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Oral Argument 2025-073/074 Bartholomew et al v. Clackamas County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=NZV1prJo4Fo). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Hi there, Petition Bartholomew. Are you planning to join by video or audio only today? You're muted if you're speaking. >> Okay. Thank you. Yes, I will. There we go. Okay. Hello everyone. This is the time set for oral argument in Bartholomew versus Clakamus County. Luba numbers 2025-073 and 074. I'm board chairs Moodia. Board members Wilson and Basham are also present today. And please do mute your audio when you're not speaking. That will help with our recording. And just for your awareness, this uh oral argument is recorded and is also being livereamed uh via so you can review it there. Oral argument is a total of 30 minutes. Petitioners, you share the same 15 minutes. Have you decided among yourselves how you'll share that time? >> Uh yes. Uh good morning, Madam Chair, members of the board. Greg Hathaway representing petitioner safe Stafford Road. And I'm going to take the first five minutes of our time uh in our opening remarks and then Miss Bartholome take the following five minutes and then we'll reserve five minutes for rebuttal and share that. >> Thank you. Thank you for um figuring that out in advance. really appreciate that. And intervenor respondent and uh the county, have you decided how you'll share your 15 minutes? >> Yes, port chair Ivan is Gutierrez for intervenor respondent Portland General Electric Company. We've decided that I will take uh the first 10 minutes and then Mr. Hugh will take the remaining five minutes. >> Okay. And thank you thank you also for deciding that and working that out before oral argument. And um with that we oh we do have a motion for stay and a motion for expedited ruling on that stay. We've received a response to that motion for stay and we will resolve that in due course. >> Um other than those I don't I'm not aware of any other pending matters. Um okay nothing else. So we will go ahead to oral argument. Um whomever from the petitioner side is starting please state your name for the record and begin. >> Yes chair um and members of the board. Greg Hathaway representing Petisher Safe Stafford Road and uh also legal council. Good morning. Um the focus of my argument this morning is going to be on Petitioner Safe Stafford's roads uh first three assignments of air uh regarding PGE's proposed project. The PG project will replace his existing poles and distribution lines with high power transmission lines with significantly taller and wider poles. Not slightly taller, but significantly taller and wider holes. Petitioner Stafford Road consists of owners of homes in the Stafford Road area that would be visually impacted by PGE's proposed project. These residents are concerned about the adverse visual impacts that PGE's proposed project will have on the use and enjoyment of their residential uses. The hearings officer agreed with Safe Stafford Road's concerns. The hearings officer made these findings. First, PG's project would increase the visual impact with views from budding homes along Stafford Road. Two, PG's project would have significant visual impacts in comparison to PGZ's PGE's existing lines. and PGE's project would create a far more industrial aesthetic that was actually inconsistent with the current visual identity and character of the Stafford Road area. These findings that the hearings officer made were based upon photographic simulations that were prepared by Ed Wagner who's the president of City Stafford Road and those photographs simulations are part of our petition for review. So you have those comparative simulations in our materials. The hearings officer acknowledged that these photographs were uh acknowledged as as uh accurate and he accepted them into the record as being accurate simulation of the comparison between the current PG project and then the proposed PG project. The key question on appeal is whether the county's code would allow such a project with all the visual impacts identified by the hearings officer in the Stafford Road area. In the key co-provision in petitioner's first three assignments of heir is ZDO 12303D. ZDO 1233D allows projects that may visually impair the use enjoyment of residences but not if the project substantially visually impairs the use and enjoyment of those homes. The hearings officer defined the two key terms in ZDO 12303D to apply to his findings. The hearings officer defined the term substantial to mean significantly greater and the hearings officer defined the term impair to mean make worse. and petitioner safe Stanford Road agrees with the hearings officer's definitions and I don't think any party to this proceeding is in a disagreement with how the hearings officer defined those terms in that code division. Uh the hearings officer concluded that the proposed project would not substantially visually impair the use and enjoyment of homes in the Stafford Road area since even though the Stafford Road area would look differently if the proposed project were constructed, those homes could still be used for residential uses. Now, here's the irony of the hearings officer's conclusion. The hearings officer found that the proposed project was visually bad and would adversely affect the visual identity and character of the Stafford Road area, but not bad enough to deny PG's proposed project pursuant to ZDO 12303D because the residents can still use their homes. But it's the opinion of petitioner that's not the test set forth in ZDO 12303D. is not whether the residence could still be used for residential use, but if the visual use and enjoyment of those residences were substantially impaired by the proposed project, which the hearings officer found to be the case. Is petitioner's position that the hearings officer misconstrued his own defined terms in reaching his conclusions? Again, the hearings officer defined the term substantial to mean significantly greater. He defined the term impaired to mean make worse. When you apply those definitions in his findings, you can only conclude that the proposed project would significantly make greater and make worse the visual impacts of the Stafford Road area than PGE's existing lines. is petitioner safe staff for Rose's position that the hearings officer had actually properly applied his own definition of of ZDO 12303D to the to to his findings the hearings officer would have concluded that PG did not beat it burden of proof >> Mr. H. >> Yes. >> Um so I see your quote about or where you quoted the findings that talk about how uh surrounding properties can continue to be used for residences, farms, and other permitted uses. And I I think I tend to agree with you if that's all there was, that's not good enough. That maybe gets to the preclude prong, but it doesn't really get to limit or impair. Um, but the intervening respondents, they also site, I think it's from the page right before that on the record. Um, where the hearings officer talks about the poll will be 250 ft apart. They'll be spaced. Uh, they only take up a small portion of the viewing set. Um the wires are above second floor residenc's windows. So why is that set of findings not good enough? >> Because it doesn't address nor respond to his prior finding about visual impacts. Th this whole argument that petitioners say Stafford Road is about the visual impact on the enjoyment of those homes on Stafford Road. And so the quote that you just had uh uh uh was was is in our opinion not relevant to his ultimate finding that he made which was that the visual identity and character of Stafford Road area would be altered by this project. And so that finding that he made in our opinion isn't even responsive or rebutt his prior finding. If if he's using that as the basis then to overcome his prior finding we don't think that's adequate. I understand the respondents or intervenor respondents to be arguing that that quote about the industrial aesthetic that's whether or not you alter the surrounding use of the area and then once you find out that it has been altered then you go to the next step and does this substantially impair limit or preclude in this case residential uses. So why is why is it why I'm not sure why that makes the Well, the key finding that we're focused on is the finding that was made by staff in denying PGE's non-conforming use application. And the hearings officer adopted that finding on visual impacts in this decision. And I know that a respondant is arguing that they're two different standards and they are, but the fact remains is that the hearings officer adopted the same finding and applied them to the standard in this case. So those findings are applicable and those findings stand on their own two feet. And if you apply the definitions that he defined, which we have no disagreement with, and you apply those defined terms to that finding that he adopted, you can only reach one conclusion and the conclusion is is that the project's going to substantially impair the visual uh identity and character of Stafford Road and affect the use enjoyment of those residences. of the finding that you just cited I think is is not uh a finding that somehow rebutts that p the finding that I just talked about. I mean it stands on its own but if the argument is that finding somehow overcomes that other finding based on the the way he defined the terms uh we don't think that's a good argument. >> Okay. Thank you. Anyway, just to close very briefly, we're just asking Luba to either reverse the decision or reband the decision to the hearings officer to explain how he could make those findings that the project would visually impair, if you will, the Stafford Road area and then conclude based on his definition of the terms that this project would not substantially impair the visual identity and character of the Stafford Road area. >> Thank you. And we'll turn to petitioner >> Thank you. May it please the board. This appeal presents three legal errors on the face of the hearings officer's decision. each independently requires remand, but together they show that the county approved an integrated transmission project under a mclassified project description and as a result failed to apply the applicable approval standards. I'll address these errors briefly. Number one, failure to apply the applicable standards for each zone. The the final order repeatedly describes the proposal as a single continuous 5.9 mile transmission project that adds new transmission capacity along the Stafford Road corridor. That project crosses RRF5 and EFU zoning districts. The land use process requires the applicable standards for each zone be applied to the portion of the project within that zone, but the county didn't do that. Instead, the decision treated large portions of the project, particularly the EFU rightway segment, as categorically outside of land use review and therefore outside of any substantive analysis. As a result, the county failed to apply EFU standards to EF portions of the project, even though those portions are part of the same integrated transmission line approved through this decision. That failure is driven by the county's characterization of the project as mere upgrade or maintenance. By using that framing, the charact the county treated new transmission construction as legally equivalent to existing facilities and therefore exempt from meaningful review. But just to be clear, this project involves removing 256 trees, removing 134 modest wood poles, constructing 5.9 miles of new steel poles up to twice the height and three times the diameter, introducing a new function transmission. building a new line in a onem stretch that has no existing infrastructure, which raises how can you maintain or upgrade when a mile of it has no infrastructure at all. Um, expands the footprint and takes dozens of new property easements. By every land use definition that I can find, this is new construction, not maintenance. And under settled luba precedent, an integrated project cannot be approved unless the applicable criteria are applied properly. And this did not occur here. Allowed. Number two, allowed without review does not mean immune from standards. The second error flows directly from the first. The final order treats utility poles located in the EFU rightway as not part of the analysis because they were allowed without land use review. That is a mislication of the code. Allowed outright means no separate permit is required. It does not render facilities exempt from conditions, impact analysis, or consideration when they are part of a discretionary land use approval. That approach would render large portions of the project legally invisible. Furthermore, the hearings officer exempted the entire project from ZDO Chapter 1000, yet selectively applied chapter 1000 standards such as wildfire mitigation through conditions of approval. Does that mean wildfire mitigation conditions only apply to part of the project? I don't think that kind of pick and choose application is lawful land use review. Luba has made clear that local government may not approve conditional use while exempting major portions of the project from that very standards governing that approval and that is what occurred here. And finally, the county made inadequate findings on the scenic road character impacts. Stafford is a designated scenic road and the final order acknowledges that the project replaces existing poles with taller, more industrial structures, but it never explains how that change is consistent with scenic road policies. Instead, the county relies on conclusory reasoning. Other scenic roads have transmission lines. Some transmission lines already exist in the corridor. That is not the analysis required. The failure to acknowledge that this project involves new construction, not mere maintenance, explains why they never grappled with the magnitude of change being approved. The county does not connect the evidence in the record to the applicable comprehensive plan scenic road standards in a reasoned way. In other words, the county never asked whether the removal of 256 trees and installation of poles of this height, this scale, this appearent, how are they consistent with the scenic road requirements to protect scenic features and ensure visual characteristics appropriate to the setting, particularly when the record shows in the prior denial, the county found these same poles to be incompatible with the setting and to create a marketkedly more industrial aesthetic. Under OS97835, that failure alone requires remand. So in summary, the county failed to apply the applicable standards to each zone portion of an integrated project. It misused the allowed without review exemption to evade substantial standards and it adopted conclusory findings on scenic road character impacts that were all stemming from the incorrect maintenance framing of what the decision itself acknowledges is new transmission construction. For any of these reasons, remand is required and for all three remand is unavoidable. Thank you. >> Thank you. Uh we have reached almost the 15 minutes for petitioners oral argument. So we'll give both petitioners 2 minutes for your rebuttal and we'll extend the intervenor and respondents um by four minutes also. So if you have more things to say we can continue. Intervener I think you're beginning. So please state your name for the record and begin. >> Thank you board chair. Um may I please the board I send Gutierrez for intervenor respondent Portland General Electric Company. As I stated previously, I will be handling the first uh the first 10 minutes or or 12 minutes now for addressing SSR's assignments of error and Mr. Hugle is going to address the assignments of error raised by um Miss Bartholomew. Uh and similar to Mr. Hathaway, I will focus my argument on the first three assignments of error. Um, and I unless the court has any questions, I'm happy to address the fourth assignment of error, which is thoroughly briefed in our in our brief. Um, the first three assignments of error for SSR's petition for review can really be collapsed into one um assignment of error, but there's two components to it. The first part is this allegation that we that the hearings officer misconstrued the applicable ordinance. And then the second real big part of the assignment of error is that the findings are inadequate. Um and as explained in our brief, that just simply isn't the case here. Um Mr. SSR's argument at towards the end um says we we the board should remand in order for the hearings officer to explain how it how it's um >> harmonized the staff's finding that this would cause a significant visual impact with the requirement under the zoning ordinance. But what more is there left to explain? uh board member Wilson um I I agree that you know the on on the record on 45 the hearings officer went through very thoroughly and explained here's what the visual and aesthetics arguments are and let's talk about it. He argued uh he states it could be argued that clearing will create more panoramic views of the landscape. Therefore, the impact of the change is subjective depending on the viewer's preference for forested or open rural views. Drivers, he then goes on to say, drivers on Stafford Road will experience both views as they travel along the roadway. Uh, however, these facilities will not completely obscure such views such as a building or tall trees would. Therefore, the new poles and wires will consume a relatively small portion of the lower larger viewing shed in addition to the existing poles and power lines which are located at lower elevations already impact the views in this area. He also then uh says that although the evidence regarding some of these issues is conflicting, the hearings officer finds that the applicant's evidence is the most persuasive based on the discussion in this final order. He also adds that increasing views of the power lines and creating more open views for persons traveling on Southwest Stafford Road as well as for the owners and residents of some properties and that generally these transmission lines will be living in harmony with with the properties. What more is there left to explain about how a finding from the non-conforming use application which has a different test of no greater impact is harmonized with defining for this conditional use application that yes there's significant visual impact but under this board's decision in York I'm moving on to the second prong which is does that even if it's significant visual impact actually substantially limit impair or preclude the uses in the surrounding So um I I understand your point about that's the second second part of the analysis and if I understood intervenor petitioner correctly they were saying that doesn't really you know rebut or get rid of their first part of the finding. Um, and so it seems to me you're relying on that that paragraph to say this is why it doesn't impair or limit residential uses. And so does it specifically tie in those those definitions in that paragraph? I know when you get to the con his conclusion, he has some conclusory things that say that it does. So I know your your position is that it's good enough. Could you explain to me though exactly why it's good enough even though it doesn't specifically talk about limit or impair in that paragraph? >> Well, thank you. Thank you uh board member Wilson. If we go on further to I believe it's record on 46, he does provide the hearings officer does provide some more analysis and explanation regarding the limit and preclude/impare prong. He go he says in addition to the trans transmission lines existing in relative harmony with the uses throughout the region. He also adds the existing power lines impose some limits on agriculture uses in the area requiring that farm workers use caution when moving vehicles and equipment beneath the lines and precluding the planting of tall trees in close proximity to the lines. The additional power lines proposed with this project will not increase those impacts as they will be located at higher elevations than the existing power lines. Although the use will change the visual character of the area to some extent, those changes will not limit impair or preclude use of the surrounding properties for permitted uses. So that's at 45 to 46. So he does actually explain why the the again to the second prong the use is not substantially impaired. And really this uh SSR's argument really boils down to just the uh incorrect belief that significantly impacts equates to substantially impaired. But under the undisputed definitions, impair means to make worse. Impact means to have an effect on. So yes, you can have a significant effect on something, but that effect could be good or bad as the hearings officer lays out in the opinion. Yes, some drivers are going to see this view, others are going to see this view. Some are going to like this one, some are going to like that one. But that's different than substantially make worse. make to to impair is always to make worse. It's not a good thing. And so I once we really understand that argument and that belief then that I think SSR's assignments are very really far apart and there's nothing left for the hearings officer to explain and and what because of his already thorough explanation. >> Okay. Thank you. >> Thank you. Um, I also, uh, just want to make clear, I mean, I've touched on it, but the hearings officer at, um, on 45 really also explains he in terms of the prior finding, he says, however, as staff noted in the non-conforming use decision, the added high large diameter poles and additional wires are going to create a far more industrial aesthetic. Again, prong one. Um, and there's no dispute about the photos. But he goes on to say, but that's not the relevant test here. The the thing that the burden of proof that the applicant bears is to show compliance with the applicable approval criteria that it's not going to substantially impair. And here because of the reasons he's outlined he's finding that correctly found that just given all the evidence in the record that the applicant correctly sustained the b did sustain the burden of proof to show uh that it complies with 12303 any sort of greater adverse impact that's just not relevant here that's under the non-conforming use application that's 120 that's 1207 which is not an issue here Um and again there's no disagreement about this court's decision in York which outlooked at the same provision. Uh there's just a fundamental misunderstanding about um what that by the SSR about what that criteria actually requires. Um, let's see. Just making sure I've we've also thoroughly addressed in our brief just some of the mischaracterizations in terms of what the hearing officers did or did hearing officer did or did not find. And I just want to be very clear that at no point in the decision is there any finding by the hearings officer that the project is going to make worse or impair. There is findings about altering and visual impact but at no point in that entire decision is there anything about actually make the project making uh the area worse. Um and with that um like I said I we thoroughly addressed assignment of error 4 uh in our brief but if the court has any if the board has any other questions I'm happy to address them. If not, I'll turn it over to Mr. Mr. Hugle to address >> No questions from the board. Thank you. Uh, Council Hugall. >> Uh, thank you, Caleb Peele for Clakamus County. I'd just like to take a minute or two to address um, Commissioner Bartholomew's reply brief. Um, >> Bartholomew again argues that the county aired in characterizing the project as maintenance. The truth is that the findings use that phrase one time uh and it's immediately followed by and alteration at record 56. More importantly though, Bartholomew identifies no part of the decision that turns on that characterization. The failure to apply ZDIO 1000 is based on the conclusion that the project is a utility line, not that it is maintenance. On the utility line issue, Bartholomew appears to shift from the petition to the reply. It's no longer the project isn't a utility line. Now it's the county can't just exempt all utility lines from ZDO 1000. Of course, they don't get to make that change halfway through briefing. Even if they could, though, stripped of all the fake case citations in the petition for review, they provide no support for that argument. On the five-party IGA issue, Bartholomew doesn't actually address our response that their submittal to the hearings officer was untimely regardless of whether it constitutes evidence or argument or anything else. And in going on to argue that IGAs such as the five party constitute applicable approval criteria in their reply, in their corrected reply, and in their second corrected reply, Bartholomew cites another fake case. Friends of Stafford versus LCDC does not exist. This is despite the fact that at the start of their replies, they state that none of the relief sought depends on disputed authorities. They cannot help themselves. This is very frustrating for the county. We appreciate that Bartholomew has concerns about the decision, but they've made it very difficult for us to address those concerns. >> I have a I have a question for you. This is kind of a novel issue for the board to address and I'm curious what your um >> Thank you. >> your suggestion for the remedy for this type of uh briefing. >> I thank you uh board chairs mood. I was wondering this myself and I don't know if it is frustrating because in the case we cite the court was able to award attorney fees. The test for attorney fees at Luba is different, likely more stringent. I don't know if it is if if it is well, when someone is trying to demonstrate preservation, if they site a 500page span of the record, Luma won't hunt through it to decide what is preserved and what is not. uh maybe if a party can identify an AI generated case and a particular assignment of error or portion of an assignment of error, it is not then up to Luba and the parties to go through each case citation to decide which are real and which are fake. Maybe maybe that's not entirely analogous. That is that is and then you know >> so are you suggesting for once there's been an identification of a citation to an authority that does not exist what what do you think the board should do in that instance >> I think at that point uh I if if I maybe it's okay because if preservation is challenged in a response brief the petitioner has the opportunity to provide more specific citations in a reply brief I suppose and I guess if they can provide actual um uh case citations that do support the propositions that are ascribed in their reply brief, Luba could consider it. But then the damage is done. The county has had to go through and >> I think I I I find a challenge with the idea that we could have multiple rounds of briefing given our short statutory deadline. So we are considering what we should do in an instance like this and I appreciate you bringing it to the board's attention. And I think we could now thank you >> move on. Thank you. Um so for all the reasons we provided the board should deny um Bartholomew's assignments of air probably without much discussion unless there are questions uh or council for PGE has anything that they want to add. I'll seat our time to the board. >> Thank you. And you do still have a another five minutes if PGE wanted to provide any additional argument. >> Thank thank you board chair. On the last question, I I will add I think one of the things that Lubet could consider is like potentially striking portions of the brief that rely incorrectly on that sort of uh to not waste uh precious resources both for for Louva and but also for for the respondent having to answer and go through that. I think that that that's something that just based on my experience could potentially help in terms of easing some of the burden of having to go through and sift through which cases are applicable or not. So that's just that's just a suggestion. >> Appreciate that suggestion. Thank you. Anything else on the merits? >> No, unless the unless the board has any questions, I'm happy to answer them. But u thank you. Thank you for the opportunity to uh talk about this important case and the uh important project that's at issue below. Thank you. >> Thank you. Thank you for your argument. Uh we will return to petitioners. Each of you will have two minutes for your rebuttal and I think uh council Haway probably should go first. >> Thank you very much um uh for the opportunity to rebut. Uh I think for purposes of of argument with the time I have left based on um member Wilson's question and the um response by PG's attorney um it appears as though there's a disagreement about what finding is more significant than another finding and we find very significant the finding that I quoted in my earlier presentation where the hearings officer clearly found that this proposed project was going to increase the visual impact of views from budding homes along Stafford Road. The project was going to have significant visual impacts in comparison to PG's existing lines and would create a far more industrial aesthetic that was inconsistent with the current visual identity and character Stafford Road area. Those are very strong powerful findings about the effect that this project's going to have on the residences in the Stafford Road area. in the hearings officer clearly says that project's going to visually adversely impact residential views. So that's where we start and then we go to his definition of how he defined the terms and I know that uh we disagree with PGE on this point but his definitions are clear and if you apply those definitions to that key finding those findings I just mentioned he clearly defines substantial as being significantly greater and then he defines impair as make worse. If you apply those definitions to that finding that I'm just talking about, you can only reach one conclusion and that is this proposed project is going to uh impair substantially the visual identity and character of the Stafford Road area including the uses in Stafford Road which are these these residences. Now, the other argument is, and I think member Wilson brought this up, is that well, the hearings officer made another finding about, well, it's not that big a deal, but those findings don't specifically overcome this other finding that I'm talking about because those findings don't talk about the residential impact, the visual impact of residential uses. >> Thank you for that rebuttal. And we've reached two minutes. We'll go to petitioner Bartholomew. Two minutes for your rebuttal. >> Thank you. Um I um okay first I would just also add to Mr. Hathaway's comment that uh the very first primary use listed in our our FF5 zone is residential. So um in my brief I will just refer I I have a chart of what impacts this will have on residential usage. um as well as farming usage. Um so that's the first thing and the second thing is um just from a prosay perspective two years ago I started this process I didn't even know what a brief was. Okay like I have been on an L-shaped learning curve and this was submitted before I realized a lot of the sources are not reliable and I don't have access to legal resources and so I understand the predicament that you guys are in. I don't want to waste anyone's time on things that don't exist, I didn't I was not aware that those that was not a reliable source. So, to the extent that it caused anyone additional time, I I own up to that and I was not aware it was not a reliable source. Um, but that being said, I I also don't want to be shut out of this process because I'm not an attorney. And so it's like I I realize it puts you guys in a difficult position because I can't communicate sometimes the way that in legal ease and but it also I don't want to be shut out of the process. So I I I understand where everyone's coming from and I I'm not sure what the answer is other than my arguments most of them with the apart from the IG issue my arguments would really stand regardless of which references I used they were mostly grounded in what exactly the case this case presented. So, um, that was all I wanted to say about that. >> Okay. Thank you. Um, thank you for your perspective on that. Appreciate the limitations. Uh, the land use process and the luba appeal process is intended to be open and accessible. Um, so that is something we consider as well. So, that will conclude oral argument. The statutory due date for our decision is uh February 26th. In this appeal, we'll ask the parties to agree to an extension so that we issue our opinion no later than March 19th. Is that okay with these parties? >> We have no objection. >> No objection from PG. >> No objection.