Chapter 215

NOTES OF DECISIONS

Published notice is adequate if property owners can reasonably ascertain that property in which they hold interest may be affected. Clackamas County v. Emmert, 14 Or App 493, 513 P2d 532 (1973), Sup Ct review denied

Statutory scheme establishing LCDC and granting it authority to establish state-wide land use planning goals does not unconstitutionally delegate legislative power where both standards (under this chapter) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county had not yet adopted comprehensive plan but had zoned certain portions “primarily agricultural,” county had not enacted adequate interim measures to protect its agricultural land until exclusive farm use zoning was completed. Columbia County v. LCDC, 44 Or App 749, 606 P2d 1184 (1980)

ATTY. GEN. OPINIONS: Fasano v. Bd. of County Commrs., application to county governing bodies and planning commissions, (1974) Vol 36, p 960; binding effect on governmental agencies of the adoption of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894

LAW REVIEW CITATIONS: 36 EL 25 (2006)

215.010 to 215.190

ATTY. GEN. OPINIONS: Non “home rule” county courts or commissions general legislative powers, (1974) Vol 36, p 1070

215.030

ATTY. GEN. OPINIONS: Membership requirements for county planning commissions; effect of 1973 law on currently constituted planning commissions, (1973) Vol 36, p 750; makeup of county planning commission, (1975) Vol 37, p 979; guidelines for determining restrictions on membership of county planning commissions, (1978) Vol 38, p 2034; provision in non-home rule county by initiative petition that members of planning commission be elected by a popular vote, (1978) Vol 39, p 7

215.050

NOTES OF DECISIONS

Requirement of substantial change is not met by proof that there is need for use which would be permitted by amendment. Fasano v. Bd. of County Commrs., 7 Or App 176, 489 P2d 693 (1971), aff’d 264 Or 574, 507 P2d 23 (1973)

Subsequent creation of additional zoning classification by itself does not set aside rules governing validity of transfer, at some subsequent date, of single piece of property from established zone to zone subsequently created. Fasano v. Bd. of County Commrs., 7 Or App 176, 489 P2d 693 (1971), aff’d 264 Or 574, 507 P2d 23 (1973)

When request for zone change is made, party seeking change must show that it is in conformance with comprehensive plan as implemented by ordinance, that there is a public need for the kind of change in question, and that need is best met by proposal under consideration. Fasano v. Bd. of County Commrs., 264 Or 574, 507 P2d 23 (1973)

Orders by local governing bodies changing zoning of particular property are in nature of judicial rather than legislative acts, and so are not presumptively valid. Fasano v. Bd. of County Commrs., 264 Or 574, 507 P2d 23 (1973)

Fasano v. Washington County Comm., 264 Or 574, 507 P2d 23 (1973), requires quasi-judicial hearing when local governing body is considering rezoning of relatively small amount of property. Culver v. Dagg, 20 Or App 647, 532 P2d 1127 (1975), Sup Ct review denied

Area being rezoned was so large, and owners affected so numerous, there was no significant danger of undue influence by special private economic interests, and rezoning did not require judicial-type hearing. Culver v. Dagg, 20 Or App 647, 532 P2d 1127 (1975), Sup Ct review denied

An amendment of a comprehensive plan changing the permitted use of only a specific small parcel of land is “judicial” rather than “legislative” in nature and must be preceded by a judicial-type hearing. Marggi v. Ruecker, 20 Or App 669, 533 P2d 1372 (1975), Sup Ct review denied

The scope of judicial review of zoning agency decisions is limited to examination of the administrative record to ascertain whether: 1) the proper procedures were followed; 2) the relevant factors were considered by the agency; and 3) there was reliable, probative and substantial evidence to support the decision of the agency. Dickinson v. Bd. of County Commrs., 21 Or App 98, 533 P2d 1395 (1975)

Planning commission action was not necessary prerequisite to consideration by Board of Commissioners of proposed amendments. Sunnyside Neighborhood v. Clackamas County Commissioners, 280 Or 3, 569 P2d 1063 (1977)

This section did not require county governing body to follow strict ordinance formalities in adoption of comprehensive plan, and thus plan adopted by resolution was valid where such procedure was permissible under county charter. Fifth Ave. Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978)

Adoption of comprehensive plan by resolution, etc., is subject to referendum since it is legislative in nature, notwithstanding county charter provisions limiting referendum to ordinances. Fifth Ave. Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978)

Because this section requires governing body adoption of plan amendments whether or not governing body review is sought, failure by petitioners to exhaust remedies did not excuse governing body of statutory responsibility nor divest LUBA of jurisdiction to review dismissal of appeal from planning commission. Colwell v. Washington Co., 79 Or App 82, 718 P2d 747 (1986), Sup Ct review denied

County procedures purporting to allow planning commission rather than governing body to adopt amendment to comprehensive plan violate this section. 1000 Friends of Oregon v. Wash. Co., 80 Or App 34, 720 P2d 1316 (1986), Sup Ct review denied

Duties imposed on county do not create basis for tort claim upon breach of duty. SFG Income Fund, LP v. May, 189 Or App 269, 75 P3d 470 (2003)

ATTY. GEN. OPINIONS: Fasano v. Bd. of County Commrs., application to county governing bodies and planning commissions, (1974) Vol 36, p 960; referendum power against a county “comprehensive plan” or a zoning ordinance, (1974) Vol 36, p 1044

LAW REVIEW CITATIONS: 10 WLJ 99 (1973); 68 OLR 983 (1989)

215.060

NOTES OF DECISIONS

Contents of notice, published in newspapers ten days prior to hearing on comprehensive plan, reasonably apprised its recipients of geographical scope of proposed action, in addition to specifying nature of contemplated action, and was sufficient notice under this section. Fifth Ave. Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978)

ATTY. GEN. OPINIONS: Sufficiency of notices given under this section for hearing on urban growth boundary adoption where ORS 215.503 became operative before hearing date, (1978) Vol 39, p 366

215.110

NOTES OF DECISIONS

Where adoption of comprehensive plan was initiated by planning commission, Board of Commissioners was not required to request planning commission to provide report and recommendations pursuant to this section. Fifth Ave. Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978)

COMPLETED CITATIONS: Follmer v. County of Lane, 5 Or App 185, 480 P2d 722, 486 P2d 1312 (1971), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority of county commissioners to review decisions of the county sanitarian, (1973) Vol 36, p 571; effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702; referendum power against a county “comprehensive plan” or a zoning ordinance, (1974) Vol 36, p 1044

LAW REVIEW CITATIONS: 10 WLJ 368 (1974)

215.130

NOTES OF DECISIONS

Property owner acquires vested right to proceed with construction of nonconforming use if, prior to enactment of adverse zoning, he has made substantial beginning of construction or if substantial costs toward completion of job have been incurred. Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)

In determining whether property owner has acquired vested right to nonconforming use, court shall consider various factors enumerated. Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)

Question of whether landowner has proceeded far enough with proposed construction to have acquired vested right to nonconforming use is issue of fact to be decided on case-by-case basis. Clackamas County v. Holmes, 265 Or 193, 508 P2d 190 (1973)

Local comprehensive plans, zoning ordinances, and amendments thereto are subject to local initiative and referendum when the plan, ordinance or amendment is legislative in nature; overruling Tatum v. Clackamas County, 19 Or App 770, 529 P2d 393 (1974). Allison v. Washington County, 24 Or App 571, 548 P2d 188 (1976)

Where quarry operations conducted on federally-owned property had diminished to no more than incidental use at time property was zoned for farm-forestry use, purchasers of property were not entitled to operate quarry as nonconforming use. Lane County v. Bessett, 46 Or App 319, 612 P2d 297 (1980), Sup Ct review denied

Where use of land prior to enactment of zoning ordinance was sporadic and intermittent, it gave rise to permitted nonconforming use limited to sporadic and intermittent use that existed prior to enactment of zoning ordinance. Polk County v. Martin, 292 Or 69, 636 P2d 952 (1981); Warner v. Clackamas Co, 111 Or App 11, 824 P2d 423 (1992)

Unless or until new city incorporated within acknowledged urban growth boundary adopts its own plan providing otherwise, new city must comply with acknowledged plan and implementing land use ordinances for geographic area of which it is part. City of Salem v. Families for Responsible Govt., 298 Or 574, 694 P2d 965 (1985)

This section means that newly incorporated city remains under county comprehensive plan, including designations as rural land, until city adopts own plan and urban growth boundary. 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207 (1985)

Provision in city’s plan that county’s plan would apply until territory was annexed did not constitute election by city to make its own plan applicable when its plan provided that its zoning designations of unincorporated areas were recommendations. Multnomah County v. City of Fairview, 96 Or App 14, 771 P2d 289 (1989)

Where county’s decision on comprehensive plan map amendment was not complete at time that affected area was annexed to city, this section did not authorize city to complete proceedings and take action to finalize county’s decision. Standard Ins. Co. v. City of Hillsboro, 97 Or App 625, 776 P2d 1313 (1989)

Nonconforming use status depended on whether various operations share common use, not nature of business conducting use. Hendgen v. Clackamas County, 115 Or App 117, 836 P2d 1369 (1992); 119 Or App 55, 849 P2d 1135 (1993)

Subsection permitting replacement of nonconforming building if destroyed by natural disaster does not prohibit replacement of nonconforming building not destroyed by natural disaster under subsection permitting alteration. McKay Creek Valley v. Washington County, 122 Or App 28, 857 P2d 184 (1993)

Establishment of “rebuttable presumption” of continuous nonconforming use requires county to prove lack of continuity by preponderance of evidence. Lawrence v. Clackamas County, 164 Or App 462, 992 P2d 933 (1999)

Vested right to complete nonconforming use is subject to loss through abandonment or discontinuance in same manner that nonconforming use is subject to loss. Fountain Village Development Co. v. Multnomah County, 176 Or App 213, 31 P3d 458 (2001)

Decision rejecting nonconforming use application under pre-1999 law does not prevent filing subsequent application under 1999 amendment limiting nonconforming use verification to 20-year period preceding application date. Lawrence v. Clackamas County, 180 Or App 495, 43 P3d 1192 (2002), Sup Ct review denied

Alteration of nonconforming use to comply with “lawful requirement” is permitted only in situations where alteration is necessary to comply with specific or immediate directive by governmental authority. Cyrus v. Deschutes County, 194 Or App 716, 96 P3d 858 (2004)

To verify nonconforming use, petitioner must prove existence, continuity, nature and extent of nonconforming use for specified period of time preceding application date and must prove that nonconforming use was lawful at time zoning ordinance or regulation went into effect. Aguilar v. Washington County, 201 Or App 640, 120 P3d 514 (2005), Sup Ct review denied

This section does not apply to nonconforming use regulation by cities. City of Mosier v. Hood River Sand, Gravel and Ready-Mix, Inc., 206 Or App 292, 136 P3d 1160 (2006)

ATTY. GEN. OPINIONS: Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702; referendum power against a county “comprehensive plan” or a zoning ordinance, (1974) Vol 36, p 1044; non-home rule county courts or commissions general legislative powers, (1974) Vol 36, p 1070

LAW REVIEW CITATIONS: 4 EL 297 (1974); 68 OLR 976, 984 (1989)

215.185

NOTES OF DECISIONS

This section, read in conjunction with [former] ORS 215.180 and ORS 215.190, means that the person responsible for unlawfully constructing buildings has a duty to remove them, and, therefore, mandamus will lie against that person. Parks v. Bd. of County Commrs., Tillamook, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied

Where petitioners for writ of mandamus knew that subdivision had been approved on basis of seven-acre lots despite adoption of twenty-acre minimum lot size requirement before final subdivision approval and knew that construction was going forward on basis of seven-acre lots, but did not notify developers, builders or owners of property until homes were completed, trial court properly refused to order removal of homes under this section. Drain v. Clackamas County, 36 Or App 799, 585 P2d 746 (1978)

Where building is trailer house within meaning of county ordinance if designed to be manufactured so it can be moved from one location to another and is expressly excluded from definition of single-family dwelling, trailer house is prohibited from areas bearing designation “recreational residential” zone. Clackamas County v. Dunham, 282 Or 419, 579 P2d 223 (1978)

Circuit court does not have jurisdiction under this section to resolve disputes in which alleged activity is taken pursuant to “land use decision” by local governing body; LUBA has exclusive jurisdiction to correct errors in land use decisions. Mehring v. Arpke, 65 Or App 747, 672 P2d 382 (1983), Sup Ct review denied

Plaintiff’s action to compel removal of transmission tower erected pursuant to county permits was properly dismissed on ground that subject matter of action was within LUBA’s exclusive jurisdiction as review of action taken in accordance with land use decision by local government. Wright v. KECH-TV, 71 Or App 662, 694 P2d 545 (1984), aff’d 300 Or 139, 707 P2d 1232 (1985)

LAW REVIEW CITATIONS: 55 OLR 119 (1976)

215.190

NOTES OF DECISIONS

This section as qualified by ORS 215.130 (5) rejects the notion that possession of a building permit entitles a property owner to proceed with construction prohibited by an amendment to a zoning ordinance if there has been no actual construction before the amendment was adopted. Twin Rocks Watseco v. Sheets, 15 Or App 445, 516 P2d 472 (1973), Sup Ct review denied

ATTY. GEN. OPINIONS: Effect of county zoning ordinances on approved subdivision plat, (1973) Vol 36, p 702

215.203 to 215.311

ATTY. GEN. OPINIONS: Effect of constitutional provision requiring payments based on government regulations restricting use of property, (2001) Vol 49, p 284

215.203

NOTES OF DECISIONS

Woodlot was not currently employed as part of whole parcel, and was not surrounded by and did not border on farm use parcel and was therefore not appurtenant. Linfoot v. Dept. of Rev., 4 OTR 489 (1971)

To qualify for assessment for farm use, owner must ultimately receive compensation, in some form, from farming or grazing operations conducted for money profit. Linfoot v. Dept. of Rev., 4 OTR 489 (1971)

Contiguous area of substantial size not used for farm purposes must be denied exemption even though contained within boundaries of qualifying farm operation. Taylor v. Dept. of Rev., 6 OTR 496 (1976)

Buildings used for temporary housing of itinerant farm workers during harvest periods were buildings supporting “accepted farming practices” under this section. Benton v. Dept. of Rev., 7 OTR 162 (1977)

Farm use land includes any land capable of profitable agricultural production regardless of its size under position taken by Oregon Tax Court. Rutherford v. Armstrong, 31 Or App 1319, 572 P2d 1331 (1977), Sup Ct review denied

Where land cannot presently or in foreseeable future be utilized for “farm use” as defined in this section, LCDC goal does not require exclusive farm use zoning upon finding of predominance of certain class soils. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978); 1000 Friends v. Benton County, 32 Or App 413, 575 P2d 651 (1978)

Although plaintiff’s attempt to control tansy ragwort could have restored subject property to profitable future activity, such use of property did not constitute “farm use” within the meaning of this section because the land was not currently being used to obtain profits. Shepherd v. Dept. of Rev., 8 OTR 122 (1979)

Homesite located on land zoned for exclusive farm use was not eligible for special assessment. Chapin v. Dept. of Rev., 8 OTR 361 (1980), aff’d 290 Or 931, 627 P2d 480 (1981)

Board of county commissioners’ finding that land for which subdivision was proposed could not “presently or in the foreseeable future be utilized for farm use” as defined in this section was not based on substantial evidence where board did not specifically address possible farm applications other than grazing. Hillcrest Vineyard v. Bd. of Comm. of Douglas County, 45 Or App 285, 608 P2d 201 (1980)

Since former version of this section specifically excepted “use of dwelling customarily provided in conjunction with farm use” from definition of “farm use,” half acre homesite on 111 acre tract zoned Exclusive Farm Use was properly valued as homesite rather than farmland. Chapin v. Dept. of Revenue, 290 Or 931, 627 P2d 480 (1981)

Where plaintiff rented pasture at price of $40 per month for grazing of horses owned by his daughter’s girlfriends, many of whom used their horses in connection with their 4-H projects; there were never more than five or six horses on the property at any one time; and each of the renters was responsible for feeding and care of her own horse, individuals renting pasture were doing so for personal reasons and not for primary purpose of obtaining a profit within the meaning of this section and use of property did not meet definition of “farm use.” Capsey v. Dept. of Revenue, 294 Or 455, 657 P2d 680 (1983)

Farmland that has been destroyed by nonfarm activity may not be classified as “wasteland” for purposes of obtaining farm use assessment. Guido v. Dept. of Rev., 10 OTR 85 (1985)

Although this section has land use regulatory features, the “current employment” requirement was designed only as qualification for favorable tax treatment. Newcomer v. Clackamas County, 92 Or App 174, 758 P2d 369 (1988)

Storage of manure on land other than land where it is produced is not farm use within meaning of this section. J and D Fertilizers, Ltd. v. Clackamas County, 105 Or App 11, 803 P2d 280 (1990), Sup Ct review denied

Boarding of horses for profit is not farm use. Fitzwater v. Dept. of Rev., 12 OTR 48 (1991)

Listing of specific activity as permitted nonfarm use prevents activity from qualifying under broader farm use category, so land used for activity is not in farm use. Kang v. Dept. of Revenue, 12 OTR 407 (1993)

Winery is not farm use. King Estate Winery, Inc. v. Dept. of Revenue, 14 OTR 169 (1997), aff’d 329 Or 414, 988 P2d 369 (1999)

“Profit” is measured by direct expenditures and income from use of land and excludes consideration of indirect expenditures and profits. Everhart v. Dept. of Revenue, 15 OTR 76 (1999)

In determining whether land is suitable for “farm use,” factors considered by local government may include net gain or receipts from farm or agricultural activities. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007)

COMPLETED CITATIONS: Ritch v. Dept. of Rev., 4 OTR 206 (1970), rev’d 261 Or 78, 493 P2d 38 (1972)

ATTY. GEN. OPINIONS: Authority of state over use of land along Willamette River under Greenway Law, (1975) Vol 37, p 515; propriety of establishing aircraft landing field in “farm use zone,” (1975) Vol 37, p 547; effect of constitutional provision requiring payments based on government regulations restricting use of property, (2001) Vol 49, p 284

LAW REVIEW CITATIONS: 9 WLJ 1-25 (1973); 53 OLR 120, 127 (1974); 19 EL 63 (1988)

215.213

NOTES OF DECISIONS

Single-family residence could not, as matter of law, be permitted on five-acre parcel zoned for farm use where subject property was presently in agricultural use, generally suitable for such use, and surrounded by operating farms. Rutherford v. Armstrong, 31 Or App 1319, 572 P2d 1331 (1977), Sup Ct review denied

Under variance provisions of this section, land included within exclusive farm use zone pursuant to LCDC goal may be used for certain non-farm purposes. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county board of commissioners approved subdivision but did not address policy ramifications of ORS 215.243, order approving subdivision was legally insufficient. Still v. Bd. of County Commrs of Marion Co., 42 Or App 115, 600 P2d 433 (1979), Sup Ct review denied

Granting of conditional use permit to construct sewage treatment facility on undersized parcel in farm-residential use zone was consistent with this section. Menges v. Bd. of Comm., 44 Or App 603, 606 P2d 681 (1980), as modified by 45 Or App 797, 609 P2d 847 (1980), aff’d 290 Or 251, 621 P2d 562 (1980)

Board’s approval of minor partition of agricultural land was improper where: (1) no finding was made that proposed dwellings would not materially alter stability of overall land use pattern in area and; (2) board’s finding that land was generally unsuitable for production of farm crops and livestock was not supported by reliable, probative and substantial evidence. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 618 P2d 986 (1980)

Since former version of this section provided that dwellings provided in conjunction with farm use were nonfarm uses, half-acre homesite on 111 acre tract zone Exclusive Farm Use was properly valued as homesite rather than farmland. Chapin v. Dept. of Revenue, 290 Or 931, 627 P2d 480 (1981)

Under this section, county decision to issue building permit for construction of transmission tower more than 200 feet high on land designated for exclusive farm use was land use decision and appeal from issuance of permit was within exclusive jurisdiction of LUBA. Wright v. KECH-TV, 300 Or 139, 707 P2d 1232 (1985)

Provision in county ordinance permitting “utility facilities necessary for public service” in agricultural zones means it must be necessary to place facility in zone. McCaw Communications, Inc. v. Marion County, 96 Or App 552, 773 P2d 779 (1989)

Defendant’s kennel operations did not become nonconforming use until county enacted ordinance to prohibit kennel operations in agricultural zone, and were permitted under earlier zoning ordinances because they come within definition of farm use. Linn County v. Hickey, 98 Or App 100, 778 P2d 509 (1989)

This section, which provides that churches may be allowed as permitted uses in Exclusive Farm Use zone does not preclude counties from regulating church uses or making them conditional. Kola Tepee, Inc. v. Marion County, 99 Or App 481, 782 P2d 955 (1989), Sup Ct review denied

Boarding of horses for profit is conditional use permitted in EFU zone but is not farm use. Fitzwater v. Dept. of Rev., 12 OTR 48 (1991)

Uses permitted conditionally under this section and ORS 215.283 cannot be absolutely prohibited by ORS 215.243, rather, when possible, effect must be given to both statutory provisions. Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992)

Processing of aggregate that does not include final processing into asphalt or portland cement cannot qualify under provision permitting processing of other mineral resources and subsurface resources. McKay Creek Valley v. Washington County, 122 Or App 59, 857 P2d 167 (1993)

Uses that “may be permitted” in exclusive farm use zone are permitted as of right and are not subject to additional local government restriction. Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995)

Uses that may be established “subject to ORS 215.296” are allowable uses subject to approval of local governing body. Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995)

Where language describing use permitted as of right employs inexact or delegative terms to describe limitations, agency may interpret limits by rule. Nichols v. Clackamas County, 146 Or App 25, 932 P2d 1185 (1997), Sup Ct review denied

Invalidation of rules inconsistent with statutes listed in ORS 215.304 as of March 1, 1994, is specifically directed to preventing replacement of marginal lands designation and does not otherwise limit LCDC authority to restrict permissible uses of exclusive farm use lands within marginal lands counties. Lane County v. LCDC, 325 Or 569, 942 P2d 278 (1997)

Buildings established for listed permitted uses are subject to restrictions and requirements of general application. Josephine County v. Garnier, 163 Or App 333, 987 P2d 1263 (1999)

Separate showing of compliance with, or exception to, state land use planning goal dealing with urbanization is not required in order to allow uses in exclusive farm use zone that are urban in nature but of kinds specifically allowed by statute. Jackson County Citizens’ League v. Jackson County, 171 Or App 149, 15 P3d 42 (2000)

ATTY. GEN. OPINIONS: Authority of state over use of land along Willamette River under Greenway Law, (1975) Vol 37, p 515; permissibility of radio transmission tower as “utility facility necessary for public service” in area zoned for exclusive farm use, (1981) Vol 42 p 77

LAW REVIEW CITATIONS: 19 EL 63 (1988); 26 WLR 398 (1990); 34 WLR 81 (1998); 77 OLR 993 (1998); 36 WLR 441 (2000); 36 EL 25 (2006)

215.223

COMPLETED CITATIONS: Follmer v. County of Lane, 5 Or App 185, 480 P2d 722, 486 P2d 1312 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 6 EL 151 (1975)

215.243

NOTES OF DECISIONS

Where substantial evidence supported county commissioners’ finding that proposed subdivision of parcel of agricultural land would promote more intensive farming and greater overall agricultural production than single parcel, state wide planning goal 3 did not require that agricultural lands be used for full-time farming where such farms were not economically viable and where smaller, part-time farms were consistent with existing agricultural enterprise in area. Meeker v. Board of Commissioners, 36 Or App 699, 585 P2d 1138 (1978), aff’d 287 Or 665, 601 P2d 804 (1979)

This section is clearly aimed at preservation of existing commercial farming operations. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county board of commissioners approved subdivision but did not address policy ramifications of this section order approving subdivision was legally insufficient under ORS 215.213. Still v. Bd. of County Commrs of Marion Co., 42 Or App 115, 600 P2d 433 (1979), Sup Ct review denied

General unsuitability for farm use must be based on entire tract, not only on part on which dwelling would be located. Smith v. Clackamas County, 103 Or App 370, 797 P2d 1058 (1990), aff’d313 Or 519, 836 P2d 716 (1992)

Statute is not exclusive listing of public purposes that exclusive farm use zoning statutes are adopted to further. Nelson v. Benton County, 115 Or App 453, 839 P2d 233 (1992)

Uses permitted conditionally under either ORS 215.213 or 215.283 cannot be absolutely prohibited by this section, rather, effect must be given to both statutory provisions, if possible. Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992)

LAW REVIEW CITATIONS: 53 OLR 123 (1974); 36 WLR 441 (2000)

215.263

NOTES OF DECISIONS

County may not approve partition of exclusive farm use land for purpose of placing nonfarm dwelling on parcel unless county has first determined that dwelling would meet criteria for nonfarm dwelling in EFU zone. Cherry Lane, Inc. v. Board of County Comm., 84 Or App 196, 733 P2d 488 (1987), Sup Ct review denied

Minimum parcel size requirements of ORS 215.780 are applicable to exclusive farm use lot division made for purpose of allowing nonfarm dwelling. Dorvinen v. Crook County, 153 Or App 391, 957 P2d 180 (1998), Sup Ct review denied

215.275

NOTES OF DECISIONS

“Reasonable alternatives” to be considered in assessing necessity of utility facility are limited to reasonable site alternatives to exclusive farm use land. Sprint PCS v. Washington County, 186 Or App 470, 63 P3d 1261 (2003)

Consideration of reasonable site alternatives for utility facility may include consideration of different designs to adapt utility’s chosen methodology to land that is not zoned for exclusive farm use. Sprint PCS v. Washington County, 186 Or App 470, 63 P3d 1261 (2003)

“Reasonable” alternatives to exclusive farm use zone locations refers to alternatives that are fair, proper, just, moderate and suitable under circumstances, not merely alternatives that have some likelihood of success. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

Evaluation of need to site facility within exclusive farm use zone may be based on zone as whole rather than on property-by-property analysis. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

Road and highway rights-of-way within exclusive farm use zone are treated as exclusive farm use land for purposes of determining existence of alternative to siting facility within zone. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

215.283

NOTES OF DECISIONS

Accessory dwelling for farmer’s relative whose assistance in managing farm was required by farmer could be permitted if farmer remained significantly involved in farm operations although relative assumed primary responsibility for managing farm. Hooper v. Clackamas County, 87 Or App 167, 741 P2d 921 (1987), Sup Ct review denied

Winery with tasting room and related retail activity constitutes commercial activity in conjunction with farm use in form of vineyard. Craven v. Jackson County, 308 Or 281, 779 P2d 1011 (1989)

For purpose of determining whether accessory dwelling for farmer’s relative is permissible, questions of whether farm owner is farm operator and whether owner requires relative’s assistance in conducting farm operations are inseparable, and should not be treated as independent questions. Kenagy v. Benton County, 112 Or App 17, 827 P2d 1047 (1992)

Farm owner’s involvement with farming operations on leased portions of property combined with owner’s past, present and planned expanded uses on unleased part of property bring owner within this statute. Kenagy v. Benton County, 115 Or App 131, 838 P2d 1076 (1992), Sup Ct review denied

Proposed activities on farm property is basis for determining whether relative’s assistance is required. Kenagy v. Benton County, 115 Or App 131, 838 P2d 1076 (1992), Sup Ct review denied

Uses permitted conditionally under this section and ORS 215.213 cannot be absolutely prohibited by ORS 215.243, rather, when possible, effect must be given to both statutory provisions. Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992)

Uses that “may be permitted” in exclusive farm use zone are uses as of right not subject to additional local government restriction. Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995)

Uses that may be established “subject to ORS 215.296” are allowable uses subject to approval of local governing body. Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995)

Administrative rules governing high-value farmland are not subordinate to statutes governing permissive uses for exclusive farm use zones in nonmarginal land counties. Marquam Farms Corp. v. Multnomah County, 147 Or App 368, 936 P2d 990 (1997)

Buildings established for listed permitted uses are subject to restrictions and requirements of general application. Josephine County v. Garnier, 163 Or App 333, 987 P2d 1263 (1999)

Requirement that utility facility be “necessary” for provision of service refers only to need to site facility in exclusive farm use zone instead of nonfarmland site, not to selection of facility as means of providing service. Dayton Prairie Water Association v. Yamhill County, 170 Or App 6, 11 P3d 671 (2000)

“Public or private school” is restrictive term that does not include broad range of places of learning. Warburton v. Harney County, 174 Or App 322, 25 P3d 978 (2001), Sup Ct review denied

“Utility facility” does not include project or site where critical function or functions of utility service are accomplished only by naturally occurring processes. Cox v. Polk County, 174 Or App 332, 25 P3d 970 (2001), Sup Ct review denied

Fire service facility has purpose of “providing rural fire protection services” if predominant area served by facility is rural. Keicher v. Clackamas County, 175 Or App 633, 29 P3d 1155 (2001)

Provision of emergency medical services and training is within statutory authorization for facilities providing rural fire protection services. Keicher v. Clackamas County, 175 Or App 633, 29 P3d 1155 (2001)

“Subsurface of public roads and highways” includes entire right-of-way within which thoroughfare has been constructed, not merely hard surface on which traffic travels. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

ATTY. GEN. OPINIONS: Effect of constitutional provision requiring payments based on government regulations restricting use of property, (2001) Vol 49, p 284

LAW REVIEW CITATIONS: 19 EL 63 (1988); 26 WLR 398 (1990); 34 WLR 81 (1998); 77 OLR 993 (1998); 36 WLR 441 (2000); 36 EL 25 (2006)

215.284

NOTES OF DECISIONS

Consideration and application of listed factors may allow parcel to be found generally unsuitable for agricultural purposes notwithstanding that majority of land within parcel is not unsuitable. Hearne v. Baker County, 89 Or App 282, 748 P2d 1016 (1988), Sup Ct review denied

In determining general unsuitability of lot or parcel, “production” of livestock refers only to livestock operations that bring livestock into existence. Moore v. Coos County, 144 Or App 195, 925 P2d 927 (1996)

LAW REVIEW CITATIONS: 36 EL 25 (2006)

215.296

NOTES OF DECISIONS

Consideration of impact of proposed use on surrounding lands includes expected resulting increase in area traffic. Zippel v. Josephine County, 128 Or App 458, 876 P2d 854 (1994), Sup Ct review denied

Increased farming cost attributable to construction of development was not separate and distinct from increased farming costs attributable to development use. Von Lubken v. Hood River County, 133 Or App 286, 891 P2d 5 (1995)

Where later decision would be required to allow prospective use, initial use decision need not include findings regarding impact of prospective use. Mission Bottom Assn., Inc. v. Marion County, 145 Or App 486, 930 P2d 897 (1996)

LAW REVIEW CITATIONS: 36 WLR 441 (2000)

215.298

NOTES OF DECISIONS

Local government may issue mining permit for aggregate site only if site is significant resource qualifying for inclusion on inventory in acknowledged comprehensive plan. Beaver State Sand and Gravel v. Douglas County, 187 Or App 241, 65 P3d 1123 (2003)

215.301

NOTES OF DECISIONS

Restriction on approval of asphalt processing plant sites applies only to plant sites within exclusive farm use zones. O’Mara v. Douglas County, 318 Or 72, 862 P2d 499 (1993)

215.304

LAW REVIEW CITATIONS: 77 OLR 993 (1998)

215.316

NOTES OF DECISIONS

In determining whether land is marginal land under 1991 version of ORS 197.247, county must base calculation of potential annual gross income as forest operation on log prices for calendar years 1978 to 1982. Herring v. Lane County, 216 Or App 84, 171 P3d 1025 (2007)

215.402 to 215.422

NOTES OF DECISIONS

Petitioner who attempted to appeal county planning director’s decision to county planning commission, where no local appeal was provided in county ordinance, could not challenge procedures or merits of director’s decision in appeal to LUBA from commissioner’s refusal to consider matter, after failing to bring direct timely appeal to LUBA from first decision. Smith v. Douglas County, 98 Or App 379, 780 P2d 232 (1989), Sup Ct review denied

LAW REVIEW CITATIONS: 10 WLJ 395 (1974)

215.402

NOTES OF DECISIONS

County’s decision whether to allow construction of primary farm dwelling on land zoned for exclusive farm use entailed issuance of permit requiring discretionary approval under this section and was subject to notice, hearing and other procedural requirements of ORS 215.416. Doughton v. Douglas County, 88 Or App 198, 744 P2d 1299 (1987)

215.406

NOTES OF DECISIONS

Board of Commissioners could properly hold full hearing on contested quasi-judicial plan change, and preceding action either by hearings officer or planning commission was not required. Sunnyside Neighborhood v. Clackamas County Commissioners, 280 Or 3, 569 P2d 1063 (1977)

215.412

LAW REVIEW CITATIONS: 10 WLJ 102 (1973)

215.416

NOTES OF DECISIONS

Under provisions of this section concerning county procedures for authorizing land use development, including subdivisions, proposed subdivision was required to comply with county comprehensive framework plan. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978)

Specificity requirements of this section were not met by board of county commissioners’ denial of tentative approval of proposed subdivision plat where denial was couched in general language and failed to specify what criteria were used to determine that proposed plat did not comply with county comprehensive plan. Commonwealth Properties v. Washington County, 35 Or App 387, 582 P2d 1384 (1978)

County ordinance which required that appeals of land use decisions be taken within ten days of oral decision of hearings officer was invalid since it conflicted with provision in this section requiring written notice of decision to be given to parties. Bryant v. Clackamas County, 56 Or App 442, 643 P2d 649 (1982)

County’s decision whether to allow construction of primary farm dwelling on land zoned for exclusive farm use entailed issuance of permit requiring discretionary approval under ORS 215.402 and was subject to notice, hearing and other procedural requirements of this section. Doughton v. Douglas County, 88 Or App 198, 744 P2d 1299 (1987)

Where petitioners contended in appeal to LUBA that county failed to hold hearing and give notice as required by this section, petitioners were not required to satisfy appearance provision of ORS 197.830 and are “aggrieved” within meaning of ORS 197.830 for purposes of standing. Flowers v. Klamath County, 98 Or App 384, 780 P2d 227 (1989), Sup Ct review denied; Hugo v. Columbia County, 157 Or App 1, 967 P2d 895 (1998)

It was beyond county’s legislative power to require as part of conditional use permit that skydiving company be strictly liable for any damages resulting from its activities. Skydive Oregon, Inc. v. Clackamas County, 122 Or App 342, 857 P2d 879 (1993)

Where petitioner files appeal seeking local review, direct appeal to LUBA under ORS 197.830 is not available. Tarjoto v. Lane County, 137 Or App 305, 904 P2d 641 (1995)

Listing of categories of persons entitled to notice imposes cumulative notice requirement, not alternative notice requirement. Wilbur Residents v. Douglas County, 151 Or App 523, 950 P2d 368 (1997), Sup Ct review denied

LAW REVIEW CITATIONS: 6 EL 151 (1975)

215.422

NOTES OF DECISIONS

Under this section and ORS 34.040, community organization lacked standing to obtain review under representational theory where it had shown no particular injury to interests of members or itself, except in respect to one member who could not establish injury of some substantial right, nor could organization obtain standing under a de jure theory where organization was an unofficially formed group without defined membership. Clark v. Dagg, 38 Or App 71, 588 P2d 1298 (1979), Sup Ct review denied

County may not limit appeals by narrowing class of parties qualifying as being “aggrieved” by action of hearing officer. Overton v. Benton County, 61 Or App 667, 658 P2d 574 (1983)

Person has standing to appeal to Lane County Board of Commissioners from quasi-judicial land use decision made by county hearings officer where person’s interest in decision was recognized by local land use decision-making body; person asserted position on the merits; and local land use decision-making body reached decision contrary to position asserted by person. Lamb v. Lane County, 70 Or App 364, 689 P2d 1049 (1984)

Remand by Land Use Board of Appeals to county board was appropriate because although opponents had not appealed to LUBA, six asserted errors not decided by county board opponents had not waived undecided issues. Smith v. Douglas County, 308 Or 191, 777 P2d 1377 (1989)

LAW REVIEW CITATIONS: 54 OLR 396 (1975); 55 OLR 122-140 (1976)

215.427

NOTES OF DECISIONS

Under former similar statute (ORS 215.428)

Mandamus is not available once local governing body has issued land use decision, even if decision is issued after 120-day deadline. Simon v. Bd. of Co. Comm. of Marion Co., 91 Or App 487, 755 P2d 741 (1988); State ex rel Fraley v. Deschutes County Bd. of Commissioners, 151 Or App 201, 948 P2d 1249 (1997), Sup Ct review denied

LUBA erred by concluding that conditional use standards applied without determining whether petitioner’s pre-amendment filings constituted application to which this section relates. Kirpal Light Satsang v. Douglas County, 96 Or App 207, 772 P2d 944 (1989), Sup Ct review denied, on reconsideration 97 Or App 614, 776 P2d 1312 (1989)

Absent county rule establishing when land use decision is final, such decision is final when made, not when mailed. Bigej Enterprises v. Tillamook County, 115 Or App 425, 838 P2d 1095 (1992), as modified by 118 Or App 342, 847 P2d 869 (1993)

Plaintiff’s agreements to waive periods of time constituted request for extensions under provision of this section allowing 120-day period to be extended at request of applicant. Bigej Enterprises v. Tillamook County, 115 Or App 425, 838 P2d 1095 (1992), as modified by 118 Or App 342, 847 P2d 869 (1993)

Standards and criteria do not become “applicable” until acknowledged by LUBA. Von Lubken v. Hood River County, 118 Or App 246, 846 P2d 1178 (1993), Sup Ct review denied

Where zoning change cannot be accomplished without amendment of comprehensive plan, circuit court writ of mandamus is not available to compel decision. Edney v. Columbia County Board of Commissioners, 318 Or 138, 863 P2d 1259 (1993)

County interpretation of county ordinance is not entitled to deference in mandamus proceeding. State ex rel Currier v. Clatsop County, 149 Or App 285, 942 P2d 847 (1997); State ex rel Coastal Management, Inc. v. Washington County, 159 Or App 533, 979 P2d 300 (1999)

Decision to approve preliminary or final plan is wholly within authority and control of county, notwithstanding that other entities may play part in applicant’s fulfillment of county-imposed conditions. State ex rel Aspen Group v. Washington County, 150 Or App 371, 946 P2d 347 (1997), Sup Ct review denied

Discretionary attorney fees under ORS 34.210 are available in action to compel county approval of plan. State ex rel Aspen Group v. Washington County, 150 Or App 371, 946 P2d 347 (1997), Sup Ct review denied

“Writ of mandamus” filed by applicant to compel governing body to issue approval is peremptory writ. Murphy Citizens Advisory Committee v. Josephine County, 325 Or 101, 934 P2d 415 (1997)

Applicant may bring mandamus action notwithstanding that applicant initiated local review procedure that prevents untimely decision from being final action. State ex rel K. B. Recycling, Inc. v. Clackamas County, 171 Or App 46, 14 P3d 643 (2000)

In general

Although law under which application is approved or denied may not change after application filing date, material change in facts underlying application may affect approval or denial of application. Department of Land Conservation and Development v. Jefferson County, 220 Or App 518, 188 P3d 313 (2008), Sup Ct review denied

Criteria and standards established under waiver described in ORS 195.305 are of no effect. Pete’s Mountain Homeowners Association v. Clackamas County, 227 Or App 140, 204 P3d 802 (2009), Sup Ct review denied

215.428

NOTE: Repealed June 29, 1999; ORS 215.427 enacted in lieu

See annotations under ORS 215.427.

215.503

ATTY. GEN. OPINIONS: Sufficiency of notices given under ORS 215.060 for hearing on urban growth boundary adoption where this section became operative before hearing date, (1978) Vol 39, p 366

215.705

NOTES OF DECISIONS

Requirement that owner be “present” owner is chronological term relating to when owner must have and have had necessary association with property. Dept. of Land Conservation and Development v. Yamhill County, 151 Or App 367, 949 P2d 1245 (1997)

Land Conservation and Development Commission, by rule, may impose restrictions that supplement statutory restrictions on lot-of-record dwellings. Bruggere v. Clackamas County, 168 Or App 692, 7 P3d 634 (2000), Sup Ct review denied

LAW REVIEW CITATIONS: 36 EL 25 (2006)

215.720

NOTES OF DECISIONS

Counties may apply dwelling criteria that impose stricter requirements than those under ORS 215.740 and 215.750. Miller v. Multnomah County, 153 Or App 30, 956 P2d 209 (1998)

LAW REVIEW CITATIONS: 36 WLR 441 (2000)

215.740

LAW REVIEW CITATIONS: 36 WLR 441 (2000)

215.750

NOTES OF DECISIONS

Counties may supplement state standards with local regulations and restrictions. Miller v. Multnomah County, 153 Or App 30, 956 P2d 209 (1998)

“Wood fiber” means wood fiber from all types of trees that property is capable of producing, not just commercial species. Carlson v. Benton County, 154 Or App 62, 961 P2d 248 (1998)

Illegally created lot or parcel may not be considered for purpose of determining number of lots or parcels within 160-acre square. Friends of Yamhill County v. Yamhill County, 229 Or App 188, 211 P3d 297 (2009)

LAW REVIEW CITATIONS: 36 EL 25 (2006)

215.755

LAW REVIEW CITATIONS: 36 WLR 441 (2000)

215.780

NOTES OF DECISIONS

Minimum parcel size requirements are applicable to exclusive farm use lot division made for purpose of allowing nonfarm dwelling. Dorvinen v. Crook County, 153 Or App 391, 957 P2d 180 (1998), Sup Ct review denied

Parcel resulting from property line adjustment is subject to minimum parcel size requirement regardless of whether parcel met size requirement before adjustment. Phillips v. Polk County, 213 Or App 498, 162 P3d 338 (2007), Sup Ct review denied

LAW REVIEW CITATIONS: 36 WLR 441 (2000); 36 EL 25 (2006)