391 P.3d 932
Or. Ct. App.2017Background
- Riverbend Landfill sought county approval to expand, adding new disposal modules that would extend landfill operations ~15 years and create new "working faces" near EFU-zoned farmland.
- Expansion raised farm-impact concerns (windblown litter, nuisance birds, odors, crop contamination, market impacts) for adjacent farms including McPhillips (hay), Frease (cherries/berries), and nearby vineyards/wineries.
- County approved site design review and floodplain permits, imposing mitigation conditions (e.g., additional litter fencing, paid litter patrols, expanded falconry, USDA bird-control contract, purchase of Frease produce at market rates).
- Petitioners appealed to LUBA, which remanded for additional findings on cumulative impacts and certain farm impacts; after remand the county reapproved and LUBA again reviewed.
- The Oregon Court of Appeals reviewed LUBA’s order for being "unlawful in substance" under ORS 197.850(9)(a), focusing on interpretation and application of ORS 215.296(1) (prohibiting significant changes to, or significant cost increases in, accepted farm practices) and ORS 215.296(2) (allowing mitigation by clear and objective conditions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of conditions under ORS 215.296(2) (McPhillips litter & Frease produce-purchase) | Petitioners: Conditions merely shift costs or change practices; paying for patrols or buying produce cannot avoid a "significant" change/cost. | County/Riverbend: Conditions mitigate impacts, preserve farm profitability, and thus render changes/costs insignificant. | Held: Conditions that preserve profitability make impacted costs or practices legally insignificant; LUBA correctly upheld them. |
| Evidentiary support and "clear and objective" requirement for conditions (fencing, patrols, bird controls) | Petitioners: Record lacks evidence that conditions will be effective; some conditions are vague (height/location/frequency) and not objectively enforceable. | County/Riverbend: Record contains expert testimony and operational details; conditions are sufficiently specific for objective enforcement. | Held: LUBA correctly applied substantial-evidence review; conditions (fencing location, patrol options, falconry expansion, USDA contract) are supported and are clear/objective. |
| Whether decline in farm-product price (wine grapes) is an "accepted farm practice" change or cost increase | Petitioners: Buyer perceptions and price declines caused by landfill constitute increased cost or change to accepted marketing practice. | County/Riverbend: Price declines are not a change to how grapes are marketed or an increased cost of an accepted practice absent evidence of forced change in practice. | Held: Loss in value or lower price alone is not a change to an accepted farm practice nor an increased cost under ORS 215.296 absent evidence it forces change in operations or marketing. |
| Scope of cumulative-impacts analysis under ORS 215.296(1) | Petitioners: County must assess cumulative effects across multiple farms (same-impact aggregated across farms). | County/Riverbend: Analysis should focus on cumulative impacts on individual farms (sum of different impacts per farm); county considered multiple-impact farms. | Held: LUBA correctly required analysis of whether multiple insignificant impacts combine to be significant for each particular farm; county’s generalized findings were deficient and remand was appropriate. |
Key Cases Cited
- Zimmerman v. LCDC, 274 Or. App. 512 (Or. App. 2015) (discussing "unlawful in substance" review of LUBA orders)
- Mountain West Investment Corp. v. City of Silverton, 175 Or. App. 556 (Or. App. 2001) (defining "unlawful in substance" as mistaken legal interpretation)
- Dimone v. City of Hillsboro, 182 Or. App. 1 (Or. App. 2002) (comparison of review standards for administrative orders)
- Younger v. City of Portland, 305 Or. 346 (Or. 1988) (substantial-evidence review standard described)
- Citizens for Responsibility v. Lane County, 218 Or. App. 339 (Or. App. 2008) (application of substantial-evidence review to land-use findings)
- Von Lubken v. Hood River County, 118 Or. App. 246 (Or. App. 1993) (cumulative-effects requirement under ORS 215.296)
- McCaw Communications, Inc. v. Marion County, 96 Or. App. 552 (Or. App. 1989) (construe nonfarm-use provisions consistent with preserving agricultural land)
- Warburton v. Harney County, 174 Or. App. 322 (Or. App. 2001) (interpreting ORS 215.283 in light of state agricultural policy)