Meyer v. Lord

• Decision Date: 06 November 1978
• Docket Number: No. 77-001,77-001
• Citation: 586 P.2d 367,37 Or.App. 59
• Parties: Albert C. MEYER and Dom Provost, Petitioners, v. Cynthia LORD, Chris Skrepetos, and Land Conservation and Development Commission, Respondents. LCDC; CA 10346.
• Court: Oregon Court of Appeals

Page 367

586 P.2d 367

37 Or.App. 59

Albert C. MEYER and Dom Provost, Petitioners, v. Cynthia LORD, Chris Skrepetos, and Land Conservation and Development Commission, Respondents.

LCDC No. 77-001; CA 10346.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1978.

Decided Nov. 6, 1978.

Ronald K. Cue, Ashland, argued the cause and filed the brief for petitioners.

Robert E. Stacey, Jr., Portland, argued the cause and filed the brief for respondents Lord and Skrepetos.

Frank W. Ostrander, Asst. Atty. Gen., Salem, argued the cause for respondent Land Conservation and Development Commission. With him on the brief were James A. Redden, Atty. Gen., Salem, and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE, RICHARDSON and JOSEPH, JJ.

JOSEPH, Judge.

Intervenors seek judicial review of an order of the Land Conservation and Development Commission (LCDC) which vacated a zone change by Jackson County and remanded the matter to the Board of County Commissioners (Board) for reconsideration consistent with the LCDC opinion. The petition for review before LCDC challenged a zone change for a 70-acre parcel in a 250-acre farm owned by intervenors. The prior zoning was Exclusive Farm Use (EFU), which permitted outright the building of residential structures only in conjunction with farm use. The new zoning would be Farm Residential (F-5), which permitted the building of a single family residence on any lot of at least five acres.

Intervenors' application for the zone change was initially presented to the Jackson County Planning Commission (Commission). The evidence adduced at public hearings before the Commission (and eventually relied upon by the Board) established that the 70-acre parcel was held in the same ownership as the remainder of the farm and had been part of the commercial operation of the farm. It was separated from the rest of the farm by a state highway and served as a spring grazing area for 30 to 60 days each year. It was also used as a winter feed area to keep the farm's livestock off the lower-lying pastures during the wet season. The person who leased and operated the farm testified that if the 70 acres were not available for those purposes, he would either have to lease additional land or take some of the remainder of the farm out of row crop production.

There was evidence prepared by the planning staff that approximately 55 percent of the 70 acres consisted of the kinds of soil in capability classifications I-IV. There was also evidence, however, that due to the excessive slope of the land only 15 percent was suitable for agricultural production and that the 70-acre parcel by itself could not be profitably farmed, despite the soil classifications.

Because of doubts concerning the application of LCDC Goal 3 and the need for the rezoning, the Commission was unable to reach a consensus on the zone change application. The matter was referred to the Board with recommendations both to approve and to reject the zone change. The Board took additional testimony from the county soil scientist concerning the capability classifications system and the procedure utilized in classifying the soils of the 70-acre tract. After hearing his testimony and reviewing the evidence presented before the Commission, the Board expressed skepticism with regard to the map prepared by the planning staff that indicated the soil classifications. In particular, the Board members were concerned about the reliability of the procedure used in preparing the map and were not satisfied that the capability classification system adequately reflected the significance of the actual slope of the land. The Board concluded that regardless of the fact that the soil classification map showed predominantly Class I-IV soils, the slope prevented the parcel's being profitably farmed. Therefore, the Board (erroneously) deduced the soils must not be predominantly in capability Classes I-IV. The Board also concluded that the tract was not necessary to permit farm practices on adjacent or nearby lands, because land could be leased to substitute for the 70 acres in the operation of the farm. Based upon those conclusions, the Board ruled that LCDC Goal 3 (infra, p. 371) was inapplicable. Finding a public need for the zone change, the Board approved intervenors' application.

LCDC vacated the zone change, concluding (1) that the Board, being skeptical of the only available information directly bearing on the capability classifications of the soils, should have obtained more detailed and reliable information concerning capability classifications before turning to more general evidence concerning the suitability of the land for farm use; and (2) that where a land use decision is to be made with regard to a tract which is held in common ownership with adjacent farmland and is utilized in a farming enterprise on that land, the parcel should not be viewed separately from the farm as a whole in determining if it is agricultural land.

In addition to challenging those conclusions, intervenors assert that the statutory scheme to establish LCDC and grant it authority to establish state-wide land use planning goals (See generally ORS ch. 197) delegates legislative power in violation of Article III, section 1, and Article IV, section 1 of the Oregon Constitution. They also argue that the scope of Goal 3 is dependent upon the actions of an agency of the United States Government, in violation of Article I, section 21 of the Oregon Constitution. Finally, they would have this court hold that by defining "agricultural land" in Western Oregon conclusively to include lands composed predominantly of Class I-IV soils and by mandating that all such lands be placed in Exclusive Farm Use zones, LCDC has exceeded its statutory authority.

Constitutional and Statutory Issues

The issues concerning LCDC's authority can be answered briefly, taking the last first.

1. Statutory Authority

Intervenors' argument that Goal 3 exceeds LCDC's statutory authority is based on the premise that it Requires all lands in Western Oregon consisting predominantly of Class I-IV soils to be placed in EFU zones. Assuming, for the sake of argument, that such a requirement would exceed LCDC's authority, goal 3, taken together with the other goals, is not so inflexible. For example, land within urban growth boundaries may not be governed by the requirement. Land consisting predominantly of Class I-IV soils which is irrevocably committed to non-farm use by adjacent development may be zoned for non-farm uses under Goal 2 exception procedures. 1000 Friends of Oregon v. Marion County, LCDC Opinion and Order No. 75-006 (March 2, 1977). Furthermore, Goal 3 mandates that agricultural land be placed in exclusive farm use zones only if that is "consistent with existing (and future) needs for agricultural production, forestry and open space." 1000 Friends v. Benton County, 32 Or.App. 413, 426, 575 P.2d 651, 659 (1978). We have also said that a finding of predominance of Class I-IV soils does not necessarily require EFU zoning if there is a finding based upon substantial evidence that the land cannot presently or in the foreseeable future be utilized for "farm use" as defined in ORS 215.203. 1000 Friends v. Benton County, supra. Finally, land that is included within an EFU zone pursuant to Goal 3 may be used for certain non-farm purposes in accordance with the variance provisions of ORS 215.213.

Intervenors' argument that Goal 3 exceeds LCDC's statutory authority is also based on another fallacious premise. They rely on ORS 197.230(1)(d), which directs LCDC to

"(d)esign goals to allow a reasonable degree of flexibility in the application of goals by state agencies, cities, counties and special districts."

That statute was enacted in 1977 and is inapplicable to Goal 3. ¹

We conclude that the Goal 3 requirements are consistent with LCDC's statutory authority.

2. Delegation

Intervenors' arguments that the statutory scheme is unconstitutional in that it delegates legislative power to LCDC and, in effect, to an agency of the United States Government are untenable. The delegation of legislative authority to an administrative agency does not violate the Oregon Constitution. The test for the validity of a delegation is

" * * * whether the practical necessities of the efficient administration of legislative policy requiring the delegation of discretion outweigh the danger of discriminate (sic) action." Horner's Market v. Tri-County Trans., 256 Or. 124, 132-33, 471 P.2d 798, 802 (1978).

In Warren v. Marion County, 222 Or. 307, 313, 353 P.2d 257, 261 (1960), it was established that

"(t)here is no constitutional requirement that all delegation of legislative power must be accompanied by a statement of standards circumscribing its exercise. * * * "

The existence of Standards is relevant in assessing the validity of delegation, but the existence of Safeguards for those whose interests may be affected is determinative. See Horner's Market v. Tri-County Trans., supra. In this instance, there are both standards (See ORS ch. 215) and safeguards. ORS 197.310(5). ² Intervenors have made no showing that the provisions for judicial review of LCDC actions are inadequate. Indeed, this very case demonstrates the contrary.

Intervenors argue that by referring to the soil capability classification system of the U.S. Soil Conservation Service in defining " agricultural land," Goal 3 is in violation of Article I, section 21, of the Oregon Constitution. The legislature or an administrative agency may adopt a particular edition of a set of standards or a codification so long as future modifications or alterations by the agency or organization responsible for the standards are not automatically included. Seale v. McKennon, 215 Or. 562, 336 P.2d 340 (1959); Hillman v. North. Wasco Co. PUD, 213 Or. 264, 323 P.2d 664 (1958). LCDC adopted the soil capability classification system only as it existed at the time...