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Land Use: Farm Stand Permit Becomes Lengthy Game of Crazy Eights

September 5, 2012

On July 8, 2011, Stuart Wilson applied for and received a farm stand permit from Washington County.  Five months later (November 8, 2011), a neighbor who had not received notice appealed issuance of the permit to LUBA.  Nine months thereafter (August 8, 2012), LUBA ruled that the County issued the permit illegally.  Keith v. Washington County (LUBA No. 2011-104).  The saga might seem a bit crazy, but it is not uncommon in Oregon and carries lessons for farmers.

Mr. Wilson owns two adjoining parcels – one zoned EFU, the other EFC (Exclusive Forest Conservation).  His permit was to place on the EFU parcel a farm stand that would be accessed by a driveway over the EFC parcel.

LUBA hears appeals only of “land use decisions,” which specifically do not include permits issued under “clear and objective standards.”  The County argued that LUBA lacked jurisdiction under that definition.  Noting that the farm stand permit standards “require interpretation or the exercise of policy or legal judgment,” LUBA disagreed.

Before LUBA, the bone of contention was whether the subject permit required a public process, i.e., notification mailed to neighbors who then may contest its issuance.  The statutes in play are clear and have remained unchanged for many years.  How they work has proven tougher.

A county must submit to public process any application for “discretionary approval of a proposed development of land.” ORS 215.402(4).  In ruling that the subject permit fell within that category, LUBA cited two considerations:

  • Noting that the law prohibits farm stands in the EFC, LUBA said the County was “required to make a fundamental determination regarding the nature of the proposed use and whether that proposed use is allowed in the EFU and EFC zones,”
  • “Determining whether a proposed use is a ‘farm stand,’ i.e. a structure designed and used for the sale of agricultural products grown on the farm operation, including the sale of retail incidental items and ‘fee-based activities’ to promote the sale of  agricultural products sold at the stand, necessarily requires the exercise of discretion.”

This case does not break new ground, but does point up some lessons.  First, the system emphasizes public participation; know your neighbors and understand their concerns before you apply.  Second, do not place substantial reliance on advice from County planners; the system is complex and they have less at stake than do you.

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