By Bill Poehler
Salem Statesman Journal / USA TODAY Network via Reuters Connect

The owner of an unlicensed waste pit on a farm outside of Aurora, Oregon, argued that she had done nothing wrong and that the waste accepted for a fee from industrial vacuum excavation companies for about three months in 2023 and into 2024 is farm use.

Marion County hearings officer Jill Foster heard arguments on Dec. 18 about the appeal of Marion County’s Sept. 25 determination that filling the pit with waste is not farm use.

Foster did not give a timeline for when she would make a decision in the case.

Property owner Denise Burnham’s attorney, Thomas Benke, shot back at the county’s decision.

He argued county staff defamed the pit when it said the material deposited there was not necessarily clean as it had not been tested when it was brought there.

“County officials felt like it was necessary to fill their decision with a lot of disparaging information about what this dirt and water could be, which I think is inappropriate and defamatory,” Benke said.

Waste pit was built in 2023, but was quickly shut down

The 200 foot by 100 foot wide, 20-foot deep pit was built on the hazelnut farm at 21875 Butteville Road outside of Aurora in 2023. It includes six asphalt dumping bays marked by painted white lines on the ground and yellow safety railings.

Benke argued that the dam built on Burnham’s property is in the best interest of the environment as an erosion control structure that keeps dirt from flowing into bordering Ryan Creek.

Marion County determined the dirt berm on the west side of the pit needs to be removed along with the asphalt dumping stations, yellow guardrails and other components of the site. Those have yet to be removed.

A gravel road leading to the pit was also improved, and Burnham testified that those improvements were to make it usable year-round.

The county determined that none of what was being done there is allowed under the exclusive farm use zoning of the location.

“We do not believe this is what’s taking place on the subject property,” Marion County principal planner Austin Barnes said.

Does being paid to take waste make it a commercial activity?

Much of the arguments to the hearings officer centered on if the waste being deposited was a commercial activity.

“Applicants received a compensation for each truck that dumped based on evidence submitted to the record for receiving $300 per load and receiving 238 loads from November 2023 to January 2024,” Barnes said.

“It should be noted that once these companies, namely (Portland General Electric) and NW Natural found out this pit was not licensed by DEQ and the county, they immediately told their drivers to stop hauling their waste there.”

Benke argued the farm charging money to accept waste didn’t necessarily mean it wasn’t for farm use. He used an analogy of one farmer selling dirt to another.

“Who’s business is it?” Benke said.

Burnham said the money that was accepted was put back into the farm.

“The appeal letter denies (Burnham) is getting paid,” argued Joseph Schaefer, a paralegal with the law firm Jordan Ramis. “It’s notable today that that seems to being walked back quite a bit.”

Was the dirt deposited on site fill dirt?

Benke argued that the dirt deposited there is fill dirt. He said the original dirt in that location was moved and will be put back once the site is leveled.

Ben Williams of land use advocacy group Friends of French Prairie said there was no testing of the material that was deposited at the site.

“This is the wrong way,” Williams said. “No permits were applied for for any of the facilities that are in place at this location.”

Barnes said the normal disposal method for vactor trucks – the type that deposited material at the site – is more involved than what was going on at the Aurora site.

“Based on staff research, the typical disposal method for vactor trucks is to take them to a licensed solid waste facility where the material is dumped and left to dry on a flat surface, allowing the process of evaporation to dry the soil,” Barnes said.

“This is different from dumping into a pit and drying the soils. This pit has typically been filled with water,” Barnes said.

Burnham argued the materials deposited there is intended to level that portion of land so she can plant more hazelnut trees.

Burnham argued nothing she has done requires a permit from any agency.

Attorney argues land use groups are against farmers

Benke took issue with the farmers who oppose the proposal, accusing them of being against farmers.

“I get the impression from some of the opposition to this proposal is that some of our friends are purporting to be farm friendly, but they’re not in fact farmer friendly,” Benke said.

Cheyne Fobert, the son-in-law of Burnham who managed the pit, said no dirt left the property and his goal was to turn the area into airable farmland.

He blamed the farmers who complained about the operation for getting it shut down.

“We’re pretty appalled by the neighbors,” he said.

The excavator who built and operated the pit and another in Hubbard, All-Ways Excavating owner Greg Wing, is being sued by the Hubbard property owner for $15 million for negligence, fraud and elder abuse.

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A neighborhood group opposed to construction of the $2.1 billion Bull Run water filtration plant isn’t giving up yet.

On Friday, an attorney for the Cottrell Community Planning Organization filed a notice of intent to appeal a Multnomah County hearings officer’s determination that the infrastructure project could proceed.

The Cottrell group earlier appealed a county hearings officer’s determination to the state Land Use Board of Appeals. Then in January, LUBA remanded the matter back to a hearings officer.

After an April hearing, hearings officer Liz Fancher ruled in June that the project could resume construction.

Cottrell, represented by Bateman Seidel attorney Carrie Richter, has argued the county failed to fully consider natural resources in its decision approving construction. (Editor’s note: Richter co-writes monthly land use commentaries to the 91ĘÓƵ.)

The Portland Water Bureau halted work on the massive project in February after the remand. Construction is only now ramping up, Water Bureau spokesman Brandon Zero said.

Zero vowed the Water Bureau will move forward.

“We will continue to address whatever issue is brought forward because nearly a million people around the region depend on us to provide clean and safe water,” he stated in an email on Friday. “Unfortunately, the cost of this appeal will ultimately be borne by our customers, even though it stems from objections raised by a small group of residents who live near the site. We have won at every stage in the land use process, including the recent Multnomah County hearings officer decision to reapprove our permits.”

Zero added that Fancher’s June decision “reaffirms this is the right place and the right time for this project.”

The city of Portland faces a Sept. 30, 2027, regulatory deadline to provide filtered drinking water to customers after a parasite was repeatedly found in the city’s water supply.

Construction on the infrastructure project is led by a joint venture of MWH Constructors and Kiewit Corp. They broke ground on the site in June 2024.

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