1000 Friends of Oregon v. Board of County Commissioners

SCHWAB, C. J.,

concurring.

I agree with the result. The county’s findings should "precisely state what it found to be the facts and * * * explain why those facts lead it to the decision it makes.” Home Plate, Inc. v. OLCC, 20 Or App 188, 190, 530 P2d 862 (1975); see also, McCann v. OLCC, 27 Or App 487, 556 P2d 973 (1976), rev den (1977). They do not.1

Since we are remanding because of insufficient findings, I do not think it is necessary to discuss all issues raised. I do not join the parts of the majority opinion that deal with issues other than whether the *431findings are adequate to demonstrate compliance with LCDC Goal 3.2

Some analysis of LCDC Goal 3 may be warranted as guidance on remand. However, I fear the majority’s discussion of the LCDC goals, particularly Goal 3, may be capable of misinterpretation. I join that part of the majority opinion based on my understanding that it holds:

1. LCDC goals apply to these subdivision approvals issued during 1975. Although Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 569 P2d 1063 (1977), only held LCDC goals applied to a comprehensive plan amendment during 1975, the rationale of Sunnyside combined with the rationale of Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904, rev den (1977), makes the goals equally applicable to subdivision approvals during 1975.3

2. Goal 3, standing alone, requires that all agricultural land be planned and zoned exclusively for farm *432use. However, interpreted in context with the other goals, there are exceptions that permit planning and zoning agricultural land for nonfarm use.

3. Agricultural land, as defined by Goal 3, means: (a) in western Oregon, land with predominantly Class I through IV soil; Ob) other land which is suitable for farm use; and (c) other land on which use needs to be restricted to protect farm use on adjacent or nearby land.

4. While Goal 3 generally mandates exclusive farm use zoning for all agricultural land so defined, nothing in Goal 3 or ORS ch 215 prohibits a county from zoning other land EFU, even though it is not agricultural land within the meaning of Goal 3.

5. The cross-reference in Goal 3 to the definition of farm use in ORS 215.203 is a reference to what use, present or future, that agricultural land should be "preserved and maintained for”; it is not part of the definition of what land will be "preserved and maintained.”

6. The reference in ORS 215.203(2)(a) to the "current employment” of land is irrelevant in applying Goal 3 because it is a tax rule, not a land use rule.

7. The reference in ORS 215.203 to the profitability of agricultural land probably means that it is not mandatory that agricultural land within the meaning of Goal 3 be zoned for farm use if a county determines that the land cannot presently or in the foreseeable future be farmed profitably by any reasonable and prudent farmer {seen 2, supra) and that determination is supported by substantial evidence. But the evidentiary burden in such a situation would likely be substantial, because Goal 3 would seem to at least create a presumption that Class I through IV soil can be profitably farmed. However, I do not understand the majority to be ruling one way or the other on this profitability issue, nor do I.

The normal first step in applying Goal 3 would be a specific finding on soil types. LCDC has ruled that a given piece of property either is or is not predominantly Class I through IV soils. Lord and Skrepetos v. Jackson County, LCDC Opinion and Order No. 77-001.

I agree with the majority that the county’s March, 1976 amended finding that "[gjeneral agricultural suitability classes include mostly Classes m, IV and above with some small amounts of Class II” is a reference to the Kings Valley area, not a finding about the soil quality of the subject property. This becomes clear from examination of the county’s original July and September, 1975 findings that the subdivisions would be on land with "soils of predominantly Class H, m and IV agricultural capacity.”

If I felt it necessary to reach the issue, I would disagree with the majority’s conclusion that there is substantial evidence to support the findings that the land to be subdivided is "marginally productive farmland” and that the proposed subdivisions will not "interfere with the fanning and forestry activities in the surrounding area.” On the productivity issue, the only evidence I find is that the prior and current owners, who for all I know from the record made no serious effort to produce from the land, have been relatively unsuccessful. But as I thought the majority at least implied in referring to landowners "simply taking their land out of production,” 32 Or App at 425, one owner’s lack of success should not be regarded as substantial evidence about what could be produced by a reasonably motivated and skilled farmer. On the interference issue, I find no evidence in the record.

Since 1973, ORS 197.300(l)(b) has at least implied that "a land conservation and development action” is subject to LCDC goals. I interpret the quoted phrase as including subdivision approval. Recent amendments are even more explicit. ORS 197.252, adopted in 1977, authorizes LCDC "to direct the city or county to apply specified goal requirements in approving or denying future land conservation and development actions * * ORS 197.275(2), adopted in 1977, provides that after LCDC has acknowledged that a county’s comprehensive plan is in compliance with LCDC’s goals, "the goals shall apply to land conservation and development actions and annexations only through the acknowledged comprehensive plan * * The implication is that unless there is an acknowledged comprehensive plan, the goals apply to land conservation and development actions, i.e., subdivision approvals, independently.