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HomeMy WebLinkAboutHearing - Tumalo Irrig District 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 November 2, 2009 Please see directions for completing this document on the next page. DATE: October 19, 2009 FROM: Kristen Maze Community Development Department 383 -6701 TITLE OF AGENDA ITEM: A de novo public hearing for an appeal (A -07 -7) by Tumalo Irrigation District of the Historic Landmarks decision denying their landscape plan surrounding a fence around the fish ladder and historic headgates at the Shevlin Park diverson dam. File No. A -07 -7 (HLA- 05 -1). PUBLIC HEARING ON THIS DATE? YES BACKGROUND AND POLICY IMPLICATIONS: Before the Board is an appeal filed by the applicant, Tumalo Irrigation District, who is represented by attorney, Ms. Sharon Smith. The appeal is in response to the Historic Landmarks decision, file no. HLA -05 -1, denying the applicant's landscape plan and fence. The applicant's appeal requests the Beard reverse the Historic Landmark Commission's decision. See attached staff memo for further background information. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: The Board to hold a public hearing and consider the appeal of the Historic Landmarks decision (HI A- 05-1) for denial of the Tumalo Irrigation District's landscape plan and fence surrounding the fish ladder and headgate at the Shevlin Park diversion dam and make a decision based on the written record attached and oral testimony to be presented. ATTENDANCE: Kristen Maze DISTRIBUTION OF DOCUMENTS: Kristen Maze , CDD Sharon Smith Bryant Lovlien & Jarvis P.O.Box 1151, Bend, OR 97709 Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 9770 -1925 (541)388 -6575 FAX(541)38f -1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Kristen Maze, Associate Planner Date: October 12, 2009 Subject: Board consideration for an appeal (A -07 -7) of the Historic Landmark Commission Decision (HLA -05 -1) denying the landscaping and fencing constructed by Tumalo Irrigation District around the head gate and fish ladder at the historic Shevlin Park Dam. BACKGROUND On March 4, 2005, the Deschutes County Historic Landmarks Commission made their original decision on the Tumalo Irrigation District application to install a fish screen and fish ladder over the Shevlin Park diversion dam and replace the existing historic headgate and install a fence around the site. This application was approved with the exception of the fence. A code enforcement complaint regarding the fence caused the landmarks commission to issue a second decision on June 15, 2007 to deny the fence. A timely appeal was filed on June 2, 2007. The Board of County Commissioners (Board) agreed to here this appeal by Order No. 2007 -145. This appeal was placed on hold in an attempt to resolve the matter with the Landmarks Commission. Following these actions this appeal has had considerable history. Briefly, there have been a few staff changes as the historic landmarks representative from Pat Kliewer to Dee Van Donselaar to the current representative myself, Kristen Maze. On December 8, 2008, the Landmarks Commission held a public hearing to once again review the landscaping plan. This attempt was denied by Commission and the applicant believes there does not appear to be a resolution. Therefore, Tumalo Irrigation District is seeking to reactivate the appeal in a de novo review by the Board. Attached is a letter dated August 20, 2009, from the applicant's representative Sharon Smith with Bryant Lovlien & Jarvis that summarizes the history of the project and requests that the Board reverse HLA -05 -1 and dismiss the enforcement action C -06 -170. Attachments: 1. August 20, 2009 letter with Burden of Proof and Landscape Plans 2. HLA -05 -1 Tumalo Irrigation District Decision 3. June 15, 2007 HLC Decision Quality Services Performed with Pride BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW ESTABLISHED 1915 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382 -4331 Fax: (541) 389 -3386 W W W.BLJLAWYERS.COM 'AUG 2 4 2009 August 20, 2009 Via: E -mail and Regular Mail Deschutes County Commissioners c/o Kristen Maze Deschutes County Community Development Dept. 117 NW Lafayette Avenue Bend, OR 97701 Kristen Maze @co.deschutes.or.us Re: HLA 05 -1 Tumalo Irrigation District Dear Commissioners: The purpose of this letter is to request the scheduling the appeal of HLA 05 -1. You agreed to hear this appeal in Order No. 2007 -145. The appeal was placed on hold in an attempt to resolve the matter with the Deschutes County Historical Landmarks Commission (the "Commission "). The Applicant proceeded to develop a landscape plan for screening the fence as had been originally recommended by the staff planner: "RECOMMENDATION: The Tumalo Irrigation District will coordinate with the Bend Metro Park and Recreation District to prepare a landscaping plan that will screen the fence and revegetate [sic] the site. The plan will consist of native plants indigenous to the site, including grasses, shrubs and trees that do not need irrigation. The plan will be submitted to the Landmarks Commission for public comment, review and decision. Implementation of the plan will be completed within six months of approval." The Applicant's representatives then met with Pat Kliewer to discuss her recommendation for landscaping. TID hired a professional landscape architect to prepare a landscape plan. Based on feedback from Ms. Kliewer, that plan was subsequently revised. After we provided revised information to Ms. Kliewer, she was replaced by another staff member, Dee Van Donselaar. We met with Ms. Van Donselaar to review the history of the file and the attended a work session with the Commission to show the landscape proposal. A commissioner requested that we provide a site plan that showed more of the surrounding area. The Applicant requested their engineers to overlay the landscape plan with an aerial photo which is attached. That landscape plan was provided to Ms. Van Donselaar. August 20, 2009 Page 2 of 5 Subsequently, Ms. Van Donselaar left the liaison position and was replaced by Kristen Maze. We met with Ms. Maze to provide her the history and requested that she schedule the public hearing for the Commission to consider the landscape plan. The Commission rejected the landscape plan by a decision dated December 8, 2008. No clear direction was given regarding what would be an acceptable landscape plan. Accordingly, Applicant has concluded that at this point, it does not appear that a resolution with the Commission is possible. Accordingly, the Applicant is seeking to reactivate the appeal. I apologize for the delay in the reactivation, which was due to personal health reasons. Below is a summary of the history of this case and a brief explanation of the issues to be decided in the de novo review. History In 2005, the Applicant submitted an application for the demolition and replacement of the historic headgate to the Commission. The demolition and replacement were approved with a condition to preserve a portion of this historic headgate. (HLA 05 -01 Decision, dated March 4, 2005.) Pursuant to the decision, the site will have an interpretive panel explaining the significance of the original headgate. As part of the application, the Applicant explained other work that would take place near the historic headgate including the installation of a new fish screen and fencing around the fish screen equipment. This additional work was separate from the historic headgate and was required as part of an agreement with the Oregon Department of Fish and Wildlife to improve in stream fish habitat. Nonetheless, the Commission claimed it had jurisdiction over these additional improvements and required approval of the fence by the Commission. The Decision requesting additional information about the fence was issued March 4, 2005 and irrigation season began in April. Due to the lack of jurisdiction and the time sensitivity required to construct the fish screen and fence prior to the start of the irrigation season the District did not immediately submit its plan for the fence. In late 2006, Deschutes County investigated a code enforcement claim regarding the fence. At that time the Applicant agreed to resolve the code complaint by submitting its plans for the fence at a hearing. At the hearing on April 19, 2007, the Applicant explained the public safety and public policy reasons for the fence. It also stated that it would be willing to provide slats for the fence to mitigate its alleged impact to surrounding homeowners. The Commission requested additional information and stated that it would require a review of a landscape plan and would not accept slats. August 20, 2009 Page 3 of 5 The Applicant appealed to the Board of County Commissioners and then placed that application on hold to allow the Applicant to attempt to resolve the issue with the Commission. The Applicant's next actions are described above. The hearing before the Commission was held November 20, 2008. At that hearing, the Applicant provided a landscape plan that had been reviewed and revised based on suggestions from the Commission's staff. The landscaping plan used native landscaping to provide screening for the fence. Nonetheless, the Commission again denied Applicant's request for reconsideration and approval. Now therefore, Applicant requests that the Board of County Commissioners reverse the Commission's decision HLA 05 -01 and formally dismiss the code enforcement case (06 -170), for the following reasons: 1. The Commission does not have jurisdiction over property not included in Ordinance No. 94 -022 that established the protection of the historic structure. Exhibit B of Ordinance No. 94 -022 states that: "full protection of the site would preclude the owner's ability to alter the site and would fail to recognize the site as dynamic." The ordinance also states that the "economic, social and environmental consequences should be balanced to conserve each conflicting use." It specifically defines the area to be preserved as "the concrete elements of the project shown on the original engineering drawings. These elements include the diversion weir, wing walls, wasteway and headgate but do not include the earthen dam. In addition, the existing mechanical appurtenances to these protected concrete elements, such as the gates and or valves controlling water flow, shall be protected. No portion of the diversion canal shall be protected." The fence surrounds the newly installed fish screen. This is not part of the protected historic structure. The protected structure remains outside of the fence and will be removed in accordance with the requirements of HLA 05 -01. Therefore, the Commission had no authority to apply a condition of approval to HLA 05 -01 regarding the fence. Furthermore, the Applicant has proposed native vegetation to screen the fence to address aesthetic issues despite lack of jurisdiction. The Applicant remains willing to install the landscaping. In addition to having no authority to regulate the fence under Ordinance No. 94 -022, the Commission has no authority under the Deschutes County Code provisions regulating historical preservation. August 20, 2009 Page 4 of 5 Deschutes County Code 2.28.160 Exterior alteration and new building restrictions A. Except as provided in DCC 2.28160(H), no person may alter any structure and/or building in an historical district or designated historical building, or any landmark, in such a manner as to affect its exterior appearance, nor may any new structure and/or building be constructed in an historical district, unless a certificate of approval has been issued by the landmarks commission and the County or appropriate city planning director. The Commission only has the authority to regulate the construction of new structures in historic districts or on designated historic buildings. Here, the historic structure remains untouched by the addition of the fish screen and the new fence that surrounds the fish screen. The historic headgate and access to the headgate remain. At the time of the demolition of the headgate a portion of the headgate will be retained and a historic marker will be constructed as required by HLA 05 -01. The Commission overreached its authority by trying to regulate the entire diversion dam area rather than limiting its review to the historic structure as required by the Ordinance establishing the historic designation and by the County Code. 2. Public policy supports the installation of the fence around attractive nuisances and equipment paid for with public funds. The new fish screen includes high tech equipment including a crane, screen brush and electrical equipment that are attractive nuisances and also very dangerous. Additionally, the increased use of Tumalo Creek, Shevlin Park and the site surrounding the property increase public safety concerns. The fence provides notice to area users that this area is dangerous and should be avoided. This also protects the fish using the screen from interference from the public. The fence design is consistent with the type of fencing for municipal pump station installations including City of Bend standards outlined in City Code Section 512.3.01. "Unless otherwise specified, fencing shall be 8 feet high and shall consist of 7 foot high woven wire topped by three strands of barbed wire." It should be noted that the fence is only 6 feet tall. It is also consistent with other diversion dams, utilities and other historic sites, which will be illustrated by a power point presentation at the hearing. The Applicant paid approximately $300,000 for the installation of the new fish screen. Much of that money was from federal grants to improve fish habitat. The Applicant has a fiscal and ethical obligation to protect this fish screen from vandalism or accidental harm. The fence is the minimum necessary to protect the public. Furthermore the public benefit of the fence outweighs the alleged impact to property values. This is supported by the fact that the August 20, 2009 Page 5 of 5 Applicant has taken steps to mitigate the impact of the fence by proposing native landscaping. The fence does not impact the areas protected by Exhibit B of Ordinance No. 94 -022. 3. The Historic Landmark Commission Decision was arbitrary because there are no clear criteria for evaluation of fence. While, historic preservation laws have been upheld throughout the fifty states as an appropriate police power, that police power is limited to the clearly defined outlines of a historic commission. A 2006 Connecticut Superior Court explains the preservation of buildings and structures with historic and architectural significance is a: "legitimate exercise of police powers by a municipal agency. However, it is not legitimate for a commission to use vague and undefined aesthetic considerations, to support its exercise of police powers, and to regulate private property rights." Gibbons v. Fairfield Historic District Commission 2006 WL 1828362 (citing Demaria v. Planning & Zoning Commission, 159 Conn. 534, 541 (1970). Here, the design review guidelines are relevant only to alterations to buildings and compatibility within historic districts. However, this fence is not within a historic district. The fence is separate from the protected historic structure which was particularly defined as the concrete structure (the "headgate "). The Design Review Guidelines for historic districts address siting of a building, landscape, building height, building bulk, proportion and scale, and exterior features specific to buildings. There are no specific criteria for fences or for alterations to historic structures like those protected by the 94 -022 Ordinance. The Commission's denial of the fence and the landscaping plan screening the fence was arbitrary. The Commission has provided no specific criteria for their requirements and has rejected the proposed landscaping without clear direction on what would be acceptable. Conclusion The Commission lacks authority and jurisdiction to regulate the fence. Furthermore, public health and safety require the fence around the fish screen. The decision to deny the fence was arbitrary and not based on clear criteria. Therefore, the Applicant requests that the County Commissioners reverse HLA 05 -01 and dismiss the enforcement action C 06 -170. Sincerely, Sharon R. Smith srnith@bljlawyers.com 525 -026 108.doc c: Laurie Craghead (via e -mail only) Laurie Craghead@co.deschutes.or.us Encl. BEFORE THE DESCHUTES COUNTY COMMISSIONERS BURDEN OF PROOF STATEMENT APPLICANT: TUMALO IRRIGATION DISTRICT C/O ELMER G. MCDANIELS, MANAGER 64697 COOK AVE BEND, OREGON 97701 OWNER: SAME ATTORNEY: SHARON R. SMITH BRYANT LOVLIEN & JARVIS, PC P. O. BOX 880 BEND, OREGON 97709 PROPERTY DESCRIPTION: Township 17, Range 11, Section 23, tax lots. 800, 1600 and 1700. Off Stag Drive, Northeast of Shevlin Park on Tumalo Creek. CASE: HLA 05 01 and Code Enforcement Case 06 170 REQUEST: The Applicant requests a de novo review of the June 15, 2007 denial by the Deschutes County Historical Landmarks Commission. I. APPLICABLE CRITERIA: Deschutes County Code: 22.32.072 De Novo Review II. EXHIBITS: The Applicant submits the following in support of this application: A. Ordinance Number 94 -022 with Exhibit B the ESEE analysis for the identification of Tumalo Creek Diversion Dam and Headgate of the Feed Canal as a County Historic Site B. Copy of June 15, 2007 Decision C. Transcript of April 19, 2007 Hearing D. Copy of March 4, 2005 Decision 525 -026 300.doc - 1 — III. HISTORY Ordinance Number 94 -022 adopted the conflicts and ESEE analysis for the identification of Tumalo Creek Diversion Dam and Headgate of the Feed Canal as a County Historic Site. Exhibit B of that ordinance states that the portions protected include: "the concrete elements of the project shown on the original engineering drawings. These elements include the diversion weir, wing walls, wasteway and headgate but do not include the earthen dam. In addition, the existing mechanical appurtenances to these protected concrete elements, such as the gates and or valves controlling water flow, shall be protected. No portion of the diversion canal shall be protected." A copy of the Ordinance and Exhibit B are attached as Exhibit to this application for appeal. In 2005, the Applicant submitted an application for the installation of a new fish screen device and demolition of the historic headgate to the Deschutes County Historical Landmarks Commission (the "Commission ") (with the demolition of the historic headgate none of original items protected in the historic landmark will remain on the site). The Commission approved the demolition of the historic headgate with conditions. For example, the decision requires that pieces of the headgate be preserved and along with a photographic record of the site. Additionally, the Commission conditioned the approval on the Applicant returning to the Commission to review the fence planned for the facility. See attached Exhibit D. The fence was not part of the original application and it was mentioned at the hearing only because the fence is required for public safety with the new equipment. Unfortunately, there was only a short time frame for the construction of the new fish screen and protective fence prior to the start of the irrigation season, and therefore the Applicant did not return to the Commission prior to construction of the fence. Furthermore, the fence did not block access to the historically protected areas of the site. In response to a notice of a Code Enforcement Action the Applicant provided an explanation of the need for the fence and submitted evidence that the fence did not block access to the historic headgate. The Commission set up an additional hearing to respond to the Applicant's letter. At this hearing the Applicant submitted additional information about the fence including a proposal to use slats in the fencing to address concerns about the visibility of the fence. At that hearing the Commission voted to deny the Applicant's fence. IV. PROPOSED FINDINGS, BURDEN OF PROOF: 1. Statement Describing the Specific Reasons for the Appeal. Ordinance No. 94 -022 limits the jurisdiction of the Historic Landmark Commission Deschutes County's ordinance adopting the conflicts and ESEE analysis required under Goal 5 for the Tumalo Diversion Dam and Headgate as a historic site specifically limits the authority of 1 The Decision was issued March 4, 2005 and irrigation season began in April. -2— 525 -026 300.doc the Commission to regulate the site. Exhibit B of Ordinance No. 94 -022 states that: "full protection of the site would preclude the owner's ability to alter the site and would fail to recognize the site as dynamic." The ordinance also states that the "economic, social and environmental consequences should be balanced to conserve each conflicting use." The ordinance therefore limited the authority of the Commission to the specific historic structure with the understanding that future changes may have to be made to modify the fish screening devices. Here, no changes have been made to the historic protected structures. The Commission has no authority to regulate the placement of a fence around the new fish screen. Public health and Safety require the placement of the fence installed by the Applicant. Additionally, the increased use of Tumalo Creek, Shevlin Park, and the site surrounding the Tumalo Irrigation dam and headgate increase public safety concerns. Society benefits from the increased protection of fish provided by the new fish screen and fish ladder and the more expensive and complicated technologies used. However, this technology is more dangerous to the public. The purpose of the fence is to protect the public from harm that could be caused by the working parts of the machinery. The fence design is consistent with the type of fencing for municipal pump station installations including City of Bend standards outlined in City Code Section 512.3.01. "Unless otherwise specified, fencing shall be 8 feet high and shall consist of 7 foot high woven wire topped by three strands of barbed wire." The impacts of the fence are negligible and do not impact the areas identified as protected by Exhibit B of Ordinance No. 94- 022. Historic Landmark Commission Decision was arbitrary because there are no clear criteria for evaluation of fence. While, historic preservation laws have been upheld throughout the fifty states as an appropriate police power, that police power is limited to the clearly defined outlines of a historic commission. A 2006 Connecticut Superior Court explains the preservation of buildings and structures with historic and architectural significance is a: "legitimate exercise of police powers by a municipal agency. However, it is not legitimate for a commission to use vague and undefined aesthetic considerations, to support its exercise of police powers, and to regulate private property rights." Gibbons v. Fairfield Historic District Commission 2006 WL 1828362 (citing Demaria v. Planning & Zoning Commission, 159 Conn. 534, 541 (1970). Here, the design review guidelines are relevant only to alterations to buildings and compatibility within historic districts. However, this fence is not within a historic district. The site is isolated from other historic structures and is particularly defined by the specific concrete structures identified in the Ordinance. The Design Review Guidelines for historic districts address siting of a building, landscape, building height, building bulk, proportion and scale, and exterior features specific to buildings. There are no specific criteria for fences or for alterations to historic structures like those protected by the 94 -022 Ordinance. 525 -026 300.doc -3— Here, the primary reason for the denial was simply that the Applicant had not sought the approval of the Commission. In addition, the Commission stated simply that it did not like the look of the fence without providing an adequate explanation of the aesthetic considerations used to make a determination that the fence was incompatible with the historical designation. Conclusion The Commission lacks authority and jurisdiction to control the placement of a fence on the subject property. Public health and safety require the placement of a fence around the fish screening facilities. The decision to deny the fence was arbitrary and not based on clear criteria. 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. FINDING: The appeals process for the Commission is set out in DCC 2.28.2101: "Appeals from actions of the landmarks commission shall be to the Board and/or pertinent city council and may be filed by the applicant, the owner or occupant of the building, structure, site or district concerned, or by any other person who participated in the hearing. Appeals must be filed within 15 days from the date of final decision by the landmarks commission, shall be filed on a form provided by the appropriate County or city planning department, and shall be accompanied by the fee set for appeals by the Board or city. The appeal shall be conducted according to the terms of the applicable County or city procedures ordinance. A decision of the Board may be appealed to the land use board of appeals as provided by law." The Board of County Commissioners is the appropriate hearings body for an appeal of a decision by the Commission. The Applicant is an appropriate party because its Application was denied. Additionally, the Applicant has specific policy concerns regarding the scope of the Commission's jurisdiction outlined above. DCC 22.32.027. Scope of review. B. Before the Board. 1. Review before the Board, if accepted, shall be on the record except as otherwise provided for in DCC 22.32.027. 2. The Board may grant an appellant's request for a de novo review at its discretion after consideration of the following factors: a. Whether hearing the application de novo could cause the 150 -day time limit to be exceeded; and FINDING: The Applicant agrees to restart the 150 day time limit to allow the Board of County Commissioners to consider Applicant's request for a de novo review of the Application. - 4 -- 525 -026 300.doc b. If the magnetic tape of the hearing below, or a portion thereof, is unavailable due to a malfunctioning of the recording device during that hearing, whether review on the record would be hampered by the absence of a transcript of all or a portion of the hearing below; or FINDING: The magnetic tape of the hearing below is available and has been transcribed in full and is attached to this Application as Exhibit C. c. Whether the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or FINDING: The substantial rights of the parties would be significantly prejudiced without de novo review because the characterization of the hearing in the Commission is not consistent with the testimony provided at the hearing. The Applicant was denied the opportunity at the hearing to submit rebuttal testimony. d. Whether in its sole judgment a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action. FINDING: There are two significant policy questions that must be addressed by the Board of Commissioners: 1) what is the scope of the Commission's jurisdiction and 2) how should public health and safety be balanced with the authority of the Commission? IV. CONCLUSION: This application conforms with all applicable standards for the request of de novo review of the June 15, 2007 Deschutes County Historical Landmarks Commission Decision by the Board of County Commissioners. 525 -026 300.doc Respectfully submitted this 29th day of June, 2007. BRYANT, LOVLIEN & JARVIS, P.C. c�� HELEN L. EASTWOOD OSB # 05052 Of Attorneys for Applicant - 5 — 04/20/2006 15:16 FAX 541 389 DAVID EVANS AND ASSOC eL � @ 001 _. r jIO7 DESCHUTES COUNTY HISTORICAL LANDMARKS COMNIISSION A Certified Local Government serving the cities of Bend, Redmond, and Sisters and Deschutes County Des Chutes Historical Center, 129 N.W. Idaho Avenue, Bend, Oregon 97701 Phone: (541) 388 -7927 Fax: (541) 385 -1764 patk(t,o.deschutes.or.us DECISION March 3, 2005 FILE NUMBER: HLA -05-01 HEARING DATE: Feb 17, 2005 at 6:30 PM PLACE: Deschutes Services Center 1300 NW Wail Street Bend, Oregon APPLICANTS: Tumalo Irrigation District Eimer McDaniels, Manager 64697 Cook Ave., Bend, OR 97701 OWNER: SAME REQUEST: The applicant requests approval to: 1. Install a fish screen that is required by State Law (ORS 498.248) 2. Install an improved fish ladder over the diversion dam as required by Oregon Fish and Wildlife Department officials. The current ladder is less than 50 years old. 3. Revise the 94.2 -foot long diversion dam to make the fish screen and fish ladder work correctly by increasing flows over a certain portion of the dam during periods of low water flow. This will be achieved by removing a section of the dam and installing a gate that can be manually opened and closed, depending on water flows. This will allow a continued flow of rocks and gravels downstream to provide critical habitat for fish. 4. Replace the existing headgate due to the deteriorated steel and concrete. The lifespan was projected at 30 to 40 years and it has been there since 1913. 5. Install a fence around the site. HISTORIC NAME: Tumalo Creek Diversion Dam and Headgate of Tumalo Irrigation District Feed Canal DATE OF CONSTRUCTION: 1913 LOCATION: Off Stagg Road, Northeast of Shevlin Park on Tumalo Creek. T 17 R 11, Section 23, tax lots 800, 1600 and 1700 STAFF: Pat Kliewer, Associate Planner, Historic and Cultural Resources DECISION: Approve the fish screen, fish ladder, revision of the 94 foot long diversion dam and replacing the existing headgate. The 1913 imprint in concrete to be saw cut out, a complete photo documentation will be completed before any demoltion is begun. Remove the winch and donate it to the Deschutes County Museum. Applicants will submit a fencing plan for review at the next meeting on March 31, 2005. A historic site interpretive plaque will 1 F bThit I / 04/20/2006 15:16 FAX 541 389 3 DAVID EVANS AND ASSOC Qb 002 be installed an site with a picture of the original structure with an explanation of its design and purpose. Coordinate with the Deschutes County Historical Society on developing the sign. FINDINGS 1. INTRODUCTION The following information is from the applicant's web site: Tumalo Irrigation District is a municipality which administers, distributes and delivers 8,213 acres of irrigation and domestic water rights. These rights are to the use of Tumalo Creek and the Deschutes River and their tributaries, and to water stored in Crescent Lake Reservoir, In the upper Deschutes drainage. Tumaio Irrigation District water rights presently belong to 546landowners in the vicinity of Tumalo, an unincorporated community seven miles northwest of Bend, Oregon, and to the City of Bend. The irrigated lands are located on a semi -arid volcanic plateau at approximately 3,200 feet elevation. The major crops are pasture and hay. Tumaio Creek, Crater Creek and Little Crater Creek drain the area southerly and easterly from Broken Top Mountain (elevation 9,175 feet) in the Cascade Range. Water is diverted from Tumalo Creek at two locations, and from the Deschutes River at Bend, and is delivered to the irrigated acreage through some 140 miles of pipelines, elevated flumes, and open canals and ditches. Tumalo Irrigation District is governed by an elected Board of Directors, one Director from each of five electoral divisions within the District's boundaries, which encompass approximately 45- square miles. Regular staff consists of a Manager, Office Manager, Office Assistant, and five field employees engaged in ditch riding, water delivery, construction, and maintenance. A history of the District, and the Bylaws, are available at the District office, which is located in the former Laidlaw Banking and Trust Company building (1905), in Tumalo. MAJOR SYSTEM STRUCTURES Columbia Southern Diversion Dam and Canal: Built during 1902 -1903, this system diverts and carries water from Tumalo Creek, at a point 8.5 miles upstream from Shevlin Park, overland 8.5 miles in a northeasterly direction to an intersection with the Tumalo Feed Canal. This canal consists of open ditch, a small portion lined with clay. it has a capacity of 185 c.f.s. Tumaio Diversion Dam and Feed Canal: Originally built in 1913 -1914 and rehabilitated in 1975, this system diverts and carries water from Tumalo Creek, at a point 1/2 mile downstream from Shevlin Park, overland 7.2 miles in a northwesterly direction to Upper Tumalo Reservoir. This canal consists of lined and unlined open ditch, buried concrete pipeline, and trestle -type flumes. It was built to a capacity of 225 c.f.s., but now carries 70 c.f.s. above its intersection with the Bend Feed Canal and 180 c.f.s. below that point. Crater Creek Diversion Canal: Completed in 1915, this open, unlined canal diverts water at timberline from Crater and Little Crater Creeks, which drain the southerly slopes of Broken Top Mountain, westerly into Tumaio Creek. It is about 2 miles long and has a capacity of 75 c.f.s. Upper Tumaio Reservoir: At elevation 3,510, this small reservoir holds 1,100 acre feet of water and is the District's only storage facility for water diverted from Tumalo Creek. Upper Tumalo 04/20/2006 15:17 FAX 541 389 DAVID EVANS AND ASSOC 2003 ( Reservoir is all that can now be used of the original Tumalo Reservoir, which failed in 1915. It provides short-term storage and helps to compensate for fluctuations in the flow of Tumalo Creek. Crescent Lake Dam and Reservoir. Crescent Lake (elevation 4,845) is located in the Cascade Range about 12 miles east of Willamette Pass, about 84 miles upstream from Bend on the Deschutes River, the Little Deschutes River, and Crescent Creek. A timber crib dam was built at the outlet of the lake in 1922. A 38 -foot high earth filled dam with concrete outlet works was built across the outlet channel in 1956, allowing active storage to the full 86,050 acre -foot capacity. Bend Diversion and Feed Canal: Originally built in 1922, and extensively rehabilitated in 1975, this diverts and carries water from the Deschutes River, just downstream from Pioneer Park, overland 4.8 miles in a northwesterly direction to an ntersection with the Tumalo Feed Canal at a point on the west canyon rim of Tumalo Creek. This consists of lined and unlined ditch, buried concrete pipeline, a tunnel, and trestle -type flumes. It has capacity of 140 c.f.s. Secondary canals and laterals: Approximately 40 miles of unlined canals, trestle -type flumes, and small pipelines. Ditches: 100 miles Stream Bed Waterway: Deschutes River and tributaries: 84 miles, plus Tumalo Creek and tributaries, 16 miles. Background for this application: American ingenuity was at the forefront during the industrial period of the nineteenth century. Machined - banded bored logs were first manufactured in Michigan in 1874. The use of wood stave pipe dates from about 1884, when they were used by the Denver Water Company in Colorado. The Tumalo irrigation System is a gravity system. Water is diverted from Tumalo Creek near Shevlin Park. The canal system conveys the water from the creek downhill to the lands to be irrigated. The diversion dam raises the water level in the creek. The headworks are a gate like devise for controlling the flow of water from the creek just above the dam to the canal. The headgate allows the water behind the dam to be diverted into the head of the canal. The main canal was constructed on higher land, to allow significant drop in elevation as the canal system spreads out. The drop in elevation and the width of the canal and channels gives the water its rate of flow. From the main canal, laterals run along the topography to supply water to the sub - laterals and ditches which deliver water to each farm. Some vocabulary words The diversion weir has a notch in it that controls the amount of water being diverted through or over it and creates the waves in the flow. Wing walls are concrete walls that angle out to the banks to control erosion of the stream banks and to prevent water from going where you don't want it to go. The waste way is the place water is dumped out of the canal. The headgate is the gate at the top of a channel that controls the amount of water that is diverted to the canal. 3 04/20/2006 15:17 FAX 541 389 3 DAVID EVANS AND ASSOC Q004 Flash boards are the boards in a channel that control the depth of the water flowing down the canal. Depending on their height, they can completely block the flow. Fish screens prevent fish from entering the canal and keep them in the stream. The headworks of the feed canal consist of a low overflow weir dam, the wing walls and waste way. The crest of the dam is 94.2 feet in length and the height above the hardpan foundation encountered in the creek was only 4-feet 3- inches. The cut -off walls extend into this hard pan foundation for a length of 3 feet. Heavy wing walls were constructed at each end of the diversion weir. The diversion weir, wing walls, waste way and head gates are all constructed of reinforced concrete and steel. The headgate and dam was constructed by the engineers and employees of the State of Oregon from1913 -1914. The Situation: The existing fish ladder is insufficient to allow effective fish passage over the diversion dam. The Oregon Department of Fish and Wildlife Services requested Tumalo Irrigation District.(TID) to install a fish ladder s part of the screen installation project. The installation of fishways as defined and as may be required by ORS 498.246 requires modifications to the historic structures. In order to make the fish screen and ladder work correctly, a portion of the concrete diversion dam needs to be modified to allow for increasing flows in the creek. By removing a section of the dam and installing a gate that can be manually opened or closed depending on the Tumalo Creek water flows, in- stream rocks and gravels moved by the currents can be deposited downstream instead of backing up behind the dam. The modifications to the dam are necessary to maintain healthy spawning beds and fish habitat. The existing headgate is badly deteriorated after serving for 82 years. Some of the concrete is deteriorating and some reinforcing bars are exposed. The structures need to be modified to allow for new fish screens and an improved fish ladder. The new structure will look very similar to the historic structure. The winch, gears and handcrank that move the steel gates will no longer be necessary. It will be donated and preserved at the Des Chutes Historical Center. H. APPLICABLE REVIEW CRITERIA The Tumalo Creek Diversion Dam and Headgate of the Feed Canal were designated as a Deschutes County Historical Landmark under County Ordnance 92 -018 in 1992. Additional inventory information on this site was submitted under Ordinance 94-022 in 1994. Title 2 of the Deschutes County Code for the Preservation of Historic Buildings and Sites (Chapter 2.28) are applicable to the subject application. 4 04/20/2008 15:18 FAX 541 389 5 FINDINGS OF FACT DAVID EVANS AND ASSOC 1¢1005 A. LOCATION: The subject property is located at 22025 Butter Market Road, Bend and is identified on the Deschutes County Assessors map as: 17- 13- 19-0000400. B. SITE DESCRIPTION: The subject property is located north of Aspen Hail at the edge of Shevlin Park on the Tumalo Creek. It is off Stag Road. C. PROPOSAL; The applicant requests approval to: 1. Install a fish screen that is required by State Law (ORS 498.248) 2. Install an improved fish ladder over the diversion dam as required by Oregon Fish and Wildlife Department officials. The current ladder is less than 50 years old. 3. Revise the 94.2 foot long diversion dam to make the fish screen and fish ladder work correctly by increasing flows over a certain portion of the darn during periods of low water flow. This will be achieved by removing a section of the dam and installing a gate that can be manually opened and closed, depending on water flows. This will allow a continued flow of rocks and gravels downstream to provide critical habitat for fish. 4. Replace the existing headgate due to the deteriorated steel and concrete. The Nespan was projected at 30 to 40 years and it has been there since 1913_ 5. Fence the site. D. .APPLICATION AND BURDEN OF PROOF: Section 22.24.050 of the County Code states that throughout the local land use proceedings the burden of proof rests on the applicant. The applicant has submitted the following documents in support of this burden: 1. A complete Historic Landmarks Commission Review Application. 2. Construction plans for the project. 3. 11 x 17 reductions of plans. 4. Nine 8.5 x 11 inch color photographs of project area showing current conditions. 5. A check for the review fee. 6. Bound volume 59 pages called the `Final Environmental Assessment, Bend Feed Canal Pipeline Replacement Project, Tumalo Irrigation District, March 2000. E. PUBLIC NOTICE AND COMMENTS Notice was published in the Bend Bulletin on January 30, 2005. Notice of the public hearing was sent by first Bass mail to all owners of property within 500 feet of the subject site by Bend Mailing Service. Staff did not received any public comments regarding the proposal prior to the hearing. Doug Ertner and Susan Benson testified at the hearing. Susan's property overlooks the site and she is concerned about the visual impact of a fence. An eight foot fence was mentioned and the applicant stated that it is necessary for safety. Susan says she likes the openness and accessibility of the site and there is a greater benefit with the accessibility. It has old charm. A fence is foreboding and adults and children do not 5 04/20/2008 15:18 FAX 541 389 :3 r. DAVID EVANS AND ASSOC 111006 need that much protection. In this type of environment we want to take risks to enjoy what is there. IV. CONCLUSIONARY FINDINGS The Deschutes County Historic Preservation Ordinance Chapter 2.28, Section 2.28.160 Exterior Alteration and New Building Restrictions. 1. No person may alter any structure within a historic district or a designated historic structure In such a manner as to change Its exterior appearance, nor may any new structure and/or building be constructed within a historic district unless a certificate of approval has been issued by the Landmarks Commission and the Planning Director. FIN D� A completed Application to the Landmarks Commission was received at the County CDD on January 3, 2003. Construction of the project will not begin without Landmarks Commission approval. The project is being partially funded by the Bureau of Reclamation, so a Section 106 process is likely to be required. It will be reviewed by the SHPO. The Landmarks Commission public hearing was held on Feb. 17, 2005. Staff met with the TID manager Elmer McDaniels and David Evans and Associates planner Karen Swirsky and civil engineer Kevin Crew P.E. on site on January 7, 2005 and took many photos. Staff showed slides of the site at the hearing. A decision was reached on all requests but the fencing at the hearing. The fencing issue will come back before the Commission on March 31, 2005. 2. Application for such a certificate shall be made to the Planning Department and shall be referred to the Landmarks Commission for review or hearing. FINDING: The application was made to the Deschutes County Building Division and passed on to the Landmarks Commission for review and hearing. 3. All applications for alterations or new construction shall be accompanied by appropriate plans and/or specifications. FINDING: A complete application was received which included photos, plans, and a narrative of the proposed work to be competed. The application did not address fencing. The fencing issue was brought up at the hearing. Staff was not aware of it when she wrote the staff report. The applicant will bring new information and appropriate fencing drawings and a fencing plan to the next hearing. 4. Any request for a certificate of approval for exterior alteration or new construction must be filled prior to or in conjunction with an application for any building or land use permit. FINDING The application to the Landmarks Commission is the only current application. 5. Applications for certificates of approval for exterior alterations to a designated historic structure and /or building shall be evaluated by the landmarks Commission under the following criteria: a) Applicable provisions of the county comprehensive plan, FINDING: The goal as set forth in Comprehensive Plan is to preserve and protect 6 04/20/2006 15:19 FAX 541 389 DAVID EVANS AND ASSOC W007 C historic and cultural resources by creating a register, by reviewing applications, and by placing an emphasis on the exterior appearance of historic buildings. b) Where applicable, an evaluation of the social, economic, environmental and energy consequences of the alteration, as set forth in OAR 660 - 16-000, FINDING: The ESEE and conflict analysis was completed at the time the Ordinance designating this structure as a landmark was considered by the Board of County Commissioners in 1992 through Ordinance 92 -018. It was submitted also as Appendix "B" to Ordinance 94 -022. It is attached to this staff report. Alterations to these structures were anticipated. The conflict between alterations required for fishery resources and the historic resources were identified. Alteration to the structure was anticipated. Economic: The site was developed to provide irrigation water important and necessary for the agricultural economy of the properties the district serves. Protection of the fish provides economic benefits to the recreational/tourism sector. Fishing by residents and visitors makes a significant contribution to the local economy. Historic resources serve as the base for heritage tourism, a growing component of the local and state economy. The project will allow the district to continue to meet the needs of the TID users and will enhance the fish habitat and water flows in Tumalo Creek. .Environmental: The project will allow better flow control in the creek and the canal system. It will prevent the sediment and gravels that are now backing up behind the dam. It will improve the creek's health and enhance spawning beds for fish. Increased flows during the dry season may reduce water temperatures in the creek. Energy: The system is now operated by a 1913 hand crank. It is anticipated that the gates wif be electrified and may be operated by remote control. The amount of energy that would require is minimal. Social: The value to the community is in the structure being a significant historic example of irrigation engineering done by the State of Oregon in 1913. The feed canal and dam convey water from the Tumalo Creek to the Tumalo Reservoir. Lands irrigated under the project were first approved by the Department of the Interior under the 1894 Carey Act. The project holds the distinction as the most seriously vexed Carey Act project in Oregon, and possibly the nation, suffering nearly simultaneous engineering, managerial, and financial disasters. ft is believed to be the first Carey Act project that was taken over, reengineered, reconstructed and operated by one of the states. (Michael Hall, 'Irrigation Development, pgs. 16, 17). The 1994 County Ordinance stated that maintenance and alterations improving the operating efficiency were anticipated. However, the engineering designs of the protected elements are not to be irreversibly altered. 7 04/20/2006 15:19 FAX 541 389 DAVID EVANS AND ASSOC 008 The reasonableness of the proposed alteration and its relationship to the public interest in the structure's preservation and or renovation. FINDING The ordinance specified the following portions of this facility: 1. Low overflow weir diversion dam: -not protected 2. Cut -off walls -not specifically mentioned. Original concrete portions of the site are to be protected. 3. Wing walls, concrete- to be protected and not irretrievably altered. 4. Waste way, concrete: to be protected and not irretrievably altered. 5. Head gates, concrete, to be protected and not irretrievably altered. 6. Diversion weir, concrete, to be protected and not irretrievably altered. 7. Gates and valves and mechanical devises controlling. water flow- to be protected, but may be modernized if approved by the DCHLC, but the new electrification or design must not irreversibly alter the engineering design of the protected elements. . 8. Flash boards and fish screens, angle irons imbedded in concrete with wood. - Must be protected but may be modified and upgraded to meet current fish and wildlife requirements. 9. Fish Screens- The addition of new fish screen shall be allowed. The ordinance focuses on protecting the original materials and engineering design. The applicants are proposing to demolish the original materials and design and replicate the original materials and design as much as is possible in the new elements. The Commission asked the applicants if they could retain the existing historic sections of the facility and construct the new elements nearby, thereby preserving the historic portions. The applicants said that this approach to preservation is not possible. They said that they were willing to record the site and place an interpretive panel on site. The Commission asked the applicants to cut out the 1913 sign and save the winch. c) The design review guidelines attached to Ordinance 88-008, codified to the section, as Appendix C, and incorporated herein (Secretary of Interior's Standards) FINDING The proposed plans follow the general guidelines as outlined in the Secretary of the Interior's Standards such as using similar materials and design wherever possible and repairing rather than replacing significant elements where possible. THE SECRETARY OF THE INTERIOR'S STANDARDS FOR THE TREATMENT OF HISTORIC PROPERTIES The Secretary of the interior is responsible for establishing standards for all national preservation programs under Department authority and for advising federal agencies on the preservation of historic properties listed in or eligible for listing in the National Register of Historic Places. There am four distinct, but interrelated, approaches to the treatment of historic properties -- Preservation, Rehabilitation, Restoration, and Reconstruction. 8 04/20/2006 15:20 FAX 541 389 3 DAVID EVANS AND ASSOC Q009 Preservation focuses on the maintenance and repair of existing historic materials and retention of a property's form as it has evolved over time. Rehabilitation acknowledges the need to alter or add to a historic property to meet continuing or changing uses while retaining the property's historic character. Restoration is undertaken to depict a property at a particular period of time in history, while removing evidence of other periods Reconstruction re- creates vanished or non - surviving portions of a property for interpretive purposes. STANDARDS FOR REHABILITATION Rehab,litation is defined as the act or process of making possible a compatible use for a property through repair, alterations, and additions white preserving those portions or features which convey its historical, cultural, or architectural values. 1. A property will be used as it was historically or be given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships. The applicant is making the changes to allow continued use of the canal and protection of fish habitat, water flows and water quality in Tumalo Creek, the intended historic use. 2. The historic character of a property will be retained and preserved. The removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize a property will be avoided. The distinctive design is being adapted into the new plan. 3. Each property will be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or elements from other historic properties, will not be undertaken. The appearance of the new structures will not give a false sense that it is the original structure. Adding the current date to the concrete will help. 4. Changes to a property that have acquired historic significance in their own right will be retained and preserved. Nothing is being removed from the site that is more than 50 years old and is reusable. Everything that can be reused will be. Most of the historic concrete will be removed due to the deteriorating condition of the concrete. 5. Distinctive materials, features, finishes, and construction techniques or examples of craftsmanship that characterizes a property will be preserved The original materials, finishes and construction techniques can not be preserved. 6. Deteriorated historic features will be repaired rather than replaced Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match The old in design, color, texture, and, where possible, materials. Replacement of missing features will be substantiated by documentary and physical evidence. 9 04/20/2006 15:20 FAX 541 389 :3 DAVID EVANS AND ASSOC 0010 Deteriorated historic features were repaired since 1913. Meeting the conflicting needs of water and fishery resources and the condition necessitate the project. The new design is based on the design, color, texture and materials of the historic structures. The physical condition of the structure and or building: The structures do have condition problems. They not meet the multiple needs of the efficient delivery of water into the Tumalo Canal District canal system and protecting water, fish and wildlife resources. The concrete and steel structures have served the district twice as long as anticipated when they were designed in 1913. d) FINDING The general compatibility of the proposed exterior design, arrangement, proportion, detail, scale, Color, texture and materials proposed to be used on the existing structure and of building; FINDING The proposed changes to the structures are compatible with the architectural style of the historic structures. The proportion and architectural detailing are compatible and appropriate. The fencing as proposed is incompatible and a barrier to people seeing the site. The applicant will come back on March 31 with another fencing plan. e) Whether the alteration is required to remedy an unsafe or dangerous condition; FINDING The applicants say that fencing with an eight foot tall fence will prevent deaths by drowning by preventing people from walking on TID's concrete structures. The Commission did not agree that this is an unsafe situation. They saw the lack of fencing as an attribute. There have been no accidents reported as a result of the facility since it was constructed in 1913. f) Other pertinent aesthetic factors, as appropriate. FINDING Two people testified that the eightzfoot metal fencing as proposed would be unsightly and detract from the pleasant open appearance the site has now. Commissioners discussed the importance of allowing visitors to see the facility. 6. Ali decisions on certificates of approval shall be in writing. FINDING Per finding, Deschutes County Landmarks Commission's Certificate of Approval shall be in writing and forwarded to applicant and the applicant's representative. T. Nothing in this chapter shall be construed to prevent ordinary maintenance of repair of exterior architectural features Of a building or structure which does not involve a change design or type of materials, unless the county building official can certify that the repair is required for the public safety because the building or structure is In an unsafe or dangerous condition. FINDING items proposed by applicant that are not considered ordinary maintenance or repair or necessary replacement of existing architectural features. V. CONCLUSIONS The Landmrks Commision unanimously approved all. but the fence at its pubic hearing. The project is necessary and retains the elements of the original design and materials where 10 04/20/2006 15:21 FAX 541 389 13 DAVID EVANS AND ASSOC 10011 possible. Ideally, the new structures should be constructed next to the old structure so it could remain. The motion was as following. Approve the fish screen, fish /adder, revision of the 94 foot long diversion dam and replacing the existing headgate. The 1913 imprint in concrete will be saw cut out. A complete photo documentation will be completed before any demoltion is begun. Remove the winch and donate it to the Deschutes County Museum. Applicants will submit a fencing plan for review at the next meeting on March 31, 2005. A historic site interpretive plaque will be installed on site with a picture ate original structure with an explanation of its design and purpose. •• • ate with the • =- . _._ County Historical Society on developing the sign. Derek Stevens, Chair Dated: March 4, 2005 This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of interest Certificate of Malting I certify that I sent by first class mailing from Bend, OR, a copy of this Notice of Decision on Friday, March 4, 2005, to the applicant, parties of record, and interested parties: Kevin Crew P.E. and Karen Swirsky A.I.C. P.p' David Evans and Associates �+ `4r c i�° 709 NW Wall Street, Suite 102 I, ul Bend, OR 98801 Elmer McDanieis Tumalo Irrigation District 64697 Cook Avenue, Bend, OR 97701 Susan M. Benson, 63090 Stag Dr Bend, Or 97701 Douglas L. Ertner 3890 NW Xavier Redmond, Or 97756 "�'Z- E March 4, 2005 Pat Kliewer, Associate oasts Planner 11 DESCHUTES COUNTY HISTORICAL LANDMARKS COMMISSION A Certified Local Government serving the cities of Bend, Redmond, and Sisters and Deschutes County Des Chutes Historical Center, 129 N.W. Idaho Avenue, Bend, Oregon 97701 Phone: (5411 388-7927 DECISION June 15, 2007 On behalf of Deschutes County, the Deschutes County Historical Landmarks Commission held a quasi-judicial public hearing on Thursday, April 19, 2007 beginning at 7:00 p.m. at the Des Chutes Historical Center, 129 NW Idaho Avenue, Bend, Oregon and reached a decision on the following request: Applicant: Tumalo Irrigation District Elmer McDaniels, Manager 64697 Cook Ave., Bend, OR 97701 Property Owned By: Bend Metro Park and Recreation District, with an easement to Tumalo Irrigation District Historic Resource: Tumalo Creek Diversion Dam and Headgate of the Feed Canal Address: Off Stag Drive, Northeast of Shevlin Park on Tumalo Creek. Classification: County Locally Designated Historic Resource, Deschutes County Comprehensive Plan Request: Request for retroactive approval for a six -foot tall galvanized chain link fence with outriggers and three strands of barbed wire on top. Location: Township 17, Range 11, Section 23, tax Tots 800, 1600 and 1700. Case: HLA- 05 -01, as amended on February 16, 2007 Code Enforcement Case No. 06 -170, Stag Drive STAFF: Pat Kliewer, Associate Planner, Historic and Cultural Resources DECISION: DENIAL Exhibit B Appeal of HLA 05 -01 Page 1 of 25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc FINDINGS I. INTRODUCTION On behalf of Deschutes County, the Deschutes County Historical Landmarks Commission held a quasi-judicial public hearing on Thursday, April 19, 2007 beginning at 7:00 p.m. at the Des Chutes Historical Center, 129 NW Idaho Avenue, Bend, Oregon. The Commission took testimony, discussed the staff report, facts, evidence and testimony and reached a unanimous decision to deny the request. The Tumalo Irrigation District (TID) had written a letter to the Commission asking for retroactive approval for a six -foot tall galvanized chain link fence with outriggers and three strands of barbed wire on top. TID stated that the fence was installed to protect the public, discourage trespassing and to protect the new fish screen. But, constructing it without applying to Deschutes County for Landmarks Commission and Community Development Department (CDD) Reviews was in violation of a previous March 3, 2005 Landmarks Commission decision and County Codes. The Irrigation District selected and erected the fence, thereby significantly altering the historic site, without first seeking review and decision by the Landmarks Commission and Deschutes County. Unfortunately, this action prevented public comment and participation in a decision about the style of fence and location of the fence that could resulted in a different•fence that would have been compatible with the historic site and met the TID project goals. Minutes of the Public Hearing Minutes of the April 19, 2007 Deschutes County Historical Landmarks Commission, as written by Cameron Prow, Type Rite II, on contract with the City of Bend CDD. Deschutes County File: HLA- 05 -01, amended by a letter on 2/16/07 Code Enforcement File: CE 06 -170, Stag Drive Applicant: Tumalo Irrigation District (Elmer McDaniels, Manager), 64697 Cook Avenue, Bend, OR 97701 Owner: Bend Metro Park & Recreation District, 1675 SW Simpson Avenue, Bend, OR 97702 Location: Deschutes County Assessor's Map 17- 11 -23, Tax Lots 800, 1600 & 1700; off Stag Drive, northeast of Shevlin Park on Tumalo Creek Request: Retroactive approval 'of 6- foot -tall galvanized chainlink fence with outriggers and 3 strands of barbed wire on top. Fence installed to protect the public, discourage trespassing, and protect the new fish screen. Historic Status: Deschutes County locally designated Historic Resource Historic Name: Tumalo Creek Diversion Dam & Headgate of Feed Canal built 1913 Applicable Criteria: Secretary of the Interior's Standards for the Treatment of Historic Properties; Title 2, Deschutes County Code for Preservation of Historic Buildings & Sites (Chapter 2.28); Deschutes County Ordinances 92 -018 and 94 -022 Application Date: Submitted 2/16/07 Public Notice: 3/2/07 — notice of 3/22/07 hearing sent via 151 class mailing to property owners within 500 feet & to parties of record from the 2/17/05 case; 3/9/07 — notice of new hearing date of 4/19/07 sent via l5L class mail to all parties on mailing list. No written public comments received by staff. HLC Exhibits received at 4/19/07 hearing: * 5 -A: 4/19/07 letter with attachments from Sharon Smith, Bryant, Lovlien & Jarvis, PC * 5 -B: LifeLink Economical Inserts for Chain Link Fence (samples) Page 2 of 25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc Documentation Referenced: * 4/10/07 staff report * Applicant's burden of proof including 2/16/07 letter from Sharon Smith, Bryant, Lovlien & Jarvis, PC, 11"x17" site plan dated 12/6/06, and 5 "x7" color photos (22) of current conditions in project area * 3/27/07 letter from Paul Stell, Bend Metro Park & Recreation District (BMPRD) The Chair read the required opening statement. Challenges to the right of this hearings body to hear and decide this case: None Ex Parte Contact: None declared Site Visit: Commissioner Schwartz said she visited the site with staff with permission of the TID manager when TID employees were there and talked to them about the operation of the fish screen and fish ladder. Bias /Conflict of Interest: Commissioner Martinson said Bryant, Lovlien & Jarvis, PC, represents his corporation. However, he doesn't know Sharon Smith and he could not financially benefit from this case, so he thinks he can be unbiased, open minded and fair in his consideration of the case. Audience challenge for ex parte contact, bias, or conflict of interest: None declared Staff report: Ms. Kliewer said a continuance may be necessary, due to the substantial new written information that Applicant is planning to submit tonight. No one has had time to review the new materials. She advised that the Commission open the hearing and take testimony from all parties that wish to be heard. Continuing the hearing will give her time to prepare a new staff report addressing the new information and will give interested parties time to review the new information and comment on it. She will keep the County Code Enforcement Officer apprised of progress in this case. (See 4/10/07 staff report for more detailed information.) The project is being partially funded by the Bureau of Reclamation, so a Federal Section 106 analysis and finding may have been required. Was it done? If not, why? It would have been reviewed by the State Historic Preservation Office [SHPO] for adverse effects to the resources and to the site and comments of the Landmarks Commission would have been sought. That may have prevented this situation. This site is in a recreational area north of Aspen Hall in Shevlin Park on the west bank of Tumalo Creek and is accessed from Stag Drive. The site was not fenced between 1913 and 2006. This site was first designated as a Deschutes County Historical Landmark in 1992. Additional inventory information was submitted in 1994. On 3/3/05, the Landmarks Commission issued a decision on an application from Tumalo Irrigation District (County File HLA- 05 -01, public hearing held on 2/17/05) to make alterations to the site. Among other provisions, that decision stated that Applicant was to present a fencing plan to the 3/31/05 Commission meeting for public review and comment. She phoned the District prior to 3/31/05 and was told the District was not ready, but would submit plans for review of the fence and other elements in the fall of 2005. The District never returned for review nor submitted any new applications. Early in 2007, the County code enforcement officer reported that complaints from adjoining property owners had been filed regarding a fence that was installed. Upon investigation, the County found that the complaint was valid and that the District had installed a fence without County approval. The area around the irrigation facility that was very pastoral next to the creek, has been nearly clear -cut and is nearly devoid of vegetation. Some complainants said that the removal of nearly all vegetation, the installation of a parking lot where native plants were growing and the installation of the shiny fence poles and chainlink fabric changed the site significantly, and reflect sunlight up the hill toward Stag Drive. Neighbor's view of the creek, canal, and native trees, shrubs, wildflowers, and grasses has been replaced with glare and a scarred landscape. On 2/16/07, the Commission received a letter from Sharon Smith, Applicant's attorney, asking for retroactive review and approval of the installed fence. The letter apologized for overlooking the need for County review /approval of the fence. The letter defended the District's actions, saying that there was a "short window Page 3 of 25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc of opportunity between the Landmarks Commission's Decision and the start of a new irrigation year to install the new fish screen" because "work on the fish screen could not be done once the irrigation season began." Vandalism of the site could result in serious damage and expensive repairs. "Given the substantial amount of money required to install the fish screen (approximately $300,000) the District has a duty to its water users and to the general public to protect the investment from vandalism." On behalf of the property owners, Bend Metro Par k and Recreation District, Natural Resource Manager Paul Stell's 3/27/07 letter stated that "the proposal by Tumalo Irrigation District to plant native plant materials around their diversion facility in Shevlin Park is satisfactory to Bend Metro Parks and Recreation District." He emphasized that "all plant materials be of those indigenous to the site." They would not need any irrigation if planted in the spring or fall. He told staff that he has concerns about the alterations to the site because a popular public jogging and hiking trail crosses the Tumalo Irrigation District Facility next to the creek and a memorial bench looks over it. Staff is satisfied that Applicant has made its case that fencing the fish screen is needed for public safety. However, the site changed dramatically between her review in 2005 and her site visit prior to this hearing. The design and materials of the industrial - appearing fence as installed are incompatible with the historic site in the city park. It is a detriment to the very popular park and not in keeping with the rest of the vegetation around Tumalo Creek. Clear - cutting, grading, and new parking areas at the site exacerbate the negative aesthetic effect of the new fence and may have some environmental concerns. Applicant did not submit information on alternative fence designs, alternative materials, nor cost of the existing fence They did not show any evidence that they considered alternatives to the fence as it was built, the removal of site vegetation or to construction of the parking lot. How big a parking lot is really necessary? Without such evidence, staff cannot determine if native landscape screening of the existing fence would be more costly than coating or replacing the fence and what other solutions may be found to restoring the site. Based on a site visit with Commissioner Schwartz, review of Applicant's original and amended submittals, research, findings of fact, and conclusionary findings, staff recommends that Applicant coordinate with BMPRD to develop a landscaping plan that will screen the fence and re- vegetate the subject site, leaving only the minimum amount of area in gravel needed for a parking space for maintenance vehicles. Applicant should submit the landscaping plan to the Landmarks Commission for review at a subsequent public hearing. Implementation of the landscaping plan should be completed within 6 months of Commission approval. Applicant's responsibility: Per Deschutes County Code Section 22.24.050, Applicant has the burden of proof. Following Landmarks Commission review, Applicant is responsible for providing copies of any plan changes to Landmarks Commission staff at the same time that they are submitted to any other division of Deschutes County. The changes must be approved in writing. Substantial changes, at the discretion of staff or the Chair, may need to be reviewed in a public hearing before the Landmarks Commission. Public Testimony: Applicants Testimony Sharon Smith, Bryant, Lovlien & Jarvis, PC, 591 SW Mill View Way, Bend (Applicant's representative), submitted HLC Exhibits 5.A and 5.B. She thanked Ms. Kliewer for her work and suggestions. Ms. Smith apologized for Applicant's not providing this fence plan earlier, as required by the 03/03/05 decision, and acknowledged concerns about the fence's adverse impact. However, the fencing type, size, and design complies with City of Bend specifications for utility facility protection and is typical of that used by irrigation and utility districts throughout the community and the West. The galvanized fencing installed is compatible with the galvanized fish screen. She explained why the fish screen was needed (State requirements), why the fence was needed and why it only surrounds the fish screen, and alternatives proposed by Mike's Fencing to Page4of25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc fix the current problem. Adding a vinyl coating to the existing fence would cost $10,000- $15,000. Applicant would prefer to install vinyl slats rather than using special fence coatings or native landscaping to decrease the shininess of the fence because slats would be more economical and maintenance -free. She did not consult a landscape expert regarding native landscaping; the District could research this. Landscaping alone would not work because the gate to the facility must be kept free for District access. She stated that native landscaping is not feasible because it would need to have year round irrigation and none is available. She stated only the concrete dam and concrete headgate structures are protected, the rest of the area is not protected. It should not matter what the fence looks like. Those in Favor of the Application: None Those Opposed to the Application: Five Parties 1. Doug Ertner, 3890 NW Xavier Avenue, Redmond (opponent) said he testified at the 2/17/05 hearing and was one of the complaintants to the code enforcement action. The fish preservation facility was important and the District did a good job with installing it. However, he was upset that the fence was installed without permission. The fence is intrusive as is the T1D equipment parked on the site. This was a peaceful, wonderful place to hike and fish with his grandson, but the area has totally lost its historic value due to the fencing and unnecessary site changes. There were alternatives that the District could have done such as housing the electrical equipment. Applicant is looking for a cheap way to make amends. 2. Susan Benson, 63090 Stag Drive, Bend (opponent) concurred with Mr. Ertner's assessment of the site degradation. Tumalo Creek in Shevlin Park has been a special place for contemporary residents as well as sacred ground for Indians. The site has been raped; a lot of basic vegetation is now missing which makes this area visually uninviting. The fence is too tall and needs to be screened with vegetation. The barbed wire on top makes the area feel like a prison and may present a challenge, thereby actually enticing vandals. She favored coating the fence, if it has to stay, as slats would make the fence more like a wall, call more attention to it and interrupt the flow of the park. She recommended replacing the unnecessarily long fence with a compact hinged fence -like cover that would be more parallel to the ground and lock down over the fish screen. The cover would allow access for maintenance when needed and be low impact to the site. As it is now, the fence extends far from the fish ladder, fencing much of the site unnecessarily. The fish ladder is necessary, the other changes to the site are not, such as the huge parking lot. Public entities should comply with the same requirements as private citizens. If a private citizen violated a decision, they would not be coddled. An apology is insufficient; restitution is required. 3. Randal Howard, 63240 Stag Drive, Bend (opponent), said he has lived here for 8 years and visits the site weekly. Shevlin Park use has increased in recent years. This portion of the park blended with the natural areas of the park prior to its being fenced. He agreed with Ms. Benson that the area looks like aprison now. He said it is not true that all Irrigation facility fences are the same. He mentioned some examples of other types of irrigation system fencing. Instead of adding slats, he suggested painting the fish screen superstructure and coating the fence in an earth tone color such as brown, removing the barbed wire, and lowering the fence height like the fence around the Central Oregon Irrigation District facility above River Bend Park. Fences don't keep people out, but rather tell them to keep out. Re -doing the fence will be expensive, but the District is at fault for spending the money before it had permission. It is not the Commission's fault if it must be removed and replaced. The TID could have saved that cost if they had discussed this issue before installing the fence. 4. Gary Clark, 63080 Stag Drive, Bend (opponent), said he has lived directly above this project for 16 years. His daily view of the site has changed from that of a wildlife habitat for deer, turkey, and geese to a denuded prison surrounded by barbed -wire fence. The site is much noisier due to the fish screen motor being on all of the time, 24 hours a day. The noise is obnoxious and unnecessary. It is so loud that it can be clearly heard up the hill on Stag Road. Why isn't the district trying to be a good neighbor and muffle the motor? They can't sit outside and enjoy the evening any more. Though the TID gate is usually locked, it has been Page 5 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc unlocked much of the time. It was open 24 hours a day last week, encouraging cars and motorcycles to enter the site and park in the new parking lot, raising dust. TID tractors and equipment are routinely parked there for 1 long term storage, even when they are not being used on site. Employees of TID gather debris jammed against ■ the dam and grates and pile it weekly inside the fenced area. They torch it off and it is burned 1 -2 times a month; the smoke comes up to his house. Do they have permits to do that? Why does this site have to be so ugly and noisy and smoky? 5. Judy Clark, 63080 Stag Drive, Bend (opponent), said for 17 years she listened to the water in the creek; now all she can hear is a motor. The view of this area should be beautiful and friendly. She no longer takes her grandkids to the creek and park here because it's so ugly. Applicant's rebuttal: Ms. Smith said the new fish screen has great visual impact, but installing it was required by State law. The District fences all of its fish screens. As a good steward of public dollars, the District used the least expensive materials in erecting the fence that would do the job. The barbed wire and height of the fence is an issue of security and liability. The new fish screen created a very attractive pool which is a potential drowning hazard. If the County required a lower fence and someone drowned, the County would share in the liability. She offered to have the District's engineer explain the operation of the fish screen and the reason for the resulting noise. (Chair Stevens reminded Ms. Smith that any new information that came in now after the public testimony was taken, would allow parties to request time to respond to it, including a continuance if they wanted it.) Ms. Smith decided not to have the engineer testify. In response to Commissioner Dorsch's question about why they can't try to muffle the noise of the motorized fish screen, she said that as a required public utility facility it would is not subject to noise restrictions so they don't have to. Commissioner Dorsch said he has a Masters Degree in Biology and she was incorrect in her statements and native plants could be re- planted there. Commissioner Martinson, (a native plant expert, owner of Wintercreek Restoration and co- author of Xeriscaping in the High Desert), asked Ms. Smith for the source of her conclusion that the site could not be revegitated with native plants, indigenous to the site. Ms. Smith answered that she found that unless her yard was irrigated, it died. Ms. Smith requested a two -month extension to 6/21/07 if the Commission decides to continue this hearing because she will be on medical leave in May 2007. She said only the dam and headgate are protected, and the fence should not be reviewed anyway. Staff comments: Ms. Kliewer reiterated the importance of public hearings being open, unbiased, and fair so that all parties get an opportunity to participate. She referred to the 17 -page document submitted this evening by the applicant. It is difficult to read it during a hearing and ask relevant questions and have the public respond to a document that is not available before the hearing. She has not had time to read it. Providing written information, plans, and photos prior to the hearing is appreciated so everyone can take their time to consider it and respond to it before or during the pubic hearing. Anyone who submitted oral or written testimony is a party of record. If a continuance is granted, she asked that parties submit any new information in writing in time for it to be mailed to all parties of record prior to the next hearing. The more information everyone has before meetings, the better the testimony and the decision will be. Page 6 of 25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc She identified some errors of fact in the Applicant's testimony tonight regarding the designated site. Defining the site accurately affects the interpretation of what needs to be protected and how it is protected. The Board of County Commissioners designated the resource and adopted the findings and ESEEs for that designation. A sketch of the historic site is in the historic property file in her office. The Board of County Commissioners determined the site area when it designated this property as a local historic resource. In this case, it is the entire irrigation intake facility within the TID easement at the site, from the far east side of the dam, to the canal on the west side. It goes on both sides of the creek. What is around the structures helps interpret the site. The setting is important. The setting includes the immediate environment. Changes to it can be compatible or have an adverse effect. Another error was attempting to apply City of Bend codes to the site. The site is in Deschutes County's jurisdiction, not the City's jurisdiction. So City of Bend codes do not apply. The city codes on fencing submitted tonight by the engineer and the legal counsel are not relevant. With no further testimony, Chair Stevens closed the HLA- 05 -01 /CE 06 -170 hearing at 8:12 p.m. Commissioner discussion/decision: Commissioners focused on understanding the issue and talked about the adverse and incompatible impacts of the changes at the site. Significant concerns raised included appropriate re- vegetation with native plants (Commissioner Martinson suggested using squaw currant in addition to other native plants), proximity of vegetation to the fence, the industrialization of the site, costs of alternative fence materials and landscaping, easement location, City vs. County code specifications regarding fence height, if all fish screens throughout Oregon are fenced, County noise restrictions, federal funding entity, Section 106, and weed abatement. Commissioner Smiley said she appreciated input she heard from both sides. However, the Commission was once again facing the fact of an applicant leaving a public hearing with a decision in 2005; and the Commission had a certain expectation that they would return for review of the fence plans and any changes to the approved plans (parking lot, clear cutting, etc); and then the applicant did something different than what was promised and they got caught. She urged that Applicant be required to fully comply with the Commission's 3/3/05 decision and do what is right. Commissioner Knight, a registered civil engineer, said that he could not support this 8- foot -tall fence regardless of what the City of Bend standards allowed. The existing fence plan is poorly designed and doesn't correlate with the built structures it is supposed to be protecting. The area fenced far exceeds the portion of the site that needs to be protected. The fence does not need to encompass the ponderosa pine trees. Putting the fence on the other side of the trees would take advantage of the existing foliage to help screen the fence. He agreed with Ms. Benson's suggestion that using a hatch -like facility over the fish screen would provide better security and protection for the public. The application as presented should be denied. Applicant should bring back a complete application that includes a new revised fence plan layout and a landscaping plan and addresses the concems of the public and the Commission as expressed this evening. Applicant's behavior in this instance feels like the crane shed issue, where people went ahead and did what they wanted regardless of what this Commission decided. The constant pump noise is unacceptable to the neighbors and takes away the public's enjoyment of the site, public trails, and Shevlin Park in the vicinity. The noise is also unnecessary. There are many engineering solutions to muffle it completely. One way is to create a low (3 ' -4') pumphouse structure and insulating it would help reduce the noise. Commissioner Dorsch said he agreed with Commissioner Martinson regarding use of native plants as screening. He has used these himself and they work well. Chair Stevens thanked Commissioner Knight for his clear articulation of the issue before the Commission tonight. Applicant's failure to return for public review of the fencing plan violated the public process and Page 7 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc denied neighbors their "voice" on this issue. The fence installed appears to allow people into the water in the .lower corner. He did not favor adding vinyl slats to the fence and expressed concern about using a sensitive historic site next to a creek for storing tractors and other TID equipment. Though he would like more information. The issue before the Commission tonight is simple: The Applicant built a structure on the historic site without approval, after they were told to come back for review before they put it there. In response to Chair Stevens and Commissioner Smiley's questions about the possibility of continuing the hearing to allow TID to come back with some options for landscaping and screening, Ms. Kliewer explained Deschutes County code enforcement procedures and applicable timelines. Motion 3: It was moved and seconded (Cooper/Dorsch) that the hearing on Files CE 06 -170 (Stag Drive) and HLA -05 -01 be continued for 60 days. During discussion of the motion, Commissioner Martinson recommended that the Commission deny Applicant's request for retroactive approval and require a full proposal including alternatives within 60 days of decison. Motion 3 failed (2/5/0), with Commissioners Cooper and Dorsch voting in favor and Commissioners Martinson, Schwartz, Sholes, Smiley, and Stevens voting against. Motion 4: It was moved and seconded (Martinson/Sholes) to deny Applicant's request for retroactive approval of the installed fence and require submittal of a complete plan with alternatives within 60 days of decision. During discussion of the motion, Commissioner Smiley asked that Applicant address noise and landscaping issue in its new application. Commissioner Schwartz urged that Applicant's new proposal be in line with the Secretary of the Interior's standards regarding retention and preservation of the historic character of the property (the Secretary of the Interior's Guideline on Settings) and screening of the facility from view of neighbors up on the hill. Motion 4 passed unanimously (7/0/0). Description of the Application The applicant is Tumalo Irrigation District. The District is asking for retroactive approval for the safety fence they had installed around the new fish screen adjacent to the headgate and dam in Tumalo Creek. The site is walking distance from Shevlin Park and Aspen Hall. The facility is located on the western bank of Tumalo Creek. They are asking the Landmarks Commission to retroactively approve a six -foot tall galvanized steel chain link fence with outriggers and three strands of barbed wire on top. The applicant states that the fence was installed to protect the public, discourage trespassing and to protect the new fish screen. The District overlooked the review and approval that was necessary from the Landmarks Commission before the fence was installed last year. The site was not fenced from 1913 to 2006. In 2005, the District applied to Deschutes County for Landmarks Commission review of the plans to: 1. "Install a fish screen that is required by State Law (ORS 498.248) 2. Install an improved fish ladder over the diversion dam as required by Oregon Fish and Wildlife Department officials. The current ladder is less than 50 years old. 3. Revise the 94.2 -foot long diversion dam to make the fish screen and fish ladder work correctly by increasing flows over a certain portion of the dam during periods of low water flow. This will be achieved by removing a section of the dam and installing a gate that can be manually opened and closed, depending on water flows. This will allow a continued flow of rocks and gravels downstream to provide critical habitat for fish. 4. Replace the existing headgate due to the deteriorated steel and concrete. The lifespan was projected at 30 to 40 years and it has been there since 1913. 5. Install a fence around the site." The application was HLA- 05 -01. A public hearing was held and a decision was reached on Page 8 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc March 3, 2005. The decision was as follows: "Approve the fish screen, fish ladder, revision of the 94 foot long diversion dam and replacing the existing headgate. The 1913 imprint in concrete will be saw -cut out. A complete photo documentation will be completed before any demolition is begun. Remove the winch and donate it to the Deschutes County Museum. Applicants will submit a fencing plan for review at the next meeting on March 31, 2005. A historic site interpretive plaque will be installed on site with a picture of the original structure with an explanation of its design and purpose. Coordinate with the Deschutes County Historical Society on developing the sign. " Some but not all of the proposed work discussed in 2005 was done. The historic headgate and dam have not been replaced. The fish ladder, fish screens and the fence were installed. Some work on the site is still underway as more debris than was anticipated accumulated on the fish screen last year and that led to design and equipment changes. Flow rates in the canal beside the fish screen were increased by reducing the area the water travels though. A mechanical wiper was installed to remove debris from the screen by traveling back and forth along the screen. The District called the Historic Preservation Planner in April 2005, saying it was delaying any construction on the site for at least six months and would not be back as soon as was planned to ask for review of the new site fencing. Further plans and review of the fence and other elements of the project were expected to be submitted in the fall of 2005. Since that time, there have been no applications. Site work and fencing out of scope with the decision was undertaken. The applicant did not comply with the decision. A County code enforcement complaint was initiated. Investigation found that the applicant did not abide by the Landmarks Commission Decision of March 3, 2005. As a result of the Deschutes County Code Enforcement Case, the applicants agreed to apply for retroactive approval of the fence that was installed. Some of the neighbors involved in the complaint do not think the style, fabric and color of the fence is appropriate for the site. They state that the shiny fence poles and chain link fabric is prominent, reflects sunlight up the hill toward Stag Drive and creates glare where once there was a view of the creek, canal, and vegetation. The clearcut site contributes to what they see as an unnecessarily dramatic change in their view to the east. They find new fence does not fit in to the peaceful rural setting. They say it is too industrial for the setting, too shiny and unattractive. It also is lout of character with the beauty of Shevlin Park. It is next to a well -used natural dirt jogging /walking trail and the log bench and memorial for a child who drowned in Tumalo Creek. The TID is also burning debris on site on a regular basis and the noise from the new fish screen motor is a constant irritant. Through their attorney, Sharon R. Smith of Bryant, Lovlien & Jarvis, PC, the Irrigation District applied for review of the fence plan, retroactively, to settle the code enforcement case against them. Tumalo Irrigation District The following information is from the applicant's web site: Tumalo Irrigation District is a municipality which administers, distributes and delivers 8,213 acres of irrigation and domestic water rights. These rights are to the use of Tumalo Creek and the Deschutes River and their tributaries, and to water stored in Crescent Lake Reservoir, in the Page 9 of 25 Q: \planning \Historic \Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc upper Deschutes drainage. Tumalo Irrigation District water rights presently belong to 546 landowners in the vicinity of Tumalo, an unincorporated community seven miles northwest of Bend, Oregon, and in the City of Bend. The irrigated lands are located on a semi -arid volcanic plateau at the approximately 3,200 feet elevation. The major irrigated crops in the area are livestock pasture and hay. Tumalo Creek, Crater Creek and Little Crater Creek drain the area southerly and easterly from Broken Top Mountain (elevation 9,175 feet) in the Cascade Range. Water is diverted from Tumalo Creek at two locations, and from the Deschutes River at Bend, and is delivered to the irrigated acreage through some 140 miles of pipelines, elevated flumes, and open canals and ditches. Tumalo Irrigation District is governed by an elected Board of Directors, one Director from each of five electoral divisions within the District's boundaries, which encompass approximately 45 square miles. Regular staff consists of a Manager, Office Manager, Office Assistant, and five field employees engaged in ditch riding, water delivery, construction, and maintenance. A history of the District, and the Bylaws, are available at the District office, which is located in the former Laidlaw Banking and Trust Company building (1905), in Tumalo. MAJOR SYSTEM STRUCTURES Columbia Southern Diversion Dam and Canal: Built during 1902 -1903, this system diverts and carries water from Tumalo Creek, at a point 8.5 miles upstream from Shevlin Park, overland 8.5 miles in a northeasterly direction to an intersection with the Tumalo Feed Canal. This canal consists of open ditch, a small portion lined with clay. It has a capacity of 185 c.f.s. Tumalo Diversion Dam and Feed Canal: Originally built in 1913 -1914 and rehabilitated in 1975, this system diverts and carries water from Tumalo Creek, at a point 1/2 mile downstream from Shevlin Park, overland 7.2 miles in a northwesterly direction to Upper Tumalo Reservoir. This canal consists of Tined and unlined open ditch, buried concrete pipeline, and trestle -type flumes. It was built to a capacity of 225 c.f.s., but now carries 70 c.f.s. above its intersection with the Bend Feed Canal and 180 c.f.s. below that point. In 2006 - 2007, a state of the art fish screen and new concrete open canal was constructed just past the intake gates next to the Tumalo Creek. A section of the canal north of the fish screen has been buried in new pipes. Crater Creek Diversion Canal: Completed in 1915, this open, unlined canal diverts water at timberline from Crater and Little Crater Creeks, which drain the southerly slopes of Broken Top Mountain, westerly into Tumalo Creek. It is about 2 miles long and has a capacity of 75 c.f.s. Upper Tumalo Reservoir: At elevation 3,510, this small reservoir holds 1,100 acre feet of water and is the District's only storage facility for water diverted from Tumalo Creek. Upper Tumalo Reservoir is all that can now be used of the original Tumalo Reservoir, which failed in 1915. It provides short-term storage and helps to compensate for fluctuations in the flow of Tumalo Creek. Crescent Lake Dam and Reservoir: Crescent Lake (elevation 4,845) is located in the Cascade Range about 12 miles east of Willamette Pass, about 84 miles upstream from Bend on the Deschutes River, the Little Deschutes River, and Crescent Creek. A timber crib dam was built at the outlet of the lake in 1922. A 38 -foot high earth filled dam with concrete outlet works was built across the outlet channel in 1956, allowing active storage to the full 86,050 acre -foot capacity. Page 10 of 25 Q: \planning\Historic \Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc Bend Diversion and Feed Canal: Originally built in 1922, and extensively rehabilitated in .1975, this diverts and carries water from the Deschutes River, just downstream from Pioneer Park, overland 4.8 miles in a northwesterly direction to an intersection with the Tumalo Feed Canal at a point on the west canyon rim of Tumalo Creek. This consists of lined and unlined ditch, buried concrete pipeline, a tunnel, and trestle -type flumes. It has capacity of 140 c.f.s. Secondary canals and laterals: Approximately 40 miles of unlined canals, trestle -type flumes, and small pipelines. Ditches: 100 miles Stream Bed Waterway: Deschutes River and tributaries: 84 miles, plus Tumalo Creek and tributaries, 16 miles. Background for this application: The Tumalo Irrigation System is a gravity system. Water is diverted from Tumalo Creek near Shevlin Park. The canal system conveys the water from the creek downhill to the lands to be irrigated. The diversion dam raises the water level in the creek. The headworks are a gate like devise for controlling the flow of water from the creek just above the dam to the canal. The headgate allows the water behind the dam to be diverted into the head of the canal. The main canal was constructed on higher land, to allow significant drop in elevation as the canal system spreads out. The drop in elevation and the width of the canal and channels gives the water its rate of flow. From the main canal, laterals run along the topography to supply water to the sub - laterals and ditches which deliver water to each farm. Some vocabulary words The diversion weir has a notch in it that controls the amount of water being diverted through or over it and creates the waves in the flow. Wing walls are concrete walls that angle out to the banks to control erosion of the stream banks and to prevent water from going where you don't want it to go. The waste way is the place water is dumped out of the canal. The headgate is the gate at the top of a channel that controls the amount of water that is diverted to the canal. Flash boards are the boards in a channel that control the depth of the water flowing down the canal. Depending on their height, they can completely block the flow. Fish screens prevent fish from entering the canal and keep them in the stream. The headworks of the feed canal consist of a low overflow weir dam, the wing walls and waste way. The crest of the dam is 94.2 feet in length and the height above the hardpan foundation encountered in the creek was only 4 -feet 3- inches. The cut -off walls extend into this hard pan foundation for a length of 3 feet. Heavy wing walls were constructed at each end of the diversion weir. The diversion weir, wing walls, waste way and head gates are all constructed of reinforced concrete and steel. The headgate and dam was constructed by the engineers and employees of the State of Oregon from 1913 -1914. Page 11 of 25 Q: \planning \H.istoric\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc The Current Situation: The existing fish ladder was insufficient to allow effective fish passage over the historic diversion dam in Tumalo Creek. The Oregon Department of Fish and Wildlife Services requested Tumalo Irrigation• District (TID) to install a fish ladder as part of the fish screen installation project. The installation of fishways as defined and as may be required by ORS 49$.248 required modifications to the historic structures. In order to make the fish screen and ladder work correctly, a portion of the concrete diversion dam needs to be modified to allow for increasing flows in the creek. By removing a section of the dam and installing a gate that can be manually opened or closed depending on the Tumalo Creek water flows, in- stream silt, rocks and gravels moved by the currents can be deposited downstream instead of backing up behind the dam. The modifications to the dam will be necessary to maintain healthy spawning beds and fish habitat. The existing headgate was badly deteriorated after serving for 82 years. Some of the concrete was deteriorating and some reinforcing bars were exposed. The structures needed to be modified to allow for new fish screens and an improved fish ladder. The work has not been completed. The adjacent new structure looks very similar to the historic structure. The winch, gears and handcrank that move the steel gates will no longer be necessary. The 03/03/05 decision directed the TID to donate them to the Des Chutes Historical Center. New fish screens Page 12 of 25 Q: \planning \Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc Gates that regulate flow of water from Tumalo Creek into the irrigation canal. Page 13 of 25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc 1I. APPLICABLE REVIEW.CRITERIA Designation The site of the Tumalo Creek Diversion Dam and Headgate of the Feed Canal were designated as a Deschutes County Historical Landmark under County Ordinance 92 -018 in 1992. Additional inventory information on this site was submitted under Ordinance 94 -022 in 1994. Title 2 of the Deschutes County Code for the Preservation of Historic Buildings and Sites (Chapter 2.28) are applicable to the subject application. FINDINGS OF FACT A. LOCATION The subject property is located off Stag Drive, Northeast of Aspen Hall in Shevlin Park along Tumalo Creek. The Bend Metro Park and Recreation District owns the land at Township 17, Range 11, Section 23, tax lots 800, 1600 and 1700. A. SITE DESCRIPTION: The subject property is located in a recreational area north of Aspen Hall, in Shevlin Park on the west bank of Tumalo Creek. It is accessed from Stag Road, by driving down a steep dirt road. The site has a forested hill on the east side of the creek. The historic diversion dam is in the creek. At the creek, the terrain flattens to a narrow valley. The headgate, canal, fish ladder and fish screens are on nearly level ground on the west bank of the creek. Native trees, grasses, and shrubs including pine trees and bitterbrush grow thickly in the valley. A log bench memorial to a child who drowned at the location sit on the west side of the creek just upstream from the Tumalo Irrigation District dam. A Bend Metro Park and Recreation District jogging and walking trail follows the creek then sweeps around the fenced irrigation facility. Widely spaced rural homes look down on site along Stag Drive. Stag Drive is a paved street on the top of another hill on the west side of the creek. The area around the irrigation district facility has been clear cut and is devoid of vegetation. A graveled parking area is on the west side of the new fence. Need for Fence The applicants state that the six -foot tall galvanized steel chain link fence with three strands of barbed wire on the top is the same fencing that is used at the other irrigation district facilities. It is necessary to protect the public from the dangers in the facility and to prevent trespassing. The fish screen has tiny holes that are easily clogged with debris from the creek and are wiped by a tall wiper that moves along the screen like a windshield wiper on a car. It is called a moving screen brush. The facility has electricity and rapidly flowing water. The structure has steel equipment that could invite people to climb or swing on them. The applicant writes, "There is a great risk that people playing on or near the structure could drown, be electrocuted or be seriously injured if they fell or came in contact with wiring within the fenced off area." The fish screen is fragile and cost $300.000. Rocks being thrown at it or some other vandalism could result in serious damage and expensive repairs. The historic headgate and dam are outside the fence. The public can still walk across them. Page 14 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc View of Tumalo Creek and Dam from the west bank looking north Page 15 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc View of fenced area from west side looking east toward Tumalo Creek. B. PROPOSAL The applicant requests retroactive approval to: 1. Fence the site with a six foot tall galvanized steel chain link fence with three strands of barbed wire on the top. They did not mention the other alterations to the site that included the clearcutting, introduction of a noisy motor, regular onsite burning, the superstructure of the new facility and the parking lot that occurred without County approval. C. APPLICATION AND BURDEN OF PROOF: Section 22.24.050 of the County Code states that throughout the local land use proceedings the burden of proof rests on the applicant. The applicant has submitted the following documents in support of this burden: 1. A two -page letter. 2. An 11 x 17 site plan. 3. Twenty -two 5 x 7 inch color photographs of project area showing current conditions. 4. A 17 -page document date April 19, 2007 submitted at the April 19 hearing that includes a letter from Sharon Smith, a letter from Kevin Crew, P.E. to TID, City of Bend Standards and Specifications *, and a letter to the attorney from Mike's Page 16 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo irrigation District Fence.doc Fence Center and four photos of fences with colored slats. 5. A set of colors of slats. ( *Staff note: This site is not in the City. D. PUBLIC NOTICE AND COMMENTS Notice of the public hearing on March 22, 2007 was sent by first class mail to all owners of property within 500 feet of the subject site by Deschutes County staff and to parties of record from the 2005 case. The mailing was sent on March 2, 2007. The District requested a postponement of the hearing and it was rescheduled for April 19, 2007. A notice of the change of hearing date was sent to all people on the mailing list on March 9, 2007. Staff did not receive any written public comments regarding the proposal. Doug Ertner and Susan Benson testified at the previous hearing in 2005. Susan's property overlooks the site and the record shows that she said that she is concerned about the visual impact of a fence. An eight foot fence was mentioned and the applicant stated that it is necessary for safety. Susan says she likes the openness and accessibility of the site and there is a greater pubic benefit with the accessibility. It has old charm. A fence is foreboding and adults and children do not need that much protection. • In this type of environment we want to take reasonable risks to enjoy what is there. At the April 19, 2007 hearing, the following parties spoke: • Sharon Smith Attomey at Law, PO Box 1151, Bend, OR 97709 • Doug Ertner, 3890 NW Xavier, Redmond, OR 97756 • Susan Benson, 63090 Stag Drive, Bend, OR 97701 • Randal Howard, 63040 Stag Lane, Bend, OR 97701 • Gary Ciark, 63080 Stag Lane, Bend, OR 97701 • Judy Ciark, 63080 Stag Lane, Bend, OR 97701 r IV. CONCLUSIONARY FINDINGS The Deschutes County Historic Preservation Ordinance Chapter 2.28, Section 2.28.160 Exterior Alteration and New Building Restrictions. 1. No person may alter any structure within a historic district or a designated historic structure in such a manner as to change.its exterior appearance, nor may any new structure and /or building be constructed within a historic district unless a certificate of approval has been issued by the Landmarks Commission and the Planning Director. FINDING: A letter and supporting materials was sent to the Landmarks Commission on Feb 16, 2007 asking for retroactive approval of the fence. The District was involved in a code enforcement case because it erected the fence on the historic site without applying Page 17 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc for approval first. Construction of the fencing project should not have begun without Landmarks Commission approval. The project is being partially funded by the Bureau of Reclamation, so a Section 106 process was likely to be required. It is unknown if the Oregon SHPO got the application or reviewed it. 2. Application for such a certificate shall be made to the Planning Department and shall be referred to the Landmarks Commission for review or hearing. FINDING: No application nor amendment to an application was completed. A letter was sent to the Deschutes County Code Enforcement Officer and to the Landmarks Commission asking for retroactive approval. 3. All applications for alterations or new construction shall be accompanied by appropriate plans and /or specifications. FINDING: A letter was received which included photos and a site plan. The letter explained the reason the fence was erected and described it. A site plan showed the location of the fence 4. Any request for a certificate of approval for exterior alteration or new construction must be filled prior to or in conjunction with an application for any building or land use .permit. FINDING The applicant built the structure before they applied. 5. Applications for certificates of approval for exterior alterations to a designated historic structure and /or building shall be evaluated by the landmarks Commission under the following criteria: a) Applicable provisions of the county comprehensive plan, FINDING: The goal as set forth in Comprehensive Plan is to preserve and protect historic and cultural resources by creating a register, by reviewing applications, and by placing an emphasis on the exterior appearance of historic structures. Plans for the new fence was not reviewed prior to its installation. It is incompatible with preservation with the site. b) Where applicable, an evaluation of the social, economic, environmental and energy consequences of the alteration, as set forth in OAR 660 -16 -000, FINDING: The ESEE and conflict analysis was completed at the time the Ordinance designating this structure as a landmark was considered by the Board of County Commissioners in 1992 through Ordinance 92 -018. It was submitted also as Appendix "B" to Ordinance 94 -022. It was attached to the 1995 staff report. The ESEES say that alterations to these structures were anticipated. The conflict between alterations required for fishery resources and the historic resources were identified. Economic: The site was developed to provide irrigation water important and necessary for the agricultural economy of the properties the district serves. Protection of the fish Page 18 of 25 Q: \planning\ Historic \Historic.Preservation\DECISIONS \Tumalo Irrigation District Fence.doc provides economic benefits to the recreational /tourism sector. Fishing by residents and visitors makes a significant contribution to the local economy. Historic resources serve as the base for heritage tourism, a growing component of the local and state economy. The fish screen project will allow the district to continue to meet the needs of the TID users and will enhance the fish habitat and water flows in Tumalo Creek. Appropriate minimal fencing will help prevent significant damage to fragile equipment in the fish screen and thereby save the District money that would otherwise be needed for repair and replacement of damaged equipment and structures. , However, the choice of the fencing is incompatible with the site and the length of the fencing seems disproportionate to the actual portion of the site that needs to be fenced. It also needs to be screened with native vegetation. Environmental: The dam upgrade will allow better flow control in the creek and the canal system. It will prevent the sediment and gravels that are now backing up behind the dam. It will improve the creek's health and enhance spawning beds for fish. Increased flows during the dry season may reduce water temperatures in the creek. The fence will not affect this portion of the project. Testimony was taken concerning the Toss of sensitive creekside vegetation for the parking lot that is likely to result in adverse stormwater runoff into the creek. The neighbors also spoke of loss of wildlife habitat. Energy: The system is now operated by a 1913 hand crank. It is anticipated that the gates will be electrified and may be operated by remote control. The amount of energy that would require is minimal. The fish screen wipers are electrified and take energy. The fence takes no energy. Social: The value to the community is in the structure being a significant historic example of irrigation engineering done by the State of Oregon in 1913. The feed canal and dam convey water from the Tumalo Creek to the Tumalo Reservoir. Lands irrigated under the project were first approved by the Department of the Interior under the 1894 Carey Act. The project holds the distinction as the most seriously vexed Carey Act project in Oregon, and possibly the nation, suffering nearly simultaneous engineering, managerial, and financial disasters. It is believed to be the first Carey Act project that was taken over, re- engineered, reconstructed and operated by one of the states. (Michael Hall, Irrigation Development, pgs. 16, 17). The project has had serious adverse social effects. Many neighbors testified to the loss of natural environment, the noise, the smoke, the glare, the reflection of light from the fence and parking lot, the Toss of wildlife they enjoyed, the loss of desirability of the park trails, and the loss of enjoyment of the site. They can no longer hear the creek. The site no longer looks historic. The 1994 County Ordinance stated that maintenance and alterations improving the operating efficiency were anticipated. However, the engineering designs of the protected elements are not to be irreversibly altered. The reasonableness of the proposed alteration and its relationship to the public interest in the structure's preservation and or renovation. FINDING The ordinance specified the following portions of this facility: Page 19 of 25 Q: \planning\Historic \Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc 1. Low overflow weir diversion dam: -not protected 2. Cut -off walls -not specifically mentioned. Original concrete portions of the site are to be protected. 3. Wing walls, concrete- to be protected and not irretrievably altered. 4. Waste way, concrete: to be protected and not irretrievably altered. 5. Head gates, concrete, to be protected and not irretrievably altered. 6. • Diversion weir, concrete, to be protected and not irretrievably altered. 7. Gates and valves and mechanical devises controlling water flow- to be protected, but may be modernized if approved by the DCHLC, but the new electrification or design must not irreversibly alter the engineering design of the protected elements.. 8. Flash boards and fish screens, angle irons imbedded in concrete with wood. - Must be protected but may be modified and upgraded to meet current fish and wildlife requirements. 9. Fish Screens - The addition of new fish screen shall be allowed. The ordinance focuses on protecting the site and the original materials and engineering design. It appears that the alterations to the site have exceeded what was anticipated and approved previously, resulting in significant adverse effects. c) The design review guidelines attached to Ordinance 88 -008, codified in the section, as Appendix C, and incorporated herein (Secretary of Interior's Standards) FINDING The plans for the fish screen and fish ladder follow the general guidelines as outlined in the Secretary of the Interior's Standards such as using similar materials and design and repairing rather than replacing significant elements where possible. The Secretary of the Interior's Standards and Guideline on Settings directs the owners to identify significant elements of the site and to avoid removing significant features wherever possible, including historic structures, trees and shrubs. Designing new structures such as the fence to be compatible and unobtrusive and to keep the pastoral feel of the site is important to preserving the historic integrity of the site. In this case, the district clear cut all of the vegetation around the facility and erected an industrial fence in a shiny silver color that is incongruous with site. To correct the problem, the Guidelines recommend restoration of the missing features, in this case - native vegetation. A fence that is less obtrusive, using a fence that is a color such as green or brown or beige that would not reflect light or would blend in to the natural surroundings, and fencing materials that are adequate to perform the function needed but compatible with the site, such as rustic wood, would be ideal. Screening the existing fence with native vegetation including pine trees, willow shrubs, bitter brush, grasses and other plants is another option to improve compatibility with the site and to recapture the historic pastoral feel of the site. The fencing should be kept to a minimum. Page 20 of 25 Q: \planning \Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc THE SECRETARY OF THE INTERIOR'S STANDARDS FOR THE TREATMENT OF HISTORIC PROPERTIES The Secretary of the Interior is responsible for establishing standards for all national preservation programs under Department authority and for advising federal agencies on the preservation of historic properties listed in or eligible for listing in the National Register of Historic Places. There are four distinct, but interrelated, approaches to the treatment of historic properties -- Preservation, Rehabilitation, Restoration, and Reconstruction. Preservation focuses on the maintenance and repair of existing historic materials and retention of a property's form as it has evolved over time. Rehabilitation acknowledges the need to alter or add to a historic property to meet continuing or changing uses while retaining the property's historic character. Restoration is undertaken to depict a property at a particular period of time in history, while removing evidence of other periods. Reconstruction re- creates vanished or non - surviving portions of a property for interpretive purposes. STANDARDS FOR REHABILITATION Rehabilitation is defined as the act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features which convey its historical, cultural, or architectural values. 1. A property will be used as it was historically or be given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships. The primary use of the property to take water from the Tumalo Creek and convey it to the canal system hasn't changed. But, in addition to taking an adequate amount of water from the creek and conveying it into the canal to meet the needs of its users, the Irrigation District was required to meet some other goals on the site, such as protecting fish. The applicant is making the changes to the site that will allow continued use of the canal and protection of habitat, water flows and water quality in Tumalo Creek. However, the applicants, without approval, significantly adversely affected the site by clearing it, creating a parking lot and erecting a chain link fence with barbed wire. That action that made more than minimal change to the site adversely affected the historical and cultural values of the site. However, there may be relatively inexpensive ways to restore the historic spaces to the site. 2. The historic character of a property will be retained and preserved. The removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize a property will be avoided. The distinctive setting included Tumalo Creek, the Shevlin Park, native vegetation and trees around the facility, native grasses along the significant visible structures including the dam, headgate and the canal. A little used dirt trail doubling as the jogging /walking trail unobtrusively allowed Irrigation District and Parks District trucks to access the site from Stag Drive. The built environment historically was nearly at ground level and blended in to the native environment. Page2l of25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc The site was extensively altered in 2005 and 2006. The shiny grey steel superstructure above the fish screen and the 8 -foot tall shiny grey steel fence are now the prominent features of the site. They are not in character but with effort their effect can be minimized. 3. Each property will be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or elements from other historic properties, will not be undertaken. The appearance of the new structures will not give a false sense that they are historic. 4. Changes to a property that have acquired historic significance in their own right will be retained and preserved. The site retained its nearly natural state for the past 80 years. The dam is unobtrusive and barely visible. The headgates and canal are part weathered historic concrete structures and new concrete structures that are low to the ground or below the ground. During the past year, construction of the fish ladder and fish screens has resulted in clear cutting vegetation, grading the site, adding gravel and erecting the fence. The site as a result does not have the feel or appearance that it historically had. Previously the decision stated the itemized list of the historic elements that have historic significance. 5. Distinctive materials, features, finishes, and construction techniques or examples of craftsmanship that characterizes a property will be preserved. The original materials, finishes and construction techniques of the historical structures may not be able to be preserved and still function for their intended uses and meet new requirements. However, necessary new elements such as the fence can be less obtrusive than they are. 6. Deteriorated historic features will be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match the old in design, color, texture, and, where possible, materials. Replacement of missing features will be substantiated by documentary and physical evidence. Deteriorated historic features were repaired since 1913. Some of the new structures in the project were based on the design, color, texture and materials of the historic structures, such as the new headgate. However, the site was not fenced until 2006. Because there was no historic fence on this site to match, it is reasonable to request TID to research fencing during the historic period to find examples of historic fencing as part of TID and other Central Oregon Canal Systems and to consider the appropriateness of a similar fencing for this site. The physical condition of the structure and or building: The district states that a security fence is necessary to protect the site and equipment, to reduce the chance that someone will enter the dangerous area of the new fish screen, and to prevent injury or death. The design and materials are the same as the district has installed in non - historic sites, with no special consideration of the environment and the public value of this site. d) FINDING The general compatibility of the proposed exterior design, Page 22 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc arrangement, proportion, detail, scale, color, texture and materials proposed to be used on the existing structure and building; FINDING The 8 -foot tall chain link fence with barbed wire is not a material or style that is typically used at rural historic sites that are located in a public park or in a sensitive natural area that has many visitors. The bright grey finish and barbed wire makes it very obtrusive. A green, beige or brown coated chain link fence would have been a better choice for this site. Without providing the Commission with acceptable options for the fencing before it was installed, that would meet the Irrigation District's specifications, the Commission is unable to determine is another fencing would have met the needs and been more compatible with the site. A letter from Mike's Fencing shows one other style of fence that is acceptable to TID. However, the letter requested retroactive approval of the existing fence, and the existing fence is not compatible. Whether the alteration is required to remedy an unsafe or dangerous condition; FINDING The applicants say that fencing with an eight foot tall fence will prevent deaths from electrocution, fall or drowning. The fence may help discourage people from walking, jumping or hanging on TID's structures. The District has made their case that fencing is needed. The question remains as to what fencing details, style, materials, texture, color and location are appropriate for the site or what type of fence should have been installed. Or, what screening of the existing fence is necessary to make it less obtrusive. e) Other pertinent aesthetic factors, as appropriate. FINDING Five people testified that the eight -foot metal fencing as proposed is unsightly and detracts from the enjoyment and appreciation of the site and from the livability of their homes. Commissioners discussed in February 2005 the importance of allowing visitors to see the facility. The fencing extends beyond the electric motor and wires, the fish screens and the fragile mechanical area that need to be protected. The fencing should be minimized. The testimony offered some suggestions to remove the current fence and replace it with a less obtrusive fence. it is not aesthetically pleasing. Two people described it as a jail fense. 6. All decisions on certificates of approval shall be in writing. FINDING Per findings, Deschutes County Landmarks Commission's Certificate of Approval shall be in writing and forwarded to applicant and the applicant's representative. In this case the decision is for denial of the request for retroactive approval. 7. Nothing in this chapter shall be construed to prevent ordinary maintenance of repair of exterior architectural features of a building or structure which does not involve a change of design or type of materials, unless the county building official can certify that the repair is required for the public safety because the building or structure is in an unsafe or dangerous condition. FINDING This case is not about ordinary repairs or maintenance. V. CONCLUSIONS At the conclusion of the February 17, 2005 public hearing, the Landmarks Commission Page 23 of 25 Q: \planning\T- Iistoric\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc unanimously approved all the Irrigation District's requests with conditions, excepting the fence. Two parties testified in opposition to the proposed fence. The TID (applicant) agreed to the condition to return with plans for a fence for review and approval. The applicant did not comply with that decision. It did not apply for review and approval of a fence and constructed it anyway. A code enforcement case was opened. To settle the case, a letter asking for retroactive approval and defending the action was sent the Landmarks Commission. A hearing was held on April 19, 2007 and the Commission found the fence incompatible with the historic site and did not give the retroactive approval. The 8 -foot tall chain Zink fence with barbed wire at the top was installed at an historic site next to picturesque Tumalo Creek in a public park without Landmarks Commission review. The review and decision of fencing plans were required, but were overlooked by the Tumalo Irrigation District. The fence is not compatible with the historic setting and site. It is industrial in appearance, some said jail -like. Neighbors have complained about it being unsightly. The clearcutting, grading and new parking areas at the site exacerbate the negative aesthetic effect of the new fence and may have some environmental concerns. The Commission requires that the fence be removed and replaced with a more compatible fence that meets the security and safety needs and is compatible with the site. Without any specific plan being submitted on the subject, the Commission is unable to determine if native landscape screening of the existing fence would be acceptable to the Commission. The Applicants testified that they are not interested in that option. DECISION: DENIAL The Deschutes County Historical Landmarks Commission finds the fence to be incompatible to the site and therefore denies the request for retroactive approval of the subject fence. The Landmarks Commission requires TID to submit a complete plan with alternatives to the existing fence within 60 days of decision. Motion 4: It was moved and seconded (Martinson/Sholes) to deny Applicant's request for retroactive approval of the installed fence and require submittal of a complete plan with altematives within 60 days of decision. During discussion of the motion, Commissioner Smiley asked that Applicant address noise and landscaping issue in its new application. Commissioner Schwartz urged that Applicant's new proposal be in line with the Secretary of the Interior's standards regarding retention and preservation of the historic character of the property (the Secretary of the Interior's Guideline on Settings) and screening of the facility from view of neighbors up on the hill. Motion 4 passed unanimously (7/0/0). The Deschutes County Code Enforcement Officer is being notified of this decision so that the decisi arch 3, 2005 and its decision can be enforced. Derek K. Stevens, Chair Dated: June 18, 2007 This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of record. Page 24 of 25 Q: \planning\Historic\Historic Preservation \DECISIONS \Tumalo Irrigation District Fence.doc Certificate of Mailing I certify that I mailed the "Decision" for this application to the applicant, parties of record and to the County CDD and Code Enforcement Officer by first class mail in Bend, Oregon on June 18, 2007. 1. Tumalo Irrigation District, attention Elmer Mc Daniels, Manager, 64697 Cook Avenue, Bend, OR 97701 2. Sharon Smith Attorney at Law, PO Box 1151, Bend, OR 97709 3. Doug Ertner, 3890 NW Xavier, Redmond, OR 97756 4. Susan Benson, 63090 Stag Drive, Bend, OR 97701 5. Randal Howard, 63040 Stag Lane, Bend, OR 97701 6. Gary Clark, 63080 Stag Lane, Bend, OR 97701 7. Judy Clark, 63080 Stag Lane, Bend, OR 97701 8. Deschutes County CDD, 117 NW Lafayette, Bend., OR 97701 n ivkkA f June 18, 2007 Page 25 of 25 Q: \planning\Historic\Historic Preservation\DECISIONS \Tumalo Irrigation District Fence.doc NOM OM ._ w ..0 5.• n. Molauuw.. -5' 0 ODAVID EVANB AND ASSOCIATES INC. ■AQ NW W•ll . .ul!• 102 0•54, •7701 (5nl 541.7.11 0 X - moos 0* TUMALO FEED CANAL TUMALO IRRIGATION DISTRICT BEND, OREGON LANDSCAPE PL IN PLANT PALETTE MVO. FKRAN11 55 NNArE / co.,* NAPI D...srrY 52T C11)'.4 5PA„'1NG e r� JuniPert'D auillMPSe / Wes{vn ./..,2+e. Pa+enow 1,s (2) D-5. 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THIS SERWCEBERRY HAS RECENTLY BEEN EX511N0 6 CHAI1 LADS FENCE P.05 10 20 30 40 4 IMNINN 1 a 94.1 two PERO OP* s-a Rwa , . iao� -uiww iawn� YYYDAVID EVANS ANDASSSOCIATES iNC. 1.7 99*js 07107 Nxl)11U 1971 TUMALO FEED CANAL LANDSCAPE P AN TUMALO IRRIGATION DISTRICT BEND, OREGON