Cyrus v. Deschutes County

96 P.3d 858, 194 Or. App. 716, 2004 Ore. App. LEXIS 1016
CourtCourt of Appeals of Oregon
DecidedAugust 25, 2004
Docket2003-153; A124563
StatusPublished
Cited by1 cases

This text of 96 P.3d 858 (Cyrus v. Deschutes County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cyrus v. Deschutes County, 96 P.3d 858, 194 Or. App. 716, 2004 Ore. App. LEXIS 1016 (Or. Ct. App. 2004).

Opinion

BREWER, P. J.

Petitioner Central Electric Cooperative, Inc. (CEC) seeks review of a Land Use Board of Appeals (LUBA) decision remanding Deschutes County’s approval of CEC’s request to alter a portion of its electric utility infrastructure. Because, as explained below, CEC challenges LUBA’s interpretation of a governing statute, we review LUBA’s conclusions in that regard for errors of law. ORS 197.850(9)(a); Kelley v. Clackamas County, 158 Or App 159, 165, 973 P2d 916 (1999).

We take the facts from the record and LUBA’s order. Cyrus v. Deschutes County, 46 Or LUBA 703 (2004). In 1962, the Public Utility Commission (PUC) granted CEC exclusive authority to provide electric service for the Black Butte Ranch and Sisters areas in Deschutes County. Before 1972, when the county first adopted a zoning ordinance for those areas, CEC constructed transmission lines, including the “Jordan Road” line and other facilities. About half of the Jordan Road line crosses federal land, and the remainder crosses privately owned land. When CEC constructed the Jordan Road line, it obtained easements from the landowners over whose land the line crosses, including respondents Cyrus.

The Jordan Road transmission line currently is supported by 156 wooden poles ranging in height from 38.5 to 74.5 feet above ground and separated by an average of 400 feet. Most of the private property over which the line crosses is zoned exclusive farm use (EFU) or multiple-use agriculture (MUA). A short section of the line crosses land that is zoned for surface mining (SM). The county’s zoning ordinance allows a “utility facility” as a conditional use in the EFU and MUA zones but not in the SM zone. CEC has no conditional use permit for the Jordan Road transmission line, and the parties and LUBA properly have regarded the line as a nonconforming use. See Polk County v. Martin, 292 Or 69, 74-76, 636 P2d 952 (1981) (holding that ORS 215.130(5) protects lawful uses that existed at the time that a zoning restriction became effective).

[719]*719In 2003, CEC sought to make improvements to the Jordan Road transmission line. It proposed to install 190 poles made of weathered steel ranging in height from 64.5 to 83.5 feet above ground and separated by an average of 350 feet. In addition, CEC sought to upgrade the transmission line from 69-kilovolt to 115-kilovolt capacity and to install new conductors and lightning protection. CEC did not seek a conditional use permit for the improvements. Instead, it applied to the county for nonconforming use verification for the existing Jordan Road line and for permission to make the improvements. CEC asserted that it is entitled to make the improvements under ORS 215.130(5), which permits alteration of a nonconforming use “when necessary to comply with any lawful requirement for alteration in the use.”1

[720]*720In May 2003, the county issued an administrative decision approving the application. Respondents appealed the administrative decision to the county hearing officer. In August 2003, after a public hearing on the application and the preparation of a written evidentiary record, the hearing officer affirmed the administrative decision. The hearing officer relied on ORS 757.020, ORS 757.669, and ORS 758.405,2 which prescribe duties and obligations of public utilities, and he concluded that those statutes “impose on regulated utilities such as [CEC] a legal duty to provide safe, reliable and adequate electrical service to their customers.” The hearing officer found that the proposed improvements were necessary to comply with that obligation. Based on that determination, the hearing officer concluded that CEC had demonstrated that the proposed improvements were justified by a “lawful requirement for alteration in the use” within the meaning of [721]*721ORS 215.130(5). The county board of commissioners declined to reconsider the hearing officer’s decision. Respondents then appealed to LUBA.

LUBA rejected the county’s interpretation of ORS 215.130(5). According to LUBA, that statute distinguishes between alterations that a county “may” permit and those it “shall” permit:

“The latter are limited to alterations ‘necessary to comply with any lawful requirement for alteration in the use.’ Significantly, the ‘lawful requirement’ must be ‘for alteration in the use.’ That modifier suggests that it is not sufficient that some authority impose a general legal obligation on the nonconforming use owner; the authority must require the requested ‘alteration [in the] use.’ ”

Cyrus, 46 Or LUBA at 709.

Based on that understanding, LUBA considered the 1962 PUC order granting CEC its service area. LUBA concluded that the order “does not purport to impose any relevant legal requirements, much less requirements for alterations of the use in question here.” According to LUBA, the statutes that the hearing officer relied on impose only “a general obligation on [CEC] to provide safe, reliable, and adequate electrical service to its customers.” LUBA concluded that “such a general, open-ended obligation is [not] a ‘lawful requirement for alteration in the use’ within the meaning of ORS 215.130(5).” Based on that conclusion, LUBA remanded the county’s decision.

On review, CEC urges that the record shows that it must make the proposed improvements to its transmission lines in order to fulfill its obligation under ORS 757.020 to provide adequate, safe, and reliable electric service to its expanding base of customers. In its view, that obligation satisfies the “legal requirement” standard for altering a nonconforming use under ORS 215.130(5). CEC also relies on OAR 860-023-0090(1) and (4), sections of a PUC rule that direct electric utilities to use reasonable means to ensure reliable service and have a program for evaluating “and where appropriate, for correcting under performing circuits.” CEC characterizes LUBA’s ruling as requiring a PUC order directing construction of the improvements in order for a “legal [722]*722requirement” to exist within the meaning of ORS 215.130(5). CEC insists that no such specific or immediate directive is necessary.

The problem presented is one of statutory construction.

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Related

State v. Rodriguez-Barrera
159 P.3d 1201 (Court of Appeals of Oregon, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
96 P.3d 858, 194 Or. App. 716, 2004 Ore. App. LEXIS 1016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cyrus-v-deschutes-county-orctapp-2004.