In a refreshing dose of common sense, the Oregon Court of Appeals sided with LUBA and Deschutes County last week to approve the rezoning of 710 acres of state-designated “farmland” that are about as farmable as a Walmart parking lot.

The decision, which you can read HERE, clears the way for land that cannot reasonably be farmed to be used for something – housing, economic development, anything – more useful than growing junipers and rocks. This case is a huge win for property rights, good land use planning, and common sense in Central Oregon.

Even better, the Court delivered a well-deserved reality check to the Oregon Land Conservation and Development Commission (LCDC). The OPOA Legal Center stepped up as amicus curiae to help the Court see that LCDC’s arguments weren’t just legally flawed – they were a full-blown threat to the integrity of Oregon’s land use planning system.

Anyone who actually represents real people knows that letting property owners fix irrational zoning is essential to a working land use system. Land use planning isn’t a science – it’s an art, and sometimes, such as this case, state and local governments get it wrong. To oppose this, as LCDC and NIMBY groups have done in this case, defends dysfunction – keeping the system broken, denying people economic use of their land, and forcing local governments to ignore reality.

LCDC’s arguments are not just bad policy – they’re a rejection of meaningful land use planning and just plain wrong. That is why we implored the Court to ignore LCDC and instead uphold LUBA’s decision.

Luckily, the Court did just that.

When “Farmland” Isn’t Farmable: Why Rezoning the 710 Acres Makes Sense

In 2022, a group of property owners in Deschutes County applied to the County to rezone nearly 710 acres of “farmland” to rural residential.

Approval of the application could ultimately lead to the potential construction of around 70 homes. That’s not a lot of homes, but in a rapidly growing County like Deschutes, these homes would make a small dent in the number of new homes the County needs for its existing residents.

Deschutes County (and now two higher courts) have all agreed: rezoning the 710-acre property makes sense. Why? Because the land in question isn’t suitable for farming – the soil is so poor it doesn’t even qualify as “agricultural land” under state criteria. If it doesn’t qualify as “agricultural land” then why should it be zoned exclusively for farm use?

The property also has no water rights, no access to irrigation, low soil fertility, and can’t be farmed alongside neighboring parcels for any commercial value – these facts were all in the record.

In short, all the evidence showed that no reasonable farmer would attempt to grow anything on the 710 site with the hope of turning a profit. As such, the property owners should be able to rezone the property from “exclusive farm use” to a more appropriate zoning, like rural residential.

Seeing the Farm (Or Lack Thereof) Through the Trees: Why Allowing Rezoning Matters

It’s important for anyone following this case to understand the bigger picture – especially when it comes to rezoning applications in Central Oregon.

The 710 land isn’t unique in Deschutes County, where much of the terrain was broadly zoned decades ago as either urban or resource land, often without detailed analysis. As the County and multiple courts have acknowledged, this has left many properties with inappropriate agricultural or forest zoning, despite having little or no agricultural value.

There are really only two ways to fix this: either the County undertakes a full-scale rezoning – which is legally complex and unlikely – or property owners must pursue corrections one parcel at a time. This requires them to hire soil scientists, lawyers, and go through an expensive process to rezone.

If they are successful, land preservationists call this process “spot zoning,” often as a criticism. But in reality, it’s the legal and practical path forward for correcting historic zoning mistakes.

Blocking this process traps landowners under faulty designations, potentially stripping them of any economic use of their property. This unduly exposes the County to widespread Measure 49 or takings claims.

So, while some may dismiss it as “spot zoning,” those who actually work in land use law representing real people know it’s a vital tool for responsible planning and protecting private property rights.

LCDC “Jumps The Shark” and Echoes NIMBY Arguments to Block Sensible Rezoning

Despite there being overwhelming evidence that the 710 land should not be zoned exclusively for farming, local NIMBY groups, in partnership with 1000 Friends of Oregon, have fought this project every step of the way. While those organizations’ involvement here isn’t surprising, it’s disturbing to see the State of Oregon through LCDC join the fray – and make the arguments that it did.

As one example, LCDC echoed the arguments of one of the Petitioners (Buchanan) and argued that LUBA misinterpreted state law by applying an “objective test” to determine whether land is “suitable for farm use” as required by LCDC’s own rules. LCDC claimed the test should be a subjective one. Meaning, what matters is whether anyone says they want to farm said land for profit – not whether anyone reasonably would or could farm the land for a profit.

As such, LCDC argued that the rezone application should have been denied because the Buchanans, who live nearby, had put in testimony saying they would like to try and farm the property in conjunction with their existing operation. According to LCDC, the County was supposed to ignore all the countervailing evidence in the record and rely solely on Buchanan’s stated desire to farm a property they don’t even own.

To support its point, LCDC argued that LUBA’s objective test ran afoul of ORS 215.243(2) (the Legislature’s policy on farmland preservation) because it failed to meet the statute’s “command” to preserve agricultural land.

OPOA Defends Planning Integrity Against LCDC’s Misguided Legal Arguments

OPOA joined the case as amicus to push back on LCDC’s arguments. We were irked by LCDC’s brazen attempt to influence the outcome of a case it chose not to participate in at LUBA – and to do so in a way that effectively argued against sound land use planning.

The substantial evidence standard is a cornerstone of land use law. It allows a local government to approve or deny a land use application based on substantial evidence in the record before the local government. Sometimes the evidence conflicts, but as long as the local government can point to evidence that supports its decision, that decision will be respected.

LCDC’s argument turned the substantial evidence standard on its head. If that standard can be overridden just because a single disgruntled neighbor claims they want to farm a property – regardless of whether it’s reasonable or feasible – then no agricultural land will be rezoned in Deschutes County again, even if the land doesn’t meet the definition.

This was the outcome the Petitioners and LCDC clearly hoped for.

On top of that, LCDC completely misrepresented state law. The Legislature has never “commanded” the preservation of all agricultural lands no matter what. Suggesting otherwise is not only wrong – it seriously undermines local governments’ ability to provide a land supply for important uses like housing and economic development.

Here is what we wrote in our brief:

LCDC’s “subjective test” degrades the Legislature’s focus on preserving the agricultural economy, and instead facilitates the protection of hobby farming. Just because a property owner or neighbor states that they want to try and farm a property doesn’t mean that they actually can – especially not with an intention of making a profit in money. Cultivating land with no legitimate opportunity to contribute to the agricultural economy of the State of Oregon is not farming – it’s gardening, regardless of the farmer’s intent.

Any modicum of experience working with bona fide farmers would inform LCDC that no farmer employing land with the primary purpose of making a profit in money is going to waste labor, time, or resources on land, like the subject property, that lacks water rights, access to irrigation, has poor soil fertility, and cannot be farmed in conjunction with other parcels with an intention to make a profit in money.

Additionally, ORS 215.243(2) does not enshrine an obligation to preserve land incorrectly designated agricultural land simply because someone wants to play “farmer.” If substantial evidence in the record supports a finding that no reasonable farmer engaged in agricultural production for profit would employ the land for farm use based upon the factors listed in OAR 660-033-0020 and likelihood of profitability, a local government should not be required to bury its head in the sand and preserve such marginal land for farm use. To decide otherwise produces an absurd result not called for by ORS 215.243(2) and requires local governments to ignore reality. As contemplated by the Oregon Supreme Court shortly after ORS 215.243 was enacted:

[W]e do not believe that it was the intent of the legislature in enacting ORS 215.243(2) to require that tracts of marginal agricultural lands which cannot be farmed profitably must forever be “locked up.”

See Meeker v. Bd. of Comm’rs, 287 Or 665, 677-78, 601 P2d 804, 811 (1979). Unfortunately, this would be the result of adopting LCDC’s subjective test.

Beyond One Parcel: Defending Practical Planning and Property Rights Across Oregon

In the end, this case is about more than just one property – it’s about whether Oregon’s land use system can adapt to reality and serve the needs of its people. When outdated zoning designations stand in the way of reasonable use, and state agencies defend broken policies over sound planning, it’s up to local governments and real housing advocates to push back.

OPOA will continue to stay engaged in this case if there are additional appeals and will continue advocating for sound planning in Central Oregon.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.