Riverbend foes stake out case

By HANNAH HOFFMAN

Of the News-Register

Waste Not of Yamhill County submitted arguments to the Oregon Court of Appeals Tuesday, outlining reasons it feels the court should uphold reversal of Yamhill County's Riverbend Landfill expansion - or, alternatively, refuse to hear the case at all and simply let the Land Use Board of Appeals ruling stand.

Waste Not, long the most vocal opponent of landfill expansion, went before the appeals court on its own. It led a consortium of 18 appellants in pressing the original appeal to LUBA, but could not muster outside support for the ensuing stage.

Waste Not's appeal brief was written by Bill Kabeiseman of Portland's Garvey Schubert Barer. His overriding argument was that the arguments the county presented in its brief were not part of the presentation to LUBA, so should not be considered on appeal.

Commissioners Kathy George and Leslie Lewis cast the deciding votes in the original decision. Commissioner Mary Stern recused herself because her husband works in the waste industry.

The core issue on appeal turned out to be whether Riverbend was entitled to take an exception to Goal Three in the state's land use goals and guidelines, mandating preservation of farmland. LUBA said that because state goals make landfills a permitted use in farm zones, but the county's land use ordinance does not, Riverbend instead needed to seek amendment of the county ordinance.

Kabeiseman gave only passing mention in his LUBA brief - barely a page - to the exception argument. He devoted most of his lengthy brief to six other arguments.

However, LUBA didn't even take up any of the arguments on issues of substance. In an opinion written by Melissa Ryan, it remanded the case solely on the procedural exception issue.

The county and company quickly decided to appeal.

They argued in their joint brief to the court that an exception was necessary because Oregon administrative rules didn't allow expansion of a landfill onto high-value farmland. They also argued that LUBA relied on case law that had subsequently been overturned by the Oregon Legislature.

In his response, Kabeiseman argued that because they had not raised the administrative rules issue in the LUBA proceedings, they were not entitled to introduce it now. He went on, in fact, that the opposition brief raised a number of new issues, which he termed grounds for outright rejection of the case.

However, he did briefly speak to the exception argument. He maintained the state goals are the final word on the subject, superseding any county ordinances that may conflict.

The Court of Appeals is scheduled to take up the case at 9 a.m. Wednesday, Oct. 6, in Salem.