January 22, 2012
Oregon

Umatilla County further clarifies LUBA decision

By SAMANTHA TIPLER, East Oregonian, www.eastoregonian.com 21 January 2012

Umatilla County further clarified the work it needs to do in response to an Oregon Land Use Board of Appeals ruling on a challenge to the county laws for siting wind turbines.

During discussions at the commissioners‟ meeting Wednesday, officials downplayed what the appeals board required of the county in the Jan. 12 ruling.

“Essentially LUBA supported what we did other than saying „You just need to tweak a couple things,‟” said Commissioner Dennis Doherty.

The appeals board returned to Umatilla County portions of its regulations on siting power-generating wind turbines. A group of 14 property owners had challenged the county laws enacted in June 2011 as too prohibitive. The appeals board instructed the county to rework four of the 11 challenged portions of the law, two of which address a 2-mile setback between turbine sites, homes and municipalities.

Umatilla County Planning Director Tamra Mabbott said the appeals board upheld the 2-mile setback. But it rejected the county process for waiving that setback.

The appeals board said that process violated the constitutional right to due process because it put the decision in the hands of homeowners and cities.

The county does have a variance process that allows for exceptions for hardship, unusual circumstances or if there are no other options, Mabbott said.

The county can impose a 2-mile setback, allow no waiver but grant a variance by request, or the commissioners can establish standards for granting setback waivers.

“You would have to retain that ability and grant it yourself rather than delegate it,” Mabbott told the commissioners. “That‟s not to say property owners and cities wouldn‟t factor into the decision, it‟s just that your ordinance would have to be clear.”

Commissioners asked to look at the current variance language and what it would take to come up with a waiver process.

County Counsel Doug Olsen also told commissioners the county did the analysis the appeals board required to justify setting aside the Walla Walla River watershed. “We did one but it‟s not documented enough or thorough enough to meet LUBA‟s requirements,” he said.

The appeals board asked the county to complete an economic, environmental, social and energy study, which would allow compliance with the Goal 5 of the Oregon Department of Land Conservation and Development planning goals. The county inventoried wildlife and cultural resources, the two Goal 5 resources within the watershed overlay, and analyzed the impact of wind turbines on those resources. Once documented, that will satisfy requirements in the ruling, Olsen told commissioners.

Lastly, Olsen said the county must address how its wind-turbine siting laws match up with the county comprehensive plan.

Until the county addresses the issues in the comprehensive plan, documents its studies and decides what to do about waivers, it cannot enforce the laws it approved June 2011, Olsen said.