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Clackamas County v. Holmes

April 2, 1973

CLACKAMAS COUNTY, RESPONDENT,
v.
HOLMES ET UX, PETITIONERS



Petition for review allowed December 28, 1972; On Review from the Court of Appeals.

Sidney A. Brockley, Oregon City, argued the cause for petitioners. With him on the briefs were Jack, Goodwin & Anicker, Oregon City.

Keith J. Kinsman, Deputy District Attorney, Oregon City, argued the cause for respondent. On the brief were Roger Rook, District Attorney, and Michael D. Montgomery, Deputy District Attorney, Oregon City.

Howell, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Tongue and Bryson, Justices.

Howell

Plaintiff, Clackamas County, filed this suit to enjoin defendants from completing construction of a chicken processing plant on the grounds that the construction violated county zoning and building code ordinances. The trial court enjoined the defendants from any further construction, and the Court of Appeals affirmed, 11 Or App 1, 501 P2d 333 (1972). We granted review.

The defendants raise two issues on this appeal: (1) the validity of the county zoning ordinance, and (2) whether the defendants acquired a prior nonconforming use and vested right to complete construction of the processing plant.

It is not necessary for us to decide the validity of the zoning ordinance applicable to this case, because we find that defendants acquired a vested right to complete construction prior to the enactment of the ordinance.

The defendants have been engaged in raising

and processing poultry since 1950. In 1959 they were located on property near Milwaukie, Oregon, but because of certain physical limitations of the plant and rezoning of the area, the defendants were required to find a new location. In 1963 they became interested in the subject property in Clackamas County. After determining that the land was unzoned and no zoning was contemplated, the defendants conducted soil tests and received preliminary approval from the Oregon State Sanitary Authority. In February 1965 defendants purchased the property, planning to construct the chicken processing facility. A well was drilled, an irrigation system purchased, electrical power installed, and grass planted. The defendants spent approximately $33,000 toward the development of the property prior to March 1966. The total cost of the completed project would be between $400,000 and $500,000.

In March 1966, the county adopted an interim zoning ordinance, zoning the property Rural Agricultural-Single Family Residential.*fn1 The zoning prohibited further construction. Defendants applied for a zone change in 1966 and in 1967, but the applications were denied. Thereafter, the defendants ran cattle on the property. In 1970 they started construction of the processing plant, and a stop work order was issued by the county. This suit was then filed to enjoin the defendants from further construction.

The defendants contend that they had a non-conforming use prior to the adoption of the zoning ordinance. A nonconforming use is one which lawfully existed ...


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