34-251-Ordinance No. 203.12 Recorded 3/13/1980fAGF
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES COUNTY
In the Matter of an Ordinance )
Restricting Issuance of Building ) COUNTY ORDINANCE
Permits ) NO. 203.12
LEGISLATIVE FINDINGS:
1. The Oregon State Structural Specialty Code and Fire and Life Safety Code has
been adopted in this state pursuant to ORS 456.770 and made a part of the State Building
Code pursuant to ORS 456.775;
2. The Board of County Commissioners of Deschutes County is authorized by ORS
456.755(4) to regulate the local administration of the State Building Code;
3. Section 103 of the Oregon State Strucutral Specialty Code and Fire and Life
Safety Code allows the County to enact regulations providing for minimum health, sanita-
tion and safety standards governing the use of structures for housing;
4. Section 302(a) of the Oregon State Structural Specialty Code and Fire and
Life Safety Code requires that building permits be issued only in conformance with
sanitation and health requirements of controlling agencies; and
5. The Board is of the opinion that:
A, State regulatory agencies have not in all cases caused adequate water
supplies to be delivered to all customers in the unincorporated areas of the County
served by public utility water supply systems; and
B. In spite of state regulations, water supply systems have added hookups
without taking adequate precautions to preserve the water pressure delivered to pre-
existing customers.
NOW, THEREFORE, the Board of Commissioners of Deschutes County (Board) ordains
as follows:
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1. Issuance of Building Permits Restricted.
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A. The Deschutes County Building Official shall not issue permits governed
by the Oregon State Structural Specialty Code and Fire and Life Safety Code, and must
tell the applicant the reason for not issuing a permit when he has probable cause
to believe that the permit would allow construction of a building that would use a
water supply system or part thereof that creates a public health hazard, does not
deliver an adequate water supply as these terms are defined in ORS 448.205, or does
not satisfy the applicable standards set forth in OAR 860-23-060 to OAR 860-23-070.
Promptly upon discovering such probable cause, the Building Official should send a
list:of probable c deficiencies in the water system which prevent issuance of building
permits to the owner or operator of such water supply system serving the proposed
site, and the responsible state, federal and local regulatory agency.
B. As used herein, "water supply system" includes the terms defined in ORS
448.205(3)(5)(7)(14)(19) and (20), and includes any physically interconnected set
of facilities through which water is delivered to service connections for human con-
sumption, regardless of ownership of the facilities and regardless of whether portions
thereof may be isolated by closing valves.
C. Probable cause shall be based upon one or more of the following:
(1) Notice from any state agency, political subdivision or municipal
corporation with jurisdiction to regulate a water supply system's service standards
to the effect that an idadequate water supply or public health hazard probably exists in a
specified water system or part thereof.
(2) Notice from the State Health Division identifying a public health
hazard in a defined area due to pollution of a water source or supply.
(3) Notice from the State Health Division identifying a lack of adequate
water supply [as these terms are defined in ORS 448.205] in a municipal water supply
system.
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(4) Tests or observations made by the Sanitarian, Health Officer, their
deputies, contractors or agents, as to adequacy of supply, or tests or observations
of the Building Official or his deputy. On the affidavit of any user of a water system,
the Building Official may require a water system owner or operator to install a sealed
accurate pressure gauge in the system at a time and location reasonably chosen by him
to facilitate investigation of whether a water supply is "adequate" as defined by
ORS 448.205(1). Prior to testing, the affiant shall deposit the estimated cost thereof
with the County. If the Building Official finds that the material assertions in the
affidavit are true, the deposit shall be refunded and the County may recover the cost
of testing from the owner or operator. If the Building Official finds that such
material assertions are false, the affiant's deposit shall be used to pay the cost of the
test and any remaining balance shall be refunded. The County may recover any costs in
excess of the deposit from the aff iant. Provided, however, that the owner or operator
shall, in any case, be liable for the cost of gaugea required by OAR-23-070.
2. Authority. This ordinance is adopted under the authority of ORS 456.755(4).
3. Right to Review Hearing. Nothing in this ordinance prevents a review of denial
of a building permit by a due process hearing pursuant to County Ordinance PL-9. For
purposes of the hearing, the building permit application shall be treated under PL-9
as a limited notice contested case. The burden of proof shall be that the water supply
system will satisfy state standards for purity and/or adequacy [depending on the ground
for denial], even if the building permit is issued.
4. Mandatory Investigation. When the Building Official has probable cause not to
issue a permit as provided by this ordinance, he 'shall promptly notify the Board of
County Commissioners. The County Sanitarian or the Building Official shall then commence
an investigation of the health hazard or inadequate water supply. This investigation
shall at least include testing the pressure delivered by the water supply systems
within the area in which there is probable cause to believe the water supply is inadequate.
If the Building Official has probable cause to believe that injurious physical elements
or disease-producing bacteria are present in the water supply, the investigation shall
include obtaining the results of a test of purity of the water supply made by an impartial
testing laboratory or by a state agency made after the discovery of facts constituting
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probable cause. On written request by the Building Official or any state agency which
has sent a notice under 1-C, the Board may summarily order the Building Official to
resume issuing permits and to dismiss proceedings should probable cause to deny permits
no longer exist.
Within 90 days after the decision not to issue a building permit, pursuant to
paragraph 1 of this ordinance, or upon completion of the investigation; the Board
shall hold a public hearing upon 10 days notice published in a newspaper of general
circulation within the affected system and/or part thereof and mailed to any applicant
whose building permit application cannot be approved because of this ordinance, to
persons supplying water for domestic purposes within the system, the state agencies
regulating the service standards of the affected water supply system, and any user
of the affected system who has submitted an affidavit to the County alleging existence
of a public health hazard or inadequate water supply within the system.
The hearing may be conducted in accordance with the hearing procedures set forth
in County Ordinance PL-9, or such other procedure as the Board may announce beforehand.
Following the close of the hearing, the Board shall make findings on the existence
of a public health hazard within the system, the adequacy of the water supply, and
whether these problems would be aggravated or prolonged by the issuance of building
permits for buildings including plumbing, as appropriate.
Based on such findings, the Board may, by order, allow resumption of the issuance
of building permits within a defined area, extend the restriction on the issuance
of building permits within a defined area, or make any other lawful, appropriate order
which is consistent with its findings.
5. Effect of Failure to Make a Decision. Absent any order of the Board, the
restriction on issuance of building permits imposed by this ordinance shall expire
and be of no further force and effect 90 days after its inception.
6. State and Federal Pre-Emption. If the Board finds that the.investi.gation or proceedings
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prescribed herein would duplicate a pending investigation or proceeding carried on by any
state or federal agency, it shall promptly request an expedited decision from such
agency, and may dismiss or defer its proceedings. Notwithstanding the limitation
imposed by Section 5, unless the Board orders otherwise, the restriction on the issuance
of building permits imposed by this ordinance will continue until the Board receives
notice from the agency to the effect that no public health hazard or inadequate
water supply exists in the area under investigation, or that these conditions would
not be caused, aggravated, or prolonged by the issuance of permits for buildings including
plumbing.
7. Construction. Unless the context requires otherwise, the singular includes
the plural and the definitions contained in ORS 448.205 apply to this ordinance.
8. Emergency Clause. This ordinance is immediately necessary for the preservation
of the peace, health, and safety of the people of Deschutes County, in that the State
Health Division has notifed the Board of a health hazard due to an inadequate water
supply within certain residential developments in an unincorporated area of the County.
Accordingly, an emergency is declared to exist, and this ordinance shall become
effective upon adoption.
DATED AND ADOPTED this day of March, 1980.
BOARD OF COUNTY COMMISSIONERS
ALBERT A. UNG, Chairman
CLAY C. $HEPARD, Commiss"Wntr
C. PAULSON, JR., Commiss
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