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HomeMy WebLinkAboutHistoric Landmarks Commission - Cline Falls Power Plant appealDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of August 7, 2013 DATE: July 30, 2013 FROM: Cynthia Smidt Community Development Department 317-3150 TITLE OF AGENDA ITEM: Consideration of whether to hear an appeal of the Deschutes County Historic Landmarks Commission (HLC) decision determining that the entire Cline Falls Power Plant site is a protected historic resource. File No.: A-13-3 (DR -13-6). PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners (BOCC) is an appeal filed by PacifiCorp in response to the HLC declaratory ruling that determined the protected historic resource of the Cline Falls Power Plant includes the entire site and not just the dam, penstock, and powerhouse. PacifiCorp, which leased the subject property from Central Oregon Irrigation District, requests the BOCC formally reconsider the HLC's decision. The appellants request on the record review. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: The action requested of the Board is to decide whether to hear the appeal and if so, whether to hear the appeal de novo review, on the record, or at the Board's discretion, limit the issues on appeal to one or more specific issues raised on appeal. Staff believes the appeal does involve interpretation of the code. Therefore, staff recommends the Board hear the appeal. ATTENDANCE: Nick Lelack & Cynthia Smidt DISTRIBUTION OF DOCUMENTS: Cynthia Smidt Community Development Department Planning Division Building Safety Division Environmental Soils Division '111.1711,2T1,,o'Ml1P-It-tm..111"._ +rr P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541.)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ APPEAL APPLICATION FEE: $795.00 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. 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. Appellant's Name (print): PacifiCorp % John P. Sample, Assistant General Counsel Phone: ( 503 ) 813-6688 Mailing Address: 525 Multnomah Street, Suite 1500 City/State/Zip: Portland, OR 97232 DR -13-6: PacifiCorp appeals thc July 2, 2013 decision of the Historical Landmarks Commission Land Use Application Being Appealed: issued in response to the Community Development Department's March 21, 2012 application. 15 12 111) 1100 Property Description: T. , •1 i Range i. ection 14A Tax Lot 901 (see Location Note on following page) r / � Appellant's Signature:_AM L P_ John P. Satnple, Assistant General Counsel, PacifiCorp EXCEPT AS P'OVIDED IN SECTIO 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). 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. (over) [3/13 fV NOTICE OF APPEAL LOCATION NOTE: From review of Deschutes Co. Assessor's Maps, PacifiCorp understands the "location" or "property description" for the Cline Falls Power Plant to be: 15-12-11D TL 1100 and 15-12-14A TL 901. Note that the "location" is inaccurately stated on the Community Development Department's March 21, 2013 application as: 15-12-11D TL 1100 and 1101; and note that the "location" is inaccurately stated on the Historical Landmarks Commission's July 2, 2013 decision as: 15-12-11D TL 1100 and 15-12-14A TL 900. Appellant's statement describing the specific reasons for the appeal, requesting review by the Board and stating the reasons the Board should review the lower decision, and appellant's justification for appeal and assignments of error are all contained in a July 15, 2013 letter to the Board from PacifiCorp's attorney Jeffrey S. Lovinger. Mr. Lovinger's July 15, 2013 letter has been filed with this appeal application form. Mr. Lovinger's July 15, 2013 letter, in its entirety, is incorporated herein by this reference. Appellant is eligible to file an appeal under DCC 2.28.150 and DCC 22.32.010 because appellant was "the owner or occupant of the building, structure, site or district concerned" and appellant is "a person who participate in the hearing" and because appellant is a "party" to the declaratory ruling proceeding which is the subject of this appeal. (This page may be photocopied if additional space is needed.) LOVINGERI KAUFMANNLLP 825 NE Multnomah • Suite 925 Portland, OR 97232-2150 Jeffrey S. Lovinger office 503.230.7715 direct 503.230.7120 lovinger@lklaw.com July 15, 2013 VIA HAND DELIVERY Deschutes County Board of County Commissioners c/o Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97701 Re: Notice of Appeal—Historical Landmarks Commission Declaratory Ruling, DR -13-6 Dear Commissioners: PacifiCorp respectfully requests that the Board of County Commissioners ("Board") grant review of the Historical Landmarks Commission's July 2, 2013 decision in DR -13-6 ("Decision"). PacifiCorp has enclosed a copy of the Decision, a completed notice of appeal form, and the $795 appeal fee.1 A. Summary of Assignments of Error The Board should grant review because the Historical Landmarks Commission ("Commission") wrongly concluded that "the entire site of the Cline Falls Power Plant is the protected historic resource." Decision at 9. The Commission committed five principal errors: 1. Improper reliance on the ESEE. The Commission erred by relying on the ESEE (Ordinance 92-019) when attempting to determine which structures or locations the Board designated as protected historic resources. The Commission should have limited its review to: (i) the Deschutes County Goal 5 Inventory of Historic and Cultural Resources ("Inventory") (ii) the ordinance that adopted the Inventory (Ordinance 92-018); and (iii) any other information properly incorporated by reference in the Inventory or Ordinance 927018. The Commission erred in using the ESEE and Ordinance 92-019 to expand the designation made by the Board in the Inventory. This was an error of law. 2. Ignored the Plain Language of the Inventory. If the Commission had properly considered only the Inventory and Ordinance 92-018 when determining the scope of the protected resource, the plain language of the Inventory and Ordinance indicates that the i The notice of appeal form and amount of the appeal fee were both provided to PacifiCorp by Commission staff. This letter is submitted in support of the notice of appeal form (and has been expressly incorporated by reference as part of the notice of appeal form). PacifiCorp's notice of appeal is filed pursuant to DCC 2.28.150 and DCC Chapter 22.32. PacifiCorp is entitled to appeal because it was "the owner or occupant of the building, structure, site or district concerned," PacifiCorp is "a person who participated in the hearing" on DR -13-6 before the Commission, and PacifiCorp is a "party" to DR -13-6. If the Board grants review, PacifiCorp understands it will have an opportunity (pursuant to DCC 22.32.030) to provide additional argument regarding this appeal to the Board. PacifiCorp reserves its right to do so. Deschutes County Board of County Commissioners July 15, 2013 Page 2 of 18 Board designated only the dam, the penstock, and the powerhouse. It was error for the Commission to conclude otherwise because there is insufficient support for such a conclusion in the language of Ordinance 92-018 and the Inventory. This was an error of law. 3. No Map or Description of the "Entire Site". The Commission erred in finding that the "entire site" is the protected resource because the Inventory does not describe or map the "entire site" with particularity as required by OAR 660-016-0000(2) (nor is the "entire site" described or mapped by Ordinance 92-018, the ESEE, or Ordinance 92-019). This was an error of law. The only resources that are described or mapped with particularity are the dam, the penstock, and the powerhouse. 4. The Commission lacks the Authority to Expand the Scope of an Ambiguous Designation. The only structures that were expressly and unambiguously included in the Board's designation of the Cline Falls Power Plant were the dam, the penstock, and the powerhouse. But the Commission decided that the Board's designation contained ambiguity and the Commission then purported to clarify such ambiguity by holding that "the entire site of the Cline Falls Power Plant is the protected historic resource." Any attempt to expand the Board's designation beyond those structures that are unambiguously described in the Inventory is an amendment of the zoning boundary. The Commission is without jurisdiction to make such a legislative amendment. The Commission's finding that is was clarifying an ambiguous ordinance rather than improperly amending a zoning boundary was an error of law. 5. Due Process Violation. The Decision violates PacifiCorp's Due Process right to fair notice because a person of ordinary intelligence could not determine, prior to the Decision, that Cline Falls structures other than the dam, the penstock, and the powerhouse were protected historic resources. This was an error of law. These five principal assignments of error are detailed below, together with a number of sub - assignments of error. Miscellaneous assignments of error are stated under the sixth assignment of error. B. Factual and Procedural Background The Cline Falls Power Plant is located on land owned by the Central Oregon Irrigation District ("COID"). The location has long been used to pump irrigation water from the Deschutes River and to generate hydroelectric power. COID's predecessor -in -interest first constructed a dam, pumping facilities, and hydroelectric facilities at the location between 1907 and 1912. PacifiCorp's Pre -hearing Comments (April 10, 2013) at 1 and Exhibit 1 thereto at 1. In 1913, PacifiCorp's predecessor -in -interest leased the land, dam, pumping facilities, and hydropower facilities from COID's predecessor. In 1943 (per written agreement with COID), PacifiCorp's predecessor demolished most of the existing pumping and hydropower facilities (the dam was not demolished) and then installed: a new canal; a new wooden flume; a new Deschutes County Board of County Commissioners July 15, 2013 Page 3 of 18 metal penstock; a new powerhouse; a new standalone wooden stairway on the path between the penstock and the powerhouse; a new tailrace; and upgraded electric generating equipment including upgraded turbines, upgraded generators, and a new voltage regulation switchyard. In the 1960s or 1970s, PacifiCorp's predecessor replaced the circa -1943 transformers in the switchyard with transformers manufactured in 1964. At some undetermined time, PacifiCorp or its predecessor installed a metal walkway on the crest of the dam. In the 1990s, PacifiCorp or its predecessor replaced the standalone wooden staircase on the path between the penstock and the powerhouse with a standalone metal staircase. Id. at 1-2 and Exhibit 1 at 1-2; PacifiCorp's Post -hearing Comments (May 13, 2013), enclosed Comments of Mark Sturtevant at 1-3, 9-10. In December 2012 and January 2013, PacifiCorp removed its electric generating equipment from the Cline Falls Power Plant. PacifiCorp removed its generators, turbine, governor, control board and relays from the inside of the powerhouse without altering the exterior of the powerhouse. PacifiCorp also removed its entire switchyard (the switchyard was a facility separate from the dam, penstock, powerhouse, or any other building or structure; it was surrounded by a chain link fence; it consisted of three step-up transformers, a concrete pad, a metal stand for the transformers, electric conductors and insulators, and a supporting structure composed of four wooden power poles and some wooden cross members). PacifiCorp terminated the lease effective February 15, 2013. PacifiCorp Pre -hearing Comments at 4; PacifiCorp Post -hearing Comments, enclosed Comments of Mark Sturtevant at 2. Per the lease, the land and the remaining fixtures (e.g., dam, canal, penstock, powerhouse, standalone stairway, tailrace) remain COID's property and revert to COID's custody and control. PacifiCorp also intended to remove seven cubic yards of potentially contaminated soil. But PacifiCorp needed COID to sign an application for a conditional use permit to authorize the removal of soil and COID refused to do so. Instead, COID filed a complaint with the Deschutes County Community Development Department ("Department") alleging that PacifiCorp violated the Deschutes County Historic Preservation Ordinance (DCC Chapter 2.28) by removing the switchyard without the prior approval of the Landmarks Commission. COID's motive for its complaint does not appear to be historic preservation given that COID has demanded that PacifiCorp remove all structures from COID's lands. By letter to Department staff dated March 4, 2013, PacifiCorp responded and noted that the Board, when it added the Cline Falls Power Plant to the Inventory, only designated three structures as protected: the dam, the penstock, and the powerhouse. PacifiCorp also informed the Department that in 1992, when the Board designated the dam, the penstock, and the powerhouse as historic resources, the switchyard was not yet 50 years old and therefore was not old enough to qualify as a historic resource. PacifiCorp also informed the Department that there was nothing historically significant about the switchyard, which was originally built in 1943, substantially replaced in the 1960s or 1970s, and which is one of hundreds or thousands of similar electric voltage transformation yards found in Oregon. PacifiCorp argued that it did not violate the historic protection ordinance because there is no requirement Deschutes County Board of County Commissioners July 15, 2013 Page 4 of 18 that PacifiCorp obtain Commission approval before altering or removing a structure, such as the switchyard, which has not been designated an historic resource. Faced with COID's complaint and Pacif Corp's response, the Department concluded it was unclear whether the Board had designated as protected only the dam, penstock, and powerhouse or whether the Board had also designated other facilities such as the switchyard. On March 21, 2013, the Department applied to the Commission for a declaratory ruling on which structures are designated historic resources at the Cline Falls Power Plant. Interested parties, including COID and PacifiCorp, filed prehearing comments by April 10, 2013. The Department's Planning Division, serving as staff to the Commission, filed a staff report on April 26, 2013. The Commission held a hearing on May 6, 2013. COID and PacifiCorp both filed post -hearing comments and rebuttal comments between May 13 and May 20, 2013. The Planning Division filed a staff memorandum summarizing testimony and comments on June 12, 2013. On July 2, 2013, the Commission issued a written decision adopting in large part the Planning Division's findings and declaring: "the entire site of the Cline Falls Power Plant is the protected historic resource." Decision at 9. B. Assignments of Error 1. The Commission erroneously relied on the ESEE analysis (Ordinance 92-019) rather than the Inventory of historic resources (Ordinance 92-018) when determining which structures were designated as historic resources. See e.g., Decision at 8-10. In reaching the conclusion that "the entire site of the Cline Falls Power Plant is the protected historic resource," the Commission relied extensively on the ESEE analysis adopted by the Board in Ordinance 92-019. Indeed, the Commission's conclusion expressly rests on its interpretation of the ESEE analysis: [T]he Commission ... hereby declares that the entire site of the Cline Falls Power Plant is the protected historic resource based on the broader language of the ESEE analysis and the original intent to preserve the industrial and economic history of the county. Decision at 9 (emphasis added). It was a fundamental error for the Commission to look to the ESEE and Ordinance 92-019 to determine which structures the Board designated as protected at the Cline Falls Power Plant. Hegele v. Crook Cnty., 44 Or LUBA 357, 365 (2003) (ESEE analysis plays no role in the determination of whether a resource should be placed in the county's Goal 5 inventory), affd with guidance on indep. grounds, 190 Or App 376 (2003). The Commission's approach misconstrues the Goal 5 planning process implemented by the Board when it designated the Cline Falls Power Plant. Under the Goal 5 process (as it existed in 1992), the Board was required to place all resources of historic significance in the county on the Inventory of historic resources and to specify, as part of the Inventory, the quality, quantity and location of each historic resource. OAR 660-016-0000(1)-(2); Dept. of Land Conservation & Dev. v. Yamhill Co., 17 Or LUBA Deschutes County Board of County Commissioners July 15, 2013 Page 5 of 18 1273, 1279 (1989) (explaining Goal 5 process in the context of a historic resources designation prior to the 1996 adoption of OAR 660-023), aff'd 99 Or App 441 (1989). This is the first step in a four -step process required to complete the statewide Goal 5 planning process. As part of the Inventory, the Board was required to identify and describe (or map) each designated historic resource with particularity; this description of the location of the inventoried resource is "an indispensible prerequisite to conducting the remainder of the Goal 5 process." Friends of Forest Park v. Land Conservation & Dev. Comm 'n, 129 Or App 28, 30 (1994) (citing Columbia Steel Castings Co. v. City of Portland, 314 Or 424 (1992)). For site-specific resources, such as historic resources, the determination of location in the inventory "must include a description or map of the boundaries of the resource site". OAR 660-016-0000(2). If a local government fails to satisfy this requirement, the designation is ineffective. See Gonzalez v. Lane Co., 24 Or LUBA 251 (1992) (local government failed to satisfy requirement to designate location of protected resource as part of inventory because local government failed to provide a map or description of the site). A validly inventoried and described historic resource becomes the subject of the remaining three steps in the Goal 5 process—a determination of conflicting uses (step 2), an ESEE analysis (step 3), and the development of a program to meet the local government's goals with regard to the protected resource (Step 4). See Hegele, 190 Or App at 381-382 (describing the four -step Goal 5 process). A local government relies on the delineation and description of the protected resource contained in the Inventory to allow the government to engage in a meaningful ESEE analysis of conflicting uses and priorities. Friends of Forest Park, 129 Or App at 30 ("[P]articularity in the identification and description of resource sites and conflicting uses is an indispensable prerequisite to conducting the remainder of the Goal 5 process, which must culminate in decisions as to resource uses and conflicting uses being made for specific sites, with reasons explaining why the decisions were made."). Put simply, to comply with the Goal 5 process, the County must first identify and describe (or map) the historic resource with particularity. The County then proceeds to identify conflicting uses, conduct an ESEE analysis, and develop a program to accomplish its goals; these subsequent steps cannot expand or limit the designation made by creation of the Inventory itself in the first step. In 1992, the Board established the Inventory in Ordinance 92-018 (step 1) and the Board satisfied steps 2 to 4 (including the requirement of an ESEE analysis) through Ordinance 92- 019. When the Board adopted Ordinance 92-018 and Ordinance 92-019, the Board expressly recognized that "[a]n inventory of significant historic sites has been adopted under Ordinance 92-018 that determines the quantity, quality, and location of each historic site, as required by OAR Section 660-016-[0]000." Ordinance 92-019, Exhibit B at 2. But the Commission's July 2 Decision ignored this and impermissibly turned the Goal 5 process on its head by using the ESEE adopted in Ordinance 92-019 to expand the inventory adopted in Ordinance 92-018. In its staff report findings, the Planning Division noted for reference that DCC 2.28.020 defines Historic or Cultural Resources as "a historic or cultural site, building, structure, Deschutes County Board of County Commissioners July 15, 2013 Page 6 of 18 object, historic district, and their significant settings or any combination of these resources ... designated by the Deschutes County Board of Commissioners on the County's Goal 5 list of Historic and Cultural Resources." Staff Report at 7-8 (April 26, 2013). In the Decision, the Commission adopted this staff finding. Decision at 6. This definition of Cultural and Historic Resources did not exist in 1992 when the Board designated the Cline Falls Power Plant (the definition was added in 2010 through Ordinance 2010-019). Nevertheless, the definition demonstrates the Board's understanding that, under the Goal 5 process, a historic resource is designated by the Board through adoption of its inventory of cultural and historic resources. In designating the scope of the historic resource through the Inventory and Ordinance 92- 018, the Board could have incorporated by reference the analysis contained in Ordinance 92- 019 or any other document; but the Board did not do so. The Oregon Land Use Board of Appeals ("LUBA") has a well-established test for when a local government has incorporated additional analysis or evidence by reference. Gonzalez, 24 Or LUBA at 257-259 (establishing test used by LUBA to determine if a decision maker has adequately incorporated findings or analysis by reference; decision maker must clearly indicate an intent to incorporate and identify the document or portions of the document so incorporated); Gruener v. Klamath Cnty., 57 Or LUBA 585, 590 (2008) ("The test that LUBA uses to determine whether a decision maker's attempt to incorporate findings is sufficient was set out in Gonzalez v. Lane Cnty"); Wilson Park Neighborhood Ass 'n v. City of Portland, 129 Or App 33, 37 (1994). Neither the Inventory nor Ordinance 92-018 contains a clear expression of intent by the Board to incorporate the ESEE or Ordinance 92-019 as part of the Board's description of the elements of the protected historic resource. And neither the Inventory nor Ordinance 92-018 identifies Ordinance 92-019 as an incorporated document. It was an error of law for the Commission to rely on the ESEE and Ordinance 92-019 when determining what structures were designated as protected historic resources at the Cline Falls Power Plant.2 By erroneously relying on the ESEE and Ordinance 92-019 to determine which structures are protected resources, the Commission also committed a series of derivative errors. Those errors are set forth below as sub -assignments of error. 1.1 The Commission erroneously concluded that "[c]ultural and historic resources in rural Deschutes County were designated through Ordinance 92-019." See Decision at 2 (Part II, Section D). Under the State's Goal 5 planning process, and the Deschutes County Historic Protection Ordinance, a resource with significant historic value is designated as a protected historic 2 As noted below in Assignment of Error No. 3, even if the Commission could have properly considered the ESEE when determining which structures were designated, it would still be error to conclude that the Board designated anything more than the dam, the penstock, and the powerhouse because the ESEE does not describe or map with particularity any structures other than the dam, the penstock, and the powerhouse. In short, there is no reason to conclude that the use of the term "site" in the Inventory and in the ESEE means anything other than the three structures specifically described by the Board. Deschutes County Board of County Commissioners July 15, 2013 Page 7 of 18 resource when it is designated as part of the Deschutes County Goal 5 Inventory of Historic Resources. In 1992, cultural and historic resources in rural Deschutes County were added to the Inventory, and thereby designated, through Ordinance 92-018 not Ordinance 92-019. 1.2 The Commission erroneously concluded that "County records adopted in 1992 through Ordinance 92-019 contain inconsistencies in the description of the site and of those structures protected." See Decision at 2 (Part II, Section F). As discussed in Assignment of Error No. 1, the Commission erred when it concluded that the ESEE or Ordinance 92-019 established the description of the site or established which structures are protected. Ordinance 92-018 and the inventory of historic resources adopted thereunder described each historic resource site and established which structures are protected. Ordinance 92-018 is the ordinance and/or legislative enactment by which designation of any historic resource at Cline Falls occurred. 1.3 The Commission erroneously concluded that "the applicant's request is not an advisory opinion nor is it an amendment to the applicability of a legislative enactment" and the Commission erroneously concluded that "the requested interpretation of the comprehensive plan or zoning ordinance will not have the effect of amending the interpreted language." See Decision at 3 and 5 (Part III, Title 22, Sections A.1.B and A.5, respectively). By relying on the ESEE and Ordinance 92-019 to determine that the "entire site" is protected, the Commission erroneously expanded the scope of the historic resource designation beyond the three structures designated by the Inventory (the dam, the penstock, and the powerhouse) and in that way improperly amended a legislative enactment of general applicability. There is no ambiguity in the designation of the Cline Falls Power Plant and the plain language indicates that the designation extends to the dam, penstock, and powerhouse only. See Assignment of Error No. 2, infra. But even if there is ambiguity in the Inventory, it was error for the Commission to expand the scope of the designation beyond those three structures that are unambiguously included in the designation (dam, penstock, powerhouse) because such expansion of the designation to encompass the "entire site" amended a legislative enactment (the Inventory) and the Commission lacks the jurisdiction to amend a legislative enactment. See Assignment of Error No. 4, infra. 1.4 The Commission erroneously concluded that OAR 660-023 was the applicable regulation at the time the Board designated the Cline Falls Power Plant in 1992. See Decision at 6 (Part III, Comprehensive Plan, Section A.1). The Commission erroneously notes that the historic resource designation process was governed by OAR 660-023 and that this regulation recommended, but did not require, the County to inventory and protect historic and cultural sites. In 1992, when the Board designated the Cline Falls Power Plant, OAR 660-023 did not exist (it was adopted in 1996); in 1992, the regulation controlling the designation of historic resources was OAR 660-016. In 1992, OAR 660-016 did require the County to Inventory significant historic resources. Deschutes County Board of County Commissioners July 15, 2013 Page 8 of 18 1.5 The Commission erroneously found that "[b]ased on its supporting documentation, the designation demonstrates that the entire site is designated as a historic resource" and the Commission erroneously relied on staff's finding that "supporting documents to Ordinance 92-019 refer to the facility as an entire `site' and protecting the resource because it is part of the industrial and economic history of the area." See Decision at 6 (Part III, Comprehensive Plan, Section A.1) (incorporating by reference staff findings) and April 26 Staff Report at 8 (Part III, Title 2, Section A.1.), respectively. When interpreting what structures are protected under the Inventory designation of the Cline Falls Power Plant, it was error for the Commission to consider Ordinance 92-019, the ESEE analysis, or other findings or information not incorporated in Order 92-018 or the Inventory. 1.6 The Commission erroneously concluded that the potential historic resource sites identified in the 1979 Resource Element of the County Comprehensive Plan were designated as historic resources by the adoption of Ordinance 92-019 in 1992. See Decision at 7 (Part III, Comprehensive Plan, Section A.1). As discussed in Assignment of Error No. 1, the 1979 proposed historic resource sites were designated as historic resources by adoption of Ordinance 92-018 through which the Board adopted the Inventory describing and designating historic resources. The Commission erred in concluding that historic resources were designated by Ordinance 92-019 (the ordinance that adopted the Board's ESEE analysis). 1.7 The Commission erroneously concluded that "the designation of the Cline Falls Power Plant is based on the findings provided by County File No. HS -90-99, the ESEE Analysis, and additional information" because such information was not incorporated by reference in Ordinance 92-018 or the Inventory. See Decision at 7 (Part III, Comprehensive Plan, Section A.1). As discussed in Assignment of Error No. 1, in determining which structures the Board designated as historic resources, the Commission must interpret the Inventory and Ordinance 92-018; not the ESEE and Ordinance 92-019. However, the Commission may consider any analysis or other information that the Board specifically incorporated by reference as part of Ordinance 92-018 or the Inventory, provided such incorporation by reference meets the standards established and applied by LUBA in Gonzalez, 24 Or LUBA at 257-259 (decision maker must clearly indicate an intent to incorporate and identify the document or portions of the document so incorporated). In Ordinance 92-018 and the Inventory, the Board did not expressly or implicitly incorporate by reference Ordinance 92-019, the ESEE, County File No. HS -90-99, or any other additional information. The only documents the Board incorporated by reference were the eight documents (Exhibits A -D and D 1-D4) that were attached directly to Ordinance 92-018. It was therefore error for the Commission to conclude that the designation of the Cline Falls Power Plant is based on the findings provided by County File No. HS -90-99, the ESEE analysis, and additional information. Deschutes County Board of County Commissioners July 15, 2013 Page 9 of 18 1.8 The Commission erroneously concluded that "the designation of the Cline Falls Power Plant emphasizes the importance of the hydropower site and its relationship to the physical structures." See Decision at 7 (Part III, Comprehensive Plan, Section A.1). Neither Ordinance 92-018 nor the Inventory "emphasize the importance of the hydropower site and its relationship to physical structures." To the extent the Commission reached these conclusions by reference to the ESEE or Ordinance 92-019 (or to any other information outside of the Inventory and Ordinance 92-018) such conclusions are error for the reasons discussed above in Assignment of Error No. 1 and Sub -assignment of Error No. 1.7. 1.9 The Commission erroneously concluded that "the historic resource includes the dam, penstock, and powerhouse but it is not limited to those structures." See Decision at 7 (Part III, Comprehensive Nan, Section A.1). Neither Ordinance 92-018 nor the Inventory indicate support for this conclusion. To the extent the Commission reached this conclusion by reference to the ESEE or Ordinance 92- 019 (or to any other information outside of the Inventory and Ordinance 92-018) the conclusion is error for the reasons discussed above in Assignment of Error No. 1, Sub - assignment of Error No. 1.7, and Sub -assignment of Error 1.8. The Commission erred in concluding that more than the dam, penstock, and powerhouse were designated because these are the only structures described in the Inventory and, if the Commission designated additional structures (or the entire parcel of real property) but did not provide a description or map of those additional designated resources, then the entire designation of the Cline Falls Power Plant is defective. See Gonzalez, 24 Or LUBA 251 (failure to define boundaries of resource caused designation to be deemed defective). The standard for defining boundaries of resources is further explained in Assignment of Error No. 3, infra. 1.10 The Commission erroneously considered the language of the ESEE quoted on pages 8 and 9 of the Commission's July 2, 2013 Decision. See Decision at 8-9. Pages 8 and 9 of the Decision are almost entirely quotes from, and discussion of, the ESEE. For the reasons discussed in Assignment of Error No. 1, the Commission erred by considering the ESEE analysis as evidence of what structures are or are not protected under the Inventory designation and description of the Cline Falls Power Plant. Deschutes County Board of County Commissioners July 15, 2013 Page 10 of 18 1.11 The Commission erroneously decided that "the entire site of the Cline Falls Power Plant is the protected historic resource based on the broader language of the ESEE analysis and the original intent to preserve the industrial and economic history of the County." See Decision at 9 (Part IV). For the reasons discussed in Assignment of Error No. 1, the Commission erred in considering the ESEE analysis as evidence of what structures are, or are not, protected under the Inventory designation and description of the Cline Falls Power Plant. 2. The Commission erroneously ignored the plain language of the Inventory, which states that the Cline Falls Power Plant "site includes dam, penstock, and powerhouse" and that the "inventoried site includes only the designated structure[s]." As discussed in Assignment of Error No. 1, in determining the scope of the Board's 1992 designation, the Commission should have considered only the Inventory and Ordinance 92- 018. The plain language of Ordinance 92-018 supports the conclusion that the protected historic resource at the Cline Falls Power Plant is limited to the dam, the penstock, and the powerhouse. The Inventory entry for the Cline Falls Power Plant states in full: Cline Falls Power Plant Early hydropower site on the Deschutes River, located off highway 126 on White Rock Road. Site includes dam, penstock, and powerhouse. 15-12-14 TL 901. Ordinance 92-018, Exhibit B at 2. The Inventory also includes a note that applies to all inventoried sites. It states in full: INVENTORY NOTE: Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. Ordinance 92-018, Exhibit B at 6. From the plain language of these two provisions of the Inventory, it is clear that the Cline Falls Power Plant "site includes dam, penstock, and powerhouse" and that "the inventoried site includes only the designated structure[s]." There is no language in the Inventory or Ordinance 92-018 by which the Board "otherwise indicated" an intent to designate more than the dam, the penstock, or the powerhouse. Simply put, the plain language of the Inventory indicates that the Cline Falls Power Plant "site" designated by the Board in 1992 consists of the dam, the penstock, and the powerhouse only. The plain language of the Inventory and Ordinance 92-018 is insufficient to support the Commission's erroneous conclusion that "the historic resource includes a dam, penstock, and powerhouse but is not limited to those structures." Decision at 7. The Commission itself recognized that the dam, penstock, and powerhouse are the only structures described in the Inventory. Indeed, the Commission stated that under a strict Deschutes County Board of County Commissioners July 15, 2013 Page 11 of 18 interpretation: "one could conclude that the dam, penstock, and powerhouse of the Cline Falls Power Plant site are the only protected resources listed." Decision at 7. And the Commission incorporates the following finding of the Planning Division: Based on the [Inventory Note], it is reasonable to conclude that only the dam, penstock, and powerhouse of the Cline Falls Power Plant site are the protected historic structures because they are the only structures listed. However, the historic resource is listed as a hydropower site as if referencing the entire site and taking into account all significant aspects of the facility. Therefore, another interpretation is that the resource includes a dam, penstock, and powerhouse but is not limited to those structures. April 26 Staff Report at 9 (incorporated by reference in the Commission's Decision at 7) (emphasis added). These findings make it clear the Commission and the Planning Division acknowledged that the dam, powerhouse, and penstock are the only structures designated under the plain language of the Inventory. But the Commission and the Planning Division erroneously went beyond the plain language of the Inventory. They ignored the Inventory Note (or improperly reduced it to a complete nullity). Then, without any plain language stating that the "entire site" was designated, the Planning Division and the Commission suggest that the "historic resource is listed as a hydropower site as if referencing the entire site." It is error for the Commission and the Department to conclude that that the "entire site" is protected because it is "as if' the Board had actually stated that the entire site was protected. The Commission must base its decision on what the Board actually stated, and must give meaning to the Board's statement that "the inventoried site includes only the designated structure[s]." See ORS 174.010 (in interpreting a statute, a body acting in a quasi-judicial capacity must construe the enactment in the manner which will give effect to all of the enactment's provisions). The Commission attempted to support its conclusion that the dam, penstock, and powerhouse are not the only protected structures by stating: "However, the description of the Cline Falls Power Plant emphasizes the importance of the hydropower site and its relationship to the physical structures." Decision at 7. This statement is without basis in the language of the Inventory. The Inventory entry for the Cline Falls Power Plant does not "emphasize the importance of the hydropower site" or emphasis the site's "relationship to the physical structures." The Inventory entry states only: "Early hydropower site on the Deschutes River, located off Highway 126 on White rock Road west of Redmond. Site includes dam, penstock, and powerhouse. 15-12-14 TL 901." Because the plain language of the Inventory states that the Cline Falls Power Plant site includes dam, penstock and powerhouse and that the inventoried site includes only the designated structures, the Commission erred to conclude without evidence or support in the language of the Inventory that the Board actually designated more than the dam, the penstock, and the powerhouse. Deschutes County Board of County Commissioners July 15, 2013 Page 12 of 18 3. The Commission erred by declaring that the "entire site" is protected because "entire site" is not a legally sufficient determination of the location for a Goal 5 historic resource under OAR 660-016-0000(2). The only three structures described in the Inventory for the Cline Falls Power Plant are the dam, the penstock, and the powerhouse. There is no map or description of any other structures or of any parcel of property. When the Board designated other historic resources and intended to include more than just structures, it either described the property with particularity3 or stated that the site included the entire tax lot.4 And the Board made it clear (through its Inventory Note), that it did not intend for an inventoried site to include structures or lands that were not specifically identified. The Inventory Note states: "Unless otherwise indicated the inventoried site includes only the designated structure."5 Ordinance 92-018, Exhibit B at 6 (emphasis added). In spite of the fact that the Inventory described only the dam, the penstock, and the powerhouse, the Commission erroneously concluded that the designated resource is "not limited to" the dam, penstock, and powerhouse. Decision at 7. And the Commission erroneously concluded that the "entire site of the Cline Falls Power Plant is the protected historic resource." Id. at 9. These conclusions are error because OAR 660-016-0000(2) requires that the boundary of a protected resource be described or mapped with particularity. The Inventory describes only three structures with particularity—the dam, the penstock, and the powerhouse. The Inventory does not map or describe an "entire site" and it does not map or describe any lands or structures other than the dam, penstock, and powerhouse. In addition, neither the ESEE nor Ordinance 92-019, nor any other document in evidence in this proceeding maps or describes with particularity any lands or structures at the Cline Falls Power Plant other than the dam, the penstock, and the powerhouse. 3 See, e.g., the designation for the Camp Polk Cemetery (stating that "[t]he site is composed of a tract of land, including gravestones and memorials, containing 2.112 acres" and providing a metes and bounds description of the land) and the description for the Allen Ranch Cemetery (describing a "30' by 40' fenced cemetery plot. Situated 100 yards west of South Century Drive, one-half mile south of Road 42. Two marble gravestones, two wooden markers."). Ordinance 92-018, Exhibit B at pages 1 and 2. "See, e.g., the designation for Camp Polk Military Post Site ("Site includes entire tax lots, listed as follows, 14- 10-34 TL 100, 300."), the designation of the Maston Cemetery ("Site includes the gravestones and memorials and entire tax lot, identified as 22-09-00 TL 1800."), and the designation for the Tethrow House & Crossing ("Site includes house and entire tax lot."). 5 Presumably, the Inventory Note means that where an inventoried site includes a designated structure (such as a house) but also includes a statement that a described parcel of land is designated (such as a statement that an entire tax lot is included), then the designated resource is the identified structure and the identified land (such was the case for the Tethrow House & Crossing; see Ordinance 92-018, Exhibit B at 5). But where the inventoried site includes a designated structure or structures but no description of land (neither by reference to an "entire tax lot" nor by providing a metes and bounds description nor otherwise), then the designated resource is only the identified structure or structures and not any land or any otherwise unidentified structures (such was the case for the Harper School—one room school house only described resources—and for the Cline Falls Power Plant—dam, penstock, and powerhouse only described resources; see Ordinance 92-018, Exhibit B at 2 and 3). Deschutes County Board of County Commissioners July 15, 2013 Page 13 of 18 The location of a Goal 5 historic resource must be included in the Inventory, and the Inventory must include "a description or map of the boundaries of the resource site". OAR 660-016-0000(1) and (2); Gonzalez, 24 Or LUBA at 262; Columbia Steel Castings Co., 314 Or at 431 ("But, unless both the resource site and the conflicting uses are described with sufficient particularity, the ESEE analysis cannot begin."). In Gonzalez, LUBA found the county erred in providing only maps that did not correspond to "any particular location" on county maps or "any particular location of the subject property." Id. at 262. The Oregon Court of Appeals has held that a determination of location is invalid if it "makes an accurate and complete identification of conflicting uses impossible". Friends of Forest Park, 129 Or App at 30-31. Simply put, under the Goal 5 process as it applied in 1992, no structure, land, or location is properly designated as a historic resource unless it is described or mapped with particularity in the Inventory itself. With regard to the Cline Falls Power Plant, the Inventory does not describe or map the boundaries of the "entire site" and the Commission was therefore in error to conclude that the "entire site of the Cline Falls Power Plant is the protected historic resource." Further, it was error for the Commission to choose to interpret the Inventory in this way because such an interpretation voids the entire designation of the Cline Falls Power Plant when another interpretation would render the designation valid under OAR 660-016- 0000(2). The interpretation that validates the designation, which the Commission has recognized as reasonable, is that the only structures designated were the dam, the penstock, and the powerhouse. See Taralson v. State Dep't of Revenue, 281 Or 9, 13 (1978); (it is a well-established rule of statutory construction that a construction that renders an enactment valid will be adopted over a construction that renders the enactment void or unconstitutional). 4. After erroneously concluding that the scope of the 1992 designation of the Cline Falls Power Plant was ambiguous, the Commission further erred by attempting to resolve the purported ambiguity by expanding the scope of the designated resource beyond the expressly described structures; this was an amendment of the Inventory which was error because the Commission lacks the jurisdiction to amend the Inventory or the Comprehensive Plan. As argued above in Assignments of Error Nos. 1 and 2, the Commission erred when it concluded that the Board's 1992 designation of the Cline Falls Power Plant was ambiguous; the Inventory clearly described the protected resource as the dam, the penstock, and the powerhouse. But even if the Commission was correct to find that the designation was ambiguous, the Commission lacked legal authority to conclude that the "entire site" was protected. The enlargement of an ambiguous historic resource boundary is an amendment to the County's comprehensive plan—an act that can only be carried out by the Board, pursuant to the Deschutes County Code and regulations governing changes to the Inventory. See DCC 22.40.050 ("Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language."). Deschutes County Board of County Commissioners July 15, 2013 Page 14 of 18 "The right of municipalities to establish zoning regulations when permitted to do so by enabling state legislation is well settled." Auditorium, Inc., v. Board of Adjustment, 47 Del. 373, 381 (1952) (citing 8 McQuillin, Municipal Corporations (3rd Ed.) § 25.77). "The establishment of zones is ineffective when the fixing of the boundaries of the zones is left to the ungoverned discretion, caprice or arbitrary action of municipal administrative bodies or officials." Id. at 382. "Since the power is legislative and since it has been delegated by the Legislature to the legislative body of municipalities, only the legislative body of the municipality may establish the boundaries of the zone districts. This as a general proposition is uniformly the law." Id. at 381. The above principles apply to Deschutes County, where by ordinance only the Board has authority to designate historic resources. See DCC 2.28.030. The designation of a historic resource must be accomplished in accordance with DCC 2.28.060 and OAR 660-023.6 Zoning ordinances must establish zone district boundaries "within reasonable certainty". Auditorium, Inc., 47 Del. at 382. "Where doubt exists [as here] as to the intention of the legislative body, the language must be interpreted in favor of the property owner and against any implied extension of the restriction." 8 McQuillin, § 25.77. If the status of a property cannot be established from the description or map in the ordinance, then the result is that the property is unzoned. Auditorium, Inc., 47 Del. at 384. The Commission's Decision violated the rules discussed above because, upon finding that the scope of the historic resource designation at the Cline Falls Power Plant was unclear, the Commission extended the boundary by implication. Because there is no map or description of the "entire site," the Commission lacked authority to conclude the "entire site" is a protected resource. Upon finding that the resource's boundary is unclear, the Commission had the option to either: (1) include only those features clearly listed on the inventory (the dam, penstock and powerhouse); or (2) declare all of the Cline Falls Power Plant to be unzoned. While the Commission may interpret zoning rules within a zone, whether a property lies within or without a zone is a strictly legislative function. 8 McQuillin, § 25.97 ("lines and boundaries must be fixed, and this must be done by the zoning ordinance and not by administrative officials or courts."). Therefore Commission's declaration that the Cline Falls "site" included more than the dam, penstock, and powerhouse was error and ultra vires as a matter of law. 6 OAR 660-023, not OAR 660-016, applies to applications for new designations filed on or after September 1, 1996. Kelley v. City of Cascade Locks, 34 Or LUBA 374, 378 (1998). Deschutes County Board of County Commissioners July 15, 2013 Page 15 of 18 5. The Commission erred in declaring that the "entire site" is designated as a historic resource because such a finding would violate PacifiCorp's right to fair notice under the Due Process Clause. If the Board upholds the Commission's findings notwithstanding the above assignments of error, the Commission's 2013 declaration that "the entire site of the Cline Falls Power Plant is the protected historic resource" would violate PacifiCorp's Due Process right to fair notice to the extent the designation of the "entire site" subjects PacifiCorp to penalties for altering or removing the switchyard, the standalone staircase, or any structures other than the dam, penstock, and powerhouse. The United States Supreme Court has held that a law is unconstitutionally vague, and that it therefore violates the Due Process Clause, if the law sanctions an individual without providing fair notice that the individual's actions were sanction -able. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498 (1982) (Fourteenth Amendment Due Process). A regulation provides fair notice only if "a person of ordinary intelligence would understand its terms." Delgado v. Souder's, 334 Or 122, 149 (2002) (quoting Hoffman Estates, 455 U.S. at 498). The Oregon Supreme Court has recognized that this Due Process protection extends to civil sanctions. Delgado, 334 Or at 149. The Commission's Decision directly affects the legal interests of PacifiCorp in an ongoing enforcement action potentially resulting in civil sanctions. See Decision at 6. From the face of the Inventory, the only structures that are obviously or unambiguously designated are the dam, the penstock, and the powerhouse. When faced with a COID complaint alleging that PacifiCorp violated DCC 2.28 by removing the switchyard without Commission approval, it was not clear to the Department that the switchyard was a protected historic resource and the Department accordingly applied to the Commission for a declaratory ruling regarding whether the switchyard is or is not a protected historic resource. The fact that the Department did not feel it could move forward with the complaint without first obtaining a declaratory ruling from the Commission demonstrates that a person of ordinary intelligence would not be put on notice by the Inventory that the switchyard or any structure at Cline Falls Power Plant other than the dam, penstock, or powerhouse is a protected historic resource. The Commission also expressed the opinion that the designation was vague. See, e.g., Decision at 2 (finding the County's records to be inconstant); Id. at 5 (identifying purpose to clarify ambiguous language); Id. at 7 (noting that one could conclude that the dam, penstock, and powerhouse are the only protected resources). It follows that the purported designation of the switchyard and the standalone stairway was not ascertainable by "a person of ordinary intelligence." Both on its face, and as applied to PacifiCorp's actions prior to July 2, 2013, the Commission's conclusion that "the entire site of the Cline Falls Power Plant is the protected resource" violates PacifiCorp's Due Process right to fair notice. The Decision was therefore in error as a matter of law. Deschutes County Board of County Commissioners July 15, 2013 Page 16 of 18 6. Other Assignments of Error PacifiCorp makes the following additional assignments or sub -assignments of error, which do not fall neatly into one of the principle assignments of error discussed above. 6.1. The Commission erroneously identified the location of the "subject property" as being "further identified on Deschutes County Assessor's Map 15-12-11D as Tax Lot 1100 together with Tax Lot 900 on Map 15-12-14A." See Decision at 1 (Section II.A). After reviewing the Deschutes County Assessor's maps available online, it appears that he current, correct tax lot identification for the subject property is Tax Lot 1100 on Deschutes County Assessor's Map 15-12-11D and Tax Lot 901 on Deschutes County Assessor's Map 15-12-14A. Tax Lot 900—identified in the Decision—is located south of the Highway 126 bridge over the Deschutes River and is not related to the Cline Falls Power Plant. The Departments' March 21, 2013 application to the Commission for a declaratory ruling also erroneously identified the location of the subject property; however, the Department's error was different than the Commission's error. The Department erroneously identified the subject property as 15-12-11D Tax Lots 1100 and 1101; but Tax Lot 1101 is located west of 74th Street and is not related to the Cline Falls Power Plant. 6.2. The Commission erroneously extended the historic resource designation to the switchyard and the standalone metal stairway by implication when those structures were not old enough in 1992 to be considered historic resources. The Commission has held that the "entire site of the Cline Falls Power Plant is the protected historic resource." Decision at 9. Presumably this means that all structures at the location— including the switchyard and the standalone staircase—are protected historic resources. But this result ignores the critical fact that, at the time the Board designated the Cline Falls Power Plant, neither the switchyard nor the standalone metal stairway were 50 years old or older. It was error for the Commission to conclude that the switchyard and the standalone metal stairway are designated historic resources when neither structure was expressly designated by the Board and when both structures were too new to meet the generally accepted definition of historic. See e.g. DCC 2.28.020 (defining "historic" as "50 -year old or older"; added to the Deschutes County Code in 2010 through the adoption of Ordinance 2010-019); 36 CFR 60.4 (criterion (g) makes it clear that structures less than 50 years old generally are not eligible to be placed on the National Register of Historic Places). 6.3. The Commission erroneously attempted to adopt the findings of the Planning Division without clearly identifying the document or portions of the document incorporated. The Planning Division filed two documents in DR -13-6 (the April 26 staff report and the June 12 staff memorandum). Both documents include Planning Division findings. In its Decision, the Commission repeatedly adopts the findings of the Planning Division without Deschutes County Board of County Commissioners July 15, 2013 Page 17 of 18 specifying which of the two Planning Division documents the Commission is relying upon. See, Decision at 2-7. Incorporation by reference is not valid if it is unclear which of multiple documents has been incorporated, even if the reader can make an educated guess as to which document the decision -maker intended to incorporate. See Gonzalez, 24 Or LUBA at 257- 259 (establishing test used by LUBA to determine if a decision maker has adequately incorporated findings or analysis by reference; decision maker must clearly indicate an intent to incorporate and identify the document or portions of the document so incorporated) and at footnote 6 ("It would be possible ... for a reasonable person to make an educated guess as to which document constitutes [the document incorporated by reference] ... However, this does not satisfy the requirement ... that the decision itself identify the specific document(s) or portions of document(s) intended to be incorporated by reference as findings."). It was error for the Commission to incorporate by reference findings of the Planning Division without specifying whether the Commission was adopting the Planning Division findings found in the April 26 staff report or the July 12 staff memorandum. All of the Planning Division findings that the Commission purports to incorporate on pages two through seven of the Decision suffer from this error and should be deemed null and void. C. Form of Review PacifiCorp believes "on the record review" will suffice. There is no substantive disagreement regarding the material facts. The disagreement in this case is over the scope of the Board's 1992 designation of the Cline Falls Power Plant as a historic resource. More specifically, the dispute is over whether the Board designated as protected only the dam, penstock, and powerhouse or whether the Board designated as protected the "entire site" of the Cline Falls Power Plant. This is a legal question and PacifiCorp's assignments of error are based on errors of law not fact. Nevertheless, given that the Commission's erroneous consideration of the ESEE and Ordinance 92-019 pervades the Decision under review, the Board may conclude that it is best to review the Decision de novo and the Board has the authority to do so by its own motion. See DCC 22.32.027(B)(3). Sincerely, Jeff eyrS! L6vinger Lovrger Kaufmann LLP Of Attorneys for PacifiCorp Enclosures: 1. Completed Deschutes County Notice of Appeal Form 2. $795 Appeal Fee (Check No. 4457) 3. Copy of the Commission's July 2, 2013 Decision in DR -13-6 Deschutes County Board of County Commissioners July 15, 2013 Page 18 of 18 cc: • Laurie Craghead, Assistant Legal Counsel, Deschutes County (by US Mail and email: 1300 NW Wall St, Suite 205, Bend OR 97701; laurie.craghead@deschutes.org) • Cynthia Smidt, Associate Planner, Deschutes County Community Development Department (by US Mail and email: 117 NW Lafayette Ave., Bend OR 97708; cynthia.smidt@deschutes.org) • Elizabeth A. Dickson, Hurley Re, PC, Attorney for CO1D (by US Mail and email: 747 SW Mill View Way, Bend OR 97702; eadickson@hurley-re.com) • John P. Sample, Assistant General Counsel, PacifiCorp (by email: sample@pacif corp.com) DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION FILE NUMBER: DR -13-6 APPLICANT: Deschutes County, Community Development Department Post Office Box 6005 Bend, Oregon 97708 PROPERTY OWNER: Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 REQUEST: The applicant requests a declaratory ruling to interpret Ordinance 92-019 and associated documents regarding the Cline Falls Power Plant historic site. I. APPLICABLE CRITERIA: Title 22, Deschutes County Development Procedures Ordinance Chapter 22.40. Declaratory Ruling Section 22.40.010. Availability of Declaratory Ruling Section 22.40.020. Persons Who May Apply Section 22.40.030. Procedures Section 22.40.040. Effect of Declaratory Ruling Section 22.40.050. Interpretation Deschutes County Comprehensive Plan Chapter 2, Resource Management Section 2.11. Cultural and Historic Resources Title 2, Deschutes County Administration Ordinance Chapter 2.28. Historic Preservation and Historic Landmarks Commission Section 2.28.090. Exterior Alteration and New Building Restrictions Oregon Statewide Planning Goals II. BASIC FINDINGS: A. LOCATION: The subject property is located at 300 NW 74th Street, Redmond and is further identified on Deschutes County Assessor's Map 15-12-11D as Tax Lot 1100 together with Tax Lot 900 on Map 15-12-14A. B. LOT OF RECORD: Deschutes County has recognized the subject tax lots as one legal lot of record pursuant to County file number LR -92-10 as reconfigured through property line adjustment LL -01-102. C. ZONING: The subject property is zoned Exclusive Farm Use (EFUSC) and Flood Plain (FP). The property is within the Landscape Management (LM) and Airport Safety (AS) Combining zones and is designated a Historic Site (HS). D. LAND USE HISTORY: The Historic Landmarks Commission ("Commission") adopts the Planning Division's findings, which includes the following. Cultural and historic resources in rural Deschutes County were designated through Ordinance 92-019. The Cline Falls Power Plant is included in the Goal 5 Inventory of Cultural and Historic Resources of Deschutes County. The Economic, Social, Environmental, and Energy (ESEE) findings, incorporated by reference, provide a brief history of the Cline Falls Power Plant.' E. SITE DESCRIPTION: The Commission adopts the Planning Division's fmdings, incorporated by reference herein. F. PROPOSAL: The Commission adopts the Planning Division's findings, which is included here in brief. The applicant has submitted a request for a declaratory ruling to interpret Ordinance 92-019 and historical documents that relate to the designation of the Cline Falls Power Plant historic site. County records adopted in 1992 through Ordinance 92-019 contain inconsistencies in the description of the site and of those structures protected. The applicant requests an interpretation of what is the protected resource at the Cline Falls Power Plant, the entire site or specific structures, G. PROCEDURAL HISTORY: The application was submitted on March 21, 2013 and was accepted by the Planning Division as complete on April 19, 2013. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.178 would have expired on September 16, 2013. A public hearing on the application was held on May 6, 2013. At the hearing, the Commission received testimony and evidence, and left the written evidentiary record open through May 20, 2013. The applicant waived the right to submit final written arguments after the record closed to all other parties (see ORS 197.763). As of the date of this decision, July 2, 2013, there remain 76 days in the 150 -day period. H. PUBLIC AGENCY COMMENTS: The Commission adopts the Planning Division's findings, incorporated by reference herein. The Commission acknowledges specific arguments questioning the inconsistencies found in the County records for the Cline Falls Power Plant. However, these arguments are irrelevant because the Board of County Commissioners deemed them as historic resources through the two ordinances cited in this decision. Page 2 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) I. PUBLIC COMMENTS: The Commission adopts the Planning Division's findings, incorporated by reference herein, and adds oral and written testimony by the applicant, property owner, and lessee, and comments from interested parties that were received by the close of the written record on May 20, 2013 J. REVIEW PERIOD: The Commission adopts the Planning Division's findings, incorporated by reference herein. III. CONCLUSIONARY FINDINGS: TITLE 22, DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE A. Chapter 22.40. Declaratory Ruling 1. Section 22.40.010. Availability of Declaratory Ruling. A. Subject to the other provisions of DCC 22.40.010, there shall be available for the County's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and DCC Title 22 a process for: 1. Interpreting a provision of a comprehensive plan or ordinance (and other documents incorporated by reference) in which there is doubt or a dispute as to its meaning or application; FINDING: As noted in the Planning Division's findings, the applicant is requesting an interpretation of Ordinance No. 92-019 and associated documents (e.g. Ordinance No. 92-018). The predominant issue is the determination of what the Board of County Commissioners ("BOCC") actually designated in 1992 as the Cline Falls Power Plant historic site. B. A declaratory ruling shall be available only in instances involving a fact -specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment. FINDING: The Commission adopts the Planning Division's findings on this criterion and concurs the applicant's request is not an advisory opinion nor is it an amendment to the applicability of a legislative enactment. C. .Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final. FINDING: The Commission adopts the Planning Division's findings on this criterion. Page 3 of 10 —DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) D. The Planning Director may refuse to accept and the Hearings Officer may deny an application for a declaratory ruling if 1. The Planning Director or Hearings Officer determines that the question presented can be decided in conjunction with approving or denying a pending land use action application or if in the Planning Director or Hearings Officer's judgment the requested determination should be made as part of a decision on an application for a quasi-judicial plan amendment or zone change or a land use permit not yet filed; or 2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district or circuit court in which the same issue necessarily will be decided as to the applicant and the applicant failed to file the request for a declaratory ruling within two weeks after being cited or served with a complaint. The Planning Director or Hearings Officer's determination to not accept or deny an application under DCC 22.40.010 shall be the County's final decision. FINDING: The Commission concurs with the Planning Director's determination that the question presented is appropriately decided under this procedure. 2. Section 22.40.020. Persons Who May Apply. A. DCC 22.08.010(B) notwithstanding, the following persons may initiate a declaratory ruling under DCC 22.40: 1. The owner of a property requesting a declaratory ruling relating to the use of the owner's property; 2. In cases where the request is to interpret a previously issued quasi-judicial plan amendment, zone change or land use permit, the holder of the permit; or 3. In all cases arising under DCC 22.40.010, the Planning Director. No other person shall be entitled to initiate a declaratory ruling. FINDING: The Commission adopts the Planning Division's findings on this criterion. B. A request for a declaratory ruling shall be initiated by filing an application with the planning division and, except for applications initiated by the Planning Director, shall be accompanied by such fees as have been set by the Planning Division. Each application for a declaratory ruling shall include the precise question on which a ruling is sought. The application shall set forth whatever facts are relevant and necessary for making the determination and such other information as may be required by the Planning Division. FINDING: The Commission adopts the Planning Division's findings on this criterion. Page 4 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) 3. Section 22.40.030. Procedures. Except as set forth in DCC 22.40 or in applicable provisions of a zoning ordinance, the procedures for making declaratory rulings shall be the same as set forth in DCC Title 22 for land use actions. Where the Planning Division is the applicant, the Planning Division shall bear the same burden that applicants generally bear in pursuing a land use action. FINDING: The Commission adopts the Planning Division's findings on this criterion and concurs the request is being processed according to Title 22. 4. Section 22.40.040. Effect of Declaratory Ruling. A. A declaratory ruling shall be conclusive on the subject of the ruling and bind the parties thereto as to the determination made. B. DCC 22.28.040 notwithstanding, and except as specifically allowed therein, parties to a declaratory ruling shall not be entitled to reapply for a declaratory ruling on the same question. C. Except when a declaratory ruling is made by the Board of County Commissioners, the ruling shall not constitute a policy of Deschutes County. FINDING: The Commission adopts the Planning Division's findings on this criterion. 5. Section 22.40.050. Interpretation. Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language. Interpretation shall be made only of language that is ambiguous either on its face or in its application. Any interpretation of a provision of the comprehensive plan or other land use ordinance shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. FINDING: The Commission agrees and adopts the Planning Division's findings that indicate that the requested interpretation of the comprehensive plan or zoning ordinance will not have the effect of amending the interpreted Language. The requested interpretation is to clarify any ambiguous language of Ordinance 92-019 and supporting documents. TITLE 2, DESCHUTES COUNTY ADMINISTRATION ORDINANCE A. Chapter 2.28. Historic Preservation and Historic Landmarks Commission 1. Section 2.28.090. Exterior Alteration and New Building Restrictions. A. Except as provided in DCC 2.28.090(1), no person may demolish or alter any historic or cultural resource in such a manner as to affect its exterior appearance or integrity, nor may any new structure and/or building be Page 5 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMIVIISSION in DR -13-6 (Deschutes County CDD) constructed in an historic district, unless a certificate of approval has been issued by the Landmarks Commission and the County. FINDING: The Commission adopts the Planning Division's fmdings on this criterion and acknowledges that a code enforcement complaint was filed alleging that the lessee, PacifiCorp, of the property violated the code by altering a historic site (see Code Enforcement File No. C13-18). Furthermore, the Commission accepts staff's confirmation, based on a site visit on February 12, 2013, that the switchyard, power poles, and power lines were removed from the site.2 As the Planning Division's findings indicated, DCC Section 2.28.090(A) states that no person may demolish or alter the exterior appearance or integrity of a historic resource without a certificate of approval by the Commission. DESCHUTES COUNTY COMPREHENSIVE PLAN A. Chapter 2. Resource Management 1. Section 2.11. Cultural and Historic Resources Background Historic resources are recognized by Statewide Planning Goal 5, Natural Resources, Scenic Views and Historic Areas and Open Spaces, and Oregon Administrative Rule (OAR) 660-023. The Statewide Goal and OAR recommend, but do not require, the County to inventory and protect historic and cultural sites. Historic Designations In 1979 the County inventoried potential historic and cultural sites in the Resource Element. The 1979 Plan included goals and policies for protection of historic resources as well as provisions that the County establish a Historical Landmarks Commission and adopt an ordinance to protect designated historic sites. On September 17, 1980 the Board of County Commissioners adopted Ordinance PL -21, which established a Historical Landmarks Commission and created a process to evaluate, designate and regulate historic structures. The Historic Landmarks Commission subsequently, and over time, evaluated proposed historic sites. The resulting inventory of historically designated sites can be found in Chapter 5. This inventory will be reviewed as part of the Goal 5 review as described in the Goal 5 section of this Plan. Starting in 1997, all historic and cultural designations have been initiated at the request of proper0 owners through the Comprehensive Plan text amendment process. Future of Cultural and Historic Resources 2 A modern steel walkway and stair structure was also documented during the site visit. Page 6 of 10 —DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) Deschutes County supports the voluntary preservation of significant cultural and historical sites. Going forward there are a fern issues regarding cultural and historical resources that need to be addressed ... Another concern is that the current County inventory is old and contains incomplete information on some of the sites.... FINDING: The Commission adopts the Planning Division's findings with the following amendments. The Commission acknowledges the Planning Division's findings that indicate that the County documented potential historic and cultural sites for the 1979 Resource Element of the County Comprehensive Plan. Through the adoption of Ordinance 92-019 in 1992, those sites were designated as historic resources recognized by Statewide Planning Goal 5. Cline Falls Power Plant is on the County's Goal 5 inventory as listed in Chapter 5, Supplemental Sections, of the Comprehensive Plan. The Commission recognizes that the designation of Cline Falls Power Plant is based .on the findings provided in County File No. HS -90-99, the ESEE Analysis, and additional information. Based on its supporting documentation, the designation demonstrates that the entire site is designated a historic resource with three distinguishing assets: dam, penstock, and powerhouse. The Cline Falls Power Plant, as listed in Exhibit B of Ordinance 92-018, is a historic resource that is: [An] early hydropower site on the Deschutes River.... The site includes the dam, penstock, and powerhouse. [Emphasis added/ The Commission also acknowledges that Ordinance 92-018 Exhibit B contains the following concluding inventory note. Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. As noted by the Planning Division, under this strict interpretation, one could conclude that that the dam, penstock, and powerhouse of the Cline Falls Power Plant site are the only protected resources listed. However, the description of the Cline Falls Power Plant emphasizes the importance of the hydropower site and its relationship to the physical structures. The Commission finds the historic resource includes a dam, penstock, and powerhouse but it is not limited to those structures. The Goal 5 Inventory listing states the following. Cline Falls Power Plant: Early hydropower site on the Deschutes River, located off Highway 126 on White Rock Road west of Redmond. Site includes dam, penstock and powerhouse. 15-12-14 TL 901. [Emphasis added] The Commission concurs with the Planning Division's comments from the June 12, 2013 memorandum and incorporates those comments below. Page 7 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) The Planning Division noted that the supporting documentation found in Exhibit D of Ordinance 92-018 (Significant Sites, page D-3), recognizes the following. The Goal 5 rule requires that resource significance be determined with reference to quantity, quality and location of the resource. The BOCC found that these criteria are not equally applicable. Furthermore, the BOCC found that quality is the primary factor in determining historic resource significance. Quantity is relevant when reviewing a historic resource's uniqueness or rarity. The quality, quantity, and other important aspects of the Cline Falls Power Plant historic resource, are found in Ordinance 92-019 and the associated ESEE Analysis. The Cline Falls Power Plant ESEE Analysis recognized the following (Ordinance 92-019 Exhibit A, page 7): Quality: The dam, penstock, and powerhouse are arranged to take advantage of the twenty foot difference in elevation at the falls. As a result, the installation is a classic example of an early hydro -electric site, and one of the best examples of early industrial development in Deschutes County. [Emphasis added] Quantity: With the exception of the power dam within the City of Bend, the facility is the only example of an early hydro -electric plant in the County. It is the second oldest in the County. The arrangement of the dam, penstock, and powerhouse on site and to the falls provide the historical context for an early -hydroelectric site. Historically, they are independent on one another. Conflicting Use Determination and Analysis: Site alteration is the primary conflicting use. Demolition may be considered a secondary conflicting use. [Emphasis added] Economic: The site has been developed consistent with the economic use of the property. Alteration or demolition of the site may provide the opportunity for the installation of more cost efficient and/or greater power generating equipment. Alteration of the site for recreational activities may provide stimulus to the County's tourism economy. Nearby Cline Falls State Park and historic resources, such as Tetherow Crossing/House, could be packaged into a quality recreational opportunity, offering interpretation of natural and historic resources, picnicking and hiking activities. Demolition of the site would eliminate this economic consequence/opportunity. [Emphasis added/ Social: The site is part of the industrial and economic history of the County [Emphasis added] Page 8 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) Environmental: The site is within a Scenic Waterway. Alteration or demolition of the resource could result in minimum to extensive environmental consequences. These include, but not limited to, impacts to soils, vegetation, wildlife habitat, riparian zone and the visual environment. [Emphasis added/ Identification of site alteration as the primary conflicting use underscores the value of the entire property and its relationship to the structures and the falls. Conclusion: The site should be protected. The ESEE consequences should be balanced so as to allow the conflicting uses but in a limited way so as to protect the resource to an acceptable extent (3c). The site should be protected as per the Historic Preservation Ordinance. [Emphasis added./ The BOCC found that certain inventory sites have both conflicting Goal 5 resources and/or land uses and historic resources that are important relative to one another and that both the historic resource and the conflicting land uses should be limited in a manner to allow each to occur at and around the site. Based upon the site-specific ESEE analysis, decisions were made to provide for both the historic use and conflicting land uses, pursuant to site-specific conditions. Development of a program to meet the goal of protecting historic resources has taken shape through the individual ESEE decisions and the implementation of those ESEE decisions through the historic preservation ordinance found in Chapter 2.28, Historic Preservation, of the County Code. With respect to sites involving a structure and where the BOCC determined to protect both the historic resource and the conflicting resource, the BOCC found that the Historic Preservation Ordinance provides for a review process by which owners wishing to alter or demolish designated structures are required to have their plans reviewed by the Historic Landmarks Commission. IV. DECISION: Based on the testimony and written, evidence its the record, the Deschutes County Historic Landmarks Commission hereby declares that the entire site of the Cline Falls Power Plant is the protected historic resource based on the broader language in the ESEE analysis and the original intent to preserve the industrial and economic history of the County. Page 9 of 10 —DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) The Declaratory Ruling was approved on June 24, 2013 by the Deschutes County Historical Landmarks Commission. Members of the Commission: Horting-Jones, Leighty, Olsen, Schmidling, and Stenman 1. AYES (Leighty, Olsen, and Stenman) 2. NOES (None): 3. ABSENT (Horting-Jones and Schmidling): 4. ABSTAIN (None): July 2, 2013 (3) (0) (2) (0) t3roc Stenman, Chair - Date THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Dated this 2"a day of July, 2013 Mailed this 2"d day of July, 2013 Page 10 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION FILE NUMBER: DR -13-6 APPLICANT: Deschutes County, Community Development Department Post Office Box 6005 Bend, Oregon 97708 PROPERTY OWNER: Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 REQUEST: The applicant requests a declaratory ruling to interpret Ordinance 92-019 and associated documents regarding the Cline Falls Power Plant historic site. I. APPLICABLE CRITERIA: Title 22, Deschutes County Development Procedures Ordinance Chapter 22.40. Declaratory Ruling Section 22.40.010. Availability of Declaratory Ruling Section 22.40.020. Persons Who May Apply Section 22.40.030. Procedures Section 22.40.040. Effect of Declaratory Ruling Section 22.40.050. Interpretation Deschutes County Comprehensive Plan Chapter 2, Resource Management Section 2.11. Cultural and Historic Resources Title 2, Deschutes County Administration Ordinance Chapter 2.28. Historic Preservation and Historic Landmarks Commission Section 2.28.090. Exterior Alteration and New Building Restrictions Oregon Statewide Planning Goals II. BASIC FINDINGS: A. LOCATION: The subject property is located at 300 NW 74th Street, Redmond and is further identified on Deschutes County Assessor's Map 15-12-11D as Tax Lot 1100 together with Tax Lot 900 on Map 15-12-14A. B. LOT OF RECORD: Deschutes County has recognized the subject tax lots as one legal lot of record pursuant to County file number LR -92-10 as reconfigured through property line adjustment LL -01-102. C. ZONING: The subject property is zoned Exclusive Farm Use (EFUSC) and Flood Plain (FP). The property is within the Landscape Management (LM) and Airport Safety (AS) Combining zones and is designated a Historic Site (HS). D. LAND USE HISTORY: The Historic Landmarks Commission ("Commission") adopts the Planning Division's findings, which includes the following. Cultural and historic resources in rural Deschutes County were designated through Ordinance 92-019. The Cline Falls Power Plant is included in the Goal 5 Inventory of Cultural and Historic Resources of Deschutes County. The Economic, Social, Environmental, and Energy (ESEE) findings, incorporated by reference, provide a brief history of the Cline Falls Power Plant.' E. SITE DESCRIPTION: The Commission adopts the Planning Division's findings, incorporated by reference herein. F. PROPOSAL: The Commission adopts the Planning Division's findings, which is included here in brief. The applicant has submitted a request for a declaratory ruling to interpret Ordinance 92-019 and historical documents that relate to the designation of the Cline Falls Power Plant historic site. County records adopted in 1992 through Ordinance 92-019 contain inconsistencies in the description of the site and of those structures protected. The applicant requests an interpretation of what is the protected resource at the Cline Falls Power Plant, the entire site or specific structures. G. PROCEDURAL HISTORY: The application was submitted on March 21, 2013 and was accepted by the Planning Division as complete on April 19, 2013. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.178 would have expired on September 16, 2013. A public hearing on the application was held on May 6, 2013. At the hearing, the Commission received testimony and evidence, and left the written evidentiary record open through May 20, 2013. The applicant waived the right to submit final written arguments after the record closed to all other parties (see ORS 197.763). As of the date of this decision, July 2, 2013, there remain 76 days in the 150 -day period. H. PUBLIC AGENCY COMMENTS: The Commission adopts the Planning Division's findings, incorporated by reference herein. The Commission acknowledges specific arguments questioning the inconsistencies found in the County records for the Cline Falls Power Plant. However, these arguments are irrelevant because the Board of County Commissioners deemed them as historic resources through the two ordinances cited in this decision. Page 2 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) I. PUBLIC COMMENTS: The Commission adopts the Planning Division's findings, incorporated by reference herein, and adds oral and written testimony by the applicant, property owner, and lessee, and comments from interested parties that were received by the close of the written record on May 20, 2013 J. REVIEW PERIOD: The Commission adopts the Planning Division's findings, incorporated by reference herein. III. CONCLUSIONARY FINDINGS: TITLE 22, DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE A. Chapter 22.40. Declaratory Ruling 1. Section 22.40.010. Availability of Declaratory Ruling. A. Subject to the other provisions of DCC 22.40.010, there shall be available for the County's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and DCC Title 22 a process for: 1. Interpreting a provision of a comprehensive plan or ordinance (and other documents incorporated by reference) in which there is doubt or a dispute as to its meaning or application; FINDING: As noted in the Planning Division's findings, the applicant is requesting an interpretation of Ordinance No. 92-019 and associated documents (e.g. Ordinance No. 92-018). The predominant issue is the determination of what the Board of County Commissioners ("BOCC") actually designated in 1992 as the Cline Falls Power Plant historic site. B. A declaratory ruling shall be available only in instances involving a fact -specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment. FINDING: The Commission adopts the Planning Division's findings on this criterion and concurs the applicant's request is not an advisory opinion nor is it an amendment to the applicability of a legislative enactment. C. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final. FINDING: The Commission adopts the Planning Division's findings on this criterion. Page 3 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) D. The Planning Director may refuse to accept and the Hearings Officer may deny an application for a declaratory ruling if. 1. The Planning Director or Hearings Officer determines that the question presented can be decided in conjunction with approving or denying a pending land use action application or if in the Planning Director or Hearings Officer's judgment the requested determination should be made as part of a decision on an application for a quasi-judicial plan amendment or zone change or a land use permit not yet filed; or 2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district or circuit court in which the same issue necessarily will be decided as to the applicant and the applicant failed to file the request for a declaratory ruling within two weeks after being cited or served with a complaint. The Planning Director or Hearings Officer's determination to not accept or deny an application under DCC 22.40.010 shall be the County's final decision. FINDING: The Commission concurs with the Planning Director's determination that the question presented is appropriately decided under this procedure. 2. Section 22.40.020. Persons Who May Apply. A. DCC 22.08.010(B) notwithstanding, the following persons may initiate a declaratory ruling under DCC 22.40: 1. The owner of a property requesting a declaratory ruling relating to the use of the owner's property; 2. In cases where the request is to interpret a previously issued quasi-judicial plan amendment, zone change or land use permit, the holder of the permit; or 3. In all cases arising under DCC 22.40.010, the Planning Director. No other person shall be entitled to initiate a declaratory ruling. FINDING: The Commission adopts the Planning Division's findings on this criterion. B. A request for a declaratory ruling shall be initiated by filing an application with the planning division and, except for applications initiated by the Planning Director, shall be accompanied by such fees as have been set by the Planning Division. Each application for a declaratory ruling shall include the precise question on which a ruling is sought. The application shall set forth whatever facts are relevant and necessary for making the determination and such other information as may be required by the Planning Division. FINDING: The Commission adopts the Planning Division's findings on this criterion. Page 4 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) 3. Section 22.40.030. Procedures. Except as set forth in DCC 22.40 or in applicable provisions of a zoning ordinance, the procedures for making declaratory rulings shall be the same as set forth in DCC Title 22 for land use actions. Where the Planning Division is the applicant, the Planning Division shall bear the same burden that applicants generally bear in pursuing a land use action. FINDING: The Commission adopts the Planning Division's findings on this criterion and concurs the request is being processed according to Title 22. 4. Section 22.40.040. Effect of Declaratory Ruling. A. A declaratory ruling shall be conclusive on the subject of the ruling and bind the parties thereto as to the determination made. B. DCC 22.28.040 notwithstanding, and except as specifically allowed therein, parties to a declaratory ruling shall not be entitled to reapply for a declaratory ruling on the same question. C. Except when a declaratory ruling is made by the Board of County Commissioners, the ruling shall not constitute a policy of Deschutes County. FINDING: The Commission adopts the Planning Division's findings on this criterion. 5. Section 22.40.050. Interpretation. Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language. Interpretation shall be made only of language that is ambiguous either on its face or in its application. Any interpretation of a provision of the comprehensive plan or other land use ordinance shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. FINDING: The Commission agrees and adopts the Planning Division's findings that indicate that the requested interpretation of the comprehensive plan or zoning ordinance will not have the effect of amending the interpreted language. The requested interpretation is to clarify any ambiguous language of Ordinance 92-019 and supporting documents. TITLE 2, DESCHUTES COUNTY ADMINISTRATION ORDINANCE A. Chapter 2.28. Historic Preservation and Historic Landmarks Commission 1. Section 2.28.090. Exterior Alteration and New Building Restrictions. A. Except as provided in DCC 2.28.090(I), no person may demolish or alter any historic or cultural resource in such a manner as to affect its exterior appearance or integrity, nor may any new structure and/or building be Page 5 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) constructed in an historic district, unless a certificate of approval has been issued by the Landmarks Commission and the County. FINDING: The Commission adopts the Planning Division's findings on this criterion and acknowledges that a code enforcement complaint was filed alleging that the lessee, PacifiCorp, of the property violated the code by altering a historic site (see Code Enforcement File No. C13-18). Furthermore, the Commission accepts staff's confirmation, based on a site visit on February 12, 2013, that the switchyard, power poles, and power lines were removed from the site.2 As the Planning Division's findings indicated, DCC Section 2.28.090(A) states that no person may demolish or alter the exterior appearance or integrity of a historic resource without a certificate of approval by the Commission. DESCHUTES COUNTY COMPREHENSIVE PLAN A. Chapter 2. Resource Management 1. Section 2.11. Cultural and Historic Resources Background Historic resources are recognized by Statewide Planning Goal 5, Natural Resources, Scenic Views and Historic Areas and Open Spaces, and Oregon Administrative Rule (OAR) 660-023. The Statewide Goal and OAR recommend, but do not require, the County to inventory and protect historic and cultural sites. Historic Designations In 1979 the County inventoried potential historic and cultural sites in the Resource Element. The 1979 Plan included goals and policies for protection of historic resources as well as provisions that the County establish a Historical Landmarks Commission and adopt an ordinance to protect designated historic sites. On September 17, 1980 the Board of County Commissioners adopted Ordinance PL -21, which established a Historical Landmarks Commission and created a process to evaluate, designate and regulate historic structures. The Historic Landmarks Commission subsequently, and over time, evaluated proposed historic sites. The resulting inventory of historically designated sites can be found in Chapter 5. This inventory will be reviewed as part of the Goal 5 review as described in the Goal 5 section of this Plan. Starting in 1997, all historic and cultural designations have been initiated at the request of property owners through the Comprehensive Plan text amendment process. Future of Cultural and Historic Resources 2 A modern steel walkway and stair structure was also documented during the site visit. Page 6 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) Deschutes County supports the voluntary preservation of significant cultural and historical sites. Going forward there are a few issues regarding cultural and historical resources that need to be addressed.... Another concern is that the current County inventory is old and contains incomplete information on some of the sites.... FINDING: The Commission adopts the Planning Division's findings with the following amendments. The Commission acknowledges the Planning Division's findings that indicate that the County documented potential historic and cultural sites for the 1979 Resource Element of the County Comprehensive Plan. Through the adoption of Ordinance 92-019 in 1992, those sites were designated as historic resources recognized by Statewide Planning Goal 5. Cline Falls Power Plant is on the County's Goal 5 inventory as listed in Chapter 5, Supplemental Sections, of the Comprehensive Plan. The Commission recognizes that the designation of Cline Falls Power Plant is based on the findings provided in County File No. HS -90-99, the ESEE Analysis, and additional information. Based on its supporting documentation, the designation demonstrates that the entire site is designated a historic resource with three distinguishing assets: dam, penstock, and powerhouse. The Cline Falls Power Plant, as listed in Exhibit B of Ordinance 92-018, is a historic resource that is: [An] early hydropower site on the Deschutes River.... The site includes the dam, penstock, and powerhouse. [Emphasis added] The Commission also acknowledges that Ordinance 92-018 Exhibit B contains the following concluding inventory note. Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. As noted by the Planning Division, under this strict interpretation, one could conclude that that the dam, penstock, and powerhouse of the Cline Falls Power Plant site are the only protected resources listed. However, the description of the Cline Falls Power Plant emphasizes the importance of the hydropower site and its relationship to the physical structures. The Commission finds the historic resource includes a dam, penstock, and powerhouse but it is not limited to those structures. The Goal 5 Inventory listing states the following. Cline Falls Power Plant: Early hydropower site on the Deschutes River, located off Highway 126 on White Rock Road west of Redmond. Site includes dam, penstock and powerhouse. 15-12-14 TL 901. [Emphasis added] The Commission concurs with the Planning Division's comments from the June 12, 2013 memorandum and incorporates those comments below. Page 7 of 10 —DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) The Planning Division noted that the supporting documentation found in Exhibit D of Ordinance 92-018 (Significant Sites, page D-3), recognizes the following. The Goal 5 rule requires that resource significance be determined with reference to quantity, quality and location of the resource. The BOCC found that these criteria are not equally applicable. Furthermore, the BOCC found that quality is the primary factor in determining historic resource significance. Quantity is relevant when reviewing a historic resource's uniqueness or rarity. The quality, quantity, and other important aspects of the Cline Falls Power Plant historic resource, are found in Ordinance 92-019 and the associated ESEE Analysis. The Cline Falls Power Plant ESEE Analysis recognized the following (Ordinance 92-019 Exhibit A, page 7): Quality: The dam, penstock, and powerhouse are arranged to take advantage of the twenty foot difference in elevation at the falls. As a result, the installation is a classic example of an early hydro -electric site, and one of the best examples of early industrial development in Deschutes County. [Emphasis added] Quantity: With the exception of the power dam within the City of Bend, the facility is the only example of an early hydro -electric plant in the County. It is the second oldest in the County. The arrangement of the dam, penstock, and powerhouse on site and to the falls provide the historical context for an early -hydroelectric site. Historically, they are independent on one another. Conflicting Use Determination and Analysis: Site alteration is the primary conflicting use. Demolition may be considered a secondary conflicting use. [Emphasis added] Economic: The site has been developed consistent with the economic use of the property. Alteration or demolition of the site may provide the opportunity for the installation of more cost efficient and/or greater power generating equipment. Alteration of the site for recreational activities may provide stimulus to the County's tourism economy. Nearby Cline Falls State Park and historic resources, such as Tetherow Crossing/House, could be packaged into a quality recreational opportunity, offering interpretation of natural and historic resources, picnicking and hiking activities. Demolition of the site would eliminate this economic consequence/opportunity. [Emphasis added) Social: The site is part of the industrial and economic history of the County [Emphasis added] Page 8 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) Environmental:: The site is within a Scenic Waterway. Alteration or demolition of the resource could result in minimum to extensive environmental consequences. These include, but not limited to, impacts to soils, vegetation, wildlife habitat, riparian zone and the visual environment. [Emphasis added/ Identification of site alteration as the primary conflicting use underscores the value of the entire property and its relationship to the structures and the falls. Conclusion: The site should be protected. The ESEE consequences should be balanced so as to allow the conflicting uses but in a limited way so as to protect the resource to an acceptable extent (3c). The site should be protected as per the Historic Preservation Ordinance. [Emphasis added) The BOCC found that certain inventory sites have both conflicting Goal 5 resources and/or land uses and historic resources that are important relative to one another and that both the historic resource and the conflicting land uses should be limited in a manner to allow each to occur at and around the site. Based upon the site-specific ESEE analysis, decisions were made to provide for both the historic use and conflicting land uses, pursuant to site-specific conditions. Development of a program to meet the goal of protecting historic resources has taken shape through the individual ESEE decisions and the implementation of those ESEE decisions through the historic preservation ordinance found in Chapter 2.28, Historic Preservation, of the County Code. With respect to sites involving a structure and where the BOCC determined to protect both the historic resource and the conflicting resource, the BOCC found that the Historic Preservation Ordinance provides for a review process by which owners wishing to alter or demolish designated structures are required to have their plans reviewed by the Historic Landmarks Commission. IV. DECISION: Based on the testimony and written evidence in the record, the Deschutes County Historic Landmarks Commission hereby declares that the entire site of the Cline Falls Power Plant is the protected historic resource based on the broader language in the ESEE analysis and the original intent to preserve the industrial and economic history of the County. Page 9 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) The Declaratory Ruling was approved on June 24, 2013 by the Deschutes County Historical Landmarks Commission. Members of the Commission: Horting-Jones, Leighty, Olsen, Schmidling, and Stenman 1. AYES (Leighty, Olsen, and Stenman) 2. NOES (None): 3. ABSENT (Horting-Jones and Schmidling): 4. ABSTAIN (None): July 2, 2013 (3) (0) (2) (0) Broc Stenman, Chair Date THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Dated this 2nd day of July, 2013 Mailed this 211d day of July, 2013 Page 10 of 10 — DECISION OF DESCHUTES COUNTY HISTORIC LANDMARKS COMMISSION in DR -13-6 (Deschutes County CDD) Community Development Department Planning Division Building Safety Division Environmental Soils Division P O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www,co,deschutes.or,us/cdd/ MEMORANDUM DATE: July 30, 2013 TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner RE: PacifiCorp Appeal / Historic Landmarks Commission Declaratory Ruling / Cline Falls Power Plant (File Nos. DR -13-6 and A-13-3). Before the Board of County Commissioners (Board) is an appeal filed by PacifiCorp, and represented by attorney, Jeffrey Lovinger. The appeal is submitted in response to a Deschutes County Historic Landmarks Commission (HLC) declaratory ruling that the Cline Falls Power Plant historic designation includes the entire site, not just the dam, penstock, and powerhouse. The appellant requests the Board formally reconsider the decision. BACKGROUND The subject property, tax lot 1100 (Assessor's tax map 15-12-11 D) together with tax lot 900 (tax map 15-12-14A), is approximately 8.10 acres, located at 300 NW 74th Street west of Redmond. The property is owned by Central Oregon Irrigation District (COID). In February 2013, COID filed a code enforcemnt complaint that the lessee, PacifiCorp, violated Deschutes County Code (DCC) by altering a historic site (Code Enforcement File: C13-18). Since there were differing opinions about what constituted the historic resource at the Cline Falls Power Plant site, the Community Development Director requested that the HLC interpret the code for clarity and guidance (File No. DR -13-6). The HLC issued a decision on July 2, 2013 finding that the entire Cline Falls Power Plant site is a protected historic resource. Ordinance Nos. 92-018 and 92-019 designated cultural and historic resources in rural Deschutes County. Included in the Statewide Planning Goal 5 Inventory of Cultural and Historic Resources is the Cline Falls Power Plant. The HLC based their decision on their interpretation of Ordinance Nos. 92-018 and 92-019.1 The predominant issue is whether the Board, in 1992, 1 The following is noted in Exhibit B of Ordinance 92-019. Goal 5 is met through the amendment of the comprehensive plan by the adoption of the inventory of historic sites (Ordinance 92-018) and the site-specific ESEE [Economic, Social, Environmental, and Energy] decisions (Ordinance 92-019). Quality Services Performed with Pride designated just the specific structures of the Cline Falls Power Plant (dam, penstock, and powerhouse) or the entire site.2 Since the basis for this appeal is an interpretation of DCC and policy, staff recommends the Board hear this appeal. However, whether to hear the appeal de novo review, on the record, or limit the issues on appeal to one or more specific issues raised on appeal is at the Board's discretion. Attached is a copy of the HLC decision and the Notice of Appeal. The appellant requests an "on the record review" by the Board. Attachments 1. HLC decision (File no. DR -13-6) 2. Notice of Intent to Appeal (File no. A-13-3) 2 In PacifiCorp's Notice of Intent to Appeal and other documents in the record, the Board will see reference to the power plant's switchyard and standalone staircase. Based on DCC 2.28.020, switchyard and staircase are considered "structures." Therefore, if the entire site is ultimately deemed a protected historic resource, alteration or removal of those structures is subject to review by the HLC. File No.: A-13-3 (DR -13-6) Page 2 of 2