eS 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF CLATSOP, 6 State ex rel OREGON PIPELINE COMPANY, LLC, 7 case No. M216 \ Relator, 8 ALTERNATIVE WRIT OF 9 v. MANDAMUS CLATSOP COUNTY, a political subdivision, 10 Defendant, Mo 12 TO: Clatsop County and Jeffrey J. Bennett, County Attorney: 13 From the petition of the State of Oregon on the relation of Oregon Pipeline 4 Company, LLC (“Oregon Pipeline”), the following facts appear: 1s 1. 16 Relator Oregon Pipeline Company, LLC (“Oregon Pipeline”) is a Delaware "7 limited liability company authorized to do business in Oregon. 18 2. 19 Defendant Clatsop County (the “County”) is a political subdivision, organized 20 and existing under the laws of the State of Oregon with principal offices located at 800 Exchange 21 Street, Astoria, Oregon. 22 3. 23 On October 2, 2009, Oregon Pipeline submitted a consolidated application for 24 land use approval of an approximate 41-mile segment of a natural gas pipeline proposed in 25 Clatsop County (the “Application”. The individual components of the Application included a 26 Page 1- ALTERNATIVE WRIT OF MANDAMUS DAVIS WRIGHT TREMAINE 1300 $.W. ith Avenae = Suite 2300 orn Oregon 9901" (503) 24-2300 DWT 16470655v1 0083275-000015 * oerequest for approval of the pipeline pursuant to a Review Use, a Conditional Use Permit and a 2 Geologic Hazard Permit. 3 4. 4 ‘The County deemed the Application to be complete on February 16, 2010. 5 5. 6 Pursuant to ORS 215.427(1), with respect to land outside the urban growth 7 boundary, a county must take final action on an application for a permit, including resolution of 8 all local appeals, within 150 days of when the application is deemed complete. All of the 9 approvals requested in the Application were subject to the 150-day limitation in ORS 10 215.427(1). Pursuant to ORS 215.429, if the governing body of the County does not take final 11 action on an application for a permit within 150 days after the application is deemed complete, 12 including all local appeals, the applicant may, in the Circuit Court of the county where the 13 application was filed, apply for a writ of mandamus to compel the governing body to issue the 14 approval. 15 6. 16 Pursuant to ORS 215.427(5), an applicant may request an extension of the 17 150-day period, but a county cannot compel an applicant to grant an extension. Oregon Pipeline 18 and County planning staff negotiated multiple extensions to the 150-day period in ORS 19 215.427(1) to accommodate the County’s decision-making process. The 150-day period, 20 including all extensions granted by Oregon Pipeline, expired on November 19, 2010. 21 7. 2 On August 23, 2010, the county’s land use hearings officer approved Oregon 23 Pipeline’s Application, subject to various conditions of approval. ‘That decision was appealed to 24 the Board of County Commissioners (the “Board”), which is the County’s governing body under 25 ORS 215.427. 26 Page2- ALTERNATIVE WRIT OF MANDAMUS DAVIS WRIGHT TREMAINE LLP 1300 8.W. Fifth Avenue «Suite 2300 Portland, Oregon 97201 + (503) 241-2300 DWT 16470655v1 0083275.0000181 8. 2 On November 8, 2010, the Board affirmed the hearings officer’s decision subject 3. to supplemental findings and modified conditions of approval (the “Board’s November 8° 4 Decision”). As of November 8, 2010, there were 11 days remaining on the 150-day period, 5 including the extensions granted by Oregon Pipeline. 6 9. 7 On November 24, 2010, Columbia River Keepers and NW Property Rights 8 Coalition appealed the Board’s November 8" Decision to the Land Use Board of Appeals 9 LUBA”). 10 10. ul On January 12, 2011, three new Board of County Commissioners were swom into 12 office at a public meeting. At the same public meetings, the newly constituted Board voted to 13 unilaterally withdraw the Board’s November 8" Decision for reconsideration. On January 13, 14 2011, the County filed a Notice of Withdrawal For Reconsideration with LUBA pursuant to ORS 15 197,830(13)(b) and OAR 661-010-021 (“Notice of Withdrawal”). 16 u. . "7 Oregon Pipeline objected to the County’s Notice of Withdrawal. On February 17, 18 2011, LUBA issued an order rejecting Oregon Pipeline’s objection and concluded that the 19 County's Notice of Withdrawal was timely and effective as of the date it was filed. 20 12. 2 As a result of the County’s withdrawal of the Board’s November 8" Decision, the 22 County has not taken final action on Oregon Pipeline’s Application under ORS 215.427(1). 23 Accounting for all extensions granted by Oregon Pipeline, the 150-day period under ORS 24 215.427(1) expired no later than January 24, 2011. 25 13. 26 Given that the County has not taken final action on the Application as required Page3- ALTERNATIVE WRIT OF MANDAMUS DAVIS WRIGHT TREMAINE LLP 1300 $.W. Fifth Avenue» Suite 2300 Portland, Oregon 97201 = (503) 261-2300 DWT 16470655v1 0083275-00001510 u 12 13 4 1s 16 7 18 19 20 21 2 23 24 25 26 under ORS 215.427(1), Oregon Pipeline is entitled to a writ of mandamus pursuant to ORS 215.429 compelling the County to approve Oregon Pipeline’s Application. 14. Because approval of the Application would not violate a substantive provision of the County’s comprehensive plan or land use regulations as defined in ORS 197.015, Oregon Pipeline is entitled to approval pursuant to ORS 215.429. 15. Oregon Pipeline has no plain, speedy and adequate remedy in the ordinary course of law. WHEREFORE, you are commanded, immediately after your receipt ofthis Writ, to approve the Application of Oregon Pipeline Company, LLC; or to appear before this Court or a Judge hereof, on the \ day of exer, 2011 at |) 2QEDIp-m. in Room \OO of the Clatsop County Courthouse, Astoria, Oregon, to show cause why you have not approved the Application of Oregon Pipeline Company, LLC, You are further commanded then and there to retum this Writ with your Certificate Annexed, showing that you have approved the Application or showing cause for your omission to do so. DATED this. A day of March, 2011. Yee Court Admidisaator Wor “Scone Page4- ALTERNATIVE WRIT OF MANDAMUS. DAVIS WRIGHT TREMAINE Lt? 1300 8.W. Fifth Avenue Suite 2300 Portland, Oregon 97201 « (508) 241-2300 DWT 16470685v1 0083275-000015 6)