Vickers v. Franklin Co. Bd of Comm'rs

1

NOT DESIGNATED FOR PUBLICATION

No. 118,649

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JERRY L. VICKERS, et al.,
Appellants,

v.

FRANKLIN COUNTY BOARD OF COMMISSIONERS,
MID-STATES MATERIALS, LLC, and ROBERT B. KILLOUGH,
Appellees.


MEMORANDUM OPINION

Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Opinion filed July 19, 2019.
Reversed and remanded with directions.

R. Scott Ryburn, of Anderson & Byrd, LLP, of Ottawa, for appellants.

Blaine Finch, of Finch, Covington & Boyd, Chartered, of Ottawa, Bradley R. Finkeldei, of
Stevens & Brand, LLP, of Lawrence, and Derek L. Brown, county counselor, for appellees.

Before BRUNS, P.J., BUSER and SCHROEDER, JJ.

BUSER, J.: Jerry L. Vickers, et al. (collectively Plaintiffs) are landowners who
own real estate near a rock quarry in Franklin County, Kansas. The rock quarry is owned
by Robert B. Killough and leased to Mid-States Materials, LLC (Mid-States). Plaintiffs
filed a lawsuit against the Franklin County Board of County Commissioners (Board),
Mid-States, and Killough (collectively Defendants), seeking to set aside a special use
permit granted in 1998 and to enjoin Mid-States from operating the rock quarry. The
district court granted the Defendants' motion for summary judgment and upheld the
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validity of the special use permit. The Plaintiffs' motion for summary judgment was
denied.

Plaintiffs appeal the district court's order granting summary judgment to the
Defendants. On appeal, the Plaintiffs raise several arguments challenging the validity of
the special use permit which allows for quarry operations. Plaintiffs contend: (1)
Franklin County failed to follow the required procedures when issuing the 1998 special
use permit; (2) the rock quarry was not operating as a legal nonconforming use when the
special use permit was issued or thereafter; (3) Franklin County failed to address the
factors identified in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130
(1978), when granting the special use permit; and (4) the special use permit lapsed
because rock sales did not occur every 365 days.

After reviewing the record on appeal and the parties' briefs, we find the Plaintiffs'
argument—that the special use permit is invalid—has merit because Franklin County
failed to comply with Kansas statutory requirements when issuing it. Accordingly, we
reverse the district court's grant of summary judgment for Defendants which upheld the
validity of the Quarry's special use permit. The case is remanded to the district court with
directions to grant summary judgment for Plaintiffs on their claim that the Quarry's
special use permit is invalid and to vacate the permit. On the other hand, on remand the
district court is directed to grant summary judgment for Defendants on their claim that
the Quarry was in operation prior to and at the time of the adoption of the zoning
regulations and the Quarry's lawful nonconforming use has not been discontinued or
abandoned since that time.

FACTUAL AND PROCEDURAL BACKGROUND

Mid-States operates a rock quarry in the Peoria Township of Franklin County,
Kansas, on three adjoining tracts of land owned by Killough. The three tracts of land are
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collectively known as the Hickory Hills Quarry (the Quarry). Before Killough leased the
Quarry to Mid-States in 2013, there were other operators.

The Quarry began operation in 1994 and was originally comprised of two tracts of
land. By January 1995, the Quarry had a large pit and rock stockpile. On June 1, 1995,
Killough leased the Quarry to Killough Quarries, Inc.—a corporation he owned and
operated. About three months later, Killough Quarries, Inc. assigned the quarry lease to
Hunt Midwest Mining, Inc. (Hunt Midwest). In 1996, Killough purchased the third tract
of land which now included the Quarry. Killough and Hunt Midwest amended the
assigned quarry lease in July 1997 to include the third tract of land. As of July 22, 1997,
all three tracts of land that comprised the Quarry were leased to Hunt Midwest in a single
lease.

On January 8, 1998, the Board included the Peoria Township within Franklin
County's zoning regulations by adopting Resolution 98-01. Under this resolution, all the
unincorporated area of the Peoria Township was zoned as an Agricultural District (A-3).

To address existing businesses operating on previously unzoned property in
Franklin County, the Board proposed Resolution 98-13. Resolution 98-13 passed on
March 9, 1998, and added Section 116 to Article 4 of Franklin County's zoning
regulations. Under Section 4-116, property owners had 180 days from the effective date
of the amendment to apply for a special use permit at no charge. The procedure to obtain
a special use permit under Section 4-116 is described later in this opinion.

In June 1998, Killough and Hunt Midwest applied for a special use permit for rock
quarrying and mining, rock crushing, rock stockpiling, and rock sales on the Quarry.
Franklin County did not provide the Quarry's surrounding neighbors with notice of the
special use permit application. A special use permit was approved for the Quarry on July
10, 1998.
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Killough leased the Quarry to Mid-States in 2013. About three years later, in June
2016, Mid-States began blasting rock at the Quarry. This was the first time since 1994
that rock was blasted or mined from the Quarry. On September 26, 2016, Plaintiffs filed
this action and petitioned the district court for an order declaring the Quarry's special use
permit invalid and also seeking to enjoin the Defendants from all quarry operations.

Both parties moved for summary judgment. Defendants argued that summary
judgment should be granted in their favor because: (1) the Quarry's special use permit
was valid, and (2) even if the special use permit was invalid, the Quarry was operating as
a legal nonconforming use. Plaintiffs responded that summary judgment should be
granted in their favor because the Quarry's special use permit was not valid. Plaintiffs
also claimed the Quarry may not operate as a nonconforming use because no quarry
operations occurred for more than six months before Franklin County issued the special
use permit or thereafter.

The district court granted Defendants' motion for summary judgment based on its
determination that the Quarry's special use permit was validly issued by Franklin County.

Plaintiffs appeal.

THE VALIDITY OF THE QUARRY'S SPECIAL USE PERMIT

On appeal, the Plaintiffs contend the Quarry's special use permit is invalid because
Franklin County violated the procedural requirements of K.S.A. 12-757 and Franklin
County's 1998 zoning regulations (1998 Zoning Regulations) when approving the special
use permit. Plaintiffs also assert: (1) the special use permit was invalid because Franklin
County failed to consider the so-called Golden factors, Golden, 224 Kan. at 598-99; (2)
Defendants failed to prove the Quarry's special use permit had not lapsed; and (3) the
Quarry was not operating as a legal nonconforming use.
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We begin the analysis with our standard of review. Our court's standard for
reviewing a district court's summary judgment ruling is well established:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan.
616, 621, 413 P.3d 432 (2018).

As discussed throughout this opinion, the district court made numerous findings of
fact that were set forth in separately numbered paragraphs in its journal entry filed on
November 22, 2017. The parties do not argue that there is any genuine issue as to any
material fact found by the district court. Rather, as they did in the district court, the
parties strongly dispute the district court's legal conclusions based on those material facts.

Without any factual dispute, our review of a summary judgment order is de novo.
Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). The interpretation of statutes
and ordinances also presents questions of law subject to de novo review. State ex rel.
Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).

Our court applies the same rules in interpreting a municipal ordinance as it does in
interpreting a statute. Robinson v. City of Wichita Employees' Retirement Bd. of Trustees,
291 Kan. 266, 272, 241 P.3d 15 (2010). The most fundamental rule of statutory
construction is that the intent of the Legislature governs if that intent can be ascertained.
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State ex rel. Schmidt, 303 Kan. at 659. An appellate court must first attempt to determine
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016). When a
statute is plain and unambiguous, an appellate court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. 304 Kan. at 409.

Article 11 of the 1998 Zoning Regulations addressed general procedures for
amending the zoning regulations. To obtain a special use permit under Article 11, a
property owner was required to submit a proposed special use permit to the planning
agency. For its part, the planning agency was required to hold a public hearing and
provide notice of the hearing to surrounding landowners. After a public hearing, the
special use permit could then be approved by a vote of the Board.

Separate and apart from Article 11, however, a few months later the Board
adopted Section 4-116 into the 1998 Zoning Regulations by enacting Resolution 98-13.
The intent of Section 4-116 was to "protect all property owners that are operating legal
existing businesses located within previously unzoned townships." Section 4-116 applied
to townships unzoned before May 7, 1997, but that were later included in the Franklin
County zoning regulations. Because the Peoria Township was unzoned prior to May 1997
but was included in the Franklin County zoning regulations on January 8, 1998, Section
4-116 clearly applied to the Quarry.

Section 4-116 allowed the Franklin County Planning Department to issue special
use permits to legal existing businesses located in previously unzoned townships.
Businesses were allowed to expand the legal bounds of the property, but expansion into
additional property acquired after the special use permit was issued required compliance
with the application and review process provided in Article 11. Of note, special use
permits issued under Section 4-116 were continuous "unless the use is abandoned or
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vacated for longer than 365 days at which time the Special Use Permit will become null
and void."

Peoria Township property owners had 180 days from March 9, 1998, to apply for
a special use permit authorized by Section 4-116. To apply for a special use permit under
Section 4-116, a property owner was required to file certain documents with the Franklin
County Planning Department. The planning department was empowered to review the
special use permit application and issue a special use permit to valid existing businesses
in the previously unzoned townships. Importantly, unlike Article 11 procedures, Section
4-116 did not require notice to surrounding landowners, hearings, or a vote of the Board.

In compliance with Section 4-116, Hunt Midwest applied for a special use permit
within 180 days of March 9, 1998. Upon review, the Planning Director approved a
special use permit for operations involving the Quarry on July10, 1998. Prior to granting
the special use permit, there was no notice to surrounding landowners, no public
hearings, no recommendations by the planning agency, and no vote by the Board. As
mentioned earlier, no such procedural requirements were required under Section 4-116.

Although Section 4-116 did not require the county to comply with procedural
safeguards, a fundamental question was raised by Plaintiffs in the district court and is
reprised on appeal: Did procedural failures or omissions render the Quarry's special use
permit invalid under Kansas statutes, in particular, K.S.A. 12-757?

A municipality has no inherent power to enact zoning laws. Instead, a
municipality's zoning power is derived solely from the authority granted to the
municipality by Kansas zoning statutes. Crumbaker v. Hunt Midwest Mining, Inc., 275
Kan. 872, 884, 69 P.3d 601 (2003). In addition to the zoning statutes in K.S.A. 12-741 et
seq., municipalities may enact and enforce additional zoning regulations which do not
conflict with those statutes. K.S.A. 12-741(a). Our Supreme Court has "long held that the
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power of a city government to change the zoning of property—which includes issuing
special use permits—can only be exercised in conformity with the statute which
authorizes the zoning." 275 Kan. at 886.

Under K.S.A. 12-755(a), a county's governing body may adopt zoning regulations
that provide for issuing special use permits. But K.S.A. 12-757 demands certain notice
and hearing requirements for amending zoning regulations. Importantly, although K.S.A.
12-757 does not explicitly mention special use permits, our Supreme Court has
consistently found the procedures in K.S.A. 12-757 apply to special use permits. Manly v.
City of Shawnee, 287 Kan. 63, 67, 194 P.3d 1 (2008); Crumbaker, 275 Kan. at 886.

K.S.A. 1998 Supp. 12-757(b) provides that the planning commission must hold a
public hearing on proposed zoning amendments. If the proposed amendment affects
specific property, "written notice of such proposed amendment shall be mailed at least 20
days before the hearing . . . to all owners of record of real property located within at least
1,000 feet of the area proposed to be altered." K.S.A. 1998 Supp. 12-757(b). After
receiving the planning commission's recommendation, the county's governing body may
adopt that recommendation by resolution, override the planning commission's
recommendation by a two-thirds majority vote, or return the recommendation to the
planning commission. K.S.A. 1998 Supp. 12-757(d). But if the adjoining landowners
who were required to be notified file a protest petition, the governing body must approve
the amendment by a three-fourths vote. K.S.A. 1998 Supp. 12-757(f).

Upon the adoption of Resolution 98-01, the Quarry was zoned as an Agricultural
District (A-3). Any zoning change or special use permit issued after this initial zoning of
the Quarry required Franklin County to follow the procedures in K.S.A. 12-757. Yet, it is
undisputed that the Quarry's special use permit was granted without a public hearing,
notice to the surrounding landowners, or a vote by the Board. As a result, the special use
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permit application process in Section 4-116 of the 1998 Zoning Regulations did not
comply with the mandatory statutory procedures set forth in K.S.A. 12-757.

The procedural defects here resemble those in Crumbaker. In Crumbaker, the
defendant operated a quarry under Johnson County zoning designations with a 10-year
conditional use permit. Before the conditional use permit expired, the defendant and the
City of DeSoto entered into an annexation agreement. Under this agreement, the City
allowed the defendant to continue and expand quarry operations without following the
procedures for rezoning and obtaining a special use permit under K.S.A. 12-757. Our
Supreme Court held that this procedural failure rendered the City's action invalid. 275
Kan. at 887.

In the case on appeal, Defendants argue that the statutory procedures provided in
K.S.A. 12-757 are not applicable to the Quarry's special use permit because the quarry
was a nonconforming use. In support of their argument, Defendants rely on M.S.W., Inc.
v. Marion County Bd. of Zoning Appeals, 29 Kan. App. 2d 139, 24 P.3d 175 (2001).

Kansas law recognizes the nonconforming use doctrine. Zimmerman v. Board of
Wabaunsee County Comm'rs, 293 Kan. 332, 347, 264 P.3d 989 (2011). A nonconforming
use is "a lawful use of land or buildings which existed prior to the enactment of a zoning
ordinance and which is allowed to continue despite the fact it does not comply with the
newly enacted use restrictions." Johnson County Memorial Gardens, Inc. v. City of
Overland Park, 239 Kan. 221, 224, 718 P.2d 1302 (1986). Kansas courts have recognized
that the nonconforming use doctrine has a policy of restriction and eventual elimination
of the nonconforming use. Board of Seward County Comm'rs v. Navarro, 35 Kan. App.
2d 744, 752, 133 P.3d 1283 (2006). "If a nonconforming use is established, however, the
party has a vested right which is protected by due process." Crumbaker, 275 Kan. at 882.

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The nonconforming use doctrine is codified at K.S.A. 12-758(a), which states that
"regulations adopted under authority of this act shall not apply to the existing use of any
building or land." Contrary to Defendants' argument, however, the Quarry was not
exempt from the requirements of Kansas statutes based on this statutory language. While
the regulations zoning the area as agricultural land did not apply to the Quarry,
Defendants still needed to follow the statutory procedures provided in K.S.A. 12-757 to
obtain a special use permit for the Quarry property.

Defendants' reliance on M.S.W. is not persuasive. In M.S.W., Marion County
passed a 1992 resolution that zoned previously unzoned areas of the county and
simultaneously granted 116 conditional use permits for existing uses. As part of this
resolution, the property at issue was zoned agricultural with a conditional use permit
allowing for use as a solid waste landfill. The landfill closed in 1996 and, more than a
year later, the plaintiff purchased the property. The Plaintiff's applications for landfill
permits, however, were rejected. The Board of Zoning Appeals found that no
nonconforming use ever existed and the conditional use permit lapsed because the landfill
had been closed for over six months.

The M.S.W. court held that the county was not required to follow the procedures in
the zoning ordinances for issuing a conditional use permit when the conditional use
permit was issued simultaneously with the initial zoning. 29 Kan. App. 2d at 147-55. The
court agreed that the conditional use permit had the same effect for the landowner as a
landfill zoning classification. 29 Kan. App. 2d at 150. The M.S.W. court also noted the
"granting of [conditional use permits] simultaneously with the initial zoning regulations
in order to avoid the creation of nonconforming uses is consistent with the disfavored
status of nonconforming uses." (Emphasis added.) 29 Kan. App. 2d at 154.

While in the case on appeal, Section 4-116 similarly sought to eliminate
nonconforming uses, the circumstances in M.S.W. are different from this case. In M.S.W.,
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the county granted the conditional use permit at the time of the initial zoning. Here, the
Quarry was operating as a nonconforming use after the property was zoned agricultural in
January 1998. Section 4-116 then provided Killough and Hunt Midwest the opportunity
to exchange its nonconforming use status for a special use permit.

By issuing the special use permit, the County granted Killough and Hunt Midwest
additional protections and rights they would not have enjoyed as a nonconforming use.
For example, the special use permit allowed the current use to expand without restriction,
allowed for any structure to be rebuilt, and extended the time the use could be abandoned
and then resumed. These additional rights granted through the special use permit required
Defendants to abide by the statutory procedures found in K.S.A. 12-757.

Moreover, the parties and court in M.S.W. did not consider whether the county's
unilateral grant of conditional use permits concurrently with the initial zoning regulations
violated K.S.A. 12-757. Instead, the legal arguments in M.S.W. focused on whether the
simultaneous grant of conditional use permits with the initial zoning regulations violated
the nonconforming use doctrine. In M.S.W., the plaintiff's main contention was that the
county "converted its vested right of a nonconforming use landfill into a nonvested right
of a conditional use of property as a landfill without any due process." 29 Kan. App. 2d at
152. While the plaintiff's argument in M.S.W. failed to show that the conditional use
permit was void, Plaintiffs' arguments here successfully show that the Quarry's special
use permit is invalid.

Although the Quarry's special use permit was issued in compliance with the
process outlined in Section 4-116, Defendants may not circumvent Kansas' zoning
statutes. The failure to follow the notice and procedure requirements of K.S.A. 12-757
when issuing the special use permit renders the county's action invalid. See Crumbaker,
275 Kan. at 887. As a result, the Quarry's special use permit must be invalidated.

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Because the Quarry's special use permit is invalid, we reverse the district court's
grant of summary judgment for Defendants which upheld the validity of the Quarry's
special use permit. The case is remanded to the district court with directions to grant
summary judgment for Plaintiffs on their claim that the Quarry's special use permit is
invalid and to vacate the permit. Given our holding based on the Board's noncompliance
with the notice and procedure requirements of K.S.A. 12-757, we decline to consider
Plaintiffs' other grounds also challenging the validity of the special use permit.

In addition to raising the issue of the invalidity of the special use permit, however,
the Plaintiffs also appealed the district court's finding that the Quarry was in operation
prior to and at the time of the adoption of the zoning regulations and the Quarry's legal
nonconforming use has not been discontinued or abandoned since that time.

THE QUARRY'S STATUS AS A NONCONFORMING USE

As part of their motion for summary judgment, Plaintiffs contended that the
Quarry was not a legal nonconforming use prior to or after the issuance of the special use
permit. Plaintiffs acknowledged that under K.S.A. 12-758, land use which existed prior to
the enactment of a zoning ordinance may continue despite the fact it does not comply
with newly enacted zoning restrictions. As Plaintiffs described it: "The non-conforming
use is thereby allowed to continue, or 'grandfathered in' and the landowner is allowed to
continue the use even if it is a violation of the zoning modification." But Plaintiffs cited
Article 8 of the 1998 Zoning Regulations, which provided that any nonconforming use
that is "voluntarily discontinued" for a period of six consecutive calendar months shall
not thereafter be resumed.




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On appeal, Plaintiffs contend that Defendants

"cannot now claim a non-conforming use for a quarry when the evidence is
uncontroverted that the non-conforming use has been discontinued and lapsed since no
rock sales, rock crushing, mining or blasting had occurred for six (6) months after Peoria
Township was zoned, and prior to the issuance of [the special use permit] on July 10,
1998."

A nonconforming use is a use which lawfully existed before the enactment of a
zoning ordinance. A nonconforming use is allowed to be maintained after the effective
date of the ordinance even though it does not comply with newly enacted use restrictions.
The party claiming the nonconforming use has the burden to prove such use exists.
Crumbaker, 275 Kan. at 881; but see Kuhl v. Zoning Hearing Bd. of Greene Tp., 52 Pa.
Commw. 249, 251, 415 A.2d 954 (1980) ("Abandonment is a question of fact which
depends upon all the factors present in a case, and the burden of proving an abandonment
of a non-conforming use is on those who assert the abandonment.").

Article 8 of the 1998 Zoning Regulations addressed nonconforming uses. Under
Section 8-130(I), when a nonconforming use of land is discontinued or abandoned for six
consecutive months, the nonconforming use may not be reestablished or resumed, and
any subsequent use must conform to the zoning regulations. In granting summary
judgment to Defendants, the district court determined that (1) the Quarry operated as a
nonconforming use when Peoria Township was zoned, and (2) the nonconforming use
was never discontinued or abandoned.

In this case the uncontroverted facts showed no mining, crushing, or blasting of
rock occurred at the Quarry from 1994 until 2016. There were no rock sales from October
1997 until November 1998. As a result, no rock sales from the Quarry occurred during
the six months after the Peoria Township was zoned. However, the Quarry was leased by
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Killough each year since 1997 and the district court specifically found that "rock was
sold from the Quarry every year since 1997."

The district court specifically applied the law from Union Quarries, Inc. v. Board
of County Commissioners, 206 Kan. 268, 275, 478 P.2d 181 (1970), which, in the words
of the district court, meant that "the legal, non-conforming use existed, continued, and
was not abandoned as long as rock from the quarry was sold each year and the quarry use
was not otherwise abandoned." In this regard, the district court made two key findings.
First,

"[r]ock sales occurred in October 1997 from the Quarry, which was within a year before
the zoning resolution was passed on January 8, 1998, and thus the Quarry was in
operation prior to the adoption of the zoning regulations, and was a non-conforming use
at the time of the adoption of the zoning regulations."

Second, "the Quarry use has not been discontinued or abandoned since January 8,
1998."

Was the use of the Quarry discontinued or abandoned prior to or after enactment
of the 1998 Zoning Regulations? The word discontinuance, as used in a zoning
ordinance, is equivalent to abandonment. Union Quarries, 206 Kan. at 275.
"Abandonment of a nonconforming use ordinarily depends upon a concurrence of two
factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries
the implication the owner does not claim or retain any interest in the right to the
nonconforming use." 206 Kan. 268, Syl. ¶ 3. Importantly: "Mere cessation of use does
not of itself amount to abandonment although the duration of nonuse may be a factor in
determining whether the nonconforming use has been abandoned." 206 Kan. 268, Syl.
¶ 4.

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While abandoning a nonconforming use typically requires an intent to abandon the
use, the 1998 Zoning Regulations eliminate the intent requirement. Section 8-130(I)
provides that when a nonconforming use is discontinued or abandoned for six
consecutive months "(regardless [of] any reservation of an intent not to abandon or to
resume such use), such use shall not thereafter be re-established or resumed."

Our Supreme Court has addressed whether a nonconforming quarry use was
abandoned in Union Quarries. The quarry operator in Union Quarries had removed its
quarrying and crushing equipment from the land. Then, for a period of two years, there
was no rock drilling, blasting, or crushing on the quarry land. And, similar to the present
case, the regulations at issue in Union Quarries provided that a nonconforming use that
has been abandoned for six months may not be resumed.

Our Supreme Court in Union Quarries held that the evidence supported a finding
that the nonconforming quarry use was not abandoned. 206 Kan. at 276. The court found
that the quarry operator's actions of using portable quarrying equipment as needed to
maintain rock stockpiles was in line with common quarrying practices. The court then
noted that, during the two years of no blasting, the quarry operator made royalty
payments, small quantities of rock were sold, and a salesperson quoted rock prices to
construction companies. The court concluded: "The property was initially purchased for
a rock quarry. There was little in the evidence to suggest abandonment—to the contrary,
it indicated the property has continually been held for the same purpose." 206 Kan. at
276.

A review of law from other jurisdictions also supports the view that a
nonconforming quarry use is not abandoned simply because there is no rock mining,
crushing, or blasting. See Bither v. Baker Rock Crushing Co., 249 Or. 640, 649, 438 P.2d
988, modified 440 P.2d 368 (1968). Indeed, courts typically find that a nonconforming
quarry use is not abandoned when there is storage and sale of rock. River Springs, Ltd.
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Liability Co. v. Board of Teton County Comm'rs, 899 P.2d 1329, 1335 (Wyo. 1995)
(holding that a nonconforming quarry was not abandoned, even though the quarry was
substantially dormant for six years, when small quantities of previously quarried
limestone were removed). See Hinkle v. Board of Zoning Adjustment and Appeals of
Shelby County., 415 S.W.2d 97, 100 (Ky. 1967) (noting that "although the only activities
at the quarry were the storage and sale of stone, the quarry was never abandoned").

Two Oregon cases provide additional guidance on whether a nonconforming
quarry use has been abandoned. In Polk County. v. Martin, 292 Or. 69, 78, 636 P.2d 952
(1981), the court held that a nonconforming quarry use had not been abandoned even
though the use was intermittent and fluctuated. In the four years before the quarry in
Martin was zoned, only 6,000 cubic yards of rock were removed with less than $1,000 of
sales. However, this low production and sales were consistent with the quarry's previous
30 years.

The Martin court determined that there was no interruption in use either before or
after the zoning ordinance became effective. Although the sporadic and intermittent use
was relevant to the scope of the permitted nonconforming use, it did not negate the
existence of an ongoing quarry business. 292 Or. at 76. The Martin court found:

"The land had been used in the same manner for over 30 years. There was continuous use
in the sense that stockpiling existed and the owner had committed the property to that
use. Even though the sales were not substantial, rock was available for sale and sales
were periodically made. The same is true of the quarrying. There was no interruption of
the use . . . ." 292 Or. at 78.

In the other Oregon case, Tigard Sand and Gravel, Inc. v. Clackamas County, 149
Or. App. 417, 423-24, 943 P.2d 1106 (1997), the court distinguished Martin and found
that a nonconforming quarry use had been abandoned for more than 12 consecutive
months. After the quarry in Tigard Sand was zoned, there was no crushing or quarrying
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activity from 1984 until 1991. Although there was a rock stockpile on the property, the
site did not remain open for sales during the seven-year period. And, from 1989 to 1991,
the property was converted into a firewood processing and wood sorting business while
the quarry site was not utilized.

In holding that the nonconforming quarry use was abandoned, the Tigard Sand
court found:

"In this case . . . petitioner's quarry use was not simply fluctuating, intermittent or
sporadic. For a period of seven years, it virtually had stopped, and, for the last two of
those seven years, the site on which it had been conducted was used principally, if not
exclusively, for a business activity that was totally unrelated to quarry operations. Under
the findings, the nonconforming quarry use was both interrupted and abandoned as a
matter of law, and the resumption of the use was foreclosed . . . ." 149 Or. App. at 424.

Returning to the present case, both before and after enactment of the 1998 Zoning
Regulations, the land was continually under lease to quarry operators, rock was
continuously stockpiled at the Quarry, and there were yearly rock sales. The Quarry was
created by blasting and quarrying about 30,000 tons of rock. This rock was stockpiled
and periodically sold over the next 20 years. The evidence shows that, from at least 1996
to 2000, Hunt Midwest sold rock from the Quarry each year. During this time—both
before and after the Peoria Township was zoned—rock sales occurred several months
apart and the amount sold per year varied from 3,283 tons in 1996, 662 tons in 1997, 112
tons in 1998, 2,246 tons in 1999, and 1912 tons in 2000. No other use—other than
operating and maintaining the Quarry—occurred on the land from the date the Quarry
was established until this litigation.

As in Martin, the Quarry land had been in use as a quarry for many years. There
was continuous use in the sense that stockpiling occurred and the owner had committed
to this particular use and no other. Rock was available for sale and sales were periodically
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transacted at least once per year. There was no interruption in this use of the Quarry. The
intermittent sales that occurred after the quarry was zoned resembled its previous use.
Even though there were no rock sales in the six months after the Peoria Township was
zoned, the quarry was not abandoned.

We decline to adopt Plaintiffs' suggestion that a nonconforming quarry use is
invariably abandoned between rock sales. A quarry is a unique business. Although intent
to abandon is not relevant to the 1998 Zoning Regulations, courts widely recognize that
quarry operations are inherently sporadic and abandonment may not be inferred from the
mere fact that blasting or crushing stopped or rock sales fluctuated. As the court in Tigard
Sand observed: "[Q]uarry uses are generally more likely than some other types of uses to
be characterized by variations in activity levels and, when that is so, that their 'continuity'
should be gauged accordingly." 149 Or. App. at 423-24.

The Quarry was continuously used as a rock quarry prior to and at the time of the
adoption of the zoning regulations. The Quarry was leased by Hunt Midwest and there is
no evidence that the land was used for another purpose. Although rock sales were
sporadic, rock was stockpiled, available for sale, and sales were periodically made at least
once a year. The district court did not err in its legal conclusion that the Quarry has been
operating continually and without abandonment as a lawful, nonconforming use since
prior to and at the time of the adoption of the zoning regulations.

Although the district court made sufficient findings of fact and legal conclusions
favoring Defendants' nonconforming use claim, it did not specifically order summary
judgment for Defendants on that basis, undoubtedly because it granted summary
judgment for Defendants based on the special use permit claim. Accordingly, on remand,
the district court is directed to grant summary judgment for Defendants on the claim that
the Quarry was in operation prior to and at the time of the adoption of the zoning
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regulations and the Quarry's lawful nonconforming use has not been discontinued or
abandoned since that time.

Reversed and remanded with directions.