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Ruling provides new rationale for blocking Oregon solar project

The Oregon Court of Appeals has disagreed with an earlier land use decision but has nonetheless reversed Jackson County’s approval of an 80-acre solar project on farmland.
Mateusz Perkowski

Capital Press

Published on June 1, 2018 9:28AM

The Oregon Court of Appeals has disagreed with an earlier land use decision but has nonetheless reversed Jackson County’s approval of an 80-acre solar project on farmland.

Capital Press file photo

The Oregon Court of Appeals has disagreed with an earlier land use decision but has nonetheless reversed Jackson County’s approval of an 80-acre solar project on farmland.

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The Oregon Court of Appeals has provided a new legal rationale for why an 80-acre solar power project on farmland in Jackson County was improperly approved.

Last year, the county government granted Origis Energy, the project’s developer, an exception to Oregon’s land use goal of preserving farmland, but the decision was reversed by the state’s Land Use Board of Appeals.

According to LUBA, the solar project didn’t qualify for the exception because it’s not dependent on a “unique resource” that would require converting farmland for industrial development.

It’s not unusual for farmland to be “flat, 80 acres in size and exposed to the sun” and the project’s proximity to an electrical substation in Medford also doesn’t justify the exception, LUBA’s ruling said.

Approving the project on this basis would undermine the purpose of “urban growth boundaries” by allowing development on farmland near cities, the ruling said.

The Oregon Court of Appeals has now disagreed with this interpretation of the state’s land use law but has still reversed the county’s approval of the project.

The relevant statute provides a list of “unique resources” that would justify converting farmland, including “geothermal wells, mineral or aggregate deposits, water reservoirs, natural features, or river or ocean ports.”

However, this list is “not a description of the entire group of possible advantageous locales” and the “locational attractor” does not have to be found exclusively on rural land, according to the Oregon Court of Appeals.

Even so, the appellate court has concurred with LUBA that Jackson County improperly used the exception because a solar power project is not an “industrial development” under land use rules.

The county evaluated the project with criteria for such an “industrial development,” but an “energy facility” doesn’t fall into this category, according to the Oregon Court of Appeals.

The county’s other justification for the project — conserving energy is encouraged by another Oregon land use goal — did not fare any better in the ruling.

The Oregon Court of Appeals sided with LUBA, finding that this goal simply means development should be “managed and controlled” to conserve energy.

“Neither the text of the goal nor its guidelines ‘require’ the county to develop or facilitate the development of any particular land use, much less large solar power generation facilities,” the ruling said.

Capital Press was unable to reach attorneys for Origis Energy or the Oregon Solar Energy Industries Association.

Though the ruling has blocked the project for now, it’s possible the developer will seek another pathway under land use law to gain approval for it, said Meriel Darzen, attorney for 1,000 Friends of Oregon, a conservation group that opposed the project.

However, the developer would need to re-apply to the county for permission and begin the process anew, she said. “They will have to start over if they want to try again.”

While it’s too early to say what legal precedent the ruling will have for other renewable energy projects, 1,000 Friends of Oregon is satisfied with the outcome, Darzen said.

“From our perspective, it’s a 100 percent victory,” she said.



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