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1989-03942-Ordinance No. 89-006 Recorded 2/23/1989REVIEWED 89-0_JIS,42 LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DES L� OUNTYII On An Ordinance Amending Ordinance No. PL -11, the Bend Urban Growth * 0095 0650 Boundary Zoning Ordinance, As Amended, Changing the Light Indus- trial Zone Designation to Highway Commercial on a Parcel of Real * X Property Located in Sections 20 and* 21, Township 17 South, Range 12 * '"r E.W.M., Deschutes County, Oregon, and Declaring an Emergency. * -arl ORDINANCE NO. 89-006 WHEREAS, Shopko Stores, Inc. proposed the redesigr� ori of certain property from Light Industrial to Highway Commer.ah.;� and Or WHEREAS, notice of hearing was given in accordance with law; and WHEREAS, the Hearing Officer held a hearing on the zone change on December 20, 1988; and WHEREAS, the Hearings Officer recommended the proposed zone change and redesignation of property by decision dated December 23, 1988; and WHEREAS, the decision of the Hearings Officer has not been appealed; and WHEREAS, the recommended zone change requires an amendment to the Deschutes County Year 2000 Comprehensive Plan to redesig- nate the subject property; and WHEREAS, by Ordinance No. 89-005, the Board of County Commissioners adopted the necessary plan amendment; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. That Ordinance No. PL -11, the Bend Urban Growth Boundary Zoning Ordinance, as amended, is further amended to change the zone designation on the subject property, described in Exhibit "A" and depicted on the map marked Exhibit "B", attached hereto and by this reference incorporated herein, from Light Industrial to Highway Commercial. Section 2. To adopt the Findings and Recommendation of the Hearings Officer, dated December 23, 1988, relating to Zone Change Application ZC-88-6, marked Exhibit "C", attached hereto 1 - ORDINANCE NO. 89-006 141CZ0FILMEC) _t MAR -1 1989 0095 0651 and by this reference incorporated herein, as the findings of the Board of County Commissioners in support of the zone change. 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 i4&OA442 , 1989. BOARD OF COUNTY COMMISSIONERS ATTEST: a"d, - , �C--�X,, Recording Secretary 2 - ORDINANCE NO. 89-006 0095 0552 EXHIBIT A A tract of land located in the Northwest 1, Southwest 1, Section 21, Township 17 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, described as follows: Commencing at the West one-quarter corner of said Section 21, thence along the quarter section line, S 89' 54' 54" E, 389.03 feet; thence continuing S 89' 54' 54" E, 485.00 feet to the westerly right-of-way of the Oregon Trunk Railway; thence along said right-of-way, S 00° 17' 31" W, 579.61 feet; w thence West 134.69 feet to the easterly right-of-way of the Swalley A-1 Lateral Canal; thence West, 12.50 feet, more or less, to the centerline of said canal; thence along said centerline. N 66° 57' 47" W, 232.43 feet; thence S 87° 51' 09" W. 80.06 feet; thence S 620 08' 20" W, 79.17 feet; thence S 290 42' 31" W, 192.17 feet; thence S 22° 20' 26" W, 20.94 feet to the true point of beginning of this description: thence continuing S 220 20' 26" W, 60.89 feet; thence N 67° 39' 34" W, 12.50 feet more or less to the westerly right-of-way said canal; thence N 78' 20' 27" W, 129.89 feet to the easterly right-of-way of the Swaliey Canal; thence S 68° 41' 00" W, 30.00 feet more or less to the centerline of said canal; thence along said centerline N 21' 19' 00" W, 188.34 feet to the West line of said Section 21; thence along the West line of said Section 21, S 000 20' 24" W (Deed S 00° 22' 59" W), 59.37 feet; thence S 240 21' 02" E, 72.56 feet; thence S 111 56' 42" E, 149.47 feet; thence S 64' 47' 07" E, 78.78 feet; thence S 45° 41' 47" E, 71.93 feet; thence S 180 25' 47" E, 71.64 feet; thence S 82' 01' 20" E, 52.75 feet; thence_N 00' 07' 49" W. 291.04 feet to the true point of beginning. In addition, the following tract of land is also included: A tract of land located in the Northwest 1, Southwest 1, Section 21, Township 17 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, described as follows: Commencing at the West one-quarter corner of said Section 21, thence along the quarter section line, S 89' 54' 54" E. 389.03 feet; thence continuing S 89' 54' 54" E, 485.00 feet to the westerly right-of-way of the Oregon Trunk Railway; thence along said right-of-way, S 00' 17' 31" W, 579.61 feet; thence West, 134.69 feet to the easterly right-of-way of the Swalley A-1 Lateral Canal; thence West, 12.50 feet, more or less, to the centerline of said canal; thence along said centerline, N 66' 57' 47" W, 232.43 feet, thence S 81' 51' 09",W, 80.06 feet; thence S 62' 08' 20" W, 79.17 feet to the true point of beginning: thence S 29' 42' 31" W, 192.17 feet; thence S 22'.20' 26" W, 81.83 feet; thence N 67' 39' 34" W, 12.50 feet more or less to the westerly right-of-way of said canal; thence N 78' 20' 27" W, 129.89 feet to the easterly right-of-way of the Swalley Canal; thence 5 68' 41' 00" W. 30.00 feet more or less to the centerline of said canal; thence along said centerline, N 21' 19' 00" W, 231.43 feet; thence N 17' 52' 00" E, 170.11 feet; thence N 64' 17' 00" E, 149.83 feet; thence N 11' 18' 00" E. 155.05 feet; thence N 43' 09' 00" E, 48.60 feet; thence S 46' 51' 00" E, 30.00 feet to the easterly right-of-way of said canal; thence S 00' 07' 49" E, 387.24 feet; thence N 89' 52' 11" E. 103.62 feet to the true point of beginning. - is EXHIBIT "B" 0095 - 0'653 uj >- (-,J Z 0 Uj r - L) D LJ L) Ln V) ul 8 ovoa --4 2 001F 004. u Goa \ I FILE NOS. PA -88-2; ZC-88-6; CU -88-149 R F C FIVE D APPLICANT: Shopko Stores, Inc. ALU 2 7 1988 2800 South Ashland P. 0. Box 19060 Green Bay, WI 54307-9060*^. REQUEST: -Applications for a Plan Amendment and Zone change to change the Plan Designation and Zoning on a parcel from Light Industrial to Highway Commercial and a Conditional Use Permit for a Department Store in a Highway Commercial Zone. m PLANNING STAFF REPRESENTATIVE: BURDEN OF PROOF: The applicant must establish that the proposed application is in conformance with the following sections of the Deschutes County Planning Ordinance: Section .19 of PL -11, the Bend Urban Growth Boundary Zoning Ordinance, Section 29 of PL -11, the Deschutes County Zoning Ordinance, Section 33 of PL -11 and the Bend Area General Plan. PRELIMINARY FINDINGS 1. LOCATION: The subject property is located immediately north of the Bend River Mall adjacent to Highway 97 and Bend River Mall Avenue. - Surrounding land uses. include the Mall, three motels, restaurants, gas stations and other .commercial businesses. 2. ZONE: The subject property is zoned Highway Commercial and Light Industrial. HEARING AND EXHIBITS The hearing was held on the above -referenced application on December 20, 1988. The following exhibits make up the record in this matter: A. Application; B. Preliminary Site Plan; C. Burden of Proof Statement; D. Staff Report; E. DOT Highway Division letter dated December 2, 1988; -1- FINDINGS, DECISION AND RECOMMENDATION 10, 1988; K. Public Works Memorandum; L. Transportation impact analysis; r M. Memorandum regarding meeting of architects and City and County officials; N. Photographs of a Shopko store FINDINGS OF FACT 1. The applicant is proposing' to rezone a small portion of an existing parcel from. Light Industrial to Highway Commercial. The applicant is proposing to relocate an existing irrigation canal; the zoning on the west side of the canal is Highway Commercial and the zoning on the east side of the canal is Light Industrial. The proposed relocation of the canal will allow the zone on the west to remain Highway Commercial. The area to be rezoned is approximately one acre in size. 2. The applicant is proposing to locate a large department store, with other smaller retail businesses, on the subject site. A department store is listed as a Conditional Use in the Highway Commercial Zone. A Site Plan application has been submitted in conjunction with the Plan Amendment/Zone Change and Conditional Use applications. In addition, a Temporary Use Permit (TU -88-42t has been approved for the beginning of excavation of the site. 3. Standards for Zone Change. The Burden of Proof is upon the one seeking change. The degree of that burden increases proportionately with the degree of impact of the change which is sought. The applicant shall in all cases establish: a. Conformance with the Comprehensive Plan. b. Conformance with all applicable statutes. C. Conformance with Statewide Planning Goals wherever they are determined to be applicable. d. That there is a public need for a change of the kind in question. e. That the need will be best served by changing the classification of the particular piece of property in question as compared with other available property . "Available Property" is definited in Procedural Ordinance PL -9. -2- FINDINGS, DECISION AND RECOM14ENDATION -3- FINDINGS, DECISION AND RECOMMENDATION ''o 095 4p rilah. � 0 "W, tb we.y k a by .} `ww'+,'..a S;. 1 iy � ys rt,.,;A �ry. .i .. • tiN .., :+. �.a. ,vn � �"`S•FjHr .h ' CM ( k s o - The Bend 'Area General Plan was adopted to guide development in the Bend Urban Area. The Plan included a map designating zones throughout the Urban Area, including commercial, industrial and residential, as well as schools, parks and areas of special consideration, such as significant natural features. The Plan and implementing Zoning Ordinance . utilizied natural barriers in cerfain instances for designating zones and drawing lines between those zones. In this particular instance the irrigation canal was used as a natural barrier for differentiating between two zones, Highway Commercial and Light Industrial. The Light Industrial area continues on to the railroad tracks to the east, and beyond to the Bend Industrial Park to the east of the tracks. -- Much of this Light Industrial zoned land is still vacant. Utilizing one acre of Light Industrial land for commercial development adjacent to a canal that is to be relocated is in conformance with the Plan. 4. The intent of the Highway Commercial zone is designated as follows: Purpose. This zone is intended to provide for those uses which have large site requirements, or are oriented to highway access, or provide service to the traveling public, or. are dependent on thoroughfare travel. In addition, Highway Commercial zones can include limited commercial uses and commercial recreation facilities. -. The proposed development of thi site for a large department store and satelite shops is a ute that requires a large site and highway access. The site will draw many patrons on any given day and direct access to an arterial such as Highway 97 will allow the public to enter and exist the site on a consistent basis. , The site currently has some development constraints, such as the existing rock outcropping and irrigation canal, which the applicant intends to rectify. The subject property appears to be suited for a large development of this type. 5. The Bend Area General Plan and implementing Zoning Ordinance were adopted according to State Law requirements and are acknowledged by LCDC. All applicable statutes are met and will be met by the proposed Plan Amendment/Zone Change. The Bend Area General Plan and implementing Zoning Ordinance were acknowledged by the Land Conservation and Development Commission and are the overall guiding documents for land use planning for the Bend Urban Area. The specific Statewide Planning Goals that may apply appear to be Citizen Involvement, Land Use Planning, and Urbanization. The County has adopted a Zoning Ordinance and Procedures Ordinance to establish uses allowed and procedures to be followed for all land use actions. The procedures include -3- FINDINGS, DECISION AND RECOMMENDATION 6. The applicant has stated that the proposed development must utilize an area larger than the existing property, thus requiring a relocation of the existing irrigation canal. The applicant also must excavate the subject site, as it is very large rock outcropping lying several feet above the highway. The need for the canal relocation and consequent zone change stem from the size of the proposed development. The developer apparently requires more space to allow for the size of the proposed store and parking. The site appears to be one of the only remaining larger Highway Commercial.sites for this type of development in the Bend area and is also adjacent to the Bend City Limits. 7. The need for the proposed zone change is necessitated by the size of the development. The developer has submitted a Site Plan showing the layout of the proposed store and satelite shops, with two pads for restaurant or other commercial uses. The canal relocation ill be a large and involved operation requiring. the expenditure of funds not normally associated with developments in_general. It appears the Irrigation District and Watermaster's Office will approve the relocation ifNcertain conditions are met. The proposed development will be best served by the zone change from Light Industrial to Highway Commercial for the approximately one -acre portion of property that will extend from the west boundary of the existing canal to the west boundary of the relocated canal. This Light Industrial zoned property currently has inadequate access for development and this zone change should not adversely affect its potential for future development. 8. The applicant's market studies have -indicated a need for additional retail shopping in the Bend Urban Area. This particular site is well located and appropriately zoned for the site. This need can be served by change in classification of a particular piece of property in question. It will allow for a location of the property that minimizes the impact on the North Highway 97, it provides adequate access for both commercial deliveries as well as customers and it allows the -4- FINDINGS, DECISION AND RECOMMENDATION A 09 57, notice to all adjoining property ,owners and legal notice in the local paper for all actions subject to a public hearing. A sign must also be posted on the subject property indicating notice of a proposed land use action. These requirements allow for citizen involvement in all land use planning actions. The Zoning established for the subject . property was established through a similar procedures and the development of this parcel for a dbmmercial use allows for continued urbanization of the Bend Urban Area. 6. The applicant has stated that the proposed development must utilize an area larger than the existing property, thus requiring a relocation of the existing irrigation canal. The applicant also must excavate the subject site, as it is very large rock outcropping lying several feet above the highway. The need for the canal relocation and consequent zone change stem from the size of the proposed development. The developer apparently requires more space to allow for the size of the proposed store and parking. The site appears to be one of the only remaining larger Highway Commercial.sites for this type of development in the Bend area and is also adjacent to the Bend City Limits. 7. The need for the proposed zone change is necessitated by the size of the development. The developer has submitted a Site Plan showing the layout of the proposed store and satelite shops, with two pads for restaurant or other commercial uses. The canal relocation ill be a large and involved operation requiring. the expenditure of funds not normally associated with developments in_general. It appears the Irrigation District and Watermaster's Office will approve the relocation ifNcertain conditions are met. The proposed development will be best served by the zone change from Light Industrial to Highway Commercial for the approximately one -acre portion of property that will extend from the west boundary of the existing canal to the west boundary of the relocated canal. This Light Industrial zoned property currently has inadequate access for development and this zone change should not adversely affect its potential for future development. 8. The applicant's market studies have -indicated a need for additional retail shopping in the Bend Urban Area. This particular site is well located and appropriately zoned for the site. This need can be served by change in classification of a particular piece of property in question. It will allow for a location of the property that minimizes the impact on the North Highway 97, it provides adequate access for both commercial deliveries as well as customers and it allows the -4- FINDINGS, DECISION AND RECOMMENDATION 9. 10 )per to retaine' 'bufferfoatrips ,around - the development along Bend River Mall Avenue`and North Highway 97. A review of the request demonstrates that the applicant has attempted to square off its property ownership allowing better utilization of the land. This change will'also be of benefit to the light industrial property to the east. The use of the particular piece of propelty that is being rezoned would be severely limited based upon its location in relation to the canal itself. The relocated canal will allow the property to be better -utilized by squaring up the boundaries. This also benefits the light industrial property to the east. Assuming the Plan Amendment and Zone Change are approved, the applicant is also seeking a Conditional Use Permit for a department store in a Highway Commercial Zone. The general Conditional Use Permit criteria are set forth in Section 29 (3) of PL -11. The general criteria are: a. That the location, size, design and operation characteristics of the proposed use are such that it will have minimal adverse impact on the property I value, liveability and permissible development of the surrounding area. The surrounding property development is generally commercial in nature. The properties to Me south are the Bend River Mall Shopping Center, the properties to the east are owned by the applicant and will be developed for industrial uses. The property along the Dalles-California Highway 97 is also Highway Commercial oriented towards the traveling public or relying on highway access. The development should not have any impact on either property values or permissible development of the surrounding area. 11. The size of -the store and shops should be consistent with the existing Bend River Mall development and also the other commercial uses in the vicinity. The development will create additional traffic in the area and it appears a new stoplight will be required to accommodate the traffic flow for the site. There is permissible development that may occur in the future should not be adversely affected by this development. The zoning in the vicinity is either Highway Commercial or Light Industrial, and the proposed shopping center fits the character of the area. -5- FINDINGS, DECISION AND RECOMMENDATION 13. The existing streets appear to be adquale to accommodate the development. - Highway 97 is a f our lane arterial serving the Bend area and beyond and Bend River Mall Avenue serves only the Mall, and an existing antique shop next to the Mall. Any improvements to Highway .97 ,or Bend River Mall Avenue required by the State Highway Division or County Public Works -Department must be completed by the applicant.'" The applicant will be required to dedicate right-of-way in the rear portion of the property for a frontage road. The size and location of the right-of-way will be determined by the State Highway Division and County Public Works. 14. The Site Plan submitted by the applicant is not complete at this point .with regard to a detailed grading plan or landscape plan. The applicant intends to lower the existing mound of rock outcropping and fill in the lower areas to establish building sites, parking areas, accessways, and proper drainage for the parking areas. There has been much concern expressed over the maintenance of the large Ponderosa Pine `'. trees located near the existin antique shop (Old Homestead) and the irrigation canal. , There has also been concern -expessed over the preservation of the natural landscape along Highway 97 at the f ront of this property. These details must be worked out in order for Site Plan approval to be obtained. .It appears 4that with an agreement for preservation ad landscaping, the proposed development will have an aesthetically pleasing environment that will be consistent with the given setting. 15. There are -no other zones within the Bend Urban Area that allow a development of this type. The Highway Commercial Zone is intended for uses which require large sites and are oriented to highway access and thoroughfare travel. 16. This traffic will necessitate the installation of a new stoplight in this area, to facilitate ingress and egress for the development. This will have some effect on the movement of vehicles through the North Highway 97 corridor. The Planning Division believes that the proposed development should not have an adverse impact or interfer with uses permitted outright in the Highway Commercial Zone. It will bring increased traffic to the area, but it should also create additional patrons to other businesses in the area, such as the mall, restaurants and gas stations. This should -6- FINDINGS, DECISION AND RECOMMENDATION . 1 12. oThere may' be some +adverse impact- ,on the liveability .of "somep� adjoining ''residences to the north. >These residences are located within the commercially zoned ._property. The applicant will be required to screen the development from those uses to the greatest extent possible in the Site Plan process. 13. The existing streets appear to be adquale to accommodate the development. - Highway 97 is a f our lane arterial serving the Bend area and beyond and Bend River Mall Avenue serves only the Mall, and an existing antique shop next to the Mall. Any improvements to Highway .97 ,or Bend River Mall Avenue required by the State Highway Division or County Public Works -Department must be completed by the applicant.'" The applicant will be required to dedicate right-of-way in the rear portion of the property for a frontage road. The size and location of the right-of-way will be determined by the State Highway Division and County Public Works. 14. The Site Plan submitted by the applicant is not complete at this point .with regard to a detailed grading plan or landscape plan. The applicant intends to lower the existing mound of rock outcropping and fill in the lower areas to establish building sites, parking areas, accessways, and proper drainage for the parking areas. There has been much concern expressed over the maintenance of the large Ponderosa Pine `'. trees located near the existin antique shop (Old Homestead) and the irrigation canal. , There has also been concern -expessed over the preservation of the natural landscape along Highway 97 at the f ront of this property. These details must be worked out in order for Site Plan approval to be obtained. .It appears 4that with an agreement for preservation ad landscaping, the proposed development will have an aesthetically pleasing environment that will be consistent with the given setting. 15. There are -no other zones within the Bend Urban Area that allow a development of this type. The Highway Commercial Zone is intended for uses which require large sites and are oriented to highway access and thoroughfare travel. 16. This traffic will necessitate the installation of a new stoplight in this area, to facilitate ingress and egress for the development. This will have some effect on the movement of vehicles through the North Highway 97 corridor. The Planning Division believes that the proposed development should not have an adverse impact or interfer with uses permitted outright in the Highway Commercial Zone. It will bring increased traffic to the area, but it should also create additional patrons to other businesses in the area, such as the mall, restaurants and gas stations. This should -6- FINDINGS, DECISION AND RECOMMENDATION . 0095 0660 support -the the'other�"usinesses, buto`what'extent Tis unclear. _ 17. 'At 'the hearing, it was indicated that a number of issues can be deferred until the pipeline is sent back for hearing. These include the issues of a traffic light, expansion of Bend River Mall Drive, landscaping, parking 'and other related issues. The Hearings Officer finds that under those circumstances it appropriate to delfer many of the recommended conditions until the Site Plan process is initiated and use that procedure for review of those conditions. 18. At the hearing concern was also expressed by neighbors to the north .+of the development as to the ,delivery of their irrigation water. -'' The applicant -indicated that ' it had been working with the Swalley Irrigation District to insure relocation of irrigation laterals and insure that those residents will receive water in a manner equal to or better than their current delivery system. This concern will be addressed as a condition for the Conditional Use Permit. CONCLUSIONS BASED UPON the above -Findings z of - Fact, ` the -Hearings Off icer hereby recommends APPROVAL 'of the Zone Change and Plan Amendment to the Board of Commissioners and hereby APPROVES the Conditional Use Permit subject to final approval of the Zone Change and Plan Amendment and the following conditions: 1. - The applicant shall submit a legal description for the proposed canal relocation oto establish a new zoning boundary for the subject property. 2. A Lot Line Adjustment shall be completed for the subject property to consolidate the clew boundary of the canal. 3. The applicant shall meet all requirements of approval of SP -88-75. 4. The applicant shall dedicate right-of-way for a frontage road on the subject property. The amount of right-of- way and its location will be determined by the State Highway Division and the Deschutes County Public Works Department. -7- FINDINGS, DECISION AND RECOMMENDATION A t:The .applicanta,.shall .relocate the irrigat.on,.Aelivery Tk.a systems a for Ythe residents generally ` - north of 'the development. These residents include, but are not _ limited to, Norma Handing, Francis Hauth,".Donald Larson and Lois Carter. The applicant shall be required to coordinate the delivery of irrigation water to properties affected by the relocation of the laterals and the Swalley Canal with the residents and the Swalley Irrigation District... THIS DECISION BECOMES FINAL 10 DAYS FROM THE DATE MAILED, UNLESS ,APPEALED. DATED and MAILED this 23rd day of December, 1988. EDWARD P. FITCH Hearings Officer cc: BOCC Deschutes County Planning Commission Deschutes County Planning Director Norma J. Handing Francis Hauth Donald Larson Lois Carter Robert S. Lovlien Mike Freeman -8- FINDINGS, DECISION AND RECOMMENDATION