McLaughlin v. Douglas County

Under ORS 215.283(1)(c), a “utility facility necessary for public service” is not required to be one that serves local or county residents; ORS 215.275(6) includes interstate natural gas pipelines regulated by the Federal Energy Regulatory Commission in the definition of “utility facility necessary for public service.”

Pacific Gas Connector Pipeline sought approval to modify a 2009 conditional use permit to re-align the 8-mile stretch of their 232-mile pipeline which passes through Douglas County as well as to remove a condition limiting the purpose of the Coos Bay terminal to import only. After a deadlocked vote and a subsequent vote to reschedule the deliberations to allow for all planning commission members to vote, the planning commission approved the application and the county board of commissioners declined review. McLaughlin appealed to LUBA. McLaughlin first argued that extensions of the 2009 permit were wrongly given. The county concluded, and LUBA agreed, that the request for a major modification did not allow McLaughlin to challenge the original extensions. LUBA determined that these arguments would be an impermissible collateral attack on the previous decisions. McLaughlin next contended that under Douglas County Land Use and Development Ordinance (LUDO) 2.300.3.j, failure to include one member of the deadlocked vote in the vote to reschedule resulted in a “jurisdictional defect” invalidating the decision to reschedule and under that ordinance the result of the tie vote should have been denial. LUBA held that if this was a violation of LUDO 2.300.3.j, it would be procedural error only, and that McLaughlin’s “substantial rights” were not prejudiced because they do not have a right to a particular result. McLaughlin contended that the pipeline would not be a “utility facility” under ORS 215.283(1)(c) and LUDO 3.3.170. LUBA held that the statutes do not limit the definition of “utility” to be one that provides service to residents and further that ORS 215.275(6) includes this type of pipeline as a “utility facility.” AFFIRMED.