HomeMy WebLinkAboutHearing - PB Canal Historic ListingDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes,org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of January 28, 2015
DATE: January 7, 2014
FROM: Matthew Martin CDD 541-330-4620
TITLE OF AGENDA ITEM:
A public hearing on the Administrative Decision regarding the application timing and ownership issues
related to File No, 247-14-000373-HS, an application for a Comprehensive Plan amendment to
designate an approximately one-mile segment of the Pilot Butte Canal in the Suburban Residential 2 Yz
zone as a Goal 5 historic resource.
PUBLIC HEARI:"o!G ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATlO:"o!S:
The Pilot Buttc Canal Preservation Alliance submitted a request for a Comprehensive Plan amendment
to designate an approximately one-mile segment of the Pilot Butte Canal as a Goal 5 historie resource
in the SR 2 Yz zone. Upon review of the submittal, a threshold issue emerged regarding an
interpretation ofDCC 2,28.060(A)(2) and the timing of the application filing as it relates to another
pending application affecting the subject properties. In addition, there is a second procedural issue
relating to an interpretation of the term "owner" as it relates to the canal. Staff has issued an
administrative decision rejecting the filing of the request.
On December 15, 2014, the Board approved Order No. 2014-038 initiating review of this decision.
Staff recommended this action in order to interpret the timing criteria and obtain deference from the
Land Use Board of Appeals (LUBA) in the event the decision is appealed. The ownership issue is also
important to decide at this point because it may be dispositive of whether or not the County can adopt
the proposed plan amendment.
FISCAL IMPLICATIONS:
The cost of a hearing before the Board since no appeal fee will be paid.
RECOMMENDATION & ACTION REQUESTED:
Open publie hearing and take testimony; deliberate if appropriate.
ATTENDANCE: Matthew Martin and Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Matt Martin, CDD
_______________________ A".,.
Community Development Department
PLanning Division Building Sah!ty OM,ion Environmental Suit$ Division
';;V,yfu;:~
P.O. Box 6005 117 NW Lafayette Avenue Bend. Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: January 8. 2015
TO: Board of County Commissioners
FROM: Matthew Martin. Associate Planner
RE: Order No. 2014-03 I Pilot Butte Canal Goal 5 Historic Resource
The Board of County Commissioners (BOCC) will hold a public hearing on January 28. 2015 at
10:00 a.m. to review an administrative decision rejecting the filing of a request to designate a
segment of the Pilot Butte Canal as a Statewide Planning Goal 5 historic resource in the
Deschutes County Comprehensive Plan.
BACKGROUND
On November 3, 2014, the Pilot Butte Canal Preservation Alliance (Preservation Alliance)
submitted an application for a Comprehensive Plan amendment to designate an approximately
one-mile segment of the Pilot Butte Canal as a Goal 5 historic resource in the Suburban Low
Density Residential (SR 2 Y» Zone.' Upon review of the submittal, a threshold issue emerged
under Deschutes County Code (DCC) 2.28.060(A)(2) regarding the timing of the application
filing. DCC 2.28.060(A)(2) states:
"Any request for historical or cultural designation must be filed with the County
planning division before the date of application for any building permit, or any
other application or permit which might be affected by such historical
designation." [emphasis added/
The Preservation Alliance's application, designating the Pilot Butte Canal as a historical
resource may affect Text Amendment (TA) 13-4, which is currently pending before the BOCC.
TA 13-4 is a proposed text amendment to DCC Title 19, Chapter 19.20, SR 2 Y> Zone to allow
the operation. maintenance, and piping of existing irrigation systems as an outright use in the
zone.
Given TA-13-4 and its relationship to the Pilot Butte Canal segment being proposed as a historic
resource, staff issued an administrative decision on December 9 rejecting the filing of the
Preservation Alliance's application. In addition, the administrative decision addressed a second
procedural issue relating to ownership of the Pilot Butte Canal and an interpretation of ORS
, File No. 247-14-000373-HS.
Quality Services Performed with Pride
197.772, OAR 660-023-0200(5)2 and DCC Chapter 2.28. The timing of the application and
ownership were the only items addressed by the decision; staff did not examine the substantive
merits proposing the canal as a historic resource. The Preservation Alliance argued for a
different interpretation than staffs of both the language in DCC 2.28.060(A)(2) provided above
and the definition of "owner".
The SOCC on December 15 approved Order No. 2014-03 initiating review of the administrative
decision rejecting the filing of the Comprehensive plan amendment application. Secause the
SOCC will be interpreting the County Code regarding the timing of the application submittal,
review will allow the SOCC to obtain deference from the Land Use Soard Appeals (lUSA)
related to interpretation in the event of an appeal. The SOCC will also be given deference
regarding the ownership issue if the SOCC's interpretation rests on interpreting the County
Code. If the SOCC's interpretation of the ownership issue relates only to the interpretation of
state law, it will not be afforded deference on appeal but will provide a definitive interpretation of
ownership in the event the decision is appealed.
Attachments:
1. Administrative Decision for File No. 241-14-000373-HS
2. Order No. 2014-03
'htlps:iiwww.oregonlegislature.govibills lawsJlawsstalulesl20 130rs197 .hlml;
http://arcweb.sos.state.or.uslpages/rulesloars 60010ar 6601660 023.hlmll
Community Development Department
Planning Division Building Safety Division Envtronmental Soils Division
P o. Box 6005 117 J>NV Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
FINDINGS AND DECISION
FILE NUMBER: 247-14-000373-HS
APPLICANT: Pilot Butte Canal Preservation Alliance
20980 Country View Way
Bend. OR 97701
APPLICANT'S ATIORNEY: Bruce White
P.O. Box 1298
Bend, OR 97709
REQUEST: A Comprehensive Plan Amendment to designate a segment of
the Pilot Butte Canal as a Goal 5 historic resource.
STAFF CONTACT: Matthew Martin AICP, Associate Planner
I. APPLICABLE CRITERIA:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
II. BASIC FINDINGS:
A. LOCATION: The subject properties (32 total) are located northeast of the City of Bend
identified as follows:
Tax Map 17-12-15AA Lots 300,600,700,702,703,705
Tax Map 17-12-15AC Lots 300. 400,600,700,800
Tax Map 17-12-15AD Lots 105, 106, 107.108,109,110,111,200,400,500,600,900
Tax Map 17-12-15BD Lots 1300, 1400. 1500
Tax Map 17 -12-15CA Lots 200, 300
Tax Map 17-12-15DB Lots 100, 600. 700. 800
B. ZONING: The subject properties are zoned Suburban Low Density Residential (SR 2%).
C. PROPOSAL: The applicant has submitted a request for a Comprehensive Plan
amendment to designate an approximately one-mile segment of the Pilot Butte Canal
as a Goal 5 historic resource in the SR 2% Zone. Upon review of the submittal, a
Quality Services Performed lOith Pride
threshold issue emerged regarding the timing of the application filing as it relates to
another pending application affecting the subject properties. In addition, there is a second
procedural issue relating to ownership of the canal. Since this involves interpreting these
two critical aspects of the application and process, staff is issuing an administrative
decision. Staff notes that the substantive merits of the request to deSignate the canal as a
historic resource are not addressed by this decision.
III. CONCLUSIONARY FINDINGS;
Title 2. Deschutes County Administration Ordinance
Chapter 2.2B. HistoriC Preservation and Historic Landmarks Commission
A. 2.28.020. Definitions.
"Properly Owner" means the owner of record or the contract purchaser and does not
include a person or organization that holds a security interest.
FINDING: An easement runs along the length of Pilot Butte Canal. As it pertains to the
applicant's proposal. the easement is located on 32 private properties. The applicant argues
Central Oregon Irrigation District (COlD), the operator of the facility and easement holder, does
not have an ownership interest, and therefore COlD's consent is not needed for the segment to
be deSignated as a historic resounce.
In a previous land use decision, A-10-2(NUV-09-1), a Deschutes County Hearings Officer
addressed a similar easement and landowner relationship. The Hearings Officer found the
holder of an easement across private property is an "owner of record" of an interest in the
property. and therefore is a "property owner" as defined in DCC 22.0B.010(A).' Based on this
analysis, staff finds that COlD, as the easement holder for the Pilot Butte Canal. is an owner of
record along with the underlying real property owners.
The issue with this application, however, relates to the language in OAR 660-023-0200(5),
which says:
"Local governments shall allow owners of inventoried historic resources to refuse historic
resource designation at any time prior to adoption of the designation and shall not inctude a site
on a list of significant historic resources if the owner of the property objects to its designation."
The previous finding of the Hearings Officer's decision is applicable to the language in the OAR
that allows the owner of the resource to refuse designation. Therefore, because COlD is an
easement holder, COlD is an owner for purposes of the OAR as well and has a right to refuse
the historic deSignation of its canal. COlD refused such designation in its letter dated
November 14, 2014. As a result, the County cannot designate the canal as a historic resource
al this time.
1 Dee 22.0B.010(A) Property Owner For the purposes of Dee 22.0B.01 0, the term "property owner" shail mean the
owner of record or the contract purchaser and does not include a person or organization that holds a security
interest.
247 -14-000373-HS Page 2
B. Section 2.28.060. Procedures.
A. Historical Building or Site-Designation Procedure.
2. Any request for historical or cultural designation must be filed with
the County planning division before the date of application for any
building permit, or any other application or permit which might be
affected by such historical designation.
FINDING: COlD submitted a Text Amendment application, File TA-13-4, on December 23,2013, It
is currently under review by Deschutes County, TA-13-4 proposes:
".. ,a text amendment to Deschutes County Code Chapter 19.20 Suburban Low Density
Residential Zone -SR 2)1; to aI/ow the operation, maintenance, and piping of existing irrigation
systems as an outright use within the zone ... "
TA-13-14 proposes, as an outright permitted use, the ability to pipe approximately 4,500 feet of the
Pilot BuUe Canal, including segments that relate to the applicant's recent request for a Goal 5
historic designation.
The applicant submitted application 247-14-000373-HS on November 3, 2014. Staff interprets
DCC 2,28.060(A)(2) and "any other application" to inClude TA-13-4 since it directly relates to this
segment of canal located in the SR 2'/, Zone, Staff finds the applicant's request to designate a
segment of the Pilot Butte Canal as a Goal 5 historic resource cannot be filed until a decision is
rendered forTA 13-4,
IV. CONCLUSION AND RECOMMENDATION:
Based on the information provided herein, staff finds:
1. The request to designate a segment of the Pilot BuUe Canal as a Goal 5 historic
resource cannot be filed until a decision is rendered for TA 13-4; and
2, The underlying real property owners and COlD, as an easement holder, are both owners
of record as it relates to Applicant's proposal to designate a segment of the Pilot BuUe
Canal as a Goal 5 historic resource,
DESCHUTES COUNTY PLANNING DIVISION
~~~-.~ wfi'~ten b~a(Martin, Associate Planner
Reviewed by: Peter Gutowsky, Planning Manager
Dated this 9th day of December, 2014 Mailed this 9" day of December, 2014
247-14-000373-HS Page 3
REVIEWED
LEG'~SEL
For Recording Sta"m"'p'-O=n"'ly'-____
BEFORE THE BOARD OF COlJl\'TY COMMISSIONERS OF DESCHUTES C01JNTY, OREGON
An Order Initiating Review of Administrative •
Decision in File No, 247-14-00373-HS, • ORDER NO, 2014-038
WHEREAS, on December 9, 2014, staff issued an Administrative Decision on Application No, 347-14
00373-HS; and
WHEREAS, Section 22,28,050 of the Deschutes COWlty Code aHows the Deschutes County Board of
County Commissioners (HBoard") to initiate review of any administrative action within 12 days of the date of
mailing of the final written decision of the Planning Director; and
WHEREAS, the Board has given due consideration as to whether to initiate review of this application;
now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section], The Board hereby initiates review of application 247-14-000373-HS pursuant to Title
22 of the Deschutes County Code and other applicable provisions of the County land use ordinances,
Section 2, The review shall be heard de novo on the issues of interpretation of DCC 2,28,020
"Property Owner" and the applicability ofDCC 2,28,060(A)(2),
Section 3, Staff shall set a hearing date and cause notice to be given to all persons or panies
entitled to notice pursuant to DCC 22,24,030 and DCC 22,32,030.
Dated this 1s:t!J.... of ({:# e -. ,2014 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAM~
ANTHONY DEBONE, Vice Chair
ATTEST:
•... ~~--
Recording Secretary ALAN UNGER, Commissioner
Page 10F I -ORDER NO, 2014-038, ______" 2014
Community Development Department
""'_OMolon Building _ DIvIoIon ___OM.....
P.O. 60)(6005 117NWLafayetteAvenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
nttp;f/www.co.descnutes.or.US/cddj
FINDINGS AND DECISION
FILE NUMBER: 247-14-000373-HS
APPLICANT: Pilot Butte Canal Preservation Alliance
20980 Country View Way
Bend, OR 97701
APPLICANT'S ATTORNEY: Bruce White
P.O. Box 1298
Bend, OR 97709
REQUEST: A Comprehensive Plan Amendment to deSignate a segment of
the Pilot Butte Canal as a Goal 5 historic resource.
STAFF CONTACT: Matthew Martin AICP, Associate Planner
r. APPLICABLE CRITERIA:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
II. BASIC FINDINGS:
A. LOCAnON: The subject properties (32 total) are located northeast of the City of Bend
identified as follows:
Tax Map 17-12-15AA Lots 300, 600,700,702,703,705
Tal< Map 17-12-15AC Lots 300,400,800,700,800
Tax Map 17-12-15AD Lots 105. 108. 107, 108, 109, 110, 111,200.400,500.600,900
Tax Map 17-12-1580 Lots 1300,1400.1500
Tax Map 17-12-15CA Lots 200, 300
Tal< Map 17-12-1508 Lots 100,600.700,800
B. ZONING: The subject properties are zoned Suburban Low Density Residential (SR 2';;).
C. PROPOSAL: The applicant has submitted a request for a Comprehensive Plan
amendment to designate an approximately one-mile segment of the Pilot Butte Canal
as a Goal 5 historic resource in the SR 2';; Zone. Upon review of the submittal, a
Qul/.Uty Sen>ius Performed with Pride
threshold issue emerged regarding the timing of the application filing as it relates to
another pending application affecting the SUbject properties. In addition, there is a second
procedural issue relating to ownership of the canal. Since this involves interpreting these
two critical aspects of the application and process, staff is issuing an administrative
decision. Staff notes that the substantive merits of the request to designate the canal as a
historic resource are not addressed by this decision.
III. CONCLUSIONARY FINQINGS:
Title 2, Deschutes County Administration Ordinance
Chapter 2.2B. Historic Preservation and Historic Landmarks Commission
A. 2.28.020. Definitions.
·Property Owner" means the owner of record or the contrect purchaser and does not
Include a person or organization !hat holds a security Interest.
FINDING: An easement runs along the length of Pilot Butte Canal. As it pertains to the
applicant's proposal, the easement is iocated on 32 private properties. The applicant argues
Central Oregon Irrigation District (COlO), the operator of the facility and easement holder, does
not have an ownership interest, and therefore COlO's consent is not needed for the segment to
be designated as a historic resource.
In a previous land use decision, A-l0-2(NUV-09-1), a Deschutes County Hearings Officer
addressed a similar easement and landowner relationship. The Hearings Officer found the
holder of an easement across private property is an ·owner of record" of an interest in the
property, and therefore is a "property owner" as defined in DCC 22.0B.Ol0(A).' Based on this
analysis, staff finds that COlD, as the easement holder for the Pilot Butte Canal. is an owner of
record along with the underlying real property owners.
The issue with this application. however, relates to the language in OAR 660-023·0200(5),
which says:
"Locat govemments shall allow owners of inventoried historic resources to refuse historic
resource designation at any lime prior to adoption of the designation and shall not indude a site
on a list of significant historic resources if the owner of the property objects to its designation.'
The previous finding of the Hearings Officer's decision is applicable to the language in the OAR
that allows the owner of the resource to refuse deSignation. Therefore. because COlD is an
easement holder. COlO is an owner for purposes of the OAR as well and has a right to refuse
the historic designation of its canal. COlO refused such deSignation in its letter dated
November 14,2014. As a result, the County cannot designate the canal as a historic resource
at this lime.
, Dec 22.08.010[A) Property Owner. For the PuIjlOSeS of DCC 22.08.010. 'he term "property owner" shall mean the
owner of record or the centrad purchaser end does not include a person or organtzation that holds a security
interest.
247-14-000373-HS Page 2
B. Section 2.28.060. Procedures.
A. Historical Building or Site-Designation Procedure.
2. Any request for historical or cultural designation must be "led with
the County planning division before the date of application for any
building permit, or any other application or permit which might be
affected by such historical designation.
FINDING: COlD submitted a Text Amendment application. File TA-l3-4. on December 23,2013. It
is currently under review by Deschutes County. TA·I3-4 proposes:
"... a taxt amendment to Deschutes County Code Chapter 19.20 Suburban Low Density
Residential Zone -SR 2% to allow the operation, maintenance, and piping of existing Irrigation
systems as an outright usa within the zone ...
TA-13-14 proposes, as an outright permitted use, the ability to pipe approximately 4.500 feet of the
Pilot Butte Canal, including segments that relate to the applicant's recent request for a Goal 5
historic designation.
The applicant submitted application 247.14-000373·HS on November 3, 2014. Staff interprets
DCC 2.28.060(A)(2) and "any other application" to include TA·l3-4 since it directly relates to this
segment of canal located in the SR 2;1, Zone. Staff finds the applicant's request to designate a
segment of the Pilol Butte Canal as a Goal 5 historic resource cannot be filed until a decision is
rendered for TA 13-4.
IV. CONCLUSION AND RECOMMENDATION:
Based on the information prO'lllded herein. staff finds:
1. The request to designate a segmenl of Ihe Pilot Butte Canal as a Goal 5 historic
resource cannot be filed until a decision is rendered for TA 13-4; and
2. The underlying real property owners and COlD, as an easement holder, are both owners
of record as it relates to Applicant's proposal 10 designate a segment of the Pilot Butte
Canal as a Goal 5 historic resource.
DESCHUTES COUNTY PLANNING DIVISION
~60~--'
Wlltten ~(Mat:Martin, Associate Planner
~
Reviewed by: Peter Gutowsky, Planning Ma nager
Dated this 9th day of December, 2014 Mailed Ihis 9'" day of December, 2014
247-14-000373-HS Page 3