Farmland preservation advocates say Deschutes County wrongly rezoned a 60-acre property for rural residential development after finding it’s unsuitable for agriculture.

Though the county’s decision passed muster with the state’s Land Use Board of Appeals, Central Oregon LandWatch said several of its arguments were improperly dismissed.

The legal dispute has now landed before the Oregon Court of Appeals, which recently heard online oral arguments about whether LUBA must reconsider its ruling.

Under the county’s rezoning decision last year, the 60-acre property can be subdivided into smaller tracts on which one dwelling per 5 acres can be built. The land is south of Bear Creek Road between, roughly, SE 27th Street and Ward Road.

Central Oregon LandWatch said the zoning decision follows a pattern of Deschutes County breaking up large tracts zone for exclusive farm use into “low-density rural residential sprawl” near Bend’s urban growth boundary.

Farmers are concerned a neighborhood of up to 12 homes on the property amounts to “urban-scale development” outside the UGB and will endanger the area’s long-term viability for agricultural production, according to Central Oregon LandWatch, a nonprofit.

Despite landowner Harold Marken’s inability to turn a profit by raising hay and cattle on the property, Central Oregon LandWatch said that doesn’t mean it’s unsuitable for agriculture and can be removed from the EFU zone. The group also said the rezoning violated a statewide land use goal against the urbanization of rural land.

However, LUBA refused to consider some of Central Oregon LandWatch’s arguments, finding the nonprofit didn’t “preserve” them for legal review by failing to raise the issues specifically enough before the county.

Recent oral arguments before the appellate court largely focused on the procedural matter of whether the nonprofit’s objections on appeal before LUBA were adequately argued at the local government level.

A ruling in the case is expected by the end of July, unless the appellate court extends the deadline.

Rory Isbell, attorney for Central Oregon LandWatch, said the nonprofit couldn’t predict the county’s reasoning for approving the rezoning, but still provided adequate “fair notice” of its objections.

“We did cite the extensive use of this property for raising crops and livestock,” Isbell said, adding that it also properly addressed the urbanization argument. “That does sufficiently raise the issue.”

Ken Katzaroff, attorney for the landowner, said his client’s 40-year history with the property demonstrates it’s incapable of generating a profit through farming.

“He tried for decades to successfully farm and the record shows he was not successful,” Katzaroff said, noting that the land has long been considered marginal. “You can’t make a viable farm use unless you’re subsidized.”

In opposing the rezone, Central Oregon LandWatch wasn’t specific enough in bringing up objections that served as its “assignments of error” in the LUBA appeal, he said.

“If you don’t raise an issue, the applicant and the local government can’t respond to it,” Katzaroff said.