There’s life in the “other suitable lands” standard yet
January 2nd, 2009 by Jim JustA decision by the Land Use Board of Appeals (LUBA) released on the last day of 2008 has resurrected from the dead the “other lands which are suitable for farm use” prong of the Goal 3 definition of “agricultural lands.”
The case was brought, briefed, and argued by Goal One Coalition board member Shelley Wetherell.
This was the first case to raise issues about “other lands which are suitable for farm use” under the Goal 3 definition of agricultural lands since the Oregon Supreme Court in Wetherell v. Douglas County, 342 Or 666 (2007) threw out OAR 660-033-0030(5). That rule had prohibited the consideration of profitability or farm income in determining whether land is agricultural lands.
We feared the court’s decision would lead to a flood of applicants claiming that they couldn’t make a profit off their land, therefore it wasn’t properly zoned for farm use and should be rezoned to allow for residential development.
And that’s exactly what happened in the Douglas County case. The subject 259-acre parcel, zoned Exclusive Farm Use-Grazing, was formerly part of a 590-acre livestock ranch. In 2005, the county approved a partition that created the subject parcel, along with two other farm parcels that lie to the north and east. Following partition each of the three parcels were managed separately, with the subject property used for seasonal grazing. The subject property is developed with a dwelling and barns, and includes two ponds.
The NRCS soils map shows the subject property consists predominantly of soils with an agricultural capability rating Class I-IV - which would make it “agricultural land” under the “soils” prong of the Goal 3 definition. The property owner hired a consultant to get around the “soils” hurdle. The consultant produced a report concluding that the property’s soils are predominantly (67%) Class V through VII non-agricultural soils and not capable of growing timber.
The subject property had changed hands several times over the last decade, at an ever-increasing price that finally lost any connection to farm value. The original 590-acre farm was sold for $1,095,000 ($1,856/acre) in 1995, and for $1,463,000 ($2,480/acre in 2000. In 2006, the subject 259 acres of the original 590 acres were sold for $3,000,000 ($11,583/acre).
LUBA agreed with Wetherell that the property owner could not rely on the cost of servicing his debt on the property to argue that he couldn’t make a profit and that the land therefore wasn’t agricultural land. LUBA held that the relevant question is whether a reasonable farmer could lease or purchase the property for a lease or mortgage payment that reflects the property’s farm value and, with the other expenses that would be required to farm the property added to that lease or mortgage payment, generate farm income that would be sufficient to make a profit.
Goal 3 and its implementing rules (specifically OAR 660-033-0020(1)(b)) also protect as “agricultural land” “[l]and in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit.” LUBA held, where the farm unit has only recently been broken up, the county must ask whether there is any significant obstacle to resumed joint operation. In the situation presented by this case, the remaining parcels within the original farm unit adjoining to the north and east are zoned farm grazing and continue in farm use as pastureland, and there’s nothing in the record to explain why the subject property could not be used together with those other lands for that farm use.
While not completely undoing the damage from the Supreme Court’s decision, LUBA’s ruling puts some starch back into a Goal 3 rule which was looking pretty limp.



