Smalley v. Benton County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 03-17-2015
  • Case #: 2014-110
  • Judge(s)/Court Below: Opinion by Bassham
  • Full Text Opinion

Under ORS 215.306, “on-site filming” which does not require approval in EFU zones does not include the filming of events for documentary purposes where the event is the primary purpose and the filming of the event is secondary, particularly when the recording is not created for public distribution.

The Smalleys operate the “Whisper-n-Oaks Outdoor Wedding and Event Center” on a 70-acre, EFU zoned parcel. Responding to a complaint, the county informed the Smalleys that this use was not allowed on EFU land, and the Smalleys applied for a determination that the use qualified as “on-site filming” under ORS 215.306(3)(a). They contended that the use was permitted as the production of “documentaries” that rely on the rural qualities of an EFU zone in more than an incidental way. The board of commissioners upheld the planning officials denial of the application, and the Smalleys appealed to LUBA.

LUBA noted that the statute does not define “filming,” “production,” or “documentary.” Looking to the text, context, and legislative history, the board found that while technology changes may have altered the common definition of “filming,” the “production” element suggests that the films be made for distribution to an audience. Since the primary purpose of the event was the event and not the filming, and these videos were made primarily for private retention, the use did not constitute “on-site filming.” The Smalleys also challenged findings of the county suggesting that the facility operated for more than 45 days out of each year and would thus need to be approved as a conditional use subject to a determination of compatibility with farming practices. They contended that the events were held on individual days and not more than 45 events were held in any year. LUBA found this argument unconvincing, noting that the operation as a whole should be considered for that determination, and that all functions of the operation including support activities for the event would carry it over the 45-day limit. AFFIRMED.