Ore. Court Limits Agri-tourism at Farm Stands

Davis Dwight & Tremaine LLP
Oregon business law firm

A land use decision by the Oregon Court of Appeals could impact farm marketing activities across the state, imposing new permitting requirements and forcing changes to business operations.The case, Greenfield v. Multnomah County, concerns limits on farm-to-table dinners, corn mazes, picnics and other events at an organic farm on Sauvie Island near Portland. The island is a popular weekend destination for urban families, and the county has long sought to balance business opportunities for local farms with preservation of the rural community. After a neighbor challenged a farm stand permit issued by the county to the organic farm, the case made its way through the courts. The appeals court’s complicated parsing of state farm stand rules, however, could generate additional uncertainty, conflict and state legislative action.Under state land use laws, “farm stands” are permitted uses in the Exclusive Farm Use zone. The poorly-worded statute, however, limits sales and marketing activities as well as physical structures at farm stands. The Greenfield case largely turned on the relationship between these two parts of the farm stand statute. As for the former, the Court of Appeals held that statute allows a farm stand to host events outside of farm stand structures such as alfresco farm-to-table dinners.

This allowance, however, may be illusory given the restrictions imposed by the court on structures at farm stands. The court broadly defined the word “structure” to include anything “built or constructed,” including temporary structures such as tents. Because the statute explicitly prohibits “structures” for “banquets, public gatherings or public entertainment,” the court’s decision places many practical limitations on marketing activities and events at farm stands. For example, the decision appears to prohibit tables at farm-to-table dinners.

The decision also raises other questions about food service at farm stands. For example, it is not clear to what extent prepared foods may be served or at what point facilities for food and beverage service become prohibited structures for public entertainment.

The Greenfield decision does not impact visitor-oriented farm businesses operating under other types of land use permits, such as wineries.

Farm stands that cannot comply with the Greenfield court’s restrictions may be eligible for more discretionary conditional use permits as “commercial activities that are in conjunction with farm use.” Earlier this year, the Court of Appeals and the Oregon Legislature both clarified that wine businesses may utilize these permits for wine marketing activities and events. Yet another conditional use-type permit created by the Legislature in 2011 (S.B. 960) allows limited numbers of agri-tourism events on farmland. County policies regarding both types of conditional use permits vary across the state.

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