LUBA reverses county on Riverbend
By HANNAH HOFFMAN
Of the News-Register
The state Land Use Board of Appeals has reversed Yamhill County's November approval of a major expansion at Riverbend Landfill, a regional disposal facility lying just south of McMinnville on the banks of the South Yamhill River.
Commissioners Kathy George and Leslie Lewis ended 17 months of deliberation by granting their approval Nov. 9. Commissioner Mary Stern recused herself because her husband, now employed by Riverbend parent firm Waste Management Inc., was overseeing recycling programs for local hauler Western Oregon Waste.
LUBA's ruling, authored by Melissa Ryan, came on a narrow and largely procedural point. It did not address the main points of contention.
Ryan said the county should have amended its zoning ordinance to allow landfills on farmland. It erred by instead embarking on a rezoning, she said, thus putting the onus on Riverbend to justify an exception to the state Land Conservation and Development Commission's Goal Three, calling for preservation of agricultural land.
If the county plans to stay the course, and it gave no indication otherwise, that leaves it with two options.
It can take LUBA's advice and start over again, this time on an ordinance-amendment rather than goal-exception track, recognizing that a new LUBA appeal on the other end is virtually certain. Or it can simply press on by filing an appeal of its own and pursuing the matter in Oregon's court system.
Waste Management's Jackie Lang said the company would either appeal the decision or urge the county to move ahead on a zoning ordinance change. From the company's point of view, she said, "Walking away is not an option."
The ruling drew praise from only one quarter - the coalition of 19 individuals and groups that filed the LUBA appeal in January. In a press release issued Thursday by Susan Watkins, president of the opposition group Waste Not of Yamhill County, she said the coalition was "gratified" by the ruling.
She said the coalition was hoping the county would drop landfill expansion plans altogether and "instead work with the community to find a new way to manage solid waste." She said the coalition felt it was time for the county commissioners to begin planning for a "post-landfill future."
Others showered the ruling with criticism.
Assistant County Counsel Rick Sanai, who handles the county's land use cases and representing it in the appeal proceedings, accused LUBA of reaching a wrong legal conclusion, partly by discounting an important and relevant land use case from 2007. He cited VinCep v. Yamhill County, where the ruling held that if either local or state rules prohibited a use allowed under Goal Three, the exceptions process could be used.
Tommy Brooks of Portland's Cable Huston, who represented Waste Management in its status as an intervenor, echoed Sanai in arguing the ruling contradicted established legal precedent. Lang termed it confusing, narrow and disappointing.
Planning Commission Chair Daryl Garrettson leveled yet sharper criticism, even though his board voted unanimously to recommend the commissioners deny Riverbend's expansion application. He said members of the LUBA board ducked all the issues of substance, handing down a decision based solely on a narrow procedural issue.
"They took the easy way out," he said. He termed the result "ridiculous" and "crazy."
Garrettson, a lawyer himself, said the decision ignored the main point of the appeal - whether or not "need" for a regional facility should be assessed on a local or regional level - plus all five points other points of substance. Buttressing his argument, the appellants themselves devoted 18 pages addressing the need issue, but just a bit over a page to the sole point LUBA chose to address.
Garrettson said LUBA's decision did not settle the issue of whether Riverbend should be expanded or not, and he was joined by Lang and Brooks. They said LUBA's failure to address any issue except the procedural one focusing on the exceptions process left Waste Management in the dark about what the board actually thought of the expansion itself - and thus how it might rule on the underlying issues in a future proceeding.
County Commissioner Lewis and County Planning Director Mike Brandt said they disliked LUBA's suggested course of amending the county's zoning ordinance to permit siting of landfill's in farm zones. They said it presented several potential problems, which county officials had identified and discussed earlier.
In fact, Lewis said, lack of appropriate zoning could make it difficult, if not impossible, to approve a plasma arc gasification plant on the site at some point in the future - something that landfill opponents embrace as a move in the right direction.
But Lang and Brooks said the lack of clarity on the issues of substance made taking the case to the Court of Appeals fraught with hazard.
They said the court might easily reverse LUBA on the procedural issue, but find ground to reverse the county on one of the various issues left unadjudicated.