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HomeMy WebLinkAboutDoc 003 - Cline Falls Power Plant DecisionDeschutes 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 January 29, 2014 DATE: January 21,2014 FROM: Cynthia Smidt Community Development Department 317-3150 TITLE OF AGENDA ITEM: Consideration of Adoption of Document 2014-003 determining that the protected historic resource of the Cline Falls Power Plant is defined as the dam, penstock, and powerhouse. File Numbers A-13-3 and DR-13-6. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: On October 21, 2013, the Board held a de novo public hearing regarding an appeal filed by PacifiCorp in response to the Historic Landmarks Commission (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. The HLC issued a decision on July 2,2013 finding that the entire Cline Falls Power Plant site is a protected historic resource. The review of this application is in response to the Board's Order No. 2013-037, accepting review of this appeal. The Board conducted a hearing and deliberated on the matter, rendering an oral decision of the application. The Board's verbal direction to staff was to find that the historic resource includes only the structures listed in the inventory in Ordinance 92-018. The document is staffs recommendation for the written Board decision. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Motion: Approval of Document 2013-229. ATTENDANCE: Cynthia Smidt, Nick Lelack DISTRIBUTION OF DOCUMENTS: Cynthia Smidt :tJ:EWED L EGAL COUNSEL For Recording Stamp Only DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBERS: DR-13-6/ A-13-3 APPELLANT: PacifiCorp Energy 825 NE Multnomah, Suite 1500 Portland, Oregon 97232 APPELLANT REPRESENTATIVE: Jeffrey S. Lovinger Lovinger Kaufman LLP 825 NE Multnomah, Suite 925 Portland, Oregon 97232-2150 APPLICANT: Deschutes County Community Development Department Director Post Office Box 6005 Bend, Oregon 97708 PROPERTY OWNER: Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 PROPERTY OWNER REPRESENT ATIVE: Elizabeth Dickson, Attorney Hurley Re, PC 747 SW Mill View Way Bend, Oregon 97702 REQUEST: The applicant requests a declaratory ruling to interpret the Cultural and Historical Resources GoalS Inventory listing of Cline Falls Pow er Plant and associated historical documents . I. APPLICABLE STANDARDS AND CRITERIA: Title 22, Deschutes County Development Procedures Ordinance A. Chapter 22.40. Declaratory Ruling 1. Section 22.40.01 O. Availability of Declaratory Ruling 2. Section 22.40.020. Persons Who May Apply 3. Section 22.40.030. Procedures Page I of II -DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) -Deschutes County Document No. 2014-003 20 1J.-O ;J Page 2 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 4. Section 22.40.040. Effect of Declaratory Ruling 5. Section 22.40.050. Interpretation 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 Deschutes County Comprehensive Plan A. Chapter 2. Resource Management 1. Section 2.11. Cultural and Historic Resources Oregon Statewide Planning Goals II. FINDINGS OF FACT: A. LOCATION: The subject property is located at 300 NW 74 th 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. SITE DESCRIPTION : The Board of County Commissioners (Board) adopts the Planning Division’s findings in the Staff Report dated April 26, 2013, incorporated by reference herein. E. PROPOSAL: The applicant submitted a request for a declaratory ruling to interpret the Cultural and Historical Resources Goal 5 Inventory listing of Cline Falls Power Plant. The precise question on which this ruling sought was to interpret Ordinance 92-019 and the associated documents that relate to the designation of the Cline Falls Power Plant historic site (e.g. Ordinance No. 92-018). Further stated in the Staff Report dated April 26, 2013, the applicant requested interpretation of what the protected resource is at the Cline Falls Power Plant, the entire site or specific structures. The appellant appealed the Historic Landmarks Commission (HLC) decision that found the entire site to be the protected resource and requested that the Board review the decision. F. PUBLIC AGENCY COMMENTS: The Board adopts the Planning Division’s findings in the Staff Report dated April 26, 2013, incorporated by reference herein. G. PUBLIC COMMENTS: The Board adopts the Planning Division’s findings in the Staff Report dated April 26, 2013, incorporated by reference herein, and adds oral and written Page 3 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 testimony by the applicants and comments from interested parties that were received by the close of the written record on November 19, 2013. H. PROCEDURAL HISTORY: A code enforcement complaint, file C13-18, was filed in February 2013 claiming the lessee of the property, PacifiCorp, altered a historic site and thus violated Deschutes County Code (DCC). Based on ambiguous language and differing opinions regarding the Cline Falls Power Plant historic resource, the Community Development (CDD) Director requested the HLC to interpret the Comprehensive Plan listing of the “Cline Falls Power Plant” as a significant historic resource. The application for DR-13-6 was submitted by the Planning Division to the Planning Division on March 21, 2013 and accepted as complete on April 19, 2013. A hearing was held before the HLC on May 6, 2013, and a decision issued on July 2, 2013. The HLC found that the entire Cline Falls Power Plant site is a protected historic resource. PacifiCorp appealed the decision on July 15, 2013. On August 7, 2013, the Board adopted Order No. 2013-037 accepting de novo review of such appeal, and held a public hearing on the matter on October 21, 2013. The written record was closed on November 19, 2013. On two separate occasions, the Board conducted site visits to the subject property. 1 The Board deliberated the matter on December 16, 2013, and rendered an oral decision indicating that the Cline Falls Power Plant historic resource includes only those structures listed on the Goal 5 Inventory (dam, penstock, and powerhouse). Furthermore, the Board found that the flume aspect of the power plant is part of the penstock and thus protected as such. The 150-day deadline in ORS 215.427 has been extended by the applicant to end on January 31, 2014. III. CONCLUSIONS OF LAW: 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: The Board adopts the HLC’s finding on this criterion. B. A declaratory ruling shall be available only in instances involving a fact-specific controversy and to resolve and determine the particular rights and 1 Commission DeBone conducted a site visit on August 22, 2013. Commissions Unger and Baney conducted a site visit on October 29, 2013. These site visits were documented in a Staff Memorandum dated November 5, 2013. Page 4 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 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 Board adopts the HLC’s findings on this criterion. 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: Regarding this criterion, the Board adopts the Planning Division’s findings in the Staff Report dated April 26, 2013. 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 Board agrees with the Planning Director’s determination that the question presented is appropriately decided under this procedure as indicated in the Staff Report dated April 26, 2013. 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. Page 5 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 FINDING: Deschutes County Planning Director, Nick Lelack, initiated the proposed declaratory ruling. 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 County Planning Director initiated the requested declaratory ruling on March 21, 2013. An accompanied fee was not required. The precise question, on which this ruling sought, was to interpret Ordinance 92-019 and the associated documents such as Ordinance 92-018 that relate to the designation of the Cline Falls Power Plant historic site. In particular, the Planning Director requested an interpretation of what is the protected resource at the Cline Falls Power Plant, the entire site or specific structures. 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 Board adopts the Planning Division’s findings in the Staff Report dated April 26, 2013. 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 declaratory ruling will be conclusive on the subject of the ruling, which is the interpretation of County Ordinance 92-019 and associated documents as it relates to Cline Falls Power Plant as a designated historic site. This is the first time this question has been before the County decision makers. Thus, the applicant is not attempting to reapply regarding a question previously decided. Reapplication after this decision is not Page 6 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 allowed. The ruling will be made by the Board of County Commissioners and thus will constitute a policy of Deschutes County. 5. Section 22.40.050. Interpretation. Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language. Interpretation shall be made only of language that is ambiguous either on its face or in its application. Any interpretation of a provision of the comprehensive plan or other land use ordinance shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. FINDING: The Board finds that the requested interpretation of the comprehensive plan will not have the effect of amending the interpreted language. The requested interpretation is to clarify any ambiguous language related to the Goal 5 Inventory of Cultural and Historical Resources, County Comprehensive Plan, County Ordinances 92-019 and 92-018, and any supporting documents. Title 2 Deschutes County Administrative 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 constructed in an historic district, unless a certificate of approval has been issued by the Landmarks Commission and the County. FINDING: The Board acknowledges the record below including the code enforcement case number C13-18, alleging that the lessee, PacifiCorp, violated the code by altering the Cline Falls Power Plant historic site. As verified during site visits by the Board and County staff, PacifiCorp removed electric generating equipment in December 2012, which included the removal of the switchyard, power poles, and power lines from the site, in addition to equipment inside the powerhouse. Deschutes County Comprehensive Plan A. Chapter 2. Resource Management 1. Section 2.11. Cultural and Historic Resources Background Page 7 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 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. 2 The Statewide Goal and OAR recommend, but do not require, the County to inventory and protect historic and cultural sites. Historic Designations In 1979 the County inventoried potential historic and cultural sites in the Resource Element. The 1979 Plan included goals and policies for protection of historic resources as well as provisions that the County establish a Historical Landmarks Commission and adopt an ordinance to protect designated historic sites. On September 17, 1980 the Board of County Commissioners adopted Ordinance PL- 21, which established a Historical Landmarks Commission and created a process to evaluate, designate and regulate historic structures. The Historic Landmarks Commission subsequently, and over time, evaluated proposed historic sites. The resulting inventory of historically designated sites can be found in Chapter 5. This inventory will be reviewed as part of the Goal 5 review as described in the Goal 5 section of this Plan. Starting in 1997, all historic and cultural designations have been initiated at the request of property owners through the Comprehensive Plan text amendment process. … Future of Cultural and Historic Resources Deschutes County supports the voluntary preservation of significant cultural and historical sites. Going forward there are a few issues regarding cultural and historical resources that need to be addressed. … Another concern is that the current County inventory is old and contains incomplete information on some of the sites. … FINDING: The Board adopts in part the HLC’s findings with the following summary and amendments. The Board acknowledges that the County inventoried, analyzed and documented various significant cultural and historic resources for the 1979 Resource Element of the County Comprehensive Plan.3 Through the adoption of County Ordinance 92-018, the County designated an inventory of significant historic resource sites, which included the Cline Falls Power Plant. The Goal 5 Inventory listing for Cline Falls Power Plant states the following. 2 The citation of OAR 660-023 is a direct reference from the County Comprehensive Plan. For clarification, however, staff, the Commission, and the Board reviewed the 1992 controlling regulations of OAR 660-016. 3 Each site was documented in an Economic, Social, Environmental, and Energy (ESEE) Analysis adopted in Ordinance 92-019. Page 8 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 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. 4 The HLC believed the description in Ordinance 92-019 of the Cline Falls Power Plant emphasized the importance of the hydropower site and its relationship to all physical structures on the site. Therefore, in the HLC found that the inventory description in Ordinance 92-018 was meant to include the entire site in the inventory. The Board disagrees. As with other historic resources listed on the inventory, however, the Board finds that the plain language of the inventory description in Ordinance 92-018 specifically defines what the protected resource (site) is at the Cline Falls Power Plant. Thus, the Board finds that the historic resource site is defined as “the dam, penstock and powerhouse.” The Board believes the designation of the power plant cannot be complete without considering the relationship between the noted structures. The arrangement of the dam, penstock, and powerhouse on the property provide the historical context for an early- hydroelectric site. The structures are historically dependent on one another. At the October 21, 2013 public hearing before the Board, Central Oregon Irrigation District (COID) argued that a flume is a penstock, by definition. 5 According to Merriam-Webster Dictionary, a penstock is “(1) a sluice or gate for regulating a flow (as of water) and (2) a conduit or pipe for conducting water.” 6 The Board concurs with COID’s definition. A penstock, complete with two different yet connected channels, one of which referred to as the open flume and another as enclosed pipe, is a conduit that conveys water to a power plant from a dam. Therefore, the Board finds that the flume is part of the penstock and, thus, provides a complete historic resource from the dam, through the penstock, and ending with the powerhouse. The inventory listing concluded, as noted in Exhibit B of Ordinance 92-018, with the following statement. Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. The Board finds that the concluding note simply means that whatever structures or, in some cases, the entire site, are listed in the description on the inventory are what are to be afforded protection. Through Ordinance 92-019, the County adopted the ESEE analysis for each significant site on the inventory. The Board finds that the ESEE analysis for each site is not 4 The Board recognizes that the property description noted here has changed since the adoption of Ordinance 92-018 in 1992. 5 COID resubmitted a May 20, 2013 document that provides the definition noted above. 6 "Penstock." Merriam-Webster.com . Merriam-Webster, n.d. Web. 9 Jan. 2014. <http://www.merriam- webster.com/dictionary/penstock>. Page 9 of 11 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in DR-13-6 / A-13-3 (Cline Falls Power Plant) – Deschutes County Document No. 2014-003 intended to add to the inventory adopted through Ordinance 92-018 but rather provide a legislative history with a description and explanation as to why these particular structures or sites were significant. Furthermore, the inventory defines the protected resource site. In this case, the Cline Falls Power Plant historic resource is the dam, penstock, and powerhouse. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Deschutes County Board of Commissioners hereby declares that the dam, penstock, and powerhouse of the Cline Falls Power Plant is the protected historic resource based on the plain language of the Statewide Goal 5 Inventory of Cultural and Historic Resources for Deschutes County. Dated this _______ of ___________, 2014 BOARD OF COUNTY COMMISSIONERS ______________________________________ TAMMY BANEY, Chair ______________________________________ ANTHONY DEBONE, Vice Chair ATTEST: ______________________________________ Recording Secretary ______________________________________ ALAN UNGER, Commissioner Mailed this ____day of ______________, 2014. THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL.