Friends of Yamhill County v. Yamhill County

298 P.3d 586, 255 Or. App. 636, 2013 WL 1136795, 2013 Ore. App. LEXIS 302
CourtCourt of Appeals of Oregon
DecidedMarch 19, 2013
Docket2012005; A152666
StatusPublished

This text of 298 P.3d 586 (Friends of Yamhill County v. Yamhill County) 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
Friends of Yamhill County v. Yamhill County, 298 P.3d 586, 255 Or. App. 636, 2013 WL 1136795, 2013 Ore. App. LEXIS 302 (Or. Ct. App. 2013).

Opinion

ARMSTRONG, R J.

Petitioners seek judicial review of a final order of the Land Use Board of Appeals (LUBA). LUBA’s order affirmed Yamhill County’s approval of respondent Stoller’s1 application for a conditional-use permit to construct a new building—including a tasting room, commercial kitchen, storage, and staff offices—-and to host up to 44 events (with meal service) each year—on the Stoller Vineyards property, which is zoned “exclusive farm use” (EFU). Petitioners contend that LUBA’s decision contravenes “the limits imposed on commercial uses in conjunction with farm use under ORS 215.283(2)(a).”2 We review to determine whether LUBA’s order is “unlawful in substance,” ORS 197.850(9)(a), and affirm.

We take the facts from LUBA’s order.3 The Stoller Vineyards property consists of approximately 373 acres on the site of a former turkey farm. Over 180 acres are currently planted in vineyards, and Stoller plans to plant 30 to 40 more acres of vineyard. Stoller produces 10,000 to 12,000 cases of wine and sells an additional 220 tons of fruit annually.

In 2003, the county approved Stoller’s application for a winery under the authority of what is now codified as ORS 215.283(l)(n) (establishing wineries as a permitted use in EFU zones) and ORS 215.452 (setting forth the requirements for permitted-use wineries in EFU zones). The [639]*639winery included a tasting room. The county’s 2003 decision allowed only the sale of “ [i] terns directly related to wine, the sales of which are incidental to the retail sale of wine on-site and do not exceed 25 percent of the total gross receipts of the retail facility,” including a “limited service restaurant” as defined in ORS 624.010.4 It also limited Stoller to “three events of one to three days in duration during a calendar year intended to draw customers to the site for the tasting and purchasing of wine.”5

On May 31, 2011, Stoller applied for a conditional-use permit (CUP), seeking approval for the construction of a new building located near the existing winery that would include a “tasting room, commercial kitchen, offices and storage.” It also proposed to conduct 44 events per year on the property and requested approval to provide meal service at the events. The county approved Stoller’s application for the building and related activities under ORS 215.283(2)(a) (and related county ordinances) as “[c]ommercial activities that are in conjunction with farm use.” For purposes of our opinion, we will refer to commercial activities that are permitted under ORS 215.283(2)(a) as farm-use-related commercial activities.

The county’s approval of Stoller’s application was subject to various conditions. As to “events,”6 the county [640]*640approved a maximum of 44 events per year, conditioned as follows: (1) nine single-day events limited to 400 attendees; (2) three three-day events limited to 400 attendees per day; (3) one three-day event limited to 300 attendees per day; (4) 21 by-invitation-only, single-day events limited to 200 attendees; and (5) 10 by-invitation-only, single-day events limited to 100 attendees. The CUP further provides that

“[t]he events, whether public or private, are allowed only if those events are: 1) directly related to the sale and promotion of wine produced in conjunction with the winery; 2) incidental and subordinate to the retail sale of wine on-site; 3) hosted by the winery or by patrons of the winery; and 4) feature wine produced in conjunction with the winery. The events shall be held between the hours of 8:00 AM and 11:00 PM. The total number of persons permitted on the subject property at any one time, excluding staff, for any one event shall not exceed four hundred (400) persons.”

The CUP also allows catered meals, prepared by a commercial caterer, at any of the events, and authorizes the new on-site commercial kitchen to prepare meals for not more than 72 guests per event.7 The CUP also requires annual reporting and imposes an income limitation with regard to these activities:

“An annual report on the facility to show that it meets the conditions related to the events shall be filed with the Planning Director. A fee for such review may be imposed. The gross income from the non [-] wine [-] related activity may not exceed 25 percent of the gross income from the retail sale on-site of wine produced in conjunction with the winery.”

Petitioners appealed the county’s decision to LUBA, raising three assignments of error—(1) the county erred in allowing the events as a farm-use-related commercial [641]*641activity under ORS 215.283(2)(a) “because a winery is not a farm use”; (2) the county erred in authorizing food service, events, and other uses that exceed those permitted under ORS 215.452; and (3) the county’s findings that the proposed uses satisfy ORS 215.296—the “farm impact” test—are not based on substantial evidence.8 LUBA rejected each of petitioners’ assignments and affirmed the county’s decision.

On judicial review, petitioners, in a single assignment of error, assert that LUBA “[e]rred in affirming the County’s Decision to allow a new event venue on farm land in contravention to the limits imposed on commercial uses in conjunction with farm use under ORS 215.283(2)(a).” As refined at oral argument, we understand petitioners’ argument to reduce to the following two contentions: (1) the approved commercial activity—in particular, the “events venue and commercial food service facility”—is a new use that cannot, be considered to be “in conjunction with farm use” under ORS 215.283(2)(a); and (2) even if it is, the level of activity exceeds the “incidental” limitation imposed on such activity under the applicable law. Respondents, on the other hand, contend that this case presents a straightforward application of ORS 215.283(2)(a), as interpreted in this court’s and the Supreme Court’s decisions in Craven v. Jackson County, 94 Or App 49, 764 P2d 931 (1988) (Craven I), aff’d, 308 Or 281, 779 P2d 1011 (1989) (Craven II), which the county and LUBA correctly applied.

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Related

Farmers Ins. Co. of Oregon v. Mowry
261 P.3d 1 (Oregon Supreme Court, 2011)
State v. Ciancanelli
121 P.3d 613 (Oregon Supreme Court, 2005)
Brentmar v. Jackson County
900 P.2d 1030 (Oregon Supreme Court, 1995)
Craven v. Jackson County
779 P.2d 1011 (Oregon Supreme Court, 1989)
State v. King
852 P.2d 190 (Oregon Supreme Court, 1993)
Craven v. Jackson County
764 P.2d 931 (Court of Appeals of Oregon, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
298 P.3d 586, 255 Or. App. 636, 2013 WL 1136795, 2013 Ore. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friends-of-yamhill-county-v-yamhill-county-orctapp-2013.