Biomass plant standoff could head to court

Neither side backing down over project proposed for downtown

By

Published:

 

Neither side in the fight over a biomass plant in downtown Vancouver backed down last week, and the project appears destined for court.

On Oct. 12, a hearing examiner sided with Schneider Electric, which signed a contract with Clark County to build a biomass electricity generating plant west of the Clark County Jail,

Two days earlier, the Vancouver City Council had passed an emergency six-month moratorium on development for the location’s zoning, a light industrial overlay in the city center district.

In a letter last week to Vancouver City Attorney Ted Gathe, attorneys for Schneider wrote that the moratorium amounts to “interference with a business expectancy, civil rights violations, arbitrary and capricious action and abuse of power.”

Attorneys LeAnne Bremer and Steve Horenstein of Miller Nash also argued the project was vested, meaning the moratorium couldn’t be applied.

“Given the substantial investment Schneider Electric has made thus far, it has no hesitancy in considering court intervention to achieve what we are asking for in this letter. We hope we do not have to take that step.”

In response, Vancouver City Attorney Ted Gathe said he disagreed with their analysis.

“The City has an absolute right under the moratorium statutes and case law that apply in this situation to impose a moratorium in the face of any anticipated application that would frustrate the purpose of its long-range land use planning,” Gathe wrote. Any “business relationship” the city had with Schneider was preliminary, he said. The project isn’t vested because the application wasn’t completed; Schneider’s application was a request to Vancouver Planning and Review Manager Chad Eiken for his opinion on whether the plant would be allowed under city code.

Eiken said that it wouldn’t, which set up the appeal to hearing examiner Sharon Rice.

The city council will have a public hearing on the moratorium Dec. 5, said City Manager Eric Holmes.

In an email to councilors, Holmes stressed that the public hearing will be on the moratorium, not the biomass project.

Meanwhile, “staff will begin to work with the planning commission, as well as interested parties on what potential changes, if any, should be made to the zoning code relative to industrial uses in order to insure that the code is consistent with the City Center Vision,” Holmes wrote in an Oct. 14 email. “I expect some of these options, as well as a calendar of proceedings to consider zone changes, to be identified by the Dec. 5 hearing on the moratorium.”

City concerns

The city and county have been at loggerheads over the idea of a biomass plant at West 11th and Harney streets almost since it was first proposed.

City leaders — and downtown neighborhoods — have cited concerns about pollution, odor and traffic. They’ve also said that the city’s vision for downtown is to move away from industrial uses to more commercial and residential development.

The county has maintained that pollution and other factors would be minimal, and that the plant represents a sustainable way to heat and cool five county buildings at no additional cost to taxpayers. Schneider would generate extra electricity that could be sold on the grid.

The project fits with the county’s 2007 sustainability policy, which says the county will encourage innovation in public and private pursuits and collaborate with private partners on projects aimed at sustainability.

The biomass plant (fueled by treetops, limbs and the detritus of producing lumber) would replace 11 fossil fuel boilers that serve the five county buildings downtown.

Rice wrote that the “use would be consistent with the intent and purpose of the applicable zoning district.” She wrote that “the use is expected to generate about 50 trips per day, half truck and half passenger vehicle. Emissions would be regulated and air quality requirements enforced by the Southwest Clean Air Agency.”

Rice wrote that the proposed biomass plant would have a lower combustion source capacity than the existing Frito-Lay plant and the SEH America silicon wafer manufacturing plant.

“The record contains no evidence that suggests substantially greater impacts in any regard than the existing and permitted uses in the vicinity,” she wrote.

Potential benefits

In an Oct. 21 letter to the city council, David Palmer of Schneider Electric urged councilors to reconsider the moratorium.

“My team and I have no interest in dragging the issue of zoning and site use out any further than needed. However, if action is not taken to remedy this situation Schneider Electric will have no choice but to proceed in legal actions to resolve this issue and proceed with the project.”

He questioned why the city is fighting the biomass project when Vancouver Mayor Tim Leavitt was touting sustainability as a co-sponsor of a New Energy Cities workshop last week.

The project will bring 20 living-wage jobs and $25 million in investment, including sales tax revenue, to the city, he wrote.

“There will be no smoke, smell, less truck traffic than other permitted uses, and noise quieter than your voices during a public meeting,” Palmer wrote.

Stephanie Rice: http://www.facebook.com/reporterrice; www.twitter.com/col_clarkgov; stephanie.rice@columbian.com.