1000 Friends of Oregon v. Jackson County

(1) A use need not be located on rural land outside a UGB in order to support an exception under OAR 660-004-0022(3)(c). (2) An exception may not be taken under OAR 660-004-0022(3)(c) to authorize an 80-acre photovoltaic solar power generation facility on high-value farmland because such a facility is not “industrial development” and because such an exception does not relate to “siting.”

Under Statewide Planning Goal 3 (Agricultural Lands), counties must preserve agricultural lands for farm use. However, under ORS 215.283(2)(g) and 215.296(1), counties must conditionally allow commercial utility facilities on farmland subject to rules adopted by the Land Conservation and Development Commission (LCDC). One of those rules, OAR 660-033-0130(38), allows up to 12 acres of photovoltaic solar power generation facility on high-value farmland, unless an exception is taken to the 12-acre limitation. Under ORS 197.732 and OAR 660-004-0022(3)(c), an exception may be taken “[f]or the siting of industrial development on resource land outside an urban growth boundary” if “[t]he use would have a significant comparative advantage due to its location (e.g., near existing industrial activity, an energy facility, or products available from other rural activities)[.]”

In 2017, the county approved an exception under OAR 660-004-0022(3)(c), authorizing intervenor to develop an 80-acre photovoltaic solar power generation facility on high-value farmland outside of an urban growth boundary (UGB). One basis for the county’s approval was that the exception site was near an existing substation. While concluding that the solar facility qualified as “industrial development” for purposes of OAR 660-004-0022(3)(c), LUBA held that it was not properly allowed because the substation was located on urban land within the UGB and was therefore not a sufficient locational attractor under that rule. LUBA therefore reversed the county’s decision.

On appeal, the Court of Appeals held that a use need not be located on rural land outside a UGB in order to support an exception under OAR 660-004-0022(3)(c), but concluded that the solar facility was not “industrial development” due to the distinction between energy facilities and industrial land in LCDC rules and related statutes, as well as the fact that commercial utility facilities are already conditionally allowed on farmland and therefore need no exception. In addition, the Court of Appeals concluded that the county erred in applying OAR 660-004-0022(3)(c) because the decision did not relate to “siting,” but rather authorized an 80-acre facility in an area that would otherwise allow only a 12-acre facility. The county’s decision is therefore REVERSED.