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1986-13022-Ordinance No. 86-064 Recorded 7/9/1986S6_11022 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DES VOL 72 PAGE 5 1, An Ordinance Amending Ordi- nance No. PL -15, Deschutes County Zoning Ordinance of 1979, as Amended, Removing the* Wildlife Area Combining (WA) Zone Designation From a 40 Acre Parcel of Real Property *r= Located In Section 5, Township*? 16 South, Range 11 East of The Willamette Meridian, Deschutes County, Oregon, and Declaring an Emergency. ORDINANCE NO. 86-064 WHEREAS, Roland G. Reading proposed the removal of the Wildlife Area Combining (WA) Zone from certain real property; and WHEREAS, notice of hearing was given in accordance with law; and WHEREAS, the Hearings Officer held a hearing on the proposed removal of the Wildlife Area Combining (WA) Zone on March 25, 1986; and WHEREAS, the Hearings Officer recommended that the Wildlife Area Combining (WA) Zone be removed from the subject property by decision dated March 28, 1986; and WHEREAS, the decision of the Hearings Officer has not been appealed to the Deschutes County Planning Commission; now, there- fore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. That Ordinance No. PL -15, Deschutes County Zoning Ordinance of 1979,a s amended, is amended to remove the Wildlife Area Combining (WA) Zone from the parcel of real prop- erty described as : Government Lot Three (3), and the Northeast Quarter of the Southwest Quarter (NE1/4 SW1/4) of Section Five (5), Township Sixteen (16) South, Range Eleven (11) East of the Willamette Meridian, Deschutes County, Oregon; 1 - ORDINANCE NO. 86-064 . VOL 72 PACE5 4 and depicted on the map marked Exhibit "A", attached hereto and by this reference incorporated herein. Section 2. To adopt as the Board of County Commissioners' findings and conclusions the Findings and Decisions of the Hear- ings Officer dated March 28, 1986, relating to Zone Change Appli- cation No. ZC-86-2, marked Exhibit "B", attached hereto and by this reference incorporated herein. Section 3. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this day of , 1986. BOA OCOUNTY COMMISSIONERS OF SCf TTES CQgXTY ,_ OREGON BRISTOW PRANTE, Chair ATTEST: LAURE 'A TLE, Commissioner Resor ing Secretary D MA DL N, Commissioner 2 - ORDINANCE NO. 86-064 O m I CD "I L EXHIBIT "A" See Map 16 11 6 U O O VOL 72 PACE5,� .Qot 48 U A rte"' t00 _ O �o.va V 0 O O ('� 1, 1 -� File Number: Applicant: Request: Planning Staff Representative: Planning Staff Recommendation: EXHIBIT "B" VOL 72 PACE 544 2 Hearings Officer/ �{ Administrative Law Judge Courthouse Annex / Bend, Oregon 97701 / (503) 388-6626 (503) 382-8721 Michael I Dugan DESCHUTES COUNTY HEARINGS OFFICER PUBLIC HEARING, MARCH 25, 1986 FINDINGS AND DECISIONS ZC-86-2 ROLAND G. READING This is an application for a zone change to remove the wildlife area combining zone (WA) from a 40 - acre parcel zoned EFU-20. GEORGE READ None Public Hearing: A public hearing was held in Conference Room A of the Deschutes County Courthouse Annex, Bend, Oregon, on Tuesday, March 25, 1986, at 7:00 p.m. Burden of Proof: In order to receive approval of this request, the applicant must demonstrate conformance with the criteria as contained in Article 10, of PL -15, the Deschutes County Zoning Ordinance. FINDINGS: 1. Location: The subject property is located on the south side of Plainview Road, one-quarter mile west of Highway 20, and is further described as T16S, R11E, Section 5, tax lot 200. 2. Zone: The subject property is currently zoned EFU-20, exclusive farm use, and WA, wildlife area combining zone. 3. Comprehensive Plan Designation: The subject property is cur- rently designated as agricultural on the comprehensive plan with a wildlife area sensitivity designation. Findings and Decisions Page 1 rVOL 72 PAu 54 .,fir 4. Site Description: The subject property consists of 40 acres which is generally level and has access off of Plainview Road. The subject property is located on the northerly boundary of the Tumalo Winter Deer Range. 5. Proposed Use: The applicant to divide the parcel into two 20 So long as the WA, wildlife area cannot be divided into parcels removing this property from the could be partitioned into two 20 intends on applying for a partition acre parcels for agricultural use. combining zone exists, the property less than 40 acres in size. By wildlife area combining zone, it acre parcels. DISCUSSION: The applicant has submitted a burden of proof statement and a response to the staff report. Conformance with the Applicable Criteria: Article X of PL -15 pro- vides that in order for the property to be re -zoned, the applicant must establish that the public interest is best served by re -zoning the property. Factors to be considered by the Hearings Officer are: (1) That the change conforms with the comprehen- sive plan and the change is consistent with the plan's introductory statement and goals. The applicant is the owner of tax lot 1315, map 16-11. The property lies just west of the Sisters -Bend Highway, approximately two and one half miles from Cloverdale Road intersection. The applicant originally owned two 40 acre parcels, both of which were zoned EFU- 20. The easterly parcel, now described as tax lot 1315, was desig- nated as part of the wildlife combining zone for the Tumalo Winter Deer Range. The westerly parcel was not included in the wildlife overlay. At the time the deer winter range maps were being pre- pared, there was one tax lot for the entire 80 acre parcel that would have been described as tax lot 1315, map 16-11. The applicant has received statements from the Deschutes County Tax Collector which do show a single tax lot, account no. 16-11-1315, in the name of Roland G. Reading. These are the tax accounts as they would have existed on or about June 1, 1977, at the time of the drafting of the original Tumalo Winter Deer Range maps. The actual acreage of the property is 97.64 acres. The property included two government tax lots, generally referred to as goverment lots 4 and 5. Section 3.040 of PL -15 is the applicable section of the ordinance to deter- mine where zone boundaries are to occur. The applicant has argued that there was a mistake in dividing the tax lot in two and deline- ating the wildlife overlay zone. The section previously cited states: "Whenever uncertainty exists as to the boundary of a zone as shown on the zoning map or amendment thereto, the following rule shall apply: 2. Where a boundary line follows or approximately coincides with the section line or division line, Findings and Decisions Page 2 voL 72 PAcE 546 lot or property ownership line, it shall be construed as following such line." The applicant's position is that the wildlife overlay zone should have followed the property ownership line which would have excluded the entire 97.64 acres of Roland Reading from the wildlife overlay zone. If the original maps had followed the property ownership line of Roland Reading, it would have excluded this entire parcel. This would be consistent with the applicant's interpretation of the maps contained in the resource element of the Deschutes County Comprehen- sive Plan. The Staff Report has made reference to Section 3.040 of PL -15, and states that the zone boundaries are lot lines. However, lots as defined in the ordinance refer to a unit of land created by a sub- division of land. The applicant contends that his property is not a lot created by subdivision. Therefore, the reference to property ownership line should have been followed in accordance with Section 3.040 (2) of PL -15. The applicant initially purchased two separate parcels of ground. -The first purchase occurred June 23, 1967, and the second purchase occurred February 1, 1968. Both of these pur- chases resulted in contiguous ownership of two lots by the same person. This caused the tax assessor's office to combine the two parcels into one tax lot. However, there still existed two distinct deeds for each parcel. The applicant has submitted copies of the contract of sale and warranty deeds. The Comprehensive Plan Resource Element Big Game Senstivity Areas Map indicates that the line for the WA zone does appear to be drawn south of tax lot 1315. By scaling off the map, U.S. Highway 20 does make a slight jog south and east of the Cloverdale intersection. The winter deer range would appear to be drawn just south of the township line between T16S and T15S. As set forth above, the Big Game Sensitive Areas Map of the Deschutes County Comprehensive Plan Resource Element does appear to have been drawn just south of tax lot 1315 when scaled off. This would be consistent with the conver- sations the staff has had with the Oregon Department of Fish and Wildlife in which they say that this is not a particular sensitive area for the wildlife and deer range. Those conversations with the Oregon Department of Fish and Wildlife indicate that this area is not particularly sensitive for wildlife. The fish and wildlife section of the Comprehensive Plan develops goals and policies to protect deer winter ranges. In light of the fact that the Depart- ment of Fish and Wildlife is not particularly concerned with this area, it does not appear to be a significant deer winter range area and does, in fact, support the contention that this change would be consistent with the Comprehensive Plan. (2) That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. The purpose of the WA zone is to protect the Tumalo Deer Winter Range. The removal of this zoning would allow one additional house Findings and Decisions Page 3 VOL 72 PAue 547 to be located on a separate 20 acre parcel. This does not appear to seriously conflict with the intent of the original or proposed zone classification. The underlying zone remains the same. The parcel will remain in exclusive farm use with a 20 acre minimum. The only change is the approval of the wildlife combining zone which does not seriously impact the winter deer range. The applicant has indicated that they will require, by deed restriction, any houses to be located in the northerly one-third of the 20 acre parcels. (3) That changing the zoning will presently serve the public health, safety, and welfare considering the following factors: a. Availability and efficiency of providing necessary public services and facilities. b. Impacts on the surrounding land use will be consistent with the specific goals contained within the Comprehensive Plan. The applicant's burden of proof adequately addresses the availabi- lity and the efficiency of providing public services and facilities. The property is already serviced by an all-weather road which ser- vices other similarly sized parcels in the area. All other public services and facilities are available. The property will continue to be used for agriculatural purposes and will therefore not have an impact on surrounding land use. (4) That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. As previously set forth, the applicant has contended that there was a mistake in the original classification of this property as a wild- life combining zone. By recognizing the interpretation of the pro- perty ownership line as the appropriate delineation for establishing the boundary line of the zone, then a mistake in this case has been made. If the line had corresponded with the property ownership lines, the parcel would have been excluded as it was all in owner- ship of Roland G. Reading on or about June 1, 1977, when the origi- nal Tumalo Deer Range maps were drawn. This would have corresponded with the existing tax lot structure at the time of the sale. The fact that the applicant then received separate deeds to the property substantiated his right to sell the easterly portion of the property which he sold in 1981, but also demonstrates by the tax structure at the time of the sale. CONCLUSIONS: There are conflicting maps regarding the Comprehensive Plan designation on the subject property. There does not appear to be a significant impact on the surrounding land use created by the subject zone change since only one more parcel could be created. The fact that the applicant has demonstrated a mistake in statutory interpretation was made in the zoning of the property lends credibi- Findings and Decisions Page 4 VEL 72 PAGE 548 lity to his request for a zone change. The mistake was in defining the 97 acre parcel as two separate parcels when, in fact, they were considering one tax lot by the tax records. DECISION: Based upon the above findings and conclusion, I find that the applicant has met his burden of proof in requesting this zone change and the Hearings Officer will recommend a zone change to the County Commission with the following condition: (1) That upon division of the 40 acre parcel into two separate 20 acre parcels, the applicant shall provide deed restrictions to prohibit the building of houses on the southerly two-thirds of the lots, and requiring any construction to take place on the northerly one-third of the lots created. THIS DECISION BECOMES FINAL 15 DAYS FROM THE DATE MAILED, UNLESS APPEALED. DATED this o2 6 day of March 1986. MICHAEL T. DUGAN Hearings Officer MTD/mef cc: file BOCC City of Bend Planning Director City of Redmond City Planning Director Deschutes County Planning Director Deschutes County Public Works Department Richard Wright Duane Clark James Powell Ruth Wahl Robert Robinson Stephen Thompson Kenneth Johnson Linda Gross Roland G. Reading Robert S. Lovlien Findings and Decisions Page 5