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PROFIT IN FARM USE & IRREVOCABLY COMMITTED

Written by the Land Use Committee on 10/27/03

Farm Use: Agricultural Land & OAR 660-004-0028(3)(a)

Farm Use — Oregon Revised Statue - ORS 215.203(2)(a) defines "farm use," in part, as follows.

"farm use" means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. . ."

The Josephine County Rural Land Development Code’s definition of farm use is the same as

ORS 215.203(2)(a) (pages 1-4 through 1-5).

OAR 660-033-0030(5) Notwithstanding the definition of "farm use" in ORS 215.203(2)(a), profitability or gross farm income shall not be considered in determining whether land is agricultural land or whether Goal 3, "Agricultural Land," is applicable.

OAR 660-004-0028(3)(a) For an exception to Goal 3 local governments are required to demonstrate that farm uses as defined in ORS 215.203 are impracticable due to impacts from surrounding property.

Farm Use Is Impracticable In Context Of "Irrevocably Committed" To Nonresource

A Goal 3 committed exception cannot be justified based on a finding that "commercial farming" is impracticable on the subject property. Protection under Goal 3 is not limited to commercial farms. Lovinger v. Lane County.

A Goal 3 committed exception cannot be justified based on a finding that the property is not capable of supporting an economically self-sufficient agricultural operation, or property on which a reasonable farmer could make a living entirely from agricultural use of the land. Farm uses that do not meet that threshold are protected by Goal 3. Lovinger v. Lane County.

The Court of Appeals (1000 Friends of Oregon v. Benton County) held:

"The legislative history of ORS 215.203 indicates that the use of the term "profit" in that statute does not mean profit in the ordinary sense, but rather refers to gross profit. * * * If the lands meet the definition of "agricultural lands" as provided in Goal 3, and are capable of current employment for agricultural production for the purpose of earning money receipts, Goal 3 is applicable and the county is required to address the considerations set forth in the operative provisions of the goal."

"Commercial agriculture is not the test. The county must make findings that show that "farm use" is impracticable. The subject property need not be capable of supporting a commercial farm by itself to be capable of being put to "farm use," as that term is defined by ORS 215.203. Pekarek v. Wallowa County.

More Information On "Profit In Money"

We find no basis in the text of OAR 660-004-0028, ORS 215.203(2)(a) or the legislative history to read those provisions as establishing a threshold based on whether the property is capable of supporting an economically self-sufficient agricultural operation, or property on which a reasonable farmer could make a living entirely from agricultural use of the land. Indeed, we doubt that there is any definite or broadly applicable "threshold" in determining whether farm uses are impracticable under OAR 660-004-0028, ORS 215.203(2)(a)." Lovinger v. Lane County.

Under OAR 660-04-028(3), the appropriate standard for determining whether farm use is impracticable on the subject property is whether the property is capable, now or in the future, of being employed for agricultural production for the purpose of obtaining a profit in money. Brown v. Jefferson County.

• Friends of Linn County v. Linn County, Or LUBA No. 2001-186 (2002)
• DLCD v. Lane County, 39 Or LUBA 445 (2001)
Friends of Yamhill County v. Yamhill County, 38 Or LUBA 62 (2000)
• Jackson County Citizens League v. Jackson County, 38 Or LUBA 489 (2000)
• Lovinger v. Lane County, 36 Or LUBA 1 (1999)
• Pekarek v. Wallowa County, 36 Or LUBA 494 (1999)
• Brown v. Jefferson County, 33 Or LUBA 418 (1997).
• 1000 Friends of Oregon v. Benton County, 32 Or App 413, (1984)
• 1000 Friends of Oregon v. Douglas Cty., 4 Or LUBA 24, 31-32 (1981)
• Rutherford v. Armstrong, 31 Or App 1319, 572 P2d 1331 (1997)

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