Talent asphalt plant continues operating while appeal moves forward

Mountain View Paving continues to operate its asphalt plant in Talent without land-use approval while the denial of permission to run its batch plant is under appeal to Oregon’s Land Use Board of Appeals.

Jackson County Development Services has suspended an enforcement action against operation because of  a stay issued by LUBA, said Department of Environmental Quality Western Region Air Quality Manager Claudia Davis.

County Counsel Joel Benton confirmed the suspension, but said Development Service Director Kelly Madding would need to supply specifics. Madding did not return calls seeking comment.

In a split decision, LUBA issued a stay of the denial in late October until the appeal is resolved. The board must issue its ruling by Jan. 19.

Jackson County Hearings Officer Donald Rubenstein ruled Sept. 24 against the firm’s application to alter a nonconforming use. On Sept. 28, Jackson County warned the paving firm it would issue a fine of as much as $40,000 if the firm continued operations.

Mountain View Paving has battled environmental group Rogue Advocates and others over its right to operate at the site on Bear Creek since 2011. Neighbors across the creek in Mountain View Estates and residents elsewhere in Talent have complained of noise, odor and dust arising from the operation. Rogue Advocates intervened on the county’s side in the stay and will enter the appeal process also.

DEQ advised the firm in mid-October that continued operation past Oct. 31 would bring consideration of fines or an order against the firm. DEQ’s issuance of an air-quality permit requires that asphalt plants have local land-use approval. DEQ could refer the case to its Office of Compliance and Enforcement.

“In light of those developments, DEQ will not be referring those matters for further enforcement at this time pending a final land-use decision,” said Davis. “Once that occurs, we will re-evaluate the situation.”

Opinions on both sides of LUBA’s stay characterized the request as a bit odd. Those in the affirmative noted it is unusual for the party seeking land-use approval to be the one seeking to stay a ruling.

“It’s rare for a LUBA judge to issue a dissenting opinion,” said Rogue Advocates President Steve Rouse. “At this point, it’s kind of odd because we are intervening on behalf of the county.”

LUBA’s stay ruling said there was a causative relationship between Rubenstein’s Sept. 24 decision and the county’s Sept. 28 notice of enforcement.

LUBA board member Melissa Ryan wrote that seeking stays from LUBA is an “extraordinary remedy.” For a stay, there must be proof of alleged irreparable injury or a high probability of that.

Mountain View Paving attorney Dan O’Connor argued in submissions that $800-per-day fines were onerous and would force the firm out of business. Cessation of operations during the appeals period would result in a loss of $180,000 per month in gross revenue to the firm in addition to loss of goodwill. O’Connor was out of the office and could not be reached for comment.

Ryan also noted that the stay doesn’t equal approval for continued operation and is independent from the separate county action. She wrote that any citations issued to the firm could be appealed, stating that other forums for redress are available.

O’Connor submitted a notice Oct. 13 to appeal the Sept. 24 decision. Jackson County submitted records for the appeal Nov. 4. Petition in the matter is due by Nov 18. Oral arguments in the case will likely be heard in mid-December, a LUBA representative said.

Tony Boom is a freelance writer living in Ashland. Reach him at tboomwriter@gmail.com.

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