- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 07-08-2016
- Case #: 2016-026
- Judge(s)/Court Below: Opinion by Bassham
- Full Text Opinion
Petitioner Stop the Dump Coalition (STDC) appealed a previously remanded county decision that again approved site design and floodplain development review to authorize expansion of an existing landfill on EFU-zoned land. STDC challenged the county’s findings regarding compliance with ORS 215.296(1), and specifically focused on two types of impacts: litter affecting hay farming and nuisance bird issues. Intervenor-petitioner Friends of Yamhill County (FOYC) focused on impacts on fruit farmers, farm stands, and vineyards, as well as cumulative impacts.
Although approval for intervenor-respondent Riverbend Landfill Co. (Riverbend) was extensively conditioned, STDC asserted that the county’s findings were inadequate to show that there would not be nuisance bird damage to grass-seed farming. Condition 22 increased the existing falconry program to six days per week in winter to control nuisance birds. Condition 23 required Riverbend to contract with USDA to provide adaptive bird management services, including widely-accepted practices. Conditions 24 and 25 required that Riverbend install a litter fence between its landfill and the adjacent farm and provide litter patrols, respectively. Despite petitioners’ contentions, LUBA deemed that the conditions of approval demonstrated compliance with ORS 215.296(1), and concluded that the conditions would not cause significant change in accepted farm practices on the adjacent farm. FOYC argued that fruit and nut farmers would have a harder time selling their crops directly. Conditions 26 and 27 required Riverbend to purchase the entire crop each year, adjusted at an annual rate. LUBA held that FOYC failed to show how Conditions 26 and 27 would not ensure compliance under ORS 215.296(1). Nevertheless, LUBA agreed with FOYC that the county decision misconstrued the applicable law by not taking into consideration the cumulative impacts per Von Lubken v. Hood River County, 28 Or LUBA 362 (1994). On remand, LUBA instructed the county to apply the cumulative impacts test. REMANDED.