Recent Land Use Wins

Mary Kyle McCurdy and Meriel Darzen
Tue, 09/27/2016 - 1:30pm

Partners, Affiliates, and Cooperating Attorneys all see successes

We are thrilled to highlight some significant Land Use Wins from our partners and Affiliates.

First on the docket, Friends of Yamhill County v. Yamhill County (Hintermeyer) – a 1000 Friends Cooperating Attorney Program (CAP) case.

Friends of Yamhill County (FYC), represented by attorney Ian Simpson through the Cooperating Attorney Program (CAP) at 1000 Friends, notched a recent win in the never-ending battle to protect farmland for farm use. 

After the extreme private property rights initiative Measure 37 passed in 2004, many Oregonians were shocked by the excessive scale and impact of the inappropriate rural development demands that followed. In response, voters overwhelmingly passed Measure 49 in 2007, striking a balance that allowed limited rural residential development while still protecting resource land for farm and forest use. In some circumstances, claimants could split off one to three 2-acre residential parcels, leaving the remaining original parcel still big enough to farm.

In this case, Yamhill County first approved an authorized 2-acre residential parcel, leaving a 78-acre farm parcel. Three days later, the county approved a lot-line adjustment that reduced the 78-acre farm parcel to 40 acres. In its September 1 decision, the Land Use Board of Appeals reversed the county’s decision, stating, “The maximum [2-acre] lot size provisions… maximize the suitability of the remainder of the property that contains high-value farm or forest land for farm or forest use.” Read the full decision.  

In the words of FYC President Sid Friedman, “Farmers depend on farmland and Friends of Yamhill County depends on an active CAP Program to help us enforce the land use laws that protect farm and forest land. If they’re routinely ignored, the best laws in the country aren’t worth the paper they’re written on. As this victory shows, we can’t do it with carrots alone- we also need a stick.”

1000 Friends of Oregon expresses its deep appreciation to Ian Simpson, the attorney who handled this case, and to all attorneys who volunteer their time to protect Oregon’s irreplaceable working farm and forest lands. Learn more about our Cooperating Attorney Program today.

Our Affiliates and partners are also winning important victories for land use. Rogue Advocates and CRAG Law Center have teamed up to keep an asphalt plant from running roughshod over residential zones that would have hurt senior citizens and environmental features in the process.

Since 2011, 1000 Friends’ Affiliate Rogue Advocates has challenged multiple applications from Mountain View Paving (MVP) that sought to establish an asphalt batch plant operation in a residential zone as a lawful nonconforming use. They also sought approval for the operation in the floodway of Bear Creek, a tributary to the Rogue River. Several members of Rogue Advocates reside in a senior living community that is located adjacent to the MVP property. In 2011 Rogue Advocates successfully objected to MVP’s application in 2011 requesting verification of nonconforming use on the site as a continuation of a pre-existing aggregate operation. Since then, Rogue Advocates, represented by Crag Law Center, has prevailed in five separate LUBA appeals regarding MVP’s land use applications.  Several of the appeals involved challenges to County approvals that happened behind closed doors without providing any opportunity for a public hearing.

In early 2016, LUBA affirmed a Jackson County hearings officer’s denial of MVP’s application for approval as an alteration to a nonconforming use. The application was denied on the basis that the asphalt batch plant presented adverse impacts to the surrounding community, specifically a risk of fire and explosion. Following LUBA’s decision, MVP stopped its batching operations but continued other industrial scale uses of the residential property and sought approval from the County for an aggregate processing use to crush and stockpile recycled asphalt pavement (RAP). The County approved the ongoing activities as an outright allowed “Mineral and Aggregate Use” on the RR-5 property. 

Rogue Advocates appealed the County’s approval to LUBA in May 2016, arguing that RAP was not a naturally occurring mineral onsite and thus could not be processed pursuant to applicable County Code. On August 29, 2016, LUBA sustained Rogue Advocates’ appeal and reversed Jackson County’s approval. 

Rogue Advocates also has a Clean Air Act lawsuit pending against MVP in U.S. District Court for the District of Medford and has successfully obtained a preliminary injunction requiring MVP to cease operation.

Congratulations to Rogue Advocates and CRAG for the ongoing wins. Keep up the good fight!

Photos: Fall Colors Newberg by Stuart Seeger, Creative CommonsMountain View Paving pollution. Image provided by CRAG