 10 years. According to Lawrence, t~.county had the responsibility of es- tablishing the use was not continuous. ~' "./'.:".' The hearings officer rejected her arVin'eht. Th; hearings, officer noted a single witness testified the go-cart business was discontinued for an unspeci- fied period of time during 1967 or 196.8.., The hearings officer held this was sufficient evidence to show the use was not Continu°uS.~: i' :': .i'-::' :'i" · Lawrence sohght review before the Land Use Board ~ofAPpeals (LUBA). Lawren~ sued. She argued t~ecause'lt was uncontestecl she e~t~blish~d th~' existence, continuity, nature, and exten~ o~ th e'-ii'~~ °fher property for the preceding 10-year'period,' she Was entitled t?a pt:td;'6f, Continuity. The c~,unty' repaed thore w~ Silbstantial evidence to Sh~rt thehearings officer's decision.. DEC $ ON:.R.e. Ve'rse'a, and returned i6 the lower court. . " The COunty failed to establish the us~' ~as n6t continUoUs2 . Under state law, Lawrence established the presumption her use was con- tinuous proving it had 6p'er~ted for th~' I0 years !mmediately preceding the date of her application. The single wimeSs~ testimony was 'insufficient to es- tablish the use of the racetrack had been discontinued. Citation: Lawrence v. clack~mas County, Court of ApPeals of Oregon, No. CA A106968 (1999). ~:~ see also: Roach v. Jackson County, 949 P. 2d 1227 (1997). see also: Milburn and MiIburn, 780 P. 2d 7.75 (1989).' i-