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Columbia Riverkeeper v. Columbia County

Court of Appeals of Oregon

May 22, 2019

COLUMBIA RIVERKEEPER, Petitioner Cross-Respondent,
v.
COLUMBIA COUNTY, Respondent Cross-Respondent, and 1000 FRIENDS OF OREGON, Intervenor-Petitioner-below, and PORT OF COLUMBIA COUNTY, Respondent Cross-Petitioner.

          Argued and submitted March 15, 2019.

          Land Use Board of Appeals 2018020

          Maura C. Fahey argued the cause for petitioner-cross-respondent. Also on the briefs was Crag Law Center.

          Spencer Q. Parsons argued the cause for respondent-cross-petitioner. Also on the brief was Beery, Elsner & Hammond, LLP.

          No appearance for respondent-cross-respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.

         Case Summary: This judicial review proceeding arises from a final order of the Land Use Board of Appeals (LUBA). In that order, LUBA remanded a decision of the Board of Commissioners for Columbia County (the county). The county's decision approved a reasons exception to Statewide Planning Goal 3- and related comprehensive plan and zoning changes-for an area of agricultural land adjacent to Port Westward. The county granted the exception to allow for [297 Or.App. 629] the expansion of the port. LUBA concluded that the county's findings in support of the exception were inadequate in one respect, but that the decision was otherwise sound. Columbia Riverkeeper has petitioned for review, contending that LUBA erred by concluding that the county properly determined that two other applicable requirements for the reasons exception were satisfied; the Port of Columbia County has cross-petitioned for review, contending that LUBA erred when it determined that some of the county's findings were inadequate. Held: The Court of Appeals concluded that neither party demonstrated that LUBA erred.

         Affirmed on petition and cross-petition.

         [297 Or.App. 630] LAGESEN, P. J.

         This judicial review proceeding arises from a final order of the Land Use Board of Appeals (LUBA). In that order, LUBA remanded a decision of the Board of Commissioners for Columbia County (the county). The county's decision approved a reasons exception to Statewide Planning Goal 3 (Agricultural Land)-and related comprehensive plan and zoning changes-for an area of agricultural land adjacent to Port Westward, a deepwater port on the Columbia River. The county granted the exception to allow for the expansion of the port. LUBA concluded that the county's findings in support of the exception were inadequate in one respect, but that the decision was otherwise sound. Columbia Riverkeeper (Riverkeeper) has petitioned for judicial review, contending that LUBA erred by concluding that the county properly determined that two other applicable requirements for the reasons exception were satisfied; the Port of Columbia County (the port) has cross-petitioned for review, contending that LUBA erred when it determined that some of the county's findings were inadequate. We conclude that neither party has demonstrated that LUBA erred. We therefore affirm on the petition and cross-petition.

         I. LEGAL AND FACTUAL BACKGROUND

         A. Legal Standards at Issue

         We start with the legal standards applicable to the county decision at the heart of this proceeding. Here, the port seeks authorization for industrial uses on land designated agricultural in the county's comprehensive plan. To obtain that authorization, the port must demonstrate justification for an exception to Statewide Planning Goal 3, which requires counties to preserve and maintain agricultural lands for farm use. One type of allowable exception-the type at issue in this case-is a "reasons exception" under ORS 197.732(2)(c) and OAR 660-004-0020(2). Four standards must be met to permit a reasons exception to a statewide land use goal:

"(A) Reasons justify why the state policy embodied in the applicable goals should not apply;
[297 Or.App. 631] "(B) Areas that do not require a new exception cannot reasonably accommodate the use;
"(C) The longterm environmental, economic, social and energy consequences resulting from the use at 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
"(D) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts."

ORS 197.732(2)(c); Statewide Planning Goal 2: Part II (Exceptions); OAR 660-004-0020(2) (restating and amplifying statutory standard).[1]

         OAR 660-004-0022 elaborates on the various types of reasons that can justify the conclusion that "the state policy embodied in the applicable goals" should not apply to preclude a particular use. See generally OAR 660-004-0022. Under that rule, one identified reason to allow "siting of industrial development" on resource land outside an urban growth boundary is proximity to a "unique resource," such as-as is the case here-a port: "The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include *** river or ocean ports[.]" OAR 660-004-0022(3)(a).

         B. County Proceedings

         This proceeding began in 2013. Port Westward is a deepwater port on the Columbia River. It is a self-scouring site, which means that the property can accommodate deep-draft vessels without being dredged. To lay the groundwork for expanding Port Westward, the port applied to the county for exceptions to Goal 3, along with corresponding amendments to the comprehensive plan and zoning changes, for an 837-acre area of land adjacent to Port Westward. In its application, the port requested that a broad array of [297 Or.App. 632] industrial uses be allowed on the site, contending that several different exceptions to Goal 3 applied to the property in question. The county approved three exceptions, including a reasons exception, as well as the corresponding plan and zone amendments. However, the matter was appealed to LUBA and LUBA remanded to the county on a number of grounds, including that the county had failed to justify the reasons exception for the wide range of uses proposed.

         On remand, the port modified its application. The modified application sought only a reasons exception to permit a limited set of industrial uses on the land. Specifically, the port sought a reasons exception under OAR 660-004-0020(2) and OAR 660-004-0022(3Xa) for five particular uses:

"(1) Forestry and Wood Products processing, production, storage and transportation; (2) Dry Bulk Commodities transfer, storage, production and processing; (3) Liquid Bulk Commodities processing, storage, and transportation; (4) Natural Gas and derivative products, processing, storage, and transportation; and (5) Breakbulk storage, transportation, and processing."

         Relying primarily on analysis contained in a report denominated the "Mackenzie Report," the port sought to demonstrate that the reason the policies underlying Goal 3 should not apply to preclude the requested uses is because those uses are "significantly dependent on [the] unique resource" of a deepwater port. OAR 660-004-0022(3)(a).[2] The Mackenzie Report explained:

"Uses with foreign trade markets and marine-served domestic markets for products that are shipped by marine vessel are, by definition, reliant on deepwater port facilities. Table 2 demonstrates that each of the five proposed uses for [the Port Westward expansion] involve foreign import/export operations and are thus dependent upon a [297 Or.App. 633] deepwater port. The proposed uses will achieve a significant operational advantage due to deepwater port access with nearby storage yards. As the proposed uses are low-margin businesses, port proximity is necessary to minimize operational costs for both import/export and domestic shipping operations. An external benefit of these firms' locations near port facilities is that locating their yards close to the port minimizes impacts on offsite transportation infrastructure."

         Further, the port contended, the other criteria for a reasons exception were met, including the requirement that "[a]reas that do not require a new exception cannot reasonably accommodate the use[s]," OAR 660-004-0020(2)(b), as well as the requirement that the "proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts," OAR 660-004-0020(2)(d).

         The county agreed that a reasons exception should be granted for the five proposed uses. The county looked to OAR 660-004-0022(3), as noted, a rule establishing particular exception requirements for the siting of industrial development on rural resource land. The county determined that the deepwater port at Port Westward was the type of "unique resource" that would permit an exception to Goal 3 for uses that are "significantly dependent" on a deepwater port: "[T]he approved uses each involve the act (or acts) of getting the subject goods processed, transferred, imported and/or exported via deepwater port and accordingly serve as a valid basis for taking an exception to Goal 3." However, the county noted that opponents of the exception had legitimate concerns as to whether some of the approved uses when implemented might, in fact, lack the requisite dependence on a deepwater port. To account for those concerns, the county explained that, even though it did not construe the port's application to seek approval for any nondependent uses-it characterized the port's application as "self-limiting"-it would impose measures to safeguard against uses that did not actually depend on a deepwater port:

"To the extent opponents have expressed concern that future rural industrial Port tenant uses could potentially lack a nexus with the deepwater port at Port Westward, [297 Or.App. 634] and thereby undermine the basis for granting the exception, the Board finds that the terms of the Port's application on remand is self-limiting in that the sole basis the Port has put forward is significant dependence on the deepwater port at Port Westward. Given that limitation, any potential tenant seeking to locate in the new expansion area would be limited not only to the five ...

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