Hearne v. Baker County

748 P.2d 1016, 89 Or. App. 282
CourtCourt of Appeals of Oregon
DecidedJanuary 27, 1988
DocketLUBA 87-030; CA A46466
StatusPublished
Cited by4 cases

This text of 748 P.2d 1016 (Hearne v. Baker 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
Hearne v. Baker County, 748 P.2d 1016, 89 Or. App. 282 (Or. Ct. App. 1988).

Opinion

RICHARDSON, P. J.

Petitioner and respondent Dunn (respondent) both seek review of LUBA’s order affirming Baker County’s approval of the partition of respondent’s 20-acre tract, located in an exclusive farm use zone, into one 10-acre and two five-acre parcels and the county’s allowance of conditional use permits for nonfarm dwellings on the two smaller parcels. The county’s decision was made after LUBA had twice remanded previous approvals of the partition and the dwellings. See Smith v. Baker County, 14 Or LUBA 167 (1985); Hearne v. Baker County, 14 Or LUBA 743, aff’d 81 Or App 105, 724 P2d 351 (1986).

Because respondent’s cross-petition raises the jurisdictional question of whether LUBA erred by denying his motion to dismiss the appeal, we turn to it first and reject it without discussion.1

Petitioner makes three assignments of error, only the first of which calls for extensive comment. He argues in that assignment that LUBA misapplied ORS 215.283(3)(d), which permits single-family dwellings not provided in conjunction with farm use to be erected in EFU zones only upon a finding, inter alia, that the proposed dwelling

“[i]s situated upon generally unsuitable land for the production of farm crops and livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the tract * *

LUBA’s opinion states, in relevant part:

“As we explained in our last remand in this case the county must find ‘the parcel for a nonfarm dwelling is generally unsuitable for the production of farm crops and livestocks and that land suitable for production of farm crops and livestocks is preserved.’ Hearne, supra at 746. In other words, the county is not required to show the entirety of parcels A, B and C are unsuitable for farm use. Our remand required the county to find that each parcel is generally unsuitable for the production of farm crops and livestock; and, to the extent the parcels do include land suitable for such purposes, find that land will be preserved. * * *
[285]*285“* * * * *
“[T]he county identified [on remand] the areas that are unsuitable for grazing and areas that are marginally suitable. The areas that are marginally suitable will be preserved since the proposed dwellings will not be allowed to locate on the irrigated portions of the parcels. We believe the county has illustrated that the portions of these three parcels that are not irrigated, in view of the small size of the combined parcel, very rocky soils and short growing season, are generally unsuitable for grazing, the only practical farm use.” (Footnote omitted; emphasis in original.)

Petitioner contends that LUBA departed from the standard, which he understands to be dictated by LUBA’s own and our cases, that a nonfarm dwelling can meet the general unsuitability criterion of ORS 215.283(3)(d) only if the “majority of the proposed parcel [is] generally unsuitable for the production of farm crops and livestock.” (Emphasis petitioner’s.) Petitioner maintains that, under LUBA’s decision here,

“a county may satisfy ORS 215.283(3)(d) by finding, first, that the parcel is generally unsuitable for the production of farm crops and livestock, and second, that the land suitable for production of farm crops and livestock is preserved. * * * The entirety of the parcel need not be unsuitable for farm use.
“* * * * *
“Regardless how much land in the parcel may be suitable for the production of farm crops and livestock — in fact, even if such land comprises a majority of the land in the parcel — LUBA’s standard would allow a non-farm dwelling to be approved if the dwelling itself will be located on land that is unsuitable.”

Part of petitioner’s disagreement with LUBA’s analysis may be due to an ambiguity in LUBA’s language. Its statement that the “county is not required to show the entirety of [the] parcels * * * are unsuitable for farm use” is susceptible, on its face, to two understandings: first, that the entire parcel need not be considered in making the general unsuitability determination; and, second, that the whole parcel must be considered and found to be generally unsuitable for farm use, but that it can be generally unsuitable even if parts of it are suitable. The first alternative would be an incorrect interpretation of ORS 215.283(3)(d). However, reading its [286]*286opinion as a whole, we understand LUBA to have meant — and applied — the second of the alternatives.

Petitioner apparently does not agree that that alternative, any more than the first, is a proper application of ORS 215.283(3)(d). He asserts that, under existing precedent, a majority of the land in a parcel must be unsuitable in order for the parcel as a whole to be found generally unsuitable for agricultural use. Petitioner relies on our statement in Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 618 P2d 986 (1980):

“Here, the Board found only that over 35 percent of the subject property contains soil classes IV, VI and VII. There is nothing in the record that shows that the predominant soils are in classes other than I-IV. We conclude that this land is subject to classification for exclusive farm use. Before a county may permit nonfarm residential uses on land subject to exclusive farm use classification, the requirements of ORS 215.213(3), included by reference in Goal 3, must be met.” 48 Or App at 955. (Emphasis in original.)

That statement does not articulate a generally applicable litmus test, which petitioner ascribes to it, that a parcel can be generally unsuitable for farm use only if over 50 percent of its territory is unsuitable. We made the quoted statement in response to the argument that ORS 215.213(3)2 did not apply to the proposed dwellings, because, according to the proponents, “not all agricultural land is automatically zoned for exclusive farm use” and their property was “not subject to exclusive farm use restrictions.” 48 Or App at 954. The issue to which the Miles statement related was whether the land was “agricultural” under Goal 3 and was therefore subject to the EFU statutes; our statement did not bear on how the general unsuitability criterion or any other particular of those statutes should be applied to the land.3

Petitioner’s understanding of the Miles language may be attributable to our reference to the percentage of the land which consisted of various soil types and to our use of the word [287]

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183 S.W.3d 30 (Court of Appeals of Tennessee, 2005)
Smith v. Clackamas County
797 P.2d 1058 (Court of Appeals of Oregon, 1990)

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Bluebook (online)
748 P.2d 1016, 89 Or. App. 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hearne-v-baker-county-orctapp-1988.