A proposal by the Central Oregon Irrigation District (COID) to pipe 4,500 feet of its Pilot Butte Canal open ditch just outside the northeast boundary of the City of Bend was dealt a setback on March 19, 2014 by a decision of the Oregon Land Use Board of Appeals (LUBA).
In its decision, LUBA found that Deschutes County erred when it determined that the COID piping proposal was allowed without restriction under applicable zoning laws. LUBA found that the County failed to recognize that the COID proposal would in reality be part of an existing COID hydropower facility and that as such, the County was required to evaluate the District’s proposal as a conditional use, with public involvement in a land use proceeding.
At issue was an appeal by Deschutes County residents James and Sheryl Curl of a County planning department certification for a COID loan application that the COID piping was consistent with applicable County land use ordinances. The County’s compliance determination was made without allowing for comment by affected land owners and the public. The District was seeking a loan of $3.25 million from the Oregon Department of Environmental Quality (DEQ) to help fund the piping project. State law requires that state agency actions affecting land use must be certified by local planning jurisdictions for compliance with local land use laws. LUBA’s decision that the County’s certification of compliance was erroneous calls into question DEQ’s decision to approve the loan to the District.
In 2010, COID obtained a permit to construct the Juniper Ridge Phase 1 Hydropower Project. That project is sited on the District’s Pilot Butte canal on Highway 97 just north of the City of Bend’s Juniper Ridge property and is fed by a piped section of canal extending through the City’s Juniper Ridge property. The proposed COID piping project at issue in the challenged County certification, referred to by COID as the Juniper Ridge Hydroelectric Phase 2 Project,would have connected to that existing piping feeding the COID power plant and extended the hydroelectric facility “upstream” in the canal. The Curls live adjacent to the Pilot Butte Canalsegment proposed for piping and are concerned with the impacts of the piping proposal on their property.
LUBA’s decision requires that the COID loan request be recertified for compliance with local land use laws and that such new certificationrecognize that compliance with such land use laws would require approval of COID’s proposal as a hydroelectric facility in a conditional use permit proceeding. As a consequence, COID would be required to apply to the County for approval of its piping project as a hydroelectric facility under a conditional use permit proceeding, which would allow an opportunity for the public and for neighboring property owners over which the Pilot Butte Canal runs to testify about their concerns.
Contacts:
Tom Hignell
541-419-3560
Bruce White
541-610-4380
