State sues to protect unfarmable “farmland” from needed housing development

By Dave Hunnicutt
Oregon Property Owners Association,

Here’s a cautionary tale for you out of Deschutes County. A group of Oregon property owners recently discovered that trying to insert common sense into Oregon’s land use planning laws is nearly impossible. Their story explains it all.

Before we begin, you should know that Oregon’s state land use planning agency, the Department of Land Conservation and Development (DLCD), has spent the last 50 years with a primary focus on just one thing – preserving “farmland” for open space.

Despite being called the Department of Land Conservation and Development, DLCD has spent the last half-century ignoring the need for housing construction and developing important economic opportunities so Oregonians could afford to buy a house and have a job.

Instead, DLCD has focused on making sure that most of the land in Oregon remains undeveloped, using the mantra of “saving farmland” as the phrase to achieve objectives that have nothing to do with helping farmers remain in business.

Making sure that Oregon has a robust farm economy and strong domestic food supply is important. Policies like Oregon’s Right to Farm laws, which OPOA has championed for years, help achieve that goal.

But DLCD doesn’t focus on protecting land actually used for productive agriculture, and their policies certainly don’t support the economic viability of farms and ranches. Despite what they say, the land use planning system focuses on open space preservation above all other community needs, even on land that can never and will never be commercially farmed. That’s how you get a story like 710.

Property owners propose rezoning unused rural land for housing development.

710 Properties owns nine large parcels of rural land in Deschutes County. Farming in Deschutes County first began 150 years ago when the area was still part of Crook County. Ranchers moved into the area, homesteaded land obtained from the federal government, and began running cattle operations in the juniper covered hillsides.

Early settlers quickly discovered that ranching in central Oregon is a tough go for a variety of reasons, the most important of which is because the land isn’t suitable for ranching or any other type of farm use, unless you like farming volcanic rocks…

The property owned by 710 is even worse than your typical Deschutes County “farmland” and is covered in rocky outcrops and poor soils. As part of their application to change the zoning of their property from EFU to rural residential (so that the property could provide rural homes), 710 offered testimony from seven farmers who farm/ranch in the area, each of whom testified that the 710 properties could not and would never be used for commercial grazing.  There was no opposition to that testimony, and no farmer/rancher testified that the 710 property had any potential to be farmed.

In fact, in the 150 years of farming/ranching in the County, the 710 property had never been farmed or ranched.  Never as in no farmer/rancher was ever interested in running cattle on the property. Ever. 

That wasn’t all. 710 also proved that in order to irrigate the property, 710 would have to spend nearly $9 million to build an irrigation system. Repaying that loan would result in annual payments of nearly $350,000, which isn’t feasible in a County where the average income of profitable farms is $32,000.

Without an irrigation system, the County found that the 710 property would generate approximately $5,000 to $10,000/year from dryland grazing, an amount far less than the cost to run a cattle operation.

Finally, 710 hired a professional soil scientist to prove that nearly all of their land was composed of Class VII soils as rated by the Natural Resources Conservation Service (NRCS), a federal agency tasked with helping farmers and ranchers conserve soil resources. NRCS rates soils in eight soil classes, with Class I being the most productive soil suitable for any farm use and Class VIII being the worst soil.

According to NRCS, Class VII soils “have severe limitations that make them unsuited to cultivation and that restrict their use mainly to grazing, forestland, or wildlife.”  As a high desert county, Deschutes County has a lot of Class VII soil, which explains why agriculture is so limited in the County, especially if water rights are not available. No wonder no farmer/rancher had ever tried to put the 710 property into agricultural production.

In sum, the evidence before the County showed that (1) no farmer/rancher in the area believed that the property could be farmed/ranched, (2) there had never been a farm/ranch operation of any kind on the property, (3) the cost to try and farm the property were astronomical and any farmer/rancher trying to run an operation would quickly go bankrupt, and (4) the soils on the property are so bad that ranching was impossible.

Does that sound like “farmland” to you?  It doesn’t to anyone else either (at least anyone who’s rational), and certainly not to the County.  The County decided that the 710 property should be put to a use that might provide some benefit to both the property owner and the public.  That’s exactly what the County did.  Unfortunately, DLCD had other ideas.

DLCD opposes rezone and joins lawsuit.

Undaunted by logic, history, common sense, or the capability to wisely choose its battles, DLCD decided to oppose the County’s approval of 710’s request to change the zoning on their never-been-farmed “farmland”, and joined a lawsuit against the County.

According to DLCD, the County made a mistake in changing the 710 zoning because they failed to consider all of the possible farm uses that could be made on the 710 property. Applying true bureaucratic logic, DLCD argued that the County placed too much emphasis on profitability of the property when determining whether it was “farmland”.

Really? Think about that. If a rancher can’t make money, he’ll soon go out of business. If the rancher goes out of business, the land isn’t going to be used for ranching. If the land isn’t used for farming, then it isn’t “farmland”, it’s just open space, which is really what DLCD cares about. The agency isn’t interested in protecting farmers, they’re interested in protecting open space.  Calling it “farmland” is just a useful tool to tug on the heartstrings of the public.

According to DLCD, whether the 710-acre parcels could actually be used for grazing wasn’t the issue. Instead, the County should have focused on the ability of 710 to use the property to repair farm equipment. I’m not kidding – that’s really what DLCD argued.  Apparently, a rancher with 710 acres has to keep the entire property zoned for farmland if they can build a 3,000 square foot warehouse on a half-acre of the property to be used for repairing tractors.

DLCD was just getting started. They next argued that even though the 710 property had not and was never going to be used for ranching operations, it should still be considered “farmland” because someday a rancher might put cattle on the property and haul in feed from other areas to feed the cattle.

Huh? As 710 pointed out, if DLCD is going to apply that logic, then every parcel in Oregon should be considered “farmland”.  After all, you could put 50 head of cattle into the Washington Square Mall parking lot and haul in feed to them. Does that make the parking lot of the Washington Square Mall “farmland”?

Finally, DLCD argued that the County made a mistake by not considering whether the 710 property was “farmland” because it might be able to be used in conjunction with nearby or adjacent parcels.  Of course, that ignores the fact that (1) 710 doesn’t own any of the nearby or adjacent parcels, and (2) there was uncontroverted evidence that the 710 property had never been farmed or ranched, either alone or in conjunction with anyone ever.

State’s interpretation of “farmland” persuades court.

We now get to the really bad part – the Oregon Land Use Board of Appeals (LUBA) who heard DLCD’s appeal, agreed with DLCD’s arguments.  But before you blame LUBA, understand that the reason DLCD was able to make these ridiculous arguments is because the arguments (and LUBA’s decision) are based upon DLCD’s own rules! In other words, DLCD gets to be the ultimate authority on what is “farmland” while property owners are forced to sit back and do nothing with their land because DLCD’s own rules defy logic, history, economics, public and private benefit, and common sense.

DLCD’s choice to engage in this lawsuit begs the question – doesn’t the agency have anything better to do with its time (and the public’s tax dollar) than trying to stop needed housing based on a fiction that ignores reality? Unfortunately, the answer appears to be no.

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.