From the Newport News-Times
June 10, 2009
Vigorous objection to the planned purchase of 20 Solar-Bees led the Devils Lake Water Improvement District (DLWID) Board to set aside the $1 million project for the time being, but residents who simply asked for more input in the process may have legal grounds to demand more than just an opportunity to comment.
As a special taxing district, DLWID receives funding from area property owners. The district includes the entire City of Lincoln City, Neotsu, and the remainder of the lake’s watershed that lies outside city limits. Private timber companies and the U.S. Department of Agriculture own acreage within the district. Todd Heidgerken, chair of the Legislative Committee for the Special Districts Association of Oregon, a counterpart of the League of Oregon Cities, said that DLWID is a public entity, and as such, has to follow specific laws.
“They have to follow public meeting law,” Heidgerken said. “They have to have a budget and budget committee. They have to notice public meetings.”
DLWID also has to follow Oregon Revised Statutes Chapter 552: Water Improvement Districts .
While the statute gives the board power to “Build, construct, purchase, improve, operate and maintain, subject to other applicable provisions of law, all works necessary or desirable under any engineering plan adopted by the district,” most relevant to district property owners may be the qualifying phrase “subject to other applicable provisions of law.”
ORS sections 552.418 and 552.740 state that when an engineering plan is approved by the board, a public hearing must be held to give property owners the opportunity to voice objections.
The public must be notified of the hearing 30 days in advance, and a majority of the district’s landowners can end the project through a specified process.
The board may notify the public by mail, or by publishing once a week for four weeks in a local newspaper. More importantly, the statute continues, “If the owners of more than 50 percent of the acreage within the district [… ] file written objections [… ], no further action shall be taken [… ] and the plan shall be considered disapproved by the district board and rejected by the landowners.”
Only a court of law can determine how laws will be interpreted in the event of a dispute. DLWID Board Chair Brian Green, a Lincoln City attorney, said he’s not sure what an “engineering plan” is exactly.
“It may or may not be that installation of SolarBees would constitute an engineering plan under the statute,” he said.
The Random House Dictionary definition of engineering is “the art or science of making practical application of the knowledge of pure sciences, as physics or chemistry, as in the construction of engines, bridges, buildings, mines, ships and chemical plants.”
At any rate, Green said, the project has not been approved by the board, so hearing and notice requirements do not apply.
DLWID recently applied for several grants and loans to help fund the purchase and installation of SolarBees. The Oregon Department of Environmental Quality ranked the district’s SolarBee application ninth out of 165 statewide projects. Funding was not awarded, however, due to an incomplete application.
DLWID’s 2009 budget allocates money for SolarBees. Green said that budgeting for SolarBees and seeking funding for them does not mean the project has been approved by the board.
“We haven’t completed or adopted any plan for installation of SolarBees, so no notice is required under the statute,” he said. “If we had been offered a grant, we would have had the option to accept or reject it, depending on whether we adopted the plan or not.”
Lake Manager Paul Robertson also said the project had not been formally adopted by the board.
“Installation of SolarBees is planned for July 2009 in a best case scenario, if our grant applications are approved,” Robertson said when asked to elaborate on a comment attributed to him in the May budget committee meeting minutes . “At this point, it’s probably unlikely that those funding sources are going to be available to us.
“The final decision will be made by the board when grant fund availability is determined.”
The statute also requires the board to publish a request for proposals for construction bids after adopting an engineering plan, although the board is not obligated to select the lowest bid.
Green was not sure whether any other companies manufacture solar-powered water circulation equipment. Devils Lake resident Mitchell Moore, designer of the NoSolar-Bees .com website, said Oregon’s laws are meant to reflect the public’s best interest.
“It just goes to show that when the laws were drafted to govern these water districts, lawmakers felt that the public’s input was important ,” he said. “They provide for public notice and public hearings , and an ability to eventually override a decision that is not the will of the people.”