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1996-10205-Ordinance No. 96-022 Recorded 3/20/1996a g� �? fl205 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF An Ordinance Amending PL -20, the Deschutes County Comprehensive Plan, to Adopt Text Recognizing the Spring River Rural Service Center, Reflecting Additions to the List of Allowed Uses through an Exception to Goal 14 and Declaring an Emergency. ORDINANCE NO. 96-022 WHEREAS, by Ordinances 90-009 and 90-010 the Board of County Commissioners approved a plan amendment and zone change to create the Spring River Rural Service Center (Rural Service Center) and took an exception from Goal 14; and WHEREAS, the establishment of the Rural Service Center was subject to certain use restrictions to assure compliance with Goal 14, which restrictions were effected by use of a Limited Use Combining Zone; and WHEREAS, the approval for the Limited Combining Zone for the Rural Service Center set out a limited list of uses allowed within the Rural Service Center; and WHEREAS, Robert Klaver proposes to add an additional use to the list of uses allowed in the Rural Service Center; and WHEREAS, the addition of new uses to the Rural Service Center requires adoption of a plan amendment and reasons exception from Goal 14; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. Amendment to Rural Development Chapter. The text of PL - 20, as amended, is further amended to add the text and map set forth in Exhibit A, attached hereto and by this reference incorporated herein. The text adopted by this section shall be added to the Rural Development Chapter in the Rural Service Center section of the Plan. Section 2. Amendment to Exception Statement. The text of PL -20, as amended, is further amended to add the text set forth in Exhibit B, attached hereto and by this reference incorporated herein. The text adopted by this section shall be added to the Exception Statement included in the Comprehensive Plan. Section 3. Exception to Goal 14. Adoption of this ordinance shall have the effect of taking an exception to Goal 14 for the purposes and the reasons stated in the Hearing Officer's decision and in the text adopted by Section 2 above. Section 4. Findings. This ordinance is supported by the de 'bion of PAGE 1 - ORDINANCE N0. 96-022 (3/20/96) --. 1 fvi�a 2 1 96 x996 0149-1535 the Hearing Officer dated February 23, 1996, attached hereto as Exhibit C. Section 5. Severability. The provisions of this ordinance are severable. If any section, sentence, adjudged to be invalid by a court of shall not affect the validity of the clause or phrase of this ordinance is competent jurisdiction, that decision remaining portions of this ordinance. Section 6. Codification. County Legal Counsel shall have the authority to format the provisions contained herein in a manner that will integrate them into the County Code consistent with the Deschutes County Form and Style Manual for Board Documents. Such codification shall include the authority to make such changes, to make changes in numbering systems and to make such numbering changes consistent with interrelated code sections. In addition, as part of codification of these ordinances, County Legal Counsel may insert appropriate legislative history references. Any legislative history references included herein are not adopted as part of the substance of this ordinance, but are included for administrative convenience and as a reference. They may be changed to correct errors and to conform to proper style without action of the Board of County Commissioners. Section 7. 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 or that may hereafter be incurred under such ordinance, unless a provision of this 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 8. Emergency. 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 20th day of March, 1996. BOARD OF CO:JY COMMIPSIONERS Ot DESCHUTE� a0UNTY. REGON ,` Chair ATTEST: JNZ:� vt /l9'V BAR Y il. SLAUGHT R, Commissioner Recording Secretary ROBE -1(T L. NIPPER, Commissioner PAGE 2 - ORDINANCE NO. 96-022 (3/20/96) Exhibit A 149-1536 to Ordinance 96-022 SPRING RIVER The area within the boundaries of the Spring River Rural Service Center was designated and zoned for residential use under the 1979 comprehensive plan under an exception to Goals 3 and 4. This rural service center was approved by the Board of County Commissioners in 1990 after an exception for the subject land was taken from Goal 14. (See Ordinances 90-009 and 90-010.) The Spring River Rural Service Center was created to serve the needs of residents in nearby subdivisions and its scope was so limited by the limited uses listed in Ordinances 90-009 and 90-010. In conjunction with taking an additional reasons exception to Goal 14, the limitations were amended in 1993 by Ordinance 96-022 to allow for an additional use. To ease administration, this text was added to the Plan in conjunction with the 1993 changes. The text reflects the limitations set forth in the findings and decision adopted by the Board of County Commissioners by Ordinances 90-009 and 90-010, as those limitations were altered by the 1993 changes. POLICIES: 55. To ensure that uses in the Spring River Rural Service Center will be limited to uses that will serve the residents of nearby subdivisions and not the needs of the public generally, the rural service center zoning shall be subject to a Limited Use Combining zone, which shall have the effect of limiting uses in the Spring River Rural Service Center to the following uses: (a) Fishing supplies and equipment; (b) Snowmobiling accessories; (c) Marine accessories; (d) General store; (e) Hardware store; (f) Convenience store with gas pumps; (g) Full service gas station with automobile repair services; (h) Welding shop; (i) Fast food restaurant, cafe, or coffee shop; (j) Recreational rental equipment store; (h) Excavation business; and (i) Landscaping business/service. These uses may be further defined in the zoning ordinance. PAGE 3 - ORDINANCE NO. 96-022 (3/20/96) 0149-153'7 SPRING RIVER Rural Service Center Comprehensive Plan Map DESCHUT S ROAD T.20 R.11 SEC.6 w� �,) O G W 4 Mapscale 1 : 4800 COM - Commercial �' , Section line 0 feet 200 400 IND - Industrial Tax lot Boundary RES - Residential Rural Service Center PUB Public Zoning Boundary 0 - Exhibit B 0149-1538 to Ordinance 96-022 Additional Exceptions Subsequent to the adoption of the Comprehensive Plan and its acknowledgement, the Board of County Commissioners has approved additional exceptions to the Comprehensive Plan. All such exceptions were taken though adoption of ordinances with appropriate notice and hearings. Some of those exceptions are listed herein. Spring River Rural Service Center A reasons exception was taken from Goal 14 to allow for the establishment of the Spring River Rural Service Center on residential -designated lands for which an exception had already been taken from Goals 3 and 4. The rural service center was approved because the Board of County Commissioners found that it would primarily serve the needs of the residents of nearby subdivisions, such as Deschutes River Recreational Homesites. Findings to support the reasons exception to Goal 14 were made in Paragraph 7 of the Board of County Commissioners' decision (attached to Ordinances 90-009 and 90-010) and those findings are incorporated by reference herein. Findings to support the reasons exception accompanying Ordinances 96-022 were made on Pages 12 - 18 of the Hearings Officer's findings supporting that decision and those findings are incorporated herein by reference. To ensure that uses in the rural service center would be limited in a manner to comply with Goal 14 exception, a limited use combining zone was imposed, by which the allowed uses were limited to a list of specific uses. Those uses are listed in the Rural Development Chapter of this comprehensive plan in conjunction with a description of the Spring River Rural Service Center and also in the zoning ordinance. PAGE 4 - ORDINANCE NO. 96-022 (3/20/96) t oExl-lls / r C 0149-1539 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: APPLICANT: PROPERTY OWNER: PA-95-13/ZC-95-10 Robert Klaver P.O. Box 4519 Sunriver, Oregon 97707 Sun Village Realty P.O. Box 4519 Sunriver, Oregon 97707 REQUEST: The applicant is requesting approval of a plan amendment, zone change/text amendment and goal exception to add "landscaping business/service" to the permitted uses in the Spring River Rural Service Center/Limited Use Combining Zone. STAFF REVIEWER: HEARING DATE: RECORD CLOSED: James J. Lewis February 6, 1996 February 13, 1996 L APPLICABLE STANDARDS AND CRITERIA: 4 6 A. Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance * Chapter 18.64, Rural Service Center (RSC) Zone * Chapter 18.112, Limited Use (LU) Combining Zone * Chapter 18.136, Amendments B. Title 22 of the Deschutes County Code, Development Procedures Ordinance C. The Deschutes County Year 2000 Comprehensive Plan D. Oregon Administrative Rules * Chapter 660, Division 4, Interpretation of Goal 2 Exception Process; * Chapter 660, Division 15, Statewide Planning Goals, Goal 14, Urbanization H. FINDINGS OF FACT: A. Location: The subject property is described as the Spring River Rural Service Center/Limited Use Combining Zone and is further described as Tax Lots 100 and 1 01149-1540 103-120 on Deschutes County Assessor's Map # 20-11-7B. B. Zoning: The subject property is zoned Rural Service Center (RSC) and Limited Use Combining Zone (LU) and is designated rural service center on the Deschutes County Year 2000 Comprehensive Plan Map. The subject property also is within the Landscape Management Combining Zone (LM) and the Wildlife Area Combining Zone (WA). C. Site Description: The Spring River Rural Service Center/Limited Use Combining Zone (RSC/LU) is comprised of 19 separate tax lots, each approximately one-half acre in size. Most of these parcels have been partially or entirely cleared of vegetation in conjunction with existing or proposed development. The existing development in the RSC/LU includes: an excavation business, retail thrift store, real estate office, and a multi-purpose commercial building which will house a wel- ding business, a snowmobiling accessory store, a convenience store, restaurant and a recreational equipment rental store. The Spring River RSC/LU is bounded by Spring River Road on the north, Azusa Road on the south, Lunar Drive on the east and residential lots on the west. The Deschutes River lies approximately 300 feet to the east. D. Surrounding Land Use: Land uses in the vicinity of the subject property include primarily properties which are developed or proposed for development with single- family residential uses. North and east of the RSC/LU is Sunriver Resort, a planned community comprised of residential, commercial and recreational uses. The Crosswater residential/golf community lies to the east and south across the Deschutes River. Beyond the residential and resort developments are larger parcels which are zoned for forest uses, many of them within the Deschutes National Forest. The majority of the surrounding residential properties outside the RSC/LU have retained most of their native vegetation in conjunction with development. The primary roads providing access to the surrounding area are Spring River Road and South Century Drive. Local streets provide additional access in the surroun- ding community. Surrounding properties are zoned Rural Residential (RR -10) and Flood Plain (FP) on riverfront properties. Sunriver Resort is zoned Planned Community (PC). F. Procedural History: The Spring River RSC/LU has been the subject of previous land use actions. In 1990, by Ordinances Nos. 90-009 and 90-010, the Deschutes County Board of Commissioners (hereafter "Board") approved a plan amendment and zone change to create the Spring River RSC/LU. The LU Zone limited the uses allowed in the RSC to the following: 1. fishing supplies and equipment; 2. snowmobiling accessories; 3. marine accessories; 0149-1541 4. general store; 5. hardware store: 6. convenience store with gas pumps; 7. full service gas station with automobile repair services; 8. welding shop; 9. fast food restaurant, cafe or coffee shop; 10. recreational equipment rental store; and 11. excavation business. In 1995, the applicant sought a similar use ruling to allow a "landscaping business/service" as a similar use to the "excavating business" expressly allowed in the RSC (File #SR -95-1). At the public hearing on the similar use application, the applicant testified that his business would consist of his office as well as activities including: designing landscapes, site grading and preparation, placing boulders, planting trees and shrubbery, installing sod, installing irrigation systems and equipment, installing fencing and landscape maintenance. He testified that his business would not include on-site cultivation of plants or any retail sales. In September of 1995, this Hearings Officer denied the similar use ruling on two bases: 1) that the applicant's proposed "landscape business/service" was not similar to the excavating business expressly allowed in the RSC/LU; and 2) that the proper method for allowing the proposed landscaping business/service is to seek a zone change/text amendment pursuant to Section 18.112.020 of the Deschutes County Code. This application followed. The record in this matter includes the record in the file for SR -95-1. G. Proposal: The applicant is proposing a plan amendment/zone change text amend- ment to add "landscaping business/service" to the list of uses permitted in the Spring River RSC/LU. The applicant has indicated that the nature of the proposed business is the same as that described in the previous similar use proceeding. Because the RSC/LU is in an "exception area" carved out of surrounding resource lands by both the original comprehensive plan and by the 1990 plan amendment/ zone change that created the RSC/LU, the applicant must also obtain another goal exception for the proposed use. H. Public Agency Comments: The Planning Division sent notice of the proposed plan amendment/zone change text amendment and goal exception to several public agencies, and received a response from the Deschutes County Public Works Department. That response is set forth verbatim at page three of the Staff Report, and is incorporated by reference herein. I. Public Notice and Comments: The Planning Division also sent written notice of the public hearing in this matter to owners of all property located within 3 0149-1542 the RSC/LU, as well as owners of all property located within 250 feet of the subject property. The Planning Division also published notice of the public hearing in the Bend Bulletin. In response to these notices and publication, the Planning Division received five letters from nearby property owners in support of the application, and two letters from nearby property owners in opposition to the application. J. Legal Lot: The lots located within the Spring River RSC/LU were created through a legal subdivision, the Deschutes River Recreation Homesites, Extension to Unit One. III. CONCLUSIONS OF LAW: A. Preliminary Issues: At the public hearing, both the applicant and other parties questioned whether the proposal, if approved, would apply to the entire Spring River RSC/LU, or only to the individual parcel upon which the applicant proposes to operate his landscaping business/service. The applicant testified that he is not requesting that a landscape business/service be allowed on any parcel in the RSC/LU other than his parcel. Opponents to the proposal objected to a landscape business/service in part because they do not believe such a use should be allowed on the lots in the RSC/LU that front Spring River Road, and also on the basis of potential adverse impacts, such as odor from the storage of chemicals and fertilizer. As discussed in detail in the findings below, because the parcel in which the applicant has an interest is located within the Spring River RSC/LU Zone, and because the LU Zone expressly limits the permitted uses in this exception area, any expansion of those uses must be accomplished by an amendment to the text of the zoning ordinance as it applies to the entire zoning district. In other words, the proposed text amendment would apply to all 1ots in the RSC/LU and would potentially allow a "landscape businesstservice" on any lot within that zone. As in any other zoning district in the county, uses undertaken on any lot would be determined by market forces, such as land costs, access and visibility. In addition, all uses in the RSC/LU are subject to site plan review, in which issues such as compatibility with surrounding land uses must be addressed. B. Title 18 of the Deschutes County Zoning Ordinance 1. Section 18.64.010, Rural Service Center (RSC) Zone, Purpose. The purpose of the Rural Service Center Zone is to provide standards and review procedures for concentrations of local commercial services to meet the needs of rural residents, as well as limited tourist com- mercial services consistent with the maintenance of the rural character of the area. 2. Chapter 18.112, Limited Use Combining LU Zone. ►� W 0149-1543 In any Limited Use Combining Zone (LU), the requirements and standards of this section shall apply in addition to those specified in this title for the underlying zone and any other applicable combining zones. In the event of a conflict between the requirements and standards of this section and those of the underlying zone or other applicable combining zones, the provisions of this section shall govern. (a) Section 18.112.010, Purpose. (1) The purpose of the LU Zone is to limit the list of permitted uses and general activities allowed in the underlying zone, when a plan amendment and zone change rezones a parcel to that underlying zone through the taking of an exception to a statewide land use planning goal under ORS 197.732. (2) The LU Zone is an overlay zone which may be applied, where appropriate, to plan amendments/zone changes effected by either a "physically developed" exception under ORS 197.732(1)(b), or a "reasons" exception under ORS 197.732(1)(c). (3) The LU Zone, when adopted, shall carry out the re- quirements of Oregon Administrative Rule 660-04-018 that where a goal exception is taken, permitted uses shall be limited to those uses justified by the exception statement. (b) Section 18.112.020, Combining Zone Requirements. When the LU Zone is applied, the uses permitted in the underlying zone shall be limited to those uses and general activities specifically set forth in the ordinance adopting the underlying zone and the LU Zone. Any change in those uses and general activities must be made through the plan/land use regulation amendment process. FINDINGS: The Spring River RSC/LU was adopted by Ordinances Nos. 90-009 and 90- 010 as a plan amendment and zone change. The Findings and Decision supporting the ordinance states that the new zone was established by taking a "reasons" exception to Goal 14, the Urbanization Goal, as required by Section 18.112.010(c) of the Deschutes County Code and pursuant to Oregon Administrative Rules (OAR) 660-04-020. Ordinances Nos. 90-009 and 90-010 established a list of permitted uses for all parcels in the Spring River RSC/LU zone, set forth in the Findings of Fact above. This list of uses W 0149-1544 supersedes the uses permitted in the RSC Zone under Chapter 18.64. However, the Hearings Officer concurs with staffs conclusion that the applicant's proposed addition of landscape business/service is a use that would otherwise be permitted outright in the underlying RSC Zone as a "service establishment" under Section 18.64.020(C). In this Hearings Officer's previous decision on the applicant's request for a similar use ruling (SR -95-1), I found that the proposed "landscaping business/service" is not expressly included in the list of permitted uses and is not similar to any of them. Having so found, I concluded that adding the proposed use to the list of permitted uses would require a plan amendment/zone change under Section 18.112.020, quoted above. 3. Chapter 18.136, Amendments (a) Section 18.136.030, Rezoning Standards. The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: The Hearings Officer finds that the following plan goals and policies apply to the proposed zone change text amendment: A. Rural Development (pages 35-40) Goals: (page 37) 1. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The record indicates that the Spring River area is surrounded by a large amount of open space located outside of the RSC/LU -- primarily in the Deschutes National Forest. However, as discussed above, due to its historic parcelization and development, the Spring River area has developed in a more urban than rural character. Nevertheless, the Hearings Officer finds that the addition of the proposed landscape business/service to the permitted uses in the Spring River RSC/LU will be consistent with this goal. Any development in the RSC/LU is subject to site plan review. In addition, it is subject to the special siting standards in the WA Zone, which are designed to preserve scenic values and natural resources. 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 2 X3149-1545 preserve and enhance the safety and viability of rural land uses. FINDINGS: As discussed above, the Spring River RSC/LU was created in order to provide for the convenient and efficient delivery of commercial products and services to area residents and businesses. The Hearings Officer finds that allowing a landscape business/service in the RSC/LU will minimize the cost of such services to the area's population. It will not require an expansion of the RSC/LU boundary, nor will it require the expansion of public facilities and services in the RSC. 3. To provide for the possible long term expansion of urban areas while protection the distinction between urban (urbanizing) land and rural lands. FINDINGS: The Hearings Officer finds that allowing the proposed landscape business/service use in the Spring River RSC/LU will have little, if any, effect on possible long-term expansion of the RSC. In addition, by being located within the RSC, the proposed use will continue the distinction between urban and rural lands created with the establishment of the RSC. Policies: (page 37-40) Rural Service Centers (pages 39-40) 13. Because there is a need to accommodate some rural residential development and to provide necessary commercial services to existing rural residents, the County shall designate the following Rural Service Centers in order to provide a more efficient pattern of development and energy use, as well as provision of public services: Alfalfa, Brothers, Hampton, La Pine, Millican, Terrebonne, Tumalo, Whistle Stop, Wickiup Junction, Deschutes Junction and Wild Hunt. In addi- tion, other sites, such as in the Fall River/Spring River area, may be approved in the future as dictated by need of existing rural residents. 14. Each Rural Service Center shall have a compact com- mercial area to serve the convenience -commercial, agricultural and repair service needs of the surrounding rural lands. In addition, larger Rural Service Centers along major highways, where public facilities such as schools already exist, shall have a residential area designated (see individual RSC maps and policies). The size and uses of rural service centers shall be such VI 0149-1540 as to maintain the rural character of the area. FINDINGS: The record indicates that the Spring River RSC/LU was established to provide necessary commercial services for the area's residents and businesses. The uses permitted in the zone include the types of convenience commercial and repair services contemplated in this plan policy. The Hearings Officer finds that the proposed landscape business/service is also a type of service that will serve the needs of area residents. The record indicates that there are approximately 5,000 residential lots located within 5 miles of the RSC, and that as many as two-thirds of these lots are not yet developed, thus potentially needing landscaping services. For these reasons, the Hearings Officer finds that the applicant's proposal is consistent with these plan policies. B. Transportation (Pages 79-92) Goals: (page 83) 1. To provide a balanced, safe, efficient and integrated transportation system which reflects environmental, economic and social considerations. 2. To serve the existing, proposed and future land uses with an efficient, safe, attractive roadway network. FINDINGS: The record indicates that the Spring River RSC/LU abuts Spring River Road on the east -- a designated collector -- and Lunar Drive on the south and Azusa Drive on the east -- both designated local streets. This is the local transportation system which was in existence when the Spring River RSC/LU was established in 1990. Collector streets are designed to accommodate relatively high volumes of traffic in a safe and efficient manner. Local streets are designed to funnel local traffic onto collectors. The record also indicates that any access onto any of the county roads in the area from adjacent property requires an access permit from the Deschutes County Public Works Department. The Hearings Officer concurs with staffs conclusion that the access permit process allows the county to regulate the impact of vehicular traffic generated from uses in the RSC/LU onto county roads. For these reasons, the Hearings Officer finds that the addition of the landscape business/service to the uses permitted in the Spring River RSC/LU and the required access permit will assure consistency with these comprehensive plan goals. C. Public Facilities (Pages 93-100) Goals: (page 96) 1. To plan and develop a timely, orderly and efficient arrange- ment of public facilities and services to serve as framework for urban and rural development, and thereby a system or plan that coordinates the type, location and delivery of public 0 0149-1541 facilities and services in a manner that best supports the existing and proposed land uses. FINDINGS: As discussed above, the Spring River RSC/LU was created in 1990 to reflect the historic and existing urban -type development in the area and to provide a commercial service center for area residents. The RSC/LU is served by three county roads, including a county collector -- Spring River Road. The Hearings Officer finds that the addition of a landscape business/service use to the permitted uses in the RSC/LU will not require an increase in or undue burden on existing public facilities in the area, and is therefore consistent with this plan goal. Policies: (pages 96-100) 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way, public services may guide development while remaining in concert with the public's needs. 2. While clear distinctions are not always possible between urban and rural services, those facilities such as sewage treatment plants, water systems, schools and fire stations, which are necessary to serve concentrations of people shall be know as key facilities and shall be located in urban areas or in Rural Service Centers, if necessary, to meet the needs of existing rural residents. Key facilities shall be built to encourage additional development. Rural Service Centers are a logical location for future key facilities so that services may be used and constructed in as efficient a manner as possible (see Rural Development chapter). Key facilities outside urban areas or Rural Service Centers shall be discouraged unless the facility is needed to serve existing development, is at the most efficient and economic location and is consistent with capabilities of the land and planned growth of the County. FINDINGS: As discussed above, the Spring River RSC/LU was created in 1990 to provide a location for the commercial services needed by Spring River area residents. Public facilities and services available in the RSC/LU will not be expanded or unduly burdened by the addition of landscape business/service to the uses permitted in the RSC/LU. Consequently, the Hearings Officer finds that the proposal is consistent with these plan policies. E 9149-1548 For the foregoing reasons, the Hearings Officer finds that the applicant's proposed zone change text amendment is consistent with the comprehensive plan. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: Section 18.64.010 states that the purpose of the RSC Zone is: "...to provide standards and review procedures for concentrations of local commercial services to meet the needs of rural residents, as well as limited tourist commercial services consistent with the maintenance of the rural character of the area." Section 18.112.010 states that the purpose of the LU Zone is: " ... to limit the list of permitted uses and general activities allowed in the under- lying zone, when a plan amendment and zone change rezones a parcel to that underlying zone through the taking of an exception to a statewide land use planning goal under ORS 197.732." As discussed in the findings above, the Findings and Decision in support of Ordinances Nos. 90-009 and 90-010, which created the Spring River RSC/LU Zone, found that the creation of the zone was consistent with the purposes of both zones. The issue before the Hearings Officer is whether the addition of landscape business/service to the uses permitted in the zone also is consistent with these zones. I find that it is. The record indicates that there are approximately 5,000 platted lots within a five -mile radius of the Spring River RSC/LU, and that as many as two-thirds of these lots have not yet been developed and thus may require landscaping services. The Findings and Decision in support of Ordinances Nos. 90-009 and 90-010 expressly found that landscaping services would be needed to develop these lots. On the basis of these findings, the applicant argued in the previous similar use proceeding that the omission of landscape business/service from the list of uses permitted in the RSC/LU was an oversight. Whether or not the omission of this use was inadvertent, the Hearings Officer finds that the proposal to add landscape business/service to the list of permitted uses is consistent with the purpose and intent of both the RSC and LU Zones. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: a. The availability and efficiency of providing necessary public services and facilities. 10 0149-1549 b. The impacts on surrounding land use will be consistent with the specific goal and policies contained within the Comprehensive Plan. FINDINGS: As discussed above, the Spring River RSC/LU Zone was created in 1990 to provide the types of commercial services for Spring River residents contemplated in the RSC Zone. The Findings and Decision supporting Ordinances Nos. 90-009 and 90-010 found that necessary public facilities and services were available to the RSC, and that the creation of the new zone would be consistent with the comprehensive plan goals and policies. The issue before the Hearings Officer is whether the addition of landscape business/service to the list of uses permitted in the Spring River RSC/LU meets this criterion. Based upon my findings above that the addition of this uses is consistent with the comprehensive plan, and that it will not require the expansion of or unduly burden existing public facilities and services, I find that the proposal meets this criterion. 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. FINDINGS: The Staff Report concludes that the proposal is justified by a change of circumstances in the Spring River area consisting of increased residential development and the resulting demand for commercial services in the area. The Hearings Officer does not agree. I find that the growth in the Spring River area since the RSC/LU was created in 1990 is the very sort of activity that was contemplated by the Board when the zone was created. However, the Hearings Officer finds that the omission of "landscape business/service" as a use permitted in the Spring River RSC/LU was a mistake in the original zoning. The Findings and Decision supporting Ordinances Nos. 90-009 and 90-010 expressly recognized the need for landscaping services for the large number of undeveloped residential lots in the area. (E.g., Conclusion of Law #9. It is clear from this document that the Board intended to allow landscaping as a use in the RSC/LU. However, it appears to the Hearings Officer, from both the Findings and Decision and from the testimony of Mr. Dave Oliver at the public hearing on the applicant's similar use application, that the Board did not expressly include "landscape business/service" in the list of permitted uses because it believed such a use would be included within "excavating business." The record indicates that at the time the Board was considering the request to create the Spring River RSC/LU in 1990, two of the applicants for the zone change, Don and Julie Strasser, were operating an excavation business which included excavation and grading fordndscapi However, as discussed in detail in the decision denying the applicant's similar use ruling request (SR -95-1), "excavating business" in fact does not include all of the activities contemplated in a landscaping business. Therefore, the Hearings Officer finds that the Board made a mistake when it omitted "landscape business/service" from the list of permitted uses. 11 0149-1550 For the foregoing reasons, the Hearings Officer finds that the proposal meets the zone change criteria. C. Oregon Administrative Rules Chapter 660, Division 4, Interpretation of Goal 2 Exception Process. 1. OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals (1) The exception process is not applicable to Statewide Goal 1 "Citizen Involvement" and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals which prescribe or restrict certain uses of resource land. These statewide goals include but are not limited to: (a) Goal 3 "Agricultural Lands," however an exception to Goal 3 "Agricultural Lands" is not required for any of the farm or nonfarm uses permitted in an exclusive farm use (EFU) zone under ORS Chapter 215; (b) Goal 4 "Forest Lands"; (c) Goal 14 "Urbanization" except as provided for in para- graphs (1)(c)(A) and (B) of this rule, and OAR 660-14-000 through 660-14-040 [relating to city incorporation and urban growth boundaries]:.. . FINDINGS: As discussed in the findings below, the applicant's proposal requires a goal exception. 2. OAR 660-04-018, Planning and Zoning for Exception Areas (3) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-04-020 through 660-04-022, plan and zone designations must limit the uses and activities to only those uses and activities which are justified in the exception. (b) When a local government changes the types or intensities of uses within an exception area approved as a "Reasons" exception, a new "Reasons" exception is required. 12 0149-1551 FINDINGS: The applicant proposes to change the types of uses allowed within the Spring River RSC/LU by adding "landscape business/service." Therefore, the Hearings Officer finds that a new "reasons" goal exception is required under OAR 660-04-018(3)(b) to justify that change. 2. OAR 660-04-020, Goal 2, Part H(c), Exception Requirements. (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the compre- hensive plan as an exception. (2) The four factors in Goal 2, Part H(c) required to be addressed when taking an exception to a Goal are: (a)"Reasons justify why the state policy embodied in the applicable goals should not apply." The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land. FINDINGS: The record indicates that when the county's comprehensive plan was originally acknowledged by the Land Conservation and Development Commission (LCDC) in 1979, the area in which the subject property is located was excepted from the surrounding resource zones -- i.e., the farm and forest zones required to be preserved and protected by Goals 3 and 4 respectively -- based upon a finding that it was already committed to non -resource uses, primarily residential parcelization and uses. Consequently, it was originally designated and zoned Rural Residential -- a non -resource classification. The comprehensive plan also recognized the potential need for a rural service center in this location to serve the needs of nearby rural residences. The Board's Findings and Decision in support of Ordinances Nos. 90-009 and 90-010, which created the Spring River RSC/LU, recognized that the Spring River area had become increasingly committed to non -resource uses, including commercial uses serving nearby residences. The decision found that the creation of the RSC/LU with the listed permitted uses met all the criteria for a "committed" exception to Goals 3 and 4, met the criteria for an exception to Goal 14, Urbanization, met all other applicable statewide land use planning goals and met the criteria for a plan amendment and zone change. The Hearings Officer finds that the reasons for an exception to Goals 3 and 4 contained in the Board's 1990 Findings and Decision -- for example, in Conclusion of Law #4 -- are equally applicable to the exception proposed here, and are incorporated by reference herein. The Hearings Officer also finds that the reasons for an exception to Goal 14 13 0149-1552 contained in the 1990 Findings and Decision -- specifically Conclusion of Law #7 -- are equally applicable to the subject proposal, and are also incorporated by reference herein. The Hearings Officer makes the following additional findings in support of an exception to Goal 14. The purpose of the goal is "[t]o provide for an orderly and efficient transition from rural to urban use." The record indicates that the Spring River area and much of the surrounding lands were divided into small parcels (generally less than one acre in size) prior to the adoption of the statewide land use planning goals and the county's comprehensive plan and zoning ordinance. The record indicates that there are 5,000 of these lots within a five -mile radius of the Spring River RSC/LU. Since these lots were platted, many of them have been developed with both residential and commercial uses. Thus, the Spring River area -- lying outside any urban growth boundary and a considerable distance from both Bend and La Pine -- has historically developed with a more "urban" than "rural" character. The 1990 RSC -LU designation specifically recognized that this particular part of the Spring River area has in fact developed with the types of commercial uses and services typically required by the surrounding residents. The Hearings Officer therefore finds that the Spring River RSC/LU already has made the "orderly and efficient transition from rural to urban land use" required by Goal 14. The Hearings Officer further finds that the addition of "landscape business/service" to the list of uses permitted in the RSC/LU Zone will further the purpose of Goal 14. By definition, the RSC Zone must be located near the population it is to serve in order to efficiently provide the products and services contemplated in that zone. Moreover, like "excavation," a use expressly allowed in the RSC/LU, "landscaping" is a service typically required and utilized by developers and owners of the types of residential and commercial properties located in the area. The record indicates that nearly two-thirds of lots in the Spring River area and surrounding areas have not yet been developed and may therefore require landscaping in the future. The Hearings Officer is aware that landscape businesses exist in both the Bend and La Pine areas. However, at more than fifteen miles away, these businesses are at a distance making them inconvenient and uneconomical for delivery of landscaping services in the Spring River area. In addition, the record indicates that a landscape business may not be permitted, or may be very difficult to site, in either the commercial or industrial districts in the nearby Sunriver planned community. For the foregoing reasons, the Hearings Officer finds that the addition of "landscape business/service" to the permitted uses in the Spring River RSC/LU will further the "orderly transition from rural to urban use" in the Spring River area under Goal 14. (b) Areas which do not require a new exception cannot reasonably accommodate the use: (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified. 14 0149-1553 (B) To show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception can- not reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, in- cluding increasing the density of uses on nonresource land? If not, why not? (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to non - resource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? (C) This alternative areas standard can be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types on areas in the vicinity could not reason- ably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support the assertion that the sites are more reasonable by another party during the local excep- tions proceeding. FINDINGS: The "alternative areas" factor for a goal exception requires an analysis of whether there are alternative areas not requiring a goal exception which could reasonably accommodate the proposed use. The Hearings Officer finds that the proposed landscape business/service could be located in Bend or La Pine, or possibly in the Sunriver planned community, without requiring a goal exception. However, the Hearings Officer finds that none of these locations would "reasonably accommodate" the proposed use. As discussed in the findings above, both Bend and La Pine are located more than 15 miles from the Spring River area, making the delivery of landscaping services from those areas 15 0149-1554 to the Spring River area -- and vice versa -- less economical and practical than from such a business located in the RSC/LU. Moreover, as discussed above, the purpose of the RSC/LU is to allow the provision of products and services demanded by surrounding residents at a location close and convenient to those residents. The record indicates that the Sunriver planned community has designated commercial areas and a business park, and that most of the uses permitted in these areas are geared toward the resort nature of the development and the needs of transient visitors. The Hearings Officer concurs with staffs conclusion that a landscaping business is not expressly listed as an outright or conditionally permitted use in any of the districts in Sunriver Planned Community Zone under Chapter 18.108 of the Deschutes County Code. The Staff Report also states that while the "warehouse and distribution uses" allowed in the Sunriver industrial district could theoretically be interpreted broadly enough to include a landscaping business, it is unlikely that such a business would be found to be compatible with adjacent properties in that district. Additional practical constraints, such as the significant cost of land and leases in the Sunriver area as well as the potential difficulty of fitting such a use into the Sunriver master plan, likely also would prevent the siting of a landscaping business in Sunriver. For the foregoing reasons, the Hearings Officer finds that there are no areas not requiring a goal exception that could reasonably accommodate the proposed landscape business/service intended to serve Spring River residents and businesses. (c) The long-term environmental, economic, social and energy con- sequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas [sic] considered by the jurisdiction for which an exception might be taken, the typical advan- tages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible 16 0149-1555 removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts. FINDINGS: This factor states that for a goal exception to be allowed for the proposed addition of "landscape business/service" in the Spring River RSC/LU rather than alternative sites: " [t]he long-term environmental, economic, social and energy consequences resul- ting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception." As discussed above, the only available alternative sites for the proposed landscape business/service that do not require a goal exception are in commercial and/or industrial - zoned areas in Bend, La Pine and Sunriver. Thus, the issue is whether the ESEE consequences of allowing the proposed use in the Spring River RSC/LU are not significantly more adverse than would result if the use were located in any of these other areas. The Hearings Officer finds that they are not. The Hearings Officer finds that the environmental, social, economic and energy consequences of locating the proposed use in Bend or La Pine -- over fifteen miles from the Spring River area -- would be significant compared to locating the use close to the population it is designed to serve. Service to the Spring River area residents from a business located in Bend or La Pine would be less convenient and economical for both the owner and customers. In addition, it would require the consumption of additional energy resources in the form of gasoline, and would consequently create greater air pollution. As discussed above, while the Sunriver commercial areas are located relatively close to the Spring River area, it is unlikely the proposed landscape business/service could be located there. In any event, I concur with staffs observation that in light of the resort -oriented nature of the commercial uses in the Sunriver planned community, the proposed landscape business/service would likely be much less compatible with those uses than with the existing or permitted uses in the Spring River RSC/LU. The Hearings Officer finds that locating the proposed use in the existing RSC/LU will assure its compatibility with the surrounding area and will serve to reduce its potential impacts on surrounding residential areas. The record indicates that the RSC/LU is located in close proximity to both the south end of the Sunriver Airport runway and the nearby Flood Plain Zone. The Hearings Officer concurs with staffs conclusion that these two areas effectively preclude many types of developments but would not be in conflict with the applicant's proposed landscape business/service. For the foregoing reasons, the Hearings Officer finds that the ESEE consequences of locating of the proposed landscape business/service in the Spring River RSC/LU would 17 0149-1556 not be significantly more adverse than those arising from locating the use in available sites in Bend, La Pine or Sunriver, and in fact would be significantly less adverse. (d) "The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts." The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resources and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. FINDINGS: The Spring River RSC/LU includes existing and permitted uses -- such as an excavating business -- that are similar in scale and operating characteristics to the proposed landscape business/service. In fact, the Hearings Officer finds that many of the retail uses permitted in the RSC/LU are considerably more intense uses than that proposed by the applicant. I therefore find that a landscape business/service is compatible with uses permitted in the RSC/LU. Under Section 18.124.030 of the Deschutes County Code, all uses within the RSC/LU are subject to site plan review, which is a process designed to assure compatibility with surrounding uses. In addition, the subject property lies within the LM Zone, which establishes additional siting requirements. The Hearings Officer finds that the application of these provisions to the proposed landscape business/service will assure that the business is sited and operated in a manner compatible with surrounding properties in the Spring River area. IV. CONCLUSIONARY FINDINGS: The Hearings Officer finds that the applicant's proposal to add "landscape business/service" to the list of uses permitted in the Spring River RSC/LU meets the criteria for a plan amendment, zone change/text amendment and goal exception. However, the Hearings Officer finds that in order to meet these criteria, the use to be added shall be limited to the specific landscaping activities described by the applicant and set forth below. IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's proposed plan amendment, zone change/text amendment and goal exception. The Hearings Officer finds that the list of uses permitted in the Spring River RSC/LU Zone shall be amended to include "landscape business/service," defined as follows: "Landscape business/service: including designing landscapes, site grading 18 0149-155' and preparation, placing boulders, planting trees and shrubbery, installing sod, installing irrigation systems and equipment, installing fencing, and landscape maintenance; but not including on-site cultivation of plants or plant materials or any on-site retail sales." Mailed this^t- day of `yLilit/' 1996. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL 10 DAYS AFTER MAILING, UNLESS APPEALED. I&�