HomeMy WebLinkAboutTumalo Irrig Dist LUCS Decision0),0. /.... ~1-
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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 April 8, 2015
DATE: April 3,2015
FROM: Anthony Raguine CDD 541-617-4739
TITLE OF AGENDA ITEM:
Board of County Commissioners (Board) signature and approval of Board decision to reverse the
county's decision to issue a Land Use Compatibility Statement (LUCS) allowing Tumalo Irrigation
District to transfer water right from Tumalo Creek to the Klippel Acres Mining Site.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
The Planning Division initially signed-off on the LUCS indicating the water right transfer was allowed
as an outright permitted use. This decision was appealed to the Deschutes County Hearings Officer.
The Hearings Officer determined that the creation of the reservoirs to store the water required a
conditional use permit for surface mining in conjunction with an irrigation district, and further that a
conditional use permit was required to establish a recreation facility. The Hearings Officer's decision
was appealed to the Board. A public hearing before the Board was held on January 29,2015. On
March 4,2015, the Board held a public meeting to deliberate the issue. The Board upheld the Hearings
Officer's decision.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Approve and sign Decision of Board of County Commissioners on land use file numbers 247-14
000238-PS, 247-14-000274-A, 247-14-000452-A, and 247-14-000453-A.
ATTENDANCE: Anthony Raguine and Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Anthony Raguine, CDD
John Laherty, Legal Counsel
Page 1 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
FILE NUMBERS: 247-14-000-238-PS, 247-14-000274-A
247-14-000452-A, 247-14-000453-A
APPLICANT: Tumalo Irrigation District (“TID”)
64697 Cook Avenue
Bend, Oregon 97701
PROPERTY OWNER: KC Development Group, LLC (“KCDG”)
63560 Johnson Road
Bend, Oregon 97701
APPLICANT’S AND
PROPERTY OWNER’S
ATTORNEY:
Elizabeth A. Dickson
Hurley Re, P.C.
747 S.W. Mill View Way
Bend, Oregon 97702
APPELLANTS: Tumalo Irrigation District
64697 Cook Avenue
Bend, Oregon 97701
Thomas and Dorbina Bishop,
Trustees of the Bishop Family Trust
63382 Fawn Lane
Bend, Oregon 97701
BISHOPS’ ATTORNEY: Jennifer Bragar
Garvey Schubert Barer
121 SW Morrison Street, 11th Floor
Portland, Oregon 97204
SUBJECT: Appeals of Hearings Officer decision to reverse the
Planning Division’s issuance of a Land Use Compatibility
Statement (LUCS) to transfer 108 acre-feet of Tumalo
Creek water from Tumalo Reservoir to Klippel Acres
Mining Pit.
REVIEWED
_________________
LEGAL COUNSEL
Page 2 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
STAFF REVIEWER: Anthony Raguine, Senior Planner
HEARING DATE: January 29, 2015
RECORD CLOSED: February 13, 2015
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
3. Chapter 18.88, Wildlife Area Combining Zone – WA
4. Chapter 18.120, Exceptions
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
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 22.20.020, Administrative Land Use Decisions with Prior Notice
* Section 22.20.030, Administrative Decision without Prior Notice
5. Chapter 22.24, Land Use Action Hearings
* Section 22.24.030, Notice of Hearing or Administrative Action
* Section 22.24.140, Continuances and Record Extensions
6. Chapter 22.32, Appeals
* Section 22.32.050, Development Action Appeals
Page 3 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
II. BASIC FINDINGS:
A. Location: The subject property (the “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 and east of Fawn Lane, south and north
of Klippel Road, and west of Tumalo Creek west of Bend.
B. Zoning and Plan Designation: The Board adopts and incorporates herein by reference
the Hearings Officer’s findings regarding zoning and plan designation, as set forth in pages 2-3
of the Hearing Officer’s December 15, 2014 Decision (the “Hearings Officer’s Decision”).
C. Site Description: The Board adopts and incorporates herein by reference the Hearings
Officer’s findings regarding site description, as set forth in page 3 of the Hearing Officer’s
Decision.
D. Surrounding Zoning and Land Uses: The Board adopts and incorporates herein by
reference the Hearings Officer’s findings regarding surrounding zoning and land uses, as set
forth in page 3 of the Hearing Officer’s Decision.
E. Land Use/Development/Code Enforcement History: The Board adopts and
incorporates herein by reference the Hearings Officer’s findings regarding land use, development
and code enforcement history, as set forth in pages 3-5 of the Hearing Officer’s Decision.
F. Procedural History: The Board adopts and incorporates herein by reference the
Hearings Officer’s findings regarding procedural history, as set forth in pages 5-7 of the Hearing
Officer’s Decision, with the following additions:
The Hearings Officer issued her decision on December 15, 2014 and the decision was mailed to
the parties on December 16, 2014. Both the Tumalo Irrigation District and Thomas and Dorbina
Bishop timely appealed the Hearings Officer decision to the Deschutes Board of County
Commissioners, requesting de novo review.
On January 7, 2015, by Order No. 2015-009, the Board of County Commissioners accepted the
appeals and consolidated them into a single, de novo proceeding. On January 29, 2015 the Board
of County Commissioners held a public hearing on the appeals. At the hearing all
Commissioners disclosed their participation in a work session on these appeals, and Chair
DeBone disclosed ex parte contacts with the Neizdwiecke family, the Bishops, and the applicant
before the LUCS phase to receive information in the last year. No party objected to Chair
DeBone or any other Commissioner’s participation in hearing this appeal. The Board of County
Commissioners received testimony and evidence, left the written record open through February
13, 2015, and allowed the applicant through February 20, 2015 to submit final written argument
pursuant to ORS 197.763.
On February 20, 2015 Ms. Dickson electronically submitted TID’s final written argument. By
letter dated February 24, 2015, the Board received additional testimony from Ms. Dickson, but
the Board did not consider that testimony in reaching this decision.
Page 4 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
On February 25, 2015, the County’s Senior Planner, Anthony Raguine, submitted an Agenda
Request and Staff Report explaining that he had rejected Exhibit B to TID’s February 20, 2015
final written argument, and had redacted a statement from Exhibit C of TID’s February 20, 2015
final written argument, as containing new evidence that had not been submitted prior to close of
the record.1 At the beginning of the Board’s deliberations on March 4, 2015 Mr. Raguine
explained to the Board that paragraph 6 of page 4 of TID’s February 20, 2015 final written
argument should also be redacted, and advised the Commissioners to consider a vote to (a)
affirm rejection of Exhibit B and the statement in Exhibit C referring to Exhibit B, in TID’s
February 20, 2015 final written argument and (b) remove from the record paragraph 6 of page 4
of TID’s final written argument. Commissioner Baney made a motion to affirm staff’s rejection
of Exhibit B and the statement in Exhibit C referring to Exhibit B and also to not consider
paragraph 6 of page 4 of TID’s February 20, 2015 letter, Commissioner Unger seconded and the
motion passed unanimously. These documents or portions of documents are rejected from the
record and were not considered in making this decision.
The applicant extended the 150-day period to April 15, 2015.
G. Proposal: The Board adopts and incorporates herein by reference the Hearings Officer’s
findings regarding the proposal, as set forth in page 7 of the Hearings Officer’s Decision, with
the following additions:
TID appealed the Hearings Officer’s Decision to the Deschutes County Board of County
Commissioners (the “Board”). TID raises three issues on appeal:
1. Whether the Hearings Officer’s Decision omitted or failed to consider the
threshold statutory question of whether the LUCS approval was a land use
decision;
2. Whether the Hearings Officer’s Decision made and relied upon significant
factual errors that prejudiced TID’s rights; and
3. Whether the Hearings Officer’s Decision made several legal errors that
prejudiced the rights of both TID and the underlying property owner,
KCDG.
TID requested that the Board find the LUCS should issue, as the reservoirs are outright permitted
uses under Section 18.60.020(I).
The Bishops also appealed the Hearings Officer’s Decision. The Bishops raise the following
issues on appeal:
1. Whether the Hearings Officer erred in finding the LUCS was a
development action under the Deschutes County Code;
1 The Agenda Request incorrectly refers to the “February 13, 2015” submittal of TID’s final legal argument .
Page 5 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
2. Whether the Hearings Officer’s Decision erred in determining that TID
and/or KCDG do not need conditional use approval for a cluster
development prior to issuance of the LUCS at this time.
3. Whether Exhibit J to TID’s final written argument submitted November
20, 2014 should be stricken from the record as new evidence; and
4. Whether KCDG should have been required to sign the LUCS application.
The Bishops requested that the Board find the LUCS should not issue until KCDG obtains a
conditional use permit for a cluster development.
On January 7, 2015, b y Order 2015-009, the Board ordered that it would hear both TID’s and the
Bishops’ appeals in a single proceeding, and that the Board’s review would be de novo.
H. Public Agency Comments: The Board adopts and incorporates herein by reference the
Hearings Officer’s findings regarding public agency comments, as set forth in page 7 of the
Hearings Officer’s Decision, with the following addition:
No additional public agency comments were submitted for the appeal to the Board.
I. Public Notice and Comments: The Board adopts and incorporates herein by reference
the Hearing Officer’s findings regarding public notice and comments, as set forth in page 7 of
the Hearings Officer’s Decision, with the following additions:
Subsequent to the appeals of the Hearings Officer’s decision, the Planning Division mailed
notice of the Board’s public hearing to all parties of record and published the notice in the Bend
“Bulletin” newspaper. Nineteen electronic mail messages and letters were received in response
to this notice. Twenty-one members of the public testified before the Board at the public
hearing.
J. Lot of Record: The Board adopts and incorporates herein by reference the Hearings
Officer’s findings regarding lot of record, as set forth on page 7 of the Hearings Officer’s
Decision.
III. FINDINGS :
A. Preliminary Issues.
1. Applicant.
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 Deschutes County Code 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. The Bishops raised this issue on appeal, but the Board makes no
findings regarding this objection because TID’s application for a LUCS is reversed on other
grounds.
Page 6 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
2. Mootness.
FINDINGS: The Board agrees with the Hearings Officer that this appeal is not moot
and adopts and incorporates herein by reference the Hearings Officer’s findings regarding
mootness, as set forth in page 9 of the Hearings Officer’s Decision.
3. Admissibility of Exhibit “J” FINDINGS: Bishops claim that TID’s
November 20, 2014 final argument to the Hearings Officer included new evidence in the
form of “Exhibit J” that should not have been accepted or considered by the Hearings
Officer. The Board finds the issue to be irrelevant at this stage because the Board heard
the appeal of this application in a de novo hearing
B. Nature of LUCS Decision and Appeal.
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 DCC 18.60.020(I) as the “operation, maintenance, and
piping of existing irrigation systems operated b y an Irrigation District.” The County’s LUCS
decision found the proposed use is permitted without review under this section. Pursuant to DCC
22.16.010(B), Director Nick Lelack chose 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: The Board agrees with the Hearings Officer that the LUCS decision at
issue in this case is a development action, and adopts and incorporates herein by
reference the Hearing’s Officers findings on this issue, as set forth in pages 10 through 12
of the Hearings Officer’s Decision.
2. Local Appeal
FINDINGS: The Board agrees with the Hearings Officer that the Planning Director has the
authority to treat a development action as a land use action for the purposes of DCC Title 22,
and adopts and incorporates herein by reference the Hearings Officer’s findings on this issue, as
set forth in page 12 of the Hearings Officer’s Decision.
C. Categorization of Proposed Use.
1. New Reservoirs
FINDINGS: Both TID and the Bishops, as well as the Board, agree that the water bodies on the
Property are reservoirs – “a place where water is collected and kept in quantity for use when
wanted.”2 At the time the 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 in the record show the
2 Webster’s Third New Int’l Dictionary 1931 (unabridged ed 2002). Although the County Code does not define
“reservoir,” the Board relies on the ordinary meaning contained in the cited dictionary relied upon by Oregon courts.
Page 7 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
new reservoirs bear little if any resemblance to the reclaimed and reseeded mining pits that
existed at the time of rezoning. The evidence in the record indicates the pits have been converted
to reservoirs within the past 12 to 18 months, by excavating a large volume of aggregate and
grading the area to create impoundments, building islands at each end of the southern reservoir,
creating a dock area and boat ramp, lining both reservoirs with an impermeable fabric, and
affixing that fabric to the ground with an overlay of sand and gravel. The record provides that the
northern reservoir was filled with water during May 2014 and the southern reservoir was filled to
a low level beginning in the last week of June 2014.
The new reservoirs were built and constructed on property owned by KCDG -- not TID. At the
time the reservoirs were created, the only component of TID’s irrigation system located on the
Property was a TID pipeline (formerly canal) along the perimeter of tax lot 828; tax lot 824
contained no component of any TID irrigation system.
Under DCC 18.60.020(I), a permitted use in the RR-10 zone includes “operation, maintenance,
and piping of existing irrigation systems operated by an Irrigation District, except as provided in
DCC 18.120.050.”3 TID claims that its storage of irrigation water in the new reservoirs is a
permitted use under 18.60.020(I) because (a) all activities occurring within the Tumalo Irrigation
District’s boundaries constitute part of TID’s “existing irrigation system” for purposes of DCC
18.60.020(I), and (b) any newly constructed structures, such as KCDG’s reservoirs, are part of
that existing system so long as they are constructed within TID’s boundaries.
The reservoirs have a fixed connection to the ground and constitute “structures” for purposes of
the Deschutes County Code. Consequently, the Board finds that TID’s LUCS request
mischaracterized the proposed use of the Property, by omitting any reference to the construction
of the reservoirs. This omission was material to the LUCS request and decision, because the
surface mining required to construct the reservoirs is a conditional use in the RR-10 Zone under
DCC Title 18.
The newly created reservoirs do not constitute part of TID’s “existing irrigation system” for
purposes of DCC 18.60.020(I). As a result, storage of TID irrigation water in the newly-created
reservoirs does not constitute “operation, maintenance, and piping of existing irrigation systems
operated by an Irrigation District”. As such, the Board finds that the proposed use is not an
outright permitted use under Deschutes County Code.
2. Surface Mining
FINDINGS: The Board finds that the excavation, grading, and related activities conducted on -
site to create the new reservoirs constituted surface mining. The Board adopts and incorporates
herein by reference the Hearings Officer’s findings on this issue, as set forth in pages 18-20 of
the Hearings Officer’s Decision. Therefore, TID’s LUCS request mischaracterized the proposed
use of the Property, by omitting any reference to the construction of the reservoirs. This omission
was material to the LUCS request and decision, because the surface mining required to construct
the reservoirs is a conditional use in the RR-10 Zone under DCC Title 18.
3 The exceptions provided in Section 18.120.050 do not apply to this application.
Page 8 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
File Nos.: 247-14-000-238-PS, 247-14-000274-A and 247-14-000452-A, 247-14-000453-A
DOCUMENT NO. 2015-221
3. Recreation-Oriented Facility
FINDINGS: The Board adopts and incorporates herein by reference the Hearings Officer’s
findings regarding use of the Property for recreation-oriented facilities requiring large acreage,
as set forth on page 20-21 of the Hearings Officer’s Decision. Additionally, the Board finds as
follows:
The record includes undisputed evidence that the southern reservoir has been used for water
skiing. It is also apparent from the evidence in the record that the southern reservoir was
designed specifically for water skiing, with its unique long, narrow shape, circular islands at each
end, boat ramp, boat dock, and pilings for a boat house. The county issued a stop work order to
halt KCDG from constructing a boat house foundation without a building permit, and the county
issued a Notice of Violation to KCDG for operating a recr eation-oriented facility requiring large
acreage without land use approval. The June, 2014 contract between TID and KCDG specifically
requires KCDG to indemnify TID for any liability arising from KCDG’s use of the reservoirs.
The northerly reservoir has also been used for recreational purposes. Specifically, the record
contains evidence that the northerly reservoir has been used for paddle boarding.
DCC 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.” The Hearings Officer relied on Webster’s New World Dictionary
and Thesaurus, Second Edition that 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.”
The Board agrees with the Hearings Officer’s finding that a “recreation-oriented facility” is one
that is designed and constructed to provide opportunities for recreational activity. Therefore, the
Board finds that the reservoirs are “recreation-oriented facilities requiring large acreage”, as that
term is used in DCC 18.60.030.
TID’s LUCS request mischaracterized the proposed use of the Property, by omitting any
reference to the use of the reservoirs as recreation -oriented facilities. This omission was material
to the LUCS request and decision, because recreation-oriented facilities are a conditional use in
the RR-10 Zone per DCC 18.60.030(G).
By failing to consider the Property’s use as a “recreation-oriented facility requiring large acreage,”
the County’s LUCS determination did not correctly categorize the proposed use of the Property.
D. Cluster Development
FINDINGS: An issue was raised as to whether this proposal is part of a cluster development.
Because the Board finds that this application must be denied on other grounds and no application for
a cluster development has been submitted to the County, the Board makes no findings on that issue.
Page 9 of 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS,
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DOCUMENT NO. 2015-221
IV. DECISION:
Based on the foregoing findings and conclusions, the Deschutes Board of County
Commissioners FINDS:
1. TID materially mischaracterized the use of the Property on the LUCS form, by failing to
mention the construction of the two new reservoirs on the subject property.
2. TID materially mischaracterized the use of the Property on the LUCS form, by failing to
mention the use of the Property for recreation-oriented facilities requiring large acreage.
3. The County incorrectly categorized TID’s proposed use on the LUCS form as a use
allowed without review.
4. The County erred in issuing a LUCS decision finding TID’s proposed use was allowed
without review.
5. The County’s LUCS decision is reversed.
6. The LUCS shall characterize the use as requiring additional review pursuant to DCC
18.60.030(G) for surface mining in conjunction with an irrigation district, including the
excavation for reservoirs.
7. The LUCS shall characterize the use as requiring additional review pursuant to
18.60.030(W) for a recreation facility requiring large acreage.
Dated this _____ of ____________, 2015
BOARD OF COUNTY COMMISSIONERS
ANTHONY DEBONE, Chair
ALAN UNGER, Vice Chair
ATTEST:
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.
TID, 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.