2017-297-Order No. 2017-011 Recorded 6/22/2017REVIE
LEGAL COUNSEL
Recorded in Deschutes County CJ2017-297
Nancy Blankenship, County Clerk
Commissioners' Journal 06/22/2017 9:35:46 AM
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
An Order Directing Tumalo Irrigation
District to Reimburse Deschutes County for
the Cost of Abating a Road Hazard.
*
* ORDER NO. 2017-011
*
WHEREAS, this matter came before the Deschutes County Board of County Commissioners
("the Board") on May 3, 2017, for a hearing pursuant to ORS 368.276 regarding Tumalo Irrigation
District's ("TID"s') liability for costs incurred by Deschutes County in abating a road hazard on Bill
Martin Road (the "Road Hazard"); and
WHEREAS, TID was represented at the hearing by its manager, Kenneth Rieck, and attorney
Luke Reese. Deschutes County was represented by Chris Doty, Director of Deschutes County Road
Department, and Assistant County Counsel John Laherty; and
WHEREAS, The Board, having heard testimony and argument, and having considered
information entered into the record:
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
hereby ORDERS as follows:
Section 1. TID shall pay to Deschutes County the amount of Seventeen Thousand One
Hundred Dollars ($17,100.00) as reimbursement for the costs incurred by the County in abating the
Road Hazard.
Section 2.
Order is signed.
Payment of the full amount due shall be made within 120 days from the date this
Section 3. Those written Findings of Fact attached hereto as Exhibit "A" are adopted as the
findings of the Board in support of this Order;
Page 1 of 2 - ORDER NO. 2017-011
Section 4.
This Order is effective upon signing.
Dated this L day of June, 2017.
ATTEST:
Recording Secretary
Page 2 of 2 - ORDER NO. 2017-011
THE BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON,
CONVENING AS THE DESCHUTES COUNTY
CONTRACT REVIEW BOARD
(1- —W64:06/
TAMMY BANEY, Ciajr
ONE, Vice -Chair
PHILIP G. HE P ERSON, C 6mmissioner
EXHIBIT "A" to Order No. 2017-011
FINDINGS OF FACT
1. TID was provided proper notice of the May 3, 2017 hearing pursuant to ORS 368.276.
2. Bill Martin Road is a gravel road located in the Tumalo area of unincorporated Deschutes
County. It is the primary means of vehicle access to approximately six residential properties and
several undeveloped lots in the area. The road is approximately 1.5 miles long, and for much of
its length traverses property owned by Tumalo Irrigation District (TID). The road was
constructed by TID in 2010.
3. Bill Martin Road is a local access road. Deschutes County is not legally responsible for
maintaining or repairing the road. However, pursuant ORS 368.256 through ORS 368.276,
Deschutes County may (a) legally abate an emergency road hazard that occurs on the road, and
then (b) pursue reimbursement for the cost of abatement from any property owner who allowed
the road hazard to occur.
4. On the evening of February 8, 2017, Deschutes County's Road Department received
word that a sinkhole had developed along Bill Martin Road, and that the sinkhole had caused a
portion of the road to become impassible. Deschutes County Road Department personnel arrived
at the location at approximately 9:30 PM and observed that a sinkhole had developed under Bill
Martin Road approximately one mile north of its intersection with Tumalo Reservoir Road,
causing a portion of the road to subside (the "Road Hazard"). The roadway area affected by the
Road Hazard was observed to be approximately 20 feet wide by 15 feet long. The sinkhole was
approximately 3 feet deep.
5. The Road Hazard occurred along a stretch of Bill Martin Road that runs in an east -west
direction through land owned by TID. The Road Hazard developed at a low point in the road
where, due to the natural topography of the area, snowmelt and storm water (collectively, "storm
water") flowing from TID land is directed into a roadside ditch that runs along the north side of
the road. Over time, the large amount of storm water entering the ditch at this single location
caused the ditch and adjacent road base to subside and collapse, and the sinkhole to develop
beneath the road.
6. Given the obstruction caused by the Road Hazard and the lack of alternate means of
vehicle access to affected properties, the County's Road Official, Chris Doty, determined that the
Road Hazard created an emergency condition pursuant to ORS 368.271(1)(c). Mr. Doty decided
to immediately abate the Road Hazard with Road Department equipment, materials, and
personnel.
7. The Road Department took reasonable actions to abate the Road Hazard. Specifically,
Road Department personnel installed three 12 -inch culverts in the roadway in the sinkhole area,
to allow storm water to flow from the north side of the road to the south side, in accordance with
the natural drainage pattern for the area. The sinkhole area was excavated to solid material.
Fabric was used to line the excavated area and 3 -inch minus fill material was used to backfill the
Page 1 of 2, Exhibit "A" to Order No. 2017-011
excavation. The fill was capped with 5 inches of 3/4" -minus base rock (gravel) surfacing. The
project was completed on February 9, 2017. The total cost of abatement was $21,617.71.
8. Before constructing the road, TID retained the engineering firm of David Evans and
Associates ("DEA") to design the road. In July of 2010, DEA provided a copy of its plans for
the road to Deschutes County. After reviewing the plans, Deschutes County's Engineer, George
Kolb, questioned DEA in writing as to whether DEA had any concern regarding drainage issues
along the stretch of Bill Martin Road where the Road Hazard ultimately developed, due to the
topography in that area. Despite Mr. Kolb's inquiry, DEA did not modify its plans for the road
to add a culvert in the area where the Road Hazard developed.
9. Kenneth Rieck testified that shortly before the Road Hazard was discovered, TID
received information from nearby property owners that water was pooling on and around Bill
Martin Road, making passage over the road difficult. After receiving this information,
representatives of TID inspected the road and discovered that, in the area where the Road Hazard
ultimately occurred, a thick layer of ice had formed along one side of the road. This ice layer
was contributing to stormwater pooling on the roadway.
10. Mr. Rieck testified that on or about February 7, 2017, TID representatives attempted to
remove the thick layer of ice in an effort to mitigate the pooling of storm water on the roadway.
However, no evidence was presented that TID made any effort to prevent or stop storm water
from discharging from TID's property onto the roadway.
11. TID violated ORS 368.256 by allowing water to discharge from land that it owns, onto a
public road under County jurisdiction. This violation caused the Road Hazard. As such, TID is
liable for the costs of abatement.
12. TID has failed to establish that there was no reasonable means by which it could have
controlled, stopped or removed the cause of the violation.
13. The total cost to the County for the emergency abatement of the Road Hazard was
$21,617.71. Mr. Doty testified that, absent the emergency nature of the work performed, the
reasonable, fair -market cost of abatement would have been approximately $12,600.00. Thus,
approximately $9,000.00 of the cost incurred by the County can be attributed to the emergency
nature of the abatement, which amount likely would not have been incurred if circumstances had
allowed TID the opportunity to obtain competitive bids for the work.
14. In part, the emergency nature of the abatement resulted from the unusual weather
conditions at the time, and the fact that the Road Hazard occurred after dark. Given the
circumstances, the Board finds it is equitable that TID be held liable for only 50% of the $9,000
cost incurred as a result of the emergency nature of the abatement.
15. TID should be required to reimburse the County the total amount of $17,100.00 for the
cost of abating the Road Hazard.
Page 2 of 2, Exhibit "A" to Order No. 2017-011
DATE:
Deschutes County Board of Commissioners
1300 NW WaII St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of June 14, 2017
FROM: John Laherty, Legal,
TITLE OF AGENDA ITEM:
Consideration of Board Signature Order No. 2017-011, Directing Irrigation District to
Reimburse Deschutes County for the Cost of Abating a Road Hazard
PUBLIC HEARING ON THIS DATE?: No
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of June 14, 2017- CONSENT
DATE: June 2, 2017
FROM: John Laherty
Legal Department 541-330-4645
TITLE OF AGENDA ITEM:
Board Adoption and signature of Order 2017-011 for reimbursement by Tumalo Irrigation District of
cost of abating a road hazard.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
On May 3, 2017, the BOCC held a hearing to determine whether to require TID to reimburse the
County for the cost incurred by the County in abating an emergency road hazard on Bill Martin Road.
At the conclusion of the hearing, the Board voted 3-0 to require TID to reimburse the County in the
amount of $17,100.00. Staff was directed to prepare written findings.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Move adoption and signature of Order 2017-011.
ATTENDANCE: John Laherty, Legal Department
DISTRIBUTION OF DOCUMENTS:
Original to BOCC
Copies to Road Dept., Legal