HomeMy WebLinkAbout2015-01-28 Business Meeting Minutes
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 1 of 17
For Recording Stamp Only
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, JANUARY 28, 2015
_____________________________
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
__________________________
Present were Commissioners Anthony DeBone, Alan Unger and Tammy Baney.
Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy
County Administrator; David Doyle, County Counsel; Nick Lelack, Matt Martin
and Paul Blikstad, Community Development; Susan Ross, Property & Facilities;
Tom Kuhn, Health Services; and approximately thirty other citizens.
Chair DeBone opened the meeting at 10:00 a.m.
__________________________
1. PLEDGE OF ALLEGIANCE
2. CITIZEN INPUT
None was offered.
3. Before the Board was Consideration of Board Signature of Document No.
2015-083, a Notice of Intent to Award Contract Letter to Griffin
Construction, LLC, for Tenant Improvements to the Redmond Unger
Building.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 2 of 17
Susan Ross provided details on the bid process for tenant improvements. They
used a low bid process.
Commissioner Unger explained that his father, Dr. Unger, built the building,
but it was sold decades ago, and the Ungers have no involvement with it at all.
BANEY: Move Board signature.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
4. Before the Board was Consideration of Approval and Board Signature of
Document No. 2015-041, a Decision regarding an Appeal and Remand of
the Millican Mining Rezone (4-R Equipment).
Paul Blikstad gave a brief overview of the document. The hearing and
deliberations occurred in November and December. This is the fourth decision
and he believes this document covers all the requirements of the LUBA remand.
Commissioner Unger stated that there will be additional processes as the project
moves forward. Chair DeBone feels it is very complete.
UNGER: Move Board signature.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
5. Before the Board was a Public Hearing on an Administrative Decision
regarding the Designation of a Segment of Pilot Butte Canal as a Goal 5
Historic Resource.
Matt Martin began the opening statement, and the Board concurred. (A copy is
attached for reference.) Chair DeBone opened the hearing. Regarding ex parte
contacts, bias or conflicts of interest, Commissioner Unger stated that there
have been various meetings and hearings, but cl aimed no conflicts of interest.
There were no challenges from the audience.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 3 of 17
Mr. Martin stated the text amendments or historic nature of the canals are not
being addressed today. The question is the timing of an application and
whether it fits the procedural timeline. An administrative decision was made
that it did not, but the Board chose to hear the issue.
Mr. Martin listed the issues under review: the timing of the application, and
property ownership. (A copy of the PowerPoint presentation is attached for
reference.)
Issue #1, the timing of the application submittal, was explained, as was Issue
#2, ownership. A previous Hearings Officer’s decision indicted that there is an
interest in the property. Property owners have an opportunity to refuse a
historic designation, and COID has asked to be excluded.
This situation is unprecedented, so decisions are required on these issues.
Commissioner Baney asked if it is possible to have joint ownership, and
whether an easement is at the same level of ownership. Mr. Martin said joint
ownership is possible: the underlying landowner, but the easement owner also
has an ownership right for that portion of the property. It depends on the terms
of the easement, but it would be an equal ownership.
Commissioner Unger disclosed that he has property that is impacted by a COID
easement, and what was a flume is now a pipe. He wanted to disclose he had a
similar issue on his property. He added that he feels he can be objective in this
situation.
Chair DeBone said the applicant’s attorney will begin, followed by public
testimony.
__________________________
Bruce White, attorney for the applicant, Pilot Butte Canal Preservation
Alliance, provided a handout (a copy is attached for reference). Jeff Perreault
was with him to provide factual details. There are two issues; one is the timing
or getting in the door; and the other is ownership or staying inside the door.
He explained the nature of his handouts. He understands that the record
includes everything filed and submitted to date. This is a matter of statutory
interpretation. The methodology for this is set out in State law, to provide
guidance. He referred to the previous Cline Falls decision.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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He said the other thing to note is that detailed findings are not required, but they
are dealing with interpretations and findings that need to show LUBA how they
got where they did. The administrative decision did not address certain
arguments, and the findings were inadequate. He feels there is a basis for the
Board to overturn this decision.
This is an unusual situation since other issues involving the canal are being
handled separately. He suggested this be sent to the Historic Landmarks
Commission for clarification, with the whole package going to LUBA.
Regarding the timing issue, the problem with staff’s interpretation is that (per
Exhibit B, section 8b), it is critical ‘for any building permit or . . . affected by
the historical designation.’ How do they interpret this? He feels that staff
looked at this in isolation and took too narrow a view. It was given an ordinary
meaning but does not stand alone, and needs to be considered in context. It
could include a legislative action or development action. (See his supplemental
memo, page 2.)
Context includes not just the current version but also the prior version of this
language. The last paragraph was written as part of PL 21. The fact that it was
originally written to include building permits or conditional uses, shows they
were looking at it in larger scope. He is not sure why this language changed at
some point. There is another provision in the Code regarding historic districts
not affecting building permits or development.
This sets the stage for what is meant by any other application, such as the rule
of statutory construction, which means that when general words such as ‘other’
follow, or as specifically mentioned. Oregon case law indicates this is
particularly relevant. (He referred to case law in his notes.) There is a
multiplicity of items listed before the term ‘other’, which is a catch -all; and the
court said this would limit any other claims and the parties therefore could not
claim economic damages.
Another rule (on the top of page 4), is that something is known by its
associates; in this case the text surrounding the wording. An application for
historical designation does not in itself affect all. The term ‘application’ is used
in numerous places in Code, and refers to applications that are quasi-judicial.
This is indicative of the Board’s intent of using that term as adopted and then
readopted in 1988. There is a strong basis to interpret this as not applying for
legislative text amendments.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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COID applied for a text amendment to allow for piping as an outright permitted
use, but also wants to expand its power plant. This project has already been
reviewed by LUBA as a hydroelectric facility. Therefore, this amendment is
not supported by the facts. If the text amendment is approved, it won’t get
approval for its proposal due to the hydroelectric project, which is a conditional
use in the zone. COID has applied for something that won’t get them what they
want. They need to approach this in another way.
There is a fairness issue here, with one part trying to shut out the other. A
person concerned with a historic resource does not allow a use that might injure
that resource, which should be protected by current Code. What happens here
is out of the blue, a text amendment that would shut out the people concerned
about the historic resources from even getting an application in the door.
He referred to a letter and a memo. The District submitted many arguments in
its letter, which he refuted (page 1, B), property owner consent. He asked the
Board to read through this but wants an opportunity for rebuttal.
Starting on page 4 of his response to the County decision, the crux of his
argument is the issue of State law, as set out on page 2 of his October 27, 2014
letter. On page 5, there is a State Administrative Rule noted. They refer to the
County’s local definitions of property owner, but the County can’t define State
law. The County’s definition of property owner is not relevant.
His letter explains the definition of property owner under State law, being
property owners of record in the Assessor’s records. There is no reference to
COID having any ownership in these properties. Ownership runs with the
underlying property owner. The easement interest allows for a right of use; but
they don’t own the property and are limited to what is allowed in the easement
document. The property owners have ownership to the center line of the canal,
and pay taxes based on the entire property including that within the easemen t.
The District has legal rights but this does not make them an owner, in particular
as shown in State law. There is an issue with this. They dug a ditch that is
integral to the property, and it is just part of the property. They have rights and
access, but not ownership.
Regarding Administrative Rule, the District and staff say there is something to
the ownership of historic resources that somehow make this more flexible. His
argument on page 5 of his October letter states that the owner can object to the
historic designation, and his position is that the District is not an owner.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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Commissioner Baney asked if the historic designation was looked into before
the application was submitted by the District. Mr. White said that he was
approached earlier but the neighborhood had not yet organized. However, this
came up during the text amendment proceedings.
Commissioner Baney said the Historic Landmarks Commission has a list of
properties they’d like to have designated. Mr. White said the Landmarks
Commission in 1994 did analyze the canals for historic designation, so there has
been interest in the past. The neighbors had not coalesced around this issue.
Commissioner Baney stated that they don’t want to predispose on the
hydroelectric part of this. Mr. White said that this is their opinion and it
involves more than just piping. It is hard for the District to say that it is just
about piping and not also hydro. Commissioner Baney noted that this is a
decision for another day. Mr. White said that the Board can certainly keep this
in mind. Commissioner Baney stated that if this was a historic resource, that
would change a lot of things.
__________________________
Liz Dickson, representing COID, and Craig Horrell of COID, came before the
Board. Mr. Horrell provided some background. They embrace the historic
nature of the canals. However, they have to balance operations, maintenance
and costs with all of the communities’ needs for water, the neighbors and more.
His predecessor entered into a contract to develop an inventory of all historic
issues and findings about a year ago. There is a draft proposal that was given to
the various parties, with an inventory of what is historic and what is more recent
given to the State Historic Preservation Office.
The issue they have is that a nomination came in during the process, so it now
has to be addressed out of order. They are working with their consultant and
the State, and have a MOU with SHPO on how to proceed. They are doing a
historic overview of Pilot Butte Canal and the main canal. They also have to
struggle with public perception. He wants to do the right thing and hopes they
can all get there.
Commissioner Baney asked for the date of the contract. He said the date is
January 12, 2015, but was secured before he started at COID, probably a year
ago. It is part of an inventory process that will take several more months to
complete.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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Mr. Martin said that they received the nomination of this part of the canal to be
on the national register, to be considered this week. The document was to be
part of that. Baney asked it be included in this record as well.
Ms. Dickson stated that staff made a decision not to process the amendment
because of procedural grounds. First, the application came out after an existing
application was pending. The basic premise is that under 228.060 of Code, a
pending application means a historic designation cannot come in after it. This
is the case here The application was for historic designation of the same section
of the canal that is to be piped. The matter is whether to allow this application
even though another was underway. It was just filed on December 23, 2014,
and a historic designation would negate all work that had been done. The
historic designation is therefore not allowed per Code. Staff looked at Code
and made a correct determination.
The second issue that is procedurally more complicated is ownership. The
Hearings Officer’s decision on the Smith case was whether easement holders
were able to be involved in the process. They have an ownership right for land
use purposes. The Hearings Officer interpreted that land use issues need to
include these easement holders. This is not a State issue and the Board can
interpret it. The Baker case deals with this specific issue, a listing on tax
records. The Assessor’s records are not authoritative as to who owns property
or who has easements. State law allows easement holders to be owners in land
use issues.
The COID application came first by almost a year. The County can review
other cases, but the law is the law. Attorney White raised a number of issues,
but nothing clearly refutes what is in the record. He tried to bring in the hydro
expansion, but this is not material to the issue before the Board. Also,
Deschutes County needs to decide eventually what hydro means.
She said Mr. White also raised a fairness argument, but these are not competing
legislative proposals and he has over simplified the issue. He is asking you to
nullify your own Code. If you want to rewrite Code regarding historic
designations, that can be done at some point, but is not appropriate in this
context.
__________________________
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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Brian Sheets of Schroeder Law Offices in Portland, said he represents a client,
Matt Gadow, who lives on Overtree Road. He said he disagrees with some of
Ms. Dickson’s points.
Regarding the timing issue, he wants to look at the bigger picture. This is a
legislative issue with consequences. Staff said this is unprecedented. Code
provision is ‘any other application or permit that might be affected by a historic
designation’. This Code is asking for speculation in the future on things that
may or may not happen. A logical argument is between the historic designation
application and a proposed text amendment.
The question is, does the historic designation affect the amendment, or can
those two process independently. The text amendment has to do with the
allowance of piping and maintenance as outright use in the zone. The historic
designation limits this to a defined piece of property.
They hope to protect a specific piece of property versus allowing a use. These
are mutually exclusive and not related to each other.
When the Code application and permit are not well defined, is this something to
go before the County, State, a federal agency or other? This lack of clarity
needs to be interpreted, such as what a permit means. Is it any permit, or does it
have to do with water rights. This is too unclear and allows too much
discretion. Complementing this is the rationale provided by staff. There is no
logical link between the text amendment and use proposed with the historic
designation. There has to be a use of the piping in the text amendment and it is
not there. The text amendment does not say it is for piping, just for
maintenance.
The standings issue is unclear. He agrees with Mr. White about this regarding
ownership. They need to think about the bigger picture and policy results.
They are being asked to let an easement rights holder be able to object to a
historic designation. That means many others could, including special districts,
utility owners or private owners, to be in control of the historic designation
program. This could be a big problem with Goal 5 compliance , and could
create superpowers who could object to this type of designation. The Board
needs to reconsider this issue.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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In the same historic preservation section, 2.28, there is a reference to the
ownership or occupant thereof with consent of the owner.. It does not talk
about what an occupant is in regard to historic designation . The appeals
process covers this kind of thing, owners or occupants. If an easement holder is
enough, what about a leaseholder or a renter; do they also have standing? There
could be far-reaching consequences.
Commissioner Baney asked if this designation is solely for the preservation for
a historic resources and has nothing to do with proposed piping. Mr. Sheets
said that they are not related.
__________________________
Matt Gadow said his letter outlines the overall plan. The reason the canal is
historic is that when he bought his property in 1998, the rural and canal was a
part of it. No one got upset when the area around it became developed. A
development called Canal View was established, as permitted by the County.
He wants to protect his neighborhood for the future. There may be an issue
with timing, but there will be further arguments based on what COID wants to
do there. He spent a lot of time and money working on this issue, as it impacts
his property value, and he is being financially hurt by all this. He wants to see a
decision so they can move forward. He has other things he would rather be
doing than this.
__________________________
Curtis Pell, a resident, provided a handout. He said that there are two issues
holding up the application: ownership and the idea of multiple unrelated
owners. Owners of record are provided a deed; he wanted to know where to
find a COID deed for the property. A right of way is not the same as fee simple
ownership. The County plat shows they own all the land, with no property lines
carving out the canal bed. They pay taxes on all of it. On October 4, 1967,
COID signed an, agreement with the County to allow a bridge over Old
Deschutes Road. It shows that they do not own the property in fee. COID can’t
have the benefits of ownership without the responsibilities. In its own words,
they do not hold fee title.
There are a number of easements, for neighbors, Pacific Power and others, and
they don’t get to say no to this designation if it doesn’t change their easement.
COID should not be able to, either. Regarding an application already being in
process, they disagree. The two points delaying the historic designation are not
applicable. They are sole owners of record. COID is not on the map in this
situation, so the COID application should not impact this request.
__________________________
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 10 of 17
Aleta Warren of 63535 Overtree asked Commissioner Unger about his parcel
that was affected by COID. Commissioner Unger said he has 1.8 acres within
city of Redmond, which includes an easement for the canal. The conveyance of
the water changed, but the easement is still there.
Ms. Warren stated that they had tried to apply for historic designation in April
2014, but could not get it past the front offices. The City and County returned
the documents due to it being incomplete. She wanted to reach the Historic
Landmarks Commission. This is an issue for them, for them to decide if it is
historic or not. Along the same line, one request is going to the State.
(She handed a document to the Board.) She said the document is a
questionnaire that the Board needs to return to the State. It has nothing to do
with piping or ownership. It asks if they feel the canal is historically relevant,
asks for a description, how is it significant, whether the facts are correct, and
whether photos or maps are correct. It might take 5 minutes for them to
complete. The document was sent to the State in December and approved then.
She wants the Board to fill out the questionnaire. It appears that staff already
has preconceived ideas about it.
Commissioner Baney asked when the conversation began about an application
for historic designation. Ms. Warren said that they are looking at the property
owners. COID started everything without contacting any residents until they
showed up at each property, asking for signatures for work to proceed. It was
very unclear. The neighbors started talking about the designation then.
It took a while to organize because they did not know how. They did not have
taxpayer funds like COID or professional people like Ms. Dickson to represent
them. They started talking when COID showed up on the properties. This was
in October 2012. It took them a while to figure out how to proceed, and it was
very vague. It was still at LUBA for something.
Commissioner Baney noted that there are questions on the questionnaire that
she is not prepared to complete since she does not have the information needed.
__________________________
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 11 of 17
Mr. Perreault said he is a retired USGS hydrologist, and wanted to talk about
hydro aspects. There have been numerous applications. He agreed that he had
asked Matt Martin why there is a conflict. He feels the text amendment was not
property specific and the historic designation is. He assumes that the only way
it has weight is the text amendment is prop specific. The conflict would be to
prevent piping for hydroelectric generation. He reminded the Board that prior
submissions demonstrated the section of canal is not one that contributes
significantly to groundwater recharge, and does not have significant head
potential, so berms and other structures have to be used.
Chair DeBone reminded all that this is not part of the issue at hand.
Mr. Perreault said it is not a viable piping project, or hydro significant. And it
has to do with groundwater recharge as well; the BLM and USFS have
requested more information on this.
In regard to the questions of timing, retention of ICF by COID was in February
2014, after the request for a text amendment was filed in September 2013.
They began working with Pat Kliewer around the same time, and he does not
know who came first.
They are preparing multiple property designation that sets out a framework for
a historic designation. When one property meets a criteria, it can then be fast
tracked without further analysis. This section of the canal was found to have
significance as far back as 1994. There would be no objections of the MPD on
this.
There was an earlier question regarding submittals. The County found this had
significance in 1994. The canal was assessed but was awaiting an application.
It is sad, since it would have been nice if was done in 1994. There is no
question about its significance. Referenced earlier was an MOU with SHPO
and the Bureau of Reclamation and COID. The MOU was entered into because
it was recognized that these projects would adversely affect historic
designations.
He asked, does the Board want to step aside and allow these projects to go
forward? The projects are going on, and they don’t know if some that are
already in place have destroyed something that would have been historically
designated later.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
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He talked about the bristlecone tree, which was ancient but d estroyed when it
was analyzed. They are destroying historic resources without considering the
idea that in the future someone might realize that they should have been saved.
__________________________
Pat Kliewer stated that she does not live inside Bend. She thanked Bruce White
for all his efforts. There are a lot of things being said or done that she does not
feel are accurate. Peter Gutowsky went through the Code for historic
designations in 1999 to clean up language and make it clearer. It is hard to
think about the various interpretations.
Regarding other applications and permits, she sees this quite differently than
others. Staff has done decisions on hundreds of issues, most having to do with
building codes. The historic preservation code has different requirements.
Historic as defined by the State and Federal means 50 years or older. It does
not really refer to age or whether it is protected. A historic building could be
put up in 1950 with no designation. Designation is the key word. The Board
can designate properties as historic resources , as can the federal government.
The State cannot designate a historic resource.
These applications are related. If someone wanted to change a 50 year old
home, the County could require updating. There are special provisions in Code
if it is historically designated. That has to come first. You can’t have a
neighbor say someone can’t change an old porch if the property is not already
protected. They can be designated by the County or the federal government.
Part of the Code says the designation has to be in place first to change how it is
handled. The designation has to be there first to be protected.
In 2001, she handled an application from a Redmond private property owner
who did not want the designation, but the City had already done this for a
separate owner. It was in the comprehensive plan as a resource. The new
owner wanted to alter the building significantly as commercial. She asked the
City to remove the designation, and they referred the owner to Ms. Kliewer.
She called the sponsor of the Bill who got this into State law. The Attorney
General wrote an opinion on how the law works. They had to get objections in
writing or oral testimony given at the time of the designation. The City was able
to remove it.
However, they never intended this to allow for a say by easement holders. The
Attorney General’s opinion can be submitted into evidence.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 13 of 17
Another thing that bothers her about this, is that the text amendment which is
being cited as competing applications, is for all SR-2.5 areas to be changed.
Yet the application for the Historic Landmarks Commission is just a
recommendation, which could result in a Code change. That application is for
specific properties, a linear historic district. The text amendment is for all SR
2.5. If that property requires a designation first, it is not about the zone.
No further testimony was offered.
__________________________
Bruce White offered rebuttal. He asked for the written record to be left open
for a while. He added that his clients have no problem waiving the 150 -day
time limit.
The Board left the written record open until 5:00 p.m. on February 6, 2015.
Final rebuttal will be due by 5:00 p.m. on February 13, 2015.
__________________________
Before the Board was Consideration of Approval of the Consent Agenda.
BANEY: Move Board signature.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
Consent Agenda Items
6. Board Signature of Resolution No. 2015-001, Initiating the Vacation of a Right-
of-Way off Tumalo Rim Drive
7. Board Signature of Order No. 2015-001, Vacating a Right-of-Way off Tumalo
Rim Drive
8. Chair Signature of Document No. 2015-052, Funds Transfer Agreement with
the Federal Highway Administration regarding the Fall Creek Bridge
Replacement Project
9. Chair Signature of Document No. 2015-030, an Intergovernmental Agreement
between the Local Public Health Department and the Oregon Health Authority
regarding Youth Suicide Prevention & Early Intervention Strategies
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 14 of 17
10. Board Signature of Resolution No. 2015-004, Transferring Appropriations in
the General Fund
11. Board Signature of Resolution No. 2015-009, Transferring Appropriations in
the OHP-Mental Health Services Fund
12. Board Signature of Resolution No. 2015-006, Transferring Appropriations in
the General County Projects Fund
13. Board Signature of Resolution No. 2015-012, Transferring Appropriations in
the County Fair Fund
14. Board Signature of Resolution No. 2015-003, Transferring Appropriations to
the District Attorney Department from General Fund Contingency
15. Board Signature of Resolution No. 2015-005, Transferring Appropriations in
the Industrial Lands Proceeds Fund
16. Board Signature of Resolution No. 2015-007, Appropriating a New Grant in the
Public Health Fund
17. Board Signature of Resolution No. 2015-008, Transferring Appropriations in
the Public Health Fund
18. Board Signature of Resolution No. 2015-010, Transferring Appropriations in
the OHP-Mental Health Services Fund
19. Approval of Award of Community Grants as Follows:
Deschutes Public Library Foundation - $2,400
Cascades Theatrical Company - $2,400
Deschutes County Historical Society – $2,400
Volunteers in Medicine – $11,000
Deschutes Family Recovery – $3,000
Volunteers in Action - $11,000
Big Brothers Big Sisters of Central Oregon - $11,000
American Red Cross - $5,000
20. Approval of Minutes:
Business Meeting of January 14, 2015
Work Session of January 14, 2015
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 15 of 17
CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY
SERVICE DISTRICT
21. Before the Board was Consideration of Board Signature of Resolution No.
2015-011, Transferring Appropriations in the 911 County Service District’s
Operating Fund.
UNGER: Move approval.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
22. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
$32,331.05 (two weeks).
UNGER: Move approval, subject to review.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H
COUNTY SERVICE DISTRICT
23. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-H County Service District in the
Amount of $74,988.55 (two weeks).
UNGER: Move approval, subject to review.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
Minutes of Board of Commissioners’ Business Meeting Wednesday, January 28, 2015
Page 16 of 17
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
24. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $1,267,196.06
(two weeks).
UNGER: Move approval, subject to review.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
25. ADDITIONS TO THE AGENDA
A. Before the Board was Consideration of Approval of an Application for an
Oregon Health Authority Grant Request for Proposals.
Tom Kuhn explained this grant opportunity is time-sensitive and due to the
State by Friday. It is to emphasize partnerships with the State, the CCO and
others, as well as associated funding. It will provide institutes where the groups
will meet to develop sustainable relationships regarding chronic disease
prevention. It does not require additional FTE’s or matching funds.
Commissioner Unger pointed out the County is a leader in health care reform
and he is happy to see this type of involvement.
BANEY: Move approval.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
Being no other items brought before the Board, the meeting was adjourned
at 12:05 p.m.
DATED this J~Day of J~2015 for the
Deschutes County Board of Commissioners.
Anthony DeBone, Chair
Alan Unger, Vice Chair
ATTEST: Tam~~Sjoner~~
Recording Secretary
Minutes of Board of Commissioners' Business Meeting Wednesday, January 28 ,2015
Page 17 of 17
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HEARING PROCEDURES:
QUASI-JUDICIAL PUBLIC HEARING
• Timely notice of this hearing has been provided as required by ORS 197.763.
• Applicable criteria from the laws and regulations that apply to this application will
be verbally identified by staff at the outset of the hearing. In addition, they are
listed in the Staff Report, copies of which are available at this hearing, from the
Community Development Department, and on the County's website.
• The applicants have the burden of proving that they are entitled to the approval
requested.
• Testimony, arguments and evidence at this hearing must be directed toward the
applicable criteria, as well as toward any other criteria in the comprehensive land
use plan of the County or land use regulations which any person believes apply to
this decision.
• Failure on the part of any person to raise an issue, in person or by letter, with
sufficient specificity to afford this hearings body and parties to this proceeding an
opportunity to respond to the issue precludes appeal to the Land Use Board of
Appeals on that issue. Additionally, failure of the applicant to raise constitutional or
other issues relating to the approval with sufficient specificity to allow the Board to
respond to the issue precludes an action for damages in Circuit Court.
• The decision of the hearings body on this application will be based upon the record
before it, including as applicable, the Hearings Officer's decision, the Staff Report,
additional material within the record and the testimony and evidence presented at
this hearing.
• Any participant at this hearing may request that the hearing or record or both be
held open for an additional seven (7) days. If the request is granted, the hearings
body will identify a date and time certain for the continuance or open record period.
• Unless waived by the applicant, the hearings body will allow the applicant at least
seven (7) days after the record is closed to all other parties and participants to
submit final written arguments in support of the application. Final written argument
shall not include any new evidence.
Page 1 of 1 -PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC
HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.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 %) 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 Y2 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
1 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 BOCC on December 15 approved Order No. 2014-03 initiating review of the administrative
decision rejecting the filing of the Comprehensive plan amendment application. Because the
BOCC will be interpreting the County Code regarding the timing of the application submittal,
review will allow the BOCC to obtain deference from the Land Use Board Appeals (LUBA)
related to interpretation in the event of an appeal. The BOCC will also be given deference
regarding the ownership issue if the BOCC's interpretation rests on interpreting the County
Code. If the BOCC'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
2 https:llwww.oregonlegislature.gov/bilislaws/lawsstatutes/20130rs197.html;
http://arcweb.sos.state.or.us/pages/rules/oars600/oar660/660023.htmll
Community Development Department
Planning DivIsion Building Safety Division Environmental Soils Division
P,O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.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 ATTORNEY: Bruce White
P.O. Box 1298
Bend, OR 97709
REQUEST: A Comprehensive Plan Amendment to designate a segment of
the Pilot Butte Canal as a Goal 5 historic resource.
STAFF CONTACT: Matthew Martin AICP, Associate Planner
I. APPLICABLE CRITERIA:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
II. BASIC FINDINGS:
A. LOCATION: The subject properties (32 total) are located northeast of the City of Bend
identified as follows:
Tax Map 17-12-15AA Lots 300,600,700,702,703,705
Tax Map 17-12-15AC Lots 300, 400,600,700,800
Tax Map 17-12-15AD Lots 105, 106, 107, 108, 109, 110, 111,200,400,500,600,900
Tax Map 17-12-15BD Lots 1300, 1400, 1500
Tax Map 17-12-15CA Lots 200,300
Tax Map 17-12-15DB Lots 100, 600, 700, 800
B. ZONING: The subject properties are zoned Suburban Low Density Residential (SR 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 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 FINDINGS:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
A. 2.28.020. Definitions.
"Property Owner" means the owner of record or the contract purchaser and does not
include a person or organization that holds a security interest.
FINDING: An easement runs along the length of Pilot Butte Canal. As it pertains to the
applicant's proposal, the easement is located on 32 private properties. The applicant argues
Central Oregon Irrigation District (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 resource.
In a previous land use decision, A-10-2(NUV-09-1), a Deschutes County Hearings Officer
addressed a similar easement and landowner relationship. The Hearings Officer found the
holder of an easement across private property is an "owner of record" of an interest in the
property, and therefore is a "property owner" as defined in DCC 22.08.010(A).1 Based on this
analysis, staff finds that 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 include a site
on a list of significant historic resources if the owner of the property objects to its designation."
The previous finding of the Hearings Officer's decision is applicable to the language in the OAR
that allows the owner of the resource to refuse designation. Therefore, because 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
at this time.
1 Dee 22.08.010(A) Property Owner. For the purposes of Dee 22.08.010, the term "property owner" shall mean the
owner of record or the contract purchaser and does not include a person or organization that holds a security
interest.
247 -14-000373-HS Page 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 2Y2 to allow the operation, maintenance, and piping of existing irrigation
systems as an outright use within the zone ... "
TA-13-14 proposes, as an outright permitted use, the ability to pipe approximately 4,500 feet of the
Pilot Butte Canal, including segments that relate to the applicant's recent request for a Goal 5
historic designation.
The applicant submitted application 247-14-000373-HS on November 3, 2014. Staff interprets
DCC 2.28.060(A}(2} and "any other application" to include TA-13-4 since it directly relates to this
segment of canal located in the SR 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 for TA 13-4.
IV. CONCLUSION AND RECOMMENDATION:
Based on the information provided herein, staff finds:
1. The request to designate a segment of the Pilot Butte Canal as a Goal 5 historic
resource cannot be filed until a decision is rendered for TA 13-4; and
2. The underlying real property owners and COlD, as an easement holder, are both owners
of record as it relates to Applicant's proposal to designate a segment of the Pilot Butte
Canal as a Goal 5 historic resource.
DESCHUTES COUNTY PLANNING DIVISION
~$~~'
Wfitten ~(Matt Martin, Associate Planner
Reviewed by: Peter Gutowsky, Planning Manager
Dated this 9th day of December, 2014 Mailed this 9th day of December, 2014
247-14-000373-HS Page 3
REVIEWED
LEG~SEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Initiating Review of Administrative *
Decision in File No. 247~14-00373~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 County Code allows the Deschutes County Board of
County Commissioners ("Board") to initiate review of any administrative action within 12 days of the date of
mailing of the final written decision of the Planning Director; and
WHEREAS, the Board has given due consideration as to whether to initiate review of this application;
now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. 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 parties
entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Dated this /S1!L of C{:)g 2..,. ,2014 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAM~
ANTHONY DEBONE, Vice Chair
ATIEST:
~~
Recording Secretary ALAN UNGER, Commissioner
Page 1 OF 1·0RDER NO. 2014-038, ______,2014
Laura A. Schroeder
Licensed in Oregon, Idaho,
Nevada and washington
SCHROEDER
Therese A. Ure
Licensed in Oregon LAW OFFICES, P.C.
and Nevada
William F. Schroeder
Of Counsel to the Finn
January 28, 2015
VIA HAND DELIVERY
Deschutes County Board of Commissioners
1300 NW Wall St. Suite 200
Bend, OR 97701
Sarah R. Liljefelt
Licensed in Oregon & Califomia
Wyatt E. Rolfe
Of Counsel
Licensed in Oregon & washington
Matthew J. Curti
Licensed in Nevada & Califomia
Brian R. Sheets
Licensed In Oregon
RE: File No. 247-14-000373-HS: GoalS Historic Designation Hearing
Dear Commissioners:
Our office represents Matt Gadow. His address is 63435 Overtree Rd., Bend, OR 97701.
Please accept these written comments into the record for this hearing.
I. Timing Issue in Dee 2.28.060.
County Planning staff concluded that the application for historic preservation of a one
mile stretch ofthe Pilot Butte Canal is precluded by DCC 2.28.060, which 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. "
"Any other application or permit which might be affected by such historical designation"
fails to contain any measurable criteria to guide the discretionary application of the procedural
rule, and therefore any decision on these grounds is subject to a hearing under these conditions
due to its nature as a land use decision under Nicolai v. City ofPortland, 19 Or LUBA 142
(1990).
The proposed text amendment is not so specific as to preclude accepting the historic
designation application. The text amendment applies to an entire zone ...does this lock up all of
the zone for any historical designation because of the text amendment presently in abeyance?
This is too speculative, and requires logical leaps to determine the effect on an "application."
Another more specific application, such as a construction or demolition permit would be needed
to specifically identify the property for there to be an "effect."
1915 NE Cesar E. Chavez Boulevard, Portland. Oregon 97212 (503) 281-4100
440 Marsh Avenue. Reno. Nevada 89509 (775) 786-8800
www.water-law.comcounsel@Water-law.com
{p0292865; 1261.02 BRS I
Deschutes County Board of Commissioners
January 28, 2015
Page 2 of4
The text amendment is for an outright use, not a specific application for a building permit
or application for a particular property: this historical designation is specific. Whether the text
amendment is approved or denied; historical designation may take place as there is not a pending
application for the specific property: it applies to an entire zone for a use, not a specific project at
a specific time, for a specific applicant.
An approval or a denial of an outright use does not preclude historic designation,
therefore the application will not be affected.
The decision to deny the application conflates historic designation for a specific property
with approving an outright use within a zone. The two are unrelated in cause and effect, and
therefore the request for historic designation would not affect another application or permit.
The general application of the proposed text amendment is in contrast to the specific
nature of the historic designation application. Permits may continue into perpetuity, and
applications can be requested to be held in "abeyance" for unlimited amounts of time, so long as
staff is willing to defer. This effectively shuts the door to any redress or determination, based on
a staff decision.
"Application" is not defined, and "permit" is not defined. The overbroad allowance of
"any other application or permit that might be affected ..." is too tenuous and can lead to
unintended consequences depending on the discretion of the planning official reviewing the
application. Where does "any application or permit" end, and how speculative is "might?" The
conclusion is that the discretionary allowance is overbroad, and will lead to abuses of discretion,
such as the present case.
II. Standing to object to designation as an owner of property.
We agree with Bruce White's October 27, 2014 letter attached as exhibit 16 to the GoalS
comprehensive plan amendment application.
In relation to this GoalS Designation, COlD has not provided evidence that they are "the
owner" of the CanaL Mere statements within this proceeding, without more, cannot suffice to
demonstrate the legal entitlement to object to this GoalS designation.
ORS 215.503 (1) in the context ofproviding notice to landowners for county land use
actions defines "owner" to mean:
''the owner of the title to real property or the contract purchaser of real property, of record
as shown on the last available complete tax assessment rolL"
(1'0292865; 1261.02 BRS J
Deschutes County Board of Commissioners
January 28, 2015
Page 3 of4
COlD is not the owner of these properties, and is not listed on at least Matt Gadow's
County Tax Assessor's Name Ledger. t
It is a dangerous precedent to declare an easement holder to be "the owner" in that it
gives any easement holder standing to object to any Goal 5 nomination; utilities could object
from utility easements. County definitions state "the owner," not "an owner," signifying a single
owner as having authority to protest the designation. It specifically excludes a security interest,
which is analogous to an easement holder: a fractional interest less than fee simple ownership. In
the hierarchy of ownership interests, the fee owner maintains a higher priority of ownership than
an easement holder, and granting standing to a mere easement holder is against the definition in
the County Ordinances, The Oregon Administrative Rules, and the Oregon Revised Statutes.
Deschutes County Code aligns with this interpretation:
2.28.120. SignslPlaques.
"The owner of a historic resource, or the occupant thereof with the consent of the owner,
may install an identification plaque or sign ..." This is precisely the same situation, the residents
along Pilot Butte Canal owning the canal, and COlD occupies it for irrigation delivery
purposes ...still needing permission from "the owner" not "an owner."
Granting standing to an easement holder frustrates Goal 5 by inconsequential outside
interests. Is a reservation of rights to obtain minerals enough, erect a fence, maintain a road or a
power line, or a light and airspace easement? How about a leasehold interest? Do commercial or
residential renters have standing to object to resource designation? They own a leasehold
interest, yet are they considered ''the owner?" This interpretation is a tenuous interpretation, and
unlikely to withstand challenge.
The appeals process allows for redress of occupants' concerns.
2.28.150. Appeals.
A. Appeals from actions of the Landmarks Commission shall be to the Board and may be
filed by the applicant, the owner or occupant ofthe building, structure, site or district
concerned, or by any other person who participated in the hearing."
This specifically mentions "the owner or occupant." Objection standing to resource
designation specifically limited to "the owner" with the clear intent to not give the occupant of
land the ability to object, which is precisely what is happening here. Redress for the occupant is
available after the decision, and an easement holder's objection is not standing to prevent
bringing the matter before the Commission.
J See Attachment 1.
{P029286S; I26U12 BIlS I
Deschutes County Board of Commissioners
January 28, 2015
Page 4 of4
III. The Importance of Preservation
Physical Scope: The proposed text amendment applies to entire SR 2 ~zone; whereas
Historic Resource Designation applies to limited segment as documented in application, and is a
discrete application, the text amendment applies to any irrigation piping. Further, this application
is to protect a historic resource, whereas the proposed text amendment could possibly allow its
destruction. If this body has any interest in preserving Goal 5 sites, now is the time to act.
Time: If this application is not considered, there will never be an opportunity to add this
to the Goal 5 resource. Much like razing a building or flooding a site on a river, if this body does
not act, the opportunity will not present itself again.
Subject matter: The text amendment is presented in such a manner that it obscures the
true purpose ofthe piping project: increasing hydropower revenues. The text amendment is a
separate legislative decision that is outside of the consideration for Goal 5 designation.
The GoalS Purpose is to keep protect natural resources and conserve scenic, historic,
and open space resources for present and future generations.
The DCC Historic Commissions Purpose is:
Districts, buildings, structures and sites in Deschutes County which have
special historic and prehistoric association or significance should be
preserved as part of the heritage of the citizens of the County, and for the
education, enjoyment and pride of the citizens, as well as for the
beautification of the County and enhancement of the value of such
property.
Very truly yours,
SCHROEDER LAW OFFICES, P.C.
Brian R. Sheets
(P0192!6S, 1261.02 BItS I
DESCHUTES COUNTY ASSESSOR'S NAME LEDGER
1/27/2015 1 :12:53 PM
Account 10 Township Range Section 1/4 1/16 Taxlot Special Interest
200765 17 12 15 A D 00107
Sale Price $132,000
Effective Date 01-Dec-2000 12:00 AM Transaction 10 -138112 Entry Date 01-Dec-2oo0 Recorded Date 01-Dec-2oo0 Sale Date 01-Dec-2000
Seq Voucner 10 Tax Year Document Source Type IOj1 IOj2 PlO Source 10 PT Operation To/FromMap
-169044 2000 CLERK· BOR 2000 49280 NAME CHANGE
Size Totals Code Acres Sqft Altemata Size
Effective Date 15-May-2003 12:00 AM Transaction 10 -5286 Entry Date 15-May-2003 Recorded Date 15-May-2003 Sale Date 15-MaY-2oo3
Voucher 10 Tax Yea, 10
-52e6 2003 ASSESSOR'S FILE 2003 200765 ASSESSOR'S CONVERSION
FILE:CONVERSION:200765
Name Cnanges Status Name Name Type Ownership Type Ownersnlp%
A JOHANNESEN, DEAN 0 O\MIIER O\MIIER
A JOHANNESEN, JUDI O\MIIER O\MIIER
Size Changes Code + I· SIze Altemate Size Code Area Deleted MOvetoAcct Move To Code
1003 2.49 Acres
Size Totala Code Acres Sqft Altemata Size
1003 2.49
AcHon Subdivision Block Lot Direction Part Part Type
Add: OVERTREE RANCH o 3
Sale Price $950,000
Effective Date 05-May-2005 12:00 AM Transaction 10 741207 Entry Date 05-May-2oo5 Recorded Date 15-Apr-2005 Sale Date 08-Apr-2005
Seq Voucner 10 Tax Yea, Document Source Type 10111 IOj2 PIO Source 10 PT Operation ToiFromMap
777404 2005 CLERK· BOR Wi) 2005 22671 NAME CHANGE
Name Changes Status Name N.meType Ownerahlp Type Ownerahlp%
D JOHANNESEN, DEAN 0 O\MIIER O\MIIER
D JOHANNESEN, JUDI O\MIIER O\MIIER
A GADOW, MATTHEW M O\MIIER O\MIIER 100.0000
TENANTS BY ENTIRETY-GADOW, SUZANNE FLORANCE
A GADOW, SUZANNE FLORANCE O\MIIER O\MIIER 100.0000
TENANTS BY ENTIRETY-GADOW, MATTHEW M
Size Totab Code Acres Sqft Altemate Size
1003 2.49
I
,
1/27/20151:12:53 PM
Account 10 Township Range Section 1/4 1/16 Taxlot Special Interest
200765 17 12 15 A 0 00107
Page 2 of 2
Pilot Butte Canal Preservation Alliance (PBCPA) Historic Preservation Application
Supplemental Memo on DeC 2.28.060(A)(2) Thresbold! Jurisdictional Issues
January 28, 2015
Bruce White, Attorney for PBCPA
I. "Get in tbt' door" issue: DCC 2.28.060(A)(2)
o The issue here is how to interpret the tenn "any other application" with regard to
whether it includes legislative applications (such as COlD's application for a text
amendment to amend the SR 2 1h zone to include piping of irrigation canals as an
outright pennitted use) or whether it refers solely to quasi-judicial development
applications for building and planning permit applications for specific
development proposals. There is also a related factual inquiry as to whether under
the facts in this case, COlD's legislative text amendment is one that "might be
aITt:cted by raj historic designation".
A. Legallntcrpretation:
a. County statf interprets the term "any other application" as being broad enough
to include legislative text amendments such as COlD's pending text
amendment It is PBCPA's understanding that the basis of County staffs
interpretation is the ordinary plain mt""uning of the tenn "any other
application" viewed in isolation from any contextual provisions of DCC
2.28.2060(A)(2) itself: the balance of DCC Chapter 2.28 or any other
provisions of the County Code.
b. PBCP A's argument is based upon the context of the term "any other
application'" including the balance ofOCC 2.28.060(A), the language ofDCC
2.28.060(A)(2), now and as originally drafted in 1980, the balance of DCC
Chapter 2.28 and other related provisions of the County Code outside DCC
Chapter 2.28 and commonly accepted principles of statutory interpretation.
c. The methodology for interpreting or construing a statute, commonly known as
"statutory construction" in Oregon occurs within a framework of appellate
case law and Oregon statute. These precepts apply equally to construing
local ordinances and to construing state law enacted by the Legislature.
Failure to fbllow applicable statutory interpretation methodology can lead to
remand of a local government's interpretation as was recently the case in the
Board's Cline Falls decision.
d. In interpreting a statutory provision, the starting point is the text itself that is
at issue this case the language ('any other application". but the inquirY may ,I
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not stop with that text; inquiry and analysis of the context is required at the
first level of statutory interpretation, PGE v. BOLl, 317 Or 606, 611, 859 P2d
1313 (1993 ). Accordingly, it is not appropriate for County staff to simply
view the term "any otbel' application" in isolation and give to it its
"ordinary plain meaning" of the words themselves without considering
those words in C'ontext. See, e.g., Vsetecka v. Sqfeway Stores, Inc., 337 Or
502, 98 P3d 1116 (2004) illustrating how consideration of a word or phrase's
context can alter the "plain, ordinary meaning" of a word or phrase when
considered in its context
c. In this case. the term "any other application" is not self-defining; when
viewed in isolation, it could possibly reter to an application for development
type activity, for an application for legislative action, or both. An
examination of the context of the phrase is therefore necessary to cloak it with
meanmg. In rejecting the subject application, Staff did not perfonn this
essential interpretive function.
f. Starting with Dec 2.28.060(A)(2), the context of the phrase "any other
application" in this case includes the terms "any building permit" and "any
other ... permit which might be affected by such historical designation" that
are included in the balance of DeC 2.28.060(A)(2). Stull }), Hoke, 326 Or 70,
72-79, 948 P2d 722 (1997).
g. TIle context also includes a prior version of DCC 2.28.060(A)(2). commonly
referred to as "the historical context". Slate v. Perry, 336 Or 49, 54-55, 77
P3d 313 (2003). In this case, the language of DeC 2.28.060(A)(2) was
initially adopted by the County in 1980 in Section 4 of Ordinance PL 21.
That language read as follows: "Any request for historic designation must be
filed with the Landmarks Commission before the date of application for any
building, conditional use or any other application or permit which might be
atfected by such historic designation," Section 4(D). PL-21 (emphasis
supplied). (See Exhibit A, attached.) The inclusion of the term "conditional
use" in the list of types of application gives a de-at indication that the original
intent of the applicability of what is now UCC 2.2tU}60(A)(2) to planning
applications was limited to Quasi-judicial applications. l
1 The current language of the subject portion of Dec 2.28.060 was adopted by amendment to
DCC. 2.28.040(B) in 1998 under Ordinance 1988-008. (See Exhibit 8, attached hereto.) The
elimination of the spedtie reference to "conditional use" in that enactment would appear to have
simply been a house-keeping measure that recognized that retention of the specific term
'~conditional usc" was not necessary. given that it would be picked up in the catch-all phrase
"any other application or pcmlit" This is bolstered by the fact that under the procedures tor
designation of a historic district under Dce 2.28.060(C)(IO), the reference to the term
"conditional use" is retained. If there was a specific intent to change the scope of the coverage
of the application prohibition to include legislative change applications as well as quasi-judicial
2
h. In interpreting a statute or ordinance provision in context, the reviewing body
may apply various rules of construction to help it in its task. Those rules have
arisen over decades of ca.o;;c law and statutory enactments. The inclusion of
the term "conditional use" and the use of "any other application or pennit" as
a catch·all phrase under the statutory construction rule ejusdem generis appear
to have at least initially clearly signal a legislative intent to limit the scope of
the term "application" to quasi-judicial appHcations as exemplified by the
specific reference to "building" and "conditional use" permits, which operate
only in the quasi-judicial pennitting context. See. State v. Hutchins, 214 Or
App 260, 267, 164 P3d 318 (2007), rev. den. 346 Or 590, 214 P3d 822
(2009).2
i. In statutorv construction, the "ejusdem generis rule" is that where general
words follow an enumeration of persons or things, by words of a particular
and specific meaning, such general words are not to be construed in tbeir
widest extent, but are to be beld as applying only to persons or things of the
same gencral kind or class as those specifically mentioned. Black'sLaw
Dictionary Online. 141 http://thelawdictionary.orglejusdem-generis.This rule
is particularly appropriate when the tcnn "other," "otber thing," "others;-or
"any other," is preceded by a specific enumeration. McGrath v. Electrical
Construction Company, 230 Or 295, 364 P2d 604 (1961), Kirkley v. Portland
Eleciric Power Cu .• 136 Or 421, 298 P 237 (1931) (in construing statute that
made it unlawful to drive a vehic1e with any sign, poster or
other nontransparent material" on the front windshield, driving with a sleet
covered windshield was not within the purview of the statute). In such cases,
the term "other" is limited by the general nature of the tenn previously
enumerated. While it might be preferable to have a broader list from which to
divine a common trait or characteristic, courts have sometimes applied the
principal when there wa.'\ only a single enumt.'Tated tenn prior to the catch-all
phrase. See, e.g.. McGrath, supra, 610 (single reference to "industrial
accidents" in front of catchall reference to "all other claims" was sufficient to
preclude recovery of economic damages not related to "industrial accidents).
In this case, the specific tenn "building pennit" and the repeated reference to
the term "permit" immediately fbllo\>\i.ng the tcnn "application" provides
ample identitication of the nature of applications being referenced and they do
not include legislative applications.
change applications as well as quasi-judicial applications that change would have been included
in the district designation procedures as well, but it wasn't.
2 See footnote 1 with reference to why the changes in Ord 88-008 do not change this analysis.
3
I
j. Under the related statutory construction rule of noscitur a suciis ("a thing is
known by its associates~~), a reviewing court looks to the words immediately
surrounding the text at issue as a guide to legislative intent. King City Rehab
LLC v. Clackamas County, 214 Or App 333. 341, 164 P3d 1190 (2007). In
this case, in addition to the terms discussed above under the rule of ejusdem
J;eneris, the DeC 2.28.060(A)(2) includes a description of the type of
situation intended to be addressed by the provision, where the application or
peml1t is one that "might be affected by a historical designation" under DeC
Chapter 2.28. Application for a historic designation does not in itself affect
an application for a legislative text amendment to add a specific llse to a
zoning district. In addition, in this caqe, a<; set forth below, there is a factual
issue as to whether the pending text amendment would even effect COlD's
current "piping" proposal for which COlD is seeking the text amendment.
k. The term "application" is llsed in numerous plac.es in DeC Chapter 2.28. In
all such additional uses of the tern1, it references applications that are quasi
judicial permit applications. See, e.g., DeC 2.28.090(B), (C), (F), (0) and
(H), DCC 2.28.1 OO(A), (B), (C), (D) and (F). There is not a single use of the
term "application" to refer to an application involving a legislative text
amendment. Under well-established rules of statutory interpretation, the same
word or words appearing in a law or related laws are generally given the same
meaning. Penland v. Redwood Sanitary District, 327 Or 1, 956 P2d 964
(1998).
I. The term "permit" is used elsewhere in Dee 2.28.060(A)(2) and in Chapter
2.28 to refer to approval of specitic development or construction activity. See,
e.g., DCC 2.28.090(0), DeC 2.28.100(A), (B), (E), (F) and (0). This
provides context tor the meaning and applicability of the term "permit" found
in DCC 2.28.060(A)(2) and provides a basis tor characterizing "permit" as
used therein to refer to approval of specific development or construction
activity. Penland. supra.
m. Given the foregoing, there is a strong basis for interpreting the restrictions of
DCC 2.2tt060(A)(2) as not applying to applications tor legislative text
amendments to the zoning code.
B. Factual Inquiry
a. COlD has applied lor a text amendment to allow for piping in the County's
Title 19 SR 2 Yz zone as an outright permitted use. At the same time, COlD
hus put forward a proposal to expand its existing Juniper Ridge Hydroelectric
Project on a Pilot Butte Canal segment lying within the SR 2 Y2 zone, which I involves piping the canal to achieve hydrostatic head for hydropower
,I
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development. This project has been determined by LUBA to be a
hydropower facility that requires conditional use approval in the SR 2 ~zone.
Curl v. Deschutes Counly,~~~ Or LUBA (slip opinion 2013-86/95, March
20, 2014). Accordingly, as proposed, COlD's text amendment at issue is
irrelevant to COlD's desire to allow f()r County land use approval of COlD's
proposed expansion of the Juniper Ridge Phase II Hydroelectric Project.
b. Under these circumstances. even if a legal interpretation were to determine
that DeC 2.28.060(A)(2) were to apply to legislative text amendments of the
COWlty'S zoning code, any failure ofllie text amendment would not negatively
affect COlD's Juniper Ridge Phase U Hydroelectric Project, because there
was never a chance that that project could be approved under the pending
piping text anlendment. Accordingly, if the intent of DCC 2.28.060(B)(2) is
to guard against a pending development action from being defeated by a late
filed historic designation application, the instant case is not an example of
such a situation.
C. Fairness Argument:
B. Why should one side be able to shut out the other side when they have
competing legislative proposals that mayor may not affect the same historic
resource?
b. In a legislative setting, a person concerned with a historic resource but that
does not allow a use that might injure that resource can confidently rest upon
his knowledge that he is protected by the current code and need not make a
filing for historic projection. Interpreting this provision in a manner that locks
out any possibility for seeking historic preservation once a development
proponent proposes to change the status quo unfairly upends the status quo in
favor of the development interest.
5
VII 35 r.\ti 713
(I) The Landmarks Commission shall compile and maintain a current list of all
historical districts, buildings and sites which have been so designated pursuant
to this ordinance with a brief description of the district or site and the
special reasons for its inclusion on the list. If lists ot archaeological
sites are developed. they would not have to be made public. pursuant to
appropriate state and federal laws.
(J) The Landmarks Commission shall notify all property owners of sites recommended
for designation of such recommendation. >
(K) The Landmarks Commission shall have authority to take such steps as it finds
appropriate or necessary to make available to the public information concerning
its activities and various districts, buildings and sites to be designated
pursuant to this ordinance.
(1) The Landmarks Commission shall prepare, revie~ and adopt guidelines, criteria
or such other statements of policy as may be appropriate relating to the
designation, development or preservation of historical districts, buildings
and sites within nine months from the date the Landmarks Commission is fully
appointed. Such guidelines criteria or policy statements shall not take effect
until reviewed and approved by the Board of County Commissioners.
(M) The Landmarks Commission shall assist and coordinate the work of district
advisory councils with respect to historical districts.
(N) The Landmarks Commission shall perform such other duties relating to bistorical
districts. buildings and sites as the Board of County Commissioners may request.
SECTION 4. Designation of Historical Building or Site.
(A) Upon receipt of a request to designate a particular building or site as an
historical building or site. or upon direction by the Board of County Commissioners
or the pertinent city council. the County Planning Department shall advise tbe
owner of such building or site t abutting owners, the county and pertinent city
planning commissions, and sball fix a uate and time for a public hearing before
the Landmarks Commission and the pertinent city council thereon. The Landmarks
Commission shall hear and decide all proposals for designation as an historical
building or site.
(B) Each city council in the county shall have the opportunity to hold a public
hearing or make a recommendation for any requested designation of an historical
site within its adopted urban growth boundary.
(C) At such public hearing the owner of the property involved. the owners of all
abutting property. a representative of the Landmarks Commission. a representative
from Deschutes County or the pertinent city. and a representative from the city
or county building department shall be entitled to he heard, as well as all
other interested parties.
(D) Any request for historic designation must be filed with the Landmarks Com
mission before the date of application for any building. conditional use
or any tither application or permit which might be affected by such historic
designation.
-3
OCS3 1360
Appendix NBN, attached hereto and by this refer
ence incorporated herein.
section 1. Section ~.~8.035, Deschutes county Code, Request
for historical designation.
A. Any person may request that a district building and/or
structure or site be designated on the Deschutes county
Inventory of Historic Places. A designation request
may also be made to the landmarks commission, the board
or city councils of Bend, Redmond or Sisters.
B. A request for historical designation shall be in
writing and, in all oases, transmitted to the landmarks
commission.
C. If the request for historical designation is made by a
person other than the owner of the building, site or
buildings/sites in a district, a copy of the request
shall be sent to the owner.
Section e. section 2.28.040, Oeschutes county Code, Bis
,torical building or site -Designation procedure, is amended to
read as follows:
RA. Upon receipt of a request from the landmarks
commission to designate a particular building or site
as an historical building or site within Deschutes
County or pertinent city, or upon direotion by the
board of county commissioners or the pertinent city
council, or on its own motion, the Planning Division
shall fix a date and time for a public hearing before
the board of county commissioners on a particular
building or site recommended for designation.
B. Any request for historical designation must be
filed with the County Planning Division and/or perti
nent city planning department before the date of
application for any building permit, or any other
application or permit which might be affected by such
historical designation.
C. The Planning Division shall notify, in writ
ing t the owner of the property, the Desohutes County
Planning commission and/or pertinent oity planning
commission, and shall transmit a copy of the request to
the landmarks commission unless such a request for
historical designation has come from the landmarks
commission.
D. The landmarks commission shall submit its
recommendation to the board and/or pertinent city
6 -ORDINANCE NO. 88-00S (4/20/88)
Pilot Butte Canal Preservation Alliance (PBCPA) Historic Preservation Application
Thresholdl Jurisdictional Issues on Review
January 28, 2015
"Owner" Consent Provision of ORS 197.772(2)
Bruce White. Attorney for PBCPA
A. "Get in the door" issues:
• OCC 22.08.030(0)
a. COlD asserts that PBCPA's application is void under DCC 22.08.030(0) and cannot be
renewed.
b. COlD mischaracterizes the nature of the instant application. The instant application is
an entirely new application and does not constitute an attempt to supply additional
information to support a pending application. Accordingly, there is no basis for COlD's
argument under Dec 22.08.030(0).
c. Under DCC 22.28.040, an applicant can file a new application without restriction at any
time after a previous application for the same proposal has been rejected.
• DCC 22.08.010
a. COlD asserts that the PBCPA application is not supported by an adequate number of
signatures to support the application. This is not true -there is at least one signature
for each property for which designation is sought ~-but in any event landowner
signatures are not required as a jurisdictional issue under OCC 2.28.010(B)(1). By its
terms, the owner signature requirement applies only to quasi-judicial "development" or
"land use action" applications. Under Title 22, "legislative changes" may be initiated by
application of unspecified "individuals" upon payment of required fees. OCC 22.12.030.
No connection to any particular properties is required.
B. "Staying in the door" issues:
• "Property Owner" consent under ORS 197.772.
1. Response to COlD Letter
a. See the October 27. 2014 letter of BWW outlining PBCPA position on this issue. The
analysis contained herein constitutes an initial response to the analysis contained in
COlD's letter of November 14, 2014.
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b. As an initial factual matter, there is no question that the residential property owners
own fee title to the property covered by the canal. (See representative title report for
Pel! property, tax maps, representative tax statement for Curl property and statement
by County cartographer Greg Rossi in Burden of Proof and associated exhibits filed with
PBCPA application.)
c. The PBCPA letter focuses on the meaning of the term "property owner" as set forth in
DRS 197.772 with specific analysis of the text and context of the term. As a general
characterization of COlO'S response, that response does not analyze the actual text or
context of the term "property owner" under ORS 197.772, but instead seeks support
from "authority" that is not relevant to the meaning of the term Hproperty owner"
contained in DRS 197.722.
d. The Baker v. Washington County LUBA case provides no support for COlO's reading of
DRS 197.772 because that decision is focused on the meaning of "property ownerJl as
set forth under the Washington County Code and not DRS 197.772 and arises in the
context of who must sign a quasi-judicial application for development rather than
consent to a historic designation application (which need not be demonstrated at the
time of actual application) under DRS 197.772. Because the issue at bar was whether
the fee title owner must consent as a "property owner" to the filing of a development
application and no party raised the issue of whether the easement holders constituted
"property owners", the decision did not analyze whether the easement interest
qualified the easement owner as a "property owner" but merely assumed that to be the
case. Accordingly, the case is simply inapposite to any argument that an easement
holder is necessarily included within DRS 197.772'5 reference to "property owner#.
e. The Deschutes County Hearings Officer's decision in Case No A-1O-2 (Marvin Emil Smith)
does not support inclusion of easement holders within the ORS 197.772 reference to
"property owner". That case was decided under the definition of "property owner"
under the Deschutes County Code with reference to who must sign an application to get
an application in the door. This analysis is simply irrelevant to the interpretation of the
state law reference to "property owner" contained in ORS 197.772. The County Code
provisions at issue In Smith were not analolous to the ORS 197.n2 reference to
"property owner". Moreover, as a lelal matter, definitions in County Code do not
control or have a bearing on the meanlnl of terms Included in state statute. In
addition, the local code provision analyzed by the Hearings OffIcer in A-1Q-2 serves a
different purpose than the reference to "property owner" contained in ORS 197.772.
The former is a jurisdictional determination required in order to determine whether a
development application could be filed; the latter concerns a determination that
needs to be made at some point in the hearings process as to whether a historic
desilnation can be applied to the property.l The Hearings Officer expressly noted in
her decision in Smith that references to property ownership in the County's land use
1 See jurisdictional bullet point below.
\ 2
1
I
procedures code arise in different contexts and that in some cases (but not in that
particular case) the issue of property ownership is determined solely with reference to
owners as listed in the County assessors tax roll. Smith, p. 11, n. 8. Accordingly, the
local Smith Hearing Officer decision provides no support for COlD's argument that
holders of an easement are necessarily included within ORS 197.772'5 reference to
"property owner".
f. COlD dismisses PBCPA's textual analysis based upon the Baker and Smith decisions
without any analysis of the PGE interpretation methodology or the specifics of the
context examined in PBCNs analysis.2 That textual analysis shows that the term
"property owner" in the land use context frequently refers to owners as "owners as
shown on the most recent tax assessment roll". Accordingly, COlD's argument is
inadequate to counter PBCPA's textual analysis regarding the meaning of "property
owner" under ORS 197.772. COlD's bald assertion that the term ttproperty owner" has
been "clearly defined" has no basis, given the open-ended, undefined nature of the
term as used in DRS 197.772.
g. With regard to the nature of the easement in question and what law should be looked
at to assist in describing the attributes and scope of the easement, COlD disavows the
Alvis v. Swalley Irrigation District Federal District Court precedent as having any bearing
on interpretation of easement interests conveyed by the federal irrigation conveyance
grants. This argument ignores the fact that the Federal District Court found it necessary
to look to Oregon easement law in order to determine the scope of Swalley's irrigation
easement rights. During the text amendment proceedings and at LUBA in Curl v.
Deschutes County, COlD repeatedly asserted Alvis as authority supporting its proposed
piping actions. It is disingenuous for COlD to now back away from that case when
aspects of the case constitute an "inconvenient" reality for it. COlD does not argue that
it has a fee interest in the canal property; this leaves an easement interest -as the court
in Alvis rightly found --as the only applicable analogous property interest.3 COlD's
argument provides no basis in the text or context of the language of DRS 197.772 or its
related statutes that the ORS 197.772 reference to property owner refers to anything
less than a fee title interest in property.
h. In addition, COlO mischaracterizes the Court's decision in Alvis. Contrary to the
District's assertion, the decision did not establish an irrigation district's "plenary
authority" to use their rights of way for irrigation purposes, but expressly found that the
2 This is similar to COlD's refusal, expressly noted by LUBA, to engage the Petitioners argument in Curl v. Deschutes
County, _ Or LUBA _ (2014) (Case No. 2013-86/95, March 20, 2014) that the proposed canal piping constituted a
"hydroelectric facility", One can certainly draw a strong inference here that COlD simply has no good argument to
counter PBCPA's contextual analysis.
3 COlD argues that there is a difference between a federally granted right-of-way and an easement, but provides
no information as to what that difference may be. Interestingly, in written materials drafted for a presentation
Ms. Dickson made to the Special Districts Association in 2012, she makes several references to rights-of-way as if
they are the same as easement interests. See Exhibit 7, pages 1 and 3.
3
irrigation's district's authority to make "system improvements" was limited by whether
such improvements would as a factual matter increase the burdens of the easement
burdening the underlying property owners. In Alvis, the Court found that the
underlying property owners had not demonstrated that piping of the canal would
increase the burdens they bear as the holders of servient easement interests on the
property.4 In this case, COlD has made no effort and shown no inclination to establish
through declaratory proceedings, as Swalley did in Alvis, that its piping proposal falls
within the scope of its easement rights.s
i. COlD continues to mischaracterlze the historical designation owner consent provision as
a jurisdictional requirement for filing of the designation application when in actuality
the determination is a substantive one as to whether a historic designation can be
applied to the subject property. Specifically, the administrative rule implementing the
historic landmarks designation process requires notice to landowners as part of the
process and requires local governments to "allow owners of inventoried historic
resources to refuse historic resource designation at anv time prior to adoption of the
designation" (emphasis supplied) and precludes inclusion of a site on a list of significant
historic resources if the owner of the property objects to its designation. See OAR 660
023-0200(4}, (5).
j. COlD does not counter PBCPA's analvsis and interpretation of OAR 660-023-0200(S}.
2. Response to County Decision
a. For the same reasons set forth above in paragraphs c, e and f in response to the
COlD position, the County's reference to the Emil Smith decision and the local
definition of a property owner is a non-starter. The provision in question is a
matter of state-enacted law. Accordingly, the state law provision at issue can
only be interpreted in light of state law and not as the County supposes in its
decision by referring to definitions in the County's code and decisions made
under the County Code by the County Hearings Officer.
b. With regard to language in OAR 660..Q23-0200(S), PBCPA stands by the analysis
on page 5 of its letter of October 27,2014.
4 From reading the decision, It appears that the property owners put on !!Q evidence as to the increased burden
they would suffer from piping of the canals, as the court relied solely on the representations of the irrigation
district that no additional burdens would accrue to the property owners if pipins were to be allowed.
S COlD's failure to address that issue may be because It realizes that due to topographical changes to affected
properties resulting from burying the 9-foot diameter of the pipe (twice the diameter of the pipe in Swalley)'
increased maintenance responsibilities of property OWnE'fS to carE' for the new ground created by the earthen
berm hiding the pipe, the imposing nature of the pill box-like concrete vault forebav mounted on top of the berm
resulting from burying the pipe and the uninsurable risks associated with potential failure of the earthen berms
leading into the forebav that it simply cannot make the required showing.
4
·....
BRUCE WHI E, ATTORNEY, LLC
October 27,2014
Via Hand l)elivfglJLJlP, an t:XhibiJ 10 the
PBCPA application fOr histotic dest'gnaliou
(Arlie Pilot Butte Canal) and bll !.eearqle email
Nick Lelack
Director, Community Development Department
[)c~chutes County
111 NW Lafayette Ave.,
Hemt OR 9770 J
Peter Gutowsky
Deschutes County Planning Division
117 NW Lafayette Ave.
Bend OR 97701
Dear Nick and Peter:
I have been ~ked by representatives of the Pilot Butte Canal Preservation Alliance (PBCPA) to assist in filing an
application made by various propeny owners to have it segment of the Pilot Butte Canal located in Deschutes
County designated and protected as a historJc re::;ource under Goal 5. In response to a prior submittal made
011 ht!half of PBCPA earlier tbls the County summarily rejected the PBCPA application on the
grounds that the Central Oregon lrrigation District (COlD) had indicated in writing that it would nOt
consent to such a designation and that pW·SWint to OAR 660-023-200 the application must be rejected.
At the time, in her Jetter of April 22, 2014 and in submittal, Pat Kliewer provided evidence that the
OYl.'l1efship of the canal area lay with the underlying residential property owners (see Exhibit 16·1
attached hereto). In its short letter of April 14, 2014, COlD asserted ownership of the canal property
that was the subject of the historic designation application~ but provided no facts or supporting
documentation to back up that assertion (See Exhibit 16-2, attached hereto). Despite the applicant's
more thorough analysis of this issue, tbe County summariiy rejected the PBCPA application and refused
to process it
this time, the PBCPA wishes to renew its application. To counter COlD's expected negative respolrlse
and to assist county staff in responding, thIS letter provides a legal analysis demonstrating that COlD has
no veto power under ORS I 97,722( I) to cuuse this designation application to be rejected by the Coullty,
If alter reviewing this letter and any response by COlD thereto, County stafl'still believes there to be an
issue as to COID's authority under ORS t 97,722. the proper response is to not sUlrunarily reject the
application but to instead refer the matter to hearings body for resolution. Given the detailed nature
the arguments made herein, there can no question that the PBCPA application is complete as it
relates to this issue.
P.O. BOX 1298 .. BEND, OR" 97109
PHONE, (541) 382~2085
October 30, 2014
(1) A textual AnaJysis of ORB 197.722 does not support a elaim that COlD consent is
required.
ORS 191-722(1) reads as follows:
"Notwithstanding tlny oiher provision oflaw. a local government shall allow a proper(v
O\i'ncr to refuse to consent to any form of historic designation at any point during the
desi~natiort process. ,S'uch refusal 10 consent :;hoil remove the properly from anyfbrm of
consideration historic property designtJlion under ORS 358,480 to 358.545 or Otl121'
law t:.Jx.:ttpJ jur consideration ill' nominalit)" 10 the National Rep,ister of His/orit, Places
pursuant to the National Hisloric Pre,~ervalion Act qf 1966, as amended (16 USC. 470
f!1 seq,),
An analysis of the terms "properly" and "owner" shows that under their common usage and
understanding they to real property ownership in fee titl.e. In the absence of any specific definition,
words 1.11' common usage Bre given thelr "piain, natural, and ordinary meaning". Portland Gemtral
Electric (PGE) 11. BOU, J 17 Or 606, 611, 859 P2d 1143 (1993)1. In this case under the ordinary usage
of those tenus, COlD is not the "O\\11er'" of 8 "property". As it relates to real property. the term "owner"
commonly refers to the owner in fee title. (See, the term "owner" as defined in Webster '8 Third
New International Dictionary, (Springfield, MA: G & C. Merriam Co., 1966). p. 1818,1 refe11'ed to
hereinafter as "Wcbster'I'l'~) Common dictionary detinitions of the word "property" typically refer to
property in title. (Sec, the term "property" as defined in Webster'S.:;) In order to apply to
COlD's easement ov.nership, the language would need to include the phrase "owner of all interest in
property". Under accepted standards for statutory interpretation, it is nol permissible to in effect insert'
language into a statute in the guise of inte.rpretation. ORS 174"010.
In addition, the context of the tenn "property owner" supports such a reading. Textual context is part of
the ttrst level of statutory interpretation under the POE methodology of statutory interpretation. PGE,
supra. The context of ORS J97, 722( !) includes the balance of ORS Chapter 197; ORS Chapters 215
(relating to land. uSe regulation by counties) and (relating to land use regulation by cities) and ORS
195300 et seq. (just compensation land use regulation) as statutes bearing on the same subject
matter. PGE.. supra. In the land usc statutory scheme, the tenn "property owner" has consistently
referred to the owner in iee title, both before the enactment of ORS 197.722( 1) and after. For example.
ORS 197. t 95 (relating to limited land use decisions) was adopted during the same legislative session as
56588, Significantly,ORS 1 97.195(3){b) contains 3 notice provision that requires notice to be sent to
"owners. of property" within 100 feet of the subject site. The statute goes on to define those owners as
S(''C Desehuoos County Code (DeC) Section 1.04mo.
'I1u::re, the tenn "ownet" is defined as "one lhal owns: one that has the legal or righlfiIl title whether the possessor or not".
\ There, the term "'property" is defined as tollows:
au : something that j" ur may he !'lwnl:d 01' pos!les~cd: WEALfH, GOOnS; spedf: a (lfreul u!rttltt'. , • ~: something to
which II person has legal title: an estate in tangible assets (us lands, goods, money) or tangible rights (1lS eopyrights, patents)
ill which or to which a person ha!' a right protected by law." Webster's, p. 1612. I
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being the owners as shown on the most recent property tax rol1.4 ORS 197 .1 95(3)(b ). The same is true
of the description of "OVIlIlers" entitled to notice of expedited land divisions, also adopted in the same
legislative session as SB 5S8. See ORS 197.365(2» and owners who are entitled to notice generally in
local quasi-judicial land use proceedings under ORS 197.763(2){a) (adopted in 1989),
Similar references to the term "property owner" appear in ORS Chapter 215, dealing with land use
regulation by counties. For example. the procedures outlined tor zone changes refer to such proceedings
being initiated by the request of "a property owner" and requires that in such instances, notice be given
to adjoining '~record owners of property". ORS 2 t 5.223(3). TIle statute distinguishes between the fce
ownership of the zone change initiator and the possessory interests of certain tenants, ORS 215.223(7).
ORS 215.293 re'('luires "landowners" of land on which dwellings in the EFU ZOlle are to be located as
needing to sign and record in the deed records 11 document binding the landov..ner to not pursue any tort
claims reiated to accepted farm and forest practices. ORS 2 J5.293. County land use procedures are
required to give notice of land use decisions to "the m,vners of record of property on the most recent tux
assessmcntrotr". ORS 215.416(1l)(c)(A).
These enactments were all made pri{)f to the enactment of DRS 197.722(1) and as such provided the
context known to the Legislature when it chose to use the tenn "property owner" in adopting ORS
197.7220). Tv hc valid as an imlicalor of legislative intent, such related statutes must have been
enacted contemplmll1cously or prior in time to the subject enactment Stull v. Hoke, 326 Or 72. 79-80.
948 P2d 722 (1997), In this C'd.<!C, the referenced statutes were all enacted either contemporaneously or
prior in time to ORS 197,722t 1).
In tbis C3..<;C, the facts show that COlD docs not own fee title to the beds and banks of the J>Uot Butte
Canal. A representative titlerepot1 shows that the title company in that case believes the owners of the
underlying property are vested in fee title to the property on which the canal sits. (See Exhibit 15 to
PBCPA burden of proof jn application for historic designation.) The tax lots are all drawn on the
assessors' tax maps showing the canal property as being part of the underlying property owners'
property. (See Exhibit 0 to PBCPA application form.) l11e Wlderlying property owners all pay ad
valorem real property taxes on the property occupied by the canaL 5 The deeds held by the underlying
property owners all include in their description the property occupied by the canal to the centerline of
the canal. (See Exhibit E to PBCPA application 1l.mlL)
(2) Analysis of easement law shows that an easement holder does not hold fee title to any
property.
In Swalley irrigation District v. A/vis, the Federal District Court construed an irrigation right-of~way
grant identical to that claimed by COLD in this casc. Swalley Irrigation Distriel v. Alvis, Civ. No. 04
J721-AA (D. Or. March 1, 2006). I n that (~ll5;e, the eourt deemed it apprnpriate to analyze the parties
respective rights to the right-or-way under Oregon casement law. Under the common law of easements
4 The tax rolls show only ownership in fee title or buyen; who by land sale contract have contracted to buy the fee title of
(JfOperty.
" This was verified for me by Greg Rossi of the Deschutes County Assessor's nUke, We reviewed It representative tax
aU:uuilt f()I' the Cud property (Pmpcrty 30 ill tin: BOP) (1'4x Lot 17J215AAO{)703) and (QUlld thallhe area aSSQ:.ed for ad
valorem tax purposes was the same as th..: area shown on the plat for net acreage (after deducting the area occupied by the
road) (See DIAL report, Exhibit 15A of the PBCPA burden of proof.)
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October 3{J, 2014
in Oregon, it is clear that ea5t-'ment holders do not acquire a fee title interest in the property that is the
subject of an easement such that they could be referred to as the property "owner", See. e.g., Marshall
v. City of Yachats, 973 P2d 374, 158 Or App 151 (1996), nm den. 987 P2d 514 (an easement creates a
right to use another's land but leaves title to the land itself in the owner of tbe fee). TIle easement
holder's rights are limited to being <'what is neces..'lary for the reasonable and proper enjoyment of the
easement. but the servient property owner retains the right of full dominion and use of the subject land,
limited by those rights in 111e easement holder essential to the easement holder's fair cl'\}oyment of the
easement right. Craft v. I'Veakland,23 P3d 413, 114 Or App 185 (2001). Watson v. Banducci. 973 P2d
395, 158 Or App 223. These principles have been expressed in Oregon case law going back decades.
e.g., Gamma Alpha Bldg As." 'n v. City (~l F:ugene~ 184 P 873,94 Or 80 (1919) (the conveyance of
an easementln land does not pass the title or interfere with the right ufthe owner of the soil to occupy it
for any purpose no inconsistent with the easement).
Accordingly, when the Legislature enacted ORS 197.722(1), it did so in a legal context that dearly
dctined property ownership relatIve to easements. Sec Fresk v. Kraemer, 337 Or 513,520. 99 P3d 282
(2004) (a statute'!) context also includes (he common law in existence at the time the legislature enacted
the statute). Under such circumstances, courts generaIly construe statutes '''in a manner consistent wilb
the common law, absent clear legislative intent to the contrary," Slale v. Ford, 310 Or 623,637 n 21,
80 I 2d 754 (1990). [n this case, there is no demonstrated legislative intent that '''property owner" means
anything other than what it says.
I In this context,. the Legislature's general reference to "property owner" can only mean the owner in fee
title and not the holder of an easement interest in Jand, such as that held by COlD in this casc.
~ (3) As a faetualmatter. COlD is the owner of nothing as it relates to the properties uver
1 which its easement crosses.
1n this case, the subject of the easement and of this historic designation request is an earthen ditch
J excavated out of the ground on which the ditch sils. It lies on property that is owned in fee title by each
of the underlying property owners (aJI of whom own to the center of the canal, which divides ownership
between properties on opposite sides of the canal). (See Title Report, Exhibit 15 to PBCPA historic
designation hurden of proof and plats included as Exhibits 4 8 of the same.) As explained earlier in
this letter, the property owners all pay property taxes on the canal. portion of the underlying properties.
Although the ditch may be viewed as a "structure", given that it is an artificial vessel through wh.ich
water flows. it is an intrinsic part of each of the underlying properties and constructed largely with
natural materials from those underlying lands and does not have a separate existence from those lands.
(See photQS in Exhibit 9 of the PBCPA burden of proof.) As it relates to the beds and banks of the
segment of the Pilot Butte Canal at issue, there is nothing tor COlD to separately "own", The canal is
an integral part of the underlying owners' property.
(4) OAR 660-023-0200(5) provides no basis for requiring COID's consent.
In its April 14,2014 letter. COlD reierenced OAR 660-023-0200(5) in support Qf its contention that its
consent was required. That administtlltivc rule reads as follows:
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-5 October 30,2014
"Local governmenls shall allow owners of invenioried hisloric resources to refuse
historic resource designation at any lime prior to adoption of Ihe designation and shall
not include a .'iile on a list of sib7Jltticanl historic resources if the owner of the praper~v
objects to its designation, "
OAR 660-023-0200(5).
At first blush., the phrase "ovmcrs of inventoried historic resources" might tempt one to construe the rule
to allow a broader reach of the consent provision to include "resources" other than those that are
possessed by an underlying property owner. However, the inclusion of the term "owner" and the later
reference in OAR 660~023-0200(5) to the owner as the "owner of the property" shows that the policy
expressed in the administrative rule is no diflerent than that expressed in the statute. To focus on the
phrase "owners of inventoried historic resources'" to the exclusion of the phrase "owner oftheproperty"
in interpreting rule to the effect thai consent t.:ould be required of a purported "owner" or possessor
some property intcrt:st other than iL"'C tilic would have the effect of reading the phrase "owner of the
property" ()ut of the rule, which is not allowed under maxlrns of statutory ()onstruction. ORB 174.010
("wh~re there are several provisions or particulars fin a statute] such construction is, if possible. to be
adopted as will give effect 10 all"). In addition, under that same rule of construction, enactments are to
~construed to hanl10nize the statutt;:S in un effort to gi ve effect to all of the language in an enactment.
DaJy v. Horsejly irrigation District, 143 Or 441, 445, 21 P2d 787 (1933). In this case, the
administrative rule can be harmonized by conslruillg the {eon "inventoried historic resources" to refer to
the manner in which candidate properties are referenced or li:sted and Hut a!) a term of description
defining who is required to gi ve consent.
(5) Conclusion: COlD bas no substantive right to veto a designation by withholdmg its
tOnsent
.Fnr all the reasons set fonh above, there is no rC{luircment that COlD consent to any designation of the
subject Pilot Butte Canal segment. as a historic resource.
Thank you I'Or your consideration of this letter.
Sincerely,
Bruce W. White
C. Clients
David Doyle
January, 27, 2015
Curtis and Stacy Pell
20985 Scottsdale Dr.
Bend, OR 97701
VIA HAND DELIVERY
Commissioner Tony DeBone
Commissioner Alan Unger
Commissioner Tammy Baney
Deschutes County Board of Commissioners
1300 NW Wall Street, Suite 200
Bend, OR 97701
Dear Commissioners DeBone, Unger, and Baney:
We are writing today to provide testimony for the January, 28, 2015 discussion regarding
designating a section of the Pilot Butte Canal as a Goal 5 historic resource.
There are two issues that are holding up the application, the first is a question of property
ownership. The idea that there can be multiple, unrelated owners for a piece of property is
wrong on its face. My wife and I are the owners of record of 20985 Scottsdale Drive in Bend,
OR. I have attached a copy of our Deed as well as a Fee Title Document provided by our title
company. Where is Central Oregon Irrigation District's (COlD's) Deed for my property? The
court has held that a right-of-way is not tantamount to fee simple ownership. The property
referenced above is very clearly owned by Curtis and Stacy Pell alone.
The attached county plat map shows that my neighbors and I own all of the land in the request
for historic designation. There are no property lines carving out the canal bed as having a
different owner than my neighbors and us.
We pay property taxes on 2.51 acres including our property that the water runs over. What does
COlD pay in property taxes for my property? We contend they pay nothing in property taxes for
this land.
I have attached a document from October 4, 1967 signed by COlD President Arthur L. Horsell.
This documents an agreement between COlD and Deschutes County to allow a bridge over the
canal on Old Deschutes Road. On page 2 of this document, President Horsell specifically denies
that COlD owns fee title to the land under the bridge ('IT IS EXPRESSLY UNDERSTOOD
AND AGREED That the Grantor does not claim to be the owner in fee of said tract.'). COlD
cannot have it both ways. They can't have benefits of ownership without the responsibilities that
go along with ownership. They can't contend they have ownership rights for some purposes (like
denying an application for a Goal 5 historic resource) and not ownership responsibilities for
other purposes. In its own words cited above, COlD does not own fee title to the tract under the
bridge. COlD does not own fee title to any of the land in question.
We have a number of easement holders for our property. They include our next door neighbors
and The Pacific Power Company. They are not owners of record of our property either. They
don't get to say 'no' to a designation that does nothing to change the nature and scope oftheir
easements. COID should not have this right either.
The second issue preventing historical designation by the County deals with there being an
application already in process. We disagree with stafI's interpretation on this matter as we view
TA 13-4, submitted by COlD December, 2013, not as an "application" but as a request to change
general zoning rules.
In summary, the two points that have delayed the designation of a section of the Pilot Butte
Canal as a Goal 5 historic resource are not applicable in this case. We have shown that we are
the sole owners of record for 20985 Scottsdale Dr. We have shown that our neighbors are
owners of the rest of the land that the water runs over. COlD is literally 'not on the map' in this
situation.
We contend that TA13-4 does not qualify as an application, per se, that should derail this very
specific, geographically-bounded Goal 5 historic resource request. It is a general zoning rule
change request for the entire SR 2.5 zone. It is not, and cannot be, a specific application for
future deVelopment.
Enc.
Juniper Ridge Hydroelectric Project Q & A -The Neighborhood's Perspective -Cascade ... Page 1 of 4
A.erial. Lay Title Assoclatloa Onaon Title Inlurance Rating Organization (OTIRO
ALTA OwDer's Polley (6-17-1006) OTIRO No. PQ..04
Scm;DULEA
AmeriTitie
15 Oregon Avenue
Bend, OR 97701
File No.: 153877-RGSlkg
Policy No.: 733()6..91480769
Address Reference
20985 Scottsdale Dr, Bend, OR 97701
Amount of Insurance: $580,000.00
Premium: $1,470.00
Date of Policy: JUNE 30, 2014 AT 1:10 P.M.
1. Name of Insured:
CURTIS PELL and STACY PELL
2.
3.
The estate or interest in the Land that is insured by this policy is:
A FEE
Title is vested in:
CURTIS PELL and STACY PELL
4. The Land referred to in the Policy is described as follows:
Lot Three (3), OLD DESCHUTES WEST, recorded February 11, 1999, in Cabinet E, Page 178, Deschutes
County, Oregon.
I
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-_rf" ..
THIS SPACE RESERVED FOR RECORDER'S USE
.._~3S~
Amerllitle
After ru:ording return to:
Curtis Pen
209IS Scottada1e Drive
Bend. OR 97701
lJqtil a change is requesb:d all tax statements
shall be sent to the following address:
Curtis Pell
2098S Scottsdale Drive
JkDd. OR 9770)
Escrow No. sa 1 S3177LR
Title No. 153877
SWD r.0202-;-;12;-"""'-~------
De6Chutes County OffICial Records 2014-021035
[)..I) 06130/201401:10:37 PM
Sln=2PG
$10.00 $11.00 $10.00 $6.00 $21.00 $68.00
~ Heney BIaI\MIIIIIIIp. COIIIItW CterII for Dnchute'll CoIIn\'. 0Ng0II.
certifY 1IIlIt!hlt ImIIr\Iment !denIIIIeCI henIIn was reeonled In !hit Clerk
--. Nancy Blankenship -County Clerk
STATUTORY WARRANTY DEED
Mie.aeI BaD Smida .ad Margaret Belen Smltll,
Grantor(s). hereby convey and warrant to
Cartis PeU ud Staey peo, as .aaa.. by the entirety,
Grantee(s), the following de:scribed real property in the County of DESCHUTES and State of Oregon free of
encumbrances except as specifically set forth beRin:
Lot Tllne (3), OLD DESCHUTES WEST , recorded Febnary 11, 1999, ill Cabinet E, Pace 178, Deschutes
COUDty, Onpn.
The true and actual consideration for this conveyance is S58O,OOO.OO.
The above-desaibed property is tree of encumbnmces except aU those items of record. if any, as of the date of this
deed and those shown below, ifany:
201 .... 2015 Rat Property Tues a liea aot yet due alld payable.
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N SEt YAP 11 12 t!'lAB
COMPl!NTS OF
AmeriTitle
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\
\
\
\
.... ~--
,
20985 Scottsdale Dr, Bend, OR 97701 to Mountain View High School-Google Maps Page 2 of2
These directions are for planning purposes only. You may find that construction
projects, traffic, weather, or other events may cause conditions to differ from the
map results, and you should plan your route accordingly. You must obey all signs or
notices regarding your route.
file:IIIC:/UserslCurtislAppData/Localffemp/Low/U5NHU3N9 .htm 1123/2015
--
r.tJI~ AG.R,J:EMENl', Entered into this 4th day of October, 1967, by and
betW.~fi PESCHUTES COUNTY I a Political Suhdivision of the State of Oregon,
her~inafter referred to as the "COUNTY", and CENTRAL OREGON IRRIGATION
PISARlCT, 11 Municipal Corporation of the State of Oregon I hereinafter reforred
to as "C ~ O. r.". and in consideration of the mutual covenants contained herein t
and.
WHEREAS I The CO UNTY and C. O. I. des ire to construct a bridge acros s
the main Pilot Butte Canal in the SW! NE! of Section 15. Township 17 South,
Range t'2, E. W. M.; and
WHEREAS, The C. O. I. will execute an easement to the COUNTY for
pubhc use across its right-at-way as described above. at a point where there
has eXIsted a bridge in the past; and
WHEREAS, The antJcipated cost of sa1d bridge 15 S 2,500.00:
NOW, THEREFORE. IT IS AGREeD as follows:
1. The COUNTY will construct said bridge and be responsible for the
continuing maintenance of the bridge;
2. C. O. I. will pay to the COUNTY upon completion of the bridqe
:1'":0 sum of $1,000.00 for its share in the construction of scud bridge;
3. The specifications of said bridge will he aqreed upon by both
C. O. I _ and the COUNTY:
4. The C. O. I _ agrees to grar:ting to the COUNTY an f~asement for
public usc as lor-g as the bridge is dedicat8d to public usc;
5. C _ O. I. dnd the COUKTY agree that this ilqreel~ent will be m ef
fect as long as the casement mentioned above in Paragraph 4 exists.
-tf/'rn-:"';!!5,...~:4.,....~L.,~~,:l!""'ZdIZ:.~~€::::e~_ B.?'...2~~~ d'
-=-~~"~~__<4L--_->-.I.o...Jt:;.~'Jt-·~LL__L~commi sS ionerBy
/ Com~iSS lOner
/--:~cT:.".., c. ,: ..r,-./ "
CI:NTAAL OREGON IRRIGATION DISTRICT
J
Li ~L (' /
A~~or~s~,~:r~:id~;t
Betty Stv"'tl.ard. Secretary
•
CommiSSioner
--
O~L 155 .315EASEMENT
KNOW ALL MEN BY THESE PRESENTS. That CENTRAL OREGON IRRIG-
ArION ntsTRICT I. a municipal corporation. Grantor, for valuable consideration I
does hereby grant and convey to DESCHUTES COUNTY, a political subdivis ion
of the State of Oregon, its.successors in interest. the following easement,
to-Wit:
The right to construct and maintain a bridge, as now located I
over and across the Pilot Butte Canal, the point of intersec
tion with the ce~ter line of the Pilot Butte Canal being 472 feet
West and l08 feet North of the Southwest Quarter Northeast
Quarter of Section 15, Towns hip 17 South. Range 12, 1:. W. M ••
Deschutes County, Oregon.
Together with the right in the public of ingress and egress over
and across said bridge at said location; provided, however, that
such crossing, right of ingress and egress and maintenance there
of shall not interfere with operation of said Canal by the Grantor I
and expressly reserving to the Grantor the joint use of said bridge
with the public.
IT IS EXPRESSLY UNDERSTOOD AND AGREED That the Grantor does
not claim to be the owner in fee of said tract.
The acceptance and use of this grant shall constitute a waiver on the
part of all the users of said bridge of any claims or demands arising out of the
use thereof, and/or the operation of said Canal by the Grantor.
DATED This 4th day of October, 1967.
CENTRAL OREGON IRRIGATION DISTRICT
BY~::r:~
Arthur L. Horsell, PreSident
0,
8y__c;a~~rl~'--~f~~~~_?~~__~k_.~E_____. .~~ . "7 7 Betty~nard, Secretary 0
STATE OF OREGON. County of Deschutes ) ss. October 4, 1967
Personally appeared Arthur L. Horsell and Betty Stanard, who, each
being duly sworn, did say that he is the President and she is the Secretary of
Central Oregon Irrigation District I the within corporation I and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation and
"':.0' '.... ol tha, said instrument was signed and sealed on behalf of said corporation by au
,::, . tnortty of its board of directors; and they acknowledged said instrument to be
l \\ .) r ilt~ !Vo~ntary act and deed. Befo
.,,:,
'J .) 0_ 'o "'" ,
, '
January 27,2015
Deschutes County Commissioners
Anthony Debone
Tammy Baney
Alan Unger
Dear Commissioners:
Imagine moving to Bend, and finding a property adjacent to an old ranch
(Overtree Ranch), with a freely flowing canal and beautiful pond. That was our
family's first introduction to the beauty of this NE Bend neighborhood. We
'settled' here in 1998, and for the first few years, I remember riding horses with
my Mom through the as yet undeveloped Overtree and Scottsdale Ranch
Properties, and riding along the Pilot Butte Canal, with it's many waterfalls and
rapids. We especially enjoyed seeing the old Overtree Ranch Pond, a stock
pond created over 100 years ago for cattle grazing on the Overtree Ranch and
the beautiful waterfall just downstream (now destroyed for an intake basin for
COlD's hydroelectric project in Juniper Ridge).
We liked the area and the running water so much, that when the Overtree Ranch
development was built, we purchased the property which contained the historic
Overtree Ranch Pond specifically for it's onsite historic pond and the running
water in the canal beside it. Friends and neighbors purchased properties in a
development called "Canal View". Why would you permit the recent
development of these areas, and then allow COlD to remove that feature from
our property to put a hydroelectric project in our backyards, without being bound
to the basic land use rules already in place?
I am writing to support the Application for Pilot Butte Canal's Historic designation.
While you apparently have issue with the timing, it is precisely because of threats
like the previously proposed TA-13-4 zoning change (that you cite as a reason to
deny our request) that we need your help in protecting our neighborhood. A
historic protection seems to be the only way we can find to stop this project from
proceeding, and severely affecting our property values and the livability and
marketability of our community. like many of my neighbors, I have been in Bend
a long time, and we have seen the development of the Juniper Ridge
Hydroelectric project (phase 1, on public land) first hand. I was told by COlD
when they completed Phase 1, that they were done. Then they came back, and
with a heavy hand of authority they told me that they now were going to do
Phase two, in our yards "immediately, it's already approved", and that I needed to
sign an agreement to let them excavate, or "they would put the pipe right on top
of the existing canal"
They also lied to me and told me most of my neighbors had already signed
similar agreements. When I pressed them (several times, in writing) for a
working agreement of how they would be doing this project, how I would be held
harmless from any damage they caused, how they were going to put this pipe in
the canal with my 1 acre pond in their way, they continually promised to get back
to me, but never once have put any such agreement in writing.
I have not signed any agreement for them to excavate my property, and I feel I
could never be compelled to sign one under the current text amendment
approval process. Based on my legal understanding and advice (after spending
significant time and money to learn the facts), I do not believe COlD has the legal
right to modify the canal for this hydroelectric project, and they do not have the
right to excavate my property to enable any part of a hydroelectric project.
Now COlD is applying for permission through a Text amendment to do
something they still contend they already have the right to do. If this was true,
you would not be hearing this issue, and they simply would have already been
digging in my backyard. This is now the second year that I have been prevented
from making an effort at the possible sale of my home because of the uncertainty
of this issue and the disclaimer I would have to file if I listed my property.
Despite clear signs from LUBA and your own planning commission that TA-13-4
is not the right way to go about approving this project The Board of County
Commissioners have failed to complete this deciSion, and are currently hindering
the marketability of properties in these neighborhoods. Many residents like
myself have taken Significant time, effort and money to inform you of the illegal
'taking' of property this hydroelectric project represents, and why it is actually
illegal for many reasons.
You have already received my attorney's letter outlining my position on this
matter. Please review the serious legal issues raised related to this project,
Including:
o Your responsibility to levy land use decisions and review land use
activities within the county,
o That Oregon law prohibits Irrigation districts from using eminent
domain to facilitate a hydropower project
o That an easement or right of way is not tantamount to fee simple
ownership, and thereby, COlD has no status to reject this Historic
Application.
AftetHevifMfing my legal position, I also feel compelled to tell you that I strongly
feel that it would be unwise for me to participate in a mediation process with
COlD over the piping project because I believe they flatly do not have the
authority to use a Text Amendment to change zoning in our area for this
hydroelectric project. It is disingenuous for them to assume that if they mediate,
they somehow gain a way to pipe for hydroelectric profits on our property without
going through the proper land use process. If at some time that they properly
apply for and receive permission for their hydroelectric project with the county
under the appropriate land use laws in place, I could foresee they would need to
mediate or negotiate some incentive with the property owners as a part of
completing their project in the least obtrusive way, as required by current law.
In addition, the current Historic Preservation applications are underway, and
while an option might exist that would properly preserve my desire to NOT pipe
the canal, I have no motivation to mediate on the current TA-13-4 plan, which will
no doubt be tied up in court if approved, due to the serious legal issues already
raised by LUBA and others, or if not approved, by COlD as they try and find a
way to use my property for their profits.
Until such time as they complete an application, go through the required land use
processes and receive county approval for their hydroelectric project, and/or
permanently remove their illegal text amendment request currently in abeyance
with the county, it would be foolish fort me to participate in the mediation
process.
At this point, I consider COlD a hostile easement holder, and look to the county
to fairly help me defend my private property interest and that of the many other
property owners against COlD overstepping their right of way. As
Commissioners, please step up and make a decision to deny the text
amendment zoning change, and then consider the legally valid requests to
protect the livability of this historic part of our community, which is so valuable to
the residents of Deschutes County and the City of Bend, with approval of a
historic designation application.
Remember, COlD does not lose the ability to deliver water with a historic
designation. This has been and continues to be their reason to exist, and they
have no current legal right to our properties other than a "right of way" easement
to maintain delivery of Oregonian's water. COlD is a quaSi-governmental entity,
and is under your jurisdiction. Please hold them to the highest standard of
forthrightness, a standard they have definitely not met in my eyes.
I am also fully aware of the objections that COlD and others have raised to this
nomination in regards to water conservation. If there were already a program in
place whereby the county had piped their own land along the canal (miles and
miles of it), and then asked me to participate in some type of water conservation
as well, I might be more understanding to "do my part" to conserve water.
However, It is ludicrous to argue that this historic short reach of the Pilot Butte
Canal, Which being the original portion, has the most historic value, but is
imperative to their hydroelectric project, would be piped for "water conservation".
Let me reiterate the ways that I am personally invested in this situation:
1. I have paid taxes, which will go to piping my own backyard, via DEQ
money already allocated to this project.
2. I have paid property taxes to the county, which has now spent hours of
staff and board time listening to COlD's arguments to do something
that LUBA and your staff have deemed illegal.
3. I have paid an attorney for a solid legal opinion to try and protect my
own and my neighbor's property rights and value.
4. I have suffered (and will suffer more) from a marked decline in my
property value if you take the most valuable feature of my property
(open water, historic canal frontage) and give it to COlD for a
hydroelectric project they are not chartered to operate on my property.
5. As a Customer of COlD, I pay them fees and usage charges to
continually lobby and hire lawyers to 'find a way around this illegality,
and/or convince government and non-profit agencies to help them
approve a right they do not have.
6. I pay property taxes on a bond for Juniper Ridge, a project that was
supposed to include restoration of the piped canal's waterfall feature
and a public water feature as part of COlD'S mitigation for piping that
reach of canal. No restoration has been done there thus far, and
Juniper Ridge sits mostly empty, and devoid of any of the promised
improvements. (The most recent-200B Juniper Ridge master plan still
promises these improvements)
Believe me, I love water and conservation principals as much as any Deschutes
County Citizen. However, I don't believe COlD or the County has the right to
make me pay so much more than everyone else to achieve their "water
conservation" and Hydropower generation goals, and I strongly urge you take
away this threat to our community, by protecting this original historic stretch of
AM Drake's Pilot Butte canal for our future generations to enjoy.
Sincerely,
Matt and Suzanne Gadow
63435 Overtree Rd
Bend, OR 97701
NATIONAL REGISTER NOMINATION EVALUATION SHEET
Certified Local Governments I Historic Landmark Commissions
The fo/Iowing property is being nominated to the National Register of Historic Places and will be reviewed by the State Advisory
Committee on Historic Preservation (SACHP) at its meeting on 2/1912015.
PROPERTY NAME: PILOT BUTTE CANAL HISTORIC DISTRICT
ADDRESS: YEOMAN RD
BEND, DESCHUTES COUNTY
OK Concerns
Concerns
Concerns
OK Concerns
OK Concerns
INTEGRITY: Major alterations or additions? New materials? Altered setting? Moved? etc.
Is the property adequately described? Have contributing and non-contributing DESCRIPTION: features been clearly identilied?
Has the appropriate criterion been used? Has it becn justified? Is the context
sufficient in breadth and depth to support the daims of significance?
SIGNIFICANCE
and CONTEXT:
FACTS AND Are the appropriate and best sources used? Are key dates and facts
SOURCES: accurate? .
SUPPORTING Adequate photos, maps. drawings. elc.?
MATERIALS:
The Commission recommends that the property or properties appear 10 meet the National Register
criteria and should be listed in the National Register.
The Commission recommends that the property or properties do not appear to meetlhe National
Register criteria and should not be listed in the National Register.
Return to: Oregon State Historic Preservation Office
ATrN: National Register Coordinator
725 Summer Stree\' N£., Suite C
Signature of Commission Chairman (or Designee) Date Salem, OR 97301
Name of local Historic Preservation Commission
Deschutes County
Board of County Commissioners
January 28, 2015
The Board’s decision on this application will be based upon the record, Staff
administrative decision, and the testimony and evidence presented at this
hearing.
The hearing will be conducted in the following order.
1.Staff will provide a brief report.
2.The applicant will present its testimony and evidence.
3.Opponents and proponents will testify and present evidence.
4.Other interested persons will then present testimony or evidence.
5.The applicant presents rebuttal testimony.
6.Staff will be afforded an opportunity to make any closing comments.
2
HEARING PROCEDURE
Proposal
A Plan Amendment to Designate a Segment of the
Pilot Butte Canal as a Goal 5 Historic Resource
Applicant: Pilot Butte Canal Preservation Alliance
Procedural Timeline
11/3/2014 Application Submitted
12/9/2014 CDD Staff Issued Decision
Rejecting Filing of Application
12/15/2014 BOCC Issued Order Initiating
Review of Decision Rejecting
Filing of Application
Issues Under Review
Issue #1 – Timing of Application Submittal
Are There Other Pending Applications That Might be
Affected by Historic Resource Designation?
Issue #2 – Property Ownership
Is Central Oregon Irrigation District (COID) an
Owner of the Canal Eligible to Refuse Historic
Resource Designation of This Segment of Canal?
Applicable Criteria
Title 2 Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic
Landmarks Commission
Section 2.28.020. Definitions.
“Property Owner”
Section 2.28.060. Procedures.
A. Historical Building or Site-Designation Procedure.
Issue #1
Timing of Application Submittal
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.
Issue #1
Timing of Application Submittal
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.
Issue #1
Timing of Application Submittal
Text Amendment File TA-13-4
Submitted 12/23/2013
“…a text amendment to Deschutes County Code Chapter
19.20 Suburban Low Density Residential Zone – SR 2½ to
allow the operation, maintenance, and piping of existing
irrigation systems as an outright use within the zone…”
Issue #2
Property Ownership
Section 2.28.020. Definitions
"Property Owner" means the owner of record or the
contract purchaser and does not include a person or
organization that holds a security interest.
Issue #2
Property Ownership
Hearings Officer Decision A-10-2(NUV-09-1)
Decision found the holder of an easement across private
property is an “owner of record” of an interest in the
property, and therefore is a “property owner” as defined in
DCC 22.08.010(A)
OAR 660-023-0200(5)
“Local governments shall allow owners of inventoried historic
resources to refuse historic resource designation at any time
prior to adoption of the designation and shall not include a
site on a list of significant historic resources if the owner of
the property objects to its designation.”
BOCC Decision Options
Issue #1 – Timing of Application Submittal
Are There Other Pending Applications That Might be
Affected by Historic Resource Designation?
YES TA -13-4 might be affected by historic resource
designation therefore this application cannot be filed
while TA-13-4 is pending.
NO TA -13-4 will not be affected by historic resource
designation therefore this application can be filed.
BOCC Decision Options
Issue #2– Property Ownership
Is COID an Owner of the Canal Eligible to Refuse Historic
Resource Designation of This Segment of Canal?
YES COID is an owner of the canal and can refuse historic
resource designation.
NO COID is not an owner of the canal.
BOCC Decision Options
Issue #1 – Timing of Application Submittal
Are There Other Pending Applications That Might be
Affected by Historic Resource Designation?
Issue #2– Property Ownership
Is COID an Owner of the Canal Eligible to Refuse
Resource Historic Designation of This Segment of
Canal?
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 1 of 8
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, JANUARY 28, 2015
_____________________________
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
__________________________
1. PLEDGE OF ALLEGIANCE
2. CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's
discretion, regarding issues that are not already on the agenda. Please complete a sign-up
card (provided), and give the card to the Recording Secretary. Use the microphone and
clearly state your name when the Board calls on you to speak.
PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public
hearing will NOT be included in the official record of that hearing.
3. CONSIDERATION of Board Signature of Document No. 2015-083, a Notice
of Intent to Award Contract Letter to Griffin Construction, LLC, for Tenant
Improvements to the Redmond Unger Building – Susan Ross, Property &
Facilities
Suggested action: Move Board signature of Document No. 2015-083.
4. CONSIDERATION of Approval and Board Signature of Document No.
2015-041, a Decision regarding an Appeal and Remand of the Millican Mining
Rezone (4-R Equipment) – Paul Blikstad, Community Development
Suggested action: Move Board signature of Document No. 2015-041.
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 2 of 8
5. A PUBLIC HEARING on an Administrative Decision regarding the
Designation of a Segment of Pilot Butte Canal as a Goal 5 Historic Resource –
Matthew Martin, Community Development
Suggested Actions: Open the public hearing and take testimony; decide
whether to continue the hearing, or close the hearing and deliberate.
CONSENT AGENDA
6. Board Signature of Resolution No. 2015-001, Initiating the Vacation of a
Right-of-Way off Tumalo Rim Drive
7. Board Signature of Order No. 2015-001, Vacating a Right-of-Way off Tumalo
Rim Drive
8. Chair Signature of Document No. 2015-052, Funds Transfer Agreement with
the Federal Highway Administration regarding the Fall Creek Bridge
Replacement Project
9. Chair Signature of Document No. 2015-030, an Intergovernmental Agreement
between the Local Public Health Department and the Oregon Health Authority
regarding Youth Suicide Prevention & Early Intervention Strategies
10. Board Signature of Resolution No. 2015-004, Transferring Appropriations in
the General Fund
11. Board Signature of Resolution No. 2015-009, Transferring Appropriations in
the OHP-Mental Health Services Fund
12. Board Signature of Resolution No. 2015-006, Transferring Appropriations in
the General County Projects Fund
13. Board Signature of Resolution No. 2015-012, Transferring Appropriations in
the County Fair Fund
14. Board Signature of Resolution No. 2015-003, Transferring Appropriations to
the District Attorney Department from General Fund Contingency
15. Board Signature of Resolution No. 2015-005, Transferring Appropriations in
the Industrial Lands Proceeds Fund
16. Board Signature of Resolution No. 2015-007, Appropriating a New Grant in
the Public Health Fund
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 3 of 8
17. Board Signature of Resolution No. 2015-008, Transferring Appropriations in
the Public Health Fund
18. Board Signature of Resolution No. 2015-010, Transferring Appropriations in
the OHP-Mental Health Services Fund
19. Approval of Award of Community Grants as Follows:
Deschutes Public Library Foundation - $2,400
Cascades Theatrical Company - $2,400
Deschutes County Historical Society – $2,400
Volunteers in Medicine – $11,000
Deschutes Family Recovery – $3,000
Volunteers in Action - $11,000
Big Brothers Big Sisters of Central Oregon - $11,000
American Red Cross - $5,000
20. Approval of Minutes:
Business Meeting of January 14, 2015
Work Session of January 14, 2015
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
21. CONSIDERATION of Board Signature of Resolution No. 2015-011,
Transferring Appropriations in the 911 County Service District’s Operating
Fund
Suggested action: Move Board signature of Resolution No. 2015-011.
22. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the 9-1-1 County Service District
CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H
COUNTY SERVICE DISTRICT
23. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the Extension/4-H County Service District
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 4 of 8
RECONVENE AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
24. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
Deschutes County
25. ADDITIONS TO THE AGENDA
_________ ______________________________________
Deschutes County encourages persons with disabilities to participate in all programs and activities. This
event/location is accessible to people with disabilities. If you need accommodations to make participation
possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org.
_________ ______________________________________
PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues
relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS
192.660(2)(d), labor negotiations; ORS 192.660(2) (b), personnel issues; or other executive session items.
______________________________________
FUTURE MEETINGS:
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners’ meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Monday, January 26
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, January 27
7:30 a.m. Legislative Update with Lobbyist and Legislators (Conference Call)
Wednesday, January 28
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Budget Committee Meeting (no Work Session)
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 5 of 8
Thursday, January 29
5:30 p.m. Public Hearing on Tumalo Irrigation District Appeal
Monday, February 2
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, February 3
3:30 p.m. Public Safety Coordinating Council Meeting
Wednesday, February 4
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
6:00 p.m. Sisters School Board Meeting
Tuesday, February 10
7:30 a.m. Legislative Update with Lobbyist and Legislators (Conference Call)
6:30 p.m. Joint Meeting with the Redmond City Council, Redmond City Hall
Wednesday, February 11
8:00 – 5:00 Annual Board Goal Setting Retreat – Health Building
Thursday, February 12
6:00 p.m. Joint Meeting with the Sisters City Council, Sisters City Hall
Monday, February 16
Most County offices will be closed to observe Presidents’ Day.
Tuesday, February 17
10:00 a.m. 911 Executive Board Meeting, at 911
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 6 of 8
Monday, February 23
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, February 24
7:30 a.m. Legislative Update with Lobbyist and Legislators (Conference Call)
Wednesday, February 25
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, March 2
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, March 3
3:30 p.m. Public Safety Coordinating Council Meeting
Wednesday, March 4
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, March 11
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, March 16
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, March 17
10:00 a.m. 911 Executive Board Meeting, at 911
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 7 of 8
Monday, March 23
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, March 25
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, March 30
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, April 1
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, April 6
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, April 7
3:30 p.m. Public Safety Coordinating Council Meeting
Wednesday, April 8
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, April 20
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Board of Commissioners’ Business Meeting Agenda Wednesday, January 28, 2015
Page 8 of 8
Monday, April 20
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, April 21
10:00 a.m. 911 Executive Board Meeting, at 911
Wednesday, April 22
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, April 25
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, April 27
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
_________ ______________________________________
Deschutes County encourages persons with disabilities to participate in all programs and activities. This
event/location is accessible to people with disabilities. If you need accommodations to make participation
possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org.
_________ ______________________________________
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
ADDITION TO BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, JANUARY 28, 2015
_____________________________
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
__________________________
A. CONSIDERATION of Approval of an Application for an Oregon Health
Authority Grant Request for Proposals – Tom Kuhn, Health Department
Suggested Action: Move approval of the grant application.