1995-30730-Ordinance No. 95-058 Recorded 8/31/1995REWEW
9530'730
BEFORE THE BOARD OF COUNTY COOMSSIONERS OF DESCHUTES cquNTtFGbR§=EL
An Ordinance Amending PL -20, *�*�;
Deschutes County Comprehensive
Plan Map, Changing the Plan * r
Designation on Certain Property,
and Declaring an Emergency. * 0147-1731
ORDINANCE NO. 95-058
WHEREAS, tax lot 1100 in Section 6 of Township 17 South, Range 12
East of the Willamette Meridian is one tax lot totalling 3.61 acres of
real property designated as Open Space and Conservation under the
County's Comprehensive Plan; and
WHEREAS, this tax lot described in Exhibit "A" and depicted in
Exhibit "B" attached hereto (hereafter referred to as subject 3.61
acres) was designated Open Space and Conservation by PL -20, the
Deschutes County Comprehensive Plan, in 1979, when it should have been
designated Rural Residential Exception Area, as more fully set forth in
the Hearings Officer's report attached hereto as Exhibit "C"; and
WHEREAS, John and Marcia Walther have proposed a Plan Amendment to
PL -20, based on an irrevocably committed exception to Statewide
Planning Goals #3, Agriculture and #5, Open Spaces, Scenic and Historic
Areas and Natural Resources, to re -designate the subject 3.61 acres
from Open Space and Conservation to Rural Residential Exception Area in
the County's Comprehensive Plan;
WHEREAS, the Deschutes County Hearings Officer, after review
conducted in accordance with applicable law, has recommended approval
of the proposed Plan Amendment to PL -20, the Deschutes County
Comprehensive Plan; and
WHEREAS, after notice was given and a hearing conducted on August
30, 1995 in accordance with applicable law, the Board of County
Commissioners have considered the Hearings Officer's recommendation;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
ORDAINS as follows:
Section 1. That PL -20, the Deschutes County Comprehensive Plan Map, as
amended, is further amended to change the plan designation for the
subject 3.61 acres, as more fully described in Exhibit "A" and depicted
in Exhibit "B" attached hereto and by this reference incorporated
herein, from Open Space and Conservation to Rural Residential.
Section 2. In support of its decision, the Board adopts the findings
and recommendations of the Hearings Officer, attached hereto as Exhibit
"C", which is incorporated herein by reference.
1 - ORDINANCE NO. 95-058
NEI)
AUG 3 1995 ,; _MEa
A 199
0147-1732
Section 3. REPEAL OF ORDINANCES AS AFFECTING EXISTING LIABILITIES.
The repeal, express or implied, of any ordinance, ordinance provision,
code section, or any map or any line on a map incorporated therein by
reference, by this amending ordinance shall not release or extinguish
any duty, condition, penalty, forfeiture, or liability previously
incurred under such ordinance, unless a provision of the amending
ordinance shall so expressly provide, and such ordinance repealed shall
be treated as still remaining in force for the purpose of sustaining
any proper action or prosecution for the enforcement of such duty,
condition, penalty, forfeiture, or liability, and for the purpose of
authorizing the prosecution, conviction and punishment of the person or
persons who previously violated the repealed ordinance.
Section 4. 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 -,30 day of
ATTEST:
Recording Secretary
2 - ORDINANCE NO. 95-058
A 114- 1995.
BOARD OF COUNTY COMI+IISSIONERS
OF DESCHUTES COUNTY, OREGON
BARRY H. SLAUGHTER, Chair
NANCY POPE SCHLANGEN, Commissioner
RO L. NIPPER, Comm ioner
i,4,a 4 J I J
t EXHIBIT A 0147-1733
� PARCEL I
t A parcel of lead lying in the Southwest. Quarter Southeast ;.carter _
(SW1/4 991/4) of Section Six (6), Township Seventeen (17) South, Range k
Twelve (12) East of the Willamette Meridian, Deschutes County, Oregon;
the said parcel being described as followas
Beginning at the Southwest corner of the SEI/4 SE1/4 of said Section
6, thence North 0°'38 '00' East on the quarter line to its
intersection with the South right of way line of the former
McKenzie-Bend Highway which was abandoned to Deschutes County by order
dated April 15, 1953; thence in a straight line to a point on the
,'. South line of said-Section 6, 390.65 feet West of the Southwest corner
of said-991/4 SEllt cf Section 6; thence Easterly along said South
line of said Section 6 to the point of beginning.
The said parcel contains 3.6 acres, more or less.
a
014771734
Q SCALL. 1: 9600.
ano . aoo
sa�ase�reR �m
sec W n 11 of
I
Ex++►B�T tea"
v
�J I
I v in
u
--
M
�m
�m
oa
CD >w
o�
�
o) -o
� m
1
,'��
' •
ul
g
-
Su6JECT
I
C�
PRomiev
..
• ... .
£ I
g
.• •.•
g ..
i
N
_g
I
W
1�
t
FRI
I
I
Z
OO��Y�00+4�08000� ■
O
t
=
SM YV ,! 12 0!C
see wr 17 12 059
N
�
O
Ex++►B�T tea"
014'7-1735
DECISION
of
DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
PA -95-4 and ZC-95-5 -'
HEARING DATE:
Tuesday, June 20, 1995
APPLICANT:
John and Marcia Walther AUG 1995
3325 Cedar Court MAILED Z'
y
Lake Oswego, Oregon 97034 D
CHU S
PROPERTY OWNER:
Billings Family Trust
c/o Carla Thomas
4196 40th Street Niel =_
Oak Harbor, Washington 98227
ATTORNEY:
Robert S. Lovlien
Post Office Box 1151
Bend, Oregon 97709
REQUEST:
The applicant is requesting a Comprehensive
Plan Map amendment from Open Space and
Conservation to Rural Residential, and a zone
change from OS & C, Open Space and
Conservation to MUA-10, Multiple Use
Agriculture. The request encompasses
approximately 3.61 acres and involves an
exception to Statewide Planning Goal 3,
Agricultural Lands. The purpose of the
request is to allow the privately owned
property in this location to have zoning
consistent with the ownership. The publicly
owned property in the area is zoned OS & C.
STAFF CONTACT:
Paul Blikstad, Associate Planner
%% //
EX14181T G
1 PA -95-4; ZC-95-5
0147-1730
STANDARDS AND APPLICABLE CRITERIA:
A. Oregon Administrative Rules, Chapter 660, Division 4,
Interpretation of Goal 2 Exception Process:
660-04-028, Exception Requirements for Land Irrevocably
Committed to Other Uses.
B. Deschutes County Year 2000 Comprehensive Plan, Open Spaces
and Rural Development.
C. Title 18 of the Deschutes County Code, the Deschutes County
Zoning Ordinance:
Chapter 18.48, Open Space and Conservation zone.
Chapter 18.32, MUA-10, Multiple Use Agriculture zone.
Chapter 18.136, Amendments
FINDINGS OF FACT•
1. LOCATION: The subject property is located at 64025 O B
Riley Road, Bend and is identified on County Assessor's map
17-12-6, as tax lot 1100.
2. ZONING: The subject property, is zoned OS & C, Open Space
and Conservation, with a Landscape Management Combining
Zone; the property (tax lot 1100) is designated Open Space &
Conservation on the Deschutes County Comprehensive Plan.
3. Tax lot 1100 contains approximately 3.61 acres; this tax lot
combined with tax lot 1105 form one legal lot of record
only. Tax lot 1105 is zoned MUA-10. The two tax lots
together contain 6.3 acres.
4. Land use in the area surrounding the subject property is
publicly owned State of Oregon land to the north and west,
with Tumalo State Park being a part of this land. To the
north, northeast, south and east is privately owned land
with a few single-family dwellings. Directly south is a
large 103 -acre parcel currently undeveloped.
5. The applicant is proposing plan and zone map amendments in
order to allow the two tax lots (1100 and 1105) that form
the one legal lot to have the same zoning. The OS & C zone
does not allow single-family dwellings and consequently
without the rezone, over one-half of the subject property is
not buildable.
6. The Planning Division has solicited comments from affected
agencies and departments. Their responses are as follows:
2 PA -95-4; ZC-95-5
0147-173'
A. The Oregon State Parks and Recreation Department states
the following:
OPRD believes that the property was unintentionally
zoned OS&C through mapping and was intended to be zoned
MUA-10 consistent with the surrounding private
properties. The only other OS&C zone in the area is on
Tumalo State Park property.
The subject property is adjacent to Tumalo State Park
and is within the Middle Deschutes River Scenic
waterway corridor. A zone change from OS&C to MUA-10
will not change the impacts or character of the park or
waterway. Development of the property will be analyzed
for impacts to the park and must comply with state
scenic waterway regulations.
OPRD does not object to this plan amendment request.
B. The County Public Works Department states that an
access permit must be obtained from Public Works for
any new access to O B Riley Road. Any new driveway
must have a turnaround so that cars do not have to back
out onto this arterial.
C. The County Environmental Health Division states that a
septic site evaluation - (F 16200) is completed and
approved.
D. The County Property Address Coordinator states that the
address of record for this parcel is 64025 O B Riley
Road. This is a duplicate address and needs to be
changed. The applicant should submit a plot plan
showing the proposed or existing access for this parcel
to the P.A.C. so that a new address can be assigned.
E. US West Communications states that the customer is
responsible for conduit on property.
F. No comments were received from the County Assessor.
G. No response was received from Oregon State Parks, the
Oregon Department of Land Conservation and Development
and the County Transportation Planner.
7. The subject property has the following two soil types:
Soil #58C, Gosney Rock Outcrop-Deskamp Complex, 0 to 15
percent slopes. This soil type comprises approximately 80
percent of tax lot 1100 and has a soil capability rating of
6E, 7E and 8S.
106E, Redslide-Lickskillet Complex, 30 to 50 percent slopes.
This soil type comprises the remaining 20 percent of the
3 PA -95-4; ZC-95-5
0147-1738
property and is located on the steeper slopes of this
property. This soil type has a capability rating of 6E and
7E.
8. Pursuant to the County's approval of Minor Partition
MP -79-200, the Planning Division considers tax lots 1100 and
1105 to be a single lot of record.
APPLICABLE CRITERIA:
1. OAR 660-04-028. This rule sets forth the requirements for
adopting an exception to a goal when the land subject to an
exception is irrevocably committed to uses not allowed by
the applicable goal because existing adjacent uses and other
relevant factors .make uses allowed by the applicable goal
impracticable. These requirements include:
A. the characteristics of the exception area;
B. the characteristics of the adjacent lands;
C. the relationship between the exception area and the
lands adjacent to it; and
D. the other relevant factors set forth in OAR 660-04-
028(6).
The factors set forth in OAR 660-04-028(6) are:
A. existing adjacent uses;
B. existing public facilities and services;
C. parcel size and ownership patterns of the exception
area and adjacent lands;
D. neighborhood and regional characteristics;
E. natural or man-made features or other impediments
separating the exception area from adjacent resource
land;
F. physical development according to OAR 660-04-025; and
G. other relevant factors.
2. Section 18.136.030 of Title 18 of the County Code: This
section describes standards for rezoning. The applicant for
a rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated
by the applicant are:
4 PA -95-4; ZC-95-5
MP
A. That the change conforms with the Q37;7eVi0 Plan,
and the change is consistent with the Plan's
introductory statement and goals.
B. That the change in classification for the subject
property is consistent with the purpose and intent of
the proposed zone classification.
C. That changing the zoning will presently serve the
public health, safety and welfare considering the
availability and efficiency of providing necessary
public facilities and services. Impacts associated
with the change in zone must also be found to be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the
zoning of the property in question.
Relevant Comprehensive Plan Policies:
Open Space, Areas of Special Concern, and Environmental
Quality section (page 141) of the Plan:
3. Within the Landscape Management Zone, new structures or
additions to existing structures (excluding fences or
structures less than $1,000.00 total value) shall be
subject to landscape management site plan review by the
County prior to issuance of a building permit.
4. Approval of any such development in the Landscape
Management Zone will be dependent on site screening by
existing natural cover and/or compatibility with the
landscape as -seen from the river, stream or road.
6. The primary purpose of the landscape management site
plan review shall be to obtain a structure as
compatible with the site and existing scenic vistas as
is possible, rather than to establish arbitrary
standards for appearance or to otherwise restrict
construction of appropriate structures.
7. Rimrocks along streams shall received special review to
assure that visual impacts of structures viewed from
rivers or streams are minimized. A 50 foot setback
shall be required from rimrocks on all newly created
lots. Existing lots may receive exceptions to rimrock
setbacks subject to conformance with criteria which
individually review the structure, location and
consider impacts in a manner which minimize the visual
impact of the structure when viewed from the river or
stream.
5 PA -95-4; ZC-95-5
014'7-1740
8. Public ownership of scenic, open space and historic
areas should be maintained and increased where
feasible, and a variety of open space and recreational
sites should be maintained to protect the existing
natural
The Open Space section of the Plan has the following
paragraph on page 139 of the Plan:
Private land suitable for open space designation is
eligible for special property tax consideration (ORS
308.740-790), because they provide public benefits as
regards maintaining scenic environmental quality."
Rural Development Goals (p.37): To guide development into
appropriate patterns the following goals have been prepared:
1. To preserve and enhance the open spaces, rural
character, scenic values and natural resources of the
County.
2. To guide the location and design of rural development
so as to minimize the public costs of facilities and
services, to avoid unnecessary expansion of service
boundaries, and to preserve and enhance the safety and
viability of rural land uses.
The Agriculture section of the Plan (page 131) has the
following policy:
1. All lands meeting the definition of agricultural lands
shall be zoned Exclusive Farm Use, unless an exception
to State Goal 3 is obtained so that the zoning may be
Multiple Use Agriculture or Rural Residential.
DECISION•
Staff reported that prior to the total rezoning of the County in
1979, the subject property, which at the time of rezoning was a
29.1 -acre parcel, was zoned A-1, Exclusive Agriculture. This
zoning existed from approximately November 1972 to November 1,
1979. In November of 1979 the property was rezoned, along with
all other rural areas of the County, to different zoning. In
this instance the subject property was rezoned to create two
separate zones for what was to become Parcel 3 of MP -79-200. The
zoning boundary separating the Open Space and Conservation zone
from the Multiple Use Agriculture zone was drawn along the
quarter quarter section boundary line, irrespective of the fact
that the subject property did not directly follow this section
line in the southeast one-quarter of Section 6 of Township 17
South, Range 12 East.
In October of 1979, the Deschutes County Planning Division
approved a Minor Partition (MP -79-200) of this property into
6 PA -95-4; ZC-95-5
0147-1741
three parcels. This partition approval did not reflect any
zoning boundaries which would divide the proposed Parcel 3 into
two distinct zones. The final plat for this partition was signed
by the appropriate County officials in October of 1980, almost
one year after the rezoning of the property. It appears that the
preparation of the zoning maps by the County Planning Division in
1979 failed to distinguish between the State of Oregon property
adjacent to the privately owned subject property, as confirmed by
the transmittal response from Oregon State Parks. All of the
Open Space and Conservation zoning in the area was intended to be
for the State of Oregon property, which includes the property
upon which Tumalo State Park is located.
The zoning boundary line was placed on a mylar map, which has a
scale of one inch to two thousand feet. At this scale, a minor
deviation of a property line from a quarter quarter section
boundary would not necessarily be caught by the person(s)
responsible for completing the "official" zoning maps of the
County in 1979. Further, the official zoning map completed by
the County in 1979 shows wording of "Tumalo State Park" in the
area of the subject property, when it was in fact not a part of
the park.
This record indicates that the zoning map as currently shown is a
clerical error (mistake as listed in the above criteria) as it
relates to the subject property. I find that the property should
have originally been zoned MUA-10,4 rather than the OS &C zoning
given to that portion of Parcel 3 of MP -79-200 west of the SE
1/4, SE 1/4 section line. This property (tax lot 1100) has the
same soils and topography as the property directly east. It has
both rimrock and rough terrain and has no potential for
irrigation, has never been farmed and has Class 6, 7 and 8 soils.
It would not be considered agricultural land and consequently
would be marginal at best for any potential farm use.
The subject property has not had any special property tax
consideration, as is indicated in the paragraph listed above from
Page 139 of the Open Space section of the County Comprehensive
Plan. Tax lots 1100 and 1105 have been taxed separately for a
number of years, with no tax break for the OS&C zoning on tax lot
1100.
I further find that the proposed change of designation and zoning
on the property is consistent with the Comprehensive Plan. The
change of designation and zoning will not allow the division of
the property or more than one dwelling, as allowed in the MUA-10
zone. It will also allow the owner of the property greater
flexibility in the location of a dwelling on the property. Any
development of this one legal lot of record (tax lots 1100 and
1105 combined) will require landscape management approval from
7 PA -95-4; ZC-95-5
0147-1742
the County, as well as Permit approval from the Oregon State
Parks.
The MUA-10 zone allows a single-family dwelling as a use
permitted outright, and the property is in a Landscape Management
combining zone. The change of zoning will have no effect upon
the public health, safety and welfare. The property will have
available public services and facilities, including electric and
phone service. It is not clear how domestic water would be
provided to the subject property, but it is likely that either a
private well or Avion Water could be supplied.
The impacts on surrounding land use will be negligible. One
dwelling on 6.3 acres will not impact the adjacent parcels. An
access permit from the County Public Works Department will be
required for access to the subject property.
The record demonstrates that a mistake was made in zoning tax lot
1100 as Open Space and Conservation. I find that the proposed
change to the Plan designation and zoning on tax lot 1100 will
have no impact on adjacent resource land, which in this instance
would be the State Park land to the west and north and the
marginal agricultural land to the south. A dwelling constructed
only on tax lot 1105 versus using both tax lot 1105 and 1100 will
have no impact on the park or the minimal amount of agricultural
use in the immediate area. Therefore, it is recommended that the
applicants' request for a plan amendment and zone change be
approved.
Approval of the applicants' request raises the issue of whether
an exception to Goal 3 is required. The applicants argue that
the subject parcel was part of the exception taken for MUA-10
zoned lands by the county in 1979. Unfortunately, the county's
records for 1979 are incomplete and the county is unable to
confirm that the subject parcel was included in the 1979
exception. I find that it is more likely than not that the
subject parcel was included in the 1979 exception so that it is
unnecessary to review the exceptions process now.
However, at the county's request, the applicants did also provide
a committed lands exception statement addressing OAR 660-04-
028(2). I am persuaded by the applicants' burden of proof
addressing the criteria under OAR 660-04-028(2). This burden of
proof justifies an exception to the applicable resource
protection goal.
I find that the applicants' burden of proof demonstrates the
requisite relationship between the exception area and adjacent
lands. In particular, I find that the existing adjacent
development and uses, existing public facilities and services,
neighborhood characteristics, the separation of the subject
parcel from resource lands by Highway 20 and the Deschutes River,
and the subject parcel's small size, make the subject parcel
8 PA -95=4; ZC-95-5
0147-1743
unsuitable for resource use. Therefore, it is recommended that
an exception to Goal 3 be approved.
Mailed this 2_2�day of 1995.
ell -
1 �f
Christop C. Eck, Hearings Officer
9 PA -95-4; ZC-95-5