Oregon Pipeline Company v. Clatsop County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 06-27-2014
  • Case #: 2013-106
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

The threshold for finding bias for county commissioners is high due to the nature of the position mixing executive, legislative, and judicial functions; participation as a party opponent in a related proceeding and bringing a vote unnecessarily shortly after taking office are strong indicators of bias.

This case presents a long procedural history dating back to October 2009, when Oregon Pipeline Company (OPC) sought county land use permits to build a section of natural gas pipeline. On appeal to LUBA, OPC challenged an October 16, 2013 reconsideration by the Clatsop County Board of Commissioners (BOC) where BOC denied the permits.

OPC contended that BOC’s decision to extend the deadline for decision on December 13, 2010 and its decision to withdraw its decision for reconsideration, were actions taken to “avoid the requirements of ORS 215.427 or 227.178.” LUBA agreed that the decisions could be considered “actions” for the purposes of the statute, but held that the November 8, 2010 approval of the permits was a “final action,” and that subsequent actions taken were not part of the original 150-day deadline at issue. LUBA further found the record insufficient to support a contention by OPC that the real reason for the delays was for BOC to wait for newly elected commissioners, who would withdraw reconsideration, to be seated.

OPC next contended that three BOC members were biased and should not have participated in the decision to withdraw reconsideration. Citing Eastgate Theatre v. Bd. of County Comm’s, LUBA found that due to the nature of county commissioners, there is a high threshold for disqualifying them due to bias. The Board concluded that commissioners Birkby and Lee were not biased despite making prior statements in opposition to a pipeline, but that Huhtala was biased due to participation as a party opponent in a previous permit application which was part of the same project and evidenced by the timing of the vote to withdraw reconsideration just days after taking office. Because of this bias and error with Columbia River Resource Base Maps, LUBA remanded the county’s decision. REMANDED.