Friends of Yamhill County v. Yamhill County

Under ORS 215.283(4)(d), (1) determining whether commercial events are “incidental and subordinate” to an existing farm use does not require a comparison of revenue between the activities and, (2) in order for such events to be considered “necessary to support” the farm uses on the subject property or the agricultural enterprises in the area, the events must be “essential in order to maintain the existence” of either the uses or the enterprises.

The subject property is zoned for Exclusive Farm Use (EFU). The primary farm use on the property is a filbert orchard, and the property is developed with a historic barn from which intervenor operates a brewery and tasting room. Under ORS 215.283(4)(d), up to 18 commercial events or activities may be permitted per year on a tract zoned EFU if, among other things, the applicant demonstrates that the events or activities are “incidental and subordinate to existing commercial farm use of the tract” and “necessary to support the commercial farm uses or the commercial agricultural enterprises in the area.” In 2018, the county approved a permit for up to 18, 72-hour events per year on the subject property. This appeal followed.

In approving the permit, the county found that the events were “incidental and subordinate” to the farm use because the number of days of events per year, 54, was less than the number of days of farming per year, 365. In the second assignment of error, petitioners argue the county erred by not also comparing the economic impact of the events and the farm use and, because the estimated revenue from the events would be more than 5-times that of the farm use, the former is neither incidental nor subordinate to the latter. Because other statutes relating to farm stands and wineries demonstrate that the legislature knows how to limit the term “incidental” to require a specific economic relationship, and because the legislature did not include similar language in ORS 215.283(4), LUBA agrees with intervenor that the statute does not require a comparison of revenue. Instead, whether an event is incidental and subordinate to a farm use depends on each application. Because the county’s comparison of the number of days of activities is consistent with this interpretation, the second assignment of error is denied.

In approving the permit, the county found that the events were necessary to support both the farm use on the subject property and the agricultural enterprises in the area. The county interpreted the “area” to be the entire county and the term “necessary” to mean “more than merely ‘convenient,’” instead of its ordinary meaning of “absolutely needed.” In the first assignment of error, petitioners challenge this latter interpretation. Given the legislative history, LUBA concludes that the legislature understood the phrase “necessary to support” to mean that the events must be “essential in order to maintain the existence” of either the farm use on the subject property or the agricultural enterprises in the area. Because the county’s conclusion that the events are necessary both to continue making a profit from the filbert farm and to support the agricultural enterprises in the entire county is not supported by evidence in the record, the first assignment of error is sustained and the county’s decision is REMANDED.