From the Daily Journal of Commerce 12/3/19.

On Nov. 20, when the Portland City Council agreed to pay $350,000 in attorneys’ fees, it marked a final defeat for the city’s approach to regulating older brick buildings.

The order to pay legal fees came after the city lost a federal lawsuit brought by landlords who challenged a city ordinance requiring them to post warning signs on unreinforced masonry buildings, which are considered particularly vulnerable during a sizable earthquake.

The placard ordinance itself was a significant retreat from earlier recommendations. The notification policy was a compromise after the council faced a chorus of protests to requiring seismic retrofits – an expensive process that involves girding masonry buildings with a steel skeleton.

Commercial building owners, along with affordable-housing providers, churches and others, fought back. So the council settled on requiring masonry building owners to post a placard with a simple 19-word message: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.”

On May 30, federal district Judge John Acosta struck down the council-approved ordinance, writing that it was unconstitutional because it compelled speech from building owners in violation of the First Amendment.

“The more they tried to make it better, the worse it got,” said John DiLorenzo, a Portland attorney who brought the lawsuit on behalf of the building owners. “It became a shadow of its former self. Even then, what was left couldn’t survive First Amendment scrutiny. It was just a total disaster for the city.”

Acosta wrote that the ordinance was “unduly burdensome” and based on a database riddled with inaccuracies. The database of unreinforced masonry (URM) buildings was compiled by city officials and Portland State University engineering students, typically based on a visual inspection of the building exterior and permit records.

In his ruling, Acosta painted a detailed picture of a failure in government regulation. The judge wrote that the city “lacked the political will or public support to achieve its desired goal: mandatory retrofits for URM buildings.”

Now, more than five years after the city began formulating a seismic retrofit policy, city officials are essentially restarting the process from scratch with yet another committee.

The city’s attempts to regulate URM buildings began in 2015, when a committee formed by the Bureau of Emergency Management recommended a mandatory program to strengthen all but the smallest buildings. Scientific advances and national publicity deepened the understanding of the risks posed by a large-scale Cascadia subduction zone quake and lent urgency to regulation. However, city commissioners were unable to agree on a seismic retrofit policy.

Instead, they settled on the placarding requirement – a measure meant to pressure private building owners to pay for the retrofits. The Masonry Building Owners of Oregon responded by launching a lawsuit with DiLorenzo, a Davis Wright Tremaine attorney and lobbyist who often takes on complex business cases.

DiLorenzo found sympathetic plaintiffs. One, John Beardsley, a longtime local real estate developer and investor, owned the Western Rooms building at Southwest Second Avenue and Ankeny Street. The 113-year-old building in 1979 was reinforced via a seismic retrofit. Nevertheless, it did not meet the city’s standards, and the building was placed on the city’s URM database.

Beardsley told the court that the city’s placarding language would make him “a liar.” Acosta’s ruling criticized the city for placing the burden of proving a building did not belong on the URM list on property owners.

Another building owner who testified was Walter McMonies, a retired real estate lawyer who owns several Portland buildings and became president of the Masonry Building Owners. McMonies testified that he spent $1.1 million to upgrade a 36-unit multifamily building in Northwest Portland, but that it still did not meet the city’s standards for seismic reinforcement.

“I’m pushing $2 million to finish it,” McMonies said in an interview. “That’s not a scare story. That’s what it costs.”

In 2017, Enrique Castaneda worked on the seismic stabilization of the Trinity Place Apartments in Northwest Portland. Despite a $1.1 million investment, the building still doesn’t meet city seismic reinforcement standards, owner Walter McMonies says. (Sam Tenney/DJC file)

In 2017, Enrique Castaneda worked on the seismic stabilization of the Trinity Place Apartments in Northwest Portland. Despite a $1.1 million investment, the building still doesn’t meet city seismic reinforcement standards, owner Walter McMonies says. (Sam Tenney/DJC file)

In its defense, the city pointed to Berkeley, California, where the number of URM buildings had been cut from 587 in 1991 to six by 2007. Unlike Portland, however, Berkeley made seismic retrofits mandatory and offered a “suite of options for financing retrofits,” Acosta wrote.

Portland’s seismic policies went through a series of committees that included building engineers, owners, city officials and others. Meanwhile, the city’s leadership changed. Steve Novick, who had originally pushed for mandatory seismic retrofits while overseeing the Bureau of Emergency Management, lost his bid for re-election. In ensuing years, the BEM would change hands to commissioners Dan Saltzman, Ted Wheeler and now Jo Ann Hardesty. Hardesty’s office referred questions to the BEM.

DiLorenzo criticized the role of the city’s staff in pushing the seismic retrofits.

“We have a few city employees who have driven this process,” he said. “It is obvious that the City Council was being manipulated by its staff. … I think this is a real failure of governance, and it was eye-opening to me.”

DiLorenzo said the city’s first committee was packed with engineers.

“It would have been a financial bonanza for those guys,” he said.

A report shows the 2015 eight-member Retrofit Standards Committee included five engineers.

BDS spokesman Alex Cousins said there was no undue influence by professional engineers or city staff on seismic retrofit policy. Cousins noted the final policy committee, which made recommendations to city staff, had 18 members – only one of whom was an engineer.

“It is a mischaracterization to say that the committees were stacked with engineers or that the process was predetermined,” Cousins stated in an email. “The fact remains that seismic retrofits make buildings safer in the event of an earthquake, and structural engineers are best able to understand how buildings perform during these events. They needed to be part of the URM policy-making process as did the rest of the stakeholders involved.”

The BEM is now forming a new committee that will look at possible financing for seismic retrofits, including options such as tax breaks and a revolving loan fund. The URM Work Group will meet for the first time on Dec. 17.

“The focus of this will not be a mandatory program,” BEM spokesman Dan Douthit said.

The city has been conscientious in its desire to regulate URM buildings, McMonies said.

“I don’t think anybody’s a bad actor,” he said. “It’s a difficult problem.”

McMonies was skeptical that the committee will come up with a new solution.

“The new committee is fine, although we feel we really looked under every rock,” he said. “There isn’t any spare money in the city’s budget, with the homeless and the housing crises.”

The work group is expected to examine financing options over a year before reporting back to the City Council.

“A lot of specifics aren’t known,” Douthit said.

From Capital Press 11/25/19

SALEM — Most of the farm and forest properties made available for development in Oregon under a decade-old ballot initiative haven’t yet been subdivided, according to state land use regulators.

Meanwhile, county governments and affected landowners don’t appear eager to take advantage of a program that would steer home-building away from more valuable natural resource lands.

Of the properties that have been subdivided under Measure 49, a property right law passed in 2007, about 62% are in agricultural zones, 16% are in forest zones and 11% are in mixed farm and forest zones, according to the Department of Land Conservation and Development. The remainder are in rural residential zones.

“The farmland seems to be getting developed at a faster rate than the other categories,” said Sarah Marvin, a senior planner with DLCD, during a Nov. 20 hearing before the House Agriculture and Land Use Committee.

Oregon voters passed Measure 49 to amend another ballot initiative approved three years earlier, Measure 37, which allowed landowners to seek waivers of land use regulations imposed on their properties.

Landowners could also seek compensation for lost property values under Measure 37, but most counties could not afford to pay those claims and instead opted to waive restrictions on development — stoking fears of major new subdivisions that would interfere with agriculture and forestry.

Under Measure 49, those development rights were scaled back so that most landowners could only build three homes per property, or up to 10 homes if they could sufficiently prove that regulations reduced their property values.

Roughly 4,200 new parcels were approved by Oregon land use regulators under Measure 49, but only 1,700 parcels were actually created — leaving about 2,500 new parcels that could be created in the future, according to DLCD.

In areas such as Southern Oregon, the possibility of development occurring outside urban growth boundaries may raise the chances that newly built homes will be prone to wildfire hazards, said Marvin. “A lot of Measure 49 homes sites are going into extreme fire risk areas.”

To mitigate the risks from such home-building, DLCD enacted rules in 2014 under which landowners in farm and forest zones can transfer their development rights to rural residential zones or areas that have already been largely subdivided.

Since then, however, not one county government has implemented an ordinance that would allow landowners to transfer these development credits, Marvin said. That’s likely because county officials have limited time and resources to create such programs.

“They’d have to compete with other things on their agenda to get this in,” she said.

If landowners were excited about transferring their development rights, they’d probably demand that county officials make that option available — something that clearly hasn’t happened, said Jim Johnson, land use specialist with the Oregon Department of Agriculture.

“There’s not, in my opinion, a real demand for it,” Johnson said. “If nobody is asking for it, the county has other things to do.”

While the development credit transfer system should be a “win-win for everybody,” it’s likely that Oregon’s program is too restrictive to be enticing to landowners, said Dave Hunnicutt, president of the Oregon Property Owners Association.

Landowners are unlikely to want to jump through the program’s regulatory hurdles without an incentive, Hunnicutt said. “There’d better be something valuable at the end of that.”

Currently, development credits can only be transferred within the same county, which is a geographical limitation that probably discourages landowners, he said.

Those in remote rural counties would be more interested in the program if they could transfer the development credits to more urbanized areas, Hunnicutt said.

Allowing more flexibility makes sense, since geographical restrictions won’t prevent property development under Measure 49, he said. “Those are going to happen and there’s nothing anyone can do to stop them.”

Another possibility could be to allow additional dwellings to be built with the development credits if they’re transferred from farm and forest land into rural residential zones, said Rep. Brian Clem, D-Salem, who chairs the House Agriculture and Land Use Committee.

“I feel like we need to sweeten the pot somehow,” Clem said.

From the Daily Journal of Commerce Oregon 11/22/19.

Suppose you want to develop a parcel of land containing a wetland created by water running off an adjacent property. Your project would fill the wetland, so the Federal Water Pollution Control Act (Clean Water Act) requires that you obtain a federal permit prior to undertaking that activity. Specifically, you need a permit from the U.S. Army Corps of Engineers pursuant to Section 404 of the Clean Water Act. Before the Army Corps issues the permit, the state must provide a water quality certification as required by Section 401 of the Clean Water Act.

What is the scope of the state’s authority? Must the state focus on only your project? Or may it look further and consider impacts from other projects, such as prior development of the adjacent property that created the wetland to be filled?

The Clean Water Act prohibits discharges of pollutants into waters of the United States unless done in accordance with a valid federal permit. In the case of discharge of dredged or fill material into waters such as wetlands, Section 404 of the Clean Water Act allows the Army Corps to issue permits for such activity.

When applying for a Section 404 permit, the applicant must provide “a certification from the state in which the discharge originates or will originate … that any such discharge will comply with the applicable provisions of” various other sections of the Clean Water Act. This requirement comes from Section 401 of the Clean Water Act and is referred to as the “401 water quality certification.”

The Clean Water Act and associated case law are clear that the state has virtually unlimited power to impose conditions on its 401 water quality certification to ensure compliance with the Clean Water Act and “any other appropriate requirement of state law.” See PUD No. 1 of Jefferson County. v. Washington Department of Ecology (1994). Federal law also says the focus of the certification review needs to be on the activity being permitted, not the discharge, and on ensuring that the activity “will be conducted in a manner which will not violate applicable water quality standards.”

In Oregon, water pollution control is mandated through ORS Chapter 468B. ORS 468B.020 requires the Oregon Department of Environmental Quality (DEQ) to take actions necessary for the prevention of new pollution and abatement of existing pollution by “requiring the use of all available and reasonable methods necessary to achieve the purposes of ORS 468B.015 and to conform to the standards of water quality and purity established under ORS 468B.048.”

These water quality laws are implemented in OAR Chapter 340. OAR 340-048 sets forth procedures for filing and evaluating water quality certification applications. OAR 340-048-0015 requires certification when an applicant is applying for a federal license or permit “to conduct any activity that may result in any discharge to navigable waters.” In reviewing applications for certification, DEQ “must evaluate whether the activity for which certification is sought will comply with applicable provisions of” the Clean Water Act, “water quality standards set forth in OAR 340, division 041, and other appropriate requirements of state law.” The specific considerations that DEQ must take into account all focus on the effect on water quality of the activity being permitted.

DEQ’s guidance documents further narrow the state’s focus to runoff from the activity being permitted. For example, DEQ’s Section 401 Water Quality Certification Post-Construction Stormwater Management Plan Submission Guidelines advises DEQ to consider all methods necessary for “the project” to meet water quality standards and evaluate whether “stormwater runoff may cause or tend to cause pollution.” The post-construction stormwater management plan need only look at “stormwater runoff generated by the water quality storm event on the CIA.” That is the Contributing Impervious Area, which is defined as “all impervious surface areas within the project boundaries plus impervious surface areas owned or managed by the same entity from which stormwater runs overland or via discrete conveyance (e.g., piped) to an area within the project boundaries.” DEQ, therefore, may evaluate run-on only when that run-on is coming from an area owned or managed by the same entity that is seeking the 401 water quality certification.

Thus, although the state has the authority to impose “all available and reasonable methods necessary” to protect water quality, its 401 certification review should look at whether the permitted activity will result in a discharge that would lower water quality. It should not evaluate the water quality impact of run-on from a completely different parcel or activity not owned or managed by the applicant. To do so would contravene DEQ’s own guidelines, which allow consideration of run-on only when it is coming from an area also owned by the applicant. The applicant must keep DEQ focused on the activity for which the permit is being sought.

Pushing the regulator to maintain that focus likely is not a realistic strategy given the costs in terms of project delay while negotiations continue. Depending on how long a 401 water quality certification application has been pending, applicants could consider asking the Army Corps to issue the Section 404 permit without the Section 401 certification on the basis that the state has waived certification by failing to act within the regulatory timeline. It is unclear if the Army Corps would agree to do so, and in any event, this only kicks the can down the road, as the state will likely insist on the same conditions prior to issuing necessary permits and approvals as the project progresses. The best strategy may be to start early – prior to purchase, when there may be room to negotiate the handling of off-site drainage as part of the sale. And if not, at least the issue will have been identified early, such that everyone knows what to expect as the project proceeds.

Elizabeth Rosso is an attorney at Jordan Ramis PC. She focuses on environmental law. Contact her at 503-598-5537 or elizabeth.rosso@jordanramis.com. This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.

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.