LUBA Remands Expansion Decision

Yamhill County must take a second look at Waste Management's application to expand operations at Riverbend Landfill following a decision by the Oregon Land Use Board of Appeals (LUBA).  The decision, released today, returns ("remands") the case to the County Board of Commissioners (BOC) to "conduct a new evaluation of the evidence free of ... errors...."

The LUBA decision means the BOC will likely have to reopen the case for more evidence -- from Riverbend, which clearly failed to meet its burden the first time around.  "Burden" is the legal term for identifying the party that must provide the evidence supporting a decision.  In this case, LUBA said, Riverbend is that party.  But instead of requiring Riverbend to prove that an expanded landfill would not unduly impact area farms, the BOC looked to the farmers and other expansion opponents to prove that the landfill's impacts would be significant.

That, LUBA said, was wrong. 

The Board took exception to the County's treatment of farmers who testified about problems that occurred on their farms as a result of the landfill's presence.  According to LUBA, the County mistakenly required farmers to demonstrate that the landfill significantly increased their costs of doing business -- instead of requiring Riverbend to prove that the landfill did not have a significant impact on farm practices.

"Flaws" that LUBA identified in the BOC's reasoning included:

• shifting the burden of proof from the landfill to farmers;
• imposing a higher evidentiary standard on expansion opponents than on Riverbend (eg, farmers were required to submit "compelling" evidence while Riverbend's evidence merely had to be plausible);
• discounting farmers' testimony about farm impacts unless that testimony specifically quantified the harm the farmers experienced, while crediting similar but unquantified evidence from Riverbend;
• overreliance on a study submitted by Riverbend;
• and more.

Although the BOC might be able to fix some of these flaws by sifting through the evidence already presented in the case and making new findings, some issues would have to be resolved in opponents' favor.  For example, LUBA determined that there was insufficient evidence to conclude that birds attracted to the landfill did no more harm to area farms than migrating birds in general.  LUBA suggested that "a study of bird populations on and near the landfill, particularly compared to a study of bird populations on similar farm lands distant from the landfill, would seem to be both feasible and highly useful...."  Because bird populations and predation change over the course of the year, a year-long study might be required.

LUBA rejected several other arguments advanced by expansion opponents.  Either Riverbend or opponents could appeal the decision to the State Court of Appeals.  Any appeal must be filed within 21 days (ie, by December 1, 2015).