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| Photo by Iowa State University |
Posted December 13, 2013
In Greenfield v.
Multnomah County, 259 Or. App. 687 (2013), the Oregon Court of Appeals
considered state land use laws, specifically “farm stands” as a permitted use
in the Exclusive Farm Use Zone.
The decision has been criticized for creating
additional uncertainty for agritourism activities in Oregon, according to an
article by JD Supra available here
and a Capital Press article available here. The opinion is available here.
Background:
Bella Organics grows organic crops on a farm on Sauvie Island in
Multnomah County. Id. at 692. It held a permit
to operate a farm stand to sell its products, “incidental” retail items, and
“prepared food from the farm stand.” Id.
The permit was later modified to authorize a limited number of fee-based
special events with a “mobile food car[t] or food booths” to “be used to
promote organic produce on the farm.” Id. at 693.
Bella engaged in additional activities and sought approval
from the county for “small-scale gatherings such as birthdays, picnics and
similar activities” and “farm-to plate dinner[s], with a maximum number of 150
guests.” Id. The planning director
approved the change and the decision was appealed. Id. The hearing officer modified the decision,
limiting the amount of guests and number of events per year. Id. Both Bella and Greenfield petitioned for
review of the hearing officer’s decision.
Id. The Land Use Board of
Appeals (LUBA) concluded that farm-to-plate dinners were prohibited because the
rule prohibited banquets and determined that “small-scale gatherings were
allowed under the rule.” Id.
The parties appealed. Id.
Analysis and Holding
The Appeals court analyzed the meaning of ORS 215.283
(1)(o): (1) whether fee-based activities were allowed regardless of whether the
activity takes place inside a structure or not, and if so, (2) whether the
statute excludes activities that cannot be included in a farm stand
structure. Id. at 698.
The court concluded that the promotions clause in ORS
215.283(1)(o) “authorizes promotional activities outside of the farm stand
structure and that the clause is not limited to allowing sales or other
activities inside of a farm stand structure.”
Id. at 703. The prohibition on activities inside the farm
stand structure (for banquets or public gatherings) do not apply to activities
outside the structure. Id. at 704. Farm stands may not be used for promotional
activities. Id. at 705.
The court concluded that the term “structures”
refers to “something built or constructed for temporary or permanent use”
including tents canopies, portable viewing platforms, food carts, and ticket
kiosks and are subject to use and design limitations of the statute. Id.
at 706. Birthday parties and other
small-scale uses primarily to promote the sale of products at the farm stand
are permitted under the statute. Id. at 714. The court also remanded the case to determine
whether food carts meet the requirements for farm stand “structures” under the
statute. Id. at 715.
