Agenda - Planning Commission - 06/06/2013

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Zoning Bulletin May 10, 2013 I Volume 7 I Issue 9 that the CUP was approved in error because: (1) the approved com- mercial activity —in particular, the "events venue and commercial food service facility" —was a new use that could not be considered to be "in conjunction with farm use" under ORS 215.283(2)(a); and (2) even if it was, the level of activity exceeded the "incidental" limitation imposed on such activity under the applicable law. The County, on the other hand, contended that this case presented a straightforward application of ORS 215.283(2)(a). LUBA agreed with the County. Friends appealed. DECISION: Affirmed. The Court of Appeals of Oregon also agreed with the County. It held that the County properly approved Stoller's CUP application because the proposed new tasting room and commercial kitchen were com- mercial uses in conjunction with farm use, as permitted under ORS 215.283(2)(a). The court explained that although "in conjunction with a faun use" was not statutorily defined, courts had interpreted that the commercial activity "must enhance the fanning enterprises of the local agricultural community to which the EFU land hosting that commercial activity relates." Also, the court noted that the state legislature had specifically authorized wineries as "permitted uses" in EFU-zoned land and had explicitly allowed wineries to sell "[i]tems directly related to the sale and promotion of wine produced in conjunction with the winery, the sale of which is incidental to retail sale of wine on -site . . . ." (ORS 215.452(2)(b).) In addition, the legislature had clarified the meaning of "incidental" by imposing a limit on gross income from the sale of incidental items of not more than "25 percent of gross income from the retail sale on -site of wine produced in conjunction with the winery." Here, the court found that Friends was essentially arguing that the commercial activities proposed by Stoller were not activities in conjunction with the vineyard (i.e., a farm use), but were, at most, activities in conjunction with the winery (i.e., a nonfarm use). The court rejected that argument. It held that "incidental activities" such as tasting rooms and associated retail sale activities were permitted as faun -use -related commercial activities "to the extent that they are sec- ondary to and support the wine processing activities of the winery." Thus, the court rejected Friends' argument that a tasting facility and as- sociated wine -marketing activities categorically could not be consid- ered to be "in conjunction with farm use" because such activities were in conjunction with a winery rather than a viticulture farm use. The court also rejected Friends' argument that the 44 authorized events and commercial kitchen exceeded the scope of what was peiiiiis- © 2013 Thomson Reuters 9