HomeMy WebLinkAboutPB Canal Historic App DocsDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of March 25, 2015
DATE: March 19,2015
FROM: Matthew Martin CDD 541-330-4620
TITLE OF AGENDA ITEM:
Deliberation on File No. 247-14-000373-HS, an application for a Comprehensive Plan amendment to
designate an approximately one-mile segment of the Pilot Butte Canal in the Suburban Residential 2 12
zone as a Goal 5 historic resource.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
On December 9, 2015, staff issued an administrative decision rejecting the filing of an application by
the Pilot Butte Canal Preservation Alliance 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 Y2
zone. The denial was based on a threshold issue regarding an interpretation of DCC 2.28.060(A)(2) and
the timing of the application filing as it relates to another pending application (TA-13-4) affecting the
subject properties. In addition, the decision addresses a second procedural issue relating to an
interpretation of the term "owner," finding Central Oregon Irrigation District is an owner of record of
the canal along with the underlying real property owners.
By Order 2014-038, dated December 15,2015, the Board of County Commissioenrs initiated review of
this application under DCC 22.28.050 through a de novo hearing. On January 28,2015, the Board
conducted a de novo public hearing. The record closed March 6, 2015.
A decision by the Board will provide interpretation of the timing criteria and likely obtain deference
from the Land Use Board of Appeals (LUBA) in the event the decision is appealed. The ownership
issue is also important to decide at this point because it may be dispositive of whether or not the County
can adopt the proposed plan amendment.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Conduct deliberation and give direction to Staff
ATTENDANCE: Matthew Martin and Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Matt Martin, CDD
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
{S41)388-6S7S FAX (S41)38S-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: March 19, 2015
TO: Board of County Commissioners
FROM: Matthew Martin, Associate Planner
RE: Deliberations on an administrative decision rejecting
(247-14-0000373) for a comprehensive plan amendm
of the Pilot Butte Canal as a Goal 5 historic resource.
the filing of an application
ent to designate a segment
BACKGROUND
On December 9,2014, staff issued an administrative decision rejecting the filing of an application
by the Pilot Butte Canal Preservation Alliance 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 Y:z zone. The rejection was based on a threshold issue regarding an interpretation of Deschutes
County Code (DCC) 2.28.060(A)(2) and the timing of the application filing as it relates to another
pending application (TA-13-4) affecting the subject properties. In addition, the decision addresses a
second procedural issue relating to an interpretation of the term "owner" finding Central Oregon
Irrigation District is an owner of record of the canal along with the underlying real property owners.
By Order 2014-038, dated December 15,2014, the Board of County Commissioners (Board)
initiated review of this application under DCC 22.28.050 through a de novo hearing. A decision by
the Board will provide interpretation of the timing criteria and likely obtain deference from the Land
Use Board of Appeals (LUBA) in the event the decision is appealed. The ownership issue is also
important to decide at this point because it may be dispositive of whether or not the County can
adopt the proposed plan amendment.
On January 28,2015, the Board conducted a de novo public hearing. The hearing was closed with
a deadline for submittal of written comments set for February 6, 2015. During this time period six
written comments were received (attached). The subsequent deadline for the applicant final
argument was, with extensions approved by the Board Orders 2015-013 and 2015-14, March 6,
2015. No final arguments were submitted.
KEY ISSUES
Issue #1: Timing of Application Submittal
Are There Other Pending Applications that Might be Affected by Historic Resource DeSignation?
The subject application was submitted on November 3,2014. DCC 2.28.060(A)(2) requires any
request for historical 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
Quality Services Perfonned with Pride
such historical designation. Text amendment file TA-13-4 was submitted on December 23,2013,
and proposes to allow the operation, maintenance, and piping of existing irrigation systems as an
outright use within the Suburban Residential (SR) 2Y:z zone.
Staff interpreted "any other application" to include TA-13-4 since the burden of proof indicates
Central Oregon Irrigation District (COlD) is proposing to pipe the same segment of the Pilot Butte
Canal which is being proposed as a Goal 5 historic resource. Therefore, application 247-14
0000373 cannot be filed until a decision is rendered for T A 13-4.
The applicant's argument is that designating the canal as a historic resource does not affect TA-13
4, a legislative matter, because the Board could still adopt the proposed text amendments. The
applicant also argues that a legislative matter is not what "any other application" was intended to
include given that the prior version of the code specifically referenced conditional use permits and
other places in the current DCC Chapter 2.28 indicate that legislative applications are not intended
to be included in that code provision. Therefore, the fact that TA-13-4 is pending should not prevent
the filing and review of the historic designation application.
Board Options
• "Move to adopt Staff's finding because TA-13-4 is affected by a proposed historic resource
deSignation therefore application 247-14-0000373 cannot be filed while TA-13-4 is pending."
• "Move that T A-14-3 is not affected by the proposed historic designation therefore application
247-14-0000373can be filed."
Issue #2: Property Ownership
Is COlD an Owner Eligible to Refuse Historic Resource DeSignation of this Segment of Canal?
The canal is located within an easement held by COlD. In land use decision, A-10-2 (NUV-09-1), a
Deschutes County Hearings Officer addressed a similar easement and landowner relationship and
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). Based on this
analysis, Staff found that COlD, as the easement holder for the Pilot Butte Canal, is an owner of
record along with the underlying real property owners, and can refuse historic resource designation
pursuant to OAR 660-023-0200(5).1
The applicant argues COlD is only the holder of an easement across real property owned by
others and the easement does not constitute ownership. Therefore, COlD's consent is not
needed for this segment of the canal to be designated as a historic resource.
Board Options
• "Move to adopt Staff's finding that COlD is an owner and can refuse a historic resource
designation on an approximately one-mile segment of the Pilot Butte Canal."
• "Move that COlD is not an owner of an approximately one-mile segment of the Pilot Butte
Canal."
Attachments: Six correspondences received since January 28,2015.
1 http://arcweb.sos.state.or.us/pages/rules/oars _ 600/oar _660/660_023.html