Oregon has citizen involvement as the first of its 19 statewide planning goals and has a statewide Citizen Involvement Advisory Committee to advise citizen involvement programs that each city, county and regional planning agency must have. However, public participation is more often ignored or despised by many participants in the planning process; they view it as a waste of time and obstructionist rather than constructive. Developers and local governments ascribe NIMBY (not in my backyard) motivations to organized local groups that participate in local land use hearings, and some urban sociologists claim that recognized neighborhood associations are too white, too insular and unrepresentative of their locality. These latter criticisms play a large part in the proposals to change recognized community participation in Portland’s planning scheme.

There’s a lot at stake here. Being “recognized” gives an organization a seat at the table before the decision-maker to allow the voices of affected members on various issues – parking districts, ordinance enforcement and, most important to many, zoning. While that participation does not give the neighborhood association (the term used for geographically-based entities that the city recognizes as representative of each area) “standing” (a legally recognized interest in the outcome), Commissioner Chloe Eudaly suggests a broader base is necessary so that other communities (business associations, underrepresented minorities, LGBTQ+ groups) may also participate. While the proposals keep changing, existing recognized neighborhood associations assert that longstanding modes of participation (including the opportunity to take an appeal of certain land use decisions at no cost to the City Council) may be lost.

Public participant testimony is often dismissed as insignificant or nonresponsive. While elected officials generally need not respond to all comments on policy matters, Oregon planning law does require a response to properly raised issues in a local government decision on a discretionary permit (a conditional use for a new sewage treatment plant, for example). Although that is a good thing because it demonstrates that citizen testimony was indeed heard, it can be time-consuming for applicants and local government staff. And sometimes an appeal may be needed to clarify how the local governing body construes a plan or zoning ordinance provision.

Local governments in Oregon are authorized to recover some or all of their costs for appeals to their governing bodies. Questions of whether the public at large should bear these costs or whether some or all of those costs should fall on the appealing party, who may be disproportionately impacted or benefited by the outcome, are some of the policy questions local government decision-makers must weigh. Certainly imposing the full cost of processing an appeal on an individual appellant may render the appeal impossible.

While this result may be avoided through a fee waiver for individual appellants or neighborhood associations, current law places the prospect of true citizen involvement at risk. Local governments seeking reimbursement of the cost of processing appeals (as well as developers) sometimes point to the abuse of the appeals system by “frequent filers,” who appeal and add time and expense to review of projects that are often affirmed.

The 2019 Legislature enacted a bill that authorized the imposition of attorney fees on failed challenges to certain public housing projects approved by local government. This was not the first, and certainly will not be the last, proposal directed at discouraging appeals of certain local government decisions. But while discouraging certain appeals, the Legislature has thus far declined to consider the most appropriate way to balance and allocate the costs of processing appeals, which may be an even greater concern.

Citizen participation may also have another dark side. In 2001, William Fischel proposed the “home voter” thesis, suggesting that, unlike state and federal governments, local governments reflect different voter concerns – i.e., those of homeowners. Property taxation (the principal means of financing local governments and schools), local laws regarding public conduct and particularly zoning, reflect a deep-seated desire to protect property values. Developments that would bring more children, accommodate people of a different race or ethnicity or those with unfamiliar social or religious practices, or otherwise upend the prevalent single-family land use patterns of the area may often be subject to a skeptical, if not hostile, view. While immigrants vote with their feet, the Fischel hypothesis says that city and suburban homeowners remain and vote their perceptions of property values and choose to locate and express their preferences by voting in accordance with their own economic interests being significant.

By Fischel’s own admission, the hypothesis is less effective in larger cities, which have a significant rental cohort. In Portland, for example, there is political support for increasing density and a diversity in housing types, for rent control, and for less parking for multifamily developments than would be the case in Sherwood or Happy Valley, where the perceptions of the value of one’s own home will spill over into planning and land use decisions that may, for example, conflict with state policy to increase densities within urban growth boundaries.

In the early years of the state’s planning program, public participation was lauded; however, it was clear that this participation could not be used legitimately to oppose state policy on such things, for example, as farmland protection or alternatives to the automobile. The current discussions must balance public participation against a land use system influenced by relatively quick (by national standards) processing times.

Oregon has not fully dealt with public participation in planning. Its rules are vague, its enforcement avoided and its present status is a desiccated symbol of ambivalence. Despite state law to the contrary, the level of that participation has effectively become optional for local governments to allow public participation at whichever level they desire. The reticence of most local legislative leaders to deal with the role of the public in land use policy making may well lead to frustration of those who feel left out and unheard. Those sentiments have resounded on the national scene, leading to the implacable dissonance in national politics. Oregon can do better than that.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 45 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

Concerns include more traffic, higher land prices, code enforcement and compliance.
By Aaron Kunkler

King County is on the cusp of providing legal clarity to both farmers and alcohol producers in the county after years of uncertainty, but few seem to be happy with the ordinance.

For years, county code surrounding where wineries, breweries, distillers and especially taprooms could set up in unincorporated areas was often left unenforced. This allowed alcohol producers to jump through hoops to get state alcohol permits and open businesses without the county raising objections.

But around 2014, neighbors of several businesses located in unincorporated King County, just outside of Woodinville’s wine district, started filing complaints. These complaints centered on the retail portions of several alcohol producers. In particular, some neighbors say the taprooms are functioning more as bars than outlets for wineries, which as a commercial use is prohibited on rural zoned land.

Businesses contended that they had operated for years at their locations without the county hassling them, and that an outdated code made it difficult or impossible to comply. Code enforcement complaints were filed, and eventually King County Executive Dow Constantine signed a settlement agreement. The county would begin drafting new ordinances and the 20 wineries in violation of county code could stay open until new rules were created.

Five years and multiple drafts later, the King County Council is poised to vote Dec. 4 on a new ordinance. The process has consistently netted packed council chambers when it is discussed, with representatives of wineries, farmers and neighbors all sides remaining unhappy with the ordinance.

The farmers worry that allowing the businesses to stay in rural or agricultural buffers could lead to land speculation and price them out of the market. The neighbors are worried about traffic, and the alcohol producers are worried about having to shut down or relocate.

Serena Glover is a member of Friends of Sammamish Valley, one of the organizations that wants to see the non-compliant alcohol producers relocated.

“What the code needs to do is to make sure that those people can’t continue to operate drinking establishments and call themselves wineries,” she said.

County code currently doesn’t allow for bars, tasting rooms or taprooms in rural-zoned areas. Glover said she would like the county to enforce that instead of change the regulations. She argued many of the wineries, breweries and distilleries in Sammamish Valley were functioning more like taprooms and bars than production facilities.

“If the county proceeds to reward violators that have been clearly violating the code and if the county proceeds to not only reward them but to open up further land to commercial developments… it’s just going to encourage more speculators,” she said.

Glover wouldn’t say whether her organization would sue the county if the ordinance was approved.

“I am certain that this will not be the end of this process, even if they vote in December,” Glover said.

For others like Tom Quigley, who is a founding member of the Sammamish Valley Alliance that advocates for local farms, the main issue is a lack of code enforcement from the county. King County Council member Claudi Balducci said during an Oct. 7 meeting of the Committee of the Whole that they would also be looking into hiring additional code enforcement staff. Quigley said he was worried the code enforcement would be more focused on bringing businesses into compliance.

“Rather than enforcing code, it’s, ‘well let’s change the code,’” he said.

But business owners say King County let them set up and operate in unincorporated parts of the county. Dane Scarimbolo and Dominique Torgerson run the Four Horsemen Brewery near Kent. The siblings said they received all the permits they thought they needed and began selling beer in 2015. But in November 2017, they said King County sent them a notice, telling them they were out of compliance with county code. The county also threatened to put a lien against their property.

Scarimbolo said that during the permitting process, county employees had verbally told them they were classified as a home occupation, and could legally operate in rural county. So the pair contacted their rural ombudsman in 2018, who lobbied the county to allow them to keep operating.

“This is real, we source our ingredients from Washington state, we brew onsite,” Scarimbolo said.

The county first argued they could only brew on site. After the pair pushed back, they were allowed to sell on site. But it took a hearing examiner’s decision last October to finally let them keep a tasting room on site, and they say they still haven’t received a change of use permit. If they don’t by the time the new ordinance comes into effect, they’re worried they won’t be grandfathered in and could be shut down again. They’re also worried about retaliation from the county.

Torgerson said the county’s winery study felt like it only took a handful of alcohol producers into account, focusing mostly on the Sammamish Valley. Already, she said several south county breweries have had to close or relocate.

“I think they just completely disregarded our breweries,” she said.

Torgerson said there was no need for a demonstration area, which would grandfather in alcohol businesses in the Sammamish Valley, if there was “reasonable code” to follow. They’re also not happy with the current iteration of the ordinance that could be voted on in December.

They’re not alone either. In October 2018, Sal Leone was the owner of a 1.5-acre property just outside of Woodinville on agriculture land. It has several taprooms, including one of each for his brewery, winery and distillery, which are located in other parts of the state. He said at the time he was hoping to fight to keep his businesses open, but by this September, he said he made the decision to sell the property.

“I bought this property five years ago and thinking that this would be resolved, and it’s gone on for five years, and you know with all the politics and all that, and I’m becoming an old guy, and I think this is a long-term struggle as to what’ll happen,” Leone said in an interview this month. “I’m sure there will be a lawsuit by somebody, by some side. It’ll be tied up in the courts, so I sold it to a person who is younger and has more time to deal with it because I’m trying to slow down.”

Leone was frustrated with people who were pushing against his businesses, and said taprooms from Washington state alcohol producers are agriculture businesses. But he put much of the blame on the way the county handled the process.

“I know that from my point of view, quite frankly, I’m just sick of the county. They don’t have the [courage] to do what’s right. At some point you just say forget it,” he said. “I think a lot of people are frustrated. We are all very, very frustrated at the process.”

The Oct. 7 meeting, much like every meeting on the winery ordinance, was packed with people opposed to it. Several amendments were approved, including exempting Vashon Island from the demonstration area and many restrictions, increasing the percentage of a building that can be used as a taproom from 15 to 30 percent of total space, among others.

County council member Balducci said she thinks inaction was making land speculation worse.

“We have reached the point where we need to move a decision,” she said. “I would not be in favor of this, I would not have proposed it, if I thought it was going to lead to a massive expansion of environmentally damaging activities.”

The amended ordinance was approved with only county council member Rod Dembowski voting against it.

Council member Kathy Lambert said the process was started following a study and recommendation from the county executive. Over the past years the county council has been trying to refine and tailor the ordinance to find compromise between the parties. She agreed it was time to move on and provide some sort of clarity in the code.

“We have tried to find a balance where people can go and have a place on the weekends not only in the industrial areas, but out in the rural areas to enjoy the beauty of the rural area, and find some balance and consistency in the rules,” Lambert said.

by Mateusz Perkowski Capitol Press

A controversial rails-to-trails project in Oregon’s Yamhill County must be reconsidered due to potential farm impacts from pesticide restrictions, increased trespassing and food safety problems.

Oregon’s Land Use Board of Appeals has blocked the county government’s approval of the nearly 3-mile Yamhelas Westsider project and ordered it to take a closer look at these possible effects, as well as other land use issues.

Under Oregon land use law, developments in exclusive farm zones that require a conditional use permit cannot force significant changes to agricultural practices or significantly raise their costs.

Farmers who oppose converting the railroad track between the cities of Yamhill and Carlton into a recreational trail argue that it will complicate pesticide applications due to required “setbacks” from such sensitive areas.

Common pesticides such as Gramoxone cannot be sprayed within the “vicinity” of recreational areas, while Lorsban and Yuma 4E require a 100-foot setback, which farmers claim will reduce their ability to treat fields next to the trail.

According to LUBA, Yamhill County didn’t adequately evaluate the project’s potential effects on pesticides under the “farm impacts test” because such setbacks are required even when the chemicals are used properly to avoid drift or over-spray.

Pesticide regulations also prohibit spraying within recreational areas, which may be broader than just the paved trail used by visitors, the ruling said. In analyzing the project, the county must take a closer look at what’s mandated under pesticide labels.

“In doing so, the county will likely have to make specific factual findings about specific setbacks required by particular chemicals on particular farming operations on surrounding farmlands, and whether operation of each setback would force a significant change in farm practices,” LUBA said.

The county’s finding that fencing along the trail would reduce problems with trespassing was also faulted by LUBA, which ruled that such plans were imprecise and didn’t sufficiently deal with trash blowing onto fields.

“If preventing physical trespass from dogs and people were the only purpose of the fence, and the record included evidence that a wide variety of fences could satisfy that purpose, it might be sufficient to impose such a general condition and leave determinations regarding design, materials, etc., to a subsequent administrative proceeding,” the ruling said. “But the county relies on the proposed fence to address a wide variety of different potential impacts, which might require different fence designs, materials, construction techniques and maintenance routines, in order to ensure that the trail will not cause significant impacts on farm practices.”

Instead of delving into these details, the county “simply punted” such deliberations until a later “master planning” process that wouldn’t provide for public input, according to LUBA.

Even in regard to keeping out people and dogs, the county’s findings were inadequate, the ruling said.

“Depending on what ‘capable of preventing’ means, the results could range from a four-foot-high picket fence to a 10-foot steel wall topped with razor wire, or anything in between,” the ruling said.

A lack of sufficient planning for fencing needs also carries over to food safety impacts, since preventing incursions by people may not totally shield crops such as hazelnuts from contaminated litter, according to LUBA.

“As we understand the testimony, the concern is not limited to trespassers entering fields and orchards to defecate, but also to windblown or water-borne microorganisms from fecal material deposited adjacent to fields and orchards, within the right-of-way,” the ruling said.

Aside from these points, LUBA also remanded the decision for the county to consider traffic problems from vehicles parked near the trail’s access points, potentially impeding the movement of agricultural machinery, as well as how firefighters could access the area.

According to LUBA’s 87-page ruling, the county should also have better scrutinized the project for compliance with its own land use plans and ordinances. Some of the criticisms of the project, such as increased complaints about agricultural practices, were dismissed by the board, however.

Caylin Barter

From the Daily Journal of Commerce Oregon.

Exempt use wells can be a great option to get water where it’s needed without first applying for a permit, especially when other water supplies aren’t readily available. In part one of this two-part series, I explored the context and history of exempt use wells and discussed situations where they are authorized and where they are restricted. This second part offers a short introduction for new readers, and then drills down on current problems that may drive statutory changes in the future.

  1. Statutory context

Exempt use wells bypass the water right permitting system that otherwise governs all new water use in the state. Under Oregon law, “all water within the state from all sources of water supply belongs to the public” (ORS 537.110), and “all waters within the state may be appropriated for beneficial use” (ORS 537.120). In order to establish a legal right to access this public supply for a “beneficial use” (think municipal, irrigation, domestic, industrial, mining, etc.), all new water uses must comply with the 1909 water code, which requires users to apply for and fulfill the conditions of a permit in order to receive a legally authorized water right from the Oregon Water Resources Department (OWRD).

New permits are not allowed unless OWRD determines that water is available; in many parts of the state where water supplies are over-appropriated (meaning cumulative authorized water use exceeds available supply), no new water rights can be issued without retiring existing rights or obtaining mitigation credits. However, exempt uses of groundwater are allowed without a permit – you can hire a well driller, pay a one-time $300 registration fee, mark the location of your well on a map for OWRD’s records, and start pumping.

Exempt groundwater uses are defined by ORS 537.545 and include: stock watering; irrigating a lawn or noncommercial garden of half an acre or less; domestic use not exceeding 15,000 gallons per day; or industrial or commercial purposes not exceeding 5,000 gallons per day. The original policy purpose for allowing exempt uses without requiring a permit was to provide water for basic uses in areas where developed water infrastructure did not exist. In such cases, exempt use wells would be considered de minimis – trivial or insignificant – and therefore it would be unreasonable to subject them to the multistep permitting process that could otherwise prevent their existence.

  1. Problems

Under the water code, the operation of an exempt use well may not interfere with senior groundwater or surface water rights. However, OWRD will regulate the exempt use well only if the interference is “substantial” under OAR 690-008-0001, and only if any impacted senior groundwater right has a reasonably efficient well that also fully penetrates the groundwater aquifer. In practice, this can lead to well users in the vicinity investing in deeper wells and larger pumps in order to chase the groundwater to the bottom of the aquifer, exacerbating the risk of groundwater decline.

On occasion, individual exempt use wells can cause significant problems in areas where groundwater resources are already stressed. For example, as was widely reported in 2018, a dairy farm near Boardman used an exempt use well to provide stock water for a feedlot holding as many as 30,000 dairy cows – an aggregate use of up to one million gallons per day. Making matters worse, the dairy sits in the Ordnance Critical Groundwater Area, which has been closed to all new appropriations of groundwater since 1976. Because the stock watering exemption does not specify a daily maximum pumping limit, this use, though hardly de minimis, still purportedly falls within the exempt use statute.

More commonly, it is the combined pumping of many exempt use wells that leads to trouble. OWRD estimates that fewer than 5,000 wells were in existence when the Groundwater Act was passed in 1955. Fast-forward six decades: in 2017, the Oregon Water Resources Commission reported an estimated 230,000 exempt use wells were in existence with several thousand more drilled each year. The Oregon Health Authority puts the current number closer to 330,000. This is in addition to the approximately 25,000 nonexempt wells that operate pursuant to state-issued water rights. Even though most exempt use wells aren’t pumping their authorized daily maximum volume, their collective use is likely contributing to groundwater declines that have been observed in areas throughout the state. Many deep groundwater aquifers were filled during geologic events thousands of years ago and can’t easily be recharged, and even shallow aquifers may be at heightened risk of overdraft in the future due to greater unpredictability in annual precipitation.

  1. The future

Exempt use wells offer water users a bypass around the burdensome – and often prohibitive – permitting process that otherwise applies to all new water uses in Oregon. However, our water supply is finite, and every new exempt use well drives overall demand ever higher. Continued enjoyment of the flexibility offered by exempt use wells will likely depend on reductions in nonexempt water uses (such as improvements in irrigation efficiency and reductions in municipal demand), or possibly changes to the exempt use statute itself. Various interest groups have floated ideas for statutory changes, including, for example, placing volume limits on the stock watering exemption, or restricting locations where the domestic exemption can be used. As Oregon’s water supply portfolio continues to be stretched and scrutinized, some changes to the water code are likely – some of which could affect the options you have to satisfy your own water supply needs. Prudent would-be water users will consult legal counsel prior to drilling an exempt use well to ensure their plans can become a reality.

Caylin J. Barter is a water and natural resources lawyer in Jordan Ramis PC’s environmental practice group. Contact her at 503-598-7070 or caylin.barter@jordanramis.com. This column is intended to provide general interest for readers. Consult professional counsel for legal advice regarding specific situations.

Protection of farmland and forestland is a long-standing land use principle in Oregon. Statewide Land Use Planning Goal 3 requires that lands with certain soil classification, lands suitable for farm use regardless of soil class, and lands necessary for farming adjacent lands must be protected through exclusive farm use (EFU) zoning. Where lands are zoned EFU, state law provides a minimum lot size of 80 acres for farmland or 160 acres for rangeland, and identifies which uses may be permitted or conditionally allowed. Counties may not adopt regulations for EFU zoned lands that are less protective or inconsistent with the applicable statutory and rule requirements. Dwellings not connected with farming are generally not permitted.

Similarly, Goal 4 protects forestland by including, among other things, lands suitable for commercial forest uses as well as adjacent lands necessary to permit forest operations and other forestland that maintains natural resources. The zoning applied to forestland must restrict uses that can adversely affect forestland operations. State law sets forth those circumstances where dwellings may be constructed on forestland and administrative rule prescribes what other uses may be allowed.

Notwithstanding these foundational principles, some counties continue to cook up creative approaches to loosen these limitations. Some of these recent efforts rely on Department of Land Conservation and Development (DLCD) planning initiatives and publications exploring possible adjustments under existing law as the basis to justify these creative approaches. In a spate of cases decided in August, LUBA summarily rejected these erosive efforts in finding that the relevant statutes and rule obligations remain, notwithstanding county interpretation of DLCD analysis or advice that may suggest alternatives.

One such example, in Department of Land Conservation and Development v. Douglas County, DLCD, 1000 Friends of Oregon and others challenged the county’s adoption of a new Rural Open Space comprehensive plan designation that would permit rezoning EFU lands to 10 to 20 (acre?) parcels, each of which would allow a rural dwelling, in an effort to further “rural family open space lifestyles.” Although the county excluded farmland containing high-value soils from consideration, it identified 22,500 acres, primarily surrounding the city of Roseburg and other smaller communities for potential re-designation. Land could be rezoned if it consisted of primarily 40-acre lot sizes or less, did not contain high-value soils and was not needed to protect surrounding farming areas. Goal 3 was achieved, according to the county, because it relied on a methodology set forth in the Southern Oregon Regional Pilot Program (SORPP) that identified non-resource lands based solely on soil characteristics.

The SORPP process was a regional effort between Douglas, Jackson and Josephine counties to jointly recommend a new region-specific definition of “agricultural land” and permitted uses that would satisfy Goals 3 and 4. This effort grew out of years of inquiries as to whether a region of the state should have more regionally specific standards for conserving resource lands. The group was unable to reach consensus necessary to submit a rulemaking petition and alter the standards. Nonetheless, Douglas County moved forward implementing the rural open space program relying on its SORPP analysis. In sum, the county would filter rural open space designated lands as part of the rezoning process so as to exclude high-value farmland from potential designation but allow all other EFU-zoned lands currently protected by Goal 3 to have less restrictive zoning.

Petitioners argued that excluding lands based solely on soil quality failed to take into account all of the other factors that could qualify “agricultural lands” for protection. For example, land with high-farming suitable characteristics such as available technology, soil fertility, suitability for grazing, climatic conditions, available utilities, water access or other factors could be re-designated to rural open space by virtue of the county’s less rigorous re-zoning filter. LUBA agreed finding that the county had not established that Goal 3 and 4 lands were adequately protected by the rural open space designation program.

In summarizing its holdings, LUBA explained “Oregon has developed a complex system of administrative rules to protect and conserve farmland and forestland for those uses and limit when land deemed farm or forest under state law may be converted to other uses.” Among a number of other failures, LUBA found that the county did not comply with Goals 3 and 4 by maintaining minimum parcel laws as required by state law. The case was remanded to the County for further proceedings.

LUBA giving Douglas County the smackdown in this effort will certainly not be the end of the road for efforts to change resource land protections without further legislative changes. This past spring, the Deschutes County Planning Commission held hearings to consider a nearly identical effort to “free up” land that qualifies as non-resource land relying on the same SORPP analysis; however, the county’s planning department suggests that, in the light of the Douglas County case, those efforts may also be in vain. During a process that began in 2011, an inordinate amount of ink has been spilled in reliance in the SORPP efforts. Counties will apparently not be able to make an end-run relying on SORPP or other DLCD suggestions that do not culminate in effective regulation; new legislative direction or LCDC rulemaking is necessary to give them the sprawling rural residential outcome they so desperately seek.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 45 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com

Oregon courts

By MATEUSZ PERKOWSKI Capital Press

An farmland conservation group is appealing an Oregon land use ruling that determined commercial events at an on-farm brewery are an allowable “subordinate” activity to agriculture.

Although the Friends of Yamhill County organization succeeded in overturning a local government’s approval of the events on other grounds, it’s challenging the finding that they’re merely “incidental” to farming.

“Essentially, you’re talking about an urban operation on farmland,” said Jeff Kleinman, the group’s attorney. “Basically, the tail wags the farming dog.”

The Wolves & People Farmhouse Brewery, which operates on a hazelnut farm outside Newberg, got permission from Yamhill County to annually hold up to 18 events lasting 72 hours each.

Friends of Yamhill County objected to the county’s decision before Oregon’s Land Use Board of Appeals, arguing the events didn’t meet permit requirements that an activity be “incidental and subordinate” to the farm as well as “necessary to support” the operation.

In its recent opinion, LUBA agreed there’s insufficient evidence that commercial events are “necessary to support” the actual farm — as opposed to the brewery — and sent the decision back to the county for reconsideration.

Friends of Yamhill County is nonetheless disturbed by the ruling because LUBA adopted a lax interpretation of what’s considered “incidental and subordinate” to farming, Kleinman said. “We believe it does open the door for much more than the legislature contemplated.”

The county found that 18 three-day brewery events would occur on only 54 days of the year, compared to 365 days for farming, which is infrequent enough to be “subordinate and incidental” to the “predominant use of the property” of growing hazelnuts.

Friends of Yamhill County argued that income from the 10-acre hazelnut operation would be dwarfed by revenues from the brewery events, meaning that they’re actually the chief use of the property.

However, LUBA disagreed with this view and ruled that Oregon law allows the county to compare the number of event days with farming days to determine whether an activity is “subordinate and incidental.”

“We conclude that the legislature intended the counties to exercise some discretion in allowing and limiting the types of commercial activities that can be permitted on farmlands and determining whether such activities are ‘incidental and subordinate’ within the quantified statutory limits on frequency and intensity of such events, and any other limits imposed by the county,” according to the LUBA opinion.

This interpretation is troubling because commercial events can be much more intensive than agriculture and could have significant negative impacts on surrounding farm practices, said Kleinman, the attorney for Friends of Yamhill County.

“That has a much broader application than just breweries,” he said. “It’s not just about breweries.”

Dean Alterman, attorney for the brewery’s owner, said he was surprised that LUBA’s decision will be challenged before the Oregon Court of Appeals.

The brewery had been prepared to work with the county on remand to show the events are “necessary to support” the farm, Alterman said.

There should be a way for farms to qualify for such commercial events, otherwise lawmakers wouldn’t have enacted such a provision in land use law, he said. “I think if we go back to the county, we could satisfy the requirements pretty easily.”

By MATEUSZ PERKOWSKI Capital Press

A plan to make rural housing development easier in Oregon’s Douglas County must be reconsidered because state land use adjudicators have determined it inadequately preserves farm and forest lands.

Last year, the county authorized about 22,500 acres outside urban growth boundaries to be rezoned for 20-acre home sites, which was opposed by Oregon’s Department of Land Conservation and Development and its Department of Fish and Wildlife.

The conservation groups 1,000 Friends of Oregon and Friends of Douglas County joined the government agencies in challenging the plan.

Oregon’s Land Use Board of Appeals has now agreed with critics that Douglas County fell short of ensuring that its new “rural open space” designation complies with several state land use goals.

The decision sends a message to counties that farm and forest land conservation goals must be taken seriously, said Samantha Bayer, associate policy counsel for the Oregon Farm Bureau, which submitted a court brief arguing against the county’s plan.

“Despite being in Douglas County, it is an important ruling statewide,” Bayer said.

The county was overly reliant on “geographic information system” map filters in evaluating the plan’s impacts on agriculture and forestry instead of engaging with the local natural resources community, she said.

“They didn’t do a successful on-the-ground analysis of farming and agriculture in Douglas County,” Bayer said.

Such an analysis must take a thorough view of the land’s agricultural capacity, rather than relying solely on factors such as soil quality, she said.

“Some of our best ranch and range land is on lower class soils,” Bayer said. “Soil type is not necessarily consistent with the value of that land.”

Friends of Douglas County is pleased with LUBA’s opinion, which makes clear the county can’t disregard farm and forest preservation goals, said Shelley Wetherell, the group’s president.

“They don’t get to pick what land is protected and what isn’t,” she said. “They have to follow the statewide rules.”

The decision stresses that Oregon’s land use goals are intended to conserve not only commercial farm and forest operations but also surrounding lands that provide stability for these industries, said Scott Hilgenberg, attorney for 1,000 Friends of Oregon.

“LUBA highlighted that Goals 3 and 4 are broader than some county commissioners had understood at first blush,” he said.

Douglas County is still considering its options and hasn’t decided whether to appeal LUBA’s decision or whether to revise the plan on remand, said Tamara Howell, its public information officer.

While the county is disappointed by the ruling, its board of commissioners “remains committed to providing development opportunities on lands not generally suitable for agriculture or forestry activities and will continue to support local and statewide efforts to establish a non-resource land use designation,” she said in an email.

According to LUBA’s recent ruling, Douglas County should have considered additional factors in deciding what farmland should be excluded from the new “rural open space” designation, such as its climate and capacity for grazing.

Although the county didn’t make “exclusive farm use” land eligible for the new “rural open space” designation, LUBA found that land in “farm forest” and “agriculture woodlot” zones could be included.

Properties in these zones “may be utilized as part of farm units or to assist in farm use” and thus may need to be protected under the Oregon land use system’s “Goal 3” of farmland preservation, the ruling said.

Similarly, the county excluded forest land from the “rural open space” designation if it’s capable of producing more than 80 cubic yards per year in timber, but allowed less productive properties to be rezoned “despite the fact that they may still be commercial forest land,” LUBA said.

The county also didn’t demonstrate that its designation would protect nearby and adjacent lands that support forestry operations, according to the ruling.

Under the plan, a property could be eligible for rezoning if 60 percent of it meets the “rural open space” criteria.

In effect, that means 40 percent of the property could be re-designated even if it must be protected under the land use system’s “Goal 4” of forestland preservation, the ruling said.

“We agree that the decision lacks an adequate factual base because it fails to establish that the lands deemed eligible for re-designation do not include protected lands necessary for forestry uses on adjacent or nearby lands or other forested lands protecting soil, air, and water quality and fish and wildlife resources,” LUBA said.

LUBA also faulted the county for not properly considering the plan’s implications for other land use goals related to fire protection, wastewater treatment and coordination with cities on housing.

Caylin Barter

From Daily Journal of Commerce Oregon

Exempt use wells can be a great option to get water where it’s needed without a permit, especially when other supplies aren’t readily available. An exempt use well might be a viable solution to provide household water for the summer cottage, stock water for the tank on the back forty, or irrigation to keep the front lawn green. But these wells come with risks and benefits that a user would be well-served (pardon the pun) to understand before booking the local well driller. In this column and another next month, I’ll explain the context and history of exempt use wells, identify where they are authorized and restricted, and explore current problems that may drive statutory changes in the future.

  1. Exempt use wells and Oregon’s water code

Under Oregon law, “all water within the state from all sources of water supply belongs to the public,” and “all waters within the state may be appropriated for beneficial use.” In order to establish a legal right to access this public supply for a “beneficial use” (municipal, irrigation, domestic, industrial, mining, etc.), all new water uses must comply with the 1909 water code, which requires users to apply for and fulfill the conditions of a permit in order to receive an authorized water right from the Oregon Water Resources Department (OWRD). Notably, groundwater was not subject to the permit system until the passage of the Groundwater Act of 1955, but even now, most new wells drilled in this state can pump without a permit. How? They qualify as “exempt use wells” (or “exempt wells,” as they are frequently and inaccurately called since it’s the water use that’s exempt from the permit system rather than the well itself).

Any exemption from the rigorous permitting system is noteworthy. Not only are water rights expensive to obtain and burdensome to maintain, but in many parts of the state where water supplies are overappropriated (meaning cumulative authorized water use exceeds available supply), no new water rights can be issued without retiring existing rights. So to be able to drill a well, pay a one-time $300 registration fee, mark the location on a map for OWRD’s records, and start pumping, is a significant and invaluable deviation from usual constraints on new water use.

  1. Authorized exempt uses

Exempt use wells bypass the permit system that governs all other water use in the state. The policy basis is that these wells were originally intended to provide water for basic uses in areas where developed water infrastructure didn’t exist. In such cases, exempt use wells would be considered de minimis – trivial or insignificant – and therefore it would be unreasonable to subject them to the multistep permitting process that could otherwise prevent their existence.

Exempt uses of groundwater are defined by statute and include stock watering; watering a lawn or noncommercial garden of 0.5 acres or less; domestic use not exceeding 15,000 gallons per day, and industrial or commercial purposes not exceeding 5,000 gallons per day. Most exempt use wells provide water for domestic purposes, usually in areas that don’t have easy access to municipal or surface water supplies.

Interestingly, while exempt use wells do not require users to apply to OWRD for a permit, exempt uses are treated just like permitted water rights when OWRD allocates water during times of shortage. Therefore, if water supply can’t meet full demand, newer exempt use wells can be regulated off in favor of older wells with water rights, and vice versa. This is the familiar “first in time, first in right” aspect of the prior appropriation doctrine in place throughout the western United States.

  1. Restrictions

Exempt uses are considered on a per-property basis (or per-development, in the case of group domestic use for more than one household), so while a single property can have more than one exempt use well on it, the total exempt use on the property cannot exceed the statutory limits. For example, a property might have three exempt use wells, but the total domestic use across all three cannot exceed 15,000 gallons per day. Consider the domestic restriction in context, though: if average household water use in Oregon is 113 gallons per day, an exempt use well could hypothetically supply as many as 132 homes.

Exempt use wells aren’t allowed everywhere. Minimum regulatory setbacks from septic systems, sewer lines, permanent structures and underground storage tanks will preclude new wells in some areas. And in parts of the state designated as a Critical Groundwater Area (CGWA) due to persistent groundwater problems, new exempt use wells can be restricted or prohibited. For instance, in the Cooper-Bull Mountain CGWA in northern Washington County, exempt use wells that draw water from a basalt aquifer are limited to existing wells, and no new exempt use wells are permitted unless: 1, the tract served is at least 10 acres and the use is single-family domestic or stock watering; or 2, an existing exempt well in the CGWA is abandoned. There are seven CGWAs scattered throughout Oregon, and more are likely in the future. Landowners should vet plans for a new exempt use well in advance, rather than investing in drilling a well that can’t be used legally.

Exempt use wells aren’t immune from other regulations that govern construction and operation standards. Well drillers must comply with a host of technical, legal, and health and safety regulations that are outside the scope of this article, so landowners are strongly discouraged from attempting to drill their own well. In addition, any exempt use well that supplies water for domestic use must be tested for water quality anytime the property is sold or transferred, and any well that supplies water to more than three households is considered a public water system and is subject to water quality regulations administered by the Oregon Health Authority.

Next month I’ll discuss problems that are linked to the use – or overuse, some would say – of exempt use wells, as well as possible statutory changes that could change how the exemption works in the future.

Caylin J. Barter is a water and natural resources lawyer in Jordan Ramis PC’s environmental practice group. Contact her at 503-598-7070 or caylin.barter@jordanramis.com. This column is intended to provide general interest for readers. Consult professional counsel for legal advice regarding specific situations.

Editor’s note: This is the first part of a two-part column. The second part will appear in the Monday, Sept. 23 edition of the DJC.

Last month’s U.S. Supreme Court decision in Knick v. Township of Scott, Pennsylvania, involved a local ordinance that required “all cemeteries … be kept open and accessible to the general public during daylight hours;” however, the landowner on whose property the alleged cemetery sat claimed in federal court that the ordinance constituted a “taking” of her property. Since 1985, under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a federal takings claim must be brought in state court and denied before becoming “ripe” for federal court consideration. However, that process was frustrating to claimants because the state court decision then often precluded a separate federal consideration of the taking based on the same facts – you only get one bite at the apple.

From the Daily Journel of Commerce

Chief Justice John Roberts’ majority opinion in Knick overruled Williamson County, stating “a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it” so that the claim may be litigated at once in federal court under the Civil Rights Act, regardless of state post-taking remedies that may be available to the plaintiff because the right to just compensation rests on the Constitution and not any statute.

The majority opinion distinguished or criticized other elements of the Williamson County decision, stating it rested on “shaky grounds” and it resulted in “unintended consequences.” In overturning Williamson County, the majority addressed stare decisis – i.e., that an erroneous decision should not lightly be overturned because in most matters it is more important that the applicable rule of law be settled than that it be settled right, finding this rule weakest in matters of constitutional interpretation and identifying several factors to consider in deciding whether to overrule a past decision, including “the quality of (its) reasoning, the workability of the rule it established, its consistency with other related decisions, … and reliance on the decision” and found all of them militated in favor of reversing 34 years of precedent. Supporters of Roe v. Wade might want to parse the stare decisis aspects of this decision.

Justice Elena Kagan joined three other justices in dissent, defending the rationale of Williamson County that there is no violation of the Takings Clause unless and until just compensation is denied, which cannot be determined until a state court denies compensation. Under Williamson County, the state court must also determine whether a taking has occurred – a function that federal courts must now undertake, in addition to determining just compensation. The dissent also used its version of precedent, logic and pragmatism to justify Williamson County and noted that liability (with damages, attorney fees and costs) did not attach – until now, concluding: “Today’s decision thus overthrows the Court’s long-settled view of the Takings Clause. The majority declares, as against a mountain of precedent, that a government taking private property for public purposes must pay compensation at that moment or in advance. … If the government fails to do so, a constitutional violation has occurred, regardless of whether ‘reasonable, certain and adequate’ compensatory mechanisms exist.”

The dissent suggested the majority opinion rested on four ideas: a comparison between takings claims and other constitutional claims, a resort to the Takings Clause’s text, and theories about two lines Supreme Court precedent. Justice Kagan responded to each idea. The comparison and textual ideas fail because of the distinct wording of the Takings Clause that requires denial of just compensation, which allows for state post-deprivation remedies (until now). And while giving “points for creativity” in suggesting previous cases should not be read “too broadly,” Justice Kagan found this interpretive analysis an elegant way of undermining inconvenient precedent.

Justice Kagan also predicted that the majority decision will turn public servants and agencies into lawbreakers because they cannot know in advance whether regulations will ultimately be deemed a “taking” and that takings claims will flood the federal courts, lacking the check of adjudication by state courts more familiar with state and local planning and regulatory systems. Finally, Justice Kagan raised the flexibility of the standards for overruling stare decisis without listing possible other cases a subsequent court may determine to be resting on “shaky foundations” or otherwise “ill-founded.” Many observers suggest she was referring to cases dealing with abortion.

Perhaps the outcome of this case was predictable, especially after the Supreme Court ordered re-argument after Justice Brett Kavanaugh was seated. The property rights bar has long wished to proceed directly to federal court in takings claims (unless accompanied in advance with just compensation), using uncertainty of takings claims and the prospect of damages, attorney fees and costs as a bargaining tool. This decision will likely result in a sea change in the number of future takings claims and the means by which they will be dealt with by claimants, public agencies and the courts. The attention given this case may pale in comparison to that given cases involving the federal census, immigration or reapportionment; however, it is likely to be seen as one of the most significant decisions of the new Roberts-led Supreme Court.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 45 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.

The Oregon Court of Appeals last month raised a zombie city, otherwise known as Damascus, that most people thought was long buried in the municipal graveyard, creating havoc and headaches for other governments in the Portland region. The story of this death and resurrection won’t be as spellbinding as one told around a campfire on a dark night, but it is disturbing nonetheless. The municipal gravestone memorializes the life of the city from the time it was incorporated in 2004 until it was purportedly disincorporated in 2016. A Damascus city councilor, James De Young, challenged the disincorporation vote in a lawsuit against the governor and Clackamas County, losing that challenge in the trial court. He then took an appeal to the Oregon Court of Appeals, contending that the disincorporation did not follow state law.

From the Daily Journal of Commerce Oregon.

Most people know the travails of Damascus, the city that incorporated when Metro expanded its urban growth boundary to take in land that was supposedly needed for additional growth. Farm and forestry could not occur on an economic scale there because of terrain and past land divisions. Thus, this area of Clackamas County became the region’s choice for urbanization.

First, the inhabitants of the region did not want Clackamas County or the nearby cities of Gresham or Happy Valley to make land use decisions for the area and quickly followed the procedures to incorporate. However, self-sovereignty comes with responsibilities including: organization, public safety, public works and, ultimately, land use planning. Until the city adopted its own plan, it retained the Clackamas County Plan imposing rural rather than urban development standards. But the city could never adopt a plan. The citizens decided any plan must be voted upon. A fractious atmosphere ensued as plans were proposed and rejected and the state warned of land use enforcement actions that might include loss of state shared revenues or land use administration by other than city officials.

The city’s brief political history included frequent quarrels, impasses, and changes of staff, management and council members. Property owners looked to leave the city because they could not develop their land, as there was no plan or regulations to supersede those of Clackamas County. A petition to disincorporate was filed in 2013, but failed because state law requires a majority of the voters of the city (not just those who voted) to approve the petition in a November general election.

Citizens then went to the Legislature to find a way out of this imbroglio by disincorporating the city in a different way. The Legislature passed two bills in 2015: one authorizing a disincorporation vote (Measure 93) to city voters in the May 2016 primary election and another dealing with the winding down of the city in the event the vote was affirmative. A majority of the voters agreed to disincorporate the city.

Although many thought this was the end of the story, Mr. De Young filed suit, alleging the approval of the disincorporation measure was invalid because the election violated two applicable state statutes – one that required a majority of all the voters to approve the measure and another requiring the vote to be held only at the November general election.

The state responded that these laws were inoperative because Measure 93 said the disincorporation vote was to be effective “notwithstanding” these and other disincorporation laws. The Court of Appeals pointed out that those statutes were the exclusive means authorized by law for disincorporation. The only reference to these statutes being inoperative was in the measure itself and only at a time following a favorable vote in the disincorporation election. The Legislature did not change the statutes requiring a majority of all voters to approve disincorporation in a general election. Mr. De Young thus prevailed because of this oversight.

The result is a mess for all concerned. Damascus appears to be resuscitated, although it currently has no funds, no property, no staff and no budget. About 1,000 acres of its territory (including the home of its last mayor) has been annexed to the city of Happy Valley. Are the annexations, none of which were appealed, valid? What is the territory? How does it fund city operations? How does the city reorganize, hire staff, or pass a budget by July 1?

These dire results might have been avoided had those crafting the legislation, including the interested local governments and Metro, as well as the state of Oregon, taken more care with its wording. It is now near the end of the 2019 legislative session and there is risk in attempting to engineer yet another legislative fix, lest the cure once again be worse than the disease. The expansion of the regional urban growth boundary in 2004 was predicated on adding needed urban land for the region. We are now 15 years further with no viable prospect that this confusion will dissipate soon. The result does no credit to the region or the various public agencies involved, least of all the city of Damascus, should it decide to stay resurrected.