Archive for the ‘Energy’ Category

Wind Energy Gets Another Lease on Life in Umatilla County

Posted on April 11th, 2013 by

In Cosner v. Umatilla County (2012), the Land Use Board of Appeals overturned a series of Umatilla County ordinances adopted in 2011 to prevent several wind energy developments.  The main issues in the case involved the county’s compliance with Goal 5 and the constitutionality of 2-mile setbacks for wind turbines from certain uses and locations. LUBA found against the county on both assignments of error.

After the Cosner decision, the county adopted a new series of ordinances in 2012 that it believed would resolve the problems identified in Cosner.  Thereafter, Jim Hatley (also a party in Cosner) appealed the 2012 ordinances.  LUBA upheld the county’s new ordinances and Hatley appealed to the Oregon Court of Appeals.

On April 3, 2013, the Court  reversed and remanded LUBA’s decision. Significantly, the Court held that Hatley did not waive his right to appeal the 2012 ordinances because he could have raised those issues in the original LUBA proceedings.  The Court distinguished between quasi-judicial decision making, where a strong “raise-it-or-waive-it” standard applies, and legislative decision making, where waiver does not apply.  In a quasi-judicial process the governing body is required to give notice of and apply a set of criteria within a fixed time-frame and to adopt a final decision.  In contrast, once LUBA overturned the 2011 ordinances, the county was not bound to take any action, but opted on its own to adopt two new ordinances.  Therefore, the public involvement process started anew.

On remand, LUBA will consider whether the county’s 2012 ordinances are preempted by state laws that encourage and govern renewable energy.

This decision is also likely to inform the legislative debate over House Bill 3362  that attempts to limit public participation in local legislative actions.  This bill comes from Eastern Oregon and the ongoing battles between the City of Bend, Deschutes County, and Central Oregon Landwatch.

Stay tune to both the legislative debate and LUBA’s treatment of Hatley v. Umatilla County on remand.

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TAGS:  Energy

Wind Generation Transmission Line May Locate on EFU Land without Consideration of Alternatives that have Less Impact on Farm Land

Posted on August 14th, 2012 by

In WKN Chopin, LLC v. Umatilla County, LUBA reversed the county’s denial of a transmission line on EFU land intended to transmit energy from a new wind generation facility to the electrical grid. The county’s denial was based on a conclusion, under state law, ORS 215.295(2) and local code regulations, that there were alternatives to locating the line on EFU-zoned land and the applicant failed to establish that those alternatives were not feasible.

First, LUBA rejected intervenor’s claim that the use was more properly considered a “commercial utility facility for the purpose of generating power for public use by sale” under ORS 215.283(2)(g) when considered with the wind generation activity as opposed to “utility facility necessary for public services” under ORS 215.283(1)(c) as the County found. Not only was intervenor’s claim not properly preserved and was not raised as a cross-assignment of error challenging the county’s decision, a transmission line is a type of “utility facility” under ORS 215.276(1)(c) in any event.

Second, LUBA re-affirmed a long list of cases, most notably McCaw Communications, Inc. v. Marion County, 96 Or App 552, 556, 773 P2d 779 (1989), holding that an applicant for a utility facility necessary for public service is required to examine only non-EFU-zoned alternatives. An applicant need not examine multiple EFU-zoned alternatives and select the EFU zoned alternative that has the least impact on EFU-zoned land.

Third, local regulations requiring the consideration of alternatives and technological feasibility cannot be imposed on a use permitted under subsection (1) of ORS 215.283 as they are subject only to statutory standards under Brentmar v. Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995), and otherwise they are deemed permitted outright.

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TAGS:  Energy, Land Use in Oregon, LUBA

Oregon’s Ten Year Energy Action Plan Open for Public Comment

Posted on June 29th, 2012 by

The Governor’s Ten Year Energy Action Plan Task Force released its Draft Energy Plan on June 5, 2012. The plan outlines the actions and initiatives of that the State of Oregon can take in the next 10 years to:

• Reduce the state’s dependence on carbon-intensive fuels and foreign oil

• Develop home-grown renewable energy resources

• Mitigate greenhouse gas emissions

• Improve energy efficiency and create rewarding local jobs

• Boost Oregon’s economy through investment and innovation

The siting portion of the plan analyzes which projects should be reviewed by local or state government, as well as the role other governmental agencies and entities should play in the siting process. The recommendations include the creation of an interdisciplinary team of agencies led by a Project Officer to review proposed Energy Facility Siting Council (EFSC) projects; and a similar, but separate coordination process for projects under federal and state review (more…)

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TAGS:  Energy, Land Use in Oregon

Constitutional Scrutiny Over One County’s Ban on Commercial Wind Farms

Posted on April 13th, 2012 by

In Zimmerman v. Wabaunsee County, Kansas, 293 Kan 332, 264 P3d 989 (Kan. 2011), the Kansas Supreme Court considered Plaintiff landowners appeal of the county’s decision to adopt zoning regulations that expressly prohibited the placement of commercial wind farms.  Each of the Plaintiffs had entered into written contracts for the development of commercial wind farms on their properties.  Plaintiffs raised two federal constitutional challenges to that ordinance, using the Takings and Commerce Clauses.

On review, the Kansas Supreme Court found that in order to prevail on a takings claim, a party seeking compensation must first establish that the property in question is one in which a vested interest exists.  A mere expectancy of future benefit does not constitute a vested right.  (more…)

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TAGS:  Energy, Land Use Planning, Takings

Windfalls in Sherman County

Posted on November 28th, 2011 by

In our July 8, 2011 post we wrote about new ordinances adopted in Umatilla County that severely limit where wind turbines can be constructed.  Property owners throughout the county have challenged the ordinances with an appeal at LUBA and oral argument is set for December 15th.  The tradeoff between green energy and aesthetics continues to be an ongoing debate in that locale.

Meanwhile, Sherman County has taken a different approach by embracing the development that captures the energy from gusts breezing through their backyards.  The Oregonian recently published the article, “Wind blows money into pockets of Sherman County residents,” describing the county’s decision to share the wealth when it comes to windfalls from turbine development (read the full article here.)  Although some community members may find the view of wind turbines less aesthetically pleasing than undeveloped high desert land, the county has attempted to give economic value to that impact.  (more…)

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TAGS:  Energy

A Shift in the Prevailing Winds

Posted on July 8th, 2011 by

Locating new commercial wind developments in Oregon is getting more difficult, not just because the premier locations are now festooned with towers, but because opponents, with the support of local governments, are favoring strict standards on towers over the revenue and green energy they also provide.  On June 29, the Umatilla Board of County Commissioners adopted one of the broadest and most sweeping regulations limiting the location of wind turbines across the state.  (more…)

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TAGS:  Energy, Sustainability

Blade Runner: How to Measure Noise at Wind Facilities

Posted on June 29th, 2011 by

In Mingo v. Morrow County, __ Or LUBA __ (LUBA Nos. 2011-014, 2011-016, and 2011-017, June 2011), LUBA considered the Department of Environmental Quality’s (DEQ) noise control regulations in OAR chapter 340, division 35.  The case involved Morrow County’s conditional use approval for a wind energy facility in 2005 which required that the facility comply with DEQ’s noise control regulations. (more…)

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TAGS:  Energy