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Delays Invalidate Oregon Solar Facility Permit, But Ruling Leaves Another Option by Mateusz Perkowski Capital Press, October 12, 2023

Construction delays have invalidated the land use permit for a 10-acre solar facility in Oregon's Yamhill County, according to the state's Court of Appeals.

However, the ruling does not foreclose the developer from pursuing an alternate legal theory to try finishing the project.

In 2018, county officials approved a two-year conditional use permit for Manchester Solar of Dayton, Ore., and later extended it through late 2021.

The company requested another extension in early 2022, but it was rejected because the permit had already expired.

By that point, updated land use regulations prohibited solar facilities on the highest classes of soil, so the developer could not simply obtain a new permit.

The company appealed the county's decision to the Land Use Board of Appeals, arguing it had already initiated development by obtaining electrical and building permits.

However, LUBA rejected the developer's claim, ruling that the permit didn't remain valid indefinitely and had to be renewed for the company to complete construction.

The state's Court of Appeals has now upheld that decision after finding LUBA's "reasoning persuasive" and agreeing "it represents the proper interpretation of the rule."

Regulations governing conditional use permits in Yamhill County don't mean that "initiation of development action, standing alone, would render a permit valid in perpetuity," the ruling said.

Even after development has begun, "the ongoing validity of the permit is predicated on a permittee demonstrating an entitlement to an extension," according to the appellate court.

The Court of Appeals acknowledged that it arrived at a different conclusion in a similar land use dispute in Deschutes County. In that case, though, the county had adopted different rules governing conditional use permits.

In this case, Manchester Solar claimed to have a vested right to continue the solar facility based on the rules for conditional use permits.

However, the Court of Appeals said the company isn't precluded from claiming a "common-law vested right" to proceed with the project, which is evaluated under different legal criteria.