I zoning eases. See C►re~or~. ~i~ v® ~artke, 240 O 35, 400 P2d <br />2 255 (1965). <br />3 Article 22 of the city's development code defines. <br />4 "nonconforming" use as follows <br />5 ''Non-conforming User Any use which lawfully! existed <br />on the effective date of this code but which clue to <br />6 the requirements adopted herein, no longer, complies <br />with the schedule of permitted uses. Uses allowed in <br />7 certain use districts by conditional use permit but <br />which were existing on the effective date of this code <br />8 without a conditional use permit shall also be <br />considered as nonconforming." (emphasis added). <br />9 <br />As the emphasized portion of the code indicates, lawful <br />10 <br />existence is a threshold element of nonconforming use status. <br />11 <br />The :supreme Court has emphasized this requirement in a county <br />12 <br />nonconforming use case arising under ORS Chapter 215. Polk <br />13 <br />Count"r.-Martin, 292 Or fig, 75, 636 P2d 952 (1981). Sergi also <br />14 <br />Morrell v. County_of Dane, 46 Or App 485, 612 P2d 304 (1980). <br />The burden of proving an alleged nonconforming use was lawful <br />16 <br />when established rests on the one who claims nonconforming use <br />17 <br />protection, not on the opponent of the claim. Lane County v. <br />18 <br />Sessett, 46 Or App 319, 612 P2d 297 (1980). <br />19 <br />The city's finding with respect:; to the stratus of the <br />20 <br />industrial access road as a nonconforming use is skeletal, at <br />21 <br />best. There is no indication of whether the "historical use"" <br />22 <br />of the land in question for industrial site access, or for. <br />23 <br />other industrial purposes, was lawful when established. If the <br />24 <br />access-use commenced after, tthe land was zoned for residential <br />25 <br />purposes, our previous determination that such a use i not <br />26 <br />'age 10 <br />