Posted by: Patricia Salkin | January 25, 2015

OR App. Court Fails to Find Actual Bias in Land Use Decision Regarding Gas Pipeline

Oregon Pipeline Company, LLC (OPC) petitioned for review of two decisions of the Land Use Board of Appeals (LUBA) that related to OPC’s application for land-use approvals from Clatsop County for a 41–mile segment of a natural gas pipeline. In November 2010, the Clatsop County Board of Commissioners approved the application, and parties that opposed the application appealed that decision to LUBA. Before the county provided the record to LUBA, the board, with three newly elected commissioners, voted to withdraw its approval and reconsider its decision. OPC challenged the board’s withdrawal through a mandamus action in the circuit court. The circuit court dismissed the mandamus action, and the court affirmed that dismissal on appeal.

OPC first contended that LUBA erred in not reversing the county’s reconsideration decision based on ORS 215.427 and ORS 197.835(10)(a)(B). Second, OPC asserted that LUBA should have directed the county to reconsider its January 2011 decision to withdraw its approval because Huhtala participated in that earlier vote. Third, OPC maintained that LUBA erred in concluding that the county’s withdrawal of the November 2010 decision was timely and that LUBA was required to grant the county’s request. Finally, OPC objected to LUBA’s conclusion that the three newly elected commissioners had adequately disclosed ex parte contacts.

The court concluded that the county had not failed to comply with the time limits prescribed by the mandamus statute because “the county took ‘final action’ within the 150–day time limit; the circumstance that LUBA review of that decision, including the withdrawal and reconsideration process set out in ORS 197.830(13)(b), was available thereafter does not alter that conclusion.” It further held that mandamus was not available to OPC because it had received a final action, in the form of the November 2010 approval, within the required 150 days. As to the question of whether Commissioner Huhtala was biased, the LUBA reviewed over a half-dozen circumstances that OPC offered as evidence of bias. Huhtala made statements against Calpine LNG’s attempts to receive land-use approvals for an LNG terminal in Warrenton, saying that he “hopes a new port commission could take a stand against the Calpine lease.” Huhtala also declared as part of his campaign issues and goals, “It could become the policy of the Port of Astoria that we oppose the construction of a liquified natural gas facility anywhere in the Columbia River Estuary and direct staff to do everything possible to make that happen.” Based on the totality of these statements the court found that in none of those instances did Huhtala explicitly, or by necessary implication, commit to an irrevocable position on the merits of OPC’s application. Accordingly actual biased was not established, and the case was remanded.

Columbia Riverkeeper v Clatsop County, 2014 WL 7184237 (OR App. 12/17/2014)

The opinion can be accessed at:

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