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Attorneys make arguments in Umatilla County wind power appeal

Umatilla County sidestepped state planning procedure when it imposed stricter wind-turbine siting laws in June, an attorney representing 14 local landowners argued Thursday in Salem.

The Oregon Land Use Board of Appeals heard oral arguments from Portland lawyer Ed Sullivan, representing the landowners, and Doug Olsen, the county counsel defending the new rules, which include a two-mile setback requirement for new wind farms.

Olsen, who phoned in to the hearing, argued the county adhered to proper procedure but acted primarily to protect homeowners from turbine noise and less out of environmental or aesthetic interests outlined in Goal 5 of the statewide planning goals.

“The county has the ability to set its own regulations for these types of facilities and chooses to do so,” Olsen said.

The new law passed June 28 enacts a two-mile setback between turbines and homes throughout the county, and also sets aside a large swath of the Blue Mountains with tougher rules to essentially keep turbines out of the Walla Walla watershed.

Local landowners appealed that decision July 22: Robert and Cheryl Cosner, Richard Stewart, Ted Reid, Tom and Jo Lynn Buell, Barabara Clutter, Ken and Ida Schiewe, Greg and Doris Tsiatos, Jim Hatley, Herb March and Fred Reichow.

Sullivan, with the firm Garvey Schubert Barer, argued the new laws effectively imposed Goal 5 restrictions without going through the proper Goal 5 processes. Goal 5 specifies protections for natural resources, scenic areas, historical areas and open spaces.

He accused the county of taking a “one-size-fits-all setback approach” that ran contrary to the Goal 5 process, which has specific requirements, including environmental and economic studies.

“Any increased level of protection of Goal 5 resources must be justified through findings and the Goal 5 process,” Sullivan said.

He referenced attempts in 2009 by conservationist Richard Jolly, a later founder of Blue Mountain Alliance, at the Goal 5 process that eventually lost steam. Jolly’s effort to have the Blue Mountains placed off-limits to wind turbines preceded the county remaking its rules over the next two years.

“Having failed to deal directly with suppression of wind energy under a Goal 5, they turned to an indirect approach,” Sullivan said. He also argued the legitimacy of the two-mile setback, chiefly that landowners or municipalities may waive the setback and allow any wind project to build closer than two miles. Sullivan called it “unbridled discretion without process.”

He also alleged the requirement could result in “unpleasantness” and “blackmail” because those agreements could be made outside public process.

Olsen responded the county is open to wind farms and will continue to allow them, but also has a responsibility to regulate them.

He argued the two-mile setbacks were imposed to protect people from noise, not Goal 5 resources. In the Walla Walla watershed, while some Goal 5 standards applied, they did not include everything the county is aiming to protect, Olsen asserted.

“The area far exceeds any setbacks or overlay zones meant to protect Goal 5 resources in this county,” he said.

When it came to waivers, Olsen said those would need planning commission approval, and thus a public process.

The board of appeals has until Jan. 12, 2012, to issue its ruling.