The opinion
No. 18 April 18, 2013 465
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of the Request for Amendment #2
of the Site Certificate for the Helix Wind Power Facility.
THE BLUE MOUNTAIN ALLIANCE;
Norm Kralman; Richard Jolly;
Dave Price; Robin Severe;
and Cindy Severe,
Petitioners,
v.
ENERGY FACILITY SITING COUNCIL;
and Site Certificate Holder Helix Windpower Facility, LLC,
Respondents.
(S060803)
En Banc
On judicial review from an order of the Energy Facility
Siting Council.*
Argued and submitted January 7, 2013.
Daniel Kearns, Reeve Kearns PC, Portland, argued the
cause and filed the brief for petitioners.
Michael Casper, Assistant Attorney General, Salem,
argued the cause for respondent Energy Facility Siting
Council. Denise G. Fjordbeck, Attorney-in-Charge, Salem,
filed the brief for respondent Energy Facility Siting Council.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
James N. Westwood, Stoel Rives LLP, Portland, filed the
brief for respondent Helix Wind Power Facility LLP. With
him on the brief were David E. Filippi and Elaine R. Albrich.
Dina M. Dubson, Renewable Northwest Project, Portland,
filed the brief for amici curiae Renewable Northwest Project
and American Wind Energy Association. With her on the
brief was Megan W. Decker.
______________
* Appeal from a Final Order of the Energy Facility Siting Council dated
August 24, 2012, W. Bryan Wolfe, Chair.
466 Blue Mountain Alliance v. Energy Facility Siting
BALDWIN, J.
The Final Order Denying a Contested Case Proceeding
and Approving Amendment #2 of the Energy Facility Siting
Council is affirmed.
Energy facility site certificate holder applied for Amendment #2 to existing
site certificate, seeking to extend the construction start and completion dates
for a wind energy facility. Petitioners provided public comment requesting that
Amendment #2 require compliance with a county ordinance adopted after the
amendment application date, which required a two-mile setback between wind
turbines and rural residences. The Energy Facility Siting Council issued a final
order that declined to require compliance with the ordinance, denied petitioners’
requests for a contested case proceeding, and approved the amendment. Held: (1)
the council correctly characterized the ordinance as a land use regulation subject
to consideration under ORS 469.504(1)(b)(A) and properly declined to consider
the ordinance under that statute because it was not in effect on the Amendment
#2 application date; (2) because the ordinance qualified as a land use regulation
under ORS 469.504(1)(b)(A), the council correctly declined to require compliance
with the ordinance under the “abide by local ordinances” clause of ORS 469.401(2);
(3) the council did not abuse its discretion in declining to require compliance with
the ordinance as a later-adopted law under ORS 469.401(2); and (4) the council did
not err in denying petitioners requests for a contested case proceeding.
The Final Order Denying a Contested Case Proceeding and Approving
Amendment #2 of the Energy Facility Siting Council is affirmed.
Cite as 353 Or 465 (2013) 467
BALDWIN, J.
This case challenges a final order of the Energy
Facility Siting Council (council) approving an amended
site certificate for construction of a wind energy facility.1
The central question on review is whether, in approving
the amended site certificate, the council correctly declined
to require compliance with a recently adopted county
ordinance requiring a two-mile setback between wind
turbines and rural residences pursuant to ORS 469.401(2).
For the reasons set out in this opinion, we conclude that
the council did not err in not requiring compliance with
the ordinance. We further conclude that the council did not
err in denying petitioners’ requests for a contested case
proceeding. We therefore affirm the council’s final order
approving the amended site certificate.
I. FACTS AND BACKGROUND
The following facts are taken from the council’s
Final Order Denying a Contested Case Proceeding and
Approving Amendment #2. In July 2009, the council issued a
site certificate for the Helix Wind Power Facility, permitting
up to 60 wind turbines covering 7,586 acres on private
land in Umatilla County, northwest of Helix, Oregon. The
site certificate holder is Helix Wind Power Facility LLC
(Helix), also a respondent in this proceeding. The certificate
included conditions to begin construction within three
years and then complete construction within three years.
The statutory process under which the council issued the
original site certificate is generally described in Save Our
Rural Oregon v. Energy Facility Siting, 339 Or 353, 356-57,
121 P3d 1141 (2005). In June 2011, the council issued a final
order approving Amendment #1, expanding the size of the
facility to include 134 turbines, covering 20,613 acres.
On February 3, 2012, Helix applied for Amendment
#2, seeking to extend the construction start and completion
dates by two years. In response, the Oregon Department
of Energy (ODOE) posted public notice of the amendment
1
ORS 469.403(3) grants this court jurisdiction for judicial review of the
council’s approval or rejection of a site certificate application or amendment; ORS
469.405(1) additionally provides that judicial review of an amended site certificate
shall be as provided in ORS 469.403.
468 Blue Mountain Alliance v. Energy Facility Siting
request and sent notice to various other persons and entities,
including a list of residential owners within two miles of
the site boundary and a special advisory group consisting of
the Umatilla County Board of Commissioners (board). The
council received multiple comments, and Helix responded
to those comments. Following internal analysis, ODOE
issued a proposed order, together with public notice setting
a deadline for public comments and requests for a contested
case proceeding.
In May 2012, the council held a listening session
and received public comments. The council also received
multiple written public comments and several requests for
a contested case proceeding. Among other issues, public
testimony and comments highlighted a Umatilla County
ordinance—Ordinance 2012-04, adopted February 28,
2012—that required a two-mile setback between wind
turbines and rural residences. Petitioners contended that
the ordinance had been adopted as a public health and
safety measure and submitted materials intended to show
that noise implications from turbines posed a “significant
threat” to public health and safety and that a setback of
less than two miles would not adequately protect against
turbine noise. Petitioners requested that the council require
the facility to comply with the ordinance.2
In August 2012, ODOE staff presented a
recommendation on Amendment #2 to the council (“ODOE
staff report” or “report”). ODOE staff recommended that the
council not incorporate Ordinance 2012-04 in its analysis
whether the facility, with Amendment #2, complied with
statewide planning goals under ORS 469.504(1) and also
not require compliance with the ordinance in Amendment
#2 under ORS 469.401(2). The report specifically treated
Ordinance 2012-04 as a “land use regulation[ to be
]”
2
In 2011, the county had adopted a similar ordinance, which was appealed
to the Land Use Board of Appeals (LUBA). LUBA remanded, and the county
then updated the wording consistently with LUBA’s decision and adopted it as
Ordinance 2012-04 in February 2012. Later in this opinion, we discuss the specific
provisions of the original version of Ordinance 2012-04 and a revised, codified
version dated August 16, 2012. For ease of reference throughout this opinion, we
refer to “Ordinance 2012-04,” not to its codification.
Cite as 353 Or 465 (2013) 469
evaluated under ORS 469.504(1), instead of as a “public
health and safety” measure to be evaluated under ORS
469.401(2). The report additionally cited the council’s
earlier approval of a smaller, 1/4-mile setback between wind
turbines and residences in another, unrelated proceeding
and an applicable noise-related “public health setback”
with a distance that may exceed 1/4-mile, as adopted by the
Oregon Department of Environmental Quality (ODEQ).3
The report also observed that the council previously had
determined that the facility complied with ODEQ noise
regulations and that the time extension request did not
implicate that finding. Finally, the report recommended
that the council deny petitioners’ requests for a contested
case proceeding under OAR 345-027-0070(7).
On August 24, 2012, the council issued its final
order approving Amendment #2 and incorporating the
ODOE staff recommendations. Among other things, the
final order (1) stated that the council had considered all
public and reviewing agency comments and requests for a
contested case proceeding; (2) determined that Ordinance
2012-04 did not apply to the council’s determination
whether the facility complied with statewide planning goals
under ORS 469.504(1); (3) applied ODEQ noise control
regulations as part of determining that the facility complied
with administrative rules identified in the original project
order; (4) adopted an ODOE staff recommendation to not
require compliance with Ordinance 2012-04 under ORS
469.401(2); (5) denied petitioners’ requests for a contested
case proceeding because they had raised no significant
issues of fact or law under OAR 345-027-0070(7); and
(6) ultimately concluded that the facility complied with
applicable siting statutes, council standards, and other
applicable state statutes and administrative rules. The final
order granted Helix’s time-extension request, subject to
revisions set out in the order that are not at issue in this
proceeding. Petitioners filed a petition for judicial review in
this court. See ORS 469.405(1), ORS 469.403(3) (providing
for such review).
3
See OAR 340-035-0035(1)(b)(B)(i) to (iii) (noise restrictions as to new
industrial or commercial noise source generally and as to wind energy facilities).
470 Blue Mountain Alliance v. Energy Facility Siting
II. PARTIES’ ARGUMENTS
To frame the parties’ arguments, we first set out the
statutes at issue. In deciding whether to issue a site certificate
or an amended site certificate, the council must make a
series of determinations as to whether a preponderance of
the evidence supports several conclusions. See ORS 469.503
(so providing). One such determination is whether the
facility complies with statewide planning goals under ORS
469.503(4). ORS 469.504(1), in turn, establishes alternative
means for the council to make that determination. See Save
Our Rural Oregon, 339 Or at 366-69 (so explaining). The
applicable alternative in this proceeding, set out in ORS
469.504(1)(b)(A), provides:
“(1) A proposed facility shall be found in compliance
with the statewide planning goals under ORS 469.503(4) if:
“* * * * *
“(b) The Energy Facility Siting Council determines
that:
“(A) The facility complies with applicable substantive
criteria from the affected local government’s acknowledged
comprehensive plan and land use regulations that are
required by the statewide planning goals and in effect on
the date the application is submitted, and with any Land
Conservation and Development Commission administrative
rules and goals and any land use statutes that apply directly
to the facility under ORS 197.646[.]”
(Emphasis added.) That same analysis, including the
“application submission date” requirement, applies to
amended site certificates, OAR 345-027-0070(10). Thus,
the statute and the administrative rule establish a “goal-
post” rule for consideration of criteria derived from the local
government’s comprehensive plan and land use regulations
in relation to compliance with statewide planning goals.
That “goal-post” rule is based on the application date of
the facility site certificate or an amended site certificate.
Here, Ordinance 2012-04 was adopted 25 days after the
Amendment #2 application date.
Cite as 353 Or 465 (2013) 471
The other statute at issue, ORS 469.401(2), sets out
the required contents for a site certificate or an amended
site certificate, once the council decides to issue it. That
statute provides, in part:
“The site certificate or amended site certificate shall
contain conditions for the protection of the public health
and safety, for the time for completion of construction, and
to ensure compliance with the standards, statutes and rules
described in ORS 469.501 and 469.503. The site certificate
or amended site certificate shall require both parties to
abide by local ordinances and state law and the rules of the
council in effect on the date the site certificate or amended
site certificate is executed, except that upon a clear showing
of a significant threat to the public health, safety or the
environment that requires application of later-adopted
laws or rules, the council may require compliance with such
later-adopted laws or rules.”
(Emphasis added.) Under that statute, the council must
require compliance with certain “local ordinances and
state law and [council] rules” in effect on the date that
the certificate is executed, and the council may require
compliance with “later-adopted laws or rules” upon a clear
showing of a “significant threat to the public health, safety
or the environment” that requires application of the later-
adopted law or rule. Here, Ordinance 2012-04 was adopted
about six months before the council issued its final order
approving Amendment #2; the amended site certificate
has not yet been executed, pending this judicial review
proceeding.
The parties’ dispute requires that we construe
the second statute, ORS 469.401(2)—specifically the two
independent clauses in the second sentence4—and determine
whether the council erred in not requiring compliance
with Ordinance 2012-04 in Amendment #2. Petitioners
contend that, notwithstanding ORS 469.504(1)(b)(A),
Ordinance 2012-04 qualifies as a noise ordinance, bringing
4
For ease of reference in this opinion, we refer to the first clause of the second
sentence of ORS 469.401(2) as the “abide by local ordinances” clause and to the
second clause as the “later-adopted laws” clause.
472 Blue Mountain Alliance v. Energy Facility Siting
it within the “public health and safety” concepts generally
set out in ORS 469.401(2). Petitioners specifically argue
that Ordinance 2012-04 falls within the scope of the “abide
by local ordinances” clause and that the council therefore
erred when it did not require compliance with the ordinance
in Amendment #2. Alternatively, petitioners argue that
Ordinance 2012-04 falls within the scope of the “later-adopted
laws” clause, petitioners satisfied the “significant threat”
threshold, and the council should have required compliance
with the ordinance in the exercise of its discretion. Finally,
petitioners contend that the council erred in denying their
requests for a contested case proceeding, regarding the
opportunity to demonstrate that the ordinance qualified
as a public health and safety measure and that a setback
of less than two miles posed a significant threat to public
health and safety.
The council and Helix instead begin the analysis
with ORS 469.504(1)(b)(A), contending that Ordinance 2012-
04 is a “land use regulation[ under that statute. Because
]”
Ordinance 2012-04 was adopted after the Amendment
#2 application date, the council and Helix assert that the
council correctly concluded that the ordinance did not
apply to the council’s evaluation of applicable substantive
criteria under ORS 469.504(1)(b)(A), in determining facility
compliance with statewide planning goals. Next, the council
and Helix contend that any ordinance that qualifies as a
“land use regulation[ under ORS 469.504(1)(b)(A) cannot
]”
also be considered an ordinance to which the “abide by
local ordinances” clause of ORS 469.401(2) applies. Helix
adds that, if ORS 469.401(2) were construed to require
Helix to comply with an ordinance that qualifies as a land
use regulation that became effective after the application
date, that result would conflict with ORS 469.504(1)(b)(A),
which only requires consideration of land use regulations
in effect as of the application date. The council and Helix
further contend that the council did not err in declining to
require compliance with Ordinance 2012-04 in Amendment
#2 under the “later-adopted laws” clause of ORS 469.401(2)
or in denying petitioners’ requests for a contested case
proceeding.
Cite as 353 Or 465 (2013) 473
II. FIRST ASSIGNMENT OF ERROR:
ORS 469.401(2)—REQUIRED COMPLIANCE
WITH LOCAL ORDINANCES IN EFFECT
ON SITE CERTIFICATE EXECUTION DATE
A. Construction of “Abide by Local Ordinances” Clause of
ORS 469.401(2)
Before construing ORS 469.401(2), it is important
to explain the operation of ORS 469.504(1)(b)(A). Again,
that statute provides as follows:
“(1) A proposed facility shall be found in compliance
with the statewide planning goals under ORS 469.503(4) if:
“* * * * *
“(b) The Energy Facility Siting Council determines
that:
“(A) The facility complies with applicable substantive
criteria from the affected local government’s acknowledged
comprehensive plan and land use regulations that are
required by the statewide planning goals and in effect on
the date the application is submitted, and with any Land
Conservation and Development Commission administrative
rules and goals and any land use statutes that apply directly
to the facility under ORS 197.646[.]”
(Emphasis added.) As noted earlier, the same process applies
to amended site certificates, OAR 345-027-0070(10). In Save
Our Rural Oregon, 339 Or at 361, this court explained the
underlying purpose of ORS 469.504:
“Oregon’s statewide land use planning goals, adopted
by the Land Conservation and Development Commission
(LCDC), set out broad objectives for land use planning in
Oregon. Local governments implement those objectives in
local comprehensive plans. ORS 197.225 to 197.250. ORS
469.503(4) provides that the council may not issue a site
certificate approving [a site certificate application] unless
the proposed facility complies with the statewide planning
goals. ORS 469.504, in turn, provides the guidelines for
determining whether the [site certificate application]
complies with those goals.”
Under the first part of ORS 469.504(1)(b)(A), the
council must determine that the facility complies with
474 Blue Mountain Alliance v. Energy Facility Siting
substantive criteria—derived from the local government’s
“acknowledged comprehensive plan and land use
regulations”—that are (1) required by statewide planning
goals; and (2) “in effect” on the certificate or amendment
application date. In its final order, the council determined
that the two-mile setback embodied in Ordinance 2012-
04 was a “land use regulation[ that should be evaluated
]”
under the “applicable substantive criteria” provision of ORS
469.504(1)(b)(A). However, the council further determined
that the ordinance was not “in effect” on the Amendment #2
application date and therefore should not be included in the
“applicable substantive criteria” used to determine whether
the facility complied with the statewide planning goals.
We agree with the council and Helix that the council was
not required to consider the ordinance in its determination
whether the facility complied with statewide planning goals
because the ordinance was not “in effect” on the Amendment
#2 application date. Petitioners do not appear to dispute that
conclusion; instead, they principally rely on ORS 469.401(2),
to which we now turn.
Again, ORS 469.401(2) provides, in part:
“The site certificate or amended site certificate shall
contain conditions for the protection of the public health
and safety, for the time for completion of construction,
and to ensure compliance with the standards, statutes
and rules described in ORS 469.501 and 469.503. The site
certificate or amended site certificate shall require both
parties to abide by local ordinances and state law and the
rules of the council in effect on the date the site certificate or
amended site certificate is executed, except that upon a clear
showing of a significant threat to the public health, safety or
the environment that requires application of later-adopted
laws or rules, the council may require compliance with such
later-adopted laws or rules.”
(Emphasis added.) As noted earlier, petitioners rely on both
clauses in the second sentence. Under the “abide by local
ordinances” clause, they emphasize that Ordinance 2012-04
is a local ordinance that was “in effect” on the Amendment
#2 execution date and the council therefore erred in not
requiring compliance with that ordinance; alternatively,
under the “later-adopted laws” clause, the ordinance should
Cite as 353 Or 465 (2013) 475
be considered a “later-adopted law[ and the council, in
]”
its discretion, should have required compliance with the
ordinance.
We review for error of law. See ORS 183.482(8)(a)
(court must determine whether agency “has erroneously
interpreted a provision of law”); ORS 469.403(6) (ORS
183.482 applies to petition for judicial review of council’s
approval or rejection of site certificate or amended site
certificate application); see also Save Our Rural Oregon,
339 Or at 360 (identifying statutory construction question
as legal issue). To address petitioners’ contentions, we
employ our method of statutory construction set out in
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), to
ascertain the legislature’s intent. See also State v. Klein, 352
Or 302, 309, 283 P3d 350 (2012) (when construing statutes,
court reviews statutory text and context, including related
statutes).
We begin with the text of the “abide by local
ordinances” clause of ORS 469.401(2), which provides:
“The site certificate or amended site certificate shall
require both parties to abide by local ordinances and state
law and the rules of the council in effect on the date the site
certificate or amended site certificate is executed[.]”
That clause contains a timing trigger for requiring party
compliance with local ordinances, state laws, and council
rules: the site certificate must require compliance with
ordinances “in effect” on the certificate execution date
(with exceptions identified in the “later-adopted laws”
clause), and Ordinance 2012-04 is presently “in effect”
within that statutory meaning. See ORS 469.401(1) (after
council approves site certificate or amended site certificate,
council chairperson and applicant shall execute certificate
with prescribed conditions; here, the site certificate with
Amendment #2 has not yet executed, pending this judicial
review proceeding). What is less clear, however, is the
intended scope of the unmodified phrase, “local ordinances
and state law and the rules of the council.” That is, although
petitioners infer that the clause refers to ordinances, laws,
and rules that pertain to “public health and safety” in effect
on the execution date—and although other parts of the
476 Blue Mountain Alliance v. Energy Facility Siting
statute also use those same modifying words—the clause
contains no wording to that effect. The council and Helix
do not dispute that the phrase “local ordinances” in the
clause may include ordinances relating to public health and
safety; they contend, however, that any “local ordinance”
that is a “land use regulation[ ]” under ORS 469.504(1)(b)(A)
is excluded from the intended scope of the “abide by local
ordinances” clause. Simply stated, although the clause
appears unambiguous on its face, the parties point to
contextual clues to support their conflicting constructions.
We first agree with the parties that, in referring
to “local ordinances,” the legislature intended the “abide
by local ordinances” clause of ORS 469.401(2) to generally
extend to local ordinances that serve to protect public health
and safety. By way of context, the next clause of that same
sentence—which is more narrowly drawn than the first—
provides a “later-adopted” exception for “laws or rules” that
pose a significant threat “to the public health, safety,” or the
environment. By setting out a subcategory of significant
threat “to the public health [or] safety” that may justify
application of “later-adopted” laws or rules, contrasted
against laws or rules “in effect” on the certificate execution
date, the “later-adopted laws” clause textually presumes
that the preceding “abide by local ordinances” clause also
extends to local ordinances, state law, and council rules that
serve to protect public health and safety. A related statute,
ORS 469.310, supports that construction, affirmatively
stating as public policy that “the siting, construction and
operation of energy facilities shall be accomplished in a
manner consistent with protection of the public health and
safety,” among other considerations. That is not to say that
the phrase “abide by local ordinances and state law and the
rules of the council” in ORS 469.401(2) is limited to local
ordinances, state laws, and council rules that protect public
health and safety; the context indisputably shows, however,
that the legislature intended the scope of that phrase to
extend to ordinances that protect public health and safety.
Having construed the “abide by local ordinances”
clause of ORS 469.401(2) as including—but not necessarily
limited to—local ordinances, state laws, and council rules
Cite as 353 Or 465 (2013) 477
that protect public health and safety, we turn to other
parts of ORS chapter 469 to assist our understanding of
the scope of the term “local ordinances” in that clause. As
explained below, several chapter components describing the
site certificate application and approval process clarify the
legislature’s intended meaning of that term as pertinent to
our inquiry.
As to the initial site certificate application process,
ORS 469.330(1) requires an applicant to submit to the
council a notice of intent to file a site certificate application.
Following review of the notice and a public comment
period, ODOE must issue a project order that establishes
the “statutes, administrative rules, council standards,
local ordinances, application requirements and study
requirements for the site certificate application.” ORS
469.330(3) (emphasis added). After the applicant files the
initial site certificate application and at the conclusion of a
mandatory contested case proceeding, the council must issue
a final order approving or rejecting the application. ORS
469.370(7). Under that statute, the council must base its
approval on identified, council-adopted standards adopted
under ORS 469.501 “and any additional statutes, rules or
local ordinances determined to be applicable to the facility
by the project order, as amended.” (Emphasis added.) See
also generally ORS 469.503(3) (before issuing certificate,
council must determine whether facility complies with state
statutes and administrative rules identified in project order
as applicable to site certificate issuance).
Thus, the statutory scheme establishes that the
process of drafting a project order and issuing a final
order approving the site certificate application involves
determining the “local ordinances” (and other provisions)
that apply to the facility and with which an applicant must
comply to obtain approval of its application. As part of that
construct, ORS 469.401(2) logically is intended to require
in the site certificate that the applicant comply with those
same ordinances. Stated differently, given the statutory
scheme, the reference in ORS 469.401(2) to “local ordinances
and state law and the rules of the council in effect” on the
certificate execution date logically refers to the ordinances,
state law, and council rules that previously were determined
478 Blue Mountain Alliance v. Energy Facility Siting
to apply to the facility in the course of developing the project
order under ORS 469.330(3). See also ORS 469.401(2)
(first sentence; site certificate must contain conditions to
“ensure compliance with” statutes and rules described in
ORS 469.503). Additionally, the phrase includes applicable
ordinances, laws, and rules that may have become effective
between the project order issuance date and the site
certificate execution date—that is, provisions that, had they
been in effect at the time that the project order issued, would
have been included in that order under ORS 469.330(3). As
previously discussed, those local ordinances, state laws, and
rules may include—but are not limited to—public health
and safety protections.
The council and Helix urge that ORS 469.504(1)(b)(A)
provides necessary context for the proper construction of
the “abide by local ordinances” clause of ORS 469.401(2)—
specifically, the intended scope of any local ordinance subject
to a compliance requirement in the site certificate. As
discussed earlier, ORS 469.504(1)(b)(A) refers to applicable
substantive criteria—derived from the local government’s
acknowledged comprehensive plan and “land use
regulations” (emphasis added) in effect on the application
date—that the council must consider in determining
whether a facility complies with statewide planning goals.
Essentially, the council and Helix argue that, because all
applicable “land use regulations” fall within the scope of
the council’s determination of goal compliance under ORS
469.504(1)(b)(A), they cannot simultaneously fall within
the scope of the “abide by local ordinances” clause of ORS
469.401(2), relating to certificate requirements. That is, the
council’s consideration of applicable “land use regulations”
occurs at the point in time when the council determines
whether a facility complies with statewide planning goals.
By contrast, the council’s consideration of other, nonland use
laws, rules, and ordinances extends to other points in the
siting process. The legislature intended the two concepts to
remain separate, the council and Helix argue, in large part
because of their different “trigger” dates—the application
date in ORS 469.504(1)(b)(A) for land use regulations, and
the certificate execution date in ORS 469.401(2) for other
local ordinances, state laws and council rules. Otherwise,
Cite as 353 Or 465 (2013) 479
the council could require compliance in a site certificate
with a local “land use regulation[ ]” that was not in effect on
the application date and that the council therefore had been
precluded from considering for statewide planning goal
compliance purposes under ORS 469.504(1)(b)(A).
We have explained that ORS 469.504(1)(b)(A)
and ORS 469.401(2) serve different purposes and apply at
different stages of the site certificate application process,
which arguably undercuts the council’s and Helix’s contention
that the statutes must operate in harmony, particularly as to
their trigger dates. At the same time, however, those varying
purposes and applications provide some helpful statutory
context. Notably, ORS 469.504(1)(b)(A) applies to the central
determination whether an application for a site certificate
or amendment should be approved or rejected. Only after
the council has decided to approve the application does it
determine the required contents of the certificate under
ORS 469.401(2). The subordinate nature of the council’s
determination of certificate contents under ORS 469.401(2),
in relation to its central determination of application
approval under ORS 469.504(1)(b)(A), suggests that the
legislature intended ORS 469.401(2) to operate consistently
with—and not to circumvent—ORS 469.504(1)(b)(A).
See generally Davis v. Wasco IED, 286 Or 261, 272, 593 P2d
1152 (1979) (“whenever possible the court should construe
together statutes on the same subject as consistent with
and in harmony with each other”). That, in turn, supports
the council’s and Helix’s contention that the “abide by local
ordinances”clause in ORS 469.401(2) excludes ordinances that
qualify as “land use regulations” under ORS 469.504(1)(b)(A).
Another part of ORS chapter 469 further supports
that construction of ORS 469.401(2). ORS 469.503 requires
that, in determining whether to issue a site certificate, the
council must make a number of determinations about the
facility. One such determination, as previously discussed, is
whether the facility complies with statewide planning goals,
ORS 469.503(4), pursuant to the alternative means provided
in ORS 469.504(1). Another compliance determination is set
out in subsection (3) of ORS 469.503, as follows:
480 Blue Mountain Alliance v. Energy Facility Siting
“In order to issue a site certificate, the * * [c]ouncil
*
shall determine that the preponderance of the evidence on
the record supports the following conclusions:
“* * * * *
“(3) Except as provided in ORS 469.504 for land use
compliance * * *, the facility complies with all other Oregon
statutes and administrative rules identified in the project
order, as amended, as applicable to the issuance of a site
certificate for the proposed facility. * * *”
(Emphasis added.) That statute requires the council to
determine that the facility complies with state statutes
and rules previously determined to apply to the facility
and therefore identified in the project order under ORS
469.330(3). As previously discussed, the reference in the
“abide by local ordinances” clause of ORS 469.401(2) to
“local ordinances and state law and the rules of the council”
in effect on the certificate execution date means those
provisions previously identified in the project order under
ORS 469.330(3), together with other applicable provisions
that may have become effective between the project order
issuance and certificate execution dates. That is, the same
state statutes and rules identified in the project order
under ORS 469.330(3) and therefore subject to certificate
compliance requirements in ORS 469.401(2) also are
subject to a facility compliance determination under ORS
469.503(3).
Significantly, in setting out that compliance
determination requirement, ORS 469.503(3) expressly
distinguishes state statutes and rules that pertain to “land
use compliance” based on the application date under ORS
469.504 from “all other Oregon statutes and administrative
rules” previously identified in the project order. (Emphasis
added.) Indeed, ORS 469.503(3) characterizes ORS 469.504—
the statute that requires a compliance determination as to
statewide planning goals that may include evaluation of
the local government’s comprehensive plan and “land use
regulations”—as a “land use compliance” statute. That
characterization demonstrates a legislative intention that
Cite as 353 Or 465 (2013) 481
the council evaluate a provision of law or rule that qualifies
as a “land use regulation[ only under ORS 469.504(1), as
]”
part of the council’s statewide planning goal determination
under ORS 469.503(4).5 By contrast, the legislature
identified a separate category of “other” applicable provisions
“identified in the project order” under ORS 469.330(3) that
must be part of a separate compliance determination under
ORS 469.503(3). And, as previously noted, the “abide by
local ordinances” clause of ORS 469.401(2) in turn provides
a mechanism for requiring compliance with such provisions
(and similar provisions adopted after the project order but
before execution of the site certificate) in the site certificate.6
No aspect of the statutory context supports petitioners’
competing construction.
In light of the statutory context, we conclude that
the requirement in ORS 469.401(2) that a site certificate
or amended site certificate must require compliance with
“local ordinances and state law and the rules of the council
in effect on the date the site certificate or amended site
certificate is executed” does not include any ordinance, law,
or rule that is a “land use regulation[ ]”for purposes of ORS
469.504(1)(b)(A).
5
In Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 368, 121
P3d 1141 (2005), this court explained that “the statewide land use planning goals
establish broad policy objectives, while the applicable substantive criteria provide
specific ways of implementing those objectives through local regulation.” (Internal
quotations omitted.) Those “applicable substantive criteria,” in turn, are derived
from the affected local government’s acknowledged comprehensive plan and land
use regulations, ORS 469.504(1)(b).
6
We recognize that, in contrasting a “land use compliance” determination
under ORS 469.504 against “other” facility compliance determinations, ORS
469.503(3) does not refer to any “local ordinance” determined in the project order
to apply to the facility. Compare ORS 469.330(3) (project order must establish “the
statutes, administrative rules, council standards, local ordinances, application
requirements and study requirements for the site certificate application” (emphasis
added)); ORS 469.370(7) (council determination whether to issue final order must
be based on standards adopted under ORS 469.501 “and any additional statutes,
rules or local ordinances determined to be applicable to the facility by the project
order, as amended” (emphasis added); ORS 469.401(2) (certificate must require
compliance with “local ordinances and state law and the rules of the council”
(emphasis added)). That lack of reference to local ordinances in ORS 469.503(3),
however, does not diminish the import of that statute’s characterization of ORS
469.504 as a “land use compliance” statute—as opposed to a category of “other,”
nonland use statutes, rules, and ordinances—for purposes of our analysis.
482 Blue Mountain Alliance v. Energy Facility Siting
B. Ordinance 2012-04—“Land Use Regulation[ ]” or “Public
Health and Safety” Ordinance
We turn to whether the council properly
characterized the two-mile setback contained in Ordinance
2012-04 as a “land use regulation[ subject to analysis
]”
under ORS 469.504(1)(b)(A) or whether it should have
treated the ordinance as a nonland use ordinance requiring
compliance under the “abide by local ordinances” clause
of ORS 469.401(2). We review the council’s determination
for any error of law. See Rubalcaba v. Nagaki Farms, Inc.,
333 Or 614, 619, 43 P3d 1106 (2002) (agency determination
whether subject of applicable legal standard qualifies under
that standard is conclusion of law, not finding of fact); Woody
v. Waibel, 276 Or 189, 192 n 3, 554 P2d 492 (1976) (same;
distinguishing when assessing question of law may involve
predicate question of fact).
Ordinance 2012-04 was adopted as an amendment
to the Umatilla County Code of Ordinances, as a new
provision in the Development Code (UCDC, chapters 150-
153 of the Umatilla County Code of Ordinances), UCDC
section 152.616(HHH)(6)(a). That ordinance, as adopted on
February 28, 2012, provided:
Ҥ 152.616 STANDARDS FOR REVIEW OF CONDI-
TIONAL USES AND LAND USE DECISIONS.
“(HHH) Commercial Wind Power Generation Facility.
“(6) Standards/Criteria of Approval The following
requirements and restrictions apply to the siting of a Wind
Power Generation Facility:
“[(a)] Setbacks. The minimum setback shall be a
distance of not less than the following:
“(1) From a turbine tower to a city urban growth
boundary (UGB) shall be two miles. The measurement of
the setback is from the centerline of a turbine tower to the
edge of the UGB that was adopted by the city as of the date
the application was deemed complete.
“(2) From a turbine tower to land zoned Unincorporated
Community (UC) shall be 1 mile.
Cite as 353 Or 465 (2013) 483
“(3) From a turbine tower to a rural residence shall
be 2 miles. For purposes of this section, a ‘rural residence’
is defined as a legal, conforming dwelling existing on the
parcel at the time an application is deemed complete. The
measurement of the setback is from the centerline of the
turbine tower to the centerpoint of the residence.”
See Ordinance No 2012-04, http://www.co.umatilla.or.us/
planning/ordinances/Ordinance _2012-04.pdf (last accessed
Apr 9, 2013) (italics in original). A revised version of the
UCDC dated August 16, 2012—eight days before the council
issued the final order at issue in this case—contains an
expanded version of Ordinance 2012-04, still codified as
UCDC section 152.616(HHH)(6)(a).7 The expanded version
includes the provisions set out above, with revised and
additional text in subsection (6)(a)(3) that does not affect
our analysis here. The revised version contains additional
subsections to section (6)(a) that provide, in part:
“(4) A Wind Power Generation Facility applicant may
apply for and receive an adjustment for a reduced distance
between a turbine tower and a rural residence under the
following approval criteria. The adjustment application
shall be submitted on a form provided by the County and
signed by the rural residence landowner.
“(i) The adjustment will not significantly detract from
the livability of the subject rural residence. This standard is
satisfied if applicable [O]DEQ noise standards are satisfied,
there is no significant adverse impact to property access and
traffic conditions, and other evidence demonstrates that the
residence remains suitable for peaceful enjoyment or, such
impacts to the livability of the rural residence resulting from
the adjustment are mitigated to the extent practical; and
“(ii) All other requirements of the Wind Power
Generation Facility application remain satisfied.
“(5) An adjustment application under this section
shall be processed as a Land Use Decision concurrently
7
We take judicial notice of the undisputed contents of the revised version
of Ordinance 2012-04 dated August 16, 2012, as well as other aspects of the
Code of Umatilla County. Only the original version of Ordinance 2012-04 and an
interim, revised version dated March 13, 2012, are contained in the record of this
proceeding.
484 Blue Mountain Alliance v. Energy Facility Siting
with the Wind Power Generation Facility application. For
applications subject to Energy Facility Siting Council * *
*
jurisdiction, an adjustment application shall be included
as the applicable substantive criteria evaluated by [the
council] when granting or denying an application for a Site
Certificate.
“* * * * *
“(9) The turbine/towers shall be of a size and design
to help reduce noise or other detrimental effects. At a
minimum, the Wind Power Generation Facility shall be
designed and operated within the limits of noise standard(s)
established by the State of Oregon. A credible noise study
may be required to verify that noise impacts in all wind
directions are in compliance with the State noise standard.”
See http://www.co.umatilla.or.us/planning/pdf/Umatilla_
County_Development_Code.pdf, 310-11 (last accessed
Apr 9, 2013) (emphases added).
In text and context, Ordinance 2012-04 bears the
characteristics of a “land use regulation[ consistently
],”
with the legislature’s use of that term in ORS 469.504(1)
(b)(A). The ordinance was adopted as an amendment
to the county’s Development Code, maintained by the
county’s Department of Land Use Planning. As written,
the ordinance operates as a “siting” restriction. Revised
subsection (6)(a)(4) permits a setback of less than two miles
if approved through an adjustment application process;
significantly, revised subsection (6)(a)(5) provides that such
an adjustment application shall be processed as a “Land
Use Decision” and that such applications “shall be included
as the applicable substantive criteria” that the council
evaluates in determining whether the facility complies
with statewide planning goals under ORS 469.504(1). By
contrast, subsection (6)(a)(4)(i) designates ODEQ noise
regulations as providing applicable “noise standards” by
which to measure an approved adjustment application, and
subsection (6)(a)(9) establishes a “minimum” noise standard
for wind energy facilities consistently with statewide noise
standards—that is, those adopted by ODEQ. Ordinance
2012-04 does not itself establish any noise standard that
may justify treating the ordinance as a “public health and
Cite as 353 Or 465 (2013) 485
safety” measure, as opposed to a “land use regulation[ 8
].”
In sum, the foregoing evaluation supports the council’s
conclusion that the ordinance is a “land use regulation[ ]”
for purposes of ORS 469.504(1)(b)(A).
In arguing to the contrary, petitioners rely, in part,
on the “purpose” statement in Chapter 152 of the UCDC,
which expressly refers to the promotion of public health
and safety. That statement, codified as UCDC § 152.002,
provides:
“The intent of purpose of this chapter is to promote the
public health, safety and general welfare and to carry out
the County Comprehensive Plan, the provisions of ORS
Chapters 92 and 215 and the Statewide Planning Goals
adopted pursuant to ORS Chapter 197. This chapter is
to establish use zones and regulations governing the
development and use of land within portions of the county;
to provide regulations governing non-conforming uses
and structures; to establish and provide for the collection
of fees; to provide to the administration of this chapter
and for the officials whose duty it shall be to enforce the
provisions thereof; to provide penalties for the violations of
this chapter; to provide for conflicts with other ordinances
or regulations; and provide classifications and uniform
standards for the division of land and the installation of
related improvements in portions of the unincorporated
area of the county.”
See http://www.co.umatilla.or.us/planning/pdf/Umatilla_
County_Development_Code.pdf, 12 (last accessed Apr 9,
2013). As can be seen, the statement identifies several
purposes of chapter 152, not just the promotion of public
health, safety, and general welfare—which, arguably, is an
inextricable component of most land use regulations. Notably,
the identified purposes include carrying out the county’s
comprehensive plan, state law pertaining to subdivisions
and partitions (ORS chapter 92), state law pertaining to
county planning, zoning, and housing codes (ORS chapter
215), and the statewide planning goals adopted pursuant to
ORS chapter 197. Further, the statement primarily describes
8
Compare Code of Umatilla County, Chapter 96 (“Noise Control Ordinance,”
Ordinance 99-07) (setting out, among other things, restrictions on noise levels), see
http://www.co.umatilla.or.us/deptwebs/codes/96.pdf (last accessed Apr 9, 2013)).
486 Blue Mountain Alliance v. Energy Facility Siting
the contents of Chapter 152 by using wording that can be
characterized as relating to “land use” and not to “public
health and safety.” Indeed, in its original final order approving
the initial site certificate, the council drew the “applicable
substantive criteria from the affected local government’s
acknowledged comprehensive plan and land use regulations”
under ORS 469.504(1)(b)(A) largely from various sections
of UCDC Chapter 152. In short, the “purpose” statement
cuts against petitioners’ contention that Ordinance 2012-04
is a “public health and safety” measure subject to the
“abide by local ordinances” clause of ORS 469.401(2),
rather than a “land use regulation[ as the legislature
]”
intended that term to apply in ORS 469.504(1)(b)(A).
Petitioners are correct that one effect of Ordinance
2012-04 may be a positive impact on public health and safety,
given that an increased distance between wind turbines and
rural residences potentially lessens any health or safety
hazards that arguably may flow from turbine installation.
The same could be said, however, for any number of land
use restrictions—for example, a restriction that prohibits
development in a flood plain may bear the characteristics of
a “land use regulation[ ],” while at the same time having the
effect of protecting public health and safety.9 The fact that
such a restriction may operate to benefit public health and
safety, however, does not diminish its qualification under
the legislature’s express category of “land use regulations[ ]”
for purposes of ORS chapter 469. That same logic applies
to Ordinance 2012-04: As is clear from the text of the
ordinance, the context of its adoption as part of the county’s
Development Code, and the UCDC purpose statement, the
ordinance qualifies—under the legislative category of “land
use regulations” identified in ORS 469.504(1)(b)(A)—as
9
We also acknowledge that the legislature has determined, in other statutory
contexts, that a “land use” regulation simultaneously may relate to “public
health and safety.” See, e.g., ORS 197.723(5)(a) (statute establishing process for
designating regionally significant industrial areas; one particular subsection does
not apply to any “land use regulation that is necessary * * [t]o protect public
*
health or safety”). Indeed, as noted earlier, ORS 469.310 requires that “the siting,
construction and operation of energy facilities shall be accomplished in a manner
consistent with protection of the public health and safety,” which demonstrates
that the legislature intended that public health and safety considerations be part
of the siting decision for an energy facility.
Cite as 353 Or 465 (2013) 487
a “land use regulation[ pertaining to the siting of wind
]”
turbines.10
C. Council’s Application of ORS 469.504(1)(b(A) and
“Abide by Local Ordinances” Clause of ORS 469.401(2)
in its Final Order
We turn to the council’s application of the statutes
at issue in its final order approving Amendment #2. First,
the council applied ORS 469.504(1)(b)(A) and determined
that it was precluded from including Ordinance 12-04 as
part of the “applicable substantive criteria” to consider in
making a land-use compliance determination, because
the ordinance was not “in effect” on the Amendment #2
application date. As previously explained, we agree with the
council that (1) Ordinance 2012-04 qualifies as a “land use
regulation[ within the meaning of ORS 469.504(1)(b)(A);
]”
and, (2) because the ordinance was not “in effect” on the
Amendment #2 application date, it should not be considered
as part of the substantive criteria assessment set out
under that statute. The council did not err in applying ORS
469.504(1)(b)(A) in that manner.
Next, the council made a series of compliance
determinations applying various public health and
safety council-adopted standards, state statutes, and
administrative rules to Amendment #2. For example, the
council determined that, under ORS 469.503(1), the facility
complied with council-adopted standards identified in ORS
469.501, including standards for the design, construction,
and operation of the wind turbines, to avoid endangering
public safety and to include adequate safety devices and
10
Petitioners also cite Oregon statutes and administrative rules that pertain
to noise regulations, specifically, ORS 467.010 (declared policy that state has
interest in controlling noise emission pollution and that protection program should
be initiated) and OAR 340-035-0005 (ODEQ rule; state public policy to provide
coordinated statewide noise control program, to facilitate cooperation among
state and local governmental units in that regard, and to develop progressive and
cooperative noise-control program). In petitioners’ view, in linking noise prevention
with public health, those provisions support construing Ordinance 2012-04 as
a “public health and safety” ordinance subject to the “abide by local ordinances”
clause of ORS 469.401(2). The existence of those express public policies, however,
do not support characterizing Ordinance 2012-04—which, by its terms, was written
and adopted as a land-use regulation and therefore subject to consideration under
ORS 469.504(1)(b)(A)—as a public health and safety measure in the manner that
petitioners contend.
488 Blue Mountain Alliance v. Energy Facility Siting
testing procedures. The council noted in that regard
that several related site certificate conditions, expressly
included in the original final order approving the initial
site certificate, were necessary to “ensure public safety.”
See ORS 469.503(1) (before issuing site certificate, council
must determine that preponderance of evidence supports
conclusion that facility complies with council-adopted
standards under ORS 469.501); ORS 469.501(1) (council
shall adopt standards for energy facility siting, construction,
operation, and retirement, including standards addressing
structural, financial, environmental, and public health and
safety concerns; council has adopted those standards as
administrative rules); ORS 469.401(2) (site certificate shall
contain conditions for, among other things, “protection of the
public health and safety”). The council further determined
under ORS 469.503(3) that the facility, with Amendment
#2, would comply with “all other Oregon statutes and
administrative rules identified in the project order,” including
ODEQ noise regulations, subject to site certificate conditions
already identified in the original final order. Then, as to the
requirement in ORS 469.310 that the council ensure that
the siting, construction, and operation of energy facilities “be
accomplished in a manner consistent with protection of the
public health and safety,” the council identified previously
imposed “public health and safety” conditions addressing fire
protection, magnetic fields, and coordination with the Public
Utilities Commission regarding electrical transmission
line design. As to all those described components, the
council determined that nothing in Amendment #2 would
alter the earlier compliance findings from its original
final order approving the initial site certificate, so long as
previously imposed conditions continued to apply. We set
out the foregoing determinations—which petitioners do not
dispute—as an illustration of the council’s assessment and
application of various “public health and safety” standards,
rules, and site certificate conditions to Amendment #2.
We turn to the council’s application of the “abide
by local ordinances” clause of ORS 469.401(2). The council
expressly stated that “the site certificate holder is subject to
all applicable conditions and requirements contained in the
rules of the Council and in local ordinances and state law
Cite as 353 Or 465 (2013) 489
in effect on the date the amended site certificate is executed.”
(Emphasis added.) In that part of its final order, the council
did not mention Ordinance 2012-04; however, the council
previously had considered and rejected application of the
ordinance in determining whether the facility complied with
statewide planning goals under ORS 469.504(1)(b)(A) and
had incorporated an ODOE staff recommendation that it not
apply the ordinance under the “abide by local ordinances”
clause of ORS 469.401(2). As do the parties, we infer that
the council concluded that the proper characterization
of Ordinance 2012-04 as a “land-use regulation[ subject
]”
to evaluation under ORS 469.504(1)(b)(A) precluded its
application under the “abide by local ordinances” clause of
ORS 469.401(2).
In light of our statutory analysis and review of the
council’s legal evaluation of Ordinance 2012-04, we conclude
that the council did not err in its application of the “abide
by local ordinances” clause of ORS 469.401(2). As discussed,
the council correctly characterized Ordinance 2012-04 as
a “land use regulation[ under ORS 469.504(1)(b)(A) and
]”
correctly concluded that the effective date of the ordinance
precluded its consideration under that statute. Because the
council accurately characterized Ordinance 2012-04 as a
“land use regulation[ it also correctly concluded that the
],”
ordinance did not fall within the scope of the “abide by local
ordinances” clause of ORS 469.401(2).
IV. SECOND ASSIGNMENT OF ERROR:
ORS 469.401(2)—“LATER-ADOPTED” LAWS OR RULES
We turn to petitioners’ second assignment of error,
under the “later-adopted laws” clause of ORS 469.401(2),
which provides:
“The site certificate or amended site certificate shall
require both parties to abide by local ordinances and state
law and the rules of the council in effect on the date the
site certificate or amended site certificate is executed,
except that upon a clear showing of a significant threat to
the public health, safety or the environment that requires
application of later-adopted laws or rules, the council may
require compliance with such later-adopted laws or rules.”
490 Blue Mountain Alliance v. Energy Facility Siting
(Emphasis added.) Relying on the ODOE staff report, the
council in its final order declined to require compliance with
Ordinance 2012-04 as a “later-adopted law[ ]”under ORS
469.401(2). Petitioners assert that the ordinance qualifies
as a “later-adopted law[ that they presented substantial
],”
evidence to satisfy the “significant threat” requirement,
and that the council abused its discretion when it failed to
require compliance with the ordinance in Amendment #2.
Before turning to the merits, we address three
preliminary considerations. First, the parties do not appear
to dispute that the words “later-adopted laws or rules”
in ORS 469.401(2) mean laws or rules adopted after the
execution date of either the site certificate or an amended
site certificate, as applicable.11 Here, the county adopted
Ordinance 2012-04 before the council issued its final order
approving Amendment #2 and before the execution date
for Amendment #2—indeed, that amended site certificate
has not yet been executed, pending the outcome of this
proceeding. In the context of this assignment of error, then,
petitioners appear to treat the execution date for either the
initial site certificate or for Amendment #1—which both
predated adoption of Ordinance 2012-04—as the operative
trigger date that justifies treatment of the ordinance as a
“later-adopted law[ ].” That is, unlike their first assignment of
error—which exclusively focuses on the statutorily required
contents of Amendment #2—this assignment alternatively
contends that Amendment #2 should address the changed
circumstance of the county’s adoption of Ordinance 2012-04
after the execution date for either the original site certificate
or Amendment #1.
Second, we note that OAR 345-027-0090 provides
a process for requesting that the council require facility
compliance with later-adopted laws or rules under
the “significant threat” requirement set out in ORS
469.401(2). Such a process was not initiated here; instead,
petitioners raised (and continue to raise) their “later-
adopted” contentions in the context of challenging Helix’s
Amendment #2 application. Although the council and Helix
11
By contrast, the preceding “abide by local ordinances” clause of ORS
469.401(2) unequivocally applies to local ordinances, state law, and council rules in
effect on the execution date.
Cite as 353 Or 465 (2013) 491
disagree with petitioners on the merits, they do not argue
that petitioners should have raised this challenge through
the process established in OAR 345-027-0090.
Third, in disagreeing with petitioners on the merits,
the council and Helix do not appear to dispute petitioners’
assumption that a local ordinance may qualify under the
“later-adopted laws or rules” clause of ORS 469.401(2)
(emphasis added). As a matter of statutory interpretation,
we agree with that construction. At first blush, the more
precise wording of the preceding “abide by local ordinances”
clause—which requires inclusion in the site certificate of
compliance conditions as to “local ordinances and state law
and the rules of the council” in effect on the execution date
(emphasis added)—coupled with the lack of reference to
“local ordinances” in the “later-adopted laws” clause, could
be read to suggest that “later-adopted” laws include state
laws but exclude local ordinances. However, other aspects
of the statutory scheme suggest that “later-adopted laws”
include local ordinances. For example, subsection (3) of ORS
469.401 provides, in part:
“(3) * * After the site certificate or amended site
*
certificate is issued, the only issue to be decided in an
administrative or judicial review of a state agency or local
government permit for which compliance with governing
law was considered and determined in the site certificate
or amended site certificate proceeding shall be whether the
permit is consistent with the terms of the site certificate or
amended site certificate. * * *”
That subsection of ORS 469.401 uses the words “governing
law” to refer to the collective body of ordinances, state law,
and rules that are subject to site certificate compliance
requirement terms under subsection (2). That reference
in turn suggests that the similarly broad “later-adopted
laws” clause of subsection (2) incorporates local ordinances,
as well. By contrast, ORS chapter 469 consistently refers
to categories of applicable state law as “statutes” or “state
laws,” instead of using the broader term, “laws.” See ORS
469.503(3) (in determining facility compliance with “Oregon
statutes and administrative rules identified in the project
order,” if council identifies related conflicting certificate
conditions, council may resolve conflict but may not waive
492 Blue Mountain Alliance v. Energy Facility Siting
“any applicable state statute” (emphases added)); ORS
469.504(3) (similar waiver provision; refers to “applicable
statutes and state administrative rules” (emphasis added));
ORS 469.401(2) (refers to compliance with future-adopted
“applicable state and federal laws” to extent required under
state agency statutes and rules (emphasis added)). In light
of that statutory context, we agree with all parties that
“later-adopted laws” referred to in ORS 469.401(2) may
include local ordinances.
We turn to petitioners’ contention on the merits.
As noted, under ORS 469.401(2), the council “may” require
compliance with a “later-adopted law[ upon a clear
]”
showing of a significant threat to the public health, safety,
or the environment that requires application of such a law.
Because the council’s determination under that clause is
discretionary, we review the council’s decision to not require
compliance with Ordinance 2012-04 as a “later-adopted
law[ for abuse of discretion. See ORS 183.482(8)(b)(A)
]”
(court shall remand if it finds agency’s exercise of discretion
to be outside range of discretion delegated to agency by law).
In its final order approving Amendment #2, the
council incorporated by reference factual findings from both
the original final order approving the initial site certificate
and the final order approving Amendment #1 that the
facility would comply with ODEQ noise regulations, subject
to identified site certificate conditions. The council further
concluded that, subject to those same site certificate
conditions, the facility would comply with applicable
ODEQ regulations under Amendment #2. The council did
not specifically analyze petitioners’ contentions under the
“later-adopted laws” clause of ORS 469.401(2) in its final
order; instead, the order incorporated the ODOE staff report
analysis by reference.
The ODOE staff report recommended that the
council decline to find that a setback of less than two miles
posed a significant threat to public health and safety.
First, the report explained that the council previously
had determined—in an unrelated proceeding—that a 1/4
mile setback was sufficient and that the council since had
applied that smaller setback to other wind energy facilities.
Cite as 353 Or 465 (2013) 493
Second, the report explained that ODEQ noise regulations
established a “public health setback” that may exceed 1/4
mile depending on certain circumstances and that the
council applied those regulations to all energy facilities.
The report therefore recommended that the council follow
its own previously established 1/4-mile setback or a setback
that otherwise complied with ODEQ regulations, whichever
was greater. The report further noted that the council
expressly had declined to adopt a two-mile setback when the
same question had been raised in proceedings challenging
Amendment #1 the previous year; as noted, both the original
final order and the final order approving Amendment #1
had concluded that (with identified conditions in place)
the facility would comply with ODEQ noise regulations.
By incorporating the ODOE staff report by reference, the
council implicitly declined to require compliance with
Ordinance 2012-04 in Amendment #2 as a “later-adopted
law[ ].”
In challenging that decision, petitioners argue that
the council discounted their supporting documentation
demonstrating the adverse public health effects of wind
turbine noise and that the council failed to evaluate whether
petitioners had made a sufficient “significant threat” showing,
so as to justify requiring compliance with Ordinance 2012-04
as a “later-adopted law[ ] under ORS 469.401(2). Petitioners
are correct that, in its assessment of the “significant threat”
question, the council expressly focused on its own precedent
and, in particular, the applicable ODEQ regulations,
rather than on petitioners’ arguments and documentation.
However, after viewing the relevant final order components
as a whole, we understand the council to have declined
to require compliance with Ordinance 2012-04 because
the applicable ODEQ regulations and council precedent
countered petitioners’ proffered “significant threat” showing.
We conclude that the council did not abuse
its discretion in declining to require compliance with
Ordinance 2012-04 in Amendment #2 as a “later-adopted
law[ under ORS 469.401(2). As part of issuing both
]”
its original final order and its final order approving
Amendment #1, the council previously had determined
494 Blue Mountain Alliance v. Energy Facility Siting
that the facility was subject to the ODEQ noise regulations
and that the facility would comply with those regulations.
In succinctly addressing petitioners’ contentions in this
Amendment #2 proceeding, the council continued to apply
its earlier analysis from the Amendment #1 proceeding and
determined that its own precedent, facility compliance with
ODEQ regulations, and previously imposed site certificate
conditions effectively negated petitioners’ “significant
threat” contentions. The council’s reliance on the ODEQ
regulations as part of assessing petitioners’ “significant
threat” contention fell within its statutory authority under
ORS 469.401(2).12 It follows that its ultimate determination
that the “later-adopted laws” clause of that statute did not
require compliance with Ordinance 2012-04 also fell within
its authority.
V. THIRD ASSIGNMENT OF ERROR:
OAR 345-027-0070(7)—CONTESTED CASE
PROCEEDING
Petitioners’ final assignment of error is that the
council erred in denying their requests for a contested
case proceeding. They rely on OAR 345-027-0070(7), which
provides, in part:
“To determine that an issue justifies a contested case
proceeding under section (8),[13] the Council must find that
the request raises a significant issue of fact or law that may
affect the Council’s determination that the facility, with the
change proposed by the amendment, meets an applicable
standard. If the Council finds that the request would not
affect the Council’s determination if the alleged facts were
found to be true but that those facts could affect a site
certificate condition, the Council may deny the request and
may adopt appropriate conditions. * * *”
12
And, even if the council had determined that petitioners had established a
“significant threat,” it nonetheless had discretion under ORS 469.401(2) whether
to treat Ordinance 2012-04 as a “later-adopted law[ ].”
13
OAR 345-027-0070(8) provides, in part, that the council “shall determine
whether any issue identified in a request for a contested case proceeding justifies
a contested case proceeding[.]” See also OAR 345-027-0070(6) (any person may ask
council to hold contested case proceeding on proposed order; written request must
include description of contested issues and statement of facts believed to be at
issue).
Cite as 353 Or 465 (2013) 495
(Emphasis added.) Petitioners focus on the “significant
issue of fact or law” component, arguing that their legal
and factual submissions to the council as to the proper
application of ORS 469.401(2) and Ordinance 2012-04, and
the noise impact of wind turbines on public health and
safety, satisfied that component. Petitioners additionally
contend that a contested case proceeding would have
provided them the opportunity to further develop their legal
analysis and more persuasively establish that a setback
of less than two miles would create a “significant threat”
to public health and safety under the second clause of the
second sentence of ORS 469.401(2). As to the “applicable
standard” component of OAR 345-027-0070(7), petitioners
characterize the alternative 1/4-mile setback and ODEQ
regulations as insufficient alternative “standards” to the
two-mile setback required in Ordinance 2012-04; they also
characterize their proffered construction of ORS 469.401(2)
as a “standard” that applied to the council’s determination
under OAR 345-027-0070(7).
OAR 345-027-0070(7) requires that petitioners raise
“a significant issue of fact or law” and also that the issue
must be one that may affect the council’s determination
that the facility, with the proposed amendment, would
“meet[ an applicable standard.” (Emphasis added.) In the
]
context of OAR chapter 345, the phrase “meets an applicable
standard” in OAR 345-027-0070(7) has a particular meaning.
ORS 469.501 requires the council to adopt “standards
for the siting, construction, operation and retirement of
[energy] facilities,” and the council has done so.14 As part
of the site certificate application process, the council must
determine that the facility complies with those council-
adopted standards, ORS 469.503(1), just as it also must
determine whether the facility complies with statewide
planning goals, ORS 469.503(4), and whether it complies
14
See OAR 345-022-0010 - 345-022-0120 (setting out standards relating to
applicant’s organizational expertise; facility structure; soil protection; land use
(including compliance with statewide planning goals); protected areas; retirement
and financial assurance; fish and wildlife habitat; threatened and endangered
species; scenic resources; historic, cultural, and archaeological resources;
recreation; public services; and waste minimization); OAR 345-024-0010 - 345-024-
0720 (setting out specific standards for siting facilities, including wind facilities,
transmission lines, and facilities that emit carbon dioxide).
496 Blue Mountain Alliance v. Energy Facility Siting
with other state statutes and rules identified in the project
order, ORS 469.503(3). Thus, the question under OAR 345-
027-0070(7) is whether the council erred in determining
that petitioners raised no significant issue of fact or law
that may have affected the council’s determination under
ORS 469.503(1) that the facility, with Amendment #2, would
meet an applicable council-adopted standard arising under
ORS 469.501.
Here, the council’s determination under OAR
XXX-XX-XXXX(7) was summary in nature but incorporated
by reference extensive discussion from the ODOE staff
report. That report analyzed petitioners’ contentions under
the second sentence of ORS 469.401(2) and recommended
that the council reach the same determinations that we
now have affirmed: (1) Ordinance 2012-04 qualifies as a
“land use regulation[ under ORS 469.504(1)(b)(A) and
]”
therefore should not be considered under the “abide by local
ordinances” clause of ORS 469.401(2); and (2) in light of
applicable council precedent, the ODEQ noise regulations,
and the related procedural background as to this site
certificate, the council should decline to require compliance
with Ordinance 2012-04 as a “later-adopted law[ ]”under
ORS 469.401(2). Significantly, the report also reiterated that
the final order approving Amendment #1 had determined
that the two-mile setback did not apply to any of the
council’s “compliance” determinations under ORS 469.503—
including compliance with council-adopted standards under
ORS 469.503(1)—and that Amendment #2 raised no new
facts or circumstances that justified altering the council’s
earlier ORS 469.503 compliance determinations. The report
expressly recommended that the council find that petitioners
had not satisfied the threshold requirements under OAR
345-027-0070(7). By incorporating the ODOE staff report by
reference, the council adopted the staff analysis and made
the recommended determination.
We conclude that the council did not err in rejecting
petitioners’ requests for a contested case proceeding. The
council determined that petitioners’ legal and factual
claims—even to the extent that they may have raised
“significant issue[s] of fact or law” in the abstract—did not
Cite as 353 Or 465 (2013) 497
raise any significant issue or fact or law that may have
affected the council’s determination under ORS 469.503(1)
that the facility “meets an applicable standard” under OAR
XXX-XX-XXXX(7); instead, petitioners focused on the council’s
application of the second sentence of ORS 469.401(2),
regarding amended site certificate contents. The council’s
determination was permissible, given the narrow wording
of OAR XXX-XX-XXXX(7). See Don’t Waste Oregon Com. v.
Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994)
(where council’s plausible interpretation of own rule cannot
be shown to be inconsistent with wording of rule, context,
or any other source of law, no basis exists for this court to
conclude that council interpreted rule “erroneously”).
VI. CONCLUSION
To summarize, we conclude that (1) the council correctly
characterized Ordinance 2012-04 as a “land use regulation[ ]”
subject to consideration under ORS 469.504(1)(b)(A)
and properly declined to consider the ordinance under that
statute because it was not “in effect” on the Amendment
#2 application date; (2) because the ordinance qualified as
a “land use regulation[ under ORS 469.504(1)(b)(A), the
]”
council correctly declined to require compliance with the
ordinance under the “abide by local ordinances” clause of
ORS 469.401(2); (3) the council did not abuse its discretion
in declining to require compliance with the ordinance as
a “later-adopted law[ and (4) the council did not err in
]”;
denying petitioners’ requests for a contested case proceeding.
We therefore affirm the council’s final order approving
Amendment #2.
The Final Order Denying a Contested Case
Proceeding and Approving Amendment #2 of the Energy
Facility Siting Council is affirmed.