County in a Quandary

Waste Management has asked the County to "proceed with its application on remand" to expand Riverbend Landfill.  By letter dated December 3, 2015, Riverbend attorney Tommy Brooks informed County Planning Director Mike Brandt that no one had appealed the decision of the Land Use Board of Appeals (LUBA) overturning the County's previous approval of the expansion and therefore the matter is back in the County's lap.

Although nearly three weeks have passed since Brooks submitted his request, the County has taken no action or apparently made any decision about how to act.  In rejecting the earlier approval, LUBA merely remanded the decision back to the County; the Board gave no instructions to the County about how to proceed.

LUBA did tell the County something about what not to do.  In rejecting the County's conclusion that Riverbend had complied with state law (ORS 215.296(1)) that requires a county to deny applications that significantly change or increase farming practices or costs, LUBA said:

1. We do not mean to suggest that the county ... must
2. deny [the] application based solely on a farmer’s testimony that the use will cause
   
3. a change in or increase the cost of accepted farm practices. The county must
   
4. evaluate all the competent evidence on that point, and might conclude,
   
5. notwithstanding such testimony, either that the proposed landfill expansion
   
6. does not significantly change or significantly increase the costs of accepted
   
7. farming practices, considering the whole record, or that the proposed use
   
8. complies with the significant change/cost test based on conditions of approval
   
9. that reduce impacts below the significance threshold. What the county cannot
   
10. do, however, is ... articulate a test under which
    
11. the county ... effectively shifts to farmer/opponents the burden
13. of demonstrating noncompliance with ORS 215.296(1). Remand is necessary
    
14. to correct that analytical error.  [Emphasis added.]
    

 LUBA also chided the County for relying on a wholly inadequate farm impacts analysis and suggested that a year-long study of birds might be in order to determine whether bird predation on nearby farmlands is the result of attraction to the area by landfill waste.

According to Planning Director Brandt, the County has not yet determined how to proceed.  Brandt said that the County is still awaiting "specific scheduling and procedure instructions from legal counsel. At this point [December 21] nothing has been scheduled and no date(s) have been discussed/considered for the remand."