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1993-23574-Ordinance No. 93-029 Recorded 7/7/1993ri BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending PL -20, The Deschutes County Year 2000 Plan, to Amend Policies Regarding Siting of Destination Resorts and Declaring C an Emergency. 93-2:1574 0127 .'d2 Ordinance No. 93-029 WHEREAS, Deschutes County has an acknowledged comprehensive plan; and WHEREAS, Deschutes County has determined to implement LCDC Statewide Planning Goal 8 regarding destination resorts; and WHEREAS, the Board of County Commissioners previously adopted ordinances 92-001, 92-002, 92-003 and 92-004 to implement Statewide Planning Goal 8; and WHEREAS, Ordinances 92-002 and 92-003, concerning the destination resort maps were remanded by the Land Use Board of Appeals (LUBA), and that decision was affirmed by the Oregon Court of Appeals; and WHEREAS, the County wishes to proceed to correct the defects that LUBA and the Court of Appeals found in those maps in a manner that would allow the portions of the maps not affected by the appeals to become effective; and WHEREAS, an amendment to Ordinance No. PL -20, the Deschutes County Year 2000 Plan, as amended, is necessary in order to implement the county's approach to correcting the legal deficiencies in Ordinances 92-002 and 92-003; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS AS FOLLOWS: Section 1. Policy 10 set forth in Exhibit "B" of Ordinance No. 92-001 which amended Ordinance No. PL -20, the Deschutes County Year 2000 Plan, as amended (found on page 9 of Ordinance No. 92-001) , is amended to read as follows (with additions displayed in bold-faced type): "10. The County shall implement Goal 8 in a phased sequence as follows: (a) The County shall adopt a zoning ordinance including all provisions required by Goal 8. 1 - ORDINANCE NO. 93-029 (7/7/93) ty HEDhtiChOfiLMEQ 1983,ul_ 21993 012'7-043 (b) The County shall identify countywide any lands excluded by Goal 8 from destination resort siting. Based on Alliance for Responsible Land Use in Oregon v. Deschutes County, 23 Or LUBA 476, affirmed, 15 Or App 621 (1992), land within three miles of the county border shall be excluded under Goal 8 countywide at this time. The exclusion will be reconsidered when land located in adjoining counties and within three miles of Deschutes County has been inventoried to determine whether any of that land constitutes high value crop areas in a manner adequate to determine whether any land in Deschutes County is within three miles of a high value crop area located in a neighboring county. (c) The County shall map lands available for destination resort siting in a phased sequence. The County shall first consider unirrigated EFU lands and irrigated EFU lands having fewer than 40 acres of contiguous irrigated land or 60 acres of non-contiguous land in the same ownership where such lands are not otherwise excluded from destination resort siting under these policies and Goal 8. Next, as the County proceeds to implement the Goal 4 forest land rule as part of periodic review, the County shall consider to what extent destination resorts may be sited on lands presently zoned for forest uses. Finally, after the County has completed a farm study pursuant to periodic review, the County shall consider to what extent destination resorts may be sited on EFU lands not considered during the first phase of implementation of Goal 8. As to those lands not considered in this first phase of destination resort mapping and not otherwise excluded by Goal 8 and Policies 2 and 3 herein, nothing in these policies shall affect the County's consideration in the future as to whether such lands should be made available for destination resort siting. County shall complete consideration of forest lands and remaining EFU lands for destination resort siting in conjunction with periodic review. As successive phases of the destination resort process are taken up by the County, the County may make amendments to the comprehensive plan and zoning maps to add additional areas to the destination resort map." Section 2. The Board Of County Commissioners adopts as its findings and conclusions in support of the amendment set forth in Section 1 of this Ordinance the Findings attached hereto as Exhibit "A" and incorporated herein by reference. 2 - ORDINANCE NO. 93-029 (7/7/93) 012'7-0454 Section 3. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this ordinance takes effect on its passage. DATED this `7A day of July, 1993. BOARD OF UNTY COMMISSIONERS OF DES S COUNTY, OREGON T TI1ROdP, it ATT ST N Y PO E SC GEN, Commiss' n Recording Secretary BARRY HI SLAUGHT R, Commissioner 3 - ORDINANCE NO. 93-029 (7/7/93) 0127�-041-35 EXHIBIT "A" Findings in support of Destination Resort Ordinances 93-029, 93-030 and 93-031 1. These findings supplement the findings adopted in support of Destination Resort Ordinances 92-001, 92-002, 92-003 and 93-004. 2. On February 7, 1992, the Board of County Commissioners (Board) adopted Destination Resort Ordinances 92-001, 92-002, 92- 003 and 92-004 to amend the Deschutes County Comprehensive Plan and the Deschutes County Zoning Ordinance to implement the provisions of LCDC Statewide Planning Goal 8 relating to destination resort siting on resource lands. Ordinance 92-001 amended the Comprehensive Plan to add goals, policies and other text concerning the siting of destination resorts. Ordinance 92-002 amended the Comprehensive Plan by adopting a countywide map designating certain lands for the siting of destination resorts and a series of eight maps showing portions of the countywide map in greater detail. Ordinance 92-003 amended the county zoning ordinance to map as a destination resort overlay zone those areas designated for destination resort siting on the countywide map and eight detailed maps adopted under Ordinance 92-002. Ordinance 92-004 amended the county zoning ordinance to (1) add definitions concerning destination resorts; (2) add a new destination resort overlay zone chapter (Chapter 18.113); and (3) add or delete the destination resorts as a conditional use subject to the destination resort overlay zone in various zoning districts. Those ordinances were adopted pursuant to hearings held before both the Deschutes County Planning Commission and the Board of County Commissioners for Deschutes County, at which extensive public comment was taken. 3. Ordinances 92-001, 92-002, 92-003 and 92-004 were appealed to the Land Use Board of Appeals (LUBA) by the Alliance for Responsible Land Use in Deschutes County (ARLUDeCo) and 1000 Friends of Oregon. In Alliance for Responsible Land Use in Deschutes County v. Deschutes County, 23 Or LUBA 496 (1992), LUBA held that Deschutes County could not designate lands as available for destination resort siting and apply the destination resort overlay zone within three miles of the County's borders without determining whether those lands are within three miles of high value crop areas located in a neighboring county. On that basis, LUBA remanded Ordinances 92-002 and 92-003 (the mapping ordinances), but held that there was no basis for reversing or remanding ordinances 92-001 and 92-004, which amended the Comprehensive Plan and zoning ordinance text. Deschutes County and Intervenors James Gardner and Michael Humphreys appealed LUBA's remand of Ordinances 92-002 and 92-003 to the Court of Appeals. ARLUDeCo and 1000 Friends of Oregon did not cross appeal LUBA's affirmance of Ordinances 92-001 and 92-004. The Court of Appeals affirmed LUBA's remand of Ordinances 92-002 and 92-003 in Alliance 1 - EXHIBIT "A" TO ORDINANCES 93-029, 93-030, 93-031 (7/7/93) 0.2'7-0436 for Responsible Land Use in Oregon v. Deschutes County, 15 Or App 621 (1992). The Court's opinion became final on February 9, 1993, and the County LUBA's remand order was issued on February 12, 1993. 4. In May 1993, the County received a request from Eagle Crest Partners, Ltd. for legislative amendments to the Deschutes County Comprehensive Plan and to Ordinances 92-002 and 92-003 to address the issues raised by the remand of those ordinances. The Board finds that Eagle Crest proposes to expand a destination resort in a location beyond three miles from any of the County's borders and on land that was not the subject of the aforementioned appeals to LUBA and the Court of Appeals. Eagle Crest has requested these amendments to allow it to proceed with its expansion without awaiting a determination as to whether there are lands inside the County located within three miles of high value crop areas in adjoining counties. 5. The Board finds that Eagle Crest had previously requested legislative amendments to fix the County's maps in the summer of 1992. That hearing process was designated TA 92-11. Although a hearing was held on that proposal in September 1992, the Board finds that those proceedings were abandoned in favor of awaiting either for the Court of Appeals to decide in the County's favor or to remand the issue to the County to correct any defects identified. The Board finds that the legislative proceeding under which these Ordinances 93-029, 93-030 and 93-031 have been considered is a new and separate proceeding from the summer 1992 proceeding. The Board finds that the enactment of these 1993 ordinances constitutes nothing more than an extension of the proceedings by which Ordinances 92-001 through 92-004 were enacted. 6. The Board finds that the maps adopted by Ordinances 92-002 and 92-003 constitute existing enactments that are subject to amendment to remedy deficiencies identified by LUBA and the Court of Appeals before they can become effective. It is the Board's intent in proceeding with these 1993 ordinances that the maps adopted by Ordinances 92-002 and 92-003 be amended so that those 1992 maps are consistent with Goal 8 and can become effective. Nothing in these Ordinances 93-029 through 93-031 acts to repeal any portion of Ordinances 92-002 and 92-003, except as the maps are amended herein. 7. The Deschutes County Planning Commission conducted a review of the proposed ordinance amendments at a work session held on June 9, 1993. After discussion, the Planning Commission voted unanimously to recommend to the Board of County Commissioners that the ordinances, as drafted, be approved. 2 - EXHIBIT "A" TO ORDINANCES 93-029, 93-030, 93-031 (7/7/93) 0.2'7-0437 The Board of County Commissioners held a public hearing on June 16, 1993 on the proposed ordinances. The Board left the record open for written testimony until June 23, 1993 at 5:30PM. 8. The Board previously made findings that no land in Deschutes County qualified to be designated as a high value crop area. At that time, the Board did not inventory land in adjacent counties to determine whether any land located in those counties and within three miles of the Deschutes County borders should be designated as high value crop areas. The Board now finds that neighboring counties have not determined whether any land located within three miles of their respective borders with Deschutes County should be designated as falling within a high value crop area. 9. After careful review of the opinions of LUBA and the Court of Appeals in Alliance for Responsible Land Use in Deschutes County v. Deschutes County, and after careful consideration of the requirements of Goal 8, the Board has identified two possible courses of action to remedy the defects identified by LUBA and the Court: (1) delay implementation of phase I of the Goal 8 mapping process until lands within three miles of the County's border have been inventoried and a determination has been as to whether lands located within three miles of the County borders fall within high value crop areas; or (2) proceed with Goal 8 at this time for only those areas located more than three miles from the County's borders. The Board finds that it is not compelled by the remand of Ordinances 92-002 and 92-003 to identify high value crop areas located in other counties at this time. Instead, the County may comply with Goal 8 by removing all land in the County within three miles of the County border from availability for destination resort siting under Goal 8 until such time as high value crop areas in neighboring counties have been identified. After further consideration, the County finds that it prefers the approach of removing land within three miles of the County border for consideration for Destination Resort Siting at this time until land in one or more adjoining counties within three miles of their borders with Deschutes County has been inventoried and determinations made as to whether any such lands should be designated as high value crop areas. The Board finds that this policy is the best response to the remand of Ordinances 92-002 and 92-003 in that: a. Coordination of land use planning with neighboring counties, where appropriate, will be enhanced because Deschutes County will not be required to make unilateral decisions identifying high value crop areas in neighboring counties; b. Deschutes County's administrative resources will be conserved by coordinated planning and identification of high value crop areas in neighboring counties; 3 - EXHIBIT "A" TO ORDINANCES 93-029, 93-030, 93-031 (7/7/93) 0127`045-8 c . The Board at present has no reliable estimate of how long it will take to identify high value crop areas in neighboring counties through a coordinated process with the respective County governments; and d. Removal of the three-mile area inside the county border from availability for destination resort zoning at this time will allow destination resort siting to proceed in the remainder of the County subject to the destination resort overlay zone designation, Chapter 18.113 of the Deschutes County Zoning ordinance, and other applicable provisions of the zoning 10. Ordinances 93-029, 93-030 and 93-031 have been developed to implement the Board's preferred approach. Ordinance 93-029 amends Ordinance No. PL -20, the Deschutes County Year 2000 Plan, to clarify that land within three miles of the Deschutes County border will be excluded from destination resort siting under Goal 8 until such time as the County, in coordination with adjoining counties where necessary, has adequately identified high value crop areas in neighboring counties. Ordinance 93-030 amends Ordinance 92-002 by amending the existing destination resort comprehensive plan maps to remove all land within three miles of the County borders from designation for the siting of destination resorts. Ordinance 93- 031 amends Ordinance No. 92-003 by amending the existing destination resort zoning maps to remove all land within three miles of the County borders from the Destination Resort Zone. 11. The Board finds that a map labelled "Deschutes County Destination Resort Map Amendment - 3 -Mile Border Area" has been prepared by Wilsey & Ham Pacific, and that said map accurately depicts a line three miles inside the Deschutes County border and that the map combined with the text of Ordinances 93-030 and 93-031 has the effect of removing all areas within three miles of the County's borders from the destination resort maps adopted by Ordinances 92-002 and 92-003. No parties challenged the accuracy of the map with respect to the location of the line 3 miles from the County's borders. The Board finds that any land located more than three miles inside the Deschutes County border, based on said map, necessarily will be more than three miles from any high value crop area in a neighboring county. 12. The Board finds that as ordinances promulgated solely to respond to the court remand and to remedy a specific defect identified thereby, Ordinances 93-029, 93-030, and 93-031 will have no effect on compliance with Statewide Planning Goals other than the process goals set forth in LCDC Statewide Planning Goals 1 and 2, and Statewide Planning Goal 8 (and its associated codification in state statute, collectively referred to as Goal 8), under which ARLUDeCo and 1000 Friends of Oregon brought their original challenge to Ordinances 92-001, 92-002, 92-003 and 92-004. The Board specifically rejects the contentions raised by 4 - EXHIBIT "A" TO ORDINANCES 93-029, 93-030, 93-031 (7/7/93) 0127-040$9 ARLUDeCo in these remand proceedings with regard to issues that could have been raised during the proceedings to adopt Ordinances 92-001, 92-002, 92-003, and 92-004 and any appeal of those enactments. The Board finds that most of the testimony submitted by ARLUDeCo in these remand proceedings is beyond the scope of the remand before the Board. ARLUDeCo argues that Ordinances 92-002 and 92-003 were remanded in their entirety and as a consequence all issues underlying the adoption of the County's destination resort maps are open to comment and challenge in this remand process. ARLUDeCo is wrong in this regard. The Board finds that ARLUDeCo briefed only the issue of the County's failure to map high value crop areas in adjacent counties. The Board further finds that the Court's decision to remand the County's destination resort map was based solely on that limited issue. The Board finds that LUBA and the Court likely remanded the ordinances in their entirety because either no argument was made before those appellate bodies to sever the valid portions of the map from the invalid portions or they found it impractical to attempt such a severance. Had ARLUDeCo argued, and had the Court found, that the map was invalid in total, the remedy would have been to reverse the County outright and not to remand the ordinances for further consideration. The Court having remanded rather than reversed the subject ordinances, the implication is clear that the County need only correct the defects the Court found in the maps.' The Board finds that the maps have been exposed in total to public scrutiny in the public hearing process that preceded the adoption of Ordinances 92-002 and 92-003 and out of which arose the challenge that resulted in this remand; there is no requirement that the County open up for review other issues, such as water availability, llamas as high value crops, economic impacts of destination resorts, etc., that could have been raised on appeal previously. The Board finds that this conclusion is not altered by the fact that there may have been additional wildlife areas identified and other changes in circumstances since the time the original maps were adopted. Having satisfied the Goals at the time of the enactment, except as to those issues identified in the remand, the County is not required to take note of resources identified after that enactment. See Miller v. City of Dayton, 113 ' The fact that this legislative proceeding is undertaken pursuant to a remand order from LUBA and the Court of Appeals distinguishes this legislative process from the process initiated by the County in the summer of 1992 and referred to by ARLUDeCo in its comments as TA -92-11. The summer 1992 attempt was undertaken outside the mantle of the remand and hence, arguably, constituted a new legislative process in which all goals and issues relevant thereto could be raised. The Board has already found that this 1993 process constitutes a different proceeding. 5 - EXHIBIT "A" TO ORDINANCES 93-029, 93-030, 93-031 (7/7/93) 012'7-0440 Or App 300 (1992). The Board finds that as a legislative body it has the authority to limit the scope of any legislative proceedings before it and that is has exercised that authority here to consider only those issues necessary to address the defects identified by the Courts in a manner to allow the portions of the maps unaffected by the remand to become effective. 13. The Board finds that ordinances 93-029, 93-030 and 93-031 meet the requirements of Goal 8 and the decisions of the Land Use Board of Appeals and the Court of Appeals in Alliance for Responsible Land Use v. Deschutes County because the ordinances ensure that land in Deschutes County will not be designated as available for destination resort siting until there has been a determination that the property is not within three miles of a high value crop area. The Board recognizes that the approach may be over inclusive; land that in fact is not within three miles of a high value crop area may well be excluded from destination resort siting. However, the Board finds that it may, consistent with Goal 8, exclude such areas as a matter of County policy until sufficient information is available to identify those specific lands that are within three miles of high value crop areas located in neighboring counties. 14. The Board finds that Goal 1, Citizen Involvement, has been met by the series of hearings held before both the Planning Commission and the Board of County Commissioners on the destination resort package. The Planning Commission serves as the County's Citizen Involvement Committee. 15. The Board finds that Goal 2, Land Use Planning, is satisfied by these ordinances with respect to requirements for setting forth the factual basis for the Board's decision. 6 - EXHIBIT "A" TO ORDINANCES 93-029, 93-030, 93-031 (7/7/93)