Bill would expand property rights on farmland
House Bill 2369 could reshape Oregon’s rural landscape, stakeholders testified, by forcing the state to take into consideration agricultural capabilities of lots and cultural activities on adjacent lots when determining whether a dwelling can be sited on land zoned for exclusive farm use.
Under current law, a dwelling can be sited on high-value EFU land only in cases where the farm grosses at least $80,000 a year for two consecutive years or three of the past five years.
Proponents argued that under current law, property owners are unfairly stripped of their right to build on small parcels that are incapable of generating $80,000 and on parcels with soils not able to grow high-value agricultural products.
“I’m not opposed to stringently protecting what truly is farmland and what truly is forest land,” said Dave Hunnicut, executive director of the property rights advocate Oregonians in Action. “But there is a lot of land zoned EFU that is not really farmland. The problem with Oregon’s farm and forest land-use planning is there is no way to take into consideration if the land ever has been farmed, ever will be farmed or is even capable of being farmed.”
“Many bona fide farmers will never be able to build a farm dwelling on their land because of the current income test,” testified Harlan Levy, staff attorney for the Oregon Association of Realtors. “HB 2369 would address this inequity.”
The bill, sponsored by Rep. Tootie Smith, R-Molalla, drew criticism from land owners, 1000 Friends of Oregon and the Oregon Farm Bureau, who expressed concerns that HB 2369 would open up farmland to residential housing.
The Oregon Farm Bureau Federation changed its position from last session, when it supported a similar bill due to a change in policy adopted by its House of Delegates at the 2002 OFBF convention.
“(HB 2369) is another attempt to give free rein to all those who want a home in the country by doing it under the guise of a farm dwelling,” testified Cliff Kenagy, a retired Benton County farmer.
“This standard would allow individuals who are not farming, and perhaps have no intention ever to farm, to receive approval to build a farm dwelling,” testified Carrie MacLaren, staff attorney for 1000 Friends of Oregon.
Several stakeholders testified that no change was necessary to the current law.
“The $80,000 rule has worked,” said retired Washington County farmer Marcus Simantel. “It is the first rule that has effectively limited the amount of new farm dwellings.
“Why change something that is working?” he asked. “The more homes you put out there, the more difficult it is to farm.”
The hearing triggered memories of the 2001 legislative session, when a nearly identical bill passed through the Legislature after heated debate but was vetoed by former Gov. John Kitzhaber.
Smith, who owns a Christmas tree farm, said she has not talked to Gov. Ted Kulongoski about the issue, but said she plans to in the near future. Smith said she sponsored the bill because she believes the current law is “arbitrary and capricious.”
“Oregon is the only state that has a farm income test,” she said. “It was not approved by voters. It was initiated administratively, and I doubt it would hold up in court if it was tested.”
The current law has been altered slightly since the last time this issue came before legislators. The Land Conservation and Development Commission changed the law so that landowners can aggregate income from multiple parcels to reach the $80,000 income standard.
Formerly, the state considered only the revenue generated on parcels contiguous to the proposed farm dwelling site when measuring whether the landowner met the income standard.
“That helps,” Hunnicut said, “but it doesn’t address the real issue, which is why do we have an income standard in the first place that 80 percent of the farmers in Oregon can’t meet.”
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