1991-29753-Minutes for Meeting September 25,1991 Recorded 10/8/1991107,-91
91-29:53 0 174
MINUTES
DESCHUTES COUNTY BOARD OF COMMISSIONEF' r?'�
September 25, 1991
Chairman Maudlin called the meeting to order at 10 a`m:' f Board
members in attendance were Dick Maudlin, Tom Throop, and Nancy Pope
Schlangen. Also present were Bruce White, Assistant Legal Counsel;
George Read, Planning Director; Mike Viegas, Risk Management
Coordinator; and Kevin Harrison, Planner.
1. CONSENT AGENDA
Consent agenda items before the Board were: #1, chair
signature of Revision #3 of the Oregon State Health Division
Grant Award Budget; #2, approval of out-of-state travel
request for Gary Clark of Public Works to attend road
maintenance seminar; #3, chair signature of liquor license
applications for Mountain View Winery and Sully's Italian
Restaurant and liquor license renewals for Deli & More and
Village Bar & Grill; #4, signature of tax refund Order 91-123;
and #5, signature of MP -90-34 creating a 40- and a 60 -acre
parcel in an EFU-40 zone off Dusty Dirt Road for the Hickmans.
THROOP: I'll move approval of the consent agenda items one
through five.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
2. ORDER 91-124 DISBURSING FUNDS FROM PARK ACQUISITION AND
DEVELOPMENT FUND
Before the Board was signature of Order 91-124 directing the
County Treasurer to disburse funds from the park acquisition
and development funds. Bend Metro Park and Recreation
District Board of Directors requested the release of $16,850
from those 8% funds for two separate park development
projects. $6,850 would be used to pay for surveying costs
required as part of the proposed real estate exchange between
Betty Jo Roden and Deschutes County for property in the future
Eastgate Park. The $10,000 would be used as a matching grant
for the installation of over 150 trees in the Hollingshead
Historic Park. The money would be used to provide irrigation
for six acres of park land which would add to the useable
community park inventory.
THROOP: I'll move approval of the expenditure of the 8%
funds for these very meritorious exur�.
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SCHLANGEN: I will second that.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
3. WEEKLY WARRANT VOUCHERS
Before the Board was signature of the weekly bills in the
amount of $445,863.86.
SCHLANGEN: Move approval of upon review.
THROOP: Second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
4. FINDINGS AND DECISION ON MOODY APPLICATION CU -91-57
Before the Board was signature of the Findings and Decision on
Moody application CU -91-57.
THROOP: I'll move signature of both.
SCHLANGEN: I will second that.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
5. REAPPOINTMENTS TO THE WEED ADVISORY BOARD
Before the Board were reappointments of Bob Hagerty, Wayne
Singhose, Gary Nelson and Keith Cyrus to Weed Advisory Board.
SCHLANGEN: Move reappointments of Bob, Wayne, Gary and
Keith.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
6. COUNTY BUILDING AND CONTENT INSURANCE
Before the Board was approval for the renewal of the County
Building and Content Insurance for the 10-1-91 through 9-30-92
time period. The Sedgwick James group, the County's agent of
record, recommended the County go with the Chubb Coverage.
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The County had Great American coverage for 1990-91. The Chubb
coverage included a lower premium of $34,304 with a
$10 million loss limit or an annual premium of $42,691 without
the loss limit while Great American would give no reduction in
premium for the $10 million loss limit.
Chairman Maudlin did not feel that a $10 million limit was
adequate, especially for buildings like the Courthouse and
Public Works which would be more that $10 million for a total
loss situation. Since the insurance reserve was in good
shape, he recommended that the County approve the $42,691.
Commissioner Throop asked whether the approximate $3,500
difference between company rates was worth changing companies.
Chairman Maudlin said yes, he thought it was.
THROOP: I'll move approval of the County Building and
Content Insurance for 10-1-91 through 9-30-92 which
would be a transition to Chubb.
MAUDLIN: I will second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Chairman Maudlin convened the meeting of the Deschutes County 9-1-1
Service District
7. RESOLUTION 91-088 APPROVING INCREASE IN PETTY CASH
Before the Board was signature of Resolution 91-088 increasing
the imprest cash account for handling minor disbursements for
Deschutes County 9-1-1 County Service District and providing
procedures.
THROOP: I'll move approval of the increase in petty cash
fund from $50 to $100.
SCHLANGEN: I will second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Chairman Maudlin reconvened as the Deschutes County Board of
Commissioners
8. NEWBERRY NATIONAL VOLCANIC MONUMENT ADVISORY COUNCIL
Before the Board was selection of a nomination to the U.S.
Forest Service Newberry National Volcanic Monument Advisory
Council. The council would advise the secretary of the U.S.
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Agriculture Department on the agency's preparation of a
management plan for the monument which was dedicated on
June 30, 1991. In addition to the County government, members
of the council would represent the scientific community,
recreation, the timber industry, the geothermal industry,
tourism, fish and wildlife, and the environment.
Commissioner Throop suggested that the Board nominate Brad
Chalfant, the County's property manager. He had indicated
that he was willing to serve.
THROOP: I'll move that we nominate
represent the Deschutes
Commissioners on the Newberry
SCHLANGEN: I'll second that.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
REGIONAL STRATEGIES REPRESENTATIVE
Brad Chalfant to
County Board of
Advisory Council.
Before the Board was the selection of the Board representative
for the third round of the Oregon Economic Development
Regional Strategy program. The Commissioners selected Tom
Throop to be the Board's representative.
PUBLIC HEARING: APPEAL OF FREUND CLUSTER DEVELOPMENT
Before the Board was a public hearing on the appeal of the
Hearings Officer's approval of a 41 -unit cluster development
(CU -91-84) in an F-3 zone near Sisters for Jerry Freund.
Chairman Maudlin asked Board members if they had had any
ex parte contacts. Commissioner Throop said he had had no
ex parte contacts, but that he had attended the public hearing
on this issue before the Hearings Officer. He felt that this
in no way biased him for one side or the other. The other
Board members said they had had no ex parte contacts.
Chairman Maudlin asked if there was anyone who wished to
challenge any member of the Board of Commissioners ability to
hear this matter. There were none.
Kevin Harrison gave the staff report indicating that the
application was for a cluster development and tentative plat
for a 41 -unit development on 622 acres located along Wilt Road
northeast of Sisters. The application was reviewable under
Title 18 of the Deschutes County Code, under Chapter 18.44,
the F-3 Zone; Chapter 18.88, the wildlife area combining zone;
Chapter 18.128, the conditional use section; Title 17 of the
Deschutes County Code, the subdivision and partition
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ordinance; Title 22 of the Deschutes County Code, the uniform
development procedures; and the County Comprehensive Plan.
The property was identified as Tax Lots 100, 200, 300, 400,
and 700 on Assessor's Map #14-10-23 and as Tax Lot 99 on Map
#14-10-26b. This application went before the Hearings Officer
on July 16, 1991. At that hearing staff raised concerns
regarding the applicant's ability to meet the needs criterion
described in the County Comprehensive Plan as well as concerns
regarding the project's impact on the rural character of the
area and the road system in the area. The applicant submitted
information at this hearing to address these concerns. The
Hearings Officer's findings indicated satisfaction of the
criterion question. The Hearings Officer issued an approval
and the staff felt that all relevant criteria were addressed
in that approval and supported the decision of the Hearings
Officer. The appeal before the Board was submitted by Ruth
Twining because of concerns regarding the impact of this
project on the resource values in the area, i.e. groundwater,
wildlife, and forest uses, and the project's impact on the
rural character of the area and the traffic flow. He had
previously given the Board packets of information on this case
and wanted to add two letters of opposition into the record
from Maret Pajutee and Barbara Butler.
Chairman Maudlin asked whether there was any testimony
disputing the testimony from the hearing regarding water.
Kevin Harrison said that in the application materials, the
application included a copy of several well logs from wells in
the area. There was nothing in the information which was
submitted that indicated a problem, and there was nothing that
they received from the Watermaster's office to indicate a
problem. He didn't think there was any information submitted
at the hearing indicating a specific problem, however there
was a general concern about the potential effect of the
project on wells in the area.
Chairman opened the public hearing and asked for testimony
from the proponent.
Bob Lovlien, attorney representing the applicant, testified
that he had not attended the hearing before the Hearings
Officer, but had been working with the applicant on this
matter. His role in this matter was to advise Jerry Freund
and his engineer regarding the criteria for the development of
a cluster development. Both the Comprehensive Plan and the
Deschutes County Zoning Ordinance permit a cluster development
as a conditional use in an F-3 zone. Even in the wildlife
combining zone, cluster developments were discussed as
permitted. The findings and decision of the Hearings Officer
set out clearly what those criteria were, and then she went to
great lengths to give her findings concerning each of those
criteria. They also worked directly with County staff in
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reviewing the criteria so they could get staff input prior to
submitted their plan for review.
Jim Bussard, 15 SW Colorado, Bend, testified that he was a
civil engineer specializing in resort development.
Approximately one year ago, he was contacted by the applicant
and asked to investigate the possibility of designing a
cluster development in the Sisters area. He looked at the
site and felt it had potential. He distributed a map to the
Board which showed the proximity of the subject area. They
spent time on the site trying to get a sense of the winter
deer patterns and whether there would be major conflicts.
Through this pattern analysis, they were able to design a
wildlife protection zone. He submitted several poster maps.
The first was a soils map which indicated a shallow soil
formation of juniper on the west side, there was a ridge
through the middle of the project which had shallow soils
particularly on the "scab flat" which was a very sensitive,
open site. He recommended that this area not be intruded on
because of its sensitive nature and the great cascade view to
the west. On the other side of the ridge, there were deeper
soils and a mixture of ponderosa pine and juniper. The next
map showed the vegetation types indicating a predominant
juniper area on the lower flat and then juniper scattered on
the top of the ridge and surrounding the "scab flat", while to
the east there was a mixture of ponderosa pine and junipers
with bitterbrush underneath. Because of these soil and
vegetation patterns, they designed the development on top of
the ridge surrounding the "scab flat" for protection, left the
juniper forest open area to the west, and preserved the pine
forest to the east for a wildlife refuge (wood lot). They
planned to have a wood lot management program as part of their
County Development Agreement. The Fish and Wildlife
Department recommended that they widen the corridor through
the development which they agreed to do. This design would
put the development on top of the ridge and leave 75% of the
land in open space. They were 150' away from all of the
roads. With the roads and lots, they were utilizing only 15-
20% of the total site. Wilt round ran along the south
boundary of the property and there were a couple of pieces on
the other side of the road left open. They worked with Mid -
state Electric to put the transmission lines back in the trees
and gave them the easement necessary to accomplish that. They
located two access points off from Wilt Road, and they shifted
the location of one road at the request of the Public Works
Department. Wilt Road could easily handle the additional
traffic of 41 home sites. The Sisters area was abundant in
underground water. There was adequate water in wells that he
had seen drilled in Black Butte, Tollgate, and Indian Ford.
There was a shallow well (approximately 37 feet) which was
having trouble, however, they anticipated reliable water at
200 feet. This development would use about 18,000 gallon a
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day for domestic use or 12 gallons a minute on average. The
plan was to provide a tight clustering of units around a paved
road 20 feet wide. It would be a very high quality, second -
home development with 10-20% being primary residential units.
There would be a very low impact on the school system like
there was with Black Butte. Most of the buyers would be over
age 40 with grown children. They had a plan for garbage pick
up and disposal. The CC&Rs would provide guidelines for the
development of each site regarding location and type of
construction permitted. He felt the findings of the staff and
the hearings officer were very comprehensive and the
development would be of a first-class type design.
Commissioner Throop pointed out that although the map Mr.
Bussard was using showed a subdivision to the east of the
subject project, it was an unrecorded subdivision which was
not recognized by the County. Mr. Bussard said that he
thought that one party had purchased and combined several of
the lots and that, physically, there were roads in the area
which gave the appearance of a subdivision. Chairman Maudlin
asked if there had been any construction in that area, and
Mr. Bussard said that was part of the urgency of the power
company which wanted to make a major connection to service the
existing residences in this area before winter. Chairman
Maudlin asked how they would adjust the lots to make room for
a wider wildlife corridor. Mr. Bussard said they would take
one of the lots along the corridor and probably move it to the
end toward Wilt Road.
Bill Reed testified that he was a real estate broker in the
Sisters area. He discussed the needs analysis in accordance
with rural development policy #1. He said that Sisters was a
limited market area and as a real estate broker in that area,
he felt he was qualified to address the current market in that
area, particularly with respect to properties that had been
improved. He understood that if a study were done on the
existing lots within three miles of the proposed development
which indicated approximately 50% or more of the lots had
structures or improvements, then the developer would have met
the needs test requirement. He explained the method he used
to conduct the needs analysis. He highlighted the subject
property on a map of the Sisters area and drew a three mile
radius around the subject property. They obtained information
on all of the existing tax lots in the study area from the
Assessor's office. The Assessor's office printout indicated
whether the parcels had improvement value as of January 1,
1991. They tabulated the amount of improved tax lots against
the total tax lots in the area and came up with a ratio that
was in excess of 50% of the tax lots had improvements. He
felt the number of tax lots with improvements was probably
conservative since there had been substantial construction in
the area since January 1, 1991. Also, the Assessor' records
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showed a number of non -legal parcels which they counted
anyway. They did not include Squaw Creek Canyon Estates in
the analysis because: it did not meet the needs of the area,
it was the oldest subdivision in the Sisters area, but had
less than a 5% build -out indicating it didn't meet the demand
or the needs of the area, their roads were not paved and there
was no regularly scheduled maintenance, the water system was
marginal and much of the subdivision was not currently served
by water, and power did not serve the entire subdivision. He
had evidence that there were only 20 lots currently offered
for sale in the Squaw Creek area and he submitted a letter
written by the developer confirming the needs analysis
completed by Reed Brothers Realty. He also felt it was
relevant to recognize strong market demand. This project
would be on the higher end of the market offering estate -type
homesites with an abundance of common area and open space.
There were currently three similar projects located in the
Sisters area. One was Cascade Meadow Ranch which had a very
high build -out rate. The Rim at Aspen Lakes was approved last
year for 19 homesites, and they were able to market 17 out of
19 homesites within a six-month period. The Ridge at Indian
Ford was the newest cluster -type development and 7 of the 19
lots were either sold or reserved. Based on the success of
these subdivision, he felt it was apparent there was an
extremely high demand for these types of homesites with a
relatively short supply.
Commissioner Throop asked what the result of Mr. Reed's
analysis would have been had he included the Squaw Creek
Canyon Recreational Estates. Mr. Reed said he couldn't give
a percentage because he didn't have the tabulation on the
lots. However, he felt the ratio of improved parcels would be
less than 50% if Squaw Creek Canyon were added, but he
reiterated that it should not be a part of the analysis.
Greg Brown testified representing the Board of Director of the
Sisters/Camp Sherman Rural Fire Protection District. When
they first heard about the development, they contacted the
developer. Their fire department had been interested in the
development of that area since they didn't have any fire
facilities in the area. He was able to reach an agreement
with Mr. Freund that would be beneficial for the fire district
as well as the surrounding property owners. Mr. Freund had
agreed to deed land to the fire district for a fire station
site, had signed an agreement allowing the fire district to
have total use of his water system for their fire fighting
needs. He agreed to work with the fire district regarding
access and egress for fire trucks, road standards for larger
fire equipment, and the CC&Rs. His Board had signed an
agreement with Mr. Freund and supported the development. He
said most development increased the burden on the fire
department while this development lessened their burden,
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0107 1722
because they'll have a fire station site and water. It would
also lower fire insurance rates for everyone in the area.
Commissioner Throop pointed out that the proposed site for the
new fire station would be at the edge of the urban/rural
interface. He asked what kind of urbanizing effect placing a
fire station in this area would have on other rural lands,
i.e. winter deer range, public lands managed for forest
purposes. Mr. Brown said that the siting of a fire station
would not only help the residents, but he didn't feel it would
have a detrimental effect or promote any other type of growth.
They had wanted to have a station in this area for a long
time, and would continue to look for a site whether this
development was approved or not. Commissioner Throop asked
why they were considering placing the station on the edge of
the interface. Mr. Brown didn't feel it was on the edge since
their fire district went to the eastern edge of Squaw Creek
Canyon Estates. This site would put them within five miles of
several developments in the area which were currently the
farthest from their fire station.
Bill Reed said he neglected to mention a couple of things in
his presentation. He referred to a Metzger's map which was
referred to as Exhibit A at the needs analysis. He said there
was a subdivision directly adjacent to the southerly edge of
the property, Junipine Acres which was a series of five acre
parcels which were included in the needs analysis. He wanted
to go back to his statement about adding Squaw Creek Canyon
into the equation. He felt that if the improved parcels
included the new construction since January 1, he wasn't sure
that the developed lots would be less than 50%.
Emil "Bob" Buckser, PO Box 1887, Sisters, testified that he
owned an 80 -acre piece of property adjacent to the subject
property. He wasn't speaking on behalf of the project, but
wasn't speaking in opposition either. He had previously
consolidated 16 five -acre lots into one parcel for the purpose
of forest management, wild life habitat, and a home site for
his family. When he first heard about Mr. Freund's project,
he felt this type of project was not needed, however he
realized that growth was inevitable. So he contacted
Mr. Freund who came to his property, provided him with a map,
and explained what he was planning. Because growth was
inevitable, he felt it was important to plan for the future
and keep a close eye on development. His main concern was the
wildlife, and this concern was addressed by the Hearings
Officer on Page 14, item 17, but he wanted a clarification.
At the previous hearing, he requested and understood that Mr.
Freund had agreed to prohibit off-road vehicles other than on
designated roadways and universally prohibit the discharge of
firearms through the CC&Rs. Putting people in this area was
already a disturbance to the wildlife, so he felt they should
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01.0'7.1'723
be provided with an area where they could be guaranteed they
would not be "hassled." However, it was not spelled out
accurately of the Hearings Officer's decision. He also
expressed concern that ten years from now, they will come back
with a request to develop another 160 acres. He wanted to
know what guarantees there were that there wouldn't be any
further development and that they wouldn't be able to change
the CC&R in the future. He felt the agreements should be
placed somewhere that was enforceable and not amendable.
Commissioner Throop said that when he checked recently with
the Deschutes County court system, no one could remember a
case regarding the enforcement of CC&Rs. This was the only
means of enforcement and was fairly costly process. He also
didn't believe that CC&Rs could be made unamendable. Given
that, he asked Mr. Buckser what standards of certainty he felt
he needed. Mr. Buckser suggested that these conditions be
included on the deed, or that the County pass a law specifying
that homeowners association CC&R would be treated as municipal
law, or the deed could indicate that certain items in the
CC&Rs would have to be followed and were unamendable.
Bob Lovlien testified again stating that within the last year,
his office had filed an action under some CC&Rs relating to a
mobile home, and they were able to enforce the CC&Rs through
Circuit Court. When they developed the CC&Rs in the first
place, they added a provision that the person who violated the
CC&Rs would pay all of the legal costs. It was a very
effective way to enforce the CC&Rs and might be the reason why
there weren't very many cases. He suggested putting the
prohibition to off-road vehicles and firearms in the
Development Agreement with the County which would be recorded
in the deed records and would not be amendable. He suggested
broadening the enforcement provision in the Development
Agreement to include adjoining land owners as a third party
beneficiary of the contract. Bruce White questioned whether
the County's Development Agreement contemplated anything other
than achieving the actual physical developments, but felt that
some of these matters might be made a condition of approval.
Chairman Maudlin opened the hearing for testimony from the
opponents of the development.
Ruth Twining, 70850 Wilt Road, P.O. Box 1017, Sisters, and the
appellant in this case, gave extensive verbal testimony in
opposition to the development (a written copy of which is
attached to these minutes). She reiterated her concern for
the effect this development would have on the wells in the
area. She said it was the shallower, domestic wells that were
going dry, not the big, deep wells being dug for housing
developments and golf courses. She felt it was important that
a water study be completed to make sure that additional
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DId'7 1.724
developments would not adversely affect the existing,
shallower domestic wells. She felt there should be a
moratorium on additional well drilling until the completion of
the study. She relayed a story about a couple of developers
she overheard who indicated that the Community Development
Department would just "rubber stamp" whatever they submitted.
She had been to a number of land use hearings where numerous
citizens gave legitimate and legal testimony, but the
decisions were made in favor of the developer. She hoped
there hadn't been any favoritism toward the developers and
wouldn't be in this case.
Nancy Bolce, PO Box 636, Sisters, testified that she lived in
Snow Cap Vista and was the instigator of the letter that the
Board received with twenty-five signatures on it. She wanted
to emphasize she had no trouble collecting those signatures
since there was a very high-level of concern and knowledge
regarding the proposed development. She had a question about
the fire station which would be built if this development was
approved. She said they had heard about a fire station for a
long time and nothing had ever happened, and she questioned
whether there were resources in place to build the substation.
Chairman Maudlin said he would give her a copy of the letter
from the Sisters/Camp Sherman Rural Fire Protection District
which should answer her questions.
Betty Marquardt, PO Box 1138, Sisters, testified that she
agreed with everything that Mrs. Twining said. She felt the
Commissioners should take into consideration the amount of
traffic presently on Camp Polk Road, and the additional
traffic which would be caused by the future build -out of lots
already platted. Camp Polk Road was already too narrow for
walkers or bike riders to use safely. She felt it should be
improved to allow more room for bikers and walkers when would
help cut down on the traffic. She said the Sisters Chief of
Police agreed there needed to be bike paths in the vicinity of
the school and along Camp Polk Road.
Gordon Petrie, PO Box 1510, Sisters, said he was a member of
the Sisters City Council but was not testifying on their
behalf. He felt that Ms. Twining brought out some of the
impacts rural development had on the City of Sisters which
would be increased as the development progressed. He said
there was presently no legal way for the City to get monetary
mitigation for the impacts from developments in the immediate
Sisters area. He opposed this project because of its impacts
on the City of Sisters and said he would be working with the
Sisters City Council to develop a resolution in opposition to
this development. The additional traffic would affect their
road wear. Police, water for public rest rooms, street
lighting, etc. would be impacted by each new development. He
said this was getting to be a considerable burden on Sisters
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010'7 4725
with a population of 800 serving an area of 15,000 in the
summer. Commissioner Throop said Sisters was encouraging
development inside the urban growth boundary to generated
money to solve some of their problems.
Karen Sergen testified that she and her husband Shell owned
property on 17090 Wilt Road and submitted a letter concerning
water, wildlife, and fire hazard concerns. She agreed with
the idea of developing lots which already existing, i.e. why
not upgrade the Squaw Creek Development so that it would be
more desirable. She was also concerned about the future
occupancy of the cluster development ten or twenty years in
the future. She felt there was no way to guarantee the homes
would continue to be used as "second homes" and have a limited
effect on the surrounding open space, roads and schools.
Tye Redfield, 68860 Goodrich Road, Sisters, testified that
there were a number of examples in the Sisters area like Aspen
Rim where lots went on the market a couple of years ago where
17 of 19 lots sold, two home had been completed and one was
getting their permits. He felt the proposed project was
similar to the Aspen Rim project and he didn't feel that
having two houses build after two years showed a great need
for the second -home market.
Bob Lovlien said he assumed that the Board would not be making
a decision on this issue that day, and he requested an
opportunity to review the testimony and submit comments in
writing to the Board.
Chairman Maudlin closed the public hearing for oral testimony.
He announced that the Board would review the testimony and
make their decision on Wednesday, October 2 at 10 a.m.
Written testimony would be allowed until 5 p.m. on October 1,
1991.
11. CONTINUED PUBLIC HEARING ON ORDINANCES 91-037 AND 91-038
CHANGES TO THE ZONING ORDINANCE RECOMMENDED BY THE PLANNING
COMMISSION AND TO COMPLY WITH STATE STATUE
Before the Board was a continued public hearing on: (1)
Ordinance 91-037 which would amend Title 18, the Deschutes
County Zoning Code, to amend the text to delete Planned
Developments as a conditional use from the F-2 and F-3 Zones;
and (2) Ordinance 91-038 amending Title 18, the Deschutes
County Zoning Code, concerning clarification of standards and
new standards for Bed and Breakfast Inns, Campgrounds, Fair
Housing, Exclusive Farm Use Zones, Nonconforming Uses, Home
Occupations, Fill and Removal, Mini -storage Facilities and
Variances recommended by the Planning Commission or to comply
with state statute.
PAGE 12 MINUTES: 9/25/91
0107 1726
Bruce White said there had been a previous public hearing and
a work session regarding the proposed changes in these
ordinances. The current draft of these ordinances included
changes made by staff and the changes recommended by the Board
at their work session. He went through the changes made on
Ordinance 91-038. If accepted farming practices might affect
a wet land, a conditional use permit would not be required.
They added cemeteries in conjunction with churches and living
history museums as conditional uses to reflect new state
legislation. Bed and Breakfast Inns had to be owner -occupied
and Inns located in Farm or Forest Zones had to utilize
existing dwellings or dwellings which would conform with the
requirements of those zones relating to single family
dwellings. The number of guests at a Bed and Breakfast was
expanded from six to eight and the occupancy limit was changed
to "occupancy shall be limited to not more than 30 consecutive
days." Bed and Breakfast approvals would be conditional upon
compliance with all applicable state building code
requirements and state sanitation requirements. Campgrounds
could not provide hookups except for potable water.
George Read noticed that the old definition of Bed and
Breakfast had been left in this draft of the ordinance and
would need to be changed. He said they attempted to develop
a way to separate different types of fill and removal jobs but
were unable to do so in the time frame allowed, so he
recommended that this issue be delayed until the review of the
Goal 5 resources, landscape management, and fish and wild life
which would be done approximately in December. He said there
was a problem in the Ordinance concerning dust and noise
sensitive uses and felt it was appropriate to deal with it in
this review. Currently in the Surface Mining Impact Area
(SMIA) there were noise sensitive and dust sensitive uses.
Noise sensitive uses were defined as areas which had sleeping
quarters, however dust sensitive uses were defined as
residential uses which by definition included garages.
Therefore, in order to build a garage or work shop in a SMIA
where there was an existing residence, the applicant would
have to go through a surface mining site plan review which had
"ruffled a lot of feathers," and he didn't feel it was
necessary. The Board agreed and asked the staff to come back
with some language.
Chairman Maudlin opened the public hearing for testimony on
Ordinance 91-038.
Frank Conklin, 65013 Camp Polk Road, Sisters, owner of the
Conklin Guest House, asked why "guest house" was listed in the
definitions but was not spoken to in the text. Bruce White
said it was discussed on page three of the ordinance but had
nothing to do with Bed and Breakfasts. Mr. Conklin was
pleased to see the inclusion of state codes regarding
PAGE 13 MINUTES: 9/25/91
0107 1727
sanitation and health. He said the Conklin Guest House was
the Old Barclay Ranch House, and it had six bedrooms, so he
questioned why there was a cap on the number of guest rooms
used. Chairman Maudlin said the wanted to cap raised to eight
because Sunriver was allowed three bedrooms and/or eight
guests. He felt a Bed and Breakfast should be an existing
dwelling that was converted to this use. He didn't want to
allow people to build new buildings with 10-12 bedrooms and
call them Bed and Breakfasts when they were really motels.
Commissioner Throop said the Board had to determine what
appropriate rural uses were as opposed to urban uses. He felt
that three sleeping rooms with eight guests was about as far
as he was willing to go and still keep it a rural use. Any
more he felt would create an urban use which did not belong in
the EFU zone. Bruce White said state statute determined which
uses were allowed in farm zones, and the County could not go
beyond that. State statute did not have a particular
designation for a Bed and Breakfast use in the farm zones but
did have a designation for "home occupation." Therefore, in
order to be an acceptable use in the farm zone, the Bed and
Breakfast had to be at a scale so that it could still be
considered a home occupation.
No one else who wished to testify on Ordinance 91-038.
Chairman Maudlin announced that the decision on Ordinance 91-
038 would be made at the Board's work session on Monday,
September 30, 1991.
Chairman Maudlin asked for a staff report on Ordinance 91-037.
George Read said that no changes had been made in the
ordinance since the previous draft. Chairman Maudlin said he
understood that this ordinance really included only one change
which was to delete Planned Unit Developments as conditional
uses from the F-2 and F-3 zones. George Read said that was
correct. Chairman Maudlin said that in the past, cluster
developments had been taken out of the F-2 zone but left in
the F-3. Staff felt that the Planned Unit Developments could
be more broadly interpreted as to use than the cluster
development, and therefore PUDs should not be allowed in F-2
or F-3 zones. He said that he was in favor of leaving both
cluster developments and PUDs out of the F-2 zone, however he
felt PUDs should be allowed in the F-3 zone as a conditional
use with some restrictions on the commercial uses.
Commissioner Throop said he felt that was "just about what a
cluster development was."
Bruce White said there had been no changes made to the
ordinance since the previous public hearing except the
emergency clause was taken out of one copy and left in on the
other.
PAGE 14 MINUTES: 9/25/91
0107 1728
Chairman Maudlin said there was no commercial development
allowed in a cluster development, and he felt that a
neighborhood store might be a reasonable need near the
development.
Chairman Maudlin opened the public hearing for testimony.
There was no member of the public who wished to testify.
Commissioner Throop said given the choice of retaining PUDs in
some form in an F-3 zone and getting an emergency clause
versus having to wait 90 -days for the ordinance to take effect
and eliminating PUDs, he would rather give up the emergency
clause. He felt strongly that PUDs were not appropriate for
the F-3 zone and that cluster developments were a much better
form of development.
Chairman Maudlin said there were some differences in a PUD
that could be better used than a cluster development. He
suggested allowing more time to see if there were any
alternatives to the way they were defined. He asked if there
were any zones which allowed PUDs. George Read said they were
allowed in the Rural Service Centers, MUA-10, and RR -10 zones
as conditional uses. Commissioner Throop felt those were the
perfect zones for PUDs.
THROOP: I'll move first and second reading by title only of
Ordinance 91-037 declaring the emergency.
MAUDLIN: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: NO
Chairman Maudlin performed the first and second readings of
Ordinance 91-037.
THROOP: I'll move adoption.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: NO
MAUDLIN: NO
Commissioner Schlangen said she would like to discuss allowing
PUDs in the F-3 zone. Chairman Maudlin said he did not want
to allow PUDs, as they were currently defined, in the F-3
zone, because he thought it was too broad. Commissioner
Throop said he totally disagreed, because an F-3 zone was a
resource zone, and a PUD did not belong in that zone. He felt
cluster developments were more appropriate because they
PAGE 15 MINUTES: 9/25/91
0107 1'729
required more open space, more clustering of the facilities,
and allowed fewer other uses. Chairman Maudlin asked what
Black Butte Ranch would be without its commercial development.
Commissioner Throop said it was a destination resort which
allowed commercial uses and would probably become an
incorporated city in the future. Chairman Maudlin said he
thought of PUDs as larger developments and maybe had them
confused with Destination Resorts. Commissioner Throop said
state law allowed Destination Resorts in resource zones but
discouraged others kinds of purely residential development in
resource zones.
Bruce White said the County would have to implement the forest
rule within the next six months. He asked if the forest rule
would allow PUDs or clusters in the forest zones. George Read
said it would not, but that the rule would not be implemented
for four to six months.
Chairman Maudlin asked if this ordinance were adopted, would
it have any affect on any pending land actions. Bruce White
said by law it could not, because the standards that would
have to be applied to the application would be those standards
in effect at the time the application was filed.
Commissioner Schlangen asked what would happen if the Board
did nothing until the forest rule had to be implemented in
about six months. George Read said it was well known that the
rules were changing, and people were considering their options
before those rules were enacted. Therefore, he felt it could
affect some people who had proposals that they wanted "to get
in under the wire" before the rules had to be changed. Bruce
White pointed out that there was, however, no particular
project which this ordinance was attempting to stop.
Commissioner Throop asked for a unanimous consent to
reconsider the vote which defeated the previous motion.
Chairman Maudlin said he would withdraw his objection and
asked for unanimous consent to reconsider the previous vote.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
THROOP: I'll move adoption with the emergency clause.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
PAGE 16 MINUTES: 9/25/91
0107 1730
Chairman Maudlin performed the first and second readings of
Ordinance 91-037.
THROOP: Move adoption.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
DESCHUTE COUNTY BOARD OF COMMISSIONERS
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PAGE 17 MINUTES: 9/25/91
9/z
0101 1'731
Before the Deschutes County Board of Commissioners
Memorandum in Support of Appeal
of Hearings Officer's Decision In
Deschutes County File Nos. CU -91-84 and TP -91-759
Submitted by Ruth Twining
September 25, 1991
The decision of the Hearings Officer in Deschutes County
File Nos. CU -91-84 and TP -91-759 should be reversed for the
following reasons:
I. There is No Demonstrated Public Need for Rural
Residential Development in the Sisters Area
A. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding
there was a public need for the proposed residential
subdivision, as required by Deschutes County Code (DCC) Section
18.128.040(P)(a)(1) and Rural Development Policy #1 of the
Deschutes County Comprehensive Plan. (Reason for Appeal No. 6).
B. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in failing to
stringently review the application for public need before
approval, as required by Rural Development Policy #1 of the
Deschutes County Comprehensive Plan.
Applicable Law
Rural Development Policy # 1 of the Deschutes County
Comprehensive Plan provides:
All future rural development will be stringently
reviewed for public need before approval.
See DCCP, page 36. The Policy further provides:
As a guideline for review if a study of existing lots
within 3 miles of the proposed development indicates
approximately 50 per cent or more of those lots have
not had structures constructed thereon, then the
developer shall submit adequate testimony justifying
additional lots in that area.
Id.
mmorandum
Support o
Nos. CU -91-84-91
File -759 0107 1732
DCC Section 18.128.040(P)(a)(1) authorizes as a conditional
use in the F-3 zone "Cluster Development (Single -Family
Residential Uses Only)" only after consideration of "Need
for residential uses in the immediate area of the proposed
development."
Argument
The Hearings Officer found the "Needs Analysis" prepared
by the applicant satisfied the needs requirement of Rural
Residential Policy No. 1. See Findings and Decision, page
19. This conclusion was incorrect as matter of law. A showing
that 50% of existing lots within three miles of the proposed
development had structures would not satisfy the needs criterion.
Rural Development Policy No. 1, written in unambiguous,
mandatory terms ("will be stringently reviewed") establishes a
showing of public need as a mandatory prerequisite for approval.
The Policy describes "(a)s a guideline," the evidentiary showing
required of the developer in the event 50 % or more of the
existing lots in a 3 mile radius have not had structures
constructed thereon. ORS 197.015(9) provides:
Guidelines shall be advisory and shall not limit state
agencies, cities, counties and special districts to a
single approach.
See Downtown Comm. Assoc. v. City of Portland, 80 Or App 336 340
(1986).
The Policy does not set forth the evidence necessary to
satisfy a showing of public need. It simply recommends an
evidentiary guideline for the developer.
The Hearings Officer also found there was a strong market
demand for residential development in the immediate area, but
observed correctly that market demand does not constitute need.
Id.
In Still v. Marion Countv,42 Or App 115, 600 P2d 433 (1979),
the court of appeals held a market demand for rural residential
development did not constitute the "need" for rural residences
required by Goal 2. Id. at 122. The court held:
Id.
A determination of whether this land is needed for
residences should be made in accordance with Goal #10,
housing, which mandates that local governments should
designate sufficient suitable land within the urban
growth boundary to meet residential needs.
-2-
Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759 0107 1'733
In this matter, the only justification the applicant has
offered for the proposed rural residential development is market
demand.
The applicant has not shown a public need for additional
housing in the area. There are still at least 238 acres
available for residential development within the Sisters urban
growth boundary; 73.5 of these acres are outside the city limits.
See Exhibit A-, Data from City of Sisters regarding land within
UGB.
There are numerous exception areas in the Sisters area,
which contain developable lots. See Exhibit ,. The Urban
Growth Management Study conducted by the Department of Land
Conservation and Development showed there was a 23 year supply of
developable lots in rural Deschutes County exception areas. The
study included all the exception areas near Sisters, as well as
the rest of the county.
The burden is on the applicant to show none of these
exception areas are included in the area.
Even if the county restricted its analysis of need to
whether 50% or more of the lots in a three-mile radius of the
proposed development were developed, it would have to conclude
there was no need for additional rural residential development.
In the "needs analysis" upon which the Hearings officer
relied, the applicant did not include several existing, platted
subdivisions. For example, the applicant did not include the
Aspen Lakes and Squaw Creek Canyon subdivision. There are 125
homesites in the AspenLakes subdivision, none of which have been
built. See Exhibit a , Squaw Creek Canyon Estates Plat Map.
There are 259 existing lots in the Squaw Creek Canyon Estates, of
which only 24 have homes.
Assuming, without conceding, the figures from the "needs
analysis" submitted by the applicant were correct regarding the
other lots in the area, the addition of'the lots in the Aspen
Lake and Squaw Creek Canyon subdivisions raises the total number
of lots to 1,411, of which 542 are developed, leading to a 38.41%
build out of existing lots in the 3 -mile radius surrounding the
proposed site. See Exhibit _1>1 "Exhibit B" from Applicant's July
16, 1991 Needs Analysis with calculations"
Available Lots or Parcels
1,027 - applicant testimony
125 - Aspen Lakes sites
259 - Squaw Creek Canyon
Lots With Improvements
518 - applicant testimony
0 - Aspen Lakes
24 - Squaw Creek Canyon
1,411 - 100% 542 - 38.41 Build -out
Nott; 5ce EXVt Si'v 6 FoR uPDAt6
-3 - 38, z%
Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759 0107 1734
The applicant left out Squaw Creek Canyon because of:
1. Slow build out.
2. Lack of paved roads.
3. Marginal water system.
4. Lack of power serving entire subdivision.
See July 16, 1991 Letter from Bill Reed to Deschutes County
Planning Department. The "needs assessment" does not address the
Aspen Lake subdivision.
An advertisement in the Reed Bros. Realty booklet indicates
there is power and water se ing lots in the Squaw Creek
Subdivision. See Exhibit Reed Bros. Realty, 1991-1992 -
Sisters Area (booklet), with cover sheet describing contents.
There is no reason the services cannot be extended, along with
paved roads if desired by the residents, to the remaining 259
lots.
The applicant also argued that Squaw Creek Canyon Estates
should be left our of the needs analysis because they would not
satisfy the market demand for "high-end". The Reed Bros. Realty
Booklet also shows the availability of high-end homesites in the
area. See id.
More importantly, Rural Development Plan Policy No. 1 does
not distinguish between "high-end" and low end rural residential
areas. The policy requires all rural development to be reviewed
for need, and provides as a guideline all existing lots within
the area. Under Still, the purported market demand for high end
housing cannot satisfy the requirement of public need. Finally,
there is no showing the "high end" market could not be satisfied
by the existing rural residential exception areas or land within
the urban growth boundary.
II. The Applicant Did Not Analyze the Impacts of the
Proposed Development on the Area
A. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding the
proposed conditional use would be consistent with farm and forest
uses, the intent and purposes set forth in the State Forest
Practices Act, the Comprehensive Plan and the DCC, as required by
DCC Section 18.44.040(A). (Reason for Appeal No. 2).
The applicant failed to show and the Hearings Officer failed
to find precisely what sort of development and uses will exist on
the subject property. It was therefore impossible to determine
whether the application would be consistent with farm and forest
uses, the intent and purposes set forth in the State Forest
-4-
Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759
0107 1735
Practices Act, the Comprehensive Plan and the DCC.
Under any scenario, however, it appears the development
would not be consistent with the Fish and Wildlife Policy No.
1 of the Comprehensive Plan, which requires "man's activities"
be limited to 20% of the area. It is also impossible for the
development to be consistent jLith the policy of protecting
wildlife. See Exhibits }' A"
B. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding the
proposed conditional use would not interfere with accepted forest
management practices and farming uses on adjacent land devoted
to farm and forest use, as required by DCC Section 18.44.040(B).
(Reason for Appeal No. 3).
The Hearings Officer found:
There are no farm uses on surrounding properties;
forest uses occur on public lands to the north and to
the east. The retention of more than 75% of the parcel
in open space, the buffering of the homesites, and the
retention of over 200 acres as managed forest land and
200 aces in open space make the development consistent
with forest uses . . . .
Findings and Decision, page 17.
The property directly abutting the subject property at
the southwest corner, in sections 27 and 28, is zoned EFU-80,
see Exhibit 8 , and has traditionally been used for livestock
grazing. The Hearings Officer erred in concluding there were no
adjacent lands devoted to farm use and in failing to determine
whether the proposed development would interfere with that use.
The Hearings Officer also erred in concluding the proposed
development would not interfere with forest management on
adjacent lands devoted to forest use.
The map introduced as Exhibit G indicates US Forest Service
land bordering the north and west boundaries of the property,
zoned F-2. The map also indicates the Nature Conservancy's
Wildhaven Reserve is located in the section directly north of the
proposed development.
Also attached are the following exhibits which indicate the
encroaching density on the Metolius Winter Range in the three
canyon area, and the increasing interruption of migration
corridors leading to: loss of habitat, loss of forage, increase
in poaching, increase in road kill, and other destruction due to
man's increasing intrusion into the winter range:
-5-
Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759
0167 1736
Exhibit A. Letter from Nature Conservancy to Ruth
Twining re: Wildhaven Reserve.
Exhibit P Plat map of Sno-Cap Vista and Junipine
Acres.
Exhibit Co. Plat map of Squaw Creek Canyon Estates.
Exhibit G. Map of Metolius Winter Range with 3 -mile
radius overlay.
Exhibit 1 Letter from Robert Greenstreet to Kevin
Harrison re: statement of heavy deer range
in this area.
Letters from the Sisters Ranger District and ODFW indicated
concern about the interference of the development of the forest
land to the north and west of the property. The Hearings
Officer's decision did not adequately address the concerns raised
in these letters regarding the impact of the development on
the surrounding forest lands. See Findings and Decision, pages
12 and 13 Attached is a letter from the Nature Conservancy,
Exhibit n , which indicates
C. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding the
proposed conditional use would not alter the stability of the
overall land use pattern of the area, as required by DCC Section
18.44.040(C). (Reason for Appeal No. 4).
The Hearings Officer found:
The proposed development is at the edge of an existing
developed area. To the east, development is scattered
with large parcels of property. Applicant's proposal
should not significantly alter the stability of the
overall land use pattern of the area. The project
will contain only 41 single family dwelling sites on a
total project area of 622.2 acres. . Except to the
extent that any development in a predominantly rural
area has an impact, the stability of the overall land
use pattern should not be significantly altered.
Findings and Decision, pages 17 and 18.
The Hearings Officer failed to properly apply this
criterion.
Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759
0107 1737
In Sweeten v. Clackamas County, Or LUBA , slip op. at
14 (LUBA No. 89-024, July 27, 1989), LUBA set forth the procedure
for determining whether a nonfarm dwelling would "materially
alter the stability of the overall land use pattern of the area."
Because Deschutes County has adopted the precise statutory
language for nonfarm dwellings as a criterion for conditional
uses in the F-3 zone, LUBA's interpretation of the nonfarm
dwelling criterion applies. See MCVA v. Washington County, Or
LUBA J. slip op. at 21 (LUBA Nos. 89-027 and 89-028, September
18, 1989).
The three-part test for determining whether a nonfarm
dwelling will "materially alter the stability of the overall land
use pattern of the area" is:
i. First, the county must select an area for
consideration.
ii. Second, the county must examine the types of uses
existing in the selected area.
iii. Third, the county must determine if the proposed
nonfarm dwelling will not materially alter the
stability of the existing uses in the selected
area.
In applying the third step of the inquiry, counties must
analyze whether the proposed dwelling would materially alter
the land use pattern by tipping the balance of resource and
non -resource uses in the area in favor of nonresource uses.
Garden v. Umatilla County, 10 Or LUBA 37, 46-47 (1984). In the
second step, the county must therefore identify the nature of the
existing residences in the area, and determine whether they are
farm or nonfarm dwellings. Sweeten, supra, slip op. at 14. It
is insufficient to simply examine parcel size. Id.
In Blosser v. Yamhill County, _ Or LUBA _, slip op.
at 14-15 (LUBA No. 89-084, October 27, 1989), LUBA held that
the county's findings must address the "cumulative impact" or
"precedential effect" of approving a nonfarm dwelling would have
on the stability of land use pattern of the area where: (1)
there are other similarly situated properties in the area for
which similar applications might be encouraged; or (2) there is a
history in the area of progressive partitioning and development,
and (3) the issue is raised by evidence and testimony in the
record. See slip op. at 14-15.
In this matter, the hearings officer did not conduct the
correct analysis. It was therefore improper to conclude the
proposed development would not materially alter the stability of
the overall land use pattern in the area.
-7-
Memorandum in Support of Appeal ®� 1'738
File Nos. CU -91-84 and TP -91-759
Moreover, there has been a history of progressive C FIG -
It
partitioning and development in this area. See Exhibits --�—
is therefore necessary to address the cumulative effects
on this area should the county continue to approve nonresource
related development in resource zones. The conclusion must
inevitably be the area is being converted from agricultural and
forest use to rural residential, altering the stability of the
overall land use pattern of the area.
D. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not support by
substantial evidence in the record as a whole in concluding
the proposed conditional use would not adversely affect the
rural character of the area, as required by DCC Section
18.128.040(P)(B)(9) and DCC Section 18.88.050. (Reason for Appeal
No. 9).
The applicant failed to meet its burden of proof in showing
the development would not adversely affect the rural character of
the area. The staff observed the increased traffic that would be
caused by the development. See Findings and Decision, page J+W16'
Attached is a further analysis of the negative impacts of the
increased traffic rojections on he rural character of the area.
See Exhibits �, d-, Cl ,tib ,_ ,
The increased traffic is not only consistent with traffic
generated in urban subdivision, it will lead to increased road
kill of wildlife. The development will also adversely affect the
rural character of the area through encroachment on forest lands,
reduction of water supply, and other negative impacts on the
natural resources associated with rural areas.
The applicant did not show that any of the residents of the
proposed development would work or shop in the surrounding rural
area. The assumption is that city people, who will rely on
Sisters and Bend for shopping, schools, services, entertainment,
etc., will simply live in this area. These residents are de
facto extending the Sisters urban area well beyond the urban
growth boundary.
III. The Proposed Development Is Contrary to the
Principles of Orderly Development, Including the
Provision of Services and Protection of Natural
Resources, Embodied in the Deschutes County
Comprehensive Plan and Development Code
A. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding
the subdivision would not create excessive demand on public
facilities and services required to serve the development, as
cm
Memorandum in Support of Appeal ®10 I 1739
File Nos. CU -91-84 and TP -91-759
required by DCC Section 17.16.100(B). (Reason for Appeal No. 11).
The Hearings Officer erred in concluding the proposed
development would not create excess ve demand on public
facilities and services. Exhibit J indicates the increased
traffic which will lead to excessive demand for public roads.
Exhibit &, is articlesfrom the Nugget indicating the problems
of increased demands on the City of Sisters. This subdivision
would increase the demands for road maintenance, sidewalk
maintenance, parks maintenance, traffic control, public library,
etc., within the City of Sisters, that would not be accompanied
by increased property tax revenues since the area is outside the
City's taxing authority.
B. The Hearings Officer misconstrued the applicable law,
made inadequate findings, and made a decision not supported
by substantial evidence in the record as a whole, in either
failing to consider the criteria in DCC Section 18.44.050, or in
concluding the applicant had complied with the criteria in DCC
Section 18.44.050. (Reason for Appeal No. 12).
In Section 4.085(3)(J) of Deschutes County's former zoning
ordinance, PL -15, planned developments and subdivisions were
listed as conditional uses. In addition to the limitations set
forty in 4.085(4), these uses were subject to the limitations on
nonforest residential and recreational use set forth in 4.085(5).
The current version of the code, Title 18, does not list
planned developments and subdivisions among the nonforest
residential and recreational uses in 18.44.030(J) subject to the
limitations in 18.44.050 (equivalent of former 4.085(5)).
According to the legislative history of Title 18, this is
simply an administrative error, and not an intended substantive
change. See Transcript of Board of Commissioners 5/29/91 meeting,_
adopting Ordinance 91-020 as codification of former PL-15.Exki8i'r
The applicant has not, and cannot, show compliance with
Section 18.44.050(A) and (C, as well as the other provisions AND
(H3. "AIDE-IMaAte diuANTily .SNC &A&Aa-ri
C. The Hearings Officer misconstrued the applicable law,
made inadequate findings, and made a decision not supported by
substantial evidence in the record as a whole, in approving the
propopsed project without requiring the project plan to consider
and reflect the effects of drought, as required by Natural
Hazards Policy #4 of the Deschutes County Comprehensive Plan.
(Reason for Appeal No. 13).
The issue of drought was not addressed in either the
appliant's "Burden of Proof" nor in the Hearings Officer's
findings. Exhibit J&, is a series of news articles indicating
the problems of drought and water concerns that have plagued
cm
Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759
0107 1740
this area in the last several years. Exhibit N indicates a well
in Junipine Acres, within 1 miles of the proposed development,
went dry just this week. (Oral testimony will go to location of
wells, draw down rate, etc.).
Title 17(D) also requires the applicant to provide a well
report stating "depth and quality of water available within 1
mile of the proposed developent." The applicant did do this,
SEE EXliigil_,�_
D. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding the
proposed subdivision would contribute to the orderly development
and land use patterns in the area, and provide for the
preservation of natural features and resources, as required by
DCC Section 17.16.100(A). (Reason for Appeal No. 10).
The applicant failed to demonstrate the proposed development
would contribute to the orderly development and land use
patterns in the area. The City of Sisters still has at least,
acres of land available for residential development within its
urban growth boundary. Unlike the land on which the proposed
development is planned, the urban land is planned for city
services, and is taxed to help the city provide those services.
Similary, there are numerous exception areas in this area
for which subdivisions have already been approved and services
planned for. Allowing a subdivision of land designated and zoned
for resource use, before developing the land for which the city
and county have planned development, is contrary to orderly
development and land use patterns planned in the city and
county's comprehensive land use plans. It should not be allowed.
Moreoveg,as discussed above, the proposed development
does not provide for the preservation of natural features and
resources, including forest land, critical wildlife habitat, and
water supply. Though the hearings officer imposed conditions to
help minimize the adverse impacts on wildlife, the conditions do
not preserve the habitat; the only way to preserve the habitat is
to deny the application.
IV. The Applicant Did Not Show the Proposed Development
Would Be Located On Land That Was Either Unproductive
or Unsuitable for Resource Use
A. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding the
proposed conditional use would be permitted on nonproductive
timber lands as required by DCC Section 18.44.040. (Reason for
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Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759
Appeal No. 1).
0107 1741
DCC Section 18.44.040 limits conditional uses to
non-productive timber lands. While it is impossible to argue the
subject property contains the state's finest timber lands, they
do not meet any available definition of non-productive.
The soils map provided by the county indicates the property
is composed of a number of forest soils. Following is a list
of those soils, their estimated percentage of the property, and
area of property on which they are located. (The percentages
are rough estimates based on visual survey of soils map. The
Commissioners should review the maps themselves, for their own
estimates).
372 Wanoga-Fremkle-Rock outcrop (apx. 80%)(NW)
373 Wilt (apx. 10%)(SW)
370 Henkle-Fryrear-Lava Flow (apx.7%)(NE)
369 Laidlaw (apx.3%)(N)
The United States Soil Conservation Service is in the
process of completing a soils survey for Deschutes County.
Drafts of the Forest Soils ratings are 1now available from the
SCS; a copy is attached as Exhibit (2.
The soils ratings provide the following productivity ratings
for the soils at issue for the production of Ponderosa Pine:
Wanoga
50
cu/ft/ac/yr
Fremkle
47
cu/ft/ac/yr
Wilt
85
cu/ft/ac/yr
Henkle
50
cu/ft/ac/yr
Fryrear
47
cu/ft/ac/yr
Lava Flow and Rock Outcrop are, predictably, not rated
as forest soils. According to the attached materials from the
county, on the average, Rock Outcrop comprises 20% of complex
372 and Lava Flow comprises 15% of complex 370. See Exhibit Q.
According to these materials, all the soils associations also
contain from 10 to 15% "contrasting inclusions." For soil
associations 372 and 370, which together comprise approximately
87% of the entire property, the contrasting inclusions are
1 The SCS anticipates submitting a copy of the draft for
review in October. Although there may be changes to the soils
ratings, none are specifically anticipated at this time. This
information was obtained from Ron Myhrum, Soil Survey Project
Leader for the Upper Deschutes Soil Survey, in the SCS Bend
Office.
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Memorandum in Support of Appeal
File Nos. CU -91-84 and TP -91-759 010', 1742
composed of Fryrear, Henkle and Laidlaw soils, which are rated .
47, 50, and 53 cu/ft/ac/yr. See Exhibits 0 and 0 . For
soil association 373, which comprises an additional 10% of
the property, the contrasting inclusions include Fryrear (47),
Holmzie, Clay and Rock (unrated). For soil association Laidlaw,
which comprises approximately 3% of the property, the contrasting
inclusions are Fryrear (47), Wanoga (50) and Rock (unrated).
In the Secondary Lands Pilot Project conducted by the
Land Conservation and Development Commission, soils in Eastern
Oregon capable of producing 20 cu/ft/ac/yr, were identified
"productive." The standard for Western Oregon is 50 cu/ft/ac/yr.
See Exhibit 0 . These productivity thresholds were based on the
standards in the Board of Forestry reforestation regulations.
The reforestation regulations are based on productivity levels
where the Board of Forestry found it reasonable for a property
owner to expect a financial return on reforested lands,
justifying the expense of mandatory reforestation.
Until the mid -19801s, the US Forest Service used the term
"commercial timberland" to describe lands capable of producing at
least 20 cu/ft/ac of industrial wood (including Ponderosa Pine)
annually. Recent resource inventories have dropped the word
"commercial" in the term. Lands capable of producing 20
cu/ft/ac or more of industrial wood annually are now defined as
"timberland." See Exhibit Q.
Because "timber" by definition is commercial wood, the
word "commercial" is redundant when applied to timberland.
"Timberland" is land where wood suitable for industry is grown.
(From conversation with 1000 Friends Staff Forester, Anthony
Boutard).
Page 85 of the Resource Element of the Deschutes County
Plan provides that lands in Classes 4-6 are lands with commercial
productivity potential and lands in Class 7 are nonproductive.
This is the best indication of the Code's meaning of
"unproductive" in section 18.44.040.
The attached table from the Deschutes County National
Forest Soil Resource Inventory, would classify the soils on this
property as follows:
Wanoga 5
Fremkle 6
Wilt 4
Henkle 5
Fryrear 6
Laidlaw 5
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Memorandum in Support of Appeal 0107 1743
File Nos. CU -91-84 and TP -91-759
The soils on the subject property fall within every
available definition of "productive" forest lands. Moreover,
the soils have the equivalent productive capacity of the soils
on section 24, to the east of the property, where logging of
Ponderosa Pine occurred as recently as a year ago. (The section
is composed of primarily of soil associations 370, 369, 373 and
372, which are the same soils that make up approximately 97%
of the subject property. It also has approximately 7% No. 374,
which has a site class of 50 cu/ft/ac/yr, and 2% No. 369, which
is unrated.
The Hearings Officer erred in concluding the development
would be located on nonproductive lands.
B. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by.
substantial evidence in the record as a whole in concluding the
proposed conditional use is situated on land generally unsuitable
for timber production and the production of farm crops and
livestock, as required by DCC Section 18.44.040(D). (Reason for
Appeal No. 5).
The Hearings Officer did not determine whether the property
was suitable for farm crops in livestock.
More importantly, as discussed above, the soils on the
property, though on the low end of the productive range, meet
all available definitions of productive timberland. Under Smith
v. Clackamas County, 103 Or App 370, 375, rev. granted (Dec. 4,
1990), the county must find the entire property, not just where
the development will go, is generally unsuitable for timber
production. The facts simply can not support such a finding.
C. The Hearings Officer misconstrued the applicable law,
made inadequate findings and made a decision not supported by
substantial evidence in the record as a whole in concluding the
cluster development would be located on the least productive
land, as required by DCC Section 18.128.040(P)(B)(4) and DCC
Section 18.88.050. (Reason for Appeal No. 8).
Although it is unclear from the application and the Hearings
Officer's decision exactly where the development will go, it will
comprise at least 153 acres, or 25% of the property. There is
not evidence in the record to show this 153 acres is the least
productive portion of the property.
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