Rogue Advocates v. Jackson County

Jackson County Land Development Ordinance 6.4.2(D) does not allow the establishment of accessory uses, such as processing aggregate material or material that is not “naturally occurring,” unless a primary or principle use is established first, such as aggregate mining on the site.

     Rogue Advocates and Christine Hudson (petitioners) appealed a planning staff decision which concluded that a proposed aggregate processing use was permitted in the county’s Rural Residential (RR-5) zone. RR-5 zoned property prohibits permanent asphalt plants pursuant to Jackson County Land Development Ordinance (LDO) 13.2.2(C)(2). As a result of Meyer v. Jackson County, __Or LUBA __ (LUBA No. 2015-072, January 11, 2016), LUBA determined that the asphalt batch plant on intervenors’ property constituted an “unlawful alteration of a prior nonconforming concrete batch plant.” Subsequently, intervenors gained county approval to continue all batch plant related activities except for the batch plant itself.

     Petitioners argued that the county planning staff misconstrued the LDO when determining that intervenors’ proposed use was allowed as a “Mineral and aggregate” use. The petitioners contended that the proposed use did not fit within the mineral and aggregate use category as defined in LDO Table 6.2-1, and that the county improperly authorized accessory uses lacking the required primary use.

     RR-5 allows mining of naturally occurring material as the primary use, and the processing of that material as an accessory use. Petitioners contended that the proposed use would not include the mining of aggregate resources, but would be using recycled asphalt pavement (RAP) as the source of material for processing. As defined in LDO 13.3(6)(a), aggregate resources consist of “naturally occurring solid materials commonly used in road building or other construction.” LUBA concluded that RAP was not naturally occurring. LUBA found that activities described in the application fell under LDO 13.2.2(C)(1) as “accessory uses” instead of primary uses. Petitioners also argued, and LUBA agreed, that LDO 6.4.2(D) prohibited establishing accessory uses unless a primary use was established first. Since LUBA found no primary use, it concluded that RAP crushing could not be deemed an accessory use. REVERSED.