Oregon Shores Conservation Coalition v. City of North Bend

(1) Where a comprehensive plan provision allows “minor navigational improvements” in a particular zone, which it defines as “alterations necessary to provide water access to existing or permitted uses in conservation management units,” an interpretation of that provision as not requiring that the use for which the alteration is needed and the alteration itself be located in the same zone is consistent with the provision’s express language; however, an interpretation of that provision as allowing alterations that are needed for a use that is not in a “conservation management unit” is inconsistent the provision’s express language. (2) Where a comprehensive plan management objective allows “a limited boat dock for transient recreation craft tie-up” in a particular zone, and the uses and activities matrix allows “docks” without limitation, but where a different comprehensive plan provision states that uses and activities matrixes are “subordinate” to management objectives, and that allowed uses and activities must be “consistent” with the management objectives, a local government errs by allowing non-limited boat docks in the zone. (3) Where a local code provision requires that a “declaration of anticipated noise levels” be attached to certain land use approvals and that applicants incorporate noise abatement strategies where noise levels are anticipated to exceed a certain threshold, the word “declaration” anticipates more than a statement from the applicant’s attorney, without supporting documents or studies, and a reasonable person would not rely on such statements alone to conclude that the noise threshold is not exceeded. (4) Where a local code provision prohibits development, including fill, in certain special flood hazard areas unless the cumulative effect of the development, when combined with all other existing and anticipated development, will not increase the base flood elevation (BFE) more than one foot, a reasonable person would not rely on a letter from a professional engineer, which provides that the “minimal amounts of fill placed below the BFE” would have no measurable effect on the BFE, to conclude that the provision is satisfied, where the letter does not quantify the amount of fill associated with the development, or address the cumulative effects of all other existing and anticipated development.

Intervenor-respondent Jordan Cove applied to develop an LNG terminal, dredge portions of the Coos Bay Deep Draft Navigation Channel (DDNC), construct a temporary pipeline and temporary offloading facility to dispose of dredged material, and construct a bridge crossing and bridge support structures. The city approved the application, and this appeal followed.

 

The application is subject to the Coos Bay Estuary Management Plan (CBEMP). A portion of the pipeline would cross one of the CBEMP’s Conservation aquatic zones, the 48-CA zone. Although “Dredged Material Disposal” is prohibited in the 48-CA zone, “minor navigational improvements” are allowed if consistent with the purposes of the zone. The city concluded the pipeline is a “minor navigational improvement” and is therefore allowed in the 48-CA zone. CBEMP Chapter 3.1 defines “minor navigational improvements” as “alterations necessary to provide water access to existing or permitted uses in conservation management units, including dredging for access channels.” In its first assignment of error, petitioner argues the city misconstrued the term “minor navigational improvements” and that, because the pipeline does not provide water access, because dredging will occur in the DDNC and not the 48-CA zone, and because the pipeline will not conserve aquatic resources and is therefore inconsistent with the purposes of the 48-CA zone, the pipeline is not allowed in the 48-CA zone. LUBA agrees with Jordan Cove that nothing requires that the dredging which serves as the basis for a “minor navigational improvement” be located in the 48-CA zone. However, the definition does require that the “existing or permitted use” for which the improvement is needed be located “in conservation management units.” Because neither Jordan Cove nor the city explain why the pipeline “provide[s] water access,” and because the dredging would be located in the DDNC, which is not a conservation management unit, LUBA agrees with petitioner that the city’s interpretation is inconsistent with the express language of the definition. Petitioner’s first assignment of error is therefore sustained.

 

The offloading facility would be located in the 51-CA zone. The management objective for the 51-CA zone allows “a limited boat dock for transient recreation craft tie-up.” The city concluded the offloading facility is a “dock” and is therefore allowed in the 51-CA zone. In its fifth assignment of error, petitioner argues that, because the plain language of the management objective allows only docks “for transient recreation craft tie up,” and because the offloading facility would not serve that purpose, the offloading facility is not allowed in the 51-CA zone. Jordan Cove responds that, although the management objective allows docks for a limited purpose, the uses and activities matrix for the 51-CA zone authorizes “docks” without that limitation. LUBA agrees with petitioner that the city’s interpretation is not consistent with the plain language of the management objective. In turn, because CBEMP Section 3.8 provides that uses and activities matrixes are “subordinate” to management objectives, and that allowed uses and activities must be “consistent” with the management objectives, petitioner’s fifth assignment of error is sustained, in part.

 

Several of the proposed structures would be located within the Airport Overlay Zone. That zone imposes limits on height, noise, lighting, emissions, and landfills. In their seventh and second assignments of error, respectively, petitioner and intervenor-petitioner Citizens for Renewables (Citizens) argue the city’s findings are either inadequate to explain why these criteria are met or not supported by substantial evidence. Because the city both expressly found that the proposed structures are subject to the height limits at North Bend City Code (NBCC) 18.56.060, and incorporated Jordan Cove’s statement that none of the structures are subject to those limits, LUBA agrees with petitioner and Citizens that the findings are inconsistent and therefore inadequate to explain why that criterion is met.

 

Under NBCC 185.56.080(1), a “declaration of anticipated noise levels” must be attached to land use approvals near airports and, where noise levels are anticipated to be above 55 Ldn, the applicant must incorporate a noise abatement strategy. Based on Jordan Cove’s application and a supplemental statement, the city concluded that the noise levels would be below 65 Ldn and that an abatement strategy was therefore not required. LUBA agrees with Citizens that a “declaration of anticipated noise levels” requires something more than statements from the applicant’s attorney without any supporting documents or studies. Additionally, LUBA agrees with Citizens that these statements, even if they did qualify as a “declaration,” do not constitute substantial evidence that the noise levels would be below 65 Ldn.

 

Under NBCC 18.56.080(5), expansion of existing landfill facilities near an airport runway require a demonstration that the landfill will not increase the likelihood of bird/aircraft collisions. The city concluded that, because the dredged material disposal site is not a “sanitary landfill,” NBCC 18.56.080(5) does not apply. Jordan Cove argues that the disposal site is not a landfill because the dredged material will facilitate future development for open space and recreation and is therefore useful. LUBA agrees with Citizens that NBCC 18.56.080(5) applies to all “landfills,” not just “sanitary landfills” as the city concluded, and that the city’s findings are inadequate to explain why the disposal site is not a landfill or why it will not increase the likelihood of bird/aircraft collisions. These assignments of error are therefore sustained, in part.

 

Several of the proposed structures would be located in areas of special flood hazard identified as Zone AE, but no regulatory floodway has been designated. Under NBCC 18.48.140, development, including fill, is prohibited in such circumstances unless the cumulative effect of the development, when combined with all other existing and anticipated development, will not increase the base flood elevation (BFE) more than one foot. Based on a letter from a professional engineer submitted by Jordan Cove, which provided that the “minimal amounts of fill placed below the BFE” would have no measurable effect on the BFE, the city concluded this criterion was met. In its first assignment of error, Citizens argues this conclusion is not supported by substantial evidence. LUBA agrees with Citizens that, because the letter does not quantify the amount of fill associated with the development or address the cumulative effects of all other existing and anticipated development, a reasonable person would not rely on it to conclude that the BFE will not increase. Citizens’ first assignment of error is therefore sustained. Because remedying petitioner’s first and fifth assignments of error would require significant changes to the application, or a new application, the city’s decision is REVERSED.