Southern Oregon Pipeline Information Project, Inc (SOPIP) challenged the recent decision of Coos County Commissioners in regards to land use decisions granted to Jordan Cove Energy Project, LP. The challenge was heard by Oregon’s Land Use Board of Appeals which remanded parts of the land use decisions back to Coos County’s board of county commissioners.
Jordan Cove Energy Project (JCEP), LP, is proposing to build a holding terminal for LNG imports. According to LUBA’s decision, the issues remanded to the county to be worked out by JCEP pertain to the Henderson Marsh wetlands and applicant Jordan Cove’s use of the area. The next issue involves working with local tribes to protect historical, cultural and archaeological sites, and the final issue applies to policies with waste water and weak foundation soil.
James J. Nicita, Oregon City, filed a petition for review and argued on behalf of intervenor-petitioner Randy Prince. Two other intervenor-petitioners, Steve Jones of Coos Bay, and Jody McCaffree of North Bend, represented themselves. There was no appearance by Coos Bay.
Jordan Cove Energy Project (JCEP), was represented by Roger Alfred as intervenor-respondent. Alfred has previously argued for Skippanon Natural Gas when a group (including Columbia River Keepers out of Hood River and locals Peter Huhtala and Bob Goldberg) challenged the City of Warrenton’s land use decision in siting that LNG facility. Alfred won on all points in that case and the City of Warrenton’s land use decision was affirmed.
SOPIP’s first “assignment of error” was that the county erred in the way it applied Coos Bay Estuary Management Plan (CBEMP) Policy 17 and in doing so failed to provide needed protection to Henderson Marsh, which lies to the west of the proposed facility and qualifies as a major marsh. SOPIP also argues that the county failed to protect certain onsite freshwater wetlands, as required by CBEMP Policy 17. SOPIP contends the county erred by simply assuming “that the 50-foot setback for maintenance of riparian vegetation, required by [LDO] 4.5.180, including the six exceptions recognized in [LDO] 4.5.180(1)(a)-(f), will be sufficient to protect the shoreland values of Henderson Marsh.”
LUBA explained why it did not agree with SOPIP’s first argument. “we do not understand the county to have interpreted CBEMP Policy 17 to be fully implemented by LDO 4.5.180. We understand the county to have found that CBEMP Policy 17 is satisfied in this case because there will be no LNG facility development or related fill in the major marsh itself.” LUBA goes on to state, “There is simply nothing in the text of CBEMP Policy 17 that suggests it is to be implemented by limiting uses on properties that adjoin or are located near inventoried major marshes or significant wildlife habitat to avoid possible impacts on such marshes and habitat.” LUBA added, “Certainly there is nothing in the text of CBEMP Policy 17 that requires the more
expansive interpretation that SOPIP favors.”
SOPIP’s next argument regarded Coos County’s reliance on certain maps was upheld by LUBA and remanded back to the county to be resolved, “On remand, if the CBEMP inventory maps exist, the county must use them. If the CBEMP inventory maps have been lost or destroyed, the county can assess its legal options for responding to that reality. As it stands, the county’s explanation for relying on JCEP’s wetland delineation is not adequately explained.”
LUBA also remanded, in part, another decision upholding SOPIP’s argument. “On remand, the county will be required to locate wetlands on the subject property in the manner dictated by CBEMP Policy 17. However, once the county does that, we reject SOPIP’s contention that barring development from the wetlands and imposing the setback required by LDO 4.5.180 is not sufficient to ensure compliance with CBEMP Policy 17 with regard to wetlands.”
SOPIP’s second assignment of error concerned CBEMP Policy 18, entitled Protection of Historical, Cultural and Archaeological Sites ““Local government shall provide protection to historical, cultural and archaeological sites and shall continue to refrain from widespread dissemination of site-specific information about identified archaeological sites.” CBEMP Policy 18 requires that the county protect “historical, cultural and archaeological sites” and “refrain from widespread dissemination of site-specific information about identified archaeological sites.” Under paragraph I of CBEMP Policy 18, those requirements are implemented by “review of all development proposals” to ensure they meet those requirements. Paragraphs II and III set out a multi-step process that dictates several requirements of the applicant and calls for certain specified actions by the county.
The county provided, in part, the following finding: “As explained in the hearings officer’s decision, several tribal representatives also appeared at the public hearing and expressed concerns regarding the county’s ability to ensure that the applicant will adequately identify and protect historical, cultural and archeological sites. The applicant’s submittal of the resource survey to SHPO [State Historic Preservation Office] and coordination with the Tribes was undertaken as part of FERC’s [Federal Energy Regulatory Commission’s] requirement to comply with the federal Historic Preservation Act.”
SOPIP argued the county erred by not requiring the applicant to submit the kind of application that is described in LDO 5.6.500 and by not conducting the type of review that is required under LDO Article 5.6. However, according to LUBA, this issue had not been raised previously to the county commission and therefore could not be raised in an appeal and therefore wasn’t considered by LUBA.
In another argument SOPIP contended “the challenged decision fails to comply with CBEMP Policy #18 because it (1) does not resolve the disagreement between JCEP and the Confederated Tribes regarding appropriate measures to protect the site, and (2) fails to adopt measures necessary to protect the historic, cultural and archaeological values of the site.” LUBA agreed with SOPIP and in remanding it back to the county stated that it was open the possibility that the county might interpret LDO 3.2.700 to fully implement CBEMP Policy 18 because all development subject to CBEMP Policy 18 will require a zoning compliance letter and the decision making required by Paragraph III of CBEMP Policy 18, including any required “administrative review” and “quasi-judicial hearing” will occur under LDO 3.2.700(4). But any attempt to defer the quasi-judicial hearing and necessary decision making that may be required to resolve disputes between the tribes and the applicant to a point in time after the conditional use approval is granted, must ensure that the required decision making and quasi-judicial hearing will be provided later before the proposed development can commence.
SOPIP’s third assignment of error was:“The challenged decision misconstrues the applicable law because it approves the proposed LNG import terminal as an ‘Industrial & Port facility’ without providing that the approval will take effect only if the other elements integral to the function of the proposed LNG facility, namely a marine terminal and a natural gas pipeline or other means of distributing the regasified natural gas product, are approved as well.”
SOPIP argued that approval of the LNG facility must be conditioned on approval of the marine dock facility to constitute an Industrial and Port Facility, within the meaning of LDO 2.1.200. “INDUSTRIAL (USES) AND PORT FACILITIES: Public or private use of land or structures for manufacturing, processing, port development, and energy generating facilities. Industrial and Port Facilities include large commercial and industrial docks.” LUBA sided with the respondent-intervener, JCEP, stating, “…that no particular magic words are required and condition 1 is sufficient to condition the county’s approval of the LNG facility on approval of the marine dock facility.”
SOPIP also argues that the challenged decision must be conditioned on approval of the pipe line that will be needed to transmit natural gas from the LNG facility to market. JCEP responds: “Practicalities aside, SOPIP makes no meaningful attempt to explain why the lack of a condition requiring approval of a natural gas pipeline renders the LNG terminal something other than an ‘Industrial and Port Facility’ under the definition of that use category.” LUBA agreed with JCEP.
Under the first assignment of error, Prince argued that the subject property is located in a tsunami inundation zone and that the county erred by failing to adequately address the tsunami danger. Prince argues that CCCP Section 5.11(1) obligates the county to adopt land use regulations to protect development from ocean flooding, which includes tsunamis. The county’s floodmaps do not identify the subject property as subject to tsunami risks, but Oregon Department of Geology and Mineral Industries maps do indicate that the subject property is in a tsunami inundation zone. It is undisputed that while the county has adopted land use regulations regarding some types of ocean flooding, the county has not adopted regulations that specifically address tsunami dangers. Prince argues that this failure on the county’s part results in a plan/land use regulation conflict such that the disputed conditional use application must be denied to avoid approving a development that conflicts with the comprehensive plan by allowing development in an area that is subject to tsunami inundation.
LUBA found two problems with Prince’s argument under this subassignment of error. JCEP argues that Prince did not raise any issue concerning CCCP Section 5.11(1) and for that reason the issue presented in the first subassignment of error has been waived. However, LUBA stated, even if the issue had not been waived, this subassignment of error fails on the merits because it relies on CCCP Section 5.11(1), which does not apply within the Coos Bay Estuary.
Prince next argued that the challenged decision must be remanded, because it violates amendments to Goal 7 that took effect on June 1, 2002. Goal 7 reads: “To protect life and property from natural disasters and hazards.“Developments subject to damage or that could result in loss of life shall not be planned nor located in known areas of natural disasters and hazards without appropriate safeguards. Plans shall be based on an inventory of known areas of natural disaster and hazards. “Areas of Natural Disasters and Hazards – are areas that are subject to natural events that are known to result in death or endanger the works of man, such as
10 stream flooding, ocean flooding, ground water, erosion and deposition, landslides, earthquakes, weak foundation soils and other hazards unique to local or regional areas” (emphases added by LUBA.)
Prince to argue that under ORS 197.646(4), Goal 7 applies directly to the county and the county was obligated to address tsunami risk in the challenged decision or to deny the application until the county proceeds to amend its comprehensive plan to comply with the 2002 version of Goal 7. According to Prince, the consequence for this failure is specified in ORS 197.646(4) and the 2002 Goal 7 amendments apply directly to the county. JCEP responds that DLCD has not given the notice that is required by subsection (3) of ORS 197.646 and that the 2002 version of Goal 7 therefore does not apply directly to the county under ORS 197.646(4).
LUBA concluded the 2002 version of Goal 7 itself requires notice from DLCD before the county is required to engage in the planning that is dictated by the 2002 version of Goal 7. It was undisputed that DLCD had not given Coos County notice under Section C of the 2002 version of Goal 7. In a November 16, 2000 memorandum to LCDC the director explained: “Costs to local governments will be limited because the revised goal will only apply when the department notifies local governments that new hazard inventory information is available. It is anticipated that such notice will occur once a year. The amount of hazard information that is generated in a year by state and federal agencies is limited.”
Given that there is no dispute that DLCD has not provided the notice to the county that is required by Section C of the 2002 version of Goal 7, the 2002 version of Goal 7 does not yet apply to the county and Prince’s arguments under this subassignment of error provide no basis for reversal or remand.
Under his second assignment of error, Prince argued the county should have considered comprehensive plan criteria in addition to those it identified in its notice of hearing. Specifically, Prince again argues the county should have applied CCCP Section 5.11 and addressed earthquake dangers. Prince also argues the county should have applied two CBEMP Policies. One of those policies is CBEMP Policy 25, which concerns “Waste/Storm Water Discharge.” The other policy is CBEMP Policy 48, which concerns “Weak Foundation Soils.”
LUBA understood JCEP to take the position that LDO 4.5.276 made it clear that CBEMP Policies that are not mentioned in “General Conditions” and “Special Conditions” are inapplicable. JCEP also cited LDO 4.5.150 in support of its position that only those CBEMP Policies that are mentioned in the LDO 4.5.276 “General Conditions” and “Special Conditions” apply within the 6-WD zoning district. LUBA, however, was not able to locate language in LDO 4.5.276 that clearly stated that all CBEMP Policies that are not listed in the applicable CBEMP zoning district “General Conditions” and “Special Conditions” necessarily are inapplicable within those zoning districts, and JCEP didn’t identify the language in LDO 4.5.276 that it relied on.
In its decision, the Board of County Commissioners simply stated “[c]ertain CBEMP policies are made applicable through the special and general conditions required for the proposed use and activity in the 6-WD zoning district under ZLDO 4.5.276.” LUBA declared that is not an adequate explanation for why other CBEMP Policies that are not specifically mentioned in the special and general conditions could not apply if the substance of those policies warrants application.
Given the lack of a more adequate interpretation on the part of the county, based on the arguments that have been presented in this appeal, LUBA was unable to agree with JCEP that LDO 4.5.276 and 4.5.150, in and of themselves, render any CBEMP Policies that are not mentioned in the 6-WD zoning district inapplicable to development within that zoning district. LUBA said that the county could take up this question on remand if it interpreted LDO 4.5.276 and 4.5.150 in the same way that JCEP interpreted them, and if the county more adequately explains that interpretation. LUBA remanded county’s decision.
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