DocketNumber： 2012005; A152666
Citation Numbers： 255 Or. App. 636, 298 P.3d 586
Judges： Armstrong, Brewer, Duncan, Tempore
Filed Date： 3/19/2013
Status： Precedential
Modified Date： 7/24/2022
Petitioners seek judicial review of a final order of the Land Use Board of Appeals (LUBA). LUBA’s order affirmed Yamhill County’s approval of respondent Stoller’s
We take the facts from LUBA’s order.
In 2003, the county approved Stoller’s application for a winery under the authority of what is now codified as ORS 215.283(l)(n) (establishing wineries as a permitted use in EFU zones) and ORS 215.452 (setting forth the requirements for permitted-use wineries in EFU zones). The
On May 31, 2011, Stoller applied for a conditional-use permit (CUP), seeking approval for the construction of a new building located near the existing winery that would include a “tasting room, commercial kitchen, offices and storage.” It also proposed to conduct 44 events per year on the property and requested approval to provide meal service at the events. The county approved Stoller’s application for the building and related activities under ORS 215.283(2)(a) (and related county ordinances) as “[c]ommercial activities that are in conjunction with farm use.” For purposes of our opinion, we will refer to commercial activities that are permitted under ORS 215.283(2)(a) as farm-use-related commercial activities.
The county’s approval of Stoller’s application was subject to various conditions. As to “events,”
“[t]he events, whether public or private, are allowed only if those events are: 1) directly related to the sale and promotion of wine produced in conjunction with the winery; 2) incidental and subordinate to the retail sale of wine on-site; 3) hosted by the winery or by patrons of the winery; and 4) feature wine produced in conjunction with the winery. The events shall be held between the hours of 8:00 AM and 11:00 PM. The total number of persons permitted on the subject property at any one time, excluding staff, for any one event shall not exceed four hundred (400) persons.”
The CUP also allows catered meals, prepared by a commercial caterer, at any of the events, and authorizes the new on-site commercial kitchen to prepare meals for not more than 72 guests per event.
“An annual report on the facility to show that it meets the conditions related to the events shall be filed with the Planning Director. A fee for such review may be imposed. The gross income from the non [-] wine [-] related activity may not exceed 25 percent of the gross income from the retail sale on-site of wine produced in conjunction with the winery.”
Petitioners appealed the county’s decision to LUBA, raising three assignments of error—(1) the county erred in allowing the events as a farm-use-related commercial
On judicial review, petitioners, in a single assignment of error, assert that LUBA “[e]rred in affirming the County’s Decision to allow a new event venue on farm land in contravention to the limits imposed on commercial uses in conjunction with farm use under ORS 215.283(2)(a).” As refined at oral argument, we understand petitioners’ argument to reduce to the following two contentions: (1) the approved commercial activity—in particular, the “events venue and commercial food service facility”—is a new use that cannot, be considered to be “in conjunction with farm use” under ORS 215.283(2)(a); and (2) even if it is, the level of activity exceeds the “incidental” limitation imposed on such activity under the applicable law. Respondents, on the other hand, contend that this case presents a straightforward application of ORS 215.283(2)(a), as interpreted in this court’s and the Supreme Court’s decisions in Craven v. Jackson County, 94 Or App 49, 764 P2d 931 (1988) (Craven I), aff’d, 308 Or 281, 779 P2d 1011 (1989) (Craven II), which the county and LUBA correctly applied. We agree with respondents.
Before addressing petitioners’ specific contentions, we pause briefly to trace the development of the pertinent law. The legislature’s general policy regarding agricultural land use is set forth in ORS 215.243, which provides:
“The Legislative Assembly finds and declares that:
“(1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic and economic asset to all of the people of this state, whether living in rural, urban or metropolitan areas of the state.
*642 “(2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state’s economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation.
“(3) Expansion of urban development into rural areas is a matter of public concern because of the unnecessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion.
“(4) Exclusive farm use zoning as provided by law, substantially limits alternatives to the use of rural land and, with the importance of rural lands to the public, justifies incentives and privileges offered to encourage owners of rural lands to hold such lands in exclusive farm use zones.”9
The statutory provision under which Stoller’s application was approved was originally enacted in 1983. See Or Laws 1983, ch 826, § 17. It provided:
“Subject to ORS 215.288, the following nonfarm uses may be established, subject to the approval of the governing body or its designate in any area zoned for exclusive farm use:
“(a) Commercial activities that are in conjunction with farm use.”
ORS 215.283(2)(a) (1983). Thus, the key wording—“commercial activities that are in conjunction with farm use”—has not changed since its original enactment.
Both we and the Supreme Court addressed the meaning of that provision in Craven, which involved the approval of an application for a winery on EFU-zoned land. There, LUBA had affirmed Jackson County’s decision approving the applicant’s request to establish a winery on a
The petitioner, an adjacent land owner, sought judicial review before this court, arguing, among other things, that the winery use was not in conjunction with farm use because it would serve tourists rather than farmers. We concluded that it served both, reasoning that “[a] commercial use which assists farmers in processing and marketing crops can be as supportive of agricultural operations as one which aids them in producing crops.” Id. at 54. We also rejected the petitioner’s argument that “the tasting rooms and sale items, such as glasses and T-shirts, are not connected with farm use, whether or not the winery operation itself is.” Id. Recognizing that this presented a closer question, we nonetheless concluded:
“[I]t is consistent with the statute for the county to determine that incidental activities of those kinds can be permitted, to the extent that they are secondary to and support the wine processing and selling activities of the winery. See Cook v. Yamhill County, 13 Or LUBA 137 (1985). There is, of course, a risk of the tail wagging the dog in many situations where secondary activities are permitted because they serve primary ones, but petitioner offers no reason for concluding that that risk is present here.”
Id.
The Supreme Court affirmed. Craven II, 308 Or 281. The court first considered whether the proposed winery use could be viewed as a “farm use” under ORS 215.203(2)(a), which—then and now—defines the term to include “the
“The phrase upon which the validity of the CUP turns is ‘in conjunction with farm use,’ which is not statutorily defined. We believe that, to be ‘in conjunction with farm use/ the commercial activity must enhance the farming enterprises of the local agricultural community to which the EFU land hosting that commercial activity relates. The agricultural and commercial activities must occur together in the local community to satisfy the statute. Wine production will provide a local market outlet for grapes of other growers in the area, assisting their agricultural efforts. Hopefully, it will also make [the applicant’s] efforts to transform a hayfield into a vineyard successful, thereby increasing both the intensity and value of agricultural products coming from the same acres. Both results fit into the policy of preserving farm land for farm use.
“Sales of souvenirs which advertise the winery may cause others to come to the area and buy the produce of the vineyards and farms roundabout. Such sales may reinforce the profitability of operations and the likelihood that agricultural use of the land will continue. At least LUBA could reasonably so find, as it did, and interpret the incidental sales of souvenirs with logos as being ‘in conjunction with farm use.’”
Craven II, 308 Or at 289.
The history of that legislation indicates that it was enacted to permit certain wineries to be sited on EFU land under a process that is quicker and simpler than the conditional-use process that is available under ORS 215.283(2)(a). See, e.g., Testimony, Senate Committee on Agriculture and Natural Resources, HB 2903-A, May 15, 1989, Ex F (statement of Bill Nelson, Executive Director of the Oregon Winegrowers’ Association) (explaining that the
During a special legislative session in 2010, the legislature amended ORS 215.452—the statute governing wineries permitted under the authority of ORS 215.283(1). Or Laws 2010, ch 97, § 1. Most significantly, the legislation amended ORS 215.452 to explicitly allow those wineries to sell “[i]terns directly related to the sale and promotion of wine produced in conjunction with the winery, the sale of which is incidental to retail sale of wine on-site * * *, wine not produced in conjunction with the winery and gifts,” ORS 215.452(2)(b) (2010) (emphasis added), as well as
“[s]ervices directly related to the sale and promotion of wine produced in conjunction with the winery, the sale and delivery of which are incidental to retail sale of wine on-site, including private events hosted by the winery or by patrons of the winery, at which wine produced in conjunction with the winery is featured.”
ORS 215.452(2)(c) (2010). It also clarified the meaning of “incidental” by imposing a limit on the gross income from
That was the state of the law when Stoller applied in 2011 for the permit that is at issue in this case.
With that background in mind, we turn back to petitioners’ arguments on review. Before considering petitioners’ primary arguments, we first reject the suggestion made by petitioners in their brief that the option to obtain approval for wineries on EFU-zoned land under ORS 215.283(2)(a) was somehow foreclosed by either the 1989 or 2010 legislation, which permitted, as noted, the siting of wineries that satisfied certain conditions without going through the conditional-use process, or that the requirements for permitted use wineries in that legislation have been superimposed on the ORS 215.283(2)(a) process. Neither enactment made any change to the text of ORS 215.283(2)(a). Moreover, as recounted above, the legislative history of the 1989 legislation indicates that the legislature intended to preserve the “in conjunction with farm use” option under ORS 215.283(2)(a) for wineries that do not meet the requirements of ORS 215.452. Similarly, there is nothing in the history of the 2010 bill to suggest that the legislature intended to foreclose or alter that option.
Turning now to petitioners’ primary contentions, petitioners first assert that LUBA’s “improper ‘view’” of the approved use as an “expansion of a pre-existing winery” rather than a “brand new use—a ‘wine tasting facility’ hosting events at the winery and food service—” fatally infected LUBA’s conclusion that the county did not err in approving Stoller’s application under ORS 215.283(2)(a) to conduct farm-use-related commercial activities. Semantics aside,
As discussed above, in Craven /, we rejected a strikingly similar argument made by the petitioner in that case— that is, that tasting rooms and associated retail sale activities “are not connected with farm use, whether or not the winery operation itself is.” 94 Or App at 54. We concluded that “incidental activities of those kinds” are permitted as farm-use-related commercial activities “to the extent that they are
That said, we turn to the heart of petitioners’ argument on review, which, as we understand it, is that the activities authorized by the county here—in particular, the 44 authorized events and the commercial kitchen—exceed the scope of what is permissible under ORS 215.283(2)(a), as construed in the Craven decisions, and LUBA erred in concluding otherwise.
Petitioners point out that even the limited commercial activities at issue in Craven (other than the winery itself)—that is, the construction of a tasting room and “sales of peripheral items, such as glasses and T-shirts”—presented this court with a “close” question as to whether they were properly considered to be “in conjunction with farm use.” Thus, according to petitioners, it follows that “facility rentals or other activities that are, at best, tangentially related to the marketing of farm products,” cannot possibly fall within the limited scope established by Craven. They argue:
*650 “LUBA erred in concluding that the County’s approval of 13,000 visitors per year to the Stoller events center could be construed as subordinate to the vineyard, when a significant portion of the events have no connection to the act of farming. There is no comparison between such an urban draw of visitors and the commercial sales of embossed glasses and t-shirts discussed in Craven”
Petitioners are correct, of course, that the nature of some of the commercial activities approved here—in particular, as they emphasize, the events and food-service facility—differs significantly from the sale of souvenirs, T-shirts, posters, and books that were at issue in Craven. However, the type of activity proposed is not necessarily the determining factor; rather, as the Supreme Court explained in Craven II, “to be ‘in conjunction with farm use,’ the commercial activity must enhance the farming enterprises of the local agricultural community to which the EFU land hosting that commercial activity relates.” 308 Or at 289. As we put it in Craven I,
“[a] commercial use which assists farmers in processing and marketing crops can be as supportive of agricultural operations as one which aids them in producing crops. The fact that the marketing technique may prove to be effective enough to attract travelers hardly means that the farmers whose processed produce the travelers purchase are not benefited.”
94 Or App at 54. Similarly, the Supreme Court, in determining that the incidental sale of souvenirs advertising the winery was appropriately permitted as “in conjunction with farm use,” reasoned that that activity, because it might encourage people to visit the area and buy the produce of the vineyards and surrounding farms, may “reinforce the profitability of operations and the likelihood that agricultural use of the land will continue.” Craven II, 308 Or at 289.
That is not to say that any commercial activity that is tied, however tangentially, to the marketing of wine is allowable as a farm-use-related commercial activity in connection with a vineyard operation. Rather, it is patent from the Craven decisions that any commercial activity beyond the direct processing and selling of wine must, to be approved as a commercial activity in conjunction with the
We agree with LUBA that the county’s approval of 44 events annually and a commercial kitchen at the Stoller Winery comes dangerously close to creating a scenario in which the incidental and secondary activities (events and food service) overtake the primary activity (the processing and selling of wine). However, we also conclude that LUBA did not err in determining that, as conditioned, approval of Stoller’s application nonetheless does not fall outside the scope of ORS 215.283(2)(a) as construed in the Craven decisions.
As discussed, a farm-use-related commercial activity is a conditional use, determined by the county on a case-by-case, fact-specific basis, rather than a permitted use under ORS 215.283(l)(n). Here, the county required that the 44 events be “directly related to” the sale and promotion of wine produced at the winery. In addition, income from the approved non-wine-related activity may not exceed 25 percent of the gross income from onsite retail sales of wine from the winery. Moreover, the ability to provide meal service is limited to the 44 events, and the onsite kitchen may not serve more than 72 guests per event. And, Stoller must submit an annual report demonstrating that it is meeting the imposed conditions. We agree with LUBA that those conditions are designed to ensure that the event and food-service activities will remain incidental and secondary to the processing and sale of wine.
Moreover, LUBA concluded—and petitioner does not appear to dispute—that the event and food-service activities are intended to promote Stoller wines and can be reasonably expected to enhance Stoller’s wine marketing. As LUBA concluded, “the activities, kitchen and tasting room will operate in concert to improve the chances that
Accordingly, we conclude that LUBA did not err in affirming the county’s approval of Stoller’s application as “[c]ommercial activities that are in conjunction with farm use” under ORS 215.283(2)(a).
Affirmed.
For convenience, we refer to respondents Bill Stoller, Stoller Vineyards, Inc., and Red Hills Farm, LLC, as “Stoller” in this opinion; “respondents” refers, collectively, to those parties and Yamhill County.
Although ORS 215.283 has been amended several times since Stoller completed its application, subsection (2)(a) has not changed. Thus, we cite the existing version of ORS 215.283(2)(a) in this opinion. It provides:
“The following nonfarm uses may be established, subject to the approval of the governing body or its designee in any area zoned for exclusive farm use subject to ORS 215.296:
“(a) Commercial activities that are in conjunction with farm use, including the processing of farm crops into biofuel not permitted under ORS 215.203(2)(b)(K) or subsection (l)(r) of this section.”
The parties generally agree that LUBA’s order presents an accurate summary of the facts. Petitioners challenge LUBA’s characterization of the approval as “an expansion of the existing winery”; however, that contention relates to petitioner’s legal argument that the county’s action constituted approval of a new use—one that is not in conjunction with farm use—which we discuss later in this opinion.
Then, as now, ORS 624.010 defines “limited service restaurant” as “a restaurant serving only individually portioned prepackaged foods prepared from an approved source by a commercial processor and nonperishable beverages.” ORS 624.010(5).
LUBA noted a discrepancy between that limitation and the record, which indicated that Stoller Winery “currently hosts approximately 37 on-site visitor activities and events, attracting 25-400 attendees.” In their brief on review, respondents explain that Senate Bill (SB) 1055 (2010)—which, according to respondents, “temporarily amended ORS 215.452 to allow unlimited 'private events’ at permitted[-]use wineries subject to an income limitation”—“superseded the event limitation in Stoller’s 2003 permit, allowing additional events on the Property.” Because that discrepancy is of no relevance to our review of the issues presented by the parties in this case, we express no opinion on it.
An “event” is defined, for purposes of the CUP, as “an activity for gathering or combination of activities or gatherings with a common theme, organization, or purpose.” Stoller described its events as falling into four categories: (1) public promotions, including daily wine tastings and holiday open houses; (2) wine club activities, such as wine club dinners, an annual picnic, and events for new wine releases; (3) wine industry events, including the annual Oregon Pinot Camp; and (4) community and business events, examples of which include “small Shakespearean
The approval further provides that the “use is personal to the applicant and does not run with the land,” and requires the landowner to sign and record in the deed and mortgage records for the county an affidavit acknowledging that the property is located in an area designated for agricultural uses, whose practices may “create inconveniences for the owners or occupants of the property,” but that the county “does not consider it the agricultural operator’s responsibility to modify accepted practices to accommodate the owner or occupants of this property, with the exception of such operator’s violation of state law.”
The Oregon Department of Agriculture intervened and raised additional arguments before LUBA; LUBA rejected those arguments as well, and the department does not appear on review.
In addition, Statewide Planning Goal 3 states:
“Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state’s agricultural land use policy expressed in ORS 215.243 and 215.700.”
OAR 660-015-0000(3).
The court explained that such an interpretation of “farm use”
“could justify countless uses of agricultural land by leading land use decision makers down the road of profit-making from the sale of agricultural products. Such an interpretation could permit a shopping mall or supermarket as a farm use so long as the wares sold are mostly the products of a farm someplace. Marketing of farm products could be established by a gift shop selling candles of tallow and beeswax, a clothing store that sells wools, cottons, and silks from worms nourished on cultivated mulberry leaves, perhaps even a furrier who specializes in ranch mink coats, a bakery, a coffeehouse, a butcher shop, and a pharmacy with a section featuring natural remedies from floxglove, flea bane, and Saint-John’s-wort.”
308 Or at 287-88.
Uses established under subsection (1) of ORS 215.283 are generally described as “uses as of right,” that is, uses that “may not be subjected to additional local criteria,” Brentmar v. Jackson County, 321 Or 481, 496-97, 900 P2d 1030 (1995) (internal quotation marks omitted). In contrast, a local governing body may enact and apply additional criteria to subsection (2) uses that are more stringent than those established by state law. Id. See also ORS 215.283(2) (subsection (2) uses are subject to “the approval of the governing body or its designee” and the requirements of ORS 215.296).
The 1989 legislation added a new paragraph (p) to ORS 215.283(1), providing that “[a] winery, as described in [ORS 215.452]” is a permitted use. Or Laws 1989, ch 525, § 2. The statute has been amended several times in the interim, and that provision is now codified at ORS 215.283(l)(n). The text has remained constant throughout except that, in 2011, the legislature added a new category of large wineries, see Or Laws 2011, ch 679, the requirements and limitations for which are codified at ORS 215.453. Thus, the use that is permitted by ORS 215.283(l)(n) now reads “[a] winery, as described in ORS 215.452 or 215.453.” (Emphasis added.) ORS 215.452 has also been amended several times since 1989, including in 2011. See Or Laws 2011, ch 679, § 2.
As noted, Stoller’s existing winery was approved under that new authority in 2003.
As introduced, Senate Bill 1055 included an amendment to ORS 215.452 explicitly stating that a winery that “does not meet the criteria ** * * for establishment as an outright permitted use in an area zoned for exclusive farm use under ORS * * * 215.283(l)(n)” may be approved by the local government “under the criteria for commercial activity in conjunction with farm use under ORS * * * 215.283(2)(a).” That provision was deleted by the Senate, and the legislative history does not provide an explanation for the change. We cannot assume that, simply by deleting that section of the bill, and without making any amendment to ORS 215.283(2)(a),
As contemplated by its CUP application, Stoller’s operation would not satisfy the then-existing requirements of ORS 215.452.
We agree with respondents that it is clear that LUBA did not misunderstand the nature or scope of the county’s approval. LUBA explicitly recognizes in its order that the county approved a new building, adjacent to Stoller’s existing wine-processing facility that would house a wine-tasting room, commercial kitchen, offices, and storage, as well as up to 44 events per year and meal service.
As LUBA correctly reasoned,
“[w]hile it may be possible to analyze the kitchen and additional events as commercial activities that are in conjunction with the existing Stoller Winery, it is also possible to analyze the kitchen and additional events as additions that are to become part of the existing Stoller Winery, so long as they are accurately viewed as incidental and secondary to the processing of grapes into wine for sale.”
Although, as the Supreme Court explained in Farmers Ins. Co. v. Mowry, 350 Or 686, 697, 261 P3d 1 (2011), we no longer adhere to the rule that the Supreme Court’s interpretation of a statute becomes part of the statute itself, subject only to legislative revision, see, e.g., State v. King, 316 Or 437, 445-46, 852 P2d 190 (1993), no party here argues that we should abandon the precedent established in Craven, and we decline to do so. See Farmers, 350 Or at 698 (“[W]e begin with the assumption that issues considered in our prior cases are correctly decided, and ‘the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.’” (Quoting State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613 (2005).)).
Petitioners do not challenge LUBA’s determination that the county adequately demonstrated that the approval satisfies ORS 215.296(1)—that is, that it will not “[floree 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 those surrounding lands. Therefore, we do not address that issue.