Landwatch Lane County v. Lane County

Intervenor applied to place a dwelling on a 249-acre parcel zoned Exclusive Farm Use (EFU). Under ORS 215.283(1)(e), “primary dwellings customarily provided in conjunction with farm use” are allowed on EFU land. A hearings officer approved the application and this appeal followed.

Under a previous version of Lane Code (LC) 16.212(7)(a)(iv), primary farm dwellings had to “be occupied by a person or persons who will be principally engaged in the farm use of the land.” Because intervenor was principally engaged in the farm use of their 1,166-acre farm operation, the hearings officer concluded that LC 16.212(7)(a)(iv) was met. Petitioner argued that the hearings officer erred by focusing on the farm operation rather than the 249-acre subject property. LC 16.212(7)(a)(iv) implemented OAR 660-033-0135(1)(c). In Oregon Natural Desert Assoc. v. Harney County, LUBA interpreted “land” in OAR 660-033-0135(1)(c) to mean “subject tract.” In 2016, OAR 660-033-0135(1)(c) was amended to replace “land” with “subject tract.” LC 16.212(7)(a)(iv) had not been amended to reflect that change. Intervenor conceded that the parcel was the appropriate area of study. However, because the hearings officer found that intervenor pastured 200 to 300 head of cattle on the subject property, and because the decision was conditioned on intervenor occupying the dwelling, intervenor argued that the hearings officer made the requisite findings. Because the fact that the subject property was pastured and that intervenor would occupy the dwelling did not establish that intervenor was principally engaged in the farm use of the subject property, as opposed to the broader farm operation, LUBA agreed with petitioner that the findings were inadequate.

Under a previous version of LC 16.2212(7)(a)(iii), in order for the county to approve a primary farm dwelling, the subject property had to be “currently employed for farm use.” Because intervenor submitted tax filings, aerial photos, and testimony regarding the existence of cattle on the subject property, the hearings officer concluded that LC 16.2212(7)(a)(iii) was met. Petitioner argued that that conclusion was not based on substantial evidence. LUBA agreed with petitioner that the aerial photos were not substantial evidence because they did not clearly depict cattle and because they were 3 years old, whereas petitioner submitted more recent aerial photos depicting no cattle. However, LUBA concluded that a reasonable person could rely on the tax filings and a commodities report in the record, indicating that 232.24 acres of the subject property were used for grazing in 2020, to conclude that the subject property was currently employed for farm use. Due to the above errors, the county’s decision was REMANDED.