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1000 Friends of Oregon v. Jackson County

Court of Appeals of Oregon

May 31, 2018

1000 FRIENDS OF OREGON, Respondent Cross-Petitioner,
v.
JACKSON COUNTY, Respondent below, and DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Intervenor, and OR SOLAR 7, LLC, Petitioner Cross-Respondent.

          Argued and Submitted January 5, 2018

          Land Use Board of Appeals 2017066;

          Josh Newton argued the cause for petitioner-cross-respondent. With him on the briefs was Karnopp Peterson LLP.

          Meriel L. Darzen argued the cause and fled the brief for respondent-cross-petitioner.

          Denise G. Fjordbeck, Assistant Attorney General, argued the cause for intervenor. With her on the brief was Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Damien R. Hall argued the cause amicus curiae for Oregon Solar Energy Industries Association. With him on the brief was Ball Janik LLP

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Sercombe, Senior Judge.

         [292 Or.App.174] Affirmed on petition; reversed in part on cross-petition.

         Case Summary:

         This case concerns Jackson County's approval of an approximately 80-acre photovoltaic solar power generation facility on high value farmland outside of, but adjacent to, the urban growth boundary of the City of Medford. The Land Use Board of Appeals (LUBA) reversed the county's decision, concluding that the county had misconstrued applicable law with respect to the only two alternative reasons advanced to justify the proposed exception to Statewide Planning Goal 3 (Agricultural Lands). Or Solar 7, LLC seeks review, asserting that the county properly approved the facility. 1000 Friends of Oregon (1000 Friends) cross-petitions for review, asserting that, although LUBA did not err in reversing the county's decision, LUBA erred in its determination that the proposed facility qualified as "industrial development" under OAR 660-004-0022(3). Held: LUBA did not err in concluding that the county's decision was not justified under OAR 660-004-0022(3)(c) because, as 1000 Friends asserted, the proposed facility was not "industrial development" within the meaning of OAR 660-004-0022(3). LUBA also did not err in concluding that the county's decision was not justified under OAR 660-004-0022(1)(a). The Court of Appeals, therefore, reversed the portion of LUBA's order that concluded that the requested facility was rural industrial development under OAR 660-004-0022(3) and affirmed the remainder of the order, including LUBA's disposition.

         [292 Or.App.175] SERCOMBE, S.J.

         Or Solar 7, LLC, (Or Solar) sought approval from Jackson County to establish an approximately 80-acre photovoltaic solar power generation facility on high-value farmland outside of, but adjacent to, the urban growth boundary (UGB) of the City of Medford. The county approved the application by ordinance.

         1000 Friends of Oregon, (1000 Friends) appealed the county's decision to the Land Use Board of Appeals (LUBA), contending that the county had erred in approving the application. LUBA agreed, and reversed the county's decision. Or Solar seeks review and 1000 Friends cross-petitions for review of one of LUBA's conclusions set forth in its order. On review for whether the LUBA order is "unlawful in substance, " ORS 197.850(9)(a), we affirm on Or Solar's petition for judicial review and reverse on 1000 Friends' cross-petition.

         Because it is important to understanding the issues in this case, before turning to the parties' contentions on review, we first examine the regulatory context for the legal issues in dispute, as well as the determinations made by the county and LUBA. Statewide Planning Goal 3 (Agricultural Lands) requires counties to preserve and maintain agricultural lands for farm use, and to authorize "farm uses and those nonfarm uses defined by [Land Conservation and Development Commission (LCDC)] rule that will not have significant adverse effects on accepted farm or forest practices." ORS 215.203(1) authorizes counties to designate agricultural land within an exclusive farm use (EFU) zone and limits the use of EFU-zoned land to farm use "except as otherwise provided in ORS 215.213, ORS 215.283 or ORS 215.203(1)." ORS 215.283(1) lists various nonfarm uses that counties must allow subject to state standards adopted by LCDC.[1] Greenfield v. Multnomah County, 259 Or.App. 687');">259 Or.App. 687, [292 Or.App.176] 690, 317 P.3d 274 (2013). ORS 215.283(2) lists 2 nonfarm conditional uses which may be allowed if the county determines that they will not significantly affect surrounding lands devoted to farm or forest uses. See ORS 215.296(1) (setting out standards for approving ORS 215.283(2) conditional non-farm uses); see also Greenfield, 259 Or.App. at 691 n 2.

         At the time of Or Solar's application, ORS 215.283 (2)(g) allowed "[c]ommercial utility facilities for the purpose of generating power for public use by sale" as a conditional nonfarm use in an EFU zone.[2] At that same time, OAR 660-033-0130(38), part of an LCDC rule implementing Goal 3 and relating to standards for permitted and conditional nonfarm uses under ORS 215.283, allowed photovoltaic solar power generation facilities on high-value farmland provided, among other things, that the facility "shall not preclude more than 12 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4" to the 12-acre limitation.

         An "exception" is a variance to the requirements of a statewide planning goal.[3] Part II of Goal 2 (Land Use Planning) allows an exception, among other circumstances, when

"(c) The following standards are met:
"(1) Reasons justify why the state policy embodied in the applicable goals should not apply;
[292 Or.App.177] "(2) Areas which do not require a new exception cannot reasonably accommodate the use;
"(3) The long-term environmental, economic, social and energy consequences resulting from the use of the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and
"(4) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts."

See also ORS 197.732(2) (reiterating the Goal 2 exception standards). This is known as a "reasons exception." Under ORS 197.732(3)(b), LCDC is authorized to adopt rules establishing "[u]nder what circumstances particular reasons may or may not be used to justify an exception" under the "reasons exception" standards of Part II of Goal 2 and ORS 197.732(2). LCDC has adopted OAR 660-004-0022, which provides, in relevant part:

"(1) For uses not specifically provided for in this division, or in OAR 660-011-0060, 660-012-0070, 660-014-0030 Or. 660-014-0040, the reasons shall justify why the state policy embodied in the applicable goals should not apply. Such reasons include but are not limited to the following:
"(a) There is a demonstrated need for the proposed use or activity, based on one or more of the requirements of Goals 3 to 19; and either
"(A) A resource upon which the proposed use or activity is dependent can be reasonably obtained only at the proposed exception site and the use or activity requires a location near the resource. An exception based on this paragraph must include an analysis of the market area to be served by the proposed use or activity. That analysis must demonstrate that the proposed exception site is the only one within that market area at which the resource depended upon can reasonably be obtained; or
"(B) The proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site.
[292 Or.App.178] ''* * * *
"(3) Rural Industrial Development: For the siting of industrial development on resource land outside an urban growth boundary, appropriate reasons and facts may include, but are not limited to, the following:
"(a) The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include geothermal wells, mineral or aggregate deposits, water reservoirs, natural features, or river or ocean ports;
"(b) The use cannot be located inside an urban growth boundary due to impacts that are hazardous or incompatible in densely populated areas; or
"(c) The use would have a significant comparative advantage due to its locations (e.g., near existing industrial activity, an energy facility, or products available from other rural activities), which would benefit the county economy and cause only minimal loss of productive resource lands. Reasons for such a decision should include a discussion of the lost resource productivity and values in relation to the county's gain from the industrial use, and the specific transportation and resource advantages that support the decision."

         Or Solar applied for a Goal 2 reasons exception to Goal 3 to allow an approximately 80-acre photovoltaic solar power generation facility-68 acres more than the 12-acre-sized facility conditionally allowed on high-value farmland. See OAR 660-033-0130(38). The Jackson County board of commissioners (board) approved the application and adopted Ordinance No. 2017-9 approving a "'Reasons' Exception to Statewide Planning Goal 3." In that ordinance, the board explicitly found that the exception could be justified based on "two alternative reasons: (1) The 'demonstrated need'/ locational ...


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