MARK J. GREENFIELD, Respondent Cross-Petitioner Cross-Respondent,
MULTNOMAH COUNTY, Petitioner Cross-Respondent Cross-Respondent, and BELLA ORGANIC, LLC; MIKE HASHEM; ELIZABETH HASHEM; JOHNNY KONDILIS-HASHEM; and SOFIA KONDILIS-HASHEM, Respondents Cross-Respondents Cross-Petitioners. BELLA ORGANIC, LLC; MIKE HASHEM; ELIZABETH HASHEM; JOHNNY KONDILIS-HASHEM; and SOFIA KONDILIS-HASHEM, Respondents Cross-Petitioners,
MULTNOMAH COUNTY, Petitioner Cross-Respondent, and MARK J. GREENFIELD, Respondent Cross-Respondent.
Argued and submitted on September 06, 2013.
Land Use Board of Appeals 2012102, 2012103
Jed Tomkins, Assistant County Attorney, argued the cause for petitioner-cross- respondent. With him on the briefs was Jenny M. Madkour, County Attorney.
Mark J. Greenfield argued the cause and filed the briefs pro se.
Ty K. Wyman argued the cause for respondents-cross-respondents-cross-petitioners. With him on the briefs were Brian R. Talcott and Dunn Carney Allen Higgins & Tongue LLP.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
Multnomah County (county), over the objections of Mark Greenfield (Greenfield) and others, approved a modification to Bella Organic, LLC's farm stand permit. Under the modified permit, Bella Organic, LLC, was allowed to operate a farm stand for the sale of produce at its farm, which is zoned for exclusive farm use (EFU).
Both Bella and Greenfield sought review of the permit modification order by the Land Use Board of Appeals (LUBA). LUBA agreed, at least in part, with some of the issues raised and, accordingly, remanded the case to the county. The county, Bella, and Greenfield seek review of LUBA's decision. We review the LUBA order to determine whether it is "unlawful in substance, " ORS 197.850(9)(a), and, because we conclude that LUBA erred in its interpretation of the pertinent statute and rule, reverse and remand.
The legal issues in this case pertain to the scope of the farm stand statute, ORS 215.283(1)(o), as implemented by OAR 660-033-0130(23). More specifically, we must determine the scope of the statute's allowance of "fee-based activit[ies] to promote the sale of farm crops * * * sold at the farm stand" and what limitations are placed on the use of structures in connection with a farm stand.
Because it is helpful for our analysis of the legal issues raised in this case, we begin with a description of the farm stand statute and its related policies. ORS 215.203 authorizes counties to adopt EFU zones. In those zones, land is to be used exclusively for farm uses "except as otherwise provided in ORS 215.213, 215.283 or 215.284." ORS 215.203(1). ORS 215.283(1), in turn, lists 23 nonfarm uses that counties must allow on EFU land, subject to state standards adopted by the Land Conservation and Development Commission (LCDC). See Brentmar v. Jackson County, 321 Or 481, 496, 900 P.2d 1030 (1995) (uses delineated in ORS 215.283(1) allowed "as of right" and are not subject to additional local criteria).
Pursuant to ORS 215.283(1)(o), "[f]arm stands" are one use that must be allowed in an EFU zone, provided that certain conditions are met. Those are:
"(A) The structures are designed and used for the sale of farm crops or livestock grown on the farm operation, or grown on the farm operation and other farm operations in the local agricultural area, including the sale of retail incidental items and fee-based activity to promote the sale of farm crops or livestock sold at the farm stand if the annual sale of incidental items and fees from promotional activity do not make up more than 25 percent of the total annual sales of the farm stand; and
"(B) The farm stand does not include structures designed for occupancy as a residence or for activity other than the sale of farm crops or livestock and does not include structures for banquets, public gatherings or public entertainment."
The pertinent administrative rule, OAR 660-033-0130(23), reiterates the text of ORS 215.283(1)(o), including its allowance of "fee-based activity to promote the sale of farm crops * * * sold at the farm stand" (the promotions clause) and also adds two definitions, including the following:
"(c) As used in this section, 'farm crops or livestock' includes both fresh and processed farm crops and livestock grown on the farm operation, or grown on the farm operation and other farm operations in the local agricultural area. As used in this subsection, 'processed crops and livestock' includes jams, syrups, apple cider, animal products and other similar farm crops and livestock that have been processed and converted into another product but not prepared food items."
In its order, LUBA helpfully summarized the content of the farm stand statute and rule:
"To summarize, there are four main parts to the above farm stand rule. First, the farm stand rule authorizes structures that are 'designed and used for the sale of farm crops and livestock' that are grown on the farm where the farm stand is located. Second, the rule then authorizes two incidental uses that may accompany the sale of farm crops and livestock at a farm stand (' sale of retail incidental items and  fee-based activity to promote the sale of farm crops or livestock sold at the farm stand'), and to make it clear that farm crops and livestock includes both 'fresh and processed farm crops and livestock, ' but does not include 'prepared food items.' Third, the rule specifically provides that farm stand structures may not include structures that are designed for 'activities other than the sale of farm crops and livestock, ' and further prohibits structures designed for 'banquets, public gatherings or public entertainment.' Finally, the rule limits annual sales from incidental retail sales and fees from promotional activity to no more than 25 percent of the total annual sales of the farm stand. This requirement apparently was imposed to ensure that the sale of farm crops and livestock is the main or primary purpose of farm stands, rather than the activities that may be carried out to promote the farm stand."
With that background in mind, we turn to the facts of this case. Bella grows organic crops on a farm on Sauvie Island in Multnomah County. In 2007, it obtained a permit to operate a farm stand to sell farm products, "incidental" retail items, and "prepared food from the farm stand." As modified in 2008, the permit also authorized three fee-based special events each year at the farm, during which "a mobile food car[t] or food booths will be used to promote the organic produce of the farm." However, after obtaining the permit, Bella engaged in activities beyond the scope of what the permit allowed.
In 2012, pursuant to an agreement with the county to seek approval for those additional activities, Bella applied to modify the permit. As pertinent here, Bella sought approval for "[f]ee-based farm stand activities including * * * small-scale gatherings such as birthdays, picnics and similar activities to be conducted any time the farm stand is open for business" and "[f]ee-based farm-to-plate dinner[s], limited to a maximum number of 150 guests and limited to 45 events per year." The planning director approved those uses and some of the remaining requested activities. Both Bella and opponents of the modified permit appealed to a hearings officer, who modified the planning director's decision.
The hearings officer approved (1) farm-to-plate dinners, but reduced the number of allowed guests from 150 guests to 75 guests and the proposed maximum number of events from 45 events per year to 20 events; (2) two additional catered farm-to-plate dinners; (3) up to 24 "[h]arvest festivals, including related fee-based activities"; (4) "small-scale gatherings such as birthdays, picnics, and similar activities"; and (5) food carts for the expanded number of special events. The hearings officer denied Bella's request to use tents on the property in connection with the dinner events and other activities.
Both Bella and Greenfield petitioned LUBA for review of the hearings officer's decision. Among a number of contentions, and relying upon the legislative history of the farm stand statute, Greenfield asserted that the allowed farm-to-plate dinners were the functional equivalent of a "banquet" or a "restaurant, " neither of which is permissible as a farm stand use. He also contended that the "small-scale gatherings" allowance was not within the scope of the promotions clause of ORS 215.283(1)(o) and OAR 660-033-0130(23), and that food carts could not be allowed under the promotions clause. Bella argued that the hearings officer erred in concluding that tents and the existing farm maze viewing platform were impermissible uses of structures under the farm stand rule.
LUBA concluded that the rule's prohibitions on certain activities within farm stand structures (occupancy as a residence; activities other than the sale of farm crops and livestock; and use for banquets, public gatherings, or public entertainment) implicitly precluded those same activities outside of the farm stand structures. Based on that determination, LUBA reasoned that the outdoor farm-to-plate dinners were prohibited because the rule precludes "banquets" in a farm stand structure. LUBA also determined that farm stand structures could be used for the sale of farm crops and livestock and related incidental or promotional activities, and not solely for the sale of incidental retail items or promotional activities, but that the requested tents and corn maze viewing platform were "structures" that were improper as they were solely for the sale of incidental retail items or promotional activities. LUBA further concluded that the county's allowance of food carts was too extensive to qualify as "incidental retail sales" and remanded the permit for a more limited food cart allowance. Finally, LUBA determined that the "small-scale gatherings" use allowance was consistent with the farm stand rule.
All three parties to the case seek review of the LUBA opinion and order. The county argues that LUBA improperly applied the farm stand rule to deny the use allowance for farm-to-plate dinners, preclude the use of structures solely for retail incidental sales and promotional activities, and limit the use of food carts. Greenfield, for his part, complains that LUBA misconstrued the rule in affirming the allowance of the "small-scale gatherings" use and in allowing any food cart use. Bella asserts that LUBA incorrectly interpreted the rule in imposing its limitations on the use of tents and the corn maze viewing structure.
Thus, the issues we must address are (1) whether outdoor dinners to be conducted at Bella's farm, so-called "farm-to-plate" dinners, are "fee-based activit[ies] to promote the sale of farm crops * * * sold at the farm stand"; (2) whether the rule precludes structures that are used solely for incidental retail sales or fee-based promotional activities, and not otherwise used for the sale of farm crops and livestock, and, if so, whether food carts, tents, and a corn maze public viewing platform are those types of prohibited structures; (3) whether the rule's allowance of the sale of "retail incidental items" implies a limit on the extent of any allowed food cart sales; and (4) whether the approved "small-scale gatherings such as birthdays, picnics, and similar activities" as conditioned by the permit are within the scope of the promotions clause.
We begin with the county's contention that LUBA erred in precluding outdoor farm-to-plate dinners as an authorized farm stand use. As noted, Bella applied for approval of "[f]ee-based farm-to-plate dinner[s], limited to a maximum number of 150 guests and limited to 45 events per year." The application described those events as including a tour of the farm's greenhouses and crop fields, a cooking demonstration using the farm's produce, consumption of that food at the dinner, and "[a]t the conclusion of each dinner, Bella [giving] each customer a basket of our fruits, vegetable[s], flower[s], cheese, milk, apple cider, jams and sauces, " costing $25 for the dinner and $75 for the box of produce. The hearings officer concluded that the frequency of the proposed events and the large number of customers had "the appearance of a weekend restaurant or banquet facility[, ]" and limited the approved farm-to-plate dinners to no more than 20 events with no more than 75 guests each, together with an allowance of another two catered dinners each year.
Based on the legislative history of ORS 215.283(1)(o), LUBA concluded that the statute and rule allowed "fee-based activity to promote the sale of farm crops or livestock sold at the farm stand" to occur outside of the confines of a farm stand structure. LUBA noted:
"Turning to the farm stand rule text, resolving the issue presented in this appeal is complicated by a serious shortcoming in the rule language. The farm stand rule authorizes 'farm stands, ' but does not define that term. The rule expressly authorizes structures to be 'designed and used' for some activities and for sales of some items (sale of farm crops or livestock, sale of retail incidental items, fee-based promotional activity), but also prohibits some structures that are designed for other uses (banquets, public gatherings or public entertainment). The rule says nothing explicitly about whether farm stand activities are ...