Pacificorp v. Deschutes Cnty., LUBA No. 2014-016

PACIFICORP, Petitioner, v. DESCHUTES COUNTY, Respondent,andCENTRAL OREGON IRRIGATION DISTRICT, Intervenor-Respondent.

LUBA No. 2014-016

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

August 1, 2014

FINAL OPINION AND ORDER

Appeal from Deschutes County.

Jeffrey S. Lovinger, Portland, filed the petition for review and argued on behalf of petitioner. With him on the brief was Lovinger Kaufmann LLP.

Laurie E. Craghead, Assistant Legal Counsel, Bend, filed a joint response brief on behalf of respondent.

Elizabeth A. Dickson, Bend, filed a joint response brief and argued on behalf of intervenor-respondent. With her on the brief was Hurley Re, P.C.

HOLSTUN, Board Member; RYAN, Board Chair; BASSHAM, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.

Opinion by Holstun.

NATURE OF THE DECISION

Petitioner appeals a board of county commissioners' declaratory ruling regarding the scope of the county's historical designation for the Cline Falls Power Plant.

REPLY BRIEF

Petitioner moves for permission to file a reply brief. The motion is granted.

MOTIONS TO STRIKE

Respondent and intervenor-respondent move to strike allegations in the petition for review that they claim are not supported by the record. Petitioner also moves to strike allegations in the joint response brief that it contends are not supported by the record. It does not appear that the allegations are material to any of the issues that must be resolved in this appeal. In any event, LUBA disregards any allegations of material fact that are not supported by the record. However, a lack of evidentiary support for arguments and factual allegations in briefs filed with LUBA is not a basis for striking those portions of the brief. Hammack & Associates, Inc. v. Washington County, 16 Or LUBA 75, 78, aff'd 89 Or App 40, 747 P2d 373 (1987).

The motions to strike are denied.

FACTS

Petitioner's predecessor constructed and began operation of Cline Falls Power Plant, a hydroelectric power facility on the Deschutes River, early in the twentieth century. As relevant here, in its final operating configuration, the Cline Falls Power Plant included a dam, a 260-foot long wooden flume, a penstock, a powerhouse, a switchyard and some other associated structures.The central issue in this appeal is whether the penstock includes the wooden flume. Petitioner contends the penstock is limited to the 96-inch diameter metal pipe that conveys the water from the flume down a steep gradient to the powerhouse turbine.¹ Respondent and intervenor-respondent contend the penstock includes both the pipe and the wooden flume.

Intervenor-respondent Central Oregon Irrigation District (COID) owns the property on which Cline Falls Power Plant is located. Petitioner operated the Cline Falls Power Plant for many years, under a lease agreement with COID. The Cline Falls Power Plant is no longer in operation. At the end of the lease, petitioner removed the switchyard located next to the power plant and removed the electric generating equipment from the powerhouse. Petitioner also cut drainage holes in the flume to prevent water from accumulating in the flume and entering the decommissioned powerhouse. Petitioner and COID do not agree on the scope of the facilities petitioner is obligated to remove under the lease. Perhaps as a byproduct of that dispute and other disputes between the parties, COID filed a code enforcement complaint with the county. A memorandum in the record describes that code enforcement action as follows:

"There is a pending code enforcement investigation on this property. The complaint received by Code Enforcement alleges that a switchyard, power poles, and power lines were removed from site without obtaining necessary permits from DeschutesCounty. The complaint further alleges that other changes to the site may have been made without permit." Record 2081.

Cline Falls Power Plant was designated as a significant historic resource under Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) in 1992. The designated site is described in the county's Goal 5 documentation as including the "dam, penstock and powerhouse." Record 1328. That designation is significant here because a permit from the county Historic Landmarks Commission is required to alter a designated historic resource. Petitioner did not seek such a permit before removing the equipment and altering the flume shortly before the lease expired. Petitioner took the position in the code enforcement proceeding that none of the alterations it made to the property were to structures that are included in the historic designation. To resolve that dispute, the community development department sought a declaratory ruling regarding the scope of the Cline Falls Power Plant historic designation. Record 2095-2156. The Historic Landmarks Commission determined that "the entire site of the Cline Falls Power Plant is the protected historic resource * * *." Record 1398.

Petitioner appealed the Historic Landmarks Commission's decision to the board of county commissioners. Record 1428-29. The county commissioners determined that the designated historic resource includes only the "dam, penstock and powerhouse." Record 16. However, the county commissioners also determined "the flume is part of the penstock and, thus, provides a complete historic resource from the dam, through the penstock, and ending with the powerhouse." Record 15. This appeal followed.

FIRST ASSIGNMENT OF ERROR

The community development department sought the disputed declaratory ruling under Deschutes County Code (DCC) Chapter 22.40. DCC 22.40.010(A)(1) authorizes declaratory rulings to interpret the comprehensive plan, where "there is a doubt or dispute as to its meaning or application[.]" The Cline Falls Power Plant historical designation is part of the Deschutes County Comprehensive Plan. DCC 22.40.020(A) limits the persons who may seek a declaratory ruling, and specifically authorizes the planning director to seek declaratory rulings.² DCC 22.24.050 generally places the burden of proof on an applicant: "[t]hroughout all local land use proceedings, the burden of proof rests on the applicant." DCC 22.40.030 makes it clear that where the planning division is the applicant for a declaratory ruling, it has the burden of proof: "[w]here the Planning Division is the applicant, the Planning Division shallbear the same burden that applicants generally bear in pursuing a land use action."³

Petitioner contends the planning division never took the position below that the flume is properly viewed as part of the penstock, and the planning division submitted no evidence in support of that proposition.⁴ Petitioner contends the theory that the penstock includes the wooden flume was advanced to the county commissioners by COID, after a planning division presentation that referred separately to the flume and the penstock. Citing Cushman v. City of Bend, 55 Or LUBA 234 (2007), petitioner contends that the county commissioners erred by relying on the evidence and argument submitted by COID to conclude the penstock includes the wooden flume, because "DCC 22.40.030 explicitly requires the applicant, and only the applicant, to carry the burden of proof." Petition for Review 15 n 8.

DCC 22.40.030 does not require that "the applicant, and only the applicant" carry the burden of proof. Rather, DCC 22.40.030, together with DCC 22.24.050, unremarkably place the burden of proof on the applicant, which is almost always the case in land use proceedings following the Supreme Court's decision in Fasano v. Washington Co. Comm., 264 Or 574, 588, 507 P2d 23 (1973). Neither DCC 22.40.030 nor DCC 22.24.050 preclude parties, other than the applicant, from advancing legal positions or presenting evidencein support of those legal positions. And neither DCC 22.40.030 nor DCC 22.24.050 preclude a declaratory ruling decision maker from adopting those legal positions or relying on such evidence. A decision adopting those legal positions or relying on such evidence is certainly subject to appeal to LUBA for review on the merits. However, a declaratory ruling decision maker's decision to adopt legal positions or rely on evidence that is submitted by non-applicant parties is not inconsistent with DCC 22.40.030 and DCC 22.24.050. Petitioner does not argue that COID should not have been allowed to participate as a party to the declaratory ruling proceeding. Neither does petitioner argue the legal position that COID took before the county commissioners went beyond the question presented in the declaratory ruling, which concerned the scope of the Cline Falls Power Plant historic designation.

Our decision in Cushman does not support a different result. The City of Bend's declaratory ruling procedures in Cushman were very similar to Deschutes County's procedures. Under both procedures standing to "initiate" a declaratory ruling is limited. See n 2; 55 Or LUBA at 240 n 3. In Cushman the applicant homeowners' association did not have standing to initiate a declaratory ruling. When the applicant's standing was challenged in Cushman, the planning director submitted a letter in which he purported to join the application to facilitate a ruling on the disputed legal issue. But the planning director "did not file an application or otherwise participate in the declaratory ruling proceeding." 55 Or LUBA at 238. Moreover, it appeared from the record that the planning director did not agree with the position taken by the applicant in Cushman. Id. at 245. In that somewhat unusual set of circumstances, although we said it was a "close question," we concluded theplanning director's letter was not "sufficient to 'initiate' a declaratory ruling application * * *." Id. at 244.

Unlike Cushman, in the present case the applicant community development department (presumably on the planning director's behalf) had standing under ...