CU24-028 BOC Order - Laserfiche WebLink

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April 14, 2025 Marion County Board of Commissioners Page 2 1) The Hearings Officer applied the incorrect standard and therefore erred as a matter of law in finding that the mulching operation is not essential to the practice of agriculture under MCC 17.136.060(D)(4). The Hearings Officer stated that the relevant question of law was "whether the commercial activity is something particularly unique to farm users and farm use practices." This standard is inconsistent with Oregon law. The City of Sandy v. Clackamas County, LUBA No. 94-10 (1994) cited several examples to show that there must be a close relationship to the proposed commercial activity with farm uses. However, the City of Sandy did not create a bright line rule that an activity used in an industry other than farming cannot qualify as a commercial activity in conjunction with farm use as a matter of law. Applicant does not need to establish that farmers do not have any alternatives or that there are not any non -farm uses for the mulch. Unlike in City of Sandy, there is substantial evidence in this Application, including affidavits from local farmers to support that the mulch is essential to their farm operations and testimony from the Applicant that there are no nonfarm customers. Applicant has more control over the distribution of the mulch because it is delivered to local farmers free of charge rather than sold to the public. Continued compliance could be ensured with a condition of approval limiting the amount of mulch delivered to nonfarm operations. The Hearings Officer's finding under MCC 17.136.060(D)(4) is inconsistent with Oregon law. 2) The Hearings Officer applied the incorrect standard and therefore erred as a matter of law in finding that Applicant was not primarily a supplier of farm uses under MCC 17.136.060(D)(1). The Hearings Officer found this criterion was not met because that the mulching operation is not the true commercial activity and mulching "occur[s] only because of the Applicant's need to store and' destroy debris related to Applicant's tree trimming business." The source of the wood -by products and lack of consideration is irrelevant. The relevant question is whether the mulch is primarily supplied to farm uses. As stated above, Applicant has provided substantial evidence in this Application, including testimony by Applicant that the mulch is not supplied to nonfarm operations. Applicant could dispose of the wood by- products from Mountain View Tree Service in a landfill. However, because of Applicant's ingenuity and value of community service, Applicant uses the by-products to create mulch that is essential to the practice of agriculture and then provides the mulch free of charge to local farm operations. As stated on page 5 of the Decision, 9% of the total area is used for storing logs, and the remaining 91% of the total area is used for the mulching operation. The Hearings Officer found that a significant area is used for the storage of vehicles for the tree trimming service. Applicant provided a vehicle inventory showing that of the 17 vehicles and equipment stored, only 5 are solely related to the storage of logs. Mulch is only produced four times a year, but the mulching operation occurs year-round. The mulching operation is the proposed commercial activity and the fact that Applicant receives the wood by-products from another facet of his business is irrelevant to whether Applicant is primarily a supplier of farm uses. 3) The Hearings Officer erred in finding that the Applicant did not satisfy the criterion under MCC 17.136.060(A)(4). Applicant provided substantial evidence to demonstrate that pursuant to MCC 17.136.060(A)(4), any noise associated with the proposed use will not have a significant adverse impact on nearby land uses. Applicant intends to provide a noise study to further demonstrate that the proposed use will not have a significant adverse impact on surrounding land uses. Applicant also intends to provide a traffic Page 3 of 26