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.” This appeal followed.

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.” The county denied the application for “lack of thorough analysis and dismissing out of hand [three] alternative site location[s].” In the first through third assignments of error, petitioner argued, and LUBA agreed, that, because petitioner explained that the identified alternative sites would be either more costly or not currently feasible due to existing regulatory requirements, the county’s conclusion that it dismissed those alternative sites “out of hand” was not supported by substantial evidence. LUBA also concluded that the county misconstrued ORS 215.246(3) because that statute does not allow counties to deny applications on the basis that alternative sites might be more efficient or become feasible at some point in the future. These assignments of error were therefore sustained.

In the fourth and fifth assignments of error, petitioner argued that the county improperly denied the application because the subject property was next to a river containing endangered species and because the project was not a long-term solution. In the alternative, petitioner argued, and LUBA agreed, that although the county reached those conclusions, because it did not reiterate them in the conclusion of its decision, they did not constitute actual bases for the county’s decision. These assignments of error were therefore denied.

Under ORS 215.283(1)(c), “[u]tility facilities necessary for public service, including wetland waste treatment systems,” are allowed in EFU zones. The reclaimed wastewater would be chlorinated at petitioner’s existing treatment facility. Because the chlorine would continue to disinfect the water in the pipeline and would potentially require additional treatment in the reservoir, the county concluded that petitioner’s project was a utility facility and denied the application because it did not include the application materials required for utility facilities. In the sixth assignment of error, petitioner argued that the county erred in concluding that its project was a utility facility. In Cox v. Polk County, the Court of Appeals concluded that (1) a facility is only a utility facility if it “include[s] some equipment or apparatus that itself performs the relevant production, transmission or similar function or service” and (2) equipment used to apply effluent to trees did not constitute a “utility facility” because the trees performed the treatment service rather than the application equipment. Similarly, LUBA concluded that, while the application of chlorine might make petitioner’s treatment facility a utility facility, the pipeline and reservoir did not become utility facilities simply because the disinfection process would continue during transport and storage. LUBA also concluded that there was no evidence in the record that additional treatment would be required at the reservoir and noted that such treatment might violate state law. Intervenor argued that the reservoir was a utility facility because it would continue to treat the wastewater through circulation. In Farrell v. Jackson County, LUBA concluded that, while the aeration of effluent would have some treatment effects, it did not convert a facility into a utility facility because it was employed to control odors, not for treatment purposes. Similarly, LUBA concluded that circulation of petitioner’s reservoir would not make the reservoir a utility facility. The sixth assignment of error was therefore sustained and the county’s decision was REVERSED.