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Wind Generation Transmission Line May Locate on EFU Land without Consideration of Alternatives that have Less Impact on Farm Land

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.

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