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Stop Dump Coalition v. Yamhill County

Court of Appeals of Oregon

March 22, 2017

STOP THE DUMP COALITION, Willamette Valley Wineries Association, Ramsey McPhillips, and Friends of Yamhill County, Petitioners Cross-Respondents,
YAMHILL COUNTY and Riverbend Landfll Co., Respondents Cross-Petitioners.

          Argued and submitted September 27, 2016.

         Land Use Board of Appeals 2016026

          Jeffrey L. Kleinman argued the cause for petitioners-cross-respondents. With him on the joint briefs was William F. Paulus.

          Tommy A. Brooks argued the cause for respondents-cross-petitioners. With him on the joint briefs were James E. Benedict, Cable Huston LLP, and Timothy S. Sadlo.

          Before Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog, Judge.

         Affrmed on petition and cross-petition.

          SERCOMBE, P. J.

         Petitioners Stop the Dump Coalition, Willamette Valley Wineries Association, Ramsey McPhillips, and Friends of Yamhill County seek judicial review and respondents Yamhill County and Riverbend Landfill Co. (Riverbend) cross-petition for review of an order of the Land Use Board of Appeals (LUBA) that remands to the county its site design review and floodplain permit approvals for an expansion of the Riverbend Landfill. That landfill is a solid waste disposal facility that is located on a larger area of land zoned for exclusive farm uses (EFU); petitioners and respondents assign error to LUBA's determinations of the legal and evidentiary sufficiency of the county's application of ORS 215.296, which sets standards for approval of, among other things, solid waste disposal facilities, in an EFU zone.[1]On review, we evaluate whether LUBA's determinations are "unlawful in substance, " ORS 197.850(9)(a), and affirm on the petition and the cross-petition.


         Riverbend, which owns and operates the Riverbend Landfill, applied to the county for permission to expand that operation. LUBA set out the history of the applications in an earlier order in the case:

"Riverbend *** filed applications for site design review and a floodplain development permit to authorize the proposed expansion. Riverbend proposed to add a new Module 10 north of the existing landfill site, and a new Module 11 southwest of the site. The proposed expansions would occupy land that qualifies as high-value farmland. Riverbend also proposed to increase the height of existing berms and add additional fill to five existing modules. The proposed expansions would add 15 years of capacity to the landfill operation, which would otherwise reach full capacity in 2017.
"The surrounding area consists largely of EFU-zoned lands in various agricultural uses * * *."

Stop the Dump Coalition v. Yamhill County, 72 Or LUBA 341, 347 (2015) (SDC-1). The additional modules or areas of disposal created a new "working face, " that is, a new area where waste is removed from containers and placed in an open area prior to being covered. The change of location of the working face, in turn, created additional farm impacts for the landfill operations.

         As part of the site design review, Riverbend was obliged to show that the enhanced solid waste disposal facility complied with the standards in ORS 215.296(1) applicable to conditional nonfarm uses.[2] The county approved the site design review and fioodplain development permit applications, concluding that the expanded landfill did not force a significant change in accepted farm practices or significantly increase the cost of those practices. Id. at 358. Petitioners appealed to LUBA, which remanded the decisions back to the county for additional findings. Id. at 377. In the order under review in this case, LUBA described the earlier remand:

"The present decision is on remand from LUBA. Stop the Dump Coalition v. Yamhill County, 72 Or LUBA 341 (2015) (SDC-1). In that decision, LUBA sustained two assignments of error in part concerning ORS 215.296(1), which requires a finding that the proposed use in an exclusive farm use zone will not force a significant change in accepted farm practices, or significantly increase the cost of such practices, on surrounding lands. The ORS 215.296(1) test is sometimes referred to as the Farm Impacts test or the significant change/cost standard.
"In SDC-1, LUBA identified several analytical errors and remanded the county's decision to reevaluate the evidence in the record free of those analytical errors, and to determine whether Riverbend has demonstrated that the cumulative impacts of the proposed use will not force a significant change in, or significantly increase the costs of, accepted farm practices on surrounding lands. In particular, LUBA directed the county to reconsider the evidence with respect to several types of landfill expansion impacts on farm practices, including: (1) impacts of litter on the adjacent McPhillips farm, (2) impacts of nuisance birds on nearby farms, (3) impacts on pheasant-raising operations on the McPhillips farm, and (4) impacts on farm stands and direct farm sales on nearby farms.
"On remand, the county commissioners re-opened the evidentiary record to accept new evidence with respect to some of the remand issues, conducted a public hearing on February 4, 2016, and allowed the parties to file written rebuttal of new evidence until February 11, 2016. On February 18, 2016, the commissioners deliberated and re-approved the proposed use, adopting findings in support on February 25, 2016. This appeal followed."

(Footnote omitted.)

         In their second appeal to LUBA, petitioners challenged the county's modified findings on the effects of the expanded landfill on the accepted farm practices of surrounding farmland, specifically the findings on the effects of windblown litter on hay farming; "nuisance birds" on grass-seed farming, fruit, berry and nut cultivation, poultry operations and the raising of livestock; landfill odor on direct farm sales and farm stands; the general operation of the landfill on vineyards and wineries; and the cumulative impacts of the landfill on accepted farm practices. LUBA determined that the county's findings under ORS 215.296(1) were supported by substantial evidence, except for the cumulative impacts findings. Accordingly, LUBA remanded the decision to the county for a determination of "whether multiple insignificant impacts to each particular farm operation, considered together, reach the threshold of significance for that particular farming operation."

         On review, petitioners contend that LUBA erred in (1) upholding conditions of approval under ORS 215.296(2) that required Riverbend to pay for some of the increased costs of accepted farm practices caused by the expanded landfill in order to satisfy the significant cost increase standard; (2) approving conditions that, in petitioners' view, did not satisfy ORS 215.296(2) because the record lacked evidentiary support that the operation of the conditions would satisfy the approval standards and because the conditions were not clear and objective; (3) concluding that a decline in wine grape prices at a nearby vineyard where the grapes were sold was not a significant change to, or an increased cost of, an accepted farm practice; and (4) failing to require the county to analyze the overall cumulative impacts on all of the surrounding farmland, considered as a whole. Respondents, for their part, assert that LUBA erred when it concluded that the county did not adequately address the cumulative impacts to farm practices for individual farms.


         Our review of the parties' contentions in this case requires an analysis of the meaning of ORS 215.296(1). We also consider LUBA's review of the county's application of that statute under ORS 197.835(9)(a)[3] in light of our own standard of review of LUBA's decision under ORS 197.850(9)(a). We begin with a description of the text and context of ORS 215.296(1), before proceeding to the standards of review that apply to LUBA's determinations about that statute.

         ORS 215.203(1) authorizes counties to adopt EFU zones and further provides that, in EFU zones, land is to be used "exclusively for farm use except as otherwise provided in ORS 215.213, 215.283 or 215.284."[4] ORS 215.283(1), in turn, lists 24 permitted nonfarm uses that counties must allow on EFU land, subject to state standards adopted by the Land Conservation and Development Commission. ORS 215.283(2) provides for 27 conditional nonfarm uses that are "subject to ORS 215.296, " including, under ORS 215.283(2)(k), a "site for the disposal of solid waste *** for which a permit has been granted under ORS 459.245 by the Department of Environmental Quality together with equipment, facilities or buildings necessary for its operation."

         As noted, ORS 215.296 regulates the allowance of conditional nonfarm uses:

"(1) A use allowed under ORS 215.213(2) or (11) or 215.283(2) or (4) may be approved only where the local governing body or its designee finds that the use will not:
"(a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or
"(b) Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use.
"(2) An applicant for a use allowed under ORS 215.213(2) or (11) or 215.283(2) or (4) may demonstrate that the standards for approval set forth in subsection (1) of this section will be satisfied through the imposition of conditions. Any conditions so imposed shall be clear and objective."[5]

         Thus, this case concerns whether LUBA properly interpreted and applied ORS 215.296(1) in its review of the county's findings on the impacts on accepted farm practices by an expanded landfill. We review LUBA's order to determine whether it is "unlawful in substance." ORS 197.850(9)(a). As noted in Zimmerman v. LCDC. 21A Or App 512, 519, 361 P.3d 619 (2015),

"[t]he 'unlawful in substance' review standard for LUBA orders under ORS 197.850(9)(a)-and, by analogy, for review of LCDC orders under ORS 197.651(10)-is for 'a mistaken interpretation of the applicable law.' Mountain West Investment Corp. v. City of Silverton. 175 Or.App. 556, 559, 30 P.3d 420 (2001). In Dimone v. Citv of Hillsboro. 182 Or.App. 1, 6 n 5, 47 P.3d 529 (2002), we explained that the 'unlawful in substance' standard 'is the functional equivalent' of the 'erroneously interpreted a provision of law' standard in ORS 183.482(8)(a) that is applicable to our review of an order in a contested case issued by a state administrative agency."

         Furthermore, we review LUBAs substantial evidence review of a local government's findings as follows:

"LUBA considers all the evidence in the entire record in evaluating whether a factual finding is supported by substantial evidence and determines whether a reasonable person could make that finding Younger[v. City of Portland, 305 Or 346, 356, 752 P.2d 262 (1988)]. We review LUBAs determination of the substantiality of the evidence for a local government finding on whether the LUBA opinion is 'unlawful in substance' under ORS 197.850(9)(a). Our task is not to assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority. Thus, we do not substitute our judgment for LUBAs on whether a reasonable person could make a finding of fact based upon the entire local government record. Instead, we evaluate whether LUBA properly stated and applied its own standard of review. If LUBA does not err in the articulation of its substantial evidence standard of review under ORS 197.835(9)(a)(C), we would reverse LUBAs decision only when there is no evidence to support the finding or if the evidence in the case is 'so at odds with LUBAs evaluation that a reviewing court could infer that LUBA had misunderstood or misapplied its scope of review.'"

Citizens for Responsibility v. Lane County, 218 Or.App. 339, 345, 180 P.3d 35 (2008) (quoting Younger, 305 Or at 359); see also Von Lubken v. Hood River County, 118 Or.App. 246, 250-51, 846 P.2d 1178, rev den, 316 Or 529 (1993) (characterizing ORS 215.296(1) findings as factual findings subject to substantial evidence review by LUBA).


         In their first assignment of error, petitioners contend that LUBA erred in upholding conditions of approval under ORS 215.296(2) that did not mitigate or remedy the expanded landfill's significant change/cost effects on two farms. The first set of conditions related to the McPhillips farm, which is adjacent to and downwind of the Riverbend Landfill. McPhillips testified that windblown trash from the working face of the landfill forced him to conduct frequent patrols of his farm throughout the year to prevent plastic bags and other litter from the landfill from being buried in the soil and to conduct additional patrols of his hayfield before harvesting the hay to prevent damage to the baling machines and contamination of the hay bales by plastic bags.

         The county adopted findings that discounted the frequency and significance of the trash intrusions on the McPhillips farm.[6] The county imposed two conditions of approval "[t]o remove any doubt about the significance of litter impacts from Riverbend Landfill." Condition 24 required Riverbend to "provide additional litter fencing between the working face of the landfill and the McPhillips farm." Condition 25 provided that Riverbend "must ensure that the grass and hay fields located on the McPhillips farm *** are patrolled for litter prior to when those fields are harvested" by Riverbend, or, alternatively, by either petitioner McPhillips or a third party at Riverbend's expense.[7]

         Before LUBA, petitioners argued that Condition 24 was too narrow in addressing only windblown litter to the McPhillips farm (and not other litter emanating from the landfill) and that the Condition 24 failed to show mitigation "because there is neither a minimum requirement for the amount of additional fencing nor any evidence that any such amount would be effective." Petitioners further asserted that Condition 25 was "irrelevant and inadequate" because "patrolling for litter either is or is not a significant change/ cost. If it is a significant change/cost, it is irrelevant who pays for it." Petitioners also argued that Condition 25 did not address litter impacts to other farms or the patrolling of the McPhillips farm that is necessary in times other than harvesting time.

         LUBA determined that the "county could reasonably rely on Conditions 24 and 25 to demonstrate compliance with ORS 215.296(1)." LUBA concluded that (1) substantial evidence supported the county's findings that the second litter fence would likely reduce the amount of trash reaching the McPhillips farm and that other sources of windblown trash were not significant; (2) the minimum length of the second litter fence was objectively certain, that is, "the length necessary to stand between the working face and the McPhillips farm"; (3) the operation of both conditions would allow "a reasonable decision-maker [to] conclude that the reduced amount of landfill trash that reaches the McPhillips property will not force a significant change in farm practices, or significantly increase McPhillips' costs"; (4) Condition 25 does not "exceed [] the county's authority under ORS 215.296(2) or otherwise [is not] an impermissible method to prevent or render insignificant costs or changes to accepted farm practices that would otherwise occur"; (5) "the county could reasonably conclude that Condition 25 would reduce the impacts of plastic bags on the baling process and the sale of bales to an insignificant level"; and (6) while there was no direct evidence that the year-round litter ...

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