2015 ORS 215.275¹
Utility facilities necessary for public service
  • criteria
  • rules
  • mitigating impact of facility

(1) A utility facility established under ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1)(c)(A) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1)(c)(A) is necessary for public service if the facility must be sited in an exclusive farm use zone in order to provide the service.

(2) To demonstrate that a utility facility is necessary, an applicant for approval under ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1)(c)(A) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1)(c)(A) must show that reasonable alternatives have been considered and that the facility must be sited in an exclusive farm use zone due to one or more of the following factors:

(a) Technical and engineering feasibility;

(b) The proposed facility is locationally dependent. A utility facility is locationally dependent if it must cross land in one or more areas zoned for exclusive farm use in order to achieve a reasonably direct route or to meet unique geographical needs that cannot be satisfied on other lands;

(c) Lack of available urban and nonresource lands;

(d) Availability of existing rights of way;

(e) Public health and safety; and

(f) Other requirements of state or federal agencies.

(3) Costs associated with any of the factors listed in subsection (2) of this section may be considered, but cost alone may not be the only consideration in determining that a utility facility is necessary for public service. Land costs shall not be included when considering alternative locations for substantially similar utility facilities. The Land Conservation and Development Commission shall determine by rule how land costs may be considered when evaluating the siting of utility facilities that are not substantially similar.

(4) The owner of a utility facility approved under ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1)(c)(A) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1)(c)(A) shall be responsible for restoring, as nearly as possible, to its former condition any agricultural land and associated improvements that are damaged or otherwise disturbed by the siting, maintenance, repair or reconstruction of the facility. Nothing in this section shall prevent the owner of the utility facility from requiring a bond or other security from a contractor or otherwise imposing on a contractor the responsibility for restoration.

(5) The governing body of the county or its designee shall impose clear and objective conditions on an application for utility facility siting under ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1)(c)(A) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1)(c)(A) to mitigate and minimize the impacts of the proposed facility, if any, on surrounding lands devoted to farm use in order to prevent a significant change in accepted farm practices or a significant increase in the cost of farm practices on the surrounding farmlands.

(6) The provisions of subsections (2) to (5) of this section do not apply to interstate natural gas pipelines and associated facilities authorized by and subject to regulation by the Federal Energy Regulatory Commission. [1999 c.816 §3; 2009 c.850 §9; 2013 c.242 §5]

Note: 215.275 (Utility facilities necessary for public service) was added to and made a part of 215.203 (Zoning ordinances establishing exclusive farm use zones) to 215.311 (Log truck parking in exclusive farm use zones) by legislative action but was not added to any other series. See Preface to Oregon Revised Statutes for further explanation.

Notes of Decisions

"Reasonable alternatives" to be considered in assessing necessity of utility facility are limited to reasonable site alternatives to exclusive farm use land. Sprint PCS v. Washington County, 186 Or App 470, 63 P3d 1261 (2003)

Considera­tion of reasonable site alternatives for utility facility may include considera­tion of different designs to adapt utility's chosen methodology to land that is not zoned for exclusive farm use. Sprint PCS v. Washington County, 186 Or App 470, 63 P3d 1261 (2003)

"Reasonable" alternatives to exclusive farm use zone loca­tions refers to alternatives that are fair, proper, just, moderate and suitable under circumstances, not merely alternatives that have some likelihood of success. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

Evalua­tion of need to site facility within exclusive farm use zone may be based on zone as whole rather than on prop­erty-by-prop­erty analysis. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

Road and highway rights-of-way within exclusive farm use zone are treated as exclusive farm use land for purposes of determining existence of alternative to siting facility within zone. Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 79 P3d 869 (2003)

Law Review Cita­tions

49 WLR 411 (2013)

Atty. Gen. Opinions

Effect of constitu­tional pro­vi­sion requiring pay­ments based on govern­ment regula­tions restricting use of prop­erty, (2001) Vol 49, p 284

Chapter 215

Notes of Decisions

Published notice is adequate if prop­erty owners can reasonably ascertain that prop­erty in which they hold interest may be affected. Clackamas County v. Emmert, 14 Or App 493, 513 P2d 532 (1973), Sup Ct review denied

Statutory scheme es­tab­lishing LCDC and granting it authority to es­tab­lish state-wide land use planning goals does not unconstitu­tionally delegate legislative power where both standards (under this chapter) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county had not yet adopted comprehensive plan but had zoned certain por­tions "primarily agricultural," county had not enacted adequate interim measures to protect its agricultural land until exclusive farm use zoning was completed. Columbia County v. LCDC, 44 Or App 749, 606 P2d 1184 (1980)

Atty. Gen. Opinions

Fasano v. Bd. of County Commrs., applica­tion to county governing bodies and planning com­mis­sions, (1974) Vol 36, p 960; binding effect on govern­mental agencies of the adop­tion of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894

Law Review Cita­tions

36 EL 25 (2006)


1 Legislative Counsel Committee, CHAPTER 215—County Planning; Zoning; Housing Codes, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors215.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 215, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano215.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.