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HomeMy WebLinkAboutHO Decision 14-238-PS 14-274-ATID, 247-14-000-238-PS, 247-14-00274-A Page 1 of 22 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247-14-000-238-PS, 247-14-00274-A APPLICANT: Tumalo Irrigation District 64697 Cook Avenue Bend, Oregon 97701 PROPERTY OWNER: KC Development Group, LLC 63560 Johnson Road Bend, Oregon 97701 APPLICANT’S AND PROPERTY OWNER’S ATTORNEY: Elizabeth A. Dickson Hurley Re Attorneys at Law PC 747 S.W. Mill View Way Bend, Oregon 97702 APPELLANTS: Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust 63382 Fawn Lane Bend, Oregon 97701 APPELLANTS’ ATTORNEY: Jennifer Bragar Garvey Schubert Barer 121 S.W. Morrison Street, 11 th Floor Portland, Oregon 97204 PROPOSAL: Appellants appeal a LUCS decision that the applicant’s transfer of a water storage right from Tumalo Reservoir to new reservoirs on the subject property is a use permitted outright in the RR-10 Zone. STAFF REVIEWER: Anthony Raguine, Senior Planner HEARING DATE: October 7, 2014 RECORD CLOSED: November 20, 2014 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.60, Rural Residential (RR-10) Zone * Section 18.60.020, Uses Permitted Outright * Section 18.60.030, Conditional Uses Permitted TID, 247-14-000-238-PS, 247-14-00274-A Page 2 of 22 3. Chapter 18.84, Landscape Management Combining Zone (LM) * Section 18.84.020, Application of Provisions * Section 18.84.030, Uses Permitted Outright * Section 18.84.040, Uses Permitted Conditionally 4. Chapter 18.88, Wildlife Area Combining Zone (WA) * Section 18.88.020, Application of Provisions * Section 18.88.030, Uses Permitted Outright * Section 18.88.040, Uses Permitted Conditionally B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions * Section 22.04.020, Definitions 2. Chapter 22.08, General Provisions * Section 22.08.010, Application Requirements * Section 22.08.020, Acceptance of Application * Section 22.08.035, False Statements on Application and Supporting Documents 3. Chapter 22.16, Development Action Procedures * Section 22.16.010, Review of Development Action Applications 4. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.010, Action on Land Use Action Applications * Section 22.20.055, Modification of Application 5. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances and Record Extensions 6. Chapter 22.32, Appeals * Section 22.32.050, Development Action Appeals C. Oregon Revised Statutes 1. Chapter 197, Comprehensive Land Use Planning * ORS 197.015, Definitions for Chapters 195, 196 and 197 II. FINDINGS OF FACT: A. Location: The subject property is identified as Tax Lots 824 and 828 on Deschutes County Assessor’s Map 17-11-13. It is the site of the former Klippel Surface Mine (SM Site 294) and is located east of Johnson Road, north of Fawn Lane, south of Klippel Road, and west of Tumalo Creek west of Bend. B. Zoning and Plan Designation: The subject property is zoned Rural Residential 10-Acre Minimum (RR-10). Portions of the property are located within the Landscape Management (LM) Combining Zones associated with Tumalo Creek and Johnson Road, and much of the property is within the Wildlife Area (WA) Combining Zone protecting the Tumalo Deer TID, 247-14-000-238-PS, 247-14-00274-A Page 3 of 22 Winter Range. The property is designated Rural Residential Exception Area on the Deschutes County comprehensive plan map. C. Site Description: The subject property is approximately 79 acres in size and consists of two adjacent tax lots. Tax Lot 824 contains 15.31 acres and Tax Lot 828 contains 63.45 acres. The property previously was the site of the Klippel Surface Mine (SM Site 294) which the record indicates consisted of multiple mining pits. The property is developed with two man-made, lined reservoirs filled with water. According to design drawings in the record, 1 the larger of the reservoirs, located on Tax Lots 824 and 828, (hereafter “southern reservoir”) has a capacity of approximately 68 acre feet of water. It has two man-made islands comprised of gravel and dirt, and at its north end has a small marina, boat ramp, dock, and pilings to support a boat house. 2 The smaller reservoir, located on Tax Lot 828, (hereafter “northern reservoir”) has a capacity of approximately 57 acre feet of water. Near the southern end of the southern reservoir is a headgate regulating the flow of water from Tumalo Irrigation District’s (TID’s) irrigation canal into the southern reservoir. The remainder of the subject property is undeveloped with graded level areas and undisturbed areas with scattered pine trees and native brush. Access to the subject property is from a gravel drive off Fawn Lane on the south and from a gravel drive off Klippel Road on the north. D. Surrounding Zoning and Land Uses: The subject property is adjacent to the Klippel Acres subdivision zoned RR-10 and WA and developed with rural residences. To the east is Tumalo Creek. To the west are Johnson Road and the Saddleback Subdivision zoned RR-10 and WA and developed with rural residences. E. Land Use/Development/Code Enforcement History: The subject property previously was the site of the Klippel Surface Mine (SM Site 294). The mine was fully mined and reclaimed and received reclamation approval from the Oregon Department of Mineral and Aggregate Resources (DOGAMI) on September 27, 2005.3 In May of 2007, Harris Kimble, the applicant’s predecessor in title, applied for a plan amendment, zone change and goal exception to redesignate SM Site 294, including the subject property, from Surface Mine and Agriculture to Rural Residential Exception Area, and to rezone the site from Surface Mining (SM) and Exclusive Farm Use-Tumalo/Redmond/Bend Subzone (EFU-TRB) to RR- 10. In a decision dated November 8. 2007, this Hearings Officer approved the plan amendment, zone change and goal exception. 4 In my decision, I described the property to be rezoned in part as follows: “The subject property is approximately 160 acres in size and very irregular in shape. A significant portion of the property has been disturbed due to previous surface mining and reclamation activities. The disturbed area consists of reclaimed extraction pits and berms created from overburden removed from the extraction sites. The undisturbed portions of the property have varying topography and a mixture of native vegetation including scattered stands of pine and juniper trees, as well as native brush and 1 See Hearing Exhibit 1. 2 These features are shown in the photographs included in the record in Exhibit 6 to appellants’ October 6, 2014 submission. 3 Aerial photographs of the reclaimed mining pits taken in 2011 and 2012 are included in the record as pages 2 and 3 of Exhibit 11 to appellants’ October 6, 2014 submission. 4 A copy of that decision is included in the record as Exhibit G to TID’s September 26, 2014 submission. TID, 247-14-000-238-PS, 247-14-00274-A Page 4 of 22 grasses, and pasture grasses seeded as part of the surface mine reclamation. Part of the eastern border of the subject property is located in the canyon of Tumalo Creek and includes steep slopes and rock outcrops. The record indicates the subject property has 58.91 acres of irrigation water rights administered by TID . . . . The record indicates some of these water rights currently are leased for in- stream use. There is a small irrigation ditch that traverses the subject property within an easement.” The subject property was purchased by KC Development Group LLC (hereafter “KCDG” or “property owner”) in October of 2013. The following chronology of events following that purchase is taken from Senior Planner Anthony Raguine’s October 28, 2014 Staff Memorandum included in the record. On October 8, 2013, staff from the county’s Community Development Department (CDD) met with representatives of KCDG and their then-attorney Tia Lewis to discuss development of the subject property with a residential cluster development. No development proposal was submitted. On March 18 and 19, 2014, CDD received three code violation complaints concerning the subject property alleging that rock crushing, construction of a lake with a boat dock and fuel tanks, and use of a private road were occurring without required land use approval. These complaints were investigated by Deschutes County Code Enforcement Technician Tim Grundeman who concluded that no code violations had occurred. KCDG applied for a temporary use permit to allow rock crushing on the subject property in association with private road maintenance and landscaping, and on April 2, 2014, CDD issued a temporary use permit for such use (TU-14-8). 5 On June 4, 2014, CDD received another code violation complaint related to similar “unpermitted activities” on the subject property. The record indicates that as of the date the record in this matter closed that code enforcement case was still pending. On June 13, 2014, CDD staff, Deschutes County Assistant Legal Counsel John Laherty, representatives of TID, TID’s attorney William Hopp, and TID’s and KCDG’s attorney Elizabeth Dickson met to discuss the need and process for obtaining a Land Use Compatibility Statement (LUCS) for the transfer in place of use of a water storage right from Tumalo Reservoir to the subject property. Ms. Dickson advised CDD staff that an application for a residential cluster development on the subject property would be submitted in the future, potentially within six months. On or about June 16, 2014, CDD Director Nick Lelack determined to treat any request for a LUCS submitted by TID as a “land use action” and to process it according to the county’s procedures therefor. On June 17, 2014, KCDG submitted applications for a building permit (247-14-003315- STR) and an electrical permit (247-14-003315-ELEC-01) for a boat house and boat slip on the southern reservoir. CDD staff advised KCDG that the Planning Division could not sign off on the building or electrical permit while any LUCS request was pending. On June 19, 2014, CDD received a letter from Ken Rieck, TID Manager, explaining the need for the transfer in place of use of its water storage right and TID’s belief that the proposed transfer is a use permitted outright in the RR-10 Zone. 5 A copy of that permit is included in the record as Exhibit P to TID’s September 29, 2014 response to appellants’ notice of appeal. TID, 247-14-000-238-PS, 247-14-00274-A Page 5 of 22 On July 25, 2014, John Laherty sent a letter to Elizabeth Dickson, included in the record as Exhibit E to Mr. Raguine’s Staff Memorandum, stating in relevant part: “. . . [T] o the extent KC Development Group LLC has expended, or intends to expend, resources to create reservoirs, install footings for a dock or boathouse, or otherwise perform work on the subject property that does not require County approval, it does so at its own risk and without any guarantee that future County permits or approvals – including, without limitation, land use approval for construction of a cluster development or recreational lake, or building division approval for construction of a boat house or dock – will be granted. The County has encouraged KC Development Group LLC and its principals to apply for necessary land use approvals first – before devoting significant resources to improving the property – so as to avoid the risk of commencing projects it will ultimately be unable to complete. Your client has chosen to disregard this advice. Please inform your client (again) that Deschutes County will review any future land-use or building permit application on its own merits, and the County’s decision on such application will be governed solely by consideration of appropriate criteria. Your client’s decision to expend resources on improvements prior to obtaining necessary County approval for his intended development project will not be given undue weight or consideration in this process.” On July 25, 2014, CDD staff and county legal counsel conducted a site visit to the subject property at the request of neighboring property owners. By a letter dated August 6, 2014, Deschutes County Building Official Dave Peterson issued a stop work order to KCDG for work performed on the boat house foundation on the southern reservoir without land use approval or a building permit. The previously submitted building and electrical permit applications were withdrawn by KCDG. On September 16, 2014, CDD received a code violation complaint for construction of a new road on the subject property. The complaint was investigated by Tim Grundeman who found no code violation. On September 22, 2014, CDD received a code violation complaint regarding recreational activities – i.e., waterskiing – occurring on the southern reservoir. On October 10, 2014, CDD issued a Notice of Violation to KCDG for operating a recreation- oriented facility requiring large acreage without land use approval. F. Procedural History: As noted above, on or about June 16, 2014, CDD Director Nick Lelack determined to treat any request by TID for a LUCS as a “land use action” and to process it according to the county’s procedures therefor. On August 4, 2014, TID submitted its LUCS request on a form provided by the Water Resources Department (WRD). The form stated TID intended to submit to WRD an application for a “water right transfer – storage,” and described the intended use of water as “storage.” TID further described its intended use of water on the form in part as follows: “This is an intra-district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek Water. TID to TID (Storage water). The transfer of this TID, 247-14-000-238-PS, 247-14-00274-A Page 6 of 22 storage water is necessary for the operation and maintenance of our irrigation system, and allowed as an outright use in the RR-10 zone. The current site was built in the 1920’s and no longer serves TID’s needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergency Services responders, and provide increased efficiency in the operations and maintenance of the TID system overall.” Attached to the LUCS form was a two-page letter dated June 19, 2014 from Ken Rieck, TID Manager, to Nick Lelack describing the reason for the LUCS request. The Planning Division accepted the LUCS request as complete on August 6, 2014. Therefore, the 150-day period for issuance of a final local land use decision under ORS 215.427 expires on January 2, 2015. On August 13, 2014, Mr. Lelack completed the WRD form by checking the box stating: “Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan. Cite applicable ordinance section(s):” Mr. Lelack attached to the LUCS form a three-page “Notice of Decision” dated August 13, 2014. The decision cited Section 18.60.020(I) listing “operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District,” and included the following relevant findings: “According to information provided by Tumalo Irrigation District, TID ‘has decided to move its Regulation Pond storage to [the Klippel Mining Pit] a site upstream from our current in-district storage at Tumalo Reservoir.’ TID states that the existing Reservoir ‘was designed and built in the 1920’s and does not adequately serve TID’s needs,’ and that the new site ‘will be a significant upgrade to operations and maintenance.’ The Planning Director finds that transferring in-district storage from the Tumalo Reservoir upstream to the Klippel Acres Mining Pit in order to improve the operations of TID’s existing irrigation system is a use permitted outright in this zone.” Notice of the LUCS decision was provided to the owners of all property located within 250 feet of the subject property. On August 22, 2014, appellants Thomas and Dorbina Bishop filed their appeal of the LUCS. The record indicates appellants own and reside on property adjacent to the subject property. On October 3, 2014 the Hearings Officer conducted a site visit to the subject property and vicinity, accompanied by Anthony Raguine. On October 7, 2014, the Hearings Officer held a public hearing on the appeal. At the hearing, the Hearings Officer disclosed her observations and impressions from the site visit, received testimony and evidence, left the written evidentiary record open through November 13, 2014, and allowed the applicant through November 20, 2014 to submit final argument pursuant to ORS 197.763. On November 20, 2014, Ms. Dickson electronically submitted TID’s final argument, consisting of a 40-page letter, and 24 exhibits (Exhibits A through X) totaling 180 pages, through several sequential electronic mail messages with attachments. Copies of these electronic mail messages and electronic mail logs included in the record show the last e- mail message with attachments was sent at 4:58 p.m. on November 20 th but was not TID, 247-14-000-238-PS, 247-14-00274-A Page 7 of 22 received by the county until 5:01 p.m. By an e-mail message dated November 21, 2014, Anthony Raguine advised the Hearings Officer of the late submission, which included a portion of Exhibit W and all of Exhibit X to the applicant’s final argument. By a letter dated November 26, 2014, appellants’ attorney Jennifer Bragar objected to portions of TID’s final argument as consisting of “new evidence” prohibited from being submitted with final argument under ORS 197.763(6)(e). Ms. Bragar identified this “new evidence” as Exhibits E, I, J, M-Q and T-V to the applicant’s final argument. Ms. Bragar requested that the Hearings Officer either strike these exhibits from the record or reopen the record to provide additional time for appellants to respond to them. On December 1, 2014, Ms. Dickson submitted a letter responding to Ms. Bragar’s objections and arguing the Hearings Officer should neither strike the exhibits identified in Ms. Bragar’s letter nor reopen the record because these exhibits do not constitute “new evidence.” By an order dated December 4, 2014, the Hearings Officer: (a) declined to reopen and extend the record; (b) found Exhibits E, T, U, V and X to the applicant’s final argument, and the portion of Exhibit W to the applicant’s final argument described as “Recreation Usage in Code-Comp Plan 11.18.14,” could not be considered; and (c) found Exhibits I and J to the applicant’s final argument, and the definitions in Exhibits M, N, O, P and Q to the applicant’s final argument, could be considered by the Hearings Officer. Because the applicant did not agree to extend the written record from October 7 through November 20, 2014, under Section 22.24.140 of the county’s Development Procedures Ordinance the 150-day period was not extended and expires on January 2, 2015. As of the date of this decision there remain 18 days in the 150-day period. G. Proposal: Appellants appeal the LUCS decision that found TID’s transfer in place of use of its water storage right from Tumalo Reservoir to the subject property is a use permitted outright in the RR-10 Zone and on the subject property. H. Public Agency Comments: The record indicates the Planning Division sent notice of the applicant’s proposal to the Oregon Department of Fish and Wildlife (ODFW) which submitted a responsive letter on October 31, 2014. I. Public Notice and Comments: The Planning Division mailed individual written notice of the LUCS decision and the public hearing on the appeal to the owners of record of all property located within 250 feet of the subject property. The record indicates these notices were mailed to the owners of 33 tax lots. In addition, notice of the public hearing was published in the Bend “Bulletin” newspaper and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received thirteen letters from the public in response to these notices. In addition, eight members of the public testified at the public hearing. J. Lot of Record: The record indicates the county recognizes the two tax lots comprising the subject property as two separate legal lots of record. III. CONCLUSIONS OF LAW: A. Preliminary Issues. 1. Applicant. TID, 247-14-000-238-PS, 247-14-00274-A Page 8 of 22 FINDINGS: TID requested a LUCS for property owned by KCDG. The county did not require KCDG to sign the request or give written authorization for TID to submit it. Although Section 22.08.010(B) of the procedures ordinance states applications for development actions or land use actions shall be submitted by the property owner or person who has written authorization from the property owner, Section 22.08.010(C) exempts from the owner authorization requirement “applications submitted by or on behalf of a public entity or public utility having the power of eminent domain with respect to the property subject to the application.” The Hearings Officer finds irrigation districts are public entities with the power of eminent domain, including the power to condemn for reservoirs and the storage of water in reservoirs, under ORS 545.239. 6 The record indicates the subject property is located within TID’s boundaries. Therefore, I find the county did not err in accepting TID’s LUCS request without written authorization from KCDG. 2. Notice. FINDINGS: At the public hearing, William Kuhn questioned why the county did not notify the Bureau of Land Management (BLM) of TID’s LUCS request. Anthony Raguine responded that notice to the BLM was not provided because according to the county’s current data the closest BLM land is located approximately 2.4 miles to the northwest, and for that reason planning staff concluded the proposed transfer of water right would not affect BLM lands or the management thereof. The Hearings Officer concurs with staff’s analysis and finds the county did not err in failing to provide notice of the LUCS request or decision to the BLM. 3. Modification of Application. FINDINGS: TID’s LUCS request states its proposed use is the transfer in place of use of a storage water right for 108 acre feet of water from Tumalo Reservoir to the “Klippel Mining Pit.” As Exhibit K to its October 28, 2014 evidentiary submittal, TID included a copy of a contract between TID and KCDG dated October 14, 2014 (“new contract”). The new contract states it replaces an earlier contract dated June 10, 2014 (“old contract”) and included in the record as Exhibit J to TID’s October 28, 2014 submittal. The new contract states TID intends to store 125 acre feet of water in the Klippel Mining Pit. In their November 23, 2014 memorandum, appellants argue the new contract constitutes a “modification” of the LUCS request and therefore the Hearings Officer cannot consider the new contract unless and until TID submits a modification application, citing Section 22.20.055 of the procedures ordinance. Section 22.04.020 defines “modification of application” as: . . . the applicant’s submittal of new information after an application has been deemed complete and prior to the close of the record on a pending application that would modify a development proposal by changing one or more of the following previously described components: proposed uses, 6 That statute provides in pertinent part: (1) The board of directors [of the irrigation district] * * * has the right to acquire, by lease, purchase, condemnation or other legal means, all lands, water, water rights, rights of way, easements and other property, including canals and works and the whole of irrigation systems or projects constructed or being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and improvement of any canals and works proposed to be constructed by the board. The board also has the right to so acquire lands, and all necessary appurtenances, for reservoirs, and the right to store water in constructed reservoirs, for the storage of needful waters, or for any other purpose reasonably necessary for the purposes of the district. TID, 247-14-000-238-PS, 247-14-00274-A Page 9 of 22 operating characteristics, intensity, scale, site layout (including but not limited to changes in proposed setbacks, access points, building design, size or orientation, parking, traffic or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the proposal or that would require the findings of fact to be changed. It does not mean an applicant’s submission of new evidence that merely clarifies or supports the pending application. The Hearings Officer agrees with appellants that the water quantity recitals in the new contract constitute new information that changes the scale of the proposed use – transferring 125 acre feet of storage water right rather than 108 acre feet. However, I find this increase in storage water quantity does not require the application of new criteria because the scale of the proposed use is not determinative of its nature or whether and under what circumstances such storage is allowed on the subject property. For the same reason, I find the quantity recitals in the new contract do not require the findings of fact to be changed because, as discussed in the findings below, the amount of water to be stored in the new reservoirs on the subject property is not material to the analysis of whether the county’s LUCS decision was correct. Therefore, I find the new contract does not constitute a modification of the LUCS request and I can consider it. 4. Mootness FINDINGS: TID’s LUCS August 2014 LUCS request was for a temporary storage water transfer permit. In appellants’ October 27, 2014 submission, Ms. Bragar states the temporary permit expired at the end of the irrigation season in mid-October because under WRD’s statutes – i.e., ORS 540.570(1) and (7) -- “a temporary transfer order is for one season only and the water use automatically reverts to the terms and conditions of the original certificate at the end of the season.” Nevertheless, appellants argue the Hearings Officer should render a final decision on their appeal not consider it moot because the issues presented in their appeal are “capable of repetition yet evading review,” citing LUBA’s published order in Wetherell v. Douglas County , 66 Or LUBA 454 (2012). In that case, the county issued a temporary use permit for an outdoor music festival on EFU-zoned land. The county argued that an appeal of that permit was moot because the festival had taken place by the time LUBA heard the appeal. LUBA found there was no doubt the property owner would seek another temporary festival permit in the future, and therefore the issues presented by the county’s issuance of the permit would be repeated. However, LUBA found those issues could evade its review because the event would take place and the permit would expire before the county and LUBA appeals could occur.7 The circumstances in this case are somewhat different from those presented in Wetherell because the record indicates TID has submitted an application to WRD for a permanent transfer of its stored water from Tumalo Reservoir to the new reservoirs on the subject property. However, it is not clear from the record whether TID has been, or will be, required by WRD to submit another LUCS request for the permanent water right transfer. Nevertheless, the Hearings Officer agrees with appellants that the same principles enunciated in Wetherell should apply here. I find there is no doubt TID intends to use the new reservoirs to store irrigation water on a long-term basis, and if necessary TID will request that WRD issue another temporary water right transfer for next year’s irrigation season. The record indicates the irrigation season lasts approximately six months. Therefore I find it could end before a local and LUBA appeal of a LUCS could be completed. For these reasons, I find appellants’ appeal is not moot. B. Nature of LUCS Decision and Appeal. 7 LUBA noted counties have 150 days to issue final decisions, and the LUBA appeal process also could take months. TID, 247-14-000-238-PS, 247-14-00274-A Page 10 of 22 FINDINGS: TID applied for a LUCS for the transfer in place of use of a storage water right from Tumalo Reservoir to the Klippel Mining Pit, claiming its proposal constitutes an outright permitted use in the RR-10 Zone under Section 18.60.020(I) as the “operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District.” The county’s LUCS decision found the proposed use is permitted without review under this section. As noted in the Findings of Fact above, CDD Director Nick Lelack determined to treat TID’s LUCS request as a “land use action” rather than as a “development action.” 1. LUCS -- Development Action vs. Land Use Action. FINDINGS: Section 22.040.020 defines “development action,” “land use action,” and “land use permit,” respectively, as follows: “Development action” means the review of any permit, authorization or determination that the Deschutes County Community Development Department is requested to issue, give or make that either: A. Involves the application of a County zoning ordinance or the County subdivision and partition ordinance and is not a land use action. B. Involves the application of standards other than those referred to in DCC 220.40.030(A), such as the sign ordinance. “Land use action” includes any consideration for approval of a quasi-judicial plan amendment or zone change, any consideration for approval of a land use permit, and any consideration of a request for a declaratory ruling (including resolution of any procedural questions raised in any of these actions). “Land use permit” includes any approval of a proposed development of land under the standards in the County zoning ordinances or subdivision and partition ordinances involving the exercise of significant discretion in applying those standards. (Emphasis added.) In Curl v. Deschutes County , __ Or LUBA __ (LUBA No. 2013-086/095, March 19, 2014), LUBA discussed whether a LUCS decision is a “development action” or a “land use action” for purposes of determining LUBA’s jurisdiction. In that case, the petitioners appealed the county’s LUCS decision finding a proposal by the Central Oregon Irrigation District (COID) to pipe one of its existing open irrigation canals was a use permitted outright in the applicable zones. Petitioners also appealed the county’s decision rejecting their request for a local appeal of the LUCS. The county argued petitioners had no right to a local appeal because the LUCS decision was a “development action.” LUBA agreed with the county based on the following findings: “Petitioners contend that the April 25, 2013 LUCS decision is properly characterized as a ‘land use action’ instead of a ‘development action,’ because determining whether the proposed piping complies with the county’s land use regulations constituted the ‘approval of the proposed development of land’ under the county’s land use regulations, and required the exercise of significant discretion. Consistent with that position, petitioners argue under the first and second assignments of error in LUBA No. 2013-086 that the LUCS decision constitutes a ‘permit’ as defined at ORS 215.402(4), and therefore the county erred in failing to provide notice and a TID, 247-14-000-238-PS, 247-14-00274-A Page 11 of 22 hearing, and to follow the other procedural requirements in ORS 215.416 for making a ‘permit' decision. We disagree with petitioners that the April 25, 2013 LUCS decision is a ‘land use permit’ or, for that matter, a ‘permit’ as defined at ORS 215.402(4). As with many LUCS decisions, the initial question posed to the county is whether a proposed use -- piping of an irrigation canal -- is allowable or not under the county’s comprehensive plan and land use regulations. As presented, that question basically requires the county to categorize the proposed use under its land use regulations, and determine whether the proposed use is not allowed in the applicable zone, or whether it is allowed without review, allowed with review under certain standards or upon obtaining certain county permits (e.g. site or design review), allowed as a conditional use, allowed as a nonconforming use, etc. In short, the initial question posed and answered by a LUCS is typically a determination of the use category that best fits the proposed use. That initial inquiry will determine whether county approval of the proposed use is required, and if so what standards will apply or which permits will be required. If that is all the LUCS decision determines, then it is very similar in function to a use or zoning classification decision described in ORS 215.402(4)(b). A LUCS decision that is limited to a categorization of the proposed use is not a ‘land use action’ as defined at DCC 22.32.050 (or a ‘permit’ as defined at ORS 215.402(4)) for the simple reason that the LUCS decision does not approve the proposed development of land, no matter ho w much interpretation or discretion may go into that use categorization. Where the lines between a LUCS decision and a statutory ‘permit’ can blur is where in response to a LUCS request the county goes further and actually applies the approval standards to conduct any required reviews, and in the same decision issues the required permits or approvals for the proposed use. In that circumstance, the county has ‘approved’ the proposed development of land and, if the applicable land use standards require the exercise of discretion, the county’s resulting decision is a ‘permit’ as defined at ORS 215.402(4) or, in the county’s parlance, a ‘land use permit.’ In that circumstance, the county must apply the procedures applicable to ORS 215.402(4) permits, set out in ORS 215.416, including the right of local appeal for permit decisions made without a hearing at ORS 215.416(11)(a)(A). The county’s final decision in that circumstance is a land use decision and does not fall within any of the exclusions at ORS 197.015(10)(b)(H). See Campbell v. Columbia County, __ 18 Or LUBA __ (LUBA No. 2012-060, January 28, 2013), slip op 7-9 (a LUCS decision that also verifies or approves an alteration of a nonconforming use is a permit decision and not subject to the exclusions at ORS 197.015(10)(b)(H)). ORS 215.402(4)(b) excludes from the definition of ‘permit’ a ‘decision which determines the appropriate zoning classification for a particular use by applying criteria or performance standards defining the uses permitted within the zone, and the determination applies only to land within an urban growth boundary[.]’ In the present case, the county’s decision does not approve the proposed development of land, but simply determines that the proposed use is allowed without review under the county’s code. Putting aside for the moment the correctness of that conclusion, on its face the decision clearly is limited to a LUCS decision, and does not purport to apply any land use regulations to approve the proposed use. TID, 247-14-000-238-PS, 247-14-00274-A Page 12 of 22 Petitioners argue nonetheless that the conclusion that the proposed use is ‘allowed without review’ is tantamount to ‘approval’ of that use for purposes of ORS 215.402(4), because the applicant may immediately proceed to develop the property with the proposed use. However, the conclusion that the use is ‘allowed without review’ means essentially that no county approval is necessary. A determination that no county approval is necessary for a propose d use does not ‘approve’ the use for purposes of ORS 215.402(4).” (Underscored emphasis added.) The Hearings Officer finds the LUCS decision at issue in this case is the same type of decision as the one at issue in Curl – i.e., it simply categorizes TID’s proposal as a use allowed without review under the county’s code and does not approve that use. Therefore, I find the LUCS decision is a development action and not a land use action. 2. Local Appeal. Mr. Lelack elected to treat TID’s LUCS request as a “land use action” pursuant to Section 22.16.010, which provides: A. A development action application may be handled administratively by the Planning Director without public notice or hearing. B. The Planning Director has the discretion to determine that for the purposes of DCC Title 22 a development action application should be treated as if it were a land use action application. (Underscored emphasis added.) As a result of this election, notice of the LUCS was provided to the owners of property located within 250 feet of the subject property, and the parties were afforded a local appeal before the Hearings Officer. TID argues appellants’ appeal should be dismissed because the LUCS decision was a “development action,” and as such appellants had no standing to appeal. 8 I disagree. In Kuhn v. Deschutes County , 58 Or LUBA 483 (2009), LUBA held that although the Hearings Officer is not bound by the CDD Director’s determination to treat a LUCS is a “land use action” rather than a “development action,” nevertheless where the county provided notice and a the opportunity for a local appeal under the process for “land use actions,” the appellants were entitled to take advantage of that appeal. I find the circumstances presented here are essentially the same as those in Kuhn , and therefore, there is no merit in TID’s argument that appellants’ appeal should be dismissed. 9 C. Categorization of Proposed Use. FINDINGS: In Curl , LUBA held the question of whether the county correctly categorized the use at issue in a LUCS is different from the question of whether the LUCS is a development action. In that case, COID’s LUCS request was “to pipe 4,500 feet of its Pilot Butte Canal” to “eliminate water loss through the canal and place 7.95 cfs [cubic feet per second] of water permanently instream in the Deschutes and Crooked Rivers.” 10 However, LUBA noted the proposed piping project was referred to in the record as “Phase 1” of a piping project for COID’s Juniper Ridge hydroelectric facility located downstream. LUBA found there was no dispute about the proposed piping project’s 8 Under Section 22.32.050 only the applicant for a development action permit may appeal. 9 Because Section 22.16.010(B) authorizes the Planning Director to treat a development action as a land use action “for the purposes of DCC Title 22,” the Hearings Officer expresses no opinion on whether that determination has any effect on LUBA’s jurisdiction under ORS 197.825 to hear an appeal to LUBA of the LUCS decision or my decision. 10 A copy of COID’s LUCS request is in the record as Exhibit BB to TID’s October 28, 2014 submission. TID, 247-14-000-238-PS, 247-14-00274-A Page 13 of 22 association with the hydroelectric facility, and held the county mischaracterized the nature of the proposed use for purposes of the LUCS decision, and that because hydroelectric facilities are a conditional use in one of the affected zones, the county also erred in categorizing the proposed piping project as one allowed outright. Appellants and other opponents argue TID’s LUCS request and the county’s LUCS decision in this case also mischaracterized the proposed use as one allowed without review in the RR-10 Zone. For the reasons set forth in the findings below, the Hearings Officer agrees. a. LUCS Form and Decision. TID’s LUCS request was presented to the county through submission of a four-page “Land Use Information Form” from the Oregon Water Resources Department (WRD). At the top of the form’s front page, WRD gives notice to an applicant that the form is not required if: “1) Water is to be diverted, conveyed, and/or used only on federal lands; OR 2) The application is for a water right transfer, allocation of conserved water, exchange, permit amendment, or ground water registration modification, and all of the following apply: a) The existing and proposed water use is located entirely within lands zoned for exclusive farm-use or within an irrigation district; b) The application involves a change in place of use only; c) The change does not involve the placement or modification of structures, including but not limited to water diversion, impoundment, distribution facilities, water wells and well houses; and d) The application involves irrigation water uses only.” (Bold and bold underscored emphasis in original; underscored emphasis added.) The WRD form was accompanied by a letter dated July 18, 2014, from Susan Douthit of WRD to Ken Rieck, TID Manager, included in the record as Exhibit U to appellants’ appeal. The letter states in relevant part: “This temporary transfer proposes to move a portion of the authorized storage water from Upper Tumalo Reservoir (evidenced by Certificate 76684) into new storage facilities within T17S R11E, Section 13, W.M. Because this change, unlike typical temporary district water right transfers, involves structural changes and/or the creation of new impoundment facilities, a completed Land Use Information Form is required. (See Oregon Administrative Rules 690-005- 0025).” (Underscored emphasis added.) In other words, WRD concluded TID’s water right transfer request was not exempt from the LUCS requirement because it involves “structural changes and/or the creation of new impoundment facilities” – i.e., new reservoirs. On the portion of the WRD form completed by TID, the “proposed use” is described as “Water Right Transfer – Storage.” The source of water is identified as “Reservoir/Pond” and the intended TID, 247-14-000-238-PS, 247-14-00274-A Page 14 of 22 use of the water is identified as “Storage.” TID described the proposed use in more detail on the form as follows: “This is an intra-district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek water. TID to TID (Storage water). The transfer of this storage water is necessary for the operations and maintenance of our irrigation system, and allowed as an outright use in the RR-10 zone. The current site was built in the 1920’s and no longer serves TID’s needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergency Service responders, and provide increased efficiency in the operations and maintenance of the TID system overall.” WRD’s form asks the county to check one of two boxes categorizing the proposed use as either: • land uses to be served by the proposed water uses (including proposed construction) that are allowed outright or are not regulated by the comprehensive plan; or • land uses to be served by the proposed water uses (including proposed construction) that involve discretionary land-use approvals. If the local government checks the second box, the form asks whether any required land use approvals have been obtained or are pending. CDD Director Nick Lelack checked the first box – allowed outright or not regulated -- and referred to the Notice of Decision attached to the form. The LUCS decision describes the request as a “Land Use Compatibility Statement Permit Sign-Off (PS) to transfer in place 108 acre feet of Tumalo Creek water from Tumalo Reservoir to Klippel Acres Mining Pit.” The decision describes TID’s proposal in more detail as follows: “Tumalo Irrigation District (TID) proposes to move its Regulation Pond storage from its current in-district storage at Tumalo Reservoir to Klippel Acres Mining Pit. The new site will be upstream and located in a lined storage facility to prevent leakage and make water available to its entire distribution network.” Based on TID’s description of the proposed use, Mr. Lelack concluded it was a used allowed outright on the subject property as the “operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District” under Section 18.60.020(I) of the RR-10 Zone. b. Additional Uses. New Reservoirs Neither TID’s information on the WRD form nor the county’s LUCS decision identified creation and use of new reservoirs as part of TID’s proposed place of use transfer of storage water, although TID acknowledged a new reservoir is essential to its proposal. The record indicates the county was aware of the new reservoirs at the time TID’s LUCS request was submitted, having received code violation complaints about them in March and June of 2014. Under these circumstances, the Hearings Officer finds omission of any reference to new reservoirs was material to the LUCS request and decision. That is because, as discussed below, like the hydroelectric facility at issue in TID, 247-14-000-238-PS, 247-14-00274-A Page 15 of 22 Curl, the omitted components of TID’s proposal -- new reservoirs and the surface mining activity required to create them – are conditional uses in the RR-10 Zone under Title 18. 11 “Reservoir and water impoundment” is a use permitted only conditionally, and only in three zones: Forest Use (F-1) Zone, Section 18.36.030(N); Forest Use (F-2) Zone, Section 18.04.030(O); and Sunriver Unincorporated Community Forest District, Section 18.108.180(B)(3). Inclusion of this use in the county’s forest zones implements the Department of Land Conservation and Development’s (DLCD’s) administrative rules. Specifically, OAR 660-006-0025(4)(m) states counties may authorize “reservoir and water impoundments” in the forest zones. The term “reservoir” is not defined in Title 18. Its ordinary definition is “a place where water is collected and stored for use.” Webster’s New World Dictionary and Thesaurus, Second Edition . “Impoundment” is defined in Section 18.04.030 as “any man-made structure which is or may be used to impound water.” That section also defines “structure” as “something constructed or built having a fixed base on, or fixed connection to, the ground or another structure” (emphasis added). TID argues the new reservoirs on the subject property are not “structures” because they are not “built” or “constructed.” 12 The Hearings Officer disagrees. The ordinary definitions of “build” and “construct,” respectively, are: “Build: 1) to make by putting together materials, parts, etc., 2) to establish, base; 3) to create or develop. Construct: to build, devise, etc.” Webster’s New World Dictionary and Thesaurus, Second Edition. The Hearings Officer finds the evidence in the record clearly shows the new reservoirs on the subject property were “built” or “constructed” within the reclaimed mining pits on the Klippel mining site. As discussed in the Findings of Fact above, at the time the subject property was rezoned from SM to RR-10, the Klippel site had been reclaimed by grading and re-contouring the mining pits and reseeding them with pasture grasses to prevent erosion. The numerous aerial and ground-level photographs of the subject property in the record, confirmed by my site visit observations, show the new reservoirs bear little if any resemblance to the reclaimed and reseeded mining pits that existed at the time of rezoning. The pits have been converted to reservoirs by excavating and grading the areas for holding water, building islands at each end of the southern reservoir, lining both reservoirs with an impermeable fabric, and affixing that fabric to the ground with an overlay of sand and gravel. For these reasons, I find the reservoirs clearly fall within the definition of “structure.” 11 Appellants argue the Hearings Officer should “void” the LUCS decision because TID made a “false statement” by not disclosing the true uses for the new reservoirs, citing Section 22.08.035 which states: If the applicant or the applicant’s representative or apparent representative makes a misstatement of fact on the application regarding property ownership, authority to submit the application, acreage, or any other fact material to the acceptance or approval of the application, and such misstatement is relied upon by the Planning Director or Hearings Body in making a decision whether to accept or approve the application, the Planning Director may upon notice to the applicant and subject to an applicant’s right to a hearing declare the application void. The Hearings Officer finds this provision authorizes the Planning Director and not the Hearings Officer to void an application. It does not authorize me to deny the LUCS decision on the basis of an alleged material misstatement on the application. Therefore, I find no merit to this argument. 12 TID makes this argument in the context of application of the site plan requirement in the Landscape Management (LM) Zone under Section 18.84.050 for “structures.” TID, 247-14-000-238-PS, 247-14-00274-A Page 16 of 22 Therefore, I find the new reservoirs on the subject property constitute “reservoirs and water impoundments.” Under ordinary rules of statutory construction, where a land use is expressly listed as permitted in some zones but not in others, the presumed intent of the drafters is to prohibit that use in zones where it is not listed. However, the Hearings Officer finds that rather than relying on that presumption, the proper inquiry is to determine whether reading the zoning ordinance language to exclude reservoirs and water impoundments in zones other than the forest zones is consistent with its text, context and legislative history. State v. Gaines , 346 Or 160, 206 P3d 1042 (2009); See , also, Devlin Oil Co., Inc. v. Morrow County, 62 Or LUBA 247 (2010). I find the relevant context includes other provisions in Title 18 that address or regulate reservoirs, water impoundments and water storage. The Hearings Officer has searched Title 18 and found a number of provisions that address water storage, reservoirs and impoundments. Section 18.80.72 regulates water impoundments in the Airport Safety (AS) Zone. Due to the tendency of water impoundments to attract birds and create hazards for aircraft, this section prohibits “new or expanded water impoundments one-quarter acre in size or larger” within 5,000 feet of the end of a runway, on airport land, and within certain airport approach surfaces. I find that because this provision is so specific to airports and their unique circumstances, it is of little value in establishing context for how the “reservoir and water impoundment” use is to be interpreted. Section 18.52.050, listing conditional uses in the SM Zone, allows “water storage facilities, owned or operated by a public, private or cooperative water company for the distribution of water.” Title 18 does not define “water company.” However, the Hearings Officer finds that because “irrigation district” is a term of art separately referenced in Title 18, it is not reasonable to interpret “water company” to include irrigation districts. Therefore, I find this provision also is not helpful in establishing a context for the “reservoir and water impoundments” use. Several zones, including the RR-10 Zone, allow as a conditional use : Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material” (emphasis added). 13 In addition, Section 18.128.280 establishes specific conditional use approval criteria for “Surface Mining of Non-Goal 5 Mineral and Aggregate Resources.” Paragraph (C) of that section lists standards for surface mining activity that involves “the maintenance or creation of man-made lakes, water impoundments or ponds.” The record includes the legislative history of both of these reservoir-related “surface mining” provisions. They were added to the text of Title 18 in 2001 at the request of the former Squaw 13 Those zones are: MUA-10, Section 18.32.030(GG); O,S & C, Section 18.48.030(H); RR-10, Section 18.60.030(W); Terrebonne Rural Community, Section 18.66.020(B)(15); Terrebonne R-5, Section 18.66.030(B)(13); Terrebonne Commercial, Section 18.66.040(C)(15); Terrebonne Rural Commercial, Section 18.66.050(C)(10); Tumalo Residential, Section 18.67.020B(B)(13); Tumalo R-5, Section 18.67.030(B)(10); Tumalo Commercial, Section 18.67.0040(C)(13); Tumalo R&D, Section 18.67.050(B)(8); LM (if permitted conditionally in underlying zone), WA, (if permitted conditionally in the underlying zone), SBMH (if permitted conditionally in underlying zone); CH (if permitted conditionally in underlying zone); and FP, Section 18.96.040(N). TID, 247-14-000-238-PS, 247-14-00274-A Page 17 of 22 Creek Irrigation District through Ordinance No. 2001-039. 14 That ordinance also added to a number of zones the outright permitted use of “operation, maintenance, and piping of existing irrigation systems, operated by an Irrigation District” – the provision the county found authorized TID’s proposed storage water place of use transfer. 15 The staff report for Ordinance No. 2001-039 explains the reason for the text amendment in relevant part as follows: “The applicant, Squaw Creek Irrigation District, initiated a text amendment to the Deschutes County Zoning Ordinance and Comprehensive Plan that would allow Irrigation Districts to operate, maintain, and pipe existing irrigation systems without a land use permit and to conduct surface mining activities, including the off-site use and sale of excavated material, as a Conditional Use. . . [T] he applicant is requesting an amendment to the County Zoning Ordinance that allows them to use and sell the excavated material accumulated in their canals, ditches, and reservoirs, including material excavated for the expansion or construction of new reservoirs.” (Underscored emphasis added.) The Hearings Officer finds that by amending Title 18 to create both outright permitted and conditional uses relating to irrigation district operations, the county intended to distinguish between the districts’ routine operation and maintenance of “existing irrigation systems” that likely would have minimal impacts (outright permitted uses), and the more intensive activities including excavation to create or expand reservoirs (conditional uses). The parties submitted extensive arguments as to whether the new reservoirs fairly can be considered part of TID’s “existing irrigation systems” under the outright permitted use because, among other reasons, the reservoirs were constructed by KCDG on its own land and did not become a part of TID’s “systems” until TID’s stored water was piped into them. The Hearings Officer finds these arguments miss the point. It is the surface mining required to construct or expand a reservoir that distinguishes the conditional use from the outright permitted use authorized by Ordinance No. 2001-039. Such surface mining need only be performed “in conjunction with” the irrigation district’s operation and maintenance of its systems for it to fall within the parameters of the conditional use. There is no dispute in this record that the new reservoirs were created in coordination with TID and, at least in part, in order to facilitate TID’s operation of its irrigation systems. 16 Considering all of these provisions and the available legislative history, the Hearings Officer finds the county’s listing of “reservoir and water impoundments” as a conditional use in only three zones only reflects the county’s intent to comply with DLCD’s administrative rules governing forest zones and not to exclude reservoirs and water impoundments from other zones. However, I find these provisions and their legislative history do show a clear intent to require conditional use approval for 14 Copies of the ordinance and staff report are included in the record as Exhibit K to TID’s September 26, 2014 submission. 15 Those zones are: EFU, Section 18.16.020(M); MUA-10, Section 18.32.020(H)); O,S&C, Section 18.48.020(F); SM, Section 18.52.030(G); SMIA, Section 18.56.040); RR-10, Section 18.60.020(I)); RSC- UUC, Section 18.65.020(A)(9); Terrebonne Rural Community, Section 18.66.020(A)(7); Terrebonne R-5, Section 18.66.030(A)(7); Tumalo Industrial, Section 18.67.060(A)(8); LM (if permitted outright in the underlying zone); WA (if permitted outright in underlying zone); SBMH (if permitted outright in the underlying zone); CH (if permitted outright in the underlying zone); FP, Section 18.96.030(H); and RI, Section 18.100.010. 16 The Hearings Officer finds that whether the new reservoirs were excavated by TID or by KCDG on TID’s behalf is irrelevant. There is no requirement that the excavation actually be conducted by the irrigation district. TID, 247-14-000-238-PS, 247-14-00274-A Page 18 of 22 surface mining and excavation required to create new reservoirs that are, or are intended to be, part of an irrigation district’s irrigation systems. Surface Mining The next question is whether KCDG conducted “surface mining” including the “excavation and mining” for the new reservoirs. Section 18.04.030 defines “surface mining” in relevant part as follows: “Surface mining means: A. Includes: 1. All or any part of the process of mining by removal of the overburden and extraction of natural mineral deposits thereby exposed by any method including open pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off-site borrow pits, except those constructed for access roads; and 2. Mining which involves more than 1,000 cubic yards of material or excavation prior to mining of a surface area of more than one acre. B. Does not include: 1. The construction of adjacent or off-site borrow pits which are used for access roads to the surface mine. 2. Excavation and crushing of sand, gravel, clay, rock or other similar materials conducted by a landowner, contractor or tenant on the landowner’s property for the primary purpose of construction, reconstruction or maintenance of access roads and excavation or grading operations conducted in the process of farming or cemetery operations, on-site road construction and other on-site construction, or nonsurface impacts of underground mines; and . . . (Emphasis added.) The Hearings Officer finds from the record that KCDG engaged in “mining” on the subject property by “removal of overburden and extraction of mineral deposits” within the Klippel mining pits. 17 Whether that activity falls within the exclusions from “surface mining” in Paragraph (B)(2) depends on the text, context and available legislative history of that provision. It appears the exclusion language was added to Title 18 in the early 90’s when the county adopted its surface mining provisions and is based on the statutory surface mining definition in ORS Chapter 517. However, the exclusion in Title 18 appears to expand the excluded activities in the statute. Section 517.750(15(b) excludes the following activity from the definition of “surface mining:” (A) Excavations of sand, gravel, clay, rock or other similar materials conducted by the landowner or tenant for the primary purpose of construction, reconstruction or maintenance of access roads on the same parcel or on an 17 See, e.g ., Exhibit B to appellants’ notice of appeal and Exhibit 13 to appellants’ October 6, 2014 submission, consisting of photographs taken between May and August of 2014 of KCDG’s excavation for and construction of the reservoirs. TID, 247-14-000-238-PS, 247-14-00274-A Page 19 of 22 adjacent parcel that is under the same ownership as the parcel that is being excavated; . . . (Emphasis added.) Section 18.04.030 defines “surface mining” to exclude both a landowner’s on-site excavation and crushing for construction and maintenance of access roads, and the landowner’s on-site excavation and grading for “other on-site construction.” As discussed in the Findings of Fact above, in April of 2014 KCDG obtained a temporary use permit for rock crushing within the new reservoir(s) (TU-14-8). That decision states KCDG requested a TU to allow for rock crushing “associated with maintenance of private roadways and landscaping” under Section 18.60.020, which lists as an outright permitted use in the RR-10 Zone “Class III road projects.” 18 The decision states KCDG intended to place the rock crusher “at the bottom of the old [mining] pit” and that “no offsite material will be brought to the property for crushing.” In other words, KCDG represented to the county that it would only crush material already located on the subject property – i.e., within and around the reclaimed mining pits. The rock crushing permitted by the TU arguably was excluded from the definition of “surface mining” if it was for the primary purpose of constructing and maintaining private roads on the subject property. However, the TU authorization did not include excavation and grading . In light of the large scale and unique configuration of KCDG’s excavation on the subject property, the Hearings Officer finds that excavation was for the primary purpose of “other on-site construction” – i.e., the conversion of the former Klippel mining pits to new reservoirs, as documented by the aerial and ground-level photos of the subject property in this record and my own site visit observations. 19 The remaining question is how to reconcile two apparently conflicting provisions of Title 18 -- the exclusion from the definition of “surface mining” in Section 18.04.030 for a landowner’s on-site excavation for “other on-site construction,” and the conditional use allowed under Section 18.60.030(W) of “surface mining . . . in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for . . . reservoirs.” These provisions appear to conflict because the exclusion from the “surface mining” definition for a landowner’s “other on-site construction” could encompass excavation on the landowner’s property for a reservoir. As discussed above, the conditional use in Section 18.60.030(W) was added to Title 18 in 2001 through Ordinance No. 2001-039. Under ordinary rules of statutory construction, the drafters of the 2001 ordinance are presumed to have known of the “surface mining” definition and its exclusions, and are presumed not to have created a provision that would have no effect. However, again, the proper inquiry in determining the intent of ordinance provisions is through an analysis of the text, context and available legislative history. The Hearings Officer finds the text of the conditional use in Section 18.60.030(W) is specific to surface mining related to the operation and maintenance of an irrigation district’s irrigation systems. Its context, including the legislative history of that provision discussed in the findings above, indicates the irrigation districts believed they were prohibited from engaging in surface mining including excavation and grading for reservoirs, as well as the off-site sale of extracted 18 A copy of the TU decision is included in the record as Exhibit P to TID’s September 26, 2014 submission. Section 18.04.030 defines “Road and Street Project, Class III Project” as “a modernization, traffic safety improvement, maintenance, repair or preservation of a road or street.” 19 For example, included in the record as Exhibit B to appellants’ notice of appeal and Exhibit 13 to appellants’ October 6, 2014 submission are photographs taken between May and August of 2014 of the actual excavation for and construction of the reservoirs. TID, 247-14-000-238-PS, 247-14-00274-A Page 20 of 22 materials, and therefore needed express authorization for such activity. This context suggests both the irrigation districts and the county did not consider the exclusion from “surface mining” for a landowner’s “other on-site construction” to apply to the types of surface mining activities authorized through the conditional use. It also is possible the drafters simply did not consider the possibility that a reservoir to be used by an irrigation district would be constructed on property not owned by the district. However, because the text of the conditional use does not require that the reservoir excavation be performed by the irrigation district or on district property, only that such surface mining be “in conjunction with” the operation and maintenance of the irrigation district’s irrigation systems, I find it more likely the drafters intended the conditional use to authorize surface mining for reservoirs regardless of who owns the property or conducts the surface mining activity. Considering the text, context and legislative history of the surface mining conditional use under Section 18.60.030(W), and in order to give it effect, the Hearings Officer finds the specific “surface mining” conditional use for reservoirs in conjunction with irrigation district systems does not fall within the general exclusion from the definition of “surface mining” in Section 18.04.030 for “on-site construction” on a landowner’s property. For the foregoing reasons, the Hearings Officer finds conditional use approval was required for the surface mining required to convert the former Klippel mining pits to the new reservoirs on the subject property for TID’s irrigation water storage. Therefore, I find the county’s LUCS decision did not correctly categorize TID’s proposed use as an outright permitted use because an essential component of that use -- the mining and excavation conducted to create the new reservoirs – was not identified or considered, and that activity required conditional use approval. Recreation-Oriented Facility Appellants argue the true nature of TID’s LUCS request is to provide a private recreational lake on the subject property. There is undisputed evidence in the record that the southern reservoir has been used for water skiing. 20 There also is substantial evidence in the record that the southern reservoir was designed specifically for water skiing, with its two islands, boat ramp, boat dock, and pilings for a boat house. 21 As discussed in the Findings of Fact above, the county issued a stop work order to KCDG for construction of the boat house foundation without land use approval or a building permit, and the county issued a Notice of Violation to KCDG for operating a recreation- oriented facility requiring large acreage without land use approval. TID denies any role in KCDG’s recreational use of the new reservoirs, stating only that such use is typical on water storage reservoirs. However, the record indicates TID was aware of both the design of the southern reservoir and the water skiing occurring on it. 22 The June 2014 contract between TID and KCDG does not prohibit KCDG from using the reservoirs for recreation. And it requires KCDG to indemnify TID for any liability arising from KCDG’s use of the reservoirs. The county was aware of the recreational use of the southern reservoir when it issued the LUCS decision. 20 See, e.g., photos included in Exhibits 3 and 5 to appellants’ October 6, 2014 submission. 21 The photograph included in the record as page 2 of Exhibit S to appellants’ notice of appeal shows the southern reservoir during construction. The photos included in Exhibit 21 to appellants’ October 27, 20914 submission show several water ski lakes in other states with designs virtually identical to the southern reservoir. 22 See, e.g., September 29, 2014 electronic mail message from Bill Hopp, attorney for TID, to Nick Lelack, identified by the county in this record as “Document 12.” TID, 247-14-000-238-PS, 247-14-00274-A Page 21 of 22 Section 18.60.030 permits conditionally in the RR-10 Zone “recreation-oriented facility requiring large acreage such as off-road vehicle track or race track.” Title 18 does not define “recreation- oriented facility.” Webster’s New World Dictionary and Thesaurus, Second Edition , includes the following relevant definitions: “Recreation: any form of play, amusement, etc. used to relax or refresh the body or mind. Orient: to adjust . . . to a particular situation.” Based on these definitions, the Hearings Officer finds a “recreation-oriented facility” is one that is designed and constructed to provide opportunities for recreational activity. I find at least the southern reservoir’s design and use as a water-skiing lake is a recreation-oriented facility. I further find it is one “requiring large acreage such as an off-road vehicle track or race track” because a boat and skier(s) towed behind the boat require a large water surface area to safely and effectively maneuver, including making turns. For these reasons, the Hearings Officer finds the county erred in not identifying and considering the conditional use of “recreation-oriented facility requiring large acreage” in categorizing TID’s proposal on the LUCS form and LUCS decision as an outright permitted use. Cluster Development The record includes evidence that KCDG’s predecessor in title, Harris Kimble, stated his intent to develop the subject property with a residential cluster development featuring the new reservoirs. 23 Both TID and KCDG disavow any representations made by Mr. Kimble as the plans of a “previous owner.” However, the record indicates Mr. Kimble is a partner in KCDG. 24 Accordingly the Hearings Officer find’s TID’s and KCDG’s position somewhat disingenuous. The record also includes similar representations made by KCDG representatives. As noted in the Findings of Fact above, at a June 13, 2014 meeting with CDD staff, Ms. Dickson stated KCDG planned to submit an application for a residential cluster development within six months. In addition, Paragraph (15) of the June 14, 2014 contract between TID and KCDG states: “KCDG and its successors shall require the purchasers/lessees at the time of purchase or lease of residential lots in the development to sign and record a document acknowledging that the purchaser/lessee has read and accepted this Contract.” (Emphasis added.) TID and KCSG argue that since no land use application for residential cluster development approval has been submitted by KCDG, there is no basis to conclude the new reservoirs constitute the unpermitted “first phase” of such a development as claimed by appellants. Although the Hearings Officer finds there clearly is some basis to suspect the new reservoirs are planned to be part of a future residential cluster development, I agree with TID and KCDG that it is not reasonable to characterize the new reservoirs as the first phase of such development. That is because the cluster development conditional use in the RR-10 and WA Zones under Section 18.60.030(F) and 18.88.040(A), respectively, includes numerous components in addition to open space and amenities therein, such as dwellings, utility infrastructure, streets, and water and sewer 23 For example, see Exhibit D to appellants’ notice of appeal. 24 See Affidavit of Harris Kimble dated August 15, 2014, included in the record as Exhibit “N” to TID’s September 26, 2014 submission. TID, 247-14-000-238-PS, 247-14-00274-A Page 22 of 22 systems. Therefore, I find the county did not err in failing to identify the cluster development conditional use in categorizing TID’s proposal on the LUCS form or in its LUCS decision. Because the Hearings Officer has found the county’s LUCS decision was in error and must be reversed and remanded, I do not address the parties’ extensive arguments concerning whether the new reservoirs would satisfy the conditional use approval criteria for “recreation-oriented facility requiring large acreage” or for a residential cluster development. IV. DECISION: Based on the foregoing findings and conclusions, the Hearings Officer FINDS: 1. The county incorrectly categorized TID’s proposed use on the WRD LUCS form as a use allowed without review. 2. The county erred in issuing a LUCS decision finding TID’s proposed use was allowed without review. 3. The county’s LUCS decision is reversed and remanded for the CDD Director to reissue the WRD LUCS form and the LUCS decision to categorize TID’s proposed use as one involving discretionary land use approval(s) that have not yet been obtained – i.e., the conditional use of surface mining for reservoirs in conjunction with operation and maintenance of irrigation systems under Section 18.60.030(W), and/or a recreation-oriented facility requiring large acreage under Section 18.60.030(G). Dated this 15 th day of December, 2014. Mailed this 16 th day of December, 2014. ____________________________ Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED.