Stop the Dump Coal. v. Yamhill Cnty.

364 Or. 432

435 P.3d 698

STOP THE DUMP COALITION, Willamette Valley Wineries Association, Ramsey McPhillips, and Friends of Yamhill County, Petitioners on Review,

v.YAMHILL COUNTY and Riverbend Landfill Co., Respondents on Review.

LUBA 2016026 (SC S064894)

Supreme Court of Oregon.

Argued and submitted November 13, 2017.

February 28, 2019

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

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

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

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

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

Robert M. Wilsey, Assistant Attorney General, Salem, filed the brief for amicus curiae State of Oregon. Also on 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.^**

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 nonfarm 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) (SDC II ), 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.

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 215.283(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 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 reapproval 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 floodplain 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 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. SDC II , 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...