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The media reported recently that the Land Conservation and Development Commission (LCDC) had suspended rulemaking directed at farm stands in Oregon鈥檚 Exclusive Farm Use (EFU) zones. That coverage lacked much explanation of what really happened. The governor initiated this rulemaking to provide clearer lines as to just what was permitted within the confines of existing state laws protecting farmland. The LCDC cannot change the law to allow any greater degree of nonfarm activity. That didn鈥檛 stop social media campaigners that successfully killed the rulemaking from railing against the laws enacted by the legislature. Unfortunately, the suspension has now thwarted any opportunity for greater clarity.

Oregon鈥檚 agricultural lands preservation program is over half a century old. The program is based upon legislative policies asserting that preserving land for farm use through EFU zoning is 鈥渁n efficient means of conserving natural resources,鈥� protects the farm economy, ensures food supplies, and avoids high costs of utilities to serve rural areas. Oregon鈥檚 EFU laws represent a compact between farmers and other taxpayers. In exchange for limiting uses on EFU lands to farming and legislatively designated nonfarm uses, farms are assessed not at their market value, as would a home or business in an urban area, but at its 鈥渇arm use鈥� value, which is almost always a fraction of its market value.

Farm uses allowed in an EFU zone range from crops and animals to Christmas tree operations and commercial horse stables. It鈥檚 a broad term, but not an inexhaustible one. Other nonfarm uses on the list include those that support rural communities, such as schools and churches, or are allowed because the legislature says they should be. The list of permitted nonfarm uses has ballooned from six in 1973 to over 60 today. Regardless of the wisdom of these expansions, the legislature has the final word. However, if the LCDC is approached to provide details of a legislatively created use, it must act within the confines of state law and take actions that further the state鈥檚 existing farmland preservation policies. The LCDC cannot allow additions, or removals, or alterations of use authorizations in the EFU zone that have not been blessed by the legislature. And that鈥檚 the rub.

Under Oregon law, 鈥渇arm stands鈥� are allowed in EFU zones, but they are limited 鈥� their structures must be designed and used for crops or livestock grown either on that farm operation or other such operations in the area. Farm stand sales may include 鈥渞etail incidental items and fee-based activities,鈥� but only if those sales do not make up more than 25 percent of the total sales. Finally, farm stands may not include any residential uses or 鈥渟tructures for banquets, public gatherings, or public entertainment.鈥�

There鈥檚 no question that the LCDC has the power to enact rules, consistent with Oregon鈥檚 EFU statutes, to allow, limit, or prohibit aspects of a nonfarm use allowed in an EFU zone, but it must do so within the confines of the legislative enactment. Rules that increase the percentage of incidental, nonfarm associated total sales or allowing banquets would contravene state law. However, the LCDC could identify a boundary of the surrounding area from which farm crops may be sold or clarify what items are included or excluded from the 25 percent incidental threshold, but it can鈥檛 do away with the 25 percent rule or allow an auditorium on EFU lands as part of a farm stand.

The original impetus for this rulemaking came at the behest of the governor after the Oregon Property Owners Association (OPOA), a property rights-oriented entity, failed to get the legislature to act on HB 3133, which would have eliminated the 25 percent limit, allowing for greater retail activities and dining so long as the structures were built to accommodate farm activities.

When HB 3133 failed, OPOA lobbied the governor to create a Rules Advisory Committee (RAC) to review existing rules and suggest changes within the EFU statutes. Most of the 鈥渦sual suspects鈥� participated 鈥� interested state agencies, the Oregon Farm Bureau, 1000 Friends, and OPOA. When it appeared that the RAC effort might fall short of achieving all the HB 3133 objectives, it turned to social media and pushed a narrative that farmers needed nonfarm, commercial activities to stay viable. Rather than acknowledge the OPOA-initiated request as something that the LCDC could not deliver, the governor ordered a pause in the rulemaking, saying that she was hearing the commentary and 鈥減aying attention.鈥� So, right now, nothing is happening. The governor let the LCDC take the fall for the failure of the process she initiated, knowing full well that it was doomed for failure.

The point is that the LCDC works in a small confine, given existing statutes and policies that would frustrate the nonfarm commercial expectations of a portion of the farming community. This controversy isn鈥檛 about produce sales, u-pick operations, or corn mazes. It鈥檚 about money and allowing the secondary commercial exception to swallow the farmland preservation rule. It鈥檚 about a well-crafted and well-directed social media game to challenge state policy on an incremental basis 鈥� 50 acres in Eastern Oregon here, easier urban growth boundary opportunities there, allowing commercial uses unconnected with farming 鈥� you get the picture. This gnawing around the edges of state policy and the enabling of places like Deschutes and Yamhill counties to game the system by the death of 1,000 cuts has existed for the past 50 years.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.