Friends of Yamhill County v. Yamhill County

Under ORS 215.283(4)(d)(A), in determining whether commercial events are “incidental and subordinate to existing commercial farm use of the tract,” counties must consider any relevant circumstances bearing on whether the existing commercial farm use remains the predominant use of the tract, including the nature, intensity, and economic value of the respective uses in addition to their relative frequency.

The subject property is 21.5 acres, zoned Exclusive Farm (EF-20), used as a 10-acre filbert orchard, and developed with a historic barn from which intervenor operates a brewery and tasting room. In 2018, intervenor applied to hold up to 18, 72-hour commercial events per year on the property for a four-year period. Under ORS 215.283(4)(d)(A), such events are only allowed if they are “incidental and subordinate to existing commercial farm use of the tract.” Because the number of days of commercial events on the property would be less than the number of days of farming activity, the county approved the application. Petitioners appealed the county’s decision to LUBA. Because neither the text, context, nor legislative history of ORS 215.283(4)(d)(A) suggested the county cannot rely on a comparison of the number of days of activities to determine whether commercial activities are “incidental and subordinate” to farming activities, LUBA denied that portion of petitioners’ assignments of error. Petitioners appealed LUBA’s decision to the Court of Appeals. Because “the legislature intended the phrase ‘incidental and subordinate to existing commercial farm use of the tract’ to carry its established, technical meaning in the context of Oregon’s land-use laws,” which “involves a consideration of any relevant circumstances, including the nature, intensity, and economic value of the respective uses, that bear on whether the existing commercial farm use remains the predominant use of the tract,” the Court of Appeals concluded the county erred in focusing on the frequency of events to the exclusion of other relevant factors. The county’s decision is therefore REMANDED.