Wasco County Commissioners denied a pair of appeals Wednesday from residents of Seven Mile Hill who are opposed to the construction of wind-measuring towers at two sites on the hill.
At each site, members of the planning commission had approved two-year temporary permits for a pair of towers, one at 164 feet and one at 197 feet.
The towers, according to the applications, were “for gathering wind and temperature data to establish the viability of the property for a future wind energy generation facility.”
The hearings were part of what may have been a record-setting meeting, which continued for nine solid hours, punctuated only by occasional five-minute breaks, and a 10-minute stop for lunch.
The first hearing involved a property owned by Michael and Cathie Kortge. The 455-acre property has no address assigned, but its location was described as approximately 1 mile north of the intersection of Seven Mill Hill Road and Ortley Road. The appellant was Mark Womble, a Hood River attorney who owns property in the area.
The second hearing involved property at 2520 Seven Mile High Road, owned by Grant and Leonie Robbins,
Appellants in that case were Gary and Linda Casady, who own adjacent property at 2500 Badger View Drive.
In both cases, the property owners were not applying themselves to put up those towers, but had granted permission to UPC Wind Management, LLC to apply. A representative of the company, Krista Kisch, told commissioners the company has 3,800 megawatts of wind power under development nationally.
Wednesday’s quasi-judicial hearing represented the latest in a series of legal skirmishes between the applicants and the neighbors. UPC’s applications were approved by the planning department staff, after which the neighbors appealed to the planning commission. The commission held two hearings – an evidentiary hearing on Oct. 3 and a deliberation session Nov. 7.
At the latter hearing, the planning commission voted 5-0 to grant both applications.
The neighbors then appealed the decisions to the Wasco County Court.
Wednesday’s hearing was classified as a closed hearing, meaning neither side could introduce new evidence, and testimony was limited to the points of appeal filed by the appellants.
In an effort to be all-inclusive, the court was lenient in allowing last-minute written submissions from the Friends of the Gorge, after ruling the submissions were commentary on the appeal and not new evidence.
The court was also lenient on length of testimony. The first hearing, scheduled for 30 minutes, ran more than three and a half hours. That included extensive testimony from appellant Womble, a neighbor to the project, and extensive rebuttal from Elaine Albrich, a land-use attorney from Portland’s Stoel Rives, who represented UPC.
The company was also represented by Dotty DeVaney, a former Wasco County planning director.
The hearing opened with two unusual objections. Richard Murray, whose property is located across the road from the Kortge property, challenged the right of Wasco County Judge Dan Ericksen to hear the matter. Ericksen said in opening statements that he had in the past leased an orchard from Mike Kortge, but no longer did so, and had no current financial ties with Kortge.
Murray, who last month lost in an election bid to replace Ericksen as judge, suggested that Ericksen might be prejudiced in Kortge’s favor because he was “friendly” with Kortge. Murray’s request was denied.
Then attorney Womble took the further unusual step of challenging the jurisdiction of the county court to hear the appeal.
Womble asserted the issue was not ready to review by the court because he and other interested parties had not received a copy of the planning commission’s decision, “specifying the findings and conditions.” Instead, he had received a three-page notice of decision (NOD).
After much discussion, the court ruled the use of the NOD – which was available at the counter of the planning office for seven days prior to the meeting – was proper because it is consistently used by the commission, and includes information on findings and conclusions.
In the appeal proper, Womble raised a number of issues:
“¢ that UPC had originally applied for a conditional use permit, but planning staff had concluded the application could be processed as a temporary use permit, which requires fewer qualifications,
“¢ that adjacent property owners had not been properly notified,
“¢ that Dotty DeVaney, representing UPC, did not have legal standing to apply for the permit because UPC was neither the owner of the property nor a leasholder,
“¢ that the owners of the property were not in compliance with land use regulations at the time of the application, due to the existence of a smaller, but unpermitted meteorological tower found on the property during a site visit June 20.
In finding against the appellant, county commissioners approved planning staff reports recommending the points of appeal be denied.
Commissioners found the temporary use permits were appropriate to the project.
On the point of notification of adjacent property owners within 750 feet of the proposed project, Womble challenged the interpretation of “property.” The specific tax lot on which the towers were to be sited, has adjacent tax lots also owned by Kortge. Womble contended that all contiguous property owned by the same owner should be considered “property” for the sake of notification, and that the 750-foot radius should be measured from the outer edge of the contiguous property, not the outer edge of the specific tax lot. Commissioners rejected that interpretation.
The court also accepted the staff report concluding DeVaney did have standing because she had submitted a letter from the Kortges authorizing her to apply.
Albrich, the UPC attorney, told the court a lease did exist between General Electric and the Kortges, to which UPC had an option for development rights, and UPC could provide the court with a “redacted copy” in which some information was blacked out “for business proprietary reasons.”
On the point of compliance, the commissioners accepted the staff report that a condition of granting the temporary use permits was the requirement that the applicant either remove the previous meteorological tower or provide proof that it had been properly permitted. Staff was told the tower had been removed.
During the second hearing, Linda Casady requested a postponement, because the length of the previous hearing exceeded the time her husband had taken off from his job to attend the hearing. The court was told by planning staff that Wednesday’s court date was the last possible date for the hearing on this matter, due to a mandatory 150-day limit on decisions for planning applications. The postponement was denied.
Casady, who represented herself and her husband, raised a number of points of appeal identical to those raised by Womble, all of which were rejected on similar grounds.
She also raised other points, including:
“¢ the Rollins property is in the High Elevation Big Game Winter Range,
“¢ the proposal did not meet Wasco County Planning and Development stated objectives,
“¢ the proposal would “significantly detract from the visual character of the area.”
Commissioners found in favor of the staff report recommending denial on all issues.
The big game winter range is not defined as a “game management area,” the staff noted, where additional restrictions might apply.
The staff report said the objectives, “are important in guiding the department in its day-to-day decision making,” but were “not legislatively adopted criteria applicable to this review.”
And in regard to the visual character, staff reported there were no visual criteria required under temporary use permits.
Both Womble and Casady suggested the meteorological towers were the “foot in the door” for the eventual construction of large wind turbines on the sites.
“We have to review it on what the applicant submitted, not what data from those towers might lead somebody to apply for,” Todd Cornett said in a statement Thursday
Linda Casady also submitted a statement Thursday, which said, in part: “I think that most of the people here in the Mid-Columbia are unaware of the huge monster that is looming over them. This monster, which is being peddled as a benefactor is likely to have far more detrimental effects on our community than benefits.”
She said if wind turbines are installed, it would cost taxpayers, devalue property, cause damage to the ecology and wildlife, and have “a negative visual effect.”
In return, Casady said, the benefits were “questionable,” including three to four long-term jobs, minimal county revenue, energy transmitted to California and “negligible replacement of traditional fuel consumption.”
The matter may not have reached a definitive conclusion. Either Womble or Casady may appeal Wednesday’s decision to the state Land Use Board of Appeals (LUBA).
By Rodger Nichols
of The Chronicle
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