OP-ED: Saying land isn’t a prime resource won’t make it less protected

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