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HomeMy WebLinkAboutCline Falls Power Plant Appeal Docs MEMORANDUM DATE: October 1, 2013 TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner RE: PacifiCorp Appeal / Historic Landmarks Commission Declaratory Ruling / Cline Falls Power Plant (File Nos. DR-13-6 and A-13-3). The Board of Commissioners (Board) will hold a public hearing on October 21, 2013 at the Deschutes Services Center, starting at 10:00 a.m. The Board will hear an appeal filed by PacifiCorp and submitted in response to a Deschutes County Historic Landmarks Commission (HLC) declaratory ruling that the Cline Falls Power Plant historic designation includes the entire site, not just the dam, penstock, and powerhouse. The review of this application is in response to the Board’s decision to accept review of the request via Order 2013-037, which is based on a Planning staff recommendation. DECLARATORY RULING The County Community Development Director requested the HLC interpret the comprehensive plan regarding scope of the Cline Falls Power Plant historic site. In their decision, the HLC determined that the Cline Falls Power Plant historic resource includes the dam, penstock, and powerhouse but it is not limited to those structures. The HLC reviewed the supporting documentation found in County file HS-90-99, the Economic, Social, Environmental, and Energy (ESEE) Analysis, and Ordinance Nos. 92-018 and 92-019. They reviewed Goal 5 requirements as they were defined in 1992 that determined site significance based on quantity, quality, and location. Furthermore, they reviewed expert testimony submitted by COID and PacifiCorp. Based on the broader discussion in the ESEE and the expressed intent of preserving industrial and economic history, the HLC determined that the emphasis was on the importance of the hydropower site and its relationship to the physical structures. The HLC determined the entire site of Cline Falls Power Plant is the protected historic resource. BACKGROUND The subject property is located at 300 NW 74 th Street, which is approximately five miles west of Redmond and one mile south of the Cline Falls State Scenic Viewpoint. The property is owned by Central Oregon Irrigation District (COID). PacifiCorp has leased the site since 1913 until it File No.: A-13-3 (DR-13-6) Page 2 of 4 was terminated on February 15, 2013. According to County records, PacifiCorp had the right to remove electric generating equipment from the site at the end of the lease period. 1 In February 2013, COID filed a code enforcement complaint that the lessee, PacifiCorp, violated Deschutes County Code (DCC) by altering a historic site (Code Enforcement File: C13-18).2 The site alteration included the removal of the power plant’s switchyard and associated power poles as well as removal of internal electric generating equipment. Since there were differing opinions about what constituted the historic resource at the Cline Falls Power Plant site, the Community Development Director requested that the HLC interpret the code for clarity and guidance (File No. DR-13-6). The HLC issued a decision on July 2, 2013 finding that the entire Cline Falls Power Plant site is a protected historic resource. PREDOMINANT ISSUES The predominant issue in this case is whether the Board’s decision in 1992, embodied in Ordinance 92-018, designated specific structures of the Cline Falls Power Plant (dam, penstock, and powerhouse) or the entire site. Cline Falls Power Plant is on the County’s Goal 5 inventory. As listed in the inventory and in Exhibit B of Ordinance 92-018, the plain language states that the Cline Falls Power Plant is a historic resource that is: [An] early hydropower site on the Deschutes River…. The site includes the dam, penstock, and powerhouse. Ordinance 92-018 Exhibit B contains the following concluding inventory note: Unless otherwise indicated the inventoried site includes only the designated structure. No impact areas have been designated for any inventoried site or structure. In their Notice of Appeal, PacifiCorp addresses five main arguments or assignments of error concluded in the HLC decision. Below are the assignments of error and Planning staff response. Planning staff will attend the Board’s work session on October 7, 2013 to discuss the appeal in further detail and answer any questions. 1 In PacifiCorp’s Notice of Intent to Appeal and other documents in the record, the Board will see reference to the power plant’s switchyard and standalone staircase. Based on DCC 2.28.020, switchyard and staircase are considered “structures.” 2 External, not internal, alterations of a protected historic resource are subject to review by the HLC. File No.: A-13-3 (DR-13-6) Page 3 of 4 PacifiCorp’s Assignment of Error Staff Comments 1. Improper reliance on the ESEE. The Commission erred by relying on the ESEE (Ordinance 92-019) when attempting to determine which structures or locations the Board designated as protected historic resources. • The County requested the HLC to consider Ordinance 92-019 and associated documents (i.e. Ordinance 92-018, the ESEE Analysis). • The reliance of the ESEE was also based on Ordinance 94-030 Exhibit B where it states that the “ESEE prescription for each site is intended to stand as a prescription for the manner in which the historic resources at each site are intended to be protected.” • Reliance on the ESEE was a proper review of the legislative history for purposes of interpreting ambiguous language. 2. Ignored the Plain Language of the Inventory. If the Commission had properly considered only the Inventory and Ordinance 92-018 when determining the scope of the protected resource, the plain language of the Inventory and Ordinance indicates that the Board designated only the dam, the penstock, and the powerhouse. • The plain language of the Inventory was found to be ambiguous even after review of the ESEE and associated ordinances. Therefore, the County referred the interpretation to the HLC. • The HLC based its decision on an adequate factual base supported by substantial evidence in the record and relied on its interpretation of Ordinance Nos. 92-018 and 92-019 and submitted testimony. 3. No Map or Description of the “Entire Site”. The Commission erred in finding that the “entire site” is the protected resource because the Inventory does not describe or map the “entire site” with particularity as required by OAR 660-016-0000(2) (nor is the “entire site” described or mapped by Ordinance 92-018, the ESEE, or Ordinance 92-019). • The ESEE associated with each County historic resource was established through findings documented with the state on its Oregon Inventory of Historic Properties, Historic Resource Survey Form. This form provides reference to each site and includes maps, descriptions, photos, etc. • Each ESEE includes a property description that includes an address and tax map and tax lot number. • This is an improper collateral attack on the original decision. The lack of a map or description could have been raised when the site was originally listed in the inventory. 4. The Commission lacks the Authority to Expand the Scope of an Ambiguous Designation. The only structures that were expressly and unambiguously included in the Board’s designation of the Cline Falls Power Plant were the dam, the penstock, and the powerhouse. But the Commission decided that the Board’s designation contained ambiguity and the Commission then purported to clarify such ambiguity by holding that “the entire site of the Cline Falls Power Plant is the protected historic resource.” • According to DCC 2.28.040, the HLC shall serve as the hearings body for matters concerning historic resources. • In addition, the HLC may act upon requests by on its own motion concerning the designation of particular historic sites. • This is not an expansion of the scope. It is merely an interpretation of ambiguous language. File No.: A-13-3 (DR-13-6) Page 4 of 4 PacifiCorp’s Assignment of Error Staff Comments 5. Due Process Violation. The Decision violates PacifiCorp’s Due Process right to fair notice because a person of ordinary intelligence could not determine, prior to the Decision, that Cline Falls structures other than the dam, the penstock, and the powerhouse were protected historic resources. • In 1992, during the Cline Falls Power Plant historic resource designation process, the appropriate notice was provided based on the County procedures at the time.