Court hears Riverbend arguments

By HANNAH HOFFMAN

Of the News-Register

Arguments contesting and supporting the state's rejection of a proposed Riverbend Landfill expansion were heard in summary fashion Wednesday by the Oregon Court of Appeals.

Judge Timothy Sercombe, member of the three-judge panel hearing the case, took the lead in questioning opposing attorneys. He grilled both camps on the fine points of their arguments.

Yamhill County, which granted expansion approval, and Waste Management Inc., which owns the landfill, are appealing a July reversal by the state Land Use Board of Appeals.

Commissioners Kathy George and Leslie Lewis voted in November to approve the expansion, capping nearly 18 months of contentious hearings and debate. Commissioner Mary Stern recused herself because her husband makes his living in the waste disposal industry.

Waste Not of Yamhill County, a local non-profit opposing the expansion, immediately appealed to LUBA. LUBA reversed the commissioners on the grounds the county should have amended its zoning ordinance to allow landfills on farmland instead of having Riverbend take an exception to statewide planning Goal Three on preservation of farmland.

The LUBA decision prompted an appeal in turn by the county and company.

Waste Not's lawyer, Bill Kabeisemen of Portland's Garvey Schubert Barer, maintained Riverbend had raised arguments on appeal that it had not raised in its presentation to LUBA. On that grounds, he urged the court to toss the appeal.

Sercombe focused most of his questioning on this point.

Riverbend's lawyer, Tommy Brooks of Portland's Cable Huston, said arguments raised in the appellate brief simply amplified and expanded on arguments made before LUBA earlier - to the effect that the county had legal precedent to take an exception to a statewide goal if the applicant had no other legal alternative under local ordinance. He also argued that a bill enacted by the Oregon Legislature had effectively overturned the case law LUBA relied on in issuing its reversal.

Kabeiseman told the court the appellants had not addressed the legislative action earlier in the proceedings, so could not legally address it now. In any event, he said, the county couldn't take an exception because Goal Three allow landfills on farmland, putting the county's existing ordinance at odds with the established goal.

Sercombe countered by saying Riverbend's application required both a county zone change and a comprehensive plan amendment. Plan amendments require exceptions, he said.

Both sides had previously submitted written briefs, which will be considered along with Wednesday's oral arguments. The court did not indicate when it might reach a decision and issue a ruling.

The court could affirm LUBA's decision, reverse it outright or remand it for reconsideration.

A remand would give LUBA a chance to rule on the other six arguments raised by the opposition in its original appeal. LUBA only ruled on one in its July decision, arguing it was controlling.