Anderson v. Yamhill County

(1) Where a local code provision requires that site design review be based on “[c]haracteristics of adjoining and surrounding uses,” where lands adjoining and surrounding the subject property are zoned for farm uses, and where the purpose of those zoning districts and the comprehensive plan is to support farm use and to “[c]onserve . . . farmland for the production of crops and livestock,” the local government does not err by characterizing the uses on adjoining and surrounding lands simply as farm uses, even where they contain farm dwellings. (2) Where a local code provision requires that site design review be based on “[c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use,” the local government does not need to specifically reference every comment received in the decision. (3) Where local code provisions require that site design review be based on “[p]rovision for adequate noise and/or visual buffering from noncompatible uses” and “[c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use,” arguments that an opponent provided unrefuted evidence of noise and odor impact from the type of operation being proposed provide no basis for reversal or remand where that evidence relates to activity conducted by the prior owner of the subject property and a different operation, where the local government relied on an expert report concluding that the applicant’s projected noise levels and proposed odor control system comply with state requirements, and where the county imposed conditions requiring further noise and odor control measures.

The applicant applied for site design review for a marijuana and hemp processing facility on land zoned Exclusive Farm Use 40 (EF-40) and surrounded by land zoned EF-40 and Agriculture/Forestry Large Holding (AF-20). The county approved the application and this appeal followed.

Under ORS 215.283(1)(r), permitted uses on farmland include “[a] facility for the processing of farm crops or for the production of biofuel, as defined in ORS 315.141.”  In their first assignment of error, petitioner argues the specific reference to biofuel production in this statute illustrates that processing methods which “alter the physical makeup” of the farm crop are not allowed on farmland. Petitioner argues that, because marijuana and hemp processing are comparable to biofuel production, but because the statute does not refer specifically to them as well, marijuana and hemp processing are not allowed on farmland under the statute. Because petitioner argued below only that the facility was industrial, and because that was not sufficient to advise the county that petitioner was making this particular argument, LUBA agrees with respondents that this issue was waived under ORS 197.763(1). Petitioner’s first assignment of error is therefore denied.

Under YCZO 1101.01, the purpose of site design review is “to resolve potential conflicts that may arise between proposed developments and adjacent uses.” Under YCZO 1101.02(A)(1), site design review must be based on “[c]haracteristics of adjoining and surrounding uses.” The findings describe uses on adjacent lands as farm dwellings, fruit and nut orchards, and livestock pasturage. However, because none of the surrounding land is residentially zoned, and because the purpose of the EF-40 and AF-20 zones is to support farm use, the county concluded residential uses in the area were subordinate to farm uses. In turn, because marijuana and hemp processing are farm uses, the county concluded the application was consistent with the characteristics of adjoining and surrounding uses. In their second assignment of error, petitioner argues that, instead of considering surrounding uses, the county improperly focused on the surrounding zoning, and that the fact that the surrounding dwellings are farm dwellings does not mean that they are not dwellings. Under YCZO 202, “use” is defined as “[t]he purpose for which land or a building or structure is used, designed, arranged or intended, or for which it is occupied or maintained.” Because one of the goals of the county’s comprehensive plan is to “[c]onserve Yamhill County’s farmland for the production of crops and livestock,” LUBA concludes the county did not misconstrue the term “use” in focusing on farm uses and not on residential uses. Petitioner’s second assignment of error is therefore denied.

In their first assignment of error, intervenor also argues the county did not consider the “[c]haracteristics of adjoining and surrounding uses.” Intervenor resides with their severely autistic adult son in a farm dwelling 300 feet from the proposed facility. Intervenor argues their residence was designed specifically to accommodate their son’s needs, that it will be difficult to manage their son’s medical challenges if the application is approved, and that the applicant had already constructed several structures without required permits. Because the county did not err in concluding that intervenor’s residential use is subordinate to the property’s farm use, and because intervenor identifies nothing in the code that requires the county to prioritize uses that were located in the area first or to weigh the fact that construction permits for structures were obtained after construction had already occurred, this subassignment of error is denied.

Under YCZO 1101.02(A)(4), site design review must also be based on “[p]rovision for adequate noise and/or visual buffering from noncompatible uses.” In addition, under YCZO 1101.02(A)(7), site design review must be based on “[c]omments and/or recommendations of adjacent and vicinity property owners whose interests may be affected by the proposed use.” Intervenor argues they provided unrefuted evidence of noise and odor impact on their son from the operation of the facility, and that the county failed to consider their comments and recommendations. Because YCZO 1101.02(A)(7) does not require the county to specifically reference every comment received in the decision, because intervenor’s evidence relates to activity conducted by the subject property’s prior owner and a different processing operation, because the county relied on an expert report concluding that the applicant’s projected noise levels and proposed odor control system comply with state requirements, and because the county imposed conditions requiring further noise and odor control measures, LUBA concludes substantial evidence supports the county’s conclusion regarding noise, and that the county adequately considered intervenor’s comments. Intervenor’s first assignment of error is therefore denied, and the county’s decision is AFFIRMED.