HomeMy WebLinkAboutDecision on Historic Designation Pilot Butte CanalDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 6, 2015
DATE: March 30, 2015
FROM: Matthew Martin CDD 541-330-4620
TITLE OF AGENDA ITEM:
Consideration of Approval of Signature for Document 2015-2015-217, FINDINGS AND DECISION in
File No. 247-14-000373-HS, Denial of Application for Historic Designation of Portion of Central
Oregon Irrigation District Pilot Butte Canal in the SR 2 Y2 Zone.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
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 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 Commissioners (Board) 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. On March 25, 2015, the
Board deliberated and upheld the administative decision by unanimously denying File No. 247-14
000373-HS.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Motion Approval of Signature for Document 2015-217
ATTENDANCE: Matthew Martin and Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Matt Martin, CDD
REVIEWED
g
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF
DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBER: 247 -14-000373-HS
APPLICANT: Pilot Butte Canal Preservation Alliance
20980 Country View Way
Bend, Oregon 97701
APPLICANT'S Bruce White
ATTORNEY: PO Box 1298
Bend, Oregon 97709
REQUEST: A Comprehensive Plan amendment to des ignate a segment of the
Pilot Butte Canal as a Goal 5 historic resource .
I. APPLICABLE STANDARDS AND CRITERIA:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
II. FINDINGS OF FACT:
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 17-12-15AO Lots 105,106,107,108,109,110,111 , 200,400,500 , 600,900
Tax Map 17-12-15BO Lots 1300,1400,1500
Tax Map 17-12-15CA Lots 200,300
Tax lV1ap 17-12-150B Lots 100 , 600,700, 800
B. ZONING: The subject properties are zoned Suburban Low Oensity Residential (SR 2~).
C. PROPOSAL: The applicant 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 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 issued an administrative decision. The
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247-14-0000373 -HS -Deschutes County Document No. 2015-217 DC 2 0 15 -2 1 7
sUbstantive merits of the request to designate the canal as a historic resource are not
addressed by this decision.
D. PROCEDURAL HISTORY: The application was submitted on November 3,2014. The
Planning Division issued an administrative decision for File No. 247-14-000373-HS on
December 9, 2014. The Board of County Commissioners ("BOCC") adopted Order No.
2014-038 on December 15,2014, initiating review of this land use decision. The BOCC
conducted a de novo hearing on January 28, 2015, to determine whether staff properly
interpreted county code provisions applicable to the land use decisions. The BOCC left
the record open until February 6, 2015, for all parties to submit written legal argument,
and until March 6, 2015, for the applicant's final rebuttal. Six letters were submitted
during the comment period. The BOCC rendered its oral decision on March 25, 2015,
affirming the Planning Division decision and providing additional clarification to the
findings.
III. CONCLUSIONS OF LAW:
Title 2, Deschutes County Administration Ordinance
Chapter 2.28. Historic Preservation and Historic Landmarks Commission
A. 2.28.020. Definitions.
"Properly Owner" means the owner of record or the contract purchaser and does
not include a person or organization that holds a security interest.
FINDING: An easement runs along the length of the 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. COlD argues that it does have an ownership interest in
the canal facilities in the easement and, therefore, has a right to refuse the historical designation
of the facility it owns per DCC 2.28.040(P). That code provision says in the second sentence,
'The site will not be approved for a historic designation unless the property owners at the time of
deSignation support the local designation of their property as a historic or cultural 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 Deschutes County Code (DCC)
22.08.010(A).1 The BOCC used this finding as a basis, further determining that COlD has an
ownership interest that ensures changes to the easement area does not interfere with or hider
uses that are authorized by the easement. This ownership interest is not a right to the
possession or with free reign over the land, but a right to custody and control of the easement to
use and manage the irrigation facility as set out for that easement.
The issue with this application also relates to the language in Oregon Administrative Rule (OAR)
660-023-0200(5) that says:
1 Dee 22.08.01 O(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." The definition of "Property Owner" in Dee 2.28.010 is identical.
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247-14-0000373-HS -Deschutes County Document No. 2015-217
"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 and BOCC is applicable to OAR 660-023-0200(5)
and the BOCC's interpretation of the definition of "property owner" in DCC 2.28.010 and
2.28.040(P) that allows the owner of the resource to refuse designation. Therefore, because
COlD is an easement holder, COlD is an owner for purposes of OAR 660-023-0200(5) and
DCC 2.28.040(P) 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 BOCC finds Deschutes
County cannot deSignate the canal as a historic resource at this time.
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.
That text amendment application was under review by Deschutes County at the time of the
BOCC's deliberations on this issue for this application. 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. The BOCC
interprets DCC 2.28.060(A)(2) and "any other application" to include legislative matters in general
and TA-13-4 specifically since the historic designation application directly relates to the segment of
canal located in the SR 2% zone in the same area where the text amendment would be applicable.
Therefore, the BOCC 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 final for TA 13-4.
IV. DECISION:
The BOCC affirms the Planning Division decision rejecting the application based on the
following:
1. COlD is an owner of interest in the easement containing the subject segment of the Pilot
Butte Canal and can refuse designation as a Goal 5 historic resource.
2. The request to designate a segment of the Pilot Butte Canal as a Goal 5 historic
resource cannot be filed until a decision is final for TA 13-4 because it is affected by the
proposed historic resource designation.
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247-14-0000373-HS -Deschutes County Document No. 2015-217
Dated this __of _____, 2015 BOARD OF COUNTY COMMISSIONERS
ANTHONY DeBONE, Chair
ALAN UNGER, Vice Chair
ATrEST:
Recording Secretary TAMMY BANEY, Commissioner
Mailed this __day of _____" 2015.
THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON
WHICH THIS DECISION IS FINAL.
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247-14-0000373-HS -Deschutes County Document No. 2015-217