Oregon farmers flee To Idaho while state eyes more restrictions

By Samantha Bayer
Oregon Property Owners Association,

Earlier this year, the U.S. Department of Agriculture released the results of the 2022 Census of Agriculture. The Census raised serious alarm bells for farm advocates nationally.

While no state was immune to the impacts of the pandemic and inflation, some states fared better than others, and actually saw significant growth in some sectors. Unfortunately, this was not the case for Oregon, which experienced an overall decline of nearly six percent of farming operations in the state.

Eastern Oregon farmers hit particularly hard.

Shortly after the Census was released, the Malheur Enterprise published an article about how Malheur County’s sugar beet and onion producers are shifting their business operations from Oregon to Idaho. Pointing to data from the Census, the article highlighted that production of onions and sugar beets, Malheur County’s two core crops, declined over the last five years. At the same time, Idaho’s sugar beet and onion acreage jumped by nearly 4,000 acres.

The Enterprise interviewed two well-known farmers in the region who decided to shift their business to Idaho. One of the farmers confirmed what OPOA has been warning folks about on the blog in recent months – Oregon’s regulatory system is doing little to support the economic wellbeing of our farmers and ranchers, and our “farmland” regulations are actually creating a disincentive for farmers to stay operating in Oregon.

Here is what one of the farmers said:

One such producer was Shay Myers, chief executive, and general manager of Owyhee Produce, who rebuilt his Nyssa packing sheds in Canyon County, a roughly one-mile drive over the border in Idaho. The third-generation farmer said when he rebuilt his packing sheds in Idaho the business had to move fast. The process of getting the project approved and permitted moved much quicker than it would have in Oregon. 

In Idaho, he said, while there were “i’s to be dotted and t’s to be crossed,” he said Canyon County Economic Development took a much more “common sense approach.” “They pushed the project through a lot more quickly than I think ever would have happened in Oregon,” he said. 

Despite farmers and ranchers leaving the state for greener pastures (with less headaches), state and local governments are continuing to bring the hammer down and restrict opportunities for farmers in the farm zone. If you read Dave’s blog from this week, you will see that this is because certain state and county land use planners are more interested in preserving open space and scenic landscapes than supporting successful farm businesses or rural communities.

As if on cue, the same week the Malheur Enterprise article was posted, the Oregon Department of Land Conservation and Development held a rulemaking advisory committee meeting to discuss preparing new restrictions on farm uses in the farm zone, including limitations on packing sheds.

DLCD considers removing packing sheds from the definition of “farm use” in the farm zone.

According to the proposed rules, certain preparatory activities, including the cleaning, sorting, and packing of farm products, should no longer be considered a “farm use” in the farm zone if the preparation is done in buildings of a certain size or if farmers are preparing any produce grown on another site – even a field, orchard, or farm down the road.

At that point, according to the State, a farmer cleaning his farm produce is no longer farming and should be regulated like a non-farm manufacturing facility. It’s not clear why DLCD is proposing this change, other than that apparently certain County Planners can’t tell the difference between a farm and manufacturing facility when driving around the countryside.

Here is a screenshot of DLCD’s draft proposed rule options:

Currently, Oregon land use law allows Counties to create “exclusive farm use” zones. In these zones, agricultural activities and practices that fall under the definition of “farm use” are allowed outright. This means that local governments cannot impose restrictions on them, and farmers don’t have to get county approval to do them. This is why you don’t see farmers at the local planning department asking for a permit to run their tractor or pick produce.

Additionally, those activities are protected from any regulation, whether from the state or local governments, that could affect farm structures or accepted agricultural practices, except for regulations needed for public health and safety.

Right now, state law defines “farm use” very broadly. A part of that definition includes “the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use.” Current law doesn’t limit preparation based on building size, whether it’s happening inside or outside, a farm building, and farm products include those grown on the farm or off the farm, so long as the products are grown in the farm zone. This means that most on-farm preparation, including packing sheds should be considered a “farm use” in the farm zone, and allowed outright.

A significant (and potentially illegal) change.

If you know anything about farming, it’s a no-brainer that preparatory activities are protected as a farm use in the farm zone. Have you ever gone to the store or a farmers market and bought a single unwashed egg? What about a loose dirt-covered berry? No, you haven’t. That’s because those farm crops were cleaned, sorted, and packed into a container before you bought them.

Preparing farm crops for sale is an essential part of farming. If you don’t have crops you can sell to the public, you aren’t actually farming, you’re gardening. Current law allows a farmer to do that on their property without going through a local land use hearing and permitting process.

If DLCD moves forward and adopts this proposed rule, that non-sensical bureaucratic nightmare described by the farmer who moved to Idaho will get a whole lot worse. For new farms (including new packing sheds), this could mean having to get a land use permit to conduct these preparatory activities, and depending on the scale, size of your buildings, or whether you prepare crops grown on another site, a local government may require you to permit parts of your operation as a conditional processing facility, which can be a complicated and fraught process.

Additionally, existing farm buildings and operations could turn into non-conforming uses. Pay close attention here – you do not want your business, or any part of it, to become a non-conforming use. It is a very big deal when state and local land use laws change, and existing uses are no longer deemed in compliance with zoning regulations.

Generally, a non-conforming use is a use of land that does not comply with the present zoning regulations for the area. Non-conforming uses are typically allowed to continue under certain conditions, but may be subject to certain restrictions or requirements. There could be limitations on your ability to change or expand your operation, and even limitations on rebuilding after a fire or any property damage. There can also be significant impacts on property values if the primary use on the property is now a non-conforming use.

Again, we are unsure why DLCD is proposing such a significant change, and we are disturbed by the State’s decision to propose greater restrictions and limitations on important farm uses when farmers are literally leaving the state because of them. OPOA sits on the RAC and will continue fighting for common sense land use planning and will continue to push for the economic success and wellbeing of farmers – not just farmland preservation.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.