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2013-1213-Minutes for Meeting October 21,2013 Recorded 11/5/2013COUNTY NANCYUBLANKENSHIP,F000NTY CLERKOS COMMISSIONERS' JOURNAL 1110512013 08;27;25 AM II ~I II IIIII~II~IIIII~IIII ~II 2 1 - 213 Do not remove this page from original document. Deschutes County Clerk Certificate Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, OCTOBER 21, 2013 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; Laurie Craghead, County Counsel; Teresa Rozic, Property & Facilities; Judith Ure, Administration; Nick Lelack, Cynthia Smidt and Kevin Harrison, Community Development; and seven other citizens. Chair Unger opened the meeting at 10: 02 a. m. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT None was offered. 3. Before the Board was a Public Hearing and Consideration of Board Signature of Document 2013-530, a Quitclaim Deed to Central Oregon Irrigation District. Chair Unger opened the public hearing. Teresa Rozic gave an overview of the item and explained that the strips of land contain the irrigation pipes and cannot be used for any other purpose. The County owns the surface land and CO1D will take responsibility for the property. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 1 of 16 Liz Dickson of Hurley Re PC, attorney for COID, said COID feels this transfer makes sense. Tom Anderson said there was a communication from a member of the public on this issue, which will be part of the record. Being no further testimony, Chair Unger closed the hearing. BANEY: Move approval. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 4. Before the Board was Consideration of Chair Signature of Document No. 2013-601, a Ballot to Cast a Vote Regarding the Amendment and Restatement of the Lower Bridge Estates Property Owners Association Declaration and Bylaws. Ms. Rozic said that Deschutes County owns eight lots in the subject subdivision. The property owners are trying to straighten out the Homeowners Association documentation. County Counsel has reviewed the proposed changes to the Bylaws, to bring regulations up to current statute, and County approval is needed for a quorum. DEBONE: Move Chair signature of the eight ballots in favor of adoption of the amended and restated declaration and bylaws. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. 5. Before the Board was a Public Hearing and Consideration of an Appeal of the Declaratory Ruling regarding the Cline Falls Power Plant Historic Landmarks Designation. Chair Unger read the opening statement, a copy of which is attached for reference. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 2 of 16 In regard to bias, personal interest, conflicts of interest or ex parte contacts, Commissioner Baney said she was involved in just the recent work session. Commissioner DeBone stated that he has toured the site with staff. Nick Lelack, Cynthia Smidt and Paul Blikstad; and Steve Johnson of COID. He walked the property to the dam site, across the flume and down the metal steps to the power building, and then back out. He understands there was switching equipment there and the metal steps probably replaced something else at some point. Commissioner Baney indicated she hopes to tour the property in the near future. Chair Unger agreed. There were no challenges voiced by the public. Ms. Smidt stated that Pacific Power is represented by Jeff Lovinger and John Sample. She explained the history of the appeal of a decision regarding the historic nature of the site and structure. (Copies of her staff report and PowerPoint presentation are attached for reference) The questions are whether this is a protected resource; and if it is, is it the dam, penstock and powerhouse, or the entire site as determined by the Historic Landmarks Commission. Millican Ranch and other locations may be affected by the decision. Commissioner DeBone asked if they could make an interpretation on just this site that would not impact the others. Ms. Smidt indicated they may be able to narrow it down. The various options were then explained. Clarification is needed because staff, Commissioners and others who were part of the 1992 Ordinances are no longer here. Decisions were made then and there were no appeals. Commissioner Baney noted that the Historic Landmarks Commission decision shows three votes. Ms. Smidt said that the entire group of five was involved in the hearing process, but two were absent at the time the decision was made. Staff's presentation concluded, and testimony was opened for others. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 3 of 16 Liz Dickson, attorney for COID, said she attended the work session where this was considered, and tracked some concerns at that time. She indicated that the problems started when PacifiCorp was ready to complete cleanup of the property to return it to the owner, COID. They wanted to remove some soil downstream, as required by the County. The application went to COID to sign as owner of the property. This was the first time COID learned there might be some contamination at the site. COID denied their signature and asked for more information. PacifiCorp refused to cooperate, locked up the facility and left. COID was aware there was a problem on the site, and also knew it was a historic site. However, they are a utility and did what they had to do. Ms. Dickson submitted a copy of the Code enforcement complaint form, as Exhibit 1. She said this is the first time she has filed a Code enforcement complaint on her own client's property. She noted there should be a correction to the aerial photo used in staffs presentation. The penstock arrow points to a large pipe from the fish screen house to the powerhouse. This is not the only penstock. It is both the flume and the pipe, as both transmit water. The flume is also a penstock. PacifiCorp cut two big holes in the bottom of it, but COID has no idea why. The diagram needs to be amended or notes made regarding the labeling. COID and PacifiCorp are not the original owners. The Cline Falls project documentation is a 40-year analysis of 1900-1940 irrigation in the area. In about 1901, interest in hydropower became important. The idea was to pump water uphill to facilitate irrigation in addition to generating power. In about 1920, COID became the owner of the property. The original agreement was done in 1913; .eventually PacifiCorp became the user. The question is if the historic landmark is the structures themselves or the land they sit on. It is important that the structures be protected since at this location they are significant; if removed they would not be, as their use would not be understood. She referred to documents reviewed in this case, including the ESEE analysis. In 1992 they were to look at quality, quantity and location. Location was considered a factor from the beginning. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 4 of 16 Ms. Dickson submitted a letter dated April 1, 2013, talking about the historic background of the site (noted as Exhibit 2). She asked that exhibits submitted. previously, including photos, to be included in the record. Black Rock Consulting, a professional engineer, looked at the site to try to determine the historical changes over the years, including the number of dams on the site, and wooden and other structures. (This report is Exhibit 3.) These changes are important because PacifiCorp feels this site is not historic, and it was changed over the years as needed. It might turn out that some changes were necessary due to environmental issues or changes in technology. She submitted Exhibit 4, a May 20, 2013 letter to the County detailing the legal case history. She said the Historic Landmarks Commission indicated the 1992 Ordinances indicate the entire site should be a historic landmark. The ESEE report is persuasive in this regard. Erik Kropp asked that since the lease was for 100 years, was there a provision for COID to go onto the property, as owner. Ms. Dickson replied that after a large cyclone fence was installed, COID could have demanded it be opened, but had no reason to worry about what was going on. Commissioner Baney noted that the switchyard is not referenced in the original documents, even though everything else was called out. Steve Johnson, Manager for COID, stated that he would conjecture that without a switchyard you could not transmit power. It was a required component for the project area. He has no idea why it was not mentioned, but likely it was because there were more frequent upgrades as technology changed. All else was as it was in the 1940's and earlier. He said that in regard to the whole area versus the components, the flume, radial gates along the dam, the diversion based on original photos from the 1920's, show they were not substantively modified. The flume changed in the 1940's. The original hydro development identified the opportunity to develop the higher ground through irrigation. This potential was seen in a water right to a predecessor in 1913. There was a beginning concept of the entire site being recognized for its potential to generate electricity and enhance development. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 5 of 16 There had been earlier hydro generation between the flume and the dam, a small black channel underneath the flume, at the original site around 1913. There were earlier sites, but they used part of this to develop and upgrade further, in conjunction with the U.S. War Department. There was no fish screening, just a screen to collect trash. The War Department agreement mentioned providing power to the military, a key component in the Redmond area. In its entire context, it suggests that the entire site is historic and not just the three listed components. No further proponent testimony was offered. Jeff Lovinger and John Sample, attorneys for PacifiCorp out of Portland, came before the Board. (A copy of their PowerPoint presentation is attached_for reference) Mr. Lovinger said that there are some interesting revelations of the early history and the importance of the site. The question is not what the Board would do today if designating the property now. The question is what the 1992 decision means and what the inventory says. This is critically important because this gives notice as to protected resources. The only elements at the site that were mentioned were the dam, the penstock and the powerhouse. It might be a good idea to designate the entire site as historic, but the question is, what was designated in 1992. They need to look closely at the Goal 5 process and regulations in place then. They were required in the inventory process to particularly describe every structure and the boundaries of the site. This is a critical concept. If it was not clearly designated, it was not historic. If there was ambiguity as to what is protected, it was not validly protected. It only called out three structures. There may be other historic value, but the current Board would have to start a historic designation process to declare this further. The question is, which structures were designated in 1992 as protected. It is important to understand the Goal 5 process in 1992, which was governed by OARS. The regulations today would be different, as this process was changed in 1996. This Board needs to try to figure out what the 1992 Board intended. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 6of16 Title 16 had a four-step process. First you create an inventory: identify structures or sites, with particularity. Step 2 was to identify conflicting uses. Step 3 involves the ESEE analysis, looking at an appropriate balance of protecting the resource and other uses, and describing how to strike that balance. Step 4 was to develop a program to protect the designated resource. This is the historic preservation Ordinances. Each step in the process was distinct and in sequence. Per the regulation in 1992, OAR 660.16.000, a valid inventory must include a description or map of the boundaries of the resource site. LUBA said this must be described in particularity. That is an indispensable part of this. It is not validly designated until it is so described. If there is ambiguity, it is not validly included. There were possible exceptions. The 1992 Board might have incorporated the ESEE or other documents by reference, but there is no evidence that this happened. LUBA has a process for this. Their principal is in the Gonzales case, that the decision-maker needs to clearly state another document is being incorporated. The Goal S inventory has no statement regarding incorporation of other documents, historic resource surveys, the inadequate maps, photographs, or the ESEE analysis. All this Board can validly look at is the language of the inventory itself. The inventory note refers to only the designated structures: the dam, penstock and powerhouse. Unless otherwise indicated, nothing else is included. The Historic Landmarks Commission has a problem with the word `site', but the inventory note says only the designated structures. Referring to the site does not necessarily indicate other things should be included. The Board knew how to designated sites, as they did so with others, such as the Camp Polk military site, when they included tax lots; the same with Maston Cemetery; and Tetherow House and Crossing, which includes the house and entire tax lot. If they intended to protect the entire site, they could have designated the entire tax lots or a portion thereof. The Allen Ranch Cemetery listing is very specific, as was the Camp Polk Cemetery, detailed in metes & bounds. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 7of16 None of this was done for the Cline Falls site. If it was not clearly designated, it is not protected. PacifiCorp should not be found guilty of violating something that was not made clear over 30 years ago. SHPO (State Historic Preservation Office) representatives pointed out that it was done piecemeal, and no one knew how to evaluate a power site. They were changing all the time. If you focus on the inventory, it is reasonable to conclude only the three structures were protected. This is pointed out in staff reports of May 6, October 15 and by the Historic Landmarks Commission in its discussion on July 2, 2013. However, they went on to look at the ESEE analysis and felt the whole site should have been considered. The site means only the designated structures. He said he has a set of written comments to submit. (A copy is attached for reference) Staff pointed out that the title suggests the entire site be considered. The documentation does not demonstrate this and there is no precedent for it. If the 1992 Board intended to protect the entire site, it would have used in the title like was done for others. The Cline Falls power plant does not describe the entire structure and there is no description of the entire site. The 1994 Ordinance adopted the inventory, conducted. ESEE, and ESEE was to control conflicting uses. This was two years after, and it can't be done retroactively. It was said that the second sentence of the inventory note modifies the first. He feels the impact area is not the same thing, and is beyond the designated resource. The October 15 staff report concludes the assignment of errors have no merit. PacifiCorp feels the Historic Landmarks Commission decision was in error. The Board accepted review de novo to replace the hearing the Historic Landmarks Commission had. It is a new hearing as though the other never happened. The question is, what did the 1992 Board do and clearly state. They only projected the three structures. Maybe they should have protected more at the time, but that is something for a future Board to do. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 8of16 Mr. Sample had a question for the Board, the original one for the Landmarks Commission. Staff had a photo and diagram of the structure, and Ms. Dickson felt that some was not included with the penstock. He thinks the staff interpretation is correct. The penstock carries under pressure; the flume does not. It was said that the dam was built in 1942. However, when PacifiCorp entered into an agreement in 1913, the dam was already there. There was a project there earlier, which was removed in early 1940's and replaced. The 1992 Board knew what they were talking about in terms of process, designated the three structures and nothing else. They could have designated entire areas by tax lots or more. This Board should not have to try to make it more than it was, since the inventory notes are clear. They went through the process correctly. Commissioner Baney had a question regarding the flume and switchyard, since both are both missing. It would be important to note why de novo is important to the board. They hear a lot of land use issues, and often questions can be answered if it is heard de novo. They tend to lean towards this to get all information. Commissioner DeBone stated that there is a concrete structure now. He asked if there is a previous version behind it or under water. Mr. Sample responded that it could have been a wooden crib. It would have been mostly decommissioned. There was a temporary structure upstream to divert water, so they could work `dry' while concrete was being poured. . There was no further testimony offered by the opponents. Mr. Lelack said the critical question is whether the Ordinances go together or are sequential. Ms. Craghead noted that they were properly designated and not a collateral attack on a previous decision. She reminded the Board that its decision would be given extreme deference at LUBA in an appeal. She said of the four steps of a designation, Ordinance No. 92-018 was step 2, and 92-019 was the final step. Commissioner Baney stated that for Young School, there is an inventory note. In the same document for Cline falls, there is not the same language. She asked where the note is for Cline Falls. Ms. Smidt replied that the note is at the bottom of the Ordinance. It is not specific to this property but applies to all. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 9of16 Commissioner Baney asked if Exhibit A, the ESEE analysis, is in its entirety. Ms. Craghead said it applies to Ordinance 019. Ordinance 92-018, exhibit D, page 3, describes how they arrived at the inventory decision. In 1985 and 1990, there were priority numbers of 30 or more. Commissioner Baney asked for the definition of historic in 1992. If it was fifty years, and they used a chronological listing of structures, 1943 would not have been old enough. Ms. Smidt said they could recognize something as historic anyway. Ms. Craghead noted it would be a done deal, if the Board in 1992 thought it was historic enough. This cannot be challenged now. Commissioner Baney stated that maybe it is not listed because it was not historic then. Ms. Smidt said that if the switchyard was replaced in 1962, it would not have been old enough. Commissioner Baney said that chronological information on the structures would be helpful. Ms. Smidt said this can be submitted into the record and made clear. Mr. Lelack stated that the question could be whether it would have been listed historic structures only, or something like a historic district in a city. No one knows the train of thought. Ms. Craghead noted that PacifiCorp's involvement in 1992 was minor, if at all, because they probably thought little of the site was to be considered historic. Ms. Craghead said that the Board should keep the written record open for at least a week past the site visit. There would then be time after that for rebuttal, and rebuttal arguments and staff comments. The two Commissioners plan to visit the property on October 29, 2013; this visit will be appropriately noticed.. Chair Unger explained the oral record is closed, but that the written record will remain open until November 5 at 5:00 p.m. for new information, with rebuttal arguments from any party (no new evidence) open until November 12 at 5:00 p.m. By November 1.9 there will be final arguments by staff. There is no time restriction for a decision. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 10 of 16 6. Before the Board was Consideration of First and Second Readings and Adoption, By Emergency, of Ordinance No. 2013-016, Amending County Code, to Amend the Urban Growth Boundary of the City of Sisters (Annexation of the Sisters Airport into the City of Sisters). Kevin Harrison reviewed the documents, which were previously discussed by the Board at a recent work session. The property would be poised to be annexed into the City in the future. An emergency clause is desired to move this forward. Chair Unger stated asked about the need to do this now, and the urgency for an emergency clause. Mr. Harrison stated that the Hearings Officer has the authority to make a decision on this type of issue. There have been no appeals or challenges, so therefore the Board has no authority to take more public testimony. The emergency clause will help the City annex the property before the end of the calendar year. There are some grant and development opportunities available this calendar year, so it is time sensitive. BANEY: Move first and second readings by title only, by emergency. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. Chair Unger conducted the first and second readings of Ordinance No. 2013- 016, by title only. BANEY: Move adoption of Ordinance No. 2013-016, by emergency. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 11 of 16 7. Before the Board was Consideration of First and Second Readings and Adoption, By Emergency, of Ordinance No. 2013-017, Amending County Code, to Change the Zone Designation on Certain Property from Rural Residential to Urban Area Reserve (Annexation of the Sisters Airport into the City of Sisters). DEBONE: Move first and second readings by title only, by emergency. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. Chair Unger conducted the first and second readings of Ordinance No. 2013- 017, by title only. DEBONE: Move adoption of Ordinance No. 2013-017, by emergency. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. 8. Before the Board was Consideration of 2013-2015 Special Transportation Fund (STF) Formula and Special Transportation Operation (STO) Grant Allocations. Judith Ure explained that his involves transportation for the: elderly and disabled. The formula is based on population and service capability in the County. Revenue is derived from tobacco taxes and identification forms. It is mostly pass-through, but is administered by the County. This is a reduction from the last two years. It was supplemented last year by carryover funds, but no other funds are available for this year. The funds have been typically used for operational costs, but can be used for equipment or other capital expenses. The STF Advisory Committee decides what the applicants get. There is a requirement of members to properly represent the people receiving the benefit. Dial-a-Ride and Cascades East Transit plus two smaller agencies, AbiliTree and Opportunity Foundation, receive funding. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 12 of 16 BANEY: Move approval of the STFAC recommendations and authorize staff to submit corresponding application to ODOT required for the County to receive funds. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. Commissioner Baney left the meeting at 12:15 p.m. due to a previous commitment. Commissioner DeBone had a minor correction to the minutes of the October 7 work session, regarding the addition of language relating to geothermal opportunities. Item #15, regarding Document No. 2013-606, was addressed separately, as the agenda request should have read Chair signature was needed, and not that of the Board. DEBONE: Move Chair signature of Document No. 2013-606. LINGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. Mr. Anderson said there was an e-mail from a citizen on this item, but it came in late and the item was not a public hearing. DEBONE: Move approval of the Consent Agenda with the above noted changes. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 13 of 16 Consent Agenda Items 9. Board Signature of Document No. 2013-519, Amending Deschutes County Contract No. 2012-090 between Deschutes County Sheriff s Office and Aramark Correctional Services, LLC for a 2.13% Cost Per Meal Increase for Inmate Meals 10. Chair Signature of Document No. 2013-534 - Amending the Assessment & Taxation Software Program/Agreement Shared by 11 Counties 11. Board. Signature of Document No. 2013-559, a Lease to La Pine Disposal & Recycling (Equipment Storage) 12. Board. Signature of Resolution No. 2013-102, Appropriating a New Grant in the Public Health Fund 13. Board Signature of Resolution. No. 2013-110, Transferring Appropriations in the Public Health Fund 14. Board Signature of Document No. 2013-587, a Relinquishment Deed from the Oregon Department of Transportation for Property Used for Public Road Purposes (off 12th St., Terrebonne) 15. Board Signature of Document No. 2013-606, Amending an Irrevocable Letter of Credit for a Development Agreement By and Among Deschutes County and. Arrowood Development, LLC 16. Board Signature of Order 2013-048, Surrendering a Portion of Barclay Drive to the City of Sisters 17. Board. Signature of Order 2013-047, Surrendering a Portion of Camp Polk Road to the City of Sisters 18. Signature of Letters Reappointing Alysha Gilpatrick, Jared Jeffcott, Doug Kelly and. Rick Silbaugh to the Ambulance Service Area Advisory Committee, through June 30, 2016; Letters Appointing Nathan Garibay, Steve O'Malley and Jerry Thackery, through June 30, 2014; and a Letter Thanking Tom Wright for his Service. 19. Signature of Letters Thanking Adena Glassow for her Service and Appointing Mary Cronkhite to the Deschutes River Recreation Homesites Special Road. District #6, through December 31, 2015. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 14 of 16 20. Signature of Letter Reappointing Lauren James to the Vandevert Acres Special Road District, through December 31, 2015. 21. Board Approval of Economic Development Grant Awards: • Bend Chamber of Commerce - Leadership Bend Foundation - $1,500 • Deschutes Water Alliance Voluntary Annual Dues - $2,000 • Hospice of Redmond - 2013 Festival of Trees - $3,000 Western Cave Conservancy - C. O. Caves Graffiti Removal Project - $2,000 Winning Over Anger & Violence Winning Over Youth - $2,500 • La Pine Blue Lightning Mat Club - Mat Club Facility - $800 22. Approval of Minutes: • Business Meeting: September 25 and 30, 2013 • Work Sessions: September 25 and 30; and October 2 and 7, 2013 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 23. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District (three weeks), in the Amount of $66,517.22. DEBONE: Move approval, subject to review. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 24. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District (three weeks), in the Amount of $86,768.46. DEBONE: Move approval, subject to review. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 15 of 16 RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 25. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County (three weeks), in the Amount of $2,606,607.75. DEBONE: Move approval, subject to review. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. 26. ADDITIONS TO THE AGENDA None were offered. Being no further items discussed, the meeting adjourned at 12:20 p.m. DATED this ~O Day of 2013 for the Deschutes County Board of Commissioners. 01 Alan Unger, Chair (1~~ 1 Tammy ney, Vic hair ATTEST: (6xkt4,- Anthony DeBone, Commissioner Recording Secretary Minutes of Board of Commissioners' Business Meeting Monday, October 21, 2013 Page 16 of 16 BOARD OF COMMISSIONERS' METING SPEAK Co Agenda Item of Interest Date 3 Name Li ~rG✓~ sr/~c / ~C Address '7q 7 j-,0 Val (1 ,oj c11 7 O L, 3/ 7 Phone #s LP11) E-mail address W/ d 5elt `i cv e !e, Gds In Favor ❑ Neutrawndecided Submitting written documents as part of testimony? ❑ Yes ❑ Opposed [0 No BOARD OF COMMISSIONERS' MMETING RE S Agenda Item of Interest 11VILU Date J(6 Name & v Address ~ Z' P(5- c.2 ( a,4"' n F~. Phone #s "503 d N E-mail address 6NJ tU~a3?..._.~L ~ ❑ In Favor ❑ Neut ' wecided Submitting written documents as part of testimony? E;eYes Opposed No BOARD OF COMMISSIONERS" MEETING REOUESTTO- Agenda Item of Interest C,=- LA e- E Date l ® ,q t Name Jolawi Address 6 1 r Phone #s 603 1513- E-mail address ❑ In Favor ❑ NeutraWndecided ❑ Opposed Submitting written documents as part of testimony? E~Yts ❑ No BOARD OF COMMISSIONERS' MEETING BAOUEST TO SP Agenda Item of Interest Date o 3 Name LI Jbic 5rtt.,1~-~ Address 7 7 ,{,del 04, d2 7 ~d Phone #s (ql) 317 r S E-mail addressSd~- In Favor NeutraYUndecided Opposed / Submitting written documents as part of Ustimopy? ERYes ❑ No BOARD OF COMMISSIONERS' MUTING REOUESTTDVXAK Agenda Item of Interest lml~- Date /0/7,1 200 Name @V)n~ Address fl p _ LI- 1 M 19 e Phone #s d~ F,mail address C<tt, st1,srB, 6AI-- wok, Z7~v opposed ® No rj: Community Development Department % Planning Division Building Safety Division Environmental Soils. Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes,or.us/cdd/ MEMORANDUM To: Deschutes County Board of Commissioners From: Kevin Harri n 4cipal Planner Date: September 24, 2013 Re: Adoption of Ordinance Nos. 2013-016 and 2013-017; County file nos. PA-13-3/ZC- 13-3. BACKGROUND Sisters Runway, Inc. and Sisters Airport Property, LLC applied for a comprehensive plan map amendment to include their 34.3-acre property within the City of Sisters' urban growth boundary (UGB), and to change the plan designation on the property from Rural Residential Exception Area (RREA) to Urban Area Reserve (UAR). Concurrently, the applicant applied for a zone map amendment to change the zoning on the property from Rural Residential (RR-10) to Urban Area Reserve (UAR-10). The property is located at the northeast corner of the intersection of Camp Palk Road and Barclay Drive, on the northeast side of Sisters. The purpose of the amendments is to bring the Sisters Eagle Airport inside the UGB and allow the city to zone the property for airport use. Amendments to the UGB are a joint city/county function. The city conducted public hearings on July 31, 2013 and August 8, 2013, adopting Ordinance No. 425 on August 8, 2013. The county held a public hearing before the Hearings Officer on August 27, 2013. The Hearings Officer approved the application by a decision dated September 10, 2013. Pursuant to DCC 22.28.030(B), the decision of the Hearings Officer is the final decision of the county and the Board must approve the amendments without further argument or testimony. SCHEDULE This item is scheduled for the Board's work session on September 30, 2013, at which time I can brief you on the amendments and determine a date for adoption of Ordinance Nos. 2013-016 and 2013-017. Copies of the ordinances and all exhibits are attached for your benefit. The city has indicated that they would like to complete the annexation process before the end of the calendar year. To do so would require an effective date on the ordinances less than the 90 days typically associated with adoption without an emergency clause. For this reason, staff ~.5 t~ fit ~ 13 Quality Services Performed with Pride suggests the Board adopt the ordinances with an effective date 30 days from the date of adoption. Please feel free to contact me with any questions or concerns. Community Development Department Planning Division Building Safety Division Snvironmental Soils Division P.O. Box 6005 117 NW Lafayette Averil.'e Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes County Board of Commissioners From: Kevin Harrison, Principal Planner Date: September 24, 2013 Re: Adoption of Ordinance Nos. 2013-016 and 2013-017; County file nos. PA-13-3/ZC- 13-3. BACKGROUN Sisters Runway, Inc. and Sisters Airport Property, LLC applied for a comprehensive plan map amendment to include their 34.3-acre property within the City of Sisters' urban growth boundary (UGB), and to change the plan designation on the property from Rural Residential Exception Area (RREA) to Urban Area Reserve (UAR). Concurrently, the applicant applied for a zone map amendment to change the zoning on the property from Rural Residential (RR-10) to Urban Area Reserve (UAR-10). The property is located at the northeast corner of the intersection of Camp Polk Road and Barclay Drive, on the northeast side of Sisters. The purpose of the amendments is to bring the Sisters Eagle Airport inside the UGB and allow the city to zone the property for airport use. Amendments to the UGB are a joint city/county function. The city conducted public hearings on July 31, 2013 and August 8, 2013, adopting Ordinance No. 425 on August 8, 2013. The county held a public hearing before the Hearings Officer on August 27, 2013. The Hearings Officer approved the application by a decision dated September 10, 2013. Pursuant to DCC 22.28.030(8), the decision of the Hearings Officer is the final decision of the county and the Board must approve the amendments without further argument or testimony. SCHEDULE This item is scheduled for the Board's work session on September 30, 2013, at which time I can brief you on the amendments and determine a date for adoption of Ordinance Nos. 2013-016 and 2013-017. Copies of the ordinances and all exhibits are attached for your benefit. The city has indicated that they would like to complete the annexation process before the end of the calendar year. To do so would require an effective date on the ordinances less than the 90 days typically associated with adoption without an emergency clause. For this reason, staff suggests the Board adopt the ordinances with an effective date 30 days from the date of adoption. Please feel free to contact me with any questions or concerns. Quality Services Performed 7uith Pride Date: October 15, 2013 To: Deschutes County Board of Commissioners From: Judith Ure, Management Analyst Subject: Special Transportation Fund Advisory Committee Recommendations Special Transportation Fund Formula Grant Process Each biennium, Deschutes County receives an allocation from the Oregon Department of Transportation's (ODOT) Special Transportation Fund (STF) Formula Grant Program for the purpose of supporting transportation services for the elderly and people with disabilities. During the past six years, ODOT has also made additional funds available through the Special Transportation Operating (STO) Grant Program for the same purpose. These funds are distributed by the County to local service providers through a competitive grant process. Applications are reviewed by the County's STF Advisory Committee (STFAC) which then formulates a recommendation for consideration by the Board of County Commissioners. Upon Board approval, staff submits an application to ODOT as required to receive the funds and begins the process of preparing individual contracts with recipient agencies. Deschutes County reimburses grant recipients on a quarterly basis. Payments are made only after each provider submits a status report that details revenue and expenses, trips provided, hours and miles driven, equipment operated, and accident history for the reporting period. Amount Available Deschutes County's fiscal year 2013-15 STF formula allocation from ODOT totals $491,612, of which $4,000 is retained by the County to offset administrative expenses. The STO allocation for the same period is $50,284, making a total of $541,896 available for grants to local service providers. In the 2009-11 biennium, the County received $745,606 from the State for local distribution. In the 2011-13 biennium, that amount was reduced to $588,510 which the County supplemented with an additional $17,500 in carry-over funds available as a result of interest earnings and previous unclaimed grant awards for a total of $606,010. Special Transportation Fund Advisory Committee Recommendations Deschutes County received four applications requesting funding in the amount of $620,396 for the 2013-15 biennium. All of this year's applicant agencies have been awarded STF and. STO grants by Deschutes County in the past and have a strong record of performance within the grant guidelines. The Deschutes County STFAC convened in a public meeting to review applications for funding and to develop a recommendation for STF and STO distribution. Applicant agencies were invited to attend that meeting and were given an opportunity to further describe their services and requests for funding. The Committee's recommendation, which appears below along with a history of past awards, is based on the amount available for distribution, written and verbal information provided by the applicants, and priorities identified in the Deschutes County Coordinated Human Services Transportation Plan. The last column in the following chart outlines the resulting recommendation of the STF Committee and represents a composite of STF, STO, and carryover funds. Agency 2005-07 Award 200709 Award 2009-11 Award 2011-13 Award 2013-15 Recommendation Bend Dial-A-Ride 281,900 281,075 360,000 245,376 182,950 Central Oregon Council on Aging 95,110 49,113 0 0 0 Abilitree 20,326 22,138 31,018 23,036 21,000 Opportunity Foundation 41,166 44,883 60,000 48,944 43,000 Residential Assistance Program 13,146 0 0 0 0 Interfaith Volunteer Caregivers 22,050 0 0 0 0 DHS Volunteer Services 25,516 31,866 44,000 39,278 0 Central Cascade Lines 0 41,409 0 0 0 Cascades East Transit 0 88,949 250,588 245,376 290,946 Total $499,214 $559,433 $745,606 $602,010 $537,896 Recommended Action Staff recommends that the Board of Commissioners approve the recommendations of the STFAC and authorize the Board Chair to sign the County's STF and STO program applications to ODOT when available. PRELIMINARY STATEMENT FOR A DE NOVO PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 1. INTRODUCTION A. This is a de-nova hearing on the Historic Landmarks Commission decision determining that the Cline Falls Power Plant historic resource includes the entire site. The review of this application is in response to the Board's decision to initiate review of the request via Order 2013-037. County File Numbers are A-13-3 and DR-13-6. B. In the application, the applicant requested the Historic Landmarks Commission interpret the Comprehensive Plan listing of the "Cline Falls Power Plant" as a significant historic resource. C. The Board takes notice of the record below and includes that record as part of the record before us. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are the following: 1. Deschutes County Comprehensive Plan, Chapter 2, Resource Management, and Chapter 5, Supplemental Sections. 2. Deschutes County Administrative Ordinance, Chapter 2.28, Historic Preservation and Historic Landmarks Commission. 3. Deschutes County Procedures Ordinance, Chapter 22.40, Declaratory Ruling. 4. Oregon Statewide Planning Goals. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Historic Landmarks Commission, the Historic Landmarks Commission's decision, the Staff Report and the testimony and evidence presented at this hearing. 1 IV. A. ORDER OF PRESENTATION The hearing will be conducted in the following order. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the proposal then the opponents will then be given a chance to testify and present evidence. 4. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances The grant of a continuance or record extension shall be at the discretion of the Board. V. A. B. 2. If the Board grants a continuance, it shall continue the public hearing to a date certain. 3. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open to a date certain for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed a period to a date certain after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. PRE-HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS Do any of the Commissioners have any ex-parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state their nature and extent. Does any party wish to challenge any Commissioner based on ex-parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) (Staff Report) 2 FILE NUMBER: HEARING DATE: HEARING LOCATION: APPLICANT: OWNER: REQUEST: STAFF CONTACT: Community Development Department Planning 04vision Building Safety Division Environmentbt Uils Division P.O. Box 6005 117 NW Lafayette k.aenue Send, Oregon 97708-6005 (541)388-5575 AX(541)385-1764 http://www,co.deschutes.or.us/cdd/ STAFF REPORT DR-13-6 May 6, 2013, 5:30 p.m. Barnes and Sawyer Hearing Rooms Deschutes Service Center 1130 NW Wall Street Bend, OR 97701 Deschutes County, Community Development Department Post Office Box 6005 Bend, Oregon 97708 Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 A Declaratory Ruling to interpret Ordinance 92-019 and associated documents regarding the Cline Falls Power Plant historic site. Cynthia Smidt, Associate Planner 1. APPLICABLE CRITERIA: Title 22, Deschutes County Development Procedures Ordinance Chapter 22.40. Declar Section 22.40.010. Section 22.40.020. Section 22.40.030. Section 22.40.040. Section 22.40.050. atory Ruling Availability of Declaratory Ruling Persons Who May Apply Procedures Effect of Declaratory Ruling Interpretation Deschutes County Comprehensive Plan Chapter 2, Resource Management Section 2.11. Cultural and Historic Resources Quality Services Performed with Pride Title 2, Deschutes County Administration Ordinance Chapter 2.28. Historic Preservation and Historic Landmarks Commission Section 2.28.090. Exterior Alteration and New Building Restrictions Oregon Statewide Planning Goals BASIC FINDINGS: A. LOCATION: The subject property is located at 300 NW 74th Street, Redmond and is further identified on Deschutes County Assessor's Map 15-12-11D as Tax Lot 1100 together with Tax Lot 900 on Map 15-12-14A. B. LOT OF RECORD: Deschutes County has recognized the subject tax lots as one legal lot of record pursuant to County file number LR-92-10 as reconfigured through property line adjustment LL-01-102. C. ZONING: The subject property is zoned Exclusive Farm Use (EFUSC) and Flood Plain (FP). The property is within the Landscape Management (LM) and Airport Safety (AS) Combining zones and is designated a Historic Site (HS). D. LAND USE HISTORY: Cultural and historic resources in rural Deschutes County were designated through Ordinance 92-019. The Cline Falls Power Plant is included in the Goal 5 Inventory of Cultural and Historic Resources of Deschutes County. The Economic, Social, Environmental, and Energy (ESEE) findings, incorporated by reference, provide a brief history of the Cline Falls Power Plant. E. SITE DESCRIPTION: The subject property is approximately 8.10 acres and irregular in shape. It has a vegetative cover of native trees, grasses, and shrubs. The topography consists of steep east-facing slopes of the river canyon. The site is currently developed with the Cline Falls power generating facility, including powerhouse, dam, flume, and several other associated structures. Access to the property is taken from NW 74th Street, which abuts the property along its western boundary. The Deschutes River and associated Cline Falls (waterfall) abut the property along its eastern boundary. F. PROPOSAL: The applicant has submitted a request for a declaratory ruling to interpret Ordinance 92-019 and historical documents that relate to the designation of the Cline Falls Power Plant historic site. County records adopted in 1992 through Ordinance 92- 019 contain inconsistencies in the description of the site and of those structures protected.' The applicant requests an interpretation of what is the protected resource at the Cline Falls Power Plant, the entire site or specific structures. A code enforcement complaint was filed by the property owner, Central Oregon Irrigation District, alleging that the lessee, PacifiCorp, violated County code by altering a historic site (Code Enforcement file C13-18). There are differing opinions about what is considered One discrepancy of the record is between the date the power plant was establish (1912) and the attached photos (post-1943 reconstruction of the plant, 200 feet downstream from the original location). DR-13-6, Deschutes County CDD Page 2 the historic resource at the Cline Falls Power Plant site. To bring clarification and guidance to the case, the County Planning Director requests, the Historic Landmarks Commission, to interpret the code and make the determination. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Deschutes County Code Enforcement Division: Comments were submitted by John Griley, Code Enforcement Technician, on March 27, 2013. Mr. Griley's comments are below. There is a pending code 'enforcement investigation on this property. The complaint received by Code Enforcement alleges that a switchyard, power poles, and power lines were removed from site without obtaining necessary permits from Deschutes County. The complaint further alleges that other changes to the site may have been made without permit. In Code Enforcement's inspection conducted on February 12, 2013, staff confirmed that a switchyard, power poles, and power lines have been removed from the site. Staff also noted the presence of a modern steel walkway and stair structure on site, and a modern gate/walkway structure in the watercourse. Staff has not been able to establish when these structural improvements were made. 2. Oregon Parks and Recreation Department (OPRD): The property is within the State Scenic Waterway. Notification to OPRD is required. Staff Comment: According to County records, this region of the Deschutes River is not within the State Scenic Waterway. Greg Ciannella with OPRD confirmed this information on April 22, 2013 and nullified the above comments 3. Ore on State Historic Preservation Office SPHO : Comments were submitted by Chrissy Curran, Associate Deputy State Historic Preservation Officer. Ms. Curran's comments are below.2 It was good to talk with you today about the Cline Falls Power Plant. Just to summarize some thoughts: We talked about the old inventory forms the counties have been collecting since the 1970s. Because so much can change over decades, including a property's status (is it even still there?), its integrity (has it been altered?); obviously its age (new things become fifty years old eventually); and our perception of it (scholarship changes over time; we gain more information about a property type), we would expect that any assessment of eligibility for a property be less than five years old. That's just a ballpark figure, but a current assessment is critical, and we require it for all our compliance reviews, in our survey guidance, in our National Register program, and in our tax benefit programs. Our files are full of inventory forms 20 years old and more. It would be professionally irresponsible for us to assess eligibility and determine treatment of a historic resource based on information that is decades old. While it was pretty easy for the folks doing surveys over the years to record an individual house and its associated structures (garage) or a farmstead (house and 2 Planning staff talked with Ms. Curran on March 8, 2013, prior to the submittal of this application. She prepared this summary of the conversation to include in the record. DR-13-6, Deschutes County CDD Page 3 barn), it doesn't surprise me that the Cline Falls Power Plant was recorded in a more piecemeal way back in the early 1990s. Power plants built or improved during WWII were just turning fifty years old at that time, and nobody knew how to identify or evaluate them; even the SHPO was struggling with them. Today we know loads more about properties like that, and our files are full of well-documented power plant sites from the entire Bonneville Power system to PGE properties to several Pacific Power sites across the state. A power plant like Cline Falls is a collection or ensemble of components. If that site were documented today, all the features associated with the plant would be included within the boundary. It sometimes helps to pose the "but for" question to figure out if a component is associated closely enough with the plant to be included as a "contributing" or eligible feature. "But for" this feature, the plant couldn't function as it did historically. "But for" this feature, the plant cannot convey its historical use, on which its significance is based. I hope that helps clarify some things from the SHPO point of view. Please let me know if you have additional questions. Thanks for giving us a call. 4. The following agencies did not respond or had no comments: Deschutes County Assessor, Deschutes County Legal Counsel, Pacific Power (Bend office), Oregon Department of Land Conservation and Development (DLCD), and Oregon Department of State Lands (DSL). H. PUBLIC COMMENTS: Notification of the public hearing was posted in the Bend Bulletin Newspaper on April 7, 2013. The Planning Division sent notice of this application to the property owner; the former lessee, PacifiCorp Energy, and to all owners of property within 750 feet of the subject property. Submitted comments are incorporated in the record by reference and available for review. 1. REVIEW PERIOD: The application for DR-13-6 was submitted to the Planning Division on March 21, 2013. The Planning Division deemed the application complete and accepted it for review on April 19, 2013. III. CONCLUSIONARY FINDINGS: TITLE 22, DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE A. Chapter 22.40. Declaratory Ruling 1. Section 22.40.010. Availability of Declarato Ruling. A. Subject to the other provisions of DCC 22.40.010, there shall be available for the County's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and DCC Title 22 a process for. 1. Interpreting a provision of a comprehensive plan or ordinance (and other documents incorporated by reference) in which there is doubt or a dispute as to its meaning or application; FINDING: The applicant is requesting a declaratory ruling to interpret the comprehensive plan and ordinance to identify the designated historic resource on DR-13-6, Deschutes County CDD Page 4 this property. In particular, interpreting what structure(s) and/or region of the Cline Falls Power Plant historic site is the designed and protected historic resource. B. A declaratory ruling shall be available only in instances involving a fact-specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment. FINDING: The requested declaratory ruling is to interpret Ordinance 92-019 and historical documents that relate to the designation of the Cline Falls Power Plant historic site. There is a fact-specific controversy between affected parties with regard to what is covered by the historic designation. The request is not an advisory opinion nor is it an amendment to the applicability of a legislative enactment. C. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final. FINDING: The County adopted Ordinance 92-019 on March 18, 1992, which became effective immediately. The applicant submitted the request for a declaratory ruling on March 21, 2013, more than six months after Ordinance 92-019 became final. The applicant is not requesting the declaratory ruling as a substitute for an appeal or for a modification of an approval. D. The Planning Director may refuse to accept and the Hearings Officer may deny an application for a declaratory ruling if. 1. The Planning Director or Hearings Officer determines that the question presented can be decided in conjunction with approving or denying a pending land use action application or if in the Planning Director or Hearings Officer's judgment the requested determination should be made as part of a decision on an application for a quasi-judicial plan amendment or zone change or a land use permit not yet filed; or 2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district or circuit court in which the same issue necessarily will be decided as to the applicant and the applicant failed to file the request for a declaratory ruling within two weeks after being cited or served with a complaint. The Planning Director or Hearings Officer's determination to not accept or deny an application under DCC 22.40.010 shall be the County's final decision. FINDING: The Planning Director has determined that the question presented is appropriately decided under this procedure. DR-13-6, Deschutes County CDD Page 5 FINDING: The declaratory ruling decision will be conclusive on the issue of interpreting County Ordinance 92-019 as it relates to Cline Falls Power Plant as a designated historic site. Reapplication is not allowed. In addition, this decision does not constitute a policy of Deschutes County. 5. Section 22.40.050. Interpretation. Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language. Interpretation shall be made only of language that is ambiguous either on its face or in its application. Any interpretation of a provision of the comprehensive plan or other land use ordinance shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. FINDING: Interpretations of the comprehensive plan or zoning ordinance with this request shall not have the effect of amending the interpreted language. The requested interpretation is to clarify any ambiguous language of Ordinance 92-019 and supporting documents. TITLE 2, DESCHUTES COUNTY ADMINISTRATION ORDINANCE A. Chapter 2.28. Historic Preservation and Historic Landmarks Commission 1. Section 2.28.090. Exterior Alteration and New Buildin Restrictions. A. Except as provided in DCC 2.28.090(1), no person may demolish or alter any historic or cultural resource in such a manner as to affect its exterior appearance or integrity, nor may any new structure and/or building be constructed in an historic district, unless a certificate of approval has been issued by the Landmarks Commission and the County. [Emphasis added] FINDING: As noted in the Proposal section of this report, a code enforcement complaint was filed alleging that the lessee, PacifiCorp, of the property violated the code by altering a historic site (Code Enforcement file C13-18). Based on a site visit on February 12, 2013, staff confirmed that the switchyard, power poles, and power lines were removed from the site.3 According to PacifiCorp, this occurred in December 2012. In DCC Section 2.28.090(A) it indicates no person may demolish or alter the exterior appearance or integrity of a historic resource without a certificate of approval by the Historic Landmarks Commission ("Commission"). For reference, Section 2.28.020 of the County Code defines Historic or Cultural Resources as the following. "Historic or Cultural Resource" means a historic or cultural site, building, structure, object, historic district, and their significant settings or any combination of these resources that are listed on the National Register of Historic Places, or are within a historic district that was listed on the 3 A modern steel walkway and stair structure was also documented during the site visit. DR-13-6, Deschutes County CDD Page 7 National Register of Historic Places, and/or are designated by the Deschutes County Board of Commissioners on the County's Goal 5 list of Historic and Cultural Resources. Cline Falls Power Plant is a designated historic resource in Deschutes County. The definition indicates a designated resource consists of a building, structure, or an object, and their significant settings or any combination thereof. [Emphasis added] The historic inventory for Cline Falls Power Plant includes listing the dam, penstock, and powerhouse as structures of importance. However, supporting documents to Ordinance 92-019 refer to the facility as an entire "site" and protecting the resource because it is part of the industrial and economic history of the area. As previously noted, there are differing opinions regarding the interpretation of what is considered the historic resource of the Cline Falls Power Plant site. The applicant requests clarification from the Commission regarding what is the protected resource at the Cline Falls Power Plant, the entire site or specific structures. This is further reviewed below. DESCHUTES COUNTY COMPREHENSIVE PLAN A. Chapter 2. Resource Management 1. Section 2.11. Cultural and Historic Resources Background Historic resources are recognized by Statewide Planning Goal 5, Natural Resources, Scenic Views and Historic Areas and Open Spaces, and Oregon Administrative Rule (OAR) 660-023. The Statewide Goal and OAR recommend, but do not require, the County to inventory and protect historic and cultural sites. Historic Designations In 1979 the County inventoried potential historic and cultural sites in the Resource Element. The 1979 Plan included goals and policies for protection of historic resources as well as provisions that the County establish a Historical Landmarks Commission and adopt an ordinance to protect designated historic sites. On September 17, 1980 the Board of County Commissioners adopted Ordinance PL-21, which established a Historical Landmarks Commission and created a process to evaluate, designate and regulate historic structures. The Historic Landmarks Commission subsequently, and over time, evaluated proposed historic sites. The resulting inventory of historically designated sites can be found in Chapter 5. This inventory will be reviewed as part of the Goal 5 review as described in the Goal 5 section of this Plan. Starting in 1997, all historic and cultural designations have been initiated at the request of property owners through the Comprehensive Plan text amendment process. Future of Cultural and Historic Resources Deschutes County supports the voluntary preservation of significant cultural and historical sites. Going forward there are a few issues regarding cultural and historical resources that need to be addressed.... DR-13-6, Deschutes County CDD Page 8 Another concern is that the current County inventory is old and contains incomplete information on some of the sites.... FINDING: The County documented potential historic and cultural sites for the 1979 Resource Element of the County Comprehensive Plan. However, it was not until 1992, through Ordinance 92-019, that those sites were designated as historic resources recognized by Statewide Planning Goal 5. Cline Falls Power Plant is on the County's Goal 5 inventory as listed in Chapter 5, Supplemental Sections, of the Comprehensive Plan. The designation of Cline Falls Power Plant is based on the findings provided in County file HS-90-99; the ESEE findings; and additional information. These findings are described in brief in Exhibit A of Ordinance 92-019. The Goal 5 Inventory listing states the following. Cline Falls Power Plant: Early hydropower site on the Deschutes River, located off Highway 126 on White Rock Road west of Redmond. Site includes dam, penstock and powerhouse. 15-12-14 TL 901. [Emphasis added] In addition, the Comprehensive Plan includes the following note at the conclusion of the list of sites. Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. Based on the Goal 5 inventory note, it is reasonable to conclude that only the dam, penstock, and powerhouse of the Cline Falls Power Plant site are the protected historic structures because they are the only structures listed. However, the historic resource is listed as a hydropower site as if referencing the entire site and taking into account all significant aspects of the facility. Therefore, another interpretation is that the resource includes a dam, penstock, and powerhouse but it is not limited to those structures. The Comprehensive Plan further provides the notion that the inventory of historic resources is old and contains incomplete information. A power plant does not function alone with just a dam, penstock, and powerhouse. As noted in the Historical Research Associates (HRA) memorandum dated April 9 2013 and submitted into the record by PacifiCorp, the original power plant included a dam, intake gate, channel, wood box flume, penstock, waterwheel, pump station, generator, transformers, and transmission lines. As noted by SHPO staff, "a power plant... is a collection or ensemble of components." The collection of components includes the 1943 reconstruction of the site which added a new power plant, new wood flume, transition structure, steel penstock, "two tainter gates to a tailrace" (water discharge components), and updated operating equipment including "water level controllers, governors, pulleys, switchboards, and transformers. ,4 The original dam a The transformers were installed on a wood structure built on a concrete pad, which was located next to the powerhouse. This area is sometimes referred to as the "switchyard." The nature of a switchyard continuously changes based on new or upgraded technology. However, according to SHPO, they can be a contributing aspect to the power plant. DR-13-6, Deschutes County CDD Page 9 remained with the new components of 1943 but the original pump and waterwheel, wood flume, penstock, and powerhouse were removed-r' The issue before the Commission is whether the plain language of the code limits the resource to noted structures or applies to the entire site. Based on the record, staff recommends the Commission consider the following options. Dam Penstock and Powerhouse Using the plain language of Goal 5 Inventory, the historic resource includes the dam, penstock, and powerhouse as the designated structures, regardless of age. Although the history indicates the original penstock and powerhouse were removed in 1943, the literal interpretation of the language would indicate that the dam, penstock, and powerhouse are the protected resource. The Oregon Land Use Board of Appeals (LUBA) found in Paulson v. Washington County, 40 OR LUBA 345 (2001) that if the a building or structure was not described in the County's inventory as a significant or contributing aspect of the overall resource, then it would not be subject to review. If this interpretation is taken, any exterior alteration or demolition of the three listed structures will require Commission review as required in DCC Section 2.28.090, Exterior Alteration and New Building Restrictions. Dam Based on the history of reconstruction in 1943, the only structure that remains is the original dam. The penstock and powerhouse were removed prior to the 1943 reconstruction. Furthermore, the existing 1943 structures are probably not considered "a classic example of an early hydro-electric site." PacifiCorp argues that since the Goal 5 Inventory lists the historic resource as the dam, penstock, and powerhouse and the established date of 1912, then the restrictions would only apply to the original dam. Any exterior alteration or demolition of the dam would require Commission review as required in Section 2.28.090. Power Plant Site When the County surveyed potential historic sites, the survey documented the site and some structures (dam, penstock, and powerhouse). The survey, however, continually referenced the "site." Staff believes the language is broad and not limited just to the noted structures. According to SHPO, it would be irresponsible to "assess eligibility and determine treatment of a historic resource" based on inventory forms that were 20 or more years old. They also note that an assessment of eligibility of a property comes with the knowledge that change will occur and thus a survey should include status, integrity, age, and [our] perception. Since the County inventory refers to both the "site" and noted structures, staff cannot recommend following the findings in Paulson v. Washington County without first determining what the County inventory is saying. 5 The photos included in the HS-90-99 and ESEE files are of post-1943 reconstruction of the power plant. DR-13-6, Deschutes County CDD Page 10 Staff cannot reconcile the inconsistencies found in the County records. However, staff concludes that past review of the site took into account status, integrity, age, and perception. IV. CONCLUSION AND RECOMMENDATION: Based on the evidence in the record submitted to date, staff recommends the Commission recognize the entire site of the Cline Falls Power Plant as the protected historic resource based on the broader language in the ESEE analysis and the original intent to preserve the industrial and economic history of the County. 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W O F~ N En 0 Q W u a) Ici o C, IS4 00 o p v~ U u er, U U U ;.4 o O Q y ~ N v 7:1 Q) O • O • v1 • ri U U cd U U 4 ;y n U Z 7d w ~ 4-j 4-J 0 ON, CNA C) r- T--4 u aN 75 0 C) o 4-j U N r"O '4-J c © y a~ 4-J O a~ a~ U b U ;-4 Z Q O w O 4--+ o v, • ~ • ~ b~,A o ~ ~ y pQ ~ O ~ U O ~ O O 4a y, • i-' W p 'v ) ~ 4-j ~ ~o U w va w rn ~ w w s~ • • • • • • • ~z w O ^d If -I u IV. u rO v a N E 0- 0 N N 4,J C/a O v 0 a 56 _a« rrr. vin- ,*t, w f C~ ^ r"1 • ~F ra 4 C rl te.~ z(5 / Ia DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue, Bend, OR 97701 Telephone (541)388-6575, Fax (541)385-1764 CODE ENFORCEMENT COMPLAINT FORM Instructions: In order for you complaint to be accepted, you must fill in all questions completely and sign on the back of this form. It is important that you supply as much detail as possible. If you have any questions, call code enforcement at 541-385-1707. Date: February 5, 2013 Address of Violation(s): Cline Falls Power Plant, SW 74th 151211 D001100 City: Redmond State: Zip: Nearest Cross Street: - Cline Falls Hwy Subdivision: Residents Name: PacifiCorp Phone: -541-548-6047 (Coid's p#) Owner of Property: Central Oregon Irrigation District Address: 1055 SW Lade Ct City: Redmond State: OR Zip: . 97756 Details ,of Complaint (be specific): Lessee PacifiCor removed switchyard,-power-poles, and owerlines from site without obtaining necessary permits from Deschutes County, Lessee may have made other changes to site which are unknown to Lessor (Central Oregon lrri~ation District) and which may also be violative. ARE THERE ANY KNOWN OR SUSPECTED HAZARDS AT THIS LOCATION? IE: Dangerous or unstable residents, dogs, criminal activity, etc. ( X) YES ( ) NO ( ) UNKNOWN If yes, please identify the hazard in detail: Soil Contamination, per PacifiCorp's repared conditional use permit application for fill and removal of seven cubic Ards of soil at subject site. Continue on reverse side CE Complaint Form Rev. 04111 Page 11 Exhibit / C•o The top portion of this side is required and must be completed. . . Complainant: (Your Name) Name: Steve Johnson, General Manager, Central Oregon Irrigation District Address: 1055 SW Lake t City: Redmond State: OR Zip: 97Z56 Daytime phone M (541) 548-6047 Can violation be seen from the road? ( ) Yes (x) No If not, what is the best inspection point? Site Is the Complainant a neighbor? ( ) Yes ()d No The complainant gives the Code Enforcement Technician permission to use their property for viewing the violation: (X) Yes ( ) No If not, why: Will you, the complainant, testify in court, should the need arise? ( Yes ( ) No (Note: your complaint may not be accepted without your being available to testify.) If you have photos, or other related information, that can be used as evidence of this violation, please submit them with this form. The submitted documentation will not be returned and will become part of the complaint file. By signing below, I declare, under penalty of perjury, that all information submitted on and with this ue and accurate to the best of my knowledge.' ~ r -OMP NT DATE Thank you for assisting in making Deschutes County a better place to live. Your Code Enforcement Staff FOR OFFICE USE ONLY Subdivision: Lot: Block: CE Complaint Form Rev. 04/11 Page 12 1 i f _f c ~ o \ tr ! 'jI' - L :e HURLEY RE, P.C. ATTORNEYS AT LANN T 747 SW Mill View Way Bend OR 97702 Phone 541.317.5505 Fax 541.317.5507 www.hurley-re.com Deschutes County Historic Landmarks Commission Cynthia Stnidt, Planner 117 NW Lafayette Avenue Send, OR 97701 Daniel C. Re Christopher D. Hatfield Elizabeth A. Dickson Gary R. Johnson Brian J. MacRitchie Ryan P. Correa Robert A. Stout Alan N. Stewart Linda A. Ratcliffe Meagan E. Masten James V. Hurley (1934-2012) April 11, 2013 RE: Deschutes County Historic Landmarks Commission Hearing May 6, 2013 COID Submittal of Historic Documents regarding Cline Falls Hydropower Project Dear Ms. Smidt and Commissioners: QIINT APR 2 2 2013 Our offices serve as general counsel to Central Oregon Irrigation District ("COID' and we represent them in that capacity with this submittal. COLD is the title owner of the Cline Falls Hydropower Site and also submitted the code enforcement complaint to Deschutes County regarding possible violation of county code by alteration of an historic site, Cline Falls. COLD acknowledges that it is highly unusual for a property owner to submit a code enforcement complaint on its own real property. However, COLD has not controlled the site since it has owned it for some eighty years. It has been leased to PacifiCorp and its predecessors for the construction, maintenance, and operation of a hydropower project at two separate locations on the Deschutes River. COID filed the complaint when it had notice that PacifiCorp made changes to the site, and became concerned that a violation of County Code may have occurred. COID immediately notified PacifiCorp of the possible violation and requested that it stop all potentially violative activity on site. When PacifiCorp declined to consider COID's concerns, COID filed the complaint. COLD and Deschutes County have cooperated on many joint efforts over the years and COLD values that relationship highly. The District does not offer an interpretation of the County's code, neither as to 1992 legislative intent, nor as to the Historic Landmarks Commission's current interpretation of that code. COID requests that the County, by this Commission, provide guidance as to what COLD or its tenants may or may not do on the designated site under current rules. The District has investigated the history of the site for its own purposes as it considers the highest and best use for the site going forward, now that the 1.00 year lease period with PacifiCorp is over. The records that the Commission might find pertinent are included here for the Commission's review as well. Included in these documents are photos and articles from old newspapers. It appears from these writings that the power site was the subject of incorporation by Cline Falls Power Company in 1901 by Lord, Hurlburt, Harris, and Hammond. An intake and flume were constructed some time between 1901 and 1907, as evidenced by an article in the Oregonian published 12/24/1907. That article noted that dead manager Ed Hulbert (sp with Hurlburt above?) was found with a bullet in his head at the intake to the flume. Work appears to have commenced on the power plant itself in 1910, as noted in the Oregonian of 1/1/1910. Finally, the original Cline Falls Power Plant appears to have been finished in June, 1911, pursuant to the Madras Pioneer of 6/2211911. Also included is a binder with authenticated photographs that may be helpful to the Commission's understanding of the site. COID understands that the matter before the Commission is whether an alteration of the Historic Site occurred. Investigation of the site shows that there have been many changes since its original construction in the early 1900's. For example, the original site of power generation has been moved north some 200 feet by PacifiCorp in 1942-1943 presumably to capture Exhibit CJ l' ~ 0- more hydrostatic head in the falls. The original dam has been extensively changed, utilizing new construction methods and lengthening and raising the structure itself to increase the amount of water diverted to the turbines. COID does not know precisely when these changes were made, but has retained engineers to investigate the integrity of the site and they have found mixed construction methods and techniques throughout the diversion structure, most of which were not available in 1911. Photos show these changes as well, such as Source 7 in the binder, showing the 1943 changes in the 1950 photo included there. COID understands that the site's age is not at issue here. Whether it is properly an historic site was determined in 1992 and was not appealed. If a party wanted to change the inventory classification now, it would do so by separate application, not submitted at this time. At issue is whether PacifiCorp altered the site in violation of the County Code. Only the County can determine what qualifies as alteration, and COID has been unable to locate prior decisions to give guidance to the County's interpretation. It appears this is a case of first impression for the Commission. As to the specific area included in this "alteration" decision, we have reviewed the Ordinance No. 92-019 which amended the ESEE Determinations on Historic Sites. Pages 7-8 of this ordinance describe: • a "Hydrosite" as the Existing Use, 0 note in the conflicting use determination that "site alteration is the primary conflicting use," ■ discuss "site development" in the economic use analysis, • note that the site is "part of the industrial and economic history of the County," • focuses on the Falls in the social analysis by the Send Chamber of Commerce, • observes in the Environmental analysis that "The site is within a Scenic Waterway," and concludes that "the site should be protected-" From this reading, we conclude that the County intended to protect the site as historically significant, not just the wooden structures. For these reasons, COID asked PacifiCorp to stop making changes on the site. COID will attend the May hearing, and remains open and cooperative with the County in its efforts to interpret its Code. Sincer ly, Elizabeth A. Dickson EADmoh Cc: client g~~sK 0 N S U May 3, 2013 Ms. Cynthia Smidt Deschutes County Planning Division 117 NW Lafayette Avenue Bend, Oren 97701 R-OCK: T I N G SUBJECT: CLINE FALLS DAM EVALUATION AND AGE RECONNAISSANCE Gear Ms. Smidt: I have been retained by the Central Oregon Irrigation District (COI) to evaluate the condition of the Cline Fails Dam and along with that, its age. I am a Civil Engineer licensed in the State of Oregon, and have 25 years of experience with water resources projects including river diversion structures similar to the pine Falls Dam. I performed a site visit on May 3, 2013 and perfomned personal observation and took several photographs. Based upon Photo 1 and Photo 2 (see below) obtained from the Deschutes County Historical Society, I see no evidence of a dam structure in the Deschutes River above the original Cline Falls Power Plant (Photo 1), yet in Photo 2, I see dear evidence of a dam above the same plant. This indicates that the power project constructed power buildings for the purpose of generating power, and then following construction of those structures, installed a dam in the Deschutes River, likely coincident with the timing of the photograph, dated December, 1921. Based upon my field observations on May 3, 2013, I observed a submerged wooden structure laying in the river bottom upstream of a cone dam structure (see Photo 3). My review of Photo 2 indicates features of wood-based head wall and dam construction. Additionally, the flow pattem over the dam structure shown on Photo 2 is indicative of a continuous weir, differing from the concrete dam and buttress-column structure that exists today. Given the evidence of a wooden dam structure including 14-inch thick dam wail, timber footing and timber columns, I believe that the wooden dam structure was likely the original dam structure constructed at the site and as indicated on Photo 2. Photos 3 and 4 indicate features of the current concrete buttressed dam structure. This structure includes stop-log slots, a newer galvanized steel catwalk and crane rail system, occupational safety tie-off mechanism and other modern features. Photo 4 indicates that this concrete dam structure was poured later than the rock and grout fish passage channel construction, as the dam concrete was dearly formed up to and poured to the older fish passage wall. Photo 5 (1950) indicates an upgraded power project with an extended flume, similar to the current orientation of site features. This photograph also indicates that the subject dam has similar features to the 1921 phonograph (Photo 2). This would indicate that the concrete dam structure that exists today was constructed at some time following this 1950 vintage photograph. Clearly, many features do not show up in Photo 5 including the crane system and towers that exist on site today nor does It show flow streamlines that would likely be affected by the concrete buttresses on the newer concrete wail. In its August, 1950 report to Washington D.C., the U.S. Fish and Wildlife Service, in its "Survey of 20380 Hallway Road Suite. #1 Bend, Oregon 9;101 EXHIBIT PAGE (541) 480-6257 (866) 591-1513 Fax Exhibit the Columbia River and it Tributaries, Part V Scientific Report No. 38, P. 6" indicated that Cline Falls has a "...drop of about 30-Feet plus an additional 3-Feet created by a wooden splash dam across the crest". This is dear .recorded evidence that the original wooden dam was in place at Cline Falls in 1950, consistent with the photographic observations performed as indicated above. Photo 6 and Photo 7 indicate the modem galvanized catwalk system for access to stop-bj slots (to raise or lower river elevations), and a "PadfKmrp" marking on the galvanized structural steel. Such marking is a common practice used by manufacturers to note the recipient of an order. Photo 6 also indicates a modem occupational safety tie-off device used to protect workers from fall injury. Photo 8 indicates a "Pacific-Power-and-Light" benchmark found integral with the concrete intake structure wail indicating a date of 1942. Given review of these photographs and observation of the site, it is my opinion that the original dam was constructed for the original One Fails Power Plant coincident with the plant circa 1921, and that dam was a wooden structure. It is my further opinion that the concrete dam structure that exists today was constructed after the upgrade to the power plant circa 1942. Given that Photo 5 was taken in 1950, and given the evidence by report filed with the United States by the USFWS, it is certain that the concrete dam structure was built after 1950. Lastly, it is apparent that additional modifications and changes have been made to the dam structure. This is evidenced by the existence of galvanized steel elements, extended stop log guides, crane rail not showing up in any historical photographs reviewed, and modem tie-off tensioning equipment and signage. In my opinion, these additions may have been made in the last 30-years. The above opinions are based upon the review of historical documents and visual observation. Additional evidence may be developed through the use of forensics such as concrete sampling, laboratory testing and dating, if necessary. Should you have any questions on this letter, please call me. ST.~n rely, K L L. . Crew, P.E. Principal J~r~La11M~t1~. G)13' 13 2 of 8 51312013 p■rr~Mis Photo 1 - Photograph Showing Power Plant and No Dam In River Upstream 3 of 8 51312013 Photo 2 Photograph Showing Same Plant With Dam in River Upstream photo 3 - Older Wooden Dam Structure In. Water to Right and Newer Concrete Structure to Left 4 of 8 51312013 Photo 4 Connection of Newer Dam Column to Existing Eishway Channel Rock and Grout Wall 5 of 8 51312013 6 of 6 51312013 Photo 5 Cline Falls Power Plant After Upgrades Circa 1942 Photo 6 New Galvanized Steel Structures Marked with Pacificorp - Modernization Features Incorporated Including occupational Safety Tensioned Tie-off Cable. 7 of S 51312013 Photo 8 - Pacific Power and Light Benchmark in Intake Structure Concrete -1942 pate Stamp 8 Of s 51'312013 Photo 7 - Pacificorp labeling on Structural Elements ATTORNEYS AT LA~V 747 SW Mill View Way Bend OR 97702 Phone 541.317.5505 Fax 541.317.5507 www.huriey-re.com May 20, 2013 Daniel C. Re Christopher D. Hatfield RECEIVED Elizabeth A_ Dickson " Crary R. Johnson IF Brian J. MacRitchie Ryan P. Correa MAY 2 0 2013 Robert A. Stout Alan N. Stewart - Linda A. Ratcliffe Meagan E. Masten James V. Hurley - (1934-2012) Deschutes County Historic Landmarks Commission c/o Cynthia Smidt, Planner 117 NW Lafayette Avenue Bend, OR 97701 RE: Deschutes County Historic Landmarks Commission Hearing, DR-13-6 COID Rebuttal Submittal (Post-Hearing Rebuttal Period) Dear Ms. Smidt and Commissioners: Our offices serve as general counsel to Central Oregon Irrigation District ("COID"), and we represent them in that capacity with this Record submittal. The intent of this letter is to address issues that have been raised throughout the course of the declaratory judgment proceeding, and preserve this reasoning for the Record. Legal Issue: PacifiCo Misstates Paulson Holding A licabili to Instant Case There are two reasons why PacifiCorp misstates the applicability of the holding in Paulson v. Washington County, 40 LUBA 345 (2001) to the instant case. First, the holding in Paulson applied a different (Washington County) statute which imposes more demanding standard than the Deschutes County statute for historic landmarks review. Washington County requires that each item to be protected be identified with precise particularity. Thus, when a Washington County designation did not include decorative entry arches in a designation, they were not covered. The higher standard resulted in a more stringent result. Because Paulson applied a different statute with a different standard, the holding relating to that particular standard is not applicable in Deschutes County. Second, PacifiCorp alleges that the principle of stare decises requires the Historic Landmarks Commission and the Land Use Board of Appeals ("LUBA") to adhere to the precedent they offer as binding! However, stare decises rarely applies to land use decisions due to the unique nature of land use decisions. In Reeder v. Clackamas County, 20 LUBA 238 (1990) LUBA stated the follo W*., ' Stare decises is Latin for "to stand by things decided." Exhibit -4/ 0-oIP Deschutes County Historic Landmarks Commission DR-13-6 Rebuttal Submittal Page 2 We have explained on several occasions that when this Board reviews land use decisions for compliance with relevant approval standards, it does not matter whether the challenged decision is consistent with prior decisions, if those prior decisions applied incorrect interpretations of the applicable approval standards. As we explained in Okeson v. Union County, 10 LUBA 1, 5 (1983) in rejecting petitioner's arguments that the county's decision in that case should be remanded for failure to follow prior decisions: "The issue here is whether [the challenged decision] meets all the applicable criteria based upon the facts in the record. There is no requirement local government actions must be consistent with past decisions, but only that a decision must be correct when made. Indeed, to require consistency for that sake alone would run the risk of perpetuating error." See also BenjFran Development R Metro Service Dist., 17 LUBA 30, 46-47 (1988); S & JBuilders v. City of Tigard, 14 LUBA 708, 711.712 (1986). (Emphasis added.) As the cases above illustrate, LUBA does not require local governments to follow even their own past decisions. LUBA has consistently held that they are looking for the local government to make an accurate interpretation based upon the facts unique to each case. Because the Commission here is applying a different statute and is not required to follow past precedent, the Commission is not required to follow the holding stated in Paulson. II. Due Process Claim Inapplicable in Instant Case PacifiCorp alleges that their Due Process rights have been violated. The Fourteenth Amendment of the United States Constitution provides (in part) that "no state shall make or enforce any law which shall deprive any person of life, liberty, or property, without due process of law...." Procedural Due Process generally requires that notice, a hearing and an opportunity to be heard be given before one's life, liberty or property is taken- A procedural due process claim is defeated when a meaningful opportunity to be heard is provided. Mathews v. Eldridge, 425 U.S- 319 (1976)_ In this case, PacifiCorp was provided notice, a hearing and an opportunity to be heard in 1992 when the structures were designated. Because PacifiCorp was afforded these procedural safeguards and chose not to take advantage of them, they can no longer successfully assert a claim that their Due Process rights have been violated. Their right to so assert has passed. Furthermore, even if PacifiCorp's Due Process nights were violated, Deschutes County is legally entitled to interpret legislation so long as there is a rational basis for doing so. The rational basis test requires that the interpretation be rationally related to a legitimate purpose. US v. Carlton, 512 U.S. 26 (1994). In the instant case, the declaratory judgment request is rationally related to the legitimate purpose of the County. The County's purpose is to determine the extent of the designation by Ordinance 92-019. Because the declaratory judgment request is rationally related to a legitimate purpose of interpreting legislation, Deschutes County is not acting unconstitutionally. PacifiCorp's Due Process rights have not been violated. PacifiCorp loosely alleges its Due Process rights would be violated if Deschutes County interprets its legislation in a way that is adverse to PacifiCorp. This argument seems to claim that if a government interprets its laws with a result that's adverse to a party, then their rights are violated. Interpreting laws is a necessary function of government. If governments were prohibited from interpreting legislation, society and courts would be prohibited from applying laws and governments would not be able to the Deschutes County Historic Landmarks Commission DR-13-6 Rebuttal Submittal Page 3 pass legislation applicable to more than one instance. It is a necessary and basic function of government to interpret laws. The County's interpretation of Ordinance 92-019 does not violate PacifiCorp's Due Process rights. III. PacifiCorp Damaged Even Undisputed Structures PacifiCorp admits that at least the structures were protected.2 The structures include the dam, the powerhouse and the penstock. The Merriam-Webster Dictionary defines a penstock as "(1) a sluice or gate for regulating a flow (as of water) and (2) a conduit or pipe for conducting water." PacifiCorp cut large, rough holes in the floors of the two penstock channels. Therefore, PacifiCorp damaged structures they admit were protected. PacifiCorp may argue that they merely damaged the interior of the penstock. However this argument fails because they are prohibited from damaging the "integrity" of a protected resource- The Deschutes County Code Section 2.28.090(A) explicitly protects the "integrity" of historic resources. It states: A. Except as provided in DCC 2.28.090(1), no person may demolish or alter any historic or cultural resource in such a manner as to affect its exterior appearance or integrity, nor may any new structure and/or building be constructed in an historic district, unless a certificate of approval has been issued by the Landmarks Commission and the County. [Emphasis added. When PacifiCorp cut holes in the floor of the old, wooden penstock channels, they affected the "integrity" of the admittedly protected historic resource. COID submits this letter to aid in the Commissioners thoroughly understanding of the legal issues which have been raised throughout the hearing, and thanks the Commission and staff for your time and consideration of this matter. Sincerely, Isl E~?;,` A_ Elizabeth A. Dickson EA.D/hoh Cc: client LAData\Liz\CL1ENT FILFS1C1Coid\CLINE FALLS-102.395\Code ComplainARebuttal Letter to Hist Commn 5.201013.doex z pacifiCorp Supplemental Submittal, May 13, 2013, page 2, item 8, "Are the dam, the penstock and the powerhouse protected historic resources? Yes. When the Board passed Ordinance No. 92-018 and adopted the County inventory of historic resources, the Board stated that the Cline Falls site included the dam, the penstock and the powerhouse." U ~ O N ' } -0 N. 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See Hegele v. Crook Cnty.,190 Or App 376, 381 (2003): (1) Create an inventory - OAR 660-016-0000 (2) Identify conflicting uses - OAR 660-016-0005(1) (3) Conduct an ESEE analysis - OAR 660-016-0005(3) (4) Develop a program to protect designated resources - OAR 660-016-0010 The Oregon Land Use Board of Appeals (LUBA) and the Oregon Courts have made it clear that this four step process is sequential and that it is necessary for a local government to first identify with particularity the protected resource before the local government can meaningfully move on to identifying conflicts, conducting an ESEE, and developing a protection program. See Hegele v. Crook Cnty.,190 Or App 376, 381-382 (2003) (describing the four-step Goal S process); Dept of Land Conservation & Dev. v. Yamhill Co., 17 Or LUBA 1273, 1279 (1989) (explaining Goal 5 process in context of a historic resources designation prior to the 1996 adoption of OAR 660-023). The process of identifying the protected resource in a Goal 5 inventory is distinct from the ESEE or other steps. See Hegele v. Crook Cnty., 44 Or LUBA 357, 365 (2003) (ESEE analysis plays no role in the determination of whether a resource should be placed in the County's Goal 5 inventory). As a consequence, identification of the protected resource must occur in the Goal 5 inventory itself (or in a document that has been incorporated by reference into the Goal 5 inventory). Incorporation by Reference LUBA has articulated standards for incorporation of information by reference in land use decisions. LUBA's test is found in Gonzalez v. Lane Co., 20 Or LUBA 215, 257-259 (1992) which states that the decision maker must expressly and clearly Page 1 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 indicate an intent to incorporate a document into the land use decision and must expressly and clearly identify the document or portions of the document so incorporated. With regard to the Goal 5 inventory of historic resources adopted by the Board in 1992 (through passage of Ordinance No. 92-018), the 1992 Board did not make any statement that it was incorporating any document by reference-not the prior surveys of the historic sites, not the maps associated with those surveys, and not the ESEE analysis. So when determining which resources were designated by the 1992 Board, the current Board must consider only the language of Ordinance No. 92-018 and the language of the inventory itself. Required Content of the Inventory Per OAR 660-016-0000(2): A "valid" inventory of a Goal 5 resource must include a determination of location, quality, and quantity of each of the resource sites.... For site-specific resources [like historic sites], determination of location must include a description or map of the boundaries of the resource site and of the impact area to be affected. (emphasis in original). LUBA and the Oregon Courts have elaborated the requirements of this rule and have made it clear that in order for a designation to be "valid" the Goal 5 inventory must describe (or map) each designated historic site or structure with particularity. This particularized description in the inventory becomes "an indispensible prerequisite to conducting the rest of the Goal 5 process." Friends of Forest Park v. Land Conservation & Dev. Comm'n,129 Or App 28, 30 (1994), citing Columbia Steel v. Portland, 314 Or 424 (1991). In other words, a structure or site is not designated-and is therefore not a protected Goal S historic resource-unless and until the structure or site has been mapped or described with particularity in the Goal 5 inventory (or a document expressly incorporated in the Goal 5 inventory). If it is ambiguous whether a site or structure has been mapped or described- then the site or structure is not validly designated for purposes of the Goal 5 process and the site or structure is not a protected historic resource. Page 2 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 Language of the Inventory The language of the inventory is concise: Cline Falls Power Plant Early hydropower site on the Deschutes River, located off highway 126 on White Rock Road. Site includes dam, penstock, and powerhouse. 15-12-14 TL 901 INVENTORY NOTE: Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. The inventory has no map. The inventory does not describe any site boundaries. And the only structures described with any particularity (as required by the Goal 5 regulations) are the dam, the penstock, and the powerhouse. There is no ambiguity. The 1992 Board stated that, unless otherwise indicated, the inventoried site-in this case the Cline Falls Power Plant-includes only the designated structure-in this case the dam, penstock, and powerhouse. Oregon State Historic Preservation Office (SHPO) Agrees This appears to be the conclusion that Oregon SHPO drew in providing comments during for the hearing before the Landmarks Commission. SHPO stated: [I]t doesn't surprise me that the Cline Falls Power Plant was recorded in a more piecemeal way back in the early 1990s. Power plants built or improved during WWII were just turning fifty years old at that time, and nobody knew how to identify or evaluate them; even SHPO was struggling with them. Today we know loads more about properties like that [i]fthat site were documented today, all features associated with the plant would be included within the boundary. March S, 2013 email from Chrissy Curran, Associate Deputy State Historic Preservation Officer, to Cynthia Smidt. In short, Oregon SHPO reads the 1992 designation of Cline Falls Power Plan as protecting less than all of the structures at the location (e.g., Cline Falls was recorded in a "piecemeal way back in the early 1990s") and Oregon SHPO thinks that if the hydro project were being designated today, the Board should designate all structures at the location (in contrast to the piecemeal designation that occurred in 1992). Page 3 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 Staff and the Landmarks Commission Also Agree It even appears that Planning Staff and the Landmarks Commission, when they confine their review to the language of the inventory, agree that it is reasonable, or strictly correct, to conclude that the only structures or sites that are described with particularity in the inventory are the dam, penstock, and powerhouse. In its Staff Report in support of the Landmarks Commission hearing, the Planning Division stated: "Based on the Goal 5 inventory note, its is reasonable to conclude that only the dam, penstock, and powerhouse are the protected historic structures because they are the only structures listed." May 6, 2013 Staff Report at 9. And, in its declaratory ruling, the Landmarks Commission stated: "As noted by the Planning Division, under this strict interpretation, one could conclude that the dam, penstock, and powerhouse are the only protected resources listed." July 2, 2013 Landmarks Commission Decision at 7. Finally, in its recent Staff Report in support of this de novo hearing, the Planning Division stated: "A conservative interpretation of the language defines the site to include only the dam, penstock, and powerhouse." October 15, 2013 Staff Report at 4. But Staff and the Commission are troubled by the use of the term "site" in the designation. Apparently they feel the term connotes a possibility that the 1992 Board intended to protect more than just the dam, the penstock, and the powerhouse. As a result, Staff and the Commission look to the ESEE and find that the ESEE repeatedly refers to the project as a "site." Even though the only structures identified by name in the ESEE are the dam, the penstock, and the powerhouse, the Staff and the Commission concluded that the repeated use of the work "site" in the ESEE demonstrates that the 1992 Board intended to protect all structures at the Cline Falls location. See, e.g., July 2, 2013 Landmarks Commission Decision at 7-9; June 12, 2013 Staff Memorandum at 3-5; May 6, 2013 Staff Report at 9-11. There are three fatal problems with this approach. First, nowhere in the ESEE does the 1992 Board state with particularity that it intends to protect more than the dam, penstock, and powerhouse. Second, as discussed above, it is improper for the Staff, the Commission, or the current Board to look to the ESEE to find the required description of the resources protected by the inventory. If the inventory fails to unambiguously describe a protected resource, then that resource is not protected. Third, the inventory note specifically states that, unless otherwise indicated, an inventoried site includes only the designated structure. So there is no reason to assume that the use of the term "site" in the designation for Cline Falls means anything more than the designated dam, penstock, and powerhouse. Page 4 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 The 1992 Board did not designate or describe the "entire site": When the current Board reviews the language of the inventory, it is clear the 1992 Board knew how to designate an entire site and simply did not do so with regard to the Cline Falls Power Plant. For example: The designation for Camp Polk Military Post Site states: "Site includes entire tax lots, listed as follows, 14- 10-34 TL 100, 300." The designation of the Maston Cemetery states: "Site includes the gravestones and memorials and entire tax lot, identified as 22-09-00 TL 1800." The designation of the Tethrow House & Crossing states: "Site includes house and entire tax lot." These last two examples are particularly noteworthy because they demonstrate that the Board not only knew how to designate an entire tax lot, as it did with Camp Polk, but when it wanted to designate particular structures and the entire site it knew how to do so. But the 1992 Board did not state that the Cline Falls Power Plant included the dam, the penstock, the powerhouse and the entire tax lot. Rather, the 1992 Board described only the dam, the penstock, and the powerhouse. Examples of the 1992 Board designating a partial site The 1992 Board also demonstrated that it knew how to designate large parts of a site but less than the entire tax lot. For example, the designation for Camp Polk Cemetery describes 2.112 acres of land in metes and bounds and states the designation includes the land and all gravestones and memorials on the described land. As another example, the designation for the Allen Ranch Cemetery describes the protected resource as a 20' by 40' fenced cemetery plot, two marble gravestones, two wooden markers. But the 1992 Board did not state that the Cline Falls Power Plant designation included all structures within a designated area of land less than the entire tax lot. Instead, the 1992 Board only described three structures with any particularity-the dam, the penstock, and the powerhouse. Summary Under the Goal 5 process that applied when the 1992 Board designated the Cline Falls Power Plant as a protected historic resource, the 1992 Board needed to map or describe with particularity each structure or the boundaries of each site that was being protected. If the Board did not map or describe a structure or site boundary Page 5 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 with particularity in the inventory itself, then the structure or site is not a validly designated and protected historic resource. Review of Ordinance No. 92-018 shows that it does not expressly incorporate the ESEE or any other document, so the only place the current Board can legitimately look for the map or description of designated resources is the language of the inventory itself (and the language of Ordinance No. 92-018). Review of the language of the designation for Cline Falls Power Plant, shows that there are no site boundaries mapped or described at all and that there are only three structures that are described with any particularity: the darn, the penstock, and the powerhouse. So the current Board is left to conclude that the only protected historic resources at the location are the dam, penstock and powerhouse. Staff's Recent Theories In its recent October 15 Staff Report, the Planning Division acknowledges that "a conservative interpretation of the language defines the site to include only the dam, penstock, and powerhouse." But the recent Staff Report also proposes, for the first time, three other sources of information on the scope of the designation. Title of the Designation The Staff Report suggest that perhaps the title of the designation-"Cline Falls Power Plant"-demonstrates that the 1992 Board designated all structures at the location as protected resources. But this suggestion does not survive scrutiny. First, PacifiCorp could find no precedent holding that titles on resource designations should be interpreted as having substantive effect. Second, if the 1992 Board really intended to protect the entire site, and the title of the designation is the way the Board demonstrated that intent; then you would expect the Board to use the word "Site" in the title-just as it did for the Camp Polk Military Post Site. But the Board did not. Third, the actual title-"Cline Falls Power Plant"-doesn't describe every structure at the location. Indeed, in the world of hydroelectric project engineering, the term "power plant" refers to the structure containing the turbines and generators. In this case the powerhouse. The term "power plant" does not refer to the dam, conveyance systems such as penstocks or flumes, nor to any of the other ancillary structures that can occur at a hydroelectric project. Finally, the title of the designation provides no particularized description of the boundaries of a site and no particularized description of any structure other than, arguably, the powerhouse. Page 6 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 For all of these reasons, reference to the title of the designation does not allow the current Board to legitimately conclude that the 1992 Board validly designated every structure at the Cline Falls location. Ordinance No. 94-030 Staffs second new concept raised in its October 15 Staff Report is that the ESEE was somehow incorporated into the inventory by Ordinance No. 94-030. But this suggestion also collapses upon scrutiny. Ordinance No. 94-030 is brief. It notes that the County has adopted a Goal 5 inventory of historic resources pursuant to statewide planning Goal S. And it notes that pursuant to Goal 5, the County has analyzed conflicting uses and ESEE consequences. The ordinance notes that each ESEE has been made a part of the resource element of the County's comprehensive plan and includes a prescription to achieve the results indicated by the ESEE determination. Finally, the ordinance notes that the ESEE prescriptions for each site are intended to stand as a prescription for the manner in which the historic resources at each site are intended to be protected. There is nothing surprising about this. The ESEE-step in the Goal 5 process is supposed to result in prescriptions for how to balance protected resources and conflicting uses. Nothing in Ordinance No. 94-030 states or suggests that the ESEE has been incorporated as a part of the inventory and can be validly looked to when determining which structures have been designated. Not only does the ordinance not say this, but such a result would make no sense because 94-030 was adopted two years after Cline Falls Power Plant was designated a historic resource. Impact Areas Staffs third and final new concept from the October 15 Staff Report is its suggestion that the second sentence of the Inventory Note might somehow modify the meaning of the first sentence. But this concept is also unconvincing. The second sentence says: "No impact areas have been designated for any inventoried site or structure." The Goal 5 process requires a local government to consider whether a designated resource has an "impact area" - that is an area beyond the designated resource that may be impacted by (or which may impact) the designated resource. See OAR 660-16-005; Nathan v. City of Turner, 26 Or LUBA 382, 393 (1994); Eckis v. Ginn County, 19 Or LUBA 15, 33 n.15 (1992). Page 7 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 In Exhibit D to Ordinance No. 92-018, the 1992 Board made an express finding about impact areas. The 1992 Board stated: Impact Area 11. The Board finds that historic resources do not by virtue of their historic status have off-site impacts. Accordingly, it is not necessary to designate an impact area for such resources. The Board finds in addition that adjacent land uses and resources do not affect the physical integrity of the historic resources listed in the inventory and that consequently there is no impact area surrounding the sites themselves. Nothing about the 1992 Board's decision that none of the designated historic resources have impact areas suggests that the 1992 Board designated every structure at the Cline Falls location. It is not clear how the second sentence of the Inventory Note-which simply reiterates the 1992 Board's determination that no designated resource has an impact area-can be interpreted to allow the present Board to conclude that the 1992 Board designated and described with particularity all structures at the Cline Falls location. The present Board should reject any suggestion that the second sentence of the Inventory Note modifies the first sentence of the note. The two sentences address different issues. The Switchyard was not Unique or Historically Significant While it is not directly relevant to the question of which structures were designated as protected historic resources in 1992, it is useful for the current Board to note that the voltage transformation switchyard that PacifiCorp removed from the Cline Falls Power Plant in 2012 was not a historically unique or significant structure. In fact, the switchyard was not 50 years old in 1992 (and therefore would not have qualified as a historic resource if the 1992 Board had identified it as a candidate for protection). Moreover, there was nothing unique or historically significant about the switchyard. As PacifiCorp's Director of Asset Management, Jack Vranish has testified, the switchyard consisted of three transformers and associated support structures; almost exactly the same switchyard configuration can be found in hundreds of locations in Oregon; and the County did not lose a historically significant resource when PacifiCorp removed the switchyard. It would be bad policy and politics to expand the scope of the designation The Board should conclude that the only structures protected at Cline Falls are the dam, the penstock and the powerhouse because the applicable law requires such a Page 8 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 result. But the Board should also reach this conclusion because it is good policy and good politics. Sound public policy requires that property owners have clear notice regarding which structures located on their land have been designated as protected historic resources. Responsible actors, such as PacifiCorp, cannot be expected to comply with the County's historic resource protection requirements if the identity of the protected resources is unclear or ambiguous. The fact that Staff couldn't tell whether the switchyard or any structure other than the dam, penstock, and powerhouse is protected (which is why Staff initiated this declaratory ruling action) suggests that it would be unfair to hold PacifiCorp responsible for structures other than the dam, penstock, and powerhouse. It is fundamentally unfair to expand the inventory of historic sites only after an alteration has been made. COID was aware of PacifiCorp's intent to remove the switchyard well in advance of the removal. COID is also the complainant in this matter. If COID felt that the switchyard was protected, it should have alerted both PacifiCorp and the County before the removal. Its silence is further support for the idea that an expansion of the inventory at this late date is bad public policy. Sound political policy also dictates that the 1992 designation of the Cline Falls Power Plant was limited to the dam, the penstock, and the powerhouse. All property owners in Deschutes County should be concerned if their elected officials decide they can alter the scope of a historic resource designation 21 years after the designation was made and without additional public process. All prior written and oral submissions are incorporated by reference. PacifiCorp intends to incorporate all of its prior oral and written testimony, comments, evidence, argument and analysis from DR-13-6 and requests that the Board consider that material as part of its decision making in this de nova hearing. PacifiCorp's Assignments of Error In its notice of appeal, PacifiCorp made five principal assignments of error. In the October 1S, 2013 Staff Report, the Planning Division argues that each of PacifiCorp's assignments of error is without merit. PacifiCorp disagrees. PacifiCorp's first assignment of error was that the Landmarks Commission improperly relied on the ESEE when determining the scope of the 1992 Board's resource designation. Staff argues that the Commission's reliance on the ESEE was proper because Ordinance No. 94-030 Exhibit B states that the ESEE provides prescriptions for each resource site. As discussed above, nothing in 94-030 serves to Page 9 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 incorporate the ESEE into the inventory and it is therefore improper for the Commission or the current Board to look to the ESEE or any document other than Ordinance 92-018 and the Goal 5 inventory when determining which structures the 1992 Board described as protected historic resources. PacifiCorp's second assignment of error was that the Landmarks Commission ignored the plain language of the inventory. Staff argues that the Commission has found the language of the inventory ambiguous and was therefore correct to look beyond that language to determine what resources the 1992 Board intended to protect. As discussed above, a valid resource designation must be described with particularity in the inventory itself. If the inventory is ambiguous as to whether a site or a particular structure has been described and designated, then such site or structure is not validly designated. The 1992 inventory describes no site boundary at the Client Falls Power Plant and the only structures that are unambiguously described are the dam, the penstock, and the powerhouse. These are the only validly protected structures. PacifiCorp's third assignment of error is that there was no map or description of the "entire site' in the inventory and that the Commission was therefore in error to conclude that the protected resource at Cline Falls is the "entire site." Staff argues that the inventoried sites are based on historic resource survey forms and that these forms include maps, descriptions, and photos. Staff also argues that each ESEE includes a property description, tax map, and tax lot number. Staff argues that any deficiency in mapping or description should have been raised when the site was originally designated in 1992 and that PacifiCorp's assignment of error is an impermissible collateral attack on the 1992 decision. This is incorrect. The 1992 inventory did not incorporate by reference any of the historic resource survey forms and the information in those forms is therefore not part of the inventory description of each designated resource. Even if the inventory had incorporated the survey forms; the maps and descriptions in such forms are inadequate to unambiguously designated the "entire site" as a protected resource. Likewise, the ESEE was not incorporated by reference in the inventory nor does the ESEE contain an adequate map or description of the "entire site" as a protected resource. PacifiCorp's assignment of error is not a collateral attack. PacifiCorp's position is that the 1992 Board never stated (or described) in any way in the inventory that the "entire site" was being protected as a historic resource. There was no reason for PacifiCorp to appeal the 1992 determination because the language of the inventory did not purport to designate anything more than the dam, the penstock, and the powerhouse. Likewise, PacifiCorp had no reason in 1992 to challenge the non-incorporation of the historic resource survey forms or the non- incorporation of the ESEE. PacifiCorp's fourth assignment of error is that the Commission impermissibly amended the designation. PacifiCorp and the Commission agree that the inventory Page 10 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 unambiguously designated the dam, the penstock, and the powerhouse. But no other structures or sites are unambiguously described. PacifiCorp's position is that where the inventory is ambiguous, the Commission lacks the power to find a designation. The Staff and the Commission apparently disagree and believe that the Commission can, in 2013, decide that the entire site is protected when even the Commission admits that the 1992 does not unambiguously so provide. PacifiCorp's position is that the Commission and the current Board cannot take a purportedly ambiguous (and therefor invalid) designation, and by providing "clarification" in 2013 make the ambiguous designation valid. PacifiCorp's fifth and final assignment or error is that by finding the "entire site" to be protected even though the 1992 inventory contains no description of the entire site as a protected resource, the Commission has violated PacifiCorp's due process right to fair notice. Staffs response is that PacifiCorp had notice of the 1992 designation process and that "merely interpreting" the language of the designation at a later date is not a due process violation. Staffs response misses the point of PacifiCorp's assignment of error. PacifiCorp's argument is that the 1992 designation provided no notice that the "entire site" was protected. The Commission and the Staff believe the 1992 designation was ambiguous regarding the scope of the designation and they now purport to be "clarifying" that "ambiguity" but in so doing they impermissibly violate PacifiCorp's due process right to fair notice by determining in 2013 that the 1992 designation actually protected all structures at the site (even though it doesn't clearly say so). In other words, PacifiCorp would have had to somehow anticipate the Commission's 2013 "clarification" of the ambiguities of the designation in order to know what structures are protected. This violates PacifiCorp's due process rights and the violation occurs in 2013 not 1992. Conclusion Everyone agrees that the only structures that were unambiguously described as protected in the inventory are the dam, the penstock, and the powerhouse. Some argue that the present Board can look to the ESEE or to other sources and conclude that the 1992 Board intended to protected every structure at the Cline Falls location even through the 1992 Board didn't expressly say so in the inventory. The present Board should reject this approach. The 1992 Board demonstrated that it knew how to designate an entire site when that is what it intended (see, the designations for Maston Cemetery, and Tethrow House & Crossing which expressly state that certain structures and the entire tax lot are protected). But the 1992 Board did not state that the entire Cline Falls location was protected. While it is not necessary to conclude that there is any ambiguity in the 1992 designation, even if the Board does find that the designation was ambiguous, the Board cannot now "clarify" that ambiguity and 21-years after the fact expand the scope of the 1992 Page 11 of 12 PacifiCorp October 21, 2014 Comments Deschutes County BOCC File No. A-13-3 Board's designation. To the extent that the 1992 Board made an ambiguous designation, it made an invalid and unenforceable designation. The current Board should issue a declaratory ruling stating that the only unambiguously described and designated structures at the Cline Falls location are the dam, the penstock, and the powerhouse and that, as a result, the only protected historic resources are the dam, the penstock, and the powerhouse. Page 12 of 12 Bonnie Baker From: K.J.Phillips <rrconstdev@comcast.net> Sent: Monday, October 21, 2013 9:55 AM To: Tammy Baney; Tony DeBone; Board Subject: BOCC-10/21/13Bus.Mtg_5ubmittal re:Doc 530 10/21/2013- Business Meeting Submittal to Record TO: Deschutes BOCC RE: Doc 530 - Quitclaim Deed to COIC. df This is a strong objection to BOCC consideration of, or, signature approval of giving, by quitclaim deeds, any County parcels to COIC, and, it's a fraudulent representation with Staff statement... it's for/in 'public interest'. it's a gift that solely benefits an irrigation district and it's members. There is NO compelling reason to give, or free, or, transfer the 2 parcels at this time. Respectfully submitted, Kathy Phillips P.O. Box 1465 Corvallis,OR 97339 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, OCTOBER 21, 2013 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the official record of that hearing. 3. A PUBLIC HEARING and Consideration of Board Signature of Document 2013-530, a Quitclaim Deed to Central Oregon Irrigation District - Teresa Rozic, Property & Facilities Suggested Actions: Open hearing and take testimony; close hearing; make a decision if appropriate. 4. CONSIDERATION of Chair Signature of Document No. 2013-601, a Ballot to Cast a Vote Regarding the Amendment and Restatement of the Lower Bridge Estates Property Owners Association Declaration and. Bylaws - Teresa Rozic, Property & Facilities Suggested Actions: Move Board authorize Chair to sign the eight ballots IN FA VOR of adoption of the Amended and Restated Declaration and Bylaws. Board of Commissioners' Business Meeting Agenda Monday, October 21, 2013 Page 1 of 4 5. A PUBLIC HEARING and Consideration of an Appeal of the Declaratory Ruling regarding the Cline Falls Power Plant Historic Landmarks Designation - Cynthia Smidt, Community Development Suggested Actions: Open hearing and take testimony; close hearing; make a decision if appropriate. 6. CONSIDERATION of First and Second Readings and. Adoption, By Emergency, of Ordinance No. 2013-016, Amending County Code, to Amend the Urban Growth Boundary of the City of Sisters (Annexation of the Sisters Airport into the City of Sisters) - Kevin Harrison, Community Development Suggested Actions: Conduct first and second readings by title only; adopt by emergency. 7. CONSIDERATION of First and Second Readings and Adoption, By.. Emergency, of Ordinance No. 2013-017, Amending County Code, to Change the Zone Designation on Certain Property from Rural Residential to Urban Area Reserve (Annexation of the Sisters Airport into the City of Sisters) - Kevin Harrison, Community Development Suggested Actions: Conduct first and second readings by title only; adopt by emergency. 8. CONSIDERATION OF 2013-2015 Special Transportation Fund (STF) Formula and Special Transportation Operation (STO) Grant Allocations - Judith Ure, Administration Suggested Actions: Approve STFAC recommendations and authorize staff to submit corresponding application to ODOT required for the County to receive funds. CONSENT AGENDA 9. Board Signature of Document No. 2013-519, Amending Deschutes County Contract No. 2012-090 between Deschutes County Sheriff s Office and Aramark Correctional Services, LLC for a 2.13% Cost Per Meal Increase for Inmate Meals Board of Commissioners' Business Meeting Agenda Monday, October 21, 2013 Page 2 of 4 I O.Chair Signature of Document No. 2013-534 - Amending the Assessment & Taxation Software Program/Agreement Shared by 11 Counties 11. Board Signature of Document No. 2013-559, a Lease to La Pine Disposal & Recycling (Equipment Storage) 12. Board Signature of Resolution No. 2013-102, Appropriating a New Grant in the Public Health Fund. 13. Board Signature of Resolution No. 2013-110, Transferring Appropriations in the Public Health Fund. 14. Board Signature of Document No. 2013-587, a Relinquishment Deed from the Oregon Department of Transportation for Property Used for Public Road Purposes (off 12th St., Terrebonne) 15. Board Signature of Document No. 2013-606, Amending an Irrevocable Letter of Credit for a Development Agreement By and Among Deschutes County and Arrowood Development, LLC 16. Board Signature of Order 2013-048, Surrendering a Portion of Barclay Drive to the City of Sisters 17. Board Signature of Order 2013-047, Surrendering a Portion of Camp Polk Road to the City of Sisters 18. Signature of Letters Reappointing Alysha Gilpatrick, Jared Jeffcott, Doug Kelly and Rick Silbaugh to the Ambulance Service Area Advisory Committee, through June 30, 2016; Letters Appointing Nathan Garibay, Steve O'Malley and Jerry Thackery, through June 30, 2014; and a Letter Thanking Tom Wright for his Service. 19. Signature of Letters Thanking Adena Glassow for her Service and Appointing Mary Cronkhite to the Deschutes River Recreation Homesites Special Road District 46, through December 31, 2015. 20. Signature of Letter Reappointing Lauren James to the Vandevert Acres Special Road District, through December 31, 2015. 21. Board Approval of Economic Development Grant Awards: • Bend Chamber of Commerce - Leadership Bend Foundation - $1,500 • Deschutes Water Alliance - Voluntary Annual Dues - $2,000 • Hospice of Redmond - 2013 Festival of Trees - $3,000 Board of Commissioners' Business Meeting Agenda Monday, October 21, 2013 Page 3 of 4 Western Cave Conservancy - C. O. Caves Graffiti Removal Project - $2,000 Winning Over Anger & Violence - Winning Over Youth - $2,500 La Pine Blue Lightning Mat Club - Mat Club Facility - $800 22. Approval of Minutes: • Business Meeting: September 25 and 30, 2013 • Work Sessions: September 25 and 30; and October 2 and 7, 2013 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 23. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District (two weeks) CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 24. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District (two weeks) RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 25. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County (two weeks) 26. ADDITIONS TO THE AGENDA Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 388-6571, or send an e-mail to bonnie.bakcr(deschutes.org. 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), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2) (b), personnel issues; or other executive session items. Board of Commissioners' Business Meeting Agenda Monday, October 21, 2013 Page 4 of 4