Mosier v. Hood River Sand, Gravel

• Decision Date: 14 June 2006
• Docket Number: 9800089CC; A123800.
• Citation: 206 Or. App. 292,136 P.3d 1160
• Parties: CITY OF MOSIER, an Oregon municipal corporation, Respondent, v. HOOD RIVER SAND, GRAVEL AND READY-MIX, INC., an Oregon corporation, Appellant. Hood River Sand, Gravel and Ready-Mix, Inc., an Oregon corporation, and Howard Houston, Counterclaim Plaintiffs, v. City of Mosier, an Oregon municipal corporation, Counterclaim Defendant.
• Court: Oregon Court of Appeals

136 P.3d 1160

206 Or. App. 292

CITY OF MOSIER, an Oregon municipal corporation, Respondent, v. HOOD RIVER SAND, GRAVEL AND READY-MIX, INC., an Oregon corporation, Appellant.

Hood River Sand, Gravel and Ready-Mix, Inc., an Oregon corporation, and Howard Houston, Counterclaim Plaintiffs, v. City of Mosier, an Oregon municipal corporation, Counterclaim Defendant.

9800089CC; A123800.

Court of Appeals of Oregon.

Argued and Submitted July 11, 2005.

Decided June 14, 2006.

COPYRIGHT MATERIAL OMITTED

Margaret H. Leek Leiberan argued the cause for appellant. With her on the opening brief were Case & Dusterhoff, LLP, and James H. Gidley, Portland, and Perkins Coie, LLP. On the reply brief was Margaret H. Leek Leiberan.

Daniel Kearns argued the cause for respondent. With him on the brief was Reeve Kearns PC.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

LANDAU, P.J.

Defendant Hood River Sand, Gravel, and Ready-Mix, Inc. (HRSG), operates a quarry just outside the city limits of Mosier and accesses its quarry site by traveling over a haul road, part of which runs within city limits in an area zoned residential. Plaintiff, the City of Mosier (city), initiated a zoning enforcement action to enjoin HRSG from hauling sand and gravel over the haul road, claiming that such use violated the city's zoning ordinance. The trial court agreed with the city, declaring that defendant's use of the road was illegal under the zoning ordinance and issuing an injunction. HRSG appeals the trial court's ruling, raising multiple assignments of error. We affirm.

I. BACKGROUND

We begin with an overview of the facts that are not in dispute, leaving for later discussion additional or disputed facts as they become relevant to our analysis of HRSG's specific assignments of error.

HRSG operates a 28-acre sand and gravel quarry in Wasco County, immediately outside the Mosier city limits, but within the city's urban growth boundary. HRSG's predecessors had operated a quarry on the site since at least the 1950s, and its immediate predecessor had been granted a 20-year conditional use permit by the city to operate the quarry in 1972. At approximately the same time, the Oregon Department of Geology and Mineral Industries (DOGAMI) also approved a permit to operate the quarry.

To access its quarry and to haul extracted sand and gravel away from the site, HRSG uses a haul road that runs across the adjoining property, another quarry, which is owned by the State of Oregon and managed by the Oregon Department of Transportation (ODOT). HRSG uses the road with the permission of ODOT.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

ODOT's quarry property consists of 70 acres of land that the state acquired by eminent domain in 1954 for a "quarry site, stock pile site, and for the construction and maintenance of a haul road, to be used in connection with the proper construction and maintenance of highways of the state highway system." Two acres of ODOT's property lie within the Mosier city limits, near its western edge, in an area that has been zoned R-10, single family residential, since 1978. The haul road runs across those two acres before it joins State Highway 30 near Interstate 84, providing access from the quarry to the public right of way. For many years, ODOT had been using the haul road to haul sand and gravel from its quarry site out to the highway, crossing the city's residential zone in the process.

In 1992, Howard Houston, the owner of HRSG, purchased a large parcel of property of which the 28-acre quarry that is at issue in this case is a part; the parcel also included a 14-acre mobile home park. That same year, HRSG applied for a conditional use permit from Wasco County to operate the quarry on the southern 28 acres of the parcel. Because the quarry lies outside city boundaries but within the urban growth boundary, land use decisions regarding the quarry property are within the authority of Wasco County, under a joint management agreement between the city and the county. That joint management agreement provides that the county has responsibility for land within the urban growth boundary until such land is annexed by the city. The county has final decision-making authority for all land use actions affecting the urban growth area, but the county must seek "recommendations" from the city before making a decision.

In the process of reviewing HRSG's application for the conditional use permit, Wasco County sought input from the city. The city objected to the application on several grounds, including the proximity of the gravel pit to a local school and to housing, the potential for adverse effects on the water supply, and the potential for dust and noise pollution. The city, however, did not raise an objection that the use of the haul road would constitute a violation of the city zoning ordinance, nor did the city assert that it had the authority to do so. The county granted HRSG's request for a conditional use permit.

Also in 1992, HRSG applied to DOGAMI to renew its operating permit. As part of its permit approval process, DOGAMI notified the city of the application and sought its comment. In a letter to DOGAMI, the city indicated that it was "not the decision maker in this case" and that, under the joint management agreement, Wasco County was responsible for land use decisions. The letter also indicated that the city council was "very concerned" about the potential impact of the quarry and noted that the council had recommended to the county that the conditional use permit be denied.

DOGAMI ultimately granted HRSG a permit. The permit does not mention the haul road; it specifically states that its issuance does not constitute a finding of compliance with local land use laws and that HRSG must receive land use approval from local governments before using the permit.

Meanwhile, in 1996, the city initiated a zoning enforcement action against ODOT to stop it from using the haul road for hauling sand and gravel, claiming—as it does in this case—that the use of the road for hauling sand and gravel through a residential zone violated the zoning ordinance. ODOT asserted that its use of the haul road for hauling sand and gravel was a valid nonconforming use. The city held hearings and accepted evidence pertaining to the nonconforming uses on ODOT's property. Finding that mining and related hauling activity on the property had ceased for more than a one-year period, the city concluded that ODOT's use had been discontinued and thus lost under the city zoning ordinance. ODOT appealed that decision to the Land Use Board of Appeals. LUBA affirmed the city's decision in ODOT v. City of Mosier, 41 Or LUBA 73 (2001). ODOT did not seek judicial review.

In 1997, Houston applied for a partition of his property to separate the 14-acre mobile home park from the 28-acre quarry. Under city land use rules, each parcel in a partition is required to have access to a public right of way. During that proceeding, the city granted Houston permission to partition the property, but, because the partition would effectively land-lock the gravel pit and prevent access to the city roads, the city required petitioner to create an easement on the 14-acre parcel that would allow legal access to the back 28 acres. The city was opposed to any quarry-related traffic coming through that direction, however. As a result, it determined that HRSG would not be able to use the easement for the hauling of rock. A plat note was added that indicated that the legal access created by the easement was "restricted to no rock hauling or heavy industrial use."

Houston's application for partition specifically stated that all rock hauling would "continue to be confined to the state owned road and pursuant to the terms of the quarry's conditional use permit." The record also indicates that the city received several assurances from HRSG and its representatives that access to the quarry operation would be confined to the haul road. A former city council member designated to testify on behalf of the city testified at deposition that the continued use of the haul road for truck traffic was a requirement for approval of the partition.

During the time that it was considering Houston's partition application, the city council received a letter from Mazeski, a local citizen who had been opposed to the quarry operation. Mazeski's letter suggested that HRSG's use of the haul road was a violation of the Mosier Zoning Ordinance (MZO). The city did not address that objection during the course of the partition proceeding, however. In May of 1997, the city approved the partition.

In 1998, HRSG completed its efforts to comply with the conditions for approval of the county's conditional use permit and recommenced its mining operations. Shortly after that, the city brought this action to enjoin HRSG from using ODOT's haul road to haul aggregate, claiming that the hauling of sand and gravel incident to surface mining through an area zoned R-10 violated the city zoning ordinance. HRSG answered with 29 affirmative defenses and 14 counterclaims against the city.

In 2002, the trial court granted partial summary judgment in favor of the city, granting the city's request for declaratory relief and entering a preliminary injunction prohibiting HRSG from using the haul road. By that point, the trial court had disposed of many, but not all, of HRSG's affirmative defenses. On the city's motion, the trial court then agreed to bifurcate the trial; four of HRSG's remaining affirmative defenses— that HRSG's use of the property was lawfully permitted, that HRSG had a valid nonconforming use, that the city's suit was precluded, and that the city had waived enforcement of the zoning ordinance—were to be the subject of one trial, with all of HRSG's additional claims, including all its counterclaims, to be tried separately. A bench trial was conducted on the four affirmative...