Oregon Court Upholds Land Use Permit Covering Offsite Environmental Impacts

Are you interested in developing an industrial or commercial use on a tract of land that is surrounded by potentially unique natural resources?  Are you a concerned citizen, worried that a new use could impact recreational or natural resource uses on surrounding land?  If so, Chenoweth Law Group can help you understand local land use law and permitting processes in Oregon.  Our attorneys have significant experience with complicated land use issues and are well-versed in complex local codes and land use laws such as those recently addressed by the Oregon Court of Appeals.

In Tonquin Holdings, LLC v. Clackamas County, 247 Or. App. 719 (2012), the Oregon Court of Appeals upheld the Oregon Land Use Board of Appeals' (LUBA) determination that Clackamas County rightfully imposed conditions on Tonquin's aggregate surface mining operation when it approved a conditional use permit (CUP).  Although many of the 130 CUP conditions went unchallenged, the CUP prevented Tonquin from excavating 2.2 acres of wetlands on the property and required the company to protect the wetlands through proper buffers. This had the effect of limiting the acreage available for mining.  The CUP also required that the mining operation not "substantially limit" or "impair" primary uses (such as public and private conservation areas, and fish and wildlife management programs) on land adjacent to the property.  This condition is important because the property is bordered by the Tualatin River National Wildlife Refuge, a gun club, a reclaimed quarry, an active quarry, rural residences, a dog kennel, and floodplain open space.

On appeal, the Oregon Court of Appeals concluded that LUBA properly upheld the conditions imposed by Clackamas County.  The court determined that the impacts to adjacent property should be considered under the relevant County Code, especially since the "finite and unique" conservation uses on those adjacent properties might be eliminated by the mining operation.  Thus, the court concluded that it was appropriate for the County to prevent Tonquin from filling 2.2 acres of wetlands. 

This case is interesting because both LUBA and the Court of Appeals upheld the environmental permit conditions imposed by Clackamas County even though they extended beyond the applicant's property boundaries.  This holding thus recognizes a county's prerogative to limit development based on impacts caused to adjacent land and recreational/natural uses.  From the developer perspective, the court's ruling accentuates the importance of having competent counsel during the CUP process.  And from the environmentalist perspective, this ruling presents an opportunity for protecting current existing uses from new potential uses.  Thus, if you are facing or may face this type of situation, please contact Chenoweth Law Group at 253-200-5991  to schedule a consultation.

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