317 P.3d 274
Or. Ct. App.2013Background
- Bella Organic operated a farm stand on EFU-zoned land and obtained a permit authorizing sales, incidental retail items, and limited special events; it later sought to expand fee-based events (farm-to-plate dinners, small gatherings, food carts, tents, corn-maze platform).
- Multnomah County’s planning director and hearings officer approved modified permit conditions but limited event frequency/size and denied tents; opponents (including Mark Greenfield) and Bella appealed to LUBA.
- LUBA: (a) held the promotions clause could authorize outdoor promotional activities but concluded the statute’s bans on certain structures (banquets, public gatherings, public entertainment) implicitly precluded those same activities outdoors (thus barring the farm-to-plate dinners); (b) treated certain temporary items (tents, viewing platform) as prohibited structures if used solely for incidental/promotional sales; (c) limited scope of food-cart authorization; (d) upheld small-scale gatherings conditionally.
- The county, Bella, and Greenfield sought review in the Oregon Supreme Court. The central statutory provisions were ORS 215.283(1)(o) and OAR 660-033-0130(23) (farm-stand allowance, promotions clause, and 25% incidental-sales limit).
- The Supreme Court reviewed statutory text, legislative history (1993 baseline and 2001 amendment adding the promotions clause), and construction principles (PGE/Gaines) to resolve whether promotions are standalone and how structure limits apply.
Issues
| Issue | Plaintiff's Argument (Greenfield) | Defendant's Argument (County/Bella) | Held |
|---|---|---|---|
| 1. Are outdoor farm-to-plate dinners authorized as “fee-based activity to promote the sale of farm crops”? | Dinners are functionally banquets/restaurants and thus barred by statute’s structure-based ban on banquets/public gatherings. | Promotions clause permits outdoor, fee-based promotional activities that reasonably promote contemporaneous farm-stand sales; structure bans limit only structures, not outdoor activities. | Promotions clause authorizes outdoor promotional activities; statute’s structure-based prohibitions do NOT bar outdoor dinners. LUBA erred to the extent it invalidated the dinners as outdoor "banquets." Remand for procedural issues. |
| 2. Does the rule preclude structures used solely for incidental retail or promotional activity? | (Greenfield) Structures solely for promotional/retail incidental uses are inconsistent with farm-stand design/use limits. | (County) The rule’s text treats incidental sales and promotional activity as included within the permissible design/use of farm-stand structures. | The promotions clause is a separate use; structures must be designed/used primarily for sale of farm crops/livestock. Court affirms that structures cannot be used solely for promotional/incidental retail purposes. |
| 3. Are tents, canopies, platforms, food carts, and kiosks “structures,” and may food-cart use be broad? | (Greenfield) Such items are structures subject to limits; broad food-cart authorizations are excessive. | (County/Bella) Tents and temporary items should not be treated as permanent structures; carts/kiosks not necessarily structures; extent limited only by 25% rule. | "Structure" covers temporary and permanent constructed things for public use; tents, platforms, food carts, kiosks qualify. Food carts are structures and may be permitted only if designed/used for sale of farm crops/livestock; LUBA erred if it treated carts as non-structures. Court rejects categorical limit on number of carts but remands to evaluate whether items sold are only incidental and within 25% constraint. |
| 4. Are small-scale gatherings (birthdays, picnics) allowable promotional activities, and is the county’s condition sufficiently definite? | (Greenfield) These events are unrelated to farm operations and are too vague; risk of permitting weddings, corporate events. | (County) Conditioned on promotion of contemporaneous farm-stand sales, timing (during stand hours), and required farm-themed components; ejusdem generis limits similar activities to small, family-oriented farm-promotional events. | Court upholds county/LUBA: small-scale, farm-themed gatherings may qualify when conditioned to promote contemporaneous sales and include farm-related activities. No remand for vagueness given assurances/conditions. |
Key Cases Cited
- PGE v. Bureau of Labor and Industries, 317 Or 606 (statutory construction methodology)
- State v. Gaines, 346 Or 160 (statutory interpretation refinements to PGE)
- Brentmar v. Jackson County, 321 Or 481 (characterizing ORS 215.283(1) uses as "as of right")
- Stallcup v. Dept. of Transportation, 341 Or 93 (use of context to inform statutory meaning)
- Meyer v. City of Portland, 67 Or App 274 (evidentiary standard: likelihood and reasonable certainty for compliance)