Friends of Marion County v. Marion County

When an applicant has entered into a contract to raise trees to maturity as farm products, and has accepted payment for that contract along with its contractual duties to raise and deliver the trees to the buyer, the applicants may be considered as having earned their income from the sale of farm products under the criteria of OAR 660-033-0135(4), even though the trees have not yet been harvested and delivered to the buyer.

Petitioner appealed a County approval of an application to construct a primary dwelling to be used alongside a farm use on land zoned exclusive farm use (EFU). The applicants had planted Christmas tree seedlings in two different plantings on the 20-acre property, the first of 3,000 seedlings on 1.5 acres and the second of 6,300 seedlings on 3.5 acres. The applicants had entered into two different contracts with the same buyer for $80,250 each, both promising to raise 1,500 trees to maturity and deliver them to the buyer. The applicants received payment for both contracts and then applied to the County to construct a primary dwelling on the property. The County held several hearings on their application, during which it was found neighbors believed the first planting had died in a summer drought, and while staff had visited part of the property they did not see the area were the trees had been planted to confirm if there were trees. In response, the applicants submitted photos of the trees and testified about their growth. The County ultimately approved the application and Petitioner appealed.

On appeal, Petitioner made two assignments of error: 1) (a) that the trees were not “farm products” because they had not been “harvested,” the applicants had not “earned” their income yet because they had not raised the trees to maturity, and (b) the County’s decision was not supported by substantial evidence, and 2) that the applicants had not “produced” farm products because the trees had not been harvested and thus could not qualify as persons who produced farm products.

Under OAR 660-033-0135(4), “[o]n land identified as high-value farmland, a dwelling may be considered customarily provided in conjunction with farm use if: (a) The subject tract is currently employed for the farm use, as defined in ORS 215.203, on which the farm operator earned at least $80,000 in gross annual income from the sale of farm products in each of the last two years or three of the last five years, or in an average of three of the last five years; and . . . (c) The dwelling will be occupied by a person or persons who produced the commodities that grossed the income in subsection (a) of this section[.]”

LUBA denied the first two subassignments of the first assignment of error and the second subassignment on similar grounds, generally finding the rule’s use of past-tense verbs was not the deciding factor in whether the applicants qualified under the rule’s criteria. Specifically, LUBA noted that with regard to “farm products” that there was nothing in the rule’s language or rulemaking history that suggested farm products must first be “harvested” as Petitioner insisted, and that Petitioner had not established that a contract to deliver the trees did not count as farm products being “sold” simply because the delivery would take place in the future. Similarly, LUBA found that the applicants had “earned” their income because they accepted payment and the contractual obligation to raise the trees to maturity. LUBA also agreed with the County that the past-tense use of “produced” was not the focus of the rule—rather, the rule was to ensure that those in the proposed dwelling were “the actual farm operators . . . who satisfy the farm income test.” LUBA also pointed out in a footnote that Petitioner’s interpretation of “produced” would mean that after two years a farmer with an annual crop would qualify for constructing a farm dwelling while another farmer planting trees at the same time would not qualify, and the difference would be based “solely on the farmers’ choices of crop.”

LUBA denied Petitioner’s evidentiary challenges, finding that there was enough evidence that the County was justified in relying on the applicant’s photo submissions and testimony over the speculations of neighbors and the County’s own incomplete site visit. LUBA also noted that while Petitioner was correct that the contracts for the trees were unclear which planting the trees were to come from, Petitioner had not established why this ambiguity rendered the County’s decision invalid. LUBA concluded the County had not erred in finding the applicants fulfilled the requirements to be allowed to construct a primary dwelling on EFU land in conjunction with farm use.

Affirmed.