McPhillips Farmers, Inc. v. Yamhill County

The Land Use Board of Appeals (LUBA) has

exclusive review authority over "land use decision[s]” made

by local governments, state agencies, and special districts.

ORS 197.825(1). This case concerns whether LUBA

properly dismissed its review of a land use compatibility

statement (LUCS) issued by Yamhill County certifying

that a proposed state agency permit to construct a landfill

berm was compatible with county land use laws. Petitioners

sought a determination from LUBA that the county erred

in making the compatibility determination in that LUCS.

However, LUBA concluded that it lacked jurisdiction to

grant petitioners' requested relief because the LUCS was

not a "land use decision” as defined by ORS 197.015(10).

We review LUBA orders to determine, among other

things, whether they are "unlawful in substance.” ORS

197.850(9)(a). On judicial review, petitioners claim that the

LUBA dismissal order was unlawful in substance because

the LUCS was a "land use decision” and LUBA therefore

had review authority. We conclude that LUBA correctly

decided that the LUCS was not a "land use decision” under

ORS 197.015(10)(b)(H), which sets out exclusions from

the definition of that term. Accordingly, we affirm LUBA's

opinion and order.

We take the facts from LUBA's opinion and order

and the local government record and begin with a description

of the county's LUCS certification and its historical context.

Respondent Riverbend Landfill Company, Inc., owns property

near the South Yamhill River in Yamhill County that is

used as a solid waste disposal facility ("landfill”).1 In 1980,

the county approved changes to its comprehensive plan and

zoning map to designate and rezone that property as "Public

Works Safety” (PWS). Those actions were necessary to allow

the development of a "sanitary landfill” on the property, a

permitted use in the PWS zoning district. The comprehensive

plan amendment included an "exceptions statement” that

1 Respondent Riverbend Landfill Company, Inc., was an intervenor-respondent

in the LUBA proceedings. Respondent Yamhill County does not appear on judicial

review. Throughout this opinion, all references to "respondent” refer to only

Riverbend Landfill Company, Inc.

Cite as 256 Or App 402 (2013) 405

justified the failure to apply the requirements of statewide

planning Goals 3 (agricultural lands) and 4 (forest lands) to

the plan-change for the proposed landfill facility. See OAR

660-015-0000(3), (4). The exceptions statement justified a

proposed nonresource use of the property for a landfill based

on the need for, and lack of alternatives to, the proposed

facility, as well as the consequences and compatibility of its

operations.2 The proposed use was described as a "landfill”

that "will include a berm to prevent leaching of the Yamhill

River.” At the same time, the county issued a conditional use

permit for the deposit of fill on the part of the property located

in the river's floodplain. That permit imposed conditions

upon the engineering and construction of the proposed

landfill. Respondent obtained a solid waste disposal permit

for the facility from the Department of Environmental

Quality (DEQ) in 1981 and, shortly afterward, constructed

the berm and initial disposal cells of the landfill.

In December 1982, after the landfill began

operations, the county adopted a new Yamhill County

Zoning Ordinance (YCZO) that included site design

review regulations (provisions for review and approval

of preliminary and final site development plans). YCZO

1101.01 provided that the "site design review process is

intended to guide future growth and development” and that

the process applied "to all development in * * * [the] Public

Facilities Districts,” including the PWS district.

2 Specifically, the findings pertained to the exceptions criteria in Goal 2, Part

II that

"[a] local government may adopt an exception to a goal when:

"* * * * *

"(c) The following standards are met:

"(1) Reasons justify why the state policy embodied in the applicable goals

should not apply;

"(2) Areas which do not require a new exception cannot reasonably

accommodate the use;

"(3) The long-term environmental, economic, social and energy

consequences resulting from the use of the proposed site with measures

designed to reduce adverse impacts are not significantly more adverse than

would typically result from the same proposal being located in areas requiring

a goal exception other than the proposed site; and

"(4) The proposed uses are compatible with other adjacent uses or will be

so rendered through measures designed to reduce adverse impacts.”

406 McPhillips Farm, Inc. v. Yamhill County

In 1990, respondent sought DEQ approval to

renew the 1981 solid waste disposal permit. As part of the

permit renewal, respondent proposed to expand the landfill

area on the rezoned property to include new disposal cells

and to construct a new leachate holding lagoon as part of

the stormwater management of the landfill. DEQ asked

the county for a LUCS—a determination of whether the

uses and activities allowed by the proposed permit were

compatible with the county's comprehensive land use plan

and regulations.3

In 1992, the county board of commissioners adopted

an order authorizing a LUCS for the permit renewal.

The order determined that the landfill use, including its

expansion, was authorized by the earlier plan change and

rezoning and did not need further land use approvals from

the county. However, the order concluded that the leachate

holding facility was an accessory use to the landfill and

required site design review as a new facility. The order

provided that

"[n]ew required accessory uses such as a new leachate

storage lagoon or new holding tanks, would be permitted

uses (as accessory to a sanitary landfill). However, because

those uses would be facilities, establishment of the uses

would be subject to site design review under the 1982

ordinance. The County draws a distinction between the

primary landfill cell development which was contemplated

3 Under ORS 197.180(1)(a) and (b), each state agency, including DEQ, is

required to take actions "that are authorized by law with respect to programs

affecting land use” in "compliance with the [statewide planning] goals, rules

implementing the goals and rules implementing this section” and in "a manner

compatible with acknowledged comprehensive plans and land use regulations.”

The Land Conservation and Development Commission (LCDC), in turn, has

adopted rules requiring that local governments decide whether proposed state

actions are compatible with local land use plans and regulations. OAR ch 660,

div 31. Under OAR 660-031-0035(2), which is applicable to the type of permit at

issue in this case,

"[s]tate agencies may rely on the affected local government's determination

of consistency with the Statewide Planning Goals and compatibility with the

Acknowledged Comprehensive Plan when the local government makes written

findings demonstrating compliance with the goals or compatibility with the

acknowledged plan in accordance with OAR 660-031-0026(2)(b)(B).”

A local government land use compatibility statement is not required for a

renewal of an existing permit "except when the proposed permit would allow a

substantial modification or intensification of the permitted activity.” OAR 660-031-

0040.

Cite as 256 Or App 402 (2013) 407

in the original application and the development of modified

or new facilities proposed or required as accessory uses to

landfill operations.

"The continued development of solid waste disposal

cells contemplated in the original approval of the rezone

and comprehensive plan amendment remains an outright

permitted use. No land use approvals made by the County

imposed restrictions on the lateral or vertical development

of the Landfill within the PWS zone. Issues relative to the

engineering or environmental safety or appropriateness of

landfill design and operation were left to be addressed by

DEQ in its review of the Landfill's operating permit.”

Thus, the board concluded, and the LUCS provided, that

the permit renewal was "compatible with Yamhill County's

comprehensive plan and land use regulations, subject to

site design review requirements for new facilities” for the

leachate lagoon.

In 2012, respondent applied to DEQ for a modification

of that solid waste disposal permit to allow replacement of

the earthen berm along the western boundary of the landfill

with a "mechanically stabilized earthen” (MSE) berm, as well

as construction or modification of new facilities (a recycling

facility, scales, a maintenance facility, and leachate storage

tanks). The proposed MSE berm is a reinforced berm that is

approximately 40 feet in height and taller than the existing

berm so that a greater amount of waste can be contained in

the adjacent disposal cells.

DEQ, in turn, asked the county for a LUCS for those

changes. The county issued a LUCS for the MSE berm,

concluding in its findings that the "MSE berm is a technical

change only to the manner in which [respondent] constructs

the perimeter berm of the landfill” and that it "continues

the same use that was authorized in 1980.”4 Petitioners

4 More particularly, the county determined that,

"[i]n its present application to DEQ, [respondent] is seeking only to modify

its landfill operations—specifically, the manner in which it constructs the

perimeter berm of the landfill—and is not seeking to add additional ancillary

facilities as part of that application. The proposal is therefore wholly consistent

with the existing land use authorization for landfill disposal within the PWS

Zone at this site. Separately, [respondent] has submitted a [site design review]

application for approval of new ancillary facilities relating to its entrance

facilities. Consistent with [respondent's] prior approvals, such an application

408 McPhillips Farm, Inc. v. Yamhill County

disagreed with the county's determination and appealed the

order to LUBA.

Before LUBA, respondent moved to dismiss the

appeal, contending that the LUCS decision fell within one

or more of the exclusions from the definition of "land use

decision” at ORS 197.015(10) and, accordingly, fell outside

of LUBA's jurisdictional authority under ORS 197.825(1).

Respondent relied upon ORS 197.015(10)(b)(H), which

provides that "land use decision” does not include a local

government decision

"[t]hat a proposed state agency action subject to

ORS 197.180(1) is compatible with the acknowledged

comprehensive plan and land use regulations implementing

the plan, if:

"(i) The local government has already made a land use

decision authorizing a use or activity that encompasses the

proposed state agency action;

"(ii) The use or activity that would be authorized,

funded or undertaken by the proposed state agency

action is allowed without review under the acknowledged

comprehensive plan and land use regulations implementing

the plan; or

"(iii) The use or activity that would be authorized,

funded or undertaken by the proposed state agency action

requires a future land use review under the acknowledged

comprehensive plan and land use regulations implementing

the plan[.]”

(Emphasis added.) Thus, the effect of ORS 197.015(10)

and ORS 197.825(1) is to allow LUBA the authority

to review the merits of a LUCS determination that a

proposed state action is not compatible with local land use

laws and to preclude such review of a LUCS determination

of existing or potential compatibility, as described in ORS

197.015(10)(b)(H)(i), (ii).

LUBA concluded that the challenged decision was

not a "land use decision” under ORS 197.015(10)(b)(H)(i).

The board reasoned that the county authorized the landfill

is necessary because those facilities were not contemplated as part of the

original site approval in 1980.”

Cite as 256 Or App 402 (2013) 409

in 1980 through the adoption of the Goal 2 exception in

the comprehensive plan. According to LUBA, that decision

authorized a use that " 'encompasses' construction of future

disposal cells” for the landfill, and the construction of a higher

berm for the disposal cells fits within that authorization.

In concluding that the LUCS was properly and

completely based on a past land use decision (so that ORS

197.015(10)(b)(H)(i) applies), LUBA also decided that the

county was correct in not basing the compatibility decision

on the need for a future land use review, i.e., that the MSE

berm required site design review. LUBA noted:

"We understand petitioners to contend that the proposed

landfill expansion constitutes 'development' and YCZO

1101 plainly requires that 'all' development in the county's

Public Facilities zones undergo site design review, with

no exceptions. If so, we understand petitioners to argue,

additional authorizations are necessary, and the exception

at ORS 197.015(10)(b)(H)(i) does not apply.

"However, YCZO 1101 and the YCZO in general are

silent regarding whether site design review provisions

apply to an otherwise outright permitted use, the expansion

of which was authorized in an exception and comprehensive

plan amendment and zone change decision that pre-dates

adoption of those design review standards. When faced with

that precise question in 1992, the board of commissioners

chose not to require site design review for such an

expansion. That choice flows naturally, if not inevitably,

from the commissioners' conclusion that the 1980 decision

authorized the sequential expansion of the landfill via

continued construction of new disposal cells, including new

berms, within the area zoned PWS. Because petitioners cite

nothing in YCZO 1101 or elsewhere that purports to compel

application of site design review provisions to development

that, the county has determined, was authorized in the

1980 decision, petitioners have not demonstrated that

further authorization is needed and that the exception at

ORS 197.015(10)(b)(H)(i) is insufficient or does not apply to

exclude the challenged decision from LUBA's jurisdiction.”

(Footnote omitted.)

On review, petitioners claim that LUBA erred in

dismissing the proceeding under ORS 197.015(10)(b)(H)(i).

410 McPhillips Farm, Inc. v. Yamhill County

They argue that the 1980 plan and zoning changes, including

the goals exception, did not "authoriz[e] a use or activity that

encompasses” the proposed MSE berm, that the county erred

in concluding otherwise, and that LUBA erred in affirming

the county's analysis in its LUCS and, accordingly, in

dismissing the proceeding under ORS 197.015(10)(b)(H)(i).

Specifically, petitioners contend that the 1980 plan and

zoning changes authorized only the landfill described in the

application for those changes and the exception findings and

not the more intense and physically larger use facilitated

by the MSE berm. In addition, petitioners argue that the

1980 decisions did not completely authorize any new facility

that is required to obtain a site design review permit from

the county before its construction or use and that the MSE

berm is such a facility. Respondent counters that berms were

contemplated and approved as part of, or "encompass[ed]” by,

the 1980 land use decisions as necessary components of the

approved landfill and that the county correctly interpreted

its site design review ordinance to not require a permit for

that type of development.

As noted, we conclude that LUBA did not err

in determining that it lacked jurisdiction, because the

county's LUCS is not a "land use decision” under ORS

197.015(10)(b)(H)(i). That is so because (1) the county's

1980 land use decisions specifically contemplated and

explicitly authorized a landfill with berms, and the MSE

berm is included or encompassed within the scope of

that authorization, and (2) the 1992 interpretation of the

county's site design review ordinance by its board to not

require review of approved components of an expressly

permitted land use was a reasonable construction of its

site design review ordinance, so that (3) further land use

review of the landfill use is not required by the county's land

use regulations and the existing authorization is sufficient

to qualify as a compatibility determination under ORS

197.015(10)(b)(H)(i). We examine each of those conclusions

in turn.

Petitioners first argue that the 1980 county actions

(the plan change and rezoning) were insufficient to "authoriz[e]

a use or activity that encompasses” the proposed MSE berm

under ORS 197.015(10)(b)(H)(i). Petitioners reason that

Cite as 256 Or App 402 (2013) 411

those actions did not explicitly permit a particular type of

landfill, instead allowing only generic plan and zoning map

changes to "Public Works Safety” in order to allow a use as

a "sanitary landfill.” Some particulars of the landfill design,

however, were described in the application for the plan/zone

change, as well as in the master plan approved as part of

the conditional use floodplain permit.5 And a specific form of

landfill—one that was described as including "construction

techniques, as part of the proposal, [that] include a berm

to prevent leaching of the Yamhill River”—was examined

as part of the adoption of the exceptions findings.6 The

legal effect of the comprehensive plan change and adopted

exception findings, the zoning district amendment, and

the conditional use floodplain permit was to authorize

construction and operation of a landfill bounded by earthern

berms and located on a 229-acre property zoned for that use,

which use would expand within those boundaries over time.

We conclude that that authorization was sufficiently

specific to "encompass” the western berm for the landfill

and thereby exempt local review of the proposed state

action from the definition of "land use decision” under ORS

197.015(10)(b)(H)(i).7 The legal effect of the amendments to

5 The county approved the conditional use floodplain permit through adoption

of Order No. 80-262 by the board of county commissioners on May 7, 1980, the

same day as the public hearing on the plan changes. The order allowed the deposit

of fill on the floodplain of the South Yamhill River. The adopted findings describe

a preliminary plan and a requirement of future approval of a "final master plan”

for the development by the Army Corps of Engineers and the county planning

commission. The described master plan was specific enough to provide detail on a

proposed dike, roadways within the landfill area, the location of access to Highway

18, the area of monitoring wells, and water quality control measures.

6 The 1980 plan exception was not implemented by restrictive zoning to limit

the uses of the property to those justified by the exception. Subsequent to the

county action, LCDC adopted OAR 660-004-0018(4)(a), which requires that, when

a reasons exception is adopted, the "plan and zone designations must limit the

uses, density, public facilities and services, and activities to only those that are

justified in the exception.”

7 As noted, that statutory subsection is the first of three exemptions from the

definition of "land use decision” in ORS 197.015(10)(b)(H). The exemptions, and

other statutory changes to the state agency coordination processes required by

ORS chapter 197, were enacted as House Bill (HB) 2230 in 2009. Or Laws 2009,

ch 606, § 2. HB 2230 amended ORS 197.015(10)(b), as we have noted, to exclude

from LUBA review authority a local government compatibility determination

made because the state agency action (1) was authorized in a prior land use

decision, (2) did not require local government land use review, or (3) is required

to undergo future land use review. Analogously, ORS 197.015(10)(e) was amended

412 McPhillips Farm, Inc. v. Yamhill County

ORS 197.015(10) was to exempt from LUBA jurisdiction a

local government or state agency compatibility decision that

is based on either a past local government "land use decision

authorizing [the] use or activity” or on particular allowances

in the locality's land use regulations. Whether the county's

LUCS determination was exempt from LUBA review under

ORS 197.015(10)(b)(H)(i) depends upon whether the LUCS

was based (1) on a past "land use decision,” (2) that authorized

a "use or activity,” (3) which use or activity "encompass[ed]”

the proposed MSE berm. We give "encompass” its ordinary

meaning—that is, to "bring within” or to "include.” Webster's

Third New Int'l Dictionary 747 (unabridged ed 2002); see

PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859

P2d 1143 (1993) ("[W]ords of common usage typically should

be given their plain, natural, and ordinary meaning.”).

Here, the county made previous "land use decision[s]”

authorizing a particular landfill bounded by earthen berms

on land that was zoned for that use. A "land use decision” is a

"final decision or determination” by a county that "concerns

the * * * application” of the goals, a comprehensive plan

provision, or a land use regulation. ORS 197.015(10)(a).

The particular determinations that were made earlier by

the county were the plan and zoning changes involving the

application of the goals and land use regulations, including

the exceptions findings and the conditional use permit,

authorizing fill on floodplain property, that was based on

county land use regulations. Of those land use decisions, the

exceptions findings and conditional use permit authorized or

allowed a particular "use or activity”—a landfill at a certain

location with certain use characteristics to evolve over time.

That approved "use” included "a berm to prevent leaching of

the Yamhill River.” The different construction and modified

to exclude from the definition of "land use decision” those state agency land use

decisions justified on the basis of a previous local government land use decision or

otherwise allowed by general land use regulations. ORS 197.015(10)(e)(C). LCDC

was delegated rule-making authority pursuant to ORS 197.180(3) to specify the

sequence of related state and local land use decision-making. Or Laws 2009, ch

606, § 3. One of the stated purposes of those statutory changes was to "ensure that

local land use decisions authorizing a use generally precede state agency decisions

on permits for the use or for aspects of the use.” Or Laws 2009, ch 606, § 1(4)(a).

At the same time, the legislature intended to limit "multiple opportunities to

appeal the same land use decision.” Staff Measure Summary, Senate Committee

on Environment and Natural Resources, HB 2230, June 1, 2009.

Cite as 256 Or App 402 (2013) 413

location of the proposed berm did not change the category

of that previously allowed use—a perimeter earthen berm

associated with continued operation of the landfill. That

type of use is the same type of "use or activity” authorized

by the proposed DEQ permit. As noted by the county in its

findings, the "MSE berm is a technical change only to the

manner in which [respondent] constructs the perimeter

berm of the landfill. It therefore continues the same use that

was authorized in 1980, and it continues that use on the

same property, all of which is zoned PWS.” Thus, the MSE

berm use is encompassed or included within the previous

approval of an earthern berm for the landfill. Accordingly,

LUBA did not err in concluding that it lacked jurisdiction to

review the LUCS under ORS 197.015(10)(b)(H)(i).

LUBA also did not err in concluding that the MSE

berm use had been fully authorized and would not need

further local land use approvals, specifically a site design

review permit, so that the board's lack of jurisdiction

appropriately rested on ORS 197.015(10)(b)(H)(i).8 The

LUCS determination was made by a county planning

official but was based upon the 1992 order by the board of

county commissioners on an earlier LUCS for renewal of the

DEQ solid waste permit. In the 1992 order, the county board

concluded that the 1982 site design review ordinance did

not require a permit for "primary landfill cell development,”

including the "lateral or vertical development of the

Landfill,” i.e., the "size or height of the Landfill.” According

to the county board, site design review was required only for

"modified or new facilities proposed or required as accessory

uses to landfill operations.”

The 1992 determination applied the site design

review ordinance to the new land uses or activities proposed

8 LUBA noted that, if site design review of the MSE berm were required, then

it would lack jurisdiction under ORS 197.015(10)(b)(H)(iii) (no "land use decision”

where the locality determines that the state agency use or activity "requires a

future land use review under * * * land use regulations”). That conclusion assumes

site design review is a "use review” for purposes of ORS 197.015(10)(b)(H)(iii), an

assumption that is debatable. ORS 197.015(12)(a)(B) defines a "limited land use

decision” to include a decision that regulates "the physical characteristics of a use

permitted outright, including but not limited to site review and design review.”

Limited land use decisions are subject to approval processes under ORS 197.195

that differ from the procedures required to make a land use decision under ORS

197.763.

414 McPhillips Farm, Inc. v. Yamhill County

in the DEQ permit renewal. In effect, the county interpreted

its site design review ordinance to apply to future proposed

development and not to land uses or activities authorized

as part of a previous land use decision that approved a

development. YCZO 1101.01 states that the "site design

review process is intended to guide future growth and

development,” providing a "framework to review commercial

and industrial development proposals” in order to "resolve

potential conflicts that may arise between proposed

developments and adjacent uses.” However, that same code

section provides that it "shall apply to all development”

in particular zoning districts. The county interpreted

"all development” to mean all land uses or activities not

approved earlier.

The county board based its construction of the site

design review ordinance on a November 1, 1991, opinion by

its county counsel. That opinion distinguished between the

lack of need for site design review for landfill "development

which was contemplated in the original application (such

as additional landfill cells)” as opposed to required site

design review for "development of substantial new facilities

proposed or required as accessory uses to landfill operations.”

The county board's interpretation of YCZO 1101.01 to

apply site design review processes to all new land uses and

activities not approved earlier is a reasonable reconciliation

of the ordinance provisions that countenance site design

review processes for "future * * * development” and also "all

development.”9 We agree with LUBA's conclusion, noted

earlier, that,

"[b]ecause petitioners cite nothing in YCZO 1101 or

elsewhere that purports to compel application of the

site design review provisions to development that, the

county has determined, was authorized in the 1980

decision, petitioners have not demonstrated that further

9 Were we directly reviewing the county board interpretation of YCZO

1101.01, we would be obliged under ORS 197.829 to affirm the interpretation as

plausible and "not inconsistent with the 'express language' of the provisions at

issue or the purposes or policies underpinning them.” Siporen v. City of Medford,

349 Or 247, 266, 243 P3d 776 (2010) (requiring LUBA and judicial affirmance of a

local governing body interpretation of its land use regulations under ORS 197.829

where that interpretation is plausible and not inconsistent with the text of the

regulation or its underlying purposes or policies).

Cite as 256 Or App 402 (2013) 415

authorization is needed and that the exception at ORS

197.015(10)(b)(H)(i) is insufficient or does not apply to

exclude the challenged decision from LUBA's jurisdiction.”

We therefore conclude that the review proceeding

was properly dismissed by LUBA under ORS

197.015(10)(b)(H)(i).

Affirmed.