2020-389-Order No. 2020-060 Recorded 11/12/2020IC»T I:iTivi:I
am-/
LEGAL COUNSEL
Recorded in Deschutes County CJ2020-389
Nancy Blankenship, County Clerk
Commissioners' ,journal 11 /12/2020 4:10:57 PM
101 MR 0, 11111
2020-389
111 W,
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order to Hear an Appeal of Hearings
Officer's Decision in File No. 247-20- * ORDER NO.2020-060
000187-LR, 191-CU, 192-CU, 193-SP, 461-
MA.
WHEREAS, on September 4, 2020, the Hearings Officer denied Application Nos. 247-20-
000191-CU, 192-CU, 193-SP, 461-MA and approved Application no. 247-20-000187-LR; and
WHEREAS, on September 16, 2020, Three Sisters Irrigation District, the Applicant, appealed
(File No. 247-20-000637-A) the Deschutes County Hearings Officer's Decision on File No. 247-20-
000191-CU, 192-CU, 193-SP, 461-MA; and
WHEREAS, on September 16, 2020, Central Oregon Land Watch, the Appellant, appealed
(File No. 247-20-000635-A) the Deschutes County Hearings Officer's Decision on File No. 247-20-
000187-LR, 191-CU, 192-CU, 193-SP, 461-MA; and
WHEREAS, Section 22.32.035 of the Deschutes County Code allows the Deschutes County
Board of County Commissioners ("Board") discretion on whether to hear appeals of Hearings
Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review these
applications on appeal; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will hear on appeal application 247-20-000187-LR, 191-CU, 192-CU,
193-SP, 461-MA pursuant to Title 22 of the Deschutes County Code and other applicable provisions
of the County land use ordinances.
Section 2. The appeal shall be heard de novo in order to afford the Board the utmost
discretion with which to interpret the Deschutes County Code and any other land use criteria at
issue.
ORDER No. 2020-060
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or
parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Section 4. Pursuant to Section 22.32.024, the Board waives the requirement that the
appellant provide a complete transcript for the appeal hearing.
Section 5. Both parties have filed appeals and the at -cost -of -service deposit amount will
be equitably refunded, or additional incurred costs equitably deducted from both parties.
DATED thise day of 020.
ATTEST: n,
Recording Secre a y
ORDER NO.2020-060
BOARD OF COUNTY COMMISSIONERS
PATTI ADAIR, Chair
ANTHONY DeBONE, Vice \air
A A /
PHILIP G. HENDERSON, Commissioner
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Monday Meeting of November 9, 2020
FROM: Tarik Rawlings, Community Development, 541-317-3148
TITLE OF AGENDA ITEM:
Consideration: Appeal of Hearings Officer Decision on a Proposal to Construct a New
Hydroelectric Facility in Conjunction with the Irrigation System Owned and Operated by
the Three Sisters Irrigation District (TSID) and a Lot of Record Verification for the Subject
Property
Attendance: Tarik Rawlings, Associate Planner
Ili14IT, 7:L1010111►1Vi
TO: Board of County Commissioners
FROM: Tarik Rawlings, Associate Planner
DATE: November 4, 2020
RE: 150-day Land Use Clock Timeline Update - Appeal of Hearings Officer Decision on a
proposal to construct a new hydroelectric facility in conjunction with the irrigation
system owned and operated by the Three Sisters Irrigation District (TSID) and a Lot of
Record verification for the subject property.
The Board of County Commissioners (Board) will conduct a meeting on November 4, 2020 and
consider hearing an appeal of a Hearings Officer decision (File Nos. 247-20-000187-LR, 191-CU, 192-
(-I I 1 QQ-CD Ar,1 -%AA) rlonwina -n nrnnncal fnr a nPIAI h%AmPlartrir fnrility hi it annrnvina tha I nt of
Record verification for the subject property.
I. BACKGROUND
On October 21, 2020, the Board considered hearing an appeal of a Hearings Officer decision under
files 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA. During this meeting, Chair Adair recused
herself from the proceedings, and Commissioner Henderson was not present to vote on the
consideration. As a result, the consideration was rescheduled to October 26, 2020. On October 26,
2020, the Board again considered hearing the subject appeal. During consideration discussions, the
Board (composed of Commissioners DeBone and Henderson) highlighted the fact that the timeline
of the subject land use files will expire on December 4, 2020 (the end of the 150-day land use clock)
and that there would be limited time for the Board to render a decision on the matter, if accepted
by the Board.
In response to the timeline concerns, the Board requested that the consideration be rescheduled,
again, to November 9, 2020. The Board made it clear that they expect an update related to timeline
associated with the 150-day land use clock and whether the applicant is willing to toll the 150-day
land use clock.
On October 29, 2020, staff received a written request from the applicant to toll the 150-day land use
clock associated with the subject land use files. The applicant specifically requested a toll period of
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
�Z� (541) 388-6575 @ cdd@deschutes .org @ www.deschutes.org/cd
27 days between the dates of December 4, 2020 and December 31, 2020. Scheduling discussions
regarding potential additional tolling periods are still underway between staff and the applicant and
staff will keep the Board updated on any scheduling changes related to the 150-day land use clock.
II. 150-DAY LAND USE CLOCK
Based on the submission of the Modification of Application file (247-20-000461-MA) the land use
review clock for the overall proposal was restarted, beginning on July 7, 2020 and the original date
the County must take final action on these applications was December 4, 2020. With the inclusion
of the 27-day toll period, the new date the County must take final action on these applications is
December 31, 2020.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 2 of 2
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Monday Meeting of October 26, 2020
DATE: October 21, 2020
FROM: Tarik Rawlings, Community Development, 541-317-3148
TITLE OF AGENDA ITEM:
Consideration: Appeal of Hearings Officer Decision on a Proposal to Construct a New
Hydroelectric Facility in Conjunction with the Irrigation System Owned and Operated by
the Three Sisters Irrigation District (TSID) and a Lot of Record Verification for the Subject
Property
Attendance: Tarik Rawlings, Associate Planner
MEMORANDUM
TO: Board of County Commissioners
FROM: Tarik Rawlings, Associate Planner
DATE: October 13, 2020
RE: Appeal of Hearings Officer Decision on a proposal to construct a new hydroelectric
facility in conjunction with the irrigation system owned and operated by the Three
Sisters Irrigation District (TSID) and a Lot of Record verification for the subject
property.
The Board of County Commissioners (Board) will conduct a meeting on October 19, 2020 and
consider hearing an appeal of a Hearings Officer decision (File Nos. 247-20-000187-LR, 191-CU, 192-
CU, 193-SP, 461-MA) denying a proposal for a new nyaroeiectric_ iauury, rout approvi►ig uie Lot U1
Record verification for the subject property.
1. BACKGROUND
The property subject to this application is located approximately 5.1 miles northeast of the City of
Sisters. The specific location is noted in the following table:
Map Number & Tax Lot Address
14-11-33, 500 _d__18150 Simmons Road, Sisters, OR 97759
The Applicant, TSID, has requested conditional use and site plan approval to establish a
hydroelectric facility in conjunction with the exiting irrigation system owned and operated by TSID.
Concurrent with the conditional use and site plan reviews, the Applicant requested a lot of record
verification for the subject property. Lastly, the request includes a Modification of Application to
include underground utility lines partially located within mapped floodplain areas on the subject
property.
The subject 97.60-acre property is developed with two (2) high -density polyethylene (HDPE)
irrigation pipelines, 42" and 18" in respective diameters, which serve approximately 2,000 irrigated
acres of farmland within the boundaries of Three Sisters Irrigation District. The interior of the
property contains dirt and gravel driveways, and parking areas associated with the Three Sisters
'11 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P O Box 6005, Bend, OR 97708-6005
A. (541) 388-6575 @ cdd@deschutes org a \niww deschutes,orglcd
Irrigation District. The property currently supports an approximately 12-acre manmade water body
referred to as the McKenzie Regulating Reservoir (McKenzie Reservoir). The location of the McKenzie
Reservoir corresponds to the location of state -mapped wetland areas and areas of mapped Special
Floodplain Hazard Area (SFHA) on the subject property.
The subject application was referred to an initial public hearing, which took place on June 2"d, 2020.
During the hearing, the applicant requested and the Hearings Officer subsequently granted, a
request to continue the public hearing to July 141h, 2020. On July 7th, 2020, the applicant submitted
a Modification of Application for the new inclusion of underground electrical distribution lines
associated with the proposed hydroelectric facility.
A continued public hearing was held on July 141h, 2020. The Hearings Officer issued his decision on
September 4th, 2020.
II. DECISION
Deschutes County Hearings Officer Gregory Frank rendered a final decision denying the Applicant's
request for site plan, conditional use, and modification of application approval associated with the
proposed hydroelectric facility, but approving the concurrent request for lot of record verification.
III. APPEAL
The Applicant (TSID) submitted a timely appeal of the Hearings Officer's final decision on September
16, 2020. The Applicant requests the Board initiate review and conduct a hearing to review the
following issues:
• Whether the Hearing's Officer erred in finding that DCC 18.16.040 does not incorporate the
requirements of OAR 660-033-0130 and whether there is evidence in the record that satisfies
all requirements of OAR 660-033-0130.
• Whether the Hearing's Officer erred in finding the Applicant did not meet the dimensional
standards of DCC 18.32.040(A).
The Applicant is requesting the Board waive the transcript requirements outlined in DCC
22.32.024(D). Further, the Applicant requests a limited de novo review centered on the above -
referenced issues.
Central Oregon Land Watch (COLW) submitted a timely appeal of the Hearings Officer's final
decision on September 16, 2020. The Appellant requests the Board initiate review and conduct a
hearing to review the following issues:
• Whether the Hearings Officer's decision erroneously found that criteria in DCC 18.128.260(B)
are not applicable.
• Whether the Hearings Officer's decision misinterpreted the criteria in DCC 18.128.260(A).
• Whether the Hearings Officer's decision fails to make findings responding to the dimensional
standards of the Flood Plain zone.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 2 of 6
COLW requests an on -the -record review limited to the above -referenced issues.
COLW also requests the multiple appeals filed on behalf of this proposal be consolidated pursuant
to DCC 22.32.025, and the submitted Board appeal deposit be split among all appellants and an
equitable refund be distributed to all appellants, including COLW.
Staff clarifies the Board appeal deposit is not a fee and notes the at -cost -of -service amount
deducted from the deposit pursuant to the Board proceedings will be split between the two
appellants' submitted deposits. Should the Board choose to hear the appeal, any unused deposit
amount will be refunded to the appellants. Should the Board choose to not hear the appeal, a
refund will be equally distributed to the appellants.
IV. BOARD OPTIONS
If the Board decides that the Hearings Officer's decision shall be the final decision of the county,
then the Board shall not hear the appeal and any party appealing may continue the appeal as
provided by law. The decision on the land use applications becomes final upon the mailing of the
Board's decision to decline review. Should the Board choose to not hear the appeal, a refund of the
submitted BOCC appeal deposit will be equally distributed to the appellants.
Board Order No. 2020-060 has been provided. In determining whether to hear an appeal, the Board
may consider only:
1. The record developed before the Hearings Officer,
2. The notice of appeal, and
3. Recommendation of staff
Should the Board choose to hear the appeal, any unused deposit amount will be refunded to the
appellants. In addition, if the Board decides to hear the appeal, it may consider providing time limits
for public testimony.
V. 150-DAY LAND USE CLOCK
Based on the submission of the Modification of Application file (247-20-000461-MA) the land use
review clock for the overall proposal was restarted, beginning on July 7, 2020. Therefore, the new
date the County must take final action on these applications is December 4, 2020,
Attachments:
Document Item No.
2020-10-13 BOCC Consideration Memo 1
247-20-000637-A Notice of Appeal - TSID 2
247-20-000635-A Notice of Appeal - COLW 3
20-187-LR, 191-CU, 192-CU, 193-SP, 461-MA FD NOD 4
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 3 of 6
2020-08-11 TSID Closing Argument
5
Supplemental Materials - Maintenance Plans and EAPs for Tailrace and Utility
6
Conduit, 1
Supplemental Materials - Desert Sand & TSID Joint Statement
7
2020-08-04 M McHopp Email RE Desert Sands Agreement
8
2020-08-04 J Jorgensen (FCA) Comments
9
2020-08-04 COLW (R Isbell) Comments
10
2020-08-04 Applicant response to COLW and T Heisler
11
2020-08-04 C Horrell (COID) comments
12
2020-08-04 Applicant Response - Whychus Creek flow and conservation
13
2020-08-03 P Russell (Sr Trans Planner) comments
14
2020-08-02 G Molesworth comments
15
2020-07-28 M Narisi Comments
16
Facility Description and Supplemental Figures - TSID
17
Supplemental Exhibits #2
18
2020-07-27 R Scheid (Bldg Div) Comments [for modification]
19
2020-07-28 D O'neill Comments
20
2020-07-25 M Narzisi Comments
21
2020-07-25 N Becki Comments
22
2020-07-24 L Fletcher Comments
23
2020-07-24 C Milstead Comments
24
2020-7-28 Public Comment - COLW - R Isbell
25
7.27.2020 Staff Memo
26
TSID Open Record Response
27
2020-07-23 L Worcester Comments
28
2020-07-24 G Nicholson Comments
29
2020-07-23 D Grosz Comments
30
2020-07-22 M Hoppe comments
31
2020-07-22 J Brudier Comments
32
2020-07-22 E&M Connelly Comments
33
2020-07-22 S Hull Comments
34
2020-07-21 S O'Neill Comments
35
2020-07-21 D O'Neill Comments
36
2020-07-21 D Bialous Comments
37
2020-07-21 C Turpen Comments
38
2020-07-19 L Nicholson Comments
39
2020-07-14 Public Comment - OWRC
40
2020-07-14 Public Comment - Deschutes River Conservancy
41
Supplemental Exhibits
42
Continued Hearing Memo
43
Supplemental Burden of Proof
44
2020-07-13 D Moldal (Energy Trust of OR) comment
45
2020-07-13 J O'Shea (Farmers Conservation Alliance) comment
46
2020-07-13 P Adair Comments
47
2020-07-13 Desert Sand Residents Comments
48
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 4 of 6
20-187-LR, 191-CU, 192-CU, 193-SP Staff Memo
49
247-20-000461-MA Land Use Sign Affidavit
50
247-20-000461 -MA App Materials
51
Code Enforcement Photos&Notes
52
2020-06-30 M Hopp Email RE Questions about Hearing
53
20-187-1-R, 191-CU, 192-CU, 193-SP NOPH
54
Flood Plain engineering letter - LB
55
2020-06-18 B Wilson Email RE Holmes Road upgrade
56
Toll Request
57
TSID Staff Report Presentation
58
CEC letter
59
Overhead Electrical Lines Diagram
60
Jordan Ramis Letter
61
2020-05-26 T Rawlings Email RE Staff Report
62
2020-05-19 D O'neill Comments
63
Bulletin Affidavit
64
2020-05-14 D O'neill comments
65
2020-05-06 M Thalacker Email RE HO Deposit Confirmation
66
2020-05-10 D O'Neill Comments
67
2020-03-17 Land Use Sign Affidavit
68
20-187-1-R, 191-CU, 192-CU, 193-SP NOPH
69
2020-04-23 D O'Neill comments 6
70
2020-04-23 D O'Neill comments 5
71
n^�- n n n-i
LULU-U4-L3 D V V:CIII comments 3
-71
/ Z-
2020-04-23 D O'Neill comments 4
73
2020-04-23 D O'Neill comments 2
74
2020-04-22 TSID repsonse to Hopp Comments
75
2020-04-17 M Hoppe Comments
76
STORMWATER PLAN
77
Site Plan & Design Specifications
78
Revised Site Plans
79
2020-04-13 P Lickwar (USFWS Comments)
80
2020-04-09 M Thalacker RE Water Saving Percentage
81
Site Photos
82
2020-04-07 M Thalacker email RE Gate Permit
83
2020-04-07 Connelly Comments
84
Wetland Land Use Notice Response
85
Watson DSL Letter 2002 (002)
86
TSID Tail Race Zoning Map Wetland PSSCh
87
Site Plan Narrative 104
88
Site Plan with Map
89
Site 104A Burden of Proof Statement Final
90
S Fish & Wildlife Wetland inventory Code Classification
91
McKenzie Reservoir Storage Water Right Certificate
92
McKenzie Deed
93
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 5 of 6
2020-03-27 WLUN Response
94
2020-03-25 DSL email showing TSID Re -regulating Reservoir exempt from
95
Oregon Fill & Removal
2020-03-31 R Scheid (Bldg Div) Comments
96
2020-03-17 P Russell (Sr Trans Planner) Comments
97
2020-03-16 E Connelly email RE Road Conditions
98
2020-03-27 D O'Neill email RE Notice Request
99
2020-03-16 E Connelly email RE Road Conditions 2
100
20-187-LR, 191-CU, 192-CU, 193-SP
101
2020-03-19 Withdrawal Request - 20-194-TU,
102
Comment - COLW
103
20-187-LR, 191-CU, 192-CU, 93-SP, 94-TU NOA
104
Prior Notice Email
105
App. Materials
106
Transaction Receipt
107
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 6 of 6
'CES
A'
APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS
ao
FEE:�j3��,
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22,
4. If color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
Included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Three Sisters Irri ation District Phone; ( 541 ) 549.8815
Appellants Name (print): _ 9
Mailing Address 6800 Hwy` 20 West, P.O. Box 2230 City/State/Zip: _Sisters, OR 97759
Email Address: Manager@tsidweb.org..___,____.�. _
Land Use Application Being Appealed: 191-CU, 192 CU, 193-SP, 247-20-000461 MA
Property Description: Township 14S Range 11 E Sec �i _ 33 Tax Lot 1411330000500
ppSignature:_Date:.. --
A ellanYs
BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND
AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR,
AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS
OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND
UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
360 SW Bond St., Ste. 510 Keenan Ordon-Bakalian
Bend, OR 97702 Admitted in Oregon
Tel. (541) 550-7900 keenan.ordon-bakalian@jordanramis.com
Fax (503) 598-7373 Direct Dial; (360) 667-4843
www.lordanramis.com
September 16, 2020
VIA EMAIL
Deschutes County Board of Commissioners
c/o: Tarik Rawlings, Associate Planner
Deschutes County Community Development
117 NW Lafayette Ave,
Bend, OR 97703
E-Mail:1 ril<.I awlinps(c)Cleschules.prg
Re: Appeal of 191-CU, 192-CU, 193-SP, 247461-MA (Three Sisters Irrigation District
Hydroelectric Facility Application)
Dear Board of County Commissioners:
Our office represents the Applicant, Three Sisters Irrigation District ("TSID" or the "District") and its
Manager, Marc Thalacker. The District is nearing completion of its twenty year, six -phase
modernization project, in which the District has piped 60 of the 65 miles of open canals in TSID. This
modernization effort has resulted in approximately 30 cfs of conserved water being certificated and
dedicated instream for Whychus Creek. The proposed McKenzie Hydroelectric Facility (the "McKenzie
Hydro") is the District's most recent endeavor to enhance the resiliency of farms, ranches and rural
communities, while simultaneously delivering significant benefit to the District's patrons and
Deschutes County citizens.
TSID appeals only two legal points in the Decision for 247-20-000187-LR, 191-CU, 192-CU, 193-SP,
461-MA (hereinafter referred to as the Decision"). All other factual and legal points were decided in
the Applicant's favor, so these two points of appeal are the sole impediments to approval. In deciding
against the Applicant's position, the Hearings Officer acknowledged that the points are largely matters
of code interpretation. These kinds of issues are appropriately the Board's to finally resolve because
the Board is the ultimate arbiter of the meaning of its own code. LUBA will, as a matter of law, defer to
Board of Commissioners' interpretations of its own code. ORS 197.829.
It is appropriate in this case to seek the views of staff who can provide an historical perspective on the
application of the Code. It is also appropriate to hear from members of the community on the wide
ranging impact of these new Hearings Officer interpretations on property and zoning rights of owners
of land zoned Flood Plain ("FP"). Without notice to them, their rights are affected substantially, but
these citizens had no opportunity to make their views known to the Hearings Officer. We therefore ask
the Board to hear the case, confined to the two grounds of appeal, and to grant a de novo review
limited to those two matters.
This appeal centers on two narrow issues of code interpretation: (1) whether the criteria of OAR 660-
033-0130 are applicable to this application, and if so, whether the Applicant has provided evidence
clearly addressing the specific requirements of OAR 660-033-0130; and (2) whether the Hearings
49077-76512 4631-3267.6299,1
Lake Oswego, Oregon I Vancouver, Washington I Bend, Oregon
September 16, 2020
Page 2
Officer properly applied the dimensional standards of the MUM 0 zone, set forth in DCC 18.32.040(A),
to this project. TSID requests de novo review of these two limited issues, pursuant to DCC
22.32.027(B)(2)-(3).
The lengthy Decision and the Applicant's record submittals provide an accurate account of the history
of this project and its compliance with the applicable approval criteria. Apart from the Hearings
Officer's findings on the two issues set forth above, the District hereby incorporates the remainder of
the Hearings Officer's findings, arguments and conclusions into this letter. The Board of County
Commissioners (the "Board") should similarly include these findings and conclusions in its final order
on this appeal. In addition, we recommend that the Board include an express interpretation that DCC
18.16.040 codifies the criteria of OAR 660-033-0130, which is consistent with Deschutes County
Staff's Approval of TSID's Watson Hydroelectric Facility project. See attached, Findings and Decision
(CU-12-12 and SP-12-18). The specific reasons for this appeal are discussed individually, below.
The Hearings Officer Erred In Finding That DCC 18.16.040 Does Not Incorporate The
Requirements of OAR 660-033-0130.
In this application, the District proposes to establish a hydroelectric facility on property that falls
partially within the Exclusive Farm Use ("EFU") zone. The specific site of the proposed hydroelectric
facility is shown below in Figure 1. The proposed facility will be located in a portion of the Subject
Property that is zoned MUM 0, with only a portion of the utility trench being located in the EFU-zoned
portion of the Subject Property.
Figure 9 - Proposed Project Location within MUA10/FP/EFU Zones
49077-78512 4831-3267.6299.1
September 16, 2020
Page 3
DCC 18.160.030(K) explicitly calls out hydroelectric facilities as an allowable use within the EFU zone.
The provision is restated in full:
DCC 18.16.030. Conditional Uses Permitted - High Value and Non -Meth Value
Farmland.
The following uses may be allowed in the Exclusive Farm Use zones on either high
value farmland or non -high value farmland subject to applicable provisions of the
Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable sections of
DCC Title 18.
K. Commercial utility facility, including a hydroelectric facility (in accordance with
DCC 18.116.130 and 18.128.260, and OAR 660-033-0130), for the purpose of
generating power for public use by sale, not including wind power generation
facilities.
In the September 4, 2020 Decision, the Hearings Officer found that the Applicant satisfied its burden
with respect to DCC 18.116.130 and DCC 18128.260. Decision, at 13 (Sept. 4, 2020). However, the
Hearings Officer also found that:
"the Applicant argued that it only needed to meet the requirements of DCC 18.16,040;
which the Hearings Officer finds are similar, but not identical, to the requirements of
OAR 660-033-0130. The Hearings Officer, based upon the evidence in the record,
finds that this approval criterion is not met because of Applicant's failure to provide
evidence clearly addressing the specific requirements of OAR 660-033-0130."
Decision, at 13 (Sept. 4, 2020).
The Hearings Officer erred in finding that DCC 18.16.040 does not codify OAR 660-033-0130. The
District, in drafting its Burden of Proof for this application, relied on Deschutes County Staffs previous
decision approving TSID's Watson Hydroelectric Facility project, CU-12-12 and SP-12-18. In the 2012
decision, staff interpreted DCC 18.16.030(L) [later renumbered to DCC 18.16.030(K)], to codify OAR
660-033-0130 (the "[c](teria from OAR 660-033-0130 have been codified in DCC section 18.16.040").
CU-12-12/SP-12-18, at 6 (Sept. 25, 2012). The District's argument that DCC 18.16.040 codified OAR
660-033-0130 is supported by substantial evidence in the form of the County's own interpretation in
CU-12-12/SP-12-18. The District requests that the Board follow the established precedent set by its
own staff in CU-12-12/SP-12-18 and interpret DCC 18.16.040 to have codified OAR 660-033-0130.
Furthermore, in the 2012 decision for CU-12-12/SP-12-18, staff found that the criteria of DCC
18.16.040 were met. The District's Watson Hydro Proposal, CU-12-12/SP-12-18, is substantially
similar to the District's current McKenzie Hydro application. For the purposes of this application, TSID
comprehensively addressed the criteria of DCC 18.16.040 on pages 7-8 of its Supplemental Burden
of Proof. The District requests that the Board find that DCC 18.16.040 codified OAR 660-033-0130,
and that the District has met the relevant approval criteria of DCC 18.16.040. See APPLICANT'S
SUPPLEMENTAL BURDEN OF PROOF, at 7-8 (Jul. 14, 2020).
49077-70512 4831-3267-6299 1
September 16, 2020
Page 4
Alternatively, The Board Should Find There Is Evidence In The Record That Satisfies All Of The
Requirements of OAR 660-033-0130.
Should the Board determine that the District is required to independently address the specific
requirements of OAR 660-033-0130, there is substantial evidence in the record demonstrating that the
application satisfies the requirements of OAR 660-033-0130. This is supported by the Decision, where
the Hearings Officer states that "the record in this case may have included much, if not all, of the
evidence necessary to meet the requirements of OAR 660-033-0130." Decision, at 66. If necessary,
TSID will be able to demonstrate through this appeal that the portion of the proposed utility trench to
be located in the EFU zone meets the review criteria of OAR 660-033-0130.
The Hearings Officer Erred In Finding That The Applicant Did Not Meet The Dimensional
Standards Of DCC 18.32.040(A).
Unfortunately for TSID, as well as many other landowners within Deschutes County, the Hearings
Officer misinterpreted the minimum lot size standards for development of the Subject Property. The
Hearings Officer entertained a superfluous argument offered by an interested party, Central Oregon
LandWatch ("COLW"), in finding that the 97.60-acre Subject Property only contains 9 acres of land
zoned MUA, therefore, it cannot meet the minimum lot size standard set forth in DCC 18.32.040(A).
Decision, at 14. This interpretation omits relevant Deschutes County Code provisions, contradicts the
Hearings Officer's own Decision approving 2470290999187-LR, and defies common sense. The
criterion at issue, DCC 18.32.040(A), reads in full:
"The minimum lot size shall be 10 acres, except planned and cluster developments
shall be allowed an equivalent density of one unit per seven and one-half acres and
planned and cluster developments within one mile of an acknowledged urban growth
boundary shall be allowed a five acre minimum lot size or equivalent density."
For several reasons, the Hearings Officer has erred in finding that the criterion of DCC
18.32.040(A) applies individually to the MUA zoned land at the Subject Property. Foremost, the
subject parcel was determined to be 97.60 acres in size. Decision, at 10 (Sept. 4, 2020). The
minimum lot size for the MUA10 zone is 10 acres. DCC 18.32.040(A) applies to "minimum lot
size," not "minimum zoning district size. Here, the lot at issue is 97.60 acres. The fact that
multiple zoning districts were applied to the parcel by Deschutes County does not, as a legal
matter, divide the lot or parcel into multiple lots or parcels that correspond with the boundaries of
the zoning districts. Allowing the Hearings Officer's Decision to stand will effectively re -write
Deschutes County's Code provisions for the establishment of lots of record and the development
of parcels. It is illogical to find that an existing 97.60-acre parcel does not satisfy the 10-acre
minimum lot size of the MUA-10 zone because 9 acres of its 97.60-acres are zoned MUA-10.
There is only one 97.60 acre lot.'
1 TSID notes that Tax Lot 500 was originally described in a Bargain and Sale Deed dated August 21st,
1957, recorded in Volume 117, Page 179, Deschutes County Book of Records. The conveyance of
the property conformed to all zoning requirements at the time of conveyance in 1957. See DCC
18.04.030(A)(3); see also ORS 92.017 ("[a] lot or parcel lawfully created shall remain a discrete lot or
parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by
lave'). The parcel has not been altered since creation in 1957. Deschutes County's later application of
the MUA10 zoning district does not subsequently render the Subject Property undevelopable.
49077-78512 4831-3267-6299 1
September 16, 2020
Page 5
Second, the Hearings Officer's Decision is contradicted by the explicit language of DCC
18.120.020. The code says:
UCC 18.120, 020. Nonconforming Lot Sizes.
C. Any lot or parcel that is smaller than the minimum area required in any zone may be
occupied by an allowed use in that zone provided that:
1. The lot or parcel is a lot of record, as defined in DCC18.04.030, Lot of record.
2. The use conforms to all other requirements of that zone.
3. if there is an area deficiency, residential use shall be limited to a single dwelling unit.
4. All necessary permits are obtained.
As has been made clear above, the Subject Property was determined to be a lot of record by the
Hearings Officer and is 97.60 acres, far exceeding the 10-acre minimum area requirement of DCC
18.32.040(A). Therefore, this provision should not be necessary to reverse the Hearings Officer's
flawed finding on the applicability of dimensional standards for the MUA10 zone. However, if the
Board decides to apply the minimum lot size standards of DCC 18.32.040(A) to only the 9 acres of
MUA10 zoned land within the 97.60-acre Subject Property, the Subject Property is still a
nonconforming lot that is developable because it was determined to be a lot of record.
The Subject Parcel qualifies as a nonconforming lot because it meets the criteria of DCC
18.120.020(C). Here, the Hearings Officer approved 2470290999187-1-R, finding that Tax Lot 500,
Map 14-11-33, is a single Lot of Record as defined in DCC 18.04.030. Decision, at 10, 67. The
Hearings Officer also found that the application conforms to all other requirements of the MUA10
zone. Decision, at 13-16. This application is not for a residential use, so DCC 18.120.020(C)(3) does
not apply. If the Board approves this application on appeal, all necessary permits for hydroelectric use
will be obtained. The Board should hear this appeal and overturn the Hearings Officer's finding that
the Applicant has not met DCC 18.32.040(A), because this finding is directly contradicted by DCC
18.120.020(C). See also Decision, at 67 ("Approval of Lot of Record Application as set forth in
Deschutes County File No. 247-20-000187-LR).
Finally, the Board should consider the practical implications of adopting the COLW and the Hearings
Officer's multiple parcel theory. This argument begins to falter when considered in the context of the
FP zone. The FP zone requires a 10-acre minimum lot size for land with a RREA plan designation
and an 80-acre minimum lot size for land designated Agriculture. The FP zone on the Subject
Property includes both comprehensive plan designations. Does this mean that the area zoned FP
must be viewed as a separate parcel for purposes of meeting the minimum lot size (10 acres for FP-
RREA and 80 for FP -AG) or may the entire area zoned FP be included in calculating the size of the
imaginary "parcel" used by COLW to calculate compliance with the minimum lot size of the FP zone?
COLW and the Hearings Officer's view of minimum lot size standards would render properties
burdened with a FP designation virtually unbuildable in almost all cases. This is contrary to the
express purpose of the FP Zone, which is to regulate development so as to protect the public from the
hazards associated with flood plains. DCC 18.96.010. There are a myriad of parcels within Deschutes
County that have small portions designated with FP zoning. If the Board upholds COLW and the
Hearings Officer's misinterpretation of the minimum lot size requirements within the County's zoning
districts, landowners of these parcels will be precluded from developing their properties, even when
the development is well above the flood plain. This would render large swaths of land within
49077-78512 4B31-3267-6299.1
September 16, 2020
Page 6
Deschutes County undevelopable, revise the County's own procedures for recognizing lots of record
under DCC 18.04.030 in the guise of an interpretation, and disregard the plain language of DCC
18.32.040(A), which applies minimum lot size standards to the lot itself, not to the acreage of the
underlying zoning district.
De Novo Review Is Proper For This Appeal.
The Board should grant de novo review of this appeal. The Board may grant de novo review at its
discretion upon considering the factors set forth in DCC 22.32.027(B)(2)(a)-(d), and (13)(3). TSID will
address these factors individually, below.
DCC 22.32.027. Scope of Review.
(B)(2) The Board may grant an appellant's request for a de novo review at its discretion after
consideration of the following factors:
(a) Whether hearing the application de novo could cause the 150-day time limit to be
exceeded;
On June 12, 2020, the Applicant extended the 150-day time limit for Deschutes County to take final
action on this application. TSID does not believe that hearing this appeal de novo will cause the 150-
day time limit to be exceeded. However, to the extent it appears likely, the District will stipulate to
extend the 150-day timeline as necessary. Because the 150-day time limit is not at issue, this factor
weiahs in favor of the Board granting de novo review.
(c) Whether the substantial rights of the parties would be significantly prejudiced without de
novo review and it does not appear that the request is necessitated by failure of the appellant
to present evidence that was available at the time of the previous review;
The substantial rights of both TSID and Deschutes County landowners will be significantly prejudiced
without de novo review because the Hearings Officer has made findings that misapply or omit
essential provisions of Deschutes County Code. Specifically, the Hearings Officer has failed to
address the standards of DCC 18.120.020 in finding that the Subject Property is undevelopable. As
has been detailed above, COLW and the Hearings Officer's theory on minimum lot size is fatally
flawed, as it ignores the plain language of DCC 18.32.040(A) and the Hearings Officer's decision
finding the Subject Property is a lot of record. The Hearings Officer's lot size theory would also render
many parcels across Deschutes County undevelopable. This finding must be overturned, so as to
prevent substantial harm to both TSID and Deschutes County citizens at large.
De novo review is the proper form of review, as it will provide an opportunity for landowners affected
by the Hearings Officer's strained analysis of minimum lot size to provide their perspective and
valuable comment. These parties have yet to be afforded an adequate opportunity to comment on this
issue, as they were not made aware of its existence until the issuance of the Hearings Officer's
Decision on September 4, 2020.
Furthermore, if the Hearings Officer's findings on the applicability of OAR 660-033-0130 become final,
the District will be deprived the opportunity to demonstrate compliance with this review criterion. As
previously discussed, TSID relied on Deschutes County Staff's 2012 decision in CU-12-12/SP-12-18,
49077-78512 4631-3267-6299 1
September 16, 2020
Page 7
where staff found that DCC 18.16.040 codifies the criteria of OAR 660-033-0130. There was no
reason for the District to dispute staff's finding on this point, nor was it aware that the Deschutes
County Hearings Officer would not follow the precedent set by the final decision in CU-12-12/SP-12-
18. Although the District believes that OAR 660-033-0130 has been codified within the Deschutes
County Code, the District calls the Board's attention to the fact that the Hearings Officer noted the
"Applicant may have provided evidence into the record of this case that satisfies many, if not most, of
the OAR 660-033-0130(16) requirements." Decision, at 13. It is certainly feasible for TSID to address
OAR 660-033-0130(16). De novo review is the best mechanism for the District to address OAR 660-
033-0130(16) separate from compliance with DCC 18.16.040, should the Board find this necessary.
(d) Whether in its sole judgment a de novo hearing is necessary to fully and properly evaluate
a significant policy issue relevant to the proposed land use action.
A de novo hearing is necessary to fully and properly evaluate whether the Hearings Officer's decision
on minimum lot size adversely impacts Deschutes County landowners and renders many parcels
within the County undevelopable. The Hearings Officer's finding on this issue also disregards his own
determination approving the Subject Property as a legal lot of record and calls into question the future
effect and legitimacy of securing a legal lot of record determination under DCC 18.04.030.
Furthermore, the Hearings Officer's finding on this issue makes it necessary for the Board to render a
decision on the definition of "lot." Lot is currently defined as "a unit of land created by a subdivision."
DCC 18.04.030. "Lot area" means the total horizontal area contained within the lot lines. Id. Lot size is
not defined. The Hearings Officer's decision defines lot size as the boundaries of specific zoning
districts aoolied to a parcel. This establishes a policy which allows for the creation of multiple "lots"
within a parcel designated with more than one zoning district, with each "lot" corresponding to the
applied zoning districts. The District disagrees with the Hearings Officer's decision on the definition of
lot size.
TSID requests that the Board hold a de novo hearing and overturn the Hearings Officer's finding on
this issue, as it is not in accordance with the explicit provisions of either DCC 18.32.040(A) or DCC
18.120.020, or the approval of 2470290999187-LR.It would dramatically alter the obligations and
rights of individuals wishing to develop their land within Deschutes County. Impacted landowners
should also be afforded the opportunity to provide comment during a de novo hearing on an issue has
the potential to dramatically alter landowners' rights and obligations.
(B)(3) Notwithstanding DCC 22.32.027(B)(2), the Board may decide on its own to hear a timely
filed appeal de novo. The Board may, at its discretion, determine that it will limit the issues on
appeal to those issues listed in an appellant's notice of appeal or to one or more specific
issues from among those listed on an applicant's notice of appeal.
This appeal is a matter of public interest as the proposed McKenzie Hydro is an infrastructure project
of critical importance to Deschutes County. Without intervention by the Board, this project is in
jeopardy of not being completed. The green energy to be generated at the McKenzie Hydro will be
transported to Bonneville Power Administration's Redmond Substation, for sale to Pacific Power.
Pacific Power, in conjunction with Energy Trust of Oregon, will use the renewable energy credits
produced by this project to comply with Oregon's Renewable Portfolio Standard. In turn, TSID will use
the hydroelectric revenues from the proposed facility to pay back Clean Water Revolving Loans
(CW RLF) that the District received from the Oregon Department of Environmental Quality.
49a77-785V 483 3267-6299,1
September 16, 2020
Page 8
These loans helped pay for the six phases of piping that reduced seepage loss from the previously
open canal between Watson Reservoir and McKenzie Reservoir and permanently protected 7.83
cubic feet per second of conserved water in Whychus Creek, but at a cost of $14 million (including the
costs of providing fish passage at the diversion dam, completing stream restoration, and installing the
fish screen, all of which were necessary steps in achieving a piped system).
TSID's modernization process has established it as a national leader in water conservation, and its
existing inline hydroelectric projects serve as a model for other districts across the state and the
nation. TSID's state of the art pipeline water delivery system has cut out the need for irrigation pumps
and saves the District 5 million Kilowatt hours of electricity per year. Upon completion of the McKenzie
Hydro, TSID expects to generate around one 1 million Kilowatt hours per year. The positive impacts of
this proposed project cannot be understated --if approved, the McKenzie Hydro will provide multiple
benefits, including conserving water reducing fossil fuel energy consumption, increasing irrigation
delivery efficiency, and improving in -stream habitat for threatened and endangered fish and wildlife; all
while providing additional water to farmers during drought seasons.
The Board Should Limit The Issues On Appeal To Those Listed In This Notice Of Appeal.
The Board should limit the issues on appeal to whether the Applicant has provided evidence clearly
addressing the specific requirements of OAR 660-033-0130 and whether the Hearings Officer
properly applied the dimensional standards of the MUA10 zone to this application. The Board "may, at
its discretion, determine that it will limit the issues on appeal to those listed in an appellant's notice of
appeal." DCC 22.32.027(B)(3). Here, the Board should limit the issues on appeal to these two findings
of the Decision because the Applicant believes the Hearings Officer misapplied Deschutes County
Code in finding that these two approval criteria were not met, to the extent they are applicable, The
Applicant adopts and incorporates by reference all other findings and conclusions of the Hearings
Officer's Decision on this Application.
The Board Should Waive The Transcript Requirement, Pursuant To DCC 22.32.024(D).
The Board should waive the transcript requirement for this appeal because the substance of the June
2 Hearing and July 14 Continued Hearing will not provide additional context for the Board in deciding
the two issues on appeal. The Board has the authority to waive the requirement that the appellant
provide a complete transcript for the appeal hearing. DCC 22.32.024(D). In this case, neither issue on
appeal was discussed at either the June 2 Hearing or the July 14 Continued Hearing. The evidence in
the record, including the District's briefing and the Hearings Officer's Decision, offer the Board a
complete picture of the proceeding below. The Board should waive the transcript requirement
because requiring TSID to prepare a transcript will not provide the Board with any tangible benefit in
deciding the issues on appeal.
Conclusion.
TSID's McKenzie Hydro project represents the culmination of its decade long modernization project,
which has provided substantial ecological benefits and almost single-handedly restored instream
flows to Whychus Creek. This appeal presents the Board with an opportunity to resolve the two
outstanding issues identified by the Hearings Officer in his September 4 decision and approve an
essential public project that will benefit the citizens of Deschutes County. Indeed, the Hearings Officer
has noted that the "evidence and argument in Applicant's record submissions met nearly all of the
relevant approval criteria for the conditional use and site plan reviews." Decision, at 66.
49077-78512 4831-3267-6299 1
September 16, 2020
Page 9
Specifically, the Board should determine that DCC 18.16.040 codified OAR 660-033-0130. In the
alternative, the Board should allow the District the opportunity to demonstrate compliance with the
criteria of OAR 660-033-0130, which is certainly feasible, especially considering that the Hearings
Officer has acknowledged that "the record in this case may have included much, if not all, of the
evidence necessary to meet the requirements of OAR 660-033-0130." Id. The Board should also
overturn the Hearings Officer's finding that the District has failed to meet the dimensional standards of
DCC 18.32.040(A) for the reasons set forth above.
We thank you for your consideration of this appeal and Deschutes County's continued support of
TSID.
Very truly yours,
JORDAN RAMIS PC
07 ' 6-/1-
Keenan Ordon-Bakalian
Attorney
cc: Marc Thalacker
Tim Ramis
Steve Shropshire
49977-78512 4831-3267-6299,1
APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS
FEE: $4,926.00
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth In Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Sta"cannot advise a potential appellant as to „whether the appellant IS eligible to file an appeal (nrr
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Appellant's Name (print): _Central Oregon LandWatch Phone:( 541 ) 647-2930
Mailing Address: _ 2843 NW Lolo Dr. Ste, 200 _ ___.,__ City/State/Zip: Bend, OR 97703.__
Land Use Application Being Appealed: 247-20-000191-CU, 192-CU, 193_-SP, 461-MA
Property Description: Township 14 Range 11 Section 33 Tax Lot 500___________
Appellant's Signature: /s/ Rory Isbell Date: September 16,_2020
BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND
AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR,
AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS
OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND
UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date
set for receipt of written records.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O Box 6005, Bend, OR 97708-6005
e (541) 388-6575 @ cdd@deschutcs org (a www deschutes org/cd
NOTICE OF APPEAL
See attached appeal letter.
(This page may be photocopied if additional space is needed.)
www.colw.org
September 16, 2020
Filed in person and via email: Tarik.Rawlings@desehutes.org
Deschutes County Board of County Commissioners
c/o Tarik Rawlings, Associate Planner
Deschutes County Community Development Department
11.7 NW Lafayette Ave
Bend, Oregon 97703
Re: Appeal of Hearings Officer Decision in File Nos. 247-20-000191-CU, 247-20-000192-
CU, 247-20-000193-SP, and 247-20-000461-MA
Dear Chair Adair, Vice -Chair DeBone, and Commissioner Henderson,
Central Oregon LandWatch requests review by the Board of County Commissioners of
the Hearings Officer's decision ("decision") in File Nos. 247-20-000191-CU, 247-20-000192-
CU, 247-20-000193-SP, and 247-20-000461-MA.
The decision was issued on September 4, 2020 and denied the applicant's conditional use
applications, site plan application, and modification application (together, the "application") that
seek approval for a hydroelectric facility on a 97.6-acre property. The Hearings Officer denied
the application, finding that it fails to meet three applicable criteria of the Deschutes County
Code: DCC 18.16.030(K), 18.32.040(A), and DCC 18.124.060(I).
LandWatch agrees with the Hearings Officer's findings related to those criteria that
resulted in denial of the application. Respectfully, LandWatch appeals other portions of the
Hearings Officer's decision and requests the Board to uphold the decision denying the
application, including for the additional reasons outlined below.
LandWatch requests an on the record review pursuant to DCC 22.32.027(B)(1).'
LandWatch also requests that the Board limit its review to the issues described herein pursuant to
DCC 22.32.027(4).2
I "Review before the Board, if accepted, shall be on the record except as otherwise provided for
in DCC 22.32.027."
2 "The Board may, at its discretion, determine that it will limit the issues on appeal to those listed
in an appellant's notice of appeal or to one or more specific issues from among those listed on an
applicant's notice of appeal."
2
1. The Hearings Officer's decision erroneously found that criteria at DCC
18.128.260(B) are not applicable.
The Deschutes County Code, at DCC 18.128.260(A)-(B), imposes two sets of conditional
use criteria specific to hydroelectric facilities. The set of criteria at DCC 18.128.260(B) require
that an applicant "in addition to all other requirements" "shall submit" sets of "detailed plans"
"for approval." The applicant did not submit most of these required plans. The Hearings Officer
erroneously found that the criteria at DCC 18.128.260(B)(3)-(5), DCC 18.128.260(B)(5)(a), and
DCC 18.128.260(13)(5)(c)-(d) are not applicable, while finding that several other DCC
18.128.260(B) criteria "are met." Decision at 62-66. All of the DCC 18.128.260(B) are
applicable. The Hearings Officer erred in arbitrarily finding that certain of these criteria "are
met" while finding that others for which the applicant failed to respond are "not applicable."
In addition, the Hearings Officer erred in finding that the criterion at DCC
18.128.260(B)(5)(g) can be met through a condition of approval. This criterion cannot possibly
be met. It requires that the applicant "enter into an agreement with the County to fulfill all of the
requirements of 18.12.8.260(B)(1) through (5) before beginning construction," but the applicant
has already begun construction. Any future agreement with the County has already been
breached, and this criterion cannot be met. Further, a deferral of compliance with this criterion
through a condition of approval inappropriately denies the public's right to review such
compliance. Proof of compliance must be shown now.
2. The Hearings Officer's decision misinterpreted the criteria at DCC
18.128.260(A).
The Hearings Officer's decision fundamentally misinterprets the criteria imposed by the
Deschutes County Code on hydroelectric facilities. DCC 1.8.128.260(A)(1)-(12) impose distinct
criteria that must be met for approval of a new hydroelectric facility and that are unrelated to the
applicant's State -issued water rights.
The Hearings Officer's findings for these criteria repeatedly and erroneously find that so
long as the applicant possesses water rights issued by the State of Oregon, the obligations
imposed by these Deschutes County Code criteria do not apply. See decision at 57 ("The
Hearings Officer finds Applicant's proposal will not result in water diversion from Whychus
Creek that exceeds what it is currently legally authorized to appropriate.") The fact that the
applicant may be in compliance with its water rights does not mean it is in compliance with the
County's criteria at DCC 18,128.260.
In addition, the Hearings Officer's decision erroneously finds that there is no "affected
stretch of river" for several of these criteria. Decision at 55, 56, 59, 66. The water to be run
through the applicant's proposed hydroelectric facility would come from only one place:
Whychus Creek. Whychus Creek downstream from the applicant's diversion would be affected
by the proposed use.
Due to this flawed reasoning, the decision erroneously finds that the following criteria. are
either met or are not applicable: DCC 18.128.260(A)(3), DCC 18.128.260(A)(4), DCC
IS. 128.260(A)(5), and DCC 18.128.260(A)(6)(1)).
3. The Hearings Officer's decision fails to make findings responding to the
dimensional standards of the Flood Plain zones.
The 97.60-acre subject property has three underlying base zones: Exclusive Farm Use,
Multiple Use Agriculture, and Flood Plain. The decision correctly finds that the application does
not meet the 10-acre dimensional standard of the Multiple Use Agriculture zone. Decision at
14.1 However, the decision erroneously fails to make any finding responding to .DCC
18.96,110(C), the dimensional standard for the Flood Plain Zone which requires the subject
property include 80 acres of land zoned Flood Plain.
Thank you for your consideration of this appeal. Enclosed please find a check for the
appeal fee in the amount of $4,926.00. LandWatch requests an on -the -record hearing. If another
party appeals the Hearings Officer's decision and the appeals are consolidated pursuant to DCC
22.32.025, LandWatch requests that the fee be split among the appellants, which would result in
a refund of $2,463.00 to LandWatch.
1J
3 "The Hearings Officer found no evidence or argument in the record supporting a claim that the
[MUA] dimensional standards do not constitute approval criteria; or, in the alternative how
[MUA] dimensional standards were satisfied by Applicant's proposal. The Hearings Officer
finds that this criterion does apply to the MUA zoned land at the Subject Property."
Regards,
Rory Isbell
Staff Attorney
Central Oregon LandWatch
2843 NW Lolo Dr. Ste. 200
Bend, Or 97703
541-647-2930
Mailing Date:
Friday, September 4, 2020
HEARINGS OFFICER DECISION
FILE NUMBERS: 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 247-20-000461-MA
SUBJECT PROPERTY/
OWNER: Mailing Name: THREE SISTERS IRRIGATION DISTRICT
Map and Tax Lot: 1411330000500
Account: 150319
Situs Address: 18150 SIMMONS RD, SISTERS, OR 97759
APPLICANT: Marc Thalacker, Manager
ATTORNEY: Keenan Ordon-Bakalian, Jordan Ramis PC
PROPOSAL: The Applicant requests conditional use and site plan reviews to
construct a new hydroelectric facility in conjunction with the irrigation
system owned and operated bythe Three Sisters Irrigation District. The
Applicant is also requesting a Lot of Record verification for the subject
property.
HEARING DATE: June 2nd, 2020 - 6:00pm
STAFF CONTACT: Tarik Rawlings, Associate Planner
Phone: 541-317-3148
Email: Tarik.Rawl ingwsftdeschutes.org
1. APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.16. Exclusive Farm Use Zones (EFU)
Chapter 18.32. Multiple Use Agricultural Zone (MUA10)
Chapter 18.96. Flood Plain Zone (FP)
Chapter 18.116. Supplementary Provisions
Chapter 18.124. Site Plan Review
Chapter 18.128. Conditional Use
Title 22, Deschutes County Development Procedures Ordinance
117 NW I...a(ayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708 6005
(, (541) 388-6575 @ cdd(�deschutes,org @ www.deschutcs.orglcd
H. BASIC FINDINGS
LOT OF RECORD: The Hearings Officer finds the Subject Property meets the lot of record
requirements as that phrase is defined in DCC 18.04.030. The Hearings Officer incorporates the
finds for Section III (A), as additional findings for this paragraph.
SITE DESCRIPTION: The subject 97.60-acre property is developed with two (2) high density
polyethylene ("HDPE") irrigation pipelines, 42" and 18" in respective diameters, which serve
approximately 2,000 irrigated acres of farmland within the boundaries of Three Sisters Irrigation
District. The interior of the property contains dirt and gravel driveways, and parking areas
associated with the Three Sisters Irrigation District. The property currently supports an
approximately 12-acre man-made water body referred to as the McKenzie Regulating Reservoir
("McKenzie Reservoir"). The location of the McKenzie Reservoir corresponds to the location of state -
mapped wetland areas and areas of mapped Special Floodplain Hazard Area ("SFHA") on the subject
property. The property has a vegetative cover of mature juniper trees, sagebrush, native
groundcover, and other vegetation. The property is irregular in shape and fronts on both Simmons
Road and Holmes Road. The grade of the property is slightly lower in elevation in the eastern portion
of the subject property near the location of the McKenzie Reservoir, and slightly raised in the
northwestern portion of the subject property north of Holmes Road.
PROPOSAL: The applicant requests site plan review to construct a new hydroelectric facility in
conjunction with the irrigation system owned and operated by the Three Sisters Irrigation District.
The tail race (defined as a "water channel below a dam or water mill"') portion of the facility will be
Inrntnr4 nt Inact nartially lnrithin a mannPH flnnHnlain arPa. ThP nrnnnSPrl dPvPlnnmPnt inrludes the
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addition of overhead distribution power lines associated with the facility. The application materials
indicate that the proposed facility will contain a generator that will be operational 24 hours/day, 7
days/week, between March and November of each year. The applicant is also requesting a Lot of
Record verification for the Subject Property.
LAND USE HISTORY:
• 247-20-000183-PS: State of Oregon Water Resources Department Permit Sign -Off approval
(marked by Planning Staff as "Land Use Approval Being Pursued") for a new hydroelectric facility,
which is the subject of files 247-20-000187-LR, 191-CU, 192-CU, 193-SP.
• 247-16-000218-PS: State of Oregon Water Resources Department Permit Sign -Off approval for
Direct Main Canal Piping associated with Phase 8 of the Three Sisters Irrigation District Main
Canal Piping Program. This project replaced approximately 4,400 feet of open ditch on the Main
Canal with a combination of dual 42", 36", and/or 32" buried HDPE pipelines for the purpose of
water conservation.
SURROUNDING LAND USES: To the west is tax lot 3700, which contains 8.42 acres of unirrigated
lands owned by John and Julene Bruguier. To the southwest are tax lot 3600 and tax lot 3500, Tax
lot 3600 contains 10.75 acres, most of which are irrigated with water delivered by Three Sisters
' Oxford Dictionary via Lexico - April 2020
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 2 of 69
Irrigation District, and is owned by Gary and Patricia Molesworth. Tax lot 3500 contains 9,24 acres,
most of which are irrigated with water delivered by Three Sisters Irrigation District, and is owned by
Kirk and Karlene Crenshaw. These properties (tax lots 3700, 3600, and 3500) are zoned MUA10 with
the exception of the furthest southeast corner of tax lot 3600 and the southwest border of tax lot
3500, which are zoned FP. Three neighboring properties are located to the south of Simmons road
(tax lots 900, 1000, and 1600). Tax lots 900 and 1000 are zoned MUA10, while tax lot 1600 is zoned
EFUSC. These properties are developed with residential dwellings and hobby farms, except for tax
lot 900, which is currently undeveloped.
To the northwest are tax lots 102, 100, and 400. Tax lot 102 contains 9.98 acres of unirrigated lands
owned by Robert and Patti Adair. Tax lot 100 contains 117.41 acres, most of which are irrigated with
water delivered by Three Sisters Irrigation District, and is owned bythe Richard Gillespie Living Trust.
Tax lot 400 contains 40.16 acres, most of which are irrigated with water delivered by Three Sisters
Irrigation District, is also owned by the Richard Gillespie Living Trust. These properties (Tax lots 102,
100, and 400) are zoned EFUSC. These properties are developed with residential dwellings (tax lots
100 and 102), and commercial and hobby farm uses (tax lots 100 and 400).
To the north is tax lot 300, which contains 40.0 acres of unirrigated land, owned by the Bureau of
Land Management ("BLM"). This tax lot is zoned EFUSC and is undeveloped.
To the east is tax lot 100 which contains 160.00 acres of unirrigated land, owned by the Bureau of
Land Management. This tax lot is zoned EFU. Three Sisters Irrigation District has a right-of-way
within this tax lot for construction and usage of McKenzie Reservoir (BLM Oregon 05589) that was
arnntori in Mau 1 qSR Tax lot 202 lies to the northeast of the subiect property. containing 13.66
acres, and zoned EFU. Tax lot 202 is developed with a residential dwelling and accessory structures.
To the southeast is tax lot 3200, which contains 5.73 acres of unirrigated lands, owned by Dustin
and Roberta Grosz. This tax lot is zoned MUA10 and is developed with residential structures.
To the south are tax lots 3300 and 3400. Tax lot 3300 contains 5.43 acres of unirrigated lands owned
by Michael and Therese Mattijetz. Tax lot 3400 contains 6.75 acres, most of which are irrigated with
water delivered by Three Sisters Irrigation District, owned by Helen Crawford. These properties are
zoned MUA10 with the exception of the furthest western edge of tax lot 3400, which is zoned FP.
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on March 11, 2020, to several
public agencies. Staff, in the Staff Report, summarized many of the public agency comments.
PUBLIC COMMENTS: The Planning Division mailed notice of the conditional use application to all
property owners within 750 feet of the subject property on March 11, 2020. The applicant also
complied with the posted notice requirements of Section 22.23.030(B) of Title 22. The applicant
submitted a Land Use Action Sign Affidavit indicating the applicant posted notice of the land use
action on March 12, 2020. Public comments were received from three neighboring property owners
and one from Central Oregon Land Watch. A public hearing was held on June 2, 2020 at which time
the Applicant requested the hearing be continued; the request was granted by the Hearings Officer.
Numerous individuals submitted evidence into the public record and/or testified at the July 14, 2020
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 3 of 69
continued hearing ("Hearing"). The Staff Report for this case was prepared prior to the June 2, 2020
hearing. The Staff Report referenced written comments received by Staff prior to the Hearing. The
Hearings Officer does not repeat Staffs summary of comments received prior to the Hearing. Issues
raised by case participants that are relevant to approval criteria are addressed in the findings below.
REVIEW PERIOD: The subject application(s) were submitted on March 3, 2020 and deemed
incomplete by the Planning Division on March 26, 2020. The applicant requested to withdraw
Temporary Use Permit application 247-19-000194-TU on March 19, 2020 and the County processed
this withdrawal on March 23, 2020. Upon submission and review of additional materials, the
Planning Division deemed this application complete on May 1, 2020. The 150th day, as of the date
of the Staff Report, on which the County must take final action on this application was September
28, 2020.
Applicant's attorney, on June 12, 2020 submitted an open -record letter stating, in part, the following:
"On June 2, Deschutes County held a public hearing on the above -captioned application. At this
hearing, the applicant requested and was granted a continuance of proceedings to July 14, 2020. This
continuance is necessaryfor the applicant to supplement the record and submit an amended Burden
of Proof.
ORS 215.427(1) requires Deschutes County to take final action on the above -captioned application
within 150 days after the application is deemed complete. The applicant formally requests that staff
toll the 150-day review clock for the 42-day period between the original June 2 hearing and the.
Lout+'Hued hearing, alam. i iediii cU fvr July ,-
The Hearings Officer finds that the filing of the Modification of Application (247-20-000461-MA),
submitted on July 7, 2020, restarted the 150-day clock. Therefore, the Hearings Officer finds that
the 150' day, on which the County must take final action on these applications, is December 4,
2020.
III. FINDINGS & CONCLUSIONS
Title 22 Deschutes County Development Procedures Ordinance
Chapter 22.20. Review Of Land Use Action Applications
Section 22.20.015 Code Enforcement and Land Use
A. Except as described in (D) below, if any property is in violation of applicable land
use regulations, and/or the conditions of approval of any previous land use
decisions or building permits previously issued by the County, the County shall not.
1. Approve any application for land use development,
2. Make any other land use decision, including land divisions and/or property
line adjustments,
3. Issue a building permit.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 4 of 69
C. A violation means the property has been determined to not be in compliance either
through a prior decision by the County or other tribunal, or through the review
process of the current application, or through an acknowledgement by the alleged
violator in a signed voluntary compliance agreement ("VCA").
D. A permit or other approval, including building permit applications, may be
authorized if.•
1. it results in the property coming into full compliance with all applicable
provisions of the federal, state, or local laws, and Deschutes County Code,
including sequencing of permits or other approvals as part of a voluntary
compliance agreement,
Z it is necessary to protect the public health or safety,
3. /t is for work related to and within a valid easement over, on, or under the
affected property; or
4. it is for emergency repairs to make a structure habitable or a road or bridge
to bear traffic.
FINDING: The record in this case contains public comments submitted in response to the
Applicant's hydroelectric facility proposal indicating that development work has taken place on the
Subject Property without approval from the Deschutes County Community Development
Department. Staff, in a July 9, 2020 Staff Memorandum ("Staff Memorandum'), provided the Hearings
Officer and case participants insight into the County's history in dealing with code complaint
allegations raised during a pending land use application process.
Two potential code complaint violations were raised by case participants. First, it was alleged that
Applicant had constructed/installed overhead electrical distribution lines. Second, it was alleged
that Applicant had constructed a "tailrace" without first obtaining permits.
At the Hearing Applicant represented that it had constructed/installed no electrical distribution
lines. Applicant, at the Hearing, stated that any electrical distribution line work, in the vicinity of the
Subject Property, was conducted by the Central Electric Cooperative ("CEC") and was not related to
Applicant's proposed hydroelectric facility (See also, Applicant's July 14, 2020 Supplemental Burden
of Proof (pages 3 & 4). Applicant also, in the Supplemental Burden of Proof (page 5), modified its
original proposal to install overhead electrical distribution lines by burying the lines underground
(Modification of Application form submitted to the County on July 7, 2020). The Hearings Officer finds
that Applicant did not commit a code violation related to the installation of overhead electrical
distribution lines.
The second alleged violation involves an allegation that Applicant constructed a tailrace" on the
Subject Property. Applicant, in its August 11, 2020 Closing Argument (pages 16 & 17) addressed the
tailrace code violation.' Applicant, in the Closing Argument (page 16), "conceded that for the
2 The Applicant, in the August 11, 20200 Closing Argument (page 16) stated that "the Applicant installed the tailrace in the
FP Zone under the good faith belief that the tailrace was permitted outright as an improvement to TSID's existing
irrigation system." Applicant, in its March, 2020 Burden of Proof for5ite 104A stated "Applicant is seeking approval of
a conditional use permit to construct a Tail Race in a Flood Plain..:' It is clear to the Hearings Officer that in March
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 5 of 69
purposes of this Application, the tailrace required land use approval in conjunction with the
McKenzie Hydro facility." Applicant, in the Closing Argument, (Page 17) "voluntarily acknowledged
both orally, and in writing, that the tailrace was subject to land use review and approval as
construction in the FP zone." Finally, Applicant, in the Closing Argument (page 17) suggested that the
tailrace violation can and should be addressed in this land use process by subjecting the entire
hydroelectric facility, including the tailrace, be measured and tested against relevant land use
approval criteria.
COLW, in its July 28, 2020 open -record submission (pages 3 & 4) argued that Applicant's proposed
hydroelectric facility be denied because of the "tailrace" code violation. The COLW argument
focuses upon DCC 22.20.015 a. language that says "the County shall not approve any application for
land use development ...if any property is in violation of applicable land use regulations." COLW
argued that the construction of the "tailrace" prior to receipt of land use approval is a code violation
and therefore the current application must be denied.
Both Staff (Staff Memorandum) and Applicant (Closing Argument) addressed DCC 22.20.015, including
but not limited to, prior Board of County Commission (the "Board") interpretations of DCC 22.20.015.
The Hearings Officer finds the Staff Memorandum to be informative/instructive when considering
the legal interpretation of DCC 22.20.015. The Hearings Officer finds Applicant's Closing Argument
discussion to be persuasive.
The Hearings Officer finds that DCC 22.20.015 does contain language, as quoted by COLW above,
generally prohibiting the County from issuing a land use approval/permit if a code violation affects
the property subject to the land use approval/permit application. However, the Hearings Officer
also finds that the DCC 22.20.015 code violation prohibition on land use approvals is subject to a
number of limitations and/or exceptions.
DCC 22.20.015(D) states, in part, the following:
'A permit or other approval, including building permit applications, may be authorized if.•
1. It results in the property coming into full compliance with all applicable provisions of federal, state,
or local laws, and Deschutes County Code, including sequencing of permits or other approvals as
part of a voluntary compliance agreement..."
The Hearings Officer agrees with Applicant that one limitation or exception to the "if there is a code
violation then no land use approval is allowed" general rule is when a land use decision will have
the effect of correcting the code violation. The Board, in its decision for file no. 247-17-000775-ZC,
776-PA, cautioned land use hearings officers that the "correcting the violation" exception should be
used cautiously and sparingly. The Board, in its decision for file no. 247-17-000775-ZC, 776-PA,
expressed that the code violation process and land use hearing process were separate and distinct
and that a land use hearings officer should not generally become enmeshed in the fact finding and
legal analysis involved in a code violation complaint. However, the Board, in its decision for file no.
247-17-000775-ZC, 776-PA, specifically acknowledged that there are circumstances when the land
2020 Applicant was aware that constructing the tailrace at the Subject Property required conditional use approval and
that such use was not "permitted outright."
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 6 of 69
use hearing process may be the "best forum" for adjudicating a code violation issue.
In this case the Hearings Officer finds that Applicant has admitted that construction of the "tailrace,"
prior to receipt of land use approval for its hydroelectric facility at the Subject Property, is a code
violation. Therefore, in this case the Hearings Officer need not engage in any fact finding or legal
analysis to determine if a code violation exists; it does because Applicant admits it does.
The Hearings Officer also finds that Applicant acknowledges that approval of the construction of the
"tailrace" is integral to its overall land use request. The Hearings Officer finds that Applicant, in its
Supplemental Burden of Proof, has provided evidence in the record related to the "tailrace" and
incorporated such evidence into its proposed findings. The Hearings Officer finds that this decision,
based upon the Modification of Application and Supplemental Burden of Proof, addressed Applicant's
hydroelectric facility proposal including the "tailrace" in the findings for the relevant approval
criteria.
The Hearings Officer finds that Applicant's admitted "tailrace" code violation does not automatically
require the Hearings Officer to deny Applicant's hydroelectric facility application. The Hearings
Officer finds that the land use process, in this case, is the "best forum" to consider issues related to
the "tailrace" code violation.
Section 22 20 055 Modification of Application.
A. An applicant may modify an application at any time during the approval process up
until the close of the record, subject to the provisions of DCC 22.20.052 and DCC
22.20.055.
B. The Planning Director or Hearings Body shall not consider any evidence submitted
by or on behalf of an applicant that would constitute modification of an application
(as that term is defined in DCC 22.04) unless the applicant submits an application
for a modification, pays all required modification fees and agrees in writing to
restart the 150-day time clock as of the date the modification is submitted. The 150-
day time clock for an application, as modified, may be restarted as many times as
there are modifications.
C. The Planning Director or Hearings Body may require that the application be re -
noticed and additional hearings be held.
D. Up until the day a hearing is opened for receipt of oral testimony, the Planning
Director shall have sole authority to determine whether an applicant's submittal
constitutes a modification. After such time, the Hearings Body shall make such
determinations. The Planning Director or Hearings Body's determination on
whether a submittal constitutes a modification shall be appealable only to LUBA
and shall be appealable only after a final decision is entered by the County on an
application.
FINDING: The Hearings Officer, at the June 2, 2020 Hearing ("6/2/2020 Hearing") heard testimony
and argument from Staff and Applicant related to Applicant's proposal to change its applications.
Applicant's primary change involved eliminating its proposal to utilize overhead electric distribution
lines and replace the overhead lines with underground (buried) lines. Further, the Hearings Officer
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 7 of 69
noted, at the 6/2/2020 Hearing, that Applicant's change to its proposal clearly identified the location
where the electric distribution lines would be located. Finally, Applicant disclosed that a proposed
tailrace had already been constructed and that the tailrace may be included in its changed
applications.
The Hearings Officer found, at the 6/2/2020 Hearing, that Applicant's proposed changes constituted
a Modification of Application per DCC 22.20.055.
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.04. Title, Purpose, And Definitions
"Lot of Record" means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which
conformed to all zoning and subdivision or partition requirements, if any, in effect
on the date the lot or parcel was created, and which was created by any of the
following means:
1. By partitioning land as defined in ORS 92,
2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County
Surveyor and recorded with the Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to the transaction,
containing a separate legal description of the lot or parcel, and recorded in
Deschutes County if recording of the instrument was required on the date of
the conveyance. If such instrument contains more than one legal description,
only one lot of record shall be recognized unless the legal descriptions
describe lots subject to a recorded subdivision or town plat,
4. By a town plat filed with the Deschutes County Clerk and recorded in the
Deschutes County Record of Plats; or
S. By the subdividing or partitioning of adjacent or surrounding land, leaving a
remainder lot or parcel.
B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176
shall be recognized as a lot of record.
C. The following shall not be deemed to be a lot of record.
1. A lot or parcel created solely by a tax lot segregation because of an assessor's
roll change or for the convenience of the assessor.
2. A lot or parcel created by an intervening section or township line or right of
way.
3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel
was conveyed subject to DCC 18.04.030(B).
4. A parcel created by the foreclosure of a security interest.
For the purposes of DCC Title 18, "lot" or "parcel" means a lot of record as defined
DCC18.04.030.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 8 of 69
FINDING: Staff included the following comments in the Staff Report:
"Deschutes County adopted its first zoning ordinance (PL-5) on November 1, 1972, which described
minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with PL-15. The
subdivision ordinance of 1970, PL-2, regulated subdivisions less than 10 acres in size, but did not
regulate partitions. The partition ordinance (PL-7) was adopted in 1977, which described the criteria
under which parcels could be partitioned (divided).
The subject property, Tax Lot 500, contains 97.60 acres and is approximately 505 feet wide at the
narrowest point. Tax Lot 500 was originally described in a Bargain and Sale Deed dated August 21 S,
1957, recorded in Volume 117, Page 179, Deschutes County Book of Records. The conveyance of the
property conformed to all zoning requirements at this time and, for this reason, staff finds this
property is a legal lot of record."
Central Oregon LandWatch ("COLW") disputed the Staff and Applicant conclusion that the Subject
Property met the Lot of Record definitional requirements set forth in DCC 18.04.030. Applicant, in
its August 11, 2020 open -record submission ("Closing Argument") responded to COLW's conclusion
that the Subject Property did not meet Lot of Record requirements as follows (pages 13 & 14):
The Subject Property is a legal lot of record. Deschutes County defines a lot of record as a "parcel at
least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and
subdivision/partition requirements, in effect on the date the lot or parcel was created, and which
was created by any of the following means... (b]y deed or contract, dated and signed by the parties
M the tr-nncnrtinn_ rnntnining a senorate legal description of the lot or parcel, and recorded in
Deschutes County if recording of the instrument was required on the date of the conveyance."DCC
18.04.030(A)(3) (emphasis added).
The Subject Property, Tax Lot 500, is 97.60 acres and approximately 505 feet wide at the narrowest
point. Tax Lot 500 was originally described in a Bargain and Sale Deed dated August 21 st, 1957,
recorded in Volume 117, Page 179, Deschutes County Book of Records. The conveyance of the
property conformed to all zoning requirements at the time of conveyance in 1957. See DCC
18.04.030(A)(3); see also ORS 92,017 (Taj lot or parcel lawfully created shall remain a discrete lot or
parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by
law'g. For this reason, the Subject Property is a legal lot of record, notwithstanding the latter
Application of the minimum lot standards for the MUA10 and Flood Plain ("FP'g zoning districts. In
addition, the Applicant adopts Deschutes County Staffs finding on this issue. Staff Report, at 12.
Deschutes County Hearings Officer c%: Tarik Rawlings August 11, 2020 Page 14 49077-78512 4834-
6324-6791.1
COLW invites the Hearings Officer to establish a new definition of what constitutes a legal lot of
record within Deschutes County, in direct contradiction to the language of DCC 18,04.030. The key
significance of designating a unit of land as a "lot of record" defined at DCC 18.04.030 is that the
county will recognize a lot of record as a developable unit of land under the DCC See Central
Oregon Landwatch v. Deschutes County, 75 Or LUBA 328 (2017) (emphasis added). However, in
devoting almost four pages of argument as to why the Subject Property is not a legal lot of record,
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 9 of 69
COLW wholly omits any mention of DCC 18.04. Rather, COLW would prefer to establish a new
standard for what constitutes a legal lot of record in Deschutes County —one which is not based on
the standards set forth in DCC 18.04.030. COLW instead argues that the subsequent Application of
minimum lot standards to a lawfully established parcel renders said parcel illegal and
undevelopable.
COLVV's argument fails to acknowledge that a parcel can still be developable as a legal lot of record,
even if it is subsequently rendered substandard due to the Application of a zoning district. Such is
the case here. When the Subject Property was conveyed via deed in 1957, it conformed to all zoning
requirements. Subsequent to this conveyance, Deschutes County adopted its first zoning ordinance
(PL-5) on November 1, 1972, which described minimum lot sizes for new parcels. This zoning
ordinance was replaced in 1979 with PL-15. The subdivision ordinance of 1970, PL-2, regulated
subdivisions less than 10 acres in size, but did not regulate partitions. The partition ordinance (PL-7)
was adopted in 1977, which described the criteria under which parcels could be partitioned
(divided). Because the Subject Property was lawfully created in 1957, prior to the County's adoption
of minimum lot sizes, it is a legal lot of record. DCC 18.04.030(A)(3), ORS 92.01 Z COL Ws argument
fails as a matter of law."
The Hearings Officer concurs with the Staff and Applicant comments quoted above. The Hearings
Officer adopts such comments as the Hearings Officer's findings for this criterion. The Hearings
Officer finds the Subject Property is a Lot of Record as that phrase is defined in DCC 18.04.030.
Chanter 18,16, Exclusive Farm Use Zones (EFUI Sertinn 1 R.16,O,An, C onrliTinnal I lsPs
Permitted -High Value and Non -high Value Farmland.
The following uses may be allowed in the Exclusive Farm Use zones on either high value
farmland or non -high value farmland subject to applicable provisions of the Comprehensive
Plan, DCC 18.16.040 and 1&16.050, and other applicable sections of DCC Title 18.
K. Commercial utility facility, including a hydroelectric facility (in accordance with DCC
18.116.130 and 18.128.260, and OAR 660-033-0130), for the purpose of generating
power for public use by sale, not including wind power generation facilities.
FINDING: Applicant, in its Supplemental Burden of Proof (page 6) stated the following with respect to
this approval criterion:
'The Applicant is proposing to establish a hydroelectric facility on property that falls partially within the
EFU Zone. The specific site of the proposed hydroelectric facility is shown below in Figure 2 [shown as
Figure 1 in this decision]. The proposed facility will be located in a portion of the Subject Property that
is zoned MUA 10, with only a portion of the utility trench being located in the EFU-zoned portion of the
Subject Property. [omitted reference to Access Plan]
The siting of the utility trench in the EFU Zone is necessary to provide a connection between the facility
and CEC's existing Holmes Rd. system. This connection is essential to transporting the electricity
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 10 of 69
generated at the McKenzie Hydro to BPA's Redmond Substation. As a hydroelectric facility, the McKenzie
Hydro requires a connection with CEC's Distribution System to make use of the clean energygenerated
on site. As an essential component of the proposed hydroelectric facility, the utility trench is an allowable
use within the EFU Zone, DCC 18.16.020(K). The criteria of DCC 18.116.130 and DCC 18,128.260 are
discussed in subsequent Applicant Responses."
COLW, in its July 28, 2020 open -record submission (page 6), stated that:
"Neither of the two Burdens of Proof nor the Supplemental Burden of Proof address the requirements
of OAR 660-033-0130, which is an applicable criterion under DCC 18.16.030(K). This Oregon
Administrative Rule sets minimum standards for uses on land zoned EFU. Subsection (16) of the rule
applies to utilityfacilities and includes a long list of criteria applicable to all utility facilities on EFU land..."
Applicant, in the Closing Argument (pages 15 & 16) stated:
"In response to COLW's comment that the Application must address the criteria of OAR 660-033-0130
(16), the Applicant notes that the criteria of OAR 660-033-0130 have been codified in DCC 18.16.040.
The Applicant has provided a comprehensive response to the criteria of DCC 18.16.040 on pages 7-8 of
the supplemental burden of proof."
The Hearings Officer reviewed the record of this case and was unable to find any additional discussion
(beyond that quoted above) related to the function of OAR 660-033-0130 in the context of DCC
18.16.030(K).
DCC 18.16.030 begins with the following statement:
'The following uses may be allowed in the Exclusive Farm Use zones on either high value
farmland or non -high value farmland subject to applicable provisions of the Comprehensive
Plan, DCC 1&16.040 and 1& 16.050, and other applicable sections of DCC Title W'
The Hearings Officer finds that the purpose of DCC 18.16.030 is to establish what uses "may be
allowed" on EFU zoned land. DCC 18.16.030(K) allows commercial utility facilities to be located on EFU
zone land under certain circumstances. It is those "circumstances" that become important in
determining if Applicant met this approval criterion.
It appears to the Hearings Officer that DCC 18.16.030(K) allows hydroelectric facilities in the EFU zone
in "accordance with DCC 18.116.130, 18.128.260 and OAR 660-033-0130" [bolding/italics added by the
Hearings Officer]. The use of parenthesis surrounding the reference to DCC 18.116.130, 18.128.260
and OAR 660-33-0130 creates a potential ambiguity in determining the function of DCC 18.116.130,
18.128.260 and OAR 660-33-0130 within DCC 18.16.030. DCC 18.16.030(K) does not clearly state that
the satisfaction of DCC 18.116.130, 18.128.260 and OAR 660-033-0130 is a condition precedent to
showing that the proposed hydroelectric facility is allowed in EFU zoned land. However, that
interpretation seems to be supported by record statements by both the Applicant and COLW.
Applicant, in the above -quoted comments, made sure that the Hearings Officer understood that it
had comprehensively addressed DCC 18.116.130 and DCC 18.128.260. The Hearings Officerfinds that
247-20-000187-LR, 191-CU, 192-CU, 193-sP, 461-MA Page 11 of 69
Applicant treated DCC 18.116.130 and DCC 18.128.260 as conditions precedent (approval criteria) to
meetingthe requirements of DCC 18.16.030(K). The Hearings Officerfinds that Applicant justified that
it had not comprehensively addressed OAR 660-033-0130(16) by opining that OAR 660-033-0130 had
been "codified by DCC 18.16.040." (Closing Argument, page 15)
The Hearings Officer notes that Applicant provided no legal analysis or support for its "codified by
DCC 18.16.040" statement. The Hearings Officer reviewed DCC 18.16.040 and found no clear and/or
unequivocal statement that DCC 18.16,040 codified the entirety of OAR 660-033-0130. The Hearings
Officer finds that had the Board intended that DCC 18.16.040 to be codified by OAR 660-033-0130
then it would have eliminated the reference to OAR 660-033-0130 in DCC 18.16.030(K).
The Hearings Officer finds that DCC 18.16.040 does make numerous references to OAR 660-033-0130.
For example, DCC 18.16.040(C)(3) indicates that a power generation facility may include temporary
workforce housing described in OAR 660-033-0130 (17) and (22). Applicant did not propose any
temporary housing. DCC 18.16.040(D) also makes multiple references to OAR 660-033-0130 with
respect to wind power generation facilities. The applications in this case do not involve wind power
generation.
DCC 18.16.040(K)(5) states the following:
"For the purposes of approving a land use application under OAR 660-033-0090, 660-033-120, 660-033-
0130 and 660-033-0135, soil classes, soil ratings or other soil designations used in or made pursuant
to this definition are those of the NRCS in its most recent publication for that class, rating or designation."
The Hearings Officer finds that Applicant's proposed hydroelectric facility is a "land use application
under OAR 660-033-130." The Hearings Officer finds that DCC 18.16.040(K)(5) directs decision makers
to apply NRCS soil classes/ratings/designations. The Hearings Officer finds that the multiple
references, in DCC 18.16.040, to OAR 660-033-0130 are for the purpose of clarification or addition
rather than "codification." DCC 18.16.040 does not say that it is a codification of OAR 660-033-0130.
The Hearings Officer notes that an underlying reason for the above findings is the Oregon land use
planning concept most often referred to as the "goal post rule. Related to the "goal post rule" is a
court created concept called the "codification requirement" The "codification requirement" says that
permit approval standards and criteria set out in local regulations exist to inform interested parties
of the basis on which an application will be approved or denied. Waveseer of Oregon, LLC v. Deschutes
County, LUBA No. 2020-038.
The Hearings Officer finds that the language of DCC 18.16.040(K)(5) clearly and unequivocally lists
three sections that must be addressed. Persons interested in this case, when reviewing DCC
18.16.040(K)(5), are placed on notice that the requirements of all three (DCC 18.116.130, 18.128.260
and OAR 660-033-0130) are approval criteria and that a decision maker must consider all three.
3 The "goal post rule" requires an approval or denial be based on the standards and criteria that were applicable when
the application was submitted. ORS 215.427(3)(a), also see Waveseer of Oregon, LLC v. Deschutes County, LUBA No. 2020-
038
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 12 of 69
Persons interested in this case expect an approval or denial decision to be based upon all three
sections (DCC 18.116.130, 18.128.260 and OAR 660-033-0130).
The Hearings Officer finds Applicant's argument that DCC 18.16.040 codified OAR 660-033-0130 is not
supported by substantial evidence or persuasive argument. The Hearings Officer finds that Applicant
is required, under DCC 18.16.030(K) to provide substantial evidence in the record demonstrating
satisfaction of DCC 18.116.130, DCC 18.128.260 and OAR 660-033-0130. The Hearings Officer, based
upon the findings later in this decision, found Applicant satisfied its burden with respect to DCC
18.116.130 and DCC 18.128.260.
The Hearings Officer reviewed OAR 660-033-0130(16) and believes Applicant may have provided
evidence into the record of this case that satisfies many, if not most, of the OAR 660-033-0130(16)
requirements. However, the Applicant argued that it only needed to meet the requirements of DCC
18.16.040; which the Hearings Officer finds are similar, but not identical, to the requirements of OAR
660-033-0130. The Hearings Officer, based upon the evidence in the record, finds that this approval
criterion is not met because of Applicant's failure to provide evidence clearly addressing the specific
requirements of OAR 660-033-0130.
Figure 1- Proposed Project Location within EFU/MUA10/FP Zones
Chapter 18.32, Multiple Use Agricultural Zone (MUA-10)
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 13 of 69
Section 18.32.030. Conditional Uses Permitted.
S. Hydroelectric facility, subject to DCC 1 & 116.130 and 1 & 128.260.
FINDING: The Applicant proposed to construct and operate a commercial hydroelectric facility on
the Subject Property which is partially within the MUA10 Zone. Based on the Modification of
Proposal site plan, the power house portion of the hydroelectric facility will be located in the MUA10-
Zoned portion of the Subject Property. Subject to the satisfaction of DCC 18.116.130 and 18.128.260,
this criterion can be met. Relevant MUA10 criteria are addressed below.
Section 18.32,040. Dimensional Standards
in an MUA Zone, the following dimensional standards shall apply:
A. The minimum lot size shall be 10 acres, except planned and cluster developments
shall be allowed an equivalent density of one unit per seven and one-half acres and
planned and cluster developments within one mile of an acknowledged urban
growth boundary shall be allowed a five acre minimum lot size or equivalent
density.
COLW, in its July 28, 2020 open -record submission (page 9), argued that this criterion is applicable
to Annlirnnt'c hvrimelectrir fnrility nrnnncal cnl w alcn armipfi that Applicant's submitted
supportive materials do not meet the criterion's requirements. COLW stated, that:
"In the MUA zone, Tt]he minimum lot size shall be 10 acres,' DCC 18.32.040(A)., which means that at
least 10 acres of land zone MUA are required for development of the subject property. From
LandWatch's calculations using the County's 'Interactive Map' tool on DIAL, the property appears to
include only about 9 acres of land zoned MUA, and this criteria is not met.. Each of its [Subject
Property] underlying zones must be interpreted separately, including minimum lot size provisions."
Neither Staff nor Applicant responded to the above -quoted COLW discussion/argument. The
Hearings Officer does take notice that Staff and Applicant both indicated that DCC 18.32.040.D
[building height], DCC 18.32.050 [yards], DCC 18.32.060 [stream setbacks] and DCC 18.32.070
[rimrock setbacks] were relevant criteria and must be addressed in this case. The Hearings Officer
found no evidence or argument in the record supporting a claim that the DCC 18.32.040(A)
dimensional standards do not constitute approval criteria; or, in the alternative how DCC
18.32.040(A) dimensional standards were satisfied by Applicant's proposal. The Hearings Officer
finds that this criterion does apply to the MUA zoned land at the Subject Property. The Hearings
Officer finds this criterion is not met.
D. Building height. No building or structure shall be erected or enlarged to exceed 30
feet in height, except as allowed by DCC 18.120.040.
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FINDING: The Applicant's Supplemental Burden of Proof statement indicated that the proposed
hydroelectric facility building will have a maximum height of 25 feet, in compliance with the 30-foot
maximum height criterion outlined above. To ensure compliance, the Hearings Officer finds it
necessary to impose a Condition of Approval which states that no building or structure shall be
erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040. The Hearings
Officer finds that with this Condition of Approval this criterion can be met.
Section 18.32.OSO. Yards
A. The front yard setback from the property line shall be a minimum of 20 feet for
property fronting on a local street right of way, 30 feet from a property line fronting
on a collector right of way, and 80 feet from an arterial right of way unless other
provisions for combining accesses are provided and approved by the County.
B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before
November 1, 1979, which are one-half acre or less in size, the side yard setback may
be reduced to a minimum of 10 feet. For parcels or lots adjacent to property
receiving special assessment for farm use, the adjacent side yard for a dwelling shall
be a minimum of 100 feet.
C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to
property receiving special assessment for farm use, the rear yards for a dwelling
shall be a minimum of 100 feet.
D. The setback from the north lot line shall meet the solar setback requirements in
DCC 1 & 116.180.
E_ In addition to the setbacks set forth herein, any greater setbacks required by
applicable building or structural codes adopted by the State of Oregon and/or the
County under DCC 15.04 shall be met.
FINDING: The proposal does not include a dwelling with side and/or rear yards adjacent to property
receiving special assessment for farm use. Based on the submitted site plan and the Supplemental
Burden of Proof the proposed facility will be located over 100 feet from any property line. The
Hearings Officer finds that the proposed structure complies with all applicable setbacks. Staff
recommended a Condition of Approval related to structural setbacks from any north lot line shall
meet the solar setback requirements in DCC 18.116.180. The Hearings Officer finds that with Staffs
recommended Condition of Approval these criteria can be met.
Section 18,32,060 ,Stream Setbacks
To permit better light, air, vision, stream pollution control, fish and wildlife areas and to
preserve the natural scenic amenities and vistas along the streams and lakes, the following
setbacks shall apply.
A. All sewage disposal installations, such as septic tanks and septic drainfields, shall
be set back from the ordinary high watermark along all streams or lakes a minimum
of 100 feet, measured at right angles to the ordinary high watermark. In those cases
where practical difficulties preclude the location of the facilities at a distance of 100
feet and the County Sanitarian finds that a closer location will not endanger health,
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 15 of 69
the Planning Director or Hearings Body may permit the location of these facilities
closer to the stream or lake, but in no case closer than 25 feet.
B. All structures, buildings or similar permanent fixtures shall be set back from the
ordinary high water mark along all streams or lakes a minimum of 100 feet
measured at right angles to the ordinary high water mark.
FINDING: There are no streams or lakes in the project vicinity. The Hearings Officer finds these
criteria do not apply.
Section 18.32.070. Rimrock Setback
Setbacks from rimrock shall be as provided in DCC 1 & 116.160.
FINDING: There is no rimrock in the project vicinity. The Hearings Officer finds this criterion does
not apply.
Chapter 18.96, Flood Plain (FP) Zone
Section 18.96.20, Designated Areas.
The areas of special flood hazard identified by the Federal Insurance Administration in a
scientific and engineering report entitled "Flood Insurance Study for Deschutes County,
Oregon and incorporated Areas" revised September 282007 with accompanying Flood
Insurance Rate Maps is hereby adopted by reference and incorporated herein by this
reference. The Flood Insurance Study is on file at the Deschutes County Community
Development Department.
The Flood Plain Zone shall include all areas designated as "Special Flood Hazard Areas" by
the Flood Insurance Study for Deschutes County. When base flood elevation data has not
been provided in the Flood Insurance Study, the Planning Director will obtain, review and
reasonably utilize any base flood elevation or f/oodway data available from federal, state
or other sources, in determining the location of a flood plain or floodway.
FINDING: Applicant, in its Closing Argument (page 10) provided the following comments related to
this section:
'The Deschutes County Flood Plain Zone includes all areas designated as 'Special Flood Hazard Areas;
on the Federal Flood Insurance Rate Maps (FIRM). Special Flood Hazard Areas are lands that would
be inundated by a 100 year flood event, that are at or below the base flood elevation (BFE). The flood
map for this property is FIRM No. 41017CO2260D and 41017CO270D, Effective Dates: September 28,
2007
The power house and parking lot are not located within the mapped 100 year flood plain, nor is it
located within the FPzone. See Figure 2, the attached UPDATED ENGINEERING REPORT, LB Engineering
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 16 of 69
(Jul. 13, 2020), and the submitted Proposed Site Plan. The powerhouse is located outside of the flood
plain overlay and is five feet above the high water mark of McKenzie Reservoir. UPADATED
ENGINEERING REPORT, LB Engineering (Jul. 13, 2020). The hydroelectric building is not subject to the
standards of the FP Zone.
The tailrace and proposed utility trench are partially located within the 100 year flood plain and are
thus subject to the standards of the FP zone."
The Hearings Officer finds Applicant's above -quoted comments are credible. The Hearings Officer
also reviewed the Zoning Map and site plans and finds that the tailrace and a portion of the utility
trench are within the FP Zone. The Hearings Officer finds that the tailrace and a portion of the utility
trench must meet the FP Zone conditional use approval requirements.
Section 18.96.040. Conditional Uses Permitted.
The following uses and their accessory uses may be allowed subject to applicable sections of
this title.
E. Hydroelectric facilities subject to DCC 18.116.130 and 1 & 128.260.
FINDING: The Hearings Officer incorporates the findings for DCC 18.96.20 as additional findings
for this criterion. The proposed facility is allowed conditionally within the FP Zone subject to the
provisions outlined in DCC 18.116.130 and 18.128.260. These provisions and any other applicable
conditional use and supplementary code provisions are reviewed in subsequent findings.
Section 18,96.060. Limitations on Conditional Uses.
The following limitations shall apply to all uses allowed by DCC 1&96.040.
A. No new construction of a dwelling (including manufactured housing), accessory
structure or farm use structure shall be allowed in the floodway of any river or stream
except for replacement in conformance with the applicable provisions of DCC 18.96 of
a dwelling lawfully in existence as of the effective date of Ordinance 88-030.
B. No new construction of a dwelling (including manufactured housing), accessory
structure or farm use structure shall be located in the flood plain unless it can be
demonstrated by the applicant that no alternative exists on the subject property
which would allow the structure to be placed outside of the flood plain.
C No subdivision or partition shall be allowed which creates the potential for additional
residential dwellings in the flood plain.
FINDING: The Applicant is proposing to develop a hydroelectric facility, not a dwelling,
manufactured home, accessory structure, farm use structure, replacement structure, or land
division as listed in the above criteria. The Hearings Officer finds that these criteria do not apply to
the subject application.
D. All necessary federal, state and local government agency permits shall be obtained.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 17 of 69
FINDING: The Hearings Officer notes that this approval criteria states that "agency permits shall be
obtained." The Hearings Officer finds that all federal state and local government permits need not
be obtained prior to issue of this decision. Therefore, to ensure compliance with the above criterion
the Hearings Officer finds it necessary to impose a Condition of Approval. The Hearings Officer finds
that with the described Condition of Approval this criterion will be met.
Section 18.96.080. Criteria to Evaluate Conditional Uses.
A. A conditional use permit in a Flood Plain Zone shall not be approved unless all
standards established by the Federal Emergency Management Agency and DCC Title
18 are addressed and findings are made by the Hearings Body or Planning Director
that each of the standards and criteria are satisfied.
FINDING: The Hearings Officer incorporates all findings for DCC 18.116.130 and DCC 18.128.260 as
additional findings for this criterion. The Hearings Officer finds that all relevant requirements of
DCC 18.116.130 and DCC 18.128.260 can be met. However, as noted in earlier findings, the Hearings
Officer determined that some of the EFU and MUA standards were not met by Applicant's
hydroelectric proposal.
B. Approval to alter or relocate a water course shall require notification to adjacent
communities, the Department of Land Conservation and Development, Department
of State Lands, and other appropriate state and federal agencies prior to any such
alteration or relocation and submit evidence to the Federal Insurance Administration.
Maintenance shall be provided within the altered and relocated portion of said
watercourse so that the flood carrying capacity is not diminished.
FINDING: Applicant did not propose to alter or relocate a watercourse. The Hearings Officer finds
that this criterion does not apply.
C. A conditional use permit shall be based upon findings which relate to the property
and existing and proposed structure(s). They shall not pertain to the property owner,
inhabitants, economic or financial circumstances.
FINDING: This land use decision is based upon findings which relate to the property and the
proposed development. The findings do not pertain to the property owner, inhabitants, economic
or financial circumstances.
D. All structures in the flood plain shall meet the following standards.
1. Anchoring.
a. All new construction and substantial improvements shall be anchored
to prevent flotation, collapse or lateral movement of the structure
b. All manufactured homes must be anchored to prevent flotation,
collapse or lateral movement, and shall be installed using methods and
practices that minimize flood damage. Anchoring methods may
include, but are not limited to, use of over -the -top or frame ties to
ground anchors.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 18 of 69
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 11)
related to this approval criterion:
'The tailrace is not a typical structure, as contemplated in DCC 18.96. Although the Applicant
acknowledges that the tailrace falls within the definition of 'structure', as defined in DCC 18.04 (pg.31)
[Rather] its purpose as an irrigation system is to convey water from the McKenzie Hydro to the McKenzie
Reservoir for irrigation use. The tailrace is intended to be full of water during the nine (9) month
irrigation season. The tailrace has been designed to counteract bucyance and hydraulic forces for
lateral movement. UPDATED ENGINEERING REPORT, LB Engineering Uul. 1312020).
The proposed utility trench is also not capable of floatation. The utility trench has been designed to
resist hydrostatic and hydrodynamic forces for lateral movement that they maybe applied. The conduit
and electrical distribution lines to be located within the utility trench have been floodproofed. This
Application contemplates the removal of a small amount of material within the FP zone, which will be
backfilled with 4"minus aggregate upon installation of the proposed utility conduit."
The Hearings Officer finds the above -quoted Applicant comments to be credible. The proposal does
not include any manufactured homes. The Hearings Officer finds this criterion is met.
2. Construction Materials and Methods.
a. All new construction and substantial improvements shall be
constructed with materials and utility equipment resistant to flood
damage,
b. All new construction and substantial improvements shall be
constructed using methods and practices that minimize flood damage.
C. Electrical, heating, ventilation, plumbing and air-conditioning
equipment and other service facilities shall be designed and/or
otherwise elevated or located so as to prevent water from entering or
accumulating within the components during conditions of flooding.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (pages 11
& 12) related to this approval criterion:
'The proposed utility trench and conduits are designed to be waterproof, in order to protect the electrical
distribution cables, located therewithin. The utility system has been designed to resist hydrostatic and
hydrodynamic forces for lateral movement. The utility trench is not capable of flotation. The electrical
conduits and distribution cable to be located within the trench are sealed to protect the electrical wires
from water damage.... The tailrace is concrete and substantially impermeable to water penetration. The
tailrace has been designed to counteract buoyancy and hydraulic forces for lateral movement. Because
the tailrace is designed to be partially submerged during operation, other flood proofing measures are
not applicable.... Although the Staff Report for this Application states that the tailrace is 'designed to
collect water from McKenzie Reservoir and feed the water into a generator housed within the main
hydroelectric facility building, this is not correct Rather, the purpose of the tailrace is to serve as an
irrigation conveyance system, discharging water from the powerhouse into McKenzie Reservoir. As
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 19 of 69
stated in the Introduction, the proposed McKenzie Hydro is an 'in -conduit hydroelectric facility which
takes advantage of existing pressure within TSID's irrigation pipeline. The proposed facility utilizes the
pressurized water to generate power and the tailrace conveys the water along its journey into McKenzie
Reservoir, to the Black Butte Pipeline, and finally to Lower Bridge irrigators..."
The Hearings Officer finds the above -quoted Applicant comments to be credible. The Hearings Officer
finds this criterion is met.
3. Utilities.
a. All new and replacement water supply systems shall be designed to
minimize or eliminate infiltration of flood waters into the system.
FINDING: The submitted application materials do not include a proposal for a new or replacement
water supply system. The Hearings Officer finds this criterion does not apply to Applicant's proposal
in this case.
b. New and replacement sanitary systems shall be designed to minimize
or eliminate infiltration of floodwaters into the system and discharge
from the system into flood waters.
C. On -site waste disposal systems shall be located to avoid impairment to
them or contamination from them during flooding consistent with the
Oregon Department of Environmental Quality as specified in OAR 340-
071-0100 et seq.
FINDING: No sanitary systems or on -site waste disposal systems are proposed by Applicant. The
Hearings Officer finds that these criteria do not apply to the subject application.
4. Below -grade crawlspace is allowed subject to the standards in FEMA Technical
Bulletin 11-01.
FINDING: Applicant's proposal does not include below -grade crawlspaces developed in association
with the hydroelectric facility. The Hearings Officer finds that this criterion does not apply to the
subject application.
G. Specific Standards. In the Flood Plain Zone, the following requirements must be met.
Z. Nonresidential Construction. New construction and substantial improvement
of any commercial, industrial or other nonresidential structure shall either
have the lowest floor, including basement, elevated at least one foot above
the level of the base flood elevation, or, together with attendant utility and
sanitary facilities, shall.
a. Be flood proofed so that below the base flood level the structure is
watertight with walls substantially impermeable to the passage of
water.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 20 of 69
b. Have structural components capable of resisting hydrostatic and
hydrodynamic loads and effects of buoyancy.
C. Be certified by a registered professional engineer or architect that the
design and methods of construction are subject to accepted standards
of practice for meeting provisions of DCC 18.96.080, based on their
development and/or review of the structural design, specifications and
plans. Such certifications shall be provided to the County as set forth
in DCC 18 96.070(H).
d. Nonresidential structures that are elevated, but not flood proofed,
must meet the same standards for space below the lowest floor as
described in DCC 1&96.080(f).
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (pages 12
& 13), related to this approval criterion:
"The proposed utility trench is simply a trench, it does not have a floor or basement It is not capable of
floating. This being said, it has been designed by CEC, consistent with CEC standards. LB Engineering
has reviewed CED's design of the utility trench and notes that it has been designed to resist hydrostatic
and hydrodynamic forces for lateral movement. ...The utility conduit to be located within is
waterproofed to protect CEC's distribution lines.... the tailrace is designed to be full of water for nine
months of the year. This necessitates that the tailrace be designed to be resistant to water damage. It
is designed to resist hydrostatic and hydrodynamic forces for lateral movement, as well as counteract
buoyancy... Because the tailrace is designed to be partially submerged during operation, other
finnrinrnnfina mPacurPs nre not applicable..."
J.---r --r o ...---- -- - -
The Hearings Officer finds the above -quoted Applicant comments to be credible. The Hearings Officer
finds this criterion is met.
e. Applicants for floodproofing nonresidential buildings shall be notified
that flood insurance premiums will be based on rates that are one foot
below the floodproofed level (e.g. a building constructed to the flood
level will be rated as one foot below that level).
FINDING: Staff, in the Staff Report (page 20), suggested that the Hearings Officer impose a Condition
of Approval indicating that the Applicant will be notified that flood insurance premiums for flood -
proofed nonresidential buildings will be based on rates that are one foot below the flood -proofed
level (e.g. a building constructed to the flood level will be rated as one foot below that level). The
Hearings Officer finds that with Staffs recommended Condition of Approval this criterion will be met.
f. Applicants shall supply a comprehensive Maintenance Plan for the
entire structure that shall include but not limited to: exterior envelope
of structure; all penetrations to the exterior of the structure, all shields,
gates, barriers, or components designed to provide floodproofing
protection to the structure, all seals or gaskets for shields, gates,
barriers, or components; and, the location of all shields, gates, barriers,
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 21 of 69
and components as well as all associated hardware, and any materials
or specialized tools necessary to seal the structure.
g. Applicants shall supply an Emergency Action Plan (EAP) for the
installation and sealing of the structure prior to a flooding event that
clearly identifies what triggers the EAP and who is responsible for
enacting the EAP.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (pages 12
& 13) related to this approval criterion:
'The tailrace will be inspected regularly by TSID to ensure it is in working order... Because the tailrace is
intended to be partially submerged, other flood proofing measures, including criterion (G)(2)(g), are not
applicable The tailrace has been designed to operate in a hydric environment and is resistant to
hydraulic forces, meaning any flooding event will have little impact.. The proposed utility trench has
been designed to resist hydrostatic and hydrodynamic forces for lateral movement, which may be
applied during a flooding event... The electrical conduit and distribution line to be located within the
utility trench have been designed to operate in a marine environment and are waterproof. However,
the Applicant will inspect the portion of the utility trench located in the FP Zone to ensure no adverse
hydrologic impacts have incurred... Because the utility trench is designed to be sealed and resistant to
hydrostatic and hydrodynamic loads and effects of buoyancy during a flooding event, criterion (G)(2)(g)
is met."
The Hearings Officer finds the above -quoted Applicant comments to be credible. The Hearings Officer
fiiiU the ie 11�LI u�ture� pr ^vp^vrap..d tv be located within the GP �nnein th a racn`aro �iniM4iC an�'i are not
the type of "structures" typically reviewed under this criterion. The Hearings Officer finds that
Applicant addressed this criterion as best it could while considering the nature of the proposed
"structures:" The Hearings Officer finds this criterion is met.
6. Parking Facilities. No parking facility shall be located within 20 feet (measured
at right angles) of the ordinary high water mark (OHM).
FINDING: The application materials include a proposal for a parking area associated with the
hydroelectric facility. The Ordinary High Water Mark is defined in DCC 18.04 as follows:
"'Ordinary High Water Mark (OHM)' means the highest level on the bank or shore of a lake, river or
stream to which the water ordinarily rises annually in season."
The Hearings Officer finds that there are no lakes, rivers, or streams within 20 feet of the proposed
parking area. The Hearings Officer finds Applicant's proposal is in compliance with this criterion. The
Hearings Officer finds this criterion will be met.
8. Storage of material or equipment, incidental to an established primary use on
the property that is either not subject to damage by flood may be permitted.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 22 of 69
If such material is not readily removable, it shall be anchored to prevent
flotation and shall not obstruct water flow. Material or equipment stored
shall include only items which will not create a hazard to the health or safety
of persons, property, animals or plant life should the storage area be
inundated.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page 14)
related to this approval criterion:
'In the Staff Report, it is noted that overhead electrical distribution lines are considered equipment that
is incidental to the hydroelectric facility. Although the Applicant no longer proposes the use of overhead
electrical distribution lines, the Applicant is concerned that staff believes that distribution lines necessary
to transfer power from the McKenzie Hydro to BPA's Redmond Substation are to be considered 'stored'
on the property.
CEC's distribution lines will be located in the proposed utility trench, within waterproof conduits... These
distribution lines are not owned by TSID, nor are they being stored on the Subject Property... The Subject
Property is not located in a floodway and the utility trench will not obstruct water flow...This criterion is
not applicable, although it has been met by the Applicant."
Staff, in the Staff Report (page 21), provided the following comments related to this approval criterion:
'The applicant has clarified, through written comment, that the proposed development will not include
ctnrnFp of "nnv material nr equipment at the Hvdro Facility that is subject to flooding': Staff notes that
the applicant proposes to include overhead electrical distribution lines in association with the proposed
development. The proposed overhead distribution lines are considered equipment that is incidental to
the hydroelectric facility. The location and design of the proposed distribution lines are not clear based
on the submitted application materials. Without knowing the specific location and design of the
proposed distribution lines, staff cannot fully determine whether any portion of the proposed
distribution lines would be located on the FP portion of the subject property. Staff defers to the Hearings
Officer to determine if the applicant has met the above criterion."
The Hearings Officer finds no Staff comments related to Applicant's proposal to bury the electrical
distribution lines in a trench; eliminating Applicant's proposal to utilize overhead distribution lines.
Further, the Hearings Officer finds Staff provided no legal support or justification to categorize power
lines as "equipment." The Hearings Officer, therefore, finds Applicant's above -quoted comments to
be credible and generally persuasive. The Hearings Officer finds this criterion is not applicable
H. Floodways. in floodways the following provisions shall apply.
1. Encroachments, including fill and removal, replacement of a dwelling lawfully
in existence on the effective date of Ordinance 88-030 and other development
are prohibited unless certification by a registered professional engineer is
provided demonstrating that the proposed encroachments will not result in
any increase in flood levels during a base flood discharge.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 23 of 69
2. The applicant must demonstrate that all necessary federal, state and local
government agency permits have been or can be obtained and that all other
applicable sections of DCC Title 18 have been satisfied.
FINDING: The Applicant is not proposing any development or fill and removal within an identified
floodway. The Hearings Officer finds that these criteria do not apply.
Section 18.96.085. Elevation Certification.
Elevation of all new construction, including replacement and substantial improvements,
relative to mean sea level of the lowest floor shall be documented before the framing
inspection with a survey certified by a State of Oregon registered professional engineer or
land surveyor.
FINDING: Staff, in the Staff Report (page 22), stated that "to ensure compliance, staff includes the
above criterion as a suggested Condition of Approval." The Applicant, in the Supplemental Burden of
Proof, (page 15) stated that it had "engaged Freshwater Surveying to complete an Elevation
Certificate after construction is completed. Compliance with this standard should be subject to a
condition."
The Hearings Officer finds with Staffs recommended Condition of Approval this criterion will be
met.
Section 18.96.090. Yard and Setback Requirements.
in an FP zone, the following yard and setback requirements shall be maintained,
A. The front setback shall be a minimum of 20 feet from a property line fronting on a
local street, 30 feet from a property line fronting on a collector and 50 feet from an
arterial.
B. There shall be a minimum side yard of 10 feet for all uses.
C. The minimum rear yard shall be 20 feet
D. The setback from a north lot line shall meet the solar setback requirements in DCC
1& 116.180.
E. The minimum yard setback for a nonfarm use from the property line adjacent to a
farm use not owned by the applicant shall be 100 feet
F. in addition to the setbacks set forth herein, any greater setbacks required by
applicable building or structural codes adopted by the State of Oregon and/or the
County under DCC 15.04 shall be met.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page
14) related to this approval criterion:
'The tailrace will be located over 100 feet from any property line. The proposed utility trench will be
located over 20 feet from any property line. The proposed utility trench complies will all applicable
setbacks. Furthermore, the utility trench and underground power system is designed to follow the
pathway of the access driveway. This will avoid additional impacts to the natural environment and
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provide for efficient maintenance of the power system."
Staff recommended, in the Staff Report (page 22), that a Condition of Approval should be included
in any approval of Applicant's proposal to assure solar requirements (adjacent to the north lot line)
are met. The Hearings Officer found no evidence in the record indicating Applicant opposed such
a Condition of Approval. Therefore, the Hearings Officer finds that with Staffs recommended
Condition of Approval this criterion can be met.
Section 18.96.100. Stream Setback.
To permit better light, air, vision, stream and pollution control, to protect fish and wildlife
areas and to preserve the natural scenic amenities along streams and lakes, the following
setbacks shall apply.
A. All sewage disposal installations such as septic tanks or septic drain fields shall be
setback from the ordinary high water mark along all streams or lakes a minimum of
100 feet, measured at right angles to the ordinary high water mark. In those cases
where practical difficulties preclude the location of the facilities at a distance of 100
feet, and the County Sanitarian finds that a closer location will not endanger public
health orsafety, a setback exception maybe permitted to locate these facilities closer
to the stream or lake, but in no case closer than 25feet.
B. All structures, buildings or similar permanent fixtures shall be set back from the
ordinary high water mark along all streams or lakes a minimum of 100 feet measured
at right angles from the ordinary high water mark.
FINDING: There are no streams or lakes In the project vid iiy. The Hearings Officer finds this
criterion is not applicable to Applicant's proposed hydroelectric facility.
Section 18 96 120 Warning and Disclaimer of Liability.
The degree of flood protection required by DCC Title 18 is considered reasonable for
regulatory purposes and is based upon scientific and engineering considerations. Larger
floods can and will occur on rare occasions. Flood heights may be increased by man-made
or natural causes. DCC Title 18 shall not create liability on the part of Deschutes County, any
officer, agent or employee thereof, or the Federal Insurance Administration, for any flood
damages that result from reliance on DCC Title 18 or any decision lawfully made hereunder.
FINDING: This statement is provided to the Applicant for informational purposes.
Chapter 18.116, Supplementary Provisions
Section 18.116.020. Clear vision areas.
A. In all zones, a clear vision area shall be maintained on the corners of all property at
the intersection of two streets or a street and a railroad. A clear vision area shall
contain no planting, fence, wall, structure, or temporary or permanent obstruction
exceeding three and one-half feet in height, measured from the top of the curb or,
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where no curb exists, from the established street centerline grade, except that trees
exceeding this height may be located in this area provided all branches and foliage
are removed to a height of eight feet above the grade.
B. A clear vision area shall consist of a triangular area on the corner of a lot at the
intersection of two streets or a street and a railroad. Two sides of the triangle are
sections of the lot lines adjoining the street or railroad measured from the corner
to a distance specified in DCC 18.116.020(B)(1) and (2). Where lot lines have rounded
corners, the specified distance is measured from a point determined by the
extension of the lot lines to a point of intersection. The third side of the triangle is
the line connecting the ends of the measured sections of the street lot lines. The
following measurements shall establish clear vision areas within the County.
1. In an agricultural, forestry or industrial zone, the minimum distance shall be
30 feet or at intersections including an alley, 10 feet.
2. In all other zones, the minimum distance shall be in relationship to street
and road right of way widths as follows:
Right of way Width
Clear vision
0 feet or more
0 feet
0 feet
30feet
0 feet and less
l
40feet
1 I
FINDING: Based upon Applicant's record submissions the Hearings Officer finds no clear vision
area will be obstructed with this proposal. The Hearings Officer finds this criterion is met.
Section 18.116.030.Off Street Parking and Loading.
A. Compliance. No building or other permit shall be issued until plans and evidence are
presented to show how the off-street parking and loading requirements are to be
met and that property is and will be available for exclusive use as off-street parking
and loading. The subsequent use of the property for which the permit is issued shall
be conditional upon the unqualified continuance and availability of the amount of
parking and loading space required by DCC Title 18.
B. Off -Street Loading. Every use for which a building is erected or structurally altered
to the extent of increasing the floor area to equal a minimum floor area required to
provide loading space and which will require the receipt or distribution of materials
or merchandise by truck or similar vehicle, shall provide off-street loading space on
the basis of minimum requirements as follows:
2. Restaurants, office buildings, hotels, motels, hospitals and institutions,
schools and colleges, public buildings, recreation or entertainment facilities
and any similar use which has a gross floor area of 30,000 square feet or more
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shall provide off-street truck loading or unloading berths subject to the
following table.
Sq. Ft. of Floor Area
No. of Berths Required
Less than 30,000
0
30,000-100,000
1
100,000 and Over
2
FINDING: The Applicant proposed to establish a new hydroelectric facility, approximately 1,170
square -feet in size, which is less than 30,000 square -feet. At this size, the proposed facility is not
required to provide a loading berth. The Hearings Officer finds these criteria will be met.
C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as
set forth in DCC 18.116.030 for all uses in all zoning districts. Such off-street parking
spaces shall be provided at the time a new building is hereafter erected or enlarged
or the use of a building existing on the effective date of DCC Title 18 is changed.
D. Number of Spaces Required. Off-street parking shall be provided as follows:
9. Other uses not specifically listed above shall be provided with adequate
parking as required by the Planning Director or Hearings Body. The above list
shall be used as a guide for determining requirements for said other uses.
FIN DING: Staff, in tha Ctnff Ronnrt fna Pc 7Fi R, 271 provided the following comments related to these
criteria:
"The applicable code section does not specify parking requirements for utility facilities or hydroelectric
facilities. Therefore, staff finds that the Planning Director has the ability to determine the parking
requirements under D(9), above. The applicant states that 1-2 employees will visit the site daily to
check canal flow measurements and adjust valves and head gates.
The site plan shows a parking area on the east side of the building which measures 36' by 20' and
contains two (2) standard parking spaces and one (1) ADA-compliant parking space. Staff finds that
the minimum required number of parking spaces should be equal to the number of employees on the
largest working shift, which in this case is two. Therefore, staff finds that the applicants proposal to
provide two (2) standard parking spaces and one (1) ADA-compliant parking space on the east side of
the building complies with above criteria. These criteria will be met.
The Hearings Officer finds the above -quoted Staff comments to be credible and persuasive. The
Hearings Officer finds these criteria are met.
f. General Provisions. Off -Street Parking.
1. More Than One Use on One or More Parcels. In the event several uses occupy
a single structure or parcel of land, the total requirement for off-street
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parking shall be the sum of requirements of the several uses computed
separately.
Z joint Use of Facilities. The off-street parking requirements of two or more uses,
structures or parcels of land may be satisfied by the same parking or loading
space used jointly to the extent that it can be shown by the owners or
operators of the uses, structures or parcels that their operations and parking
needs do not overlap at any point of time. If the uses, structures or parcels are
under separate ownership, the right to joint use of the parking space must be
evidence by a deed, lease, contract or other appropriate written document to
establish the joint use.
FINDING: The proposed hydroelectric facility will be the sole new use established on the Subject
Property. No other uses will be sharing the proposed off-street parking spaces. Therefore, the
Hearings Officer finds these criteria are not applicable.
3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be
located on the same lot with the dwelling. Other required parking spaces
shall be located on the same parcel or another parcel not farther than 500
feet from the building or use they are intended to serve, measured in a
straight line from the building in a commercial or industrial zone. Such
parking shall be located in a safe and functional manner as determined
during site plan approval. The burden of proving the existence of such off -
premise parking arrangements rests upon the applicant.
T. Use ^vf Par king Facilities. Required parking spate shall be available f . the
parking of operable passenger automobiles of residents, customers, patrons
and employees only and shall not be used for the storage of vehicles or
materials or for the parking of trucks used in conducting the business or used
in conducting the business or use.
5. Parking, Front Yard. Required parking and loading spaces for multi family
dwellings or commercial and industrial uses shall not be located in a required
front yard, except in the Sunriver UUC Business Park (BP) District and the La
Pine UUC Business Park (LPBP) District and the LaPine UUC Industrial District
(LPI), but such space may be located within a required side or rear yard.
FINDING: Staff, in the Staff Report, provided the following comments:
"The parking area for the proposed hydroelectric facility will be located on -site and within 500 feet of
the location of the proposed facility. Staff finds that the proposed parking spaces will be located in a
safe and functional manner. Additionally, no comments were received from the County Senior
Transportation Planner or County Road Department challenging the safety or functionality of the
proposed parking spaces. The required parking spaces are provided for the primary accommodation
of operable passenger automobiles of employees of the Three Sisters Irrigation District. Additionally,
none of the required parking spaces will be located in a required frontyard. These criteria will be met."
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 28 of 69
The Hearings Officer finds the above -quoted Staff comments to be credible and persuasive. The
Hearings Officer finds that these criteria are met.
F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel
of land hereafter used as a public or private parking area, including commercial
parking lots, shall be developed as follows:
1. Except for parking to serve residential uses, an off-street parking area for
more than five vehicles shall be effectively screened by a sight obscuring
fence when adjacent to residential uses, unless effectively screened or
buffered by landscaping or structures.
FINDING: The proposed hydroelectric facility is not considered a residential use and, as described
in previous findings, will include three (3) total parking spaces (2 standard spaces and 1 ADA-
compliant space). Therefore, the Hearings Officer finds that this criterion is not applicable to the
subject application.
2. Any lighting used to illuminate off-street parking areas shall be so arranged
that it will not project light rays directly upon any adjoining property in a
residential zone.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page
15) related to this approval criterion:
"The Anniirnnt nrnnncpc Pytarinr liahtina in arrnrdance with the Pronosed Site Plan. Facility exterior
r,r........ r-. , r .,�__ _..__.._. . c .a
lighting will consist of an outdoor light over each door that is shielded and directs light downward.
No light rays will be directly projected upon residentially zoned properties to the west and northwest"
Staff, in the Staff Report, stated the following:
"The Subject property is adjacent to residentially zoned properties to the west and northwest. The
submitted elevation drawings indicate that the proposed facility will include exterior lighting on all
sides, including the eastern side facing the proposed parking area. It will be made a suggested
Condition of Approval that any lighting used to illuminate off-street parking areas shall be so arranged
that it will not project light upon any adjoining property in a residential zone."
The Hearings Officer takes notice of an open -record submission dated August 4, 2020 (joint letter
from Applicant and Desert Sand Arabian Ranch Subdivision - "8/4/2020 Applicant/Sand Letter"). The
8/4/2020 Applicant/Sand Letter stated the following:
"TSID proposes eight (8) wall -mounted lights, approximately 12 feet in height, as outdoor
lighting. The Subject Property is adjacent to residentially zoned properties to the west and
northwest. The submitted elevation drawing indicate that the proposed facility will include
exterior lighting on all sides, including the astern side facing the proposed parking area. TSID
and Desert Sand recognize the potential for light to be projected upon properties of Desert Sand
residents. To resolve this concern, TSID agrees that all exterior lighting shall be shielded so that
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 29 of 69
direct light does not project off -site. Desert Sand residents requested TSID consider installing
motion sensor lighting. Additionally, TSID made clear there is no intention to install elevated
street lighting, as supported by the application materials and Deschutes County Staff."
The Hearings Officer finds Applicant's above -quoted comments are relevant to this approval
criterion. The Hearings Officer finds Staffs recommended Condition of Approval is appropriate and
necessary to assure compliance with the criterion. The Hearings Officer finds that with Staffs
recommended Condition of Approval this criterion can be met.
3. Groups of more than two parking spaces shall be located and designed to
prevent the need to back vehicles into a street or right of way other than an
alley.
FINDING: Given the distance from the proposed parking area to adjacent roadways, vehicles will
not be required to back onto a street or right-of-way.
4. Areas used for standing and maneuvering of vehicles shall be paved surfaces
adequately maintained for all weather use and so drained as to contain any
flow of water on the site. An exception may be made to the paving
requirements by the Planning Director or Hearings Body upon finding that.
a. A high water table in the area necessitates a permeable surface to
reduce surface water runoff problems; or
b. The subject use is located outside of an unincorporated community
and the proposaA coo facing Will be maintained in n mnnner which 1" 11
not create dust problems for neighboring properties, or
C. The subject use will be in a Rural Industrial Zone or an Industrial
District in an unincorporated community and dust control measures
will occur on a continuous basis which will mitigate any adverse
impacts on surrounding properties.
FINDING: Staff, in the Staff Report (page 27), provided the following comments:
'The Subject Property is located outside of an unincorporated community. The applicant is proposing
to have three (3) paved parking spaces. The proposed service drive, connecting the parking area to
Simmons Road, is not intended to be a paved surface, as evidenced in the submitted application
materials. As a suggested Condition of Approval, the proposed surfacing of the service drive shall be
maintained in a manner which will not create dust problems for neighboring properties. Specifically,
staff suggests the applicant be required to apply a dust suppressant such as Chlorides, resins, clays,
oils or other natural binding compounds."
Applicant provided the following comments, in the Supplemental Burden of Proof (page 15) related
to this approval criterion:
'There is an existing service driveway which will connect the proposed parking area to Simmons Rd.
The driveway has remained unpaved since its installation in 1957, the same year the McKenzie re-
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 30 of 69
regulating reservoir was built. The Applicant will maintain the driveway in a manner which will not
create dust problems for neighboring properties. With only 1-2 employees working onsite, the amount
of vehicle traffic to the Subject Property will be minimal. With the Applicant employing Best
Management Practices (BMPs) for dust control, the dust -related impact to surrounding properties will
be extremely limited. No condition of approval for dust control is necessary."
The Hearings Officer finds the above -quoted comments from both the Applicant and Staff
expressed concern over the potential of dust impacts created by use of the service road. The
Hearings Officer finds that to assure dust does not impact neighboring properties the Staff
recommended condition is appropriate and necessary. The Hearings Officer finds that with Staffs
recommended Condition of Approval this criterion can be met.
5. Access aisles shall be of sufficient width for all vehicular turning and
maneuvering.
FINDING: Staff, in the Staff Report (page 27), provided the following comments related to this
criterion:
"The submitted application materials indicate that there will be one access aisle that will provide
access to the proposed parking area. As proposed, the access aisle will have a width of 36 feet at the
point nearest the parking area, and tapers down to a width of approximately24 feet before connecting
to the proposed service drive. Staff finds that the proposed access aisle width of 24 feet will comply
with the standards of DCC 18.116.030. This criterion will be met."
The Hearings Officer finds the above -quoted Staff comments are credible and persuasive. The
Hearings Officer finds this criterion will be met.
6. Service drives to off-street parking areas shall be designed and constructed
to facilitate the flow of traffic, provide maximum safety of traffic access and
egress and maximum safety of pedestrians and vehicular traffic on the site.
The number of service drives shall be limited to the minimum that will
accommodate and serve the traffic anticipated. Service drives shall be clearly
and permanently marked and defined through the use of rails, fences, walls
or other barriers or markers. Service drives to drive in establishments shall
be designed to avoid backing movements or other maneuvering within a
street other than an alley.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page
16) related to this approval criterion:
'The Applicant proposes a single two-way service drive with an approximate width of 24 feet, as
indicated on the attached Access Plan. This complies with the minimum width for two-way vehicle
travel, as indicated in Table 1 of DCC 18.166. The Applicant has clearly and permanently marked and
defined the proposed service drive through the use of boulder markers. This is detailed on the Access
Plan and has been verified by Deschutes Countystaff during theirJune 23, 2020 site visit."
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 31 of 69
Staff, in the Staff Report (pages 16 & 17) provided the following comments:
'The submitted application materials indicate that one (1) gravel two-way service drive will be utilized
in the parking area design associated with the proposed hydroelectric facility. Staff finds that, because
the single service drive is the only proposed service drive, the total number of service drives are already
limited to the minimum that will accommodate and serve the traffic anticipated. The proposed two-
way service drive has a width of approximately20.25 feet, as indicated on the submitted site plan. The
required minimum width for two-way vehicle travel is 24 feet, as indicated in Table 1 of DCC 18.116.
Based on staffs observation of the project site, staff finds it feasible for the applicant to construct a
24-foot-wide service drive in compliance with the above criterion. To ensure compliance, staff
recommends a Condition of Approval requiring the applicant to submit a revised site plan illustrating
a 24-foot-wide service drive.
Based on the submitted application materials, the applicant has not addressed the requirement to
clearly and permanently mark and define the proposed service drive through the use of rails, fences,
walls or other barriers or markers. As a suggested Condition of Approval, prior to the issuance of
building permits for the proposed facility, the applicant must submit a revised site plan specifying the
location of the fencing, rails, walls, or other barriers or markers used to mark and define the proposed
service drive."
The Hearings Officer finds that Applicant's service drive must meet the minimum width
requirements of 24 feet. To assure that the minimum service drive width is attained through
Applicants construction process the I-Icarincac Officer finr4c that StaMr, recommendation of a
Condition of Approval is necessary. The Hearings Officer finds Applicant and Staff possibly differ in
their belief that the service drive has been clearly delineated/marked by boulders. The Hearings
Officer finds that to assure the service drive is adequately delineated/marked the Hearings Officer
finds Staffs recommended Condition of Approval is necessary. The Hearings Officer finds that with
Staffs recommended Condition of Approval this criterion can be met.
7. Service drives shall have a minimum vision clearance area formed by the
intersection of the driveway centerline, the street right of way line and a
straight line joining said lines through points 30 feet from their intersection.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page
17) related to this approval criterion:
"The location where the existing service driveway connects with Simmons Rd. is detailed on the Access
Plan. There is no intersection or turn movement possible when exiting the exiting service driveway
and entering Simmons Rd. All vehicles must continue west along Simmons Rd. upon existing the
service driveway. The entrance to Simmons Rd. has adequate vision clearance."
The Hearings Officer finds that Applicant's above -quoted comments are credible. The Hearings
Officer finds that the Access Plan referenced by Applicant in the above -quoted comments shall be
considered as part of Condition of Approval A. The Hearings Officer, therefore, revises Condition of
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Approval A to specifically include Applicant's Access Plan. The Hearings Officer finds that with the
revision of Condition of Approval A to specifically include Applicant's Access Plan this criterion can
be met.
8. Parking spaces along the outer boundaries of a parking area shall be
contained by a curb or bumper rail placed to prevent a motor vehicle from
extending over an adjacent property line or a street right of way.
FINDING: The parking spaces for the proposed development will not be located near a property
line or street right-of-way.
G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to
County standards for stalls and aisles as set forth in the following drawings and
table:
(SEE TABLE 1 AT END OF CHAPTER 18.116)
1. For one row of stalls use "C" + "D" as minimum bay width.
2. Public alley width may be included as part of dimension " ," but all parking
stalls must be on private property, off the public right of way.
3. For estimating available parking area, use 300-325 square feet per vehicle for
stall, aisle and access areas.
4. For large parking lots exceeding20 stalls, alternate rows maybe designed for
compact cars provided that the compact stalls do not exceed 30 percent of
the total required stalls. A compact stall shall be eight feet in width and 17
feet in length with appropriate aisle width.
FINDING: Staff, in the Staff Report (pages 28 & 29), provided the following comments related to this
criterion:
"The parking spaces for the proposed development will meet the 9-foot by 20 foot standard under
Table 1. As discussed previously, staff recommends a Condition of Approval requiring the applicant to
submit a revised site plan clearly showing how the proposed service drive will be designed to a
minimum 24 foot width. The applicant is proposing a total of three (3) parking stalls on the subject
property configured to a 90-degree design, one (1) of which is proposed as an ADA-compliant parking
space. None of the proposed spaces are for the parking of compact cars. Staff finds that the proposed
off-street parking lot design complies with the above approval criteria."
The Hearings Officer finds Staffs above -quoted comments are credible and not disputed by
Applicant. The Hearings Officer finds that with Staffs recommended Condition of Approval, this
criterion can be met.
Section 18.116.031. Bicycle Parking.
New development and any construction, renovation or alteration of an existing use
requiring a site plan review under DCC Title 18 for which planning approval is applied for
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 33 of 69
after the effective date of Ordinance 93-005 shall comply with the provisions of DCC
1 & 116.031.
A. Number and Type of Bicycle Parking Spaces Required.
1. General Minimum Standard.
a. All uses that require off-street motor vehicle parking shall, except as
specifically noted, provide one bicycle parking space for every five
required motor vehicle parking spaces.
b. Except as specifically set forth herein, all such parking facilities shall
include at least two sheltered parking spaces or, where more than 10
bicycle spaces are required, at least 50 percent of the bicycle parking
spaces shall be sheltered.
C. When the proposed use is located outside of an unincorporated
community, a destination resort, and a rural commercial zone,
exceptions to the bicycle parking standards may be authorized by the
Planning Director or Hearings Body if the applicant demonstrates one
or more of the following.
i. The proposed use is in a location accessed by roads with no
bikeways and bicycle use by customers or employees is
unlikely.
ii. The proposed use generates less than 50 vehicle trips per day.
iii. No existing buildings on the site will accommodate bicycle
parking and no new buildings are proposed.
iv. The size, weight, or dimensions of the goods sold at the site
makes transporting them by hi J. r rIe im r vctiral or unlikely
V. The use of the site requires equipment that makes it unlikely
that a bicycle would be used to access the site. Representative
examples would include, but not be limited to, paintball parks,
golf courses, shooting ranges, etc.
FINDING: Staff, in the Staff Report (page 29), provided the following comments related to this
criterion:
'Based on the above criteria, bicycle parking requirements are triggered by uses that require at least
five (5) parking spaces. Based on the submitted application materials, the applicant has proposed to
establish three (3) total parking spaces. Staff finds that the proposed facility is in a location accessed
by roads with no bikeways, that bicycle use by employees is unlikely based on projected use and, as a
result, no bicycle parking is required for the proposed development. These criteria are met.
The Hearings Officer finds Staffs above -quoted comments are credible and not disputed by
Applicant. The Hearings Officer finds this criterion will be met.
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Section 18 116.130. Hydroelectric Facilities.
A. No new hydroelectric facilities shall be constructed, and no existing hydroelectric
facilities shall be enlarged or expanded in size of area or generating capacity, on the
following rivers and streams within Deschutes County.•
1. Deschutes River, from its headwaters to River Mile 227, above, but not
including Wickiup Dam, and from Wickiup Dam to River Mile 171 below Lava
Island Falls;
2. Crooked River,
3. Fall River,
4. Little Deschutes River;
S. Spring River,
6. Paulina Creek,
7. Whychus Creek; and
8. Tumalo Creek.
B. Hydroelectric facilities are allowed as a conditional use on the Deschutes River at
Wickiup Dam, and from River Mile 171 below Lava Island Falls downstream to the
northern Deschutes County line. Such conditional use shall be governed by the
conditions set forth in DCC 18.128.260.
FINDING: The proposal is for a new hydroelectric facility on the Subject Property, which is located
over 10 miles from Whychus Creek, the nearest of the above -listed rivers and streams. The Hearings
Officer finds these criteria are met.
Chapter 18.124. Site Plan Review
Section 18 124 030 Approval Rewired.
A. No building, grading, parking, land use, sign or other required permit shall be issued
for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged,
altered or changed until a final site plan is approved according to DCC Title 22, the
Uniform Development Procedures Ordinance.
B. The provisions of DCC 1 & 124.030 shall apply to the following:
1. All conditional use permits where a site plan is a condition of approval,
2. Multiple family dwellings with more than three units,
3. All commercial uses that require parking facilities;
4. All industrial uses;
S. All other uses that serve the general public or that otherwise require parking
facilities, including, but not limited to, landfills, schools, utility facilities,
churches, community buildings, cemeteries, mausoleums, crematories,
airports, parks and recreation facilities and livestock sales yards; and
6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area
Combining Zones (SMIA).
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FINDING: The proposed hydroelectric facility is a use that requires parking facilities. The Hearings
Officer finds that the provisions of this chapter are applicable.
Section 18.124.060. Site Plan Approval Criteria.
Approval of a site plan shall be based on the following criteria.
A. The proposed development shall relate harmoniously to the natural environment
and existing development, minimizing visual impacts and preserving natural
features including views and topographical features.
FINDING: The area environment consists primarily of McKenzie Reservoir and two (2) HDPE
irrigation pipelines which serve approximately 2,000 acres of farmland within the boundaries of the
TSID. Existing internal roads, driveways and parking areas are dirt or gravel and the property is
currently accessed by a driveway connecting to Simmons Road, to the northwest of the project site.
Natural features are limited to undeveloped native vegetation and topography on the subject
property. Scenic views from the Subject Property include the Sisters Mountains and Broken Top
Mountain to the southwest, and Black Butte and Mount Jefferson to the northwest.
Applicant stated the following in its Supplemental Burden of Proof (page 18):
"Proposed developmentwill occur within a 3,600-square foot (60'square), which is an incrediblysmall
portion of the total acreage of the Subject Property. The 3,600-square foot area constitutes
approximately 0.08% of the total 97.60-acre Subject Property in terms of impact on the existing
natural erv,r onment. The Deschutes County zoning map �nd;cates the pos-1IIty r j ,v;retland areas
located on the Subject Property as a characteristic of the natural environment The Applicant has
submitted a letter from the Department of State Lands (DSL), which makes clear that state permit will
not be required for the proposed development and that the existing reservoir on the subject property
is considered an 'artificially created wetland and pond' which is not jurisdictional' according to OAR
141-085-0515(6)(a-c). DSL further clarifies that the existing reservoir is an exempt feature pursuant
to OAR 141-085-0515(7)(d). As noted above, the proposed development will observe all setback and
height requirements and will be sited over 100 feet from the nearest property line.
Public comments submitted into the record express concerns related to the visual and electromagnetic
impacts related to the design and location of CEC's Distribution System. In response to these
comments, the Applicant has modified its design for CEC's distribution system. As stated above, the
Applicant proposes an underground power system, instead of overhead distribution lines. The
Applicant will install a utility trench and conduits detailed on the attached Access Plan. CEC will then
install its distribution lines within the utility trench. The Applicant will then backfill the trench,
returning the area to natural grade and eliminating any permanent impact to the natural
environment. This project does not pose any potential electromagnetic impacts...
The proposed McKenzie Hydro and associated utility trench will not adversely impact the natural
environment. The proposed power system has been designed to eliminate any visual impacts,
although the Applicant notes that both the power system and power station are located east of the
surrounding residentially zoned properties, while the Sisters Mountains and Broken Top Mountain are
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 36 of 69
located to the southwest, and Black Butte and Mount Jefferson to the northwest. The project will not
adversely impact scenic views. Furthermore, the underground power system reduces the propensity
for artificially created wildfire and eliminates any impact to nesting raptors which may potentially
inhabit the Subject Property. The trench will be returned to natural grade, preserving natural
topographic and visual features of the Subject Property.
The design characteristics of the powerhouse are detailed on the Proposed Site Plan. The facilitywill
have no impact on the scenic views referenced above, due to its location east off neighboring
residential properties."
The Hearings Officer finds the above -quoted Applicant statement to be credible. Based upon the
evidence in the record, including the Applicant's above -quoted statement, the Hearings Officer finds
that Applicant's proposed hydroelectric facility, including underground electric distribution system
and parking/access areas relate harmoniously to the natural environment and existing
development. The Hearings Officer finds that Applicant's proposed hydroelectric facility minimizes
visual impacts to nearby/neighboring properties including the preservation of views and
topographical features. The Hearings Officer finds this criterion is met.
B. The landscape and existing topography shall be preserved to the greatest extent
possible, considering development constraints and suitability of the landscape and
topography. Preserved trees and shrubs shall be protected.
FINDING: Applicant provided the following comments, in the Supplemental Burden of Proof (page
1 8) related to this annrnval criterion:
'The Applicant proposes to remove 1-4 juniper trees to install the proposed hydroelectric facility. All
trees around the location of the proposed power house are to be preserved as a visual buffer. The
location of the underground power system is detailed on the attached Access Plan. The installation of
the utility trench will constitute removal of material to a depth of 42" as detailed on the attached utility
trench technical description. Once CEC installs its distribution lines, the trench will be backfilled to
natural grade, eliminating any permanent impact to the landscape and existing topography. No trees
and shrubs are to be impacted by the installation and backfilling of the utility trench."
The Hearings Officer finds the above -quoted Applicant statement to be credible. The Hearings
Officer finds that Applicant's proposed hydroelectric facility will preserve, to the greatest extent
possible the suitability of the landscape and topography. The Hearings Officer finds this criterion is
met.
C. The site plan shall be designed to provide a safe environment, while offering
appropriate opportunities for privacy and transition from public to private spaces.
FINDING: Staff, in the Staff Report (page 32), provided the following comments related to this
criterion:
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 37 of 69
"No safety concerns were raised by Cloverdale Fire Department or any other agency or individual
notified during the agency comment period. Stafffinds rods the proposed development will not impact the
safety of the subject property or the ongoing operations associated with TSID for any foreseeable
reason. Staff notes there are no public spaces on the subject property which would conflict with
adjoining private spaces. The development will not be located in an area that will obstruct pedestrian
or vehicle access and all required setback standards will be met. This criterion will be met."
The Hearings Officer finds Staffs above -quoted comments to be credible and persuasive. The
Hearings Officer finds this criterion will be met.
D. When appropriate, the site plan shall provide for the special needs of handicapped
persons, such as ramps for wheelchairs and Braille signs.
FINDING: The Applicant indicated the proposed structure will be constructed at -grade and will
include an attached ADA-compliant parking space and an access route between the ADA parking
space and the new building. Any ADA requirements will be addressed by the Building Safety Division
during building permit review. The Hearings Officer finds this criterion will be met.
E. The location and number of points of access to the site, interior circulation patterns,
separations between pedestrians and moving and parked vehicles, and the
arrangement of parking areas in relation to buildings and structures shall be
harmonious with proposed and neighboring buildings and structures.
FINDING: The Hearings Offirar inrnrpnritPc the fi,nrfingc fnr nrr 1 R, 11 A_ n3n(i-1(71 aG aririitinnA
findings for this criterion. The proposed hydroelectric facility, access aisle, and parking area will not
affect any existing pedestrian pathways or the vehicular circulation, access, or parking layout of the
existing subject property or surrounding properties. The Hearings Officer finds this criterion is met.
F. Surface drainage systems shall be designed to prevent adverse impacts on
neighboring properties, streets or surface and subsurface water quality.
FINDING: The proposed development will have on -site surface drainage to the existing soil and
vegetation areas around the project area. The application materials indicate that there is an
abundance of undeveloped land surrounding the proposed project site, the presence of which
significantly reduces the threat of surface drainage on neighboring properties, streets, or water
quality.
Staff, in the Staff Report (page 32) suggested that the Hearings Officer impose a Condition of
Approval requiring the Applicant, prior to issuance of building permits, to provide certification by a
licensed professional engineer that drainage facilities have been designed and constructed in
accordance with the current Central Oregon Stormwater Manual to receive and/or transport at least
the design storm (as defined in the current Central Oregon Stormwater Manual) for all surface
drainage water, including stormwater coming to and/or passing through the development.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 38 of 69
The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can
be met.
G. Areas, structures and facilities for storage, machinery and equipment, services
(mail, refuse, utility wires, and the like), loading and parking and similar accessory
areas and structures shall be designed, located and buffered or screened to
minimize adverse impacts on the site and neighboring properties.
FINDING: Staff, in the Staff Report (page 33) provided the following comments related to this
criterion:
'The Applicant proposes a new 30' by 39' hydroelectric facility building and associated parking area
and service drive on the subject property. Staff finds that the most likely adverse impacts that could
result from the proposed development would be visual impacts on neighboring properties. The
applicant's submitted burden of proof statement indicates that the topography of the proposed
project site allows for a substantial portion of the proposed structure to be buried underground,
limiting visual impacts on the subject and surrounding properties. Additionally, the submitted
application materials include color photographs of the site indicating that the proposed structure and
parking area will be visually screened by the presence of juniper and vegetative groundcover on the
site. The proposed project site is centrally located on the subject property, approximately 270 feet
from the nearest property line. As stated in previous findings, the applicant has proposed to install
overhead power distribution lines in association with the development.
The submitted application materials do not indicate the proposed location or design of said
distribution lines. Staff defers to the Hearings Officer to determine whether the proposed development
has been designed, located and buffered or screened to minimize adverse impacts on the site and
neighboring properties."
Applicant, in the Supplemental Burden of Proof (page 19) responded to Staffs comments as follows:
'As previously discussed, the Applicant proposes an underground power system, which will house
CEC's distribution lines. This system will eliminate any potential visual impacts relating to distribution
lines. Once backfilled to natural grade, the trench location will be indistinguishable from the
surrounding natural environment."
The Hearings Officer finds Staffs above -quoted comments to be credible. However, the Hearings
Officer also finds that Applicant's modification of proposal eliminating overhead electrical
distribution lines and replacing them with underground (buried) lines adequately responds to Staffs
expressed concerns. The Hearings Officer finds this criterion is met.
H. All above ground utility installations shall be located to minimize adverse visual
impacts on the site and neighboring properties.
FINDING: Applicant, in the Supplemental Burden of Proof (page 20) provided the following comments
related to this criterion:
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 39 of 69
"The proposed power house will have minimal adverse visual impacts on the site and neighboring
property. The proposed powerhouse constitutes approximately 0.08% of the total 9Z 60-acre Subject
Property in terms of impact on the existing natural environment. It will be screened by existing
vegetation and is centrally located on the site. Furthermore, it is located to the east of the neighboring
residential properties, while the Sisters Mountains and Broken Top Mountain are located to the
southwest, and Black Butte and Mountjefferson to the northwest. The proposed powerhouse will not
impact neighboring properties scenic views.
Regarding CEC's distribution lines, they will be house in the proposed utility trench which, once
backfilled to natural grade, will be indistinguishable from the surrounding topography of the Subject
Property."
The Hearings Officer, based upon the evidence in the record, including the above -quoted Applicant
comments, finds that this criterion is met.
1. Specific criteria are outlined for each zone and shall be a required part of the site
plan (e.g. lot setbacks, etc.)
FINDING: The Subject Property is within the Multiple Use Agricultural (MUA10) Zone, Exclusive Farm
Use (EFU) Zone, and Flood Plain (FP) Zone. The Hearings Officer incorporates finding for DCC 18.16
(EFU zoning) and DCC 18.32 (MUA10) as additional findings for this criterion. The Hearings Officer
finds that relevant criteria relating to DCC 18.18 and DCC 18.32 arP not met.
J. All exterior lighting shall be shielded so that direct light does not project off -site.
FINDING: The Hearings Officer incorporates the findings for DCC 18.116.030(F)(2) as additional
findings for this criterion. The Applicant proposed eight (8) wall -mounted lights, approximately 12
feet in height, as outdoor lighting. To ensure compliance, Staff, in the Staff Report (page 33)
suggested that the Hearings Officer impose a Condition of Approval related to this criterion. The
Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can be
met.
K. Transportation access to the site shall be adequate for the use.
1. Where applicable, issues including, but not limited to, sight distance, turn
and acceleration/deceleration lanes, right-of-way, roadway surfacing and
widening, and bicycle and pedestrian connections, shall be identified.
Z Mitigation for transportation -related impacts shall be required.
3. Mitigation shall meet applicable County standards in DCC 1 Z 16 and DCC
17.48, applicable Oregon Department of Transportation (ODOT) mobility and
access standards, and applicable American Association of State Highway and
Transportation Officials (AASHTO) standards.
FINDING: Applicant, in the Supplemental Burden of Proof (page 20) provided the following comments
related to this criterion:
247-20-000187-1.R, 191-CU, 192-CU, 193-SP, 461-MA Page 40 of 69
'The attached Access Plan delineates the location where the proposed service driveway will connect
with Simmons Rd. The Applicant has submitted a revised site plan showing a minimum 24 foot width
for the proposed service drive, and specifying the location of the fencing, rails, walls, or other barriers
or markets used to mark and define the proposed service drive. Access to the Subject Property is
adequate, as there is an existing two-way service driveway that complies with minimum standards
and the transportation impact caused by this Application will be minimal with only 1-2 TSID employees
to be onsite."
The Hearings Officer incorporates the findings for DCC 18.116.030(F)(6) as additional findings for
this criterion. The Hearings Officer finds that to assure the service drive is adequately
delineated/marked the Hearings Officer finds Staffs recommended Condition of Approval is
necessary. The Hearings Officer finds that with Staffs recommended Condition of Approval this
criterion can be met.
Section 18 124 070 Required Minimum Standards.
B. Required Landscaped Areas.
1. The following landscape requirements are established for multi family,
commercial and industrial developments, subject to site plan approval:
a. A minimum of 15 percent of the lot area shall be landscaped.
b. All areas subject to the final site plan and not otherwise improved
shall be landscaped.
FINDING: The Hearings Officer finds that Applicants proposed hydroelectric facility is not to be
considered a type of commercial or industrial development as defined in the above criteria. As such,
the Hearings Officer finds that the above landscaping criteria do not applyto the subject application.
2. in addition to the requirement of DCC 18.124.070(B)(1)(a), the following
landscape requirements shall apply to parking and loading areas:
a. A parking or loading area shall be required to be improved with
defined landscaped areas totaling no less than 25 square feet per
parking space.
b. in addition to the landscaping required by DCC I& 124.070(B)(2)(a), a
parking or loading area shall be separated from any lot line adjacent
to a roadway by a landscaped strip at least 10 feet in width, and from
any other lot line by a landscaped strip at least five feet in width.
C. A landscaped strip separating a parking or loading area from a street
shall contain:
1) Trees spaced as appropriate to the species, not to exceed 35
feet apart on the average.
2) Low shrubs not to reach a height greater than three feet zero
inches, spaced no more than eight feet apart on the average.
3) Vegetative ground cover.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 41 of 69
d. Landscaping in a parking or loading area shall be located in defined
landscaped areas which are uniformly distributed throughout the
parking or loading area.
e. The landscaping in a parking area shall have a width of not less than
five feet.
f. Provision shall be made for watering planting areas where such care
is required.
g. Required landscaping shall be continuously maintained and kept alive
and attractive.
h. Maximum height of tree species shall be considered when planting
under overhead utility lines.
FINDING: Staff, in the Staff Report (page 35) provided the following comments related to these
landscaping requirements:
'The applicant proposes to construct a new hydroelectric facility and associated parking area. Per DCC
18.124.070(8)(2)(6), the three (3) proposed parking spaces require a total of 75 square feet of
landscaping (3 spaces x 25 square feet). The submitted application materials do not include a
proposal for landscaping in association with the proposed parking area. As a result, staff adds a
suggested Condition of Approval requiring the applicant, prior to the issuance of building permits, to
submit a landscaping plan demonstrating the site's compliance with the above landscaping
requirements."
Annlirnnt in itc Cttnnlamcntn1 Riirden of Prnnf !nacre 911 ctitarl that "Hi ie to the laraa amni int of
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existing vegetation, as well as the Applicant's ability to plant additional vegetation, it is feasible for
the Applicant to meet this proposed Condition of Approval."
The Hearings Officer finds that with Staffs recommended Condition of Approval this criterion can
be met.
C. Nonmotorized Access.
1. Bicycle Parking. The development shall provide the number and type of
bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The
location and design of bicycle parking facilities shall be indicated on the site
plan..
FINDING: The Hearings Officer incorporates the findings for DCC 18.116.031 as additional findings
for this criterion. The Hearings Officer finds that no bicycle parking is required.
2. Pedestrian Access and Circulation:
a. Internal pedestrian circulation shall be provided in new commercial,
office and multi family residential developments through the
clustering of buildings, construction of hard surface pedestrian
walkways, and similar techniques.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 42 of 69
FINDING: The proposed hydroelectric facility is considered a utility facility and not a type of
commercial, office or multi -family development as defined in the above criterion. As such, the
Hearings Officer finds that the provisions of DCC 18.124.070(C)(2)(a) do not apply to the subject
application.
b. Pedestrian walkways shall connect building entrances to one another
and from building entrances to public streets and existing or planned
transit facilities. On -site walkways shall connect with walkways,
sidewalks, bikeways, and other pedestrian or bicycle connections on
adjacent properties planned or used for commercial, multi family,
public or park use.
FINDING: Staff, in the Staff Report (page 36), provided the following comments:
"Staff finds that criteria (b) through (e) apply to any use subject to site plan review. The applicant did
not show pedestrian walkways at the proposed facility. Staff follows the Hearings Officer decision in
CU-14-7 where the Hearings Officer found that:
-these criteria have limited application to the applicants' proposal inasmuch as there is only
one commercial use proposed for the subject property, and there will be a single building for
that use. Therefore, I find there is no need to apply these criteria to require particular
pedestrian circulation or walkways on the property.'
Staff finrk that the present application is similar in that there is a single buildink proposed for the
facility on site. Additionally, staff notes that a single entrance will be supplied for the facility. No
sidewalks, transit stops, or pedestrian access points exist along the Simmons Road or Holmes Road
rights of way in the immediate vicinity. Based on the findings above, staff finds that no pedestrian
walkways under these criteria are required."
The Hearings Officer finds the above -quoted Staff comments to be credible and persuasive. The
Hearings Officer finds, based upon this criterion, that no pedestrian walkways are required.
C. Walkways shall be at least five feet in paved unobstructed width.
Walkways which border parking spaces shall be at least seven feet wide
unless concrete bumpers or curbing and landscaping or other similar
improvements are provided which prevent parked vehicles from
obstructing the walkway. Walkways shall be as direct as possible.
FINDING: Applicant, in its Supplemental Burden of Proof (page 21) provided the following comments
related to walkways:
"As detailed on the submitted site plan, the Applicant proposes an 8 x 20 walkway adjacent to the ADA
parking space. This walkway leads to the doorway of the powerhouse."
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 43 of 69
The Hearings Officer finds Applicant's above -quoted statement to be credible and persuasive. The
Hearings Officer finds Applicant's proposal (Proposed Site Plan - attached to Supplemental Burden
of ProoJ) meets this criterion.
d. Driveway crossings by walkways shall be minimized. Where the
walkway system crosses driveways, parking areas and loading areas,
the walkway must be clearly identifiable through the use of elevation
changes, speed bumps, a different paving material or other similar
method.
FINDING: The site plan attached to the Supplemental Burden of Proof indicates that no walkways
would be intersected by the proposed parking area or service drive. The Hearings Officer finds this
criterion is met.
e. To comply with the Americans with Disabilities Act, the primary
building entrance and any walkway that connects a transit stop to
building entrances shall have a maximum slope of five percent.
Walkways up to eight percent slope are permitted, but are treated as
ramps with special standards for railings and landings.
FINDING: Applicant, in its Supplemental Burden of Proof (page 21) indicated that it was proposing
an 8 x 20 walkway adjacent to the ADA parking space. This walkway leads to the doorway of the
power house. The Hearings Officer finds that with a Condition of Approval requiring Applicant
11.ompl la n4e YYith this C. It 1 lVn the Criterion van he met.
D. Commercial Development Standards.
1. New commercial buildings shall be sited at the front yard setback line for lots
with one frontage, and at both front yard setback lines for corner lots, and
oriented to at least one of these streets, except in the Sunriver UUC Business
Park (BP) District and Town Center (TC) District and the La Pine UUC Business
Park (LPBP) District. The building(s) and any eaves, overhangs or awnings shall
not interfere with the required clear vision area at corners or driveways.
FINDING: The proposed hydroelectric facility and associated parking area and driveway access is
considered a utility facility, not a commercial structure or use. The Hearings Officer finds that the
Commercial Development Standards outlined in DCC 18.124.070(D) do not apply to the subject
application.
Chapter 18.128. Conditional Use
Section 18.128,015. General Standards Governing Conditional Uses.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 44 of 69
Except for those conditional uses permitting individual single-family dwellings, conditional
uses shall comply with the following standards in addition to the standards of the zone in
which the conditional use is located and any other applicable standards of the chapter:
A: The site under consideration shall be determined to be suitable for the proposed use
based on the following factors:
1. Site, design and operating characteristics of the use,
FINDING:
Site. The 97.60-acre Subject Property is developed with two (2) high density polyethylene
("HDPE") irrigation pipelines (42" and 18" in respective diameters) which serve approximately 2,000
irrigated acres of farmland within the boundaries of the Applicant's district. The interior of the
Subject Property contains dirt and gravel driveways, and parking areas associated with TSID. The
Subject Property currently supports an approximately 12-acre man-made water body referred to as
the McKenzie Regulating Reservoir (McKenzie Reservoir). The location of the McKenzie Reservoir
corresponds to the location of state -mapped wetland areas and areas of mapped Special Floodplain
Hazard Area ("SFHA") on the Subject Property. The Subject Property has a vegetative cover of mature
juniper trees, sagebrush, native groundcover, and other native vegetation. The property is irregular
in shape and fronts on both Simmons Road and Holmes Road. The grade of the Subject Property is
slightly lower in elevation in the eastern portion near the location of the McKenzie Reservoir, and
slightly raised in the northwestern portion which is north of Holmes Road.
The Hearings Officer finds the proposed location of the facility adjacent to McKenzie Reservoir and
ayktinu Tcln nining is suitable to the site. Further. the proposed facility location generally avoids
......,-....p . - rr.. ..a .-------- - - - the existing native vegetation on -site.
Design. The proposed hydroelectric facility will be connected to the existing irrigation piping
infrastructure and is intended to generate electricity on the Subject Property. The design includes
a 1,736-square-foot building and tail race. In addition to the hydroelectric facility, the Applicant is
also proposing to establish an associated parking area, complete with three (3) parking spaces, one
of which is ADA-compliant.
According to the Supplemental Burden of Proof (page 18), the proposed hydroelectric facility and
parking area will be located in a 3,600 square -foot area in the central portion of the 97.60-acre
Subject Property. Additionally, a gravel driveway will be established on the Subject Property,
providing access from Simmons Road to the proposed hydroelectric facility. Given the location of
McKenzie Reservoir and existing piping on the Subject Property the Hearings Officer finds that the
facility's siting adjacent to the reservoir takes advantage of the existing topography for the purpose
of hydroelectric generation and is appropriate for the proposed use.
Operating Characteristics. According to the Applicant's Supplemental Burden of Proof
statement, the operating characteristics of the proposed use include daily visits by TSID employees
(1-2 employees total) to adjust flows to and from the reservoir and proposed facility for irrigation
deliveries. The Applicant indicated in its Supplemental Burden of Proof and the 8/4/2020
Applicant/Sand Letter that the operating hours during which these employee visits occur would be
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 45 of 69
between 8:OOAM and 5:OOPM from March to November of each year. The limited traffic generated
by the 1-2 employees and the limited scale of the proposed parking facilities will minimize impacts
on the project site.
The Hearings Officer takes notice of the 8/4/2020 Applicant/Sand Letter. The 8/4/2020
Applicant/Sand Letter addressed public concerns related to noise, lighting, vehicle access,
pedestrian access, maintenance and construction and County enforcement that could/would arise
if Applicant's hydroelectric proposal is approved.
Noise. Desert Sand community members expressed concern that operation of the
hydroelectric facility would create negative noise impacts for neighboring properties. Applicant, in
the 8/4/2020 Applicant/Sand Letter, described an acoustical evaluation commissioned by Applicant
to assess noise impacts created by operation of the hydroelectric facility. Applicant, in the 8/4/2020
Applicant/Sand Letter, indicated that the acoustical evaluation demonstrated that
'"the McKenzie Hydro will comply with OAR 340-035-0035s maximum daytime dBA limit of 55 dBA and
maximum nighttime limit of 50 dBA." Applicant also, in the 81412020 Applicant/Sand Letter stated
that it had "agreed to monitor sound levels of the McKenzie Hydro once a year, for a period of two
years. The data from this monitoring will be made available to Desert Sand for review."
The Hearings Officer could find no request in the record from the Applicant, Staff or other case
participant to include as Conditions of Approval the Applicant's representations that it would (1)
conduct two years of noise assessments and (2) report the noise assessment results to Desert Sand.
The I-Icarinac llffirer therofnro traatc the Annlirant'c ronrecentation to Desert rZand in the
8/4/2020 Applicant/Sand Letter, as a private agreement between Applicant and Desert Sand. The
Hearings Officer notes that the operation by Applicant of the proposed hydroelectric facility is
subject to state and local laws related to noise and that violation of those laws may constitute a
Deschutes County Code violation.
Visual Impacts. The Hearings Officer incorporates the findings for DCC 22.20.055 and DCC
18.124.060 A as additional findings for this criterion.
Case participants, at and prior to the Hearing, expressed concerns related to visual impacts
potentially created by the Applicant's proposed hydroelectric facility. Participants were especially
concerned with the potential visual impacts that would result from the construction of an overhead
electrical distribution system. Applicant, in its initial/first Burden of Proof statements (Burden of
Proof Statement for Site 104, page 3), proposed an overhead electrical distribution system.
Applicant, following concerns expressed by nearby neighbors, modified its proposal by replacing
the overhead electrical distribution system with an underground electrical distribution system. The
Hearings Officer finds that Applicant's modification (placing the electric distribution lines
underground) eliminates visual impacts created by overhead power lines that existed in the
Applicant's original proposal.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 46 of 69
The Applicant also addressed visual impacts created by the construction of the powerhouse. The
Hearings Officer finds that with Applicant's proposed landscaping the visual impacts from the
powerhouse will be minimal.
Electromagnetic Current. The Hearings Officer incorporates the findings for DCC
18.124.060(A) as additional findings for this criterion.
Neighborhood property owner O'Neill expressed concerns that electromagnetic current emissions
from Applicant's proposed hydroelectric facility may cause health problems to nearby neighbors;
particularly emissions from powerlines. Applicant provided the following response, in the
Supplemental Burden of Proof (page 23), to concerns related to electromagnetic current:
'The proposed design change to an underground power system eliminates the potential for adverse
health impacts caused by electromagnetic currents. As a preliminary matter, the National Cancer
Institute has not found any association between non -ionizing electromagnetic fields ('EMFs) and
adverse health impacts. Electromagnetic Fields and Cancer, National Cancer Institute,
https-Ilwww cancer gov/about-cancer/causes-prevention/risk/radiationlelectroma n,� etic-fields fact -
sheet (last visited Jul. 13, 2020). Power lines and electrical applicants that emit non -ionizing EMFs are
present everywhere in homes and workplaces. EMFs in the non -ionizing part of the electromagnetic
spectrum cannot damage DNA or cells directly. Id. Power lines emit 50-60 hertz (Hz) and are classified
as extremely low frequency EMFs, similar to shavers, hair dryers, electrical wiring, and electric
blankets. Id. The National Cancer Institute has not found an association between EMFs and adverse
health impacts. Because of the findings made by the National Cancer Institute and the fact CEC's
distrihwitinn lines Will he hiiriv_d and hackfilled with 30"of material. this project will not cause adverse
health impacts relating to electromagnetic currents."
The Hearings Officer finds the above -quoted Applicant comments to be credible and persuasive.
The Hearings Officer finds that burying the electric distribution lines minimizes any potential health
risks associated with electromagnetic current.
Conclusion. The Hearings Officer finds the Applicant's proposed hydroelectric facility meets
this criterion.
2. Adequacy of transportation access to the site, and
FINDING: The Hearings Officer incorporates the findings for DCC 18.116.030(F)(6) and DCC
18.124.060(K) as additional findings for this criterion.
The Deschutes County Senior Transportation Planner and Deschutes County Road Department did
not identify any transportation access or infrastructure deficiencies associated with the proposal.
The Hearings Officer finds this criterion can be met.
3. The natural and physical features of the site, including, but not limited to,
general topography, natural hazards and natural resource values.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 47 of 69
FINDING: Staff, in the Staff Report (page 39) provided the following comments related to this
criterion:
Natural and physical features of the Subject Property are limited to the existing reservoir, natural
vegetation cover, and topography associated with the physical site. The Subject Property is relatively
level, with the existing reservoir being located in an area of lower elevation in the southern and eastern
portions of the Subject Property. Aside from the reservoir, there are no other topographical constraints
associated with the Subject Property. The Hearings Officer finds that the Subject Property has no
natural resource values, other than what already exists regarding trees, natural vegetation, and the
reservoir as a hydrologic resource.
Based on the submitted application materials, staff finds that the establishment of the hydroelectric
facility, overhead power distribution lines, and the parking area and driveway access will be the most
significant impacts on natural and physical features associated with the site. The proposed
hydroelectric facility and parking area will encroach into a naturally -landscaped area in the central
portion of the subject property by an area of approximately3,600 square feet. The proposed driveway
access will impact approximately 18,000 square feet (20' width x approximately 900' length) of the
natural landscaping of the subject property. Staff finds that the total area of natural and physical
features that will be impacted by the proposal (including the driveway access) is approximately 0.50
acres. The portion of naturally -landscaped area that will be disturbed by the proposal on the subject
property is approximately 0.5% of the property.
In terms of natural hazards, the subject property is not susceptible to unusual natural hazards, except
with rog rrrd to I. WiWf;ro and lnnrfing nCCnrlatarl with tho oxictin�a roconinir Wilrifiro is a .rounty- Alide
pervasive natural hazard that affects the majority of Deschutes County. The Deschutes County
Planning Division mailed notice of the subject application to the Cloverdale Fire Department and
received no comment in response.
The Floodplain provisions of DCC 18.96 apply to the subject application as the project site is located
within the County's Floodplain (FP) Zone. The proposal complies with applicable FP criteria, reviewed
in previous findings. The provisions of DCC 18.96 act to effectively mitigate flooding risks for identified
structures and uses. Staff finds that, through the subject application's compliance with DCC 18.96,
flooding risks are mitigated to the best extent possible on the proposed project site. Staff finds the
proposal will not significantly increase wildfire or flood hazard in the project vicinity.
As stated in previous findings, the submitted application materials do not indicate the location of the
proposed service drive's connection to a road right-of-way nor do they indicate the location or design
of proposed power distribution lines associated with the proposed development. Additionally, the US
Fish and Wildlife Service has submitted a statement indicating that the subject property may contain
nesting raptors and that surveying of the property for nesting birds and raptors should be conducted
prior to construction. Staff adds a suggested condition of approval, prior to initiating construction and
installation of any distribution power lines, the applicant shall survey for nesting raptors. Said survey
shall be submitted to the Planning Division and US Fish and Wildlife Service for review. Staff defers to
the Hearings Officer to determine whether the proposed use is suitable based on the natural and
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physical features of the site, including, but not limited to, general topography, natural hazards and
natural resource values."
Applicant provided the following comments in response to Staffs comments quoted above:
"The Applicant agrees with, and incorporates by reference, the first two paragraphs of staff's finding
on this standard, detailed on page 39 of the Staff Report. The Applicant has submitted a revised Access
Plan, attached, which details the location of the proposed service driveway's connection to Simmons
Rd. As discussed above, the Applicant modified the proposed design for the distribution lines,
proposing an underground system located in a utility trench. The location and characteristics of the
utility trench are detailed in the attached Access Plan and utility trench technical description,
The proposed McKenzie Hydro and associated utility trench will not adversely impact the natural
environment. The proposed power house will be screened by existing vegetation, lessening any
potential visual impacts. The proposed power system has been designed to eliminate any visual
impacts, although the Applicant notes that both the power system and power station are located to
the east of surrounding residentially zoned properties, while the Sisters Mountains and Broken Top
Mountain are located to the southwest, and Black Butte and MountJefferson to the northwest. This
project will not adversely impact scenic views. The trench will be returned to natural grade, preserving
natural topographic and visual features of the Subject Property.
Furthermore, the underground power system reduces the propensity for artificially created wildfire
and eliminates any impact to nesting raptors which may potentially inhabit the Subject Property. Due
to this riocign mndifiratinn. a rabtor survey is not necessarv."
The Hearings Officer finds Staffs comments quoted above raised important issues based on the
information in the record at the time of issuance of the Staff Report. The Hearings Officer finds
Applicant's above -quoted comments adequately respond to Staffs concerns. The Hearings Officer
finds this criterion is met.
B. The proposed use shall be compatible with existing and projected uses on surrounding
properties based on the factors listed in DCC 98.928.095(A).
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.015(A)(1) as additional
findings for this criterion. The Hearings Officer, once again, takes notice of the 8/4/2020
Applicant/Sand Letter. The Hearings Officer addressed the "noise" compatibility issue in the findings
for DCC 18.128.015(A)(1). The Hearings Officer finds that Applicant and Desert Sand neighbors, in
the 8/4/2020 Applicant/Sand Letter, generally reached agreement with respect to "lighting," "vehicle
access," "pedestrian access," "maintenance/construction scheduling" and "landscaping`
compatibility issues.
The Hearings Officer highlights the following comments in the 8/4/2020 Applicant/Sand Letter:
"Vehicle Access. Desert Sand and TS1D have discussed access to the Subject Property, as well as exiting
traffic impacts on Simmons Road, Scimitar Lane and Fadjur Lane.
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TSID has applied for gate permits with the Deschutes County Road Department to install two gates,
one on Simmons Road east of Holmes Road and one on Scimitar Lane immediately south of the
intersection with Simmons Road, to restrict vehicle access on Simmons Road. See Gate Permit No. 20-
002 and associated application documents, incorporated by reference herein. The Subject Property
is located at the eastern terminus of Simmons Road.
As detailed by the Road Department in the staff reportfor Gate Permit No. 20-002, TSID has recently
made surface improvements to Simmons Road to improve access to their existing pipeline and
reservoir, the improvements consisted of placing new aggregate surfacing, widening the road, and
clearing roadside vegetation. Since those improvements hove been made, Simmons Road has
experienced an increase in traffic; Desert Sand residents have indicated to the Road Department that
the increased traffic is caused by the perception that a recreational reservoir (McKenzie Reservoir),
which was not visible prior to the road improvements, exits at the end of Simmons Road; the reservoir
is not open to the public. Desert Sand have further indicated that with this increased traffic speeding,
confrontations and other suspicious activity that negatively impacts the livability of their
neighborhood have frequently occurred. TSID has an interest in providing better security for the
current and proposed facilities on the Subject Property, while also addressing Desert Sand traffic
concerns. To this end, TSID has undertaken and funded the application for Gate Permit No. 20-002
and will purchase and install the gate to be placed on Scimitar jfootnote omitted -Simmons Road gate
purchased by Eric and Michelle Connelly].
TSID and Desert Sand discussed designing landscaping and, or, installation of a berm to ensure traffic
1A/MIM not rimiml/ent the Qntpc TVD made clear that it IA/nc hnnnu to hind the rinnli�ntinn fnr onto
permits, as well as the purchase and installation of the gates themselves, but that landscaping and
other improvements to the gates would be the responsibility of Desert Sand residents.
In addition to the gate permits, TSID has agreed to use Simmons Road as the primary access route to
the Subject Propertyy, The District will also direct all contractors and consultants involved in the
construction of the McKenzie Hydro to utilize Simmons for ingress and egress. During construction
TSID will install a sign at the intersection of Holmes Road and Fadjur Lane to notify contractors to
utilize Simmons Road for access of the Subject Property. Desert Sand acknowledges, however, that
Scimitar lane is a public right-of-way and that TSID may utilize Scimitar for routine operation and
maintenance of its exiting irrigation system located within Desert Sand.
Desert Sand and TSID believe the actions taken by the District will be successful in resolving the exiting
traffic concerns of Desert Sand, although the Parties agree that they will continue a dialog on this
subject in order to address future issues which may arise."
The Hearings Officer finds that if the gates, as noted in the above -quoted material are approved and
installed most of the traffic related issues raised at the Hearing in opposition of the Applicant's
proposal will be addressed. The Hearings Officer compliments the Applicant and Desert Sand
representatives for making an effort to amicably reach an agreement with respect to many issues
raised by opponents at the Hearing. As noted by the Hearings Officer in the findings for DCC
18.128.015(A)(1) the Hearings Officer concluded that the 8/4/2020 Applicant/Sand Letter is a private
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agreement. The Hearings Officer, based upon the evidence in the record, finds that this criterion is
met.
C. These standards and any other standards of DCC 1& 128 maybe met by the imposition
of conditions calculated to insure that the standard will be met
FINDING: The Applicant proposed the construction of a hydroelectric facility, subject to the
provisions of DCC 18.128.260, which are reviewed in subsequent findings. Conditions of Approval
will be imposed as necessary to ensure compliance with relevant criteria.
Section 18 128 040 Specific Use Standards.
A conditional use shall comply with the standards of the zone in which it is located and with
the standards and conditions set forth in DCC 1&128.045 through DCC 1&128.370.
FINDING: The use as proposed complies with the requirements of the MUA10 and FP Zones as
discussed in previous findings. The Applicant is proposing a hydroelectric facility, subject to the
provisions of DCC 18.128.260, which are reviewed in subsequent findings.
Section 18 128 260. Hydroelectric Facilities.
PRELIMINARY FINDING FOR DCC 18.128.260:
Applicability of DCC 18.128.260(A). Applicant and COLW offered different perspectives related
to this approval criterion. Applicant, in its Closing Argument (pages 3 & 4) stated the following:
'We now turn to the primary issues raised by COLW - namely the applicability of DCC 18.128.260. This
Application presents the Hearings Officer with a fundamental interpretive decision regarding the
applicability of DCC 18.128.260 relating to hydroelectric facilities. Applicant asserts that DCC
18.128.260 is not applicable to a conduit hydroelectric project for the reasons detailed below. We
advocate for a commonsense reading of the DCC that recognizes the fundamental differences between
a run of the river hydroelectric project that diverts water for the principal purpose of producing power
versus a conduit hydroelectric project that simply uses the kinetic energy available from water that
has already been diverted for irrigation purposes. By contrast, COL IN advocates for a strained and
literal interpretation of the DCC that would allow local land use law to upend more than a century of
well -established water law in Oregon."
Applicant's above -quoted argument distinguishes "run -of -the -river" hydroelectric projects from
"conduit" hydroelectric projects. While the Hearings Officer appreciates a "run -of -the -river" project
is very different from the "conduit" hydroelectric project proposed in this case, the Hearings Officer
finds that DCC 18.128.260(A) applies to "any construction of, or modification to, hydroelectric
facilities in zones where such facilities are permitted as a conditional use." (bolding and italics added
by the Hearings Officer) The only question that needs be answered when determining if DCC
18.128.260 A applies is: Does the proposal involve the construction or expansion of a hydroelectric
facility in a zone where a hydroelectric facility is permitted as a conditional use? It is clear to the Hearings
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Officer that Applicant's proposal is for the construction of a hydroelectric facility in a zone where
such use is allowed as a conditional use. DCC 18.128.260(A) makes no distinction between the type
of hydroelectric facility proposed (i.e. "run -of -the -river" or "conduit"). DCC 18.128.260(A) applies the
proposals to construct all types of hydroelectric facilities (allowed in a zone as a conditional use).
Scope of Proposal. The Hearings Officer finds the scope of the proposal, in this case, is described
and limited by Applicant's written requests (applications). Applicant, in each of its applications (lot
of record, conditional use and site plan review) describes only the Subject Property. The Hearings
Officer finds that Applicant's proposal does not describe any activities that will occur at the water
diversion point (Whychus Creek) or along the transmission pipes (until they reach the Subject
Property). The Hearings Officer finds Applicant's proposals do not request approval to modify
Applicant's water rights (i.e. does not request that more water than currently allowed by its water
rights will be diverted to the Subject Property). The Hearings Officer finds that Applicant's proposals
relate solely to activities that will occur on the Subject Property.
Interpretation of 'Where Applicable". DCC 18.128.260(A) requires that a hydroelectric proposal
"meets each of the following criteria, where applicable." (italics added by Hearings Officer) The
Hearings Officer refers to the Merriam -Webster Online Dictionary to provide direction in
interpreting term "applicable." Merriam -Webster defines "applicable" as "capable of or suitable to
be applied." Synonyms for "applicable" include "relevant," "material" and "germane." The Hearings
Officer, therefore, finds that "applicable," in the context of DCC 18.128.260(A) means that each
specific approval criterion is to be considered individually and that such criterion must be relevant,
material and germane to Applicant's proposal,
Interpretation of "Affected Stretch of the River". Applicant asserted that there is no "affected
stretch of the river." COLW argued (July 28, 2020 open -record submission - page 14) that
"all of Whychus Creek from the TSID diversion downstream to the confluence with the Deschutes River
is the 'affected stretch of the river' for purposes of DCC 18.128.260(B)(5)(D".
The phrase "Affected Stretch of the River" appears in five separate sections of DCC 18.128.260 [(A)(3),
(A)(4), (A)(6), (A)(8) and (13)(5)(f]. The Hearings Officer finds that the term "river," as used in DCC
18.128.260 [(A)(3), (A)(4), (A)(6), (A)(8) and (13)(5)(f)] should be interpreted broadly to include all rivers,
streams and creeks from which water is drawn to produce hydroelectric power.
Neither the "Affected Stretch of the River" nor any term contained therein is defined in the DCC.
The word "affected" is defined in the Merriam -Webster Online dictionary, in part, as: "to produce an
effect upon, such as to produce a material influence upon..." The Hearings Officer finds, for the
purposes of interpretation of "Affected Stretch of the River" (DCC 18.128.260 [(A)(3), (A)(4), (A)(6),
(A)(8) and (13)(5)(f)], that the term "affected" means that the proposal for a hydroelectric facility
"produces an effect upon" a river (as interpreted above). The Hearings Officer, therefore, will review
each relevant section of DCC 18.128.260 [(A)(3), (A)(4), (A)(6), (A)(8) and (13)(5)(f] separately to
determine if the Applicant's proposal will produce a material effect/influence upon Whychus Creek.
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A. The criteria set forth below shall apply to any construction or expansion of, or other
modification to, hydroelectric facilities in zones where such facilities are permitted
as a conditional use. A conditional use permit may be granted for the construction or
expansion of, or other modification to, a hydroelectric facility only upon findings by
the Planning Director or Hearings Body that the proposal meets each of the following
criteria, where applicable.
1. The facility is located at and physically connected to an existing man-made
diversion or impoundment.
FINDING: Staff provided the following findings in the Staff Report (page 42):
"The applicant's submitted burden of proof statement indicates that the proposed facility will be located
at the end of an existing irrigation pipeline and associated penstock. The pipeline and penstock are
considered man-made diversions or impoundments, based on the above criterion. The applicant goes
on to state that the existing pipeline and penstock delivers water from an existing man-made diversion,
in compliance with the above criterion. Based on the relevant application materials, including the
applicant's burden of proof statement, it is unclear to staff whether the applicant has met the above
criterion. Staff defers to the Hearings Officer to determine whether the above criterion is met."
The Hearings Officer finds Applicant's proposed facility on the Subject Properly is not located "at'' a
Whychus Creek diversion point. The Hearings Officer does, however, find that Applicant's proposed
hydroelectric facility will be physically connected to an existing man-made water diversion pipeline
and imnrnincimPnt (McKenzie Reservoir). The Hearings Officer finds that the facility is not located at
a diversion or impoundment and therefore the Hearings Officer finds this criterion is not applicable
(see findings for "Where Applicable" above).
2. The facility will not increase the maximum surface area or capacity of the
impoundment created by the existing dam or diversion to which the facility
will be connected.
FINDING: Applicant, in its Supplemental Burden of Proof (page 27) stated the following:
'The proposed facility will not increase the maximum surface area or capacity of the existing
impoundment at McKenzie Reservoir, nor will it increase the capacity of the existing diversion from
Whychus Creek. No additional water is proposed to be diverted to or impounded in the re -regulating
reservoir, the proposed facility simply makes hydropower use of the pressurized water already flowing
in TSID's irrigation pipeline system. There is no dam associated with McKenzie Reservoir, water flows
out of an outlet at the reservoir's easternmost point into an underground pipe that runs down McKenzie
Canyon to the Lower Bridge area."
The Hearings Officer takes this opportunity to point out what should be obvious to any reader of this
decision. The Applicant possesses certain State of Oregon granted water rights. This decision cannot
legally increase, decrease or modify Applicant's Whychus Creek water rights. Whether the Hearings
Officer approves or denies this application the Applicant's water rights will remain the same. If the
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Applicant desires to use the maximum water allowed under the State of Oregon granted water rights
it may legally do so. The amount of water that the Applicant can divert from Whychus Creek will be
the same irrespective of an approval or denial of these applications in this case.
COLW, in its July 28, 2020 submission (page 23) provided the following comments related to
Applicant's diversion of water from Whychus Creek:
"The applicant has particular incentive to divert water for hydroelectricity since their water right has a
rate (measured in cubic feet per second) but no duty (the maximum volume of water that can be
delivered to patrons in an irrigation season.) This allows TSID to divert water at any time of the year
without the need to rationalize its use. TSID has already made claims elsewhere that it plans to divert
water at times after October and before April for the purposes of stock runs and potential new crops,
(footnote omitted] and nothing will stop it from doing so for hydroelectricity production as well."
The Hearings Officer agrees with COLW that the State of Oregon granted water rights to Applicant.
The Hearings Officer finds the State of Oregon granted water rights controls and limits the amount of
water the Applicant may divert from Whychus Creek. The Hearings Officer takes note that Applicant's
diversion point on Whychus Creek is approximately ten miles of pipeline distant from the McKenzie
Reservoir. The Hearings Officer also takes note that there is a reservoir and hydroelectric facility
(Watson Reservoir & Hydroelectric Facility) located between the diversion point and the proposed
McKenzie hydroelectric facility. The Hearings Officer finds that if the existence of a hydroelectric
facility creates an incentive for Applicant to divert more water from Whychus Creek that incentive
would be stronger for the intervening Watson hydroelectric facility (700 kw turbine) rather than the
do,Yv'nstream: --.V. pipe 300 ".AI t:.l — — prop^.ScrJ NArllan- facility.
The Hearings Officer finds this criterion is not applicable (see findings for "Where Applicable" above)
because Applicant's proposal does not increase the maximum surface area or capacity of any
impoundment created by an existing dam or diversion which the proposed hydroelectric facility will
be connected.
3. The facility will maintain or enhance to the greatest extent possible the
existing scenic, visual, environmental and aesthetic qualities of the affected
stretch of the river.
FINDING: This approval criterion includes the qualifying language "affected stretch of the river."
The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC 18.128.260 and
DCC 18.128.260(A)(2) as additional findings for this criterion. The Hearings Officer's interpretation
of "affected," as used in DCC 18.128.260, means that the proposal for a hydroelectric facility
'produces an effect upon' a river. The Hearings Officer included creeks within the DCC 18.128.260
definition of "river."
The Hearings Officer, in the PRELIMINARYFINDINGS FOR DC 18.128,260, found that Applicant's proposal
in this case relates solely to activities occurring on the Subject Property. The Hearings Officer, in the
findings for DCC 18.128.260(A)(2) above found that Applicant's proposal would not result in more
water being diverted from Whychus Creek than is permitted by Applicant's State of Oregon water
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 54 of 69
rights. The Hearings Officer finds that the Subject Property is located approximately 10 miles from
the Whychus Creek diversion point and approximately 2.4 miles, as the crow flies, from Whychus
Creek.
The Hearings Officer finds that Applicant's proposal will not produce any impacts upon the scenic,
visual, environmental or aesthetic qualities of Whychus Creek. The Hearings Officer finds, for the
purposes of this approval criterion, that there is no "affected stretch of the river" related to Applicant's
proposal. The Hearings Officer finds this approval criterion is not applicable to Applicant's proposal.
If it is later determined by a review body that the Hearings Officer's interpretation of "affected stretch
of the river" is not correct then the Hearings Officer finds in the alternative that Applicant's proposed
facility will maintain, to the greatest extent possible, the existing scenic, visual, environmental and
aesthetic qualities of Whychus Creek. The Hearings Officer makes this alternative finding based upon
evidence in the record that Applicant's proposed hydroelectric facility will not be visible (related to
scenic, visual and aesthetic evaluation factors) from Whychus Creek and that the amount of water
diverted will be the same whether or not these applications are approved or denied (the amount of
water flowing in Whychus Creek will not be impacted by approval of Applicant's proposed
hydroelectric facility).
4. The facility will maintain or enhance the existing recreational opportunities
on or adjacent to the affected stretch of the river.
FINDING: This approval criterion includes the qualifying language "affected stretch of the river."
ThP Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC 18.128.260
as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC
18.128.260(A)(2) as additional findings for this criterion.
The Hearings Officer finds, for the purposes of this approval criterion, that there is no "affected stretch
of the river" related to Applicant's proposal. The Hearings Officer finds this approval criterion is not
applicable to Applicant's proposal.
If it is later determined by a review body that the Hearings Officer's interpretation of "affected stretch
of the river" is not correct then the Hearings Officer finds in the alternative that Applicant's proposed
facility will maintain the existing recreational opportunities on or adjacent to Whychus Creek. The
Hearings Officer finds that Applicant's proposal will have no impact to existing recreational
opportunities on or adjacent to Whychus Creek.
S. The facility will maintain or enhance existing fish and wildlife habitat and will
have no adverse impact upon any threatened or endangered fish, wildlife or
plant species or their habitat.
FINDING: The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC
18,128.260
as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC
18.128.260 (A)(2) and (A)(3) as additional findings for this criterion.
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This approval criterion does not include the "affected stretch of the river" language. This criterion
requires the Applicant's proposed facility to "maintain" or "enhance" existing fish and wildlife habitat.
In addition, the Applicant must demonstrate that the proposed facility will have no adverse impact
upon any threatened or endangered fish, wildlife or plant species or their habitat.
As described in the PRELIMINARY FINDINGS FOR DCC 18.128.260 the proposal in this case is to construct
a hydroelectric facility at the Subject Property. The hydroelectric facility will utilize water diverted from
a Whychus Creek diversion point located approximately 10 pipeline miles away. The water diversion
point includes a fish screen restricting access of fish into the pipeline accessing the Subject Property
and the proposed hydroelectric facility. Applicant's proposal is to utilize its existing water rights to
supply the McKenzie hydroelectric facility. Applicant represented it would use the same water that is
currently diverted from Whychus Creek that supplies water to the Watson hydroelectric facility
(located relatively close to the diversion point) and the districts irrigation needs.
COLW, in part, argues this approval criterion is not met because Applicant did not "propose new
actions that would maintain or enhance fish and wildlife habitat..." and "the proposed hydroelectric
facility creates a new obligation to provide new maintenance or enhancement to fish and wildlife
habitat pursuant to DCC 18.128.260(A)(5)" Quly 28, 2020 open -record submission, page 20). COLW
also stated, in the July 28, 2020 open -record submission (page 2) that "unfortunately, and as explained
in '8.DCC 18.128.260 Hydroelectric Facilities' below, the current application provides no benefits to
habitat in Whychus Creek and instead continues or worsens the applicant's ongoing impacts to
Whychus Creek."
The Hearings Officer finds COLW misapplies and/or misinterprets the "maintain or enhance" and
"maintain" language contained in DCC 18.128.260 [(A)(3), (A)(4), (A)(6) and (A)(8)]. When the phrase
"maintain or enhance" language is used it means that the Applicant must provide evidence that the
specified factor or element must either be "maintained" or "enhanced." "Maintain or enhance" does
not mean that an Applicant must provide or demonstrate a benefit or enhancement results from an
applicant's proposal. The "maintain or enhance" language gives an Applicant a choice to demonstrate
that the specific factor or element is either maintained or is enhanced.
The term "maintain" is not defined in the DCC. The Merriam -Webster Online Dictionary definition of
"maintain" is "to keep in an existing state." The Hearings Officer finds that the word "maintain", as
used DCC 18.128.260, means to retain or keep a specified factor or element (i.e. view qualities,
recreational opportunities, water quality, public access and public access) the same. The Hearings
Officer finds that the DCC 18.128.260 term "maintain" also carries with it the concept that impacts
from a proposed project will not degrade or diminish the specified factor or element.
Peter Lickwar (United States Fish & Wildlife Service) submitted the following agency comment in
response to the above criterion:
"Based on previous experience with TSID regarding their existing hydro, I anticipate that this will be
a low impact project. The Whychus Creek diversion that will supply flow to the hydro is fully
screened. The project site is probably an area that has already been disturbed by previous
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activity. There may be some additional power lines that could be an avian hazard. We can have
them survey for nesting raptors in the vicinity to be sure there is no disruption of nesting birds."
Applicant, in its Supplemental Burden of Proof, (page 5) stated the following:
'Applicant also has modified the design to eliminate the overhead wires to were objected to ... The design
change will further reduce this project's impact on the natural environment..An underground power
system does not pose an avian hazard and limits any impact to the natural and physical features of the
site, including natural resource values."
The Hearings Officer finds that burying power lines will eliminate any impacts on avian and other
wildlife habitat.
COLW suggested that Applicant's proposed hydroelectric project would reduce water flow within
Whychus Creek which would create adverse impacts for threatened or endangered fish. As already
discussed in the findings above the Hearings Officer concluded that Applicant is the holder of various
State of Oregon water rights and that water is used to supply the Watson hydroelectric facility, the
Watson Reservoir, the McKenzie Reservoir and irrigated farms. The Hearings Officer found Applicant
will use water already appropriated to other uses to operate the Applicant's proposed hydroelectric
facility.
The Hearings Officer finds no substantial evidence in the record to support COLW's claim that
Applicant would divert more water from Whychus Creek which would result in lower water flows in
Whvrhi is C'rPek- The Hearings Officer finds that Applicant's proposed hydroelectric facility, at the
Subject Property, will use water already flowing to the Watson hydro facility and used to satisfy
Applicant's irrigation obligations. The Hearings Officer finds Applicant's proposal will not result in
water diversion from Whychus Creek that exceeds what it is currently legally authorized to
appropriate. Therefore, the Hearings Officer finds COLW's "adverse impacts upon fish" argument is
not persuasive.
The Hearings Officer finds, to the extent applicable, this criterion is met.
6. The facility and its operation will maintain or enhance existing water quality
in the affected stretch of the river except during construction of the facility
when adverse impacts on water quality will be minimized. Specifically, the
facility and its operation will not.
a. Deposit or create a zone for the deposit of sediments in the river at or
adjacent to the site,
b. Increase the temperature of the river in the affected stretch by any
means, including but not limited to removal of vegetation or reduction
in stream/low, or
C. Create the potential for or result in spillage, leakage or discharge of oil,
waste products, chemicals or other substances which could reach the
river.
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FINDING: The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC
18.128.260 as additional findings for this criterion. The Hearings Officer also incorporates the
findings for DCC 18.128.260(A)(2) and (A)(3) as additional findings for this criterion.
Staff, in the Staff Report (page 44), stated the following:
'The submitted application materials include a burden of proof statement, containing the following
statement related to the above criterion:
'There will be no construction or disturbance of Whychus Creek as a result of construction of the
proposed facility. Therefore, there will be no deposit of sediments, removal of vegetation, or spillage
or any substance resulting from construction of the facility."
The Hearings Officer finds Applicant's proposed hydroelectric facility is located a significant distance
from Whychus Creek and will not divert additional water from Whychus Creek. The Hearings Officer
finds Applicant's proposed hydroelectric facility will not produce an affect upon the water quality in
Whychus Creek. The Hearings Officer finds, to the extent applicable, this criterion is met.
Z The facility and its operation will not increase soil or bank erosion or destroy
bank habitat at or on land adjacent to the site except during construction of
the facility, during which time soil or bank erosion and destruction of bank
habitat will be minimized.
FINDING:: The ciwhmittori arnrnliratinn material, inch idea hi irrien of rnrnnf ,tatement, rnntaining the
following statement related to the above criterion:
'There will be no soil or bank erosion at any time before, during or after construction of the facility as it
is over 10 miles from any natural streamflow."
Staff, in the Staff Report (page 44) stated the following:
"Despite the above statement, spatial analysis performed by the Planning Division indicates that the
proposed development will be located approximately 2.4 miles from the nearest reach of Whychus
Creek, not 10 miles. Staff finds that, based on the submitted application materials, the applicant has not
addressed the above criterion with enough specificityfor staff to make a determination. Staff defers to
the Hearings Officer to determine whether the above criterion is met."
The Hearings Officer finds the Subject Property is not on or adjacent to any river (creek) bank that will
be exposed to soil erosion. The Hearings Officer finds water to operate the Applicant's proposed
hydroelectric facility arrives to the Subject Property, crosses the Subject Property, enters and exits the
hydroelectric facility and exits either via a pipe, penstock or tailrace; none of which have natural
material banks. The Hearings Officer finds that Applicant's proposed hydroelectric facility will not
increase soil or bank erosion or destroy bank habitat at or on land adjacent to the Subject Property.
The Hearings Officer finds this criterion is met.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 58 of 69
8. The facility and its operation will maintain existing public access to the
affected stretch of the river.
FINDING: The Hearings Officer incorporates the findings for PRELIMINARYFINDING FOR DCC 18.128.260
as additional findings for this criterion. The Hearings Officer also incorporates the findings for DCC
18.128.260(A)(2) and (A)(3) as additional findings for this criterion.
The Applicants submitted Supplemental Burden of Proof (page 30) stated:
"This criterion is met, to the extent it is applicable... The only nexus the facility has with Whychus Creek is
TSID's POD, and the Applicant is seeking no change in the diversion's design or operation."
The Hearings Officer finds the Subject Property does not border Whychus Creek. The Hearings Officer
agrees with Applicant's above -quoted statement that Applicant does have a "point of diversion" of
water on Whychus Creek and that such diversion provides water to the proposed hydroelectric facility.
The Hearings Officer finds that the Applicant's proposed hydroelectric facility will not change or have
any impact on public access to Whychus Creek.
The Hearings Officer finds, to the extent applicable, this criterion is met.
9. The facility will not be located at or immediately adjacent to any identified
archaeological or historical site, national or state park, wildlife refuge, Bureau
of Land Management Outstanding Natural Area or Area of Critical
Environmental Concern, Federal Research Natural Area or U. S. Forest Service
Special Interest Area.
FINDING: Staff, in the Staff Report (pages 45 & 46), responded to this criterion as follows:
"Based on staffs review of surrounding properties, staff finds that there are no identified
archaeological or historical sites, national or state parks, wildlife refuges, Federal Research Natural
Areas, or U.S. Forest Service Special Interest Areas located at or immediately adjacent to the proposed
facility location, Additionally, the Planning Division mailed notice of the subject application to the BLM
- Prineville once on March 11 `h, 2020 and received no comments related to BLM Outstanding Natural
Areas or Areas of Critical Environmental Concern associated with the proposal, subject property, or
surrounding properties. The submitted application materials include a letter from the Oregon State
Historic Preservation Office stating that the applicant has completed natural resource concurrence
and NEPA requirements associated with the project site and proposed development Staff finds that
the proposed facility and parking area will not be located at or immediately adjacent to any of the
resources identified above.
As stated in previous findings, the submitted application materials do not indicate the location of the
proposed service drive's connection to a road right-of-way nor do they indicate the location or design
of proposed overhead power distribution lines associated with the proposed development
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 59 of 69
Without knowing the location and design of the service drive and overhead distribution lines, staff
cannot make a determination of whether the proposed development avoids the above -mentioned
resources. Staff defers to the Hearings Officer to determine whether the proposed use complies with
the above criterion."
Applicant responded to Staffs above -quoted comments, in its Supplemental Burden of Proof (page
30), as follows:
'This criterion is now met.. The Staff Report also identified the need for additional information related
to the location and design of the service drive and the location and design of the proposed overhead
power distribution lines. As stated previously, the Applicant has submitted a revised Access Plan
delineating the location of the service drive's connection to the east terminus of Simmons Rd. The
Applicant has also proposed a design change for underground distribution lines. The location of the
underground distribution lines is detailed on the attached Access Plan. Because the service drive has
exited onsite since 1957, there will be no new impacts as it relates to this aspect of the project. The
Applicant has submitted a letter from the Oregon State Historic Preservation Office stating that the
Applicant has completed natural resource concurrence and NEPA requirements associated with the
project site and proposed development."
The Hearings Officer concurs with Applicant's above -quoted statement. The Hearings Officer finds
that this criterion is met.
10. The facility will not be located on any stretch of the river that is being studied
or recommended for inclusion in either the Federal Wild and Srenic Rivers
Program or the State Scenic Waterways Program, unless location of the facility
at that site would not preclude inclusion of the stretch in the state or federal
program.
FINDING: The proposed hydroelectric facility will be sited on property located at 18150 Simmons
Road, Sisters, OR 97759, which is located approximately 2.4 miles from the nearest stretch of Whychus
Creek. The Hearings Officer finds that because the proposed facility will not be located on any stretch
of river, the proposal complies with the above criterion.
11. The facility and its operation will comply with all applicable noise, water
quality and pollution regulations of the Oregon Department of Environmental
Quality.
FINDING: The Applicant's submitted original Burden of Proof statement and Supplemental Burden of
Proof statement indicate that the proposed hydroelectric facility will comply with all applicable DEQ
requirements. To ensure compliance, Staff, in the Staff Report (page 46) suggested a Condition of
Approval. Applicant, in its Supplemental Burden of Proof concurred with Staffs recommendation that
this approval criterion be added as a Condition of Approval.
Numerous comments were submitted by persons residing in close proximity to the Subject Property.
A number of these persons expressed concern that noise emanating from the hydroelectric facility
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 60 of 69
could cause negative impacts to their properties. Applicant and residents submitted the 8/4/2020
Applicant/Sand Letter. The 8/4/2020 Applicant/Sand Letter stated, in part, the following:
"TSID believes the design of the McKenzie Hydro and the results of the acoustical evaluation indicate that
the McKenzie Hydro will comply with OAR 340-035-0035s maximum daytime dBA limit of 55 dBA and
maximum nighttime limit of 50 dBA. Desert Sand does not dispute this finding; however, the Community
requires assurances that once built, the McKenzie Hydro will comply with all applicable noise standards.
To provide certainty to Desert Sand, TSID has agreed to monitor sound levels of the McKenzie Hydro
once a year, for a period of two years. The data from this monitoring will be made available to Desert
Sand for review."
The Hearings Officer finds, based upon evidence in the record of this case, that Applicant has met the
requirements of this criterion. The Hearings Officer finds that the agreement between the Applicant
and Desert Sand residents is a private agreement and not one which should be made a condition of
approval requiring County enforcement.
12. The facility and its operation will comply with all applicable state and local
fill -and -removal statutes and regulations.
FINDING: Staff, in the Staff Report (page 46), provided the following comments related to this approval
criterion:
'The Deschutes County Planning Division requested comment from Department of State Lands related
to fill -and -removal and any other foreseeable impacts related to mapped wetlands on the subject
property during the prior notice period for the subject applications. The comment submitted by
Department of State Lands states that it is unlikely that jurisdictional wetlands or waterways are located
on the subject property and that a state permit would not be required for the proposal as it was
determined that the project avoids impacts to jurisdictional wetlands, waterways, or other waters. As
such, the conditional use provisions of DCC 18.128.270 do not apply to the subject application. Similarly,
the proposed development will not be located within the bed and banks of a stream or river as specified
in DCC 18.96.040(F). To ensure compliance, the above criterion has been added as a suggested Condition
of Approval."
Applicant, in its Supplemental Burden of Proof, responded to the above -quoted Staff comments as
follows:
'The Staff Report findings on this criterion establish that the proposal will not impact jurisdictional
wetlands or waterways such that a state fill -and -removal permit would be required, and the
development is not located within the bed and banks of a stream or river such that the County's fill -and -
removal provisions would be implicated. Therefore, there are no applicable state and local fill -and -
removal statutes and regulations with which the facility and its operation must comply, yet the Staff
Report suggests including the above criterion as a Condition of Approval To ensure compliance.' The
above -criterion is inapplicable, or else it is met."
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 61 of 69
The Hearings Officer reviewed the Wetland Land Use Notice Response, dated March 26, 2020. The
Wetland Land Use Notice Response stated, in part, the following:
"Based on a review of the available information, including a DSL email on january 10, 2018, the reservoir
is exempt per OAR 141-085-0515(7). This determination is based on information that the reservoir does
not have a direct flow connection to the river. The wetland along the edge of the reservoir is exempt per
OAR 141-085-0515(6). Therefore, a state permit will not be required for the proposed construction. This
is a preliminaryjurisdictiona/ determination and is advisory only." (bolding in original document)
The Hearings Officer also notes that the Wetland Land Use Notice Response checked a box indicating
that "a Federal permit may be required by the Army Corps of Engineers." The Hearings Officer finds,
as of the date of the decision, that it appears all state and local fill -and -removal statutes and
regulations determinations were "preliminary." The Hearings Officer finds this approval criteria uses
the phrase "will comply." The Hearings Officer finds that the combination of the preliminary nature
of the Oregon Division of State lands letter and the "will comply" language of the approval criterion a
Condition of Approval (as recommended by Staff) is necessary. The Hearings Officer finds that with
Staffs recommended Condition of Approval this criterion can be met.
B. The applicant for a conditional use permit for a hydroelectric facility, in addition to
all other requirements, shall submit the following for approval:
1. Detailed construction plans and profiles of all facility features including
building elevations of the powerhouse and other structures, excavation plans,
a narrative describing where blasting will occur and where excess material will
be deposited and landscrin. a d reclamation pianc,
2. Detailed plans for meeting the criteria set forth in DCC 18.128.260(B)(1).
FINDING: The application materials submitted on behalf of the proposed development include
construction plans and profiles of the proposed hydroelectric facility and associated parking area,
including elevations of the structure and all associated equipment. The Applicant's initial application
submissions and Supplemental Burden of Proof include statements indicating that excavation
proposed in association with the construction of the facility will be minimal as the facility will be
located at the bottom of the existing piped and excavated canal. No blasting or removal of excess
material is proposed in association with the subject proposal. The Applicant provided, with the
Supplemental Burden of Proof, a revised site plan. Applicant submitted a series of color photographs
to illustrate the landscaping on the Subject Property and surrounding the specific project site for the
proposed development. The Applicant's record submissions indicate that the reclamation around the
proposed facility and parking area will involve the placement of 3/4 -minus gravel on areas disturbed
during construction activities. The Hearings Officer finds Applicant satisfied the requirements of DCC
18.128.260(B)(1) and (13)(2).
3. Detailed plans for river enhancement documenting both on -site and off -site
enhancement plans consistent with adopted river -related goals and policies,
such as plans and methods for conserving water and enhancing stream flows.
The plan shall identify costs, time schedules and coordination activities with
affected persons and agencies for such enhancement plans.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 62 of 69
FINDING: The Hearings Officer incorporates the findings for PRELIMINARY FINDING FOR DCC
18.128.260 as additional findings for this criterion. The Hearings Officer also incorporates the findings
for DCC 18.128.260(A)(2), (A)(3) and (A)(5) as additional findings for this criterion.
The Hearings Officer, as previously stated, acknowledged that water is diverted from Whychus Creek
to the Subject Property and the proposed hydroelectric facility. The Hearings Officer also found that
the term "river" used in DCC 18.128.260 should be interpreted broadly to include rivers, streams and
creeks. Additionally, the Hearings Officer found that Applicant possesses State of Oregon water rights
and that the water diverted from Whychus Creek by Applicant is currently used by the Watson
hydroelectric facility, Watson Reservoir, McKenzie Reservoir and authorized irrigated farms. The
Hearings Officer previously found that the Applicant has the right to divert water pursuant to its State
of Oregon water rights and that the amount of water diverted is controlled by those water rights. The
Hearings Officer found that the amount of water that Applicant has the legal right to divert is not
impacted by approval or denial of the current Applicant proposal to construct a hydroelectric facility
on the Subject Property. The Hearings Officer found that Whychus Creek stream flows will not be
impacted by approval or denial of Applicant's proposed hydroelectric facility.
The Hearings Officer appreciates thatthis criterion must be considered but questions the applicability
to the project being proposed. The Hearings Officer, in the findings for DCC 18.128.260(A)(5),
considered the phrase "maintain or enhance." The Hearings Officer determined, in the findings for
DCC 18.128.260(A)(5), that the phrase "maintain or enhance" grants an applicant a choice; either
"maintain" or "enhance." The Hearings Officer found that for DCC 18.128.260(A)(3), (A)(4), (A)(5) and
rave the rritPria were met because Applicant chose the "maintain" and not "enhance" option.
The Hearings Officer finds that the DCC 18.128.260(B)(3) reference to "enhancement" is tied to
requirements set forth in DCC 18.182.260 A. The Hearings Officer, in the findings for DCC
18.128.260(A)(3), (A)(4), (A)(5) and (A)(6), concluded Applicant was not required to "enhance" anything.
No participant to this case identified a specific code section to support a requirement that the
Applicant submit an "enhancement plan." The Hearings Officer finds that based upon the facts of this
case Applicant is not required to provide an "enhancement plan." The Hearings Officer finds this
approval criterion is not applicable to Applicant's proposed hydroelectric facility on the Subject
Property.
4. A cash deposit, performance bond or other security acceptable to Deschutes
County in an amount equal to 100 percent of the estimated cost of river
enhancement.
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion.
The Hearings Officer finds this criterion is not applicable to Applicant's proposed hydroelectric facility
on the Subject Property.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 63 of 69
S. Detailed plans for a water conservation and stream enhancement program to
be funded by a portion of revenues generated by the operation of the proposed
facility.
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion. Applicant's Initial Burden of Proof statement included the following
comments related to the above criterion:
'Applicant has spent over 20 years restoring stream flow to Whychus Creek with numerous piping
conservation projects. The construction of these conservation projects has brought millions of dollars
into the local economy creating full-time construction jobs and supporting numerous local suppliers in
difficult economic times. Restoring stream flow to Whychus Creek has created an environment that will
help insure that the current anadromous reintroduction of listed Steelhead and salmon will be a
success."
Applicant's Supplemental Burden of Proof (page 34) included the following statement:
"net revenues are anticipated to cover only the CWLRLF loan payments, CEC's wheeling charges, and the
hydroelectric facility's construction and operating expenses, with no net income for the first 20 years."
The Hearings Officerfinds, based upon Applicant's representation quoted immediately above, that no
revenue can be expected to be expended on water conservation and stream enhancement programs
(for the first 20 years). The Hearings Officer, as noted in the findings for DCC 18.128.260(B)(3), finds
no water conservation nr etraam anhanramant is ranidrari fnr Annlirnnfz nr.rnnncarl hvrlrnalartrir
project. The Hearings Officer finds the portion of this criterion related to water conservation and
stream "enhancement" programs are not applicable to Applicant's proposed hydroelectric facility. The
Hearings Officer finds Applicant's representation that revenue from the sale of electricity from the
proposed hydroelectric facility will pay for construction and operating expenses, loan repayments (for
previously completed conservation projects) and CEC wheeling charge is reasonable/plausible and
satisfies the revenue expenditure requirements of this criterion.
The program plans shall contain the following,
a. A program timetable;
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion. The Hearings Officer finds this criterion is not applicable.
b. Projected gross revenues from the proposed facility;
FINDING: Applicant, in the Supplemental Burden of Proof (page 34), indicated that the projected gross
revenue for the proposed hydroelectric facility is approximately $1,000,000 over a 20-year period.
Staff, in the Staff Report (pages 48 & 49) indicated that the Applicant's analysis of projected gross
revenues anticipated from the proposed facility complied with the above criterion. The Hearings
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 64 of 69
Officer concurs with Staffs analysis and conclusion as set forth in the Staff Report. The Hearings Officer
finds this criterion is met.
C. Projected program expenditures and the percentage of gross revenues
they represent;
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion. The Hearings Officer finds reference to "program" in this criterion
relates to water and stream enhancement. The Hearings Officer finds this criterion is not applicable.
d. Projected water savings and the percentage of known current water
losses they represent;
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion. The Hearings Officer finds no evidence in the record that any
water will be saved or lost as a result of the completion of Applicant's proposed hydroelectric facility.
As noted previously Applicant's proposed hydroelectric facility will use water from Whychus Creek
that is currently being used to operate the Watson hydroelectric facility and authorized irrigated
farms. There is no substantial evidence in the record that persuades the Hearings Officer there will
be any water savings or loss if Applicant's hydroelectric facility is approved.
Staff, in the Staff Report, indicated that the Applicant provided a seepage loss estimate report4 (dated
April 30th, 2012) indicating that the total seepage loss of the open canal system between Watson
Reservoir and McKenzie Reservoir is approximately 8.2 cfs on average. The Hearings Officer finds
the "seepage loss" referenced by Applicant will be the same whether or not the current application is
approved or denied.
The Hearings Officer finds this criterion is not applicable.
e. A declaration by the applicant that at least 50 percent of the conserved
water will remain undiverted by the applicant;
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion. The Hearings Officer finds the amount of water diverted from
Whychus Creek is controlled/limited by Applicant's State of Oregon water rights. The Hearings Officer
finds Applicant is not proposing, as a result of the proposed hydroelectric facility at the Subject
Property, to reduce or increase the diversion of water from Whychus Creek. The Hearings Officer
finds this criterion is not applicable to Applicant's proposed hydroelectric facility.
f. A declaration by the applicant that water diversion for power
generation will not cause water flow in the affected stretch of the river
(from the diversion to the tailrace exit) to fall below the minimum
4 Engineering report prepared by Kevin L. Crew, P.E., a Registered Professional Engineer with Black Rock
Consulting.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 65 of 69
streamflow for that stretch as recommended by the Oregon
Department of Fish and Wildlife; and
FINDING: The Hearings Officer incorporates the findings for DCC 18.128.260(B)(3) as additional
findings for this approval criterion. The Hearings Officer finds the water flow from the Whychus Creek
diversion point to tailrace exit is not on an "affected stretch of the river." However, for this criterion it
seems reasonable that Applicant provide assurances that water diversion from power generation will
not cause water flow in Whychus Creek to fall below the minimum streamflow at the diversion point.
The Hearings Officer finds that with such a condition the Applicant's proposed hydroelectric facility
can meet this criterion.
g. A declaration that the applicant will enter into an agreement with the
County to fulfill all of the requirements in DCC I& 128.260(B)(1) through
(5) before beginning construction.
FINDING: Applicant asserts that it has fulfilled all requirements of DCC 18.128.260(B)(1) through (5).
The Hearings Officer finds that Applicant needs to enter into a declaration per DCC 18.128.260(B)(f)
in order to meet the requirements of DCC 18.128.260(B)(1) through (5) before beginning
construction. The Hearings Officer finds that with such condition this criterion can be met.
IV. CONCLUSION:
Applicant proposed to construct a hydroelectric facility on the Subject Property. The Hearings
flffirar fniinri avirinnra nnrd arcnimPnt in Annlirant'c rarnrrd - ihmiccinnc mPt naarly Al of the
relevant approval criteria for the conditional use and site plan reviews. The Hearings Officer found
all requirements were met in Applicant's lot of record request.
The Hearings Officer found Applicant failed to address with, adequate specificity and clarity, the
requirements of OAR 660-033-0130 as required by DCC 18.16.030(K). The Hearings Officer also
found that Applicant did not adequately address the requirements of DCC 18.32.040(A) and DCC
18.124.060(I).
The Hearings Officer notes that the record in this case may have included much, if not all, of the
evidence necessary to meet the requirements of OAR 660-033-0130. However, the Hearings Officer
found that Applicant argued that OAR 660-033-0130 did not have to be addressed because it had
been codified by DCC 18.16.040. The Hearings Officer found Applicant failed to provide any legal
analysis in support that OAR 660-033-0130 had been codified by DCC 18.16.040.
The Hearings Officer found that Applicant did not respond to COLW's record argument that DCC
18.32.040(A)'s dimensional standards needed to be addressed in this case. The Hearings Officer
found that Applicant's failure to provide a legal analysis why DCC 18.32.040(A) does not apply or, in
the alternative, was satisfied the Hearings Officer was forced to find DCC 18.32.040(A) was not met.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 66 of 69
In the event Applicant successfully appeals the Hearings Officer's decision the Hearings Officer finds
it would be useful for the appellate body to have suggested Conditions of Approval. Many of the
Conditions of Approval attached to this decision were drafted by Staff. Some conditions were
edited/modified by the Hearings Officer.
V. DECISION
Approval of Lot of Record Application as set forth in Deschutes County File No. 247-20-000187-LR.
Denial of Conditional Use Applications and Site Plan Review Application as set forth in File Nos. 191-
CU, 192-CU, 193-SP and modified by 247-20-000461-MA.
Deschutes County Hearings Officer
Gregory J. Frank
DURATION OF APPROVAL
If annrnvPd. tha Applicant shall initiate the use for the proposed development within two (2) years
of the date this decision becomes final, or obtain approval of an extension under Title 22 of the
County Code, or this approval shall be void.
The Hearings Officer's decision becomes final twelve (12) days after the date of mailing,
unless appealed by a party of interest.
Other permits may be required. The applicants are responsible for obtaining any necessary
permits from the Deschutes County Building Division and Deschutes County Environmental
Soils Division as well as any required state and federal permits.
"RECOMMENDED CONDITONS OF APPROVAL TO BE CONSIDERED IF APPLICANT'S
CONDITIONAL USE AND SITE PLAN PROPOSALS ARE APPROVED UPON APPEAL"
A. Approval is based upon the application, site plan, specifications, and supporting
documentation (including Applicant's "Access Plan" attached to its Supplemental Burden of
Proof) submitted by the Applicant. Any substantial change in this approved use will require
review through a new land use application.
B. The Applicant shall obtain any necessary permits from the Deschutes County Building
Division and Environmental Soils Division.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 67 of 69
C. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as
allowed by DCC 18.120.040
D. Structural setbacks from any north lot line shall meet the solar setback requirements in DCC
18.116.180.
E. All necessary and required federal, state and local government agency permits shall be
obtained for the proposed facility, parking areas, service drive, and power distribution lines.
F. The Applicant is hereby notified that flood insurance premiums for flood -proofed non-
residential buildings will be based on rates that are one foot below the flood -proofed level
(e.g. a building constructed to the flood level will be rated as one foot below that level).
G. Elevation of all new construction, including replacement and substantial improvements,
relative to mean sea level of the lowest floor shall be documented before the framing
inspection with a survey certified by a State of Oregon registered professional engineer or
land surveyor.
H. All exterior lighting shall be shielded so that direct light does not project off -site. Additionally,
any lighting used to illuminate off-street parking areas shall be so arranged that it will not
project light rays directly upon any adjoining property in a residential zone.
1. Applicant shall follow Best Management Practices in suppressing dust on the service drive
or other aravPI arPac nn the ci ihiPrt Prnnprtv
.. 0......-. _...-.-.. _.._ ___J___ . . -r- _J.
J. Prior to the issuance of building permits, the Applicant must submit a revised site plan
illustrating a minimum 24-foot wide service drive and its connection to a road right-of-way,
and specifying the location of the fencing, rails, walls, or other barriers or markers used to
mark and define the proposed service drive.
K. Prior to the issuance of building permits, the Applicant shall provide certification by a
licensed professional engineer that drainage facilities have been designed and constructed
in accordance with the current Central Oregon Stormwater Manual to receive and/or
transport at least the design storm (as defined in the current Central Oregon Stormwater
Manual) for all surface drainage water, including stormwater coming to and/or passing
through the development.
L. Prior to the issuance of building permits, the Applicant shall submit a certification by a
licensed professional engineer that the proposed building entrance will have a maximum
slope of five percent.
M. The facility and its operation will comply with all applicable state and local fill -and -removal
statutes and regulations.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 68 of 69
N. Prior to the issuance of building permits, the Applicant shall submit a written declaration
to the Planning Division stating that water diversion for power generation will not cause
water flow in the affected stretch of the river (from the diversion to the tailrace exit) to fall
below the minimum streamflow for that stretch as recommended by the Oregon
Department of Fish and Wildlife.
O. Prior to the issuance of building permits, the Applicant shall submit a landscaping plan
demonstrating the site's compliance with the landscaping requirements of DCC
18.124.070(B)(2) - specifically, the three (3) proposed parking spaces require a total of 75
square -feet of landscaping (3 spaces x 25 square -feet).
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 69 of 69
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NOTICE OF HEARINGS OFFICER'S DECISION
The Deschutes County Hearings Officer has approved land use application 247-20-000187-LR and
denied land use applications 247-20-000191-CU, 192-CU, 193-SP, 461-MA as described below:
FILE NUMBER: 247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA
LOCATION: The subject property has an assigned address of 18150 Simmons Road,
Sisters, OR 97759; and is identified on the County Assessor's Map
No. 14-11-33, as Tax Lot 500.
OWNER: Three Sisters Irrigation District (TSID)
APPLICANT: Marc Thalacker, Manager
AI IOftNEY: joraan rcarrlis PC
SUBJECT: The Applicant requests conditional use and site plan reviews to
construct a new hydroelectric_ facility in conjunction with the irrigation
system owned and operated bythe Three Sisters Irrigation District. The
Applicant is also requesting a Lot of Record verification for the subject
property. The applicant also requests to modify county land use
applications submitted under files 247-20-000187-LR, 191-CU, 192-CU,
193-SP to include a utilitytrench for underground electrical distribution
lines associated with a proposed Hydroelectric Facility on the subject
property, The location of the utility trench will be located partially
within the Floodplain (FP) Zone.
STAFF CONTACT: Tarik Rawlings, Associate Planner, (541) 317-3148,
Tarik.Rawi__. Ings.@dgschutes.org
DOCUMENTS: Can be viewed and downloaded from:
www.buildingpermits.oregon.gov
ht ://di a l.deschutes.org Real/lndext150319
APPLICABLE CRITERIA: The Hearings Officer reviewed this application for compliance against
criteria contained in Chapters 18.16, 18.32, 18.96, 18.116, 18.124 and
'I 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708 6005
�� (54 1 ) 388 6575 C cddC4deschules,org ® www.deschutes,org/cd
18.128 in Title 18 of the Deschutes County Code (DCC), the Deschutes
County Zoning Ordinance, as well as against the procedural
requirements, and Chapter 22.20 of Title 22 of the DCC.
DECISION: The Hearings Officer finds that the application under file no. 247-20-000187-LR meets
applicable criteria, and approval is being granted subject to the following conditions:
CONDITIONS OF APPROVAL:
A. This approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the applicant. Any substantial change in this approved use will
require review through a new land use application.
The Hearings Officer also finds that the applications under file no.s 247-20-000191 -CU, 192-CU, 193-
SP, 461-MA do not meet applicable criteria, and are denied.
This decision becomes final twelve (12) days after the date mailed, unless appealed by a party
of interest. To appeal, it is necessary to submit a Notice of Appeal, the base appeal deposit plus
20% of the original application fee(s), and a statement raising any issue relied upon for appeal with
sufficient specificity to afford the Board of County Commissioners an adequate opportunity to
respond to and resolve each issue.
Copies of the decision, application, all documents and evidence submitted by or on behalf of the
applicant and applicable criteria are available for inspection at no cost. Copies can be purchased
for 25 cents per page.
NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF
YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER.
247-20-000187-LR, 191-CU, 192-CU, 193-SP, 461-MA Page 2 of 2
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