Wachal v. Linn County

(1) Where a local code provision prevents a local government from receiving or considering any “evidence, argument, or testimony that would substantially change the application,” an interpretation of that provision as allowing additional supporting evidence that approval criteria are satisfied, as long as the proposed use, its location, and the approval criteria have not changed, is not inconsistent with the provision’s express language and is plausible. (2) Where an administrative rule requires that a farm operator “continue to play the predominant role” in the management of the farm, a reasonable person could rely on the farm operator’s testimony regarding their own management activities, and their status as the state license holder for the crop, to conclude that they play a predominant role, even where they have hired another company to perform certain tasks and provide consultation. (3) Where a local government relies on the past issuance of permits to conclude that an approval criterion is satisfied, a challenge to the local government’s procedure in issuing the permits provides no basis for reversal or remand where the permits are not the subject of the appeal.

Under OAR 660-033-0130(9)(a), to qualify for a relative farm help dwelling, a farm operator must require a relative’s assistance in the management and farm use of an “existing commercial farming operation.” In a prior appeal, LUBA remanded the county’s approval of such a dwelling on intervenor’s property because, while intervenor was engaged in hay production activities, a “farm use,” intervenor failed to establish that they were engaged in an “existing commercial farming operation.” Intervenor subsequently established a hemp-growing operation on the property. After holding proceedings on remand and concluding that the hemp operation qualifies as an “existing commercial farming operation” for which a relative’s assistance was needed, the county approved the application. This appeal followed.

Under Linn County Code (LCC) 921.160(C), the county “may not receive into the record or consider any evidence, argument, or testimony that would substantially change the application as deemed complete when rendering a decision on the application.” In the first assignment of error, petitioner argues the hemp operation “substantially change[s] the application as deemed complete,” and that the county therefore erred in relying on it to conclude that intervenor was engaged in a commercial farming operation. In approving the application, the county concluded that, because neither the proposed dwelling use, its location on the property, nor the decision criteria had changed, the submittal of additional supporting evidence did not “substantially change the application.” Because LUBA agrees with intervenor that the county’s interpretation of LCC 921.160(C) is not inconsistent with its express language, and is plausible, the first assignment of error is denied.

Under OAR 660-033-0130(9)(a), the farm operator must “continue to play the predominant role in the management and farm use of the farm.” In the second assignment of error, petitioner argues that, because intervenor hired another company to prepare the farmland and to provide consultation regarding hemp growing, there is not substantial evidence in the record that intervenor plays the “predominant role” in the management of the farm. Because the county relied on intervenor’s testimony regarding his own management activities, and his status as the industrial hemp state license holder, and because a reasonable person could rely on that evidence to conclude that intervenor plays the “predominant role” in the management of the farm, the second assignment of error is denied.

The subject property is located in the floodplain of a creek. Under LCC 933.310(B)(2), development may not be located within the 100-year floodplain unless it can be designed and engineered to comply with accepted hazard mitigation requirements. In concluding that this criterion was satisfied, the county relied on permits for the dwelling issued by the county health and road departments. In the third assignment of error, petitioner argues the county erred in relying on those permits because they were issued in violation of various procedural requirements. Because those permits are not the subject of this appeal, and therefore provide no basis for reversal or remand, the third assignment of error is denied, and the county’s decision is AFFIRMED.