Court rules against expansion of landfill
The long-awaited decision from the Oregon Supreme Court on whether expansion of Riverbend Landfill would be detrimental to its farming neighbors came last month as an emphatic "yes."
In a decision rendered Feb. 28, the court ruled that the 29-acre expansion of the landfill would adversely affect the facility's agrarian neighbors, that owner Waste Management couldn't simply mitigate the problem by compensating those neighbors monetarily and ordered that the county's approval of the expansion be returned to lower courts and, eventually, the county for further consideration.
"It's a huge win for us," said Sid Friedman, past president and current board member of the land conservation group Friends of Yamhill County.
FYC joined the Stop the Dump Coalition, farmer Ramsey McPhillips and the Willamette Valley Wine Growers Association as appellants in a case that was forwarded to the state's highest court in 2017.
"The court made it crystal clear that the garbage dump can't buy its way out of the significant impacts it causes to nearby farms, especially from the wind-blown garbage that gets caught in haying equipment and from the gulls, starlings and other nuisance birds that contaminate some fruit crops with their droppings," Friedman said in an email.
The long-time land conservation advocate posited that the court's decision could put an end to Waste Management's plans to expand its landfill west of McMinnville.
"This should be the end of the road for the proposed landfill expansion," Friedman said. "If Riverbend doesn't withdrawn its application, the matter will go back to the Land Use Board of Appeals to issue a new ruling in light of the Supreme Court's direction. LUBA will almost certainly send it back to the county with directions that would pretty much preclude pre-approval."
Waste Management spokesman Gary Chittim's comments on the decision were brief: "We are reviewing the ruling now. It will take time to understand the court's decision and determine (the) next steps.
The court began in July 2017 considering the petition for review filed by opponents of the landfill expansion. The court's decision to hear the case was viewed by many in the agricultural community as having the potential to have wide-reaching ramifications for land use in Oregon as it centered around a ruling by a lower court in spring 2017 that essentially broadened the types of uses on land designated exclusive farm use (EFU).
At issue then and what the court ruled on in February was the Oregon Court of Appeals' ruling in March 2017 that appeared to allow non-farm use on farm land if farmers in the area that are adversely affected were compensated. It countered the argument put forth by the appellants that the landfill 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 of Oregon's highest profile land-use organizations – the Oregon Farm Bureau and 1000 Friends of Oregon (parent to Friends of Yamhill County) – who filed an amicus (friends of the court) brief in support of the appellants' case.
In February, the court found in favor of the appellants that the Yamhill County Board of Commissioners was in error when it approved expansion of the landfill, saying it applied the state's farm impacts test "globally" when it should have applied the test on a more "granular" level.
"We agree with petitioners that the legislature intended the farm impacts test to apply on a farm-by-farm and farm-practice-by-farm-practice basis …," the court wrote in its decision.
The coalition's fight against expansion of the landfill has been a long one, including an earlier ruling by LUBA that remanded back to the 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.
"This was a very big win for Stop the Dump Coalition, Friends of Yamhill County, the Oregon Farm Bureau, the Willamette Gallery Wineries Association and McPhillips Farm," Ilsa Perse, a spokeswoman for the Stop the Dump Coalition, said. "It was a huge win for farmers all over the state who might be faced with the same situation: having a business (probably a large corporation) conducting a non-farm activity in a farm area, trying to 'pay to play,' that is pay farmers for damages caused by a non-fam activity. The Supreme Court said that that was not the intent of ORS 215.296. It is now settled law."
She explained that now that the Oregon Supreme Court has remanded the case back to LUBA, that body must "re-do" the decision it sent to the county in 2016.
"The county will then have to re-vote on the legality of Waste Management's case for expansion," Perse said. "Having lost their argument at the Supreme Court on the pay-to-play condition, we don't' see any way forward for them."
Ultimately, the Oregon Supreme Court ordered that the case be remanded back to the Board of Commissioners. "In view of how the case was litigated before LUBA, we affirm the remand to the county to decide whether cumulative impacts on each farm are significant," the court decision said.
The remand comes as the Board of Commissioners has changed complexion considerably since 2017: Rick Olson replaced landfill proponent Allen Springer on the commission several months before the issue came to a head. In November, county voters replaced Commissioner Stan Primozich, who was also aligned with Waste Management, with organic farmer Casey Kulla. The remaining commissioner who voted in favor of the expansion, Mary Starrett, could now be outnumbered by her new cohorts.
The complexion of the landfill itself has also changed in the nearly two years since the case was filed. The city of McMinnville and Metro in Portland will cease sending their garbage to Riverbend in 2020, choosing to truck it to Waste Management's Coffin Butte facility in Corvallis instead. The former WestRock paper mill in Newberg, which in its earlier incarnations sent tons of boiler ash to the facility weekly, closed in January 2016.
"There is almost no garbage being trucked to the dump," Perse said. "Metro's decision to leave took away more than 60 percent of the incoming trash and then McMinnville voted not to send their garbage there as well. Who knows what WM will do now that they have so few customers and have lost at the Supreme Court. We, of course, hope they will pack up and leave."
Perse and her group have opposed the landfill expansion for a long time."March 18 is the 10-year anniversary of the first Board of Commissioners hearing on the subject of dump expansion, a 100-acre expansion that was then scaled back to the current contested 29 acres. There were planning commission hearings in October or November of 2008, so it looks like we've been at it for over a decade.
"In 2007-2008, when WM applied for a 100-acre expansion, they probably didn't expect a decades-long fight, coupled with a huge loss of public support and a loss at the Oregon Supreme Court."