South Suburban Sanitary District v. Klamath County

Petitioner applied to develop a pipeline to transport reclaimed sanitary wastewater to a reservoir on property zoned exclusive farm use (EFU), where it would be used to irrigate crops. Under ORS 215.283(1)(v), “the land application of reclaimed water” is allowed in an EFU zone if it is used for, among other things, “irrigation in connection with a use allowed in an [EFU] zone.” Under ORS 215.246(3), applicants to apply reclaimed water must “explain in writing how alternatives identified in public comments * * * were considered and, if the alternatives are not used, explain in writing the reasons for not using the alternatives.” During the proceedings below, the director of the airport sent a letter to the county, explaining that a Federal Aviation Administration (FAA) Advisory Circular (AC) provided that development of open water facilities within 5 miles of certain airports should be avoided to prevent wildlife attractants. Petitioner used standards contained in the FAA AC to conclude that alternative sites were not feasible. However, because the subject property was within 5 miles of an airport, the county concluded that construction of the reservoir would violate the FAA AC, and it therefore denied the application. This appeal followed.

Petitioner argued that the reservoir would comply with the FAA AC. Because the FAA AC was by its own terms nonbinding, merely recommending standards for land use planners and developers, LUBA concluded that it did not constitute applicable approval criteria. In turn, because the county did not explain how those standards related to any approval criteria that did apply, and because petitioner’s reliance on those standards in evaluating alternative sites did not turn them into applicable approval criteria, LUBA sustained the assignment of error and the county’s decision was REVERSED.