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2009-9-Minutes for Meeting June 25,2008 Recorded 1/2/2009DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK 1~J 2009■9 COMMISSIONERS' JOURNAL 11111111111111111 111 01/02/2009 08:28:36 AM 2008-9 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JUNE 259 2008 Present were Commissioners Dennis R. Luke, Michael M. Daly and Tammy Melton. Also present were Erik Kropp, Deputy County Attorney; Cynthia Smidt, Kevin Harrison, Chris Bedsaul and Peter Gutowsky, Community Development; Teresa Rozic, Property and Facilities; and approximately 20 other citizens, including representatives of the media. Chair Luke opened the meeting at 2:40 p.m. 1. Update on La Pine Affordable Housing Project. Rima Wilson and Rob Roy of Pacific Crest Housing came before the Board. Teresa Rozic said that they are trying to close the funding gap that relates to the memorandum of understanding with the Oregon Housing and Community Services Department that expires on June 30, 2008. Initial approval has been obtained from the U.S. Department of Agriculture for funding. There is a commitment from the water and sewer boards to reduce hookup charges and monthly fees, and assistance from the school board and city regarding taxes. MELTON: Move that staff draft a resolution granting an extension until September 30, 2008. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. 2. Discussion of Aspen Lakes Text Amendment. Peter Gutowsky said that the Planning Commission has heard and made a recommendation, which is denial, four to two, with one abstention. Minutes of Administrative Work Session Wednesday, June 25, 2008 Page 1 of 5 Pages Commissioner Luke stated that he has known the Cyrus family for a long time. At the time the development was being considered, he helped the Cyrus' contact investors. He has no personal interest in the property, but has followed its development. Commissioners Melton and Daly indicated they also know the applicant. Peter Gutowsky gave a PowerPoint presentation at this time. Laurie Craghead stated that nothing has been violated at this point. Marian Moore, who lives in Aspen Ridge, asked to speak; attorney Tia Lewis said it is a very controversial issue so she also would want to speak. Commissioner Luke said that it would be best to wait until this is at a public hearing so everyone has a chance to hear testimony and testify. Laurie Craghead stated that existing subdivisions would not have to be brought up to code for setbacks, wildlife mitigation and other items for destination resort standing. This would apply only to expansions. A hearing date will be set as soon as practical. 3. Discussion of Grant Agreement Amendment with DLCD. Peter Gutowsky explained the item. The amendment relate to amounts being reimbursed for staff time in obtaining geographic information and laying the groundwork for a technical advisory committee. The first payment would occur after this month; the total amount will be the same. The change is essentially due to status of Board's decision on the proposed local rule; it was thought this would be further along by now. MELTON: Move Chair signature of the document as presented by staff. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. 4. Discussion of the Use of Wind Power for Generating Electricity in Deschutes County. Chris Bedsaul gave an overview of the item. He said that the 30-foot height limit for most structures dates back 100 years, and the American Wind Energy Association feels it is outdated. A variance is allowed in some cases. Minutes of Administrative Work Session Wednesday, June 25, 2008 Page 2 of 5 Pages Mr. Bedsaul had asked for comments from other counties; there were five responses. A commercial wind farm is different; this would be small-scale turbines. Even if it is for farm use, there is still a height restriction. Association of Oregon Counties' staff is developing an ordinance for counties to use, which should be available by the end of the year. The options for the County are to keep the restriction the same, allow a variance, or wait for AOC to come up with something. At this time, he referred to photos. He said that personal use is already allowed by utilities, with some restrictions. Ms. Craghead added that per statute, if it were a public utility there would be different criteria used to regulate it. Mr. Bedsaul said that the chief concerns are bird strikes and noise. Criteria could be used to go along with a conditional use. The question is whether it is an outright permitted use. Placement is contingent upon having the right parcel, and the turbine would be removed if it remained unused. Ms. Craghead noted that it seems like a larger conversation is needed. There needs to be a balance between renewable energy and aesthetics. Commissioner Luke asked why they would wait for AOC to come up with something. Mr. Bedsaul replied that there is only one application in process. DLCD may look at this without restrictions other than a height restriction imposed by counties. Citizen Pat Murphy asked if it would be for a wind farm or for personal use. Commissioner Luke said that they are just talking about personal use. Ms. Craghead added that wind farms are a public utility use, which is different. Commissioner Baney stated that perhaps the cost of handling this issue would be reduced if they wait for AOC to handle it. She would like the Board to take a leadership role in what works for Deschutes County, unless AOC provides boilerplate and the County can make adjustments. Ms. Craghead said it is a good option to wait for AOC. If it is applicant driven, it could take a lot of staff time. Commissioner Luke noted that it may save money for the applicant as well if they wait. It probably will not take much more time. He suggested that staff be involved with AOC while they work through this process. Standardization across the state would help everyone. Minutes of Administrative Work Session Wednesday, June 25, 2008 Page 3 of 5 Pages 5. Work Session on Open Space & Conservation Zone Text Amendment in regard to Hydroelectric Power. Cynthia Smidt said this is a citizen-initiated text amendment regarding the use of hydroelectric power. (She referred to a map at this time.) One is on County- owned land, another on private land north of Juniper Ridge. Commissioner Luke asked why the amendment is not specific to these locations. Liz Dixon, representing Central Oregon Irrigation District, said that there are only two locations where there is enough velocity and drop for this to work. Steve Johnson, General Manager of COID, added that there are only a few places where the zoning would allow this as well. Ms. Dixon stated that it is an outright use, but there are interlocking jurisdictions and the ability to approve this involves the County, Federal regulatory agencies and irrigation rules at the State and Federal levels. There are a lot of hoops to jump through. Ms. Dixon went on to explain where the equipment would be located, and what it would look like. Jan Lee, Manager of Swalley Irrigation District, added that the power lines have to be overhead, as they are putting in more lines to service Juniper Ridge. Ms. Dixon said that there would be safeguards in place to protect fish, and it would conserve a lot of water since less would have to be diverted from the river. There would be enough power for 3,900 homes with little material change. Ms. Smidt said that no comments were received from the public thus far. Ms. Craghead said there will be a public hearing. There are two proposals, for a change in definition and zone, but they do not mean to do both. She would prefer to see a change in the open space and conservation zone to accommodate this. 6. Other Items. None were offered. Being no further items before the Board, the meeting adjourned at 4:10 p. m. Minutes of Administrative Work Session Wednesday, June 25, 2008 Page 4 of 5 Pages DATED this 25A Day of June 2008 for the Deschutes County Board of Commissioners. r) Dennis R. Luke, Tammy ATTEST: M: Daly, C Vice Chair issioner Recording Secretary Minutes of Administrative Work Session Wednesday, June 25, 2008 Page 5 of 5 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA - REVISED DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., WEDNESDAY, JUNE 25, 2008 1. Update on La Pine Affordable Housing Project - Teresa Rozic; Rob Roy of Pacific Crest Housing 2. Discussion of Aspen Lakes Text Amendment - Peter Gutowsky 3. Discussion of Grant Agreement Amendment with DLCD - Peter Gutowsky 4. Discussion of the Use of Wind Power for Generating Electricity in Deschutes County - Chris Bedsaul 5. Work Session on Open Space & Conservation Zone Text Amendment in regard to Hydroelectric Power - Cynthia Smidt 6. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), pending or threatened litigation; or ORS 192.660(2) (b), personnel issues Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. ~ s \ L \ Cv~ l~ m o co Lf X co L1. M ~ O o ~ ~ o L a p c \r2 cu Qj C M v a -6 a L/I r 5 }-7) O ~ ~ S p ZZZZZ ~ z n. ~gSr ~e to v V • ~ co J x co ~o+ M N o 00 ° o M ~ a N M r lY 1 CL o a E o F- v, cu Z Sj j S J 1 r N C .`N t 0-TES C Property & Facilities Department 0 Susan C. Ross, Director 14 NW Kearney Street, Bend, OR 97701-1960 (5411388-6594 • Fax: (541) 317-3168 www. co. deschutes. or. us MEMORANDUM TO: Board of County Commissioners COPY: Dave Kanner, Erik Kropp 71 FROM: Teresa Rozic, Property & I ~c li'ties Department DATE: June 13, 2008 RE: Affordable Housing Project - La Pine The purpose of this memo is to update you on the progress that Pacific Crest Affordable Housing has made in closing the funding gap for the Little Deschutes Lodge project. As you know, they have until June 30, 2008 to obtain additional funding or change the project scope. Also, the MOU between Deschutes County and Oregon Housing and Community Services (OHCS) expires June 30, 2008. We will be on your work session agenda June 25th to provide final details. The gap between the OHCS funding and project costs was $666,000; it is now $119,000. The attached "Sources and Uses" sheet compares Pacific Crest's sources of funds and project uses from their original application to the current proformas. The significant entry is the "Permanent Loan" line that shows an additional $692,000, the largest portion of which is the USDA Rural Development Section 538 loan guarantee and interest rate enhancement. Pacific Crest has letters of interest from Homestead Capital for the tax credit equity and from Wells Fargo Bank for the construction and permanent loans. This is a summary of what Pacific Crest has done to close the gap: ✓ Obtained initial approval to proceed with a full application for USDA Rural Development Section 538 funds. ✓ Obtained commitment from La Pine Water and Sewer Boards to reduce the monthly utility allowance. Does not include off-site costs to be borne by Deschutes County. Quality Services Pkrformed with Pride ✓ Obtained commitment from La Pine Water and Sewer Boards to reduce hook up charge. ✓ Obtained agreement from Bend La Pine School Board and the La Pine City Council to abate taxes. Pacific Crest made these changes in project scope: ✓ Eliminated natural waste water treatment facility - La Pine Sewer Board denied request for exemption from sewer hook up. ✓ Eliminated Park and Ride - additional access points from Huntington Road are not realistic. Pacific Crest is also pursuing other funding opportunities, including: • Bonneville Environmental Foundation grant funds • Neigh borlmpact/CNG grant funds • Enterprise Green Communities grant/loan funds • Rural Community Assistance Corporation grant/loan funds It is not possible to obtain USDA's final approval for the loan guarantee by June 30th but Pacific Crest is confident that all necessary funds (OHCS and other sources) will be in place to meet a spring 2009 construction start date. Rob Roy from Pacific Crest Affordable Housing will be at your June 16th work session to answer questions you may have. 2 O 0~ O J N D N N 'O 7 = L (a U cn N O O U 0 ~ O O U) J Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ STAFF REPORT TO: Deschutes County Planning Commission FROM: Cynthia Smidt, Associate Planner DATE: April 16, 2008 SUBJECT: Work Session for Text Amendment to allow hydroelectric facilities on existing irrigation systems in the Open Space and Conservation (OS&C) Zone; TA-08-4 PURPOSE The Deschutes County Planning Commission will hold a work session on April 24, 2008 at the Deschutes Services Center, starting at 5:30 p.m. The Commission will consider a text amendment proposed by Central Oregon Irrigation District and Swalley Irrigation District that modify the following sections of Deschutes County Code, Title 18: Section 18.04.030, Definitions; and Section 18.48.020, Uses permitted outright (OS&C). The text amendment would allow for hydroelectric facilities on existing irrigation systems as a use permitted outright in the OS&C Zone. BACKGROUND Central Oregon Irrigation District (COID) and Swalley Irrigation District (SID) have proposed an amendment to the Deschutes County Code that would permit hydroelectric facilities on existing irrigation systems (piped canals) in order to develop sustainable energy production in Deschutes County. Currently, hydroelectric facilities are not permitted in the OS&C Zone of the Deschutes County Code (DCC). However, utility facilities are permitted conditionally. The County definition of "utility facility" excludes hydroelectric facilities. A few locations in the existing irrigation network have significant elevation change and water flow that would allow for substantial power generation, if hydroelectric facilities were in place. The sites in which the Districts are considering for such use are piped irrigation canals that are screened at the intake and thus preventing fish entry and harm. The irrigation district would install turbines in the screened and piped canals. The natural pull of gravity will continue the flow of water through the canal and through the turbines having little or no impact on water levels and flows in the canal. Oregon Statewide Planning Goal 13, Energy Conservation, Oregon's Energy Policy (ORS 469.010), and the 2007 Senate Bill 838 (Oregon Renewable Energy Act) were intended to promote the efficient use of energy resources and develop sustainable energy resources. State Quality Services Performed with Pride law allows local jurisdiction to implement such energy facilities for the needs of the rural area served. It is found in the Oregon Renewable Energy Act (SB 838) that it is necessary for Oregon to decrease the reliance on fossil fuels for electricity and increase the use of renewable energy sources. PUBLIC NOTICE A 45-day Notice of Proposed Amendment, announcing the Planning Commission's work session and public hearing was mailed on March 3, 2008 to Oregon's Department of Conservation and Land Development and was otherwise noticed as required. PROPOSAL Central Oregon Irrigation District and Swalley Irrigation District submitted a text amendment to Deschutes County's OS&C Zone on February 13, 2008 and a supplemental Burden of Proof on April 11, 2008 (Attachments 1 and 2). The new language proposed to amend Deschutes County Code section 18.04.030 and 18.48.020 would include modifying the definition of "utility facility" to include hydroelectric facilities and add the use of hydroelectric facilities on existing irrigation systems as a use permitted outright in the OS&C Zone. Further, the proposal includes the construction, operation, and maintenance of a hydropower facility and the establishment of the associated utility lines. ANALYSIS Regarding the proposed text amendment to alter the definition of "utility facility," currently the County Code specifically excludes "hydroelectric facility" from the definition. As indicated in the submitted Supplemental Burden of Proof, the applicant requests that a "hydroelectric facility" be included as a "utility facility." It was County policy (Ordinance 86-018) to define and regulate hydroelectric facility separately from a "utility facility." The County policy created criteria distinctive to hydropower (refer to DCC 18.116.130 and 18.128.260). Further, state statute regulates "utility facility' in the farm zone differently thus changing this definition may make the farm zone not meet statutory requirements. In regards to the proposed text amendment adding hydroelectric facility on existing irrigation systems as a use permitted outright; this does not appear to comply with the County Comprehensive Plan. The applicants propose to allow for the construction, operation, and maintenance of a hydropower facility and the establishment of the associated utility lines. According to the comprehensive plan (DCC 23.68.020(2)(d)), "power generation sites shall be landscaped and the site plan reviewed as part of the conditional use applications." Regardless of zone, utility facilities and hydroelectric facilities typically require some type of land use review. OTHER OREGON COUNTY ORDINANCES The applicants have indicated that Clackamas County and Klamath County have ordinances regulating hydroelectric facilities. Clackamas County, in particular, requires hearings officer review when the proposed facility functions at 25,000 kilowatts or less. Klamath County supports small hydropower and wind systems in their County Comprehensive Plan. However, staff was unable to find specific criteria for hydroelectric facilities. Both ordinances are included in the Planning Commission packet for review. Staff Report TA-08-4 Page 2 REVIEW CRITERIA The proposed amendment revises Deschutes County Code, Title 18, to permit hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone. Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative zoning text amendment. Therefore, the County must determine that the proposed Title 18 text amendments are consistent with state statute, the Statewide Planning Goals, and the County's Comprehensive Plan. The parameters for evaluating these text amendments are based on whether there are adequate factual findings that demonstrate this consistency. STATEWIDE PLANNING GOALS The proposed amendment would revise Deschutes County Code, Title 18, to permit hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone. For purposes of this discussion, the proposed amendments would satisfy Statewide Planning Goal 1, Citizen Involvement, and Goal 2, Land Use Planning. Also included are the following Statewide Planning Goals: Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources, Goal 6, Air, Water and land Resource Quality, Goal 11, Public Facilities, and Goal 13, Energy Conservation. • Goal 1 would be satisfied through our County text amendment process that includes a work session followed by a public hearing with the County Planning Commission and then completed with a work session and public hearing with the County Board of Commissioners work session and public hearing. ■ Goal 2 was reviewed by staff for compliance and determined to meet the intent of the goal to be suitable and factual information and in accordance with the County's Comprehensive Plan Energy, Water Resources, Public Facilities, and Open Space Chapters. ■ Goal 3, Agricultural Lands, was reviewed by staff and determined that the changing of the definition of "utility facility" may create a violation of statutory requirements. ■ . Goal 4, Forest Lands, was reviewed and staff determined that the changing of the definition of "utility facility" would not be affected here. ■ Goal 5 Open Spaces, Scenic and Historic Areas and Natural Resources, ■ Goal 6 Air, Water and Land Resource Quality, ■ Goal 11, Public Facilities and Services, and ■ Goal 13, Energy Conservation would be satisfied by permitting hydroelectric facilities on existing irrigation systems as a renewable energy source (natural resource) to serve the electrical needs within the County. • Other Statewide Goals such as Goals 8 through 10 and 14 through 19 were reviewed and were found not applicable to this proposal. DESCHUTES COUNTY COMPREHENSIVE PLAN The Deschutes County Comprehensive Plan does contain policies that address energy resources, water resources, and open space. Staff has reviewed the proposed text amendment and believes the proposal would be consistent with the County's energy goals on protecting natural energy resources and assisting with local energy supplies. Staff believes the proposal is consistent with the County's open spaces, areas of special concern, and environmental quality goals to maintain and improve the quality of air, water, and land resources. The proposal is consistent with maintaining water quantity and quality as addresses in the County's water resources goals. Staff also reviewed the proposed text amendment against the County's public Staff Report TA-08-4 Page 3 facilities and services goal to determine if the proposal will best serve existing and proposed (urban and rural) development with "timely, orderly and efficient arrangement of public facilities." POLICY QUESTIONS ■ Is the proposed use of hydroelectric facilities an appropriate use? ■ Is the proposed use of hydroelectric facilities consistent with the purpose of the OS&C Zone? • How should the proposed use be regulated, permitted outright or conditionally? ■ Should the proposed use be distinguished from the existing hydroelectric facility regulations? ■ Should the proposed use in the OS&C Zone be limited to hydroelectric facilities only on existing irrigation systems or should it take into account all hydroelectric facilities? RECOMMENDATION The applicant originally did not request amending the definition of "utility facility." However, in the submitted Supplemental Burden of Proof, the applicant requests that a "hydroelectric facility" be included as a "utility facility." In section 18.04.030, the applicants propose the removal of the word "excluding." Staff believes that removing the word thus including hydroelectric facilities as a utility facility may create additional revisions throughout Title 18. As indicated above in this report, the definition of "hydroelectric facility" and its associated criteria was a local policy choice (refer to County Ordinance 86-018). However, staff believes this policy was created with the thought of regulating large hydroelectric facilities typically associated with reservoir dams. Staff believes "hydroelectric facility," as defined in the County Code, defines the proposed use of hydropower on existing irritation canals. However, the associated criteria, discussed below, may not. Further, state statute regulates "utility facility" differently in the farm zones. Therefore, if the definition were altered, the farm zone may not comply with statutory requirements. Hydroelectric facilities are required as with a conditional use permit and includes associated criteria in DCC 18.116.130 and 18.128.260. Therefore, staff recommends not making this change. Listed below are the definitions of "hydroelectric facility" and "utility facility" as they exist in the County Code. Chapter 18.04. Title, Purpose and Definitions. Section 18.04.030. Definitions. "Hydroelectric facility" means all aspects of any project or development necessary for or related to the generation of hydroelectric energy, including, but not limited to, conduits, dams, diversions, fish ladders and screens, generators, impoundments, penstocks, turbines, transmission facilities and related buildings, structures, storage areas, access roads, parking areas and surrounding and adjacent lands which are necessary for or related to the facility. "Utility facility" means any major structures, excluding hydroelectric facilities, owned or operated by a public, private or cooperative electric, fuel, communications, sewage or water company for the generation, transmission, distribution or processing of its products or for the disposal of cooling water, waste or by-products, and including power transmission lines, major trunk pipelines, power substations, telecommunications facilities, water towers, sewage lagoons, sanitary landfills and similar facilities, but excluding local sewer, water, gas, telephone and power distribution lines, and similar minor facilities allowed in any zone. This definition shall not include wireless telecommunication facilities where such facilities are listed as a separate use in a zone. Staff Report TA-08-4 Page 4 The applicant proposes hydroelectric facilities on existing irrigation systems as a use permitted outright in the OS&C zone (DCC 18.48.020). Furthermore, they propose "utility lines necessary for the operation of hydroelectric. facilities...." Hydroelectric facilities, when permitted, are permitted conditionally. To be consistent with DCC 23.68.020(2)(d), staff believes the proposed use should be permitted conditionally. However, the criteria addressing hydroelectric facilities in DCC 18.116.130 is not applicable as is addresses facilities on rivers. Staffs interpretation is that the proposed hydropower facility is small in scale. Therefore, the criteria in DCC 18.128.260 are not necessary in reviewing because they address large hydroelectric facilities. In addition, the separation of "utility lines" from the hydroelectric facility seems redundant. The definition of hydroelectric facility in Title 18 includes "transmission facilities" thus including the lines to carry the electricity produced at the facility. In conclusion, staff recommends hydroelectric facilities on existing irrigation systems be permitted conditionally in the OS&C Zone and subject to General Standards Governing Conditional Uses (DCC 18.128.015) and applicable provisions in the County Comprehensive Plan. Staffs proposal to the code goes as follows. Chapter 18.4& Open Space and Conservation Zone - OS&C. Section 18.48.030. Conditional Uses Permitted. The following uses maybe allowed subject to DCC 18.128. A. Private parks, picnic areas or hunting and fishing preserves. B. Public parks and recreational areas owned and operated by a govemmental agency or nonprofit community organization. C. Utility facility except landfills. D. Water supply and treatment facility. E. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland subject to DCC 18.120.050 and DCC 18.128.270. F. Campground. G. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). H. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material. 1. Construction, operation, and maintenance of hydroelectric facilities on existing irrigation systems operated by an Irrigation District. subject to the limitations in DCC 18.128.015 and applicable sections of the County Comprehensive Plan, but not subject to 18.128.260 and 18.116.130. Attachments: 1. Applicant's Text Amendment Application 2. Applicant's Supplemental Burden of Proof and Revised Text 3. Clackamas County Zoning and Development Ordinance, Section 829, Hydroelectric Facilities. 4. Klamath County Comprehensive Plan, Goal 5, Open Space, Scenic and Historic Areas, and Natural Resources. 5. DCC Chapter 23.76, Energy 6. DCC Chapter 23.112, Water Resources Staff Report TA-08-4 Page 5 ~f^4 Community Development Department Planning Division Building Safety Division Environmental Health Division JU 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ STAFF REPORT TO: Deschutes County Board of County Commission FROM: Cynthia Smidt, Associate Planner MEETING DATE: June 25, 2008 SUBJECT: Work session for Open Space and Conservation Zone Text Amendment; TA-08-4 PURPOSE The Deschutes County Board of County Commissioners will hold a work session prior to a public hearing to consider text amendments proposed by Central Oregon Irrigation District and Swalley Irrigation District. The Commission will consider a text amendment for Deschutes County Code Section 18.04.030, Definitions, specifically "Utility Facility" and modify Deschutes County Code Chapter 18.48, Open Space and Conservation (OS&C) Zone, Section 18.48.020, Uses permitted outright. The text amendment would allow hydroelectric facilities on existing irrigation systems as a use permitted outright in the OS&C Zone. PROPOSAL Central Oregon Irrigation District (COID) and Swalley Irrigation District (SID) have proposed an amendment to the Deschutes County Code that would permit hydroelectric facilities on existing irrigation systems (piped canals) in order to develop sustainable energy production in Deschutes County (See Attachment 1, TA084 Application Materials). The Planning Commission held one work session and one public hearing on the proposed text amendment (See Attachment 3, PC Minutes). There were no public comments at the hearing; however, the U.S. Forest Service did submit written comments. The Planning Commission listened to testimony by COID and SID representatives, as well as their attorney. Currently, in the OS&C Zone, hydroelectric facilities are not permitted. Utility facilities, however, are permitted conditionally but, as defined, do not include hydroelectric facilities. Within Deschutes County, the applicant has designated two locations in which significant elevation change coupled with water velocity would allow for small-scale hydroelectric facilities on piped irrigation canals. One site is within the COID system and one is in the SID system. In addition, these two locations are within the OS&C Zone thus the reasoning behind an amendment to that zone. The applicants indicate that there are other locations in the COID system that may work for hydropower. However, only the location specified here "has the volume and gravitational drop that warrants the cost of piping and turbine purchase and line at this time." The proposed hydro facility will be established entirely within the irrigation district's easement and within Quality Services Perfonned with Pride Y existing piped irrigation canals that are screened at the intake and thus preventing fish entry and harm. The turbines used are designed-specific to flow levels and do not result in an accumulation of or stored water. Temporary powerlines will be in place for approximately three to four years until PacifiCorp installs permanent lines. According to the applicant, the Oregon Department of Water Resources (ODWR) regulates hydroelectric facilities. Hydroelectric facilities are regulated by OAR 690 and ORS 537. According to the applicant, this text amendment only refers to those projects permitted under ORS 537.765. Further, the applicant indicates that power facilities with a generation capacity of 10 megawatts of power or less are considered small-scale generation. The COID hydropower project will generate approximately 3/4 to 1 megawatt of power and the SID project will generate about 3 megawatts. Lastly, other State and Federal laws such as Department of Environmental Quality (DEQ) and the Clean Water Act, respectively also bind hydropower facilities including the two proposed here. Oregon Statewide Planning Goal 13, Energy Conservation, Oregon's Energy Policy (ORS 469.010), and the 2007 Senate Bill 838 (Oregon Renewable Energy Act) were all intended to promote the efficient use of energy resources and develop sustainable energy resources. State law allows local jurisdictions to implement such energy facilities for the needs of the rural area served. It is found in the Oregon Renewable Energy Act (SB 838) that it is necessary for Oregon to decrease the reliance on fossil fuels for electricity and increase the use of renewable energy sources. Background information and staff reports on the record to date, can be found at the County website www.deschutes.or /c~ cdd under pending code amendments. STATEWIDE PLANNING GOALS The proposed amendment would revise Deschutes County Code, Title 18, to permit hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone. For purposes of this discussion, the proposed amendments would satisfy Statewide Planning Goals with the exception of Goal 3, Agricultural Lands. Goal 3 was reviewed by staff and determined that changing the definition of "utility facility" would create a violation of statutory requirements. Goal 4, Forest Lands, was reviewed and staff determined that changing the definition of "utility facility" would not be affected here. Satisfaction of Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources is discussed below in this report. Goal 6, Air, Water and Land Resource Quality; Goal 11, Public Facilities and Services; and Goal 13, Energy Conservation would be satisfied by permitting hydroelectric facilities on existing irrigation systems as a renewable energy source to serve the electrical needs within the County. Other Statewide Goals such as Goals 8 through 10 and 14 through 19 were reviewed and were found not applicable to this proposal. Regarding Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources, staff believes the goal would be satisfied. The proposed small-scale hydroelectric facilities will be located on existing piped irrigation canals in site-specific areas. The designated sites are located in segments along Highway 97 between Redmond and Bend that have the OS&C zoning designation. These areas may have been zoned OS&C to protect scenic mountain views and/or for the potential of a future state park (campgound or day use area). These sites are outside of federal or state designated scenic waterways. There are no known historic values assigned to these areas. Staff believes Goal 5 would be satisfied because the proposed use is minimal in size, thus protecting scenic and open space resources. Additionally, fish and wildlife resources are managed and protected at the Irrigation District's water diversion area located south (up river) from these sites. Furthermore, through the promotion of low-impact BOCC Staff Report TA-08-4 Page 2 renewable energy such as this it also is a promotion of a healthy environment and natural landscape. In conclusion, the proposed use would protect and improve quality of resources (e.g. air, land, and water). DESCHUTES COUNTY COMPREHENSIVE PLAN The Deschutes County Comprehensive Plan contains policies addressing energy resources, water resources, and open space. Staff believes the proposal would be consistent with the County's energy goals on protecting natural energy resources and assisting with local energy supplies. Further the proposal is consistent with the County's open spaces, areas of special concern and environmental quality goals to maintain and improve the quality of air, water, and land resources. The text amendment proposed here includes existing irrigation canals located on OS&C zoned properties along Highway 97 and far from federal and state scenic waterways as well as other local rivers and streams. The proposal is consistent with maintaining water quantity and quality as addresses in the County's water resources goals. Staff also reviewed the proposed text amendment against the County's public facilities and services goal to determine if the proposal will best serve existing and proposed (urban and rural) development with "timely, orderly and efficient arrangement of public facilities." PLANNING COMMISSION RECOMMENDATION On April 24, 2008, staff presented the proposal to the Planning Commission at a work session. At the public hearing on May 8, 2008, the Planning Commission recommended approval as proposed (See Attachment 3 for Planning Commission meeting minutes). The recommendation did not include documented findings. The proposed language amends Deschutes County Code section 18.04.030 and 18.48.020 and includes modifying the definition of "utility facility" to include hydroelectric facilities and adding the "construction, operation, and maintenance of hydroelectric facilities on existing irrigation systems" as a use permitted outright in the OS&C Zone. PROPOSAL ANALYSIS The applicants propose, and the Planning Commission concurred, an amendment to alter the definition of "utility facility." The County Code specifically excludes "hydroelectric facility" from the definition. As detailed by staff to the Planning Commission (see attachment 2 and 3, PC Staff Report and Memo), state statute regulates "utility facility" in the farm zone thus changing this definition may make the farm zone not meet statutory requirements. Furthermore, staff believes that if hydroelectric facilities are included as a utility facility, it will create additional revisions throughout Title 18. Staff believes the current definition of hydroelectric facility defines the proposed use of hydropower on existing irritation canals. County Code regulates hydroelectric facility separately from a "utility facility" as detailed in DCC 18.116.130 and 18.128.260. Also included with and further recommended by the Planning Commission is the proposal of hydroelectric facilities on existing irrigation systems (piped canals) as a use permitted outright in the OS&C zone (DCC 18.48.020). Currently, hydroelectric facilities are permitted conditionally regardless of the zone. As indicated to the Planning Commission, staff believes this amendment does not appear to comply with the County Comprehensive Plan. In DCC 23.68.020(2)(d) it states, "power generation sites shall be landscaped and the site plan reviewed as part of the conditional use applications. Staff notes that reviewing a hydroelectric facility does include the applicable criteria in DCC 18.116.130, 18.128.015, and 18.128.260. Standards addressed DCC 18.116.130, is specific to hydropower on rivers or streams. The BOCC Staff Report TA-08-4 Page 3 V proposed hydroelectric facilities are site specific and will not occur on rivers or streams rather they will occur on existing piped irrigation canals far from the rivers and streams of Deschutes County. The Standards addressed DCC 18.128.260 refer to large hydroelectric projects located on rivers and reservoirs, including reviewing the impact of dams and man-made diversions, existing fish and wildlife habitat, riparian health, and riverbank stability. Staff believes these criteria were created with the thought of regulating large hydroelectric facilities typically associated with reservoir dams. Staff believes that to be consistent with DCC 23.68.020(2)(d), the proposed use should be permitted conditionally. However, standards set in DCC 18.116.130 are not applicable. Based on information in the record, the proposed hydropower facility is small in scale and generates less than 5 megawatts of power. Therefore, staff believes the criteria in DCC 18.128.260 are not necessary in reviewing because they address large hydroelectric facilities. In conclusion, staff believes hydroelectric facilities on existing irrigation systems should be permitted conditionally in the OS&C Zone and subject to General Standards Governing Conditional Uses (DCC 18.128.015). NOTICE Notice of the proposed text amendment was sent to five (5) known irrigation districts within Deschutes County as well as Oregon Department of Fish and Wildlife (ODFW), Watermaster - District 11, U.S. Forest Service (USFS), Oregon Department of Parks and Recreation (OPRD), and the U.S. Bureau of Land Management (BLM). REVIEW CRITERIA The proposed amendment revises Deschutes County Code, Title 18, to permit hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone. Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative zoning text amendment. Therefore, the County must determine that the proposed Title 18 text amendments are consistent with state statute, the Statewide Planning Goals, and the County's Comprehensive Plan. The parameters for evaluating these text amendments are based on whether there are adequate factual findings that demonstrate this consistency. PUBLIC HEARING Staff has not yet scheduled a public hearing for this application in order to allow the Board to schedule further work sessions and/or to discuss the most appropriate time and place for a hearing. Attachments: 1. TA084 application materials 2. Planning Commission Staff Report and Memo 3. Planning Commission meeting minutes 4. Planning Commission Proposed Ordinance with Exhibit A and B BOCC Staff Report TA-08-4 Page 4 Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM TO: FROM: DATE: MEETING: SUBJECT: Deschutes County Planning Commission Cynthia Smidt, Associate Planner April 30, 2008 May 8, 2008 Public Hearing for Text Amendment to allow hydroelectric facilities on existing irrigation systems in the Open Space and Conservation (OS&C) Zone; TA-08-4 BACKGROUND At the Planning Commission work session held on April 24, 2008, the Commission inquired about certain historical details of the Open Space & Conservation zone. The question revolves around why there is an OS&C zone and why certain properties were included in the OS&C zone. DESCHUTES COUNTY COMPREHENSIVE PLAN The Deschutes County Comprehensive Plan does contain a policy that addresses open space, areas of special interest, and environmental quality (DCC 23.96). In this section of the comprehensive plan, the goal includes conserving, maintaining, and improving these designated areas and the environment (air, water, and land resource quality). Moreover, the Plan states, Open spaces include not only parks, but also agricultural, forested, natural areas, mining sites and historical areas, as well as scenic waterways and other locations of unique scenic, environmental, social or cultural character. This is further defined in DCC 23.12.010, Definitions. "Open space" means the part of the countryside which has not been developed and which is desirable for preservation in its natural state for ecological or recreational purposes, or in its cultivated state to preserve agricultural, forest or urban greenbelt areas. More specifically, open space consists of any land area that would, if preserved and continued in its present use: A. Conserve and enhance natural or scenic resources; B. Protect air or streams of water supply; C. Promote conservation of soils, wetlands or beaches; Quality Services Performed with Pride D. Conserve landscaped areas, such as public or private golf courses, that reduce air pollution and enhance the value of abutting or neighboring property, E. Enhance the value to the public of abutting or neighboring parks, forest, wildlife preserves, natural reservations or sanctuaries or other open space, F. Enhance recreation opportunities; G. Preserve historic sites; H. Promote orderly urban development. When referring to the Areas of Special Interest chapter in the County Comprehensive Plan Resource Element (the factual information behind the Comprehensive Plan), it details the benefits of open space occurring in various forms whether it be agricultural lands, forest lands, parks, mining sites, rivers, roads, et cetera. Open space and special interest areas are not all zoned OS&C. For example, the County regulates scenic rivers with the Landscape Management (LM) Combining Zone and regulations pertaining to the associated riparian areas. Regulations for sensitive bird sites are within the Sensitive Bird and Mammal Habitat (SBMH) Combining Zone. However, the areas zoned OS&C are more likely to be site specific. For example, the Newberry National Volcanic Monument was zoned OS&C prior to the recognition as a national monument thus illustrating the County's interest in maintaining and protecting this special geologic area. Some of the high mountain lakes (e.g. Elk Lake, Little Cultus Lake, and Davis Lake) found in the County and which have public access from existing roadways have OS&C zoning surrounding the water resource and the recreation and historic significance they contain. Oregon State parks and campgrounds such as La Pine State Park and Tumalo State Park are zoned OS&C. Segments along Highway 97 between Redmond and Bend are also zoned OS&C. These sections of highway are or have been owned by Oregon State Parks and Recreation Department. Further, the text amendment before us today includes existing irrigation canals located on these OS&C zoned properties along Highway 97. Based on the Resource Element, these sections along the roadway may have been zoned for the purposes of protecting mountain views and/or for the potential of a future state park (campground or day use area). In conclusion, the OS&C zone is in place to protect designated areas desirable for preservation; to restrict development in fragile and unique areas; to plan development to conserve these areas of interest; and to protect and improve quality of resources (e.g. air, land, and water). Attachments: 1. Deschutes County Comprehensive Plan Resource Element, Areas of Special Interest Staff Memorandum TA-08-4 Page 2 HURLEY RE P.C. Daniel C. Re , William E. Flinn ATTORNEYS AT LAW Christopher D. Hatfield Elizabeth A. Dickson son Johnson Gary R. R. J h 747 SW Mill View Way o Bend OR 97702 Jennifer L. Coughlin Phone 541.317.5505 Ryan P. Correa Fax 541.317.5507 ames V. Hurley James hurle -re.com Y of Counsel February 12, 2008 Catharine Morrow Community Development Department 117 NW Lafayette Avenue Bend, OR 97701 Re: Central Oregon Irrigation - Swalley Irrigation District Text Amendment to Title 18 Deschutes County Code Relating to Hydroelectric Facilities in OS & C Zones Lot of Verification Dear Catharine: Enclosed in the above-referenced matter please find the Text Amendment to Title 18 Deschutes County Code Relating to Hydroelectric Facilities in OS & C Zones and the Lot of Verification, together with Central Oregon Irrigation District's check in the amount of $3,920.00. Sincerely, f): ~~7 ~ , ~ te Elizabeth A. Dickson EAD/lt c: client Swalley Irrigation District Q:\DATA\ IZ\CLIENT FILES\C\COID\PURCHASE OF HYDRO SITE STATE PARKS 102.298\.-Catharine Morrow 2.12.08.doc ScnxM FEB 1^ 3 ,2,0~0~8~ Community Development Department Planning Division 117 NW Lafayette Avenue, Band, OR 97701-1925 (541136&8575 - Fax (541 J 385-1764 http://www.deschubw.oM/odd PLAN)ZONE/TW AMENDMENT ZONE MAP AMENDMENT:- PLAN MAP AMENDMENT:_ TEXT AMENDMENT: X FEE: FEE: FEE: C04pplicanfs Name (print): Central Oregon irrigation District Phone: 548--6047 • 1055 SW Take Court City/State/Ziip: Rem. OR 97756 ails Mrs CoVall, ' Property0m eft Name (if different):*- y Tirigat ion District Phone: (54l) 388-0658 Mailing Address: 64672 Cods Avenue, Suite #1 City/State/Zip: Bend, OR 97701 Property Description: Township Range Section Tax Lot Lot of Record? (state reasonk Current Zoning: Proposed Zoning: Current Plan Designation: Proposed Designation: Applicable State Goals: Exception Proposed? Yes - No Size of Affected Area: Ades INSTRUCTIONS FOR COMPLETING THIS APPLICATION: 1. Complete this application form including the appropriate signatures. 2. Include a detailed statement describing the proposal and how it meets all requirements of the appropriate State rules and statutes, and County codes and Comprehensive Plan policies. Text amendment applications must include the proposed language and the basis for the change. 3. If multiple properties are Involved in this application, then identify each property on a separate page and follow with the property owners' signatures. 4. Submit the correct application fee. 5. Submit a y f the current deed(s) for the property(ies). A LIC 10 :APPOINTMENT 15 REQUIRED FOR ALL AMENDMENTS ~pIi~1n~Ys1S~~n Date• r te Prvperty'©wrret's Signatur nt)": O . DateL S Agent's Name (if appl'rcabi Elizabeth A• Phone: (5411 317-5505 H=ley Re P.C. Mailing Address: 747 SW Mill -ew ~ CitylStateop: Bend, OR 97702 'If this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. `T A - og~ `I '/OT Proposed Amendment to Title 18 Deschutes County Code Relating to Hydroelectric Facilities in OS & C Zones Submitted by: Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 and Swalley Irrigation District 64672 Cook Ave. Suite #1 Bend, Oregon 97701 February 12, 2008 Co-Applicant: Steve Johnson, District Manager Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 Phone: (541) 548-6047 Fax: (541) 548-0243 Co-Applicant Jan Lee, General Manager Swalley Irrigation District 64672 Cook Ave. Suite #1 Bend, Oregon 97701 Phone: (541) 388-0658 Fax: (541) 389-0433 Attorney: Elizabeth A. Dickson Hurley Re, P.C. 747 SW Mill View Way Bend, Oregon 97702 Phone: (541) 317-5505 Fax: (541) 317-5507 TABLE OF CONTENTS Text Amendment Application Summary Text of Proposed Amendment Discussion Issue Hydroelectric Facilities Federal Regulation State Regulation Deschutes County Comprehensive Plan Conclusion SUMMARY The Central Oregon Irrigation District (COID) and Swalley Irrigation District (SID) (hereafter "Districts") would like to develop sustainable energy production facilities in Deschutes County by inserting hydroelectric turbines into piped irrigation canals. It is currently not possible for the Districts to construct these facilities on eligible sites because these are in the Open Space and Conservation (OS&C) Zone. The Deschutes County Code excludes "hydroelectric facilities" in its definition of allowable utility facilities on Open Space & Conservation (OS & C) zones. The Districts propose to amend section 18.48.020 of the Deschutes County Code (DCC) to allow for the construction and operation of hydroelectric facilities in piped, screened systems in a way that would encourage "green power" in accordance with existing state and federal laws. COID and SID are special districts, local governments, and quasi-municipal corporations of the state of Oregon. They made this proposal for the benefit of Districts' patrons and the energy-consuming community-at-large. The Districts have determined that there is a sufficient elevation drop on COID's Pilot Butte Canal north of Bend and east of Highway 97, and on SID's Main Canal north of Bend and west of Highway 97, which would generate substantial power via turbine, if captured. The parcels of interest are vacant and zoned Open Space and Conservation (OS & Q. The proposed amendment modifies 18.48.020 (Uses Permitted Outright) to add limited construction, maintenance, and operation of "hydroelectric" facilities on OS & C zones. The proposed amendment does not alter restrictions already in place for hydroelectric facilities, or use of riparian zones or wetlands. It is not foreseeable that this amendment will result in a proliferation of additional hydroelectric facilities throughout the county. Only canals, screened to prevent fish injury, will be eligible for this dual use. The proposal is compatible with the Deschutes County Comprehensive Plan. The benefits the County will receive from green power facilities are measurable and will contribute to 'the sustainable growth of the community. Hydroelectric facilities in piped canals can contribute to the optimal use of irrigation water and will not affect the rural character of the area. The proposal does not alter designated Scenic Waterways, parks, historical areas or other locations of unique scenic, environmental, social or cultural character. 'T TEXT OF PROPOSED AMENDMENT (New language is underlined and deleted language shown in stp3edffeugh) Chapter 18.48. OPEN SPACE AND CONSERVATION ZONE - OS&C 18.48.020. Uses permitted outright. The following uses and their accessory uses are permitted outright: A. Farm use as defined in ORS 215.203(2). B. Public and nonprofit agencies, museums and exhibits on lands where an exception has been granted in accordance with Oregon Administrative Rules chapter 660, Division 4. C. Public wildlife reserve or management area, not including structures. D. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards and criteria established by DCC 18.116.230. E. Class III mad or street project. F. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. G. Construction, operation, and maintenance of hydroelectric facilities on existing irrigation systems operated by an Irrigation District subject to the limitations in DCC 18.128.260.23.96.030 and 23.112.040 including transmission lines serving such facilities. DISCUSSION The Issue Central Oregon Irrigation District (COID) and Swalley Irrigation District (SID) are interested in constructing hydroelectric facilities on canals located on rural, undeveloped lands north of Bend. The Districts have determined that there is both a sufficient elevation drop ("head') and sufficient flow at these specific canal sites to generate renewable, sustainable power when turbine/generators are added to these existing facilities. The lands upon which the canals are located are zoned Open Space and Conservation (OS & Q. It is currently not possible for the Districts to construct hydroelectric facilities in this zone because the Deschutes County Code left out "hydroelectric facilities" in its provision for permissible uses in Open Space & Conservation (OS & C) zones. The Districts now propose to amend DCC 18.48.020 to include hydroelectric facilities, thus permitting the districts to construct and operate these facilities. Hydroelectric Facilities Rapid growth in the county is accelerating the demand for electricity. Recent changes to state and federal law encourage renewable, sustainable power production to meet increased demands. The Districts' propose to build hydroelectric facilities that produce "green power." DCC 18.48.020 regulates permissible uses in OS & C zones, and was last amended in 2001. That amendment did not address the issue of permitting hydroelectric facilities. Hydroelectric power, as produced by irrigation districts in closed canal systems, would serve the community well and implement the purposes of the County's Comprehensive Plan. In Deschutes County, there are only two hydroelectric facilities, both of which are operating at capacity. The Deschutes County Comprehensive Plan states that growth of the area has put a strain on energy and public facilities. The Plan fosters growth in a way that is sustainable and accommodating to both urban and rural areas. The proposed amendment allows for services to be provided accommodating that growth. This proposal encourages the restricted use of hydroelectric facilities in closed systems. The construction of these facilities is expensive and well regulated at both the state and federal levels. The text amendment will not diminish the regulation of either state or federal law. Federal Regulation The text amendment requested to allow projects proposed by the Districts will allow closed-system (diverted water closed to fish) hydroelectric facilities in OS & C zones, as it is currently allowed in other zones within the county. The proposed projects would be constructed by adding hydroelectric turbines to already piped irrigation canals. The amendment, as proposed, will have no impact on federal regulation of these facilities. Both sites will be reviewed by the Federal Engergy Regulatory Commission (FERC) as "conduit exemption projects." 18 CFR 4.30 governs conduit exemptions because the projects will be located in existing canals that flow from existing diversions from the river which are already screened at the intake to prevent fish entry into the systems. The County's regulation may include a provision that a project allowed under this DCC must have a license or exemption issued by FERC. State Regulation The Oregon Water Resources Department governs hydroelectric development under Oregon Revised Statutes (ORS) Chapters 537 and 543 and Oregon Administrative Rule 690-051-000. The Districts' proposed amendment to the DCC and the Districts' proposed hydroelectric facilities do not have significant impacts on "designated resource areas" within the state as cited because they are already within district canals with existing diversions and screened intakes, as well as within federal and state authorized easements or rights-of way. Regional Regulation The Northwest Planning and Conservation Council's Fish and Wildlife Plan does not allow for hydroelectric development within tributaries of the Columbia River system, such as the Deschutes River Basin, except when such projects are on existing canals or reservoirs, with screened, existing diversions from the river. The state statutes governing issuance of a water right for hydropower mirror this requirement. Deschutes County Comprehensive Plan 1. Compatibility with County Energy Policy The proposed text amendment to DCC 18.48 effectively implements the Deschutes County Comprehensive Plan ("Plan" In the Plan, the County noted that "[ennergy usage has been growing dramatically in Deschutes County...." (DCC 23.76.010). The Plan also states that the "County shall review and promote the development and use of local alternative energy sources in order to prepare for future shortages and to reduce the outflow of local dollars to buy energy."(DCC 23.76.030). The Districts' proposed amendment to allow these hydropower facilities meets these objectives. 2. Open Space and Conservation Land Goals Allow Proposed Change With regard to OS & C lands, the Plan states that there is a need for regulatory flexibility. It indicates that regulations and regulatory bodies need to be mindful of the "needs of the public" and the demands of a growing community. The Plan focuses on the balancing of resources with demand that growth places on those resources to promote sustainable development. The Districts' proposed facilities further this purpose. Conclusion The amendment to the DCC proposed by the Districts is compatible with the Deschutes County Comprehensive Plan, state and federal regulations, and will allow only the environmentally sensitive and sustainable development of hydroelectric facilities in closed systems by irrigation districts in OS & C zones. This amendment will allow irrigation districts to better serve their patrons and the public by providing this important service. The amendment proposed herein is timely, as Deschutes County has been the fastest growing county in Oregon for the past decade, and there is a statewide renewed mandate to provide sustainable energy for the future. Q.\DATA\LMCLIENT FILES\C\COID\PURCHASE OF HYDRO SME STATE PARKS 102.298\Tcxt Amendment Application Final 121.08.doe REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 18, of the Deschutes County Code Zoning Ordinance to permit hydroelectric facilities in the Open Space and Conservation Zone. * ORDINANCE NO. 2008-018 * WHEREAS, on February 13, 2008, Central Oregon Irrigation District and Swalley Irrigation District submitted an application to amend the Deschutes County Code ("DCC") Chapter 18.48, to allow for hydroelectric facilities on existing irrigation systems to be permitted outright in the Open Space and Conservation Zone; and WHEREAS, the Planning Commission held public hearings on May 8, 2008, forwarded to the Board of County Commissioners ("Board") a recommendation of approval as proposed; and WHEREAS, the Board considered this matter after public hearings on July XX, 2008 and concluded that the public will benefit from changes to the Open Space and Conservation Zone; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC 18.04.030, Title, Purpose, and Definitions, is amended to read as described in Exhibit "A" attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in str4kethfaiagh. Section 2. AMENDMENT. DCC 18.48.020, Open Space and Conservation Zone, Uses Permitted Outright is amended to read as described in Exhibit "B" attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strip. PAGE 1 OF 2 - ORDINANCE NO. 2008-018 (06/25/08) Section 3. FINDINGS. The Board adopts as its findings Exhibit "C", attached and incorporated by reference herein. Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, CHAIR TAMMY (BANEY) MELTON, VICE CHAIR ATTEST: Recording Secretary MICHAEL M. DALY, COMMISSIONER Date of 1 S` Reading: day of , 2008. Date of 2"d Reading: day of , 2008. Record of Adoption Vote Commissioner Yes No Abstained Excused Michael M. Daly Dennis R. Luke Tammy (Baney) Melton Effective date: day of , 2008. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2008-018 (06/25/08) NOTE: denotes code provisions not amended by this ordinance. Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS 18.04.030. Definitions. As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC 18.04.030. "Utility facility" means any major structures, hydroelectric facilities, owned or operated by a public, private - Deleted: excluding or cooperative electric, fuel, communications, sewage or water company for the generation, transmission, distribution or processing of its products or for the disposal of cooling water, waste or by-products, and including power transmission lines, major trunk pipelines, power substations, telecommunications facilities, water towers, sewage lagoons, sanitary landfills and similar facilities, but excluding local sewer, water, gas, telephone and power distribution lines, and similar minor facilities allowed in any zone. This definition shall not include wireless telecommunication facilities where such facilities are listed as a separate use in a zone. s** (Ord. 2008-018 3,1, 2008; Ord. 2007-005 §1, 2007; Ord. 2007-020 §1, 2007; Ord. 2007-019 §1, 2007; Ord. 2006-008 §1, 2006; Ord. 2005-041 §1, 2005; Ord. 2004-024 §1, 2004; Ord. 2004-001 §1, 2004; Ord. 2003- 028 §1, 2003; Ord. 2001-048 §1, 2001; Ord. 2001-044 §2, 2001; Ord. 2001-037 §1, 2001; Ord. 2001-033 §2, 2001; Ord. 97-078 §5, 1997; Ord. 97-017 §1, 1997; Ord. 97-003 §1, 1997; Ord. 96-082 §1, 1996; Ord. 96-003 §2, 1996; Ord. 95-077 §2, 1995; Ord. 95-075 §1, 1975; Ord. 95-007 §1, 1995; Ord. 95-001 §1, 1995; Ord 94-053 §1, 1994; Ord. 94-041 §§2 and 3, 1994; Ord. 94-038 §3,1994; Ord. 94-008 §§1, 2, 3, 4, 5, 6, 7 and 8, 1994; Ord. 94-001 §§1, 2, and 3, 1994; Ord. 93-043 §§1, IA and 1B, 1993; Ord. 93-038 §1, 1993; Ord. 93-005 §§1 and 2, 1993; Ord. 93-002 §§1, 2 and 3, 1993; Ord. 92-066 §1, 1992; Ord. 92-065 §§1 and 2, 1992; Ord. 92-034 § 1, 1992; Ord. 92-025 § 1, 1992; Ord. 92-004 1 and 2, 1992; Ord. 91-038 §§3 and 4, 1991; Ord. 91-020 §1, 1991; Ord. 91-005 §1, 1991; Ord. 91-002 §I1, 1991; Ord. 90-014 §2, 1990; Ord. 89- 009 §2, 1989; Ord. 89-004 §1, 1989; Ord. 88-050 §3, 1988; Ord. 88-030 §3, 1988; Ord. 88-009 §1, 1988; Ord 87-015 §1, 1987; Ord. 86-056 §2, 1986; Ord. 86-054 §1, 1986; Ord. 86-032 §1, 1986; Ord. 86-018 §1, 1986; Ord. 85-002 §2, 1985; Ord. 84-023 §1, 1984; Ord. 83-037 §2, 1983; Ord. 83-033 §1, 1983; Ord. 82- 013 §1, 1982) PAGE 1 OF 1 - EXHIBIT "A" TO ORDINANCE 2008-018 (6/25/2008) Chapter 18.48. OPEN SPACE AND CONSERVATION ZONE - OS&C 18.48.010. Purpose. 18.48.020. Uses Permitted Outright. 18.48.030. Conditional Uses Permitted. 18.48.040. Dimensional Standards. 18.48.050. Setbacks. 18.48.060. Limitations on Conditional Uses. 18.48.010. Purpose. The purpose of the Open Space and Conservation Zone is to protect designated areas of scenic and natural resources; to restrict development in areas with fragile, unusual or unique qualities; to protect and improve the quality of the air, water and land resources and to plan development that will conserve open space. (Ord. 93-043 §6,1993) 18.48.020. Uses Permitted Outright. The following uses and their accessory uses are permitted outright: A. Farm use as defined in ORS 215.203(2). B. Public and nonprofit agencies, museums and exhibits on lands where an exception has been granted in accordance with Oregon Administrative Rules chapter 660, Division 4. C. Public wildlife reserve or management area, not including structures. D. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards and criteria established by DCC 18.116.230. E. Class III road or street project. F. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. G. Construction, operation, and maintenance of hydroelectric facilities on existing irrigation systems operated by an Irrigation District. subject to the limitations in DCC 18.128.260, 23 96 030 and 23.112.040, inchidine transmission lines serving such facilities. (Ord. 2008-018 ~2, 2008, Ord. 2001-039 §3, 2001; Ord. 2001-016 §2, 2001; Ord. 97-023 §1, 1997; Ord. 94-041 §1, 1994; Ord. 91-020 §1, 1991) 18.48.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: A. Private parks, picnic areas or hunting and fishing preserves. B. Public parks and recreational areas owned and operated by a governmental agency or nonprofit community organization. C. Utility facility except landfills. D. Water supply and treatment facility. E. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland subject to DCC 18.120.050 and DCC 18.128.270. F. Campground. G. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). PAGE 1 OF 3 - EXHIBIT "B" TO ORDINANCE 2008-018 (6/25/2008) H. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material. (Ord. 2001-039 §3, 2001; Ord. 2001-016 §2, 2001; Ord. 97-063 §3, 1997; Ord. 94-041 §1, 1994; Ord. 92-004 §9, 1992; Ord. 91-038 §1, 1991) 18.48.040. Dimensional Standards. In an OS&C Zone, the following dimensional standards shall apply: A. The minimum lot size is 80 acres. B. Building Height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. (Ord. 94-041 § 1, 1994; Ord. 92-055 §B, 1992) 18.48.050. Setbacks. A. Minimum setbacks shall be 60 feet from an arterial or collector street or road right of way and 20 feet from a street within a platted and recorded subdivision. B. The setback from a perennial stream or lake ordinary high water mark shall be a minimum of 200 feet, and from an intermittent stream channel, 100 feet. C. Each side setback shall be a minimum of 15 feet, except on a corner lot it shall be 30 feet from the street side. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. E. Rimrock Setback. Setbacks from rimrock shall be as provided in DCC 18.116.160. F. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. (Ord. 95-075 §1, 1995; Ord. 94-008 §28, 1994; Ord. 91-020 §1, 1991; Ord. 86-053 §10, 1986; Ord. 83-037 §13, 1983) 18.48.060. Limitations on Conditional Uses. The following limitations shall apply to a conditional use in an OS&C Zone: A. An application for a conditional use in an OS&C Zone may be denied if, in the opinion of the Planning Director or Hearings Body, the proposed use is not related to or sufficiently dependent upon the recreational resources of the area. B. The proposed use shall not significantly increase fire hazard or significantly increase risks to fire suppression personnel. The Planning Director or Hearings Body may require establishment and maintenance of fire breaks, the use of fire resistant materials in construction and landscaping, or attach other similar conditions or limitations that will reduce fire hazards or prevent the spread of fire to surrounding areas. C. The Planning Director or Hearings Body may limit changes in the natural grade of land, or the alteration, removal or destruction of natural vegetation to prevent or minimize erosion, pollution or degradation of the natural attractiveness of the area. D. An application for a conditional use in an OS&C Zone shall be denied if, in the opinion of the Planning Director or Hearings Body, the proposed use would exceed the carrying capacity of the area or would be detrimental to the natural features or resources of the area. E. An application for a conditional use in an OS&C Zone shall be denied if not in compliance with the Comprehensive Plan. F. An application for a conditional use shall be denied if the proposed use would force a significant change in, or significantly increase the cost of accepted farming or forest practices on agriculture or forest lands. PAGE 2 OF 3 - EXHIBIT "B" TO ORDINANCE 2008-018 (6/25/2008) G. Where the proposed use is adjacent to forest zoned land, a written statement recorded with the deed or written contract with the County or its equivalent shall be obtained from the land owner which recognizes the right of adjacent and nearby land owners to conduct forest operations consistent with the Forest Practices Act and Rules for uses authorized in Oregon Administrative Rules 660-06-025(4)(e), (1), (r), (s) and (v). (Ord. 94-041 § 1, 1994; Ord. 91-020 § 1, 1991) (Zoning maps amended by Ord. 95-059 §1, 1995) PAGE 3 OF 3 - EXHIBIT "B" TO ORDINANCE 2008-018 (6/25/2008) --t" l Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ TO: FROM: MEETING DATE: SUBJECT: STAFF REPORT Deschutes County Board of County Commission Cynthia Smidt, Associate Planner June 25, 2008 Work session for Open Space and Conservation Zone Text Amendment; TA-08-4 PURPOSE The Deschutes County Board of County Commissioners will hold a work session prior to a public hearing to consider text amendments proposed by Central Oregon Irrigation District and Swalley Irrigation District. The Commission will consider a text amendment for Deschutes County Code Section 18.04.030, Definitions, specifically "Utility Facility" and modify Deschutes County Code Chapter 18.48, Open Space and Conservation (OS&C) Zone, Section 18.48.020, Uses permitted outright. The text amendment would allow hydroelectric facilities on existing irrigation systems as a use permitted outright in the OS&C Zone. PROPOSAL Central Oregon Irrigation District (COID) and Swalley Irrigation District (SID) have proposed an amendment to the Deschutes County Code that would permit hydroelectric facilities on existing irrigation systems (piped canals) in order to develop sustainable energy production in Deschutes County (See Attachment 1, TA084 Application Materials). The Planning Commission held one work session and one public hearing on the proposed text amendment (See Attachment 3, PC Minutes). There were no public comments at the hearing; however, the U.S. Forest Service did submit written comments. The Planning Commission listened to testimony by COID and SID representatives, as well as their attorney. Currently, in the OS&C Zone, hydroelectric facilities are not permitted. Utility facilities, however, are permitted conditionally but, as defined, do not include hydroelectric facilities. Within Deschutes County, the applicant has designated two locations in which significant elevation change coupled with water velocity would allow for small-scale hydroelectric facilities on piped irrigation canals. One site is within the COID system and one is in the SID system. In addition, these two locations are within the OS&C Zone thus the reasoning behind an amendment to that zone. The applicants indicate that there are other locations in the COID system that may work for hydropower. However, only the location specified here "has the volume and gravitational drop that warrants the cost of piping and turbine purchase and line at this time." The proposed hydro facility will be established entirely within the irrigation district's easement and within Quality Services Performed with Pride existing piped irrigation canals that are screened at the intake and thus preventing fish entry and harm. The turbines used are designed-specific to flow levels and do not result in an accumulation of or stored water. Temporary powerlines will be in place for approximately three to four years until PacifiCorp installs permanent lines. According to the applicant, the Oregon Department of Water Resources (ODWR) regulates hydroelectric facilities. Hydroelectric facilities are regulated by OAR 690 and ORS 537. According to the applicant, this text amendment only refers to those projects permitted under ORS 537.765. Further, the applicant indicates that power facilities with a generation capacity of 10 megawatts of power or less are considered small-scale generation. The COID hydropower project will generate approximately 3/4 to 1 megawatt of power and the SID project will generate about 3 megawatts. Lastly, other State and Federal laws such as Department of Environmental Quality (DEQ) and the Clean Water Act, respectively also bind hydropower facilities including the two proposed here. Oregon Statewide Planning Goal 13, Energy Conservation, Oregon's Energy Policy (ORS 469.010), and the 2007 Senate Bill 838 (Oregon Renewable Energy Act) were all intended to promote the efficient use of energy resources and develop sustainable energy resources. State law allows local jurisdictions to implement such energy facilities for the needs of the rural area served. It is found in the Oregon Renewable Energy Act (SB 838) that it is necessary for Oregon to decrease the reliance on fossil fuels for electricity and increase the use of renewable energy sources. Background information and staff reports on the record to date, can be found at the County website www.deschutes.org/cdd under pending code amendments. STATEWIDE PLANNING GOALS The proposed amendment would revise Deschutes County Code, Title 18, to permit hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone. For purposes of this discussion, the proposed amendments would satisfy Statewide Planning Goals with the exception of Goal 3, Agricultural Lands. Goal 3 was reviewed by staff and determined that changing the definition of "utility facility" would create a violation of statutory requirements. Goal 4, Forest Lands, was reviewed and staff determined that changing the definition of "utility facility" would not be affected here. Satisfaction of Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources is discussed below in this report. Goal 6, Air, Water and Land Resource Quality; Goal 11, Public Facilities and Services; and Goal 13, Energy Conservation would be satisfied by permitting hydroelectric facilities on existing irrigation systems as a renewable energy source to serve the electrical needs within the County. Other Statewide Goals such as Goals 8 through 10 and 14 through 19 were reviewed and were found not applicable to this proposal. Regarding Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources, staff believes the goal would be satisfied. The proposed small-scale hydroelectric facilities will be located on existing piped irrigation canals in site-specific areas. The designated sites are located in segments along Highway 97 between Redmond and Bend that have the OS&C zoning designation. These areas may have been zoned OS&C to protect scenic mountain views and/or for the potential of a future state park (campgound or day use area). These sites are outside of federal or state designated scenic waterways. There are no known historic values assigned to these areas. Staff believes Goal 5 would be satisfied because the proposed use is minimal in size, thus protecting scenic and open space resources. Additionally, fish and wildlife resources are managed and protected at the Irrigation District's water diversion area located south (up river) from these sites. Furthermore, through the promotion of low-impact BOCC Staff Report TA-08-4 Page 2 renewable energy such as this it also is a promotion of a healthy environment and natural landscape. In conclusion, the proposed use would protect and improve quality of resources (e.g. air, land, and water). DESCHUTES COUNTY COMPREHENSIVE PLAN The Deschutes County Comprehensive Plan contains policies addressing energy resources, water resources, and open space. Staff believes the proposal would be consistent with the County's energy goals on protecting natural energy resources and assisting with local energy supplies. Further the proposal is consistent with the County's open spaces, areas of special concern and environmental quality goals to maintain and improve the quality of air, water, and land resources. The text amendment proposed here includes existing irrigation canals located on OS&C zoned properties along Highway 97 and far from federal and state scenic waterways as well as other local rivers and streams. The proposal is consistent with maintaining water quantity and quality as addresses in the County's water resources goals. Staff also reviewed the proposed text amendment against the County's public facilities and services goal to determine if the proposal will best serve existing and proposed (urban and rural) development with "timely, orderly and efficient arrangement of public facilities." PLANNING COMMISSION RECOMMENDATION On April 24, 2008, staff presented the proposal to the Planning Commission at a work session. At the public hearing on May 8, 2008, the Planning Commission recommended approval as proposed (See Attachment 3 for Planning Commission meeting minutes). The recommendation did not include documented findings. The proposed language amends Deschutes County Code section 18.04.030 and 18.48.020 and includes modifying the definition of "utility facility" to include hydroelectric facilities and adding the "construction, operation, and maintenance of hydroelectric facilities on existing irrigation systems" as a use permitted outright in the OS&C Zone. PROPOSAL ANALYSIS The applicants propose, and the Planning Commission concurred, an amendment to alter the definition of "utility facility." The County Code specifically excludes "hydroelectric facility" from the definition. As detailed by staff to the Planning Commission (see attachment 2 and 3, PC Staff Report and Memo), state statute regulates "utility facility" in the farm zone thus changing this definition may make the farm zone not meet statutory requirements. Furthermore, staff believes that if hydroelectric facilities are included as a utility facility, it will create additional revisions throughout Title 18. Staff believes the current definition of hydroelectric facility defines the proposed use of hydropower on existing irritation canals. County Code regulates hydroelectric facility separately from a "utility facility" as detailed in DCC 18.116.130 and 18.128.260. Also included with and further recommended by the Planning Commission is the proposal of hydroelectric facilities on existing irrigation systems (piped canals) as a use permitted outright in the OS&C zone (DCC 18.48.020). Currently, hydroelectric facilities are permitted conditionally regardless of the zone. As indicated to the Planning Commission, staff believes this amendment does not appear to comply with the County Comprehensive Plan. In DCC 23.68.020(2)(d) it states, "power generation sites shall be landscaped and the site plan reviewed as part of the conditional use applications. Staff notes that reviewing a hydroelectric facility does include the applicable criteria in DCC 18.116.130, 18.128.015, and 18.128.260. Standards addressed DCC 18.116.130, is specific to hydropower on rivers or streams. The BOCC Staff Report TA-08-4 Page 3 proposed hydroelectric facilities are site specific and will not occur on rivers or streams rather they will occur on existing piped irrigation canals far from the rivers and streams of Deschutes County. The Standards addressed DCC 18.128.260 refer to large hydroelectric projects located on rivers and reservoirs, including reviewing the impact of dams and man-made diversions, existing fish and wildlife habitat, riparian health, and riverbank stability. Staff believes these criteria were created with the thought of regulating large hydroelectric facilities typically associated with reservoir dams. Staff believes that to be consistent with DCC 23.68.020(2)(d), the proposed use should be permitted conditionally. However, standards set in DCC 18.116.130 are not applicable. Based on information in the record, the proposed hydropower facility is small in scale and generates less than 5 megawatts of power. Therefore, staff believes the criteria in DCC 18.128.260 are not necessary in reviewing because they address large hydroelectric facilities. In conclusion, staff believes hydroelectric facilities on existing irrigation systems should be permitted conditionally in the OS&C Zone and subject to General Standards Governing Conditional Uses (DCC 18.128.015). NOTICE Notice of the proposed text amendment was sent to five (5) known irrigation districts within Deschutes County as well as Oregon Department of Fish and Wildlife (ODFW), Watermaster - District 11, U.S. Forest Service (USFS), Oregon Department of Parks and Recreation (OPRD), and the U.S. Bureau of Land Management (BLM). REVIEW CRITERIA The proposed amendment revises Deschutes County Code, Title 18, to permit hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone. Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative zoning text amendment. Therefore, the County must determine that the proposed Title 18 text amendments are consistent with state statute, the Statewide Planning Goals, and the County's Comprehensive Plan. The parameters for evaluating these text amendments are based on whether there are adequate factual findings that demonstrate this consistency. PUBLIC HEARING Staff has not yet scheduled a public hearing for this application in order to allow the Board to schedule further work sessions and/or to discuss the most appropriate time and place for a hearing. Attachments: 1. TA084 application materials 2. Planning Commission Staff Report and Memo 3. Planning Commission meeting minutes 4. Planning Commission Proposed Ordinance with Exhibit A and B BOCC Staff Report TA-08-4 Page 4 ,"~-E Za Community Development Department ttt~ ~w. { Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MINUTES DESCHUTES COUNTY PLANNING COMMISSION DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97701 APRIL 24, 2008- 5:30 P.M. 1. CALL TO ORDER Meeting was called to order at 5:30 p.m. by Chair Cyrus. Members present were Vice Chair Todd Turner, Robert Otteni, Brenda Pace, Kelly Smith, Robert Klyce. Susan Quatre attended via conference phone. Staff present were Tom Anderson, CDD Director; Catherine Morrow, Planning Director; Cynthia Smidt, Associate Planner; Kristen Maze, Associate Planner, and Sher Buckner, Administrative Secretary. Minutes of March 27 and April 10 were approved. Ill. PUBLIC COMMENTS AND CONCERNS None. III. WORK SESSION: File No. TA-08-2, Text Amendment to Deschutes County Code Section 18.116.090, A Manufactured Home as a Temporary Residence for Medical Condition - Kristen Maze, Associate Planner. Kristen discussed proposed text amendment, which has been in the long-range planning work plan and covers recreational vehicles as temporary residences. There are pending Code Enforcement cases which will be affected - currently about 400 for medical hardship dwellings. RV's used as temporary residences could increase this number. Staff recommends a public hearing be scheduled, and comments in favor of this proposal have been received. Chair Cyrus questioned whether the 90-day limit could be revised to accommodate favorable weather conditions for removal of temporary residences. Commissioner Quatre asked whether any of the RV's being used have permanent foundations, and Kristen said that residents are more concerned about manufactured homes on permanent foundations. Commissioner Smith asked if the problem seems to be temporary residences becoming permanent, and whether the proposed rule would alleviate that with people using RV's instead of temporary homes. He also asked if there was any negative input concerning the RV's. Kristen said that the petitions were more concerned with manufactured homes. Quality Services Performed zvith Pride Commissioner Quatre asked if people would be less likely to use manufactured homes. Kristen said that the text amendment would provide more options. Commissioner Otteni asked for an example of a typical case where a temporary residence would be needed. Kristen responded that it is often due to an illness of a family member, and that if a temporary medical hardship dwelling is applied for, a manufactured home could be put on the property with annual "medical hardship" letters from a doctor required to keep it there. Commissioner Turner asked how this would be different than parking an RV next to a homeowner's residence. Kristen said that these cannot be "lived in," or hooked up. Tom Anderson said that the Board had asked for this amendment in response to several Code Enforcement cases a few years ago, where a few family members were living in RV's and the Code didn't cover this. The families appealed to the Board, and the Board requested the amendment. The Code Enforcement cases were put on the shelf until this amendment could be evaluated. The petitioners introduced additional concerns about manufactured homes, but the County did not initiate these issues. Chair Cyrus asked about the process for siting a manufactured home. Kristen said that setbacks have to be met and there are currently no restrictions for single- or double-wide. Commissioner Quatre asked if there were restrictions for the placement of RV's in the County as there are in the City. Can you have the RV on the same parcel as a residence, or another parcel? Kristen said that this text amendment would allow someone to place an RV on the same lot, with setbacks. Commissioner Smith thought that the proposed text amendment is fairly narrow, and some citizens are suggesting more revisions. Does staff think we should we just stick to the RV issue? Kristen said that the concern is that the public hearing take place and then go to the Board. Individuals can apply for text amendments in the future. Catherine Morrow said that there is a distinction between someone paying for an application and a staff-initiated proposal. A paid application would be better kept more specific; if the proposal is from staff, it could cover a wider area. Commissioner Klyce thought that a wheeled vehicle being required to be in a setback would be a problem. Wheeled vehicles are considered personal property, such as cars in an area, and could be parked anywhere it is legal. He also said he has seen properties where the only available space for an RV to park is in someone's front yard or next to their house. Commissioner Quatre asked about the types of RV's as defined in the proposed amendment. Kristen said that it had not been discussed and that RV classes are not defined in the proposed text amendment. Commissioner Quatre asked for some information to be provided at the next meeting. Discussion took place about whether to schedule this hearing on May 22 at the same time as the Lopez Hearing. MOTION: Commissioner Turner motioned to schedule the public hearing on May 22. Seconded by Commissioner Pace. Motion passed. 2 IV. WORK SESSION: File No. TA-084, Text Amendment to Deschutes County Code Sections 18.04.030 and 18.48.020 to allow Hydroelectric Facilities on Existing Irrigation Systems in the Open Space and Conservation Zone - Cynthia Smidt, Associate Planner. Cynthia Smidt summarized the proposed text amendment, applied for by the Central Oregon Irrigation District and Swalley Irrigation District. Commissioner Pace asked about potential impact on water and flows. Cynthia said that the water is going to flow through the turbines to generate electricity but would not be restricted beyond that. Commissioner Pace wondered about the potential of more water being desired in the future. Chair Cyrus said that as the proposal is written, it doesn't seem as if levels would be affected. The energy is harnessed as the water flows through the pipes, which are sized to cant' the capacity. Commissioner Pace said that even if only the limits of water rights can be taken every year, the incentive of earning more money from energy production could cause the applicants to take the maximum every year. Commissioner Turner suggested that these questions would best be answered by the applicant at the public hearing. Commissioner Quatre asked about energy lines and how the landscape would be affected, whether the lines would be above or underground, whether there would be pump houses, and what the visual impact would be. Catherine Morrow discussed the Open Space Plan, and more history will be provided at the May 22 meeting. Possible size restrictions were also discussed. V. UPDATES ON CITY UGB PROCESS FROM LIAISONS AND DISCUSSION ON THE ROLE OF THE LIAISONS - Commissioner Brenda Pace. Commissioner Pace said that another land economist had written a report on the demand for second homes in the City and came up with very different results (3%) than the report prepared by the developer's consultant (20%). Chair Walkey decided to have staff come back with information from each consultant. Commissioner Smith discussed the sewer analysis. Commissioner Pace said that the ranking of the priority lands was discussed - UAR first; then MUA-10; then resource lands (EFU, etc.). Although state law says that priority lands should be looked at first, City staff are preparing information on a much larger area. Catherine Morrow mentioned that the public hearing has been continued until June 26. There was a coordination meeting with the County and City today. Them should be several alternatives to consider at the public hearing. The Planning Commission's role in the process was also discussed, as well as the role of the liaisons and the Joint Management Agreement. Title 22 talks about the role of the Planning Commission in legislative amendments, and the Planning Commission does not have to have a public hearing but does make a recommendation to the Board. It was suggested that the public hearings continue with the Planning Commission in attendance, so they have full knowledge of recommendations being made by the City Council. 3 Commissioner Turner said that City Planning could also make a recommendation to the City Council, which might or not be revised before being presented to the Board of County Commissioners. . Cliff Walkey also suggested the City Planning Commission meet every week to accomplish more. Chair Cyrus thought that there is quite a quagmire of information, and maybe the City should bear most of the responsibility for finishing what they want to do and coming up with a recommendation, rather than the County continuing to participate. Commissioner Otteni agreed. Commissioner Pace thought it was important to be involved due to the level of complication of the issues. Discussion continued on the role of the liaisons and whether their reports to the other Commissioners were needed. V. OTHER ITEMS OF CONCERN Commissioner Smith indicated that his term would be ending on June 30 and he would not be participating in the future. Catherine Morrow announced that she will retire from the County in June. Upcoming meetings: May 8 - Hydroelectric Facilities and Aspen Lakes. May 22 - Weddings/Medical Hardship. June 12 - City of Bend Public Hearing on Renewal District for Airport. June 26 - Joint City/County UGB meeting. The County is trying to come up with an overall work plan for the Comp Plan update, South County groundwater issues, destination resorts, etc. There will be a working version of the Plan to be used with the public. VI. ADJOURN There being no further business, the meeting was adjourned. Respe ully submitted, Sher Buckner, Administrative Secretary NEXT MEETING -May 8, 2008, 5:30 p.m., at the Deschutes Services Center, 1300 NW Wall Street, Bend, Oregon, 97701 TE u Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MINUTES DESCHUTES COUNTY PLANNING COMMISSION DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97701 MAY 8, 2008- 5:30 P.M. 1. CALL TO ORDER Meeting was called to order at 5:30 p.m. by Chair Cyrus. Members present were Robert Otteni, Brenda Pace, Robert Klyce. Susan Quatre attended via conference phone. Absent: Kelly Smith, Todd Turner. Staff present were Catherine Morrow, Planning Director; Cynthia Smidt, Associate Planner; Terri Payne, Senior Planner; Peter Gutowsky, Principal Planner; and Sher Buckner, Administrative Secretary. Minutes of April 24 were approved. II. PUBLIC COMMENTS AND CONCERNS None. III. PUBLIC HEARING: File No. TA-08-4, Text Amendment to Allow Hydroelectric Facilities on Existing Irrigation Systems in the Open Space and Conservation (OS&C) Zone - Cynthia Smidt, Associate Planner. Cynthia Smidt summarized the text amendment and proposed changes by the applicant. County Code states that the facilities would not be allowed in federal or state scenic waterways. Attorney Liz Dickson, Jan Lee from Swalley Irrigation District and Steve Johnson from the Central Oregon Irrigation District offered testimony. Liz said that the proposal is for a very narrow use under the Carey Act of 1894, enacted for purposes of building these systems. This includes the ability to pipe without further regulation, with easements on both sides of the canals - something like a railroad regarding legal status. The use is protected under federal law. The hydro will be placed entirely within the easements and have no impact on the rivers because no water will be diverted. There are only two locations in Central Oregon that have sufficient drop and velocity of the water for turbines, and Quality Services Perforated with Pride would be suitable for use. Jan Lee and Steve Johnson have done more to protect the Deschutes than anyone and have thoroughly considered any potential impacts of these facilities. Jan Lee, General Manager for Swalley Irrigation District, said that they had looked at statues from other areas to find similarities. In Clackamas County, there are no irrigation districts. Kalamath County has wording in their comp plan but nothing is planned at this point. Chair Cyrus asked about horsepower generated at each site. Jan said for the Swalley site it was about 7.5 hp per kw. That site has about 220 feet of fall. Steve Johnson said that these facilities would generate enough power for about 3900 homes. Commissioner Quatre asked for more clarification about the easements. Steve Johnson said that some easements were provided by the federal government for maintenance of the canal system. Easements relating to these facilities, such as those for trail designation, would be provided by private owners of property along the canal. Commissioner Pace asked about power lines, and Jan Lee said that 3000 feet would be added temporarily for 3-4 years until a feeder line is put in permanently by PacifiCorp. Commissioner Pace also asked about seasonal flows. Jan Lee said that they have permanently committed a transfer from agriculture irrigation to in-stream flows. There were no public comments. MOTION: Commissioner Klyce motioned to close the public hearing. Seconded by Commissioner Otteni. Motion approved unanimously. Commissioner Pace said she appreciated the permanent water going into the Deschutes under this proposal. MOTION: Commissioner Otteni motioned that the Planning Commission forward this proposal on to the Board with a recommendation for approval. Seconded by Commissioner Pace. Motion approved unanimously. IV. DELIBERATION: File No. TA-07-7, Text Amendment to Title 18 to Allow Cluster Develop- ment, Approved Prior to 1992, to Convert to a Destination Resort - Peter Gutowsky, Principal Planner. Commissioner Otteni was chosen to chair this part of the meeting, as Chair Cyrus recused himself due to conflicts of interest. Peter Gutowsky stated the current status of the proposal and summarized meetings to date. There were 26 written comments received before the written record was closed, followed by the Applicant's rebuttal. Commissioner Quatre said she had thought about this a lot and reviewed the materials several times. She cannot get past the legal premise which does not support this potential conversion from a cluster to a destination resort. She feels the proposal should go to the legislature and does not feel it would be a good policy. Commissioner Pace said that she felt there are enough differences in setbacks, lot sizes, requirements for resort housing coming in first, etc., that that is what the applicant should do. The destination overlay does not make a difference. The owners have a justifiable interest in protecting open space where they wish to, and whether it was in the CC&R's that a destination resort was planned is irrelevant. The standards are not met for a destination resort. Commissioner Klyce felt that out of all of the testimony presented on March 27, he was most impressed by that of Mr. Comfelder who was against the amendment, and Mr. Van Winkle who was in favor of it. Mr. Dewey's testimony was too Orwellian to accept, where he stated that if this is not specifically allowed in the Code it should not be permitted. He feels that the applicant is taking a different approach and the Thornburgh case does not apply. He does understand that overnight lodging is needed to prevent another group of subdivisions. He would not necessarily support cluster development conversion but would like to see discussion continue at a higher level. Commissioner Otteni stated that he thought the application as written is a text amendment, not specifically whether the property qualifies for conversion to a destination resort. The objective of the Commissioners should be to consider the text amendment as stated, as a policy decision. The Cyrus family did attempt to make this a destination resort from the onset, and things have changed to make this process more restrictive. But on the legal end, it is difficult to understand all of the legal issues. In the rebuttal, it is stated that Aspen Lakes could apply for a variance at any time. Commissioner Otteni would like to support this proposal in principle as good public policy, although there are legal implications which should be looked at by County legal staff. Commissioner Pace questioned how this would be forwarded. Commissioner Otteni thought that the applicant should pursue a variance and an application for a destination resort. However, the application should not be for a change to the Code. This is not necessary. Commissioner Klyce thought that the discussion should be continued. Peter Gutowsky said there is no time commitment so that is possible. Commissioner Quatre thought that the proposal should not be held up. Commissioner Otteni wanted to support the application as good policy. Commissioner Quatre said she is not convinced that this is good policy. It is a big change, and supporting the policy side of it would be meaningless without getting past the legal aspects. The County's legal staff has already reviewed the proposal. Commissioner Pace thought that the discussion came down to two questions - whether the Code should be changed and whether a recommendation as to whether Aspen Lakes should become a destination resort would be made to the Board. Peter Gutowsky summarized that anyone who was mapped in a destination resort zone could apply, and the Commissioners generally supported that route for independent submittals. Commissioner Pace asked whether the Commissioners wanted to discuss the Code and whether the text should be changed. She would not vote to change the text. Commissioner Otteni felt that this was a unique situation, with many amenities already installed and money spent to support the idea of a future destination resort. 3 Commissioner Quatre said that the text amendment is what generated the discussion, and maybe no recommendation should be made about it. Peter Gutowsky summarized that if the text amendment is not approved, Aspen Lakes would apply for a destination resort 'from scratch," - a stand alone product outside what we currently call Aspen Lakes. Existing policy allows application for destination resort, but this amendment would cover conversions. Commissioner Quatre felt that many more residences could be added which is a policy problem for her. Commissioner Pace agreed. Cluster developments are required to have protected open space, and converting to a destination resort means they "rip off" the open space protection. As a policy, this should not be encouraged. She is against allowing the conversion in general because of this problem. A straw poll was taken on whether or not to delay the decision. Commissioner Klyce was in favor of a delay, as were Commissioners Pace and Quatre. MOTION: Commissioner Pace moved to continue the deliberation during the June 12 meeting. Commissioner Klyce seconded. Motion approved. V. COMPREHENSIVE PLAN DISCUSSION: Terri Payne, Senior Planner. Terri said that the update has been worked on for about two years now, and it has jumped ahead in the Board's interest. It has been updated piecemeal since 1979 and needs to be redone in total. Goals and policies cannot be changed without public input. We are currently starting background research and will then coordinate a public input process for 6-9 months or so, to move the County forward for the next 20 years. The next packet sent to the Commissioners will contain more information about timelines, staffing, and will include a copy of the working plan. The idea is for the Planning Commission to be a steering committee for the process, with at least one meeting a month devoted to the Comp Plan update. This will take about a year. Each Commissioner would help with public input meetings for their own region. The Comprehensive Plan is an evolving document, but ours is so old that the entire document needs updating. Commissioner Otteni asked about the purpose of public meetings. Terri said that the idea is to start by asking people what they feel works and what doesn't in their communities. If they say traffic is a problem, then that needs to be looked at. If they value wildlife, then the degree of protection needs to be considered. V. UPDATE ON CITY UGB PROCESS FROM LIAISONS - Commissioners Brenda Pace and Susan Quatre. The City is having meetings every Monday. Two issues of concern to our Planning Commission are the treatment of UAR land separately, as part of priority lands, and the sewer expansion plan provided by staff, which was missing some elements and also seen as driving the UGB rather than being driven by it. Commissioner Pace felt that improvements have been made. Commissioner Quatre also mentioned changes in the ranking of university lands. Peter Gutowsky mentioned that the first public hearing for the UGB expansion was in July 2007, continued to January, 2008 and a decision made to continue the public hearing to June 26. 4 V. OTHER ITEMS OF CONCERN Terri Payne handed out some documents from the Big Look Committee. They will be in Bend on May 19. Commissioner Otteni asked Catherine Morrow for her opinion on the Planning Commission's relationship with the Board. She responded that one goal would be to make the recommendations clearer. Additional suggestions would be for the Board to meet with the Commissioners prior to their term expirations and to hold joint meetings maybe twice a year. Upcoming meetings: May 22 - Weddings/Medical Hardship June 12 - City of Bend Public Hearing on Renewal District for Airport June 26 - Joint City/County UGB meeting VI. ADJOURN There being no further business, the meeting was adjourned. Respectfully submitted, 0 Sher Buckner, Administrative Secretary NEXT MEETING - May 22,2008,5:30 p.m., at the Deschutes Services Center, 1300 NW Wall Street, Bend, Oregon, 97701 REVIEWED LEGAL COUNSEL BEFORE THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT A Resolution authorizing the transfer of funds from the Reserve Fund (716) contingency account to the Reserve * RESOLUTION NO. 2008-060 Fund (716) expense accounts and directing the District's Finance Director to make appropriate entries. WHEREAS, it is necessary to transfer funds from the Reserve Fund (716) contingency account to the Reserve Fund (716) expense accounts; and WHEREAS, the Reserve Fund (716) contingency account has sufficient resources to make the transfer to the Reserve Fund (716) expense accounts; now therefore, BE IT RESOLVED BY THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT as follows: Section 1. The Sunriver Service District Finance Director is hereby authorized to transfer funds, the aggregate not to exceed SIXTY SIX THOUSAND DOLLARS ($66,000) from the Reserve Fund (716) contingency account to the Reserve Fund (716) expense accounts not later than June 30, 2008. Section 2. That the Finance Director is hereby directed to make such entries in the records of the District for the fiscal year 2007-2008 as are necessary to reflect these transactions DATED this day of 52008. ATTEST: Recording Secretary GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT DENNIS R. LUKE, Chair TAMMY MELTON, Vice Chair MICHAEL M. DALY, Commissioner PAGE 1 of I - RESOLUTION NO. 2008-060 11020-034 318.doc For Recording Stamp Only REVIEWED LEGAL COUNSEL BEFORE THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT A Resolution Authorizing the Transfer of Funds from the Reserve Fund (716) Contingency Account to the Reserve * RESOLUTION NO. 2008-060 Fund (716) Expense Accounts and Directing the District's Finance Director to Make Appropriate Entries. WHEREAS, it is necessary to transfer funds from the Reserve Fund (716) contingency account to the Reserve Fund (716) expense accounts; and WHEREAS, the Reserve Fund (716) contingency account has sufficient resources to make the transfer to the Reserve Fund (716) expense accounts; now therefore, BE IT RESOLVED BY THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT as follows: Section 1. The Sunriver Service District Finance Director is hereby authorized to transfer funds, the aggregate not to exceed SIXTY SIX THOUSAND DOLLARS ($66,000) from the Reserve Fund (716) contingency account to the Reserve Fund (716) expense accounts not later than June 30, 2008. Section 2. That the Finance Director is hereby directed to make such entries in the records of the District for the fiscal year 2007-2008 as are necessary to reflect these transactions DATED this day of , 2008. ATTEST: Recording Secretary GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT DENNIS R. LUKE, Chair TAMMY MELTON, Vice Chair MICHAEL M. DALY, Commissioner PAGE 1 OF I - RESOLUTION NO. 2008-060 11020-034 318.doc For Recording Stamp Only REVIEWED LEGAL COUNSEL BEFORE THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT A Resolution Authorizing the Transfer of Funds from Operating Fund (715) to the Capital Reserve * RESOLUTION NO. 2008-057 Fund (716), and Directing the District's Finance Director to Make Appropriate Entries. WHEREAS, it is necessary to transfer funds from the Operating Fund (715) to the Capital Reserve Fund (716) in order for the Capital Reserve Fund to be able to pay for acquired assets; and WHEREAS, the Operating Fund (715) has sufficient resources to make the transfer to the Capital Reserve Fund (716); now therefore, follows: BE IT RESOLVED BY THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT as Section 1. The Sunriver Service District Finance Director is hereby authorized to transfer funds, the aggregate not to exceed THREE HUNDRED THIRTY FIVE THOUSAND DOLLARS ($335,000) from the Operating Fund (715) to the Reserve Fund (716) before June 30, 2008. Section 2. That the Finance Director is hereby directed to make such entries in the records of the District for the fiscal year 2007-2008 as are necessary to reflect these transactions DATED this day of 52008. ATTEST: Recording Secretary GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT DENNIS R. LUKE, Chair TAMMY MELTON, Vice Chair MICHAEL M. DALY, Commissioner PAGE 1 OF 1- RESOLUTION NO. 2008-057 11020-034 315.doc For Recording Stamp Only REVIEWED LEGAL COUNSEL BEFORE THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT A Resolution Authorizing the Transfer of Funds from the Operating Fund (715) Contingency Account to the Operating Fund (715) Expense Accounts and Directing the District's Finance Director to Make Appropriate Entries. * RESOLUTION NO. 2008-058 * * WHEREAS, it is necessary to transfer funds from the Operating Fund (715) contingency account to the Operating Fund (715) expense accounts; and WHEREAS the Operating Fund (715) contingency account has sufficient resources to make the transfer to the Operating Fund (715) expense accounts; now therefore, follows: BE IT RESOLVED BY THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT as Section 1. The Sunriver Service District Finance Director is hereby authorized to transfer funds, the aggregate not to exceed NINETY THOUSAND DOLLARS ($90,000) from the Operating Fund (715) contingency account to the Operating Fund (715) expense accounts not later than June 30, 2008. Section 2. That the Finance Director is hereby directed to make such entries in the records of the District for the fiscal year 2007-2008 as are necessary to reflect these transactions DATED this day of , 2008. ATTEST: Recording Secretary GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT DENNIS R. LUKE, Chair TAMMY MELTON, Vice Chair MICHAEL M. DALY, Commissioner PAGE 1 OF I - RESOLUTION NO. 2008-058 11020-034 316.doc For Recording Stamp Only REVIEWED LEGAL COUNSEL BEFORE THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT A Resolution Authorizing the Operating Fund (715) to Borrow from the Reserve Fund (716), Providing * RESOLUTION NO. 2008-059 for Repayment and Directing the District's Finance Director to Make Appropriate Entries. WHEREAS, it is necessary that the Operating Fund (715) borrow $300,000 for operations until revenues from taxes are received; and WHEREAS, the Reserve Fund (716) has sufficient resources to make a loan to the Operating Fund (715); now therefore, follows: BE IT RESOLVED BY THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT as Section 1. The Sunriver Service District Finance Director is hereby authorized to transfer funds, the aggregate not to exceed THREE HUNDRED THOUSAND DOLLARS ($300,000) from the Reserve Fund (716) to the Operating Fund (715). 2009. Section 2. Said loan (principal & interest) is to be repaid to the Reserve Funds no later than June 30, Section 3. Interest shall accrue at the annual earnings rate based on the District's actual earning rate and will be paid with the repayment. Section 2. That the Finance Director is hereby directed to make such entries in the records of the District for the fiscal year 2007-2008 as are necessary to reflect these transactions. DATED this day of , 2008. ATTEST: Recording Secretary GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT DENNIS R. LUKE, Chair TAMMY MELTON, Vice Chair MICHAEL M. DALY, Commissioner PAGE 1 OF 1 - RESOLUTION NO. 2008-059 11020-034 317.doc For Recording Stamp Only I. v Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM June 10, 2008 To: From: Subject: Deschutes Board of County Commissioners Chris Bedsaul, Associate Planner Using wind for generating electricity in Deschutes County. USE OF WIND POWER The use of the wind's power is both old and new. From moving everything from large and small sailing ships across the oceans of the world, pumping water out of the ground and producing electricity for personal or commercial purposes. The use of wind powered structures, such as "windmills" or turbines has been used for many years prior to creation of any governmental regulations that may restrict their use. The American Wind Energy Association (AWEA) located in Washington D.C. provides nationwide information on the use and operation of micro to major commercial wind power producing facilities. My research of AWEA and other internet data sources has determined there are various zoning ordinances created by Counties and Cities throughout the country for the regulation of personal use wind powered turbines for generating electricity. Almost all of the zoning ordinances I reviewed contain regulations regarding minimum lot size, setback distances, noise levels, tower height limits based upon property size, clearance of the turbine blades above the ground, safety issues regarding FAA, restoration requirements due to abandonment, maximum tower heights up to 75 feet for residential purposes, visual impacts and prohibition of advertisement signage. According to AWEA, the 35-foot height limit in many zoning ordinances dates back to the early 1900's as the typical height that firefighting engines could pump water, and this restriction is clearly not applicable for today's modern fire fighting equipment that may respond to the site of a residential wind powered turbine mounted on the top of a metal pole or lattice-work structure. AWEA and wind powered turbine manufacturers recommend that an electricity producing wind turbine blade be at a minimum height of 25 to 30 feet ABOVE any physical barriers such as trees, buildings, bluffs or other obstructions within 300-500 feet from the tower supporting the wind turbine. Quality Services Performed with Pride REGULATING WIND POWER IN DESCHUTES COUNTY A "structure" is defined in Deschutes County Development Code as "something constructed or built having a fixed base on, or fixed connection to, the ground or another structure. A wind powered turbine is typically installed on the top of a metal mono-pole or lattice-work tower that is attached to the ground by a fixed base typically made of concrete and, therefore, is a "structure". The Deschutes County Code (DCC) currently has language that regulates utility facilities, including major structures owned or operated by a public, private or electric cooperative for the generation, transmission, distribution or processing of its products. The small-scale wind powered turbine, generating electricity for personal use, is not defined as a utility facility structure and, therefore, is subject to height restrictions in any zone. DCC requires a 30-foot maximum height for "structures" in all zones. However, an exception to this limitation may be approved up to 36 feet subject to certain conditions as described in DCC 18.120.040. "Structures" associated with telephone or power transmission lines, public schools, structures necessary for public safety and flag poles may exceed the 36-foot height limitation based upon a site plan review process, except in Landscape Management and Airport Safety Combining zones. No variance to the maximum structure height of 36 feet is available in the code. OREGON COUNTY OR DLCD REGULATIONS ON WIND POWER The Deschutes County Planning Director recently requested any information that other County Planning Directors throughout Oregon may have regarding existing Development Codes that may regulate small-scale wind powered turbines, or Code language that would have an outright permitted use or an exemption for various types of wind powered structures. Four (4) County Planning Directors responded to Catherine's request for information with the following comments; Clackamas County indicated that "Generally, we don't have height restrictions in our non-urban zones. We also have a general exception to height limits (ZDO 904.01), for, and among other things, windmills, transmission towers, and solar collection apparatus..." Lincoln County indicated a general exception to the building height limit for towers, aerials, flag poles, wind generators and other similar objects". Lincoln County regulates residential wind generators as accessory uses and permits them outright in conjunction with a dwelling, unless they are connected to the grid (through a "buy-back" arrangement with the utility company) in which case, the County calls them a utility facility and they are subject to conditional use review. Morrow County indicated that the County has not done any work on this issue and also will be facing those same limitations and concerns. Union County indicated that it sounds like we (Oregon Counties) are all in the same position (crafting regulations related to wind turbines). Union County actually had administrative and Planning Commission appeals on one of these (wind turbines) resulting in the Board of Commissioners requesting a specific ordinance. Union County t, r, w also noted that AOC staff in Salem will be developing a model ordinance for small wind turbines through a grant received from ODOE. Gilliam and Umatilla Counties did not respond, however, both Counties have a development code that regulates Wind Power Generation Facility Siting Requirements for commercial production of power. The use of small personal wind powered turbine structures does not appear to be regulated in these Counties, other than through a building permit process. DLCD was requested to provide comments on the statewide regulation and/or use of wind turbines for personal power generation, but did not respond prior to this memo. The Association of Oregon Counties (AOC) has been issued a grant by the Oregon Department of Energy for the creation of a state-wide template Ordinance regarding the recognition and regulation of small-scale wind turbine electric power generation. AOC will complete this template Ordinance prior to December 2008. OPTIONS FOR DESCHUTES COUNTY TO CONSIDER REGULATING WIND POWER STRUCTURES FOR PERSONAL USE 1. No change in the DCC and continued height restriction of 36 feet for personal use wind power structures. Effect: Will continue to significantly limit the use of and/or location(s) for the efficient operation of wind powered structures for generating electricity for personal/residential use. 2. Require an applicant to initiate a DCC Text Amendment to allow the use. Effect: This option would place a financial burden on an applicant when compared to the installation cost of a single location for a personal use wind powered turbine and tower structure. However, it would cover the costs of creating the policy necessary for the use. 3. The BOCC determines there is a County-wide interest in promoting and regulating the siting of wind powered structures for personal use generated electricity and direct CDD to conduct a legislative process to amend the code. Effect: Permitting wind power structures for personal use electric power generation would require a code Amendment. A Comprehensive Plan Amendment would also be required to recognize the County-wide importance of wind power generating facilities for personal use. Financial impacts to CDD for staff time in completing a Text and Comprehensive Plan Amendment cannot be determined. 4. Wait for AOC to create model ordinance and then direct CDD staff to conduct the process to adopt the language. Effect: Costs to CDD are reduced. 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