Commissioners vote against Blue Marmot

Commissioners Mark Albertson, l-r, James Williams, and Barry Shullanberger are joined by Lake County Planning Dir. Darwin Johnson at a special session to vote on the proposed Blue Marmot Solar Facility.

After multiple public hearings of the Lake County Planning Commission and the Lake County Commissioners over the proposed Blue Marmot Solar Facility north of Lakeview, the Commissioners held a special session on Wednesday, Nov. 10 and voted 2 – 1 to deny the conditional use permit (CUP). EDP Renewables had not responded as of press time as to whether they plan to appeal the decision to the Oregon Land Use Board of Appeals (LUBA).

The meeting, while open to the public, was only for the Commissioners to deliberate amongst themselves, and to ask clarifying questions of either Legal Counsel Jim Bailey, Lake County Planning Dir. Darwin Johnson or Blue Marmot representatives. Many people who have testified against the project at multiple levels attended the meeting.

The marathon of a meeting — with breaks it lasted approximately five hours — led the Commissioners to ask questions among themselves, bring up issues that they had with the CUP and address the reasons they either voted to deny the application or to approve the application brought forth by EDP Renewables.

Commissioner James Williams began the meeting by reviewing the CUP application that the Commissioners had in front of them including the four recommendations from the Lake County Planning Commission, with some additional conditions to consider if they decided to move forward with the project. Williams pointed out that since this is still new for them, the Commissioners can attach conditions of approval before construction begins.

Commissioner Barry Shullanberger noted that the right of way permit for the transmission line from the solar facility to the proposed step up substation had not been completed. Shullanberger asked Logan Day, project manager for EDP Renewables, if the company would have enough room along the right of way.

“We hired an engineering firm to see if there would be enough room along the right of way for the transmission lines, and they said there would be enough room,” said Day.

Commissioner Mark Albertson questioned why the right of way permit was not part of the CUP, and why it was not in the plan in front of the Commissioners. Day responded that the right of way permit would be acquired later, but would be part of the final agreement and engineering of the solar facility. Albertson said that the right of way permit should have been included as part of the CUP application.

“I am concerned about the conservation easement. I want to make sure that the wildlife mitigation area is only for the life of the project. I do not feel comfortable approving a project with a conservation easement that is permanent,” said Williams.

Albertson said some of his concerns were that the wildlife mitigation agreement is not agreed to yet with Oregon Department of Fish and Wildlife (ODFW) and the right of way permit had not been secured. EDP Renewables has a draft agreement in place, though the question of whether the mitigation ratio would be 1.8:1 or 2:1 has been brought up multiple times. Williams noted that it is the Commissioners who set the ratio and make it a condition of approval before construction can begin.

“There have been times in the past on other approved projects where the ratio has been 1:1 or even higher than 2:1. We set the ratio and it is up to the applicant to meet those requirements,” said Williams.

Albertson said that the proposed solar facility does not meet with his definition of social and cultural characteristics of Lake County. He noted that some ranchers have been living around the area for many generations and that the proposed solar site would impact their ability to continue running their operations.

Albertson and Shullanberger both question the definition of arability of land. Albertson noted that a portion of the property is considered arable land. Albertson questioned whether crops had been grown on that land, and he said he did not believe the report that said no irrigated crops have been grown on that property.

“The way the law works it depends on how much of the land is arable or not to determine if it is considered arable. If the land is predominantly non-arable then under the law the land is considered non-arable land,” said Tim McMahan, attorney for Stoel Rives LLP, the firm representing EDP Renewables.

Shullanberger expressed concern about the cattle that currently use the property. He said even though the cattle only use the property for a couple of months out of the year, it would force the lessee to find a different location for their cattle. Shullanbeger also said it was his opinion that the land could be used for dry land crops and other pastures.

One of Albertson’s major concerns was the impact that the proposed solar facility would have on antelope and other big game herds during the winter. It was noted by the Commissioners and ODFW that the big game winter range habitat maps are both a compromise between Lake County and State of Oregon and are from 1995. While animals currently use the proposed solar facility site, that land is not under the big game winter range habitat as defined by the ODFW map.

“The solar plan would push antelope and other big game closer to Hwy 395, a major road, and this will lead to an increased chance of collisions between vehicles and animals,” said Albertson.

Albertson said he believed the property could never be restored for agricultural use after the life of the solar facility and that if the property could be used for housing at some point in the future then the conservation easement for the wildlife mitigation plan would be an issue.

“The applicant has met and consulted with ODFW and they have reached an agreement. This is a step above most applicants, and it was even approved before the project went before the Planning Commission,” said Johnson.

An issue discussed amongst the Commissioners and Johnson was over both the Lake County Comprehensive Plan (LCCP) and the Lake County Zoning Ordinance (LCZO); the documents are a major talking point of the contested Obsidian Solar Facility in Fort Rock.

Albertson read the LCCP that described that piece of property as a place for rural and farm residential homes for the community — though it was never zoned that way and has remained zoned A-2 as rangeland. Williams said that while it was proposed as farm residential, which means 10-acre lots, in the LCCP it was never incorporated into the LCZO. There was no agreement among the Commissioners over whether the LCCP or the LCZO would take precedent, with Albertson arguing that the LCCP language should be followed even if that land was not zoned into the LCZO as farm residential.

Johnson said there are times the maps and the zoning do not always match up, and that the proposed solar facility site is designated as rangeland — which allow more uses than land designated as agriculture. Johnson said that he has been working on making sure the maps online match up with what has been zoned through ordinance, but noted that there might still be some mistakes.

“We have to go by what the land is currently zoned as and what is not necessarily in the comprehensive plan if the zoning has not happened,” said Williams.

Johnson said even if the land was going to be homes, it would still need to go through a Goal 3 exception hearing process — similar to Blue Marmot — and that there could still be objections from neighbors to homes in that area no matter how big the lots.

Albertson said that housing is a major issue in the community currently, with many unfilled positions and not a lot of housing stock in the area. He said he is concerned that locking up that land as solar development would not allow residences to be built. Johnson said that the Department of Land Conservation and Development (DLCD) would need to approve the housing and that there is still lots and land available for housing that are unfilled and within the Urban Growth Boundary.

“Before DLCD approves the need for more housing stock they are going to do a study of the land that is available, and there are still areas where housing has been started and still open lots,” said Johnson.

Albertson said that he was looking for ways to expand housing for people who did not want to live in the town or urban growth boundary. There was a back and forth about whether the land could be turned into homes in the future. Albertson said additional homes are needed to meet current needs, especially for people who want to live outside of the town area. Johnson noted that the land if — it was going to turn into housing — would still need to go through the ordinance process, and there is no guarantee of success.

All three Commissioners expressed concern that the decommissioning plan is not adequate and that there are still a lot of unknowns. Williams said he was concerned that there would be the chance that the cost of decommissioning the site and clean up would fall to the County.

“The cost of the decommissioning is a big amount for a company to eat and an even bigger amount for a rural county to eat,” said Williams.

Shullanberger made a motion to deny the CUP from EDP Renewables, and Albertson seconded. Albertson and Shullanberger voted to deny the application and Williams voted not to deny the application.

Albertson noted that the impacts on rural housing, right of way, a fire plan, wildlife mitigation and a road use agreement all not being in place were the main reasons he was voting against the project.

“This is a difficult decision for many different reasons. I wish EDP Renewables had collaborated more with the County. I felt the project has been done with little regard to the impact it would have on its neighbors and the type of partner EDP would be with the County,” said Shullanberger.

He said that the impact on livestock and range land, along with the mitigation plan and decommissioning plan were the reasons he voted against the project.

Williams said he did not agree with all the reasons the other two Commissioners voted against the project. He said that some of the reasons that were articulated by Albertson and Shullanberger were not applicable to the law and rules and centered more on individual feelings of the Commissioners.

“We have never denied an application for the reasons that have been given. In the past the Commissioners have approved solar projects on range land, and that solar is allowable use on agricultural and range land. I feel that the CUP meets the rules and criteria set down by the State, and that with conditions it should be approved,” said Williams.

In a post on the Blue Marmot Solar Park Facebook page, EDP Renewables said that they thanked the Commissioners, residents and community stakeholders who provided feedback.

As of press time neither EDP Renewables nor its legal counsel have returned messages on whether they will appeal the decision to the Oregon Land Use Board of Appeals (LUBA). The company has 21 days from the day the notice of decision is mailed by Johnson.

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