Manchester Solar v. Yamhill County

Where an extension of a conditional use permit expires and applicable criteria to the original application changes before a request for another extension is made, LUBA will affirm a county’s denial of the request for an extension.

At issue is a conditional use permit (CUP) for a solar facility on land zoned exclusive farm use (EFU) and had Class I to Class IV soils. The CUP was approved in November 2018 and was extended into December 2021. Petitioner requested a second extension of the CUP in January 2022 but the county planning director denied the extension because it was requested after the first expired and applicable approval criteria had changed – the County had amended the code to prohibit development of solar facilities on land zoned EFU with Class I to Class IV soils after Petitioner applied for the CUP. Petitioner appealed to the board of county commissioners (Board) who declined to review so Petitioner appealed to LUBA. The Parties stipulated to a voluntary remand. On remand, Petitioner requested the Board decide whether Petitioner held a vested right to complete development through initiated development under the CUP. The Board decided that Petitioner did not have a vested right under the county code to complete work under the CUP. Petitioner appealed to LUBA.

YCZO 402.08(A) provides in part that discretionary decisions approving development on land zoned EFU are “void two years from the date of the final decision if the development action is not initiated in that period” and also provides “… [a]n extension period of up to 12 months may be granted if … [a]n applicant makes a written request for an extension prior to expiration of the development approval period …” YCZO 402.08(A) implements OAR 660-033-0140(1). OAR 660-033-0140(2) provides that “[t]he county may grant one extension period of up to 12 months if … [a]n applicant makes a written request for an extension of the development approval period … [t]he request is submitted to the county prior to the expiration of the approval period …”

YCZO 402.08(C) provides that "[a]dditional one-year extensions may be authorized by the Planning Director where applicable criteria for the decision have not changed.” YCZO 402.08(C) implements OAR 660-033-0140(4).

In their only assignment of error, Petitioner argued that the Board erred because they misconstrued the meaning of “initiated” and “development action” in YCZO 402.08(A). Specifically, Petitioner argued that it, as the CUP holder, only needed to perform the first steps in development of the facility. Petitioner argued that the Board made the decision without substantial evidence to support the decision. Petitioner did not assign error to the denial of the second extension of the CUP.

Petitioner argued that OAR 660-033-0140(1) did not apply to the matter but LUBA disagreed because YCZO 402.08(A) implements OAR 660-033-0140(1) almost verbatim. LUBA reasoned that the county code must be interpreted consistently with the state law because the it implemented the state law. ORS 197.829(l)(d); Johnson v. Jefferson County, 56 Or LUBA 72, 91, aff’d, 221 Or App 156, 189 P3d 30 (2008), rev dismissed, 247 Or 259 (2009). LUBA also reasoned that OAR 660-033-0140(1) must not be interpreted to suggest that a conditional use permit can be extended unlimitedly once developmental action has been initiated when taken into context with OAR 660-033-0140(2) and (4). Landwatch Lane County v. Lane County, 74 Or LUBA 299 (2016). LUBA further reasoned that Petitioner did not qualify for a second extension because the extension was requested after the first lapsed and the applicable criteria changed. LUBA further reasoned that even if developmental action had been initiated under the CUP, Petitioner was required to develop expediently under the CUP. Finally, LUBA reasoned that because the Board’s decision assumed developmental action had been initiated, and it still found that Petitioner did not have a vested right to continue development under the CUP, the Board’s decision was sufficiently supported. Accordingly, LUBA held that Petitioner’s assignment of error was denied.