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Oral Argument 2025-002 Stadeli et al v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Y5i6DtskLY8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Mhm. >> Good morning. >> This is the time set for oral argument in LUBA number 2025-002 Stadeli versus Marion County. Uh I'm Board Chair Smudja. Board Member Basham is also present. Board Member Wilson is not present and will not be participating in the final decision. Please keep your audio muted when you're not speaking. That will help with the recording. We are recording and live streaming this argument. I'm not aware of any pending motions or matters in this appeals or anything the parties need to bring to our attention? >> Not from the petitioner. >> Okay. Not from the county. Okay. All right, members, the total of 30 minutes. Petitioners, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yes, I'd like to reserve 4 minutes. >> All right, I will keep track of time on my end and ask that you also keep track of your time and just note that the clock that's on the screen is just for reference. It is not keeping exact time. Uh respondent and intervener, you have a total of 15 minutes and may uh and share that time. Have you decided how you'll share that time? >> Uh yes, the uh county has graciously allowed uh the applicant to take the 15 minutes. Um I think the I can't see if if the county's uh attorney is on >> We can. We can see Marion County uh attorney Mendorf is on our screen. >> Okay, there he is right there. Okay. >> Okay, thank you. Um so, with those preliminaries, petitioner, please state your name for the record and begin. >> Good morning and may it please the board. Mike Keen on behalf of petitioners Dan and Jennifer Stadley, who are joining me today. And appreciate your time. This case involves a non-farm dwelling that was approved on a triangular 2.17 acre parcel surrounded on all three sides by active farming operations in an EFU zone. The decision also approved for reduced setbacks of 50 feet on all three sides down from the required 200 feet. And this is not the first time this uh matter and this property and a non-farm dwelling has come before an appeal on a land use hearing. As noted, when the county denied the non-farm dwelling application back in 1991, this area is actively farmed. It is commercial farming uh operations that have been ongoing. The area has remained stable and devoted to agriculture consistent with goal three, which provides for the maintenance and preservation of agricultural lands as stated in the goal for farm use, consistent with existing and future needs for agricultural products, forest, and open space. This area has remained stable since that time because the EFU zone's purpose and intent and the Marion County Code's strict provisions on non-farm dwellings have been observed up until this position and this decision. Uh the as noted in the 1991 decision, but also this decision, it is one non-farm dwelling, but there is a cumulative effect if these are allowed in contravention of the code. This will not remain a stable agricultural um location and area if these dwellings are permitted drip by drip over time. This is to prevent and pre- uh preserve future needs as well as the current EFU zone and farm purposes. The decision at the county level misconstrued the law and which is grounds for outright reversal, while also failing to make required findings, reaching conclusions not supported by substantial evidence, and violating required procedures, all of which are require reversal, remand, and a rehearing. For the grounds for reversal, the hearing officer, which was affirmed by the Board of County Commissioners, misconstrued the in harmony requirement. And to our knowledge, in harmony only appears twice in the Marion County Code. There's no case law that we could find on the non-farm dwelling provision. However, this board and Brandt v. Marion County considered it in a uh industrial commercial zone, where this board interpreted the in harmony standard in a situation with similar lack of context, but again, a different code. Um the board said that in those circumstances, the correct test is whether a proposed use is similar to and produces no significant impacts different from those for produced by use permitted outright in the IC zone. Again, this is EFU zone rather than IC, but that that phrase is key. Similar to, not just whether or not it produces significant impacts, but whether the use is similar to. A non-farm dwelling, especially on this parcel with only a 50-ft setback, which brings um just regular residential home within 50 ft of ongoing egg operations, cannot be in harmony with the surrounding area. The hearing officer also based the non-farm dwelling as um and approving it as being unlikely to cause disharmony, which is not the standard. That's um that phrase, unlikely to cause disharmony, inherently acknowledges that there will be conflict. It cannot be in harmony. That was also recognized by the 1991 decision, and I realize the '91 decision is does not um uh result in binding precedent, but the conclusions and the analysis holds in this case. And I think it is worth uh detailed review. Respondents try to reframe all of this by saying the board should accept whatever decision was made if it was plausible. Again, that is not the standard. That is uh subject um that this case is subject to. The in harmony standard is also unconstitutionally vague as it does not and cannot provide reasonably clear and objective standards, and it prevents the state entities from knowing what uh what the standard really is even on appeal. Um I think you'll uh from review of the record, uh the hearing in front of the hearing officer, uh the hearing officer's decision, the '91 decision, um and the parties' respective arguments, no one can quite point to what in harmony means. So, how can anyone even challenge it? How can you comply with it? It means whatever someone says it means. And that is the definition of vague without clear and objective standards and subject to arbitrary decisions that um simply um how do you comply with it? The decision on the reduced setback also misapplies the law and can't be satisfied. They can't meet the which is likely why the findings were frankly incomplete, which I'll get to in a minute. Um the adverse impacts cannot be minimized here. The setback was reduced to 50 ft on all three sides, which brings a residential non-farm dwelling within 50 ft of ongoing egg agricultural um operations. As you'll see from the record, there was evidence of the neighbors uh burning their grass fields right up to the property line. Again, that places this dwelling within 50 ft. There is agricultural spray. Again, I'll get into that in just a minute. But those are the grounds for outright reversal based on the record for us. For a reversal and a remand for a new hearing, the decision on the non-farm dwelling being in harmony was not supported by substantial evidence. In Futornick versus Yamhill County, the this board reviewed case law for approving non-farm dwellings and stated it required the approach to be accompanied by detailed findings and explaining what each factor contributes to the conclusion and that the prerequisites um to be met are stringent, and I believe stringent was the uh direct quote. Here, the hearing also relied on conclusory statements from the applicant, didn't make required findings, and ignored voluminous evidence from the petitioners as well as neighbors. The decision on the reduced setback also just outright failed to make the required findings and cannot be sub- sort sub- excuse me, supported by substantial evidence as a result. The hearing officer made no finding that the site will have the least impact on nearby egg operations, that the site ensured adverse impacts on farming practice would be minimized, and did not state that the amount of agricultural lands used to site access roads, service corridors, the dwelling and structures are minimized. There was a reference to a potential satisfaction that the risk of wildfire will be minimized simply by stating that the parcel is part of the Silverton Suburban Fire District and is not located in a forest, but that doesn't meet the requirements here. It is cited next to ongoing uh routine um summer uh post-harvest burns. It is um surrounded on all sides by either grass seed or ongoing orchard operations. Here, the hearing officer relied simply on the conclusory statement that the dwelling complied with the code's intent. The petitioners were also denied due process when the Board of County Commissioners considered and then denied the appeal, as well as when the hearing officer used the wrong standard of review. The Board of County Commissioners felt it could not accept the appeal because of the timing of the hearing officer's uh decision, which took almost 11 months. Uh when you look at the um the minutes from the board's hearing, as well as uh listen to the audio that's in the record, the board clearly felt it could not take up the appeal without creating additional procedural issues. And in fact, uh there was statements saying that they were relying on the board to hear the appeal on this board to heal the hear the appeal on the merits to to remedy that. The hearing officer also apparently used a preponderance of evidence standard, again accepted by the Board of County Commissioners. Uh while respondents argue that there's uh basically no harm, no foul on this, uh there is very uh uh, harm and foul in that the petitioners lost. They don't know on what standard they lost or on what standard should have been appealed to the Board of County Commissioners. Because it was, uh, the hearing officer's decision was just outright accepted across the board. Um, the preponderance of evidence of evidence standard is not the standard of review with substantial evidence as detailed through numerous, um, Luba opinions. Um, Finally, uh, the decisions that farming practices are almost, uh, second to last here. Decision that farming practices were not adversely impacted is not supported by substantial evidence as the hearing, uh, contains factual errors. There was substantial testimony from the Steadleys as well as multiple neighbors that their farming practices would be adversely impacted without any, uh, corresponding rebuttal evidence. Uh, the respondents focus on whether or not the Steadleys used a particular pesticide and future use, uh, cannot be an adverse impact. However, Year King v. Clackamas, um, that decision, the board stated that the petitioners future use was not speculative because petitioner was able to identify the farming practices that will be employed on the property and was developing plans for use and the use was therefore properly reviewable. Even if the, uh, our argument was limited to the, uh, aerial exclusion zone and the use of that one pesticide, there was clear evidence of adverse impact. Finally, the decision that the groundwater is not adversely impacted is not supported by substantial evidence. Essentially, the previous attorney argued that there was a good well on the property and that was without actually providing evidence. The decision of the hearing officer relied on the argu- this argument and the fact that the property was not located in a sensitive groundwater overlay. But again, that's not the standard. The standard is whether or not there is a negative impact of groundwater. And the only evidence at the hearing there was that there are groundwaters in this area with the neighbors testifying that they've had to deep deepen their wells in recent years. I believe one of them had to double the the depth. Um again, this these issues on groundwater uh were noted in the 1991 decision. And it's noted that this area is uh has a fragile groundwater system, even if it's not in a sensitive groundwater overlay. So, with that, I'm right at 11 minutes, and I will reserve the rest of my time for rebuttal unless there's any questions. >> Just a quickie, Mr. Cain. Uh you mentioned that uh plausibility is not the standard of review we would apply to uh review any of the hearings officer's interpretations. What is the the correct standard of review and why? >> Well, plausibility is a part of it, but the the issue is um whether or not uh It's ordinary um construction of ordinances. So, um first of all, I couldn't find a Luba case that used plausible as the standard, but a review of um the case cited by uh respondent supporting the Medford um Whether an interpretation is plausible according to that case for purpose of review is simply whether it's in the range of conclusions that a rational person could reach when applying the the Oregon standards of statutory construction of the ordinance, which incorporates all the things. Does it comply with the terms uh express provisions of the of the code or the statute? And then uh you look beyond that on plain meaning and regular statutory interpretation. Just saying that it's plausible result doesn't give it cart blanche, you know, just doesn't give it blanket approval and you have to approve whatever the hearing officer says. >> Okay, thank you. >> All right, and you'll have about uh 3 minutes for your rebuttal. So, we will turn to uh intervener respondent for >> Uh good morning, may it please board. My name's Andrew Stamp, uh here for the applicant, uh intervener respondent. So, I probably won't get through all six assignments of error, but I wanted to focus a little bit on the first assignment of error. Um I found that the the assignment of error was presented in a confusing way. It was written as a substantial evidence argument, but it actually had, you know, an undeveloped fi- uh inadequacy of findings uh challenge, and a lot of it really boiled down to uh an interpretational question, uh which is why the Siporin deference was mentioned in my brief, cuz this is a local code provision. Um So, Siporin deference would apply because the Board of Commissioners made the final decision. Um >> Did the Board of Commissioners adopt the underlying decision as their own in order for Siporin to apply? >> I believe so. They they denied the appeal. Um I I I would think that that would apply in that case where they deny the appeal. >> Okay. >> Um In any event, I I don't think the standard review is whether it was Siporin deference or not. I don't think it's critical here. Um What is important is uh a non-farm the way that the petitioner uh interprets uh the standard of in harmony with the purpose and intent of the zone, they they said basically that we have to support ag and expand its practice. But, there's not there's no non-farm dwelling that would do that. You know, non-farmed dwellings were added into the statute um not not to support agricultural. It was It was intended as an escape valve, as Hector McPherson famously said back in 1973, "It's a little escape valve whereby we can allow a small amount of single-family residential dwellings within an exclusive farm use zone." And the test is rather stringent, but it's it's focused on picking properties that really have no ability to be farmed, number one, and unsuitability for farm use, and then it has uh impact analysis. You know, the farm impact test is applied and compatibility analysis is complied. And then there's the materially alter the stability of the land use pattern test, which is really saying, "Hey, if there's a bunch of these lands that that are uh difficult to farm, that we won't allow any of them to have non-farmed dwellings because, you know, if you had too many of them, that would create a land use pattern that would change what is there now." So, what they're looking for is the unique property that is not farmable, but where everything else around it's farmable, and where the applicant shows that having one more dwelling at that location will will not have significant impacts on uh neighboring farm operations. And the hearings officer, you know, said that the purpose of the zone was to promote and protect agriculture commercial agricultural, and then applied essentially a negative uh version of that to to non-farm dwellings and said, "Y- uh a non-farm dwelling achieves those purposes if if it does not cause disharmony." And I don't see anything wrong with that because both the farm impacts test and the materially alter the stability of the land use pattern test are stated in the negative as well. They're they're saying you won't have significant impacts on on neighboring farm operations. You won't alter the material stability of the land use pattern. So, I don't see anything from a interpretational standpoint that would uh it is reversible here. Um I you know, I think that was fine. Now, I don't think there's any meaningful difference between the way saying something's in harmony and it's unlikely to cause disharmony. Um So, and I think the applicant turning the substantial evidence does not at apply the correct test. He repeatedly refers to the weight of the evidence being in their favor. Well, that's begging LUB to re-weigh the evidence. And obviously, that's not within LUB's purview to do so. Uh So, I I think I I think that's enough said on the first assignment error. Turning to the second assignment error, the special setback. The the county has a 200-ft setback, which obviously we can't meet cuz our property is not even 400-ft wide. So, um So, then they have an alternative that says, "Well, if you can't meet the setback, there's an adjustment process." And they essentially borrowed that from state law. Uh so, you know, some provisions in the uh uh forestry section of of the administrative rules that are sighting standards. And I think what's critical here about the second assignment of errors that petitioner views them as approval standards. In other words, go no-go standards. And does not consider them to be sighting standards. And the test is really about where should we put the dwelling, not if we should put the dwelling there or not. And and that's a key distinction. All of the uh terms in the code talk about uh least impact on nearby farming and forest operations and that it'll minimize impacts. Well, you know, I guess my question is you know, it it if if we can't put the dwelling based on that standard of minimization, if we can't put it in the dead center of the property, then where would we put it? You know, because the closer you get to any of the three sides, you're you're putting it closer to farm zoning, which would in theory increase impacts. Um here there was no evidence in the record that any one type of farming would have would be more sensitive to a dwelling than others. So, I don't think it was very difficult for the hearings officer to say, "Okay, well, all things being equal, put it in the center of the property." Um so, I think that was you know, I think normally that criteria, if it wasn't a a triangle, you know, if it was a weird shaped property, you might have to do an alternatives analysis to say, "Well, compare various points on the property and say, you know, what are the advantages and disadvantages of putting it in various places?" But here, where it's a triangle, very small parcel, you got surrounded on all three sides by farming activities, it it under the under that sighting standard, it made sense to put it in the middle. Uh I'm going to skip over the third and fourth uh assignments of error because I think I'm >> leave the Before we leave the assignment of error, the petitioner argues that you there's no findings actually addressing the three criteria set back for that address the setback standard. Do you think the findings actually address those criteria? >> No, I don't I don't think they go through those uh you know, the the the criteria, but I don't think those criteria would lead to any different result here. Uh, you know, the there's there's only one place to put the house under any of those criteria. And that's on the dead center of the property. But yeah, I agree the findings could have been better. >> Okay. >> Um, I'm going to turn to the fifth assignment error cuz I think the third and fourth assignments error don't don't amount to anything. Uh, I mean, feel free to tell me if you think otherwise, but we can talk about it, but other than that, I think I'm just going to skip over them. Uh, with the fifth assignment error, this is really about the uh, farm impact test. And we cited Dirking versus Clackamas County. And uh, Mr. Dirking's a client of mine, so it was kind of fun to read this case. I didn't represent him on this particular case, but in that case the the the Luba said they generally agree with the hearings officer's reasoning that future impacts farm practices aren't really considered. And he says, "Not only would that expansive interpretation compel an applicant to in effect prove a negative for something that does not yet exist, but that grammatical context of the language makes it fairly plain, at least to the hearings officer, that the phrase farm practices on surrounding land devoted farm use and cost of accepted farming practices uh, necessarily envisions a present tense assessment of actual implemented farm practices." Now, it in in Dirking Mr. in Mr. Dirking in that case was setting up his farm, which was called the Oregon Lavender Farm, and he hadn't quite got it set up yet, but he was in the process of doing it. So, he said, "Hey guys, I actually have plans, you know, concrete plans to build this lavender farm." And in that case Luba said, you know, it's not just hypothetical. He's got those plans, and and therefore his farming practices that he is, you know, in the process of you know, creating need to be addressed. Well, that's different here because there's no there's there's no farming practice future farming practices that is anything other than hypothetical. What petitioner data here is just picked some chemical out of thin air that they don't even use, but which happens to have a nice big fat buffer requirement and says, "Oh, yeah, we you know, we don't use it, but if we did, we would have to apply this big buffer." And to me that's entirely hypothetical and does we don't need to consider that under ORS 215-296 sub 1. Um then the the other thing is >> Trying to figure out where the boundaries of that kind of gen general rule would be, and I'll just admit I haven't reviewed Durkin yet, but my understanding of the evidence here is that petitioners do have an extant filbert farm, and they do spray chemicals. They submitted evidence that there are chemicals that are used on filbert farms to pesticides that do have a large spray area exclusion area. Your argument is they would have to say, "And we use these pesticides in order for that to fall within the farm impact analysis." >> Yes, I think so. I don't think >> they said What if they said What if the evidence was, "We don't currently use this, but in years where there's high pest pressure, we would need to use this." Would that be enough? >> I think that's getting closer to the facts of Durkin. Uh you know, and I guess I'll leave it to you to draw the line. That's That's That's where you get paid the big bucks, but uh uh you know, I I I don't That's not the facts of this case though. They didn't say >> Fair enough. Fair enough. Thank you. >> Okay. Um So, the other thing that I found a little bit dishonest about this was cuz the petitioner said at one point they point to this OAR that deals with a narrow set of chemicals called uh chloro uh Let me see. What the heck's it? Chlorpyrifos, which I'd never heard of before, but I did uh read it and study up on it, and it's a It's a different type of chemical than Vapam HL. It's a chemical that's used on grass seed and uh Christmas trees, apparently, but it's a pretty nasty chemical. Uh uh And but they cite to that and say under that rule for that particular chemical you don't exclude you exclude the houses that are used by the farmer. And then they seek to apply that rule to a different chemical. And I I you know, I I I guess there's to me that seemed a little disingenuous to me. Um All right. I I think I think that you know, I don't want to say a whole lot more about the fifth assignment error in the interest of time, but other than say I didn't >> about the Let me ask you about the the math problem with the 120 ft versus 100 ft. You Your Your brief seems to to suggest that that is a problem, that there is a math irregularity there. >> Yeah, this is on the setback one. We skipped over that, but >> Fair. >> Uh Yeah, there is the math problem is there. Uh because she adds she says 120 ft, but then if you add up her numbers, it's only 100 ft. Um you know, that was an unfortunate error, but I'm not I'm not seeing anything in the evidence in the record that makes it critical that there's a you know, that there's some buffering requirement that would make a difference between 100 ft and 120 ft. I think at one point they say that they need 102 ft buffer, but even that isn't correct cuz it doesn't take into account the credits that you get when you calculate the buffer that we pointed out is in the record. And and the way they calculated the 100 ft buffer, that was using the drench method, uh which they'd never even cite that they used the drench method of chemical application. So, you know, I I think there's a lot more complexity to how you apply these buffer requirements. And the And the opponents didn't really say that they need 120 ft buffer. Um and and I also take issue on that with the idea with other chemicals, LUB has been clear that you you can't just use other people's property for overspray. You know, in the Van Dyke case, that was the argument made uh by the trail advocates and uh and you know, LUB has said, you don't have a right to overspray. You know, you have to keep your spray within the limits of the AEZ rules. And uh here the the applicant I mean, excuse me, the opponents are basically saying, "Hey, we're using uh the Perez property kind of as an overspray. We can be sloppy because no one's there. Uh no house is there." But Ms. Perez says that, "Hey, we're here every day. We're here with our with our animals and we're here we have a shop here and uh we use this property. So, I don't I don't think the evidence in the record supports the idea that anything different will occur because uh you know, that if there's a house there versus what's there now in terms of the opponent's ability to overspray. >> And we we've reached our time. Thank you for questions from the board. No. All right. So, uh thank you for your argument. We will return to petitioners. >> Uh unmute, but just want to address a couple things. Um >> Mr. Dunn, uh petitioners is Mr. Dunn on the line? >> the Um >> Just for the record, I don't think the petitioner can hear us and we cannot see him. >> States that states that there are requirements and they have to be addressed at the time of the land use application just by its own terms. These aren't citing requirements of where to put the house. These are um these are code requirements that need to be uh need to be met to allow um any reduction in a 50-ft setback. The other piece I would like to um bring up is that the the intent of this piece for a reduced setback is to be able to shift the house away from ag ag operations. The fact that this is a triangular piece means it can't happen. They reduced the the setback on all three sides bringing the house closer. Whatever direction it goes, it's bringing it closer to ag operations. And the fact that it is a triangular piece doesn't give uh applicant Perez any additional rights. Um a non-farm dwelling is not an outright use. You have to check the boxes. You have to meet the requirements um to be able to Mr. Dunn, can you hear us? Can you hear us, petitioner? And I apologize. I can't hear you. Can you hear us now? Test, test. >> Sound is not coming through now all of a sudden. My volume's up, but I'm >> Can you hear us? >> Okay. Uh >> I apologize. I was hearing you just fine previously. >> So, we have reached our time. Uh petitioners cannot hear us, but we will conclude oral argument. And the statutory due date for our decision in this appeal is June 16th. Uh we will ask the parties to agree to an extension so that we issue our decision no later than July 7th. And since petitioners cannot hear us, we will have uh staff follow up with petitioners. >> I apologize. Uh somehow our camera fell asleep. So, uh we have sound back on. Um I don't know if I can have just another minute or two just to wrap it up. >> Can you hear us now? >> I can. >> Okay. Um no, we've exceeded the time now. So, we will we will conclude oral argument. Thank you for your argument. The statutory due date for our decision is June 16th. Uh we'll ask the parties to agree to an extension so that we issue our decision by July 7th. Is that okay with these parties? >> Yes. >> by petitioners. >> Okay. Thank you all for your time and your argument today and have a good remainder of your day. >> Thank you very much.