1992-05044-Order No. 92-014 Recorded 2/10/199292-05044
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES
An Order Denying the Petition for
Incorporation of the Proposed City
of Sunriver and Adopting Findings
and Conclusions and Prescribing
and Effective Date.
ORDER NO. 92-014
ma=y ca
WHEREAS, a petition for incorporation of a new City of 9-unriver
has been filed pursuant to ORS Chapter 221; and 0108 1259
WHEREAS, ORS 221.040(2) provides that, upon the filing of a
petition for incorporation, the Deschutes County Board of
Commissioners shall conduct a public hearing upon the merits of the
petition; and
WHEREAS, ORS 197.175(1) makes the Board's consideration of a
petition to incorporate a new city an exercise of County planning and
zoning responsibility; and
WHEREAS, ORS 221.040(2) authorizes the Board to alter the
boundaries of the proposed city to include all territory that may be
benefitted by the formation of the city but must first provide owners
and residents of property within such additional territory notice and
opportunity to present evidence and argument on the applicable
issues; and
WHEREAS, the Board, upon notice duly given, commenced the
required public hearing on the proposed petition on December 10,
1991; and
WHEREAS, the Board, upon making a tentative determination that
additional areas would be benefitted if the proposed city should be
incorporated, caused the required notice to be given to the affected
persons and continued the public hearing to January 7, 1992; and
WHEREAS, the Board closed the oral record after taking testimony
on January 7, 1992, and held the written record open for all
participants through January 14, 1992; and
WHEREAS, the Board has invited and received post -hearing legal
memoranda from participants; and
WHEREAS, the Board has now considered all of the written and
oral testimony and argument submitted concerning the proposed
incorporation; and
WHEREAS, the Board determined that no additional territory would
be benefitted by the proposed city and the petition should be denied;
and
KEYP HED
1 - ORDER NO. 92-014 (2/7/92) t 1CMFILMFC; 19
MAR 0r. "''c.
0108 1260
WHEREAS, the Board announced their tentative decision on the
petition on January 22, 1992, and adopted Resolution 92-003 setting
forth the tentative decision and directing the development of
findings of fact in support of the tentative decision; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY,
OREGON, ORDERS as follows:
Section 1. That the petition for the proposed city of Sunriver
is hereby denied.
Section 2. In support of the decision set forth in Section 1 of
this order, the Board makes the findings and conclusions set for in
Exhibit "A," attached hereto and by this reference incorporated
herein.
Section 3. That this decision shall become effective on
Tuesday, February 11, 1992, the date it shall be mailed to the chief
petitioners and other parties to this proceeding.
DATED this 7th day of February, 19P2.
BOARD OFCOUNTY COMMISSIONERS
OF DE,91dHtTES COUNTY, OREGON
,p gomni ission
2 - ORDER NO. 92-014 (2/7/92)
0108 1262
(2) an analysis of the relationship between those
services and functions and other existing or needed
government services; and
(3) proposed first and third year budgets for the
new city demonstrating its economic feasibility."
Once the petition for incorporation and EFS have been filed, the
county clerk may authorize the circulation of the petition to
gather signatures. Pursuant to ORS 221.040, when the petition for
incorporation has been signed by 20 percent of the electors in the
area proposed to be incorporated, the petition is to be filed with
the county.
ORS 221.040(2) provides that upon the filing of a petition for
incorporation, the county court (in this case, the Board of County
Commissioners) , shall conduct a public hearing after proper notice.
The purpose of the hearing is to permit the county to perform its
duties, which are as follows:
(1) to consider any interested person's oral and written
objections to the granting of the petition, the forming
of the proposed incorporated city or the estimated rate
of taxation set forth in the petition;
(2) to consider the boundaries as set forth in the petition
to determine that all territory which may be benefitted
by being within the boundaries of the proposed
incorporated city was included and to exclude any land
which the Board determined would not be benefitted;
(3 ) for the owners of any land considered by the Board of
County Commissioners to be benefitted to be given notice,
appear and show cause, if any, why the owner's land
should not be included in the proposed city;
(4) to evaluate whether the petition for incorporation and
the EFS comply with the requirements set forth in ORS
Chapter 221; and
(5 ) to consider the likelihood that the proposed city can and
will be able to comply with the Deschutes County Year
2000 Comprehensive Plan and the statewide land use
planning goals as required by ORS 197.175 and 1000
Friends of Oregon v. Wasco County Court, 299 Or 344, 367,
703 P2d 207 (1985).
Upon the final hearing of the petition, the county may
approve, reject, or modify the incorporation proposal. See ORS
221.040(3). Only if the county approves the petition as originally
presented or in altered form does the county order an election
relating to the incorporation of the proposed city.
Review of Petitioners' petition for the incorporation of the
City of Sunriver is governed by the following:
PAGE 2. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1263
1. Statewide Planning Goals 1 through 14 and Oregon
Administrative Rules and court cases interpreting the
Goals and applicable statutes, including 1000 Friends of
Oregon v. Wasco County Court, 299 Or 344, 703 P2d 207
(1985);
2. Oregon Revised Statutes Chapters 197 (Comprehensive Land
Use Planning Coordination), 215 (County Planning), and
221 (Cities); and
3. Deschutes County Year 2000 Comprehensive Plan.
FACTS
Based upon the evidence presented at the public hearings and
in supplemental submissions by interested parties, we make the
following findings of fact:
A. The property proposed for incorporation is located in
Townships 19 and 20, South, Range 11, East, and includes all
of the Sunriver Planned Community. The property is further
described in Exhibit "A" of the applicant's petition for
incorporation ("Petition"), which exhibit is incorporated by
reference herein.
B. The subject property is zoned Planned Community (PC), with
selected areas in the Landscape Management and Airport Height
Combining Zones. The property also is designated Planned
Community by the Deschutes County Comprehensive Plan.
C. The city boundaries proposed by the petition enclose an area
of approximately 3,400 acres. If the city were approved as
proposed by the Petitioners, it would have an initial
permanent resident population of approximately 1,500 people.
Within the city proposed by the petition were, at the time of
December 10, 1991, hearing, 627 resident -owned properties,
3,432 non -resident -owned properties, and 10 commercial/resort
properties, for a total of 4,069 properties, all subject to
the Consolidated Plan of Sunriver.
D. The subject property is located within an acknowledged
exception area documented in the County's Comprehensive Plan
and acknowledged by the LCDC in April 1981. The surrounding
property is bounded on the West, North and East by land owned
by the U.S. Forest Service which is planned and zoned forest
uses (F-2) ; and on the South is zoned F-3, EFU-809, Flood Plan
(FP), and Landscape Management Combining (LM), all of which
are designated Agricultural and Forest Land by the Deschutes
County Comprehensive Plan.
E. The Petition to incorporate the City of Sunriver was filed
with the Deschutes County Clerk and was authorized for
circulation by the Clerk upon the filing of an EFS required by
PAGE 3. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1264
ORS 221.035 on May 16, 1991. The Petition containing 402
electors' signatures was received for filing by the Board of
County Commissioners on October 16, 1991. The Petition:
(1) designated the name for the proposed city as the City of
Sunriver, Oregon;
(2) proposed a tax base of zero and declared the rate of
taxation as zero; and
(3) had attached to the cover sheet a map indicating the
exterior boundaries of the proposed city.
F. The EFS filed with the Petition on May 16, 1991 formed the
basis for the proposed zero tax base and contained:
(1) a description of services and functions to be performed
or provided by, and information regarding, the proposed
city, including:
(a) Financial: zero tax base; all revenues to be
raised from a transient room tax, utility taxes,
state revenue-sharing; municipal borrowing rates.
(b) Political: election of five -member city council
(c) General: administrative public offices located in
the City and the power of eminent domain.
(d) Development of community facilities at some point
in the future, including a community center,
performing arts center, public library,
recreational facilities (e.g., indoor -outdoor pool,
tennis courts, walking paths, golf course), and
other capital improvements.
(e) Land use planning and administration.
(f) Building Code enforcement: permits and inspection.
(g) Public road construction and maintenance and street
lighting.
(2 ) a description of the services now provided to the area by
the Sunriver Owners Association ("SROA"), Sunriver
Utilities Company, Deschutes County and other local
governmental units.
(3 ) a proposed first and a third year budget for the new city
purporting to demonstrate its economic feasibility.
G. After notice which complied with the requirements of ORS
221.040(1) and (2), a public hearing was held on December 10,
1991. At the December 10, 1991 hearing the County invited
testimony from all interested parties, including but not
limited to the proponents and opponents of the Petition for
Incorporation. Witnesses for the Sunriver Incorporation
Committee presented testimony in favor of the Petition.
Witnesses for SROA and others presented oral and written
testimony in opposition to the Petition. Witnesses included
both permanent residents and nonresident owners of property in
Sunriver, and a representative of Central Oregon Recreation
PAGE 4. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1265
Association, one of the major vehicles by which the County has
sought to promote tourism, travel, recreation and economic
development in Central Oregon. A representative of DLCD also
testified to assist the County with respect to the
applicability of the statewide planning goals to the proposed
incorporation of the city. At the close of the December 10,
1991 meeting, the record was held open for the submission of
additional written material until January 14, 1992.
A second hearing was held on January 7, 1992 to receive
additional testimony, evidence, and information regarding the
Deschutes County Planning Division's preliminary
recommendation that three additional areas outside the
proposed boundary be considered for inclusion within the
proposed city. The County also requested the principal
proponents and opponents to respond in writing to a series of
questions concerning, among other things, the
interrelationship between the statewide planning goals and the
incorporation of the city and the city's planning obligations
thereunder. The County also invited the parties to submit
proposed written findings and conclusions of law. Both
proponents and opponents of the Petition for Incorporation
submitted substantial written material to supplement the
record developed on December 10, 1991 and January 7, 1992,
including memoranda addressing the legal issues raised by the
Petition for Incorporation and the factual record before the
County.
H. At staff suggestion, the Board considered including within the
territory for the proposed city's territory three separate
parcels:
(1) the Spring River/Fall River Rural Service Center,
described in County file #PA-89-6/ZC-89-7, decided
2/14/90;
(2) the Pace Estates located between the RSC and the
Deschutes River, south of the proposed city; and
(3) the 600 acres south of the proposed city for which a
proposed new destination resort has preliminary approval
in County files #CU-90-36/CU-90-37/Master Plan 90-1/SP-
91-61/TP-91-751.
GENERAL FINDINGS OF FACT'
I. The area proposed for incorporation by the Petitioners is
already substantially developed as a residential and
' Additional findings of fact are set forth, as appropriate,
within the analysis of specific issues.
PAGE 5. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0168 1266
recreational destination resort, and also consists of an area
known as the Sunriver Business Park.
J. Although some of the area subject to the jurisdiction of SROA
has not yet been fully developed or improved, all of the area
subject to SROA's jurisdiction is subject to the Consolidated
Plan of Sunriver.
K. Not all of the area of the Sunriver Business Park has yet been
developed; there remain several parcels of land that are
undeveloped.
L. Approximately 3,400 acres in total is proposed to be included
within the boundaries of the City of Sunriver. Of this total
acreage, approximately 3,300 acres or 97% is subject to the
Consolidated Plan of Sunriver.
M. The Consolidated Plan of Sunriver substantially restricts the
available types of improvements that may be constructed on
property subject to the Plan. One principal impact of the
Consolidated Plan is to increase substantially the
construction costs for new housing stock (or new commercial
development, to the limited extent such development may be
possible under the Plan) beyond the construction costs for
similar property not subject to the Plan.
N. The only property proposed for incorporation which is not
either already developed or subject to the Consolidated Plan
of Sunriver consists of certain parcels of undeveloped
property in the Sunriver Business Park. The topographical
characteristics and developability of this property are not
ascertainable from the evidence in the record.
0. The feasibility of using the undeveloped area of Sunriver
Business Park as potential inventory for purposes of
compliance with statewide housing and economic goals is not
ascertainable from the evidence in the record.
P. The evidence in the record fails to show that the Sunriver
Owners Association (SROA) can or will provide sewer, water,
and other services to the undeveloped area of the Sunriver
Business Park either unconditionally or that, if such services
are provided, they will be provided without compliance with
the SROA's standard requirement that the properties be
subjected to the private system of covenants and restrictions
known as the Consolidated Plan of Sunriver.
Q. The area proposed for incorporation is already developed with
a substantial transportation system of roads, bike and
pedestrian paths suitable for the current use of the property.
All of that road system, except for approximately three (3)
PAGE 6. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1267
miles (which may or may not be three continuous miles),
however, is privately owned by SROA. The area proposed for
incorporation also contains an airport, which is privately
owned.
R. With the exception of land use planning services, Petitioners
propose, and the Board finds, that the new municipality would
not provide any public facilities or public services
customarily provided by municipalities, including police,
fire, judicial, jail, water, sewer and trash collection.
S. Not all of the areas proposed for incorporation currently
enjoy the same level of services. Most services now provided
to that portion of the property under SROA's jurisdiction are
provided by:
(1) Sunriver Utilities (sewer and water)
(2) SROA (e.g., security, fire, road maintenance and
snow removal, bike path installation and
maintenance, rules promulgation and enforcement,
and architectural control and review)
T. Petitioners have not shown that the services now provided
within the area proposed by the petitioners for incorporation
will continue to be provided with such services by the current
providers after incorporation, or that those services will be
provided without cost to the new city, in the form of
acquisition costs, operating costs, or fees for services.
U. The Petition for Incorporation and the Economic Feasibility
Statement submitted with the petition propose that the new
city would have a tax base of zero, which is to say no tax
base at all. The Economic Feasibility Statement proposes that
substantially all of the city's revenues would be generated
from a hotel/motel tax, which is now collected by Deschutes
County and an estimated $300,000.00 in revenue per year from
collection of utilities franchise tax.
V. The Economic Feasibility Statement projects annual revenues of
$1,127,054 from a transient room tax. Petitioners proposed
that this tax would supplant an existing tax imposed by the
county on all transient lodging facilities in the county, with
the exception of those within incorporated cities. This
projection assumes that the county would not or could not
interpret or amend its ordinance to permit it to collect room
taxes within subsequently incorporated cities or, indeed, all
incorporated cities within the county. That assumption is not
supported by the record. The Board does not find that the
preponderance of the evidence supports a finding that the
city's proposed tax would not be cumulative and therefore
unlikely of enactment in any determinable amount.
PAGE 7. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1268
W. It is unclear whether the new city would have the power to
levy a utilities franchise tax of any significance since
nearly all utilities are located on private roadways, at least
without condemnation of the property over which utility
services are transmitted.
X. Petitioners have allocated no funds for the following services
in the Economic Feasibility Study ("EFS"), either with respect
to the Sunriver Business Park or the area under SROA's
jurisdiction: police, fire, sewer, water, judicial, jail.
Y. Petitioners' economic feasibility statement underestimates by
at least one-half a reasonable estimate for the annual cost of
providing planning services, including plan and code
administration and the preparation, coordination, citizen
participation, adoption, and acknowledgment processes for the
city's new comprehensive land use plan and implementing
regulations.
Z. Petitioners' EFS allocates no funds for condemnation and
acquisition, which is relied upon by Petitioners for assurance
that it will be able to obtain public facilities necessary to
provide certain public services, including sewer, water and
transportation.
COMPLIANCE WITH ORS CHAPTER 221
A. ORS 221.031(2) states the incorporation petition "shall ...
include a proposed tax base sufficient to support an adequate
level of municipal services and a declaration of the rate of
taxation necessary to raise an amount of revenue equal to the
proposed tax base.***" The statute thus requires that a tax
base and rate be proposed in the petition to support an
adequate level of municipal services.
(1) The legislative history of Senate Bill 210 which amended
ORS 221.030 to require the inclusion of both a tax base
and tax rate demonstrates the Oregon legislature's strong
interest in making certain that any new units of
government are fiscally sound. See, Hearings of the
House Committee on Intergovernmental Affairs, February
16, 1989, Tape 19, side A. As part of its effort to
ensure fiscal viability, the legislature conditioned the
incorporation of a city on the simultaneous approval of
the tax base by its voters. ORS 221.040(3)(b) and ORS
221.050(3)(b).
(2) Section 3 of Senate Bill 210 specifically eliminated the
need for a tax base and tax rate in a petition to form a
special district "if no tax revenues are necessary to
support the services and functions described in the
PAGE 8. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1269
economic feasibility statement." See ORS 198.750. No
such exception was created for a petition to incorporate
a city.
(3) While a newly incorporated city may choose not to levy
property taxes against the approved tax base if it has
other sources of sufficient tax revenue, the petition for
incorporation must nonetheless include the tax base and
tax rate required by statute.
B. The Petition does not comply with ORS 221.031(2) in that it
proposes no tax base and no tax rate, a level insufficient
both in law and in fact to support an adequate level of
municipal services.
C. Petitioners' EFS is inadequate in the following respects:
(1) Petitioners have proposed a zero tax base and tax rate,
which is to say no tax base and no tax rate. Ironically,
petitioners initially estimated that a $370,000 tax base
would be required to fund necessary services but dropped
that to zero after discussions with SROA broke down.
(2) Petitioners assert that SROA will continue to administer
all essential functions including police, fire, emergency
medical, road maintenance, management of private
recreational facilities, common properties, etc., and
thus fail to budget for such items, even though SROA
opposes the incorporation and has made no commitment to
provide such services to the city, and the proposed city
would include areas outside of the jurisdiction of SROA.
(3) SROA's safety budget for 1991 is $475,900 and for fire
and EMT services is $526,126, with no allowance for
hiring of additional personnel to service the Sunriver
Business Park Properties or to enforce the additional
ordinances that the petitioners assert the new city would
adopt. If the new city were required to absorb these
costs and provide these services, these sums alone would
eliminate the projected budget surplus of Petitioners.
(4) The EFS proposes to adopt ordinances "to deal effectively
with a multitude of behavioral and other problems
confronting the community" but includes no expense item
for enforcement of these municipal ordinances.
(5) The EFS seriously underestimates the proposed expense for
planning services as $42,000 per year. Based upon the
testimony, which disclosed the many complexities and
uncertainties attendant upon the process of plan and
regulation development, securing approval, and
implementation, a more realistic (though still highly
optimistic) estimate is $70,000 per year, nearly double
that amount.
(6) The EFS underestimates the start up expenses at $10,000
and city attorney expenses at $10,000, when under the
PAGE 9. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 12'70
Petition the new city would immediately adopt and
administer room and utility taxes, negotiate with SROA,
utilities, and other entities to determine if these
entities will provide services to the city, and if not,
take steps to provide these services which could include
condemnation. The EFS fails to include any allowance for
the expense of condemnation.
(7) The EFS erroneously assumes that gasoline tax revenues
are unrestricted funds, contrary to ORS 366.790, which
provides that such funds are restricted. Gas tax funds
may only be expended as authorized in Sections 3 and 3a,
Article IX, Oregon Constitution for the Construction and
Maintenance of Public Roads and Street.
(8) The EFS erroneously projects approximately $300,000/year
in utility taxes on the assumption that the city can levy
a franchise tax on the utilities for their use of the
public rights of way. In fact, little revenue would be
generated because approximately 95% of the roadways where
utilities are located are private roadways that the city
does not propose to condemn.
(9) The EFS fails to address adequately the relationship
between the proposed City of Sunriver and SROA in terms
of the provision of services to the City of Sunriver and
the impact of the Consolidated Plan on the City of
Sunriver's ability to comply with statewide planning
goals.
OTHER BENEFITTED PROPERTY TO BE INCLUDED WITHIN THE BOUNDARIES OF
THE PROPOSED CITY
A. Elsewhere in these Findings and Conclusions, the Board
concludes that the Petition must be disapproved because it
fails to meet the requirements and standards of ORS Chapter
221, ORS Chapter 197, and the Deschutes County Comprehensive
Plan. The Board reads the term "benefitted" as used in ORS
221.040(2) together with ORS 197.175, to mean that it must
appear more likely than not that the proposed city, as so
modified, could or would be likely to comply with the
Deschutes County Plan and all applicable land use goals.
On the current record, the Board finds that the
boundaries as proposed exclude land that would be benefitted
if the petition were otherwise qualified for approval, but
that the addition of such properties would fail, in and of
itself, to cure all of the defects in the underlying proposal.
Even with the modified boundaries, the proposed city
would still be faced with the lack of fiscal soundness and
assurance that would be provided by a realistic and
statutorily required tax base. However, if that and the other
PAGE 10. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 12'71
problems with the underlying proposal were solved, it seems
apparent that the boundaries of any new city at Sunriver
should take in all land which would best be managed by the
same land use authority (as is now the case), which is likely
to be included within the city's new urban growth boundary.
This board has the statutory obligation to assure that
land use planning throughout the county is properly
coordinated. ORS 197.190 provides that
"In addition to its responsibilities under ORS
197.175, each county, through its governing body,
shall be responsible for coordinating all planning
activities affecting land uses within the county,
including planning activities of the county,
cities, special districts and state agencies, to
assure an integrated comprehensive plan for the
entire area of the county."
The new city will have to adopt an urban growth boundary.
The land within that boundary will be "urbanizable" and
"urban," and should logically be administered, serviced, and
regulated by the city, which is the logical provider of urban
services. The city can most effectively provide those
services if the land within its new urban growth boundary is
already within the city, and is not subject to the complexity,
vagaries, and uncertainties of Oregon's constitutional and
statutory mechanisms for annexing unincorporated land to
cities. Both the statewide Urbanization Goal and the
Urbanization chapter of the Deschutes County Year 2000 Plan
call upon the county "To provide for an orderly and efficient
transition from rural to urban lands." The transition is
likely to be much more efficient and orderly when all of the
land subject to such conversion is already within the
jurisdiction of the new city. Inclusion of the subject lands
within an urban growth boundary alone does not render them
"available" for needed economic and residential uses if actual
development of those lands in a timely and efficient manner is
materially hindered or delayed by difficulties of annexation
or service extension resulting from failure to include those
lands at the time of incorporation. The Board therefore finds
that the inclusion of such lands at the time of incorporation,
if otherwise warranted, would benefit those properties.
FINDINGS AND CONCLUSIONS REGARDING COMPLIANCE WITH STATEWIDE GOALS
INTRODUCTION
It is not our position to substitute our judgment for that of
the electorate on the ultimate question of incorporation. It is our
PAGE 11. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1272
statutory obligation, however, to determine whether the Petitioners
have shown a reasonable likelihood that the new city can and will
comply with the statewide goals and guidelines, before any proposed
incorporation can be submitted to the electorate for a vote.
Having reviewed the relevant statutes, applicable goals, and
the guidance provided by Wasco, several background comments are in
order. The meaning of Wasco's "can" and "will" standard was the
subject of much debate in the oral testimony and written submis-
sions by Petitioners' counsel and counsel for SROA in these
proceedings.
In his December 9, 1991 correspondence to us, Petitioners'
counsel quoted appropriate language from Wasco, but then proceeded
to describe the proper level of County review with respect to goal
compliance in a manner suggesting an almost non-existent level of
scrutiny. Although Petitioners acknowledge Wasco's direction that
the County conduct a "meaningful inquiry," Petitioners would
require the County to find compliance with every goal so long as
Petitioners acknowledge the goal's applicability and simply assert
that the new city will comply with it.
Petitioners' approach seems to be greatly influenced by their
assumption that the new city need not adopt a new comprehensive
plan and land use regulations for the city, and that its election
to remain subject to the County's comprehensive plan makes it
"certain that the City of Sunriver will be in compliance with all
statewide goals, since the Deschutes County Comprehensive Plan is
in compliance with all statewide goals." December 9, 1991 letter
from Petitioners' counsel to Board ("Gary Letter"). This is not
correct.
The existing Deschutes County Year 2000 Plan assumes that
Sunriver is not a city and does not have the capabilities,
obligations, and characteristics of a city. While the plan does
not exclude the creation of newly incorporated cities, it clearly
was not intended to continue unchanged as the governing land use
policy for any sucn cities
adoption. The test for t]
document, we believe, is whe
acknowledged by the LCDC
applicable goals insofar as it
that a new city on empty farm
a county plan unchanged. Howe
its existing concentration
facilities, and its plans for
homesites are developed over i
such, it will have the obligat
such cities. The new city of
urban growth boundary, provi
availability of vacant land fc
that might be created after its
to adequacy of the plan as such a
:her that plan, unchanged, would be
s complying, unchanged, with all
applies to the new city. It is true
_and might be able to continue under
ver, it is clear that Sunriver, with
,f homes, stores, and recreational
continued growth as existing vacant
he years, will be an urban city. As
Lons imposed by state land use law on
Sunriver would have to establish an
de urban services, and assure the
r uses determined to be needed under
PAGE 12. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1273
the statewide economic and housing goals, all obligations that the
county plan does not and need not address for an exception area.
Petitioners also assert that "ORS 197.715 requires that if a
city chooses to adopt a separate comprehensive plan, the plan must
be developed within four years but the statute does not mandate
this action [Citing Wasco]." Gary Letter. This is also wrong.
ORS 197.715 clearly requires new cities to adopt comprehensive
plans within four years after the date of incorporation, and those
plans must demonstrate compliance with state land use goals to the
same extent as any other Oregon city's plan. If the city can meet
its obligation by adopting a county plan, then that plan must do
everything that the city's own plan would have done by way of goal
compliance.
In evaluating whether the new city "can" comply with a
particular goal, we have examined the particular requirements that
the goal imposes, whether there is any apparent impediment to
compliance, and if so, whether Petitioners have demonstrated by a
preponderance of the evidence that those obstacles can and will be
overcome.
We make separate findings on each of the goals. The failure
to show a reasonable likelihood that the new city can and will
comply with any one of the goals requires us to deny the Petition.
A. GOAL 1 (Citizen Involvement): The particular means of
soliciting and assuring citizen involvement in the planning
process is a matter for the governing body to decide.
Considerable testimony was adduced at the hearings in the form
of objections by non-resident property owners at Sunriver that
they would be "disenfranchised" by the incorporation of
Sunriver. Although additional testimony was presented tending
to show that the vast majority of property owners in Sunriver
are non-residents, we do not find either of these facts to be
relevant to the question whether the Petition complies with
Goal 1. Although non-residents, whether owners or renters,
would not be permitted to vote in municipal elections, this is
equally true in every case in which an unincorporated area is
sought to be incorporated. Similarly, non-residents in
Sunriver currently do not have the power to vote in Deschutes
County elections on matters of arguably equal importance and
immediacy as those that might be put to a vote if the area
were incorporated. It is reasonably likely that the new city
can and will be able to comply with Goal 1.
B. GOAL 2 ( Land Use Planning) : We find that the Petitioners' EFS
underestimates the financial resources required to comply with
this goal, considering the range, complexity, and divisiveness
of the issues which will confront this community. Such issues
include the questions of facilities and services provision
PAGE 13. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1274
under Goal 11, housing under Goal 10, commercial/industrial/
office uses under Goal 9, and recreational facilities under
Goal 8, and establishment of an urban growth policy and
boundary under Goal 14. It appears far more likely that the
cost to the new city of developing its own comprehensive land
use plan and zoning ordinances will be at least double the
amount estimated by Petitioners.
If the proposed new city generates revenue in the amounts
projected by the EFS, and such revenue is not required for
other uses, it appears that the city would have sufficient
financial resources to staff the planning process.
However, for reasons stated elsewhere in these findings
the record does not show by a preponderance of the evidence
that the city will be able to generate either the cash flow it
has projected or an ascertainable lesser amount sufficient to
cover this and other reasonably likely costs of start-up,
operation, acquisition, and capital improvement. Without a
lawful and credible tax base and without support for the
petitioners assumptions that room tax revenues can and will be
generated in ascertainable and adequate amounts, we have
nothing to go on.
We do not believe, moreover, that Goal 2 can be satisfied
if the record fails to show that it is more probable than not
that the new city can and will adopt and implement a
comprehensive plan and implementing regulations in compliance
with all other applicable goals. For reasons stated below, we
find that Petitioners have failed to show that they can and
will comply with the requirements of other goals.
Accordingly, we find that Petitioners have failed to show that
they can comply with Goal 2.
With respect to whether the city will comply with Goal 2,
the Board notes the Petitioners' apparent misinterpretation of
the city's statutory duty. Although Petitioners have adopted
a number of different positions on this point, Petitioners
appear to assume that a new city can comply with Goal 2 simply
by unilaterally conferring perpetual planning jurisdiction on
Deschutes County pursuant to an inter -governmental agreement,
and thus avoid adopting its own comprehensive plan and zoning
ordinances. Petitioners seem to assume that this arrangement
could be maintained indefinitely.
The Board concludes that ORS 197.757 requires the city to
have its comprehensive plan and land use regulations
acknowledged under ORS 197.251 "no later than four years after
the date of incorporation." (Emphasis added.) Even if the
County could to do the planning for the city, the county would
have to agree to undertake that planning, and it would have to
PAGE 14. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 12'5
do everything the city would have to do within the four-year
time frame. There is absolutely no evidence or reason to
believe that the county would assume that burden.
C. GOAL 3 and 4 (Agricultural Land, Forest Land): The area under
consideration for incorporation is now an exception area under
the Deschutes County Comprehensive Plan. The development of
substantially all of this area as a residential recreational
destination resort is a fact that will not be changed by
incorporation. The County's current ordinances, together with
the private covenants affecting substantially all of the area
to be incorporated, are designed to make the land uses in the
area as consistent as possible with its surrounding forest
lands. The Petitioners do not propose to include any property
in a manner that would be inconsistent with the surrounding
agricultural and forest lands. If an urban growth boundary is
established, it will have to be based upon the Urbanization
goal factors, which will require the city to address farmland
and other resource issues. It therefore appears to be
reasonably likely that the new city can and will comply with
Goals 3 and 4.
D. GOAL 5 (Open Suaces. Scenic and Historic Areas, and Natural
Resources): These resources have been inventoried and are
protected under the existing Deschutes County Comprehensive
Plan. Private protection of several Goal 5 assets would
continue through enforcement of the Consolidated Plan of
Sunriver, which will continue to be applicable to a
substantial portion of the property after incorporation.
Further consideration and categorization of Goal 5 resources
would occur through the new city's development and
acknowledgement of a comprehensive plan. It is reasonably
likely that the new city can and will comply with Goal 5.
E. GOAL 6 and 7 (Air, Water and Land Resource Quality; Areas
Subject to Natural Disasters and Hazards): The analysis and
inventory required by these goals has already been conducted
and is contained with Deschutes County's Comprehensive Plan.
The implementation of appropriate zoning measures in
furtherance of these goals could be accomplished using the
County's Comprehensive Plan as a general guide. It is
reasonably likely that the new city can and will comply with
Goals 6 and 7.
F. GOAL 8 (Recreational Needs): The vast majority of the
property proposed for inclusion within the new city's
boundaries consists of a destination resort providing a
variety of recreational opportunities. Such property is
virtually all in private hands and subject to private
restrictive covenants. The testimony at the hearing indicated
that bikeways have generally been held open to the public, but
PAGE 15. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1276
that there is growing concern among permanent residents about
public abuse of that access. There is at present no publicly -
owned parkland and no space has been identified within the
boundaries of the proposed city as being potentially available
for such uses. The record does show that all space within the
existing boundaries has been allocated and substantially
dedicated to other uses in such a manner that it would be
difficult to convert to parkland without incurring substantial
acquisition costs that are not reflected in the city's
proposed budget. The Board believes that the recreation goal
is likely to require that some publicly owned parkland be
provided in an incorporated city such as the proposed City of
Sunriver for the use of residents and visitors. Given the
evidence that no such land is available or that it is likely
that it can and will be acquired by the new city, the Board is
unable to find, by a preponderance of the evidence, that the
new city can and will satisfy this goal.
G. GOAL 9 (Economic Development): Goal 9, Economic Development,
requires that urban areas adopt and implement policies that
"diversify and improve the economy of the state." The Goal
also requires plans and policies to "contribute to a stable
and healthy economy in all regions of the state." By
"diversify," the goal means to increase the "variety, type,
scale and location of business, industrial and commercial
activities." The Goal 9 interpretive rule requires a
community to identify "the types and amounts of industrial and
commercial development likely to occur in the planning area"
considering the "economic advantages and disadvantages of
attracting new or expanded development in general and
particular types of industrial and commercial uses." OAR 660-
09-015(4). The city must then designate a sufficient number
of sites of suitable sizes, types and locations to meet the
identified needs, and the total acreage designated must "at
least equal the projected land needs for each category during
the 20 -year planning period." OAR 660-09-025(2). The
designations may not be on unbuildable land or subject to
vague or subjective policies or standards or to cumbersome
procedures which significantly impair their availability. See
Oregon State Bar CLE Land Use Handbook Chapter 3, Development
Goals, § 3.6, discussing a variety of continuance and
acknowledgment orders and addressing these issues.
We find that compliance with Goal 9 will pose substantial
difficulties for Petitioners. After incorporation, the new
city would be required to comply with Goal 9 with respect to
the property located within the city's boundaries (or within
the boundaries of its UGB, if the UGB encompasses more
territory). The record demonstrates that there is no
substantial industrial land contained within the proposed
city's boundaries, and further casts significant doubt whether
PAGE 16. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1277
any of the property subject to SROA's jurisdiction could be
developed for industrial or intensive commercial use.
Accordingly, the only property available for land uses tending
to diversify and strengthen the economy of the city as a new
local government is located in Sunriver Business Park. For
reasons discussed in more detail under our Goal 10 findings,
however, we believe that the preponderance of the evidence
suggests that there is a relatively modest amount of
undeveloped property in the Sunriver Business Park. In
addition, it is unclear whether the undeveloped property that
does exist is assured of receiving a sufficient level of
services so as to make it "available" within any realistic
time frame. Finally, this same property of uncertain
developability apparently must serve several different land
uses if the new city is to comply with all applicable goals.
As a result, we find that the record does not show, by a
preponderance of the evidence, that the new city can and will
comply with Goal 9.
H. GOAL 10 (Housing): Goal 10 requires local governments,
through their comprehensive plans and land use regulations, to
provide for the housing needs of the people of the state. The
Goal would require a new city to inventory buildable lands for
residential use and for the city plan to "encourage the
availability of adequate numbers of housing units at price
ranges and rent levels which are commensurate with the
financial capabilities of Oregon households and allow for
flexibility of housing location, type, and density." In
another context, LCDC has described this obligation in general
terms as follows:
The Housing Goal requires a demonstration in the
plan that sufficient suitable and available
residential land is designated under clear and
objective standards to meet estimated housing
needs. Required information includes: (1) a
reasoned determination of housing needs to [the
20th year from acknowledgment], including data and
facts supporting that determination; (2) an
inventory of the buildable residential land
available and designated to meet this need; and (3)
a strategy to meet housing needs, adopted as policy
with clear and objective implementing measures.
LCDC Continuance Order 83 -CONT -111, June 14, 1983,
Findings p. 24.
A key element of the goal is availability. Land must be
actually and realistically available in a time frame that will
meet short-term as well as long-term needs. To be available,
the land must be buildable, meaning that it must not be
subject to such constraints as vague standards, cumbersome
PAGE 17. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1278
approval procedures, difficult slope and soil conditions,
conflicting and overlapping use designations, uncertain
wetland status, or lack of services.
The LCDC's 1979 Guidebook, Housing Planning in Oregon,
explains that the term "availability" means housing "in
quantities which allow all sectors of the market some
reasonable choice in selection of a place to live in terms of
housing type, tenure, and price range." The supply must
include a "market fudge factor," which reflects the fact that
"all land is not 'available' for housing consumption at any
given time due to owner preference."
The Board finds that the existing housing stock within
the proposed city limits would not provide for the full range
of income levels in Deschutes County, and that there is a need
for such housing stock. In addition, the Board finds that the
private restrictions (in the form of the Consolidated Plan of
Sunriver) to which the vast majority of the property proposed
for incorporation is subject, will not permit the construction
of housing within such area at price and rent levels necessary
to meet the range of income levels in Deschutes County. The
Board finds that the private restrictions contained in the
Consolidated Plan are designed to maintain high property
values with respect to existing housing stock, and have the
effect of increasing construction costs for new housing stock.
The Board also finds, however, that there is certain land
not subject to the Consolidated Plan of Sunriver within
Sunriver Business Park. Petitioners have suggested that for
purposes of what Petitioners argue should be a mere threshold
inquiry, the presence of such land satisfies Goal 10. The
Board understands that Petitioners are not required to offer
the same kind of detailed evidence or to display the type of
"fine tuning" planning techniques that would be called for
during the acknowledgement process, but the nature of the
showing that must be made by a Petitioner in order to satisfy
Goal 10 may vary from petition to petition. On facts such as
those in the Wasco case, for example, with substantial areas
of undeveloped property, it would seem to be a fairly simple
matter for petitioners there to show the availability of
property for a variety of required or desired uses, whereupon
the statutorily mandated inquiry would turn to the
availability of services to that property to determine its
practical value as a resource for complying with Goal 10. In
the Petition before this Board, however, Petitioners seem to
point to the relatively modest amount of property in the
Sunriver Business Park as the sole resource for solving all of
the proposed city's needs with respect to diverse and, in many
cases, incompatible or mutually exclusive land uses.
PAGE 18. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 12'79
It is conceivable that the new city might focus on the
Sunriver Business Park area, for example, as an inventory of
property for additional commercial and industrial sites for
satisfaction of Goal 9, which are typically sited away from,
or at least buffered from, multi -family and single family
residential uses. At the same time, however, this property
appears to be the only area available to meet the city's Goal
10 housing diversity requirements, and we note the general
conclusions of two owners of certain Sunriver Business Park
land to the effect that the owners would consider high density
or lower income residential use if the use were economically
feasible. We have no doubt that a landowner would consider
any economically feasible use for his property, whether it is
industrial, commercial or residential, but such equivocal
statements cannot be used to satisfy the requirements of Goal
10. Nor are Petitioners' assertions that they may take an
exception to Goal 10 or avoid its obligations entirely because
it does not have 2,500 residents sufficient. Both Deschutes
County and Sunriver itself are experiencing tremendously rapid
growth. Further, while the new city's permanent residents may
now number less than 2,500, it is not clear that the trigger
for "needed housing" under ORS 197.303 refers only to
permanent residents. Currently, Sunriver at any given point
in time may have an actual total population over 10,000
persons given the nature of short term rental use of dwelling
units and the number of units rented short term, including
full time residents. This average population is, from a
planning standpoint, a more realistic population figure. It
more accurately reflects the normal range of police, fire,
water, sewer, transportation, and other urban services that
must be provided, as well as the range and amount of land uses
that must be allocated. Sunriver's land use planners must
plan for a community that has Sunriver's actual population,
both normal and peak, not for its "electoral" or "census"
population.
Furthermore, the 2,500 figure is not a cutoff that
excuses Sunriver from its principal housing obligations.
Counsel for Petitioners has contended that the Happy Valley
case exempts new cities under 2,500 in population from Goal 10
housing types requirements. City of Happy Valley v. LCDC, 66
Or App 795, 799-801, 677 Ptd 43, rev den 297 Or 82 (1984).
Actually, the exemption is statutory, and it has been
significantly narrowed since the Happy Valley case was
decided. Construing the former version of ORS 197.303, the
Court of Appeals ruled in Happy Valley that the LCDC could not
require a city with a population under 2,500 to plan for a
specific mix of housing types. That statute has now been
changed, so that the small -city partial exemption from the
requirements of the state housing goal has been substantially
narrowed.
PAGE 19. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1280
The former version of ORS 197.303 provided that
"(1) As used in ORS 197.307, until the
beginning of the first periodic review of a
local government's acknowledged comprehensive
plan, 'needed housing' means housing types
determined to meet the need shown for housing
within an urban growth boundary at particular
price ranges and rent levels. On and after
the beginning of the first periodic review of
a local government's acknowledged
comprehensive plan, 'needed housing' also
means housing that includes, but is not
limited to, attached and detached single-
family housing and multiple family housing for
both owner and renter occupancy and
manufactured homes, as defined in ORS 197.295,
located in either mobile home parks or
subdivisions.
(2) Subsection (1) of this section shall not
apply to:
(a) A city with a population
of less than 2,500."
Section 2 of this since -amended statute thus exempts
small cities not only from the special housing types
requirements but also from the more general requirements in
the initial sentence of paragraph 1.
The 1989 legislature amended the above statute to
significantly narrow the exemption. (1989 Or Laws Chapter 380,
S 1). As now written, the small -city exemption applies only
to two categories of special housing types and does not exempt
small cities from the requirement that they treat as "needed
housing" all
"housing types determined to meet the need
shown for housing within an urban growth
boundary at particular price ranges and rent
levels."
The current version of ORS 197.303 follows, with the
requirement applicable to new cities in bold face and the
exemptions in italics:
11(1) As used in ORS 197.307, until the
beginning of the first periodic review of a
local government's acknowledged comprehensive
plan, 'needed housing' means housing types
determined to meet the need shown for housing
within an urban growth boundary at particular
PAGE 20. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1281
price ranges and rent levels. On and after
the beginning of the first periodic review of
a local government's acknowledged
comprehensive plan, 'needed housing' also
means:
(a) Housing that includes, but is
not limited to, attached and
detached single-family housing and
multiple family housing for both
owner and renter occupancy;
(b) Government assisted housing.
(c) Mobile home or manufactured
dwelling parks as provided in ORS
197.475 to 197.490; and
(d) Manufactured homes on
individual lots planned and zoned
for single-family residential use
that are in addition to lots within
designated manufactured dwelling
subdivisions.
(2) Paragraphs (a) and (d) of subsection (1)
of this section shall not apply to:
(a) A city with a population of
less than 2,500;
The new wording changes the former exemptions in
important ways. The list of exemptions is shorter. But more
important the exemptions are now exemptions from items on the
list of special statutory obligations. They are no longer
exemptions from the general statutory and Goal 10 obligation
of cities to provide for the full range of housing types shown
to be needed by a standard Goal 10 inventory and supply/demand
analysis.
Because a small city is no longer exempt from the general
requirement of the first part of Section 1, Sunriver will have
to comply with Goal 10 in full, and is exempt only from a
specific short list of housing types which are otherwise
conclusively presumed to be needed. The proposed city,
whatever its size, will have to provide a range of housing
types for a range of income levels based upon well-established
goal 10 principles and policies.
The Board's duty is to determine, based upon the face of
the Petition and the evidence before the Board, whether there
is sufficient undeveloped and unrestricted land within the
proposed city's boundaries for us to conclude that it is
likely that the city can and will comply with Goal 10.
Petitioners appear to rely for their entire inventory of
buildable land for a variety of required additional land uses
PAGE 21. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1282
upon a small area, without apparent appreciation for the
complications arising from the incompatibility of such
different uses in the proximity dictated by Petitioners.
They further acknowledge in their EFS that "private conditions
and restrictions of record limit the type of housing possible
in areas subject to the Consolidated Plan of Sunriver." Given
these clear obstacles to compliance with Goal 10, we find that
Petitioners have not shown that it is probable that the new
city can comply with Goal 10.
I. GOAL 11 (Public Facilities and Services): Goal 11 would
require the newly incorporated City of Sunriver to develop a
"timely, orderly, and efficient arrangement of public
facilities and services to serve as a framework for urban and
rural development." The Goal defines a "timely, orderly and
efficient arrangement" as "a system or plan that coordinates
the type, location, and delivery of public facilities and
services in a manner that best supports the existing and
proposed land uses." This requirement is the real heart of
the land use planning process, and requires the new city to
determine its needs for facilities and services based on
development plans and populations projections and assure that
needed facilities and services are available in advance of, or
concurrent with, development. Goal 11 specifically lists
police protection, fire protection, sewer services, storm
drainage facilities, planning and zoning, health services,
recreation facilities and services, energy and communication
services, and community governmental services.
Petitioners apparently do not propose for the new city to
provide any public services, with the possible exception of
planning. Petitioners' response to Goal 11 is to state that
these services are currently provided to much of the area to
be incorporated by Sunriver Utilities (water, sanitary sewer)
and SROA (police, fire, emergency medical, road and bicycle
path construction, lighting, recreation facilities and general
maintenance), and that they assume that these services and
facilities will continue to be provided by these private
suppliers. Petitioners provided no basis for concluding that
there is a reasonable likelihood that the proposed city could
or would provide such services and they make no showing that
the proposed city could provide such services by contract with
private suppliers.
On the contrary, SROA has asserted that it has no
obligation whatsoever to provide a City of Sunriver police and
fire services, either free of charge or on a negotiated fee
basis. Further, SROA has asserted that it has no authority to
provide these services to areas outside its jurisdiction, such
as the Sunriver Business Park or other areas the County might
require be made part of the incorporation Petition. These
PAGE 22. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
J.
areas cannot be assessed by
would be subsidizing the
Sunriver. Petitioners have
opponents of incorporation
0108 1283
SROA and thus, the members of
remainder of the
not challenged these
argue as follows:
new City
points.
SROA
of
The
The Petitioners' blithe assumption that SROA will
gratuitously continue to provide these services ignores
the fundamental opposition of SROA and the bulk of its
members to a proposal that seeks to shift control of SROA
from all its members to the 15% of those members who
happen to live there as year-round residents and the
Sunriver Business Park, which has in the past refused to
subject itself to the Consolidated Plan in exchange for
services.
Sewer and water are currently provided by affiliates of
Sunriver Properties, Ltd. and were developed to serve the
needs of the planned community of Sunriver, not a
municipality.... It is not clear that the easements
reserved through SROA property to provide certain utility
services for the planned community of Sunriver can be
used to provide city services.
[Petitioners] simply allude to the fact that the City of
Sunriver would have the power and authority to provide
"these services and facilities if events transpired so
that the various entities were unable or unwilling to
provide the service" and the City of Sunriver "could step
up quickly" if necessary because "the infrastructure is
already in place." Gary letter, p. 12. Are Petitioners
truly suggesting that they have met their burden of proof
by noting that they could exercise the power of
condemnation as a municipality? If so, they have failed
to include any monies for such condemnation proceedings,
either for legal fees or acquisition costs.
Petitioners propose to adopt and enforce "ordinances to
deal efficiently with a multitude of behavioral and other
problems confronting the community." Economic
Feasibility Study, p. 9. Nowhere have Petitioners even
identified the problems that they believe require the
adoption of municipal ordinances. Equally significant,
they nowhere budget or provide for in any other way
prosecutorial, judicial or jail services necessary to
enforce these undefined ordinances.
Petitioners have not shown that the proposed City of
Sunriver can and will comply with Goal 11.
GOAL 12 (Transportation): We find that incorporation will not
create additional transportation demands for the area.
PAGE 23. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1284
However, although there is presently in place an extensive
system of roads and pedestrian/bike paths and an airport,
substantially all of these transportation facilities are
privately owned. Only approximately three (3) miles of public
roads are contained within the area proposed for
incorporation. The owner of the private road system, SROA,
has asserted that it has the authority to block public access
to such roads. In response to this assertion, Petitioners
claim: (1) That the road system is now public property, or
that the public has acquired a right to use the road system by
virtue of public use over a period of years; or (2) that the
new city would assert the power of eminent domain in the event
it became necessary to acquire these public facilities.
The uncontroverted evidence is that SROA is the legal
owner of the road system. Petitioners cannot be said to have
shown a reasonable likelihood of complying with Goal 12 by
asserting for the first time in their final written submittals
on January 14, 1992, that the speculative outcome of
hypothetical litigation would establish the public's right to
use these private roads.
With respect to Petitioners' second claim, clearly a new
city would have the power of eminent domain, which power could
be exercised to acquire title to the system of roads and
pedestrian/bike paths owned by SROA, as well as to the
airport, ownership of which does not appear to be reflected in
the record. The Board notes, however, that there is no
evidence in the record with respect to the potential cost of
such condemnation proceedings, and that Petitioners reflect no
budget item for condemnation in their EFS for years one or
three. (Petitioners do not suggest that the budget would be
materially different for year 2.) The Board is not convinced
that every petition for incorporation must project budget line
items for condemnation when the need for eminent domain is not
readily apparent. However, when a petition repeatedly relies
upon the potential for eminent domain proceedings as one of
the principal methods of complying with a goal which
Petitioners cannot otherwise satisfy, the Board must take this
factor into account in evaluating the sufficiency of the
statutorily required EFS and Petitioners' ability to comply
with statewide goals and guidelines. Petitioners have not
shown that the proposed City of Sunriver can and will comply
with Goal 12.
K. GOAL 13 (Energy Conservationl: Goal 13 seeks to achieve
maximum efficiency and energy utilization, primarily through
zoning controls on location, orientation and density of
development. The goal is now addressed in the Deschutes
County Comprehensive Plan. Using the County Comprehensive
PAGE 24. FINDINGS IN SUPPORT OF ORDER DENYING PETITION
0108 1285
Plan as a guide, it is reasonably likely that the new city can
and will comply with Goal 13.
L. GOAL 14 (Urbanization): Goal 14 provides for an orderly and
efficient transition from rural to urban land use by
describing how urban growth boundaries are established and
changed. The area proposed for incorporation includes a
substantial concentration of development that qualifies as
urban within the meaning of the state land use goals. The new
city's urban growth boundary will need to be established as a
part of the formulation and acknowledgement of the city's
comprehensive plan. Because of surrounding agricultural and
forest uses, the Board likely would expect the location of the
new city's urban growth boundary to be a matter of
considerable debate and some difficulty. Because the Board
disapproves the Petition on other grounds, we will not at this
time make more detailed findings on Goal 14. The Board does
find, however, that if the Petition were otherwise to be
approved, the Board likely would require additional property
to be included within the city's boundaries. There does not
appear to be any legal mechanism for the Board to approve the
Petition with the condition that additional property be
included within an urban growth boundary as opposed to being
included within the city's boundaries.
M. Goals 15 - 19 are not applicable to this Petition.
A. The petition for incorporation and Economic Feasibility
Statement each fail to comply with the requirements of ORS
Chapter 221.
B. Petitioners have failed to meet their burden of establishing
by a preponderance of the evidence that the proposed City of
Sunriver probably can and will comply with the state statutes
governing land use planning and the statewide land use goals.
C. The petition for incorporation is hereby denied.
D. Each of the deficiencies set forth above in the Board's
findings and conclusions is independently sufficient to
require the denial of the petition for incorporation.
PAGE 25. FINDINGS IN SUPPORT OF ORDER DENYING PETITION