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1992-24795-Minutes for Meeting May 26,1992 Recorded 7/23/199292-24795 0118-1349 PUBLIC HEARING MINUTES FISH & WILDLIFE & SURFACE MINING SITE CONFLICT AMENDMENTS DESCHUTES COUNTY BOARD OF COMMISSIONERS 92 JUJ, 2M 9: 4 4 May 26, 1992 t'; a, Chairman Maudlin called the meeting to order at 5:30 p.m. Board members in attendance were: Dick Maudlin, Nancy Pope Schlangen, and Tom Throop. Also present were: Karen Green, Community Development Director; George Reed, Planning Director; Dave Leslie, Planner; Catherine Morrow, Planner; and Bruce White, Assistant Legal Counsel. The purpose of this public hearing was to consider amendments to Chapter 18.88, Wildlife Area Combining Zone, of Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance, and to the Fish and Wildlife Section of the Deschutes County year 2000 Comprehensive Plan and Resource Element plus testimony regarding Goal 5 resources in conflict with surface mining sites. Chairman Maudlin opened the public hearing and asked for a staff report. Dave Leslie gave the report which is attached to these minutes. He stated that copies of the report and its attachments would be available to those members of the public who request them. A fee would be charged for the copies because of the number of documents involved. The Planning Commission had held one work shop and two public hearings and on April 22, 1992, recommended this package to the Board. The staff was not recommending any changes to the decisions already make by the County regarding surface mining zoning or decisions not to zone, with possibly one exception. The one possible exception was a County -owned cinder source (site 475) near Highway 126 on which they were still waiting for further information from Public Works regarding location, quantity, and quality of the resource. That information would be available before the June 10 decision date. He recommended another set of public hearings be held to consider that site and any conflicts to mining at that site. Site 475 was not currently zoned for surface mining but was zoned for exclusive farm use. A revised ESEE analysis would be prepared and the Goal 5 process would be done for that site. After hearing all of the public testimony, staff recommended that the Board also accept additional information from staff between this hearing and the decision as follows: some of the specific comments answering DLCD's concerns which were still being worked on with the Oregon Dept. of Fish & Wildlife staff regarding sage grouse habitat along Highway 20; deer winter migration information for the Metolius Deer Winter Range in the north part of the County; Varco Site and Geisler Site information; and changes referred to in Section 3 which was the draft response to the DLCD comments in Section 5 and which had not been made pending Board review and concurrence with the recommendations in Section 3. ty1 PAGE 1 MINUTES: 5-26-92 f. - 7'� i ?i. 0.18-1350 Chairman Maudlin asked about Site 475. He questioned if it was a cinder site and why it had not been zoned in the first place. Mr. Leslie stated that it was a cinder site. He said in the adopted ESEE analysis, the County determined that there were two natural resource conflicts both in space and scenic values. He said the major intent of Plan Policy 15 was to look at all the conflicting resources previously identified and verify that they did exist at the sites and that the treatment of those resources, in other areas of the County for uses other than surface mining, was consistent with the treatment received in the ESEE analysis. Site 475 was adjacent to but not within a landscape management boundary and was not within a deer winter range. So he recommended that those two conflicts be deleted leaving no resource conflicts identified at that site. Site 475 also had other differences as compared to other sites --such as not being surrounded by heavily developed areas but primarily larger acreage. Chairman Maudlin said that many cinder pits in the eastern portion of the County were not zoned surface mining because there was so much of that material available. He asked if that was still the case. Mr. Leslie stated that there was another site nearby to the east that might be sufficient to reaffirm the location of nearby sources. Chairman Maudlin asked if Mr. Leslie wanted this set aside for one week. Mr. Leslie recommended that the public hearing be opened for testimony and that anyone testifying would be kept apprised of changes over the next week. Chairman Maudlin asked for testimony. No one came forward to offer testimony. Bruce White suggested that a deadline be set for information coming in from Fish and Wildlife. Mr. Leslie suggested that new information be allowed for one week from this date and to the end of next week for any comments. Chairman Maudlin then determined that comments would be accepted until June 3 at 5 p.m., that anyone who wished to look at the materials received could do so and make comment by June 5 at 5 p.m., and then the Board would make their decision on June 10 at their regular meeting. Commissioner Throop asked Karen Green about the May 8 letter from Doug White, DLCD regarding policy 15, responding to the County draft submission. He asked if there had been discussion with Mr. White regarding the issues outlined in that letter. Ms. Green stated that she had not had any conversations with Mr. White. Mr. Leslie said he had placed a telephone call to Mr. White but that he had not spoken with him as yet. There were 33 sites affected by Mr. White's concerns which fell into 12 categories of issues. It was felt that they would be able to make recommended findings to address the majority of those issues/concerns. He said that was the reason why no decisions other than on site 475 were being recommended for change. He said 475 was not on Doug White's list of concerns. PAGE 2 MINUTES 5-26-92 0118-1051 Chairman Maudlin opened the second portion of the public hearing regarding the Wildlife Area Combining Zone of Title 18 of the Deschutes County Code. He asked Catherine Morrow to give the staff report. She stated that testimony would be taken on the Planning Commission's recommendation on all the documents required to comply with the Goal 5 rule as part of periodic review. Those documents included proposed amendments to the Deschutes County Year 2000 Comprehensive Plan, proposed amendments to Title 18.88, the Wildlife Area Combining Zone, a proposed Sensitive Bird and Mammal Combining Zone, proposed amendments in additions to the Fish & Wildlife Chapter of the Deschutes County Comprehensive Plan Resource Element which included all the ESEEs for the identified significant wildlife species, a map for the sensitive bird and mammal overlay zone, and also adoption of the National Wetland Inventory. She stated that the Planning Commission had held two public hearings and three work sessions on these issues. She highlighted the main issues of her staff report that had risen during the process. Ms. Morrow clarified the issue of inventories and the ESEEs. What was proposed was an addition to the existing Wildlife Area Combining Zone. She said that at that time the zone only included identified deer winter range and that the proposal would add antelope range that had previously been identified in the Comprehensive Plan but had no protection measures. It also would add a new antelope range that was identified by ODF&W as an area where the antelope herd had expanded, and the Planning Commission recommended adding significant elk habitat areas primarily on federal land and adding the Bend LaPine Deer Migration Corridor. Also added would be an additional deer winter range north of the Crooked River near and including Smith Rocks State Park. She said that this winter range was not included in the initial inventory when the comprehensive plan was adopted, partly because it was managed out of the Ochoco District office and wasn't identified in the original process. Testimony had been received indicating that it was a significant winter range, and the Planning Commission recommended that it be added. She discussed amendments to the Year 2000 Comprehensive Plan saying that the amendments were designed to recognize the wildlife areas and establish policies to protect them. She noted that on page four of the staff report there was proposed language that was different from the language received in the initial packet for Policy 3. This language change was done to make it consistent with the language in the Wildlife Area Combining Zone and required cluster development for any new land divisions in the rural residential zone in the Bend -La Pine Deer Migration Corridor. The other policies recognized the significant habitat areas. The Bend - La Pine Deer Migration Corridor was identified in the initial Comprehensive Plan but there was only a policy to require a minimum lot size of 20 acres and no implementing ordinance. What was being proposed was to require that any land division in the RR -10 be a PAGE 3 MINUTES 5-26-92 0118-1352 cluster development with the underlying density the same as RR -10. Therefore, with 40 acres, one would be allowed 4 dwellings in the RR -10, but they would have to be clustered with 80% remaining as open space. Ms. Morrow then discussed the amendments to Title 18.88. She said the areas identified would be included in the Wildlife Area Combining Zone. There would be minimum lot sizes established for the antelope area of 320 acres, a minimum lot size of 40 acres for the deer winter range, and a 160 -acre minimum in the elk range. A new, important proposal was in Section 18.88040 which prohibited certain conditional uses that previously had been allowed in the WA Zone. One issue that had received the most testimony was the destination resort issue. The proposal would exclude destination resorts from the Wildlife Area Combining Zone. There was a lot of testimony in favor of that proposal and also testimony favoring permitting limited uses associated with the destination resort including trails, wildlife enhancement, and picnic areas. She said the Planning Commission extensively discussed whether the Wildlife Area Combining Zone could be used as a mitigation area for destination resorts for wildlife habitat losses. Their conclusion was there was nothing in the zoning ordinance that prohibited any zone from being used as a mitigation area. The proposal was then forwarded to the Board of Commissioners to restrict destination resorts from the Wildlife Area Combining Zone. The Board might want to consider permitting mitigation plans for wildlife in all zones in the County. If the Board decided to adopt the Planning Commission recommendation, it would be required that the adopted destination resort maps be amended to exclude these areas from the mapped land available for destination resorts which could be done concurrently with the adoption of the package. Ms. Morrow continued that one of the new things the Wildlife Area Combining Zone had was new siting standards for new dwellings, requiring that new dwellings be located within 300 feet of an existing road or easement. The Wildlife Area Combining Zone also had established fencing standards. Another issue which received a lot of testimony was the proposal to remove the reference to riparian areas from this zone. She said there was a concern that riparian vegetation may not be adequately protected, and therefore the Planning Commission had proposed adopting Policy Number 11 which required the County to review the riparian vegetation provisions and if necessary amend the Comprehensive Plan and ordinances by December 31, 1993. Under the current time frame, it was the Planning Commission's recommendation that this deadline would force the County to address this issue as soon as possible recognizing that the existing protection measures protect the riparian areas and wetlands to a large degree. Ms. Morrow stated that the Sensitive Bird and Mammal Combining Zone was a new zone proposed to protect inventoried sensitive birds. These sites were previously identified in the Comprehensive Plan PAGE 4 MINUTES 5-26-92 0118-13'53 but there were no protection measures. The DLCD commented that this was necessary. The inventory and ESEEs have been separated into federal sites and nonfederal sites, and only nonfederal sites would be subject to this zone. The proposal would be to establish a radius around each site; for most of the species it was 1320 feet. If the County, in consultation with ODF&W, determined that the proposal was within the habitat site, it could cause the site to be abandoned. ODF&W would have 20 days to comment on an applicant's habitat management plan, if one was required, and the County would make the final decision on the adequacy of the management plan. She is still working with ODF&W to coordinate the wildlife Goal 5 program. Ms. Morrow recommended that the Board open the public hearing and leave it open for correspondence. Chairman Maudlin asked if public parks were being recommended to be allowed in the wildlife area combining zone. Ms. Morrow stated that was correct and that initially public parks were excluded, but the Planning Commission recognized that Smith Rock State Park was part of this proposed deer winter range as well as there being a proposal for an educational facility that would be open to the public which would be in the deer winter range. Chairman Maudlin said with 300,000 visitors a year at Smith Rock State Park, how could there be any greater conflict. Ms. Morrow said that he was probably correct about the conflict. He asked if the wildlife combining zone was included in Crook and Jefferson County. Ms. Morrow stated that both Crook and Jefferson Counties were currently going through their periodic review and were updating their inventories. He asked if Crook, Jefferson, or Deschutes counties had ever been notified of a deer range in that area. She said they currently did not have any provisions to protect the winter range in that area, but it had been identified. She did not know if it was identified in the other counties previously, and whether they had chosen to protect it or not. Ms. Morrow stated that representatives were present from ODF&W and would be able to clarify this issue. She understood that the deer winter range in the Grizzly Unit had always been identified on ODF&W maps as winter range. Chairman Maudlin said under the Planning Commission destination resorts could not be within the wildlife area zones. Ms. Morrow stated that as part of the destination resort proposal, that was correct. The existing deer winter range which was mapped and included in the original comprehensive plan was excluded as part of the destination resort mapping process, and it also generally corresponded with the area that was identified in the Goal 8 Handbook. Chairman Maudlin then asked if a wildlife area combining zone could be inside a destination resort. Ms. Morrow stated that if the Board decided to make the distinction between the especially sensitive wildlife habitat areas which were identified in the Destination Resort Handbook and these habitat areas that had been identified subsequently, then findings would have to be made that the significance of those habitat areas were somehow different. It PAGE 5 MINUTES 5-26-92 0118-1354 was the recommendation of ODF&W and the Planning Commission, after hearing the testimony, that the significance of the habitat areas in Deschutes County were similar. They didn't recommend making a distinction between what was identified in the destination resort process and what had been subsequently identified. Commissioner Throop asked how the statue read. Dave Leslie said it made reference to a specific ODF&W map. George Read said there was significant evidence submitted to the Planning Commission regarding legislative history behind the adoption which was contained in the file along with the actual language, and how it was worded. It was discretionary for the County, but he said it was necessary to explain why we were treating one in one way and another in a different manner. Chairman Maudlin asked if there was a difference in the wildlife area combining zone for big game animals and the winter deer area. Mr. Reed said that essentially the wildlife area combining zone was the winter deer area in Deschutes County. Catherine Morrow stated that the elk habitat areas were not necessarily winter habitat areas, and that the antelope area included winter habitat areas but there was year-round range. Commissioner Throop asked questions of Norm Behrens, Biologist, Department of Fish and Wildlife. He asked how much of the winter deer range was in Crook, Jefferson, and Deschutes counties. Mr. Behrens said that the lion's share was in Crook and Jefferson counties with only a small portion in Deschutes County. He said that was the reason why it was missed in the initial planning. In Jefferson and Crook Counties comprehensive plans, it was identified as deer habitat which was all encompassing --winter range, etc. It was called deer habitat which included the same thing but with a different title. Commissioner Throop asked how the zoning ordinances for those zones protected the deer habitat versus how Deschutes County with the overlay zone protected winter deer range. Steve George, Systems District Biologist for ODF&W stated that in Jefferson County the Metolius Deer Winter Range minimum zoning was one residence to 40 acres. They did not allow cluster developments and were more restrictive than Deschutes County. Commissioner Throop summarized that all three counties had a means of protecting winter deer habitat, that the levels of protection were somewhat comparable but structured differently, and possibly in Jefferson County the restrictions were even higher. Chairman Maudlin asked when the Smith Rock area was designated winter deer range. Mr. Behrens said the one in Deschutes County and also in Crook County was designated in the early 1970s. He had inherited the maps 13 years ago, and he felt confident with both maps because the biologist had spent a lot of time in the early 70s identifying the area. He said that all winter range was critical habitat, and that it was sensitive. PAGE 6 MINUTES 5-26-92 0118-1355 Commissioner Throop asked how important Mr. Behrens believed it would be to include the northeast section in Deschutes County's Comprehensive Land Use Plan during this Periodic Review and how strong of a recommendation would he make. Mr. Behrens said that it was an important area to protect. He said it was as important as anything else, such as bald eagle nests, and that it was a new piece of information. He would not, at this time, recommend that it be excluded from review. Commissioner Throop questioned how much of the existing three winter deer ranges in Deschutes County were on the state-wide map. He asked how close Deschutes County conformed to the state map. George Read said that they were on the map and that our mapped areas were larger than the state maps. He estimated that 90-95% of our winter deer ranges were on the state critical map. Commissioner Throop asked Mr. Behrens why the northeast quadrant was not on the state map. Mr. Behrens said his department came to the biologists and asked to be shown areas in the County where a destination resort could be sited without conflicts with winter range or other things. He did not know since the map was put together by different individuals. It was definitely an oversight and needed to be included in all three County periodic reviews, and it needed to be put on the maps and protected. Chairman Maudlin asked that anyone wishing to testify come forward. Mike Hoover, Deschutes County resident and president of the Central Oregon Board of Realtors came forward. He said he was concerned about section 18.88.060 which was establishing a siting standard for new dwellings some 300 feet or closer to existing roads or easements. He said 300 feet could run a long way into one acre of ground, and if a person had one acre, the other dimension would only be about 140 feet. With a ten -acre parcel, 300 feet could put you into the middle of the parcel. He said the larger the parcel became the bigger the issues became. His concern was that this section was not thought through enough to restrict it to simply 300 feet. The roadway had not been defined as to whether it was public right of way or private right of way. Also, it was not addressed what would happen if there was more than one tax lot. He felt that in the final analysis it would be interpreted as 300 feet away from a public right of way/a dedicated road system. On larger parcels, some agricultural use could be present, and he asked the Board to take a serious look at the minimum standards. He suggested that if clustering was used as a concept for the development of improvements on larger parcels, that the house and the outbuildings be allowed to be clustered together almost anywhere on the parcel. If someone had several hundred acres, having their home on the front 300 feet near a roadway was not answering the problem. Kitty Warner, Deschutes County Realtor, stated that she would also like to address the 300 foot siting standard. The 300 foot location for a house did not seem practical. She brought two exhibits which she discussed. She said the 300 -foot proposal was PAGE 7 MINUTES 5-26-92 01.18-1.0!56 entirely too restrictive and would require people to build their homes and outbuildings on prime agricultural land. She proposed that this particular portion of the ordinance be deleted or reviewed. A bed and breakfast consideration was inappropriate at this time and should be deleted as Deschutes County did not currently have an ordinance for bed and breakfast facilities. These operations did not allow pets and the clientele were usually older or had one or two children who would enjoy sitting on the porch of a bed and breakfast and watching the deer migration. Commissioner Throop asked if bed and breakfasts were a conditional use in most rural residential zones. George Read responded yes. Mrs. Warner asked if that also applied to EFU zones and he said yes. She said that she had not been informed of that. Bruce White stated this had been dealt with as a subspecies of a home occupation. Commissioner Throop stated that the conditional use in an EFU zone was three bedrooms and eight guests which was a bed and breakfast. Mrs. Warner stated she felt the exclusion of destination resorts, dude ranches, and fishing lodges should be reviewed and considered further. She said a cluster -type ordinance would be better. She used Rock Springs Guest Ranch on Tyler Road as an example. It was in a heavy migration route, and the deer passed through that property eating hay and continued onto adjoining County land. She did not feel the guest ranch was detrimental to the deer. Commissioner Throop questioned if dude ranches or fishing lodges were allowed uses in an EFU zone. He said he believed that they were excluded by state statute. George Read agreed that this was correct, but the wildlife area combining zone included rural residential zones. Maret Pajutee P.O. Box 801, Sisters, OR 97759 testified that she was a biologist with an master's degree in insect physiology and ecology and had worked for the Sister's Ranger District as a district ecologist. She was representing herself as a concerned citizen and as a member of the Alliance for Responsible Land Use in Deschutes County. Her primary concern in the wildlife review was the riparian and wetland areas. She felt riparian areas and the landscapes contained within were the most critical wildlife habitats in Deschutes County. She read from a paper on cumulative impacts in riparian wetland areas which stated that these areas were one of the most important, productive, and valuable natural systems on earth. Human activity alters these areas. Aquatic, wetland and upland areas generally formed integrated ecosystems and degradation of one affected the quality and functions of all which in turn affected the plant and wildlife community and prevented their productivity and value. Ms. Pajutee stated the information to do the job was in the available wildlife information, and in the river study, but she PAGE 8 MINUTES 5-26-92 0118-1057 felt it had been filtered to produce confusing conclusions. She then read "the identified consequences should be balanced so to allow the conflicting uses but in a limited way so to protect the resource to the desired extent." She did not know what that statement meant and challenged any planner "to take that and run with it." She felt we could not afford to wait for a future review of riparian and wetland habitat since the protection of resources had to be ongoing in this period of rapid growth. Citizens of Deschutes County were becoming more and more concerned about the way the County was being developed. She stated as evidence the recent primary election where a land use planning advocate won. She pointed out that on page 7-2 of the river study, the most preferred future land use by citizens of Deschutes County was undeveloped land next to streams and that 85 percent strongly supported zoning and building regulations concerning development along the rivers. She asked that the "confusing marching orders" to County Planners be reconsidered. She also asked that the river study be "unfiltered, " and that its recommendations be implemented. She stated that the quality of life rested in the quality of our habitat. Commissioner Throop asked how she interpreted the language for riparian and wetlands and what would she suggest. Ms. Pajutee stated she was happier with the old wild life area combining zone language since it included riparian areas as part of the wildlife area combining zone, and it called for ODF&W to be consulted. The proposed 100 -foot set back did not always address the habitat especially how the habitat related to the landscape. With the old wild life area combining zone, a biologist would have gone to the area and made some kind of determination rather than just saying 100 feet will protect everything. Commissioner Throop asked the staff why there was a change in riparian wetland protection language. Katherine Morrow stated that the old provision was taken out because DLCD cited in their comments on the periodic review order that the County was required to have clear and objective standards and the standard for riparian protection was not clear and objective. Another reason was that the river study included extensive work on identification of riparian areas which resulted in the adoption of the Goals and Policies in the Deschutes River Corridor chapter of the Comprehensive Plan. All the provisions adopted as a result of the river study were largely designed to protect riparian areas and habitat. The testimony being received indicated that it may not be sufficient for vegetation. She said staff had reviewed several riparian vegetation protection measures from other counties. it was necessary to work with the public and ODF&W to define the resource which was needing protection. George Read said the ordinance presently stated that the wildlife area combining zone included riparian areas along rivers. He said that "we don't know where those are and we need to draw a zoning PAGE 9 MINUTES 5-26-92 0118-1358 boundary to show where those areas are in order to call it a zone and inform people that they are in a riparian zone or a wildlife area combining zone." He said "we have a zone where we cannot show anybody where it is." This made it difficult to impose standards. Commissioner Throop said because it was in the wildlife area combining zone now, it was identified as something that needed to be protected in concert with the wildlife area combining zone regulations, so it was, therefore, a "de facto zone." George Read agreed that was correct. He said that provisions were already present saying that all fill and removal, regardless of the amount, within the bed and banks of any stream, including vegetation, required a conditional use permit. There were already significant protection standards, however, there were also thousands of wetlands throughout the County. He felt the appropriate way of dealt with these issues was not to put a specific zone on all those areas. Commissioner Throop asked what the "holes" would be in the interim period? Ms. Pajutee stated she saw the potential jeopardy as broader than vegetation, and that it also involved landscape and the effects on habitat. Her concern was there would not be any on- site analysis by a biologist. Commissioner Throop asked if this was a "hole" since the analysis would not occur until the regulations being deferred? George Read responded yes. Mr. Read stated it was necessary to be site specific enough with the inventory information to do ESEE analysis and balance the conflicts. The inventory process was necessary to establish the quality, quantity, and location of the resource. This would be a very large project and was beyond what the Planning Department was capable of doing at this time. Commissioner Throop said he felt the witness was expressing concern that the County was just "walking away from it" until this work could be done, while currently there was a provision that an ODF&W biologist would do a site visit and comment. Bruce White said the County had not known how to deal with riparian areas zoned to be a wildlife area. The standards were so ill defined that they were difficult to interpret. It needed to be reviewed, but given the tight time frame the County was under, he did not think it should be dealt with at this time, especially since there were other interim measures "to protect at least some of those values." George Read said the present program had been criticized by DLCD as being inadequate because it didn't have clear and objective standards, and he didn't feel the package would be approved if the current language was left in place. The fill and removal ordinance required a conditional use permit, and Planning would automatically consult with ODF&W, so he thought there was some protection. Commissioner Throop asked if the current language was deleted and a partition was applied for, would there be any protection for riparian areas or wetlands. George Read said the issues being raised were good ones. The initial recommendations in the river study established minimum lot widths along streams. At that time, the Board did not implement the ordinances which would have put PAGE 10 MINUTES 5-26-92 0118-1359 those recommendations into effect. But there was still a number of questions which needed to be considered in order to do an accurate ESEE analysis. Commissioner Throop said riparian areas were not defined in the comprehensive plan or in the zoning ordinances, and this objective could not be accomplished by the June 10 deadline. He asked Ms. Pajutee if she and her group would support an extension to allow the County to do this work properly, or would she want the County to proceed with "something less than the proper work" now and then revisit the issue later. Mr. Pajutee said she couldn't speak for the group, but as an individual she felt that when there was a lack of information, the County should move conservatively and include a biologist's review. Rod Bonacker, P.O. Box 1565, Sisters, OR 97759, testified that his concern with the proposed changes to the wildlife combining zone was the proposed deletion of any reference to riparian areas. Even the old ordinance recognized the need for particular protection for riparian habitats. Since those references had been deleted in the newly proposed ordinance, they were being asked to trust that a series of existing ordinances and policies which were designed to protect other things than riparian systems would also protect riparian areas. He felt the County already had a great deal of information on riparian areas, i.e. USDI wetland inventory maps, the County soil maps, and there were other sources available to the County. He was a resource planner for a local federal land management agency, and they utilized U-2 satellite photos which clearly displayed changes in vegetation, particularly in wet areas. He hoped the County would err on the side of conservation until there was time to get better information. The existing ordinance to protect riparian resources "was not very encouraging." The 100 - foot set back from streams and lakes would not protect wetlands which were not associated with streams or lakes or those which extended beyond 100 feet. The flood plan zone didn't protect riparian areas from grazing, lawns, or from fill and removal as long as it didn't increase flood levels. The fill and removal ordinance did not protect the riparian area if the material being removed was less than 50 cu. yds. The landscape management zones protected only screening vegetation not the riparian area and only adjacent to the inventoried landscape management rivers and steams. He recommended that riparian areas be included in the sensitive bird and mammal habitat combining zone under the definition of habitat sites. Mat Cyrus, Sisters, asked if the identified wetland areas would include man-made wetlands, i.e. stock ponds, irrigation ditches? George Read said the wetlands maps included man-made wetlands. Mat Cyrus felt a person could create wildlife area zoning problems for himself if he put in ponds. George Read said that was one of the concerns which needed to be considered. Mat Cyrus asked that the Commission specifically exclude man-made wetlands from any of these ordinances and restrictions. PAGE 11 MINUTES 5-26-92 018-1300 George Read said it was state law which required that the County use these wetland maps. Jen Twining, PO Box 1017, Sisters, OR 97759, congratulated all of the staff which had worked on these proposals. She strongly supported the recommendation of the Planning Commission for the excluded conditional uses in the wildlife area combining zone, especially destination resorts which were inappropriate in all wildlife zones. Human intrusion of any type was detrimental to the preservation and was a direct conflict with the purpose of the wildlife area combining zone. She felt the "mitigation tactic" was merely a "smoke screen" used to promote and provide development into the wildlife areas. She strongly supported the deletion of the 33% density bonus for cluster developments. In 18.88.050A, Dimensional Standards, she recommended that in each of the four deer winter ranges, that the overall density on privately owned land not exceed one dwelling per 40 acre minimum. She was concerned that an inventory had not been done of the riparian areas adjacent to water lands on private land, and thought it should be done immediately. She felt the 100 -foot set back was not adequate. She recommended that the riparian areas continue to be included in the wildlife overlay zones until a survey was conducted and protections developed. She thought the recent primary election results showed that the citizens of Deschutes County were concerned about how the County officials were managing the current growth of the County. She urged the Board to stringently examine these wildlife proposals and make decisions which would represent the citizens of the County. Keith Cyrus, 17204 Highway 126, Sisters, said that wildlife was better protected if they were less publicized, i.e. the abandoned eagles nest next to the highway. He was concerned that he might have trees which the eagles might like to nest in, and would he need to cut down the trees to protect his land from the 1/4 mile radius restriction? The deer in the Central Oregon area followed the development of agriculture. His father was raised in what was now considered a winter deer range, however when he was young there weren't deer in the area. He had spoken with Jess Edgington who said the deer were sparse in the Sisters area in the 1930s. Alvin Cyrus who was raised in the Cloverdale area had said that the deer had increased with the irrigated crops, and the numbers peaked in the 1950s when poison was used to control the coyotes. He asked that the Board move slowly on limiting the property owner's use of their land because of the wildlife which the farmers had created a habitat for. Virgil Harper, Rt. 1 Box 332, Terrebonne, 97760, said the Concerned Citizens for the Smith Rock area supported the proposed draft amendments as submitted. They requested that the February 7 ordinance and mapping regarding the siting of destination resorts be amended to reflect the new information and the mapping of the wildlife area combining zones. They felt that destination resorts PAGE 12 MINUTES 5-26-92 0118-1361 should not be allowed in the wildlife area combining zones. The County should not continue to let development take place while pretending that it was enhancing and protecting the wildlife when more and more animal species and their habitat were disappearing each day. He questioned how thousands of people from a destination resort in a wildlife areas combining zone could have less impact that a few family. He said that ODF&W said the deer had left their migration corridor in the Sunriver area because of that resort. They felt the Planning Commission had worked hard and taken lots of testimony before submitting its recommendation to the Board, and they hoped that no exceptions would be made for the benefit of a few developers but at the expense of the whole County. They urged the Board to adopt the amendments submitted by the Planning Commission. Chairman Maudlin asked if during the time Mr. Harper had lived in the Terrebonne area and the number of people visiting Smith Rock had increased to 300, 000, he saw the number of deer in the area diminish. Mr. Harper said there were a number of factors besides the increase of people to the park which controlled the number of deer in the area. He said the deer had moved out of the new bivouac area at the park and have moved into people's fields. He felt there were more deer in the area now because they were recovering from a big kill from disease which went through this area. There were a lot more road kills now due to the increase of people going to the park. Norman Behrens, 61374 Parrell Road, Bend, 97702, testified that he had been a wildlife biologist for the Department of Fish and Wildlife for over 30 years. ODF&W Deschutes and Ochoco districts had reviewed the proposed amendments to the Deschutes County Comprehensive Plan, and they concurred with the documents and encouraged the Board to adopted the amendments. Their staff had jointly worked with County planning staff during the periodic review process and appreciated the County staff's dedication to the County's wildlife resources. He felt every effort had been made by County staff to protect the wildlife resource, while at the same time protecting Deschutes County's economic, social, environmental and energy resources. He said ODF&W biologists were available in the audience for any questions the Board might have (Chris Kerry, non -game biologist; Steve George, biologist who worked with the County on a lot of planning issues). Commissioner Throop said that the two witnesses from the Central Oregon Board of Realtors indicated that the set back provisions were too onerous and asked Mr. Behrens to comment. Mr. Behrens said the language required the placement of new homes within 300 feet of roads or easements unless habitat values could be given equal or greater protection through a different development pattern. The intent was to bring dwellings closer to the road to lessen the impacts on wildlife in the back areas of larger parcels. Commissioner Throop said that the current riparian and wetland PAGE 13 MINUTES 5-26-92 01.18-13sn standards were not clear and object and could not meet oal 5 requirements, and the County did not have the capability to meet Goal 5 requirements in the time frame allowed. Testimony indicated a concern that there may not be adequate interim measures to provide protection of these areas. He asked if Mr. Behrens had any suggestions on this situation. Mr. Behrens said he was not very familiar with this area since it was handled by Ted Fies in his office, therefore he did not feel comfortable giving the department's position. He felt it needed to be reexamined by the Department before taking a position. He was concerned about some of the suggestions in the testimony that an ODF&W biologist "go out and take a look at it,,, since they were currently very short of biologists who could be used for this purpose. Personally, he felt that if the County couldn't go forward with something better, "we better go back to what we had." Marla Gibson, Box 220, Terrebonne, OR 97760, testified that she lived across the street from Smith Rock State Park and had lived there about 10 years. She felt that the 300,000 people who came to the park stayed in a small concentrated area and then they left. They were not spread out in residential areas. The deer had been affected dramatically by the increase of activity in the park which forced the deer out of the park and onto surrounding properties. There were more road kills because of this. The further they were stressed by adding more people in residential areas, the more the deer would harass the people living there. The fewer buildings there were, the better it would be for the deer. She felt there were less deer now than there had been years ago, but they were spending more time in the residential areas because their pathway was being changed. Regarding whether the County should get an extension from DLCD so that a proper study could be done, she would support an extension in conjunction with a building moratorium on farm and forest land. As an example, she cited the new golf course at the Inn of the 7th Mountain, which she felt was a violation since it was in an elk habitat area. She had been told they had permission for the golf course prior to the mapping process. Commissioner Throop said he didn't see a moratorium on farm dwellings as likely, however a moratorium on the creation of new farm parcels until the study was completed might be feasible. He didn't think that forest lands were an issue any longer since the forest land goal and rule amendment had already been adopted and had not been appealed. Ms. Gibson suggested a compromise: a moratorium on any parcel separations or buildings which were located on lands affected by Goal 5 not being completed. Commissioner Throop said the County had a comprehensive land use plan which was acknowledged in 1981 which the County was operating under, while periodic review provided the opportunity to update that comprehensive plan to incorporate new laws, rules, court decision, etc. He asked if she felt the County should not be using the current comprehensive plan until the period review process was completed? Ms. Gibson asked if there had been any violations since the comprehensive plan had been approved? Commissioner Throop said PAGE 14 MINUTES 5-26-92 0118-1363 he could only think of one appeal which the County was reversed on, and recently one denial had been remanded back to the County. Ms. Gibson said she didn't think the public understood the appeal's process or how to contest decisions. Dave Jaqua, 1655 West Highland, Redmond, testified that he was an attorney representing Jim Gardner and Mick Humphries. He felt the economic benefits of destination resorts were well documented. He asked if a fishing lodge was allowed someplace in this ordinance. He was informed that they were allowed in the forest zone. His clients were directly concerned with the Grizzly Wildlife Management Unit as identified by ODF&W. He felt the staff and ODF&W had done an excellent job with the sensitive bird and mammal combining zone ordinance and the mitigation process, however he felt there were some questions regarding the depth of the quality and quantity analysis. He had questions about the balancing of Goal 5 and Goal 8 issues. He agreed there were some differences in the mapping, i.e. Jefferson County had a deer map which was not in the deer winter range, and Crook County was currently doing wildlife mapping. In Crook County, as late as the spring of 1990, this area was not considered a critical area. He said there were some basic areas of conflict which were discussed in both the staff report and in the ODF&W planning guide. The staff's primary ones were: dwellings, roads and dogs. ODF&W also identified dwellings, roads, dogs, mining activity and recreational vehicles. He said there were "pages and pages" of uses permitted in the RR -10, MUA- 10, and the EFU zones which would be a far greater conflict than the ones being proposed in their limited use. On the property adjoining his clients, there was an enhancement project (a hunting area) which had been coordinated by several state and federal agencies and the Oregon Hunters Association. He couldn't think of a greater conflict to wildlife than hunting, however in this County there was a balance of uses. The conflicts mentioned by staff and the ODF&W handbook were things specifically not allowed in the proposed ordinance changes which he had submitted. In 1984 the state went through a lengthy Goal 8 process and specifically identified areas which they considered especially sensitive big game habitat. ODF&W recognized that those areas were only about 5% of the recognized wildlife areas in comprehensive plans. So he felt there was never an intent to take all the wildlife areas recognized in comprehensive plans and exclude destination resorts from them, and the handbook said the same thing. He felt there were three alternatives to consider: (1) follow Goal 8; (2) the County had the right to set its own regulations which could be more restrictive and not allow destination resorts or related activities in any wildlife area; however he had a problem with that because so many other activities were being allowed which were far more disruptive to the wildlife than a destination resort; and (3) try to do a balancing of the Goal 5 and Goal 8 resources. He suggested using the same system which ODF&W used on their own land which was to close the area during the winter. This would not place a greater burden on private land than what the public agencies did PAGE 15 MINUTES 5-26-92 6118-1364 with their own lands. He understood this language would be acceptable with ODF&W. He felt there was a distinction between how wildlife areas and especially sensitive areas should be dealt with. Virgil Harper testified again regarding the destination resort handbook. The cover page stated that "the handbook was intended to provide general guidance and background information on siting requirements for destination resorts," but was not intended to interpret Goal 8 requirements or substitute for ordinance language. On the map referred to by Mr. Jaqua there was a note which said that the map was generalized and was to be refined by counties. The ODF&W land use planning guide of July 1989 said that destination resorts, because of their intensity and scale of use, could result in direct loss of habitat, interference with migration routes, increased stress on animals, increased game -caused damage, reduced overall animal population levels and curtailed recreational hunting opportunities. This guide also said that during periodic review of acknowledged plans, refinements of additions to destination resort maps would be the responsibility of ODF&W county coordinators. LCDC intended that County planners work with ODF&W biologists to review maps and identify changes as the County came up for periodic review. In the destination resort handbook it said that very few travelers came to Oregon to stay in one spot for several days, which meant that very little of Oregon's tourism took place at destination resorts. He felt destination resorts were just large housing developments. Suzanne Smither, 702 NE Basalt, Terrebonne, 97760, testified that the area being discussed by Mr. Jaqua was already an area with a high concentration of people and was already being overused. The deer corridors were already overstressed and there were a lot of road kills. The destination resort would concentrate over 1,000 people into the area at one time which would be a much larger impact than the existing permitted uses in wildlife areas owned by the BLM, etc. Dave Jaqua testified again that he had heard that the majority of people who came to Smith Rock Park didn't go into the wildlife area, so he felt a distinction needed to be made. He didn't think it was reasonable to assume that everyone who went to a destination resort would be spending their time in a wildlife enhancement area either. The destination resort handbook said that the areas designated on the map were much less extensive than the areas designated as big game habitat in acknowledged plans pursuant to Goal 5. The difference was that Goal 8 focused on especially sensitive habitat areas. This was an intentionally narrower category of lands which deserved the additional level of protection. He said there was a memo from LCDC which said that Counties and ODF&W would have the discretion to fit general areas identified on statewide maps to specific topographic features which would more accurately limit the extent of the habitat. This change would not have the effect of allowing ODF&W to add separate new PAGE 16 MINUTES 5-26-92 0.18-1.365 areas to those identified on the map. In the handbook it said that people who came to destination resorts weren't residential and this type of person did not come in a camper or car to camp out but were people who came to spend money and have a positive financial impact on the area. Commissioner Throop said Mr. Jaqua was talking about big game habitat, while the Board was considering winter deer ranges, and asked if there was a difference. George Read said not with regard to the issue being discussed. Big game habitat which the County identified as significant enough for protection under Goal 5 was the winter range, and it was what ODF&W used on the destination resort map for the County. Chairman Maudlin adjourned the meeting. DATED this —1 �" , day o Commissioners of Deschutes AT T: ecording Secretary PAGE 17 MINUTES 5-26-92 0i 18-1366 Community Development Department cl Administration Bldg. • 1130 N.W. Harriman • Bend, Oregon • 97701 (503) 388-6575 Planning Division Building Safety Division Environmental Health Division STAFF REPORT SUBJECT: Periodic Review - ish and Wildli Comprehensive Plan Aments, Title 18.88 amendments, Proposed Title 18.90, DATE: May 20, 1992 FILE: TA -91-14 INTRODUCTION The Goal 5 Rule .(OAR 660-16) was adopted after the county adopted the Year 2000 Deschutes County Comprehensive Plan and Title 18. The county is required to implement the Goal 5 rule as part of periodic review. The county submitted a draft periodic review order to the Department of Land Conservation and Development (DLCD) in 1989. In an August 27, 1990 letter, DLCD identified the deficiencies with the draft periodic review order. The letter stated the that the county needed to adopt clear and objective standards in the Wildlife Area Combining Zone, provide additional documentation on the implemented measures to protect fish and wildlife habitat, and evaluate and amend the implementing measures to be consistent with the Goal 5 Economic, Social, Environmental and Energy (ESEE) consequences analyses. Staff did some preliminary work on the Goal 5 wildlife element of periodic review during 1991. The Deschutes County Planning Commission began working on the fish and wildlife issues at a work session on February 12, 1992. The Planning Commission held a public hearing on March 11 to take testimony on draft amendments to Title 18.88, the Wildlife Area Combining Zone, the goals and policies in the Deschutes County Year 2000 Comprehensive Plan - Fish and Wildlife Chapter, and the Resource Element of the Comprehensive Plan. On March 25, the Planning Commission held a work session and directed staff to make changes to the proposed amendments. On April 22, 1992 the planning commission held a second public hearing on the proposed amendments, including the Periodic Review, Goal 5, Wildlife May 20, 1992 Page 1 01 18-1367 revised ESEE analysis for fish and wildlife, revisions to Title 18.88 and the comprehensive plan policies, and the proposed Title 18.90, Sensitive Bird and Mammal Combining Zone. On May 13, the planning commission held a work session to make final changes to the proposed documents and make a recommendation to the Board. The planning commission recommends the following to the Board: 1. Proposed amendments to Deschutes County Year 2000 Comprehensive Plan (Ordinance 92-040). 2. Proposed amendments to Title 18.88 - Wildlife Area Combining Zone (Ordinance 92-042). 3. Proposed Title 18.90, Sensitive Bird and Mammal Combining Zone (Ordinance 92-042). 4. Proposed amendments and additions to Fish and Wildlife chapter of the Deschutes County Comprehensive Plan Resource Element (Ordinance 92-041). a. Fish and Wildlife Areas and Habitats - Introduction b. Fish habitat inventory and ESEE c. Deer winter range inventory and ESEE d. Deer migration corridor inventory and ESEE e. Elk Habitat inventory and ESEE f. Antelope habitat inventory and ESEE g. Sensitive bird inventory and ESEE Golden Eagle Bald Eagle Osprey Prairie Falcon h. Townsend's big -eared bat inventory and ESEE i. Waterfowl habitat inventory and ESEE j. Upland game bird habitat inventory and ESEE k. Furbearer habitat inventory and ESEE 1. Wetlands and riparian area inventory and ESEE M. Threatened and Endangered species inventory and ESEE 5. Big Game Habitat Area - Wildlife Area Combining Zone Map (Ordinance 92-043). 6. Sensitive Bird and Mammal Habitat Map (Ordinance 92-043). 7. Adoption of wetland inventory (Ordinance 92 - SUMMARY OF PROPOSED AMENDMENTS AND ORDINANCES The following discussion identifies the key changes and significant issues which are part of the proposed amendments and new ordinances. Periodic Review, Goal 5, Wildlife May 20, 1992 Page 2 Resource Element - Inventories and ESEEs During late February and early March 1992, staff worked with the Oregon Department of Fish and Wildlife to obtain the best available inventory information for fish and wildlife resources in the county. Staff revised the ESEEs which were included in the draft periodic review order submitted to DLCD provided more detailed inventory information, expanded the ESEE analysis and described the program to implement the ESEE decision. The draft periodic review order relied heavily on the Deschutes County/City of Bend River Study ESEEs. The River Study ESEEs have been incorporated by reference into the the revised species specific ESEEs where applicable. The introduction and the ESEEs will replace the existing Fish and Wildlife chapter in the Resource Element of the Comprehensive Plan. The River Study and its ESEEs are currently a part of the Resource Element of the Comprehensive Plan and will remain part of the resource element as a separate section. The big game habitat including the deer winter range, elk habitat, antelope range, Bend/LaPine deer migration corridor are mapped on a new map titled "Big Game Habitat Areas - Wildlife Area Combining Zone." The sensitive birds and mammal habitat sites on non-federal land and the sage grouse range and leks are mapped on a new map titled "Sensitive Bird and Mammal Habitat." Both of these maps will be adopted as part of the resource element. The maps will also have to be adopted as the official zoning map for the Wildlife Area Combining Zone and the Sensitive Bird and Mammal Combining Zone. The county has been using the U.S. Department of Interior Wetlands Inventory maps to identify wetlands. The ESEE for wetlands states that these maps are the inventory of wetlands in the county. The county needs to adopt the maps as the inventory of significant wetlands in the county. These inventoried wetlands are subject to the provisions of Title 18.128.040(W), the conditional use standards for any fill and removal in a wetland. Year 2000 Comprehensive Plan The amendments to the Comprehensive Plan goals and policies clarify the language and make the policies consistent with the ESEEs and the Wildlife Area Combining Zone (WA zone). New policies are proposed to address the county owned land, the deer migration corridor, "iB" wildlife resources, and notification of other agencies. Policy 1 requires cluster or planned development for new land partitions in the RR -10 or MUA-10 zones in the deer winter Periodic Review, Goal 5, Wildlife May 20, 1992 Page 3 range. 0118-1.369 Staff recommends that Policy 3 be amended to read: In the Bend/LaPine deer migration corridor identified in the comprehensive plan resource element where the underlying zone is Rural Residential - 10 new land divisions shall be cluster developments. The amendment would make the policy consistent with the amended provisions of the WA Zone recommended by the planning commission. Staff discovered the inconsistency between the ordinance and the policy after the draft was submitted to the Board for review. Policy 7 recognizes certain sensitive bird and mammal species and requires the establishment of a sensitive bird and mammal combining zone. Policies 8 and 9 add the antelope and elk ranges to the WA zone and set minimum lot sizes. Policy it requires the county to review the riparian vegetation provisions and, if necessary, amend the comprehensive plan and ordinances by December 31, 1993. Policies 14 and 15 address the problem of existing parcelization in the Bend/LaPine deer migration corridor and the potential for protecting existing habitat important for migration. Upon completion of the Deschutes County/City of Bend River Study, the Board adopted goals and policies related to fish and wildlife in the river corridor in a new comprehensive plan chapter entitled "Deschutes River Corridor". The proposed policies in the Fish and Wildlife chapter are not inconsistent with the policies in the Deschutes River Corridor chapter. Title 18.88 - Wildlife Area Combining Zone The proposed amendments to the WA zone expand the zone to include antelope range, elk range, the Bend/LaPine deer migration corridor and additional deer winter range north of the Crooked River at Smith Rock State Park. Section 18.88.050 implements protection measures for the identified big game habitat areas including minimum lot sizes and requirements for cluster or planned development in areas where the underlying zone is RR -10 or MUA-10. The proposal removes the references to riparian areas in Sections 18.88.020 and 18.88.060. The ESEE for riparian areas and wetlands identifies the implementing measures to protect the resource as the 100 foot setback, the Flood Plain Zone, the Landscape Management Zone, the requirements for conservation easements and the conditional use permit requirement fob' all fill and removal (Title 18.128(W)). A Periodic Review, Goal 5, Wildlife May 20, 1992 Page 4 policy (policy 11) has been proposed in the comprehensive plan to require the county to review riparian vegetation protection measures by December 1993, and amend the comprehensive plan and ordinances if necessary. 0118-1-370 Section 18.88.040(B) prohibits certain conditional uses in the WA zone. The most controversial of these prohibited uses is destination resorts. The planning commission received considerable testimony on two sides of the destination resort issue. One side favored permitting limited uses associated with a destination resort such as trails, wildlife enhancement, picnic areas etc. in the WA zone. The other side was opposed to including any part of a destination resort in the WA Zone. There was extensive discussion at the planning commission about using the WA zone as a mitigation area for destination resorts. The planning commission concluded that nothing prohibited WA zoned land from being used as an off-site mitigation area. The Board may want to consider specifically allowing mitigation plans for wildlife as a permitted use in all zones. If the Board decides to adopt the planning commission recommendation and prohibit destination resorts, the adopted destination resort map will need to be amended to remove the land designated as WA from the Destination Resort Map. The lands that would be removed from the adopted maps would include RR -10 zoned land in the Metolius and North Paulina deer winter ranges and all of the land in proposed Smith Rock deer winter range, the antelope range, the Bend/LaPine migration corridor and the elk range. Section 18.88.060 establishes a siting standard for new dwellings of 300 feet from existing roads or easements unless another location will provide the same or greater protection of habitat values. Section 18.88.070 establishes fencing standards. Title 18.90 Sensitive Bird and Mammal combining Zone The proposed ordinance sets out a process to protect habitat sites for bald eagles, golden eagles, prairie falcons, great grey owls, heron, osprey and Townsend's big -eared bats. These species have been identified sensitive species by the Oregon Department of Fish and Wildlife. Previously, even though the county identified the habitat sites for many of these species in the Comprehensive Plan, there were no provisions in the ordinances to protect the habitat sites. The habitat sites are identified in the Comprehensive Plan Resource Element inventory. Some sites are specifically located others are located to the nearest quarter section (160 acres). Sites where the location is not identified to at least the quarter section have been classified as "iB" because there is insufficient information to complete the Periodic Review, Goal 5, Wildlife May 20, 1992 Page 5 0 18-1371 Goal 5 process. Only the sites on non-federal land an those which could extend onto non-federal land are subject to the proposed ordinance. The sites on federal land are protected under the federal land management plans. The ordinance requires an applicant for a building permit, land division, conditional use or site plan to develop a management plan for the habitat site if the county in consultation with ODFW determines that the proposal is within the habitat site and could cause the site to be abandoned or destroyed. The ODFW has 20 days to comment on the applicant's habitat management plan. The county makes the final decision on the adequacy of the management plan. Periodic Review, Goal 5, Wildlife May 20, 1992 Page 6 PUBIJ DATE: RECEIVED PUBLIC HEARING SPEAKERS' LISTING MAY 2 6 1992 NAME ADDRESS MY ZIP 2. 3. 4.OI� 5.412 7. 7 Zll� 9. V 1] 12. 13. 14. 15. 16. 17. 18. 19. �bI Z)4v 1