Schrepel v. Yamhill County

The county reapproved a conditional use permit (CUP) for a recreational trail in a former railroad right-of-way on land zoned exclusive farm use (EFU) and reauthorized a contract for the construction of a bridge along the trail route. This appeal followed.

 Both the CUP and bridge contract had previously been remanded by LUBA. The county reapproved the CUP while the first appeal of the bridge contract was still pending before LUBA. In Standard Insurance Co. v. Washington County, LUBA held that a local government loses jurisdiction over a challenged decision when an appeal to LUBA is perfected. In the first assignment of error, petitioners argued that the decision reapproving the CUP was void because the county lacked jurisdiction to issue it while the first appeal of the bridge contract was pending before LUBA. In turn, because the decision reauthorizing the bridge contract relied on the decision reapproving the CUP, petitioners argued that that decision was flawed as well. LUBA concluded that, although the CUP and the bridge contract concerned the same overall trail project, and even though the decision reauthorizing the bridge contract relied upon the decision reapproving the CUP, they were separate land use decisions authorizing separate actions and the county therefore did not lack jurisdiction to reapprove the CUP while the first appeal of the bridge contract was pending before LUBA. The first assignment of error was therefore denied.

Due to the COVID-19 pandemic, the county limited oral testimony during the public hearing to the county’s attorney and one attorney representing all of the trail’s opponents, including petitioners. In the fifth assignment of error, petitioners argue that the county committed a procedural error that prejudiced their substantial rights by preventing petitioners from providing oral testimony. In Pierron v. Eugene, LUBA suggested that, while an inability to present oral testimony does not usually prejudice a party’s substantial right to an opportunity to be heard and to present and rebut evidence, and while an ability to submit written testimony is usually sufficient, that might not be the case when the party’s credibility is at issue. Because the county repeatedly dismissed petitioners’ written testimony as “not credible,” “unsupported,” and “untrue,” and because it found petitioners’ attorney’s oral testimony not credible, LUBA agreed with petitioners that their inability to present oral testimony prejudiced their substantial rights and that remand was required for a new hearing. The fifth assignment of error was therefore sustained.

Under ORS 215.296(1), known as the farm impacts test, certain nonfarm uses may only be allowed in EFU zones if they will neither force a significant change in nor significantly increase the cost of accepted farm practices. Under ORS 215.296(2), counties may impose “clear and objective” conditions of approval to satisfy ORS 215.296(1). In the second assignment of error, petitioners challenged the county’s conclusion that ORS 215.296(1) was satisfied.

Farmers used certain herbicides adjacent to the trail. The labels for those pesticides used to prohibit spraying “around” recreational areas. The Oregon Department of Agriculture (ODA) interpreted those labels to mean that the herbicides could not be sprayed adjacent to the trail. During the first appeal of the CUP, petitioners argued that the trail would violate ORS 215.296(1) because it would prevent farmers from spraying those herbicides adjacent to the trail, meaning that farmers would have to use less effective herbicides or hire expensive manual labor to remove weeds and suckers. LUBA remanded the first appeal of the CUP for the county to adopt more adequate findings regarding the buffer required by the labels and whether that buffer would violate ORS 215.296(1). The labels were subsequently changed to prohibit spraying “in” recreational areas. ODA and farmers interpreted the new labels as not changing the spray restrictions. However, the county concluded that, based on that new language, the pesticides could be sprayed adjacent to the trail, no buffer was required, and the trail would therefore not violate ORS 215.296(1). Because the county relied on its own interpretation of the labels, without any expert evidence contradicting ODA’s and the farmers’ interpretations, LUBA concluded that the county’s conclusion was not supported by substantial evidence—that is, evidence upon which a reasonable person would rely. In turn, remand was again required for the county to adopt adequate findings, supported by substantial evidence, regarding the buffer required by the labels and whether that buffer would violate ORS 215.296(1).

Farmers also used certain pesticides adjacent to the trail. Those pesticides required a 10-foot setback from “sensitive sites,” including the trail. Farmers testified that the inability to spray the pesticides in the setback would require the farmers to either remove crops within the setback, not spray the setback, or use only one type of less effective pesticide, of which the latter two options would likely result in infestation and crop loss and all of which would violate ORS 215.296(1). The county concluded that allowing pesticides to drift onto adjacent property was not an accepted farm practice and was therefore not protected by ORS 215.296(1). LUBA agreed with petitioners that the accepted farm practice at issue was not allowing pesticides to drift onto adjacent properties but, rather, spraying all the way up to the trail right-of-way, which they would no longer be able to do because the trail would turn the right-of-way into a “sensitive site” requiring a setback. That requiring the farmers to accommodate a 10-foot setback on their own property might have been “reasonable, prudent, and feasible” was irrelevant because, under ORS 215.296(1), it is the nonfarm use that is prohibited from significantly impacting accepted farm practices. LUBA concluded that the county improperly analyzed the trail’s impacts on pesticide spraying under ORS 215.296(1).

The federal Environmental Protection Agency (EPA) has adopted a 100-foot pesticide Application Exclusion Zone (AEZ), which requires pesticide applicators to suspend certain methods of pesticide application if untrained and unequipped people enter the AEZ during such application, even if those people are outside the farm boundaries. Because spray application depends on a limited “spray window” wherein daylight and weather conditions are adequate and the applicator is available, farmers argued that people on the trail could cause delays in pesticide application, thereby increasing costs and potentially resulting in infestation. At LUBA, the county argued that, under OAR 437-004-6405, the Oregon Occupational Safety and Health Administration (OSHA) declined to adopt the EPA AEZ, so it did not apply. Petitioners argued that, although OSHA did not adopt the EPA AEZ as a workplace safety regulation, it still applied. Regardless of whether the EPA AEZ was applicable law, LUBA agreed with petitioners that complying with the EPA AEZ was an accepted farm practice and that the county erred by not analyzing the trail’s impacts with respect to that practice.

Some farmers applied their pesticides aerially. Those farmers testified that the trail would prevent them from continuing to apply pesticides aerially due to the risk of complaints and litigation from trail users. The county imposed a condition requiring the county to temporarily close the trail where farmers notified the county 72 hours in advance of aerial pesticide application. Petitioners argued that that condition would not reduce the impacts to insignificance due to the limited “spray window,” which might not accommodate a 72-hour waiting period. Although no law prohibited farmers from continuing to apply pesticides aerially, because the county did not demonstrate that any changes to that practice caused by the trail would not be significant in light of the farmers’ testimony, LUBA concluded that the decision misinterpreted ORS 215.296(1) and was not supported by substantial evidence.

The trail would have been paved and it would have crossed three drainageways requiring the installation of culverts. Petitioners argued that the trail would have resulted in flooding and contamination of adjacent farms. Because the findings merely stated that the county managed county roads and would correctly engineer the trail, but did not address whether the trail would result in new drainage patterns or contamination, LUBA agreed with petitioners that the findings were inadequate.

Petitioners argued that the trail would result in trespass and contamination of adjacent farms, thereby depriving farmers of their seed and food safety certifications. The county imposed a condition of approval preventing most trail construction until after a subsequent planning process to design and develop a fence to prevent “trespass related impacts.” Because that condition did not prevent trespass by members of the non-general public (i.e., county employees), and because it was not clear and objective which “trespass related impacts” the fence would be designed to mitigate, LUBA agreed with petitioners that the condition was inadequate to reduce trespass-related impacts to insignificance and that it violated ORS 215.296(2). The second assignment of error was therefore sustained.

In the third assignment of error, petitioners argued that the county was precluded under the law of the case doctrine enunciated in Beck v. City of Tillamook, from relying on a subsequent planning process to satisfy ORS 215.296 because LUBA’s remand in the first appeal of the CUP was based in part on a condition requiring a subsequent planning process. Because LUBA’s remand in the first appeal of the CUP was based on the fact that the subsequent planning process did not allow for public participation, LUBA concluded that the county was not precluded from attempting to resolve that issue on remand. However, while conditions requiring second-stage proceedings are usually allowed if they allow for public participation, and while the condition at issue in this appeal required a public hearing during the subsequent planning process, LUBA concluded that conditions requiring second-stage proceedings are not allowed to demonstrate compliance with ORS 215.296(1) because, under ORS 215.296(2), such conditions must be clear and objective, which a condition requiring a second-stage proceeding could never be. Instead, in order to satisfy ORS 215.296(1), LUBA concluded that the county was required to propose a fence with sufficient detail to enable participants to evaluate its effectiveness in addressing any farm impacts. The third assignment of error was therefore sustained.

In the fourth assignment of error, petitioners argued that the county misconstrued the CUP approval criteria at Yamhill County Zoning Ordinance 1202.02. Those criteria required that the proposed use be “compatible with existing uses and other allowable uses in the area,” that the proposed use be “appropriate, considering the adequacy of public facilities and services existing or planned for the area,” that the parcel be “suitable for the proposed use considering its * * * location,” that the proposed use “not alter the character of the surrounding area in a manner which substantially limits, impairs or prevents the use of surrounding properties for the permitted uses listed in the underlying zoning district,” and that the proposed use be consistent with the applicable provisions of the Yamhill County Comprehensive Plan. Petitioners argued that the county erred in concluding that some of those criteria were met for the same reason that ORS 215.296(1) was not met. The county responded that it interpreted those criteria differently than ORS 215.296(1). Because the decision-maker was the board of commissioners—the governing body—LUBA deferred to many of the county’s interpretations under ORS 197.829(1) and Siporen v. City of Medford. LUBA also concluded that the county was entitled to balance conflicting comprehensive plan policies. LUBA ultimately denied all of the subassignments of error except for two: (1) where the county did not identify findings responding to a criterion that it had allegedly interpreted differently from ORS 215.296(1), and (2) where the county did not provide expert testimony contradicting fire district testimony regarding the difficulty of providing fire control services for the trail. The county’s decision was therefore REMANDED.