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Oral Argument 2025-062 Friends of Marion County v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=4-zu0XJG7hs). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning. This is the time set for oral argument in Friends of Marian County versus Marian County Luba number 2025-062. I'm board chair Zamoodio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision in this appeal. Please uh continue to mute your audio when you are not speaking and I'm not aware of any pending motions in this appeal. Is there anything that the parties need to bring to our attention? I see three heads nodding now. Thank you. Oral argument is a total of 30 minutes. Uh petitioner, you have 15 minutes. May I reserve up to five minutes for rebuttal? Would you like to reserve any time? >> Yes, I'd like to reserve five minutes, please. >> Okay, I will keep track of time here and ask that you also keep track of your own time. And just to note, the clock on the screen is just for reference. It's not keeping exact time of your argument. And respondent and intervenor, you have a total of 15 minutes. Have you discussed how you'll share your time? >> Uh, yes, we have. The county will yield it time to intervene. >> Great. Thank you. Thank you for being available for questions. And um with that, we can go to petitioner. Please state your name for the record and begin. >> Good morning board members. John Butterfield for petitioner friends of Marian County. I thought I would start with the substantive issues and then dive into our procedural concern later on. And I think a good place to start is where this case left off when it was last year in 2021. The county had taken an irrevocably committed exception based on a finding that resource use on the subject property was impracticable. This board reversed because the evidence did not support that finding. In fact, Luba found at the time that what the evidence did show was that any alleged conflict between rural and residential use had long been present in the area. The subject property was being farmed. Other land owners in the area were farming and no relevant imminent land use change in the area had been identified. This is from page 29 of the slip opinion in Finnig one on remand here. None of the evidence has changed and yet the county has once again approved an irrevocably committed exception. Respondents claim in their joint brief that the county's new findings are bolstered by concrete details. These supposed concrete details all reference testimony from Mr. Fenick. But Mr. Fenick told the county that he doesn't live on the property and hasn't for many years. He has someone else growing a cover crop on the property. And in all the time since he turned over the cover cropping to someone else, no conflict has risen to the level of litigation or even a complaint. This is concrete evidence that in reality the alleged conflicts are not actively occurring and even if they were, they are not disruptive to farming. And [clears throat] I want to pause here and talk briefly about cover cropping. Respondents try to claim that this board's decision in Finnig one that the cover cropping that occurs on the subject property is farm use was somehow an evidentiary finding. What phen one actually held was that farming does not need to be at a commercial scale in order to be protected as farm use. Citing uh O 660 0040028 subsections 2 and six. Uh that's it at page 18 of the slip opinion. So respondents suggest that the county can now find that the subject property is not being farmed because of Mr. Finne's declared lack of income from the property. But that's not the legal standard and it's not a change from Fenig 1. In fin one, nobody relied on income from the cover crop to find that the subject property was being farmed because the state of the ferris on the ground was exactly the same as it is today. So law of the case under Spurber vous county should apply here to again find that cover cropping is a farm use that is ongoing on the property. As we mentioned in our reply brief, the evidence in the record shows that the property can be farmed and is in fact being farmed. If you look at the aerial photographs on record pages 178 and 179, the alleged conflicts are speculative and decades old, and the board should again remand the county's irrevocably committed exception. At this point, uh, I'd like to turn to the way the county structured the findings because this is a change from what happened in Finnig one. As we discussed in our brief here, the county said, "Our factual findings are in exhibit A and exhibit B." And exhibit B said essentially, "These are are Trump findings. If anything here is different than exhibit A, these findings control." But the county didn't go back and say which of the exhibit A findings it was disavowing. And that's problematic for a number of reasons. First, at least petitioner and this board to sort out whether something is different enough to be trumped by the findings in exhibit B. That should not be a burden that the county can place on those reviewing a decision. That's exactly why we have the higher standard. The county has to set out clearly what it is finding and what evidence it believes supports that finding and including findings or evidence that the county later on disavows maybe should not be a permissible strategy to avoid review. And it's especially troublesome here where only exhibit A lists the required criteria. So exhibit B is sort of free floating facts and conclusions that the county then can pull from to support any right required criteria it wants later on. That's not an explanation of how the evidence led to the conclusion that the criteria is met. A and even beyond exhibit B's additional untethered findings. The county then purports to incorporate anything that Mr. Fenig or his attorney submitted to the county throughout the whole permit process. This this apparently gives the county another 77 pages of adoptive findings to pull from later on to try to justify the exception here. That's a clear violation of Gonzalez and provides another reason for remand. At this point, I would be happy to answer questions about anything I've covered or other assignments of air and and otherwise I would uh reserve the >> Nope. No questions from the board. Um we will turn now to intervene. You'll have your full five minutes for rebuttal and we'll turn now to intervenor for your argument. Please state your name for the record and begin. >> Morning chair, members of the board. My name is Isaac Heland. I represent Lois Fenning, applicant below, and intervenor respondent here. The Fenics are a family of farmers who are intimately familiar with the subject property, which has essentially been their backyard since the 1950s. But despite their experience with farming and their knowledge of the property, they have been unable to make farming practicable in large part due to the surrounding residential parcels with small setbacks. This board should allow the property to be put to a productive use and affirm the county's decision to make an irre to take an irrelyably committed exception to goal three resz on the property and allow the partition into two lots. And that is a difference from the last time that this application came before this board. The application now seeks only two parcels 10 acres and 10.46 acres in size rather than 2 acre parcels. um eliminating the requirement for a go 14 exception. In response to the first assignment of error, the county's incorporation of the hearing officer's findings and the testimony and affidavit of uh Wallace Lee and Larry Fen uh doesn't make a decision too unclear under Hiler to make a decision. Uh first, there isn't really a conflict between exhibit A and exhibit B. Um the petitioners speculate that there could be and that there could be a problem, but they really only point to one supposed uh contradiction um between exhibit A finding 17 and exhibit B finding 8. Um but those just reference two different areas. Exhibit A finding 17 referring to the larger area between Mle Road southeast and Culver Road. Um and while exhibit B finding aid is referring to the 13 adjacent parcels that actually touch the subject property. Um and other than that the petitioners have been unable to point to any actual contradiction between exhibit A and exhibit B that would warrant this concern. Um even if there was a contradiction, findings are clear because the county has told us exactly how to handle any such conflict. exhibit B controls. And that particular alleged discrepancy between exhibit A and exhibit B um had to do with how many parcels are in tax deferral. But both of the study areas on this record and the study area that was on the previous record um both list just one property one adjacent parcel in uh tax referral and that's been unchallenged and undefeated. Second, the intent of the county regarding the incorporation of the testimony and evidentary facts submitted by Mr. Lee and Mr. Fenig um it is obvious. um under Gonzalo's standard has been met to clearly define what's being incorporated which um the petitioner today here at oral arguments had no problem identifying it's the testimony and the affidavit submitted by Mr. Lee and Mr. Fenig. Um, now the petitioner may object to the scope of that because they don't like the facts that are that are in the record that have been incorporated, but the county may express findings that they found Mr. Lean and Mr. um testimony to be credible and that they are incorporating them. That meets the standard under Gonzalez. And even if it didn't meet the Gonzalez standard, the uh remedy, so to speak, would be simply to not find an intent to incorporate. Um, but the county specifically and separately names Larry Fenix affidavit and testimony as being adopted as factual findings. So that at least is obviously incorporated in this case hinges a lot more on Mr. Fenick's affidavit than it does on Mr. Leans. Uh in response to the second assignment of error, the county findings appropriately address both the adjacent lands and the neighborhood and regional characteristics. And the petitioners have been kind of unable to make up their mind as to how large they'd like the study area to be. Um previously before the spore, this board remanded and instructed the county to take a stronger look at specifically the adjacent land. Now the petitioner is saying that the study area is too narrow and ought to include parcels that are not actually adjacent. Uh they have no authority for that contention and it in fact runs against fire case law from this board for example lavinger versus slain county in which this board used the terms adjacent lands and adjacent parcels equivalently. Um and at any rate, the old study area still stands to provide the uh neighborhood characteristics and characteristics of the surrounding area. What those characteristics show by the way is that the land use patterns in the area have remained stable. Meaning that generally in the broad area that the residential and farm uses have coexisted meaning that the um finding that this parcel has been irrevocably committed is unlikely to therefore irrevocably commit other parcels west and south. Um, in response to the third assignment of error, the record has substantial evidence to show that the property has been irrevocably committed. And contrary to the petitioner's claim that nothing has really changed between the two record, the county actually substantially retoled its analysis and the applicant actually submitted an entirely new application based off of this board feedback in Fenic one. And so now the analysis really focuses on the effect of the residential uses to the east on the subject property primarily as a result of these really small setbacks, sometimes as small as 20 ft. Uh Mr. Fenny's declaration detailed that he specifically experienced overspray from the six residential um parcels in the eastern boundary. both uh residential overspray, um water or residential irrigation, and also chemical overspray. And both of these have destroyed attempted crops on the subject property. And the chemical overspray is particularly problematic because those chemicals can actually stay in the soil for a long time. And the residential users are not licensed or trained to apply the chemicals. They're not taking wind direction and other things into account when they apply these chemicals. they're drifting onto the subject property which is just 20 ft away. Um and then as far as water availability and fire hazards, the evidence in the record also supports that um you know the subject property has no water rights and if it were to acquire them and drill a well that could contribute to offer fragility in the area which only exacerbates the fire issues. There have been fire issues of um the residential uses have burn barrels and backyard barbecues um and even children playing with matches just a few feet away from the property line which has burned several acres of attempted crops in the past that compounded with trespassers. Um these are all issues where the residential uses have made the subject property impracticable for farming. And then lastly, in response to the fourth assignment error, the dividing the property into just two large parcels will not fundamentally change the character of the surrounding area. And in fact, um 10 acres is much larger than the average parcel size in the area of 3.45 acres. The median parcel size is just over 2 acres. These are going to be two ac 10 acres and 10.45 acre lots. Um this held in Anderson that you know adding one additional dwelling unlikely in area already concentrated was rural development. is unlikely to emit adjacent properties. And here adding two much larger properties with much larger setbacks than currently exist means that these types of residential issues that are coming from the east are not going to spread from the subject parcel to the west and south. I'll take any questions. Council, does the record reflect u when or if whether the properties to the east are are subject or developed according to an exception area or within an exception area? >> I think that there is um an exception area to the east um that is mentioned in the um in the record. Um I I don't recall the the number of the exception area off the top of my head, but there is residential development and subdivisions to the um east and the kind of northeast area and then primarily the actual uh special agriculture farm use lots are to the south and the west. >> Okay. No further questions from the board. So, we will return to petitioner for uh you have five minutes for your rebuttal. >> Thank you. I'll start with uh board member Bashion's question. I believe that the the properties to the east predate uh land use planning. So, they were uh set they were residential already. So, then they got um the zoning was applied to them that way. Um and and I I want to touch on three points that respondents made. first this discussion about uh you know the the large study area versus the narrow study area and I think you know respondents um acknowledge that if if you look at the neighboring characteristics sort of the area in general I guess what we're calling the larger study area um it demonstrates that that farming and residential use have coexisted um for for a long time and respondents uh you know wanted to use that point to say that well if this property becomes residential use. It won't have a cascading effect. But I think what it actually demonstrates is that uh the conflicts that sort of have been identified here don't prevent anybody else from farming next to residential property. And so the there's nothing special about uh this property that makes it somehow different from other farming properties in the area that are bordered by residential property. And I think that's sort of something that the court of appeals has identified, you know, that we're going to have properties on the border between residential and resource use. And if the mere presence of residential use on, you know, on an adjacent property irrevocably commits the resource property next door, then we're not going to be able to have these established borders. And so the the irrevocably committed standard is a demanding one. That's that's something that this board has found. And so it's a high bar to demonstrate that that something specific about this property um it makes it irrevocably committed and and the conflicts identified by the respondents simply don't meet that bar. They they haven't happened in in the past um decades at least. Mr. defend says they haven't had complaints or litigation. So, we're talking about old conflicts that um you know, apparently aren't ongoing and and could be remedied by offense or a setback as as the respondents sort of acknowledge when they say, well, if these properties uh if this property is split into two, partitioned and turned into residential use, it won't lead to further irrevocably committing of the properties to the west because there will be these setbacks. Well, that demonstrates that a setback could address the conflicts that they've identified on the subject property. You simply don't farm right next to the adjacent properties. Um, but in fact, you actually can farm right next to the adjacent properties. That's what we see in the aerial photograph that it is being farmed. And so that was my second point was that the residential uses to the east aren't preventing farming because the cover cropping is occurring and if you look at those aerial images it should you know it's occurring across the width of the property and there hasn't been a fire or chemical overspray and the farmer who it's not Mr. Fin. We understand it's a non-monetary arrangement, but there's a farmer out there who finds it worth his time or her time uh to do this cover cropping, and that's a farm use of the property, demonstrating that it's not virtually impracticable. And so that >> I have a question about the your view of what the proper remedy is in this case. As you've mentioned, this is the second time this um matter is before us. I understand the application and evidence was significantly revised. Your view is that the evidence doesn't satisfy the criteria. You ask for reversal and in the alternative remand. Um tell me your best argument for what the resolution should be. >> Sure. I I would actually I disagree that the evidence has is has significantly changed. um you know respondents cl um classified as a new application but the conflicts that they set out are the same ones that they mentioned in the previous case that was remanded where this board you know held that that didn't show an impracticable an irre an impracticability of farming uh or meet the standard. So um certainly you know the the case uh should should certainly be remanded um for I think to to correct the the procedural issue that we identified and then also potentially to to offer another opportunity for additional evidence. But I think at this point we we've seen what the evidence is, what's there on the ground and and the county has approved it again despite this board's direction the first time. And so that's where I think reversal might be appropriate in in a situation where there there isn't anything that could be put into the record on remand that would change the decision because respondents already had that respondent intervenors already had that chance to put in anything else that they have and and this is where we are. So >> thank you and that uh you've used your full five minutes. So appreciate you answering the question. That will conclude oral argument. The statutory due date for our decision this appeal is February 20th. Uh we'll ask the parties to agree to an extension so that we issue our decision by March 13th. Is that okay with these parties? >> No objection from petitioner. >> No objection from the respondent. >> No objection from the county. Thank you. Thank you and thank you uh for appearing