Posted by: Patricia Salkin | July 15, 2020

OR Appeals Court Finds Modification of the Slope of Existing Landfill Modules Was Compatible with Existing Land Use Authorization and Comprehensive Zoning Plan

This post was authored by Matthew Loescher, Esq.

Riverbend Landfill Co. owned property in Yamhill County that was used as a solid waste disposal facility. The County granted Riverbend a disposal franchise, and the county approved changes to its comprehensive plan and zoning map to designate and rezone Riverbend’s property as “Public Works Safety” (“PWS”) from “agriculture/forestry large holding.” The purpose of this was to allow the development of a “sanitary landfill” on the property, which was a permitted use in the PWS zoning district. At the time of the rezoning, the County operated under the provisions of its 1976 Yamhill County Zoning Ordinance (“YCZO”), which did not require site design review (“SDR”) for the development of any permitted uses within a property zoned as PWS, including a landfill. In this case, Waste Not of Yamhill County and McPhillips Farms, Inc. appealed from a judgment entered in a writ-of-review proceeding, which affirmed Yamhill County’s determination that Riverbend Landfill Co.’s proposed modification of the slope of existing landfill modules was compatible with Riverbend’s existing land use authorization, the County’s comprehensive zoning plan and land use regulations, and the County’s subsequent issuance of a favorable Land Use Compatibility Statement (“LUCS”) to that effect. 

On appeal, petitioners argued that the trial court erred because, “under the newly applicable EFU zoning of the landfill” and “the applicable county regulation,” Riverbend’s application for a DEQ permit for grade modification required the county to conduct a SDR, and, as such, “the county’s LUCS certification improperly construed the applicable law” The record reflected that Riverbend’s use of the property for a landfill was approved in 1980. Petitioners failed to demonstrate any error in the county’s determination that the 1980 approval, and Riverbend’s existing use, included the continuous and progressive development of solid waste disposal modules in the existing landfill, including the grade modification at issue. Accordingly, the court found that the County did not misconstrue the applicable law when it concluded that an SDR and review under ORS 215.296 were not required as a result of the rezoning. 

Petitioners next argued that since the SDR application in the Stop the Dump Coalition litigation included a proposal to modify existing landfill modules as part of the larger expansion, Riverbend’s application for a LUCS in this case to modify the grade of the landfill modules “was barred by the doctrines of res judicata and claim and issue estoppel.” The court found that the issue of whether the modified grade permit was compatible with local land use regulations and whether the activity covered by that permit was within the scope of Riverbend’s existing land use authority, and was therefore not subject to the SDR provisions of the YCZO, not actually litigated in the Stop the Dump Coalition litigation, and was not essential to a final decision on the merits in that case. Moreover, Riverbend’s application for a LUCS was not based on the same factual transaction that prompted the Stop the Dump Coalition litigation. 

The petitioners’ next contention was that the County’s findings in the order issuing the LUCS were not supported by substantial evidence in the record. Here, the record demonstrated that the County reviewed Riverbend’s LUCS application, which proposed to “modify its currently approved grading plan along existing side slopes,” and stated that the modification occurred within the existing footprint and did not require expansion on to the existing property or any adjacent properties. Furthermore, the County reviewed a topographical map of the landfill indicating the area that would be the subject of the modified grade permit, and reviewed county records relating to Riverbend’s authority to operate a landfill and other documents relating to Riverbend’s prior land use applications authorizing the development of Riverbend’s landfill. As a final matter, the court noted that the county’s comprehensive zoning plan and land use regulations – ORS 215.296(1) and YCZO 402.02(V) – did not apply retroactively to require Riverbend to obtain SDR approval for the uses that were authorized by the County in 1980. 

Waste Not of Yamhill County v Yamhill County, 305 OR App. 436 (7/15/2020)

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