concurring.
I concur in the opinion of the majority, as far as it goes. There are two holdings which are implicit in that opinion and I concur based on my understanding of those holdings.
First, I take it that the majority holds that the existing use is not deemed interrupted under section 114.050 of the zoning ordinance, because ORS 215.130(5) and (7) allow intermittent uses and an ordinance cannot diminish the statutorily recognized use by converting intermittency into interruption. I agree. The language of Bither v. Baker Rock Crushing, 249 Or 640, 438 P2d 988, 440 P2d 368 (1968), which suggests to the contrary, is overly broad.
Second, the decree is upheld expressly because it recognizes the existing use, as the trial court opinion put it, only “so long as it does not differ from previous use.” That limitation is essential but it is not spelled out more fully in the decree or by the majority. So there may be no misunderstanding, it is better that the level of activity permitted as an existing use should be addressed.
*83The quarry was operated from 1947 to 1978, when the zoning ordinance was enacted. There was an initial heavy usage which has never been resumed or repeated, i.e., in 1947 and 1948, 200 cubic yards of rock were removed. There was production in only 15 of the following 29 years, totaling 345,000 cubic yards for total sales of $23,300. That computes to average production and sales of under 12,000 cubic yards and $803 per year. For the five years immediately preceding the zoning ordinance, the level of activity was further reduced: under 6,000 cubic yards of rock were removed for sales of less than $1,000, averaging under 1,200 cubic yards and under $200 per year.
These facts describe an intermittent use which was steadily diminished in three stages of activity. The judicial recognition of an existing intermittent use cannot revive the level of activity over 30 years before. The 1947-1948 level was not intermittent; it was a single transaction. The second and third periods of activity were intermittent. The five-year period which preceded the zoning is a substantial period of time by which to measure the level of the existing use on the date of zoning. As in Bither, people in the zone should be subjected to no greater level of explosions and other activity than in the preceding five years. Nor should the land be rendered increasingly less capable of conversion to permitted uses at a rate greater than that of the preceding five years. Therefore, I conclude that the decree should be understood to permit use at the level of the five years preceding the zone enactment, i.e., a level of removal no greater than 1,000 cubic yards during any five-year period.
The majority does not address the issue of the magnitude of the existing lawful use because, I take it, no such issue was made below. Hence, the question is left open. I would answer it.