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2015-65-Minutes for Meeting January 29,2015 Recorded 3/2/2015 DESCHUTES COUNTY OFFICIAL RECORDS CJ 7015,65 Tes NANCY BLANKENSHIP, COUNTY CLERK 1iV �UJ cp`Z COMMISSIONERS' JOURNAL 03/02/2015 08;23;16 AM o• I I II IIIIIIIIIIIIuIll 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 PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS THURSDAY, JANUARY 29, 2015 The purpose of the meeting was to conduct a public hearing regarding two appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement (File Nos. 247-14-000238-PS, 247-14-000274-A, 247-.14- 000452-A, and 247-14-000453-A) Present were Commissioners Tammy Baney, Anthony DeBone and Alan Unger. Also present were Tom Anderson, County Administrator; Nick Lelack and Anthony Raguine, Community Development; David Doyle, County Counsel; and approximately 100 other citizens, including representatives of the applicant and the media. Chair DeBone opened the hearing at 5:35 p.m. Anthony Raguine, Senior Planner in the Community Development Department read the opening statement and outlined the hearing procedures for the benefit of all attendees. In regard to conflicts of interest, the Commissioners declared as follows: Minutes of a Public hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 1 of 15 • Chair DeBone: Nothing to disclose - wanted to state that he has in the past met with the Niedzwiecke family and the opponent and applicant and no conflict is being declared • Commissioner Unger: Noted was informed of this item during a Work Session and has no other contact. • Commissioner Baney: Noted was informed of this item during a Work session on this item and has no other contact. No contest was heard from the public. At this time Chair DeBone opened the public hearing. Testimony will be heard with the request to speak no longer than 5 minutes. Anthony Raguine stated the Board will take public and written testimony regarding g land use compatibility or LUCS to transfer water right from Tumalo Creek to a pair of reservoirs on the KCDG properties (see the attached Power Point Presentation). Mr. Raguine explained the difference between Development Action vs Land Use Action in reviewing a Land Use Compatibility. Also reviewed was a guide on the Tumalo Irrigation District Land Use Compatibility Statement Hearings officer findings. (see document attached to this file) Elizabeth Dickson attorney with the Law Firm of Hurley Re is special counsel representing the Tumalo Irrigation District. She noted. Tumalo Irrigation District (TID) had filed the land use compatibility statement. Ms. Dickson gave a summary of the history of Tumalo Irrigation District's efforts. See map attached to this file - Exhibit A. (maps presented are oversized exhibits and are on file with these hearing documents) Tumalo Irrigation District is searching for a way to deal with the 5 to 6 day delay found with the water supply. The Oregon Water Resources has water masters in each basin and the water master in our basin is Jeremy Giffin. Mr. Giffin came up with the idea to line the Klippel mining pit to use it for water storage for Tumalo. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 2 of 15 The idea was proposed to the owners of the Klippel mining pit and investors were found to develop the site. TID and KC Development Group came together and a temporary application for water storage was filed with Oregon Water Resources. Nick Lelack looked at application and said. OWRD is asking if the water can be moved from Tumalo Reservoir to the Klippel Mine Pit Reservoir and saw that it is in an existing system. On appeal Karen Greene disagreed. (see Decision of Deschutes County Hearings Officer document attached to this file) In conclusion, Ms. Dickson notes the question before the board is "Does the temporary transfer of the water from the Tumalo Reservoir to the Klippel Mining Pit Reservoir comply with your land use rules". Ken Katzaroff, attorney with the Law Firm of Hurley Re, stated he will review three procedural points: One is whether or not Deschutes County has jurisdiction or authority to even hear or consider, why categorization of land use action or development action is important, and why Mr. Lelack is correct in his characterization in this use and why his decision should be upheld. Last Friday a letter was submitted to Deschutes County legal counsel regarding an argument based on ORS 197.015(10.b) h. Deschutes County only has jurisdiction over land use decisions. Mr. Katzaroff presented information on the 75th Oregon Legislative Assembly 2009 Regular session staff measure summary - Senate Committee on Environment and Natural Resources. (see document attached to this file). He reviewed the decisions that have already been made on this project and how those decisions fit into the ORS 197.015 (10.b) h. He noted that with all of this in consideration, neither the hearings officer nor the BOCC has the ability to treat it any other way. Only Mr. Lelack has the power in the County Code to determine the categorization of use. He also noted that only TID has the ability to appeal it. Commissioner Baney asked Mr. Katzaraoff for clarification and if he was stating this is a decision that is not to be before this Board or the Board doesn't have that right to have this decision before them and subsequent uses on this particular reservoir would not be considered before this Board but would be allowed outright. Mr. Katzaroff responded that would be a later land use procedure. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29,2015 Page 3 of 15 The issue that OWRD is asking is if the water can move. Commissioner Baney asked if the reservoir fits into the description of operation, maintenance, and piping of an existing irrigation system and Mr. Katzaroff stated the reservoir fits in to that description. Jennifer Brager, attorney with the Law Firm of Garvey Shubert Barer, represents Thomas and Dorbina Bishop. Ms. Brager presented the Commissioners with a binder containing supporting documents. (for the record, a copy of the binder is stored in the Deschutes County Legal Department and electronic copy filed with supporting documents) Ms. Brager stated the construction of the brand new KCDG water ski and recreational reservoir should not have occurred without conditional use approval. She also commented the Bishops have continued standing to appeal this decision because they have followed the local appeal process. Ms. Brager showed the location of the recreational reservoirs in question through a Power Point presentation. (see attached document in this file) She also pointed out concerns with vegetation land and wildlife protection areas. People expect quiet enjoyment of their property and all property owners should be held accountable to county code. Ms. Brager's slides also showed photographs of the unpermitted construction and surface mining for the water ski lake. In her opinion, these reservoirs were designed for use by KCDG for a cluster development. She expressed concerns that the County is allowing developers to proceed without first obtaining a land use compatibility statement or cluster development permits. Ms. Brager also stated that TID claims the project is solely for irrigation benefit, yet it has not prohibited recreational use of the reservoirs. Ms. Brager commented that the County could be proactive in stopping the developments and is reasonable to require the property owner to acquire a cluster development permit. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday, January 29, 2015 Page 4 of 15 Ms. Brager opined that TID spent much of its appeal letter of December 23,2014 falsely asserting that no surface mining actively has occurred on the KCDG property in relation to the construction of the reservoirs. The Bishops exhibit 2 submitted tonight clarifies these misstatements. Ms. Brager also stated the County's definition of surface mining is out of date in relation to state law. The Bishops have questioned why TID why it has involved itself with a private development but without response. Therefore the Bishops turn to the County to enforce their comprehensive plan and code to ensure the appropriate conditional use approval will be issued and can be attained for cluster development, recreational uses, and surface mining before a LUCS can issue. Ms. Brager and her clients request the record remain open for further response to the information submitted this evening. Commissioner DeBone asked for clarification on the terms re-regulation for the district. Ms. Brager responded that it is similar to ordering water and it starts flowing and may be able to be parked somewhere and then introduce it back into the system. Chair DeBone announced this is the time for other interested parties to come forward with public comments. Darrin Kelleher, 23030 Bear Creek Road, Bend — Coldwell Banker Real Estate. Mr. Kelleher submitted an Affidavit for the record explaining his connection with the property and history with the Bishops in relation to the property. (see attached supporting document in this file) Veronica Newton Hudson and Leslie Hudson, 1813 Tumalo Reservoir Road, Bend. Mr. Hudson was unable to attend tonight's hearing and Mrs. Hudson read his written response (see attached supporting document in this file). Dr. Leslie Hudson wrote that TID has destroyed deer habitat and used said pond for recreational use. Minutes-()fa Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 5 of 15 The Hudson's requested the County Commissioners to consider all facts and records and asks them to uphold the finding of the hearings officer. Mrs. Hudson stated this pond is a major obstruction to the deer winter range and anything that obstructs the deer in their habitat gives them severe stress. She also commented that with all of the wildland fires in the area the deer have been pushed out of those areas and the Commissioners really need to consider other things besides commercial development. Scott Waters, 63430 Palla Lane, Bend. Mr. Walker presented a photograph of an elk herd visiting the lake and his property (labeled photo #1 attached to this record). He commented that he has seen no change in the deer habitat and believes the wildlife will benefit as there will be a constant water supply. Chair DeBone asked Mr. Waters if he uses the water during the summer. Mr. Waters replied no as there are underground pipes that feed out to his property. Lance Julander, 63550 Johnson Road, Bend. Mr. Julander stated he is a TID customer and his understanding is that this is more than just a reservoir. This is a major improvement and it helps preserve the water. Another benefit of the reservoir is that during the Two Bulls Fire the property owners were evacuated and there was a continual line of water trucks gathering water from the reservoir. Just having water available for fire crews is appreciated. (photo of helicopter capturing water labeled photo #2 attached to this record). Ronald Cochran, 18624 Pinehurst Road, Bend. Mr. Cochran is the chairman of the Tumalo Irrigation District. He stated the reservoir makes efficient use of the water and is a good way to save water. He commented there will be a day that comes when there is not a lot of water and this is a great option. He also commented on the concern for the deer and he has seen deer swimming across and doesn't see the reservoir inhibiting any of their travels. Minutes of a Public Hearing-Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 6 of 15 Commissioner Baney inquired if there was a way to transfer water. Mr. Cochran stated there is a system in place to drain it and is working on system to recharge into the system. Commissioner Baney asked Mr. Cochran if he was receiving any compensation from the use of the reservoir. Mr. Cochran replied, yes. Will Hammock, 19214 Buck Drive, Bend. Mr. Hammock pointed to an area on the map to show the Commissioners his property location. He commented he is the closest property to the water source and has been there for 10 years. He stated he has been lucky enough to see the elk and the deer all the time on the property and the reservoir has never affected them. He also commented that this was a surface mine and there was no vegetation and no path for wildlife to travel through. In his opinion, the deer seem happy and not stressed out. Prior to the reservoir, the pit was not appealing to look at and it looks amazing now. (also included is a written supporting document attached to this file) Judy Niedzwiecke, 19425 Klippel Road, Bend. Mrs. Niedzwiecke stated she is a licensed wildlife rehabilitator and is grateful for the water to replace the ditches because it makes it a better place to release the animals. She also commented the deer population has not been affected by the water but instead there is a disease that is wiping them out. She said water is critical to wildlife. She also commented that the deer could have eaten vegetation in the area that is now a lake but all of the bitter brush was gone and the area no longer provided a food source. Andy Niedzwiecke, 19425 Klippel Road, Bend. Mr. Niedzwiecke stated he is a property owner and when this project first started he was adamantly opposed to it. He noted TID has struggled with water since he has lived there and is looking forward to having regularly flowing water. The other positive is that it went from surface mine to a beautiful lake. It is attracting wildlife and is a very positive move for the area. Minutes of f a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 7 of 15 Dan Beck, 19017 Mt. Shasta Drive, Bend. Regarding deer, Mr. Beck has seen them swim across lakes. He also commented that the focus should not be on the decision making authority but the water as an asset. Mr. Beck stated the Two Bulls Fire was two miles from his house and he is glad the water was close. He thinks this type of water storage approach is maybe something we should look at for future water issues. Chet and Deb Davis, 18458 Walton Road, Bend. The Davis's are property owners and they see both sides of the issue commenting that truly there is something good here. They recalled the fire and watching those flames and the worry they could lose the house. They believe in the partnership and the vision of the TID and the community. This is a solution —the private sector coming together with the community is a good thing for solving issues. (they presented a photo of a helicopter capturing water to.fight the flames — labeled photo #3 attached to this record) Veronica Hudson, 1813 Tumalo Reservoir, Bend asked the Commissioners if she could make another comment. She stated that she lives above the Tumalo Reservoir and for the whole time of fire the helicopter was taking water from Tumalo Reservoir. Shirley DeMaris, 19285 Dusty Loop, Bend. She commented that TID gives irrigation water to farmers to grow things but we didn't intend to have a water ski place or a fire department and we are glad they were there when we needed them. What we want to do is provide water and as efficiently as we can. We want to have it very simple. It has gotten way too complicated and we need to be good citizens. Paul Dewey, 1534 NW Vicksburg, Bend, represents Central Oregon LandWatch. Mr. Dewey stated the suggestion that Hearings Officer Karen Greene made a decision in part because of pressure from the audience is inaccurate. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday, January 29, 2015 Page 8 of 15 He commented that she is not intimidated by anything and her decision was based on the application of the facts of law. He also commented that the Bishops are concerned about their neighborhood and wildlife. Mr. Dewey stated all things with this project may be done as great business decisions but what you should be deciding is if this was a conditional use permit or outright permitted use. The language of your code allows for maintaining of piping of existing systems and this was a newly created reservoir. Gene Bishop, 63382 Fawn Lane, Bend. Mr. Bishop noted he is the son of Tom Bishop and is here to speak on behalf of his father. In his opinion, the water ski lakes are hideous. From his point of view, the purpose of the reservoir doesn't appear to be for water storage. As far as the fire suppression, this should be a part of the County's planning. He also feels the developer's disregard for the permit process is ridiculous. Bob Varco, 18689 Couch Market Road, Bend. Mr. Varco is the field supervisor for TID. Mr. Varco asked to enter into records his written comments (written supporting documents attached to this record). He has operated this system since 1979 and during this time has seen low water times. Mr. Varco recalled that when the idea of storage reservoirs was first presented, the previous droughts were in his mind. He explained that TID receives water from Tumalo Creek and this water comes from the spring snowmelt and is an unsteady water flow and regularly drops below demand. He also explained that the second source for water is Crescent Lake and when the change over from Tumalo Creek to Crescent Lake occurs it begins with a drop in water supply and takes 5 days from the time water is released from Crescent Lake and an additional day to release. If the drop in water supply occurs it is detrimental to our farmers while we wait for an order for water to be released. Mr. Varco stated having another source of positive water supply would be beneficial and would be a positive solution. Regarding concerns with wildlife, he stated the wildlife are perhaps more adaptable than people think and that large water reservoirs enhance nearby wildlife. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday, January 29, 2015 Page 9 of 15 He commented that the TID staff and the Board of Directors are committed to improving the District in any way possible. They were happy the reservoirs were available to assist in fighting the Two Bulls Fire. Commissioner DeBone asked for clarification on the elevation changes in the water storage. Mr. Varco responded if there was another drought, the water usage required might bring the levels greatly down. Commissioner Baney mentioned with all of the comments regarding the Two Bulls Fire she wanted to inform everyone there is a County Forester available if property owners would like to have their land reviewed for wildfire prevention. Chair DeBone called for a break at 7:25 a.m. The hearing resumed at 7:30 p.m. Karlyn Hetzler, 19125 Buck Drive, Bend. Ms. Hetzler said when she first heard of the project there was nothing mentioned of water storage or a reservoir but only of a water ski lake. She also commented that it is beautiful and she knows that change happens. Ms. Hetzler said that if it is indeed going to be used as water storage then it should have been presented that way and would like to see things go through the proper channels. Judy Campuzano, 19209 Buck Drive, Bend. Ms. Campuzano noted she lives 1/10`h of a mile from where the docks are and where the turn is made. She has been in the neighborhood since the 1970s and has seen this area as a field, a pit, and now as a reservoir. She stated that she cannot hear the water skis and it doesn't bother them. With this project the area has been cleared up. There used to be a rock pile where the coyotes lived and when they would chase deer they would get caught in the mess of barb wire that was there. She said that this is a grand experiment. With the fires, she is grateful that people are allowing the water to be used to keep the residents safe. She also pointed out that no new roads were constructed with this project as the opposition would have you believe. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 10 of 15 Rohan Grace, 19110 Buck Drive, Bend. Mr. Grace extended gratitude to the Bishops for their efforts. He commented that his family moved into the neighborhood for peace and quiet and to enjoy the deer. In his opinion, the southern lake is designed as a competition spectator water ski lake and was built in a rural residential zone. He stated the evidence is overwhelming and it was purposely built and is incompatible with a residential area. He also feels that a lake that is 10 feet deep that is lined with a black liner will heat up and evaporate water at an accelerated rate. Mr. Grace asked where the environmental impact is to show findings on bodies of water with motorized water craft use. He has called to question the approach by TID and developer and suggests that the use of this will have an impact on wildlife and residents and the quality of water. Veronica Grace, 19910 Buck Drive, Bend. Mrs. Grace wanted to echo the comments of her husband and wanted to also thank the Bishops in standing up and in giving us a voice. In her opinion, this has become a lawyer vs lawyer issue and the residents ended up without a voice. She asked to comment on the statements made about the water used for the Two Bulls Fire. She stated her family was evacuated and the southern lake is too shallow to use as a water source to fight the fires. She wonders why the County went through a rigorous impact study in the 1980's for the mining process and yet in this situation the project was simply rubber stamped. Mrs. Grace also commented on the comparison between the water storage and reservoir by saying Tumalo Creek does not have motorized vehicles so there is no comparison. She went on to say there was no body of water there before and claims there is no outlet and no way to pull the water out so it would even qualify as water storage. She also agrees the water will be lost due to evaporation since it was designed with a black liner. Mrs. Grace encouraged the board to ask for the calculations to see if there are determinations on water evaporation. She also recalled Ms. Dickson's comment this is a pilot project and asks if conscious decisions are being made and that this is the right step to follow. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday, January 29, 2015 Page 11 of 15 Jeff Coughenour, 63375 Fawn Lane, Bend. Mr. Coughenour stated he has an interest in this property as he lives in the area and has a personal vested interest. His concern is why would somebody spend millions of dollars if not for personal gain? Why would they build a lake just for Tumalo water storage? He commented. on a question his son asked him - why would he follow the laws made by this county and state if this company doesn't need to follow the laws. Moey Newbold, 1716 NW 9th Street, Bend, of Central Oregon Land Watch. Ms. Newbold said that she grew up in Tumalo and treasured the peaceful days and nights and doesn't think the neighbors should live next to a water ski lake. She would like Commissioners to consider that no decision should be taken lightly. She questions whether we will be able to measure if water is or isn't going into the reservoir and feels this is a public resource being used by a private entity. William Kuhn, P.O. Box 5996, Bend. Mr. Kuhn stated he lives within a wildlife area overlay and habitat and the purpose is to protect wildlife and preserve the environment. He feels this project should be considered a conditional use and not an outright use. He stated that the concept of protecting wildlife is paramount. Mr. Kuhn insisted the County make sure people go through the process step by step to make sure they are doing what they are supposed to do. In his opinion there is no doubt this will become a cluster development. Nunzie Gould, no address given. Ms. Gould stated he is a patron of TID and also tends to follow land use issues. She said that she is familiar with the KC development water ski lakes and state they are located within the wildlife overlay. She said she is greatly concerned with the fact that Oregon Department of Fish and. Wildlife was not consulted prior to this. She also expressed concern for our public waters with motorized recreational life in the wildlife overlay zone. She noted she has been a patron of TID for 25 years and the level of water does go up and down and as a member of TID the use of the Upper Tumalo Reservoir is a marvelous use and has great amenities for the wildlife. Her concern is that privatizing water for personal use by the KC Development Group is a misplaced priority. Minutes of a Public Hearing Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday, January 29, 2015 Page 12 of 15 As a member of TID, she is disappointed with this process. She believes as a resident of Deschutes County that the whole picture has not been brought through to the Commissioners and as a resident of Oregon our waters should not be dealt with lightly. If this was the purpose of a new reservoir it should have come as that and should have been a land use issue. Ms. Gould believes motorized recreation destroys quiet and ability of wildlife to have its natural range in its environment and this would be irreversible. Martha Bibb, 19605 Lost Lake Drive, Bend. Ms. Bibb is a resident of Bend and doesn't understand the complexity of the different legal issues. She believes the objective should be to preserve the wildlife. She feels we need to take a stand on those types of uses with our land, water, and air. She questioned the Commissioners on how they deal with developers going around the back door and if they are given a fine or what can be done to reverse this? Chair DeBone announced that all people that have requested to speak have spoken. The Commissioners had also received written comment from Marilyn Hamper, 63460 Palla Lane, Bend. Elizabet Dickson, attorney representing the Tumalo Irrigation District, asked to speak in rebuttal. Ms. Dickson stated the testimony heard tonight is appreciated. She presented the final Exhibit of a map of all neighbors in support of the project. She said a great majority are in favor of the project and hope that the Commissioners will take this into consideration going forward. It is important to know there is a pipe that goes from the lower lake to the upper lake and is designed to include the pumps. We are doing exactly what the community planners told us to do — try the reservoir and see if it works. The applicants have come to the County asking for the proper steps involved for this project. Minutes of a Public Hearing-Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 13 of 15 There have been numerous code enforcement complaints filed and yet no violations have been found. Another issue to clarify is the surface mining. The work that was done on this site was not done by the Irrigation District but by KCDG to smooth out the ground so it would hold the water and the product was left on site. There have been no violations. She also noted there have been comments on a competition water ski lake, yet there is no room for multiple boats and there is no public access as these are private lots. It is important to note the support from the Tumalo Irrigation District patrons and the TID board of directors. Most importantly, the land was irrigated as farmland as far back as the early 1900's and is connected to an existing system. She asked the County to not be distracted by comments on what might happen in the future and hope the Commissioners approve the Land Use Compatibility Statement. Commissioner Unger asked to hear comments from the Community Development Department staff. Commissioner Unger mentioned that at the last hearing there was evidence that said to have been submitted after the hearing and wonder if it was admitted to the record. Anthony Raguine noted that if TID wanted information admitted to the record, they can certainly do that. Nick Lelack, Community Development Department Director,just heard for the first time that it was felt in some capacity staff encouraged TID to develop the reservoir and he said they have certainly never suggested that. Chair DeBone closed the hearing at this time and will leave the written record open until 5:00 p.m. on Friday, February 6, 2015. The record will remain open for rebuttal until 5:00 p.m. on Friday, February 13, 2015. Final arguments may be submitted by Friday, February 20, 2015. The timing will be for mid-March for deliberation and decision and written order by the end of March. Commissioner Baney thanked everyone for their testimony. Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Tumalo Irrigation District Land Use Compatibility Statement Thursday, January 29, 2015 Page 14 of 15 Being no further business to address, the hearing adjourned 8:20 p.m. DATED this _ ;5" Day of 7 2015 for the Deschutes County Board of Commissioners. 4 Anthony DeBone, Chair 614tr----- Alan Unger, Vice Chair ATTEST: Tammy aney, C issioner 501 ?A- Recording Secretary (� Minutes of a Public Hearing—Regarding Two Appeals of the Hearings Officer Decision on a Iitmalo Irrigation District Land Use Compatibility Statement Thursday,January 29, 2015 Page 15 of 15 2/20/2015 Board of County HEARING PROCEDURE Commissioners • The Board's decision on this application will be based upon the record before the Hearings Officer,the Hearings Officer's decision,the Staff Report and the January testimony and evidence presented at this hearing. J29, 2015 • The hearing will be conducted in the following order. J 1.Staff will provide a brief report. 247-14-000238—PS 2.The applicant will present its testimony and evidence. 247-14-000274—A 3.Opponents and proponents will testify and present evidence. 4.Other interested persons will then present testimony or evidence. 247-14-000452—A 5.The applicant presents rebuttal testimony. 6.Staff will be afforded an opportunity to make any closing comments. 247-14-000453—A • 1 off, w - er a ,.. gr �, Request LUCS The applicant, Tumalo Irrigation District The proposed use is (TID), submitted a Land Use Compatibility Statement (LUCS) •Prohibited requesting planning sign-off to transfer water right from Tumalo Creek to two •Allowed without additional review the KC Development Group properties. •Allowed with additional review 1 2/20/2015 Development Action vs Land Use Action Pursuant to the Procedures Development Action Ordinance, Planning Division Only the applicant,the applicant's representative elected to treat the LUCS as a land and the applicant's witness(es)can participate in an use action rather than a appeal development action. Land Use Action Can be appealed by a party;a person entitled to notice;a person aggrieved;anyone who has submitted comments 5 e 4.1w mront,1001"-- Planning Sign-Off Hearings Officer Water right transfer was allowed •Categorization of the use is a development outright under Deschutes County Code action (DCC) Section 18.60.020(I), •Planning Director has the authority to treat the LUCS as a land use action Operation, maintenance, and piping of •Surface mining occurred to create the reservoirs existing irrigation systems operated by •The southern reservoir is a recreation-oriented facility an Irrigation District except as provided •The reservoirs are not the first phase of a cluster in DCC 18./20.050. subdivision 2 2/20/2015 Hearings Officer Conclusions 0, Planning incorrectly categorized the use as Q VEST c ? , allowed without additional review Conditional use permit approval is necessary to establish new reservoirs • Conditional use permit approval is necessary to establish a recreation- oriented a r h,s . facility- � y�, l ry`",'" � � ! a o�x ' y u• P s , F 9 r FI°;. 3 C j� a o a N n o a E d 2-. 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A PARTNERSHIP OF PROItS ZONAL CORPORATIONS Please reply to JENNIFER BRAGAR /bragar®geblaw.coln TEL (503) 553-3208 January 22,2015 Via Federal Express Board of County Commissioners of Deschutes County d/o Anthony Raguine Community Development Department 117 NW Lafayette Avenue Bend, OR 97701 RE: Bishop Submittal for Appeal of Hearings Officer's Deschutes County LUCS Decision— Appeal 247-14-00023 8-PS/274-A Dear Chair DeBone and Commissioners, This office represents Thomas and Dorbina Bishop,Trustees of the Bishop Family Trust, who live at 63382 Fawn Lane,Bend,Oregon and are members of the Tumalo Irrigation District ("TID"or"District"),as well as residents of unincorporated Deschutes County. This letter is submitted in support of the Bishops' appeal for the above referenced file and the Hearings Officer's Decision of December 15,2014,and is a partial response to TID's December 23,2014 appeal in this consolidated matter regarding TID's request for a land use compatibility statement ("LUCS").l In addition,please find enclosed the October 7,2014 hearings transcript as required under Deschutes County Code 22.32.024. the Bishops incorporate all previous ar uments and documentation Preliminarily, p rpo p g they provided to the County in this matter to the Planning Director and Hearings Officer and request the inclusion of those materials in the record on this appeal. For convenience purposes,we will reattach some previously referred to exhibits in this and future submissions to the Board of County Commissioners. In addition,new materials will be submitted to support the Bishops' novo arguments in this de no 0 review. The Bishops have spent the last year fighting a backroom deal between KC Development Group,LLC("KCDO")and TID to transfer water to enable a private developer to construct water ski and recreational lakes as the first phase of a cluster development without any governmental agency approval,including land use approval from the County. The attached Tort Claim Notice sent to the TID Board explains the shortcomings of TID's closed-door process to I By separate truer,the Bishops will submit their full legal argument in support of their appeal. `► vad G 3 I Deschutes County 5 •; - Board of County Commissioners B J January 22,2015 Page 2 transfer the water storage rights to KCDG without public input or protections for access and use of the water by and for the benefit of District members. See Exhibit 1. Now,TID is asking the County to rubber stamp the approval of this backroom deal that the Bishops have exposed through this appeal and various other comments to relevant state agencies. Although the LUCS at issue here purports to provide water as part of an irrigation system, KCDG's true intent is to construct the water ski and recreational lakes to serve a cluster or planned development. The TID irrigation system-related element was only provided as a post-hoc justification after the Bishops filed their appeal of the issuance of this LUCS. This appeal reaches the Board of County Commissioners after a thoughtful record developed by the Bishops and reviewed by the County's Hearings Officer. The Hearings Officer's conclusions that TID and/or KCDG must obtain conditional use approval for recreational reservoirs and for surface mining in connection with an irrigation district's reservoirs were sound and based on arguments made by the Bishops in their initial appeal filed August 21, 2014 and subsequent submissions. The issue here is really quite simple and it is a matter of property rights. People who purchase property in the County's Rural Residential(RR-10)zoning districts expect quiet enjoyment of their property subject to uses by their neighbors that are permitted under the County Code and expect that all property owners should be held accountable to comply with the County Code's requirements. The mere fact that an irrigation district's water storage rights may be involved in what is principally an intense,unattractive, noisy water ski recreational use does not obviate the need for all property owners to adhere to the Code. The Bishops and surrounding property owners expect that their neighbor, KCDG in this instance,will obtain necessary land use approvals prior to construction of new uses. If all that is needed is for a wealthy neighbor to ignore the Code and construct a use, then no property owner is safe from these same tactics. If the Board of County Commissioners sanctions KCDG's and TID's approach here,then other property owners could construct other conditional uses that are subject to a County LUCS without complying with land use rules first. For example, landfills are conditional uses in the RR-10 zone and are uses that also require issuance of a LUCS.2 What is to stop a corporation that operates landfills from following KCDG's lead to build landfills on any willing property owner's land without first obtaining conditional use approval? Further, TID asks the Board to approve its and KCDG's actions based on a series of knowing misrepresentations to the County and others. The Bishops have reviewed the December 23, 2014 TID appeal letter against information in the record and created a Fact/Fiction Chart to clarify these misrepresentations. See Exhibit 2. Substantial surface mining did occur during 2014 to create recreational use reservoirs for KCDG's use at the former Klippel mining pits that had been fully reclaimed as open space and wildlife habitat at the completion of mining 2 For example, DEQ regulates landfills and construction of such landfills requires a LUCS. See OAR Division 340-018. `v rI [C-73--;* G 3; Deschutes County • �`a Board of County Commissioners . i January 22,2015 Page 3 activity no later than 2005.3 The property was subsequently rezoned to RR-10 property. Thus, TID's attempts to distract the Board from the true issue in this appeal—that a property owner cannot undertake a use without first obtaining land use approval for conditional uses—have failed because they mischaracterize the facts of the case. The County's land use regulations are about fundamental fairness and the opportunity for notice and comment by all stakeholders. TID considers itself above the law and is willing to go to great lengths to use that position to benefit a private developer. In contrast, the Bishops are standing up for the rights of all Deschutes County property owners to ensure that the land use regulations are adhered to by all property owners and to ensure that recalcitrant property owners are not given a rubber stamp when caught putting their property to use without proper land use approvals. If TID is genuine in its post-hoc claim that the new reservoirs are necessary for its operations, then KCDG should sign a binding agreement with the Bishops and other neighboring property owners that no recreational use of the reservoirs will occur and allow the Bishops and their neighbors enforcement authority. Without such a binding assurance, there is no reason that the Board of County Commissioners should trust the post-hoc justification that these unpermitted reservoirs are necessary for TID's irrigation system. For the foregoing reasons, the Bishops request that the Board of County Commissioners deny the T1D appeal and reinstate the Hearings Officer's decision. In addition,the Bishops will provide further information to support these arguments and the requirement that no LUCS should issue until TID and/or KCDG obtain cluster development approval. Sincerely, GARVEY SCH = ` 'T BARER \ 11 By Jennifer Bragar Enclosures Pnx ROCS 527195 2 3 The January 14,2015 staff memorandum includes a few aerial photographs of the site before and after construction of the new reservoirs at Figures 2 and 3. Exhibit 3 provides an aerial photograph from July 6,2014 providing more context of how much open space was converted to recreational use as the first phase of KCDOs cluster development. DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247-14-000-238-PS, 247-14-00274-A APPLICANT: Tumalo Irrigation District 64697 Cook Avenue Bend, Oregon 97701 PROPERTY OWNER: KC Development Group, LLC 63560 Johnson Road Bend, Oregon 97701 APPLICANT'S AND PROPERTY OWNER'S ATTORNEY: Elizabeth A. Dickson Hurley Re Attorneys at Law PC 747 S.W. Mill View Way Bend, Oregon 97702 APPELLANTS: Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust 63382 Fawn Lane Bend, Oregon 97701 APPELLANTS' ATTORNEY: Jennifer Bragar Garvey Schubert Barer 121 S.W. Morrison Street, 11"' Floor Portland, Oregon 97204 PROPOSAL: Appellants appeal a LUCS decision that the applicant's transfer of a water storage right from Tumalo Reservoir to new reservoirs on the subject property is a use permitted outright in the RR-10 Zone. STAFF REVIEWER: Anthony Raguine, Senior Planner HEARING DATE: October 7, 2014 RECORD CLOSED: November 20, 2014 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code,the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.60, Rural Residential(RR-10)Zone * Section 18.60.020, Uses Permitted Outright * Section 18.60.030, Conditional Uses Permitted TID, 247-14-000-238-PS, 247-14-00274-A Page 1 of 22 3. Chapter 18.84, Landscape Management Combining Zone(LM) * Section 18.84.020,Application of Provisions *Section 18.84.030, Uses Permitted Outright *Section 18.84.040, Uses Permitted Conditionally 4. Chapter 18.88,Wildlife Area Combining Zone(WA) * Section 18.88.020, Application of Provisions * Section 18.88.030, Uses Permitted Outright * Section 18.88.040, Uses Permitted Conditionally B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions * Section 22.04.020, Definitions 2. Chapter 22.08, General Provisions *Section 22.08.010, Application Requirements * Section 22.08.020, Acceptance of Application * Section 22.08.035, False Statements on Application and Supporting Documents 3. Chapter 22.16, Development Action Procedures * Section 22.16.010, Review of Development Action Applications 4. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.010, Action on Land Use Action Applications * Section 22.20.055, Modification of Application 5. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances and Record Extensions 6. Chapter 22.32, Appeals * Section 22.32.050, Development Action Appeals C. Oregon Revised Statutes 1. Chapter 197, Comprehensive Land Use Planning * ORS 197.015, Definitions for Chapters 195, 196 and 197 II. FINDINGS OF FACT: A. Location: The subject property is identified as Tax Lots 824 and 828 on Deschutes County Assessor's Map 17-11-13. It is the site of the former Klippel Surface Mine (SM Site 294) and is located east of Johnson Road, north of Fawn Lane, south of Klippel Road, and west of Tumalo Creek west of Bend. B. Zoning and Plan Designation: The subject property is zoned Rural Residential 10-Acre Minimum (RR-10). Portions of the property are located within the Landscape Management (LM) Combining Zones associated with Tumalo Creek and Johnson Road, and much of the property is within the Wildlife Area (WA) Combining Zone protecting the Tumalo Deer TID, 247-14-000-238-PS,247-14-00274-A Page Pa of g 2 22 Winter Range. The property is designated Rural Residential Exception Area on the Deschutes County comprehensive plan map. C. Site Description: The subject property is approximately 79 acres in size and consists of two adjacent tax lots. Tax Lot 824 contains 15.31 acres and Tax Lot 828 contains 63.45 acres. The property previouslywas the site of the Klippel Surface Mine_(SM Site 294)which the record indicates consisted of multiple mining pits. The property is developed with two man-made, lined reservoirs filled with water. According to design drawings in the record,' the larger of the reservoirs, located on Tax Lots 824 and 828, (hereafter "southern reservoir") has a capacity of approximately 68 acre feet of water. It has two man-made islands comprised of gravel and dirt, and at its north end has a small marina, boat ramp, dock, and pilings to support a boat house.2 The smaller reservoir, located on Tax Lot 828, (hereafter"northern reservoir") has a capacity of approximately 57 acre feet of water. Near the southern end of the southern reservoir is a headgate regulating the flow of water from Tumalo Irrigation District's (TID's) irrigation canal into the southern reservoir. The remainder of the subject property is undeveloped with graded level areas and undisturbed areas with scattered pine trees and native brush. Access to the subject property is from a gravel drive off Fawn Lane on the south and from a gravel drive off Klippel Road on the north. D. Surrounding Zoning and Land Uses: The subject property is adjacent to the Klippel Acres subdivision zoned RR-10 and WA and developed with rural residences. To the east is Tumalo Creek. To the west are Johnson Road and the Saddleback Subdivision zoned RR-10 and WA and developed with rural residences. E. Land Use/Development/Code Enforcement History: The subject property previously was the site of the Klippel Surface Mine (SM Site 294). The mine was fully mined and reclaimed and received reclamation approval from the Oregon Department of Mineral and Aggregate Resources (DOGAMI) on September 27, 2005.3 In May of 2007, Harris Kimble, the applicant's predecessor in title, applied for a plan amendment, zone change and goal exception to redesignate SM Site 294, including the subject property, from Surface Mine and Agriculture to Rural Residential Exception Area, and to rezone the site from Surface Mining (SM) and Exclusive Farm Use-Tumalo/Redmond/Bend Subzone (EFU-TRB)to RR- 10. In a decision dated November 8. 2007, this Hearings Officer approved the plan amendment, zone change and goal exception.4 In my decision, I described the property to be rezoned in part as follows: "The subject property is approximately 160 acres in size and very irregular in shape. A significant portion of the property has been disturbed due to previous surface mining and reclamation activities. The disturbed area consists of reclaimed extraction pits and berms created from overburden removed from the extraction sites. The undisturbed portions of the property have varying topography and a mixture of native vegetation including scattered stands of pine and juniper trees, as well as native brush and See Hearing Exhibit 1. 2 These features are shown in the photographs included in the record in Exhibit 6 to appellants' October 6, 2014 submission. 3 Aerial photographs of the reclaimed mining pits taken in 2011 and 2012 are included in the record as pages 2 and 3 of Exhibit 11 to appellants'October 6, 2014 submission. "A copy of that decision is included in the record as Exhibit G to TID's September 26,2014 submission. TIE), 247-14-000-238-PS,247-14-00274-A Page 3 of 22 grasses, and pasture grasses seeded as part of the surface mine reclamation. Part of the eastern border of the subject property is located in the canyon of Tumalo Creek and includes steep slopes and rock outcrops. The record indicates the subject property has 58.91 acres of irrigation water rights administered by T I D . . . . The record indicates some of these water rig hi currently are leased for in- stream use. There is a small irrigation ditch that traverses the subject property within an easement," The subject property was purchased by KC Development Group LLC (hereafter"KCDG" or "property owner") in October of 2013. The following chronology of events following that purchase is taken from Senior Planner Anthony Raguine's October 28, 2014 Staff Memorandum included in the record. On October 8, 2013, staff from the county's Community Development Department (CDD) met with representatives of KCDG and their then-attorney Tia Lewis to discuss development of the subject property with a residential cluster development. No development proposal was submitted. On March 18 and 19, 2014, CDD received three code violation complaints concerning the subject property alleging that rock crushing, construction of a lake with a boat dock and fuel tanks, and use of a private road were occurring without required land use approval. These complaints were investigated by Deschutes County Code Enforcement Technician Tim Grundeman who concluded that no code violations had occurred. KCDG applied for a temporary use permit to allow rock crushing on the subject property in association with private road maintenance and landscaping, and on April 2, 2014, CDD issued a temporary use permit for such use (TU-14-8).5 On June 4, 2014, CDD received another code violation complaint related to similar "unpermitted activities" on the subject property. The record indicates that as of the date the record in this matter closed that code enforcement case was still pending. On June 13, 2014, CDD staff, Deschutes County Assistant Legal Counsel John Laherty, representatives of TID, TID's attorney William Hopp, and TID's and KCDG's attorney Elizabeth Dickson met to discuss the need and process for obtaining a Land Use Compatibility Statement (LUCS)for the transfer in place of use of a water storage right from Tumalo Reservoir to the subject property. Ms. Dickson advised CDD staff that an application for a residential cluster development on the subject property would be submitted in the future, potentially within six months. On or about June 16, 2014, CDD Director Nick Lelack determined to treat any request for a LUGS submitted by TID as a "land use action" and to process it according to the county's procedures therefor. On June 17, 2014, KCDG submitted applications for a building permit (247-14-003315- STR) and an electrical permit (247-14.003315-ELEC-01) for a boat house and boat slip on the southern reservoir_ CDD staff advised KCDG that the Planning Division could not sign off on the building or electrical permit while any LUCS request was pending. On June 19, 2014, CDD received a letter from Ken Rieck, TID Manager, explaining the need for the transfer in place of use of its water storage right and TID's belief that the proposed transfer is a use permitted outright in the RR-10 Zone. 5 A copy of that permit is included in the record as Exhibit P to TID's September 29, 2014 response to appellants'notice of appeal. TID, 247-14-000-238-PS,247-14-00274-A Page 4 of 22 On July 25, 2014, John Laherty sent a letter to Elizabeth Dickson, included in the record as Exhibit E to Mr. Raguine's Staff Memorandum, stating in relevant part: . .[T]o the extent KC Development Group LLC has expended, or intends to expend, resources to create reservoirs, install footings for a dock or boathouse, or otherwise perform work on the subject property that does not require County approval, it does so at its own risk and without any guarantee that future County permits or approvals — including, without limitation, land use approval for construction of a cluster development or recreational lake, or building division approval for construction of a boat house or dock-- will be granted. The County has encouraged KC Development Group LLC and its principals to apply for necessary land use approvals first— before devoting significant resources to improving the property— so as to avoid the risk of commencing projects it will ultimately be unable to complete. Your client has chosen to disregard this advice. Please inform your client (again) that Deschutes County will review any future land-use or building permit application on its own merits, and the County's decision on such application will be governed solely by consideration of appropriate criteria. Your client's decision to expend resources on improvements prior to obtaining necessary County approval for his intended development project will not be given undue weight or consideration in this process." On July 25, 2014, CDD staff and county legal counsel conducted a site visit to the subject property at the request of neighboring property owners. By a letter dated August 6, 2014, Deschutes County Building Official Dave Peterson issued a stop work order to KCDG for work performed on the boat house foundation on the southern reservoir without land use approval or a building permit. The previously submitted building and electrical permit applications were withdrawn by KCDG. On September 16, 2014, CDD received a code violation complaint for construction of a new road on the subject property. The complaint was investigated by Tim Grundeman who found no code violation. On September 22, 2014, CDD received a code violation complaint regarding recreational activities--i.e., waterskiing—occurring on the southern reservoir. On October 10, 2014, CDD issued a Notice of Violation to KCDG for operating a recreation- oriented facility requiring large acreage without land use approval. F. Procedural History: As noted above, on or about June 16, 2014, CDD Director Nick Lelack determined to treat any request by TID for a LUCS as a "land use action" and to process it according to the county's procedures therefor. On August 4, 2014, TID submitted its LUCS request on a form provided by the Water Resources Department(WRD). The form stated TID intended to submit to WRD an application for a "water right transfer— storage," and described the intended use of water as "storage." TID further described its intended use of water on the form in part as follows: "This is an intra-district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek Water. TiD to TID (Storage water). The transfer of this TID, 247-14-000-238-PS, 247-14-00274-A Page 5 of 22 storage water is necessary for the operation and maintenance of our irrigation system, and allowed as an outright use in the RR-10 zone. The current site was built in the 1920's and no longer serves TID's needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergencx_._Services_responders and provide increased efficiency in the operations and maintenance of the TID system overall." Attached to the LUCS form was a two-page letter dated June 19, 2014 from Ken Rieck, TID Manager, to Nick Lelack describing the reason for the LUCS request. The Planning Division accepted the LUGS request as complete on August 6, 2014. Therefore, the 150-day period for issuance of a final local land use decision under ORS 215.427 expires on January 2, 2015. On August 13, 2014, Mr. Lelack completed the WRD form by checking the box stating: "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan. Cite applicable ordinance section(s):" Mr. Lelack attached to the LUCS form a three-page "Notice of Decision" dated August 13, 2014. The decision cited Section 18,60.020(l) listing "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District," and included the following relevant findings: "According to information provided by Tumalo Irrigation District, TID 'has decided to move its Regulation Pond storage to(the KIippel Mining Pit]a site upstream from our current in-district storage at Tumalo Reservoir.' TID states that the existing Reservoir 'was designed and built in the 1920's and does not adequately serve TID's needs,' and that the new site 'will be a significant upgrade to operations and maintenance.' The Planning Director finds that transferring in-district storage from the Tumalo Reservoir upstream to the Klippel Acres Mining Pit in order to improve the operations of TID's existing irrigation system is a use permitted outright in this zone." Notice of the LUCS decision was provided to the owners of all property located within 250 feet of the subject property. On August 22, 2014, appellants Thomas and Dorbina Bishop filed their appeal of the LUCS. The record indicates appellants own and reside on property adjacent to the subject property. On October 3, 2014 the Hearings Officer conducted a site visit to the subject property and vicinity, accompanied by Anthony Raguine. On October 7, 2014, the Hearings Officer held a public hearing on the appeal. At the hearing, the Hearings Officer disclosed her observations and impressions from the site visit, received testimony and evidence, left the written evidentiary record open through November 13, 2014, and allowed the applicant through November 20, 2014 to submit final argument pursuant to ORS 197.763. On November 20, 2014, Ms. Dickson electronically submitted TID's final argument, consisting of a 40-page letter, and 24 exhibits (Exhibits A through X) totaling 180 pages, through several sequential electronic mail messages with attachments. Copies of these electronic mail messages and electronic mail logs included in the record show the last e- mail message with attachments was sent at 4:58 p.m. on November 201h but was not TID,247-14-000-238-PS,247-14-00274-A Page 6 of 22 received by the county until 5:01 p.m. By an e-mail message dated November 21, 2014, Anthony Raguine advised the Hearings Officer of the late submission, which included a portion of Exhibit W and all of Exhibit X to the applicant's final argument. By a letter dated November 26, 2014, appellants' attorney Jennifer Bragar objected to portions of TID's final argument as consisting_of"new evidence" prohibited from being submitted with final argument under ORS 197.763(6)(e). Ms. Bragar identified this "new evidence" as Exhibits E, I, J, M-Q and T-V to the applicant's final argument. Ms. Bragar requested that the Hearings Officer either strike these exhibits from the record or reopen the record to provide additional time for appellants to respond to them. On December 1, 2014, Ms. Dickson submitted a letter responding to Ms. Bragar's objections and arguing the Hearings Officer should neither strike the exhibits identified in Ms. Bragar's letter nor reopen the record because these exhibits do not constitute"new evidence." By an order dated December 4, 2014, the Hearings Officer: (a) declined to reopen and extend the record; (b)found Exhibits E, T, U, V and X to the applicant's final argument, and the portion of Exhibit W to the applicant's final argument described as"Recreation Usage in Code-Comp Plan 11.18.14," could not be considered; and (c) found Exhibits I and J to the applicant's final argument, and the definitions in Exhibits M, N, 0, P and Q to the applicant's final argument, could be considered by the Hearings Officer. Because the applicant did not agree to extend the written record from October 7 through November 20, 2014, under Section 22.24.140 of the county's Development Procedures Ordinance the 150-day period was not extended and expires on January 2, 2015. As of the date of this decision there remain 18 days in the 150-day period. G. Proposal:Appellants appeal the LUCS decision that found TID's transfer in place of use of its water storage right from Tumalo Reservoir to the subject property is a use permitted outright in the RR-10 Zone and on the subject property. H. Public Agency Comments: The record indicates the Planning Division sent notice of the applicant's proposal to the Oregon Department of Fish and Wildlife (ODFW) which submitted a responsive letter on October 31, 2014. Public Notice and Comments: The Planning Division mailed individual written notice of the LUCS decision and the public hearing on the appeal to the owners of record of all property located within 250 feet of the subject property. The record indicates these notices were mailed to the owners of 33 tax lots. In addition, notice of the public hearing was published in the Bend "Bulletin' newspaper and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received thirteen letters from the public in response to these notices. In addition, eight members of the public testified at the public hearing. J. Lot of Record: The record indicates the county recognizes the two tax lots comprising the subject property as two separate legal lots of record. III. CONCLUSIONS OF LAW: A. Preliminary Issues. 1. Applicant. TID, 247-14-000-238-PS, 247-14-00274-A Page 7 of 22 FINDINGS: TID requested a LUCS for property owned by KCDG. The county did not require KCDG to sign the request or give written authorization for TID to submit it. Although Section 22.08.010(B) of the procedures ordinance states applications for development actions or land use actions shall be submitted by the property owner or person who has written authorization from the property owner, Section 22.08.010(C) exempts from the owner authorization requirement "applications.submitted by or on_behalf,_of a public entity or public utility having the power of eminent domain with respect to the property subject to the application." The Hearings Officer finds irrigation districts are public entities with the power of eminent domain, including the power to condemn for reservoirs and the storage of water in reservoirs, under ORS 545.239.6 The record indicates the subject property is located within TID's boundaries. Therefore, I find the county did not err in accepting TID's LUCS request without written authorization from KCDG. 2. Notice. FINDINGS: At the public hearing, William Kuhn questioned why the county did not notify the Bureau of Land Management (BLM) of TID's LUGS request. Anthony Raguine responded that notice to the BLM was not provided because according to the county's current data the closest BLM land is located approximately 2.4 miles to the northwest, and for that reason planning staff concluded the proposed transfer of water right would not affect BLM lands or the management thereof. The Hearings Officer concurs with staffs analysis and finds the county did not err in failing to provide notice of the LUCS request or decision to the BLM. 3. Modification of Application. FINDINGS: TID's LUCS request states its proposed use is the transfer in place of use of a storage water right for 108 acre feet of water from Tumalo Reservoir to the"Klippel Mining Pit."As Exhibit K to its October 28, 2014 evidentiary submittal, TID included a copy of a contract between TID and KCDG dated October 14, 2014 ("new contract"). The new contract states it replaces an earlier contract dated June 10, 2014 ("old contract") and included in the record as Exhibit J to TID's October 28, 2014 submittal. The new contract states TID intends to store 125 acre feet of water in the Klippel Mining Pit. In their November 23, 2014 memorandum, appellants argue the new contract constitutes a"modification" of the LUCS request and therefore the Hearings Officer cannot consider the new contract unless and until TID submits a modification application, citing Section 22.20.055 of the procedures ordinance. Section 22.04.020 defines"modification of application" as: . . . the applicant's submittal of new information after an application has been deemed complete and prior to the close of the record on a pending application that would modify a development proposal by changing one or more of the following previously described components: proposed uses, That statute provides in pertinent part: (1) The board of directors [of the irrigation district] * * * has the right to acquire, by lease, purchase, condemnation or other legal means, all lands, water, water rights, rights of way, easements and other property, including canals and works and the whole of irrigation systems or projects constructed or being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and improvement of any canals and works proposed to be constructed by the board. The board also has the right to so acquire lands, and all necessary appurtenances, for reservoirs, and the right to store water in constructed reservoirs, for the storage of needful waters, or for any other purpose reasonably necessary for the purposes of the district. TID,247-14-000-238-PS, 247-14-00274-A Page 8 of 22 operating characteristics, intensity, scale, site layout (including but not limited to changes in proposed setbacks, access points, building design, size or orientation, parking, traffic or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the proposal or that would require the findings of fact to be changed. It does not mean an applicant's submission of new_evidence that merely_clarifies or supports the pending application. The Hearings Officer agrees with appellants that the water quantity recitals in the new contract constitute new information that changes the scale of the proposed use —transferring 125 acre feet of storage water right rather than 108 acre feet. However, I find this increase in storage water quantity does not require the application of new criteria because the scale of the proposed use is not determinative of its nature or whether and under what circumstances such storage is allowed on the subject property. For the same reason, I find the quantity recitals in the new contract do not require the findings of fact to be changed because, as discussed in the findings below, the amount of water to be stored in the new reservoirs on the subject property is not material to the analysis of whether the county's LUCS decision was correct. Therefore, I find the new contract does not constitute a modification of the LUCS request and I can consider it 4. Mootness FINDINGS: TID's LUCS August 2014 LUGS request was for a temporary storage water transfer permit. In appellants' October 27, 2014 submission, Ms. Bragar states the temporary permit expired at the end of the irrigation season in mid-October because under WRD's statutes — i.e., ORS 540.570(1) and (7) -- "a temporary transfer order is for one season only and the water use automatically reverts to the terms and conditions of the original certificate at the end of the season." Nevertheless, appellants argue the Hearings Officer should render a final decision on their appeal not consider it moot because the issues presented in their appeal are "capable of repetition yet evading review," citing LUBA's published order in Wetherell v. Douglas County, 66 Or LUBA 454 (2012). In that case, the county issued a temporary use permit for an outdoor music festival on EFU-zoned land. The county argued that an appeal of that permit was moot because the festival had taken place by the time LUBA heard the appeal. LUBA found there was no doubt the property owner would seek another temporary festival permit in the future, and therefore the issues presented by the county's issuance of the permit would be repeated. However, LUBA found those issues could evade its review because the event would take place and the permit would expire before the county and LUBA appeals could occur.' The circumstances in this case are somewhat different from those presented in Wetherell because the record indicates TID has submitted an application to WRD for a permanent transfer of its stored water from Tumalo Reservoir to the new reservoirs on the subject property. However, it is not clear from the record whether TID has been, or will be, required by WRD to submit another LUCS request for the permanent water right transfer. Nevertheless, the Hearings Officer agrees with appellants that the same principles enunciated in Wetherell should apply here. I find there is no doubt TID intends to use the new reservoirs to store irrigation water on a long-term basis, and if necessary TID will request that WRD issue another temporary water right transfer for next year's irrigation season. The record indicates the irrigation season lasts approximately six months. Therefore I find it could end before a local and LUBA appeal of a LUCS could be completed. For these reasons, I find appellants' appeal is not moot. B. Nature of LUCS Decision and Appeal. ' LUBA noted counties have 150 days to issue final decisions, and the LUBA appeal process also could take months. TID, 247-14-000-238-PS, 247-14-00274-A Page 9 of 22 FINDINGS: TID applied for a LUCS for the transfer in place of use of a storage water right from Tumalo Reservoir to the Klippel Mining Pit, claiming its proposal constitutes an outright permitted use in the RR-10 Zone under Section 18.60.020(l) as the "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District"The county's LUCS decision found the proposed use is ,permitted without review under this.section. As noted in the__Findings of„Fact above, CDD Director Nick Lelack determined to treat TID's LUCS request as a "land use action” rather than as a "development action." 1. LUCS--Development Action vs. Land Use Action. FINDINGS: Section 22.040,020 defines "development action," "land use action," and "land use permit," respectively, as follows: "Development action" means the review of any permit, authorization or determination that the Deschutes County Community Development Department is requested to issue, give or make that either: A. Involves the application of a County zoning ordinance or the County subdivision and partition ordinance and is not a land use action. B. Involves the application of standards other than those referred to in DCC 220.40.030(A), such as the sign ordinance. "Land use action" includes any consideration for approval of a quasi-judicial plan amendment or zone change, any consideration for approval of a land use permit, and any consideration of a request for a declaratory ruling (including resolution of any procedural questions raised in any of these actions). "Land use permit" includes any approval of a proposed development of land under the standards in the County zoning ordinances or subdivision and partition ordinances involving the exercise of significant discretion in applying those standards. (Emphasis added.) In Curl v. Deschutes County, — Or LUBA (LUBA No. 2013-086/095, March 19, 2014), LUBA discussed whether a LUCS decision is a "development action" or a "land use action" for purposes of determining LUBA's jurisdiction. In that case, the petitioners appealed the county's LUCS decision finding a proposal by the Central Oregon Irrigation District (COID) to pipe one of its existing open irrigation canals was a use permitted outright in the applicable zones. Petitioners also appealed the county's decision rejecting their request for a local appeal of the LUCS. The county argued petitioners had no right to a local appeal because the LUCS decision was a "development action." LUBA agreed with the county based on the following findings: "Petitioners contend that the April 25, 2013 LUCS decision is properly characterized as a 'land use action' instead of a 'development action,' because determining whether the proposed piping complies with the county's land use regulations constituted the 'approval of the proposed development of land' under the county's land use regulations, and required the exercise of significant discretion. Consistent with that position, petitioners argue under the first and second assignments of error in LUBA No. 2013-086 that the LUCS decision constitutes a 'permit' as defined at ORS 215.402(4), and therefore the county erred in failing to provide notice and a TID,247-14-000-238-PS, 247-14-00274-A Page 10 of 22 hearing, and to follow the other procedural requirements in ORS 215.416 for making a permit'decision. We disagree with petitioners that the April 25, 2013 LUCS decision is a 'land use . prittltt' or, for that matter, a 'permit' as defined at ORS 215.402(4). As with many LUCS decisions, the initial question posed to the county is whether a proposed use_............ . -- piping of an irrigation canal -- is allowable or not under the county's comprehensive plan and land use regulations. As presented, that question basically requires the county to categorize the proposed use under its land use regulations, and determine whether the proposed use is not allowed in the applicable zone, or whether it is allowed without review, allowed with review under certain standards or upon obtaining certain county permits (e.g. site or design review), allowed as a conditional use, allowed as a nonconforming use, etc. In short, the initial question posed and answered by a LUCS is typically a determination of the use category that best fits the proposed use. That initial inquiry will determine whether county approval of the proposed use is required, and if so what standards will apply or which permits will be required. If that is all the LUCS decision determines, then it is very similar in function to a use or zoning classification decision described in ORS 215.402(4)(b). A LUCS decision that is limited to a categorization of the proposed use is not a 'land use action'as defined at DCC 22.32.050 (or a `permit'as defined at ORS 215.402(4)) for the simple reason that the LUCS decision does not approve the proposed development of land, no matter how much interpretation or discretion may go into that use categorization. Where the lines between a LUCS decision and a statutory 'permit'can blur is where in response to a LUCS request the county goes further and actually applies the approval standards to conduct any required reviews, and in the same decision issues the required permits or approvals for the proposed use. In that circumstance, the county has 'approved' the proposed development of land and, if the applicable land use standards require the exercise of discretion, the county's resulting decision is a 'permit'as defined at ORS 215.402(4) or, in the county's parlance, a land use permit.' In that circumstance, the county must apply the procedures applicable to ORS 215.402(4)permits, set out in ORS 215.416, including the right of local appeal for permit decisions made without a hearing at ORS 215.416(11)(a)(A). The county's final decision in that circumstance is a land use decision and does not fall within any of the exclusions at ORS 197.015(10)(b)(H). See Campbell v. Columbia County, _ 18 Or LUBA (LUBA No. 2012-060, January 28, 2013), slip op 7-9 (a LUCS decision that also verifies or approves an alteration of a nonconforming use is a permit decision and not subject to the exclusions at ORS 197.015(10)(b)(H)). ORS 215.402(4)(b) excludes from the definition of 'permit' a 'decision which determines the appropriate zoning classification for a particular use by applying criteria or performance standards defining the uses permitted within the zone, and the determination applies only to land within an urban growth boundary!:)' In the present case, the county's decision does not approve the proposed development of land, but simply determines that the proposed use is allowed without review under the county's code. Putting aside for the moment the correctness of that conclusion, on its face the decision clearly is limited to a LUCS decision, and does not purport to apply any land use regulations to approve the proposed use. TID,247-14-000-238-PS, 247-14-00274-A Page 11 of 22 Petitioners argue nonetheless that the conclusion that the proposed use is 'allowed without review' is tantamount to 'approval' of that use for purposes of ORS 215.402(4), because the applicant may immediately proceed to develop the property with the proposed use. However, the conclusion that the use is 'allowed without review' means essentially that no county approval is necessary. A determination that no county approval is necessary fora proposed use does not 'approve'the use for purposes of ORS 215.402(4)."(Underscored emphasis added.) The Hearings Officer finds the LUCS decision at issue in this case is the same type of decision as the one at issue in Curl—i.e., it simply categorizes TID's proposal as a use allowed without review under the county's code and does not approve that use. Therefore, I find the LUCS decision is a development action and not a land use action. 2. Local Appeal. Mr. Lelack elected to treat TID's LUCS request as a "land use action" pursuant to Section 22.16.010, which provides: A. A development action application may be handled administratively by the Planning Director without public notice or hearing. B. The Planning Director has the discretion to determine that for the purposes of DCC Title 22 a development action application should be treated as if it were a land use action application. (Underscored emphasis added.) As a result of this election, notice of the LUCS was provided to the owners of property located within 250 feet of the subject property, and the parties were afforded a local appeal before the Hearings Officer. TID argues appellants' appeal should be dismissed because the LUCS decision was a "development action," and as such appellants had no standing to appeal.$ I disagree. In Kuhn v. Deschutes County, 58 Or LUBA 483 (2009), LUBA held that although the Hearings Officer is not bound by the CDD Director's determination to treat a LUCS is a"land use action" rather than a "development action," nevertheless where the county provided notice and a the opportunity for a local appeal under the process for "land use actions," the appellants were entitled to take advantage of that appeal. I find the circumstances presented here are essentially the same as those in Kuhn, and therefore, there is no merit in TID's argument that appellants'appeal should be dismissed.9 C. Categorization of Proposed Use. FINDINGS: In Curl, LUBA held the question of whether the county correctly categorized the use at issue in a LUCS is different from the question of whether the LUGS is a development action. In that case, COID's LUCS request was "to pipe 4,500 feet of its Pilot Butte Canal"to"eliminate water loss through the canal and place 7.95 cfs [cubic feet per second] of water permanently instream in the Deschutes and Crooked Rivers."10 However, LUBA noted the proposed piping project was referred to in the record as "Phase 1" of a piping project for COID's Juniper Ridge hydroelectric facility located downstream. LUBA found there was no dispute about the proposed piping project's 8 Under Section 22.32.050 only the applicant for a development action permit may appeal. 9 Because Section 22.16.010(B)authorizes the Planning Director to treat a development action as a land use action "for the purposes of DGC Title 22," the Hearings Officer expresses no opinion on whether that determination has any effect on LUBA's jurisdiction under ORS 197.825 to hear an appeal to LUI3A of the LUCS decision or my decision. 10 A copy of COID's LUGS request is in the record as Exhibit BB to TID's October 28,2014 submission. TID,247-14-000-238-PS,247-14-00274-A Page 12 of 22 association with the hydroelectric facility, and held the county mischaracterized the nature of the proposed use for purposes of the LUCS decision, and that because hydroelectric facilities are a conditional use in one of the affected zones, the county also erred in categorizing the proposed piping project as one allowed outright. Appellants and other opponents argue TID's LUCS request,and_the county's LUCS decision in this case also mischaracterized the proposed use as one allowed without review in the RR-10 Zone. For the reasons set forth in the findings below, the Hearings Officer agrees. a. LUCS Form and Decision. TID's LUCS request was presented to the county through submission of a four-page "Land Use Information Form" from the Oregon Water Resources Department (WRD). At the top of the form's front page, WRD gives notice to an applicant that the form is not required if: "1) Water is to be diverted, conveyed, and/or used only on federal lands; OR 2) The application is for a water right transfer, allocation of conserved water, exchange, permit amendment, or ground water registration modification, and all of the following apply: a) The existing and proposed water use is located entirely within lands zoned for exclusive farm-use or within an irrigation district; b) The application involves a change in place of use only; c) The change does not involve the placement or modification of structures, including but not limited to water diversion, impoundment, distribution facilities, water wells and well houses; and d) The application involves irrigation water uses only." (Bold and bold underscored emphasis in original; underscored emphasis added.) The WRD form was accompanied by a letter dated July 18, 2014, from Susan Douthit of WRD to Ken Rieck, TID Manager, included in the record as Exhibit U to appellants' appeal. The letter states in relevant part: "This temporary transfer proposes to move a portion of the authorized storage water from Upper Tumalo Reservoir (evidenced by Certificate 76684) into new storage facilities within T17S R11 E, Section 13, W.M. Because this change, unlike typical temporary district water right transfers, involves structural changes and/or the creation of new impoundment facilities, a completed Land Use Information Form is required. (See Oregon Administrative Rules 690-005- 0025)."(Underscored emphasis added.) In other words, WRD concluded TID's water right transfer request was not exempt from the LUCS requirement because it involves "structural changes and/or the creation of new impoundment facilities"— i.e., new reservoirs. On the portion of the WRD form completed by TID, the "proposed use" is described as "Water Right Transfer— Storage." The source of water is identified as "Reservoir/Pond" and the intended ID, 247-14-000-238-PS, 247-14-00274-A Page 13 of 22 use of the water is identified as "Storage." TID described the proposed use in more detail on the form as follows: "This is an intra-district transfer in place of use of 108 a.f [acre feet] of Tumalo Creek water. TiD to TID (Storage wafer). The transfer of this storage water is necessary for the operations and maintenance of our irrigation system, and allowed . . . . as an outright use in the RR-1O zone. The current site was built in the 1920's and no longer serves TID's needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergency Service responders, and provide increased efficiency in the operations and maintenance of the TID system overall." WRD's form asks the county to check one of two boxes categorizin g the proposed use as either: • land uses to be served by the proposed water uses (including proposed construction) that are allowed outright or are not regulated by the comprehensive plan; or • land uses to be served by the proposed water uses (including proposed construction) that involve discretionary land-use approvals. If the local government checks the second box, the form asks whether any required land use approvals have been obtained or are pending. CDD Director Nick Lelack checked the first box— allowed outright or not regulated -- and referred to the Notice of Decision attached to the form. The LUCS decision describes the request as a "Land Use Compatibility Statement Permit Sign-Off (PS) to transfer in place 108 acre feet of Tumalo Creek water from Tumalo Reservoir to Klippel Acres Mining Pit." The decision describes TID's proposal in more detail as follows: "Tumalo Irrigation District (TID)proposes to move its Regulation Pond storage from its current in-district storage at Tumalo Reservoir to Klippel Acres Mining Pit. The new site will be upstream and located in a lined storage facility to prevent leakage and make water available to its entire distribution network." Based on TID's description of the proposed use, Mr. Lelack concluded it was a used allowed outright on the subject property as the "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District" under Section 18.60.020(1) of the RR-10 Zone. b.Additional Uses. New Reservoirs Neither TID's information on the WRD form nor the county's LUGS decision identified creation and use of new reservoirs as part of TID's proposed place of use transfer of storage water, although TID acknowledged a new reservoir is essential to its proposal. The record indicates the county was aware of the new reservoirs at the time TID's LUCS request was submitted, having received code violation complaints about them in March and June of 2014. Under these circumstances, the Hearings Officer finds omission of any reference to new reservoirs was material to the LUGS request and decision. That is because, as discussed below, like the hydroelectric facility at issue in TID,247-14-000-238-PS,247-14-00274-A Page 14 of 22 Curl, the omitted components of TID's proposal -- new reservoirs and the surface mining activity required to create them--are conditional uses in the RR-10 Zone under Title 18.11 "Reservoir and water impoundment" is a use permitted only conditionally, and only in three zones: Forest Use (F-1) Zone, Section 18.36.030(N); Forest Use (F-2) Zone, Section 18.04.030(0); and Sunriver Unincorporated Community Forest District, Section 18.108.180(B)(3). Inclusion of this use in the county! forest zones implements the Department of Land Conservation and Development's (DLCD's) administrative rules. Specifically, OAR 660-006-0025(4)(m) states counties may authorize "reservoir and water impoundments" in the forest zones. The term "reservoir" is not defined in Title 18. Its ordinary definition is "a place where water is collected and stored for use." Webster's New World Dictionary and Thesaurus, Second Edition. "Impoundment" is man-made structure which Impoundment is defined in Section 18.04.030 as "any man-ma u hich is or may be used to impound water." That section also defines "structure" as "something constructed or built having a fixed base on, or fixed connection to, the ground or another structure" (emphasis added). TID argues the new reservoirs on the subject property are not "structures" because they are not "built"or"constructed.i12 The Hearings Officer disagrees. The ordinary definitions of"build" and "construct," respectively, are: "Build: 1) to make by putting together materials, parts, etc., 2) to establish, base; 3) to create or develop. Construct: to build, devise, etc." Webster's New World Dictionary and Thesaurus, Second Edition. The Hearings Officer finds the evidence in the record clearly shows the new reservoirs on the subject property were "built" or"constructed"within the reclaimed mining pits on the Klippel mining site. As discussed in the Findings of Fact above, at the time the subject property was rezoned from SM to RR-10, the Klippel site had been reclaimed by grading and re-contouring the mining pits and reseeding them with pasture grasses to prevent erosion. The numerous aerial and ground-level photographs of the subject property in the record, confirmed by my site visit observations, show the new reservoirs bear little if any resemblance to the reclaimed and reseeded mining pits that existed at the time of rezoning. The pits have been converted to reservoirs by excavating and grading the areas for holding water, building islands at each end of the southern reservoir, lining both reservoirs with an impermeable fabric, and affixing that fabric to the ground with an overlay of sand and gravel. For these reasons, I find the reservoirs clearly fall within the definition of "structure." 11 Appellants argue the Hearings Officer should "void" the LUCS decision because TID made a "false statement"by not disclosing the true uses for the new reservoirs, citing Section 22.08.035 which states: If the applicant or the applicant's representative or apparent representative makes a misstatement of fact on the application regarding property ownership,authority to submit the application, acreage, or any other fact material to the acceptance or approval of the application,and such misstatement is relied upon by the Planning Director or Hearings Body in making a decision whether to accept or approve the application,the Planning Director may upon notice to the applicant and subject to an applicant's right to a hearing declare the application void. The Hearings Officer finds this provision authorizes the Planning Director and not the Hearings Officer to void an application. It does not authorize me to deny the LUCS decision on the basis of an alleged material misstatement on the application. Therefore, I find no merit to this argument. 12 TID makes this argument in the context of application of the site plan requirement in the Landscape Management(LM)Zone under Section 18.84.050 for"structures." TID,247-14-000-238-PS, 247-14-00274-A Page 15 of 22 • Therefore, I find the new reservoirs on the subject property constitute "reservoirs and water impoundments." Under ordinary rules of statutory construction, where a land use is expressly listed as permitted in some zones but not in others, the presumed intent of the drafters is to prohibit that use in zones where it is not listed. However, the Hearings Officer finds that rather than relying on that presumption, the proper inquiry is to determine whether reading the zoning ordinance language to exclude reservoirs and water impoundments in zones other than the forest zones is consistent with its text, context and legislative history. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009); See, also, Devlin Oil Co., Inc. v. Morrow County, 62 Or LUBA 247 (2010). I find the relevant context includes other provisions in Title 18 that address or regulate reservoirs, water impoundments and water storage. The Hearings Officer has searched Title 18 and found a number of provisions that address water storage, reservoirs and impoundments. Section 18.80.72 regulates water impoundments in the Airport Safety (AS) Zone. Due to the tendency of water impoundments to attract birds and create hazards for aircraft, this section prohibits "new or expanded water impoundments one-quarter acre in size or larger" within 5,000 feet of the end of a runway, on airport land, and within certain airport approach surfaces. I find that because this provision is so specific to airports and their unique circumstances, it is of little value in establishing context for how the "reservoir and water impoundment" use is to be interpreted. Section 18.52.050, listing conditional uses in the SM Zone, allows "water storage facilities, owned or operated by a public, private or cooperative water company for the distribution of water."Title 18 does not define "water company." However, the Hearings Officer finds that because "irrigation district" is a term of art separately referenced in Title 18, it is not reasonable to interpret "water company" to include irrigation districts. Therefore, I find this provision also is not helpful in establishing a context for the"reservoir and water impoundments" use. Several zones, including the RR-10 Zone, allow as a conditional use: Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, Including the excavation and mining for facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material" (emphasis added).' In addition, Section 18.128.280 establishes specific conditional use approval criteria for "Surface Mining of Non-Goal 5 Mineral and Aggregate Resources." Paragraph (C) of that section lists standards for surface mining activity that involves"the maintenance or creation of man-made lakes, water impoundments or ponds." The record includes the legislative history of both of these reservoir-related "surface mining" provisions. They were added to the text of Title 18 in 2001 at the request of the former Squaw 13Those zones are: MUA-10, Section 18.32.030(GG); O,S & C, Section 18.48.030(H); RR-10, Section 18.60.030(W); Terrebonne Rural Community, Section 18.66.020(B)(15); Terrebonne R-5, Section 18.66.030(B)(13); Terrebonne Commercial, Section 18.66.040(C)(15); Terrebonne Rural Commercial, Section 18.66.050(C)(10); Tumalo Residential, Section 18.67.0208(8)(13); Tumalo R-5, Section 18.67.030(B)(10); Tumalo Commercial, Section 18.67.0040(C)(13); Tumalo R&D, Section 18.67.050(6)(8); LM (if permitted conditionally in underlying zone), WA, (if permitted conditionally in the underlying zone), SBMH(if permitted conditionally in underlying zone); CH (if permitted conditionally in underlying zone); and FP, Section 18.96.040(N). TID, 247-14-000-238-PS, 247-14-00274-A Page 16 of 22 Creek Irrigation District through Ordinance No. 2001-039.14 That ordinance also added to a number of zones the outright permitted use of "operation, maintenance, and piping of existing irrigation systems, operated by an Irrigation District" — the provision the county found authorized TID's proposed storage water place of use transfer.15 The staff report for Ordinance No. 2001-039 explains the reason for the text amendment in relevant part as follows: "The applicant, Squaw Creek Irrigation District, initiated a text amendment to the Deschutes County Zoning Ordinance and Comprehensive Plan that would allow Irrigation Districts to operate, maintain, and pipe existing irrigation systems without a land use permit and to conduct surface mining activities, including the off-site use and sale of excavated material, as a Conditional Use. . . [Tjhe applicant is requesting an amendment to the County Zoning Ordinance that allows them to use and sell the excavated material accumulated in their canals, ditches, and reservoirs, including material excavated for the expansion or construction of new reservoirs." (Underscored emphasis added.) The Hearings Officer finds that by amending Title 18 to create both outright permitted and conditional uses relating to irrigation district operations, the county intended to distinguish between the districts' routine operation and maintenance of "existing irrigation systems" that likely would have minimal impacts (outright permitted uses), and the more intensive activities including excavation to create or expand reservoirs (conditional uses). The parties submitted extensive arguments as to whether the new reservoirs fairly can be considered part of TID's "existing irrigation systems" under the outright permitted use because, among other reasons, the reservoirs were constructed by KCDG on its own land and did not become a part of TID's "systems" until TID's stored water was piped into them. The Hearings Officer finds these arguments miss the point. It is the surface mining required to construct or expand a reservoir that distinguishes the conditional use from the outright permitted use authorized by Ordinance No. 2001-039. Such surface mining need only be performed "in conjunction with"the irrigation district's operation and maintenance of its systems for it to fall within the parameters of the conditional use. There is no dispute in this record that the new reservoirs were created in coordination with TID and, at least in part, in order to facilitate TID's operation of its irrigation systems." Considering all of these provisions and the available legislative history, the Hearings Officer finds the county's listing of"reservoir and water impoundments" as a conditional use in only three zones only reflects the county's intent to comply with DLCD's administrative rules governing forest zones and not to exclude reservoirs and water impoundments from other zones. However, I find these provisions and their legislative history do show a clear intent to require conditional use approval for 14Copies of the ordinance and staff report are included in the record as Exhibit K to TID's September 26, 2014 submission. 11-hose zones are: EFU, Section 18.16.020(M); MUA-10, Section 18,32.020(H)); O,S&C, Section 18.48.020(F); SM, Section 18.52.030(G); SMIA, Section 18.56.040); RR-10, Section 18.60.020(1)); RSC- UUC, Section 18,65.020(A)(9); Terrebonne Rural Community, Section 18.66.020(A)(7); Terrebonne R-5, Section 18.66.030(A)(7); Tumalo Industrial, Section 18.67.060(A)(8); LM (if permitted outright in the underlying zone);WA(if permitted outright in underlying zone); SBMH (if permitted outright in the underlying zone); CH (if permitted outright in the underlying zone); FP, Section 18.96.030(H); and RI, Section 18.100.010. 16The Hearings Officer finds that whether the new reservoirs were excavated by TID or by KCDG on TID's behalf is irrelevant, There is no requirement that the excavation actually be conducted by the irrigation district. TID, 247-14-000-238-PS,247-14-00274-A Page 17 of 22 surface mining and excavation required to create new reservoirs that are, or are intended to be, part of an irrigation district's irrigation systems. Surface Mining The next question_.swhether KCDG conducted"surface mining" including_the "excavation and mining" for the new reservoirs. Section 18.04.030 defines "surface mining" in relevant part as follows: "Surface mining means: A. Includes: 1. All or any part of the process of mining by removal of the overburden and extraction of natural mineral deposits thereby exposed by any method Including open pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off-site borrow pits,except those constructed for access roads; and 2. Mining which involves more than 1,000 cubic yards of material or excavation prior to mining of a surface area of more than one acre. B. Does not include: 1. The construction of adjacent or off-site borrow pits which are used for access roads to the surface mine. 2. Excavation and crushing of sand, gravel, clay, rock or other similar materials conducted by a landowner, contractor or tenant on the landowner's property for the primary purpose of construction, reconstruction or maintenance of access roads and excavation or grading operations conducted in the process of farming or cemetery operations, on-site road construction and other on-site construction, or nonsurface impacts of underground mines; and . . . (Emphasis added.) The Hearings Officer finds from the record that KCDG engaged in "mining" on the subject property by "removal of overburden and extraction of mineral deposits" within the Klippel mining pits." Whether that activity falls within the exclusions from "surface mining" in Paragraph (B)(2) depends on the text, context and available legislative history of that provision. It appears the exclusion language was added to Title 18 in the early 90's when the county adopted its surface mining provisions and is based on the statutory surface mining definition in ORS Chapter 517. However, the exclusion in Title 18 appears to expand the excluded activities in the statute. Section 517.750(15(b)excludes the following activity from the definition of"surface mining:" (A) Excavations of sand, gravel, clay, rock or other similar materials conducted by the landowner or tenant for the primary purpose of construction, reconstruction or maintenance of access roads on the same parcel or on an See, e.g., Exhibit B to appellants' notice of appeal and Exhibit 13 to appellants' October 6, 2014 submission, consisting of photographs taken between May and August of 2014 of KCDG's excavation for and construction of the reservoirs. TID, 247-14-000-238-PS, 247-14-00274-A Page 18 of 22 adjacent parcel that is under the same ownership as the parcel that is being excavated; . . . (Emphasis added.) Section 18.04.030 defines "surface mining" to exclude both a landowner's on-site excavation and crushing for construction and maintenance of access roads, and the landowner's on-site excavation and grading for"other on-site construction." As discussed in the Findings of Fact above, in April of 2014 KCDG obtained a temporary use permit for rock crushing within the new reservoir(s) (TU-14-8). That decision states KCDG requested a TU to allow for rock crushing "associated with maintenance of private roadways and landscaping" under Section 18.60.020, which lists as an outright permitted use in the RR-10 Zone "Class III road projects.i18 The decision states KCDG intended to place the rock crusher "at the bottom of the old [mining] pit" and that "no offsite material will be brought to the property for crushing." In other words, KCDG represented to the county that it would only crush material already located on the subject property—Le., within and around the reclaimed mining pits. The rock crushing permitted by the TU arguably was excluded from the definition of "surface mining" if it was for the primary purpose of constructing and maintaining private roads on the subject property. However, the TU authorization did not include excavation and grading. In light of the large scale and unique configuration of KCDG's excavation on the subject property, the Hearings Officer finds that excavation was for the primary purpose of"other on-site construction"— i.e., the conversion of the former Klippel mining pits to new reservoirs, as documented by the aerial and ground-level photos of the subject property in this record and my own site visit observations.19 The remaining question is how to reconcile two apparently conflicting provisions of Title 18 -- the exclusion from the definition of "surface mining" in Section 18.04.030 for a landowner's on-site excavation for "other on-site construction," and the conditional use allowed under Section 18,60.030(W) of"surface mining . . . in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for . . . reservoirs," These provisions appear to conflict because the exclusion from the"surface mining" definition for a landowner's "other on-site construction" could encompass excavation on the landowner's property for a reservoir. As discussed above, the conditional use in Section 18.60,030(W) was added to Title 18 in 2001 through Ordinance No. 2001-039. Under ordinary rules of statutory construction, the drafters of the 2001 ordinance are presumed to have known of the "surface mining" definition and its exclusions, and are presumed not to have created a provision that would have no effect. However, again, the proper inquiry in determining the intent of ordinance provisions is through an analysis of the text, context and available legislative history. The Hearings Officer finds the text of the conditional use in Section 18.60.030(W) is specific to surface mining related to the operation and maintenance of an irrigation district's irrigation systems. Its context, including the legislative history of that provision discussed in the findings above, indicates the irrigation districts believed they were prohibited from engaging in surface mining including excavation and grading for reservoirs, as well as the off-site sale of extracted 18 A copy of the TU decision is included in the record as Exhibit P to TID's September 26, 2014 submission. Section 18.04.030 defines "Road and Street Project, Class III Project" as "a modernization, traffic safety improvement, maintenance, repair or preservation of a road or street." °For example, included in the record as Exhibit B to appellants' notice of appeal and Exhibit 13 to appellants' October 6, 2014 submission are photographs taken between May and August of 2014 of the actual excavation for and construction of the reservoirs. TID, 247-14-000-238-PS, 247-14-00274-A Page 19 of 22 materials, and therefore needed express authorization for such activity. This context suggests both the irrigation districts and the county did not consider the exclusion from "surface mining" for a landowner's "other on-site construction"to apply to the types of surface mining activities authorized through the conditional use. It also is possible the drafters simply did not consider the possibility that a reservoir to be used by an irrigation district would be constructed on property not owned by the district. However, because the text of the conditional use does not require that the reservoir excavation be performed by the irrigation district or on district property, only that such surface mining be "in conjunction with" the operation and maintenance of the irrigation district's irrigation systems, I find it more likely the drafters intended the conditional use to authorize surface mining for reservoirs regardless of who owns the property or conducts the surface mining activity. Considering the text, context and legislative history of the surface mining conditional use under Section 18.60.030(W), and in order to give it effect, the Hearings Officer finds the specific"surface mining" conditional use for reservoirs in conjunction with irrigation district systems does not fall within the general exclusion from the definition of"surface mining" in Section 18.04.030 for"on-site construction"on a landowner's property. For the foregoing reasons, the Hearings Officer finds conditional use approval was required for the surface mining required to convert the former Klippel mining pits to the new reservoirs on the subject property for TID's irrigation water storage. Therefore, I find the county's LUCS decision did not correctly categorize TID's proposed use as an outright permitted use because an essential component of that use --the mining and excavation conducted to create the new reservoirs--was not identified or considered, and that activity required conditional use approval. Recreation-Oriented Facility Appellants argue the true nature of TID's LUCS request is to provide a private recreational lake on the subject property. There is undisputed evidence in the record that the southern reservoir has been used for water skiing.20 There also is substantial evidence in the record that the southern reservoir was designed specifically for water skiing, with its two islands, boat ramp, boat dock, and pilings for a boat house.21 As discussed in the Findings of Fact above, the county issued a stop work order to KCDG for construction of the boat house foundation without and use approval or a building permit, and the county issued a Notice of Violation to KCDG for operating a recreation- oriented facility requiring large acreage without land use approval. TID denies any role in KCDG's recreational use of the new reservoirs, stating only that such use is typical on water storage reservoirs. However, the record indicates TID was aware of both the design of the southern reservoir and the water skiing occurring on it.22 The June 2014 contract between TID and KCDG does not prohibit KCDG from using the reservoirs for recreation. And it requires KCDG to indemnify TID for any liability arising from KCDG's use of the reservoirs. The county was aware of the recreational use of the southern reservoir when it issued the LUCS decision. 20 See, e.g., photos included in Exhibits 3 and 5 to appellants'October 6, 2014 submission. 21 The photograph included in the record as page 2 of Exhibit S to appellants' notice of appeal shows the southern reservoir during construction. The photos included in Exhibit 21 to appellants' October 27, 20914 submission show several water ski lakes in other states with designs virtually identical to the southern reservoir. 22 See, e.g., September 29, 2014 electronic mail message from Bill Hopp, attorney for TID, to Nick Lelack, identified by the county in this record as"Document 12." TID,247-14-000-238-PS, 247-14-00274-A Page 20 of 22 Section 18.60.030 permits conditionally in the RR-10 Zone "recreation-oriented facility requiring large acreage such as off-road vehicle track or race track." Title 18 does not define "recreation- oriented facility." Webster's New World Dictionary and Thesaurus, Second Edition, includes the following relevant definitions: "Recreation: any form of play, amusement, etc. used to relax or refresh the body or mind. _------- Orient: to adjust. . . to a particular situation." Based on these definitions, the Hearings Officer finds a "recreation-oriented facility" is one that is designed and constructed to provide opportunities for recreational activity. I find at least the southern reservoir's design and use as a water-skiing lake is a recreation-oriented facility. I further find it is one "requiring large acreage such as an off-road vehicle track or race track" because a boat and skier(s)towed behind the boat require a large water surface area to safely and effectively maneuver, including making turns. For these reasons, the Hearings Officer finds the county erred in not identifying and considering the conditional use of "recreation-oriented facility requiring large acreage" in categorizing TID's proposal on the LUCS form and LUCS decision as an outright permitted use. Cluster Development The record includes evidence that KCDG's predecessor in title, Harris Kimble, stated his intent to develop the subject property with a residential cluster development featuring the new reservoirs.23 Both TID and KCDG disavow any representations made by Mr. Kimble as the plans of a "previous owner." However, the record indicates Mr. Kimble is a partner in KCDG.24 Accordingly the Hearings Officer find's TID's and KCDG's position somewhat disingenuous. The record also includes similar representations made by KCDG representatives. As noted in the Findings of Fact above, at a June 13, 2014 meeting with CDD staff, Ms. Dickson stated KCDG planned to submit an application for a residential cluster development within six months. In addition, Paragraph (15) of the June 14, 2014 contract between TID and KCDG states: "KCDG and its successors shall require the purchasers/lessees at the time of purchase or lease of residential lots in the development to sign and record a document acknowledging that the purchaser/lessee has read and accepted this Contract."(Emphasis added.) TID and KCSG argue that since no land use application for residential cluster development approval has been submitted by KCDG, there is no basis to conclude the new reservoirs constitute the unpermitted "first phase" of such a development as claimed by appellants. Although the Hearings Officer finds there clearly is some basis to suspect the new reservoirs are planned to be part of a future residential cluster development, I agree with TID and KCDG that it is not reasonable to characterize the new reservoirs as the first phase of such development. That is because the cluster development conditional use in the RR-10 and WA Zones under Section 18.60.030(F) and 18-88.040(A), respectively, includes numerous components in addition to open space and amenities therein, such as dwellings, utility infrastructure, streets, and water and sewer 23 For example, see Exhibit D to appellants' notice of appeal. 24 See Affidavit of Harris Kimble dated August 15,2014, included in the record as Exhibit"N"to TID's September 26,2014 submission. TID, 247-14-000-238-PS, 247-14-00274-A Page 21 of 22 systems. Therefore, I find the county did not err in failing to identify the cluster development conditional use in categorizing TID's proposal on the LUCS form or in its LUGS decision. Because the Hearings Officer has found the county's LUCS decision was in error and must be reversed and remanded, I do not address the parties' extensive arguments concerning whether the , new_reservoirs would.satisfy_the conditional use approval criteria for "recreation-oriented facility requiring large acreage" or for a residential cluster development. IV. DECISION: Based on the foregoing findings and conclusions, the Hearings Officer FINDS: 1. The county incorrectly categorized TID's proposed use on the WRD LUCS form as a use allowed without review. 2. The county erred in issuing a LUCS decision finding TID's proposed use was allowed without review. 3. The county's LUCS decision is reversed and remanded for the CDD Director to reissue the WRD LUCS form and the LUCS decision to categorize TID's proposed use as one involving discretionary land use approval(s) that have not yet been obtained — i.e., the conditional use of surface mining for reservoirs in conjunction with operation and maintenance of irrigation systems under Section 18.60.030(W), and/or a recreation-oriented facility requiring large acreage under Section 18.60.030(G), Dated this 15th day of December, 2014. Mailed this 16`h day of December, 2014. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. TID,247-14-000-238-PS,247-14-00274-A Page 22 of 22 75th OREGON LEGISLATIVE ASSEMBLY-2009 Regular Session MEASURE: HB 2230 A STAFF MEASURE SUMMARY CARRIER: Sen.Prozansld Senate Committee on Environment&Natural Resources REVENUE: No revenue impact FISCAL: Minimal fiscal impact,no statement issued Action: Do Pass as Amended and Be Printed Engrossed Vote: 4- 1 -0 Yeas: Boquist,Hass,Prozanski,Dingfelder Nays: Atkinson Exc.: 0 Prepared By: Beth Herzog,Administrator Meeting Dates: 5/7,5/26 WHAT THE MEASURE DOES: Finds that Department of Land Conservation and Development(DLCD)rules regarding state agency land use coordination and state permit compliance and compatibility should be reviewed to eliminate unclear or conflicting provisions and updated regularly to maintain a high level of coordination between state agencies and local governments. Excludes from definition of"land use decision"a local government compatibility statement regarding a proposed state agency action compatible with acknowledged comprehensive plan and regulations implementing it if:a local government has already made a land use decision authorizing use or activity that encompasses proposed state agency action;use or activity that would be authorized,funded,or undertaken is allowed without review; or requires future review under comprehensive plan and land use regulations implementing plan. Authorizes DLCD to specify sequence of local government land use decision and state agency action concerning same use or activities unless federal or state law requires otherwise. Directs DLCD to periodically update and improve rules regulating effectiveness and efficiency of state agency coordination programs. ISSUES DISCUSSED: • Legislation would streamline process by giving DLCD authority to decide which process should come first • Multiple opportunities to appeal the same land use decision EFFECT OF COMMITTEE AMENDMENT: Excludes from defimition of"land use decision"a local government compatibility statement regarding proposed state agency action compatible with acknowledged comprehensive plan and regulations implementing it if:local government has already made a land use decision authorizing use or activity that encompasses proposed state agency action;use or activity that would be authorized,funded,or undertaken is allowed without review;or requires a future review under comprehensive plan and land use regulations implementing plan. Authorizes DLCD to specify sequence of local government land use decision and state agency action concerning same use or activities unless federal or state law requires otherwise. BACKGROUND: State agency coordination statutes have not been updated in 20 years. The current system allows for duplication in some instances,increasing the potential for inconsistency. In other cases,the system allows an inefficient sequence,or the system puts state-level decision-making ahead of local decision-making. Examples include instances where a local government cannot act without state approval,but the state cannot approve without a local compatibility statement. 6/1/2009 11:12:00 AM This summary has not been adopted or officially endorsed by action of the committee. Commoinee&ikes Form—2•9 Repd.r Smiw 75th OREGON LEGISLATIVE ASSEMBLY-2009 Regular Session MEASURE: IIB 2230 STAFF MEASURE SUMMARY CARRIER: Rep.Cowan House Committee on Land Use REVENUE:No revenue impact FISCAL: Minimal fiscal impact,no statement issued Action: Do Pass and Rescind the Subsequent Referral to the Committee on Ways and Means Vote: 5-3-0 Yeas: Clem,Cowan,Garrett,Greenlick,Nolan Nays: Esquivel,Hanna,Wingard Exc.: 0 Prepared By: Cheyenne Ross,Administrator Meeting Dates: 3/3,3/5 WHAT THE MEASURE DOES: Excludes from the definition of"land use decision"both state agency permits and compatibility statements issued by local governments that are based on,or consistent with,prior local approval of substantially the same use. Directs the Land Conservation and Development Department to update and improve coordination of land use decision-making between state agencies and local governments. ISSUES DISCUSSED: • Sequence of necessary decision-making by local governments and state agencies not amenable to a blanket rule • Multiple decisions are required on the same issue,at local and state levels,and problems can occur if each separate decision regarding same subject matter is treated as an appealable land use decision • Streamlining coordination and clarifying one path to appeal should have cost savings for applicants and authorities • Informal workgroup of county planners and department personnel participated in crafting language for the measure • Concern that local decision may be required to precede the state in every instance and concern that appealable decisions will be limited • Concern that the existing sequence of decision-making for aggregate producers should not be disturbed • Measure does not require fixed sequence of decision-making,but permits case-by-case consideration • Measure's intent is to narrow duplicative paths to appeal EFFECT OF COMMITTEE AMENDMENT: No amendment. BACKGROUND: State agency coordination statutes have not been updated in 20 years. The current system allows for unnecessary duplication in some instances,increasing the potential for inconsistency. In other cases the system allows for inertia,or the system puts state-level decision-making ahead of local decision-making. Examples include instances where a local government cannot act without state approval,but the state cannot approve without a local compatibility statement,which the local government refuses to issue for fear of creating an additional basis for appeal. 3/6/2009 10:18:00 AM Thi.y summary has not been adopted or officially endorsed by action of the committee. Cwwlpor Services Fora-2009 Regular Sergio= 75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session Enrolled House Bill 2230 Ordered printed by the Speaker pursuant to House Rule 12.00A(5). Presession filed (at the request of Governor Theodore R. Kulongoski for Department of Land Conservation and Development) CHAPTER AN ACT Relating to coordination of land use decision-making between state agencies and local governments; creating new provisions; and amending ORS 197.015, 197.180, 197.254 and 197.650. Be It Enacted by the People of the State of Oregon: SECTION 1. The Legislative Assembly finds and declares that: (1) Improving coordination and consistency between the duties and actions of state agencies that affect land use and the duties and actions of local governments under com- prehensive plans and land use regulations is required to ensure that the actions of state agencies complement both state and local land use planning objectives. (2) Improved coordination is necessary to streamline state and local permitting proce- dures. (3) The Department of Land Conservation and Development has not engaged in a formal and concerted effort to update state agency land use coordination programs since 1989, and that state agency rules, plans and programs affecting land use and local government com- prehensive plans and land use regulations have changed substantially since that time. (4) Rules of the Land Conservation and Development Commission regarding state agency land use coordination and state permit compliance and compatibility should be: (a) Reviewed to eliminate unclear or conflicting provisions and to ensure that local land use decisions authorizing a use generally precede state agency decisions on permits for the use or for aspects of the use; and (b)Updated regularly to maintain a high level of coordination between state agencies and local governments in reviewing authorizations for a use of property. SECTION 2. ORS 197.015 is amended to read; 197.015. As used in ORS chapters 195, 196 and 197, unless the context requires otherwise: (1) "Acknowledgment" means a commission order that certifies that a comprehensive plan and land use regulations, land use regulation or plan or regulation amendment complies with the goals or certifies that Metro land use planning goals and objectives, Metro regional framework plan, amendments to Metro planning goals and objectives or amendments to the Metro regional frame- work plan comply with the [statewide planning] goals. (2) "Board" means the Land Use Board of Appeals. (3) "Carport" means a stationary structure consisting of a roof with its supports and not more than one wall, or storage cabinet substituting for a wall, and used for sheltering a motor vehicle. (4) "Commission" means the Land Conservation and Development Commission, Enrolled House Bill 2230(HB 2230-A) Page 1 (5) "Comprehensive plan" means a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, trans- portation systems, educational facilities, recreational facilities, and natural resources and air and water quality management programs. "Comprehensive" means all-inclusive, both in terms of the geographic area covered and functional and natural activities and systems occurring in the area covered by the plan. "General nature" means a summary of policies and proposals in broad catego- ries and does not necessarily indicate specific locations of any area, activity or use. A plan is "co- ordinated" when the needs of all levels of governments, semipublic and private agencies and the citizens of Oregon have been considered and accommodated as much as possible. "Land" includes water, both surface and subsurface, and the air. (6) "Department" means the Department of Land Conservation and Development. (7) "Director" means the Director of the Department of Land Conservation and Development. (8) "Goals" means the mandatory statewide land use planning standards adopted by the com- mission pursuant to ORS chapters 195, 196 and 197. (9) "Guidelines" means suggested approaches designed to aid cities and counties in preparation, adoption and implementation of comprehensive plans in compliance with goals and to aid state agencies and special districts in the preparation, adoption and implementation of plans, programs and regulations in compliance with goals. Guidelines shall be advisory and shall not limit state agencies, cities, counties and special districts to a single approach. (10) "Land use decision": (a) Includes: (A) A final decision or determination made by a local government or special district that con- cerns the adoption, amendment or application of: (i) The goals; (ii) A comprehensive plan provision; (iii) A land use regulation; or (iv) A new land use regulation; (B) A final decision or determination of a state agency other than the commission with respect to which the agency is required to apply the goals; or (C) A decision of a county planning commission made under ORS 433.763; (b) Does not include a decision of a local government: (A) That is made under land use standards that do not require interpretation or the exercise of policy or legal judgment; (B) That approves or denies a building permit issued under clear and objective land use stand- ards; (C) That is a limited land use decision; (0) That determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility that is otherwise authorized by and consistent with the comprehensive plan and land use regulations; (E)That is an expedited land division as described in ORS 197.360; (F) That approves, pursuant to ORS 480.450 (7), the siting, installation, maintenance or removal of a liquid petroleum gas container or receptacle regulated exclusively by the State Fire Marshal under ORS 480.410 to 480.460; [orl (G) That approves or denies approval of a final subdivision or partition plat or that determines whether a final subdivision or partition plat substantially conforms to the tentative subdivision or partition plan; or (H) That a proposed state agency action subject to ORS 197.180 (1) is compatible with the acknowledged comprehensive plan and land use regulations implementing the plan, if; (i) The local government has already made a land use decision authorizing a use or ac- tivity that encompasses the proposed state agency action; Enrolled House Bill 2230(KB 2230-A) Page 2 (ii) The use or activity that would be authorized, funded or undertaken by the proposed state agency action is allowed without review under the acknowledged comprehensive plan and land use regulations implementing the plan;or (iii) The use or activity that would be authorized, funded or undertaken by the proposed state agency action requires a future land use review under the acknowledged comprehensive plan and land use regulations implementing the plan; (c) Does not include a decision by a school district to close a school; (d) Does not include authorization of an outdoor mass gathering as defined in ORS 433.735, or other gathering of fewer than 3,000 persons that is not anticipated to continue for more than 120 hours in any three-month period; and (e) Does not include: (A) A writ of mandamus issued by a circuit court in accordance with ORS 215.429 or 227,179; [or] (B) Any local decision or action taken on an application subject to ORS 215.427 or 227.178 after a petition for a writ of mandamus has been filed under ORS 215.429 or 227.179; or (C) A state agency action subject to ORS 197.180 (1), if (I) The local government with land use jurisdiction over a use or activity that would be authorized, funded or undertaken by the state agency as a result of the state agency action has already made a land use decision approving the use or activity; or (ii) A use or activity that would be authorized,funded or undertaken by the state agency as a result of the state agency action is allowed without review under the acknowledged comprehensive plan and land use regulations implementing the plan. (11) "Land use regulation" means any local government zoning ordinance, land division ordi- nance adopted under ORS 92.044 or 92.046 or similar general ordinance establishing standards for implementing a comprehensive plan. (12) "Limited land use decision": (a) Means a final decision or determination made by a local government pertaining to a site within an urban growth boundary that concerns: (A) The approval or denial of a tentative subdivision or partition plan, as described in ORS 92.040 (1). (B) The approval or denial of an application based on discretionary standards designed to reg- ulate the physical characteristics of a use permitted outright, including but not limited to site re- view and design review. (b) Does not mean a final decision made by a local government pertaining to a site within an urban growth boundary that concerns approval or denial of a final subdivision or partition plat or that determines whether a final subdivision or partition plat substantially conforms to the tentative subdivision or partition plan. (13) "Local government" means any city, county or metropolitan service district formed under ORS chapter 268 or an association of local governments performing land use planning functions under ORS 195.025. (14) "Metro" means a metropolitan service district organized under ORS chapter 268. (15) "Metro planning goals and objectives" means the land use goals and objectives that a metropolitan service district may adopt under ORS 268.380 (1)(a). The goals and objectives do not constitute a comprehensive plan. (16) "Metro regional framework plan" means the regional framework plan required by the 1992 Metro Charter or its separate components. Neither the regional framework plan nor its individual components constitute a comprehensive plan. (17) "New land use regulation" means a land use regulation other than an amendment to an acknowledged land use regulation adopted by a local government that already has a comprehensive plan and land regulations acknowledged under ORS 197.251. (18) "Person" means any individual, partnership, corporation, association, governmental subdi- vision or agency or public or private organization of any kind. The Land Conservation and Devel- Enrolled House Bill 2230(HB 2230-A) Page 3 opment Commission or its designee is considered a person for purposes of appeal under ORS chapters 195 and 197. (19) "Special district" means any unit of local government, other than a city, county, metropol- itan service district formed under ORS chapter 268 or an association of local governments per- forming land use planning functions under ORS 195.025, authorized and regulated by statute and includes but is not limited to water control districts, domestic water associations and water coop- eratives, irrigation districts, port districts, regional air quality control authorities, fire districts, school districts, hospital districts, mass transit districts and sanitary districts. (20) "Urban unincorporated community" means an area designated in a county's acknowledged comprehensive plan as an urban unincorporated community after December 5, 1994. (21) "Voluntary association of local governments" means a regional planning agency in this state officially designated by the Governor pursuant to the federal Office of Management and Budget Circular A-95 as a regional clearinghouse. (22) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration that are sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. SECTION 3. ORS 197.180 is amended to read: 197.180. (1) Except as provided in ORS 197.277 or subsection (2) of this section or unless ex- pressly exempted by another statute from any of the requirements of this section, state agencies shall carry out their planning duties, powers and responsibilities and take actions that are author- ized by law with respect to programs affecting land use: (a) In compliance with [goals adopted or amended pursuant to ORS chapters 195, 196 and 197] the goals, rules implementing the goals and rules implementing this section; and (b) In a manner compatible with acknowledged comprehensive plans and land use regu- lations.[:] [(A) Comprehensive plans and land use regulations initially acknowledged under ORS 197.251;] [(B)Amendments to acknowledged comprehensive plans or land use regulations or new land use regulations acknowledged under ORS 197.625;and] [(C) Amendments to acknowledged comprehensive plans or land use regulations or new land use regulations acknowledged through periodic review.] (2) State agencies need not comply with subsection (1)(b) of this section if [the comprehensive plan or land use regulations are inconsistent with] a state agency rule, plan or program relating to land use [that] was not in effect [at the time the local plan] when the comprehensive plan provision or land use regulation with which the action would be incompatible was acknowledged[,] and the agency has demonstrated that: (a) [That] The state agency rule, plan or program is mandated by state statute or federal law; (b) [That] The state agency rule, plan or program is consistent with the goals; (c) [That] The state agency rule, plan or program has objectives that cannot be achieved in a manner [consistent] compatible with the acknowledged comprehensive plan and land use regu- lations; and (d) [That] The agency has complied with its certified state agency coordination program. (3) Unless federal or state law requires otherwise, the commission, by rule, may specify the sequence of a local government land use decision and a state agency action concerning the same, similar or related uses or activities. [(3)] (4) Upon request by the Land Conservation and Development Commission, each state agency shall submit to the Department of Land Conservation and Development the following infor- mation: (a) Agency rules and summaries of state agency plans and programs affecting land use; (b) A program for coordination pursuant to ORS 197.040 (2)(e); (c) A program for coordination pursuant to ORS 197.090 (1)(b); and (d) A program for cooperation with and technical assistance to local governments. Enrolled House Bill 22.30 (HB 2230-A) Page 4 1 [(4)] (5) Within 90 days of receipt, the Director of the Department of Land Conservation and Development shall review the information submitted pursuant to subsection [(3)] (4) of this section and shall notify each state agency if the director believes the state agency rules [and], plans or programs submitted are insufficient to [assure] ensure compliance with goals and compatibility with [city and county] acknowledged comprehensive plans and land use regulations. [(5)] (6) Within 90 days of receipt of notification specified in subsection [(4)] (5) of this section, the state agency may revise the state agency rules, plans or programs and resubmit them to the director. [(6)] (7) The director shall make findings under subsections [(4) and] (5) and (6) of this section as to whether the state agency rules [and], plans or programs are sufficient to [assure] ensure compliance with the goals and compatibility with acknowledged city and county comprehensive plans and land use regulations[,] and shall forward the rules and summaries of state agency plans or programs to the commission for its action. The commission shall either certify the state agency rules [and], plans or programs as [being in compliance] compliant with the goals and compatible with the acknowledged comprehensive plans and land use regulations of affected local governments or shall determine the same to be insufficient [by December 31, 1990]. [(7)] (8) The department shall report, to the appropriate committee of the House and the Senate and to the subcommittee of the Joint Ways and Means Committee that considers the state agency budget, any agency that has failed to meet the requirements of subsection [(6)] (7) of this section. [(8)] (9) Any state agency that has failed to meet the requirements of subsection [(6)] (7) of this section shall report the reasons therefor to the appropriate committee of the House and the Senate and to the subcommittee of the Joint Ways and Means Committee that considers the agency budget. [(9)] (10) Until [state agency] rules and state agency plans and programs are certified as [being in compliance] compliant with the goals and compatible with [applicable city and county] the ac- knowledged comprehensive plans and land use regulations of affected local governments, the state agency shall make findings when adopting or amending its rules and state agency plans and programs as to the applicability and application of the goals or acknowledged comprehensive plans, as appropriate. [(10)] (11) The commission shall adopt rules establishing procedures to [assure] ensure that state agency permits affecting land use are issued in compliance with the goals and compatible with acknowledged comprehensive plans and land use regulations, as required by subsection (1) of this section. The rules [shall] must prescribe the circumstances in which state agencies may rely upon a determination of compliance [or compatibility made by the affected city or county. The rules shall allow a state agency to rely upon a determination of compliance by a city or county without an ac- knowledged comprehensive plan and land use regulations only if the city or county determination is supported by written findings demonstrating compliance with the goals.] with the goals or compat- ibility with the acknowledged comprehensive plan. [(11)) (12) A state agency required to have a land use coordination program shall participate in a local government land use hearing, except a hearing under ORS 197.610 to 197.625, only in a manner that is consistent with the coordination program, unless the agency[:] [(a) Is exempt from coordination program requirements; or] [(b)] participated in the local government's periodic review pursuant to ORS 197.633 and raised the issue that is the basis for participation in the land use hearing. [(12)] (13) [In carrying out programs affecting land use a state agency is] State agency rules, plans or programs affecting land use are not compatible with an acknowledged comprehensive plan if [it] the state agency takes or approves an action that is not allowed under the acknowl- edged comprehensive plan. However, a state agency may apply statutes and rules [which the agency is required by law to apply in order] to deny, condition or further restrict an action of the state agency or of any applicant before the state agency [provided it] if the state agency applies those statutes and rules to the uses planned for in the acknowledged comprehensive plan. (14) In cooperation with local governments and state agencies whose rules, plans or programs affect land use, the department periodically shall: Enrolled House Bill 2230 (HE 2230-A) Page 5 (a) Identify aspects of coordination related to uses that require the issuance of multiple permits from state agencies and local governments. (b) Update and improve rules regulating the effectiveness and efficiency of state agency coordination programs. [(13)] (15) This section does not apply to rules, plans, programs, decisions, determinations or activities carried out under ORS 527.610 to 627.770, 527.990 (1) and 527.992. SECTION 4. ORS 197.254 is amended to read: 197.254. (1) A state agency shall be barred after the date set for submission of programs by the Land Conservation and Development Commission as provided in ORS 197.180 [(3)] (4), from con- testing a request for acknowledgment submitted by a local government under ORS 197.251 or from filing an appeal under ORS 197.620 (1) or (2), if the commission finds that: (a) The state agency has not complied with ORS 197,180; or (b) The state agency has not coordinated its plans, programs or rules affecting land use with the comprehensive plan or land use regulations of the city or county pursuant to a coordination pro- gram approved by the commission under ORS 197.180. (2)A state agency shall be barred from seeking a commission order under ORS 197.644 requiring amendment of a local government comprehensive plan or land use regulation in order to comply with the agency's plan or program unless the agency has first requested the amendment from the local government and has had its request denied. (3) A special district shall be barred from contesting a request for initial compliance acknowl- edgment submitted by a local government under ORS 197.251 or from filing an appeal under ORS 197.620 (1) or (2), if the county or Metropolitan Service District assigned coordinative functions under ORS 195,025 (1) finds that: (a) The special district has not entered into a cooperative agreement under ORS 195.020; or (b) The special district has not coordinated its plans, programs or regulations affecting land use with the comprehensive plan or land use regulations of the local government pursuant to its coop- erative agreement made under ORS 195.020. (4) A special district shall be barred from seeking a commission order under ORS 197.644 re- quiring amendment of a local government comprehensive plan or land use regulation in order to comply with the special district's plan or program unless the special district has first requested the amendment from the local government and has had its request denied. SECTION 5. ORS 197.650 is amended to read: 197.650. (1) A Land Conservation and Development Commission order may be appealed to the Court of Appeals in the manner provided in ORS 183.482 by the following persons: (a) Persons who submitted comments or objections pursuant to ORS 197.251 (2) or proceedings under ORS 197.633, 197.636 or 197.644 and are appealing a commission order issued under ORS 197.251 or 197.633, 197.636 or 197.644; (b) Persons who submitted comments or objections pursuant to procedures adopted by the com- mission for certification of state agency coordination programs and are appealing a certification is- sued under ORS 197.180 ((6)] (7); (c) Persons who petitioned the commission for an order under ORS 197.324 and whose petition was dismissed; or (d) Persons who submitted oral or written testimony in a proceeding before the commission pursuant to ORS 215.780. (2) Notwithstanding ORS 183.482 (2) relating to contents of the petition, the petition shall state the nature of the order petitioner desires reviewed and whether the petitioner submitted comments or objections as provided in ORS 197.251 (2) or pursuant to ORS 197.633, 197.636 or 197.644. (3) Notwithstanding ORS 183.482 (2) relating to service of the petition, copies of the petition shall be served by registered or certified mail upon the Department of Land Conservation and De- velopment, the local government and all persons who filed comments or objections. SECTION 6.The amendments to ORS 197.015 by section 2 of this 2009 Act apply to local government decisions made on or after the effective date of this 2009 Act. Enrolled House Bill 2230(HB 2230-A) Page 6 Passed by House March 10,2009 Received by Governor: Repassed by House June 10,2009 M., ,2009 Approved: M., ,2009 Chief Clerk of House Speaker of House Governor Passed by Senate June 4,2009 Filed in Office of Secretary of States M ,2009 President of Senate Secretary of State Enrolled House Bill 2230(HB 2230-A) Page 7 w..: ?, BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing o Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation Dis -ict Land Use Compatib" ity Statement - January 29, 2015 Name f�r�� ,e /-Q_ Address Phone #s 71/Z> E-mail address 72-72-vt e `"( In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? 1! Yes 1 No If so, please give a copy to the Recording Secretary or the record. Affidavit of Darrin J. Kelleher I, Darrin J. Kelleher, being first duly sworn, say: 1. I am a real estate broker with Coldwell Banker Morris Real Estate, located at 486 Southwest Bluff Drive, Bend, Oregon 97702; 2. That I represented Harris Kimble in his real estate dealings surrounding property located in Township 17, Range 11, Section 13,tax lots 817,819, 820, 821, 822, 823,824,825,826, and 828;the location also commonly known as the Klippel Acres Mining Pit (the "Site"); 3. That on multiple occasions in 2013 and 2014, Greg Miller, another real estate broker with Caldwell Banker Morris Real Estate, who at that time represented Mr.Thomas Bishop, contacted me regarding his client's proposal to buy and/or invest in Mr. Kimble's real estate holdings at the Site; 4. That it was represented to me by Greg Miller that Mr. Bishop supported the idea of a water reservoir at the Site,supported the secondary use of the water reservoir as a water ski lake, and sought to invest in the development of a cluster or planned unit development at the Site or a residential lot in a future development; 5. That I was ultimately unable to negotiate satisfactory terms between Mr. Kimble and Mr. Bishop regarding Mr. Bishop's proposed investment in the Site; 6. That Mr. Bishop has subsequently expressed opposition to the project in direct contradiction to his prior actions. Darrin Kelleher Coldwell Banker Morris Real Estate 486 Southwest Bluff Drive Bend, OR 97702 SUBSCRIBED AND SWORN TO before me on this 2_9 day of January, 2015. QFFICIAL SE/IL ` --m a .nyeA a MONICA L STRINGER ( NOTARY PUBLIC-OREGON r 465152016 1 Notary Public for re n COMMISSION N0. 'i M1'CoINISSIDN©(FIRES FE. ..�. 4 a�, 1R►, { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name X1/6 ,ni vc r (\ tort Ou DSO n) Hti os rtil Address t 'I 7...9mckto l a_rvo �c Rakci Phone #s E-mail address V n-tt,)/ kikrisovv . a Les- dsAA • In Favor I j Neutral/Undecided Opposed Submitting written documents as part of testimony? )( Yes No If so, please give a copy to the Recording Secretary for the record. _ r_ . .. _ y.., <4+ ' ----\ .r A 1 I, r� r t. 1 I. r� c S 1 g -, , 1 ,,, ,, v r 0 ■ ti 1 . i r, ' t. ?.-,_ 3 (V- f T 1.5-) 7 c,\;,... , ii Tr fr . r . , . 1 Prk W. w. 18130 Tumalo Reservoir Road Bend, Oregon 97701. Thursday, January 29, 2015. County Commissioners, Deschutes County, Oregon. Dear Commissioners, Testimony on Matters before The Deschutes County Board of County Commissioners at the Public Meeting on January 29, 2015 at 5.30pm. I am Dr. Leslie Hudson. I am a resident of Deschutes County and a Water Patron of the Tumalo Irrigation District (TID). TID and its partner KC Development Group, LLC have destroyed deer habitat by extensive excavation in heart of the long established Wildlife Area Combing Zone, they have constructed a water skiing pond dedicated to private enjoyment using water designated for public use by the Water Patrons of the irrigation district and have used said pond for recreational use during 2014. Although TID now claims that this is a development critical to its operations, no water- recovery pumps were planned or installed and no use has been made of the stored water during the 'stock runs' in the 2014-2015 post irrigation season. A 'reservoir' would have certain characteristics essential to its operation as a secondary source of irrigation water'—none of these exist in the current construction. The construction on Klippel Acres looks like a water skiing pond and has been used as a water skiing pond—so it is logical to assume that it was intended to be used as such and so is a recreational facility subject to the county's regulations and process to determine whether such a facility using public irrigation water is compatible with land use in a high desert landscape. The irresponsible destruction of deer habitat and the creation of an extensive in-ground water barrier across their migration route is particularly egregious at a time when the deer population in the Tumalo area has declined to almost half of that expected for the land area (ODF&W census data). ! ask that the County Commissioners look beyond the current misleading application (to create a reservoir by transferring water from Tumalo Reservoir to the Klippel Acers Mining Pit) and consider all the facts on public record which demonstrate that this is a recreational facility intended for a future housing development. I ask that you uphold the decision of the Hearings Officer and her finding that this construction does not merit the previously issued LUCS permit. Sincerely yours, rlf 4 k e li n. ? O / 411. ,„4:t ti BOARD OF COMMISSIONERS' MEETING �„---- REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name C'C7- 3/� /��,( Address /;,354/30 ,1-71/212.z 4- I, x-1 , _,4I Phone #s .5 r.7- 3/S' 5 E-mail address biz/7 0/ 770 77;4 In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. \ 3 - 4• * .+ > '' .0' *, ;, r� as _ ' Nit 14-14;7474.- s a , t �$ 0. 4 n AA m � ; ç. �[�# § .t 4 ^e' "� 3 '�+ e r I {� lit 14 . , c* ��{{ ; 4 ;fit' . § r }fib ' b ; ka t .. n { x tt a d fk� ✓I . �. tY 'hhhn.. ?? j y 3 ' 4' •� . 't • . a , � a l4 t 2 . t cbI i s ` 4'. Ji r_S' O ✓ f BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name i. h 4C..E YJ 1,,n/Al!J l`1g Address 6 ¶51) ,,lc'ol'i)<,oib i ; ')-\ Phone #s Id( - 1-11 r7 `d E-mail address hi rice ((finiter �� ��'1 U I � ' inn„ J I In Favor C f Neutral/Undecided Opposed I'11.) f<<' -i el)- Submitting written documents as part of testimony? Yes 1 No If so,please give a copy to the Recording Secretary for the record. l a,- , t�� mayy: < ,. YF" i .4 . 5 ki{ Apg s2t° „4,1 Ka. s, { }1 a' t'a �. a FS. # y }. . r -f$ a r.;:, : ,,i, , , r a -z a r ,. i - - . as rr Is '«- ' .. i ;i( I. i - (\ : 2 I'ei- J .Y t - q mow, t 11 Or fix.. .,' . a . 1- ii ` f- b }' - -`+at „yam £ . k tea 4 3 -�, s ° k d°`'d 4 3 Pf r 4 Y E i`fT F £ "=.a. X 3 .. Z t t �ti` k ''- � f ''s 9}.b. T .r � CS Z BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation Distr' se Compatibili tatement - January 29, 2015 Name 1 L, cve: 70/V Address --/ L Phone #s 5/7_:: .7 Y/' E-mail address 14 In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. Cl�3 C7` � i BOARD OF COMMISSIONERS' MEETING a2) REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation istrict L nd Use Compatibility Statement - January 29, 2015 Name V.. ti Lt _ PC;NA. ■\-/ C3 Address 1 9 `=) t. b L t C)`�-.-, ._. Phone#s `7 74 2._,S ?- _L( E-mail address k---- In Favor I Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. Hammock, Will From Hammock,Will Sent: Tuesday, November 18,2047:22 AM To: Subject: Deer, Elk and The Lake! Attachments: imagejpeg_0jpg; 1116141157jpg Will Hammock 11/17/14 19214 Buck Drive Bend,OR 97701 (I have two attached photos of deer at my house on 11/15/14) I have lived in Klipple Subdivision since the end of 2005. I am an avid big game archery hunter throughout Oregon,specifically deer and elk. Everywhere I go, I am always on alert for spotting these animals. You could say this is my passion. I have been hearing many disagreements in my area concerning the lakes behind my house. One in particular stuck out to me as ridiculous. People are claiming the deer are not in our neighborhood because they are scared of large bodies of water. I have seen more bucks and does this year than the last two years combined. I do agree that the two bulls fire and crews associated did change their normal patterns, but to say they are gone is incorrect. I have multiple groups of does coming in and eating my shrubs,grass and what's left of my garden daily. Now that the bucks are in full rut,the big boys have come down once again(like always). This is my favorite time of the year for spotting these animals. I have seen a handful of different bucks come in to find the does in heat. I feel very fortunate to have the deer feel safe on my property. I only have 5 acres so I know they don't just come to my property and not elsewhere. When I drive down Buck Drive or Stag Drive I see deer frequently.The elk do not live in our neighborhood in the summer but seem to come through here in the winter. I personally have not seen them this year, but it is still early in the season.As far as elk and deer being scared of big bodies of water,that is also incorrect. Cascade lakes for example,there are deer and elk tracks are all over the shore lines-they have to drink too. I have seen more deer there than I can count. When I go hunting, I look for some kind of water to set up on. Deer and elk are prey animals. Their primary time to eat and drink is at night. They move a little during the day but this is the time they relax and sleep. When Tumalo Irrigation piped the canal behind my house,this changed the deer patterns. Not that they left but it changed the location where they drank water. A bigger body of water offers them a safer environment to keep watch for predators. Before the lake behind my house was installed,animals did not hang out in the rock pit because it did not produce quality feed for them to eat. I saw deer cross through the rock pit three or four times in ten years. I feel I have one of the best views of the rock pit(now a lake)in my neighborhood. My house sits up on a hill and half of my windows and decks overlook the lake. The lake is the focal point for my house and was designed for that reason. Please feel free to contact me if you have any questions or concerns, Thank you, Will Hammock Outside Sales Q w ► { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name 9li,+ j GrJ`G! .p._-1 (NES 4.)/C'ic Address 11 2 ,d k&-zdf 977‘,/ Phone #s ,gz/ -319- E-mail address itAyisi 9 . re1 r1) In Favor, rP Neutral/Undecided C 1 Opposed SubmittmAg written documents as part of testimony? )< Yes No If so, please give a copy to the Recording Secretary for the record. 4res � 400+1, BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name v N #3 1 t p. � ,r �k�°- t 6 IC� Y CfUES Address H42,5- 'L ` 6 2D (� P Phone #s s1-I --359 - 67 L. E-mail address A oD (i • �v Y. In Favor-Fr b Neutral/Undecided Opposed g written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary r the record. ,,,....,_,.„. ,:,,c, 9 ocWIIIP\- BOARD OF COMMISSIONERS' MEETING �l REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Comp t bJjity Stateme t - January 29, 2015 Name 6%(; L ___- Address / )/ f `,Z e(5,_(_-.4, /9/,—, 012 j2.--v-u—z---/ 61 (-( ' 2 i 6 7 Phone #s ei ? _3 0 6 / e -. 2 d 1 E-mail address ,, Gi /) �2 E22 iV2_ _S' lq r C. O I/11 In Favor 1 Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes X No If so, please give a copy to the Recording Secretary for the record. C90 G ,+f- , --‹ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility„Statement W January 29, 2015 ,i i j' Name /, ,/ k- _ i 1 G !,. ` t J a il/ Address / 3 G( 1 (=� 2/ /A- _ / /-1(A:,,/ , /-J,3e_ /7d, 17)7K t f l I Phone #s 47 6 3 -7;31' 5)15-::7 ,: j,-Y3 'i) b Lt-Y62,` .=--� E-mail address (Ye a/( Gx Vi 3 ua /J7(/‘-)4 .1'1-'),),O, (: 'y2 ( 1.- In Favor Neutral/Undecided Opposed _ , Submitting written documents as part of testimony? I VYes , No If so, please give a copy to the Recording Secretary for the record. ,. �4a f,�x Y t ,Y = ; 1r i f- ' .a 4}, i. sk & 'y Tah uP ,, i,!b I 14 i , „.. Y • • 4 • K 'I's' • i �`j•Ct=�. GO BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name c/) it /e-7 �).� /r/lair( Address / •9 Phone#s 37 ' 9 j pk' E-mail address 7h71i /, (.`'''1"1 xiIn Favor Neutral/Undecided 1 Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. w BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name PAUL QEwEy Cs.7.1r.l a... l 1-4.7S LLIGAI, Address 1541 J ✓«k 010,,, 13 . 4 aI Phone #s 4.gn- E-mail address pe,,l e d•CwaY ltd. eeti- In Favor 1 Neutral/Undecided [71 Opposed Submitting written documents as part of testimony? Yes / No If so, please give a copy to the Recording Secretary for the record. 1 0, as of/;;Ii BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name int ko Address // -j 3 in- Lk-, r Phone #S (5-1))v ) s� `{ " 1 E-mail address e.Av c• eyiej , cam, b i IA Kij u 1 ;. . co In Favor 6;5'14 Neutral/Undecided Opposed Submitting written documents as part of testimony? Fl Yes X No If so, please give a copy to the Recording Secretary for the record. / V Gam ` • BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name c71 Ockv-C 0 t U1.t,ti(A (U ,--)-- VV,'7 a.v'LI 1 D �• Address / 6 (a vc K'r kW vt cA O v q 7 7 J Phone #s w I . — c"7 5 E-mail address In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. October 1 4 th 2014 Deschutes County Hearings Office File 247-14-000238-PS I would like to enter into the record some comments about the water storage transfer that is proposed by Tumalo Irrigation District. I have 9 p P Y 9 operated this water system since 1979. During this time I have seen several drought type conditions and low snow pack years. Tumalo Irrigation District has completed several projects over the past twenty years in an attempt to conserve water and to improve our supply to our water patrons. When the idea of storage reservoirs at the Klipple Acres Mining Pit on the upper end of our District was first presented, the previous droughts that I had experienced were foremost in my mind. Having a reservoir that can pump water out of its supply even to a small lateral would have a huge impact on keeping our farmers in operation during a drought. Page 1 of 6 (il ;;I Tumalo Irrigation District receives water from two sources. Our first source is Tumalo Creek, which supplies almost all of the District's water for rri ation season. This water comes from spring snow the first part of the i p 9 p irrigation and is an unsteady water supply. During the months of April, May, and June, the supply of water at our intake regularly drops below our demand due to cold freezing night in the mountains. Our second source of water comes from Crescent Lake stored water, located approximately 80 miles South of Tumalo. The lake supplies the water needed in order to provide !; irrigation after Tumalo Creek has dropped off and the snow pack is gone. The change over from Tumalo Creek to Crescent Lake comes in several stages, beginning with a drop of water supply in the Creek and an order for water from the local Watermaster to get water from the Lake. It takes five days from the time water is released from Crescent Lake to reach our dam located at 1st Street in Bend. It then takes an additional day to divert it through our system and deliver to farmers that are low on water supply. This process repeats multiple times as Tumalo Creek reduces down to its lowest flow for the year. Page 2 of 6 Jl If a drop in our water supply from Tumalo Creek occurs during the heat of the summer, it is detrimental to our farmers. This places challenges on the District in our operations while we wait for an order of water from Crescent Lake to be delivered and picked up at our dam in Bend. We will also use any water left in Tumalo Reservoir at this time. Having another source of positive water supply at the upper end of the District would be very beneficial. Having the capability to store water and keep it without any loss until needed would be a positive solution for the District when experiencing short term water outages. You may learn more about water outages and low water flows in the District by talking to farmers at the end of the system versus water users who are at the upper end or middle of a ditch. Blake Payne is a farmer at the end who leases farm land from Deschutes River Ranch and whose livelihood depends on the income brought in from this property. Payne has u experienced years where he had to four outages in one summer and P p Y g pumped dry. It would be great if we could supply his farm, as well as others in the District, using the new proposed reservoirs. Having additional GI Page 3 of 6 LI resources would be very beneficial and is important when we are out of water and in a time of need. �I is In addition to water outages, we also have to maintain a minimum flow in Tumalo Creek. If the supply in the Creek drops below the minimum, we put water back in the stream by closing our intake gate enough to restore the minimum flow. With reliable storage reservoirs, the District could utilize them in order to supply our water users until an order from Crescent Lake is complete. Whether it is a severe drought, a short-term outage, or an insufficient ?' flow in Tumalo Creek, having an extra supply of water available would be extremely valuable. Our staff and Board of Directors are committed to improving our District in any way possible. I was pleased the new reservoirs were available for use to assist in fighting the Two Bulls Fire that occurred this summer. To my knowledge, all of the water used to put this fire out came from the new reservoir and the old Tumalo Reservoir. During the hearing that took place on October 7th, there was testimony given about the recreational activities that occur at reservoirs, lakes, and streams. I would like to point out that you will find all of these activities, such Page 4 of 6 fr ii as swimming, kayaking, and boating, taking place at Tumalo Creek, the Deschutes River, and other lakes in Central Oregon that we and our surrounding districts use for irrigation, including Crescent Lake, Wickiup Reservoir, Crane Prairie Reservoir, and Haystack Reservoir. Testimonies were also given with concerns to wildlife, particularly the deer in the area. Comments were made that deer would come up to the new reservoir and would not know how to get around the water. There are areas in Central Oregon, such as along US Hwy 97 from Lava Butte to Sunriver, where ODOT has constructed miles of deer fence along the highway. I submit that the wildlife are perhaps more adaptable than some may think. In addition, large water reservoirs only enhance nearby wildlife. ii Thank you for considering my comments and point of view from a guy with boots on the ground that has been out there for the past thirty-five years operating this water system. Respectfully, Bob Varco Tumalo Irrigation District Page5of6 W J � { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name �: L; /i T k ALz i?.4,-- Address Irl' Z. > , y ► V � Phone #s (17---11/ 32`� `f E-mail address laJ ;,,'br. C L_l In Favor Neutral/Undecided V Opposed Submitting written documents as part of testimony? Yes LJ No If so, please give a copy to the Recording Secretary for the record. ) b L, L w% Za BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name ,; '06 (� rkwl Address \ ca. l7 0.1 V-- t t ) Phone #s 5L.t \ 23 0 E-mail address ym c-1.(Avyk- W S hl , c o yy k In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. GilYf.� � . . BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name r t 0V-I('k.(1 (--13r.:),- Address ` f ( < u '''Li(.±; II--r A -- ' %)Y S 1,(7- Phone #s ., E-mail address \.\ _ r ;.J {) In Favor Neutral/Undecided (I Opposed Submittin g written documents as part of testimony? Yes -/ No If so, please give a copy to the Recording Secretary for the record. - . 06 Pl° o/ { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name \jleirofl\cci Address \ \ \P Phone #s 911 Te)--DD21- E-mail address ro--v ._g Mat i' r U - In Favor [ Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes ` No If so, please give a copy to the Recording Secretary for the record. a u BOARD OF COMMISSIONERS' MEETING A', ,4- ►, REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name Jd �ut� V-�S�I-12 Address 6:5Z q"*S--- F--fr\v i�� G,N Z‘'N)-, COQ. . / Phone Pis 5 '(1 y 1-{Z0 - °f(e E-mail address 5(,g ~cP//VN Com In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes E% No If so, please give a copy to the Recording Secretary for the record. 1 1-t5 .1 7 ar'• BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name 010e1 b )'G� Address J lX NIA] eft3( , Phone #s 54 \ 4 Q - ` cAs2 c, E-mail address IrN0C,U. aP,u 6 c1.a e&164 In Favor Neutral/Undecided NI Opposed • o rso- claA.rd-oer,Pnk Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. On U,j•,0, OL oe l { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name id r 111 a i K tip/ Address E '77 70e- 0??6, 1 Phone#s .c41 / 33? < E-mail address W cI` ta-+'v Z Se Fa-G7c , 8:37K In Favor L�J Neutral/Undecided posed Submitting written documents as part of testimony? YesNo If so, please give a copy to the Recording Secretary for the record. I DG w f Za BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrig tion District Land Use Compatibility Statement - January 29, 2015 Name l.OA � Address (9-11 Phone #s l L{, DLO --- E-mail address In Favor L._J Neutral/Undecided [_] Opposed Submitting written documents as part of testimony? Yes No - If so, please give a copy to the Recording Secretary for the record. ,• 4;' a BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Public Hearing on Two Appeals of the Hearings Officer's Decision on a Tumalo Irrigation District Land Use Compatibility Statement - January 29, 2015 Name N R1 r (( Address I 11;,x13 (U"A Ef'7 7u Phone #s L% 3 53cr E-mail address r c,c s b t e G coo" In Favor Neutral/Undecided Opposed Va _ I Submitting written documents as part of testimony? F1 Yes No If so, please give a copy to the Recording Secretary for the record. C 3 ►cs II t. f ` t-u.c 1 vle v c . Me-e is r d niviot co`JAI.i,- 0,,AJ. hs(t.C1‘ chr6(A)C\5 , noLcic ro( 1.u:,(--?on , a,.vv_1,... i(Lit,cvt, P.'''4-\1 `"'- I -c"- ' fit<c cu. Lk. Q oa..2 '- ia . erezku d dia,q,s ctly-kcAt.r ---tIr-t cit eL(L , i cck\■0 c.) cc,a S Pf 0 ' G �CP0( Q. , •a fie , -n,/ -E7s . 7 U ,, --kA,A. c-e066ye,15 kct' e--, n‘°i-0-'`n`C driosnt kfr, 0,1 ,L-5, -k-0 „e,,,,c(9i) , a rovc,-(y, . G-(m un miitie, 5(,i c 5 T tl January 28,2015 Deschutes County Commissioners Alan Unger Tammy Baney Tony DeBone ,.Anthony Raguine/County Planning Divisioif 1300 NW Wall St •�.� JJ Bend OR 97701 RE:PUBLIC HEARING January 29,2015 FILE NUMBERS: 247-14-009238-PS 247-14-000274-A 247-14-000452-A 247-14-000453-A SUBJECT: Appeals of Hearings Officer decision to reverse the Planning Division's issuance of Land Use Compatibility Statement permit to transfer 109 acres feet of Tumalo Creek water from Tumalo Reservoir to Klippel Acres Mining Pit. SUBJECT PROPERTY: Located at 63560 Johnson Road Bend—County Assessor's Map 17-11-13,as Tax Lots 828 and 824. I am unable to attend the public hearing;however I have many concerns regarding the possibility of reversing this decision. We live at 63460 Palla Ln and have lived here for 36 yrs.I believe there would be an adverse effect in this area if Tumalo Irrigation is allowed to transfer water to this property. My concerns arc as follows: • RE: Chapter 18.88,Wildlife Area Zone—this is part of our property designation in this area.We are a wildlife wintering range—in all the years we have lived here—every Winter/Spring we have seen volumes of deer that would walk the path that now is known as"the lake." Since the construction of the said body of water the number of deer have decreased by volumes. It was a very sad day the day I drove down Klippel Rd,which is on the North end of this body of water,as they were constructing it and I saw 2 deer overlooking the edge,not sure as to how they could continue to use their paths they have had forever.Now—we have some deer come through—but nothing like it was before the lake was constructed. • The long-term plan is to request this body of water obtain a recreational permit—at which time the next step is to make it a competition water skiing lake which will have motorized water boats on it— competing. My concern for this is that it will be constant,especially on week-ends. The body of water is not that large and where we live will put us in direct hearing of the constant motors—even if it is not loud regarding decibels—the constant buzzing is not what this community ever was about.Please do NOT allow the transfer of the Tumalo Irrigation Water to this body of water. • We live right across the road from the body of water in question -Palla Lane. (I have enclosed a map of the KC Development Property and have hi-lighted in yellow our property.)As you can see,-we live right next to it. Anything that happens there will directly affect us. • The long term plans for this property development is for a cluster development—with 10 homes on the al lake•-5 homes are planned(again note the map as to the location of the possible homes)to be built right across from our home--from the corner of Klippel Rd and Palla Lane to just past our driveway— 41 those 5 would be clustered right by us. And,of course competition lake skiing using motor boats. • Palla Lane will be the access road in and out of the development—whether it is just a body of water,a reservoir or a lake for competition motor boat lake skiing-thus the adverse effect of a major increase in traffic. J respectfully ask you to not reverse the decision made by the Ilearings Officer—as a community that enjoys the peace and quiet and Wildlife. We have been a quiet community for years and would like to remain so I for one would like to continue to enjoy the lifestyle I have known for 30 plus years. Please allow Chapter 18.88, Wildlife Area Zone and Chapter 18.60—Rural Residential Zone—RR 10—which is what we are designated,stay intact with no Chapter 18.120 Exceptions put in place. Thank you for your time and consideration in this matter. I appreciate it. Regards, Marilyn Hamper 63460 Palla Ln Bend OR 977(11 si! ii it li .... ..... ... ........ • .,...... .. ----------1., .., ., 1 / - .- , .. .. . . • ... .. • ,• -•••• • •,.• ,.. ••1,..:., '....,..,.-:„t,,..,iorii.l.:..,..*..r..t.:,...-..:. .i..i....otle....!..4..:....,.......-2.,.,..,.., • ........... .: . ,,•....,.., T .,......:,.._••••,.... :.•,'',: ,.... ,. . . 41/4 . ..i,,,,; ,.. .. ..,r.a. Nam 1111141 OM • MINI In . MI ON ., ... ' .■..j,'. F " ' Y1 Li? 2 10.00 ACRES .V'°!:. 7' --' • „ „. • • , • ,. „. .. .• '• • •• . „' A.. CRES'••• ' • - • ..' '.'' . • ' ',. , • . ... ..A.,•.,„.•., • „