246 P.3d 493
Or. Ct. App.2010Background
- Waste Not appealed a Yamhill County land use decision approving plan amendments, zone changes, a floodplain permit, and site plan for Riverbend Landfill expansion.
- Riverbend sought to convert EFU land to PWS zoning to permit landfill expansion; a limited overlay was requested to restrict future uses to landfill activity.
- County approved amendments and, applying GOALS, adopted a 'reasons' exception to Goal 3 (Agricultural Lands) to permit the changes.
- LUBA reversed, concluding the exception was not necessary to authorize the plan amendments and zone changes.
- Riverbend argued the exception was required because local EFU zoning precluded the landfill use despite state law allowing it.
- On review, the court affirmed LUBA, holding the county may not use a reasons exception to authorize a use otherwise allowed by Goal 3 and EFU zoning; if allowed, zoning must be amended under the goal framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a reasons exception to Goal 3 was necessary | Waste Not: use not allowed by local EFU zoning; exception required to permit otherwise allowed use. | Riverbend/Yamhill: exception needed to override local restrictions and permit goal-compliant expansion. | No; exception not justified to permit a use already allowed by Goal 3 and EFU under state law. |
| Whether DLCD v. Yamhill County controls | DLCD v. Yamhill County forbids exceptions to permit uses allowed by Goal 3 on EFU land; case should control. | DLCD v. Yamhill County is distinguishable or superseded by later changes; exceptions may be permitted under current statute and rules. | DLCD v. Yamhill County controls; exception cannot authorize a use permitted by Goal 3. |
| Preservation of arguments and scope of review | Arguments were preserved; LUBA erred in not applying DLCD v. Yamhill County. | Arguments not preserved or not properly raised; new contentions not reviewable; scope limited to preserved issues. | We decline to consider new contentions; preserve issues and uphold LUBA’s reasoning on exception necessity. |
Key Cases Cited
- DLCD v. Yamhill County, 183 Or. App. 556 (2002) (limits for exceptions; cannot authorize uses allowed by Goal 3 via an exception)
- Lane County v. LCDC, 325 Or. 569 (1997) (limits on nonfarm uses on agricultural land within LCDC rules)
- VanSpeybroeck v. Tillamook County, 221 Or. App. 677 (2008) (preservation and standards for real property land use review issues)
- Just v. City of Lebanon, 193 Or. App. 155 (2004) (preservation requirement for issues on appeal)
- Barnes v. City of Hillsboro, 239 Or. App. 73 (2010) (preservation and briefing requirements in land use review)
- Estremado v. Jackson County, 238 Or. App. 93 (2010) (preservation and scope in reviewing LUBA decisions)
- Friends of the Metolius v. Jefferson County, 230 Or. App. 150 (2009) (requirements for preserved issues in review)