Cent. Or. Landwatch v. Crook Cnty.

432 P.3d 1161, 294 Or. App. 762
CourtCourt of Appeals of Oregon
DecidedNovember 7, 2018
DocketA167178
StatusPublished

This text of 432 P.3d 1161 (Cent. Or. Landwatch v. Crook Cnty.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cent. Or. Landwatch v. Crook Cnty., 432 P.3d 1161, 294 Or. App. 762 (Or. Ct. App. 2018).

Opinion

DEHOOG, J.

*763Central 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 LUBA's order is "unlawful in substance," ORS 197.850(9)(a), we affirm.

The facts, which we take from LUBA's 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 *764of soils that "are Class IV if irrigated and Class VI if not irrigated."1 *1163There 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 *765agricultural 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 *1164farm 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 *766the 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 to LandWatch, the only conclusion that the record supported under that assessment was that the property could be used in that manner. As a result, LandWatch contended, the county's decision that the property was generally unsuitable for farm use was not supported by substantial evidence.

As noted, LUBA remanded the county's decision approving the Garcias' application for a nonfarm dwelling. LUBA agreed with LandWatch's overarching contention that "the county's finding that the subject property is generally unsuitable for farm use is not supported by substantial evidence." In response to LandWatch's specific arguments relating to size and location, however, LUBA first observed that it had sustained LandWatch's first assignment of error on the ground that "the county [had] not established that the subject property is generally unsuitable for farm use based on factors other than size and location." LUBA then explained that

"[o]n remand, if this matter is to be pursued further, [the Garcias] and the county will have another opportunity to demonstrate that the subject property is generally unsuitable for farm use, based on factors other than size and location. If so, * * * the county need not consider size or location and need not consider whether the subject property can be used for farm use in conjunction with other lands. But if size and location must be considered, and therefore are to be the determining factors in establishing that the subject property is generally unsuitable for farm use, then the county must consider whether the subject property 'can reasonably be put to farm * * * use in conjunction with other land[,]' as required by ORS 215.284(2)(b) and OAR 660-033-0130(4)(c)(B)(i)."

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Related

State v. Gaines
206 P.3d 1042 (Oregon Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
432 P.3d 1161, 294 Or. App. 762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cent-or-landwatch-v-crook-cnty-orctapp-2018.