• Siting Utility Facilities in EFU Zones -- EFU Alternative Site Test Clarified by LUBA
  • April 30, 2003 | Author: Kelly Shafer Hossaini
  • Law Firm: Miller Nash LLP - Portland Office
  • Siting a utility facility in an Exclusive Farm Use (EFU) zone is a process that contains numerous traps for the unwary. One such trap is the alternative site analysis required by Oregon law. Two recent LUBA decisions reinforce the importance of an alternative site analysis when attempting to site a utility, such as a wireless communications facility, on EFU-zoned land. Central Klamath County Community Action Team v. Klamath County, LUBA No. 2001-043 (2001); Jordan v. Douglas County, LUBA No. 2001-045 (2001). Both decisions make it clear that to satisfy the analysis, the applicant must engage in a thorough and careful analysis of all reasonable alternative sites and provide the county with a thorough accounting of those sites and the reasons for their rejection.

    ORS 215.213(1)(d) and ORS 215.283(1)(d) allow "[u]tility facilities necessary for public service" to be established in an EFU zone as permitted uses, but "necessary" in this context is defined by ORS 215.275. ORS 215.275(1) states that a utility facility established under ORS 215.213(1)(d) or ORS 215.283(1)(d) is necessary for public service if the facility must be sited in an EFU zone in order to provide the service. In other words, even though utility facilities appear to be permitted uses in the EFU zones, an applicant must show that non-EFU-zoned parcels that are reasonable alternatives have been considered and rejected. ORS 215.275(2) lists the factors that must be used to evaluate the alternatives. These include technical and engineering feasibility, locational dependence, and lack of available urban and nonresource lands. Once an applicant establishes that all reasonable alternatives to EFU land have been considered and rejected, it need not justify the particular EFU parcel chosen by proving it is least disruptive to agricultural practices. Dayton Prairie Water Assn. v. Yamhill Cty, 170 Or App 6, 11 P3d 671 (2000). The applicant need only show that the facility must be in the EFU zone.

    In Central Klamath County, the petitioner appealed Klamath County's approval of a 185-foot wireless communication facility on EFU land. In its decision, LUBA agreed with the petitioner that the record in the case did not clearly support "a finding that the proposed use must be sited in the EFU zone under the criteria at ORS 215.275." LUBA said that such a showing is a "demanding standard."

    LUBA explained that "[a]t the core of the necessity test is the requirement that the local government determine that the utility facility cannot feasibly be located on non-EFU land, which in turn requires that the local government consider reasonable alternatives to siting the facility on EFU-zoned land." LUBA noted that the petitioner had identified a number of alternative non-EFU sites not considered by the County, but the applicant had rejected the consideration of these sites, arguing that it had established a search ring of optimal telecommunication coverage area and that it was implicit in that evidence that other non-EFU sites were considered and rejected. LUBA rejected this "implicit alternatives analysis" because LUBA could not say that "an implicit alternatives analysis that does not in fact consider any alternatives, or explain why no alternatives need be considered, 'clearly supports' a determination that the proposed facility must be sited on EFU-zoned lands under the ORS 215.275 factors."

    In Jordan, the petitioners appealed a county decision to approve a 120-foot cellular tower on EFU-zoned land. The applicant prevailed in this case, however, because LUBA found that Douglas County and the applicant had considered an adequate number of reasonable alternatives to locating the tower on the EFU site, and had carried their burden in showing that all the alternative sites were rejected due to locational dependence and technical and engineering feasibility. . LUBA said that the number of reasonable alternatives that an applicant must consider is a case-specific inquiry, and that in this case, the applicant "met the initial requisite threshold that is required under ORS 215.275 for consideration of reasonable alternatives." LUBA went on to explain that an applicant for a utility facility does not need to consider every hypothetical possibility for siting the facility on non-EFU land. However, if an opponent is able to identify an alternative site with reasonable specificity to show that it is a feasible alternative, the local government must consider the site. In Jordan, the petitioners failed to offer any such reasonable alternatives.

    Central Klamath County and Jordan send a clear message to applicants wishing to site a wireless communications facility in an EFU zone: Do the requisite research prior to submitting the application, and be specific about which alternative, non-EFU-zoned sites were considered and why, under ORS 215.275(2), each was rejected. It is not enough to submit an application that only explains the reasons for selecting the proposed site. It is also not enough to explain in general terms why alternative non-EFU sites within the search ring are not feasible. Even if a jurisdiction allows an applicant to submit such a general analysis, opponents may take the applicant to task for not being specific enough about alternative sites and the reasons for rejection. LUBA has also made it clear through these two cases that an applicant will be required to consider any reasonable alternatives brought to its attention with sufficient specificity. Accordingly, it is more efficient to anticipate and address such challenges during the research stage of the application process than to address them through the appeals process later.