LUBA Confirms That Standalone Battery Storage Qualifies as a “Utility Facility Necessary for Public Service” in the Exclusive Farm Use (EFU) Zone

Update: This post was updated on October 2, 2026, to reflect Marion County’s appeal of the LUBA decision.

On August 26, 2026, the Land Use Board of Appeals (LUBA) issued a significant decision for standalone battery energy storage systems (BESS) proposed on exclusive farm use land.  In Remington BESS, LLC v. Marion County, LUBA No. 2026-030, LUBA reversed Marion County’s denial of a 199 MW standalone BESS, rejecting all three of the county’s independent grounds for denial.

Remington BESS, LLC (Remington) submitted its application in response to a PacifiCorp Request for Proposal seeking more than 500 MW of new storage capacity and ultimately selected a 15-acre EFU parcel adjacent to PacifiCorp’s Parrish Gap Substation for its BESS project.  Id. at 4-5.  Notably, Remington filed just before the county adopted Ordinance 1480, which sought to ban BESS in all zones.  Remington BESS, LLC v. Marion County, LUBA No. 2026-030, LUBA No. 2026-030 at 6-7.  Because the ordinance post-dated the application, the county could not apply it directly, but the planning director, hearings officer, and board of commissioners all denied the application on the theory that a BESS is not a “utility facility necessary for public service.”  Id. at 7-8.

A Standalone BESS Is a “Utility Facility Necessary for Public Service.”

LUBA held that a BESS qualifies as a “[u]tility facilit[y] necessary for public service” under ORS 215.283(1)(c), even though it does not itself deliver electricity directly to customers.  Relying on a prior case defining “utility facility,” Cox v. Polk County, 174 Or App 332, 25 P3d 970, rev den, 332 Or 558 (2001), LUBA rejected the county’s narrow reading that “furnishing” electricity requires direct delivery, holding instead that a BESS qualifies because it sits upstream of delivery and is closely integrated into PacifiCorp’s grid and services.  Remington BESS, LLC at 8-12, 15, 17-18.  LUBA also confirmed that the 2024 statutory definition of BESS in ORS 469.300 does not remove BESS from the utility facility category, id. at 17, and rejected the county’s “but for” theory that a facility isn’t “necessary” unless the utility couldn’t serve customers without it.  Id. at 16.  Finally, LUBA held that under Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995), the county could not deny the application based on a local code definition.  Id. at 18-20.

The Court Provided Guidance on the Reasonable Alternatives Analysis.

The decision also clarifies the “reasonable alternatives” test for these types of facilities under ORS 215.275(2).  LUBA confirmed that service-driven siting criteria, such as substation proximity, transfer capacity, minimum acreage, and room for expansion, remain valid even when cost is a secondary factor, and the six statutory factors are independent, not subject to a balancing test.  Id. at 25-32.  LUBA found that the county repeatedly erred by testing whether the EFU site was appropriate rather than whether a non-EFU alternative actually existed.  See, e.g., id. at 34. 

The Farm Impacts Test Does Not Apply to Uses Allowed Outright in the EFU Zone.

The county also denied the application for failing to address farm impacts under ORS 215.296 (the so-called “farm impacts test”).  LUBA held this was a fundamental legal error.  LUBA concluded that the farm impacts test only applies to conditionally permitted uses under ORS 215.283(2), not to utility facilities allowed by right under ORS 215.283(1).  Id. at 41-43.  Facilities allowed outright, like utility facilities necessary for public service, are instead governed by ORS 215.275(5), which requires the county to impose clear and objective conditions addressing farm impacts raised during the public process, but does not require the applicant to make an affirmative showing.  Id. 

What’s Next?

Marion County appealed LUBA’s decision to the Oregon Court of Appeals on September 16, 2026, so LUBA’s decision will not be the last word on standalone BESS as a utility facility necessary for public service under ORS 215.283.  Given the decision’s significance for BESS siting on EFU land statewide, we’ll be continuing to monitor this case and its effect on how counties treat these applications going forward.

You can read the full case here: Remington BESS, LLC v. Marion County, LUBA No. 2026-030.