Oregon’s Land Use Board of Appeals has rejected key elements of a law regulating wind turbine sites in Umatilla County.
The board, commonly known as LUBA, ordered the county Thursday to reconsider four of 11 challenged provisions of its law enacted in June 2011, two of which mandated a 2-mile setback between wind turbines and the nearest homes. The board posted its decision Tuesday online.
Fourteen local landowners, some amenable to siting wind turbines on their properties, in July 2011 appealed the regulations. The measure also imposed tougher siting requirements in a swath of the Blue Mountains in order to keep wind turbines out of the Walla Walla River watershed.
The board of appeals instructed the county to rework its process on granting waivers for the setback requirement and clarify its justification for designating the watershed as a protected area.
It also ordered the county to address discrepancies between the siting regulations and the county comprehensive land-use plan.
The decision means further public hearings, said County Counsel Doug Olsen, who argued the case for the county in December.
Olsen could not say Tuesday whether the appeals board decision leaves the county regulations unenforceable.
Umatilla County Board of Commissioners Chairman Larry Givens said Tuesday he and the other two commissioners have not yet discussed the decision. He said they would but could not say when.
Nonetheless, Givens said the county fared well in the LUBA process.
“The county came out quite well with it,” Givens said.
Portland attorney Ed Sullivan, who represented the appellants, said he also felt the issues his clients raised were being addressed.
First and foremost, he said, were the constitutional issues regarding the setbacks, with which the board agreed.
“There wasn’t much of a question, it appears, in LUBA’s mind,” Sullivan said.
The board of appeals agreed the 2-mile setback violated both the Oregon constitution and the U.S. right to due process. The board found that municipalities and landowners could set their own terms by simply asking for a setback waiver. That removes the decision from the public process. Theoretically a city or landowner could reduce the setback all the way to zero, eliminating it altogether, according to the appeals board.
“The city or landowner in that circumstance is in the uniquely situated position to determine whether there shall be a county setback at all, and if there is, the extent of that setback,” the decision reads.
Olsen said the county commissioners can decide to leave the 2-mile setback and forbid waivers, or create another avenue for waiving the setback requirement.
“I don’t know which way the county will go,” Olsen said.
Secondly, Sullivan praised LUBA for agreeing with the need for more analysis in setting aside the Walla Walla River watershed, specifically when it came to Goal 5 resources.
The board of appeals instructed the county to sort out the conflict between two resources – wind energy and the watershed, which are both identified under Goal 5 of the Oregon Department of Land Conservation and Development planning goals— by completeing an economic, social, environmental and energy analysis. That analysis is required in decisions affecting Goal 5 resources.
The board of appeals agreed with the Sullivan and his clients, who contend the commissioners essentially adopted a Goal 5 resource in setting aside the watershed without doing the work to get there.
The decision said the county needs to prove why the watershed should be set aside rather than being used for wind energy.
The last provision the board of appeals sent back asks the county to compare the new laws to its comprehensive plan and make sure the two are in agreement.
“The challenged ordinances impose limitations on wind energy that will eliminate the possibility of constructing new wind facilities across much of the county,” the decision reads, “and for that reason are inconsistent with the cited plan policies.”
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