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Land-use laws bedevil both rural and urban dwellers

The big controversy here on Malden Farms is the land-use development known as the Driveway Project.

Critics say it takes critical urban farmland out of production. Supporters of the project argue it’s a necessary tradeoff: To spare farm and forest ground, you have to increase urban density.

Of course there is no Malden Farms. I made that up to describe what happened with the side yard of our 50’x100′ city lot here in Portland. That’s where I grow, or grew, vegetables and berries for us to eat, and it’s a major controversy, like I said.

People who own Oregon’s farms and ranches, live in its small towns and work its big open spaces often grumble about restrictions and regulations enacted by voters and legislators who live in Portland, Eugene and Salem.

But city residents live by development rules that can be even more Byzantine. The Driveway Project controversy convinced me it might be worth explaining that.

Malden Farms (agricultural pursuits apparently require use of the plural form) is on its namesake street in one of the neighborhoods that Portland decided should be developed more densely. The planners are certainly correct. When you travel to bigger cities, the first thing you notice is that Portland could hold a lot more people than it does.

That’s beginning to happen. The metro counties of Multnomah, Washington and Clackamas grew by about 20,000 people in 2019 and now have close to 1.9 million people. The city of Portland alone added about 9,000 people in the fiscal year that ended June 30, 2019, and about 9,600 the year before that. Most of them now park on our street, it seems.

A dozen apartment buildings sprouted in our neighborhood in the past few years, but the apartment developers were allowed to build more units than parking spaces. A couple of the smaller complexes don’t have any parking. Street and bridge capacity didn’t keep pace, either. Some of the apartment buildings aren’t even open or fully rented yet, but the increase in traffic and parking pressure is startling.

The problem, of course, is that the new residents brought their cars with them, despite the planners’ most fervent ideals. Now it can take 15 frustrating minutes to get out of the neighborhood by car. We’ve become one of those places where you can’t turn left, due to constant oncoming traffic. You know us Portlanders, we love to turn left.

More people are parking on both sides of narrow residential streets like ours, effectively reducing many of them to one traffic lane.

That’s what prompted the controversial Driveway Project and the subsequent loss of critical urban farmland.

Our 110-year old house didn’t come with a driveway. We often find other people’s vehicles parked in front of our house. We can’t gripe too much; it’s a public street, anyone can park there. We figured a driveway would get one or two of our cars (yeah, note the plural) off the street.

But the Driveway Project forced me to remove my raised vegetable beds and transplant a small apple tree, an olive tree, three scraggly blueberry bushes, a vengeful old rose and, most critically, the raspberry patch.

The city dictated a minimum width and depth for the driveway, which forced the transplants. I tried to argue the raspberries were, cough, a “heritage” patch and should be spared. They’re apparently quite old; I found a 1933 Mercury head dime when I was digging around in them once. I said the raspberries reliably provided three batches of jam per summer, so, you know, vital urban food production was at risk.

I also tried to argue that the driveway was only necessary because the city didn’t require apartment developers to provide enough parking for tenants.

The city permit people nodded and smiled. They said I could ask for a variance, but that would cost $2,800. Non-refundable even if I won.

The Driveway Project required a land-use permit and approval by the Bureau of Transportation to cut the curb and by the Urban Forestry staff to remove the apple tree. All three reviews cost money. I made four copies of my plans and visited the downtown permit center four times. A friendly city inspector visited twice to OK the contractor’s work.

But it’s done. Our cars are off the street and Malden Farms eventually will renew urban food production, although on a reduced scale. If rural farmland was spared, you can thank my many new neighbors. Very plural.

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Rural Oregon airport expansion clears legal hurdle

Farmland conservation advocates have failed to convince an Oregon land use board to block a controversial rural airport expansion plan but vow to continue fighting the project.

The state’s Land Use Board of Appeals has dismissed objections against a planned runway extension and other improvements to the Aurora State Airport, which 1,000 Friends of Oregon and other critics claim will urbanize an agricultural area.

Opponents of the project may still decide to challenge LUBA’s decision before the Oregon Court of Appeals or move forward with a parallel lawsuit against the expansion project in Marion County Circuit Court.

According to LUBA, the Oregon Department of Aviation wasn’t required to independently analyze the airport project’s compliance with statewide land use planning goals as long as the expansion followed Marion County’s comprehensive plan.

“Requiring a separate determination of compliance with both the comprehensive plan and the goals would create an uncoordinated regulatory scheme that could apply different standards to identical issues,” LUBA said.

The airport’s expansion is not incompatible with Marion County’s agricultural lands policies because it’s not clear that the project plan calls for improvements that would extend outside the “public” zone and into the “exclusive farm use” zone, the ruling said.

About 55 acres proposed for acquisition by the airport would remain farmland even though they’d be included in a runway protection zone, and it’s “just speculation” that other components would be located on farmland, LUBA said.

LUBA also rejected the argument that the airport expansion will significantly affect land use because the project plan “does not approve or authorize any development” and does “not change the status quo,” the ruling said.

Andrew Mulkey, attorney for 1,000 Friends of Oregon, said the airport’s preferred alternative for expansion clearly shows that new construction would occur beyond a road that separates the public zone from the farm zone.

“I think that LUBA’s interpretation is not supported by the documents in the record,” he said.

If the project’s opponents decide against appealing LUBA’s decision — or it’s upheld on appeal — they’d then proceed with a lawsuit in Marion County that alleges the public process for the airport expansion plan violated the state’s Administrative Procedures Act, Mulkey said.

The Aurora Airport Improvement Association, a group of business that supports the expansion, is pleased that LUBA has made clear the project complies with all state and local land use rules, said Wendie Kellington, its attorney.

“Too bad it took so much time and money to establish,” Kellington said.

Opponents have relied on a “false narrative” that the runway extension would spill onto farmland, while the runway protection zone would actually ensure the land remained agricultural in perpetuity, she said. “That’s completely consistent with EFU zoning.”

A utility facility that may have been placed on farmland has likely been rendered obsolete by improvements to aviation technology, Kellington said. “That’s not even going to happen.”

The next step in the expansion will involve an environmental analysis to qualify for federal funding, as well as a conditional use permit for the runway extension within the public zone, she said. The project should not have trouble meeting those standards.

“All of its impacts have been pretty well vetted up to this point,” Kellington said.

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Yamhill County Nannies

A recent land-use decision in Yamhill County, Oregon, specified a list of allowed cookies that can be baked by a wheat farmer hoping to add an artisan bakery to sell bread to the many wine tourists in the area. Chocolate chip cookies are not on the list.

The county decision also imposed a questionable prior restraint on the business by prohibiting future requests to expand the bakery with an additional oven not contemplated in the start-up business plan. Message to businesses – welcome to Yamhill County, Oregon.

The Yamhill County case, land-use Docket No. C-22-19/SDR-35-19, has already had a crooked path. The original administrative approval was appealed by a local special interest advocacy group, the so-called Friends of Yamhill County that has a long history of opposing increased economic activity on farmland. Yamhill County is perhaps the Oregon epicenter of the evolution away from lower-value commodity agriculture to a more value-added, direct to the consumer business model. It is no coincidence that Yamhill County is famous for starting Oregon’s journey into international stardom in the wine industry. Agri-tourism is the leading industry in Yamhill County – the industry that pulls in the most related and unrelated new economic activity, not necessarily the biggest revenue generator itself.

After the appeal, the parties reached a settlement, which among other terms set the list of allowed cookies. If you wonder where the elected officials are on this case, they can avoid going on the record unless someone appeals the new decision. They should put themselves on the record regarding their leading industry.

So if you want a spelt/hazelnut cookie, or a Sable Breton, you are good to go. But if you want next year’s most famous cookie craze, you, and the baker, are out of luck.

While local government has a legitimate role via its jurisdiction over issues regarding building and land development, when it starts to set the cookie menu, something has gone awry.

Related information:

Link to a subscription only news story here.

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Oregon port’s expansion onto farmland hits roadblock

By MATEUSZ PERKOWSKI Capital Press

The planned expansion of Oregon’s Port of Morrow onto 90 acres of farmland has hit a roadblock after a key rezoning decision was overturned.

Morrow County’s approval of the expansion, which is intended to make way for a data center, was challenged by the 1,000 Friends of Oregon nonprofit organization earlier this year.

The Oregon Land Use Board of Appeals has now determined the county didn’t properly change the 90-acre parcel from an “exclusive farm use” zone to a “port industrial” zone and must reconsider the decision. 

The Port of Morrow is “somewhat surprised” by the “disappointing” decision, as it had planned to rezone an equivalent industrial property so there’d be no net loss of farmland, said Ryan Neal, the port’s executive director.

“We were basically swapping acre for acre, just in a different location,” Neal said.

The port is still considering whether to revise its proposal to the county, challenge the LUBA ruling before the Oregon Court of Appeals or drop the expansion plan altogether, he said.

“We’re still reviewing what our options are,” Neal said.

To rezone the 90-acre property, Morrow County decided an exception to Oregon’s statewide land use planning goal of preserving farmland was warranted.

The data center, which would house computer servers, requires a rectangular parcel of at least 85 acres as well as 115 kilovolt electrical transmission lines and access to farmland for discharging cooling water, according to the county.

Rezoning the 90 acres east of the Port of Morrow’s industrial park wouldn’t cause a net loss of farmland because another nearby parcel of the same size would be rezoned from “port industrial” to “exclusive farm use,” the county said.

While the county and the port argued that alternative sites wouldn’t sufficiently accommodate the data center’s specific needs, LUBA ruled that the analysis was inadequate under Oregon law.

“We agree with petitioner that the county’s findings fail to explain why the data center use requires a location on resource lands, as opposed to otherwise suitable non-resource lands,” the ruling said.

The county should not have excluded certain alternative sites from consideration without determining “whether these properties could be made available for the data center in a timely manner,” LUBA said.

Likewise, the county should not have dismissed certain parcels because they include wetlands or because they’re too close to other data centers without discussing the associated costs of potential mitigation measures, the ruling said.

Although the county claimed there would be no net loss of farmland, this analysis was also lacking because it did “not discuss the quality or productivity” of the parcel that would be developed, according to LUBA.

Though it’s not out of the question the data center could find another home, the planned site would have been useful for the Port of Morrow, Neal said.

By beginning to expand eastward onto the 90 acres, the port wouldn’t have to make as much of a leap when extending services to roughly 2,000 acres of federal property it plans to acquire eventually, he said.

“That would have been one of the benefits,” Neal said.

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Allegations against Oregon county’s bridge project ruled plausible

By MATEUSZ PERKOWSKI Capital Press

A bridge construction project in Oregon’s Yamhill County will remain halted after a state land use board determined it may be unlawful and irreparably harm farmers and wetlands.

Opponents of the bridge project along a proposed 3-mile recreational trail have plausibly alleged Yamhill County approved it in violation of zoning ordinances, according to Oregon’s Land Use Board of Appeals.

Construction on the bridge must remain suspended until LUBA can conduct further deliberations in the case. Opponents and the county must submit additional legal briefs before oral arguments take place on May 27 by telephone conference.

The decision extends a stay order imposed by LUBA earlier this month after critics complained the bridge project impermissibly advances the controversial rail-to-trail project, whose approval LUBA overturned last year.

Yamhill County was ordered by LUBA to more closely scrutinize potential agricultural impacts from the Yamhelas-Westsider trail, which is opposed by numerous farmers along the route between Yamhill and Carlton.

Opponents of the recreational trail argued the local government “duped” LUBA by proceeding with the bridge project even though the trail hadn’t yet been fully reviewed for farm impacts, such as increased restrictions on pesticide usage and crop contamination from litter and trespassing.

Yamhill County argued the bridge wasn’t subject to Oregon’s land use process because it’s intended to improve access for fire trucks and wouldn’t be opened to the public until the overall recreational trail passes legal muster.

According to the county, critics also failed to show the bridge would cause “irreparable harm” that would warrant stopping construction, since the project is far enough from hazelnut trees that it won’t impede herbicide and fungicide spraying.

Food safety also won’t be a problem because the bridge was scheduled to be finished before May 1, long before hazelnuts would be grown and harvested from trees that were planted last year, the county said.

The county argued that “all environmental clearances were obtained” for the bridge, whose construction is being overseen by consulting engineers and the Oregon Department of Transportation.

Although LUBA said the issue of pesticides was “a reasonably close question,” the board determined that farmer Ben Van Dyke has established the construction site was close enough to prevent him from necessary sprays, at least for the purposes of staying the project.

Litter from the construction site is also a “probable” injury for the purposes of the stay order, since the county hasn’t promised to ensure detritus won’t blow onto the hazelnut farm, according to LUBA.

As for environmental approvals, LUBA found that documentation from the state and federal governments didn’t clearly enough show that construction won’t occur in regulated wetlands.

The state and federal approvals also cited the county’s conditional use permit for the recreational trail, but that permit is no longer effective after Yamhill County was ordered to reconsider the decision, according to LUBA.

The bridge project, which would cost $1 million to design and build, was largely funded by government grants and wouldn’t be easily removed if it’s later decided the county approved it unlawfully, LUBA’s order said.