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Landwatch v. Crook County

Court of Appeals of Oregon

November 7, 2018

CENTRAL OREGON LANDWATCH, Petitioner,
v.
CROOK COUNTY, Lee Garcia and Joyce Garcia, Respondents.

          Argued and submitted May 3, 2018

          Land Use Board of Appeals 2017108

          Carol Macbeth argued the cause and fled the brief for petitioner.

          Shannon McCabe argued the cause for respondents Lee Garcia and Joyce Garcia. Also on the brief was Lynch Conger McLane LLP.

          No appearance for respondent Crook County.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Central Oregon LandWatch (LandWatch) seeks review of the final order of the Land Use Board of Appeals (LUBA) that remands to Crook County its decision granting conditional use approval for a nonfarm dwelling in an exclusive farm use zone. LandWatch contends that LUBA erred in its interpretation of ORS 215.284(2)(b) when it directed that, if, on remand, the county determines that the subject property is "generally unsuitable for farm use" based on factors other than size and location, the county need not consider whether the subject property could reasonably be put to farm use in conjunction with other lands. Held: LUBA's explanation that, under ORS 215.284(2)(b), the county need not consider conjoined use if size or location is not the basis of the county's suitability determination is consistent with the statutory text in context.

          [294 Or.App. 763] DEHOOG, J.

         Central Oregon LandWatch (LandWatch) seeks review of a final order of the Land Use Board of Appeals (LUBA) that remands to Crook County its decision granting conditional use approval for a nonfarm dwelling in an exclusive farm use (EFU) zone. LandWatch raises four assignments of error. We reject the first, third, and fourth assignments of error without discussion and write to address only the second assignment of error, in which LandWatch contends that LUBA erred in its interpretation of ORS 215.284(2)(b) and OAR division 660-033 when it directed that if, on remand, the county determines that the subject property is "generally unsuitable for farm use" based on factors other than size and location, the county need not consider whether the subject property could reasonably be put to farm use in conjunction with other lands. On review to determine whether LUBAs order is "unlawful in substance," ORS 197.850(9)(a), we affirm.

         The facts, which we take from LUBAs order, are undisputed. As noted, this case relates to the county's decision granting a conditional use approval for a nonfarm dwelling on land in an EFU zone. The parcel of land in question, which has been owned by Lee and Joyce Garcia (the Garcias) since 1995, is 9.32 acres in size and is located in Powell Butte, between the cities of Redmond and Prineville and in one of the more productive agricultural areas in Crook County. However, the land has not historically been used for crops or grazing.

         The property sits to the east of an irrigation canal and Powell Butte Road and is covered with juniper and native shrubs. Most of the properties west of the canal and Powell Butte Road are irrigated and used for agriculture. However, like many of the properties east of the canal and Powell Butte Road in that area, the subject property is not irrigated. Furthermore, for the subject property to be irrigated, its owner would have to acquire irrigation rights, and a means of delivering water across Powell Butte Road would need to be devised. The property is made up [294 Or.App. 764] of soils that "are Class IV if irrigated and Class VI if not irrigated."[1]

         There is no dwelling currently located on the land in question. However, in 1979, a prior owner obtained approval for a nonfarm dwelling on the property as a conditional use and installed a septic system on the property. Although a manufactured home was placed on the property, it was later removed for failure to meet the conditions of approval. As noted, the Garcias have owned the land since 1995.

         In 2017, the Garcias sought county approval for a nonfarm dwelling on the property. The nonfarm dwelling application was approved by planning staff and, subsequently, by the county planning commission. The county's approval of the nonfarm dwelling was based, in part, on the county's determination that the subject property was generally unsuitable for the production of farm crops or livestock ("generally unsuitable for farm use"). See ORS 215.284 (2)(b).[2] The county, in concluding that the property met that standard, emphasized the property's lack of historical [294 Or.App. 765] agricultural use, the present lack of irrigation rights and infrastructure needed to irrigate, and the absence of non-irrigated agriculture on adjoining properties. LandWatch challenged the approval in the Crook County Court, which affirmed the county's approval of the nonfarm dwelling. LandWatch then appealed to LUBA.

         Before LUBA, LandWatch asserted, in part, that the county's decision that the subject property satisfied the requirements of ORS 215.284(2)(b) was not supported by substantial evidence. Specifically, LandWatch contended that the record and decision failed to demonstrate that the property is "generally unsuitable for farm use considering the factors other than size and location specified in ORS 215.284(2)(b) and OAR 660-033-0130(4)(c)(B)."[3] As relevant to its second assignment of error, LandWatch further asserted to LUBA that the county "misconstrued and misapplied applicable law in finding the subject property cannot be used [for farm use] in conjunction with other land." Reasoning first that, under ORS 215.284(2)(b) and OAR 660-033-0130(4)(c)(B), a parcel of land cannot be considered unsuitable for farm use solely because of size if it can be put to farm use in conjunction with other land; and, second, that, in its view, the record did not demonstrate that [294 Or.App. 766] the land was unsuitable for farm use for any reason other than size; LandWatch argued that the county was required to consider whether "the property [could] reasonably be used in conjunction with or managed as part of the surrounding farmland." And, according ...


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