Deschutes County v. Pink Pit, LLC ( 2020 )

563
Argued and submitted November 29, 2018; reversed and remanded for entry of
corrected judgment declaring that the subject property has a preexisting-site
exemption under DCC chapter 18.52, otherwise affirmed September 23, 2020
DESCHUTES COUNTY,
a political subdivision of the State of Oregon,
Plaintiff-Appellant,
v.
PINK PIT, LLC,
an Oregon limited liability company;
and Mark Latham Excavation, Inc.,
an Oregon corporation, dba Latham Excavation,
Defendants-Respondents.
Deschutes County Circuit Court
14CV0979; A163541
475 P3d 910
Plaintiff Deschutes County appeals from a judgment for defendants Pink
Pit, LLC, and Mark Latham Excavation, Inc., dismissing the county’s code
enforcement action against defendants and granting defendants’ request for a
declaration that defendants’ mining operation is a “lawful nonconforming use”
under ORS 215.130(5) and not subject to land use regulation. Held: The Court of
Appeals concluded that, although the trial court erred in determining that the
subject property was a nonconforming use, the trial court correctly dismissed the
enforcement action, because the property is a preexisting site under the county’s
code, and is therefore not subject to the county code regulations that form the
basis for the enforcement action.
Reversed and remanded for entry of corrected judgment declaring that the
subject property has a preexisting-site exemption under Deschutes County Code
chapter 18.52; otherwise affirmed.
Dale R. Koch, Senior Judge.
John E. Laherty argued the cause and filed the briefs for
appellant.
Michael W. Peterkin argued the cause for respondents.
Also on the brief was Peterkin & Associates.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
564 Deschutes County v. Pink Pit, LLC
EGAN, C. J.
Reversed and remanded for entry of corrected judgment
declaring that the subject property has a preexisting-site
exemption under DCC chapter 18.52; otherwise affirmed.
Cite as 306 Or App 563 (2020) 565
EGAN, C. J.
Deschutes County appeals from a judgment for defen-
dants Pink Pit, LLC, and Mark Latham Excavation, Inc.
(Latham), dismissing the county’s code enforcement action
against defendants and granting defendants’ request for a
declaration that defendants’ mining operation is a “lawful
nonconforming use” under ORS 215.130(5) and not subject
to land use regulation. Although we disagree with the trial
court’s conclusion that the mining operation on the subject
property is a nonconforming use, we conclude that the trial
court did not err in dismissing the county’s enforcement
action. We therefore affirm the dismissal of the county’s
claim and reverse and remand for entry of a corrected
declaratory judgment.
We draw our summary of the largely undisputed
facts and procedural history from the record and the trial
court’s letter opinion. The property in dispute consists of
a 30-acre portion of an approximately 75.5-acre parcel
in rural Deschutes County that is zoned for surface min-
ing (SM). A surface mine for gravel and pumice has been
in existence at the site since the 1940s. In 1981, Cascade
Pumice, defendants’ predecessor in interest, acquired a per-
mit from the Department of Geology and Mining Industries
(DOGAMI) to mine the disputed 30 acres. Beginning in
1993, the DOGAMI permit encompassed the entire 75.5-acre
site. The permit does not specify or limit the types of min-
erals that can be extracted and requires a “reclamation” of
the subject property as required by the Deschutes County
Code. The record shows that defendants are not in violation
of their DOGAMI permit, either in mining or reclamation,
and that 8.5 to 9.9 acres of the subject property are exempt
from reclamation.
In 1974, the Land Conservation and Development
Commission (LCDC) adopted Statewide Planning Goal 5
to “protect natural resources and conserve scenic, historic,
and open space resources,” including aggregate and min-
eral resources. In 1990, the county adopted ordinances to
comply with its Goal 5 planning obligation for mineral and
566 Deschutes County v. Pink Pit, LLC
aggregate resources.1 Ordinance 90-014 adopted amend-
ments to the county’s SM zone and a new Surface Mining
Impact Area (SMIA) combining zone.
The county’s ordinances relating to mineral and
aggregate resources are codified in Chapter 18.52 of the
Deschutes County Code (DCC). Under DCC chapter 18.52,
the SM zone, as amended by Ordinance 90-014, allows
extraction, stockpiling, screening, and sizing of minerals
as an outright use, “subject to a site plan review.” DCC
18.52.040. Mineral and aggregate sites that held a valid
DOGAMI permit at the time Deschutes County adopted its
surface mining zoning and that are in an SM zone are “pre-
existing sites” within the meaning of the county’s zoning
ordinance relating to surface mining. DCC 18.52.160(B).2
It is undisputed that the subject property held a valid
1
Deschutes County Ordinance 90-025 adopted an inventory of significant
mineral and aggregate sites, including the subject property, which is desig-
nated as Site 303 in the county’s mineral resource inventory. See OAR 660-015-
0000 (describing local government’s obligation to inventory Goal 5 resources).
The inventory listed Bend Pumice and some aggregate and sand as a mineral
resource on the subject property but did not list as a mineral resource a pink
volcanic pumice known as Tumalo Tuff. Ordinance 90-029 adopted an Economic,
Social, Environmental and Energy (ESEE) Findings and Decision for the sub-
ject property. The ESEE decision addressed the three steps required by OAR
chapter 660, division 16: It included an inventory of resources on the site, an
analysis of conflicting uses, and a program to meet the goal (PTMG), in which
the county determined that it would extend partial protection to the mineral
resource, allowing it to be mined under special restrictions to limit the impacts
on conflicting uses.
2
DCC 18.52.160 provides:
“A. Except for preexisting and nonconforming sites, DCC 18 shall apply
to all surface mining activities which occur on or after the effective date of
Ordinance No. 90-014.
“B. Preexisting Sites. Mineral and aggregate sites which have a valid
DOGAMI permit or exemption and/or County permit on the effective date of
Ordinance No. 90-014, and which are zoned SM, are ‘preexisting sites.’
“C. Nonconforming Sites. Mineral and aggregate sites which have a
valid DOGAMI permit or exemption and/or County permit on the effective
date of Ordinance No. 90-014, and which are not zoned SM, are ‘nonconform-
ing sites.’
“D. Registration. Operators of all preexisting and nonconforming sites
shall register the sites with the Planning Division within 180 days of the
effective date of Ordinance No. 90-014. The registration shall include a
copy of the operator’s permit or exemption and a map or legal description
showing the boundaries of the surface mining area covered by the permit or
exemption.
“E. Expansion.
Cite as 306 Or App 563 (2020) 567
DOGAMI permit on the effective date of Ordinance 90-014
and is located in an SM zone.
Preexisting sites are not subject to DCC 18.52,
except for a requirement to register the site and in the event
of an expansion of the mining operation beyond the bound-
aries of the surface permitted by the DOGAMI permit. DCC
18.52.160(D), (E). Nonetheless, in 1995, Cascade Pumice,
then still the owner of the subject property, submitted to
Deschutes County an application for site plan approval
under DCC 18.52 to mine pumice on an approximately
35-acre portion of the 75.5-acre parcel. There is no evidence
in the record as to why Cascade Pumice applied for site plan
approval. The proposed plan provided for the slot mining
of white pumice, which would entail the removal of top soil
and five to 30 feet of “overburden”—material that covered
the targeted white pumice to be extracted—which would be
temporarily stockpiled but then replaced to the completed
slot. The application included a reclamation plan that had
been submitted to DOGAMI, which was required under
Ordinance 18.52.130 to “demonstrate that the site can be
reclaimed for a subsequent beneficial land use consistent
with such subsequent use in the surface mining element of
the Comprehensive Plan.”
The county ultimately approved Cascade Pumice’s
site plan application in 1997, authorizing the slot mining of
30 acres and the removal of white pumice. The 1997 approval
did not refer specifically to Tumalo Tuff, but the trial court
determined that the reference to “overburden” in the 1997
site plan approval was understood to encompass Tumalo
Tuff. The county did not record any restrictions on the use
of the subject property under the site plan. The record shows
that when in 1999, after the site plan approval, the county
“1. Any expansion of the surface mining activity on a preexisting site
beyond the boundaries of the surface mining area covered by the DOGAMI
permit or exemption or County permit, or any surface mining activity requir-
ing a new DOGAMI or County permit, shall comply with all applicable
requirements of DCC 18.
“2. Any expansion of the surface mining activity on a nonconforming site
beyond the boundaries of the surface mining area covered by the DOGAMI
permit or exemption or County permit, or any surface mining activity requir-
ing a new DOGAMI or County permit, shall comply with the provisions of
DCC 18.120.010.”
568 Deschutes County v. Pink Pit, LLC
considered an application for a residential development on a
neighboring parcel, the county described the subject prop-
erty as a “pre-existing site.”
In 2006, Cascade Pumice sold the subject property
to three limited liability companies that are the predeces-
sors in interest to defendant Pink Pit. Cascade Pumice filed
an application to transfer its operating permit to defendant
Mark Latham Excavation, Inc., owned by Mark Latham, one
of Pink Pit’s principals. In the application, Latham agreed
to reclaim the property in accordance with the reclamation
plan then on file with DOGAMI. The application acknowl-
edged that the mining operations were subject to an exist-
ing mining permit.
The procedural history at this point becomes com-
plex and lengthy in ways that do not bear on our analysis
of the issues on appeal. To briefly summarize, in 2007, the
county informed defendants that it intended to initiate an
enforcement action against the subject property, assert-
ing that defendants were engaged in activities beyond the
scope of the 1997 site plan approval by processing miner-
als on site and removing overburden from the property.
In response, defendants submitted an application for a
site plan and conditional use approval to expand mining
operations on the subject property and to process mate-
rials on site. Defendants’ counsel noted at the time that,
although defendants were not asserting that the subject
property was a preexisting site, they were not waiving that
status.
The application was litigated over a five-year period,
resulting in two LUBA appeals and two petitions for judi-
cial review, Mark Latham Excavation v. Deschutes County,
250 Or App 543, 281 P3d 644 (2012); Hoffman v. Deschutes
County, 237 Or App 53l, 240 P3d 79, rev den, 349 Or 479(2010). Ultimately, in 2012, the county granted a site plan
approval that defendants chose not to pursue. Thus, the
site plan approval remained unchanged from the original
approval granted to Cascade Pumice in 1997.
In 2014, the county received complaints that defen-
dants were mining in violation of the 1997 site plan approval.
After investigation, the county determined that it was likely
Cite as 306 Or App 563 (2020) 569
that defendants were violating the terms of the 1997 site
plan by, among other conduct, removing overburden. The
county brought this action to enforce the terms of the 1997
approval.
This time, defendants did not seek to obtain a con-
ditional use permit or to modify the 1997 site plan. Rather,
they asserted as an affirmative defense that they are not
bound by the 1997 approval, because the subject property is
a preexisting site under DCC 18.52.160(B) that is not sub-
ject to regulation under DCC chapter 18.52, or because the
use of the subject property is a lawful “nonconforming use”
under ORS 215.130(5), which provides that “the lawful use
of any building, structure or land at the time of the enact-
ment or amendment of any zoning ordinance or regulation
may be continued.” As a counterclaim, defendants sought
a declaration that the subject property constitutes a pre-
existing site as defined by DCC 18.52.160(B) or that the use
of the subject property is a lawful nonconforming use under
ORS 215.130(5), and, therefore, is not subject to land use
regulation. Defendants presented evidence that the subject
property has been mined since the 1940s and that Tumalo
Tuff had been excavated and removed from the subject prop-
erty since at least the 1970s, before the 1990 amendments to
the SM zone by Ordinance 90-014.
The county did not dispute the site’s “preexisting-
site” status but raised affirmative defenses to defendants’
declaratory judgment claim, asserting that defendants had
waived or were barred by laches or estoppel from asserting
that they are exempt from the requirements of DCC chapter
18.52 by having submitted the subject property to the coun-
ty’s land use authority through the site plan applications
and approvals and by their words and actions. Among the
“words and actions” on which the county relied were defen-
dants’ repeated acknowledgments during the litigation relat-
ing to defendants’ 2007 application that Tumalo Tuff was
“overburden.” The county further asserted that, as a matter
of law, the site lost any preexisting or nonconforming-use
status when Cascade Pumice submitted the site to land use
regulation by bringing the site into compliance with exist-
ing land use regulations under the 1997 site plan approval.
570 Deschutes County v. Pink Pit, LLC
The case went to trial before a reference judge pur-
suant to ORS 3.305. In its reference report, the trial court
determined that
“[u]nder DCC 18.52.160] it is clear that the Ordinance
did not apply to mineral and aggregate sites which had
a valid DOGAMI permit at the time of the adoption of
the Ordinance. As discussed above, at that point in time
30 acres were covered by the valid 1981 DOGAMI permit.”
But the trial court did not reach defendants’ contention that
the subject property was a preexisting site under the county’s
ordinance. Rather, the court concluded that the extraction of
Tumalo Tuff was a lawful nonconforming use under ORS
215.130(5). The court agreed with the county’s position that
Tumalo Tuff had previously been viewed as “overburden”
rather than a targeted mineral to be extracted; however, the
court found that nothing in the DOGAMI permit or recla-
mation plan prohibited the removal of Tumalo Tuff from the
site. The court thus concluded that the use of the 30 acres
for the extraction and removal of Tumalo Tuff was a lawful
nonconforming use under ORS 215.130(5).
The court further rejected the county’s contentions
that defendants had waived their “pre-existing rights as a
lawful nonconforming user of the property prior to 1990,” or
were barred by estoppel or laches. Thus, the court held that
defendants were permitted to continue extracting Tumalo
Tuff on the 30-acre portion of the site without land use
approval, entered a judgment for defendants on their declar-
atory judgment counterclaim, and dismissed the county’s
enforcement action.3
The county contends that the trial court erred.4
Under ORS 197.825(1), LUBA has “exclusive jurisdiction to
3
The trial court’s declaration stated, in part:
“1. Defendants can continue their surface mining operation as law-
ful nonconforming use, under ORS 215.130, on the 30 acres of the ‘Subject
Property’ covered by the l98l DOGAMI permit;
“* * * * *
“3. Any surface mining operations outside of the 30 acres of the Subject
Property covered by the 1981 DOGAMI permit are subject to Deschutes
County land use planning rules, including Permit No. 09-0124.”
4
As noted by defendants, most of the county’s assignments of error are not
proper assignments because they are not directed at specific rulings of the trial
Cite as 306 Or App 563 (2020) 571
review any land use decision or limited land use decision of
a local government, special district or a state agency.” In its
first assignment, the county contends that the trial court
lacked subject matter jurisdiction to consider defendants’
declaratory judgment claim, because the issue of the site’s
preexisting or nonconforming status could have been con-
sidered and, therefore, should have been raised in one of the
two previous land use proceedings before LUBA. Defendants
counter that they had no reason to raise the site’s pre-
existing or nonconforming status in the earlier litigation
relating to the site plan approval, which did not contest
defendants’ use of the property, and that the trial court had
subject matter jurisdiction under ORS 197.825(3)(a), which
provides:
“Notwithstanding subsection (1) of this section, the circuit
courts of this state retain jurisdiction:
“(a) To grant declaratory, injunctive or mandatory
relief in proceedings arising from decisions described in
ORS 197.015(10)(b) [listing excluded decisions] or proceed-
ings brought to enforce the provisions of an adopted com-
prehensive plan or land use regulations[.]”
court. Rather, the assignments merely argue against the trial court’s reason-
ing for its conclusion that defendants were entitled to a declaration that the
extraction of Tumalo Tuff on 30 acres is not subject to the county’s land use plan-
ning rules. With the exception of the assignment of error challenging the trial
court’s subject matter jurisdiction, we treat the assignments together as a single
assignment challenging the declaratory judgment ruling.
Defendants note further that the county’s arguments relate only to defen-
dants’ declaratory judgment counterclaim and that the county has not explicitly
assigned error to the trial court’s dismissal of the county’s enforcement action.
Defendants are correct that the dismissal of the county’s claim should have been
separately assigned as error and is not implicitly encompassed in the assign-
ments relating to the declaratory judgment counterclaim. However, even if there
had been a separately assigned error, in light of our disposition of the declara-
tory judgment claim, the trial court’s ruling dismissing the county’s enforcement
action would also be affirmed.
The county asks us to review de novo its second assignment, in which it
asserts that the trial court erred in rejecting its defense that defendants had
waived their right to assert a nonconforming use by submitting to the county’s
land use authority. We do not accept the county’s argument that the defense of
waiver presents an equitable matter that would be within the court’s discretion
to review de novo; but even if it were, we would decline to exercise our discretion
to apply such review. See ORS 19.415(3)(b) (stating that we have discretion to
apply de novo review in equitable actions); ORAP 5.40(8)(c) (stating that we will
exercise that discretion only in exceptional cases).
572 Deschutes County v. Pink Pit, LLC
Whether the circuit court had subject matter jurisdiction to
address defendants’ declaratory judgment counterclaim is
a question of law that we review for errors of law. Merten v.
Portland General Electric Co., 234 Or App 407, 413, 228 P3d
623, rev den, 348 Or 669 (2010).
We agree with defendants that the trial court had
jurisdiction under the statute. As we held in Thomas v. Wasco
County, 284 Or App 17, 37, 392 P3d 741 (2017), rev den, 262
Or 666 (2018), although the circuit courts cannot engage in
land use decision-making or administrative review of land
use decisions, ORS 197.825(3)(a) provides the circuit courts
with jurisdiction to grant declaratory, injunctive, or manda-
tory relief in a proceeding brought to enforce land use regu-
lations. We agree with defendants that the circuit court had
jurisdiction to address defendants’ declaratory judgment
counterclaim in the context of the county’s action to enforce
the 1997 site plan approval.
The county’s arguments relating to the merits of
defendants’ declaratory judgment counterclaim present
legal issues concerning the interpretation of ORS 215.130(5)
and DCC 18.52.160. We therefore review the trial court’s
legal conclusions for legal error and its factual findings for
whether those findings are supported by any evidence in the
record. State v. Serrano, 346 Or 311, 326, 210 P3d 892 (2009)
(questions of statutory construction reviewed for errors of
law); Vukanovich v. Kine, 268 Or App 623, 633, 342 P3d 1075,
adh’d to as modified on recons, 271 Or App 133, 349 P3d 567
(2015) (court’s factual findings reviewed for whether they
are supported by any evidence in the record).
We address first the county’s contention that the
trial court erred in rejecting its argument that the subject
property lost its status as a legal nonconforming use when
defendants and their predecessors submitted to the county’s
land use authority under DCC chapter 18.52. The county
does not describe the way in which the use of the subject
property does not currently conform to the county’s land use
regulations but argues only that the subject property lost
“any” nonconforming use when the county granted Cascade
Pumice’s site plan approval in 1997. We need not decide
whether the subject property lost “any” nonconforming use,
Cite as 306 Or App 563 (2020) 573
because we conclude that surface mining on the subject
property was not a nonconforming use.
ORS 215.130(5) provides:
“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. * * * Except as
provided in ORS 215.215, a county shall not place condi-
tions 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.”
The statute describes an exception to the application of zon-
ing ordinances for a use that is inconsistent with zoning
but that was lawfully in existence before the enactment or
amendment of the ordinance, which our case law describes
as a “nonconforming use.” See Polk County v. Martin, 292
Or 69, 71, 636 P2d 952 (1981) (describing history of non-
conforming use and vesting); Clackamas County v. Holmes,
265 Or 193, 196-97, 508 P2d 190 (1973) (“A nonconforming
use is one which lawfully existed prior to the enactment of
a zoning ordinance and which may be maintained after the
effective date of the ordinance although it does not comply
with the use restrictions applicable to the area.”).
Whether defendants’ use was inconsistent with
current zoning regulations depends on an interpretation
of the Deschutes County Code. In our interpretation of the
Deschutes County Code, we apply the same rules of construc-
tion as those applicable to the interpretation of statutes. City
of Eugene v. Comcast of Oregon II, Inc., 359 Or 528, 540, 375
P3d 446 (2016). As noted, the subject property is zoned SM,
for surface mining, and the rules for compliance with that
zone are set out in DCC chapter 18.52. There is no dispute
that, prior to amendment of the SM zone in 1990, the sub-
ject property was zoned SM and was lawfully being mined
as permitted in that zone. In the SM zone, certain uses “are
permitted outright, subject to a site plan review as provided
in DCC 18.52.040:
“A. Extraction of minerals.
“B. Stockpiling and storage of minerals.
574 Deschutes County v. Pink Pit, LLC
“C. Screening, washing and sizing of minerals.
“D. Sale of minerals and mineral products extracted
and produced on the parcel or contiguous parcels in the
same ownership.
“E. Buildings, structures, apparatus, equipment and
appurtenances necessary for the above uses to be carried
on.”
DCC 18.52.040. All of defendants’ current uses on the sub-
ject property fall within the uses permitted outright in a SM
zone by DCC 18.52.040. Properties within the SM zone may
carry out all of the above uses outright, subject to approval
of a site plan. However, as we have noted, the county’s code
exempts from DCC chapter 18.52 those sites that are “pre-
existing” or “nonconforming.” DCC 18.52.160. Preexisting
sites are therefore exempt from the county’s requirement for
site plan approval, except upon expansion of the site. See
DCC 18.52.070. (“Site plan review and final approval of a
site plan shall be required before the commencement of any
use which requires site plan review under DCC 18.52.040
and 18.52.050(B), and before any expansion of a preexisting
or nonconforming site under DCC 18.52.160.”).
As defined in DCC 18.52.160, a preexisting site is a
site that has “a valid DOGAMI permit or exemption and/or
County permit on the effective date of Ordinance No. 90-014,
and which [is] zoned SM.” The trial court found that the
subject property is zoned SM and that surface mining oper-
ations on the subject property have been conducted under
a valid DOGAMI mining permit since at least 1981, which
predates the county’s enactment of Ordinance 90-014. The
trial court’s findings support only the conclusion that the
subject property is a preexisting site within the meaning
of DCC 18.52.160, and we so conclude.5 Because the subject
5
The county asserts that whether the subject property is a preexisting site
within the meaning of DCC 18.52.160 “is not in play.” It is true that the trial court
did not reach defendants’ argument or make an explicit finding as to whether
the subject property is a preexisting site. However, the county’s challenge to the
trial court’s determination that defendants are not subject to the 1997 site plan
necessarily puts at issue the correct interpretation of DCC 18.52.160 and the
question whether the subject property is exempt from the 1997 site plan under
DCC chapter 18.52 as a preexisting site. See Stull v. Hoke, 326 Or 72, 77, 948 P2d
722 (1997) (“In construing a statute, this court is responsible for identifying the
correct interpretation, whether or not asserted by the parties.”).
Cite as 306 Or App 563 (2020) 575
property is a preexisting site, it is not subject to the require-
ments for a site plan approval, except to expand the site.6
Thus, the trial court correctly concluded that the subject
property is not bound by the 1997 site plan to the extent
that it might limit the extraction, processing, and removal
of Tumalo Tuff on the 30 acres.7
But we must correct the trial court’s declaratory
judgment in one respect. The court’s declaration states that
the subject property is a nonconforming use under ORS
215.130(5). However, a use that is lawful under existing zon-
ing is not a nonconforming use. See Bergford v. Clackamas
County, 15 Or App 362, 367, 515 P2d 1345 (1973) (holding
that a nonconforming use is a use that has been determined
to be contrary to a zoning plan). Because defendants’ use
of the subject property for mining is permitted under the
current SM zone, it is not a nonconforming use.8 Thus, the
subject property has not had nonconforming use status.
We therefore reject the county’s contention that the subject
property lost “any” nonconforming use status when defen-
dants or their predecessors sought a site plan approval.
The county contends that defendants impliedly
waived any claim that the subject property is not subject
to regulation by the county when they or their predeces-
sors submitted a request for a site plan approval and when,
through the years of land use litigation, they acknowl-
edged the applicability of the 1997 site plan approval and
that it prohibited the removal of “overburden,” at the time
understood to include Tumalo Tuff. By acceding to that site
plan, the county contends, defendants have waived their
6
To avoid an “expansion” of the site that would have necessitated a site plan
approval, the trial court limited its declaration to the 30 acres that it determined
were subject to the 1981 DOGAMI permit and concluded that it did not encom-
pass the entire 75.5 acres.
7
We note that defendants stated in their briefs and at oral argument that
they do not seek exemption from the county’s requirements relating to health,
safety, and the environment; they challenge only those restrictions that limit
the minerals that may be extracted, processed, and removed from the subject
property.
8
We note, further, that DCC 18.52.160 defines “nonconforming sites” as
“[m]ineral and aggregate sites which have a valid DOGAMI permit or exemption
and/or County permit on the effective date of Ordinance No. 90-014, and which
are not zoned SM[.]” (Emphasis added.)
576 Deschutes County v. Pink Pit, LLC
right to now assert that Tumalo Tuff is not overburden but
a targeted mineral that can be excavated, processed, and
removed from the subject property.
The waiver of a statutory right requires an “inten-
tional relinquishment or abandonment of a known right
or privilege,” Assn. of Oregon Corrections Emp. v. State of
Oregon, 353 Or 170, 183, 295 P3d 38 (2013), which, in turn,
requires “a clear, unequivocal, and decisive act of the party
showing such a purpose[.]” Id. There is no evidence of an
affirmative waiver of the preexisting-site exception by defen-
dants or their predecessors. If a waiver is to be implied from
the circumstances, it is a question of fact for the trier of fact
to determine “whether the conduct of the party evidences
a conscious and voluntary abandonment of some right or
privilege.” Great American Ins. v. General Ins., 257 Or 62,
72, 475 P2d 415 (1970); (internal quotations omitted); see
also Samuels v. Mack-International etc. Corp., 128 Or 600,
605, 275 P2d 596 (1929) (a question of waiver is one of fact).
We review the trial court’s findings for any evidence in the
record. See Illingworth v. Bushong, 297 Or 675, 694, 688 P2d
379 (1984) (“[A]n appellate court cannot reject the findings
of fact of the trial court unless the appellate court can say
affirmatively that there is no evidence to support the fact
found by the trial court.”).
The trial court here found that there had been no
waiver through conduct, and we conclude that that find-
ing is supported by evidence in the record. The Deschutes
County Code does not state that the county’s approval of a
site plan waives a property’s preexisting-site status. There
is no evidence that when Cascade Pumice filed its site plan
approval application in 1995 or when defendants filed their
application in 2007, they sought to waive the property’s
preexisting-site status. In fact, as noted, the record shows
that in 2007, defendants explicitly reserved the right to
raise the subject property’s preexisting-site status at a later
time. We conclude that there is evidence in the record that
supports the trial court’s determination that defendants
or their predecessors did not waive the subject property’s
preexisting-site status through their conduct in seeking a
site plan approval.
Cite as 306 Or App 563 (2020) 577
The county contends further that the trial court
erred in rejecting its argument that defendants should be
barred by laches from asserting that the subject property is
a preexisting site. Laches is an equitable defense that applies
to equitable claims. Corvallis Sand & Gravel v. Land Board,
250 Or 319, 325, 439 P2d 575 (1968) (“[L]aches may not be
used as a defense against a claim purely legal.”). To pre-
vail, the party asserting laches must establish that (1) the
party against whom it is asserted delayed raising the claim
for an unreasonable length of time; (2) with full knowledge
of all relevant facts (and laches does not start to run until
such knowledge exists); (3) resulting in such substantial
prejudice to the party asserting it that would make it ineq-
uitable for the court to grant the requested relief. Mattson
v. Commercial Credit Business Loans, 301 Or 407, 419, 723
P2d 996 (1986); Stephan v. Equitable S & L Assn., 268 Or
544, 569, 522 P2d 478 (1974); The Hoag Living Trust dated
February 4, 2013 v. Hoag, 292 Or App 34, 43, 44, 424 P3d 731
(2014). Laches thus has no application in a declaratory judg-
ment proceeding in which the relief sought is purely legal.
See Ken Leahy Construction, Inc. v. Cascade General, Inc.,
329 Or 566, 571, 994 P2d 112 (1999) (“Declaratory judgment
proceedings can be legal or equitable in nature, depending
on the nature of the case and the relief sought.”).
The parties appear to assume that defendants’
declaratory judgment claim is equitable and do not dispute
the potential applicability of laches. Assuming, without
deciding, that defendants’ declaratory judgment claim is
one that should be treated as equitable, we conclude that
the county has not met its burden to show that laches should
apply. In the first place, the delay in raising the claim that
the subject property is a preexisting site was not unrea-
sonable. Before the county brought this enforcement action
seeking to restrict defendants’ use of the subject property,
defendants had no reason to seek a declaration of the sub-
ject property’s preexisting use. See Hammond v. Hammond,
296 Or App 321, 334, 438 P3d 408 (2019) (“[o]nly after an
actual repudiation occurs or an adverse claim is asserted
against the owner’s interest is a landowner required to
take legal action to protect that interest”) (citing Eichner v.
Anderson, 229 Or App 495, 500, 212 P3d 521, rev den, 347
578 Deschutes County v. Pink Pit, LLC
Or 258 (2009)). Additionally, the county has not shown that
it has suffered prejudice as a result of defendants’ failure to
earlier assert the subject property’s site status. For both of
those reasons, we agree with the trial court that the county
has not established that laches is applicable.
We reject the county’s remaining arguments with-
out further discussion.
Reversed and remanded for entry of corrected judg-
ment declaring that the subject property has a preexisting-
site exemption under DCC chapter 18.52; otherwise affirmed.