Van Dyke v. Yamhill County

(1) The fact that a governing body enters into a design contract for a proposed project in their proprietary capacity as property owner does not necessarily mean that that they are incapable of determining the merits of a related land use application in their representative capacity as decision makers. (2) Under ORS 215.422(3), communications between county staff and the governing body regarding a design contract before land use proceedings commence are not ex parte contacts. (3) Under ORS 215.296(1), when there is evidence that an allowed nonfarm use will have impacts on farm uses, a county may not respond with conclusory findings, unsupported by substantial evidence. (4) While it is permissible for a local government to find compliance with an approval criterion by imposing conditions, but to allow the details of those conditions to be determined during subsequent administrative proceedings, the local government must at least consider different feasible options at a time and with sufficient detail to allow participants an opportunity to evaluate their effectiveness and provide input. (5) Under ORS 215.296(1), in analyzing and responding to the impacts of nonfarm uses on surrounding farmland, counties may not merely determine that it is “feasible” to respond to those impacts in a subsequent planning process without evaluating and responding to specific expert testimony with findings. (6) Under ORS 215.296, spraying and using other peoples’ property without permission are not “accepted farm practices.” In addition, while the impacts of nonfarm uses on surrounding farmland must be evaluated on a farm-by-farm and practice-by-practice basis, an evaluation of the cumulative impacts on all farm practices on all impacted farms is not required. (7) In considering a conditional use permit application, counties must apply all relevant comprehensive plan goals and policies.

In 2018, the county legislatively amended its comprehensive plan to acknowledge county ownership of a former railroad right-of-way and to authorize construction of a trail therein. Concluding that that decision required a conditional use permit (CUP) and application of ORS 215.296, LUBA remanded it. Shortly thereafter, but before initiating remand proceedings, the county entered into a contract with an engineering firm to design three bridges for the trail. Following a quasi-judicial public hearing and an open record period, the county approved the CUP. This appeal followed.

In the third assignment of error, petitioners argue the county failed to disclose ex parte communications between county staff and the commissioners that took place during the contract proceeding, and that the commissioners’ entering into the contract before issuing the CUP indicate that they mpermissibly prejudged the merits of the CUP application. Because, under ORS 215.422(3), communications between county staff and the governing body are not ex parte contacts, and because the fact that the commissioners entered into the contract in their proprietary capacity as property owner does not mean that that they were incapable of determining the merits of the CUP application in their representative capacity as decision makers, LUBA agrees with respondents that petitioners’ arguments provide no basis for reversal or remand. The third assignment of error is therefore denied.

Under ORS 215.296, certain nonfarm uses may be approved on land zoned Exclusive Farm Use (EFU) if they will not force a significant change in or significantly increase the cost of accepted farm practices—a standard which may be satisfied through the imposition of clear and objective conditions. In the first assignment of error, petitioners challenge the county’s findings of compliance with ORS 215.296. Specifically, petitioners argue that certain pesticides require setbacks when applied near recreational areas and that farmers’ inability to apply pesticides on portions of their fields adjoining the trail represent a significant change in farm practices. Respondents counter that those pesticides could be applied when people and animals are not using the trail and that, because the right-of-way is wider than the trail itself, a setback will exist regardless. LUBA agrees with petitioners that, because the pesticides require a setback from “areas” rather than people or animals, and because the entire right-of-way will be a recreational area regardless of the trail’s precise location, remand is necessary for the county to adopt factual findings about the impacts that the specific setbacks required by particular pesticides will have on particular farms given the application method used.

To address trespass, trash, dogs, and a variety of farm-specific impacts, the county imposed conditions requiring that it construct a fence between the trail and adjoining farms that is “capable of preventing dogs and people from entering adjacent farm fields.” Under those conditions, the details of fence construction will be established during a subsequent planning process. Petitioners argue those conditions are inadequate to satisfy ORS 215.296 because they allow the fence’s materials and design to be determined at a time when petitioners will have no opportunity to provide input. LUBA agrees with petitioners that it is incumbent on the county to propose a particular type of fence with sufficient detail to allow participants to evaluate its effectiveness and that, without such evidence, the county could not have and did not craft clear and objective conditions regarding its installation.

Petitioners also argue that the county roads providing access to the trail are inadequate and, because the county does not propose parking at any of those access points, users will park near farm driveways or on road shoulders, making it difficult to move farm equipment. Petitioners also argue that, without a traffic study, there is no basis to conclude that the trail will not cause traffic congestion. The county responds that, because most users will be locals accessing the trail by foot or bicycle, and because any non-locals will likely park on city streets at either end of the trail rather than on county roads in the middle, no parking is necessary. The county also responds that no traffic study is required by law. Because the record includes no parking demand information of any kind, let alone evidence supporting the county’s presumptions, LUBA agrees with petitioners that the county’s findings on parking and congestion are conclusory and not supported by substantial evidence. The first assignment of error is therefore sustained, in part.

In the second assignment of error, petitioners challenge the county’s findings of compliance with the CUP criteria in Yamhill County Zoning Ordinance (YCZO 1202). Under YCZO 1202.02(E), the county was required to find that the trail is appropriate considering the adequacy of public facilities and services. During the local proceedings, a representative of the local fire district testified regarding the requirements for adequate fire and emergency services and that providing those services would create a major hardship given the district’s tight budget. The county imposed no conditions addressing those concerns and merely found that, while it was “feasible” to satisfy some of the district’s requirements, the trail’s design would be determined in the subsequent planning process. Because the county’s findings neither address the district’s expert testimony nor cite to evidence disputing it, LUBA agrees with petitioners that the county’s findings are inadequate and that remand is necessary for the county to address the testimony and adopt sufficient conditions.

Under YCZO 1202.02(B), the county was required to find that the trail is consistent with the applicable comprehensive plan goals and policies. Under YCZO 1202.02(C), the county was required to find that the parcel is suitable for the proposed use given, among other things, its location. Because the county’s findings address only the comprehensive plan goals and policies concerning the trail itself, but not those concerning agricultural land, water, fish and wildlife, open spaces, and transportation, and because the county’s findings do not address the suitability of the trail’s location, LUBA agrees with petitioners that remand is necessary for the county to adopt adequate findings. The second assignment of error is therefore sustained, in part.

In rejecting petitioners’ other assignments of error, LUBA holds that the county did not err in concluding that spraying and using other peoples’ property without permission are not “accepted farm practices.” Thus, the fact that farmers will have to exercise more cautions to avoid pesticide overspray and drift, will no longer be able to spray the right-of-way to control for weeds and might therefore have to install isolation strips to maintain crop certification, and will no longer be able to cross the right-of-way to reach neighboring fields provide no basis for reversal or remand. LUBA also rejects petitioners’ invitation to expand its interpretation of ORS 215.296 to require, in addition to an evaluation of the impacts on each individual farm practice and the cumulative impacts across all farm practices on a farm unit, an evaluation of the cumulative impacts on all farm practices on all impacted farms. The county’s decision is REMANDED.