Rogue Advocates, an Or. Nonprofit Membership Corp. v. Mountain View Paving, Inc.
| Decision Date | 15 November 2016 |
| Docket Number | Case No. 1:15-cv-01854-CL |
| Parties | ROGUE ADVOCATES, an Oregon nonprofit membership corporation, Plaintiff, v. MOUNTAIN VIEW PAVING, INC., an Oregon corporation, Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiff Rogue Advocates brings this citizen suit against Defendant Mountain View Paving, Inc., under Section 304 of the Clean Air Act ("CAA"), 42 U.S.C. § 7604. Plaintiff alleges Defendant's operation of an asphalt batch plant, as well as associated activities, on its property violated its federally enforceable air quality permit, resulting in repeated violations of the CAA from 2010 to the present. Plaintiff seeks declaratory relief, injunctive relief, civil penalties, and attorney fees and costs associated with bringing this action. This case comes before the Court on Defendant's motion for summary judgment (#82) and Plaintiff's cross-motion for partial summary judgment (#89). For the reasons below, Defendant's motion is GRANTED in part and DENIED in part and Plaintiff's motion is DENIED.1
In 2001, Defendant began operating an asphalt batch plant on land it purchased from Howard DeYoung, the former owner, who had purchased the land in 1963. Def.'s Mot. for Summ. J. Ex. 2, at 4 [ECF No. 82.]. The land is located in Jackson County, Oregon. Def.'s Mot. for Summ. J. Ex. 1, at 1. Prior to Defendant's purchase, DeYoung engaged in an aggregate mining operation and leased the land to various companies, who, from 1963 to 2000, operated a concrete batch plant on the property. Def.'s Mot. for Summ. J. Ex. 2, at 4. At the time the first batch plant was installed, the property was not subject to zoning or land use regulations, making use of a batch plant permissible. Def.'s Mot. for Summ. J. Ex. 3, at 2. It was not until 1973 that the land first became subject to zoning restrictions, which placed limitations on land use. Def.'s Mot. for Summ. J. Ex. 2, at 4. Neither the initial 1973 zoning restrictions nor the current zoning restrictions allow the use of batch plants on the property. Def.'s Mot. for Summ. J. Ex. 3, at 2. Jackson County Land Development Ordinance ("LDO") does, however, provide that a use lawfully established prior to a contrary zoning restriction may be continued after enactment of the restriction. Def.'s Mot. for Summ. J. Ex. 2, at 6. The LDO terms this a "nonconforming use." Def.'s Mot. for Summ. J. Ex. 3, at 2.
When Defendant purchased the property in 2001, DeYoung continued to lawfully operate a concrete batch plant on the property as a nonconforming use. Def.'s Mot. for Summ. J. Ex. 2,at 3, 8. Upon purchase, Defendant replaced the concrete batch plant with an asphalt batch plant and crusher. Def.'s Mot. for Summ. J. Ex. 2, at 4. In operating the asphalt batch plant, Defendant would have raw material delivered to the site. Def.'s Mot. for Summ. J. Ex. 2, at 5. The raw material was stored in stock piles, eventually "refined through the crusher, mixed with asphalt in the batch plant, [with] the resulting product [] transported off-site for paving projects." Def.'s Mot. for Summ. J. Ex. 2, at 5. During operation, the batch plant released various contaminants, including carbon monoxide, sulfur dioxide, and nitrogen oxides. Pl.'s Mot. for Prelim. Inj. Ex. 6-1, at 37. Because it released such contaminants, Defendant was required to obtain an Air Contaminant Discharge Permit ("ACD permit") from the Oregon Department of Environmental Quality ("DEQ"). Def.'s Mot. for Summ. J. Ex. 4, at 2-3; Or. Admin. R. ("OAR") § 340-216-0020(3). Defendant "consistently reported both the volume of asphalt production and the Plant's discharge of pollutants to DEQ. . . ." Def.'s Mot. for Summ. J. Ex. 4, at 3.
Sometime in the 1980s, Mountain View Estates, an age-restricted residential retirement community, was built adjacent to the property. Hudson Decl. ¶ 4 [ECF No. 11.]. Beginning in 2011, Defendant increased operations on the land, and Plaintiff, acting with its members at Mountain View Estates, as well as other nearby residents, lodged "code complaints" with Jackson County (the "County"), asserting Defendant's batching operation burdened the nearby property owners with significant noise and odor and violated local zoning ordinances. Hudson Decl. ¶¶ 8-10; Rouse Decl. ¶ 6 [ECF No. 10.]. The complaints resulted in "code enforcement hearings"; however, "nothing came out of that process other than a minimal fine," as "the County [] never required [Defendant] to stop its operations." Hudson Decl. ¶ 10. Indeed, a 2012 DEQ e-mail stated that, "as the County views it currently, the facility is allowed to operate and be placed at its current site," and "until [DEQ] hears otherwise, the County has determined thatthe land-use, for this plant to operate at this location, is currently allowed." Def.'s Mot. for Summ. J. Ex. 7.
Due to the ongoing disputes, however, in September 2012, Defendant filed an application with the Jackson County Planning Division Staff ("Planning Division") seeking verification that its asphalt batch plant was a lawfully established nonconforming use. Def.'s Mot. for Summ. J. Ex. 3, at 2. On the same day, Defendant filed an application with the Planning Division for approval of a floodplain development permit; a significant portion of Defendant's property is located in the regulatory floodway of Bear Creek, a major Rogue River tributary, and Defendant did not hold a floodplain development permit, as required by LDO 7.2.2(C). Def.'s Mot. for Summ. J. Ex. 3, at 2; Pl.'s Mot. for Prelim. Inj. Ex. 6-5, at 2. On March 25, 2013, the Planning Division issued a decision approving both applications. Def.'s Mot. for Summ. J. Ex 3, at 2-3. Plaintiff timely appealed the Planning Division's decision to a County hearings officer. Def.'s Mot. for Summ. J. Ex. 3, at 3. On September 26, 2013, the hearings officer found that the asphalt batch plant constituted a lawful nonconforming use, as the prior concrete batch plant and the then-current asphalt batch plant were effectively equivalent, and thus the conversion to the asphalt batch plant did not require County approval. Def.'s Mot. for Summ. J. Ex. 3, at 3. The hearings officers denied the requested nonconforming use verification, however, finding that a "shop structure," as well as other structures added to the property after 2001, "were unauthorized expansions of the nonconforming use" and Defendant had not sought County approval for these expansions. Def.'s Mot. for Summ. J. Ex. 3, at 3. The hearings officer also vacated the floodplain development permit due to the finding that there were unauthorized expansions of the nonconforming use. Pl.'s Mot. for Prelim. Inj. Ex. 6-5, at 3.
Following the hearings officer's decision, the County cited Defendant for violating floodplain and building permit ordinances. Def.'s Mot. for Summ. J. Ex. 10. Thereafter, Defendant and the County entered into a stipulated order, whereby the County permitted Defendant "to continue to engage in nonconforming uses while [it] proceed[ed] through the County's land use process." Def.'s Mot. for Summ. J. Ex. 11, at 2; see also Def.'s Mot. for Summ. J. Ex. 10. Additionally, Defendant applied for, and the County granted, a new floodplain permit, which authorized the "operation of the limited asphalt batch plant" within the floodplain. Def.'s Mot. for Summ. J. Ex. 2, at 26.
Meanwhile, Plaintiff appealed the hearings officer's decision to the Land Use Board of Appeals for the State of Oregon ("LUBA"), arguing, among other things, that the hearings officer erred in concluding that an asphalt batch plant constituted the "same use" as a concrete batch plant. Def.'s Mot. for Summ. J. Ex. 2, at 15. Plaintiff argued that replacing one type of batch plant with another was an alteration and, therefore, needed to be approved by the County. Def.'s Mot. for Summ. J. Ex. 2, at 15. LUBA agreed with Plaintiff, stating that "even if the two types of batch plants constitute the 'same use,' replacing one with the other constitutes, at a minimum, an alteration that requires county review and approval." Def.'s Mot. for Summ. J. Ex. 2, at 22. LUBA, however, did not feel that the hearings officer had adequately fleshed out "the nature and extent" of the previously existing, and lawful, nonconforming use. Def.'s Mot. for Summ. J. Ex. 2, at 22. Therefore, rather than reversing, LUBA remanded the case to the hearings officer to assess this issue. Def.'s Mot. for Summ. J. Ex. 2, at 22.2
After LUBA's order, but before the hearings officer conducted a remand hearing, the County reaffirmed its position that Defendant could continue to operate the asphalt batch plant while the hearings officer assessed the extent of the prior nonconforming use. Def.'s Mot. for Summ. J. Ex. 11, at 2. A week later, on August 25, 2014, the hearings officer conducted a remand hearing to consider the parameters of the nonconforming use. Def.'s Mot. for Summ. J. Ex. 12, at 2. In an order issued on October 28, 2014, the hearings officer determined that the "conversion of the concrete batch plant to an asphalt batch plant require[d] review and approval [by the County] as an alteration of a nonconforming use." Def.'s Mot. for Summ. J. Ex. 12, at 8.
Subsequent to the October 2014 order, the County issued code violations against Defendant for, among other things, installing an asphalt batch plant without first requesting an alteration permit. Def.'s Mot. for Summ. J. Ex. 15. Accordingly, there was a third hearing to determine whether Defendant could continue to operate the asphalt batch plant while Defendant "pursue[d] further applications for a final determination about the extent of the nonconforming use." Def.'s Mot. for Summ. J. Ex. 13, at 2. This time, the hearings officer determined that Defendant could not continue to operate the batch plant without first getting nonconforming-use approval from the County. Def.'s Mot. for Summ. J. Ex. 13, at 3. Moreover, the...
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