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Stop The Dump Coalition v. Yamhill County

Supreme Court of Oregon

February 28, 2019

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

          Argued and submitted November 13, 2017

          On review from the Court of Appeals. (LUBA 2016026) (CA A162746) [*]

          Jeffrey L. Kleinman, Portland, argued the cause and fled the briefs for petitioners on review Stop the Dump Coalition, Willamette Valley Wineries Association, and Ramsey McPhillips.

          William Frederick Paulus, Portland, fled the brief for petitioner on review Friends of Yamhill County.

          Tommy A. Brooks, Cable Huston LLP, Portland, argued the cause and fled the brief for respondent on review Riverbend Landfll Co. Also on the brief was Timothy S. Sadlo, for respondent on review Yamhill County.

          Meriel L. Darzen, Bend, fled the brief for amicus curiae 1000 Friends of Oregon.

          Timothy J. Bernasek, Dunn Carney Allen Higgins & Tongue LLP, Portland, fled the brief for amicus curiae Oregon Farm Bureau Federation.

          Robert M. Wilsey, Assistant Attorney General, Salem, fled the brief for amicus curiae State of Oregon. Also on [364 Or. 433] the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Duncan, Nelson, and Garrett, Justices. [**]

         Case Summary:

         Petitioners appealed to the Land Use Board of Appeals (LUBA) a county's conditional reapproval of the expansion of an existing landfill onto land zoned for exclusive farm use (EFU). Construing the applicable farm impacts test set out in ORS 215.296, LUBA affirmed the county's conclusion that the individual impacts of the expansion on surrounding lands were not significant; however, it remanded for the county to reevaluate the significance of the expansion's cumulative impacts. The Court of Appeals affirmed, albeit under a different analysis. Held: (1) The farm impacts test applies on a farm-by-farm and farm practice-by-farm practice basis and is intended to prevent adverse changes in accepted farm practices or their costs that are "significant," as that word is ordinarily understood; and (2) two conditions imposed by the county, and approved by LUBA and the Court of Appeals, were improper to ameliorate changes to accepted farm practices.

         The decision of the Court of Appeals is affirmed in part and reversed in part. The final opinion and order of the Land Use Board of Appeals is affirmed in part and reversed in part, and the matter is remanded to the board for further proceedings.

         [364 Or. 434] NAKAMOTO, J.

         Intervenor-respondent Riverbend Landfill Co. seeks to expand its solid waste landfill in Yamhill County on land zoned for exclusive farm use (EFU). To obtain site design review and a floodplain development permit for the expansion, Riverbend had to meet what is sometimes known as the farm impacts test, set out in ORS 215.296. Subsection (1) of that statute precludes approval of a proposed non-farm use when the use would "[f]orce a significant change" in accepted farm practices or "[s]ignificantly increase the cost" of those practices on surrounding agricultural lands. Subsection (2) provides that a permit applicant may meet the farm impacts test through the local government's imposition of conditions of approval.

         Respondent Yamhill County has determined for a second time that, with conditions of approval, the landfill expansion will not create a significant change in accepted farm practices or significantly increase the cost of those practices on surrounding agricultural lands, thereby meeting the farm impacts test. But petitioners Stop the Dump Coalition, Willamette Valley Wineries Association, and Ramsey McPhillips and petitioner-intervenor Friends of Yamhill County (collectively, petitioners) contend that Riverbend's applications fail the farm impacts test, as it is correctly understood. In broad terms, the parties dispute what the farm impacts test measures and whether some of the conditions that the county imposed for approval are proper under ORS 215.296(2).

         On review, petitioners take issue with both the latest order of the Land Use Board of Appeals (LUBA) in Stop the Dump Coalition v. Yamhill County, 74 Or LUBA 1 (2016) (SDCII), and the decision of the Court of Appeals upholding that order in Stop the Dump Coalition v. Yamhill County, 284 Or.App. 470, 485, 391 P.3d 932 (2017) (SDC III). Petitioners challenge some of the county's conditions of approval, which LUBA and the Court of Appeals approved, and the Court of Appeals' articulation of how the county must evaluate impacts of the landfill expansion on farm practices and their costs.

         [364 Or. 435] This case requires us, for the first time, to interpret and apply the farm impacts test in ORS 215.296. Ultimately, we affirm in part and reverse in part the decision of the Court of Appeals and affirm in part, reverse in part, and remand the final opinion and order of the Land Use Board of Appeals.

         I. FACTS AND PROCEDURAL HISTORY

         A. The County's Reapproval of the Landfill Expansion

         Riverbend owns and operates the Riverbend landfill sited on EFU-zoned land in Yamhill County. Stop the Dump Coalition v. Yamhill County, 72 Or LUBA 341, 346 (2015) (SDC I). The surrounding area contains EFU-zoned lands in various agricultural uses. Id. at 347. Because parts of its existing site are filling up, Riverbend sought to expand the landfill, including onto adjacent EFU-zoned land that it owns. Id. The expansion "would occupy land that qualifies as high-value farmland" and would "add 15 years of capacity to the landfill operation, which would otherwise reach full capacity in 2017." Id.

         A solid waste disposal facility is allowed as one of the 27 nonfarm uses that may be permitted on any EFU-zoned land, if approved by the local governing authority. See ORS 2l5.283(2)(k). Accordingly, Riverbend submitted applications to the county for a site design review under Yamhill County Zoning Ordinance 1101 and a floodplain development permit under Zoning Ordinance 901. In approving Riverbend's permit applications in 2015, the county imposed numerous conditions of approval on Riverbend and determined that, with Riverbend's adherence to those conditions, the farm impacts test was satisfied.

         The county's 2015 approval led participants in the proceedings to file an appeal to LUBA. In that first appeal, LUBA agreed with the challengers that the county had incorrectly determined that the landfill expansion complied with the farm impacts test in ORS 215.296(1). LUBA concluded that the county's approach to determining compliance was flawed, both as to some individual impacts on surrounding farms and as to whether the cumulative effect of individual impacts met the farm impacts test. LUBA noted [364 Or. 436] that the county had not articulated its understanding of "significant," and LUBA suggested that, based on the word's ordinary meaning, "significant" should be understood as a sizeable or important influence or effect. See SDC I, 72 Or LUBA at 359 n 12 (identifying a dictionary definition for the word "significant" as "having or likely to have influence or effect" and one for the antonym "insignificant" as "of little size or importance").

         LUBA directed the county, on remand, to reconsider evidence with respect to a variety of specific impacts, including (1) impacts of litter on the McPhillips farm, (2) impacts of nuisance birds on nearby farms, (3) impacts on pheasant-raising operations on the McPhillips farm, and (4) odor and visual impacts of the landfill expansion, including on farm stands and direct farm sales on nearby farms. Id. at 361-62, 367-76. In addition, LUBA directed the county 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 cost of, accepted farm practices on surrounding lands." Id. at 377.

         On remand, the county reopened the record and accepted additional evidence and arguments. SDC II, 74 Or LUBA at 6. Petitioners and their members have interests in nearby agricultural land and opposed the county's reap-proval of Riverbend's applications. Ramsey McPhillips, the individual petitioner, has a farm adjacent to and downwind of the landfill. Id. McPhillips has a hay operation and raises pheasants and other poultry on his farm. Id. at 6-7, 28.

         In 2016, the county commissioners again approved Riverbend's applications for site design review and a flood-plain development permit. Id. at 6. In support, the county issued new findings (including Findings 26-34, regarding litter on the McPhillips farm; 51-78, regarding nuisance birds; and 94-96 and 99-110, regarding landfill noise, odor, and visual impact) and modified findings in its 2015 order (including Findings 136-41 pertaining to cumulative impacts).

         As before, the county's reapproval depended in part on imposing conditions of approval on Riverbend under ORS 215.296(2). Two of those conditions related to the impact [364 Or. 437] of litter on the McPhillips farm, requiring Riverbend to install an additional litter fence and to provide or pay for litter patrols, consisting of Riverbend employees, McPhillips employees, or third parties (at McPhillips's election) walking the farm and picking up plastic bags and other trash during periods immediately before harvesting the hay field. SDCII, 74 Or LUBA at 9, 11-15. In addition, two conditions related to nuisance birds generally: Riverbend would have to increase falconry activities during winter months and to contract with the United States Department of Agriculture "to provide adaptive management bird control measures applicable to landfills." Id. at 20. The county imposed two additional conditions to address the impact of nuisance birds on the Frease farm (which has a large hazelnut orchard, a small cherry orchard, and a small berry operation), requiring "Riverbend [to] purchase the entire crop of cherries and berries" from the farm, "at a market price that is adjusted each year." Id. at 23. Riverbend was also required to address the effects of the falconry program on the pheasant and poultry operation on the McPhillips farm by paying for the cost of netting to protect those birds from falcons. Id. at 28-29. The county determined that the conditions of approval would ameliorate significant individual impacts of the expansion of the landfill.

         The county also determined that the cumulative impacts of the expansion were not significant, because the farms that would experience multiple impacts represented "only 10 percent of the acreage in the [farm] study area" and "only a "relatively small portion of the landscape." 74 Or LUBA at 36 (quotation omitted). Relying on that broad-gauge view of cumulative impacts and without evaluating multiple impacts farm by farm, the county found that the proposed expansion will not force a significant change in accepted farm practices or significantly increase the cost of those practices on surrounding farm lands, after Riverbend satisfies conditions of approval. Id. at 36-37.

         B. Petitioners' Appeal of the County's Reapproval to LUBA

         In their appeal to LUBA of the county's reapproval of the expansion, all petitioners except Friends of Yamhill County (FYC) assigned error to the county's findings [364 Or. 438] concerning the effects of litter on haying and of nuisance birds on grass seed farming, two individual impacts on farm practices. Id. at 6. FYC argued that the county had incorrectly determined the facts concerning other individual impacts on surrounding lands. Focusing on fruit and nut farms, pheasant and poultry operations, and livestock, FYC also raised the impacts of nuisance birds. Additionally, FYC argued that the sight of the landfill expansion would depress prices at vineyards and wineries and that the odor from the expansion would adversely affect direct farm sales and farm stands. FYC also challenged some of the conditions that the county had imposed on Riverbend.

         LUBA rejected petitioners' challenge, determining that the county reasonably had concluded that, with the conditions imposed on Riverbend, litter and nuisance birds due to the landfill expansion would not cause significant changes in accepted farm practices for haying and grass seed farming and in the costs of those practices. Id. at 15, 23, 25. LUBA also rejected FYC's arguments concerning individual impacts on various grounds. Id. at 25-35. Ultimately, applying its understanding of "significant" as articulated in SDC I, LUBA affirmed the county's conclusion that, after Riverbend implemented the required conditions imposed by the county, each individual impact of the landfill expansion on surrounding properties-that is, each individual impact to an accepted farm practice or its cost at each farm or agricultural operation-would not be significant.

         But LUBA agreed with FYC that the county had employed an improper legal test to analyze the cumulative impacts of the landfill's expansion on the farms that experienced multiple, but less than significant, individual impacts. Id. at 35-37. LUBA observed that the county's approach to finding that those multiple impacts would not be cumulatively significant was to consider whether the farms that would experience multiple impacts were a small proportion of the surrounding lands. Id. at 36. Based on the ordinary meaning of the statutory terms "significant" and "insignificant" in ORS 215.296(1) and on Von Lubken v. Hood River County, 118 Or.App. 246, 846 P.2d 1178, rev den, 316 Or. 529 (1993), LUBA explained that the question is not whether "the multiple-impact farms are cumulatively a small proportion [364 Or. 439] of the surrounding farms, measured by acreage or any other measure." SDC II, 74 Or LUBA at 5 n 3, 35-36. Rather, LUBA concluded, the county should have evaluated a different question: "whether multiple insignificant impacts to each particular farm operation, considered together, reach the threshold of significance for that particular farm[] operation." Id. at 36.

         Thus, LUBA understood the farm impacts test to require a farm-by-farm analysis. Specifically, LUBA concluded that, to determine the significance of changes in or costs of farm practices, the county must consider both the significance of an individual impact and the significance of cumulative impacts of the landfill expansion, as conditioned by the county, on a farm-by-farm basis. Id.

         LUBA also concluded that the county's factual findings regarding its cumulative impacts analysis were "inadequate and not supported by substantial evidence." Id. at 35. Because the county had failed to consider whether, cumulatively, individual impacts of the landfill expansion on each farm would amount to a significant change in, or increased cost of, farm practices for that farm, LUBA remanded the matter to the county. LUBA instructed the county to determine whether "individual insignificant impacts, some of which may be additive and some which may not be, are cumulatively significant with respect to each farm that alleged multiple impacts to their farm practices." Id. at 37.

         C. The Court of Appeals Decision

         Both petitioners and respondents sought judicial review of LUBAs order. The Court of Appeals construed both subsections of ORS 215.296 and affirmed LUBAs order. However, in construing ORS 215.296(1), the court formulated the farm impacts test differently than LUBA had, both as to individual impacts of the proposed landfill expansion and as to cumulative impacts of the expansion.

         For a significant change or cost increase, the Court of Appeals focused on whether the impact of the landfill expansion "affects the preservation of agricultural land for productive use." SDC III, 284 Or.App. at 485 (footnote omitted). The court inferred from the legislative policy declared [364 Or. 440] in ORS 215.243(2) and the text of ORS 215.296(1) that a "significant change" in or a "significantly increased" cost of an accepted farm practice means "a change or cost increase that will significantly affect the preservation of productive agricultural land for, among other things, the purpose of obtaining a profit in money and providing food." Id. Thus, the court explained, a "significant" change "will significantly decrease the supply of agricultural land, the profitability of the farm, or the provision of food." Id. at 486. Ultimately, the court concluded that the changes to farm practices and costs in this case were not significant. Id.

         As for conditions of approval that the county had imposed, petitioners had two basic objections. First, they contended that, in some instances, the county's conditions were not "clear and objective [, ]" as required by ORS 215.296(2). Second, petitioners contended that some conditions were improper as significant changes to accepted farm practices in their own right, particularly the condition for litter patrols on the McPhillips farm, at Riverbend's expense, and the condition requiring Riverbend to pay for the entire crop of berries and cherries on the Frease farm, which would be rendered unmarketable by nuisance birds.

         As to petitioners' first contention, the Court of Appeals concluded that a clear and objective condition will "provide adequate guidance as to its performance and non-discretionary enforcement." Id. at 489. Applying that standard, the court concluded that the county's conditions of approval relating to fencing to reduce windblown litter and management of nuisance birds were clear and objective. Id. at 489-90. As to petitioners' second concern, the Court of Appeals agreed that conditions of approval theoretically could constitute significant changes to accepted farm practices, but it concluded that a litter patrol is not an accepted farm practice at all and, therefore, its imposition is not a change in an accepted farm practice. Id. at 482-83. The court also rejected petitioners' argument concerning the conditions related to the Frease farm, because the key issue is "whether the effects of those changes are 'significant.'" Id. at 486. Because paying the farmer for unmarketable produce at the average retail rate preserved the profitability of [364 Or. 441] the Frease farm, the court reasoned, the conditions were not significant changes to accepted farm practices. Id.

         II. ANALYSIS

         A. Farmland Protection in Oregon's Land Use System

         We allowed petitioners' petition for review to address the requirements of the farm impacts test and whether the conditions that the county imposed in this case were statu-torily permitted. In addition to briefing from the parties, the court has received briefs on what the farm impacts test requires from amicus curiae State of Oregon, through its Department of Agriculture and Department of Land ...


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