LUBA issued its decision in Wetherell redux on Thursday April 30, and on Monday May 4 posted the opinion on its website. The news isn’t good. Farms lands throughout Oregon in agricultural capability classes V-VII are at grave risk.

Recall that Wetherell is the “nonresource lands” case. If land doesn’t fall within the Goal 3 definition of “agricultural land,” it isn’t protected by Goal 3 and thus is “nonresource” land and can be rezoned for development. The Supreme Court decision in Wetherell v. Douglas County in May 2007 threw out LCDC’s administrative rule prohibiting profitability from being considered when identifying agricultural land.

Agricultural lands as defined in Goal 3 include Class I-IV soils in western Oregon (Class I-VI soils in eastern Oregon) and “other lands suitable for farm use.” The applicant in Wetherell argued that the rule’s prohibition on considering profitability was inconsistent with the statutory and Goal 3 definition of “farm use,” defined as the “current employment of land for the primary purpose of obtaining a profit in money.” The Supreme Court agreed, throwing out a ban on considering profitability that had been in law since 1982.

The Supreme Court’s holding opened the door to a property owner arguing that because he couldn’t make a profit, the land wasn’t agricultural land protected by Goal 3 and thus could be used to grow houses. A property owner could hire his own “expert” to prove that he couldn’t make money. Given the legal principles that a local government decision only needs to be supported by “substantial evidence” and a local government has wide discretion to choose which evidence to rely on, it’s now open season on “other lands suitable for farm use.” There are no effective protections left for such lands.

With LUBA’s decision, our greatest fears have been realized. While conceding that economic analyses are “highly manipulable, and can yield dramatically different results depending on what variables are assumed and what approaches are used” [and what outcomes are desired!], LUBA held that the report prepared by the property owner’s expert was enough to support the county’s conclusion that the land couldn’t be farmed for a profit, wasn’t “suitable for farm use,” and therefore wasn’t agricultural land.

This, despite the fact that the land had been used for over 70 years and that a neighboring farmer was offering to lease it and use it as part of his farm operation.

It seems LUBA was understandably unwilling to stick its neck out and get sideways with the Supreme Court. Any “fix” of the Supreme Court’s decision will have to come from the legislature.

There are huge swaths of Class V and Class VI soils in western Oregon – in the Willamette Valley, along the coast, and in southern Oregon – lands that have long been used for farming and for hay and pasture. There are over 61,450,000 acres of land in eastern Oregon, 48% in private ownership, a large proportion of which are Class VII soils used for pasture or range, woodland, or wildlife. Until the legislature passes a fix to Wetherell, all of these lands will remain at risk.