Clerk modifies Riverbend statement

By DAVID BATES

Of the News-Register

Not that the first one had much time in the sun, but a new explanatory statement will accompany the Riverbend Landfill initiative. It was drafted by Yamhill County officials in response to a challenge by the measure's authors, who were unhappy with the original.

Yamhill County Clerk Jan Coleman, in consultation with the county's legal counsel, released the revised text Tuesday afternoon. The administrative action, which followed a brief hearing on Monday, represents yet another step for the initiative's beleaguered march to the Nov. 4 ballot.

The initiative was written by Ramsey McPhillips, whose family farm borders Riverbend, and neighbor Lillian Frease. It seeks to prohibit the expansion of existing landfills or development of new ones within 2,000 feet of flood plains.

That has major repercussions for Riverbend, which says it needs to expand its footprint near the South Fork of the Yamhill River in order to stay in business.

The two parties had already gone a couple of rounds in court over the wording of the ballot title, and yet another over whether the initiative qualified, on constitutional grounds, for the ballot in the first place.

County officials, who are required under Oregon law to draft the wording of measures based on the petitioner's intent, have found themselves stuck in the middle.

County Counsel John Gray and Assistant Counsel Rick Sanai, for example, have ended up making legal arguments favorable to the petitioners on some occasions and favorable to the company on others. The latest essentially splits the difference.

County officials prepared an explanatory statement raising the specter of the "goalposts" rule, which has been a fixture of Oregon land-use law since the 1970s. The law states that approval or denial of land-use applications involving zoning "shall be based on the standards and criteria that were applicable at the time the application was first submitted."

Riverbend submitted its expansion application to the Yamhill County Planning Department in June. For that reason, the original explanatory statement termed it "unlikely" the initiative would have its intended effect on Riverbend.

Petitioners objected, accusing officials of engaging in unfair speculation. The new statement indicates it is "yet to be determined" whether the goalpost law would apply, but nonetheless raises that possibility.

McPhillips said Tuesday that wouldn't preclude commissioners from rejecting the proposed expansion, however. He said there are numerous factors to consider even under current law.

He also said the initiative could send a powerful advisory message.

"If the voters make it clear that they do not want any landfills expanding into our flood plains, one would assume that the commissioners would take that into consideration when deciding the fate of the Riverbend application and reject the application," he said.

McPhillips termed it unlikely the commissioners would "trump the will of the voters and side with a Texas monopoly, which has such a stranglehold on our local economy and environment." The latter was a reference to Waste Management Inc., Riverbend's Houston-based parent company, which is the nation's largest waste disposal company.

However, the law charges the commissioners, acting in a quasi-judicial capacity, with applying state regulations without regard for factors like public opinion. Anything outside that establishes grounds for appeal to the state Land Use Board of Appeals.

The goalpost rule may appear to offer Riverbend a shield against the initiative - Measure 36-119 - but the company doesn't plan to take any chances.

"Trying to stop the expansion of Riverbend Landfill is a land-use issue, something that is appropriate only in a quasi-judicial forum where there will be a hearing and an unbiased decision-maker," said Waste Management spokeswoman Jennifer Andrews. "We don't think it's fair to change that process now that we have submitted an application for expansion."

In a related matter, petitioners say they've heard rumors about a possible appeal of the case Riverbend lost Monday in Yamhill County Circuit Court on the measure's constitutionality.

Andrews said no decision had been made on that yet. "We are weighing our options," she said.