James Gindelsperger made a living flying through nuclear clouds as a member of an Air Force reconnaissance team that collected data on the Soviet arsenal. But that work didn’t prepare Gindelsperger for the storm of controversy that erupted when his neighbor put up a new barn and threw its doors open for weddings.
The result, said Gindelsperger, was dozens of partygoers parading across a joint easement and bands and DJs playing well into the previously serene summer nights.
Gindelsperger, who lives off Powell Butte highway northeast of Bend near the Pronghorn Resort, was among the first neighbors to press the county to crack down on non-permitted events in rural areas, namely weddings, that were popping up in dozens of locations without the necessary approval.
What followed was a four-year battle with neighbors, county planners and elected officials that now appears headed for the courts. The current controversy centers on a request from Kerry and Deborah Downs who would like permission to put on half a dozen weddings annualy at their rural farm. The Downs are drawing attention from both property rights advocates and land use proponents who view it as a precedent setting case.
The seemingly benign issue of rural weddings has created enough of a stir among landowners, property rights advocates and neighbors that the legislature rewrote the state law surrounding so-called non-farm events as part of an agri-tourism bill in the last session.
The new rules were supposed to be a compromise that balanced the need for farmers to create secondary sources of income while respecting neighbors’ rights to peace and quiet in rural areas.
But the Downs application is pushing the envelope of what constitutes farm uses. If county commissioners uphold their staff’s interpretation, critics say it could open the door for a host of non-farm uses on rural property that will diminish the rural character of areas like Gindelsperger’s neighborhood and disrupt long-term land use patterns that have kept urban issues like traffic and noise and light pollution at bay.
“I don’t care if anyone in the world has these things, as long as the neighbors have a say,” said Gindelsperger, who said his neighbor once hosted 18 events in a single summer without so much as a courtesy call, let alone a land use process.
Under the new rules, landowners are required to go through a county permitting process that demonstrates how the event use is both related and secondary to the primary agricultural use. They must also adhere to standards for noise levels and traffic management.
However, critics like Central Oregon Landwatch’s Paul Dewey say the county staff has taken such a liberal view of the new rules that nearly any event will qualify for an exception to the long-held rules that separated commercial events and farming.
“True farmers need assistance. It’s just that when you turn it on its head what’s really going on is that it’s all about the commercial use—the exception swallows the rule—and the commercial venture dwarfs whatever farming is there,” said Dewey.
In the case of the Downs operation, they expect to gross about $12,000 from their wedding business compared to roughly $20,000 in farm revenue they pull in annually, by their own estimate.
Dewey’s group has already appealed the county’s adoption of the ordinance and is watching the Downs’ case that could serve as a litmus test for the entire state.
He’s not the only one. The powerful Tigard-based property rights group Oregonians In Action (OIA) has taken up the Downs’ case through its legal center. According to OIA’s website, the legal center takes on “test cases,” pro bono, and chooses cases based on their “potential for providing significant precedents.”
The group submitted an eight-page memorandum laying out its argument for why the Downs’ wedding business should be viewed as part of its farm operations.
OIA’s president and former legal director Dave Hunnicutt was in Bend in late August to make his case to Deschutes County’s three-member board of commissioners.
The crux of OIA’s argument is that the Downs’ wedding business can be viewed as a marketing effort for the farm’s hay sales. According to an affidavit submitted by Kerry Downs, he sold roughly 72 tons of hay to wedding attendees in 2009 and another 19 tons in 2010.
“Mr. Downs takes advantage of the opportunity provided by having a large group of people on his property to market the hay produced on site,” Hunnicutt wrote.
Like Gindelsperger, the Downs have been at or near the center of the rural wedding controversy for the better part of five years. A stockbroker in Bend by trade, Kerry Downs started hosting weddings on his Tumalo area farm when his daughter was married several years ago. Downs, who raises about 80 acres of hay, quickly realized the commercial potential of his pastoral setting and started doing commercial weddings on a part-time basis.
Downs was eventually caught up in the county-wide crackdown on rural weddings that was prompted by complaints from neighbors. He continues to host private events, but would like to get back into the commercial wedding business. At this point he is requesting a permit for six events annually with an expected attendance of 150-200 people per event, but by-rule, has the ability to have as many as 500 guests per event.
The question is just how big his wedding business can grow before it becomes the primary, rather than the secondary use for his property.
Hunnicutt argues that commissioners ought not to see the weddings and farm as two separate entities since revenue from weddings helps bolster farm income. Land use advocates say that’s a slippery slope.
“If it’s just a subjective matter of we want it, then anyone can have a soccer match and say the people having the match wanted to be in a rural setting,” said Pam Hardy, an attorney for 1,000 Friends of Oregon, a Portland-based land use watchdog group, who works in the, ,Bend office.
Hardy said her group was supportive of the agri-tourism bill that served as the foundation for the county’s new rural events ordinance. However, she said they believe the bill was written with a much narrower focus to cover events like farm tours and farm-to-fork dinners. She said it might fall to the courts to suss out exactly what it means for an event to be related to agricultural. For now though, she says her group is going to argue that weddings don’t fit the bill.
“Our interpretation is that [the laws] are almost meaningless. At some point that is going to have to go through that [judicial] process and we’ll find out what the words mean,” Hardy said.
Whether her organization will be the one to appeal the decision if commissioners uphold the staff approval of the application is still undecided, said Hardy. But they haven’t ruled out the possibility either.
“This could be the test case, because it’s the first significant case to really ride that edge,” Hardy said.
Deschutes County Commissioners are expected to render a decision on the planning staff’s approval of the Downs’ application within the next six weeks.
The parties will have a chance to appeal that decision to the Land Use Board of Appeals and, if necessary, the Oregon Appeals Court.
The Department of Land Conservation and Development and Deschutes County have, to-date, limited non-farm revenue to 25 percent of total receipts. Oregonians in Action is arguing that landowners should be able to generate up to 50 percent of their profits from a non-farm use and still have it be considered “secondary.”
In the Downs case, their wedding revenue would be about $12,000 annually compared to about $20,000 in hay sales, or about 60 percent.
Not a problem, according to Hunnicutt, who told county attorney Laurie Craghead that the county needs to include the wedding revenue in the Downs’ net receipts before it applies the formula. In other words, commissioners have to presuppose the requested use. In that case, the wedding receipts drop from 60 percent of the
projected farm revenue to about 38 percent.