OAR 660-033-0135: Dwellings in Conjunction with Farm Use

(1) On land not identified as high-value farmland pursuant to OAR 660-033-0020(8), a dwelling may be considered customarily provided in conjunction with farm use if: (a) The parcel on which the dwelling will be located is at least: (A) 160 acres and not designated rangeland; or (B) 320 acres and designated rangeland; or (C) As large as the minimum parcel size if located in a zoning district with an acknowledged minimum parcel size larger than indicated in paragraph (A) or (B) of this subsection. (b) The subject tract is currently employed for farm use, as defined in ORS 215.203. (c) The dwelling will be occupied by a person or persons who will be principally engaged in the farm use of the subject tract, such as planting, harvesting, marketing or caring for livestock, at a commercial scale. (d) Except for seasonal farmworker housing approved prior to 2001, there is no other dwelling on the subject tract. (2)(a) If a county prepares the potential gross sales figures pursuant to subsection (c) of this section, the county may determine that on land not identified as high-value farmland pursuant to OAR 660-033-0020(8), a dwelling may be considered customarily provided in conjunction with farm use if: (A) The subject tract is at least as large as the median size of those commercial farm or ranch tracts capable of generating at least $10,000 in annual gross sales that are located within a study area that includes all tracts wholly or partially within one mile from the perimeter of the subject tract; (B) The subject tract is capable of producing at least the median level of annual gross sales of county indicator crops as the same commercial farm or ranch tracts used to calculate the tract size in paragraph (A) of this subsection; (C) The subject tract is currently employed for a farm use, as defined in ORS 215.203, at a level capable of producing the annual gross sales required in paragraph (B) of this subsection; (D) The subject lot or parcel on which the dwelling is proposed is not less than 10 acres in western Oregon or 20 acres in eastern Oregon; (E) Except for seasonal farmworker housing approved prior to 2001, there is no other dwelling on the subject tract; (F) The dwelling will be occupied by a person or persons who will be principally engaged in the farm use of the subject tract, such as planting, harvesting, marketing or caring for livestock, at a commercial scale; and (G) If no farm use has been established at the time of application, land use approval shall be subject to a condition that no building permit may be issued prior to the establishment of the farm use required by paragraph (C) of this subsection. (H) In determining the gross sales capability required by paragraph (C): (i) The actual or potential cost of purchased livestock shall be deducted from the total gross sales attributed to the farm or ranch tract; (ii) Only actual or potential gross sales from land owned, not leased or rented, shall be counted; and (iii) Actual or potential gross farm sales earned from a lot or parcel that has been used previously to qualify another lot or parcel for the construction or siting of a primary farm dwelling may not be used. (b) In order to identify the commercial farm or ranch tracts to be used in paragraph (2)(a)(A) of this rule, the gross sales capability of each tract in the study area, including the subject tract, must be determined, using the gross sales figures prepared by the county pursuant to subsection (2)(c) of this section as follows: (A) Identify the study area. This includes all the land in the tracts wholly or partially within one mile of the perimeter of the subject tract; (B) Determine for each tract in the study area the number of acres in every land classification from the county assessor’s data; (C) Determine the potential earning capability for each tract by multiplying the number of acres in each land class by the gross sales per acre for each land class provided by the commission pursuant to subsection (2)(c) of this section. Add these to obtain the potential earning capability for each tract; (D) Identify those tracts capable of grossing at least $10,000 based on the data generated in paragraph (C) of this subsection; and (E) Determine the median size and median gross sales capability for those tracts capable of generating at least $10,000 in annual gross sales to use in paragraphs (2)(a)(A) and (B) of this subsection. (c) In order to review a farm dwelling pursuant to subsection (2)(a) of this section, a county may prepare, subject to review by the director of the Department of Land Conservation and Development, a table of the estimated potential gross sales per acre for each assessor land class (irrigated and nonirrigated) required in subsection (2)(b) of this section. The director shall provide assistance and guidance to a county in the preparation of this table. The table shall be prepared as follows: (A) Determine up to three indicator crop types with the highest harvested acreage for irrigated and for nonirrigated lands in the county using the most recent OSU Extension Service Commodity Data Sheets, Report No. 790, "Oregon County and State Agricultural Estimates," or other USDA/Extension Service documentation; (B) Determine the combined weighted average of the gross sales per acre for the three indicator crop types for irrigated and for nonirrigated lands, as follows: (i) Determine the gross sales per acre for each indicator crop type for the previous five years (i.e., divide each crop type's gross annual sales by the harvested acres for each crop type); (ii) Determine the average gross sales per acre for each crop type for three years, discarding the highest and lowest sales per acre amounts during the five-year period; (iii) Determine the percentage each indicator crop's harvested acreage is of the total combined harvested acres for the three indicator crop types for the five year period; (iv) Multiply the combined sales per acre for each crop type identified under subparagraph (ii) of this paragraph by its percentage of harvested acres to determine a weighted sales per acre amount for each indicator crop; and (v) Add the weighted sales per acre amounts for each indicator crop type identified in subparagraph (iv) of this paragraph. The result provides the combined weighted gross sales per acre. (C) Determine the average land rent value for irrigated and nonirrigated land classes in the county's exclusive farm use zones according to the annual "income approach" report prepared by the county assessor pursuant to ORS 308A.092; and (D) Determine the percentage of the average land rent value for each specific land rent for each land classification determined in paragraph (C) of this subsection. Adjust the combined weighted sales per acre amount identified in subparagraph (B)(v) of this subsection using the percentage of average land rent (i.e., multiply the weighted average determined in subparagraph (B)(v) of this subsection by the percent of average land rent value from paragraph (C) of this subsection). The result provides the estimated potential gross sales per acre for each assessor land class that will be provided to each county to be used as explained under paragraph (2)(b)(C) of this section. (3) On land not identified as high-value farmland, a dwelling may be considered customarily provided in conjunction with farm use if: (a) The subject tract is currently employed for the farm use, as defined in ORS 215.203, on which, in each of the last two years or three of the last five years, or in an average of three of the last five years, the farm operator earned the lower of the following: (A) At least $40,000 in gross annual income from the sale of farm products; or (B) Gross annual income of at least the midpoint of the median income range of gross annual sales for farms in the county with gross annual sales of $10,000 or more according to the 1992 Census of Agriculture, Oregon; and (b) Except for seasonal farmworker housing approved prior to 2001, there is no other dwelling on lands designated for exclusive farm use pursuant to ORS chapter 215 or for mixed farm/forest use pursuant to OAR 660-006-0057 owned by the farm or ranch operator or on the farm or ranch operation; (c) The dwelling will be occupied by a person or persons who produced the commodities that grossed the income in subsection (a) of this section; and (d) In determining the gross income required by subsection (a) of this section: (A) The cost of purchased livestock shall be deducted from the total gross income attributed to the farm or ranch operation; (B) Only gross income earned from land owned, not leased or rented, shall be counted; and (C) Gross farm income earned from a lot or parcel that has been used previously to qualify another lot or parcel for the construction or siting of a primary farm dwelling may not be used. (e) The applicant shall submit to the local government an IRS tax return transcript and any other information the local jurisdiction may require that demonstrates compliance with the gross farm income requirement. (4) On land identified as high-value farmland, a dwelling may be considered customarily provided in conjunction with farm use if: (a) The subject tract is currently employed for the farm use, as defined in ORS 215.203, on which the farm operator earned at least $80,000 in gross annual income from the sale of farm products in each of the last two years or three of the last five years, or in an average of three of the last five years; and (b) Except for seasonal farmworker housing approved prior to 2001, there is no other dwelling on lands designated for exclusive farm use pursuant to ORS chapter 215 or for mixed farm/forest use pursuant to OAR 660-006-0057 owned by the farm or ranch operator or on the farm or ranch operation; and (c) The dwelling will be occupied by a person or persons who produced the commodities that grossed the income in subsection (a) of this section; (d) In determining the gross income required by subsection (a) of this section; (A) The cost of purchased livestock shall be deducted from the total gross income attributed to the farm or ranch operation; (B) Only gross income earned from land owned, not leased or rented, shall be counted; and (C) Gross farm income earned from a lot or parcel that has been used previously to qualify another lot or parcel for the construction or siting of a primary farm dwelling may not be used. (e) The applicant shall submit to the local government an IRS tax return transcript and any other information the local jurisdiction may require that demonstrates compliance with the gross farm income requirement. (5)(a) For the purpose of sections (3), or (4) of this rule, noncontiguous lots or parcels zoned for farm use in the same county or contiguous counties may be used to meet the gross income requirements. Except for Hood River and Wasco counties and Jackson and Klamath counties, when a farm or ranch operation has lots or parcels in both "western" and "eastern" Oregon as defined by this division, lots or parcels in eastern or western Oregon may not be used to qualify a dwelling in the other part of the state. (b) Prior to the final approval for a dwelling authorized by sections (3), and (4) of this rule that requires one or more contiguous or non contiguous lots or parcels of a farm or ranch operation to comply with the gross farm income requirements, the applicant shall provide evidence that the covenants, conditions and restrictions form adopted as "Exhibit A" has been recorded with the county clerk of the county or counties where the property subject to the covenants, conditions and restrictions is located. The covenants, conditions and restrictions shall be recorded for each lot or parcel subject to the application for the primary farm dwelling and shall preclude: (A) All future rights to construct a dwelling except for accessory farm dwellings, relative farm assistance dwellings, temporary hardship dwellings or replacement dwellings allowed by ORS chapter 215; and (B) The use of any gross farm income earned on the lots or parcels to qualify another lot or parcel for a primary farm dwelling. (c) The covenants, conditions and restrictions are irrevocable, unless a statement of release is signed by an authorized representative of the county or counties where the property subject to the covenants, conditions and restrictions is located; (d) Enforcement of the covenants, conditions and restrictions may be undertaken by the department or by the county or counties where the property subject to the covenants, conditions and restrictions is located; (e) The failure to follow the requirements of this section shall not affect the validity of the transfer of property or the legal remedies available to the buyers of property that is subject to the covenants, conditions and restrictions required by this section; (f) The county planning director shall maintain a copy of the covenants, conditions and restrictions filed in the county deed records pursuant to this section and a map or other record depicting the lots and parcels subject to the covenants, conditions and restrictions filed in the county deed records pursuant to this section. The map or other record required by this subsection shall be readily available to the public in the county planning office. (6) In counties that have adopted marginal lands provisions under former ORS 197.247 (1991 Edition) before January 1, 1993, a dwelling may be considered customarily provided in conjunction with farm use if it is not on a lot or parcel identified as high-value farmland and it meets the standards and requirements of ORS 215.213(2)(a) or (b). (7) A dwelling may be considered customarily provided in conjunction with a commercial dairy farm as defined by section (8) if: (a) The subject tract will be employed as a commercial dairy as defined by section (8); (b) The dwelling is sited on the same lot or parcel as the buildings required by the commercial dairy; (c) Except for seasonal farmworker housing approved prior to 2001, there is no other dwelling on the subject tract; (d) The dwelling will be occupied by a person or persons who will be principally engaged in the operation of the commercial dairy farm, such as the feeding, milking or pasturing of the dairy animals or other farm use activities necessary to the operation of the commercial dairy farm; (e) The building permits, if required, have been issued for and construction has begun for the buildings and animal waste facilities required for a commercial dairy farm; and (f) The Oregon Department of Agriculture has approved the following: (A) A permit for a "confined animal feeding operation" under ORS 468B.050 and 468B.200 to 468B.230; and (B) A Producer License for the sale of dairy products under ORS 621.072. (8) As used in this division, the following definitions apply: (a) "Commercial dairy farm" is a dairy operation that owns a sufficient number of producing dairy animals capable of earning the gross annual income required by subsections (3)(a) or (4)(a), whichever is applicable, from the sale of fluid milk; and (b) "Farm or ranch operation" means all lots or parcels of land in the same ownership that are used by the farm or ranch operator for farm use as defined in ORS 215.203. (9) A dwelling may be considered customarily provided in conjunction with farm use if: (a) Within the previous two years, the applicant owned and operated a different farm or ranch operation that earned the gross farm income in each of the last five years or four of the last seven years as required by section (3) or (4) of this rule, whichever is applicable; (b) The subject lot or parcel on which the dwelling will be located is: (A) Currently employed for the farm use, as defined in ORS 215.203, that produced in each of the last two years or three of the last five years, or in an average of three of the last five years the gross farm income required by section (3) or (4) of this rule, whichever is applicable; and (B) At least the size of the applicable minimum lot size under ORS 215.780; (c) Except for seasonal farmworker housing approved prior to 2001, there is no other dwelling on the subject tract; (d) The dwelling will be occupied by a person or persons who produced the commodities that grossed the income in subsection (a) of this section; and (e) In determining the gross income required by subsection (a) and paragraph (b)(A) of this section: (A) The cost of purchased livestock shall be deducted from the total gross income attributed to the tract; and (B) Only gross income from land owned, not leased or rented, shall be counted. (10) Farming of a marijuana crop, and the gross sales derived from selling a marijuana crop, may not be used to demonstrate compliance with the approval criteria for a primary farm dwelling. [ED. NOTE: Exhibits referenced are available from the agency.]