STOP THE DUMP COALITION, Willamette Valley Wineries Association, Ramsey McPhillips, and Friends of Yamhill County, Petitioners on Review,
YAMHILL COUNTY and Riverbend Landfll Co., Respondents on Review.
and submitted November 13, 2017
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
William Frederick Paulus, Portland, fled the brief for
petitioner on review Friends of Yamhill County.
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.
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
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.
Walters, Chief Justice, and Balmer, Nakamoto, Duncan, Nelson,
and Garrett, Justices. [**]
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.
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
Or. 434] NAKAMOTO, J.
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.
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
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.
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.
FACTS AND PROCEDURAL HISTORY
The County's Reapproval of the Landfill
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."
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.
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
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.
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.
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).
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.
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.
Petitioners' Appeal of the County's Reapproval to
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.
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.
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.
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.
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.
The Court of Appeals Decision
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.
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.
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.
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.
Farmland Protection in Oregon's Land Use System
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 ...