Chang v. Clackamas County

(1) Under OAR 660-006-0025(5)(b), in determining whether a proposed solar facility will not significantly increase risks to fire suppression personnel, the decision-maker must compare the fire hazard risks posed by the existing use to those posed by the proposal. (2) Ineffective conditions may result in remand where the condition is necessary to ensure compliance with relevant approval criteria.

The subject property is approximately 43.72 acres and zoned Agriculture Forest (AG/F). Intervenor applied for conditional use approval to site a 10-acre solar facility on a portion of the subject property currently used for growing Christmas trees. Under OAR 660-006-0025(5)(b) and Clackamas County Zoning and Development Ordinance (ZDO) 406.05(A)(1)(b), commercial utility facilities for generating power are allowed as a conditional use in the AG/F zone so long as the proposal will not significantly increase fire hazard, fire suppression costs, or risks to fire suppression personnel. The county approved the application and this appeal followed.

During the local proceeding, petitioner argued the solar facility would significantly increase risk to fire suppression personnel because solar panels cannot be turned off and therefore represent a live danger. The county agreed with intervenor that, with proper training, fire suppression personnel would not be subject to significantly increased risk, and imposed a condition requiring intervenor to offer such training to the local fire district. In the first assignment of error, petitioner argues the county’s findings are inadequate because (1) they fail to compare the risks on the solar facility to those on the existing tree farm and (2) the condition is ineffective to ensure that significant risks will be mitigated. LUBA agrees with petitioner that, for purposes of ZDO 406.05(A)(1)(b), the decision-maker must compare the fire hazard risks posed by the existing use to those posed by the proposal, that the evidence demonstrates that solar facilities pose a substantial and unique safety risk to fire suppression personnel, and that the condition is inadequate to ensure that significant risks will be mitigated. Remand is therefore necessary for the county to make findings regarding the existing risks to fire suppression personnel, to meaningfully evaluate and compare those risks with the risks posed by the solar facility, and to impose adequate conditions. The first assignment of error is therefore sustained, in part.

Under ZDO 1003.02(B), no development shall be allowed in areas of land movement unless identified hazards are stabilized or the applicant provides an engineering geologic study establishing that the site is stable. During the local proceeding, petitioner submitted a map from the Department of Geology and Mineral Industries characterizing a portion of the subject property as a moderate landslide risk. County planning staff responded that, while there is a risk of landslide at some point in geologic time, there is no currently mapped landslide scarp in that location. In approving the application, the county interpreted “areas of land movement” as areas where a landslide or earth movement has already occurred—not where such activity could occur—and therefore concluded that ZDO 1003.02(B) was not applicable. In the second assignment of error, petitioner argues the county misconstrued ZDO 1003.02(B). LUBA agrees with intervenor that the phrase “areas of land movement” contains no forward-looking elements or use of the future tense and that the plain meaning of the term “movement” supports the county’s interpretation. Because substantial evidence in the record supports the county’s conclusion that the area of land proposed to be developed is not an area of land that has moved, the second assignment of error is denied.

Under ZDO 1003.02(D), diversion of storm water into areas of land movement is prohibited. In the third assignment of error, petitioner argues the county’s findings that this provision would be satisfied are inadequate and unsupported by substantial evidence. Specifically, petitioner points to an erosion control plan map showing that storm water will flow toward areas of land movement. Intervenor responds that, while water will continue to flow downhill, the development will not “divert” water in that direction because it will not modify the natural drainage on the property. While LUBA agrees with intervenor that evidence that water will flow downhill does not necessarily constitute evidence that the development will divert it in that direction, LUBA agrees with petitioners that the county itself did not adopt findings that the development would not modify the natural drainage on the property. While evidence in the record may support such findings, remand is necessary for the county to adopt them. The third assignment of error is therefor denied and the county’s decision is REMANDED.