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On-farm brewery events not ‘subordinate’ to ag, critics argue

Oregon courts


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.”