HomeMy WebLinkAboutDoc 669 - Decision - TID Landscape Plan02 2
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Deschutes County Board of Commissioner;
1300 NW Wall St., Suite 200, Bend, OR 97701 -19611
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of November 30, 2009
Please see directions for completing this document on the next page.
DATE: November 16, 2009
FROM: Kristen Maze Community Development Department 383 -6701
TITLE OF AGENDA ITEM:
A final decision and signature of Document No. 2009 -669, findings and decision on an appeal (A -07 -7)
by Tumalo Irrigation District of the Historic Landmarks decision denying their landscape plan
surrounding a fence around the fish screen and historic headgates at Shevlin Park for the Tumalo C °eek
Diversion Dam. File No. A -07 -7 (HLA- 05 -1).
PUBLIC HEARING ON THIS DATE? No. The hearing was closed to public testimony on 11/::'/09.
BACKGROUND AND POLICY IMPLICATIONS:
Before the Board is a written final decision for an appeal filed by the applicant, Tumalo Irrigation
District, represented by attorney Sharon Smith. The appeal is in response to the Deschutes County
Historic Landmarks decision, file no. HLA -05 -1, denying the applicant's landscape plan and fence. The
applicant's appeal requests the Board reverse the Historic Landmark Commission's decision.
The Board to held a public hearing on November 2, 2009 and considered the appeal of the Historic
Landmarks decision (HLA -05 -1) for denial of the Tumalo Irrigation District's landscape plan and i mace
surrounding the fish screen at the Shevlin Park diversion dam. At that hearing, the Board overturn; :d
the Historic Landmarks Commission denial of the fence surrounding the fish screen. This is a writ ten
decision of that oral decision.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Consideration of signature for Document No. 2009 -669, approval of the Tumalo Irrigation Districts
appeal for installation of a fence around the fish screen at the Tumalo Creek Diversion Dam.
ATTENDANCE: Kristen Maze
DISTRIBUTION OF DOCUMENTS:
Sharon Smith Bryant Lovlien & Jarvis P. O. Box 1151, Bend, OR 97709
Doug Ertner, 3890 NW Xavier, Redmond, OR 97756
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF DESCHUTES COUNTY
BOARD OF COUNTY COMMISSIONERS
FILE NUMBER: A -07 -7 / HLA -05 -1
APPLICANT:
Tumalo Irrigation District
Elmer McDaniels, Manager
65697 Cook Avenue,
Bend OR 97701
PROPERTY OWNER: Bend Parks & Recreation
799 SW Columbia Street
Bend, OR 97702
APPLICANT
REPRESENTATIVE: Sharon Smith
Bryant Lovlien and Jarvis, P.C.
P.O. Box 880
Bend, OR 97709
REQUEST:
The applicant is requesting that the HLA 05 -1 decision to deny the fence
surrounding the fish screen be approved for the northeast of Shevlin Park on
Tumalo Creek property located on Deschutes County Assessor's Map 17 -11-
23, tax lot 800, 1600, 1700.
I. APPLICABLE STANDARDS AND CRITERIA:
A. DCC 23.108.040, Goal 5 Inventory - Historic Resources.
B. Deschutes County Code ( "DCC ") Chapter 2.28, HISTORICAL PRESERVATION AND
HISTORICAL LANDMARKS COMMISSION
C. Ordinance 94-022
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II. FINDINGS OF FACT:
A. LOCATION: Northeast of Shevlin Park on Tumalo CreekDeschutes County Assessor mq3 17-
11 -23, tax lot 800, 1600 and 1700.
B. CLASSIFICATION: Part of the dam is designated as a County Goal 5 historic resource and was
constructed in 1913.
C. SITE DESCRIPTION: The property is located north of Aspen Hall at the edge of Shevlin Park
on the Tumalo Creek. It is called the Tumalo Diversion Dam and Feed Canal. It was originally
built in 1913 and rehabilitated in 1975, this system diverts and carries water from Tumalo Creek,
at a point '/2 mile downstream from Shevlin Park, overland 7.2 milesri a northwesterly direction to
the Upper Tumalo Reservoir.
E. SURROUNDING LAND USES: The subject property is surroundedby park land and residents
located on the hill to the north.
F. PROPOSAL: The applicant proposes that theBoard of County Commissoners ( "Board ") reverse
the Historic Landmarks Commission' s( "Landmarks Commission ") HLA -05 -1 decision and allow
the fence constructed around the fishscreen at the Tumalo Irrigation Feed Canalin Shevlin Park.
G. PROCEDURAL HISTORY: In 2005, the Applicant submitted an application for the demolition and
replacement of the historic headgate to the Landmarks Commission. The demolition and replacement
were approved with a condition to preserve a portion of this historic headgate and raising mechanism
at the Deschutes County Historical Society museum (HLA 05 -01 Decision, dated March 4, 2005.)
Pursuant to the decision, the site will have an interpretive panel near the dam explaining the
significance of the original headgate.
As part of the 2005 application, the Applicant explained that 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 agreementwith the Oregon Department of Fish and Wildlife to improve in stream fish habitat. The
Landmarks Commission claimed it had jurisdiction over these additional improvements. Thus, while
approving the removal of the headgate and the raising mechanism, the Landmarks Commission
required that the applicant return to the Landmarks Commission for approval of the type of fence to be
installed around the new fish screen. The Landmarks Commission 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 but
installed fence around the fish screen that is a six -foot cyclone fence with two feet of barbed wire
across the top of the fence
In late 2006, Deschutes County investigated a code enforcement claim regaring the fence. At that
time the Applicant agreed to resolve the code complaint by submitting its plans for the fence at a
hearing before the Landmarks Commission At the hearing on April 19, 2007, the Applicarr
explained the public safety and public policy reasons for the fence. The Landmarks Commission
requested additional information and stated that it would require a review of a landscape plan anc
would not accept slats in the fence.
The Landmarks Commission' s denial decision was timely appealed to the Board by the Applicant of
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COMMISSIONERS in HLA- 05- 1(TID) — Deschutes County Document No. 2009 -669
August 6, 2007. Appellant/Applicant requested and received approval of de novo review of the matter
before the Board by Order No. 2007 -145. The Applicant then placed that application on hold to allow
the Applicant to attemptto resolve the issue with theLandmarks Commission.
The Landmarks Commission held another hearing on November 20, 2008. At that hearing, the
Applicant provided a landscape plan that had been reviewed and revised based on suggestions from
the Landmarks Commission's staff. The landscaping plan used native landscaping to provide
screening for the fence. Nonetheless, the Landmarks Commission again denied Applicant's request
for reconsideration and approval.
After that denial, the Applicant requested that the Board this appeal move forward to a decision by
the Board and asked the Board toreverse the Landmarks Commission's denial of the fence
surrounding the fish screen. At the hearing before the Board, the Applicant stated that it remained
willing to install the landscaping. On November 2, 2009, the Board held a duly noticedde novo
public hearing and approved the application.
The 150 -day deadline in ORS 215.427 is not applicable to this decision.
III. CONCLUSIONS OF LAW:
A. 23.108.040. Goal 5 Inventory - Historic Resources.
30. Tumalo Creek— Diversion Dam and Headgate of Feed Canal: Constructed in 1913, the
Feed Canal's purpose was to convey water from Tumalo Creek to the reservoir. The
headworks of the Feed Canal consist of a low overflow weir dam, 94.2 feet in length. The
entire structure is of reinforced concrete. 1'11 -00 TL 5900.
Finding: This county comprehensive plan provision lists the Applicant's dam and headgate, including
the "headworks" as one of County designated Goal 5 Historic Resources. Therefore, the Landmarks
Commission had jurisdiction to hear the application for the removal of the historic portions of the site. As
discussed below under Ordinance 94-022, however, the historic site does not include the fish screen.
B. DCC 2.28.090
A. The landmarks commission shall serve as a hearings body for matters concerning historical
districts, buildings and /or structures and sites within the County and the cities of Bend,
Redmond and Sisters.
F. The commission shall review all information which it has and shall hold hearings as
prescribed in DCC 2.28.
G. The commission shall have authority to coordinate historical preservation programs of the
city, county, state and federal governments, as they relate to property within the County.
FINDING: The Landmarks Commission had authority to hear the application for the removal of the
headgate and the headgate raising mechanism. This was part of the Landmarks Commission's duties in
coordinating the county preservation program based onthe designation of those structures and items having
been designated as part of the County's Goal 5 Historic Resource inventory as discussed below. As discussed
below, however, the Landmarks Commission did not have authority to require fencing around the fish screen
and, therefore, did not have authority to deny the applicant's proposed fencing.
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C. DCC 2.28.170. Exterior Alteration and New Building Restrictions.
A. Except as provided in DCC 2.28.160(11), 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.
Finding: The applicant filed an application with the Landmarks Commission, in accordance with all the
application requirements in DCC 2.28.170, for removal of the historical portions of the Tumalo Creek
Diversion Dam and received the Landmarks Commission's written approval in HLA 05 -01 to do so. That
approval was conditional upon those historical portions be donated to the Deschutes County Historical Society
museum and that an interpretive panel be installed near the dam to explain to the public the historical
significance of the removed portions of the dam.
D. Ordinance No. 94-022
Finding: Ordinance No. 94 -022 is the ordinance that designated various aspects of the Tumalo Creek
diversion dam to be Deschutes County historical landmarks for purposes of the county's Goal 5 resource
inventory. That ordinance analyzed the conflicting uses and the program to achieve the goal of preserving the
designated historic landmarks.
Exhibit B, page 3, of that ordinance 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."
Additionally, the ordinance specifically exempts the "Installation, operation and maintenance ... of
fish screening devices" from review by the Landmarks Commission id.
The designated protected portions of the structure remain outside of the fenced area and will be removed in
accordance with the requirements of HLA 05 -01. The fence surrounds the newly installed fish screen. This is
not part of the protected listing above of the designated historic structure. Nothing in this ordinance or in the
comprehensive plan provisions listed for protection that portion of the dam where the fish screen was installed
and, in fact, specifically exempted that portion of the dam
Therefore, the Landmarks Commission had no authority to apply a condition of approval to HLA 05 -01
regarding the fence. Thus, the Landmarks 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. As a result, the Landmarks Commission's
decision denying the applicant's fencing proposal must be reversed and the fencing approved.
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COMMISSIONERS in HLA- 05- 1(TID) — Deschutes County Document No. 2009 -669
The Board appreciates and, therefore, accepts theApplicant's commitment to landscape around the fence
to screen it from the neighboring residents.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Deschutes County Board of
Commissioners herebyREVERSES the Deschutes County Historic Landmarks Commission's denial of
applicant's request for installation of a fence, made of sixfoot tall wire mesh and topped with two feet of
barbed wire, around the fish screen at the Tumalo Creek Diversion Dam.
Dated this of , 2009 BOARD OF COUNTY COMMISSIONERS
ATTEST:
TAMMY BANEY, CHAIR
DENNIS R. LUKE, VICE -CHAIR
Recording Secretary ALAN UNGER, COMMISSIONER
Mailed this day of , 2003.
THIS DECISION BECOMES FINAL UPON MAILING. IF THIS IS A LAND USE DECISION, PARTIES
MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF
THE DATE ON WHICH THIS DECISION IS FINAL. IF THIS IS NOT A LAND USE DECISION,
APPEAL IS BY WRIT OF REVIEW TO THE OREGON STATE CIRCUIT COURT IN DESCHUTES
COUNTY WITHIN 60 DAYS.
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