Bend Research v. Deschutes County

When a private utility company applies for a LUCS merely to extend its connections to other customers without altering its treatment facility, and such extensions are allowed under the local code without restriction, LUBA will conclude it lacks jurisdiction under ORS 197.015(10)(b)(H).

Petitioner appealed the County’s approval of a land use compatibility statement (LUCS) for a private sewer company in an unincorporated rural community to lay pipes to extend its service to the rest of the community. On appeal to LUBA, Petitioner challenged the hearing officer’s characterization of the facility as a “minor utility facility” that was allowed in any zone in the community, among other things. LUBA, however, questioned whether the decision fell within the exception to its jurisdiction under ORS 197.015(10)(b)(H) and considered only the challenges that pertained to the correctness of the hearing officer’s classification of the facility which could bring the decision out of the exceptions.

Under ORS 197.015(10)(b)(H), a land use decision subject to LUBA’s jurisdiction does not include decisions made by a local government “[t]hat a proposed state agency action subject to ORS 197.180(1) is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan, if: (i) The local government has already made a land use decision authorizing a use or activity that encompasses the proposed state agency action; (ii) The use or activity that would be authorized, funded or undertaken by the proposed state agency action is allowed without review under the acknowledged comprehensive plan and land use regulations implementing the plan; or (iii) The use or activity that would be authorized, funded or undertaken by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan[.]"

First, LUBA noted that while the local government was not required to accept the applicant’s characterization of the project, the local government was also not required to question the characterization if it was supported by substantial evidence. As the application concerned only the extension of the pipes, there was no evidence in the record that the existing treatment facility would require expansion or alteration to serve the additional households, and Petitioner did not cite any authority to show the existing treatment facility must also be included when considering the LUCS. LUBA concluded the hearings officer did not err in limiting the LUCS decision to the pipe extensions.

LUBA then turned to the question of whether the hearings officer erred in characterizing the pipe extensions as a “minor” utility facility that was allowed in any zone under the local code. The hearings officer had found the interpretation had textual support in the local code, which distinguished major and minor facilities and stated “minor” facilities were “local distribution lines,” and that “local” was consistently distinguished from “regional” in the code. LUBA agreed that extending sewer lines “to serve a few hundred lots within a small rural unincorporated community cannot possibly be said to serve a "regional" or larger area. LUBA also approved of the hearing officer’s analogy to power lines, which compared the major facilities of transmission lines and substations to the sewer treatment facility and the local distribution lines that customers connected to with the sewer pipes in the application. Because local distribution lines were expressly considered “minor utility facilities” in the code, the hearings officer had concluded the pipe extensions were similarly a minor utility facility. LUBA agreed, stating “the extended pipelines would provide direct service to a relatively small number of individual properties in a localized area” and, as this was a logical interpretation with textual support, LUBA concluded the hearings officer did not err in characterizing the pipes as a minor utility facility that was allowed in any zone.

LUBA rejected Petitioner’s claim that the facility was prohibited under the comprehensive plan because it was a private company rather than a public one as mentioned in the code. LUBA pointed out that, while the code provisions seemed to assume that community-wide public sewer systems would be used in the future, there was nothing in the plan that indicated an intent to prohibit a private company from providing that service.

LUBA similarly rejected Petitioner’s claim that the noted difficulty of the septic systems in the community triggered the County’s obligation to create a public water and sewer facility plan under OAR 660-022-0050(1)(d). LUBA reasoned that, even if Petitioner were correct, this did not explain why the County could not approve the LUCS in the meantime.

LUBA concluded it lacked jurisdiction to hear Petitioner’s appeal under ORS 197.015(10)(b)(H).

Transferred.