Central Oregon Landwatch v. Deschutes County

If the record establishes that the land in question does not possess soil suitable for farm use, petitioner cannot claim that this conclusion is erroneous based on surrounding land’s suitability.

Petitioner appeals a county board order declining local review of a county hearings officer’s decision that grants conditional use approval for a nonfarm dwelling in an EFU Zone. The property in question is a 22-acre property zoned EFU. Surrounding properties to the south and southeast are zoned rural residential and range in size and form. Intervenor-respondent Horse Butte Equestrian Center, LLC owns abutting property to the north and east of the subject property. Intervenor applied for a nonfarm dwelling to be located in a 0.7-acre building envelope on the southern portion of the subject property. This application was approved based on findings that the building envelope was generally unsuitable for the production of farm crops or livestock. Petitioner therefore brought this appeal.

In its second assignment of error, petitioner argues that the hearings officer misinterpreted and misapplied OAR 660-033-0130(4)(c). Petitioner claims the record established that the proposed building envelope could be sold, leased, rented, or otherwise managed as part of a commercial farm, and that it is therefore in violation of the above regulation. Intervenor responded that the building envelope was not managed as part of its equestrian center, and that the land in question could not be managed for farm purposes as part of the equestrian center. Despite petitioner’s claims that the land could be farmed profitably and managed as part of intervenor’s existing equestrian center, LUBA finds this unlikely since a “reasonable farmer” would not attempt to make the building envelope productive by clearing vegetation and transferring irrigation rights from one portion of the property to an area with unproductive soil. Because LUBA finds petitioner’s claims unpersuasive, the second assignment of error is denied and the county’s decision is AFFIRMED