HomeMy WebLinkAboutOrder 038 - Review of Admin Dec - Pilot Butte CanalDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of December 15, 2014
Please see direcdons for compledng this document on the next page.
DATE: December 9, 2014
FROM: Matthew Martin Department CDD Phone # 541-330-4620
TITLE OF AGENDA ITEM:
Consideration of Order No. 2014-038 Initiating Review of Administrative Decision in FIle No. 247-14
000373-HS.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
The Pilot Butte Canal Preservation Alliance submitted a request for a Comprehensive Plan amendment
to designate an approximately one-mile segment of the Pilot Butte Canal as a Goal 5 historic resource
in the SR 2 Y2 zone. Upon review of the submittal, a threshold issue emerged regarding the timing of
the application filing as it relates to another pending application affecting the subject properties. In
addition, there is a second procedural issue relating to ownership of the canal. Staff has issued an
administrative decision rejecting the request.
Staff requests the Board call up the decision in order to interpret the timing to obtain deference from
the Land Use Board of Appeals (LUBA) in the event the decision is appealed. The ownership issue is
important to decide at this point because, while not necessarily a threshold issue, it may be dispositive
of whether or not the County can adopt the proposed plan amendment. Thus, it will assist the County in
deciding on whether to expend resources in proceeding with the application. Because the ownership
issue relates to the interpretation of state law, it will not be afforded deference on appeal.
FISCAL IMPLICATIONS:
The cost of a hearing before the Board since no appeal fee will be paid.
RECOMMENDATION & ACTION REQUESTED:
MOTION: Signature of Order No. 2014+038
ATTENDANCE: Matthew Martin and Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Matthew Martin, CDD
I
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.usjcddj
MEMORANDUM
DATE: December 9,2014
TO: Board of County Commissioners
FROM: Matthew Martin, Associate Planner
RE: Board initiation of review of the administrative decision for the request to
desjgnate a segment of the Pilot Butte Canal as a Goal 5 historic resource in the
County Comprehensive Plan (File No. 247-14-000373-HS)
The Pilot Butte Canal Preservation Alliance submitted a request for a Comprehensive Plan
amendment to designate an approximately one-mile segment of the Pilot Butte Canal as a Goal
5 historic resource in the SR 2 Y2 zone. Upon review of the submittal, a threshold issue
emerged under DCC 2.2B.060(A)(2) regarding the timing of the application filing as it relates to
another pending application affecting the subject properties. Staff has issued an administrative
decision rejecting the request (see attached). Staff recommends the BOCC call up the decision
for review in order to obtain deference from the Land Use Board of Appeals (LUBA) in the event
the decision is appealed.
In addition, there is a second procedural issue relating to ownership of the canal that involves
an interpretation of ORS 197.772 and OAR 660-023-0200(5). Because the Board will be
interpreting state law, the Board's decision will not be afforded deference on appeal. Staff
recommends the Board call up this decision anyway in order that a definitive interpretation may
be obtained should this be appealed. Receiving that interpretation will assist the County in
determining whether it can proceed with the application.
Attachment:
Administrative Decision for File No. 241-14-000373-HS
Quality Services Performed with Pride
----------------
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Initiating Review of Administrative *
Decision in File No. 247-14-003 73-HS. ORDER NO. 2014-038 *
WHEREAS, on December 9, 2014, staff issued an Administrative Decision on Application No. 347-14
00373-HS; and
WHEREAS, Section 22.28.050 of the Deschutes County Code allows the Deschutes County Board of
County Commissioners ("Board") to initiate review of any administrative action within 12 days of the date of
mailing of the final written decision of the Planning Director; and
WHEREAS, the Board has given due consideration as to whether to initiate review of this application;
now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
The Board hereby initiates review of application 247-14-000373-HS pursuant to Title
22 of the Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The review shall be heard de novo on the issues of interpretation of DCC 2.28.020
"Property Owner" and the applicability ofDCC 2.28.060(A)(2).
Staff shall set a hearing date and cause notice to be given to all persons or parties
entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Dated this of ,2014 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
)
J
TAMMY BANEY, Chair f
1
ANTHONY DEBONE, Vice Chair
ATTEST:
Recording Secretary ALAN UNGER, Commissioner
Page 1 OF 1 -ORDER NO. 2014-038, ___________,2014
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FINDINGS AND DECISION
FILE NUMBER: 247-14-000373-HS
APPLICANT: Pilot Butte Canal Preservation Alliance
20980 Country View Way
Bend, OR 97701
APPLICANT’S ATTORNEY: Bruce White
P.O. Box 1298
Bend, OR 97709
REQUEST: A Comprehensive Plan Amendment to designate a segment of
the Pilot Butte Canal as a Goal 5 historic resource.
STAFF CONTACT: Matthew Martin AICP, Associate Planner
I. APPLICABLE CRITERIA:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
II. BASIC FINDINGS:
A. LOCATION: The subject properties (32 total) are located northeast of the City of Bend
identified as follows:
Tax Map 17-12-15AA Lots 300, 600, 700, 702, 703, 705
Tax Map 17-12-15AC Lots 300, 400, 600, 700, 800
Tax Map 17-12-15AD Lots 105, 106, 107, 108, 109, 110, 111, 200, 400, 500, 600, 900
Tax Map 17-12-15BD Lots 1300, 1400, 1500
Tax Map 17-12-15CA Lots 200, 300
Tax Map 17-12-15DB Lots 100, 600, 700, 800
B. ZONING: The subject properties are zoned Suburban Low Density Residential (SR 2½).
C. PROPOSAL: The applicant has submitted a request for a Comprehensive Plan
amendment to designate an approximately one-mile segment of the Pilot Butte Canal
as a Goal 5 historic resource in the SR 2½ Zone. Upon review of the submittal, a
247-14-000373-HS Page 2
threshold issue emerged regarding the timing of the application filing as it relates to
another pending application affecting the subject properties. In addition, there is a second
procedural issue relating to ownership of the canal. Since this involves interpreting these
two critical aspects of the application and process, staff is issuing an administrative
decision. Staff notes that the substantive merits of the request to designate the canal as a
historic resource are not addressed by this decision.
III. CONCLUSIONARY FINDINGS:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
A. 2.28.020. Definitions.
"Property Owner" means the owner of record or the contract purchaser and does not
include a person or organization that holds a security interest.
FINDING: An easement runs along the length of Pilot Butte Canal. As it pertains to the
applicant’s proposal, the easement is located on 32 private properties. The applicant argues
Central Oregon Irrigation District (COID), the operator of the facility and easement holder, does
not have an ownership interest, and therefore COID’s consent is not needed for the segment to
be designated as a historic resource.
In a previous land use decision, A-10-2(NUV-09-1), a Deschutes County Hearings Officer
addressed a similar easement and landowner relationship. The Hearings Officer found the
holder of an easement across private property is an “owner of record” of an interest in the
property, and therefore is a “property owner” as defined in DCC 22.08.010(A). 1 Based on this
analysis, staff finds that COID, as the easement holder for the Pilot Butte Canal, is an owner of
record along with the underlying real property owners.
The issue with this application, however, relates to the language in OAR 660-023-0200(5),
which says:
“Local governments shall allow owners of inventoried historic resources to refuse historic
resource designation at any time prior to adoption of the designation and shall not include a site
on a list of significant historic resources if the owner of the property objects to its designation.”
The previous finding of the Hearings Officer’s decision is applicable to the language in the OAR
that allows the owner of the resource to refuse designation. Therefore, because COID is an
easement holder, COID is an owner for purposes of the OAR as well and has a right to refuse
the historic designation of its canal. COID refused such designation in its letter dated
November 14, 2014. As a result, the County cannot designate the canal as a historic resource
at this time.
1 DCC 22.08.010(A) Property Owner. For the purposes of DCC 22.08.010, the term "property owner" shall mean the
owner of record or the contract purchaser and does not include a person or organization that holds a security
interest.
247-14-000373-HS Page 3
B. Section 2.28.060. Procedures.
A. Historical Building or Site-Designation Procedure.
…
2. Any request for historical or cultural designation must be filed with
the County planning division before the date of application for any
building permit, or any other application or permit which might be
affected by such historical designation.
FINDING: COID submitted a Text Amendment application, File TA-13-4, on December 23, 2013. It
is currently under review by Deschutes County. TA-13-4 proposes:
“…a text amendment to Deschutes County Code Chapter 19.20 Suburban Low Density
Residential Zone – SR 2½ to allow the operation, maintenance, and piping of existing irrigation
systems as an outright use within the zone…”
TA-13-14 proposes, as an outright permitted use, the ability to pipe approximately 4,500 feet of the
Pilot Butte Canal, including segments that relate to the applicant’s recent request for a Goal 5
historic designation.
The applicant submitted application 247-14-000373-HS on November 3, 2014. Staff interprets
DCC 2.28.060(A)(2) and “any other application” to include TA-13-4 since it directly relates to this
segment of canal located in the SR 2½ Zone. Staff finds the applicant’s request to designate a
segment of the Pilot Butte Canal as a Goal 5 historic resource cannot be filed until a decision is
rendered for TA 13-4.
IV. CONCLUSION AND RECOMMENDATION:
Based on the information provided herein, staff finds:
1. The request to designate a segment of the Pilot Butte Canal as a Goal 5 historic
resource cannot be filed until a decision is rendered for TA 13-4; and
2. The underlying real property owners and COID, as an easement holder, are both owners
of record as it relates to Applicant’s proposal to designate a segment of the Pilot Butte
Canal as a Goal 5 historic resource.
DESCHUTES COUNTY PLANNING DIVISION
Written by: Matt Martin, Associate Planner
Reviewed by: Peter Gutowsky, Planning Manager
Dated this 9th day of December, 2014 Mailed this 9th day of December, 2014