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Court will review opponents' arguments that a lower court's ruling endangers basic Oregon land use law

The Oregon Supreme Court announced June 29 that it will consider in the fall a petition for review filed by opponents of the Riverbend Landfill expansion.

The court's decision to review the case could have wide-reaching ramifications for land use in Oregon as it centers around a ruling by a lower court last spring that essentially broadened the types of uses on land designated exclusively for farm operations (EFU).GRAPHIC FILE PHOTO - Waste Management's plan to enlarge Riverbend Landfill will appear before the state's highest court in November.

"The Oregon Supreme Court reviews 10 percent of the petitions filed," said

Ilsa Perse, a spokeswoman for the Stop the Dump Coalition, one of appellants in the case along with farmer Ramsey McPhillips, Friends of Yamhill County and the Willamette Valley Wine Growers Association. "Deciding to hear the case brought by petitioners demonstrates that the Supreme Court recognizes the serious nature of the legal questions raised in the request for review."

At issue is the Court of Appeals' finding in March that appeared to allow non-farm use on farm land if farmers in the area that are adversely affected are compensated. It countered the argument of the coalition that the landfill, located just west of McMinnville on Highway 18, placed an onerous burden on nearby farming operations and was potentially harmful to the nearby Yamhill River.

The lower court's opinion caught the attention of two high-profile land use organizations in May when the Oregon Farm Bureau Federation and 1000 Friends of Oregon, the parent organizaiton of Friends of Yamhill County, filed amicus (friends of the court) briefs in support of the opponents' case.

Waste Management officials, however, saw the Oregon Supreme Court's decision to hear the case as insignifcant in their quest to expand the landfill in both size and lifespan.

"We know we are on the right track with our process and plan, and we look forward to making our case to the state's highest court," said Waste Management spokeswoman Jackie Lang, asserting again that the process to expand the landfill was a "community-driven plan that has been thoroughly vetted and scrutinized over eight years. … The Land Use Board of Appeals, the Oregon State Court of Appeals and the Yamhill County Circuit Court have all weighed in to confirm we are on course."

That process has been a tumultuous one and not without contoversy. The coalition and others have fought expansion every step of the way, including a ruling by the Land Use Board of Appeals that remanded back to the Yamhill County Board of Commissioners a portion of their approval of the expansion. The coalition took the case to the Court of Appeals before the Board of Commissioners was able to schedule a rehearing on the issue, then the coalition approached the Oregon Supreme Court with its argument against the Court of Appeals decision.

Perse explained the reason for their seeking redress from the state's highest court: "In a nutshell, petitioners are asking the Supreme Court to review the Court of Appeals' April decision in which that court dramatically lowers the bar on non-farm uses permitted on EFU land," she wrote. "In their interpretation of ORS 215.296, the Court of Appeals appears to be saying that unless a farmer is driven out of business by the impacts of a neighboring non-farm activity (like a dump,) that non-farm use is not causing significant damage and therefore should be allowed. "

She argued further that the Court of Appeals decision appeared to find that non-farm entities could remain on EFU land and "be allowed to continue their destructive activities so long as they pay neighboring farmers for damage done to their farming practice."

It's that precedent -- the coalition intends to argue before Oregon Supreme Court -- that cannot be allowed to stand for fear of a fundamental change in the state's agricultural landscape.

"ORS 215.296 requires that a nonfarm use not 'force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use,' or 'significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use.' Riverbend Landfill meets neither of these criteria," Perse said.

Oral arguments in the case are scheduled for Nov. 13 in Salem.

The petitioners in the case, the coalition, have until July 27 to file a brief on the merits of the case. The respondents in the case, primarily Waste Management and the county, have 28 days after the coalition's filing to file their brief on the case. That process can be extended a maximum of 14 days by either party.

Lang declined to speculate on whether an adverse decision by the court would have any affect on the landfill given that Waste Management has begun diverting much of the garbage it receives to a facility near Corvallis and the regional planning body Metro decreed in June that it will no longer ship garbage to Riverbend as of 2020.

"I can't speculate about the court's decision," she said. "What I can say is this: As a local employer and a community partner, Waste Management remains committed to Yamhill County and to an open, transparent process."

This will be the second case Friends of Yamhill County has brought before the Oregon Supreme Court. The organization won in court a number of years ago versus the county, Perse said, involving a challenge filed against a subdivision proposed under Measure 37 where the county "had wrongly found to have a vested right after Measure 49 passed and rolled back (Measure) 37 for folks who could not show a vested right to completion," she added.

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