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Oregon’s ocean energy landscape has a potential new player.  On Wednesday February 5, 2014, The U.S. Department of Interior’s Bureau of Ocean Energy Management (BOEM) gave the green light to a developer to submit plans for a floating wind farm 15 miles off of Coos Bay.  This is only the first step in a long permitting process, so we are unlikely to see the turbines any time soon, but it is a new development for ocean energy.

WindFloat

The developer of the project, Principle Power, Inc., out of Seattle Washington, began the process in May of 2013 by submitting an unsolicited proposal to lease 15 square miles approximately 15 nautical miles off of Coos Bay Oregon.  As proposed the “WindFloat Pacific Project” would consist of five 6.0 megawatt (MW) wind turbine generators mounted on floating foundations, anchored to the seafloor in 1,200 to 1,600 feet water depth.  The decision on Wednesday is by no means the last word on the project; it simply authorizes Principle Power to submit plans to the BOEM.  The next step in the process would likely involve a determination under NEPA.  As the proposal is outside the state’s 12 mile territorial sea, the state of Oregon would not have permitting authority, but may submit comments to the federal government as the project moves forward.

Momentum appears to be growing for off-shore wind energy projects.  BOEM has issued two non-competitive leases in the northeast (one for an area off of Delaware and the other for the Cape Wind project in Nantucket Sound) and three competitive leases (two offshore Massachusetts-Rhode Island and another offshore Virginia).  The BOEM is considering additional competitive auctions for wind energy areas offshore Maryland, New Jersey and Massachusetts in 2014.  However, the project off of Oregon’s coast is the first offshore wind energy on the Pacific coast.  Although it is a long way from making it into the water, the project bears watching.

Muscarello v. Winnebago County Board, 2012 WL 6062515 (7th Cir.) involved a farmer challenging defendant’s provision for wind farm zoning, citing possible hazards from shadow flicker, reduction of light, noise, ice and blade throw, interference with communications and crop dusting, raptor loss, and similar matters.  Some of these harms were conjectural and other harms to agriculture were unproven.  The court noted that the only relief sought was against Defendant County and that various wind company defendants should have been dismissed for that reason.  The 7th Circuit noted that the District Court dismissed the suit, “a blunderbuss of federal and state claims” under FRCP 12(b)(6), i.e., that there was no claim under which plaintiff would be entitled to relief.

Under the challenge Code amendment, wind farms became permitted uses in certain zones, subject to setback and environmental standards.  No application for this use had been filed and Judge Posner, writing for the majority, observed for the court that a “pall of prematurity hangs over the case.”  Nevertheless the court found standing based on plaintiff’s allegations of loss of property value, stated at $500,000, to be sufficient, though Judge Posner observed that the number was “suspiciously rounded and unexplained.”

The court found no taking as there was no showing of a transfer of ownership or of rendering plaintiff’s land valueless, nor any case under the Illinois Constitution under which in addition to taking there was a guarantee of just compensation for the damaging of property.  Neither ground was sufficiently alleged in this case.  Similarly, the court found no deprivation of property under the federal Due Process clause by this change in procedure for wind farms from a conditional use to a permitted use – a change the court found too remote for any loss.  Moreover, the court noted that the instant challenge was facial in nature, so the court could not speculate on a possible application made on or near plaintiff’s property.  Judge Posner observed:

"Evaluating the plaintiffs objections to the ordinance would require comprehensive knowledge not only of wind farms and their effects pro or con on the environment and on energy independence, but also of the most valuable potential uses of all rural land in the county.  A judge could review the ordinance for rationality, but that is an undemanding test, and the national interest in wind power as a clean source of electrical energy and as a contribution to energy independence is enough to establish the ordinance's rationality.  (There is federal money to support wind farms; why shouldn't Winnebago County try to get a bit of it by making it easier to build wind farms in the county?)  For a court to allow a hypothetical harm to one person's property from a yet to be built (or even permitted to be built) wind farm to upend a county-wide ordinance would be an absurd judicial intrusion into the public regulation of land uses.

Stepping down from the dizzying heights of constitutional law, we can restate the plaintiff’s contention as simply that a wind farm adjacent to her property would be a nuisance. That is a more sensible conceptualization of her claim than supposing as she does that she has a property right in her neighbors' use of their lands. Should any of them create a nuisance by building a wind farm, she can seek to abate the nuisance when the wind farm is built, or maybe a bit earlier, when a permit to build it is granted.  The fact that the County Board has zoned agricultural property to allow wind farms would complicate her effort to establish that it was a nuisance, but not defeat it. The operation of the wind farm might turn out to cause a kind or amount of damage that the Board had not foreseen, and in that event the ordinance would not bar the suit.

Sufficient unto the day is the evil thereof. For all one knows, no wind farm will ever be built close enough to any of the plaintiffs properties to do any harm, let alone harm sufficient to constitute a nuisance under the standard for determining nuisance, which involves a balancing of the costs and benefits of the land use claimed to have caused a nuisance. Even a wind farm that was only a stone’s throw from one of her properties might do no damage to it, given the use to which she puts her Winnebago county properties – of which we have not been informed."

The court also noted the procedural challenge to the adoption of the ordinance in the initial version of this case which was mooted by the reenactment of the same and dismissed various other challenges to the ordinance, procedural and substantive, as well.  The District Court decision was thus affirmed.

It is difficult to bring a facial challenge to a regulation in the absence of a clear procedural or constitutional infirmity.  Plaintiff must await a permit proceeding to challenge the application of the ordinance under constitutional and statutory standards.  Judge Posner has once again enlivened this rather dull application of constitutional law.

Muscarello v. Winnebago County Board, 2012 WL 6062515 (7th Cir.).

 

In Cosner v. Umatilla County (2012), the Land Use Board of Appeals overturned a series of Umatilla County ordinances adopted in 2011 to prevent several wind energy developments.  The main issues in the case involved the county’s compliance with Goal 5 and the constitutionality of 2-mile setbacks for wind turbines from certain uses and locations. LUBA found against the county on both assignments of error.

After the Cosner decision, the county adopted a new series of ordinances in 2012 that it believed would resolve the problems identified in Cosner.  Thereafter, Jim Hatley (also a party in Cosner) appealed the 2012 ordinances.  LUBA upheld the county’s new ordinances and Hatley appealed to the Oregon Court of Appeals.

On April 3, 2013, the Court  reversed and remanded LUBA’s decision. Significantly, the Court held that Hatley did not waive his right to appeal the 2012 ordinances because he could have raised those issues in the original LUBA proceedings.  The Court distinguished between quasi-judicial decision making, where a strong “raise-it-or-waive-it” standard applies, and legislative decision making, where waiver does not apply.  In a quasi-judicial process the governing body is required to give notice of and apply a set of criteria within a fixed time-frame and to adopt a final decision.  In contrast, once LUBA overturned the 2011 ordinances, the county was not bound to take any action, but opted on its own to adopt two new ordinances.  Therefore, the public involvement process started anew.

On remand, LUBA will consider whether the county’s 2012 ordinances are preempted by state laws that encourage and govern renewable energy.

This decision is also likely to inform the legislative debate over House Bill 3362  that attempts to limit public participation in local legislative actions.  This bill comes from Eastern Oregon and the ongoing battles between the City of Bend, Deschutes County, and Central Oregon Landwatch.

Stay tune to both the legislative debate and LUBA’s treatment of Hatley v. Umatilla County on remand.

In WKN Chopin, LLC v. Umatilla County, LUBA reversed the county’s denial of a transmission line on EFU land intended to transmit energy from a new wind generation facility to the electrical grid. The county’s denial was based on a conclusion, under state law, ORS 215.295(2) and local code regulations, that there were alternatives to locating the line on EFU-zoned land and the applicant failed to establish that those alternatives were not feasible.

First, LUBA rejected intervenor’s claim that the use was more properly considered a "commercial utility facility for the purpose of generating power for public use by sale" under ORS 215.283(2)(g) when considered with the wind generation activity as opposed to “utility facility necessary for public services” under ORS 215.283(1)(c) as the County found. Not only was intervenor’s claim not properly preserved and was not raised as a cross-assignment of error challenging the county’s decision, a transmission line is a type of “utility facility” under ORS 215.276(1)(c) in any event.

Second, LUBA re-affirmed a long list of cases, most notably McCaw Communications, Inc. v. Marion County, 96 Or App 552, 556, 773 P2d 779 (1989), holding that an applicant for a utility facility necessary for public service is required to examine only non-EFU-zoned alternatives. An applicant need not examine multiple EFU-zoned alternatives and select the EFU zoned alternative that has the least impact on EFU-zoned land.

Third, local regulations requiring the consideration of alternatives and technological feasibility cannot be imposed on a use permitted under subsection (1) of ORS 215.283 as they are subject only to statutory standards under Brentmar v. Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995), and otherwise they are deemed permitted outright.

The Governor’s Ten Year Energy Action Plan Task Force released its Draft Energy Plan on June 5, 2012. The plan outlines the actions and initiatives of that the State of Oregon can take in the next 10 years to:

• Reduce the state’s dependence on carbon-intensive fuels and foreign oil

• Develop home-grown renewable energy resources

• Mitigate greenhouse gas emissions

• Improve energy efficiency and create rewarding local jobs

• Boost Oregon’s economy through investment and innovation

The siting portion of the plan analyzes which projects should be reviewed by local or state government, as well as the role other governmental agencies and entities should play in the siting process. The recommendations include the creation of an interdisciplinary team of agencies led by a Project Officer to review proposed Energy Facility Siting Council (EFSC) projects; and a similar, but separate coordination process for projects under federal and state review

In Zimmerman v. Wabaunsee County, Kansas, 293 Kan 332, 264 P3d 989 (Kan. 2011), the Kansas Supreme Court considered Plaintiff landowners appeal of the county’s decision to adopt zoning regulations that expressly prohibited the placement of commercial wind farms.  Each of the Plaintiffs had entered into written contracts for the development of commercial wind farms on their properties.  Plaintiffs raised two federal constitutional challenges to that ordinance, using the Takings and Commerce Clauses.

On review, the Kansas Supreme Court found that in order to prevail on a takings claim, a party seeking compensation must first establish that the property in question is one in which a vested interest exists.  A mere expectancy of future benefit does not constitute a vested right. 

In our July 8, 2011 post we wrote about new ordinances adopted in Umatilla County that severely limit where wind turbines can be constructed.  Property owners throughout the county have challenged the ordinances with an appeal at LUBA and oral argument is set for December 15th.  The tradeoff between green energy and aesthetics continues to be an ongoing debate in that locale.

Meanwhile, Sherman County has taken a different approach by embracing the development that captures the energy from gusts breezing through their backyards.  The Oregonian recently published the article, “Wind blows money into pockets of Sherman County residents,” describing the county’s decision to share the wealth when it comes to windfalls from turbine development (read the full article here.)  Although some community members may find the view of wind turbines less aesthetically pleasing than undeveloped high desert land, the county has attempted to give economic value to that impact. 

Locating new commercial wind developments in Oregon is getting more difficult, not just because the premier locations are now festooned with towers, but because opponents, with the support of local governments, are favoring strict standards on towers over the revenue and green energy they also provide.  On June 29, the Umatilla Board of County Commissioners adopted one of the broadest and most sweeping regulations limiting the location of wind turbines across the state. 

In Mingo v. Morrow County, __ Or LUBA __ (LUBA Nos. 2011-014, 2011-016, and 2011-017, June 2011), LUBA considered the Department of Environmental Quality’s (DEQ) noise control regulations in OAR chapter 340, division 35.  The case involved Morrow County’s conditional use approval for a wind energy facility in 2005 which required that the facility comply with DEQ’s noise control regulations.

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