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OP-ED: Oregon gets serious about preserving farmland for farming


http://djcoregon.com/news/2019/04/09/op-ed-oregon-apparently-serious-preserving-farmland-farming/

In late February, the Oregon Supreme Court gave the final word (for now, at least) on a controversy that has dragged on for many years (and at one time involved a law firm that included your columnists).

Waste Management sought to expand its solid waste landfill in an exclusive farm use (EFU) zone in rural Yamhill County because it was running out of capacity. A coalition of farmers, vintners and farmland preservation supporters had consistently opposed the application, just as the county had consistently approved it. At issue before the Supreme Court was whether the county’s conditions of approval met state law. The conditions required the landfill operator to buy fruit contaminated by emissions from the facility and to send litter patrols to a nearby farm to respond to litter in its hay operations. Both the Land Use Board of Appeals (LUBA) and the Oregon Court of Appeals had found that, with one exception, those conditions were sufficient under the law.

Since 1961, Oregon has expected agricultural land to be preserved for farm use in several ways: by lowering assessed valuations (and thus property taxes) on farmland in farm use, by limiting nuisance claims against farmers undertaking farm activities within environmental regulations, and by easing land use limitations on commercial farms. In return, the state has had a policy of keeping farmland in large blocks by limiting parcelization, limiting most rural housing to what is needed by commercial farmers, and limiting or prohibiting nonfarm uses on farmland.

This latter requirement is important to the agriculture industry. Shopping malls, residential subdivisions and steel mills, as examples, are prohibited on EFU lands, while other uses that may otherwise be necessary (roads, utilities and churches) may be permitted. Still other uses such as a solid waste landfill are subject to discretionary approval standards requiring the use only if it would not “force a significant change” in accepted farming practices or “significantly increase the cost” of those practices on surrounding agricultural lands. To assure that these standards are met, a county may impose “clear and objective conditions” on a permit.

Surrounding farmers opposing the expansion of the landfill raised issues regarding litter in wheat fields, the attraction of “nuisance birds” that would interfere with adjacent cherry and grass seed operations, and noise and odor from the facility adversely impacting nearby wineries and farm stands. The county rejected these contentions and focused upon impacts on individual farms (as opposed to cumulative impacts on farming generally) and imposed conditions to mitigate the identified impacts. LUBA remanded the county’s decision on the issue of cumulative impacts and required the county to evaluate those cumulative impacts; however, LUBA also found that, with the conditions imposed by the county, the impacts on individual farms had been appropriately mitigated.

The Oregon Court of Appeals, through Judge Sercombe, affirmed LUBA’s order, but used a different test, suggesting the significant change and significant cost increase requirements were met if agricultural lands were preserved for productive use to obtain a profit in money and food provision. Thus, unless the allowance of the non-farm use significantly decreased the supply of agricultural lands, the profitability of the farm, or the supply of food, the non-farm use could be approved.

The Oregon Supreme Court, in its extensive and long-awaited decision, speaking unanimously through Justice Lynn Nakamoto, stressed longstanding efforts to preserve agricultural land for farm uses by the state Legislature and the Land Conservation and Development Commission (LCDC). The court noted that the County of Appeals decision had, on the contrary, stressed a broad view of agriculture and was more concerned with large-scale activities, whereas the opponents stressed impacts of the use on every farm activity on each surrounding farm parcel.

That court agreed with the opponents, finding the interpretation of “significance” is a question of law, rather than of fact as the county and landfill operator contended, and that the analysis of whether identified changes or increases in cost are “significant” applies to each farm and to each farm activity, rather than to farming in the general area. Reading that term in the light of other well-articulated farmland protection laws, the court concluded: “Together, those provisions suggest that the Legislature’s agricultural land use policy is a long-term one centered on preserving agricultural lands in large blocks for working farm and forest operations through limitations on nonfarm uses and development and through incentives for retention of rural lands in EFU zones; nothing suggests that profitability of specific farms is a focus of the policy.”

Using legislative history, which underscored that “significance” focused on impacts on individual farms to protect the limited supply of farmland, stressing an underlying legislative assumption of the Oregon system that long-term resource decisions should not be based on short-term economics. If a farmer must change accepted farm practices, even if there is no increased costs or reduced profitability, this class of use cannot be allowed.

The court affirmed LUBA’s remand of the case on the inadequacy of the county’s cumulative impacts analysis. The court also agreed with the opponents that the burden of mitigation of adverse impacts could not be placed upon the affected farms, such as by requiring the farmer to sell contaminated fruit to the dump operator, in lieu of selling that uncontaminated fruit to real customers, or allowing cleanup crews to traipse through farm fields with maturing crops. In particular, the court found that payments for non-marketable fruit to compensate for the inability to engage in accepted farming practices contravenes longstanding legislative policy to preserve agricultural lands and that litter from the disposal site that blew onto another farm, if substantial, also constituted a change in accepted farming practices of growing, harvesting and baling hay and was not ameliorated by paying for litter patrols.

The case now returns to Yamhill County for another decision. However, the court’s interpretation of the statutory definition of “significance” should complete change the outcome.

This case will make approval of a number of nonfarm uses in an EFU zone very difficult if the adjacent farm operator is able to marshal evidence of significant cost increases or changes in accepted farm practices. The new interpretation of Oregon’s farm laws is “significant.”

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.