Riverbend Landfill Co. v. Yamhill County

79

Argued and submitted June 15, affirmed August 18, 2021

RIVERBEND LANDFILL CO.,

Petitioner,

v.

YAMHILL COUNTY,

Stop The Dump Coalition,

Ramsey McPhillips, and

Friends of Yamhill County,

Respondents.

Land Use Board of Appeals

2020093; A175877

497 P3d 1288

Riverbend Landfill Co. (Riverbend) sought approval from the Yamhill County

Board of Commissioners (county) to expand its solid waste landfill. It simulta-

neously submitted two applications for the project—a site design review (SDR)

application and a flood development permit (FDP) application. The FDP was nec-

essary because a small portion of the project was located within a 100-year flood-

plain. The county processed both applications together and denied them both,

making extensive findings related to the SDR application but none specifically

related to the FDP application. Riverbend sought review of the county’s decision,

challenging, among other things, the county’s denial of the FDP. It argued that

the county was required to make findings as to that denial under ORS 215.416(9).

On review, the Land Use Board of Appeals (LUBA) concluded that, pursuant

to ORS 197.835(11)(b), Riverbend failed to establish that the county’s lack of

findings on the FDP application warranted reversal because development in the

floodplain was contingent on an approved site plan. On review from LUBA’s final

order, Riverbend challenges LUBA’s conclusion that the county was not required

to make findings related to its denial of the FDP application. Held: Under ORS

197.835(11)(b), LUBA was required to affirm the county’s denial of the FDP

application where the record demonstrated that (1) a code interpretation was

not necessary to the local decision-making process and (2) the record otherwise

supported the local decision. Denial of the SDR application rendered findings

regarding the FDP application unnecessary. No interpretation of the local code

was necessary and the record supported the county’s decision. LUBA did not err

in affirming the county’s denial of the FDP application.

Affirmed.

Tommy A. Brooks argued the cause for petitioner. Also on

the brief was Cable Huston LLP.

Jeffrey L. Kleinman argued the cause and filed the

brief for respondents Stop the Dump Coalition, Ramsey

McPhillips, and Friends of Yamhill County.

80 Riverbend Landfill Co. v. Yamhill County

No appearance for respondent Yamhill County.

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

MOONEY, J.

Affirmed.

Cite as 314 Or App 79 (2021) 81

MOONEY, J.

This land use case has a lengthy history. It began

in 2014 when petitioner, Riverbend Landfill Co. (Riverbend),

sought approval from the Yamhill County Board of

Commissioners (county) to expand its existing solid waste

landfill to adjacent farmland, including a small section

that would extend into a designated floodplain to accommo-

date construction of a berm proposed by the overall project

design. The county originally approved the applications, and

the matter wound its way through the Land Use Board of

Appeals (LUBA), this court, and the Supreme Court on ques-

tions related to the “farm practices” test in ORS 215.296.

Through that process, the county approved the applications

a second time but, ultimately, denied both applications on

remand from LUBA after the Supreme Court issued its rul-

ing. This judicial review is from LUBA’s final order affirm-

ing the county’s denial of the flood development permit

(FDP) application. Riverbend assigns error to LUBA’s order

“because LUBA failed to require the county to make any

finding with respect to Riverbend’s application for [an FDP]

even though County Order 20-284 denied that permit.” For

the reasons that follow, we conclude that Riverbend’s FDP

application was submitted solely to support the site design

review (SDR) application and that any “defect” or failure of

the county to expressly identify the standards and facts on

which it based its decision to deny the FDP did not require

reversal, because the record supported that decision as a

corollary to the county’s denial of the SDR application. We

affirm LUBA’s order.

We review a LUBA final order to determine whether

it is unlawful in substance or procedure. ORS 197.850(9)(a).

We will conclude that a LUBA order is unlawful in sub-

stance “if it represent[s] a mistaken interpretation of the

applicable law.” Mountain West Investment Corp. v. City of

Silverton, 175 Or App 556, 559, 30 P3d 420 (2001).

The relevant facts in this case are largely proce-

dural. Riverbend operates a solid waste disposal landfill

near McMinnville. It is surrounded by land zoned “exclu-

sive farm use” (EFU) and located near a 100-year flood-

plain. In 2014, Riverbend sought to expand the landfill onto

82 Riverbend Landfill Co. v. Yamhill County

adjacent EFU-zoned land. Solid waste disposal facilities

are permitted on EFU-zoned land, ORS 215.283(2)(k), but

their approval is subject to the “farm practices test” in ORS

215.296.1

The county first considered the landfill expan-

sion in 2015 after Riverbend submitted its SDR and FDP

applications. Riverbend submitted its applications with the

request that they be “processed simultaneously” because a

floodplain development permit would be a necessary part

of the proposed landfill expansion project. The county pro-

cessed the applications together and ultimately approved

them both. LUBA, however, reversed and remanded that

decision for the county to address various errors relating

to its application of ORS 215.296. On remand, the county

again approved the expansion, but LUBA again reversed

and remanded the approval—for the limited purpose of

addressing findings related to the expansion’s “cumulative

impacts” to farm practices pursuant to ORS 215.296.

As mentioned, there have been various appeals,

petitions for review, and remands over the years.2 In its

review, the Supreme Court addressed the standard for the

“farm practices test,” noting that approval of both the SDR

and the FDP required compliance with that test. Stop the

Dump Coalition v. Yamhill County, 364 Or 432, 434, 435 P3d

698 (2019) (SDC II). It held that the county-imposed condi-

tions of approval requiring Riverbend to purchase neighbor-

ing crops and to conduct litter patrols were not acceptable

1

ORS 215.296(1) provides:

“A use allowed under ORS 215.213(2) or (11) or 215.283(2) or (4) may be

approved only where the local governing body or its designee finds that the

use will not:

“(a) Force a significant change in accepted farm or forest practices on

surrounding lands devoted to farm or forest use; or

“(b) Significantly increase the cost of accepted farm or forest practices on

surrounding lands devoted to farm or forest use.”

2

The reported appellate court cases include:

1. Stop the Dump Coalition v. Yamhill County, 284 Or App 470, 391 P3d 932

(2017) (SDC I);

2. Stop the Dump Coalition v. Yamhill County, 364 Or 432, 435 P3d 698

(2019) (SDC II); and

3. Stop the Dump Coalition v. Yamhill County, 299 Or App 389, 449 P3d 927

(2019) (SDC III).

Cite as 314 Or App 79 (2021) 83

conditions under ORS 215.296. Id. at 462. The case was

remanded to LUBA, which concluded that the county was

incorrect when it determined that landfill litter would not

cause a significant change in accepted farm practices on

adjacent property. It then remanded the case to the county

to reconsider its decisions approving the SDR and the FDP,

utilizing the farm practices standard articulated by the

Supreme Court. We affirmed LUBA’s decision to remand

the case to the county. Stop the Dump Coalition v. Yamhill

County, 299 Or App 389, 391, 449 P3d 927 (2019) (SDC III).

Finally, on remand from LUBA and after a hearing,

the county voted to deny petitioner’s SDR and FDP appli-

cations. It made extensive findings regarding the SDR but

made no findings specific to the FDP. Riverbend appealed

that decision to LUBA, raising three assignments of error.

The first two assignments of error related to the denial of

the SDR. The third assignment of error—which is the only

one at issue before us—related to the county’s denial of the

FDP. Riverbend argued that the county’s findings were

inadequate to explain why it denied the application for an

FDP because it did not adopt any findings directly related to

the merits of that application. LUBA affirmed the county’s

decision to deny both applications. With regard to the third

assignment of error, LUBA concluded that the FDP

“was necessary for the portions of the proposed landfill

expansion that intruded onto the floodplain, as depicted

on the proposed site plan. However, any development at all

in the floodplain was contingent on an approved site plan

that depicted development in the floodplain. [Riverbend]

does not argue otherwise and does not explain why the

county, having denied the site plan review application, was

required to adopt findings applying the floodplain develop-

ment criteria to that contingent application. Accordingly,

[Riverbend] has not established that any failure to adopt

findings regarding a contingent application provides any

basis for reversal or remand of the decision.”

On judicial review of LUBA’s final opinion and

order, Riverbend raises a single assignment of error, argu-

ing that LUBA’s order was unlawful in substance. It specif-

ically argues that LUBA should have reversed the county’s

decision on the FDP application because the county did not

84 Riverbend Landfill Co. v. Yamhill County

make findings supporting that denial under ORS 215.416(9).

Respondents argue that Riverbend’s argument is unpre-

served and, further, that the county was not required to

make findings in any event because the proposed floodplain

development was contingent upon approval of the SDR. And,

because the county rejected the SDR application, there was

no reason to evaluate the merits of the FDP.

Two statutes guide our disposition of this case. ORS

215.416(9) applies to the county’s decision to deny the FDP:

“Approval or denial of a permit for expedited land division

shall be based upon and accompanied by a brief statement

that explains the criteria and standards considered rele-

vant to the decision, states the facts relied upon in render-

ing the decision and explains the justification for the deci-

sion based on the criteria, standards and facts set forth.”

ORS 197.835(11)(b) applies to LUBA’s order affirming the

county’s denial of the FDP:

“Whenever the findings are defective because of failure to

recite adequate facts or legal conclusions or failure to ade-

quately identify the standards or their relation to the facts,

but the parties identify relevant evidence in the record

which clearly supports the decision or a part of the decision,

the board shall affirm the decision or the part of the decision

supported by the record and remand the remainder to the

local government, with direction indicating appropriate

remedial action.”

(Emphasis added.)

Our opportunities to discuss ORS 197.835(11)(b)

have been few. We reviewed former ORS 197.835(9)(b) (1994),

renumbered as ORS 197.835(11)(b) (1995) (with identical lan-

guage as ORS 197.835(11)(b)), in O’Neal v. Deschutes County,

126 Or App 47, 50, 867 P2d 532 (1994). We explained that a

local zoning decision cannot be affirmed “on the basis of clear

supporting evidence if the decisionmaker has not adequately

resolved what law applies to that evidence, or explained its

understanding of the applicable law sufficiently to enable

LUBA and the reviewing courts to discern whether the

proper legal standards have been applied.” In other words,

a decision does not contain a “mere defect,” permitting affir-

mance under ORS 197.835(11)(b), when the local body omits

Cite as 314 Or App 79 (2021) 85

a “necessary interpretation” of its local, applicable law. Id.

It follows that, when code interpretation is not necessary to

the local decision-making process and the record otherwise

supports the local decision, LUBA may affirm it under ORS

197.835(11)(b) notwithstanding the county’s failure to make

specific findings under ORS 215.416(9).

Here, the county provided a thorough explanation for

its denial of Riverbend’s SDR application, which Riverbend

does not challenge. LUBA explained that the county’s expla-

nation for its denial of the SDR application was sufficient

to explain its denial of the FDP application. Although the

county did not articulate specific “standards or criteria rele-

vant to” its decision to deny the FDP application, LUBA had

a duty to affirm the decision if the parties could “identify

relevant evidence in the record which clearly support[ed] the

[county’s] decision[.]” ORS 197.835(11)(b). And, as we have

explained, the record could only have “clearly supported” the

county’s decision if no interpretation of the local code was

necessary to decide whether to approve the FDP application.

We agree with respondents that the record “clearly

support[ed]” LUBA’s decision to affirm the county’s denial of

the FDP application under ORS 197.835(11)(b). The record

shows that Riverbend applied for the FDP solely for the pur-

pose of supporting its SDR application because the landfill

expansion would, by design, extend into the floodplain. In

its FDP application, Riverbend explained:

“In conjunction with this application, [Riverbend] is sub-

mitting an application for Site Design Review. That specific

development proposal seeks site design approval for a total

of 37 new acres of landfill area that will be directly incor-

porated into the existing landfill. * * * Portions of the pro-

posed berm in that application will lie within the l00-year

floodplain, which necessitates this application for a flood-

plain development permit. Because some of the criteria for

site design review overlap with the criteria for a floodplain

development permit, [Riverbend] is requesting the applica-

tions to be processed simultaneously. Further, [Riverbend]

adopts by reference the information included in the Site

Design Review narrative to support this application.”

(Emphasis added.) The county did, in fact, process the SDR

and FDP applications together when it approved them in

86 Riverbend Landfill Co. v. Yamhill County

2015, making detailed findings with regard to the SDR

application. Later, in its 2020 order denying the SDR and

FDP, the board again described the need to process the

applications “together” and it made detailed findings sup-

porting its decision to deny the SDR application. There is no

suggestion—from any party or from any reviewing body—

that the FDP was independently necessary for Riverbend

to achieve some purpose other than approval of the entire

landfill expansion project. Thus, when the county rejected

the SDR application, further consideration of the FDP appli-

cation was rendered unnecessary.

LUBA did not err when it concluded that Riverbend

failed to establish that the county’s lack of findings on

the FDP application warranted reversal. The record sup-

ported LUBA’s conclusion that “any development at all in

the floodplain was contingent on an approved site plan that

depicted development in the floodplain.” Riverbend has not

explained—here, before LUBA, or before the county—why

approval of the FDP application, or an interpretation of the

local code as it applied to that application, was necessary

in the absence of SDR approval. The board’s lack of find-

ings specific to the FDP application does not provide a basis

for reversal on this record. To the contrary, we must affirm

LUBA’s final order because no interpretation of the local

code was necessary for the county to explain its decision.

Denial of the SDR rendered the FDP application unneces-

sary, and the county’s decision to deny it was not unlawful in

substance. LUBA did not err when it affirmed the county’s

denial of the FDP application.

Affirmed.