The Oregon Land Use Board of Appeals on Friday overturned Deschutes County’s approval of an upgraded, taller Central Electric Cooperative transmission line that two Sisters-area land owners say will hurt their scenic views.

But Keith Cyrus and son Matt won only part of their appeal, and the utility’s lawyer says it’s likely to take that remand decision to the Oregon Court of Appeals, extending the legal fight many more months.

The Cyruses had challenged a decision issued last August by county Hearings Officer Karen Green that verified the existing “Jordan Road line” as a “non-conforming use” and approved an upgrade of the 11 ½-mile line, from 69,000 volts to 115,000 volts. The 42-year-old power line now has more than 150 wood poles, from 38 to 74 feet tall; the electric co-op wants to install almost 200 weathered-steel poles, 64 to 83 feet tall, to carry the upgraded line.

Issues of “non-confirming uses” are generally referred to as “grandfather clauses,” and deal with existing land uses that predate county zoning. In general, the county’s rules allow those uses to continue, as long as they are not interrupted or significantly changed in type or intensity.

County commissioners declined to hear the Cyruses’ appeal of Green’s decision, and the county let CEC, as an intervenor, argue the case before the three-member LUBA panel.

The line in dispute carries power from the Cline Falls substation on the east to a switch near Sisters, about half on public land, half on private land, with easements from land owners, including the Cyruses.

In 1980, CEC built a 115-kilovolt “Highway 126″ power line, which parallels the Jordan Road line to the north. The cooperative has cited as need for the upgrade a growing demand for electricity and the vulnerability of the Highway 126 line to interruption. It wants to upgrade the Jordan Road line as a backup to the Highway 126 line.

The state appeals board ruled that the hearings officer erred when she said the co-op had proven the power line upgrade fit the state definition of a “lawful requirement for alteration of the use.”

LUBA cites need for specifics

The cooperative had pointed to a 1962 state Public Utility Commission order that it serve the region with safe, reliable and adequate power. But in its ruling, LUBA said, “We do not believe that such a general, open-ended obligation is a `lawful requirement for alteration in the use’ within the meaning” of the state statute.

“We would almost certainly feel differently if the PUC or other regulatory agency or authority specifically required (the co-op) to upgrade its Jordan Road line transmission capacity or imposed a specific performance standard that entailed upgrades in capacity,” the board ruled. “However, the 1962 PUC order and the cited statutes fall far short of that.”

In another element of its ruling, the LUBA panel sided with the utility and found that Green “erred in concluding that (the co-op) lacks eminent domain authority” and that it needed the land owners’ signatures for the land use applications. It also agreed that the power line was in place before the county adopted its initial zoning rules in November 1972, and has been continuously used for power transmission since 1962.

However, LUBA upheld a related part of that appeal point, saying the remand is necessary for the county to determine if a power distribution line added in 1975 beneath the transmission line constituted an “alteration” that didn’t meet then-current zoning laws.

“The hearings officer’s findings do not address whether the distribution lines are part of the non-conforming use … nor does the decision approve the distribution line on the existing or proposed poles as an alteration (of the use),” the LUBA ruling said. “Remand is necessary for the hearings officer to consider those questions.”

Land owners want lower poles

Tia Lewis, the Cyruses’ attorney, said her clients’ “position is and always has been that CEC should go through the conditional use (permit) process, and therefore be required to mitigate the impacts of the use, as opposed to pursuing approval as an alteration to a non-conforming use, in an effort to avoid having any conditions or mitigation placed on its proposal.”

“We just want CEC to be considerate of the fact that its line runs across over a mile of (the Cyruses’) pristine view property and through the middle of an 800-acre farming operation,” the lawyer said.

Specifically, Lewis said, “We want CEC to agree not to shut off irrigation during construction, and to try to mitigate the impacts on views by reducing the pole height and moving the poles off the ridge, so they do not infringe so heavily on the view corridor from the Cyrus property and the surrounding area along Cloverdale Road.”

The electric co-op’s attorney, Martin Hansen, sees things differently, as you might expect. He said he plans to meet with utility officials next week and “see what we’re going to do,” but called an appeal to the state Court of Appeals “a very good possibility.”

“We believe that LUBA has made a serious mistake,” Hansen said. “We won on all the other issues, about it being a non-confirming use, and we believe they misinterpreted the statute.”

“We want to continue to provide power to Sisters and Black Butte Ranch, and the county and LUBA agreed,” he said. “But they are looking for an actual order from the PUC to upgrade the line. That never happened. When the PUC granted the exclusive territory, it directed CEC to provide safe, adequate and reliable power. LUBA ruled on an argument that was not even made by Cyrus.”

This entry was posted on Friday, April 9th, 2004 at 7:55 pm and is filed under Top Stories. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.