News and Opinion from Sisters, Oregon
News and Opinion from Sisters, Oregon
New state regulations have made it much tougher to put homes on farm land.
According to some land use consultants, the rules may make it nearly impossible to partition land zoned for "exclusive farm use" in the dry, relatively unproductive Sisters area.
"I think that (the rules are) calling into question whether any farm parcel can be partitioned for a non-farm dwelling in Deschutes County," said land use consultant Leslee Bangs.
County planners don't believe the rules go that far, but all agree that the definitions may have to be ironed out in court.
The rules require that an applicant for a partition study a 2,000-acre area to determine land use patterns, farm uses, the number of existing non-farm dwellings and the number of potential non-farm and lot-of-record dwellings that could be approved.
The applicant also has to determine if the proposed dwelling, with other non-farm dwellings, would "materially alter" farm use by making it "more difficult for the existing types of farms in the area to continue operation due to diminished opportunities to expand, purchase or lease farm land, acquire water rights or diminish the number of tracts or acreage in farm use..."
"It's a very tough test," said Department of Land Conservation and Development's (DLCD) Brent Lake. "There's no question about that."
Bangs thinks the test is not only tough, but liable to send land use applications to court.
She believes that the term "more difficult" - in her view pretty vague - leaves applicants wide open for litigation from neighbors who claim a dwelling would impact their ability to expand operations.
County planner Kevin Harrison acknowledged that litigation could arise.
"There's always enough subjectivity here that two people could have a different interpretation and that's where we get contested cases," Harrison said.
However, Harrison told The Nugget that such litigation would likely fail, because the county only allows non-farm dwellings on land that isn't suitable for farming - such as rocky outcrops. He believes a litigant would have a hard time proving a house on some rocks would limit his ability to expand.
In fact, county planners don't see a huge change coming from the new rules. They are more interested in the impact of a Land Use Board of Appeals case out of Crook County. The DLCD interpretation of Dorvinen v. Crook County could change the way Exclusive Farm Use land is partitioned in Deschutes County.
According to county planning staff, for the past couple of decades, the county has allowed straightforward non-farm partitions.
If somebody has 40 acres of unirrigated land, not under farm tax deferral, and they don't want to create farm parcels, they can create two 20-acre non-farm parcels. Twenty acres is the minimum lot size in such a partition.
"What DLCD is challenging at this point is our ability to have a generic minimum lot size of 20 acres for non-farm partitions," Harrison said.
According to DLCD's interpretation of Dorvinen v. Crook County, a parcel can only be cut out of a larger piece for a non-farm dwelling if the remaining land qualifies for farm use.
In the Sisters Cloverdale agricultural subzone, that requires either 63 acres of irrigated land or a 1991 assessed farm value of $14,900.
So the owner of a 90-acre dry parcel could only partition the land and put a house there if he or she got water rights and irrigated at least 63 acres of the rest of the land, or if the land had a value of almost $15,000.
"The intent is to retain land in large blocks," Brent Lake said. "If you can't show that you have a farm parcel, it cannot be further divided."
Bangs said that she and others believe that "these rules for EFU land are written assuming all of Oregon looks like the Willamette Valley."
In the Willamette Valley, soil is richer and, with greater rainfall, it takes less land to have a productive farm.
John Jinings of DLCD said the agency has no intention of making it impossible to partition farm land. He said the department is trying to provide clearer guidelines for such land use actions.
"The intent is not to preclude the opportunity for land divisions where it is appropriate," Jinings said. "I think that if jurisdictions follow these steps and apply these standards, they're going to have much more defensible positions."
Bangs thinks there'll be plenty of opportunity for jurisdictions - and applicants - to defend themselves, but they'll have to do it in court, where determining what the rules mean would be expensive.
"I don't think this is a planning issue," Bangs said. "I think it's moved into litigation where you decide 'what does this mean.'"
Jim Cornelius is editor in chief of The Nugget and author of “Warriors of the Wildlands: True Tales of the Frontier Partisans.” A history buff, he explores frontier history across three centuries and several continents on his podcast, The Frontier Partisans. For more information visit www.frontierpartisans.com.
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