Columbia River Keeper v. Columbia County

“[Respondents] respond, and we agree, that nothing in the term "branchline" requires that the county consider the proposed facility in the RIPD zone as part of the proposed facility in the PA-80 zone. Any branchline will ultimately connect with another type of rail facility and thus be ‘functionally interdependent.’”

Background:

In 2022, the county approved site design review for an intervenor’s renewable diesel production facility at Port Westward Industrial Park on land zoned Rural Industrial Planned Development (RIPD). The county also approved a conditional use permit (CUP) for a rail facility to connect the diesel facility to the Portland & Western Railroad (P&W). The proposed rail facility included one section in the RIPD zone and another in the Primary Agriculture (PA-80) zone.

Petitioners appealed the 2022 CUP in 1000 Friends of Oregon v. Columbia County, LUBA No. 2022-039 (Oct. 27, 2022) (Next I). The dispute centered on whether the rail facility qualified as a “branchline” transportation facility permitted on agricultural land under Statewide Planning Goal 3 (Agricultural Lands), ORS 215.283(3), and OAR 660-012-0065(3)(j). Goal 3 limits nonfarm uses on agricultural land unless a statutory exception or the farm impacts test (ORS 215.296) applies.

In Next I, LUBA concluded that the county misconstrued the term “branchline.” Applying its plain meaning, LUBA defined a branchline as a distinct, elongated, narrow railway track used for trains traveling a particular route. Because the proposed facility included multiple parallel tracks and sidings for storage and maintenance, it did not qualify as a “branchline.” LUBA reversed the 2022 CUP, noting that approval might be possible if the design were significantly altered or if the applicant sought a Goal 3 exception.

Following the reversal, the intervenor submitted a new CUP application for the PA-80 portion of the rail facility and a modified site plan application for the RIPD portion. The reconfigured design limited the PA-80 segment to a single track approximately 1,250 feet long. At the boundary with the RIPD zone, the track split into six parallel tracks, with much of the storage and side-stacked track infrastructure relocated into the RIPD zone. Additional infrastructure, including stormwater detention ponds and a vegetated buffer, was also shifted into the RIPD zone.

After a public hearing, the board of commissioners approved the revised applications. The approval authorizes up to 318 rail cars per week, in trains up to 100 cars long, and allows rail cars to be stored in the RIPD zone for up to 14 days. Petitioners appealed the county’s 2024 approvals for the rail facility in both the PA-80 and RIPD zones.

First Assignment of Error

Petitioners argue that the county again misconstrued “branchline” by improperly evaluating only the 1,250-foot rail segment in the PA-80 (agricultural) zone in isolation, rather than considering the entire rail facility across both the PA-80 and RIPD zones. They contend that, as in Next I, the project functionally includes multiple parallel tracks and storage activities, and merely relocating those features into the RIPD zone does not transform the agricultural segment into a permissible “branchline.”

The county found that the revised PA-80 segment is a single, narrow, elongated, and uniform track with no switching, storage, loading, or assembly functions. All such activities would occur in the RIPD zone, where rail uses are allowed and not subject to Goal 3 restrictions. The county concluded that the PA-80 segment satisfies LUBA’s prior plain-meaning definition of “branchline” as a distinct section of track connecting a mainline to another destination.

LUBA agreed with the county. It held that nothing in the term “branchline” requires consideration of rail facilities located in a different zone. So long as the rail segment within the agricultural zone independently qualifies as a branchline under OAR 660-012-0065(3)(j), it may be permitted. Petitioners’ argument that train length would necessitate storage in the PA-80 zone was rejected because the record showed that storage, switching, and disassembly would occur entirely within the RIPD zone.

The first subassignment of error was denied.

Petitioners argue that, even if the PA-80 rail segment is considered independently, its design and function disqualify it as a “branchline.” They contend the 1,250-foot track is not sufficiently elongated or narrow, cannot accommodate 7,000-foot trains, is surrounded by a wide gravel laydown area, and does not stem directly from a railroad mainline.

Respondents argue that many of these arguments were not preserved below. Under ORS 197.835(3) and the “raise it or waive it” rule, LUBA may review only issues adequately raised before the local government. LUBA agreed that petitioners preserved only the argument regarding the short length of the track relative to train length. Arguments about the gravel width and lack of direct connection to a mainline were not raised below and were therefore waived.

On the preserved issue, LUBA held that nothing in its prior definition of “branchline” in Next I requires a track to match or exceed train length. The county reasonably found that the 1,250-foot track is distinct, elongated, narrow (24 feet wide), uniform, and designed to convey trains between the Portland & Western mainline and the diesel facility. The need to disassemble longer trains within the RIPD zone does not alter the branchline character of the PA-80 segment.

LUBA concluded the county did not err, and the second subassignment of error was denied.

Petitioners argue that the rail segment cannot qualify as a “branchline” under OAR 660-012-0065(3)(j) because it will not be owned or operated by a railroad company.

LUBA agreed with respondents that this argument was not preserved below and is therefore waived under ORS 197.797(1). Although petitioners generally challenged whether the project qualified as a “branchline,” they did not specifically argue during the local proceedings that ownership or operation by a railroad company is required. Raising a broad issue does not preserve a distinct, more specific argument unless it was presented with sufficient clarity to give the local government and parties a fair opportunity to respond.

Because the railroad-ownership theory was raised for the first time on appeal, LUBA concluded it was waived.

The third subassignment of error was denied.

Second Assignment of Error

Petitioners argue that the county’s findings are inadequate and unsupported by substantial evidence to show compliance with the farm impacts test under ORS 215.296. That statute allows approval of a nonfarm use on agricultural land only if it will not (1) force a significant change in accepted farm practices or (2) significantly increase the cost of those practices on surrounding lands devoted to farm use. The applicant bears the burden of proof.

Farm Impacts on “Surrounding Lands”

Petitioners argue the county defined the “impact area” too narrowly (approximately 14 acres). LUBA rejected this argument because petitioners did not identify any additional surrounding farm lands the county failed to consider. Although the applicant bears the burden below, petitioners bear the burden of demonstrating error on appeal. A generalized assertion that the impact area was too small was insufficient.

Impacts to Seely Farm Practices

Petitioners argue the county failed to adequately address potential delays at the Kallunki Road rail crossing that could interfere with Seely’s mint harvest and processing operations.

The county found that:

• Field access would not be cut off.
• Hermo Road would be reconstructed and paved, potentially improving access.
• Train crossing delays would generally be under 10 minutes, based on the Crosstown Memo.
• Nine mitigation measures would minimize crossing delays, including coordination protocols, operational procedures, and special protections during mint harvest
• A management plan would be required to ensure unobstructed crossing times consistent with farm needs.

The county concluded that while significant delays could impact farm operations, the anticipated limited delays would not force a significant change in, or significantly increase the cost of, Seely’s farm practices.

LUBA held that a reasonable person could rely on the Crosstown Memo and the county’s enforceable conditions. The findings were adequate and supported by substantial evidence.

De La Cruz Parcels

Petitioners argue the county failed to analyze impacts to the De La Cruz parcels, which the branchline crosses. LUBA rejected respondents’ waiver argument and addressed the merits.

LUBA agreed that owner consent does not eliminate the need for a farm impacts analysis. However, the county did identify the relevant farm practices and found that construction of a new crossing would preserve access and not force significant changes or increase costs. The county did not rely solely on the owners’ lack of objection.

LUBA concluded that the county adopted adequate findings and that its farm impacts determination was supported by substantial evidence.

The second assignment of error was denied.

Third Assignment of Error

Petitioners argue that when the rail facilities were relocated into the RIPD zone, the county was required to apply CCZO 683.1 and evaluate site impacts, including topography, drainage, surrounding uses, and demonstrated need. They contend the county failed to analyze the physiological characteristics of the new rail site and instead improperly relied on earlier findings related to the diesel facility. They also argue the county did not adequately address stormwater impacts from newly added below-grade detention ponds.

Respondents counter that the issue was preserved and that the county adopted detailed findings addressing the relocated rail facility, vegetative buffer, and stormwater system. The county relied on technical memoranda to conclude that nearby industrial and agricultural uses would not be adversely affected, the vegetative buffer would not harm adjacent waterways, and stormwater facilities were properly designed to prevent groundwater contamination. The county found peak flow rates would decline and that the project would not adversely affect the site’s physiological characteristics.

The reviewing body agrees that the findings are adequate and supported by substantial evidence. The third assignment of error is denied, and the county’s decision is affirmed.