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HomeMy WebLinkAbout2014-03-27 - Planning Commission MinutesMINUTES DESCHUTES COUNTY PLANNING COMMISSION SITE VISIT/TOUR: 2:00 P.M. (CONVENE AT INTERSECTION OF COOLEY RD. AND OVERLOOK DR.) REGULAR MEETING: DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97701 MARCH 27, 2014 — 5:30 P.M. I. CALL TO ORDER Meeting was called to order at 5:30 p.m. by Chair Chris Brown. Members present were Vice Chair Hugh Palcic, James Powell, Ed Criss, Steve Swisher, Matt Lisignoli and Todd Turner. Staff present were Nick Lelack, Planning Director; Paul Blikstad, Senior Planner; Laurie Craighead, Assistant Legal Counsel; and Sher Buckner, Administrative Secretary. II. PUBLIC COMMENTS (items not on agenda) III. PUBLIC HEARING (continued): TA -13-4 - A text amendment to Deschutes County Code Title 19, Chapter 19.20, Suburban Low Density Residential Zone (SR -2.5) to allow the operation, maintenance, and piping of existing irrigation systems as an outright use in the zone — Paul Blikstad, Senior Planner. Commissioner Turner said he is a user of canal water, on a small scale; Commissioner Lisignoli said he uses approximately 120 acres of water. There were no challenges for conflict of interest. Nick Lelack summarized the proposal and proceedings to date, including the tour of the canal today, for which separate minutes will be provided. The Bend Area General Plan will be the guide to making a decision on this proposal. The SR 2.5 Zone is located outside the acknowledged urban growth boundary for Bend. Public Testimony: Liz Dickson testified as the attorney for the applicant. COID appreciates the fact that the homeowners enjoy the canals, but the canals are utility function like any other. They happen to run in back yards. COID is asking for permission to continue to maintain its system. She summarized the issues in other districts such as Squaw Creek. In 2000, an application was filed for outright use. Tumalo tried to pipe later and also had problems, as did Swalley. The entire Swalley board was fired, managers were fired, etc., and the piping happened anyway. There was a legal fight, but in the end the decisions said that an irrigation district has the authority to pipe its canals. Private individuals felt they had a value in the canal running near their properties; the courts held that this did not matter and the homeowners did not own the canal. Piping has become more contentious over the years but will continue in this area. It will continue in small neighborhoods and there will be more opposition. The District wants to be allowed to pipe, to continue to save water and move forward. This situation is awkward because we are working with the County, but it is Bend's General Plan. Preserving water resources is one of the Plan goals, and that is exactly what this application does. We cannot preserve water in this basin without piping — open canals waste water. Steve Johnson, General Manager of COID, presented slides on the history of the basin, Deschutes Water Alliance goals and other information regarding piping and water conservation. For the most part, there have not been many controversies in this area of Oregon. Ninety percent of the water rights in the basin are associated with the irrigation districts. As the population grows, we have to share a finite resource for agriculture, environmental flows, and populated areas. There has been major cooperation between agencies and stakeholders, and the result is that we have not had a water crisis. Commissioner Powell said he appreciated the presentation and consideration of the larger picture. He agreed with Steve that we would be having a lot more water problems now if it were not for the efforts of many people, including the districts. Back in the mid -2000s when piping was done for the rest of the County, there was an argument before the Commission at that time and two of the Commissioners did not want to deal with the hurdle. What does the District have to do in order to pipe an existing ditch now, in the 2.5 zone, and what would be relieved by the passage of this text amendment? Liz said she does not believe that question has been conclusively answered. Our submittal this evening raises some significant questions as to whether this is even a land use decision. There are already federal court decisions regarding piping operation and maintenance, statutes, etc. The simplest way to clean this up is to do a text amendment, but there is a larger question of whether the irrigation districts must go through the land use process to operate their systems. Commissioner Powell asked why a text amendment was needed after the LUBA decision. Liz said that the LUBA decision brings up other issues that have not been considered before, and a text amendment allowing it as an outright use would clean things up. Deschutes County's Code and the LUBA decision are not consistent regarding the size of the hydro plant. Commissioner Powell thought that this would fall into one of two categories, an existing project (conditional use required); or a conditional use needed because of the size of the project/excavation. Liz said it would clean up the problem of SR 2.5 being consistent with other zones. The other issues regarding excavation many not be relevant — if the homeowners will not allow excavation, it is less expensive to leave the pipe higher; but COID is willing to work with homeowners to lower the pipe. Commissioner Powell felt that this is a much larger issue. Commissioner Criss and Liz discussed the size of the hydro plant. Commissioner Lisignoli and Steve discussed flow rates. The specific stretch to be piped is an area where we could normally lose 7.8 cfs. Approximately 450 cfs flows through the canal, so you'd have 442 cfs to be diverted from the river. Maximum capacity is close to 600 cfs. 2 Commissioner Palcic asked if lining the canal had been considered for this stretch. Steve said lining is the most expensive option. Commissioner Palcic asked about the difference in water loss in lining versus piping; Steve said the lining deteriorates over time and you save less and less water. Bruce White testified on behalf of Jim Curl. This is a legislative proceeding, and the applicants have chosen to make an amendment to the Code. He objects to limiting the time for other testimony when there were no limits put on the District. People should be able to give their testimony without being rushed. There is some confusion as to what a permit proceeding is versus a legislative proceeding (amending the people's code). Chair Brown said he expects the property owners' testimony to accumulate to an amount of time greater than the applicant's, and it does not serve coherence or efficiency to allow everyone to testify as long as they wish. Anyone can submit testimony in writing if they feel they have had inadequate time. Paul Blikstad asked Chair Brown to speak against any more ovations or reactions after testimony — during the last meeting there were ovations after each speaker. Pat Kliewer testified that she had been ready to discuss the Bend Area General Plan and was appreciative of Niek Lelaek's presentation. She fee's that Oregon Statewide Planning Goal 1 is important and wanted to include that in the record with other materials. Jeff Perreault testified as a former hydrogeologist with the USGS. He discussed the Oregon Water Resources Department, the Deschutes River Conservancy and the Deschutes Water Alliance reports submitted previously. Projects to pipe the canals are an attempt to prevent the water from contributing to our aquifer. It is not wasted due to leakage — it goes directly into the aquifer. Any water that is left in the river will not get back to the aquifer. Every reach of the river below Bend to the basin is gaining recharge. Shallow recharge comes from leakage, 100%. All water lost from the canals is conserved. Surface water is yesterday's battle front — today and tomorrow's is groundwater. The Pilot Butte canal is one of the least -efficient districts as far as the use of water is concerned. Tom Hignell testified against the proposal (see written testimony). Bruce White said that we will need to decide at the end of this meeting if there is enough time to respond to all of the submittals. This is a legislative proceeding. The District has mischaracterized it as a quasi-judicial proceeding. At a minimum, you must consider what is in the Bend Area General Plan; but you can also consider items outside of it. One side has indicated how important it is to put water in the stream by limiting groundwater recharge, but we have also heard conflicting testimony as to the importance of groundwater recharge. The District says this is just about piping 4500 feet of canal. When it benefits them, they also say this is complex. They say they are trying to simplify things, but this is a complicated issue. The LUBA case is relevant. The District's counsel has indicated that the Swalley case, with facts that are different, has answered the questions in this case. It cannot. The Swalley case turned ugly on a determination of the scope of the easement; it turned on elements of State law as to what constituted the scope of an easement, and limitations on increasing the burden on property owners. The Swalley pipe at its maximum is 4'8" in diameter. Here, we are 3 talking about a 9' diameter pipe with far greater impacts. The land owners have property rights, and at this point the District has not proven that what they are doing is within the scope of their easement. The District has provided copies of correspondence between the County and the Road Department regarding the excavation under Old Deschutes Road. The County said they were not going to take COID's word for its right to excavate — they wanted a title report first. You cannot partition off an easement — the County did not want to have to judge the scope of the easement. In this case, the District would be required to have some proof that it is allowed as a matter of property law to do what it is doing, and that it is within the scope of the easement. This is a complex issue, and there are players who are not in this room who should be consulted such as the City of Bend and owners within the City. The map of the Swalley Irrigation District includes the Elkins property — he has put water into the stream for years and is the largest owner. Tony Aceti said he has no irrigation rights with COID and is not affected by this decision strictly, but it is a County wide irrigation permit. You pay for rights when you buy a piece of property with water rights. When the Swalley case came along, he felt like he had the right to make a choice — use the water in a negative fashion, or lease it which is beneficial to the environment. He would like to know where the water is going that he is paying for. Thomas Casey testified (see written testimony). He wonders what is wrong with the applicant going through a conditional use process. It is a land use and design issue. Edward Elkins testified as the largest user in the Swalley District. In 2006 a majority of Swalley users voted for piping. The cost was far higher than originally quoted. We keep water flow on the ranch so no one will be starved for water; we started seeing trees die due to lack of water after about seven years. We used to put about 100 acres a year back into the stream, but now there is no leasing. Swalley is not going to pipe any more, and as lands come into the Urban Area Reserve and Urban Growth Boundary, their rights go before COID's. If this section of 4500 feet of piping was to be located after the hydro plant, would COID be putting in pipe? This whole thing is to get head pressure. The hydro for Swalley will not break even until 2032. Piping is great in places, but sometimes it is negative. We need to look at the big picture. Discussion: Chair Brown said this one of the most focused and lengthy issues we have had to deal with. He asked the other Commissioners for their opinions about whether to keep the record open and for how long. Commissioner Turner felt we should close the oral testimony and leave the written record open for a certain period of time. Commissioner Powell said we have had requests for more time for testimony from attorneys and resource people. Could we see if either side would like to make additional comments? Chair Brown wanted to make the decision first. He felt there are two things that need to be addressed — where is the City of Bend in this process? He asked the Department of Reclamation for answers and has not heard back. He asked Laurie Craghead if we have enough information without hearing from the City of Bend. Paul Blikstad said we have contacted the City but have not received a response. Laurie said the Federal Bureau of Reclamation has not indicated a designation for the historic register. We need to decide if this is relevant to the Bend Area General Plan. 4 Commissioner Swisher felt there is so much information that he would favor a longer time frame including another hearing. Laurie added that under a legislative process, there is no requirement for applicant rebuttal. If we want to have a "belts and suspenders" approach, we could provide a rebuttal time for legal arguments without new evidence, such as that allowed under a quasi-judicial process. Commissioner Criss asked whether, if these people's property values are reduced because of the canal, it would be considered a taking under Oregon law? Laurie said she does not believe so but needs to research it further. Commissioner Criss felt we need more time to digest the information. Commissioner Powell feels that what has happened is that this has settled into two different categories — the text amendment and a larger issue beyond it. The issues that Steve Johnson spoke about affect everyone. People are very protective of the canal, but the viability of the District is what protects us all. He has no problem with closing the record and going to deliberations. Motion: Commissioner Criss motioned to close the oral testimony and keep the written record open until April 11 at 5:00 p.m. We would also have one more week for rebuttal. Nick Lelack suggested rebuttal until sometime in May, and is the rebuttal only for the applicant or everyone? Laurie said that in quasi-judicial proceedings, we often have a one- er two week period for anything to eerne in and the following week for then there is a third period for rebuttal by the applicant only and no new evidence. The Commissioners agreed on April 11 for submittals of written testimony; April 18 for submittals of rebuttals by anyone to what was submitted during the first two-week period; and April 25 for rebuttal by the applicant. Seconded by Commissioner Palcic. Motion passed. Liz Dickson said she will be happy to do her rebuttal in writing. IV. PLANNING COMMISSION AND STAFF COMMENTS Nick asked if the Planning Commission would like to review hearings officers' decisions and whether we should have a standing agenda item for this. Commissioner Powell suggested Nick provide a summary in the monthly report. Commissioner Turner agreed. Commissioner Palcic appreciated having more time to absorb the testimony regarding the text amendment, as well as today's tour. Commissioner Swisher also felt these are complex issues and very important, and he appreciates the opportunity to serve on the Commission. V. ADJOURN There being no further business, the meeting was adjourned. 3;xxlv"� Sher Buckner Administrative Secretary The video record of this meeting can be located at: http://deschutes.gran icus.comNiewPublisher.php?view_id=5