TALENT — Changing from a concrete to an asphalt batch plant in 2001 has called into question the legality of Mountain View Paving's operation on Bear Creek, a state appeals board has ruled.

TALENT — Changing from a concrete to an asphalt batch plant in 2001 has called into question the legality of Mountain View Paving's operation on Bear Creek, a state appeals board has ruled.

Oregon's Land Use Board of Appeals on Tuesday remanded the issue back to Jackson County Hearing Officer Donald Rubenstein to reconsider whether the plant is a lawful, nonconforming use if the 2001 change is not considered.

The board also asserted that the switch from concrete to asphalt may represent an alteration of use that would not be legal without approval.

Environmental group Rogue Advocates had appealed Rubenstein's September 2013 ruling that declared the batch operation was lawful because batch operations at the site went back to the 1960s.

"We are still reviewing the decision, but overall we are pleased with it," said Courtney Johnson of Crag Law Center, Portland, which represents Rogue Advocates. "LUBA rejected the county's conclusion that the asphalt plant is a lawful, nonconforming use. Without that finding, the asphalt plant continues to be an illegal use of the property."

Johnson said the group looks forward to working with the county on the remand and felt LUBA gave clear instructions on what that should cover.

County Development Services Director Kelly Madding said Mountain View Paving would need to request the remand be considered, beginning a process that must produce a new ruling within 90 days.

"The hearings officer will be holding a hearing," said Madding.

Rubenstein's new ruling could be contested at the Oregon Court of Appeals or remanded to LUBA.

"We are still in limbo. It's only remanded to the county on one issue," said Mountain View Paving owner Paul Meyer, who noted the board rejected three of four claims by Rogue Advocates.

Meyer said he and attorney Dan O'Connor are still deciphering the document before they consult with county officials.

Neighbors and others have contested the presence of the plant since 2011. Residents of Mountain View Estates, located just across the creek from the plant, say that fumes, dust and noise from the operation create a livability problem. They have raised concerns about the operation's impact on air quality and Bear Creek in the event of a flood. Oregon's Department of Environmental Quality has found that the plant complies with air quality standards.

Mountain View Estates resident Lois Schmidt said she was glad the decision is coming back for reconsideration.

"It seems like I'm hearing more noise over there than usual. They have really beefed up their operation," said Schmidt. "It still stinks and it's noisy. They fire up those things over there and it just rocks the house some."

"It's almost like here we go again," said Chris Hudson, owner of Mountain View Estates. "But we are in it for the long haul."

After Rubenstein's September ruling, Mountain View Paving removed structures and materials to comply with Jackson County requirements. Rubenstein had ruled that operations and structures in place before 2003 were legal, but that subsequent improvements were not.

Jackson County issued a floodplain development permit for the work, but that ruling has also been appealed to LUBA, Madding said. While an appeal is in process, county policy allows continued operation, she said.

Meyer began asphalt operations at the site in 2001. Previous owner Howard DeYoung testified a concrete batch plant was on the site from 1988-2000, and that asphalt plants had been located there previously.

Rubenstein argued that the county's definition of batch plant encompassed both asphalt and concrete operations. LUBA's ruling asserts Rubenstein erred by concluding a switch in type of plants had no significance in verifying a nonconforming use.

County land-use development ordinances allow non-conforming operations to continue with only maintenance and repairs or replacement in the event of a fire or natural disaster if they existed before the property was zoned in 1973. Major changes or alterations must be approved.

County officials would have needed to determine a switch from concrete to asphalt did not yield greater impact on the surrounding neighborhood to give approval, but no request for a change was ever made.

Several arguments raised by Rogue Advocates were rejected by the board. Those included that non-conforming use at the site since 1992 was not clearly established and that proof of DEQ air quality permits from 1973 on was required.

The plant is located between Interstate 5 and Bear Creek on 11 acres just south of Exit 21. In spring 2013, the county's Development Services Department ruled the operation was legal. City of Talent as well as Rogue Advocates appealed that decision to Rubenstein.

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