Stop the Dump Coalition v. Yamhill County

Under ORS 215.296, a condition intended to prevent a nonfarm use from significantly changing or increasing the cost of accepted farm practices on surrounding farmlands may not be sufficient where there is no quantification in the record of how effective that condition would actually be.

Petitioners appeal a county decision that approves site design and floodplain development review to expand an existing landfill onto land zoned Exclusive Farm Use (EFU). Under ORS 215.296, certain nonfarm uses may be approved on land zoned EFU if they will neither force a significant change in, nor significantly increase the cost of, accepted farm practices on surrounding farmlands. In approving the expansion, the county imposed conditions that the landfill (1) install a new litter fence between itself and a neighboring farm, (2) pay for litter patrols of a neighboring farm, (3) increase its falconry program to address impacts from nuisance birds on nearby farms, (4) contract with the federal government to provide adaptive bird management services, and (5) purchase the entire crop of fruit produced by a neighboring farm at market price. On appeal from LUBA in prior decision, the Supreme Court held that ORS 215.296 is not satisfied by conditions that “force farmers to engage in a negotiation with a nonfarm use to obtain payment for the impacts to their operation.” Thus, in determining whether ORS 215.296 was satisfied, the county could not rely on conditions requiring the landfill to pay for litter patrols or purchase the neighboring crop of fruit. The Supreme Court subsequently remanded the case to LUBA to consider whether ORS 215.296 was nonetheless satisfied, given the remaining conditions.

In its prior decision, LUBA concluded that a reasonable decision maker could conclude that the conditions requiring the landfill to increase its falconry program and contract with the federal government for adaptive bird management services would satisfy ORS 215.296. In addition, it concluded that, while the condition requiring the landfill to install a new fence was not by itself sufficient to show compliance with ORS 215.296, the combination of the new fence and the litter patrols was enough. Although the Supreme Court’s decision did not disturb the first of these conclusions, it prevented the county and LUBA from considering the condition requiring the landfill to pay for litter patrols. Because there is no quantification in the record of how effective a new fence would be, LUBA again concludes that a reasonable decision maker could not conclude that, even after installing a new fence, there would not be a significant change in accepted farm practices. The assignment of error is therefore sustained, in part, and the county’s decision is REMANDED.