McLaughlin v. Douglas County

Intervenor applied for a conditional use permit to construct a subsurface pipeline to convey natural gas to a liquefied natural gas (LNG) export terminal in a different county. The pipeline would have crossed farmland and forest land. The board of commissioners approved the application. This appeal followed.

Under Douglas County Land Use and Development Ordinance (LUDO) 2.040(1)(f), applications may be submitted by “[a] public utility * * * when dealing with land involving the location of facilities necessary for public service.” Under LUDO 1.090(2), a “public utility” is a “company * * * that owns, operates, manages or controls all or any part of any plant or equipment * * * for the production, transmission, delivery or furnishing of heat, light, water or power, directly or indirectly to the public.” The county concluded that intervenor was a public utility because a portion of the natural gas would power the LNG terminal itself, a portion would be available for local residents and workers, and the remainder would be exported and used by the public in Asia. Petitioners argued that the board of commissioners misconstrued LUDO 2.040(1)(f) and that intervenor was not a public utility because the LNG terminal itself and foreign consumers did not qualify as “the public” and because there was no guarantee that any natural gas reserved for local use would not also be exported. In a prior appeal involving the same portion of the pipeline, LUBA held that a utility does not have to serve local entities in order for it to serve “the public.” LUBA therefore deferred to the board of commissioners’ interpretation under ORS 197.829(1) and Siporen v. City of Medford.

Under LUDO 3.2.100(18) and 3.5.100(2), which implement Statewide Planning Goal 4 (Forest Lands) and OAR 660-006-0025(4)(q), “[n]ew distribution lines (e.g., electrical, gas, oil, geothermal)” are conditionally allowed in the forest zones that the pipeline would have crossed. Because 49 CFR section 192.3, promulgated by the United States Department of Transportation (USDOT), and ORS 215.276 distinguish between “distribution lines” and “transmission lines,” and because intervenor’s proposed pipeline is a transmission line, petitioners argued that intervenor’s proposed pipeline was not allowed in the relevant forest zones. Although ORS 757.039(3) authorizes Oregon to rely on USDOT regulations to ensure the safe construction and operation of certain pipelines, LUBA agreed with intervenor that the federal classification of gas lines did not provide relevant context for interpreting LUDO 3.2.100(18) and 3.5.100(2). In addition, LUBA held in a prior appeal involving a different portion of the same pipeline that ORS 215.276, which concerns farmland, does not provide relevant context for interpreting OAR 660-006-0025(4)(q), which concerns forest land, and that all non-electrical lines qualify as “distribution lines” for purposes of that rule. LUBA therefore concluded that the pipeline was conditionally allowed in the relevant forest zones.

The rights-of-way for “distribution lines” that are conditionally allowed in forest zones under OAR 660-006-0025(4)(q) and LUDO 3.2.100(18) and 3.5.100(2) may not exceed 50 feet in width. The county approved a 50-foot right-of-way for intervenor’s proposed pipeline, as well as an additional 45 feet of right-of-way as a temporary construction area. Because intervenor would have cleared timber within the temporary construction right-of-way, which would have created a 20-year-or-longer break in the canopy, intervenor argued that the temporary construction right-of-way was actually a permanent right-of-way and that the county therefore violated OAR 660-006-0025(4)(q) by approving a 95-foot right-of-way. In a prior appeal involving a different portion of the same pipeline, LUBA concluded that temporary construction rights-of-way are allowed in forest zones and that they do not qualify as “rights-of-way” for purposes of the 50-foot limit at OAR 660-006-0025(4)(q). LUBA noted that the county imposed a condition of approval requiring intervenor to replant the temporary construction right-of-way and agreed with intervenor that a period of regrowth is not inconsistent with Goal 4. Accordingly, the county did not violate OAR 660-006-0025(4)(q).

Under LUDO 3.2.150(1) and 3.5.125(3)(a), conditional uses in the relevant forest zones may not “force a significant change in, or significantly increase the cost of, accepted farming or forest practices on adjacent agriculture or forest lands.” The county concluded that those provisions were satisfied because intervenor would have paid adjacent landowners for the long-term lost timber production within the pipeline right-of-way. Because those provisions refer to forest practices on adjacent lands, LUBA first rejected petitioners’ argument that the findings were inadequate because they did not address forest practices within the pipeline right-of-way itself. However, because the findings did not indicate how the location of right-of-way crossings would be determined or explain why the location or operation of those crossings would not significantly increase the cost of or significantly impact adjacent forest practices; because the findings did not address testimony from a timber company that the pipeline would have required the company to find alternative sites for its equipment, that payment for lost trees would not have adequately compensated the company since the company needed trees to maintain mill operations, and that the company would have had to compete with intervenor to purchase aggregate; and because the county did not actually impose a condition of approval requiring intervenor to compensate adjacent landowners, LUBA agreed with petitioners that the county’s findings were inadequate to demonstrate compliance with LUDO 3.2.150(1) and 3.5.125(3)(a).

Under LUDO 3.2.150(2) and 3.5.125(3)(b), conditional uses in the relevant forest zones may not “significantly increase fire hazard or significantly increase fire suppression costs or significantly increase risks to fire suppression personnel.” The county concluded that those provisions were satisfied because the pipeline would have been designed, constructed, operated, and maintained consistent with federal safety requirements, including the development of an Emergency Response Plan. Although intervenor’s application materials indicated that intervenor would have coordinated with emergency responders regarding right-of-way crossings, because the findings did not explain why the location or operation of those crossings would not significantly increase fire hazard, fire suppression costs, or risks to fire suppression personnel; because the findings did not address testimony from firefighters and timber owners that the break in the canopy created by the right-of-way would increase fire hazard, other than to state that the county was “unaware of pipeline corridors creating fire hazards;” and because the fact that intervenor would have paid for the majority of additional training costs did not address whether the pipeline would have significantly increased fire suppression costs, LUBA agreed with petitioners that the county’s findings were inadequate to demonstrate compliance with LUDO 3.2.150(2) and 3.5.125(3)(b).

Under LUDO 3.39.050(1), conditional uses must be or be made “compatible” with adjacent uses that are existing or permitted in the underlying zone. Petitioners argued that, because the findings were inadequate to demonstrate compliance with LUDO 3.2.150(1) and (2) and 3.5.125(3)(a) and (b), the findings were also inadequate to demonstrate compliance with LUDO 3.39.050(1). The board of commissioners interpreted LUDO 3.39.050(1) as not requiring elimination of all negative impacts from the proposed use but, rather, as precluding “such negative impacts that prevent the proposed and existing uses from existing in harmony or agreement with each other.” Because LUDO 3.39.050(1) is a local provision that does not implement state law, LUBA deferred to the board of commissioners’ interpretation of that provision under ORS 197.829(1) and Siporen. In addition, because the county identified the uses allowed in the relevant forest zones and concluded that the pipeline would not have prevented or impeded those uses on adjacent property, LUBA concluded that most of the county’s findings were adequate. However, because the findings did not address testimony that the construction method used to allow the pipeline to cross a river might alter that river’s course and flow, thereby impacting irrigation water for farming, LUBA concluded that remand was necessary for the county to adopt more adequate findings. The county’s decision was therefore REMANDED.