Appeal from Circuit Court, Clackamas County. P. K. Hammond, Judge.
Alan K. Brickley, Portland, argued the cause for appellants. With him on the briefs were Davis, Jensen, DeFrancq & Holmes, Portland.
Richard F. Crist, Deputy District Attorney, Oregon City, argued the cause for respondent. With him on the brief was Roger Rook, District Attorney, Oregon City.
Schwab, Chief Judge, and Langtry and Foley, Judges.
On October 31, 1969, Clackamas County adopted a zoning ordinance which classified defendants' property as RA-1 (agricultural) single family residential district. Thereafter, the county sought an injunction restraining the defendants from using a portion of their property as an airport landing strip in violation of the ordinance.
Defendants contended that the property had been used as a landing strip prior to the adoption of the zoning ordinance; therefore, defendants had the right to continue that use as a nonconforming use.
The trial judge granted the injunction on the grounds that the prior use had been unlawful because
neither defendants nor their predecessors had obtained the required state and federal airport licenses; hence a nonconforming use was never established.*fn1 We do not reach the question whether failure to obtain the airport license rendered defendants' use unlawful within the meaning of ORS 215.130 (5),*fn2 having concluded that the use of the property as a landing strip was too infrequent and incidental to constitute an "existing use" within the meaning of that term in zoning law.
Defendants took possession of the property in late June 1969, intending to use the property for farming and for recreational and instructional purposes in connection with their program for disadvantaged youth. Airplane rides were to be part of that program. The entire property apparently consisted of a parcel of land in excess of twenty acres, with approximately one-tenth or less used as the landing area. The tract was described as primarily pasture and hayfields, and having an old house, barn and garden. Defendants
kept cattle and other livestock on the property.
Previous owners had used part of the property as a landing strip with varying frequency. The landing strip area was unimproved, and was characterized as a "cow pasture" by one of the defendants as of the time of purchase. After acquiring the property, defendants spent no money on improvements related to use of the property as a landing strip, although the area in question was mowed once. One of the defendants kept his plane on the property some of the time, and friends flew in and out occasionally. Conflicting testimony indicated that the landings were as frequent as once a day (according to defendants) or as few as once a month or less (according to neighbors). The trial judge characterized the use as "periodic," and we are satisfied that that finding meant an intermittent rather than ...