Riverbend rests on legal issues

By David Bates—The News Register—March 28, 2009

If you spent the evening at Yamhill County’s March 19 public hearing on Riverbend Landfill, you would have heard a lot about smelly garbage, unsightly garbage and garbage residue dribbling into a brook that meanders across Ramsey McPhillips’ farm.

But you would have had to stay well into Friday morning before hearing testimony from the opponents’ legal eagles.

Sid Friedman of 1000 Friends of Oregon and Bill Kabeiseman of the Portland firm Garvey Schubert Barer fired the latest rounds in an ongoing legal argument with Riverbend over the approval criteria on which the Yamhill County commissioners are required to base their votes.

Oregon land-use hearings sometimes resemble a highly structured popularity contest. 

When Riverbend presented its case this month, for example, company officials made much of the fact that more than 1,000 people had signed cards of support. And on Thursday, they announced that more than 100 local business owners had pledged support.

But there actually are specific legal criteria under Oregon law that go beyond the results of a community-wide show of hands.

“It’s great that Riverbend is a good community neighbor, it’s great that George participates in Turkey Rama,” Friedman told commissioners, referring to landfill manager George Duvendack. “But those aren’t really relevant factors to your decision.”

The criteria are spelled out in multiple sources packed with legalese — Oregon statutes, Oregon administrative rules and the Yamhill County zoning ordinance. 

The set that Riverbend and its opponents have zeroed in on, in a series of written arguments dating back to December’s planning commission hearing and now running nearly 100 pages, relates to farmland and the goal exception process.

Oregon land-use law establishes 19 goals. Goal 3, which took effect in January 1975 and has been amended four times, specifies, “Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state’s agricultural land-use policy,” as spelled out in statute. 

Riverbend needs a zone change for its expansion site, tucked between Highway 18 and the South Fork of the Yamhill River. But it also needs an exception to Goal 3.

That means it must make a case for why the state land-use goal for that chunk of land should not apply to the proposed expansion at that location. Under the law, that requires findings that:

n Other parcels not requiring an exception can’t reasonably accommodate a landfill operation of like size.

n Potential long-term damage resulting from the expansion will not be significantly worse at the chosen site than it would be on another site requiring an exception.

n The proposed use is “compatible” with nearby adjacent uses — or could be made so with measures designed to reduce adverse impacts. 

On behalf of 1000 Friends, Friedman has been jousting with Riverbend’s consultants on those questions since November.
In essence, Friedman says, the law asks whether other sites could meet the need without requiring the applicant to jump through the goal exception hoop. 

Because most of Riverbend Landfill’s garbage comes from outside Yamhill County, he and other critics maintain that Riverbend’s owner, Waste Management Inc., cannot limit itself to searching only within the county’s 718 square miles for a suitable alternative. Given the broader parameters of Oregon’s solid waste market, he argues, alternatives “are too numerous to list.”

Much of Friedman’s testimony — and conversely, much of Riverbend’s response — deals with possible alternatives.
The leading site is Gilliam County’s Columbia Ridge Landfill, owned by Waste Management. It is generally referred to under the name of the nearest town, Arlington. 

The landfill sprawls across more than 2,000 acres, 700 of which are active, according to Waste Management. Garbage is shipped there not only from Portland, but also from Seattle, 320 miles to the north. And still, it has the capacity to handle the current flow of garbage for another 107 years.

That’s not economically viable, Riverbend says. Hauling waste from McMinnville to the Eastern Oregon community of Arlington would boost local disposal costs by $4 million a year.

What that means for customers is difficult to pin down.

For Riverbend, “100 percent increase” has become almost a mantra. But it’s not that simple.

How much rates would actually increase depends on multiple factors — how far the garbage is hauled, and how much garbage is thrown away. 

On behalf of Waste Management, consultant ECONorthwest crunched the numbers a couple years ago and concluded residential customers would see their garbage bills go up 12 percent. But Riverbend says commercial and industrial customers, particularly big customers like SP Newsprint and Cascade Steel Rolling Mills, would get hammered.

Both companies are currently facing dire financial straits. And officials from both testified to the accuracy of Riverbend’s analysis during this month’s hearing.

Critics say Riverbend is blowing the rate increase argument out of proportion.

McPhillips cites discussions he’s had with Waste Connections Inc., one of Waste Management’s competitors. A manager there said Friday that while he doesn’t buy all of McPhillips’ arguments, the Riverbend foe is right about garbage rates. 

If Riverbend were to close in 2014, said Dean Large, sales manager at Waste Connections’ Wasco County Landfill, his company would surely pursue the county disposal contract.

“Long-hauling solid waste out of Yamhill County should not and likely would not increase costs to customers,” he said. “In my opinion, it would be a modest increase in price.”

Wrapped up in all of this are two simple words loaded with various interpretations: “need” and “reasonable.”

Zone change criteria include an “existing demonstrable need” for whatever it is that an applicant wants to build. And settling the goal exception issue requires asking if the proposed use could be “reasonably” accommodated elsewhere.

The problem with “reasonable” is fairly clear. Reasonableness, like beauty, may be in the eye of umpteen beholders.

Certainly, what is reasonable to Riverbend is unreasonable to immediate landfill neighbor Ramsey McPhillips and many other farmers. 

The interpretive problems raised by the question of an applicant’s “need” were made clear in January by Planning Commissioner Chair Daryl Garrettson prior to the planning commission’s unanimous “no” vote on Riverbend. 

If the need is for space to dump Yamhill County’s garbage, he said, the existing location would be sufficient for some 15 years without an expansion. Because the need is generated in large part outside the county, Riverbend is obliged to consider a much larger map. 

Whose need is relevant? Oregon law gives no guidance on that question. 

“I am not aware of an objective definition of ‘need’ within the land use morass,” says local developer John Abrams, who serves on the planning commission. “It is applied differently in different circumstances.”

And, obviously, by different parties.

Can market demand be equated with a public need? Some think so, but a couple years ago, when commissioners considered a proposal for a luxury hotel, some opponents said that while there might very well be sufficient demand from high-end clientele, that didn’t necessarily mean that the county “needed” such an operation.

“It is an interesting, albeit not well-defined subject,” said Planning Director Mike Brandt. “At least not in my opinion.”

Without really saying so, Friedman acknowledged the difference between arguments related directly to legal criteria versus the sort of grassroots populism that both sides have brought to the case. 

He noted that while he was asked to testify on behalf of 1000 Friends, he was also speaking as a Yamhill County resident.
Momentarily wearing his “resident” cap, Friedman offered this succinct argument:

“I oppose the dump expansion,” he said. “It’s not 1950, it’s not 1980. It’s time that we stopped tossing our trash on the riverbank.”

Print | Email