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 hereand 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.
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