Friends of Marion County v. Marion County

“Even if a commercial activity primarily sells to farm uses, that may not be sufficient to allow the commercial activity to qualify as a commercial activity in conjunction with farm use . . . The products and services provided must be ‘essential to the practice of agriculture.’” City of Sandy v. Clackamas County, 28 Or LUBA 316, 322 (1994). The farm impacts test requires (1) the applicant to identify the surrounding lands, the farms on those lands, the accepted farm practices on each farm, and the impacts of the proposed nonfarm use on each farm practice; (2) the local government to determine whether the proposed nonfarm use will force a "significant" change to, or cost increase in, an accepted farm practice, as that term is ordinarily used; and (3) if there is a significant change, the local government to determine whether the applicant has demonstrated that the nonfarm use meets the test with conditions of approval.

Owners of 74.5 acres of property zoned for exclusive farm use (EFU) applied for a conditional use permit (CUP) to conduct an admission fee farm experience program for youth and families as a commercial activity in conjunction with farm use to educate potential future farmers. The CUP was denied by the county planning director and then by the county hearings officer, and then granted on appeal by the board of county commissioners.

On appeal to LUBA, in their first assignment of error, Petitioners argued that the County improperly construed the applicable law in granting the CUP, and that the County’s conclusion that the proposed use is a commercial activity in conjunction with farm use was not supported by adequate findings or substantial evidence. Petitioners argued that none of the proposed uses satisfy “farm use” as defined by ORS 215.203(2)(a) because the primary source of income will be from the program’s admission fees (a nonfarm commercial use), and because the primary purposes of plant propagation and U-Pick activities are demonstration and education, not obtaining profits. “Even if a commercial activity primarily sells to farm uses, that may not be sufficient to allow the commercial activity to qualify as a commercial activity in conjunction with farm use . . . The products and services provided must be ‘essential to the practice of agriculture.’” City of Sandy v. Clackamas County, 28 Or LUBA 316, 322 (1994). LUBA concluded that the program is not a commercial activity in conjunction with farm use because there is not substantial evidence to support a finding that the program will result in a supply of agricultural workers, reasoning that the hypothesized connection between the program and a future career in agriculture is too speculative. The first assignment of error was sustained.

In their second assignment of error, Petitioners argued that the County’s conclusion that the farm impacts test is satisfied by the proposed program misconstrued the law, was based on inadequate findings, and was not supported by substantial evidence. The farm impacts test requires (1) the applicant to identify the surrounding lands, the farms on those lands, the accepted farm practices on each farm, and the impacts of the proposed nonfarm use on each farm practice; (2) the local government to determine whether the proposed nonfarm use will force a "significant" change to, or cost increase in, an accepted farm practice, as that term is ordinarily used; and (3) if there is a significant change, the local government to determine whether the applicant has demonstrated that the nonfarm use meets the test with conditions of approval. Because the County's decision was made absent a detailed description of the surrounding area, it was impossible to determine whether the proposed nonfarm use would force a “significant” change to, or cost increase in, an accepted farm practice. The County relied on unidentified “testimony of adjacent neighbors,” which LUBA concluded was inadequate and misconstrued the required inquiry. Because the evidence did not clearly support a conclusion that the farm impacts test was satisfied, LUBA sustained the second assignment of error. 

Intervenors claimed these restrictions violate the substantive due process rights of affected landowners under the Fourteenth Amendment to the United States Constitution. LUBA rejected this argument because the requirements are rationally related to the legitimate government purposes of preserving agricultural land for agricultural uses. Remanded.