This article was published on: 01/29/15 12:00 AM
Homeowners seek historic designation for stretch of Pilot Butte Canal
By Ted Shorack
Homeowners seeking to designate a 1-mile segment of the Pilot Butte Canal as a historic resource were stalled last month when Deschutes County planners chose to reject their application.
On Wednesday, Deschutes County commissioners held a public hearing to review the decision and took public comments from proponents who remain adamant their application should be considered.
The request pertains to the same stretch that the Central Oregon Irrigation District wishes to enclose and pipe , about 4,500 feet from Northeast 18th Street and Old Deschutes Road upstream to Juniper Ridge, where the district operates a hydropower plant.
The irrigation district has opposed designating the section as a historic resource as it seeks a county code change for the piping project.
Oregon’s land use guidelines include Goal 5, the protection of historic resources, open space and scenic views. Designating the canal as a historic resource based on the goal would potentially throw a wrench in the irrigation district’s plan to pipe the canal.
More than 50 property owners along the 1-mile portion of the canal, which is northeast of Bend city limits, submitted the application for historic designation to the county in November.
The group has opposed proposed changes to the canal and piping, citing safety concerns and a drop in property values.
“This section of the canal was found to have (historical) integrity and significance as far back as 1994,” Jeff Perreault, a former hydrologist and property owner involved in the application, told commissioners Wednesday.
County planners decided in December to reject the application on procedural grounds. The department cited county code and a past decision made by a Deschutes County hearings officer.
Matt Martin, a county planner, told commissioners the decision to reject the application was “unprecedented,” but came down to timing and determining property ownership. A section of the county code says an application for historic designation has to be submitted before “any other application” that might be affected.
The irrigation district submitted an application in December 2013 that would amend the county code and allow the district to pipe the portion of canal. A final decision on that application is expected in late March.
The irrigation district has an easement — a right to cross or use — on the property owned by residents along the canal. The property lines for homeowners on both sides of the canal meet at the center of the waterway.
Property ownership played a role in the rejection. Several homeowners testified Wednesday and objected to the irrigation district being considered a property owner.
Owners of a historic resource can refuse requested designation, according to a state administrative rule.
County planners found that easement holders have an ownership right based on a ruling made by Karen Green, a hearings officer, in a previous land use decision.
Bruce White, an attorney for the homeowners, told commissioners he disagreed with how the county code was interpreted.
“You have to look at the context in order to determine how to interpret that phrase,” White said, about “any other application” in the code and the timing.
He also said it was “totally inappropriate” for the county to conclude the irrigation district was a property owner. White pointed to the assessor having no record of ownership for the irrigation district.
They have “a right of use, they don’t own that property,” he said. “Their right is limited by what is in the easement document itself.
“The district has legal rights,” he said. “That does not make them an owner under easement law … or under most particularly the term ‘property owner’ as used in state law.”
Craig Horrell, district manager for the irrigation district, said the district believes in the historic nature of the canal, which was created in 1904, but that recognition of its significance is being addressed out of order.
“We truly do understand the history that goes along with these 100-year-old canals,” said Horrell.
The irrigation district manages the Pilot Butte Canal and the Central Oregon Canal. Horrell said the district began a process a year ago that studied portions that might be historically important.
“That’s the first step that we have taken, to look at everything that is historic,” Horrell said.
Liz Dickson, an attorney representing the district, countered White’s arguments about ownership. She argued that state law did not apply or conflict with the hearings officer’s past decision about easement holders being considered as property owners.
“As long as you don’t defy the state law (and) you choose to have an interpretation that aids you, then you’re allowed to do that,” said Dickson.
Deschutes County commissioners decided to allow written comments about the decision to be submitted until Feb. 6. The board will reach its own decision sometime after Feb. 13.
— Reporter: 541-617-7820,
tshorack@bendbulletin.com