Silver Creek Solar, LLC v. Marion County

Under OAR 660-006-0050(2), where both farm and forest standards apply to an application, a local government must apply all applicable standards to the application.

Petitioner applied for a conditional use permit to develop a 10-acre photovoltaic solar power facility on high-value farmland zoned Farm/Timber (FT) pursuant to Marion County Code (MCC) 17.139.050(F)(3). The property is 30.31 acres that is planted with Christmas trees. The planning division recommended the hearings officer deny the application. After the hearing, the hearings officer did deny the application. Petitioner appealed to the board of commissioners and they also denied the application (the decision). Petitioner appealed the decision to LUBA.

Statewide Planning Goal 4 is implemented through OAR 60-006-0025(4)(j) and provides that local governments may allow commercial solar power generating facilities on forest-zoned lands when criteria in OAR 660-006-0025(5) are met. Marion County Code (MCC) 17.139.050(F)(3), provides that power generating utility facilities are allowed as a conditional use within the FT zone and effectively implemented OAR 660-006-0025(4)(j).

ORS 197.646(3) provides that an administrative rule applies directly to an application where a county fails to implement that rule and until that county amends its code to implement that rule. ORS 215.416(8)(a) provides that approval or denial of an application must be based on standards and criteria set forth in a zoning ordinance, or county regulation which relates approval or denial to the zoning ordinance and comprehensive plan for both the area relevant to the application and the county as a whole.

In their first assignment of error, Petitioner argued that the County erred when it misconstrued the law by determining that OAR 660-033-0130(38)(h) (criteria for a photovoltaic solar power generation facility on high-value farmland in either exclusive farm use (EFU) or FT zones) was applicable criteria to the application. OAR 660-033-0130(38)(h) was applied directly to solar facilities in the FT zone because it was consistent with former MCC 17.120.110. LUBA determined that under ORS 197.646(3), OAR 660-033-0130(38) should apply to the application notwithstanding ORS 215.416(8). Petitioner further argued that under OAR 660-006-0050(2), the County was only allowed to apply forest standards to the application. The County argued that, under OAR 660-006-0050, it can apply farmland or forest land standards to the application, but that because the predominate use of the subject property was a Christmas tree farm the county must apply farm standards. LUBA determined that the text of OAR 660-006-0050(2) is ambiguous, but that both ORS 215 and OAR 660-006-0050(2), are "applicable" to the use. Additionally the context does not support petitioner's interpretation because the MCC applied the standards from the OAR. Finally, the legislative history petitioner offered did not support petitioner's interpretation of OAR 660-006-0050. Accordingly, LUBA held that Petitioner’s first assignment of error was denied.

In their second assignment of error, Petitioner argued that the County erred when it violated ORS 215.416(8)(a) by applying OAR 660-033-0130(38)(h) to the application. LUBA determined that the County did not err in applying OAR 660-033-0130(38)(h) to the application. Accordingly, LUBA held that Petitioner’s second assignment of error was denied.