Mountain View Paving has been fined $21,700 for code violations resulting from the operation of its asphalt plant adjacent to Bear Creek. The firm has also been ordered to remove the plant and an office structure from the site.
County Hearings Officer Rick Whitlock’s decision was mailed Monday following a March 16 hearing in which code violations from September 2015 into January were considered. Mountain View has run the asphalt plant at the site since 2001 and expanded the facility over the years, but never obtained permits for structures or for operation in a flood plain.
The Oregon Land Use Board of Appeals in January denied an appeal by Mountain View Paving of Hearing Officer Donald Rubenstein’s September 2015 ruling that found the nonconforming use was illegal. Environmental group Rogue Advocates and others had battled the plant’s right to operate since 2011. Talent residents had complained of noise, dust and odors arising from the operation.
“Rogue Advocates is grateful for this county decision providing relief to the surrounding Talent community from a noisy, toxic commercial operation in a residential zone,” said Steve Rouse, group president. “The substantial enforcement fines imposed reflect the legal rent Mountain View Paving has been willing to pay to continue operating.”
Mountain View Paving had pleaded not guilty to the violations, which included use of an office that lacked structural and electrical permits, operation without flood plain development approvals and operating an asphalt plant from Sept. 25 until Oct. 21, 2015. Jackson County issued citations on Jan. 21.
Fines of $200 per day, with a maximum of $10,000 per violation, are allowed by county regulations. Whitlock suspended $4,500 of each fine for the structural, electrical and flood plain violations. He fined the maximum $5,200 allowed for 26 days of plant operations.
“… the defendants have not done all they could to come into compliance with county requirements, particularly regarding their continued use of the office structure,” Whitlock wrote. He continued, “… Defendants chose to continue operating the asphalt plant for a period of time in September and October 2015 because they stood to personally benefit from profits made on asphalt paving products produced and sold during the time,”
Mountain View Paving attorney Dan O’Connor argued the county’s general enforcement policy was to not prosecute while an operation sought permits or approvals to achieve compliance. But Whitlock wrote the county’s way of handling such matters did not give him “the authority to disregard the actions and inactions of defendants in connection with the alleged violations.”
“The hearings officer heard the testimony and he made his ruling. The county intends to follow it as required,” said County Counsel Joel Benton.
While the order calls for removal of the plant and office within 30 days, Whitlock authorized county staff to work with Mountain View Paving on deadline extensions if removal is impractical within the time frame. Whitlock also called for cessation of all operations.
Mountain View must pay the fines within 60 days. If payment is not received by the deadline the suspended portions of the fines will be reinstated.
O’Connor did not return phone calls seeking comment on the rulings or possibility of appeals.
The decision can be appealed to Jackson County Circuit Court. Should the decision apply to the county’s land development ordinance or comprehensive plan or to statewide planning goals, it may be appealed to LUBA within 21 days of March 21.
Some work continues at the site, and Mountain View has applied for permits to stockpile and process aggregate material there. The firm has continued to crush and store recycled asphalt pavement.
O’Connor and owners Paul and Kristen Meyer had maintained the asphalt plant was a grandfathered use because aggregate operations and a concrete plant has existed there prior to 2001. Rubenstein’s September 2015 ruling determined the asphalt plant operation represented an expansion beyond previous activities and was therefore illegal.
A Rogue Advocates representative took photos on Feb. 26 showing the asphalt recycling operation. The representative was present during a visit that is part of a federal Clean Air Act lawsuit filed by the environmental group.
Tony Boom is an Ashland freelance writer. Reach him at firstname.lastname@example.org