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Tonquin Holdings, LLC v. Clackamas County

Summarized by: 

Date Filed: 01-25-2012
Case #: A149553
Nakamoto, J. for the Court; Schuman, P.J.; & Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/A149553.pdf

Land Use: Zoning ordinance 1203.01 prohibits approval of a conditional use that substantially limits primary uses of adjacent property. Where both general and special standards are applicable both shall apply, but where the two standards conflict the special standards shall control.

The Court of Appeals affirmed the Land Use Board of Appeals (LUBA) decision in two consolidated appeals. Tonquin Holdings proposed to engage in a surface mine on unincorporated property in Clackamas County. Surface mining was a permissible, conditional, use of the land. However, the land contained three wetlands, one of which contained within the property, another straddles the northern property line, and the third along the western edge of the property subject to a public conservation easement. The first issue appealed related to Zoning Ordinance 1203.01, which prohibits approval of conditional uses that alter surrounding areas in a manner that substantially limited surrounding property for its primary uses. LUBA found, and the Court of Appeals agreed, that development of the mine substantially limited conservation of the wetlands, and thus substantially limited surrounding property. In the second issue, LUBA had reversed the hearings officer’s determination that ordinance the general standards of 1001.02 were limited by an exclusive list of projects, and that surface mining was not included on that list. LUBA determined, and the Court agreed, that mining was an industrial use as it related to processing primary materials into a product, and that special zoning standards of section 800 modified the standards of section 1000 so that both were applicable. However, where special standards conflict with general standards, the special standards shall control. Affirmed