Pipe Dream

Battle Rock Beach

In March, Elk River Property Development came with yet a third request for an extension of its conditional use permits to construct a pipeline for reclaimed water from Port Orford’s sewage treatment plant to a proposed golf course north of town. Port Orford Planning granted the extension in spite of the city’s Municipal Code, which states that the commission “may extend authorization for an additional period not to exceed one year. …”
(Chapter 17.32.060)

That allowed extension came in 2018. But in 2019, ERPD asked for and received a second extension, improperly, and here they were again in 2020. It was time, a local resident thought, to cry foul. She appealed the PC decision to the Port Orford City Council in May. And when the Council upheld the decision, claiming they could “interpret” the code to allow extensions basically every year until forever, she decided to take it to the state Land Use Board of Appeals for a hearing. No date has been set as of this writing.

An alert observer might suspect that something was up with the golf course project. It has been five years in the making now, with no progress off the drawing board, in spite of having virtually every permit necessary.
Except one.

ERPD claims that they need these multiple CUP extensions in order to continue working with the Department of Environmental Quality on a permit to use reclaimed water. But DEQ says they have been waiting quite a while and are more than ready for ERPD to submit their plan. So what’s the problem?

An active CUP for the pipeline is not even needed in order to obtain the DEQ permit. ERPD could resubmit a pipeline application to Port Orford later, if their CUPs elapsed — as they should — for lack of progress. (And maybe by then they could settle on one of their alternative routes as well.) Could it be that there is not enough investor money to pay for a miles-long pipeline to water a golf course on top of other construction costs?

Port of Port Orford

Port Orford is being asked to continue to believe in ERPD’s dream of golf on the coastline. But this dream is fading rapidly into the sunset, taking with it the hoped-for economic benefits so long promised Port Orford and Curry County citizens.

Winter Wonderland

Snow in Port Orford

As we sit by the fire during these wet and cold days, one thing we muse on is why anyone would want to build a golf course on the southern Oregon coast. November through March we can count on rain, hail, snow, and sleet. Often all in splendid rotation on the same day!

One Friend of Port Orford is fond of greeting us on stormy days with a smile and the comment “It’s another wonderful day for golfing at Pacific Gales!”

The rest of the year we could call our hometown the “Windy City.” Prevailing north winds keep us cool when others swelter (80 degrees is a heat wave in P.O.), and we do love it. Even though the 4th of July parade was rerouted a couple of years ago to proceed north to south. The headwinds were just too punishing for marching northbound!

One story we’re considering here by the fireside is an article about the proposed Pacific Gales golf course that appeared in Crain’s Chicago Business this past August. We almost missed the piece, because it’s written for Midwestern investors, not our local community. It features an interview with golf course architect Dave Esler, who is a partner in the Pacific Gales enterprise and has designed the layout. One thing especially caught our attention: The claim that the developers are planning a 200-bed lodge to go along with their 10,000-square-foot clubhouse.

Now, we already knew about the clubhouse, and we knew that a condo project was being cobbled together on a small property next to an old landfill leased from Curry County. But we’ve never heard anything about a 200-room lodge! This is important, because the developer has no approval for any such thing, and local zoning (based on Oregon land use laws) does not allow for a 200-bed lodge on farmland so near to the town of Port Orford.

So, what’s going on? Prompted by local citizens’ concerns, the mayor of Port Orford, Tim Pogwizd, asked Pacific Gales managing partner Jim Haley that question. Haley responded that, yes, the interview was indeed done with his partner Dave Esler, but the information about a 200-bed lodge was “complete hogwash,” “fake news,” and “spin.” Hmm.

It is hard for us to believe that the writer made up such a specific claim. How could that happen? Okay, maybe Esler got carried away. Dreamed a little, out loud. So maybe the news outlet should be asked to print a correction. For us fussbudgets who actually live on the Curry Coast and don’t want to see our local planning laws disregarded — and for prospective golf course investors who might get the wrong idea about the scope of things to come. Otherwise, it looks like the developer is saying one thing to investors but something entirely different to our community.

We are left to wonder, what’s the truth? The version touted in the Chicago publication, or the “just trust me” contradiction served up to the mayor?

You can decide for yourself. Read the Crain’s Chicago Business piece here:

For $199 You Can Buy a Tee Time at a Golf Course That Doesn’t Exist

And compare with Haley’s e-mail (complete and unedited) here:

Response to Port Orford Mayor Tim Pogwizd

Port Orford Council Agrees to Give Away Valuable Commodity to Private Business

At their March 15 meeting, the Port Orford City Council voted narrowly to provide the city’s treated effluent to Elk River Property Development for a golf course they propose to build north of the city. In a move that surprised most of the councilors and members of the audience, former mayor Jim Auborn read the following:

I make a motion to provide the city’s treated effluent to Elk River Property Development to be the first and main source of irrigation for the Pacific Gales Golf Course at no cost to ERPD with full recommendations for future engineering work to maintain the current ocean outfall viability, and in turn ERPD will allow the City of Port Orford the ability to cross their property adjacent to the sewer treatment plant, both water and sewer infrastructure, at no cost to the city for use of the property for the city’s infrastructure. This motion also directs city staff to work with the engineers to move forward with a secondary outfall project, including the ability to accommodate all outfall should the ocean outfall be no longer viable.     [from video of the meeting, https://archive.org/details/CityCouncilMtgP103152018; punctuation and emphasis supplied]

Discussion was contentious during the appearance of ERPD’s Troy Russell before the council and continued after the motion was made. State Representative David Brock Smith advocated in favor of the deal for effluent, and he stated that the effluent pipeline project had been fully approved, in spite of the appeal of Curry County’s decision that is now before LUBA.

Smith’s assurances were contradicted by local resident Penny Suess, who told the council:

The permit for the golf course expired in January 2016 because [ERPD] failed to ask for an extension. This was condition number 1 of the permit, but they overlooked or ignored this very basic, easy to fulfill requirement. Since the permit was granted, in 2015, ERPD has made at least two major changes to the plan for the golf course: They decided that they need reclaimed water to be piped from Port Orford for irrigation, and they decided to add housing. The permit was not modified to include these new components. Therefore, there is no single oversight mechanism on the project in the future. . . . Last fall, the county planning commission denied ERPD’s pipeline request. The decision was based on a cascade of dominoes resulting from the expiration of the permit. The commission determined that necessary state permits for piping reclaimed water could not be obtained when no approved project existed. A golf course is not an allowed use outright. It must have a valid permit. In other words, you can’t get approval to build a theoretical pipeline to a nonexistent, unpermitted golf course. When ERPD appealed, the Board of Commissioners upheld the appeal – but for the wrong reasons. The commissioners gave little attention to the underlying state laws and county zoning codes in making this decision. They relied on the same vague, unsubstantiated claims that ERPD and its supporters have been making for the past four years . . . On March 14, Oregon Coast Alliance gave notice to the BOC of their intent to appeal the pipeline decision to the Land Use Board of Appeals . . . This back-and-forth process is going to continue until all of the legal questions have been fully litigated. 

It was also said by Smith that no appeal to LUBA by ORCA has succeeded. However, of the four appeals to date, one did not move ahead because ERPD asked the county to withdraw the decision so they could refile the application; two were remanded back to the county (a remand for reconsideration is a win); and one was denied by LUBA. Yet Smith said: “ORCA is the most unreputable environmental for-profit nonprofit [sic] I’ve ever dealt with in the state legislature.”

Notice of Intent to Appeal

Pay particular attention to pages 5 through 10 of the NITA embedded above. The county failed to create a proper final order stating their decision and the right of appeal, and they failed to send it to all interested parties, as required by law. They created the final order and sent it out only after a request was made by ORCA – on the final day allowed for appeals.

Councilors Rohrbach, Webb, and Clancy voted NO on the motion; Auborn, Campbell, and Cox voted YES. Mayor Pogwizd broke the tie with a YES.

“Unsurprisingly,” Says ORCA, the Board of Commissioners Approved the Pipeline

From the February 2018 Oregon Coast Alliance Newsletter :

“Elk River Property Development requested a permit from Curry County for a pipeline to carry effluent from the City of Port Orford to the proposed golf course at Knapp Ranch. During the hearings process in Fall 2017, planning commission members discovered that ERPD’s permit for the golf course, issued by the Board of Commissioners, expired. The permit required the applicants to apply for and receive a time extension within one year – by January 2016. They never did so, and the permit expired on its own terms two years ago. The planning commission therefore denied the ERPD pipeline application.

“Fast forward to February 2018. The applicants appealed to the Board of Commissioners. Unsurprisingly, they granted ERPD the permit for the pipeline [on February 14]. But it was very surprising indeed to hear the Curry County Planning Director, Carolyn Johnson, state openly that ERPD did not need a time extension. BOC decided simply to ignore the condition, trying to keep the original permit valid by fiat. But the law does not work like this; it has rules that must be followed.  [emphasis added]

“The applicants argue the permit is valid because Curry County ordinances under some circumstances allow ‘substantial construction’ on the project to stand in for getting a time extension. However, the County ordinance (CCZO 7.050.4) also allows the Director or Commission at its discretion to issue conditional use permits which must be periodically reviewed to make sure the permit conditions are being complied with. Using this provision, the BOC-approved permit required a time extension in one year, which the applicants failed to get. That is the project’s death knell – unless they apply for a new permit.

“But let’s look at the applicant’s argument – did they initiate development before the permit expired? ERPD argues that clearing part of the land of gorse, for which they spent approximately $16,500, and sinking two wells costing about $12,000, both in 2015, constitutes ‘starting development.’ This is very questionable.

“The 2015 golf course permit required the applicant to submit a wetland delineation report to the Department of State Lands for review and approval. The applicants never submitted one. DSL regulations warn applicants that if they begin work in wetlands without a permit, the landowner may be subject to enforcement action. It is very likely that in the gorse-clearing activities, ERPD violated this regulation.

“So what does this all mean? It all means that BOC approved an effluent pipeline based on an invalid permit, and gave the developers a green light which the law does not in fact allow them. This invalid permit problem will crop up again and again if ERPD continues to try and get other necessary permits to continue the long-expired project.”

Pipeline Appeal Decision Expected on February 14, and ERPD Wants a Mulligan on the Permit Extension

On Wednesday, February 14, at a 2:30 p.m. special meeting, the Curry County Board of Commissioners will review final arguments from the parties, as well as testimony from the January 17 de novo hearing and comments submitted in the intervening month.

Following is a link to information about the meeting on the county Web site:

Click to access 2018_02_14%20PACKET%20Special%20Meeting.pdf

The final staff report to the commissioners begins on page 69. It is followed by a complete recap of the application by Elk River Property Development and all related documentation. [Note: Because the county has created a new Web site, previous links to meeting information from 100Friends posts are dead. Also, oddly, no link to the packet shows on the Agendas and Minutes page. UPDATE: Some kind soul let the county know about this, and they fixed the link.]

The applicant’s closing argument is not available at this writing. They have until February 14 to submit one; we recommend checking the BOC meetings page on that date.

http://co.curry.or.us/government/board_of_commissioners/agendas_and_minutes.php

A January 31 letter from the attorney for Oregon Coast Alliance is on page 299. He asserts that the Planning Commission’s decision to deny the pipeline application should be upheld because: (a) a variety of routes for the pipeline were not considered, though this is required in a land use decision relating to the application of reclaimed water; (b) alternatives to the use of reclaimed water were not shown to be unfeasible, even though they were part of the original golf course application; and (c) the applicant does not currently have “a license, permit or approval by the DEQ” for application of reclaimed water.

Of course, the elephant in the quasi-judicial “courtroom” is the fact that the applicant did not apply for an extension to its golf course conditional use permit in a timely manner. This was a key factor in the denial of the pipeline by the Planning Commission. On January 19, 2018, a full two years after the extension should have been sought, ERPD finally made that request.

On page 307, a letter from their attorney asks for administrative approval of an extension, as a “precautionary filing only.” ERPD believes that they have initiated construction of the golf course, therefore they did not need to formally apply for an extension of the permit, but they’re applying as a “safety net.” The attorney says, that “the intention is to secure an extension to deflect future challenges that an extension should have been but was not secured.” In golf parlance, this would be a mulligan, a do-over, in spite of the official rules of play.

Administrative approval, moreover, would be granted without public notice or hearing. ERPD believes that they are “entitled to an administrative decision that is not made as a land use decision, is not noticed as a land use decision, and is not appealable as a land use decision” according to their reading of state statutes. [See further details of their reasoning beginning on page 307.] Of course such an action would make things easier for ERPD, but they would be far less accountable to the public. They would prefer to skip over discussing a number of unresolved issues about the golf course — some of which were never even mentioned in the original CUP.

Now that we are in Year 4 of the Pacific Gales effort, it is long past time to get out of the rough and back onto the fairway. What exactly does ERPD plan to do, and when, and how? And what would it mean for Curry County, for Port Orford, and for ordinary citizens?

Expand Pacific Gales? DLCD Hearing Comments in January

House Bill 2730, passed in the 2017 legislative session, allows a golf course to be sited on certain high-value farmland if the golf course is west of Highway 101 and is surrounded on all sides by an approved golf course. Does this description sound familiar? It should. Sponsored by local Rep. David Brock Smith,  the special-interest law was written specifically for the proposed Pacific Gales course, and it amends agricultural land rules to permit this exception.

Given that the permit allowing a course on the Knapp Ranch in the first place has apparently expired, the new rule may be moot. Nevertheless, the Department of Land Conservation and Development needs to hear what citizens think of eroding protections on this category of farmland — especially for a golf course.

Here is the text to be added to OAR 660-033-0130 as Section 18(d):

(d) Subject to the requirements of sections (5) and (20) of this rule, a golf course may be established on land determined to be high-value farmland as defined in ORS 195.300(10)(c) if the land:
(i) Is not otherwise high-value farmland as defined in ORS 195.300(10);
(ii) Is surrounded on all sides by an approved golf course; and
(iii) Is west of U.S. Highway 101.

Send written comments on the proposed rule by January 26 to:

Rules Coordinator, Department of Land Conservation and Development
635 Capitol St., Ste. 150
Salem, Oregon 97301
Or via email to: casaria.taylor@state.or.us

Pipeline Appeal Hearing Set for January 17

On December 14, the Curry County Planning Commission reviewed and adopted an extensive Final Order resulting from its denial of Elk River Property Development’s application to construct a recycled water pipeline over unincorporated county land to serve its proposed Pacific Gales Golf Course.

To review, the commission considered the application at its regular meetings in September, October, and November. On the 14th, we learned the full reasoning behind the decision to deny. Here is a link to all of the relevant documents on the county Web site:

http://co.curry.or.us/Departments/Community-Development/Planning-Commission

The Decision Notice, Final Order, Appeal, and Notice of Hearing before the Board of Commissioners are new information. The attachments and supplement recapitulate information provided at the earlier meetings.

FINAL ORDER AD-1705

Appeal AD-1705 to BOC

Notice of Appeal Hearing

The staff report to the Board of Commissioners will be available on the county Web site on Friday, January 5. Comments may be supplied in writing before the hearing or presented during the hearing. See the Notice of Appeal Hearing for directions on how to present testimony. This is a de novo hearing, meaning that the relevant issues will be considered anew, and a decision will be based on evidence and arguments as presented to the BOC on January 17.

The special de novo public hearing will be held at 2:30 p.m. on Wednesday, January 17, 2018, in the BOC chambers, on the upper level of the County Courthouse Annex, at 94235 Moore Street in Gold Beach.

Pipeline Appeal Canceled; Revised Final Order Issued *UPDATE*

Shortly after last month’s denial of the pipeline application by Planning, the applicant appealed to the Curry County  Board of Commissioners. A de novo hearing was then scheduled for December 6. View the appeal letter and public notice here:

A-1701 / AD-1705 Appeal

Then, on November 29, just a week ahead of the hearing, it was canceled without explanation. No later date was given. On December 7, notice was published of a meeting of the Planning Commission on December 14 to consider a revised Final Order, with new findings. The  revised order states the following:

NOW LET IT THEREFORE BE ORDERED that AD-1705 is DENIED with the following findings:
Applicant has not met the burden of proof to support approval of application AD-1705 because:
1. Applicant’s permit to develop a golf course approved by AD-1411 expired in January 2016.
2. No permitted use has been established under ORS 215.283(1)(v), since the statute requires the irrigation to be for a specific approved use under section ORS 215.283(1). The applicant has no valid conditional use permit for a golf course or any other use subject to the provisions of this chapter.
3. An approved use under 215.283(1)(v), is “subject to” an approval of Department of Environmental Quality under various provisions including ORS 215.246. The use is not approved until DEQ has made its determination under ORS 215.246(1)(a), which the DEQ has not yet completed.

2017-12-14 Planning Commission Packet

The pages relevant to the December 14 meeting are 1 through 9. The remaining pages are duplicated from packets provided for earlier meetings.

ERPD gave the county an extension to February 2, meaning that the 150-day deadline for the county to complete action on the application is extended to accommodate the changes in the Final Order. The new appeal hearing with the Board of Commissioners is tentatively scheduled for January 17.

Pipeline Continuation to Proposed Golf Course DENIED by County Planning

The portion of the effluent pipeline from Port Orford’s wastewater plant that was proposed to be built beyond the city boundary and onto Knapp Ranch was denied by the Curry County Planning Commission at their November 7 meeting. The vote was 4 to 3 against the application.

The decision turned on the fact that Elk River Property Development had failed to apply for an extension of its Conditional Use Permit within one year of the original approval, as required, and it was deemed to have expired. Without a valid CUP in place, the Department of Environmental Quality is not able to evaluate any plan for irrigation with recycled water on the proposed golf course. And without DEQ’s determination, the use of recycled water is not permitted.

The Final Order denying the application for the pipeline can be read here:

Final Order AD-1705