Agenda - Planning Commission - 02/06/1996

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Page 6 ~ January 15, 1996 goB. [ Conditiogal Use m Use Allegedly Expanded Through Overlay Zoning Procedur~e MissiOn Bottom Association Inc. v. Marion County, 901 t~.~d 898 (Oregon) J995 Mors~ Brothers Inc. used 115 acres of a 490-acre site in Marion County, Ore., for ~urface mining, extracting, and processing minerals and aggregate into asphalt cement. The site was in an exclusive farm use zone. Morse Brothers operated t~he 115-acre site, which was within two miles of a planted vineyard, under a 1979 conditional use permit. In 199~, the county granted Morse Brothers' request to amend the county's compreher~sive plan and apply a mineral and aggregate overlay zone to the entire 4901acres. The decision allowed mining and extraction operations in parts of th~ site that were outside the ll5-acre area subject to the 1979 condi- tional use ~ermit. A stat{ statute prohibited approval of applications that would allow batching agd blending of minerals and aggregate into asphalt cement within two miles 6, f a planted vineyard. However, the statute "grandfathered" opera- tions alrea~ly approved as of October 1989, and the subsequent renewal of such existi~ag operations. Missio~ Bottom Association Inc. challenged the amendment. The Land Use Board ~f Appeals rejected most of the association's arguments. The ass¢ciation sued the county and Morse Brothers, asking the court to review the Doard's decision. The association claimed the county had to use a conditionaliuse permit process rather than an overlay zoning procedure -- to allow miriing and extraction on Morse Brothers' site. The association argued that the couCty's decision effectively expanded the uses the 1979 permit author- ized. Therefore, the expanded uses lost their grandfathered status under the statute. Morse B~rothers argued that the authorization of other aggregate-related uses on property near its existing operations did not automatically result in the expansidn of its existing hatching and blending operations. The county and Morse Brothers argued that the association simply assumed the applica- tion of the overlay zone would have such an effect. DECISION: iAffirmed. The boar~l properly upheld the county's decision to apply the overlay zone. The county did not have to use a conditional use permit process. State law did not requi~e the county to use that process instead of an oyerlay zone when allowing miqing and extraction uses. The association failed to claim the county made erroneous findings or conclusions qoncermng the relationship between the new mining and extrac- tions, and th{ intensity and scope, of the batch plant operations as authorized by the 1979 ~ermit. The association advanced "nothing but postulation" to support its claim that the county's decision effectively expanded Morse Brothers' batching and blending opqrations. The frequency of batching and blending, the total