SALEM — A solar power developer claims that Oregon’s land use laws don’t prohibit the construction of an 80-acre solar project on high-value farmland in Jackson County.
Origis Energy had won the county’s approval to build the facility near Medford, Ore., but that decision was overturned last year by Oregon’s Land Use Board of Appeals.
The developer is now seeking to convince the Oregon Court of Appeals that LUBA wrongly found the project doesn’t qualify for an exception to the state land use goal of preserving farmland.
During Jan. 5 oral arguments in Salem, Ore., attorneys for Origis claimed that if their project didn’t qualify for an exception to build on farmland, it’s difficult to envision any renewable energy facilities that would.
Federal and state government priorities for the development of renewable energy provide a valid reason for the exception, said Josh Newton, an attorney for an Origis subsidiary developing the site.
“The county properly considered those policies in justifying its decision,” Newton said.
Contrary to Jackson County’s opinion, LUBA decided that building new renewable energy facilities isn’t a requirement of the state land use goal of improving energy conservation.
The proximity of the proposed 80-acre solar project to an electrical substation roughly a mile away in Medford should not have been relevant to the county’s approval of the project, according to LUBA.
It’s not unusual for substations to exist in the outer industrial zones of an “urban growth boundary,” so this doesn’t justify building on nearby farmland, the ruling said.
Flat ground and access to sunlight are also hardly unique, so siting a solar facility at that location isn’t justified by those factors, LUBA said.
The developer argued there was a demonstrable need to locate the solar facility on farmland.
“There were no other parcels of land available for the project,” said Newton, its attorney.
The hurdles to renewable energy development on farmland would be practically insurmountable under the reasoning of 1,000 Friends of Oregon — a nonprofit that opposes the project — and Oregon’s Department of Land Conservation and Development, he said.
“I did not hear a viable path for an exception anywhere in the state,” Newton said.
Meriel Darzen, an attorney for 1,000 Friends of Oregon, countered that renewable energy policies don’t override Oregon’s protections for farmland.
“These solar arrays don’t actually have to be on rural lands,” she said. “There’s nothing about federal and state energy policy that pushes it onto farmland.”
The desire to put renewable energy facilities on farmland is no different than the desire to build residential subdivisions or other developments, she said.
“If you want to put it in a certain place, you have to go through the appropriate pathway,” Darzen said.
Just because Origis didn’t obtain its desired outcome in this case doesn’t mean that LUBA didn’t appropriately apply state land use law, said Denise Fjordbeck, attorney for DLCD.
“Exceptions are supposed to be exceptional,” she said. “It should be an uphill lift.”
Solar facilities are allowed on prime farmland in Oregon as long as they’re under 12 acres and receive a conditional use permit from the local county government.
Projects larger than that size must contain an exception to Oregon’s goal of conserving farmland, which means the development site must contain a unique resource or a comparative advantage over other locations.
Farmland preservation groups such as 1,000 Friends of Oregon don’t oppose solar development but they argue facilities should be on marginal lands or other areas where they won’t disrupt agriculture and take high-value soil out of production.