No. 18 April 18, 2013 465

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Request for Amendment #2

of the Site Certificate for the Helix Wind Power Facility.

THE BLUE MOUNTAIN ALLIANCE;

Norm Kralman; Richard Jolly;

Dave Price; Robin Severe;

and Cindy Severe,

Petitioners,

v.

ENERGY FACILITY SITING COUNCIL;

and Site Certificate Holder Helix Windpower Facility, LLC,

Respondents.

(S060803)

En Banc

On judicial review from an order of the Energy Facility 

Siting Council.*

Argued and submitted January 7, 2013.

Daniel Kearns, Reeve Kearns PC, Portland, argued the 

cause and filed the brief for petitioners.

Michael Casper, Assistant Attorney General, Salem, 

argued the cause for respondent Energy Facility Siting 

Council. Denise G. Fjordbeck, Attorney-in-Charge, Salem, 

filed the brief for respondent Energy Facility Siting Council. 

With her on the brief were Ellen F. Rosenblum, Attorney 

General, and Anna M. Joyce, Solicitor General.

James N. Westwood, Stoel Rives LLP, Portland, filed the 

brief for respondent Helix Wind Power Facility LLP. With 

him on the brief were David E. Filippi and Elaine R. Albrich.

Dina M. Dubson, Renewable Northwest Project, Portland, 

filed the brief for amici curiae Renewable Northwest Project 

and American Wind Energy Association. With her on the 

brief was Megan W. Decker.

______________

* Appeal from a Final Order of the Energy Facility Siting Council dated 

August 24, 2012, W. Bryan Wolfe, Chair.
466 Blue Mountain Alliance v. Energy Facility Siting

BALDWIN, J.

The Final Order Denying a Contested Case Proceeding 

and Approving Amendment #2 of the Energy Facility Siting 

Council is affirmed.

Energy facility site certificate holder applied for Amendment #2 to existing 

site certificate, seeking to extend the construction start and completion dates 

for a wind energy facility. Petitioners provided public comment requesting that 

Amendment #2 require compliance with a county ordinance adopted after the 

amendment application date, which required a two-mile setback between wind 

turbines and rural residences. The Energy Facility Siting Council issued a final 

order that declined to require compliance with the ordinance, denied petitioners’ 

requests for a contested case proceeding, and approved the amendment. Held: (1) 

the council correctly characterized the ordinance as a land use regulation subject 

to consideration under ORS 469.504(1)(b)(A) and properly declined to consider 

the ordinance under that statute because it was not in effect on the Amendment 

#2 application date; (2) because the ordinance qualified as a land use regulation 

under ORS 469.504(1)(b)(A), the council correctly declined to require compliance 

with the ordinance under the “abide by local ordinances” clause of ORS 469.401(2); 

(3) the council did not abuse its discretion in declining to require compliance with 

the ordinance as a later-adopted law under ORS 469.401(2); and (4) the council did 

not err in denying petitioners requests for a contested case proceeding.

The Final Order Denying a Contested Case Proceeding and Approving 

Amendment #2 of the Energy Facility Siting Council is affirmed.
Cite as 353 Or 465 (2013) 467

BALDWIN, J.

This case challenges a final order of the Energy 

Facility Siting Council (council) approving an amended 

site certificate for construction of a wind energy facility.1

The central question on review is whether, in approving 

the amended site certificate, the council correctly declined 

to require compliance with a recently adopted county 

ordinance requiring a two-mile setback between wind 

turbines and rural residences pursuant to ORS 469.401(2). 

For the reasons set out in this opinion, we conclude that 

the council did not err in not requiring compliance with 

the ordinance. We further conclude that the council did not 

err in denying petitioners’ requests for a contested case 

proceeding. We therefore affirm the council’s final order 

approving the amended site certificate.

I. FACTS AND BACKGROUND

The following facts are taken from the council’s 

Final Order Denying a Contested Case Proceeding and 

Approving Amendment #2. In July 2009, the council issued a 

site certificate for the Helix Wind Power Facility, permitting 

up to 60 wind turbines covering 7,586 acres on private 

land in Umatilla County, northwest of Helix, Oregon. The 

site certificate holder is Helix Wind Power Facility LLC 

(Helix), also a respondent in this proceeding. The certificate 

included conditions to begin construction within three 

years and then complete construction within three years. 

The statutory process under which the council issued the 

original site certificate is generally described in Save Our 

Rural Oregon v. Energy Facility Siting, 339 Or 353, 356-57, 

121 P3d 1141 (2005). In June 2011, the council issued a final 

order approving Amendment #1, expanding the size of the 

facility to include 134 turbines, covering 20,613 acres.

On February 3, 2012, Helix applied for Amendment 

#2, seeking to extend the construction start and completion 

dates by two years. In response, the Oregon Department 

of Energy (ODOE) posted public notice of the amendment 

1 ORS 469.403(3) grants this court jurisdiction for judicial review of the 

council’s approval or rejection of a site certificate application or amendment; ORS 

469.405(1) additionally provides that judicial review of an amended site certificate 

shall be as provided in ORS 469.403.
468 Blue Mountain Alliance v. Energy Facility Siting

request and sent notice to various other persons and entities, 

including a list of residential owners within two miles of 

the site boundary and a special advisory group consisting of 

the Umatilla County Board of Commissioners (board). The 

council received multiple comments, and Helix responded 

to those comments. Following internal analysis, ODOE 

issued a proposed order, together with public notice setting 

a deadline for public comments and requests for a contested 

case proceeding.

In May 2012, the council held a listening session 

and received public comments. The council also received 

multiple written public comments and several requests for 

a contested case proceeding. Among other issues, public 

testimony and comments highlighted a Umatilla County 

ordinance—Ordinance 2012-04, adopted February 28, 

2012—that required a two-mile setback between wind 

turbines and rural residences. Petitioners contended that 

the ordinance had been adopted as a public health and 

safety measure and submitted materials intended to show 

that noise implications from turbines posed a “significant 

threat” to public health and safety and that a setback of 

less than two miles would not adequately protect against 

turbine noise. Petitioners requested that the council require 

the facility to comply with the ordinance.2

In August 2012, ODOE staff presented a 

recommendation on Amendment #2 to the council (“ODOE 

staff report” or “report”). ODOE staff recommended that the 

council not incorporate Ordinance 2012-04 in its analysis 

whether the facility, with Amendment #2, complied with 

statewide planning goals under ORS 469.504(1) and also 

not require compliance with the ordinance in Amendment 

#2 under ORS 469.401(2). The report specifically treated 

Ordinance 2012-04 as a “land use regulation[]” to be 

2 In 2011, the county had adopted a similar ordinance, which was appealed 

to the Land Use Board of Appeals (LUBA). LUBA remanded, and the county 

then updated the wording consistently with LUBA’s decision and adopted it as 

Ordinance 2012-04 in February 2012. Later in this opinion, we discuss the specific 

provisions of the original version of Ordinance 2012-04 and a revised, codified 

version dated August 16, 2012. For ease of reference throughout this opinion, we 

refer to “Ordinance 2012-04,” not to its codification.
Cite as 353 Or 465 (2013) 469

evaluated under ORS 469.504(1), instead of as a “public 

health and safety” measure to be evaluated under ORS 

469.401(2). The report additionally cited the council’s 

earlier approval of a smaller, 1/4-mile setback between wind 

turbines and residences in another, unrelated proceeding 

and an applicable noise-related “public health setback” 

with a distance that may exceed 1/4-mile, as adopted by the 

Oregon Department of Environmental Quality (ODEQ).3

The report also observed that the council previously had 

determined that the facility complied with ODEQ noise 

regulations and that the time extension request did not 

implicate that finding. Finally, the report recommended 

that the council deny petitioners’ requests for a contested 

case proceeding under OAR 345-027-0070(7).

On August 24, 2012, the council issued its final 

order approving Amendment #2 and incorporating the 

ODOE staff recommendations. Among other things, the 

final order (1) stated that the council had considered all 

public and reviewing agency comments and requests for a 

contested case proceeding; (2) determined that Ordinance 

2012-04 did not apply to the council’s determination 

whether the facility complied with statewide planning goals 

under ORS 469.504(1); (3) applied ODEQ noise control 

regulations as part of determining that the facility complied 

with administrative rules identified in the original project 

order; (4) adopted an ODOE staff recommendation to not 

require compliance with Ordinance 2012-04 under ORS 

469.401(2); (5) denied petitioners’ requests for a contested 

case proceeding because they had raised no significant 

issues of fact or law under OAR 345-027-0070(7); and 

(6) ultimately concluded that the facility complied with 

applicable siting statutes, council standards, and other 

applicable state statutes and administrative rules. The final 

order granted Helix’s time-extension request, subject to 

revisions set out in the order that are not at issue in this 

proceeding. Petitioners filed a petition for judicial review in 

this court. See ORS 469.405(1), ORS 469.403(3) (providing 

for such review).

3 See OAR 340-035-0035(1)(b)(B)(i) to (iii) (noise restrictions as to new 

industrial or commercial noise source generally and as to wind energy facilities).
470 Blue Mountain Alliance v. Energy Facility Siting

II. PARTIES’ ARGUMENTS

To frame the parties’ arguments, we first set out the 

statutes at issue. In deciding whether to issue a site certificate 

or an amended site certificate, the council must make a 

series of determinations as to whether a preponderance of 

the evidence supports several conclusions. See ORS 469.503 

(so providing). One such determination is whether the 

facility complies with statewide planning goals under ORS 

469.503(4). ORS 469.504(1), in turn, establishes alternative 

means for the council to make that determination. See Save 

Our Rural Oregon, 339 Or at 366-69 (so explaining). The 

applicable alternative in this proceeding, set out in ORS 

469.504(1)(b)(A), provides:

“(1) A proposed facility shall be found in compliance 

with the statewide planning goals under ORS 469.503(4) if:

“* ****

“(b) The Energy Facility Siting Council determines 

that:

“(A) The facility complies with applicable substantive 

criteria from the affected local government’s acknowledged 

comprehensive plan and land use regulations that are 

required by the statewide planning goals and in effect on 

the date the application is submitted, and with any Land 

Conservation and Development Commission administrative 

rules and goals and any land use statutes that apply directly 

to the facility under ORS 197.646[.]”

(Emphasis added.) That same analysis, including the 

“application submission date” requirement, applies to 

amended site certificates, OAR 345-027-0070(10). Thus, 

the statute and the administrative rule establish a “goalpost” rule for consideration of criteria derived from the local 

government’s comprehensive plan and land use regulations 

in relation to compliance with statewide planning goals. 

That “goal-post” rule is based on the application date of 

the facility site certificate or an amended site certificate. 

Here, Ordinance 2012-04 was adopted 25 days after the 

Amendment #2 application date.
Cite as 353 Or 465 (2013) 471

The other statute at issue, ORS 469.401(2), sets out 

the required contents for a site certificate or an amended 

site certificate, once the council decides to issue it. That 

statute provides, in part:

“The site certificate or amended site certificate shall 

contain conditions for the protection of the public health 

and safety, for the time for completion of construction, and 

to ensure compliance with the standards, statutes and rules 

described in ORS 469.501 and 469.503. The site certificate 

or amended site certificate shall require both parties to 

abide by local ordinances and state law and the rules of the 

council in effect on the date the site certificate or amended 

site certificate is executed, except that upon a clear showing 

of a significant threat to the public health, safety or the 

environment that requires application of later-adopted 

laws or rules, the council may require compliance with such 

later-adopted laws or rules.”

(Emphasis added.) Under that statute, the council must 

require compliance with certain “local ordinances and 

state law and [council] rules” in effect on the date that 

the certificate is executed, and the council may require 

compliance with “later-adopted laws or rules” upon a clear 

showing of a “significant threat to the public health, safety 

or the environment” that requires application of the lateradopted law or rule. Here, Ordinance 2012-04 was adopted 

about six months before the council issued its final order 

approving Amendment #2; the amended site certificate 

has not yet been executed, pending this judicial review 

proceeding.

The parties’ dispute requires that we construe 

the second statute, ORS 469.401(2)—specifically the two 

independent clauses in the second sentence4

—and determine 

whether the council erred in not requiring compliance 

with Ordinance 2012-04 in Amendment #2. Petitioners 

contend that, notwithstanding ORS 469.504(1)(b)(A),

Ordinance 2012-04 qualifies as a noise ordinance, bringing 

4 For ease of reference in this opinion, we refer to the first clause of the second 

sentence of ORS 469.401(2) as the “abide by local ordinances” clause and to the 

second clause as the “later-adopted laws” clause.
472 Blue Mountain Alliance v. Energy Facility Siting

it within the “public health and safety” concepts generally 

set out in ORS 469.401(2). Petitioners specifically argue 

that Ordinance 2012-04 falls within the scope of the “abide 

by local ordinances” clause and that the council therefore 

erred when it did not require compliance with the ordinance 

in Amendment #2. Alternatively, petitioners argue that 

Ordinance 2012-04 falls within the scope of the “later-adopted 

laws” clause, petitioners satisfied the “significant threat” 

threshold, and the council should have required compliance 

with the ordinance in the exercise of its discretion. Finally, 

petitioners contend that the council erred in denying their 

requests for a contested case proceeding, regarding the 

opportunity to demonstrate that the ordinance qualified 

as a public health and safety measure and that a setback 

of less than two miles posed a significant threat to public 

health and safety.

The council and Helix instead begin the analysis 

with ORS 469.504(1)(b)(A), contending that Ordinance 2012-

04 is a “land use regulation[]” under that statute. Because 

Ordinance 2012-04 was adopted after the Amendment 

#2 application date, the council and Helix assert that the 

council correctly concluded that the ordinance did not 

apply to the council’s evaluation of applicable substantive 

criteria under ORS 469.504(1)(b)(A), in determining facility 

compliance with statewide planning goals. Next, the council 

and Helix contend that any ordinance that qualifies as a 

“land use regulation[]” under ORS 469.504(1)(b)(A) cannot 

also be considered an ordinance to which the “abide by 

local ordinances” clause of ORS 469.401(2) applies. Helix 

adds that, if ORS 469.401(2) were construed to require 

Helix to comply with an ordinance that qualifies as a land 

use regulation that became effective after the application 

date, that result would conflict with ORS 469.504(1)(b)(A), 

which only requires consideration of land use regulations 

in effect as of the application date. The council and Helix 

further contend that the council did not err in declining to 

require compliance with Ordinance 2012-04 in Amendment 

#2 under the “later-adopted laws” clause of ORS 469.401(2) 

or in denying petitioners’ requests for a contested case 

proceeding.
Cite as 353 Or 465 (2013) 473

II. FIRST ASSIGNMENT OF ERROR:

ORS 469.401(2)—REQUIRED COMPLIANCE

WITH LOCAL ORDINANCES IN EFFECT

ON SITE CERTIFICATE EXECUTION DATE

A. Construction of “Abide by Local Ordinances” Clause of 

ORS 469.401(2)

Before construing ORS 469.401(2), it is important 

to explain the operation of ORS 469.504(1)(b)(A). Again, 

that statute provides as follows:

“(1) A proposed facility shall be found in compliance 

with the statewide planning goals under ORS 469.503(4) if:

“* ****

“(b) The Energy Facility Siting Council determines 

that:

“(A) The facility complies with applicable substantive 

criteria from the affected local government’s acknowledged 

comprehensive plan and land use regulations that are 

required by the statewide planning goals and in effect on 

the date the application is submitted, and with any Land 

Conservation and Development Commission administrative 

rules and goals and any land use statutes that apply directly 

to the facility under ORS 197.646[.]”

(Emphasis added.) As noted earlier, the same process applies 

to amended site certificates, OAR 345-027-0070(10). In Save 

Our Rural Oregon, 339 Or at 361, this court explained the 

underlying purpose of ORS 469.504:

“Oregon’s statewide land use planning goals, adopted 

by the Land Conservation and Development Commission 

(LCDC), set out broad objectives for land use planning in 

Oregon. Local governments implement those objectives in 

local comprehensive plans. ORS 197.225 to 197.250. ORS 

469.503(4) provides that the council may not issue a site 

certificate approving [a site certificate application] unless 

the proposed facility complies with the statewide planning 

goals. ORS 469.504, in turn, provides the guidelines for 

determining whether the [site certificate application] 

complies with those goals.”

Under the first part of ORS 469.504(1)(b)(A), the 

council must determine that the facility complies with 
474 Blue Mountain Alliance v. Energy Facility Siting

substantive criteria—derived from the local government’s 

“acknowledged comprehensive plan and land use 

regulations”—that are (1) required by statewide planning 

goals; and (2) “in effect” on the certificate or amendment 

application date. In its final order, the council determined 

that the two-mile setback embodied in Ordinance 2012-

04 was a “land use regulation[]” that should be evaluated 

under the “applicable substantive criteria” provision of ORS 

469.504(1)(b)(A). However, the council further determined 

that the ordinance was not “in effect” on the Amendment #2 

application date and therefore should not be included in the 

“applicable substantive criteria” used to determine whether 

the facility complied with the statewide planning goals. 

We agree with the council and Helix that the council was 

not required to consider the ordinance in its determination 

whether the facility complied with statewide planning goals 

because the ordinance was not “in effect” on the Amendment 

#2 application date. Petitioners do not appear to dispute that 

conclusion; instead, they principally rely on ORS 469.401(2), 

to which we now turn.

Again, ORS 469.401(2) provides, in part:

“The site certificate or amended site certificate shall 

contain conditions for the protection of the public health 

and safety, for the time for completion of construction, 

and to ensure compliance with the standards, statutes 

and rules described in ORS 469.501 and 469.503. The site 

certificate or amended site certificate shall require both 

parties to abide by local ordinances and state law and the 

rules of the council in effect on the date the site certificate or 

amended site certificate is executed, except that upon a clear 

showing of a significant threat to the public health, safety or 

the environment that requires application of later-adopted 

laws or rules, the council may require compliance with such 

later-adopted laws or rules.”

(Emphasis added.) As noted earlier, petitioners rely on both 

clauses in the second sentence. Under the “abide by local 

ordinances” clause, they emphasize that Ordinance 2012-04 

is a local ordinance that was “in effect” on the Amendment 

#2 execution date and the council therefore erred in not 

requiring compliance with that ordinance; alternatively, 

under the “later-adopted laws” clause, the ordinance should 
Cite as 353 Or 465 (2013) 475

be considered a “later-adopted law[]” and the council, in 

its discretion, should have required compliance with the 

ordinance.

We review for error of law. See ORS 183.482(8)(a) 

(court must determine whether agency “has erroneously 

interpreted a provision of law”); ORS 469.403(6) (ORS 

183.482 applies to petition for judicial review of council’s 

approval or rejection of site certificate or amended site 

certificate application); see also Save Our Rural Oregon, 

339 Or at 360 (identifying statutory construction question 

as legal issue). To address petitioners’ contentions, we 

employ our method of statutory construction set out in 

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), to 

ascertain the legislature’s intent. See also State v. Klein, 352 

Or 302, 309, 283 P3d 350 (2012) (when construing statutes, 

court reviews statutory text and context, including related 

statutes).

We begin with the text of the “abide by local 

ordinances” clause of ORS 469.401(2), which provides:

“The site certificate or amended site certificate shall 

require both parties to abide by local ordinances and state 

law and the rules of the council in effect on the date the site 

certificate or amended site certificate is executed[.]”

That clause contains a timing trigger for requiring party 

compliance with local ordinances, state laws, and council 

rules: the site certificate must require compliance with 

ordinances “in effect” on the certificate execution date 

(with exceptions identified in the “later-adopted laws” 

clause), and Ordinance 2012-04 is presently “in effect” 

within that statutory meaning. See ORS 469.401(1) (after 

council approves site certificate or amended site certificate, 

council chairperson and applicant shall execute certificate 

with prescribed conditions; here, the site certificate with 

Amendment #2 has not yet executed, pending this judicial 

review proceeding). What is less clear, however, is the 

intended scope of the unmodified phrase, “local ordinances 

and state law and the rules of the council.” That is, although 

petitioners infer that the clause refers to ordinances, laws, 

and rules that pertain to “public health and safety” in effect 

on the execution date—and although other parts of the 
476 Blue Mountain Alliance v. Energy Facility Siting

statute also use those same modifying words—the clause 

contains no wording to that effect. The council and Helix 

do not dispute that the phrase “local ordinances” in the 

clause may include ordinances relating to public health and 

safety; they contend, however, that any “local ordinance” 

that is a “land use regulation[]” under ORS 469.504(1)(b)(A)

is excluded from the intended scope of the “abide by local 

ordinances” clause. Simply stated, although the clause 

appears unambiguous on its face, the parties point to 

contextual clues to support their conflicting constructions.

We first agree with the parties that, in referring 

to “local ordinances,” the legislature intended the “abide 

by local ordinances” clause of ORS 469.401(2) to generally 

extend to local ordinances that serve to protect public health 

and safety. By way of context, the next clause of that same 

sentence—which is more narrowly drawn than the first—

provides a “later-adopted” exception for “laws or rules” that 

pose a significant threat “to the public health, safety,” or the 

environment. By setting out a subcategory of significant 

threat “to the public health [or] safety” that may justify 

application of “later-adopted” laws or rules, contrasted 

against laws or rules “in effect” on the certificate execution 

date, the “later-adopted laws” clause textually presumes 

that the preceding “abide by local ordinances” clause also 

extends to local ordinances, state law, and council rules that 

serve to protect public health and safety. A related statute, 

ORS 469.310, supports that construction, affirmatively 

stating as public policy that “the siting, construction and 

operation of energy facilities shall be accomplished in a 

manner consistent with protection of the public health and 

safety,” among other considerations. That is not to say that 

the phrase “abide by local ordinances and state law and the 

rules of the council” in ORS 469.401(2) is limited to local 

ordinances, state laws, and council rules that protect public 

health and safety; the context indisputably shows, however, 

that the legislature intended the scope of that phrase to 

extend to ordinances that protect public health and safety.

Having construed the “abide by local ordinances” 

clause of ORS 469.401(2) as including—but not necessarily 

limited to—local ordinances, state laws, and council rules 
Cite as 353 Or 465 (2013) 477

that protect public health and safety, we turn to other 

parts of ORS chapter 469 to assist our understanding of 

the scope of the term “local ordinances” in that clause. As 

explained below, several chapter components describing the 

site certificate application and approval process clarify the 

legislature’s intended meaning of that term as pertinent to 

our inquiry.

As to the initial site certificate application process, 

ORS 469.330(1) requires an applicant to submit to the 

council a notice of intent to file a site certificate application. 

Following review of the notice and a public comment 

period, ODOE must issue a project order that establishes 

the “statutes, administrative rules, council standards, 

local ordinances, application requirements and study 

requirements for the site certificate application.” ORS 

469.330(3) (emphasis added). After the applicant files the 

initial site certificate application and at the conclusion of a 

mandatory contested case proceeding, the council must issue 

a final order approving or rejecting the application. ORS 

469.370(7). Under that statute, the council must base its 

approval on identified, council-adopted standards adopted 

under ORS 469.501 “and any additional statutes, rules or 

local ordinances determined to be applicable to the facility 

by the project order, as amended.” (Emphasis added.) See 

also generally ORS 469.503(3) (before issuing certificate, 

council must determine whether facility complies with state 

statutes and administrative rules identified in project order 

as applicable to site certificate issuance).

Thus, the statutory scheme establishes that the 

process of drafting a project order and issuing a final 

order approving the site certificate application involves 

determining the “local ordinances” (and other provisions) 

that apply to the facility and with which an applicant must 

comply to obtain approval of its application. As part of that 

construct, ORS 469.401(2) logically is intended to require 

in the site certificate that the applicant comply with those 

same ordinances. Stated differently, given the statutory 

scheme, the reference in ORS 469.401(2) to “local ordinances 

and state law and the rules of the council in effect” on the 

certificate execution date logically refers to the ordinances, 

state law, and council rules that previously were determined 
478 Blue Mountain Alliance v. Energy Facility Siting

to apply to the facility in the course of developing the project 

order under ORS 469.330(3). See also ORS 469.401(2) 

(first sentence; site certificate must contain conditions to 

“ensure compliance with” statutes and rules described in 

ORS 469.503). Additionally, the phrase includes applicable 

ordinances, laws, and rules that may have become effective 

between the project order issuance date and the site 

certificate execution date—that is, provisions that, had they 

been in effect at the time that the project order issued, would 

have been included in that order under ORS 469.330(3). As 

previously discussed, those local ordinances, state laws, and 

rules may include—but are not limited to—public health 

and safety protections.

The council and Helix urge that ORS 469.504(1)(b)(A)

provides necessary context for the proper construction of 

the “abide by local ordinances” clause of ORS 469.401(2)—

specifically, the intended scope of any local ordinance subject 

to a compliance requirement in the site certificate. As 

discussed earlier, ORS 469.504(1)(b)(A) refers to applicable 

substantive criteria—derived from the local government’s 

acknowledged comprehensive plan and “land use

regulations” (emphasis added) in effect on the application 

date—that the council must consider in determining 

whether a facility complies with statewide planning goals. 

Essentially, the council and Helix argue that, because all 

applicable “land use regulations” fall within the scope of 

the council’s determination of goal compliance under ORS 

469.504(1)(b)(A), they cannot simultaneously fall within 

the scope of the “abide by local ordinances” clause of ORS 

469.401(2), relating to certificate requirements. That is, the 

council’s consideration of applicable “land use regulations” 

occurs at the point in time when the council determines 

whether a facility complies with statewide planning goals. 

By contrast, the council’s consideration of other, nonland use 

laws, rules, and ordinances extends to other points in the 

siting process. The legislature intended the two concepts to 

remain separate, the council and Helix argue, in large part 

because of their different “trigger” dates—the application 

date in ORS 469.504(1)(b)(A) for land use regulations, and 

the certificate execution date in ORS 469.401(2) for other 

local ordinances, state laws and council rules. Otherwise, 
Cite as 353 Or 465 (2013) 479

the council could require compliance in a site certificate 

with a local “land use regulation[]” that was not in effect on 

the application date and that the council therefore had been 

precluded from considering for statewide planning goal 

compliance purposes under ORS 469.504(1)(b)(A).

We have explained that ORS 469.504(1)(b)(A) 

and ORS 469.401(2) serve different purposes and apply at 

different stages of the site certificate application process, 

which arguably undercuts the council’s and Helix’s contention 

that the statutes must operate in harmony, particularly as to 

their trigger dates. At the same time, however, those varying 

purposes and applications provide some helpful statutory 

context. Notably, ORS 469.504(1)(b)(A) applies to the central 

determination whether an application for a site certificate 

or amendment should be approved or rejected. Only after 

the council has decided to approve the application does it 

determine the required contents of the certificate under 

ORS 469.401(2). The subordinate nature of the council’s 

determination of certificate contents under ORS 469.401(2), 

in relation to its central determination of application 

approval under ORS 469.504(1)(b)(A), suggests that the 

legislature intended ORS 469.401(2) to operate consistently 

with—and not to circumvent—ORS 469.504(1)(b)(A).

See generally Davis v. Wasco IED, 286 Or 261, 272, 593 P2d 

1152 (1979) (“whenever possible the court should construe 

together statutes on the same subject as consistent with 

and in harmony with each other”). That, in turn, supports 

the council’s and Helix’s contention that the “abide by local 

ordinances” clause in ORS 469.401(2) excludes ordinances that 

qualify as “land use regulations” under ORS 469.504(1)(b)(A).

Another part of ORS chapter 469 further supports 

that construction of ORS 469.401(2). ORS 469.503 requires 

that, in determining whether to issue a site certificate, the 

council must make a number of determinations about the 

facility. One such determination, as previously discussed, is 

whether the facility complies with statewide planning goals, 

ORS 469.503(4), pursuant to the alternative means provided 

in ORS 469.504(1). Another compliance determination is set 

out in subsection (3) of ORS 469.503, as follows:
480 Blue Mountain Alliance v. Energy Facility Siting

“In order to issue a site certificate, the *** [c]ouncil 

shall determine that the preponderance of the evidence on 

the record supports the following conclusions:

“* ****

“(3) Except as provided in ORS 469.504 for land use 

compliance * * *, the facility complies with all other Oregon 

statutes and administrative rules identified in the project 

order, as amended, as applicable to the issuance of a site 

certificate for the proposed facility. * **”

(Emphasis added.) That statute requires the council to 

determine that the facility complies with state statutes 

and rules previously determined to apply to the facility 

and therefore identified in the project order under ORS 

469.330(3). As previously discussed, the reference in the 

“abide by local ordinances” clause of ORS 469.401(2) to 

“local ordinances and state law and the rules of the council” 

in effect on the certificate execution date means those 

provisions previously identified in the project order under 

ORS 469.330(3), together with other applicable provisions 

that may have become effective between the project order 

issuance and certificate execution dates. That is, the same 

state statutes and rules identified in the project order 

under ORS 469.330(3) and therefore subject to certificate 

compliance requirements in ORS 469.401(2) also are 

subject to a facility compliance determination under ORS 

469.503(3).

Significantly, in setting out that compliance 

determination requirement, ORS 469.503(3) expressly 

distinguishes state statutes and rules that pertain to “land 

use compliance” based on the application date under ORS 

469.504 from “all other Oregon statutes and administrative 

rules” previously identified in the project order. (Emphasis 

added.) Indeed, ORS 469.503(3) characterizes ORS 469.504—

the statute that requires a compliance determination as to 

statewide planning goals that may include evaluation of 

the local government’s comprehensive plan and “land use 

regulations”—as a “land use compliance” statute. That 

characterization demonstrates a legislative intention that 
Cite as 353 Or 465 (2013) 481

the council evaluate a provision of law or rule that qualifies 

as a “land use regulation[]” only under ORS 469.504(1), as 

part of the council’s statewide planning goal determination 

under ORS 469.503(4).5

 By contrast, the legislature 

identified a separate category of “other” applicable provisions 

“identified in the project order” under ORS 469.330(3) that 

must be part of a separate compliance determination under 

ORS 469.503(3). And, as previously noted, the “abide by 

local ordinances” clause of ORS 469.401(2) in turn provides 

a mechanism for requiring compliance with such provisions 

(and similar provisions adopted after the project order but 

before execution of the site certificate) in the site certificate.6

No aspect of the statutory context supports petitioners’ 

competing construction.

In light of the statutory context, we conclude that 

the requirement in ORS 469.401(2) that a site certificate 

or amended site certificate must require compliance with 

“local ordinances and state law and the rules of the council 

in effect on the date the site certificate or amended site 

certificate is executed” does not include any ordinance, law, 

or rule that is a “land use regulation[]”for purposes of ORS 

469.504(1)(b)(A).

5 In Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 368, 121 

P3d 1141 (2005), this court explained that “the statewide land use planning goals 

establish broad policy objectives, while the applicable substantive criteria provide 

specific ways of implementing those objectives through local regulation.” (Internal 

quotations omitted.) Those “applicable substantive criteria,” in turn, are derived 

from the affected local government’s acknowledged comprehensive plan and land 

use regulations, ORS 469.504(1)(b).

6 We recognize that, in contrasting a “land use compliance” determination 

under ORS 469.504 against “other” facility compliance determinations, ORS 

469.503(3) does not refer to any “local ordinance” determined in the project order 

to apply to the facility. Compare ORS 469.330(3) (project order must establish “the 

statutes, administrative rules, council standards, local ordinances, application 

requirements and study requirements for the site certificate application” (emphasis 

added)); ORS 469.370(7) (council determination whether to issue final order must 

be based on standards adopted under ORS 469.501 “and any additional statutes, 

rules or local ordinances determined to be applicable to the facility by the project 

order, as amended” (emphasis added); ORS 469.401(2) (certificate must require 

compliance with “local ordinances and state law and the rules of the council” 

(emphasis added)). That lack of reference to local ordinances in ORS 469.503(3), 

however, does not diminish the import of that statute’s characterization of ORS 

469.504 as a “land use compliance” statute—as opposed to a category of “other,” 

nonland use statutes, rules, and ordinances—for purposes of our analysis.
482 Blue Mountain Alliance v. Energy Facility Siting

B. Ordinance 2012-04—“Land Use Regulation[]” or “Public 

Health and Safety” Ordinance

We turn to whether the council properly 

characterized the two-mile setback contained in Ordinance 

2012-04 as a “land use regulation[]” subject to analysis 

under ORS 469.504(1)(b)(A) or whether it should have 

treated the ordinance as a nonland use ordinance requiring 

compliance under the “abide by local ordinances” clause 

of ORS 469.401(2). We review the council’s determination 

for any error of law. See Rubalcaba v. Nagaki Farms, Inc., 

333 Or 614, 619, 43 P3d 1106 (2002) (agency determination 

whether subject of applicable legal standard qualifies under 

that standard is conclusion of law, not finding of fact); Woody 

v. Waibel, 276 Or 189, 192 n 3, 554 P2d 492 (1976) (same; 

distinguishing when assessing question of law may involve 

predicate question of fact).

Ordinance 2012-04 was adopted as an amendment 

to the Umatilla County Code of Ordinances, as a new 

provision in the Development Code (UCDC, chapters 150-

153 of the Umatilla County Code of Ordinances), UCDC 

section 152.616(HHH)(6)(a). That ordinance, as adopted on 

February 28, 2012, provided:

“§ 152.616 STANDARDS FOR REVIEW OF CONDITIONAL USES AND LAND USE DECISIONS.

“(HHH) Commercial Wind Power Generation Facility.

“(6) Standards/Criteria of Approval The following 

requirements and restrictions apply to the siting of a Wind 

Power Generation Facility:

“[(a)] Setbacks. The minimum setback shall be a 

distance of not less than the following:

“(1) From a turbine tower to a city urban growth 

boundary (UGB) shall be two miles. The measurement of 

the setback is from the centerline of a turbine tower to the 

edge of the UGB that was adopted by the city as of the date 

the application was deemed complete.

“(2) From a turbine tower to land zoned Unincorporated 

Community (UC) shall be 1 mile.
Cite as 353 Or 465 (2013) 483

“(3) From a turbine tower to a rural residence shall 

be 2 miles. For purposes of this section, a ‘rural residence’ 

is defined as a legal, conforming dwelling existing on the 

parcel at the time an application is deemed complete. The 

measurement of the setback is from the centerline of the 

turbine tower to the centerpoint of the residence.”

See Ordinance No 2012-04, http://www.co.umatilla.or.us/

planning/ordinances/Ordinance _2012-04.pdf (last accessed 

Apr 9, 2013) (italics in original). A revised version of the 

UCDC dated August 16, 2012—eight days before the council 

issued the final order at issue in this case—contains an 

expanded version of Ordinance 2012-04, still codified as 

UCDC section 152.616(HHH)(6)(a).7

 The expanded version 

includes the provisions set out above, with revised and 

additional text in subsection (6)(a)(3) that does not affect 

our analysis here. The revised version contains additional 

subsections to section (6)(a) that provide, in part:

“(4) A Wind Power Generation Facility applicant may 

apply for and receive an adjustment for a reduced distance 

between a turbine tower and a rural residence under the 

following approval criteria. The adjustment application 

shall be submitted on a form provided by the County and 

signed by the rural residence landowner.

“(i) The adjustment will not significantly detract from 

the livability of the subject rural residence. This standard is 

satisfied if applicable [O]DEQ noise standards are satisfied, 

there is no significant adverse impact to property access and 

traffic conditions, and other evidence demonstrates that the 

residence remains suitable for peaceful enjoyment or, such 

impacts to the livability of the rural residence resulting from 

the adjustment are mitigated to the extent practical; and

“(ii) All other requirements of the Wind Power 

Generation Facility application remain satisfied.

“(5) An adjustment application under this section 

shall be processed as a Land Use Decision concurrently 

7 We take judicial notice of the undisputed contents of the revised version 

of Ordinance 2012-04 dated August 16, 2012, as well as other aspects of the 

Code of Umatilla County. Only the original version of Ordinance 2012-04 and an 

interim, revised version dated March 13, 2012, are contained in the record of this 

proceeding.
484 Blue Mountain Alliance v. Energy Facility Siting

with the Wind Power Generation Facility application. For 

applications subject to Energy Facility Siting Council * ** 

jurisdiction, an adjustment application shall be included 

as the applicable substantive criteria evaluated by [the 

council] when granting or denying an application for a Site 

Certificate.

“*****

“(9) The turbine/towers shall be of a size and design 

to help reduce noise or other detrimental effects. At a 

minimum, the Wind Power Generation Facility shall be 

designed and operated within the limits of noise standard(s) 

established by the State of Oregon. A credible noise study 

may be required to verify that noise impacts in all wind 

directions are in compliance with the State noise standard.”

See http://www.co.umatilla.or.us/planning/pdf/Umatilla_

County_Development_Code.pdf, 310-11 (last accessed

Apr 9, 2013) (emphases added).

In text and context, Ordinance 2012-04 bears the

characteristics of a “land use regulation[],” consistently 

with the legislature’s use of that term in ORS 469.504(1)

(b)(A). The ordinance was adopted as an amendment 

to the county’s Development Code, maintained by the 

county’s Department of Land Use Planning. As written, 

the ordinance operates as a “siting” restriction. Revised 

subsection (6)(a)(4) permits a setback of less than two miles 

if approved through an adjustment application process; 

significantly, revised subsection (6)(a)(5) provides that such 

an adjustment application shall be processed as a “Land 

Use Decision” and that such applications “shall be included 

as the applicable substantive criteria” that the council 

evaluates in determining whether the facility complies 

with statewide planning goals under ORS 469.504(1). By 

contrast, subsection (6)(a)(4)(i) designates ODEQ noise 

regulations as providing applicable “noise standards” by 

which to measure an approved adjustment application, and 

subsection (6)(a)(9) establishes a “minimum” noise standard 

for wind energy facilities consistently with statewide noise 

standards—that is, those adopted by ODEQ. Ordinance 

2012-04 does not itself establish any noise standard that 

may justify treating the ordinance as a “public health and 
Cite as 353 Or 465 (2013) 485

safety” measure, as opposed to a “land use regulation[].”8

In sum, the foregoing evaluation supports the council’s 

conclusion that the ordinance is a “land use regulation[]” 

for purposes of ORS 469.504(1)(b)(A).

In arguing to the contrary, petitioners rely, in part, 

on the “purpose” statement in Chapter 152 of the UCDC, 

which expressly refers to the promotion of public health 

and safety. That statement, codified as UCDC § 152.002, 

provides:

“The intent of purpose of this chapter is to promote the 

public health, safety and general welfare and to carry out 

the County Comprehensive Plan, the provisions of ORS 

Chapters 92 and 215 and the Statewide Planning Goals 

adopted pursuant to ORS Chapter 197. This chapter is 

to establish use zones and regulations governing the 

development and use of land within portions of the county; 

to provide regulations governing non-conforming uses 

and structures; to establish and provide for the collection 

of fees; to provide to the administration of this chapter 

and for the officials whose duty it shall be to enforce the 

provisions thereof; to provide penalties for the violations of 

this chapter; to provide for conflicts with other ordinances 

or regulations; and provide classifications and uniform 

standards for the division of land and the installation of 

related improvements in portions of the unincorporated 

area of the county.”

See http://www.co.umatilla.or.us/planning/pdf/Umatilla_

County_Development_Code.pdf, 12 (last accessed Apr 9,

2013). As can be seen, the statement identifies several 

purposes of chapter 152, not just the promotion of public 

health, safety, and general welfare—which, arguably, is an 

inextricable component of most land use regulations. Notably, 

the identified purposes include carrying out the county’s 

comprehensive plan, state law pertaining to subdivisions 

and partitions (ORS chapter 92), state law pertaining to 

county planning, zoning, and housing codes (ORS chapter 

215), and the statewide planning goals adopted pursuant to 

ORS chapter 197. Further, the statement primarily describes 

8 Compare Code of Umatilla County, Chapter 96 (“Noise Control Ordinance,” 

Ordinance 99-07) (setting out, among other things, restrictions on noise levels), see 

http://www.co.umatilla.or.us/deptwebs/codes/96.pdf (last accessed Apr 9, 2013)).
486 Blue Mountain Alliance v. Energy Facility Siting

the contents of Chapter 152 by using wording that can be 

characterized as relating to “land use” and not to “public 

health and safety.” Indeed, in its original final order approving 

the initial site certificate, the council drew the “applicable 

substantive criteria from the affected local government’s 

acknowledged comprehensive plan and land use regulations” 

under ORS 469.504(1)(b)(A) largely from various sections 

of UCDC Chapter 152. In short, the “purpose” statement 

cuts against petitioners’ contention that Ordinance 2012-04

is a “public health and safety” measure subject to the 

“abide by local ordinances” clause of ORS 469.401(2), 

rather than a “land use regulation[]” as the legislature 

intended that term to apply in ORS 469.504(1)(b)(A).

Petitioners are correct that one effect of Ordinance 

2012-04 may be a positive impact on public health and safety, 

given that an increased distance between wind turbines and 

rural residences potentially lessens any health or safety 

hazards that arguably may flow from turbine installation. 

The same could be said, however, for any number of land 

use restrictions—for example, a restriction that prohibits 

development in a flood plain may bear the characteristics of 

a “land use regulation[],” while at the same time having the 

effect of protecting public health and safety.9

 The fact that 

such a restriction may operate to benefit public health and 

safety, however, does not diminish its qualification under 

the legislature’s express category of “land use regulations[]” 

for purposes of ORS chapter 469. That same logic applies 

to Ordinance 2012-04: As is clear from the text of the 

ordinance, the context of its adoption as part of the county’s 

Development Code, and the UCDC purpose statement, the 

ordinance qualifies—under the legislative category of “land 

use regulations” identified in ORS 469.504(1)(b)(A)—as 

9 We also acknowledge that the legislature has determined, in other statutory 

contexts, that a “land use” regulation simultaneously may relate to “public 

health and safety.” See, e.g., ORS 197.723(5)(a) (statute establishing process for 

designating regionally significant industrial areas; one particular subsection does 

not apply to any “land use regulation that is necessary *** [t]o protect public 

health or safety”). Indeed, as noted earlier, ORS 469.310 requires that “the siting, 

construction and operation of energy facilities shall be accomplished in a manner 

consistent with protection of the public health and safety,” which demonstrates 

that the legislature intended that public health and safety considerations be part 

of the siting decision for an energy facility.
Cite as 353 Or 465 (2013) 487

a “land use regulation[]” pertaining to the siting of wind 

turbines.10

C. Council’s Application of ORS 469.504(1)(b(A) and 

“Abide by Local Ordinances” Clause of ORS 469.401(2) 

in its Final Order

We turn to the council’s application of the statutes 

at issue in its final order approving Amendment #2. First, 

the council applied ORS 469.504(1)(b)(A) and determined 

that it was precluded from including Ordinance 12-04 as 

part of the “applicable substantive criteria” to consider in 

making a land-use compliance determination, because 

the ordinance was not “in effect” on the Amendment #2 

application date. As previously explained, we agree with the 

council that (1) Ordinance 2012-04 qualifies as a “land use 

regulation[]” within the meaning of ORS 469.504(1)(b)(A);

and, (2) because the ordinance was not “in effect” on the 

Amendment #2 application date, it should not be considered 

as part of the substantive criteria assessment set out 

under that statute. The council did not err in applying ORS 

469.504(1)(b)(A) in that manner.

Next, the council made a series of compliance 

determinations applying various public health and 

safety council-adopted standards, state statutes, and 

administrative rules to Amendment #2. For example, the 

council determined that, under ORS 469.503(1), the facility 

complied with council-adopted standards identified in ORS 

469.501, including standards for the design, construction, 

and operation of the wind turbines, to avoid endangering 

public safety and to include adequate safety devices and 

10 Petitioners also cite Oregon statutes and administrative rules that pertain 

to noise regulations, specifically, ORS 467.010 (declared policy that state has 

interest in controlling noise emission pollution and that protection program should 

be initiated) and OAR 340-035-0005 (ODEQ rule; state public policy to provide 

coordinated statewide noise control program, to facilitate cooperation among 

state and local governmental units in that regard, and to develop progressive and 

cooperative noise-control program). In petitioners’ view, in linking noise prevention 

with public health, those provisions support construing Ordinance 2012-04 as 

a “public health and safety” ordinance subject to the “abide by local ordinances” 

clause of ORS 469.401(2). The existence of those express public policies, however, 

do not support characterizing Ordinance 2012-04—which, by its terms, was written 

and adopted as a land-use regulation and therefore subject to consideration under 

ORS 469.504(1)(b)(A)—as a public health and safety measure in the manner that 

petitioners contend.
488 Blue Mountain Alliance v. Energy Facility Siting

testing procedures. The council noted in that regard 

that several related site certificate conditions, expressly 

included in the original final order approving the initial 

site certificate, were necessary to “ensure public safety.” 

See ORS 469.503(1) (before issuing site certificate, council 

must determine that preponderance of evidence supports 

conclusion that facility complies with council-adopted 

standards under ORS 469.501); ORS 469.501(1) (council 

shall adopt standards for energy facility siting, construction, 

operation, and retirement, including standards addressing 

structural, financial, environmental, and public health and 

safety concerns; council has adopted those standards as 

administrative rules); ORS 469.401(2) (site certificate shall 

contain conditions for, among other things, “protection of the 

public health and safety”). The council further determined 

under ORS 469.503(3) that the facility, with Amendment 

#2, would comply with “all other Oregon statutes and 

administrative rules identified in the project order,” including 

ODEQ noise regulations, subject to site certificate conditions 

already identified in the original final order. Then, as to the 

requirement in ORS 469.310 that the council ensure that 

the siting, construction, and operation of energy facilities “be 

accomplished in a manner consistent with protection of the 

public health and safety,” the council identified previously 

imposed “public health and safety” conditions addressing fire 

protection, magnetic fields, and coordination with the Public 

Utilities Commission regarding electrical transmission 

line design. As to all those described components, the 

council determined that nothing in Amendment #2 would 

alter the earlier compliance findings from its original 

final order approving the initial site certificate, so long as 

previously imposed conditions continued to apply. We set 

out the foregoing determinations—which petitioners do not 

dispute—as an illustration of the council’s assessment and 

application of various “public health and safety” standards, 

rules, and site certificate conditions to Amendment #2.

We turn to the council’s application of the “abide 

by local ordinances” clause of ORS 469.401(2). The council 

expressly stated that “the site certificate holder is subject to 

all applicable conditions and requirements contained in the 

rules of the Council and in local ordinances and state law 
Cite as 353 Or 465 (2013) 489

in effect on the date the amended site certificate is executed.” 

(Emphasis added.) In that part of its final order, the council 

did not mention Ordinance 2012-04; however, the council 

previously had considered and rejected application of the 

ordinance in determining whether the facility complied with 

statewide planning goals under ORS 469.504(1)(b)(A) and 

had incorporated an ODOE staff recommendation that it not 

apply the ordinance under the “abide by local ordinances” 

clause of ORS 469.401(2). As do the parties, we infer that 

the council concluded that the proper characterization 

of Ordinance 2012-04 as a “land-use regulation[]” subject 

to evaluation under ORS 469.504(1)(b)(A) precluded its 

application under the “abide by local ordinances” clause of 

ORS 469.401(2).

In light of our statutory analysis and review of the 

council’s legal evaluation of Ordinance 2012-04, we conclude 

that the council did not err in its application of the “abide 

by local ordinances” clause of ORS 469.401(2). As discussed, 

the council correctly characterized Ordinance 2012-04 as 

a “land use regulation[]” under ORS 469.504(1)(b)(A) and 

correctly concluded that the effective date of the ordinance 

precluded its consideration under that statute. Because the 

council accurately characterized Ordinance 2012-04 as a 

“land use regulation[],” it also correctly concluded that the 

ordinance did not fall within the scope of the “abide by local 

ordinances” clause of ORS 469.401(2).

IV. SECOND ASSIGNMENT OF ERROR:

ORS 469.401(2)—“LATER-ADOPTED” LAWS OR RULES

We turn to petitioners’ second assignment of error, 

under the “later-adopted laws” clause of ORS 469.401(2), 

which provides:

“The site certificate or amended site certificate shall 

require both parties to abide by local ordinances and state 

law and the rules of the council in effect on the date the 

site certificate or amended site certificate is executed, 

except that upon a clear showing of a significant threat to 

the public health, safety or the environment that requires 

application of later-adopted laws or rules, the council may 

require compliance with such later-adopted laws or rules.”
490 Blue Mountain Alliance v. Energy Facility Siting

(Emphasis added.) Relying on the ODOE staff report, the 

council in its final order declined to require compliance with 

Ordinance 2012-04 as a “later-adopted law[]”under ORS 

469.401(2). Petitioners assert that the ordinance qualifies 

as a “later-adopted law[],” that they presented substantial 

evidence to satisfy the “significant threat” requirement, 

and that the council abused its discretion when it failed to 

require compliance with the ordinance in Amendment #2.

Before turning to the merits, we address three 

preliminary considerations. First, the parties do not appear 

to dispute that the words “later-adopted laws or rules” 

in ORS 469.401(2) mean laws or rules adopted after the 

execution date of either the site certificate or an amended 

site certificate, as applicable.11 Here, the county adopted 

Ordinance 2012-04 before the council issued its final order 

approving Amendment #2 and before the execution date 

for Amendment #2—indeed, that amended site certificate 

has not yet been executed, pending the outcome of this 

proceeding. In the context of this assignment of error, then, 

petitioners appear to treat the execution date for either the 

initial site certificate or for Amendment #1—which both 

predated adoption of Ordinance 2012-04—as the operative 

trigger date that justifies treatment of the ordinance as a 

“later-adopted law[].” That is, unlike their first assignment of 

error—which exclusively focuses on the statutorily required 

contents of Amendment #2—this assignment alternatively 

contends that Amendment #2 should address the changed 

circumstance of the county’s adoption of Ordinance 2012-04 

after the execution date for either the original site certificate 

or Amendment #1.

Second, we note that OAR 345-027-0090 provides 

a process for requesting that the council require facility 

compliance with later-adopted laws or rules under 

the “significant threat” requirement set out in ORS 

469.401(2). Such a process was not initiated here; instead, 

petitioners raised (and continue to raise) their “lateradopted” contentions in the context of challenging Helix’s 

Amendment #2 application. Although the council and Helix 

11 By contrast, the preceding “abide by local ordinances” clause of ORS 

469.401(2) unequivocally applies to local ordinances, state law, and council rules in 

effect on the execution date.
Cite as 353 Or 465 (2013) 491

disagree with petitioners on the merits, they do not argue 

that petitioners should have raised this challenge through 

the process established in OAR 345-027-0090.

Third, in disagreeing with petitioners on the merits, 

the council and Helix do not appear to dispute petitioners’ 

assumption that a local ordinance may qualify under the 

“later-adopted laws or rules” clause of ORS 469.401(2) 

(emphasis added). As a matter of statutory interpretation, 

we agree with that construction. At first blush, the more 

precise wording of the preceding “abide by local ordinances” 

clause—which requires inclusion in the site certificate of 

compliance conditions as to “local ordinances and state law 

and the rules of the council” in effect on the execution date 

(emphasis added)—coupled with the lack of reference to 

“local ordinances” in the “later-adopted laws” clause, could 

be read to suggest that “later-adopted” laws include state 

laws but exclude local ordinances. However, other aspects 

of the statutory scheme suggest that “later-adopted laws” 

include local ordinances. For example, subsection (3) of ORS 

469.401 provides, in part:

“(3) *** After the site certificate or amended site 

certificate is issued, the only issue to be decided in an 

administrative or judicial review of a state agency or local 

government permit for which compliance with governing 

law was considered and determined in the site certificate 

or amended site certificate proceeding shall be whether the 

permit is consistent with the terms of the site certificate or 

amended site certificate. * **”

That subsection of ORS 469.401 uses the words “governing 

law” to refer to the collective body of ordinances, state law, 

and rules that are subject to site certificate compliance 

requirement terms under subsection (2). That reference 

in turn suggests that the similarly broad “later-adopted 

laws” clause of subsection (2) incorporates local ordinances, 

as well. By contrast, ORS chapter 469 consistently refers 

to categories of applicable state law as “statutes” or “state 

laws,” instead of using the broader term, “laws.” See ORS 

469.503(3) (in determining facility compliance with “Oregon 

statutes and administrative rules identified in the project 

order,” if council identifies related conflicting certificate 

conditions, council may resolve conflict but may not waive 
492 Blue Mountain Alliance v. Energy Facility Siting

“any applicable state statute” (emphases added)); ORS 

469.504(3) (similar waiver provision; refers to “applicable 

statutes and state administrative rules” (emphasis added)); 

ORS 469.401(2) (refers to compliance with future-adopted 

“applicable state and federal laws” to extent required under 

state agency statutes and rules (emphasis added)). In light 

of that statutory context, we agree with all parties that 

“later-adopted laws” referred to in ORS 469.401(2) may 

include local ordinances.

We turn to petitioners’ contention on the merits. 

As noted, under ORS 469.401(2), the council “may” require 

compliance with a “later-adopted law[]” upon a clear 

showing of a significant threat to the public health, safety, 

or the environment that requires application of such a law. 

Because the council’s determination under that clause is 

discretionary, we review the council’s decision to not require 

compliance with Ordinance 2012-04 as a “later-adopted 

law[]” for abuse of discretion. See ORS 183.482(8)(b)(A) 

(court shall remand if it finds agency’s exercise of discretion 

to be outside range of discretion delegated to agency by law).

In its final order approving Amendment #2, the 

council incorporated by reference factual findings from both 

the original final order approving the initial site certificate 

and the final order approving Amendment #1 that the 

facility would comply with ODEQ noise regulations, subject 

to identified site certificate conditions. The council further 

concluded that, subject to those same site certificate 

conditions, the facility would comply with applicable 

ODEQ regulations under Amendment #2. The council did 

not specifically analyze petitioners’ contentions under the 

“later-adopted laws” clause of ORS 469.401(2) in its final 

order; instead, the order incorporated the ODOE staff report 

analysis by reference.

The ODOE staff report recommended that the 

council decline to find that a setback of less than two miles 

posed a significant threat to public health and safety. 

First, the report explained that the council previously 

had determined—in an unrelated proceeding—that a 1/4 

mile setback was sufficient and that the council since had 

applied that smaller setback to other wind energy facilities. 
Cite as 353 Or 465 (2013) 493

Second, the report explained that ODEQ noise regulations 

established a “public health setback” that may exceed 1/4 

mile depending on certain circumstances and that the 

council applied those regulations to all energy facilities. 

The report therefore recommended that the council follow 

its own previously established 1/4-mile setback or a setback 

that otherwise complied with ODEQ regulations, whichever 

was greater. The report further noted that the council 

expressly had declined to adopt a two-mile setback when the 

same question had been raised in proceedings challenging 

Amendment #1 the previous year; as noted, both the original 

final order and the final order approving Amendment #1 

had concluded that (with identified conditions in place) 

the facility would comply with ODEQ noise regulations. 

By incorporating the ODOE staff report by reference, the 

council implicitly declined to require compliance with 

Ordinance 2012-04 in Amendment #2 as a “later-adopted 

law[].”

In challenging that decision, petitioners argue that 

the council discounted their supporting documentation 

demonstrating the adverse public health effects of wind 

turbine noise and that the council failed to evaluate whether 

petitioners had made a sufficient “significant threat” showing, 

so as to justify requiring compliance with Ordinance 2012-04 

as a “later-adopted law[] under ORS 469.401(2). Petitioners 

are correct that, in its assessment of the “significant threat” 

question, the council expressly focused on its own precedent 

and, in particular, the applicable ODEQ regulations, 

rather than on petitioners’ arguments and documentation. 

However, after viewing the relevant final order components 

as a whole, we understand the council to have declined 

to require compliance with Ordinance 2012-04 because 

the applicable ODEQ regulations and council precedent 

countered petitioners’ proffered “significant threat” showing.

We conclude that the council did not abuse 

its discretion in declining to require compliance with 

Ordinance 2012-04 in Amendment #2 as a “later-adopted 

law[]” under ORS 469.401(2). As part of issuing both 

its original final order and its final order approving 

Amendment #1, the council previously had determined 
494 Blue Mountain Alliance v. Energy Facility Siting

that the facility was subject to the ODEQ noise regulations 

and that the facility would comply with those regulations. 

In succinctly addressing petitioners’ contentions in this 

Amendment #2 proceeding, the council continued to apply 

its earlier analysis from the Amendment #1 proceeding and 

determined that its own precedent, facility compliance with 

ODEQ regulations, and previously imposed site certificate 

conditions effectively negated petitioners’ “significant 

threat” contentions. The council’s reliance on the ODEQ 

regulations as part of assessing petitioners’ “significant 

threat” contention fell within its statutory authority under 

ORS 469.401(2).12 It follows that its ultimate determination 

that the “later-adopted laws” clause of that statute did not 

require compliance with Ordinance 2012-04 also fell within 

its authority.

V. THIRD ASSIGNMENT OF ERROR:

OAR 345-027-0070(7)—CONTESTED CASE 

PROCEEDING

Petitioners’ final assignment of error is that the 

council erred in denying their requests for a contested 

case proceeding. They rely on OAR 345-027-0070(7), which 

provides, in part:

“To determine that an issue justifies a contested case 

proceeding under section (8),[13] the Council must find that 

the request raises a significant issue of fact or law that may 

affect the Council’s determination that the facility, with the 

change proposed by the amendment, meets an applicable 

standard. If the Council finds that the request would not 

affect the Council’s determination if the alleged facts were 

found to be true but that those facts could affect a site 

certificate condition, the Council may deny the request and 

may adopt appropriate conditions. * **”

12 And, even if the council had determined that petitioners had established a 

“significant threat,” it nonetheless had discretion under ORS 469.401(2) whether 

to treat Ordinance 2012-04 as a “later-adopted law[].”

13 OAR 345-027-0070(8) provides, in part, that the council “shall determine 

whether any issue identified in a request for a contested case proceeding justifies 

a contested case proceeding[.]” See also OAR 345-027-0070(6) (any person may ask 

council to hold contested case proceeding on proposed order; written request must 

include description of contested issues and statement of facts believed to be at 

issue).
Cite as 353 Or 465 (2013) 495

(Emphasis added.) Petitioners focus on the “significant 

issue of fact or law” component, arguing that their legal 

and factual submissions to the council as to the proper 

application of ORS 469.401(2) and Ordinance 2012-04, and 

the noise impact of wind turbines on public health and 

safety, satisfied that component. Petitioners additionally 

contend that a contested case proceeding would have 

provided them the opportunity to further develop their legal 

analysis and more persuasively establish that a setback 

of less than two miles would create a “significant threat” 

to public health and safety under the second clause of the 

second sentence of ORS 469.401(2). As to the “applicable 

standard” component of OAR 345-027-0070(7), petitioners 

characterize the alternative 1/4-mile setback and ODEQ 

regulations as insufficient alternative “standards” to the 

two-mile setback required in Ordinance 2012-04; they also 

characterize their proffered construction of ORS 469.401(2) 

as a “standard” that applied to the council’s determination 

under OAR 345-027-0070(7).

OAR 345-027-0070(7) requires that petitioners raise 

“a significant issue of fact or law” and also that the issue 

must be one that may affect the council’s determination 

that the facility, with the proposed amendment, would 

“meet[] an applicable standard.” (Emphasis added.) In the 

context of OAR chapter 345, the phrase “meets an applicable 

standard” in OAR 345-027-0070(7) has a particular meaning. 

ORS 469.501 requires the council to adopt “standards 

for the siting, construction, operation and retirement of 

[energy] facilities,” and the council has done so.14 As part 

of the site certificate application process, the council must 

determine that the facility complies with those counciladopted standards, ORS 469.503(1), just as it also must 

determine whether the facility complies with statewide 

planning goals, ORS 469.503(4), and whether it complies 

14 See OAR 345-022-0010 - 345-022-0120 (setting out standards relating to 

applicant’s organizational expertise; facility structure; soil protection; land use 

(including compliance with statewide planning goals); protected areas; retirement 

and financial assurance; fish and wildlife habitat; threatened and endangered 

species; scenic resources; historic, cultural, and archaeological resources; 

recreation; public services; and waste minimization); OAR 345-024-0010 - 345-024-

0720 (setting out specific standards for siting facilities, including wind facilities, 

transmission lines, and facilities that emit carbon dioxide).
496 Blue Mountain Alliance v. Energy Facility Siting

with other state statutes and rules identified in the project 

order, ORS 469.503(3). Thus, the question under OAR 345-

027-0070(7) is whether the council erred in determining 

that petitioners raised no significant issue of fact or law 

that may have affected the council’s determination under 

ORS 469.503(1) that the facility, with Amendment #2, would 

meet an applicable council-adopted standard arising under 

ORS 469.501.

Here, the council’s determination under OAR 

345-27-0070(7) was summary in nature but incorporated 

by reference extensive discussion from the ODOE staff 

report. That report analyzed petitioners’ contentions under 

the second sentence of ORS 469.401(2) and recommended 

that the council reach the same determinations that we 

now have affirmed: (1) Ordinance 2012-04 qualifies as a 

“land use regulation[]” under ORS 469.504(1)(b)(A) and 

therefore should not be considered under the “abide by local 

ordinances” clause of ORS 469.401(2); and (2) in light of 

applicable council precedent, the ODEQ noise regulations, 

and the related procedural background as to this site 

certificate, the council should decline to require compliance 

with Ordinance 2012-04 as a “later-adopted law[]”under 

ORS 469.401(2). Significantly, the report also reiterated that 

the final order approving Amendment #1 had determined 

that the two-mile setback did not apply to any of the 

council’s “compliance” determinations under ORS 469.503—

including compliance with council-adopted standards under 

ORS 469.503(1)—and that Amendment #2 raised no new 

facts or circumstances that justified altering the council’s 

earlier ORS 469.503 compliance determinations. The report 

expressly recommended that the council find that petitioners 

had not satisfied the threshold requirements under OAR 

345-027-0070(7). By incorporating the ODOE staff report by 

reference, the council adopted the staff analysis and made 

the recommended determination.

We conclude that the council did not err in rejecting 

petitioners’ requests for a contested case proceeding. The 

council determined that petitioners’ legal and factual 

claims—even to the extent that they may have raised 

“significant issue[s] of fact or law” in the abstract—did not 
Cite as 353 Or 465 (2013) 497

raise any significant issue or fact or law that may have 

affected the council’s determination under ORS 469.503(1) 

that the facility “meets an applicable standard” under OAR 

345-27-0070(7); instead, petitioners focused on the council’s 

application of the second sentence of ORS 469.401(2), 

regarding amended site certificate contents. The council’s 

determination was permissible, given the narrow wording 

of OAR 345-27-0070(7). See Don’t Waste Oregon Com. v. 

Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994) 

(where council’s plausible interpretation of own rule cannot 

be shown to be inconsistent with wording of rule, context, 

or any other source of law, no basis exists for this court to 

conclude that council interpreted rule “erroneously”).

VI. CONCLUSION

To summarize, we conclude that (1) the council correctly 

characterized Ordinance 2012-04 as a “land use regulation[]” 

subject to consideration under ORS 469.504(1)(b)(A)

and properly declined to consider the ordinance under that 

statute because it was not “in effect” on the Amendment 

#2 application date; (2) because the ordinance qualified as 

a “land use regulation[]” under ORS 469.504(1)(b)(A), the 

council correctly declined to require compliance with the 

ordinance under the “abide by local ordinances” clause of 

ORS 469.401(2); (3) the council did not abuse its discretion 

in declining to require compliance with the ordinance as 

a “later-adopted law[]”; and (4) the council did not err in 

denying petitioners’ requests for a contested case proceeding. 

We therefore affirm the council’s final order approving 

Amendment #2.

The Final Order Denying a Contested Case 

Proceeding and Approving Amendment #2 of the Energy 

Facility Siting Council is affirmed.