Royal Blue Organics v. City of Springfield

Intervenor applied for tentative site plan review and tree felling and hillside development permits to develop an electrical substation and a transmission line. As part of the application, intervenor sought to turn the ground below the line into a 100-foot wide “clear zone,” without trees, and extend an existing access road through the subject property to maintain the line. Portions of the applications were reviewed by the planning commission, while others were reviewed by a hearings official. The planning commission and hearings official approved the applications. This appeal followed.

Under Springfield Development Code (SDC) 3.3-530(A), because the subject property had slopes greater than 15%, intervenor was required to submit a geotechnical report. Intervenor submitted three geotechnical reports. Petitioner also submitted a geotechnical report, which noted a geomorphic feature on the subject property and suggested that development of the feature could result in slope movement. Intervenor’s reports responded to petitioner’s by explaining that explorations in the vicinity of the geomorphic feature did not indicate landslide risks. The hearings official concluded that intervenor’s reports adequately responded to petitioner’s and demonstrated that the poles would be installed on stable ground. Petitioner argued that the hearings official’s conclusion that intervenor’s reports complied with SDC 3.3-530(A) was not supported by substantial evidence because intervenor’s reports did not respond to all of petitioner’s report’s concerns. Because petitioner gave LUBA no reason to “second-guess the hearings official’s decision to give more weight” to intervenor’s reports, LUBA concluded that the hearings official’s conclusion was supported by substantial evidence.

Under SDC 3.3-530(B), intervenor was required to submit a grading plan providing details of terrain and area drainage, the approximate locations of structures relative to adjacent topography, the direction of drainage flow, and detailed plans and locations of all drainage devices. Although intervenor submitted a grading plan for the substation and the access road, the hearings official concluded that a grading plan was not required for the transmission poles because their foundations did not require engineering. Because the application materials acknowledged both that drainage occurs on the property and that grading would be required to install the poles, petitioner argued that a grading plan was required for the pole installation. Intervenor responded that other application materials showed the location of the poles, explained that the poles would be built and installed to certain specifications based on soil conditions, and indicated that the site drained in a certain direction. Because those application materials did not provide more detail regarding on-site drainage or address drainage impacts due to pole installation, LUBA agreed with petitioner that remand was required for the city to apply SDC 3.3-530(B) to the pole installation.

SDC 5.19-125(A) allows removal of trees to prevent “interference with utility services.” Relying on a letter submitted by intervenor’s electrical engineer and general recommendations by the Bonneville Power Administration, the hearings official concluded that the 100-foot clear zone was necessary to prevent interference with the line. Under SDC 3.4-270(F)(5), which governs private property landscaping standards, “[e]xisting mature vegetation and healthy trees * * * shall be retained to the maximum extent practicable.” Petitioner argued that the hearings official’s findings were inadequate to demonstrate compliance with that standard. Intervenor responded that, because the hearing’s official concluded that the 100-foot clear zone was necessary to prevent interference with the line, it followed that it was not practicable to retain mature vegetation and healthy trees within the clear zone. Because intervenor submitted no evidence regarding alternative line alignments or alternative treatments to prevent trees in the clear zone from interfering with the line, which could obviate the need to remove some of the mature vegetation and healthy trees, LUBA agreed with petitioner that the hearings official’s findings were inadequate to demonstrate compliance with SDC 3.4-270(F)(5).

Under SDC 5.17-125(E), site plans must protect “significant clusters of trees and shrubs.”  The hearings official concluded that, because the line was mandated by the comprehensive plan, none of the trees in the clear zone or the access road extension area were “significant.” Petitioner argued that the city misconstrued the term “significant” and that the trees in the clear zone were significant in terms of impacts to views, erosion control, and fire prevention. LUBA agreed with petitioner that, because the comprehensive plan did not prescribe the exact location of the line but rather planned a general location for the line, the fact that the line was mandated by the plan did not mean that the trees in any proposed route were insignificant for purposes of SDC 5.17-125(E). Remand was therefore required for the city to consider whether the site plan protected significant clusters of trees.

Intervenor proposed to develop the substation on a portion of the subject property containing a wetland. Under SDC 5.17-125(E), site plans must protect “[p]hysical features” including certain “watercourses” consistent with the requirements of the SDC. SDC 4.3-115 generally protects water quality by protecting watercourses and associated riparian areas. SDC 4.3-115(B)(9) allows the “[r]epair, replacement or improvement of utility facilities,” but it does not allow the development of new utility facilities. Under SDC 4.3-115(C)(1)(a), the city must avoid development in “[u]nsuitable areas,” including “wetlands.” The planning commission concluded that the wetland on the subject property was not a “watercourse,” and therefore not subject to SDC 4.3-115, because it had no measurable flow or defined channel. In addition, the planning commission concluded that it could not interpret SDC 4.3-115 as prohibiting development in wetlands because such an interpretation would conflict with the comprehensive plan, which mandated the development of the substation and line. Instead, the planning commission concluded that SDC 4.3-115 could be met by imposing a condition of approval requiring intervenor to obtain any necessary state and federal wetland fill permits.

Because SDC 6.1-110 defines “watercourses” to include “wetlands,” LUBA first concluded that the wetland on the subject property was in fact subject to SDC 4.3-115. LUBA also agreed with petitioner that the planning commission misconstrued SDC 4.3-115 by allowing new development in a wetland. LUBA concluded that SDC 4.3-115 did not conflict with the comprehensive plan because the comprehensive plan provided only a general location for the substation and, therefore, did not prohibit locating the substation elsewhere. LUBA noted that, if SDC 4.3-115 made the development of new public infrastructure difficult, the correct course of action was for the city to amend the SDC rather than interpret it inconsistently with its language in a quasi-judicial decision. In addition, LUBA agreed with petitioner that the city’s findings were inadequate because they did not explain how requiring intervenor to obtain state and federal wetland fill permits would ensure that SDC 4.3-115 was satisfied. The city’s decision was therefore REMANDED.