- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Municipal Law
- Date Filed: 01-16-2015
- Case #: 2014-067
- Judge(s)/Court Below: Opinion by Holstun
- Full Text Opinion
S. St. Helens, LLC, applied for and was denied a sensitive lands permit to allow rock removal within a wetland protection zone. The proposal was to remove 500,000 cubic yards of basalt rock from the property zoned “Apartment Residential” (AR) or “General Residential” (5R) with a small portion of the SW corner designated Wetland J-3. This wetland designation has a 75’ protection zone that fell within the proposal area, necessitating the sensitive lands permit. The proposal would remove rock to 18’ below grade and then add 18’ of fill to reach level grade. The 500,000 cubic feet of rock was to be sold for $7.5 million, would take 12-16 months to remove, and would involve considerable blasting. The city planner initially approved, but amended the decision to deny the application, classifying the proposal as “mining and/or quarrying” and “surface mining.” The planning commission affirmed the city planner’s decision, and S. St. Helens appealed to LUBA.
S. St. Helens argued that the planning commission lacked the authority to independently characterize the proposal and determine whether the proposal is correctly characterized as allowed under SHMC 217.04.060. The planning commission recharacterized residential site grading and excavation into separate uses as well as recharacterizing the use. After significant discussion of terminology used in the SHMC and the ORS, the ambiguous term “minerals” that was undefined in SHMC was determined to include rocks; therefore the Proposal was not a use allowed within that zone. LUBA denied the first assignment of error stating that the planning commission did not misconstrue the applicable law and the planning commission does have the authority to exercise judgment when drawing lines between excavation in preparation of an allowed use such as residential development and illegal mining activity. S. St. Helens argued that the city could not use unlisted use criteria when it attempted to consider if the proposal could be approved on a different basis. LUBA stated that this argument provided no basis for remand because the city trying to find another basis to approve S. St. Helens Proposal would not be a reversible error. AFFIRMED.