Ruling requires asphalt mixing plant to reapply

Haomei — Mountain View Paving must submit a new application that considers its change to an asphalt mixing production plant operation in order to continue as a lawful, non-conforming use, a hearings officer has ruled.

Jackson County Hearings Officer Donald Rubenstein said when the new request is presented, the county must consider modifications at the site from 2001 onward that converted use from a concrete plant to an asphalt batch plant. Mountain View Paving will submit a new application, attorney Dan O’Connor said.

Rubenstein’s ruling came on a remand from Oregon’s Land Use Board of Appeals to his September 2013 decision, which was appealed by Rogue Advocates, a land-use watchdog group. The appeal challenged a Jackson County ruling that the operation was legal.

LUBA directed Rubenstein that the change of plant status from 2001 onward needed to be reconsidered. LUBA affirmed Rubenstein’s ruling that batch plant use at the site had been continuous since 1963.

Neighbors of the plant, situated on Bear Creek immediately east of Talent, have complained of noise and odors arising from the operation. A series of applications, appeals and court filings on the plant's status have been filed since 2011. Jackson County has allowed the operation to continue while the issue goes through the land-use process.

Neither side seemed surprised by the ruling.

“I was pleased the application was denied,” said Rogue Advocates President Steve Rouse. “I’m not surprised that they are going to have to apply for the alteration of use.”

O’Connor said the ruling was what he expected and that the company will proceed accordingly.

Jackson County typically receives two or three applications per year for determination of lawful, non-conforming uses, said Kelly Madding, county development services director. She declined to comment on Rubenstein’s ruling.

A new application would seek approval for the alteration or expansion of the established, non-conforming uses. Allowed changes can impose no greater impacts on surrounding neighbors, according to provisions in both the county’s Land Development Ordinance and Oregon Revised Statutes.

The concrete operation and the subsequent asphalt operation did not impose significant impacts on neighboring residences until four or five years prior to 2013, Rubenstein wrote in his latest ruling. He based his conclusion on public testimony.

O’Connor contends that the impact issue has already been settled by the LUBA ruling.

“In his (earlier) decision he made specific findings that the conversion from the concrete batch plant to the asphalt batch plant created no adverse impact on the neighboring properties, so that hurdle is passed,” said O’Connor. “I’m sure the other side will disagree.”

Alterations of equipment from a concrete to an asphalt batch plant are at issue, said O’Connor.

Rubenstein’s earlier ruling also declared that modifications and expansion after 2001 were not legal. Jackson County and Mountain View Paving then reached an agreement that resulted in Mountain View Paving removing additions in late 2013 and paying a fine of $600 because the work exceeded a deadline. Paul and Kristen Meyer are owners of the paving firm.

A hearing on the remand issue held Aug. 25 was limited to evidence already in the record. Individuals who wanted to submit new information expressed frustration about the limitation.

In earlier proceedings Mountain View Paving had argued that evidence clearly demonstrates the nature and extent of batch plant use, while Rogue Advocates contended there was “an overwhelming lack of evidence.”