Oregon Coast Alliance v. Tillamook County

(1) Where a local code provision allows “public utility facilities, including substations and transmission lines,” in a particular zone, the local government does not err by concluding that a utility facility is “public” so long as it is necessary for the public health, safety, and welfare, even if it is not publicly owned; that a utility facility benefits the public health, safety, and welfare by increasing the overall capacity and redundancy within the larger utility system; and that a utility facility is “public” even if it benefits the public generally and not just residents of the local community. (2) Goal 11 neither prevents the interconnection of communication facilities and services that serve both urban and rural areas nor limits the use of communication facilities and services to the needs of the rural area in which they are located. (3) Where a local code provision provides that a use not listed in a particular zone may be permitted in that zone if it is “of the same general character, or has similar impacts on nearby properties, as do other uses permitted in the zone,” the local government does not err by concluding that a particular use satisfies that criterion even if it has lesser negative impacts than permitted uses. (4) Where a local code provision provides that conditional uses may “not alter the character of the surrounding area in a manner which substantially limits, impairs or prevents the use of surrounding properties for the permitted uses listed in the underlying zone,” the local government does not err by failing to separately determine whether a use would “limit,” “impair,” or “prevent” surrounding uses if it concludes that the use will not “alter” the character of the surrounding area at all.

Intervenor applied for a conditional use permit and similar use determination to install an underground fiber-optic cable on land zoned Rural-Residential 2-Acre (RR-2). Under Tillamook County Land Use Ordinance (TCLUO) 3.010(3)(n), “public utility facilities, including substations and transmission lines,” are conditional uses in the RR-2 zone. Under TCLUO 11.030, “utility facilities” are “[s]tructures, pipes, or transmission lines which provide the public with electricity, gas, heat, steam, communication, water, sewage collection, or other similar service.” Concluding that the term “utility facilities” is “substantially similar” to “public utility facilities,” and that the cable is “comprised of structures, pipes and transmission lines which provide the public with communication or similar service,” the county concluded that the cable is a “utility facilit[y],” and therefore a “public utility facilit[y].” The county approved the application and this appeal followed.

In the first assignment of error, petitioners argue that, because the cable will be owned by a private company, the county’s interpretation of TCLUO 3.010(3)(n) does not give effect to the term “public” in “public utility facilities.” In approving the application, the county concluded the term “public” does not require that the facility be publicly owned, and that utility facilities are “public” so long as they are necessary for the public health, safety, and welfare. In turn, the county concluded the cable would benefit the public health, safety, and welfare by increasing the overall capacity and redundancy within the larger broadband system. Because these interpretations are not inconsistent with the term “public,” LUBA affirms them.

Petitioners also argue that, in order to qualify as “public,” utility facilities must benefit residents of the local community, and not the public generally. In approving the application, the county concluded that, because “public utility facilities” expressly includes “transmission lines” and “substations,” and because those uses are not primarily designed or intended to serve the public in the immediate area in which they are located, but rather to carry signals or energy over longer distances for delivery elsewhere, the term “public” is not limited to the residents of the local community. Because this interpretation is not inconsistent with the term “public,” LUBA affirms it.

Under Statewide Planning Goal 11 (Public Facilities and Services), “[u]rban and rural development shall be guided and supported by types and levels of urban and rural public facilities and services appropriate for, but limited to, the needs and requirements of the . . . areas to be served.” Also under Goal 11, “Rural Facilities and Services – refers to facilities and services suitable and appropriate solely for the needs of rural lands.” Because the cable will create redundancy, petitioners argue it is not limited to the needs of the local community and therefore violates Goal 11. LUBA agrees with the county that the cable will be part of a larger communication system that does not qualify as a “Rural Facility and Service,” and that Goal 11 neither prevents the interconnection of communication facilities and services that serve both urban and rural areas nor limits the use of communication facilities and services to the needs of the rural area in which they are located. The first assignment of error is therefore denied.

Under TCLUO 2.040, a use not listed in a particular zone may be permitted in that zone if it is “of the same general character, or has similar impacts on nearby properties, as do other uses permitted in the zone.” In the second assignment of error, petitioners argue that, because the cable’s physical impacts, construction time, and construction noise levels will be less than a transmission line’s or a substation’s, it is not “of the same general character” and it does not have “similar impacts on nearby properties.” LUBA agrees with the county that a facility with lesser negative impacts to the surrounding community is “of the same general character or has similar impacts on nearby properties” as permitted facilities. The second assignment of error is therefore denied.

The character of the area surrounding the property is a high-density rural residential ocean-front community. Under TCLUO 6.040(4), conditional uses may “not alter the character of the surrounding area in a manner which substantially limits, impairs or prevents the use of surrounding properties for the permitted uses listed in the underlying zone.” Because virtually all of the cable’s impacts would be construction-related, because the construction would last 35 days, which is shorter than the construction of other permitted uses (i.e., 6-9 months for a single family home), and because everything associated with the cable would be underground, making the property essentially a vacant, vegetated lot, the county concluded the cable would not alter the residential character of the surrounding area. In the fourth assignment of error, petitioners argue the county misconstrued TCLUO 6.040(4) by failing to separately address whether the cable would “limit,” “impair,” or “prevent” surrounding residential uses. Because the county concluded that the cable would not “alter” the residential character of the surrounding area at all, LUBA concludes the county was not required to separately determine whether it would do so in such a manner as to limit, impair, or prevent residential uses. The fourth assignment of error is denied, and the county’s decision is AFFIRMED.