Application of ordinances and comprehensive plan
- alteration of nonconforming use
Source:
Section 215.130 — Application of ordinances and comprehensive plan; alteration of nonconforming use, https://www.oregonlegislature.gov/bills_laws/ors/ors215.html
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Notes of Decisions
Property owner acquires vested right to proceed with construction of nonconforming use if, prior to enactment of adverse zoning, he has made substantial beginning of construction or if substantial costs toward completion of job have been incurred. Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)
In determining whether property owner has acquired vested right to nonconforming use, court shall consider various factors enumerated. Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)
Question of whether landowner has proceeded far enough with proposed construction to have acquired vested right to nonconforming use is issue of fact to be decided on case-by-case basis. Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)
Local comprehensive plans, zoning ordinances, and amendments thereto are subject to local initiative and referendum when the plan, ordinance or amendment is legislative in nature; overruling Tatum v. Clackamas County, 19 Or App 770, 529 P2d 393 (1974). Allison v. Washington County, 24 Or App 571, 548 P2d 188 (1976)
Where quarry operations conducted on federally-owned property had diminished to no more than incidental use at time property was zoned for farm-forestry use, purchasers of property were not entitled to operate quarry as nonconforming use. Lane County v. Bessett, 46 Or App 319, 612 P2d 297 (1980), Sup Ct review denied
Where use of land prior to enactment of zoning ordinance was sporadic and intermittent, it gave rise to permitted nonconforming use limited to sporadic and intermittent use that existed prior to enactment of zoning ordinance. Polk County v. Martin, 292 Or 69, 636 P2d 952 (1981); Warner v. Clackamas Co, 111 Or App 11, 824 P2d 423 (1992)
Unless or until new city incorporated within acknowledged urban growth boundary adopts its own plan providing otherwise, new city must comply with acknowledged plan and implementing land use ordinances for geographic area of which it is part. City of Salem v. Families for Responsible Govt., 298 Or 574, 694 P2d 965 (1985)
This section means that newly incorporated city remains under county comprehensive plan, including designations as rural land, until city adopts own plan and urban growth boundary. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)
Provision in city’s plan that county’s plan would apply until territory was annexed did not constitute election by city to make its own plan applicable when its plan provided that its zoning designations of unincorporated areas were recommendations. Multnomah County v. City of Fairview, 96 Or App 14, 771 P2d 289 (1989)
Where county’s decision on comprehensive plan map amendment was not complete at time that affected area was annexed to city, this section did not authorize city to complete proceedings and take action to finalize county’s decision. Standard Ins. Co. v. City of Hillsboro, 97 Or App 625, 776 P2d 1313 (1989)
Nonconforming use status depended on whether various operations share common use, not nature of business conducting use. Hendgen v. Clackamas County, 115 Or App 117, 836 P2d 1369 (1992); 119 Or App 55, 849 P2d 1135 (1993)
Subsection permitting replacement of nonconforming building if destroyed by natural disaster does not prohibit replacement of nonconforming building not destroyed by natural disaster under subsection permitting alteration. McKay Creek Valley v. Washington County, 122 Or App 28, 857 P2d 184 (1993)
Establishment of “rebuttable presumption” of continuous nonconforming use requires county to prove lack of continuity by preponderance of evidence. Lawrence v. Clackamas County, 164 Or App 462, 992 P2d 933 (1999)
Vested right to complete nonconforming use is subject to loss through abandonment or discontinuance in same manner that nonconforming use is subject to loss. Fountain Village Development Co. v. Multnomah County, 176 Or App 213, 31 P3d 458 (2001)
Decision rejecting nonconforming use application under pre-1999 law does not prevent filing subsequent application under 1999 amendment limiting nonconforming use verification to 20-year period preceding application date. Lawrence v. Clackamas County, 180 Or App 495, 43 P3d 1192 (2002), Sup Ct review denied
Alteration of nonconforming use to comply with “lawful requirement” is permitted only in situations where alteration is necessary to comply with specific or immediate directive by governmental authority. Cyrus v. Deschutes County, 194 Or App 716, 96 P3d 858 (2004)
To verify nonconforming use, petitioner must prove existence, continuity, nature and extent of nonconforming use for specified period of time preceding application date and must prove that nonconforming use was lawful at time zoning ordinance or regulation went into effect. Aguilar v. Washington County, 201 Or App 640, 120 P3d 514 (2005), Sup Ct review denied
This section does not apply to nonconforming use regulation by cities. City of Mosier v. Hood River Sand, Gravel and Ready-Mix, Inc., 206 Or App 292, 136 P3d 1160 (2006)
“Lawful use” of building, structure or land refers to laws concerning use of building, structure or land, such as zoning and land use regulations, not to laws regarding compliance with business or occupation licensing. Morgan v. Jackson County, 290 Or App 111, 414 P3d 917 (2018), Sup Ct review denied
This section and county implementing ordinance did not extinguish landowner’s claim under Ballot Measure 49 (2007) because landowner’s use complied with Ballot Measure 37 (2004) waiver and landowner had vested right on December 6, 2007, sole date that applies under section 5 (3) of Measure 49 to determination of vested rights, but county erred in determining that landowner had vested right to complete subdivision that landowner did not intend to construct on December 6, 2007. Oregon Shores v. Board of Commissioners, 297 Or App 269, 441 P3d 647 (2019)
Subdivided lots, without houses, are not established uses that could become allowed nonconforming uses when lots are transferred to buyers. Friends of Yamhill County v. Board of Commissioners, 298 Or App 241, 446 P3d 548 (2019), Sup Ct review denied
Attorney General Opinions
Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702; referendum power against a county “comprehensive plan” or a zoning ordinance, (1974) Vol 36, p 1044; non-home rule county courts or commissions general legislative powers, (1974) Vol 36, p 1070
Law Review Citations
4 EL 297 (1974); 68 OLR 976, 984 (1989)