The owner of an unlicensed trash pit on a farm outside Aurora contends she did nothing wrong and that the trash received for a fee from an industrial vacuum excavation company was used by the farm for about three months in 2023 and 2024.
Marion County Hearing Officer Jill Foster heard arguments Dec. 18 on an appeal of Marion County’s Sept. 25 ruling that filling landfill pits with waste does not qualify as an agricultural use.
Foster did not give a timetable for when she would make a decision on the case.
Thomas Benke, an attorney for owner Denise Burnham, pushed back against the county’s decision.
He argued that county staff defamed the pit because county staff said materials stored there were not necessarily clean because they were not tested when they were brought there.
“County officials felt the need to include a lot of disparaging information in their decision about what this dirt and water might be, which I think is inappropriate and defamatory,” Behnke said.
The owner of a controversial unlicensed rubbish pit argued at a hearing on December 18 that it was for farm use.
The garbage pit was built in 2023 but was quickly closed
The 200-foot-by-100-foot-wide, 20-foot-deep pit was constructed in 2023 at the Hazelnut Farm at 21875 Butteville Road outside Aurora. It includes six asphalt dumping areas with white lines painted on the ground and yellow safety railings.
Behnke believes a dam built on Burnham’s land would be in the best environmental interest as an erosion control structure that would prevent mud from flowing along Ryan Creek.
Marion County identified the need to remove the dirt slope on the west side of the pit as well as the asphalt dump station, yellow guardrail and other components of the site. These have not been removed yet.
The gravel road leading to the pit was also improved, Burnham testified, to make it usable year-round.
The county determined that nothing done there was allowed under the site’s exclusive farm use zoning.
“We don’t believe that’s what’s happening on the property,” said Marion County Chief Planner Austin Barnes.
Does charging a garbage fee make it a business?
Much of the argument presented to the hearing officer focused on whether the waste being deposited was part of a commercial activity.
“Based on evidence submitted to the record, the applicant was compensated for each dumped truck and received $300 per shipment, with 238 shipments received from November 2023 to January 2024,” Barnes said.
“It’s important to note that once these companies (Portland General Electric) and NW Natural discovered that the pit was not licensed by DEQ and the county, they immediately told the drivers to stop hauling waste there.”
As this photo from 2025 shows, neighbors of the unlicensed garbage pit believe it poses a danger to nearby Ryan Creek.
Behnke believes that charging a fee for garbage on a farm does not necessarily mean that the garbage is not suitable for use on the farm. He used the analogy of one farmer selling dirt to another farmer.
“Whose business is this?” said Behnke.
Burnham said the money received is put back into the farm.
“The appeal letter denies (Burnham) was paid,” argued Joseph Schaefer, a paralegal at the law firm of Jordan Ramis. “What’s notable today is that that seems to be dialing back a bit.”
Is the dirt deposited on site filled with dirt?
Behnke believed that the dirt deposited there was filler dirt. He said the original soil from the site has been removed and will be put back in place once the site is leveled.
Ben Williams of the land-use advocacy group Friends of French Prairie said there was no testing of materials stored at the site.
“That’s the wrong way to go,” Williams said. “No permit has been applied for for any facility at this location.”
Barnes said the normal disposal method for Vector trucks, which is the type of material stored at the site, is more complex than what was done at the Aurora site.
“Based on staff research, the typical disposal method for vacuum trucks is to take them to a licensed solid waste facility where the material is dumped and dried on a flat surface, allowing the soil to evaporate to dryness,” Barnes said.
“It’s not the same as dumping into a pit and drying out the soil. The pit is usually filled with water,” said Barnes.
Burnham argued that the materials stored there were intended to level that portion of the land so she could plant more hazelnut trees.
Burnham argued that nothing she did required permission from any agency.
Lawyers argue land-use groups oppose farmers
Behnke took issue with farmers who opposed the proposal, accusing them of being anti-farmer.
“The impression I get from some of the people who are opposed to this proposal is that some of our friends claim to be farm-friendly, but in reality they are not farmer-friendly,” Behnke said.
Burnham’s son-in-law, Cheyne Fobert, who manages the pit, said the mine leaves no dirt behind and his goal is to turn the area into ventilated farmland.
He blamed farmers who complained about the business for its closure.
“We’re absolutely devastated by the neighbors,” he said.
Greg Wing, owner of All-Ways Excavating, the excavator company that built and operated the pit and another Hubbard excavator, is being sued by Hubbard owners for $15 million for negligence, fraud and elder abuse.
Bill Poehler covers Marion and Polk counties for the Statesman Journal. Contact him at bpoehler@StatesmanJournal.com
This article originally appeared in the Salem Statesman-Journal: Owner of unlicensed trash pit in Marion County argues it’s farm use
