Landwatch Lane County v. Lane County

In order to comply with the “gross income” test established in ORS 197.247(1)(a), “objective criteria” is not required; if it were required, affidavits from an affiant that has an interest in the subject of the affidavit are sufficient “objective criteria.”

The property in question is a 110.5-acre property. Intervenors applied to amend the Lane County Comprehensive Plan to change their land’s designation from agricultural to Marginal land, and to change the zoning of the property from Exclusive Farm Use to Marginal Land.

Under ORS 197.247(1)(a), Lane County may designate certain lands as marginal lands if it meets a series of tests. The first is the “gross income” test, which requires a finding that the subject property was “not managed during three of the five calendar years preceding January 1, 1983, as part of a farm operation that produced $20,000 or more in annual gross income or a forest operation capable of producing an average, over the growth cycle, of $10,000 in annual gross income.” To calculate income, a county may use statistical information compiled by . . . objective criteria. ORS 197.247(5).

Petitioner argues that the county erred in relying on sworn affidavits from intervenors and previous owners of the property, because “objective criteria,” does not include sworn affidavits that are subjective in nature, especially considering the span of decades between 1978 and the present. In response, intervenors argue that ORS 197.247(5) authorizes, but does not require, the county to use objective data. In addition, the board of county commissioners concluded that the affidavits were credible, authentic and provided sufficient evidence for the county to conclude the “gross income” test was met. LUBA agreed with intervenors, because petitioner did not explain why the statute’s use of the word “may,” requires the county to use “objective criteria,” and did not explain why a sworn affidavit is not “objective” simply because the affiant has an interest in the subject of the affidavit. LUBA further stated that a reasonable decision maker could rely on the sworn affidavits regarding the income from farm operations. AFFIRMED