McPhillips Farm, Inc. v. Yamhill County

A Land Use Compatibility Statement is not a "land use decision" when it permits modification of a feature that is encompassed by a previous land use decision. Accordingly, the Land Use Board of Appeals does not have jurisdiction to review the Land Use Compatibility Statement.

McPhillip Farms, Inc. appealed a decision by the Land Use Board of Appeals (LUBA) determining it did not have jurisdiction to review a Land Use Compatibility Statement (LUCS) issued by Yamhill County. A landfill that included an earthen berm as a perimeter was approved and in 1980 the County rezoned the property as Public Works Safety (PWS). In 1990, the landfill sought to renew its permit and expand the landfill which required the County to issue a LUCS determining if the expansion fit the land use plan. The County issued a LUCS in 1992. It approved the expansion because it was within the PWS zone created in 1980. In 2012, the landfill applied for a modification of the western perimeter berm. It sought to create a "mechanically stabilized berm" that was 40 feet higher than the existing berm. The County issued another LUCS determining the modification was acceptable because it was only a technical change to the existing berm. McPhillip appealed the LUCS to the LUBA. LUBA determined the 1980 land use decisions specifically allowed for a landfill with berms. It also determined that the 1992 LUCS interpreted the county's design review ordinance as not requiring review for approved components of the land use. The existing authorization was sufficient for modification of the berm without review. As a result, the 2012 LUCS could not be considered a land use decision. LUBA determined it did not have jurisdiction because the LUCS was not a land use decision. The Court of Appeals agreed with LUBA's reasoning. The Court held that LUBA properly dismissed the review proceeding under ORS 197.015(10)(b)(H)(i) which precludes review of a LUCS determination of existing compatability. Affirmed.