Commission approves application
39-lot Three Rivers subdivision partially underwater
A 39-lot subdivision that's more than half underwater was approved by the Jefferson County Board of Commissioners at its first hearing of the new year, Jan. 2.
Delores Stills, represented by her son Lorne, and attorney Lisa Klemp at the hearing, had received a Measure 37 waiver to divide 122 acres of property, located west of the Three Rivers Recreation Area, at Fly Creek, in 2006.
Measure 37, passed in 2004, allowed a longtime property owner to seek compensation, or a waiver, from regulations passed after the owner acquired the property.
That measure was superceded in large part by Measure 49, passed in November, which modified Measure 37 rights, and prevented large subdivisions.
For a holder of a Measure 37 waiver to proceed with a subdivision, Measure 49 relies on a "vesting" process. Since Measure 49 took effect on Dec. 6, most counties -- Jefferson County included -- have not yet determined how much work needs to be done to be considered a sufficient investment.
"This is not an attempt for a subdivision," said Klemp, noting that residences could only be approved through another application process, and the Stills are only seeking to construct or reconstruct a dock on each lot.
However, the Jefferson County Planning Commission decision, which approved the Stills' request, provides conditions for approval of any future structures.
Bobby Brunoe, general manager of natural resources for the Confederated Tribes of Warm Springs, and attorney Ellen Grover, of Karnopp Petersen, of Bend, appealed the planning commission's Nov. 9 decision, which allowed the subdivision.
Brunoe said the tribes' concerns with development in the area included its effects on wildlife, riparian areas, water quality, and cultural sites.
"There's no reason to get a subdivision out there," said Grover. "We're viewing this as one step in a larger process."
"We're here asking you to deny the application today," she said, citing the recently passed Measure 49.
"I think that basically trumps everything else," she said.
If the commission were to approve the Stills' application, Grover said it would have to be based on whether or not their rights under Measure 37 were vested, and that information was never presented.
The property in question is also in a wildlife overlay zone, which limits development under statewide planning goals, she noted.
Attorney Lisa Klemp pointed out that property, which was acquired in the late 1960s when there were no restrictions, is not winter range for deer, and there are "already 26 houseboats using the property."
There are only 47.2 acres above water, Lorne Stills pointed out.
As for residential development, because of the property's slopes and the fact that most of it is under water, she said, "Many of the lots are not available and would never be available because of health and safety issues."
County Attorney Dave Allen suggested that the commission could hold that the burden was on the applicant to prove vesting and deny the application, or they could put off ruling until they determine their vesting requirements.
If the commission approved the application, "I'm having a hard time getting you from A to B to C in a linear way that I could support at LUBA," Allen said, referring to a potential appeal to the Oregon Land Use Board of Appeals.
"No matter what we do," he said, "this is not the final resting place for this application."
The commission unanimously approved the application.