O'MARA v. Douglas County

862 P.2d 499, 318 Or. 72, 1993 Ore. LEXIS 161
CourtOregon Supreme Court
DecidedNovember 26, 1993
DocketLUBA 92-166; CA A79129; SC S40438, S40439
StatusPublished
Cited by14 cases

This text of 862 P.2d 499 (O'MARA v. Douglas County) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'MARA v. Douglas County, 862 P.2d 499, 318 Or. 72, 1993 Ore. LEXIS 161 (Or. 1993).

Opinion

*74 FADELEY, J.

In this case, we are asked to determine the meaning and scope of a statutory prohibition regulating the use of land. Petitioners represent the interest of a vineyard or vineyards located in an exclusive farm use (EPU) zone in Douglas County (County). Respondent Bracelin-Yeager Excavation & Trucking, Inc., operates an asphalt cement processing plant located in a heavy industrial zone in that county. ORS 215.301, originally adopted by the legislature in 1989, provides:

“Notwithstanding the provisions of ORS 215.213 and 215.283, no application shall be approved to allow batching and blending of mineral and aggregate into asphalt cement within two miles of a planted vineyard. Nothing in this chapter shall be construed to apply to operations for batching and blending of mineral and aggregate under a local land use approval on October 3, 1989, or a subsequent renewal of an existing approval.”

Respondent and County argue that the statute and its two-mile limit apply only to locating asphalt processing plants within exclusive farm use zones. Petitioners contend that the statute’s two-mile limit is absolute, prohibiting operation of respondent’s asphalt plant even though it is located in a heavy industrial zone, because the plant is within two miles of petitioners’ vineyard that is located in an EFU zone. Those arguments frame the issue in this case: Does ORS 215.301 apply only to asphalt plants located in an EFU zone, or does it, instead, apply to all such plants within two miles of a vineyard, no matter what zoning designation applies to the land where the vineyard or the asphalt plant is located?

County (also a respondent in this judicial review proceeding) decided that the statute spoke only to asphalt plants in EFU zones. County granted a permit to operate respondent’s asphalt plant, notwithstanding the fact that the plant was less than two miles from a vineyard. Petitioners appealed to the Land Use Board of Appeals (LUBA). That tribunal upheld County’s interpretation of that statute, but remanded to County on other grounds. On judicial review of that part of LUBA’s decision involving applicability of ORS *75 215.301 only, the Court of Appeals reversed LUBA’s interpretation that ORS 215.301 did not apply to operation of respondent’s asphalt plant. O’Mara v. Douglas County, 121 Or App 113, 854 P2d 470 (1993). We allowed review to determine which of those decisions correctly interpreted and applied the statute and now affirm the interpretation and application of the statute at issue made by LUBA and County.

When called on to interpret a legislative act, this court looks first to text and context. Where a study of the statute at the text-context level suffices to determine intended legislative meaning, this court does not inquire further. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).

As relevant to this case, ORS 215.213(2), in part, states:

“The following uses maybe established in any area zoned for exclusive farm use subject to ORS 215.296: * * *
“(d) Operations conducted for: * * *
“(C) Processing, as defined by ORS 517.750, of aggregate into asphalt or portland cementf]”

ORS 215.283(2) states:

“Subject to ORS 215.288, the following nonfarm uses may be established, subject to the approval of the governing body or its designate in any area zoned for exclusive farm use subject to ORS 215.296: * * *
“(b) Operations conducted for: * * *
“(C) Processing, as defined by ORS 517.750, of aggregate into asphalt or portland cement[.]”

Other statute sections are relevant context. ORS 215.296, in part, provides:

“(1) A use allowed under ORS 215.213(2) or 215.283(2) may be approved only where the local governing body or its designee finds that [certain conditions exist, as follows]: * * *
“(2) An applicant for a use allowed under ORS 215.213(2) or 215.283(2) may demonstrate that the standards for approval set forth in subsection (1) of this section will be satisfied through the imposition of conditions. Any conditions so imposed shall be clear and objective.
<<& A * * *
*76 “(8) If a use allowed under ORS 215.213(2) or 215.283-(2) is initiated without prior approval pursuant to subsection (1) of this section, the local governing body or its designee at a minimum shall notify the user that prior approval is required, direct the user to apply for approval within 21 days and warn the user against the commission of further violations. * * *”

As the note following ORS 215.303 discloses, land uses within EFU zones that are authorized by ORS 215.213(2) and 215.283(2), and that have been approved previously by a local governing body, are continued as permissible uses by Oregon Laws 1989, chapter 861, section 5. 1 ORS 215.298 enacts regulatory provisions concerning surface mining, including mining of aggregate, in an EFU zone. ORS 215.263

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Cite This Page — Counsel Stack

Bluebook (online)
862 P.2d 499, 318 Or. 72, 1993 Ore. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omara-v-douglas-county-or-1993.