Marion County Rural Zoning Ordinance Changes
By Mark D. Shipman
Saalfeld Griggs PC
On July 28th, Marion County amended its rural zoning ordinance by making significant changes to the commercial and industrial zones. These changes affect those properties outside of Rural Service Centers and Unincorporated Rural Communities. The new amendments codify important Oregon case law and place additional restrictions on existing and new commercial and industrial properties, which will be addressed in this article.
BACKGROUND (THE WAY IT USED TO BE)
Prior to the new amendment, the County had three different commercial zones and five different industrial zones. The commercial zones were Commercial Office (CO), Commercial Retail (CR) and Commercial General (CG). The industrial zones were Industrial Commercial (IC), Industrial Park (IP), Light Industrial (IL), Heavy Industrial (IH) and Rural Industrial (IR).
The commercial and industrial zones allowed for an extensive variety of uses, with more intensive zones allowing for those permitted uses in the less intensive zones. For example, the IH zone allowed for metal, transportation, machinery, wood and lumber products manufacturing, and wireless communication facilities; plus it allowed for permitted uses in the IL, IP, and IC zones.
The commercial and industrial zones also had standard restrictions on height, setbacks, and allowed for more tailored restrictions depending on the location of the proposed use and surrounding uses. If you were attempting to rezone a particular property for a specific use, the county also would use a limited use overlay zone (LU) in those cases where the list of potential uses might need to be restricted because of the location of the property and the type of the proposed use in relation to the surrounding area. There were no additional standards for conditional uses, and no restrictions on the scale or size of the proposed use.
KEY CASE IGNITES CHANGE
In 1996, the Oregon Supreme Court decided the case of 1000 Friends of Oregon v. LCDC, (Curry County) 301 Or 447, 724 P2d 268 (1986). In this case, the court held that urban uses require urban land or location, that is, they must be inside an acknowledged Urban Growth Boundary (UGB) or land otherwise identified as “urban.” With this case, the landscape of commercial and industrial uses outside of UGB’s as we knew it was forever changed.
In the decision, the court determined that Goal 14 generally prohibits the urbanization of rural land. It required local jurisdictions to make a case by case determination whether a use was “urban” or “rural” in nature – not an easy task! If the county determined the use was urban, then it would either need to take an exception to Goal 14, or amend its UGB – both options being very difficult to accomplish.
The implementation of the rule of law in this case was slow to occur. One person’s view or definition of what constitutes an urban use is not the same as another’s. Some uses by their very nature are not necessarily urban, but if they grew to a certain size and intensity they could be. Initially, after this case, counties would try and take a practical approach to determining whether a use was urban or rural in its use/operation. Eventually, through other court cases and the periodic review update process, jurisdictions like Marion County were required to deal with this issue and formulate new rules to comply with the Curry County case.
NEW ORDINANCES (THE WAY IT IS)
The new ordinances still allow a variety of uses. Rather than having three separate commercial zones (or six industrial zones) only one is used for each zone with a broad list of uses based on the Standard Industrial Classification Manual (SIC). The standard height and setback provisions are present. However, that is the end of the similarity between the former ordinances and the current ordinances. The ordinances also adopt new, stringent criteria for conditional use permits, and place restrictions on the size/scale of the use. The ordinances also include some important exceptions, described below.
NEW APPROVAL CRITERIA
The new and more restrictive components include six new approval criteria for conditional uses. The new approval criteria read like the typical approval criteria found in conditional uses in the Exclusive Farm Use zones, but in reality go much further in analyzing whether a proposed use would be appropriate in either the commercial or industrial zones. For example, section 145.040(C) states:
“The proposed use will not, by itself or in combination with existing uses, exceed the carrying capacity of the soil or of existing water supply resources and sewer services.”
The level of analysis required by the County in all six of the new conditional use permit criteria is similar. Correspondingly, the level of detail and evidence needed to be submitted by the owner/applicant in seeking approval for their proposed use will be much greater. This is a significant departure from the past process, not only in having the criteria but, more importantly, in the level and scope of evaluation and review of proposed new uses.
IMPORTANT SIZE RESTRICTIONS
Another significant change can be found in the scale or size of the proposed uses, for both permitted and conditional uses. Specifically the new rules limit new commercial uses to no more than 3,500 square feet of floor space, and industrial uses to no more than 35,000 square feet. This is an attempt to deal with the urban vs. rural dichotomy of Goal 14 and the Curry County case. The assumption is that a use that is larger than 3,500 square feet (commercial) or 35,000 square feet (industrial) is “urban” in nature and therefore would require a goal 14 exception in order to be lawfully established.
Important exceptions can be found for both existing commercial and industrial uses. Existing commercial and industrial uses can expand, up to the greater of 3,500 square feet (commercial) or 35,000 square feet (industrial) or 25% of the floor area as of July 28, 2004. Another important exemption to the scale restrictions can be found in agriculture and forestry related products and resource related uses if they meet additional criteria.
The new ordinances provide both benefits and restrictions that have to be carefully analyzed for existing uses, and for new or expanding existing uses in the rural areas for those properties zoned commercial or industrial. For those existing uses that continue to remain, the ordinances will not substantially affect the use or the property. However, for those properties that formerly had commercial or industrial uses, but now are vacant, the new ordinances may create a harsh and unintended affect for those property owners trying to site/establish new uses.