ORS 215.130
Application of ordinances and comprehensive plan

alteration of nonconforming use

Text
Annotations 23

(1)

Any legislative ordinance relating to land use planning or zoning shall be a local law within the meaning of, and subject to, ORS 250.155 (Application of ORS 250.165 to 250.235) to 250.235 (Retention of petition materials).

(2)

An ordinance designed to carry out a county comprehensive plan and a county comprehensive plan shall apply to:

(a)

The area within the county also within the boundaries of a city as a result of extending the boundaries of the city or creating a new city unless, or until the city has by ordinance or other provision provided otherwise; and

(b)

The area within the county also within the boundaries of a city if the governing body of such city adopts an ordinance declaring the area within its boundaries subject to the county’s land use planning and regulatory ordinances, officers and procedures and the county governing body consents to the conferral of jurisdiction.

(3)

An area within the jurisdiction of city land use planning and regulatory provisions that is withdrawn from the city or an area within a city that disincorporates shall remain subject to such plans and regulations which shall be administered by the county until the county provides otherwise.

(4)

County ordinances designed to implement a county comprehensive plan shall apply to publicly owned property.

(5)

The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued. Alteration of any such use may be permitted subject to subsection (9) of this section. Alteration of any such use shall be permitted when necessary to comply with any lawful requirement for alteration in the use. Except as provided in ORS 215.215 (Reestablishment of nonfarm use), a county shall not place conditions upon the continuation or alteration of a use described under this subsection when necessary to comply with state or local health or safety requirements, or to maintain in good repair the existing structures associated with the use. A change of ownership or occupancy shall be permitted.

(6)

Restoration or replacement of any use described in subsection (5) of this section may be permitted when the restoration or replacement is made necessary by fire, other casualty or natural disaster. Restoration or replacement must be commenced within one year from the occurrence of the fire, casualty or natural disaster. If restoration or replacement is necessary under this subsection, restoration or replacement must be done in compliance with ORS 195.260 (Duties of local governments, state agencies and landowners in landslide hazard areas) (1)(c).

(7)

Intentionally left blank —Ed.

(a)

Any use described in subsection (5) of this section may not be resumed after a period of interruption or abandonment unless the resumed use conforms with the requirements of zoning ordinances or regulations applicable at the time of the proposed resumption.

(b)

Notwithstanding any local ordinance, a surface mining use continued under subsection (5) of this section is not considered interrupted or abandoned for any period after July 1, 1972, provided:

(A)

The owner or operator was issued and continuously renewed a state or local surface mining permit, or received and maintained a state or local exemption from surface mining regulation; and

(B)

The surface mining use was not inactive for a period of 12 consecutive years or more.

(c)

For purposes of paragraph (b) of this subsection, “inactive” means no aggregate materials were excavated, crushed, removed, stockpiled or sold by the owner or operator of the surface mine.

(d)

A use continued under subsection (5) of this section is not considered interrupted or abandoned for any period while a federal, state or local emergency order temporarily limits or prohibits the use or the restoration or replacement of the use.

(8)

Any proposal for the verification or alteration of a use under subsection (5) of this section, except an alteration necessary to comply with a lawful requirement, for the restoration or replacement of a use under subsection (6) of this section or for the resumption of a use under subsection (7) of this section shall be subject to the provisions of ORS 215.416 (Permit application). An initial decision by the county or its designate on a proposal for the alteration of a use described in subsection (5) of this section shall be made as an administrative decision without public hearing in the manner provided in ORS 215.416 (Permit application) (11).

(9)

As used in this section, “alteration” of a nonconforming use includes:

(a)

A change in the use of no greater adverse impact to the neighborhood; and

(b)

A change in the structure or physical improvements of no greater adverse impact to the neighborhood.

(10)

A local government may adopt standards and procedures to implement the provisions of this section. The standards and procedures may include but are not limited to the following:

(a)

For purposes of verifying a use under subsection (5) of this section, a county may adopt procedures that allow an applicant for verification to prove the existence, continuity, nature and extent of the use only for the 10-year period immediately preceding the date of application. Evidence proving the existence, continuity, nature and extent of the use for the 10-year period preceding application creates a rebuttable presumption that the use, as proven, lawfully existed at the time the applicable zoning ordinance or regulation was adopted and has continued uninterrupted until the date of application.

(b)

Establishing criteria to determine when a use has been interrupted or abandoned under subsection (7) of this section.

(c)

Conditioning approval of the alteration of a use in a manner calculated to ensure mitigation of adverse impacts as described in subsection (9) of this section.

(11)

For purposes of verifying a use under subsection (5) of this section, a county may not require an applicant for verification to prove the existence, continuity, nature and extent of the use for a period exceeding 20 years immediately preceding the date of application. [Amended by 1961 c.607 §2; 1963 c.577 §4; 1963 c.619 §9; 1969 c.460 §1; 1973 c.503 §2; 1977 c.766 §5; 1979 c.190 §406; 1979 c.610 §1; 1993 c.792 §52; 1997 c.394 §1; 1999 c.353 §1; 1999 c.458 §1; 1999 c.1103 §10; 2021 c.25 §3]

Note: Section 4, chapter 25, Oregon Laws 2021, provides:

Sec. 4. Section 2 of this 2021 Act [227.283 (Regulations applicable to resumption of nonconforming uses)] and the amendments to ORS 215.130 (Application of ordinances and comprehensive plan) by section 3 of this 2021 Act apply to uses limited or prohibited by federal, state or local emergency orders issued on or after January 1, 2020. [2021 c.25 §4]

(Temporary provisions relating to restoration or replacement of uses lost to 2020 wildfires)

Note: Sections 5 and 6, chapter 25, Oregon Laws 2021, provide:

Sec. 5. Restoration or replacement of a use under ORS 215.130 (Application of ordinances and comprehensive plan) (5) or under city land use regulations that allow the restoration or reestablishment of a nonconforming use, including under section 2 of this 2021 Act [227.283 (Regulations applicable to resumption of nonconforming uses)], must commence no later than September 30, 2025, notwithstanding the time limitation under ORS 215.130 (Application of ordinances and comprehensive plan) (6) or any other local land use regulation if the restoration is for uses that between September 1 and September 30, 2020, were damaged or destroyed by wildfires that were:

(1)

The subject of a federal or state major disaster declaration; or

(2)

Subject to a Governor’s executive order invocating the Emergency Conflagration Act under ORS 476.510 (Short title) to 476.610 (Payment of claims). [2021 c.25 §5]

Sec. 6. Section 5 of this 2021 Act is repealed January 2, 2026. [2021 c.25 §6]

(Temporary provisions relating to permanent development of transitional housing sites used for 2020 wildfires in Lane County)

Note: Sections 1 and 2, chapter 520, Oregon Laws 2021, provide:

Sec. 1. (1) Notwithstanding ORS chapter 195, 197, 197A, 215, 227 or 468B or any statewide plan, rule of the Land Conservation and Development Commission, Environmental Quality Commission or local land use regulation, zoning ordinance or comprehensive plan, Lane County shall approve a planning application for the development of a permanent recreational vehicle park or campground if the development:

(a)

Is located on land that:

(A)

Is within an unincorporated community and on lands from which a developed or committed exception has been adopted;

(B)

Was identified as an area for providing transitional housing for wildfire victims under rules of the Land Conservation and Development Commission and under an agreement between the applicant and the Federal Emergency Management Agency;

(C)

Is currently zoned to allow for a temporary recreational vehicle park or campground;

(D)

Would not require a zone change to allow for a permanent recreational vehicle park or campground; and

(E)

Is more than 1,000 feet from the McKenzie River; and

(b)

Is conditioned upon the applicant demonstrating and agreeing that the park or campground:

(A)

Will provide adequate electric, garbage and septic services to visitors;

(B)

Will limit the number of campers and recreational vehicle residents to not exceed 50 percent of the total overnight accommodations that exist on the property on the date the applicant and the Federal Emergency Management Agency enter into the agreement described in paragraph (a)(B) of this subsection;

(C)

Will not extend reservations for more than 29 consecutive days or more than 90 days in any calendar year or during any consecutive six-month period;

(D)

Will provide adequate parking and access consistent with minimum local and state requirements;

(E)

Will not require the existing septic system to receive wastes for which the system was not designed;

(F)

Will implement appropriate groundwater quality protection requirements and compliance monitoring to prevent a measurable change in the water quality of the surface water that would be potentially affected by the proposed facility;

(G)

Will provide an annual written certification of proper treatment and disposal system operation obtained from a qualified registered sanitarian, professional engineer or certified wastewater treatment system operator; and

(H)

Will comply with conditions established by the county for:

(i)

The scope of the recreational vehicle park or campground proposed;

(ii)

The location of existing structures and the siting of proposed structures;

(iii)

The location of access and egress and of parking facilities;

(iv)

Traffic management, including the projected number of vehicles and any anticipated use of public roads;

(v)

Sanitation and solid waste; and

(vi)

The presence of any natural hazard for which the county has adopted development standards.

(2)

The approval of a recreational vehicle park or campgrounds under this section is not a land use decision and is subject to review only under ORS 34.010 (Former writ of certiorari as writ of review) to 34.100 (Power of court on review).

(3)

Nothing in this section relieves the applicant of any fees, charges or assessments assessed by the county to process this application.

(4)

Nothing in this section relieves the applicant of any requirement to obtain a necessary building or specialty permit. [2021 c.520 §1]

Sec. 2. Section 1 of this 2021 Act is repealed on January 2, 2024. [2021 c.520 §2]

Source: Section 215.130 — Application of ordinances and comprehensive plan; alteration of nonconforming use, https://www.oregonlegislature.gov/bills_laws/ors/ors215.html.

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)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 215.130 Application of ordinances and comprehensive plan

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