State board rejects challenge to Bend water plan

Land-use appeals board accepts city's funding explanation

BEND, Ore. - The latest round in the legal and land-use fight over Bend's big-ticket water system plans has gone the city's way, with the Oregon Land Use Board of Appeals rejecting claims that the city failed to adequately show where the $100 million to fund the projects will come from.

In a 12-page decision late last week, the board known as LUBA backed the city and dismissed the challenge filed by Central Oregon LandWatch to the city's revised Water Public Facilities Plan.

Gary Firestone, assistant city attorney, said Tuesday that "LUBA accepted the city's funding explanation that showed adequate funding for all projects under current rates."

"The Water Master Plan also provides that projects will be built only when needed, based on actual consumption," Firestone said. "We believe that some of the projects will not have to be built, if per-capita consumption levels continue their current trend."

LUBA said, "We agree with the city that the 2013 Water PFP includes an adequate discussion of the city's existing funding mechanisms and the ability of those mechanisms to fund the projects included in the PFP, as required by" state regulations.

But land-use attorney Paul Dewey still says the city's plan "does not explain what the water fees and SDCs (system development charges, charged to new development) will have to be to pay for all the projects."

"The public needs to know why the city will raise its rates and by how much," Dewey said. "The real loses in this case are the taxpayers, ratepayers and those who will end up having to pay SDCs."

Firestone noted that the appeals board also agreed with the city that the water facilities plan does not include any projects to serve areas outside Bend's existing urban growth boundary.

"Nothing in the water (plan) aims potential future UGB expansion in any particular direction – it is a plan for the existing UGB only," said Firestone.

In its ruling, LUBA said that "absent a developed argument from (LandWatch) that identifies specific projects that will serve areas outside the city's existing UGB, (their) argument … provides no bases for reversal or remand of the (city's) decision."

But Dewey claimed the city had, in response to the group's objections, "declared that though listed in the plan," $70 million worth of projects "oriented to development outside the current UGB … were not part of the plan."

"This is good, because there will then be a level playing field for the various UGB expansion proposals," Dewey said.

Dewey said the group has not yet decided whether to appeal LUBA's decision to the state Land Use Board of Appeals."

As for the still-disputed pipeline upgrade project, Dewey said LandWatch, WaterWatch of Oregon and others filed their objections last week to the proposed, revised Forest Service permit for the city. He said they are now waiting for the Forest Service to respond to those objections.

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