1000 Friends of Oregon v. Morrow County

(1) LUBA will remand a county’s conclusion that an exception site provides a locational advantage under OAR 660-004-0022(3)(c) where that conclusion is based on an alternatives analysis which is inadequate to comply with OAR 660-004-0020(2)(b). (2) In the context of a reasons exception to redesignate property from Agricultural to Industrial, while speculation that the exception will hasten future rezonings in the area does not establish that the exception will not “cause only minimal loss of reproductive resource lands” under OAR 660-004-0022(3)(c), the fact that that an equal amount of land elsewhere in the county will be redesignated from Industrial to Agricultural also has no bearing on compliance with that criterion. (3) A county’s alternatives analysis is inadequate to comply with OAR 660-004-0020(2)(b) where the analysis rejects some alternatives based on existing use, contractual obligation, an unknown ownership transfer timeline, the mere presence of wetlands, undefined issues of facility proximity and interdependence, and the applicant’s objective of extending services in a particular direction.

Intervenor owns the subject property and an industrial park 1.5 miles west. Intervenor applied for a reasons exception to Statewide Planning Goals 3 (Agricultural Lands), 11 (Public Facilities and Services), and 14 (Urbanization) to redesignate the subject property from Agricultural to Industrial. Under OAR 660-004-0020(2)(a), local governments may approve reasons exceptions if sufficient reasons “justify why the state policy embodied in the applicable goals should not apply.” The county concluded that the exception was justified in order to locate a data center on the subject property. The county approved the application and this appeal followed.

Under OAR 660-004-0022(3)(c), exceptions for industrial development on resource land may be approved if “[t]he use would have a significant comparative advantage due to its location.” Under OAR 660-004-0020(2)(b), in approving reasons exceptions, local governments must explain why alternative “[a]reas that do not require a new exception cannot reasonably accommodate the use.” Based on the data center’s site needs, including the size and shape of the property, access to certain transmission lines, and proximity to agricultural use for discharge water, the county concluded both that alternative areas could not reasonably accommodate the data center under OAR 660-004-0020(2)(b) and that the subject property therefore provided a locational advantage under OAR 660-004-0022(3)(c).

In the first assignment of error, petitioner argues that, because there is no evidence of whether public facilities exist near the subject property, whether facilities are close to the subject property relative to other areas, or which facilities will need to be extended, the county’s conclusion that the subject property provides a locational advantage is not supported by substantial evidence. Because public facilities will be extended from the industrial park 1.5 miles away, because the Court of Appeals has held that that is a permissible locational advantage, because specific service providers said they could serve the subject property, and because alternative areas were rejected for reasons other than service unavailability, LUBA concludes these arguments do not undermine the county’s conclusion. However, petitioner also argues that the findings fail to establish that the subject property does provide a locational advantage. Because the county reached that conclusion based on its alternatives analysis, and because LUBA concludes below that that analysis is inadequate, this subassignment of error is sustained.

Under OAR 660-004-0022(3)(c), exceptions for industrial development may “cause only minimal loss of productive resource lands.” Intervenor argued below that, because an equal amount of land elsewhere would be redesignated from Industrial to Agricultural, the exception would result in no net loss of resource productivity. Petitioner argues that, because the exception will hasten the further reduction of resource land in the area, the county’s conclusion that the loss of resource land will be minimal is not supported by substantial evidence. LUBA disagrees with petitioner that speculation concerning future rezonings establishes error. However, because “loss of productive resource lands” in the rule refers to resources within the exception area, rather than the county as a whole, and because the findings do not address the productivity of resource lands on the subject property, this subassignment of error is sustained and the first assignment of error is sustained, in part.

In the second assignment of error, petitioner argues the county’s alternatives analysis is inadequate to comply with OAR 660-004-0020(2)(b). The county considered the data center’s site needs based on information provided by the landowner. LUBA rejects petitioner’s argument that the county was not entitled to rely on that information absent confirmation from the developer. However, LUBA agrees with petitioner that, because the county rejected some alternatives based on existing use, contractual obligation, an unknown ownership transfer timeline, the mere presence of wetlands, undefined issues of facility proximity and interdependence, and intervenor’s objective of extending services in a particular direction, the findings are inadequate to explain why there are no reasonable alternatives. The second assignment of error is sustained, in part, and the county’s decision is REMANDED.