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FILED: November 3, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

COLUMBIA RIVERKEEPER,
COLUMBIA RIVER BUSINESS ALLIANCE,
OREGON CHAPTER SIERRA CLUB,
COLUMBIA RIVER CLEAN ENERGY COALITION,
JACK MARINCOVICH,
and PETER HUHTALA,

Respondents,

v.

CLATSOP COUNTY,

Respondent below,

and

NORTHERNSTAR ENERGY, LLC;
and BRADWOOD LANDING, LLC,

Petitioners.

Land Use Board of Appeals
2009100
A145336

Argued and submitted on June 15, 2010.

Michelle Rudd argued the cause for petitioners. With her on the brief for petitioner NorthernStar Energy LLC were James N. Westwood and Stoel Rives LLP.

Carrie A. Richter and Garvey Schubert Barer filed the brief for petitioner Bradwood Landing LLC.

Brett VandenHeuvel argued the cause for respondents. With him on the brief were Columbia Riverkeeper and Courtney Johnson, Christopher Winter, and Crag Law Center.

Before Landau, Presiding Judge, and Ortega, Judge, and Sercombe, Judge.*

SERCOMBE, J.

*Sercombe, J., vice Carson, S. J.

Affirmed.

SERCOMBE, J.,

Intervenors Bradwood Landing LLC and NorthernStar Energy LLC applied to Clatsop County for land use approvals that were necessary to construct and operate a liquefied natural gas (LNG) terminal and a natural gas pipeline to serve the terminal. In March 2008, the county adopted an ordinance that enacted the zone and comprehensive plan map amendments and related development approvals needed to facilitate the projects. Petitioners, various organizations and individuals opposed to the amendments and approvals, appealed the ordinance to the Land Use Board of Appeals (LUBA) on a number of grounds. LUBA sustained two of the assignments of error, remanding the ordinance to the county for further findings on the application of three comprehensive plan policies that were approval standards for the requested rezonings. Columbia Riverkeeper v. Clatsop County, 58 Or LUBA 190 (2009) (Bradwood I).

On remand, the county readopted the ordinance with supplemental findings. After another appeal by petitioners, LUBA determined that the county again misconstrued the meaning of the plan policies and remanded the rezonings to the county for further deliberations. Columbia Riverkeeper v. Clatsop County, __ Or LUBA __ (LUBA No. 2009-100, Apr 12, 2010) (Bradwood II). Intervenors seek review of LUBA's opinion and order in Bradwood II, contending that LUBA erred in its construction of the plan policies and in failing to defer to the county's interpretation of those policies under ORS 197.829. We review whether the LUBA order is "unlawful in substance" under ORS 197.850(9)(a) and affirm.

I. BACKGROUND

The proposed development is described in Bradwood I:

"The proposed site is located approximately 20 miles east of the City of Astoria at the former mill site and company town of Bradwood. The subject property consists of nine parcels totaling 411 acres with over a mile of frontage on the Columbia River. The subject property has upland forested areas and lowlands consisting mostly of estuarine shore lands and wetlands that adjoin the Columbia River where the proposed terminal would be located. The only structures currently on the property are an abandoned pole barn and a small concrete building.

"The proposed terminal site is 38 river miles from the Pacific Ocean and lies at the junction of the main channel of the Columbia River and Clifton Channel, a large side channel navigable by small watercraft. The proposal calls for large, ocean-going vessels to transport LNG to the terminal, where the LNG will be temporarily stored and then re-gasified before being sent out by pipeline. The proposed underground pipeline would extend south and east from the terminal for 36 miles and thence under the Columbia River to connect with an interstate natural gas pipeline near Longview, Washington. The first six miles of underground pipeline would be in Clatsop County.

"The proposed development involves a variety of land uses and activities and the county's decision includes numerous comprehensive plan amendments, zone changes, and development approvals that include: a bridge replacement, concrete batch plants, a construction worker park-and-ride facility, dredging of the Columbia River and disposal of the dredged materials, power lines, in-water facilities, storage and staging areas, LNG storage tanks and gasification plant, underground pipeline, railroad realignment, and road improvements."

58 Or LUBA at 192-93.

As part of the terminal project, intervenors propose to dredge 46.4 acres in the Clifton Channel of the Columbia River to provide a turning basin for large container ships. Intervenors applied to amend the Clatsop County Comprehensive Plan (CCCP) designation for this area from "Conservation