Later courts went against this
Overruled on other grounds by Forman v. Clatsop County, 63 Or. App. 617 (1983)
” Eagle Creek Rock Prod. v. Clackamas Co., 27 Or App 371, 374, 556 P2d 150 (1976), overruled on other grounds by Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983); ORS 215.130(5).
The opinion
THORNTON, J.,
dissenting.
1 cannot agree with the central conclusion of the majority opinion, namely, that "the primary jurisdic *376 tion to determine whether a nonconforming use exists lies in the circuit courts.” To the contrary it is my view that the circuit courts have appellate jurisdiction rather than primary jurisdiction to determine this issue. See, ORS 215.402 et seq. Indeed the majority opinion seems to recognize that this is a mixed question of law and fact for initial determination by the local administrative body when it states:
"It may be necessary or desirable for a local government to hold a hearing to assist it in determining its position on whether a landowner has a nonconforming use within the state standard; for example, when a landowner applies for a building permit. * * *”
I would agree that under ORS 215.130(4) the local zoning body has no discretion in allowing the nonconforming use once that use has been properly established by the landowner. However, as I understand the scheme of ORS ch 215, the initial determination of the existence of the nonconforming use is to be made by the local zoning body after an evidentiary hearing in the same manner as any other zoning issue, except of course as to the matter of no discretion as noted in the preceding sentence. If the property owner is dissatisfied with that determination he has the right of judicial review as provided by ORS 215.422 and ORS 34.010 to 34.100, as with any other contested administrative determination in the zoning process.
Additionally, by the terms of ORS 215.180 and 215.185 the county or an aggrieved person "may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or other appropriate proceedings to prevent * * * the unlawful * * * use.”
Accordingly, I believe that under ORS 215.422(4) we must review this record and determine if the order of the circuit court affirming the determination of the board of county commissioners is supported by substantial evidence. ORS 34.040(3).