Posted February 9, 2016
Last week, the Court of Appeals of Oregon considered the
definition of the term “private park” as applied to conditional use permits for
weddings and other events on property zoned for exclusive farm use (EFU).
In Central Oregon
Landwatch v. Deschutes County, the court examined Oregon Revised Statute 215.283(2)(c) which states in part that
“private parks, playgrounds, hunting and fishing preserves and campgrounds” may
be established as nonfarm uses on property zoned for exclusive farm use. The
court concluded that the specific proposed use of the property by the
petitioners was not for a private park, but more accurately, for a commercial
event venue.
The court considered the case of John and Stephanie Shepherd,
owners of a 216-acre parcel in Deschutes County zoned for exclusive farm use within
a wildlife area. The property at issue was a 2.6 acre portion of a parcel that
contained a single-family dwelling, a gazebo, a circular driveway, a grassy
area and a one-acre parking area. (At the time of their application, the
remainder of their larger parcel was not used for agriculture, but for two
acres used to raise poultry). In 2013, the Shepherds submitted an application
to the county to establish a “private park” on their entire 216-acre parcel to
host weddings and other events and it was denied. In 2014, they applied again
to establish a private park, but this time, only on the 2.6-acre portion of the
property. That application emphasized “recreational activities” that would
occur during hosted weddings and events. The county approved the 2014 petition
for the private park.
Per the county’s reasoning, wedding ceremonies are not
recreation, but other activities that occur during wedding receptions
and special events would fall within the definition of “recreation” and under
the “private park” use as intended by the statute. The county concluded that
weddings and other events could occur in a private park as long as they
remained “incidental and subordinate to” any recreational activities.
The environmental organization Central Oregon Landwatch,
petitioned the Land Use Board of Appeals (LUBA) to review the decision, arguing that the Shepherd’s use of
their property did not qualify as a “private park” under the statute.
LUBA reversed the county’s decision and declared that the
determining factor for whether a proposed use qualified as a park or private
park was whether the proposed use was “recreational.”
The county appealed LUBA’s decision and last week, the
Court of Appeals considered whether the Shepherd’s proposed use for their property
fell within the term “private park.”
The court first noted that the statute does not define
“park” or “private park” for purposes of the statute, but lists 27 nonfarm
conditional uses that a county may allow in an EFU zone if the county
determines that the use “will not significantly affect surrounding lands
devoted to farm use.”
The court reasoned that the text of ORS 215.283(2)(c)
indicates that the legislature intended to allow “low-intensity outdoor recreational uses,” for which enjoyment of the
outdoors in an open space or on land in its natural state is a necessary
component. Notably, however, the court stated that “legislative history does
not support an expansive construction of ‘private park’ that would allow a
primarily commercial activity that is not such a park use.”
In this case, the petitioners (the Shepherds) intended to
“host weddings, wedding receptions, family reunions, fundraisers and charity
balls.” The court concluded that the Shepherds did not intend to maintain a
tract of land for natural enjoyment and outdoor recreational use, but rather
sought to rent out their lawn for up to 18 events a year and “for no other
purpose.” Specifically, the Shepherds “did not propose to establish a private
park as a park, but wanted to establish a private park solely for use as a
commercial venue.”
The Court of Appeals affirmed LUBA’s decision, narrowing permitted uses in EFU zones.
This case highlights recent activity on farmland use issues. For more information, visit our library of subject-based "Reading Rooms" with research on agritourism, urban encroachment and other subjects on our website.
(photo courtesy pixabay.com)
