Court of Appeals Upholds LUBA

Landfill Expansion to Return to County Commissioners Yet Again

Last Wednesday, March 22, the Oregon Court of Appeals (COA) released its decision affirming the Land Use Board of Appeals (LUBA) ruling from last July.  In that opinion, LUBA found that Yamhill County had improperly determined that cumulative impacts from the proposed expansion of Riverbend Landfill would not significantly affect area farmers.  First LUBA, and now the COA, have directed the County to reconsider the effects of multiple impacts on local farms.

While this is good news for area farmers and other neighbors of the landfill, the COA also upheld the County's findings that Riverbend's expansion plan successfully mitigated any negative individual farm impacts in a decision that was confusing and contradictory.

Expanding Riverbend will have multiple impacts on multiple farms.  Farmers complained about litter in their fields, birds (especially seagulls) damaging their crops and animals, noise frightening poultry and horses, and customers staying away due to odors and perceived effects on water and air quality.  In approving expansion, the County dismissed these complaints, saying that farmers could be fully compensated for any losses from these impacts by cash payouts from Waste Management, Riverbend's multi-national, Texas-based corporate owner.

Although the COA laid out a strong argument that the purpose of Oregon land use law in EFU zones is to preserve agricultural land and to prevent that land from being hijacked for nonagricultural uses, the Court ultimately agreed with the County.

In earlier decisions, the COA had held that "state and local provisions [defining nonfarm uses permitted in farm zones] must be construed, to the extent possible, as being consistent with the overriding policy of preventing agricultural land from being diverted to non-agricultural use."

This time, the COA also cited ORS 215.243(2) and Statewide Planning Goal 3, which provide:

ORS 215.243(2):  "The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state’s economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation." 

Goal 3:  "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state’s agricultural land use policy expressed in ORS 215.243...."

Based on this state law, the COA concluded, "[w]hether a change in an accepted farm practice or the cost of that practice is 'significant,' then, is determined by whether the change affects the preservation of agricultural land for productive use."

In the end, however, the COA paid only lip service to these maxims, looking instead to an entirely different statute to determine that the most important factor in preserving EFU land was for a farm "to obtain a profit in money."  The Court reasoned, therefore, that where a nonfarm activity merely imposes additional costs on a farmer, even where those costs are tantamount to removing land from productive agricultural use, the impact of that cost increase, no matter how significant, can be mitigated by cash payouts to the farmer.

This is true, according to the COA, even when a farmer cannot sell any of her crop on the open market due to impacts from the proposed nonfarm use.  Such intense impacts can be successfully and legally mitigated, in the COA's view, by payments equal to the market value of the crop -- the same result as paying the farmer not to farm.  Similarly, under the COA's ruling, where impacts render a field impossible to harvest without extensive additional work, payments for the cost of the additional work are acceptable.

In effect, the Court is telling nonfarm uses that, if their pockets are deep enough, they can buy their way onto EFU land.

The COA also ruled that a second litter fence would be adequate to control litter from the landfill even though the evidence showed that the first litter fence did not work.  The Court had a similar opinion of increasing days of falcon use to haze seagulls, despite evidence that the 2-3 days a week falcons were now used did not keep birds off fields in crucial winter months.  Said the Court, "any temporary effect of nuisance birds on farm practices has no long-term effect of inhibiting the use of agricultural land for profit. The issue is not whether the effects of nuisance birds are significant, but rather whether those effects will force a change in farm practices that significantly inhibits the use of agricultural land for profit."

Stop the Dump Coalition, Friends of Yamhill County, the Willamette Valley Wineries Association, and McPhillips Farms are reviewing the decision to see if there are any grounds for appeal to the Oregon Supreme Court.  If not, then it is back to the County for a new review of cumulative impacts.