The next step
Saturday, March 17, 2007 11:46 PM PDT
Kristin Gribben Argus Observer
ONTARIO
A coalition of local residents opposed to the construction of a bio-refinery outside of Ontario city limits will take their case to a state land board in a move that could stall the venture indefinitely.
The Citizens Against the Bio-refinery recently filed an intent to appeal regarding a zoning decision by the Malheur County Court to the Oregon Land Use Board of Appeals (LUBA) in Salem.
Tom Okai — the local attorney for the Citizens Against the Bio-refinery, the group opposing the location of the plant — sent a letter of “intend to appeal” to LUBA Jan. 28.
The country court has 21 days after the notice of “Intent to appeal” to put the case record together in a format acceptable to both parties, Okai said.
Bob Van Brocklin, the attorney for Treasure Valley Renewable Resources, a group of investors pushing the bio-refinery concept, said he plans to file a motion to intervene in the appeal case. Van Brocklin is a partner in the firm of Stoel, Rives, L.L.P. in Portland.
Once he files a motion to intervene, Van Brocklin said, TVRR would become an “intervener respondent.” The respondent, in this case, would be Malheur County.
Brocklin said he could not elaborate on the case as it enters legal proceedings. Van Brocklin said, though, that he felt the Malheur County Court made the right decision when it voted to switch zoning on a parcel of land south of Ontario to make way for TVRR’s facility.
“I think the county court made a correct decision as a matter of law and facts before them,” he said.
Okai said he feels the coalition he represents has a good chance at gaining a victory in an appeal process.
“We believe we have a very valid basis on the case and we can prevail on that and we intend to.”
LUBA can rule in a couple of directions. The appeals court can reverse the decision made by the county court, rule in favor of the county court’s decision, or refer the case back to the county court for another hearing.
John Hamilton, TVRR project manager, said he is not able to respond to the appeal because he has no idea what the basis of the appeal is.
“What they contested at (county) court may not be what they file their brief on,” Hamilton said.
Okai said, though he has not decided the specific arguments he will include in the appeal. Two main contentions of CATB appear to be the proposed location of the plant and its close proximity to neighborhoods and city activity.
Conflicting goals
Hamilton also said he was unsure, exactly, who Okai represents or who he filed the appeal on behalf of.
The original group that opposed the zoning of the facility during hearings before the Malheur County Planning and Zoning Commission and in front of the Malheur County Court on Dec. 3, Dec. 17 and Dec. 24 was dubbed the Concerned Citizens of Malheur County.
The appeal Okai filed was on behalf of Citizens Against the Bio-refinery.
Okai said the group has not changed, though individuals affiliated with the group come and go. Okai said there is no official membership and he communicates with the coalition through spokespersons. Okai said the opposition never has an official title.
“It was never named,” Okai said of the opposition group. “There are only names that people gave them.”
Okai was approached by the opposition group — consisting of many people who live near the proposed site of the bio-refinery — in November he said.
Okai’s clients, though, have a mission statement and a representative group of officers. In a letter sent to the Malheur County Commissioners in October, the Concerned Citizens of Malheur County identified its officers as: Vic Easterly, president, Brian Kameshige, vice-president, JoAnn Easterly, secretary, and Liz Eldredge, treasurer.
The CCMC mission statement asserted TVRR violates the rights of citizens in regards to: environmental hazards; economic nonviability; while health, safety and welfare of residents is jeopardized; violation of legal procedures; and no legal or binding agreement for liability of the facility.
Okai said he was disappointed the county court ruled in favor of TVRR, but said, “We intend to go all the way,” regarding the appeals process.
Citizens Against the Bio-refinery contest TVRR on the issue of the use of farmland for what it claims is industrial, or urban, activity, according to Okai. CAB also contests the use of the land because it is in close proximity of city limits and residential homes, Okai said.
The zoning change approved by the county court on Jan. 7 is a 115-acre location near Railroad Avenue and Alameda Drive.
Okai said he is concerned about the possible pollution and odor associated with bio-refinery or ethanol plant production.
“Every other ethanol plant in the United States has faced problems,” Okai said. He added the bio-refinery would use the same technology as an ethanol plant, thereby transferring problems associated with ethanol plants to the proposed bio-refinery.
Okai responded to TVRR’s argument that a thermal oxidizer will reduce pollutants from the facility’s production by asserting there are no regulatory standards for thermal oxidizers. Citizens Against the Bio-refinery claim odor and pollution will be mitigated if the zoning site is on land specifically designated for industrial use.
Okai said if LUBA does not rule in favor of his clients, he will appeal to the Oregon Court of Appeals (also in Salem) and could eventually appeal the case as far as the Supreme Court of the United States.
“I don’t feel the court applied the law correctly,” Okai said about the county court’s zoning decision.
“They (the Malheur County Commissioners) are not law trained but they had council,” he said.
Hamilton said news of the appeal was discouraging, because it slows down the approval process. Without the appeal, Hamilton said, the zoning would be approved, and the permit process for air and water would begin. Hamilton said he had hoped to start building the facility in the summer or fall of this year, but is unsure now of when construction will begin.
