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1996-12178-Ordinance No. 96-027 Recorded 4/4/1996
REVIEWED 96"12178 LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESC ; T� COUNTY, RE OGON STi An Ordinance Amending Ordinance No. 80-216, the Bend Area General Plan, as Amended, Changing the Plan Designation for Certain Property, and Declaring an Emergency. 0150-0364 ORDINANCE 96-027 WHEREAS, T.M. Pete Enterprises, Inc. requested a Plan Amendment to change the Plan Designation on a 20.97 acre parcel from Low Density Residential to Standard Density Residential; WHEREAS, a hearing was held, after notice given in accordance with law, before the County Hearings Officer; Plan; WHEREAS, the Hearings Officer approved the proposed redesignation under the Bend Area General WHEREAS, the decision of the Hearings Officer has not been appealed, now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. Ordinance 80-216, The Bend Area General Plan, as amended, is further amended to redesignate a 20.97 acre parcel, described on the attached Exhibit "A", and as depicted on Exhibit "B", attached hereto and by this reference incorporated herein, from Urban Low Density Residential to Standard Density Residential. Section 2. To adopt as its decision and findings the Findings and Decision of the County Hearings Officer dated March 12, 1996, relating to Plan Amendment Application PA -95-11, marked Exhibit "C", attached hereto and by this reference incorporated herein. 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 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under such ordinance, unless a provision of this amending ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such duty, condition,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purpose of authorizing the prosecution, conviction and punishment of the person or persons who previously violated the repealed ordinance. Ordinance No. 96-027 Page 1 MiCKOffLMEDV96 APRT %- APR 101996 0150-0005 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 it passage. DATED this 3 day of , 1996 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON NANCY P E SCIILANGEN, Chair ATTEST: - "- Recording Recording Secretary Ordinance No. 96-027 Page 2 Commissioner T L. NIPPER, Commissioner ... .., �.. �.. .. �.., �v .... . .� rc�c cr��crtrrta.�co vV000La♦✓J1 1"'. bL E PHOEN XROPOSUBD VISION 0150-0300 A parcel of land located in the East One -Half of the Northeast One -Quarter of Section 16, Township 17 South, Range 12 East of the Willamette Meridian, in Deschutes County, Oregon, being more particularly described as follows; Commencing at the Northeast corner of said Section 16; thence along the East line of said Section 16 South 00000 19" West 649.34 feet to the point of beginning; thence leaving said East line of said Section 16 West 901.31 feet to a point on the Easterly right-of-way of Boyd Acres Road; thence along said Easterly right-of- way South 16040 06" East 176.48 feetiand South 00006 31" East 118.14 feet and 55.96�feet along the arc of a 70.00 foot radius curve left th� chord of which bears South 23000 43" East 54.48 feet and South 45°54 55" East 105.11 feet; thence leaving said Easterly right-of-way East 156.75 feet; thence South 81000 00" East 190.83 feet; thence South 22030 00" East 276.00 feet; thence South 88001 07" West 420.05 feet to a point on the Easterly right-of-way of Boyd Acres Road; thence along said Easterly right-of-way South 09002 35" West 0.26 feet and 160.58 feet along the arc of a 314.66 foot radius curve left the chord of which bears South 05034 35" East 158.84 feet and South 20011 45" East 14.10 feet and 136.01 feet along the arc of a 430.00 foot radius curve right the chord of which bears South 11008 05" East 135.44 feet and South 02004 25" East 297.00 feet and 58.01 feet along the arc of a 230.00 foot radius curve right the chord of which bears South 05009 05" West 57.85 feet; thence leaving said Easterly right-of-way of Boyd Acres Road South 89057 07" East 670.52 feet to a point on the East line of said Section 16; thence along said Easterly line North 00000 19" East 1369.29 feet to the true point of beginning thence terminus of this description. Containing 21.0 acres, more or less. Sun Country Engineering & Surveying, Inc. 0150-0361 EXti�6r+"B„ A � SEE WD 17 12 168 - RTyER• .. , � � � o N ,•�, %• _ = N % +` I RAI('•••••, a3�� rw � � �/ ' ' ✓ ti u� -fir �m .i `"8 ' �,.+ y - a WAS .,1 Ir e2 m + ` rn M �Q 6 YV g 4 N N oG J!4 k ^R m�et[g $i i'.-•» - 18 8 r \!q y S rn •r.+, "lr' `� s /L +i wl°j•• ►"� J " 7 J i t01�r71jg ,, ed • m 6rT'� b u = •,.�•4 r n CA SiALI[t C+•,l + i ..� i; g'\ s't 1 1 C N g e » » 5 \ 1\1 1 1 5 �n cn iS TZM Z �+ I ov � � r� ✓ � c3) h -1 Cois - --1,- -/-� w fes;, -�- - - f �- -f --�''--j►- -f- c �'�- _ !� I' �,�� /- - . ' N _ � E � r_.M Y Yl7r +f.N .21.15 � `�\•, x sl -j6 is •`'�(�l �+ p" g � g g 1.011VIA m.n r 0.16 C$ - i I u Ilnt+� t 8 %g N 8n ' M CD ss o t VIIIAGE 1,110.41 0.34 e E xklbI4 C 0150-03 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: APPLICANT/ PROPERTY OWNER: ATTORNEYS: PA -95-11, ZC-95-9 T. M. Pete Enterprises, Inc. 61383 S. Highway 97 Bend, Oregon 97702 Timothy Sercombe Preston, Gates & Ellis 3200 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204-3688 Attorney for Applicant Myer Avedovich 740 N.W. Colorado, Suite 201 Bend, Oregon 97702 Attorney for Opponents REQUEST: The applicant is seeking approval of a plan amendment and zone change to amend the Bend Area General Plan designa- tion and zoning on a 21 -acre parcel from RL, Urban Low Density Residential, to RS, Urban Standard Density Residential. STAFF REVIEWER: Paul Blikstad, Associate Planner HEARING DATES: January 9 and February 6, 1996 RECORD CLOSED: February 20, 1996 L APPLICABLE STANDARDS AND CRITERIA: A. The Bend Area General Plan B. Title 19 of the Deschutes County Code, the Bend Urban Growth Boundary Zoning Ordinance * Chapter 19.24, Urban Low Density Residential Zone -- RL * Chapter 19.28, Urban Standard Density Residential Zone -- RS ���=fie * Chapter 19.116, Plan Amendments and Zone Changes040 b^` Xr 00 N 1 ti 0150•-0369 C. Title 22 of the Deschutes County Code, the Deschutes County Development Procedures Ordinance D. Oregon Administrative Rules Chapter 660-12, Transportation Planning E. Statewide Land Use Planning Goals IL FINDINGS OF FACT: A. Location: The subject property is located east of Boyd Acres Road, south of Cooley Road and west of Lava Ridge Elementary School. It is further described as Tax Lots 101 and 105 on Deschutes County Assessor's Map #17-12-16A. B. Zoning: The subject property is zoned RL, Urban Low Density Residential, and is designated low density residential on the Bend Area General Plan. C. Site Description: The subject property consists of approximately 21 acres and has a varied topography of somewhat level areas on the east side and rock out- crops on the west side, with an elevation difference of approximately six to eight feet from the highest to lowest points. The eastern portion of the property has been cleared and graded, streets and curbs have been constructed, and water and sewer lines and underground utilities have been installed for a planned unit de- velopment (PUD) called "Phoenix Park." The remainder of the property has a cover of native vegetation, including juniper trees and native brush and grasses. D. Surrounding Land Use: Land use in the vicinity of the subject property includes low and standard density residential development to the north, vacant land to the west and south, the Lava Ridge Elementary School to the east, and vacant park land to the southeast lying just outside of the Bend Urban Growth Boundary (UGB). Zoning in the vicinity of the subject property is RL to the west, north and south, and SR -2.5, Suburban Low Density Residential, to the east outside the Bend UGB. E. Procedural History: There have been several previous land use actions con- cerning the subject property. In 1989, the property received preliminary approval for a 34 -lot subdivision to be called "Sunset Estates" and located on the eastern portion of the property. The lots ranged in size from approximately 20,000 to 32,000 square feet. In 1992, the applicant began to develop the first phase of this subdivision, consisting of 13 lots, by obtaining on-site septic system site evalua- tions for each lot. The site evaluations indicated that under the septic system standards applicable at that time, only five of the thirteen lots could be approved for standard septic systems, and two lots could not be approved for any type of system. On the basis of the septic site evaluations, the applicant elected not to proceed with development of the subdivision lots at that time. 0150-OK0 Subsequently, the land adjacent to the subject property on the east was chosen as the site of the Lava Ridge Elementary School, and the City of Bend extended city sewer facilities and service to that site and to the vicinity of the subject property. In 1993, the Deschutes County Board of Commissioners (hereafter "Board") and the Bend City Commission approved an amendment to the Bend IUGB to bring the Lava Ridge site within its boundaries. That year, the applicant applied for a plan amendment, zone change and tentative subdivision plan approval to allow development of the subject property and nine additional acres directly across Boyd Acres Road to the west to standard residential density with 105 lots to be served by city sewer. The 1993 plan amendment/zone change/tentative plan application was denied by Hearings Officer Ed Fitch. The applicant appealed the denial to the Board, which orally upheld the hearings officer's denial, citing concerns about the traffic impacts from the proposed development on Boyd Acres Road, as well as perceived "spot zoning" of the subject property. However, the Board indicated that urban residen- tial residential density would be appropriate for the site once certain transportation improvements were made. Prior to the Board issuing a written decision denying the plan amendment/zone change/tentative plan, the applicant withdrew his applications. Subsequently, the applicant applied for conditional use approval for a PUD called "Phoenix Park" on the 21 acres located east of Boyd Acres Road. The applicant proposed a PUD consisting of 27 lots on the eastern portion of the subject proper- ty, ranging in size from 8,500 to 9,000 square feet in size, and the undeveloped western portion of the site being conditionally dedicated as open space to be owned by the applicant and maintained by a property owners' association as long as the subject property was zoned for low-density residential development. The applicant proposed that the open space be held for possible redevelopment when and if the subject property was rezoned for standard density residential develop- ment. In November of 1993, Hearings Officer Liz Fancher approved the proposed PUD, including the conditionally -dedicated open space, with conditions. In November of 1995, the applicant submitted the subject plan amendment/zone change applications. The first public hearing was held on January 9, 1996. At that hearing, opponents expressed concern about the adequacy of the land use action notice posted on the subject property. The Hearings Officer continued the public hearing to February 6, 1996, and directed the applicant to re -post the notice in three specific locations. Also during the first public hearing, planning staff and op- ponents questioned whether the 1993 PUD approval for the subject property had expired. Following the first public hearing, the applicant applied for a declaratory ruling to establish the status of the 1993 PUD approval, as well as a request to modify certain conditions of that approval. 0150-0371 On February 6, 1996, prior to the second public hearing, the Hearings Officer conducted a site visit to the subject property and vicinity. At the second public hearing, the Hearings Officer left the written record open through February 20, 1996. The applicant's attorney indicated his intent to, and did, submit further written argument within seven days of the close of the record, as provided in ORS 197.763(6)(e). F. Proposal: The applicant is requesting approval to amend the Bend Area General Plan designation and the zoning on the subject property from RL, Urban Low Density Residential, to RS, Urban Standard Density Residential. G. Public Agency Comments: The Planning Division sent notice of the proposed plan amendment and zone change to a number of agencies, and received responses from: the Deschutes County Public Works Department and Property Address Coordinator; the Bend-LaPine School District; the Bend Fire Department; the Oregon Water Resources Department (Watermaster); Swalley Irrigation District; and US West Communications. These comments are set forth verbatim at pages 3-5 of the Staff Report, and are incorporated by reference herein. H. Public Notice and Comments: The Planning Division also sent written notice of the first public hearing in this matter to the owners of all property located within 250 feet of the subject property. In addition, the subject property was posted with land use action notice prior to the first public hearing and again prior to the second public hearing. A number of letters were received in response to these notices. A list of letters contained in the record is attached hereto as Appendix "A." III. CONCLUSIONS OF LAW: A. Preliminary Issues. Opponents have raised the following preliminary issues. 1. Notice. Opponents have objected to the county's failure to send written notice of this matter to all persons who during the 1993 plan amendment/zone change/ tentative plan proceedings requested notice of any further land use actions on the subject property. The record indicates that Paul Blikstad, the planner assigned to this matter, overlooked this request when preparing the list of persons to be notified. Section 22.24.030(A)(1) of the Deschutes County Development Procedures Ordinance (hereafter "procedures ordinance") requires that written notice be sent to owners of property located within 250 feet of the subject property, and any "neighborhood organization" formally recognized by the Board whose boundaries include the subject property. The record indicates that notice was sent in accor- dance with this section. There is no evidence in the record that opponents are a "neighborhood organization" as contemplated in the procedures ordinance. For these reasons, the Hearings Officer finds that the mailed notice in this matter was 4 0150-0572 legally sufficient. 2. Conduct of Public Hearings. Opponents objected to the Hearings Officer's imposition of time limits on testimony as well as to a request that written testimony not be read into the record. In addition, opponents object to the failure to record all of opponents' testimony at the second public hearing. The inadvertent failure to record portions of opponents' testimony at the second hearing, while regrettable, has not deprived opponents of due process or a fair hearing. The Hearings Officer took extensive notes at both hearings, and oppo- nents and their counsel submitted nearly 200 pages of written testimony and exhi- bits -- all of which the Hearings Officer has read and considered. Moreover, any prejudice to opponents resulting from the lack of a complete magnetic tape recor- ding of the second public hearing can be corrected by a & novo hearing on appeal to the Board under Section 22.32.030(D) of the procedures ordinance. Section 22.24.120(A) expressly authorizes the Hearings Officer to place "reason- able time limits on presentations by parties." I find that the limitations placed on the hearing testimony were reasonable under the circumstances. Approximately fifty persons attended each hearing. In order to assure that all persons wishing to testify had the opportunity to do so, a time limit of five minutes per person was set for oral testimony, and witnesses were encouraged to submit written testimony and asked not to read written testimony into the record. Most persons testifying were able to comply with these limitations, and all persons indicating a desire to testify were allowed to do so. At the second public hearing, at which opponents were first represented by counsel, the applicant's and opponents' attorneys each were permitted to speak for approximately 25 minutes. For the foregoing reasons, the Hearings Officer finds that the conduct of the two public hearings in this matter did not deprive any party of a full and fair opportu- nity to be heard. 3. Effect of 1993 PUD Al2proval. As discussed in the Findings of Fact above, the applicant has commenced development of the subject property pursuant to Hearings Officer Liz Fancher's 1993 approval of the "Phoenix Park" PUD. That decision approved a PUD with 27 lots and open space of which the applicant would retain ownership with access easements to each lot. However, the open space dedication and access easements were somewhat unorthodox in that they would be revocable by the applicant if and when the entire property was rezoned for standard density residential development. That decision was not appealed. At the public hearings, this Hearings Officer questioned whether this unusual open space dedication or any other aspect of the 1993 PUD approval would present legal or practical impediments to the proposed plan amendment and zone change. The applicant argues that no such impediment exists, and the 0150--63`13 Hearings Officer concurs. The 1993 PUD decision expressly contemplated the potential rezoning of the sub- ject property to RS, sanctioning the open space as a "holding area" for future residential development following replatting of the entire subject property. The Hearings Officer finds that the PUD approval and the proposed plan amendment/ zone change are independent of one another and are not mutually exclusive or inconsistent. Assuming that the PUD approval is still valid (see discussion below), the applicant may complete that development regardless of whether the subject property ultimately is rezoned. Similarly, if the proposed zone change ultimately is approved by the Board, the applicant may replat the subject property, including the previously approved PUD lots, as permitted by state law. 4. Effect of Pending Land Use Applications. The 1993 PUD decision contained a condition of approval requiring that the tentative plat be submitted for final plat review within two years of the date the decision became final or the tentative plat approval would be void. The record indicates the PUD tentative plat was not sub- mitted for final review within the prescribed period, which expired in November of 1995. As discussed in the Findings of Fact above, prior to the second public hearing in this matter, the applicant filed two new land use applications relating to the PUD. One requests a declaratory ruling that the PUD approval is still valid because of development activity already undertaken by the applicant pursuant to the approval. The other requests modification of certain approval conditions. Opponents argue that the pending applications require the Hearings Officer to withhold decision in this matter until they are resolved. However, I concur with the applicant that opponents' rationale for holding this matter in abeyance is not evident. As discussed above, the PUD approval and this plan amendment/zone change application are independent of one another and are not mutually exclusive or inconsistent. Even if the PUD approval is found not to have been "initiated" before expiration so as to revive it under Section 22.36.020 of the procedures ordinance, the applicant may replat the entire subject property under the current RL zoning, or may do so upon rezoning to RS. 5. Effect of 1993 Decision Denying Plan Amendment/Zone Change/Tentative Plan. Opponents in effect argue that the subject plan amendment/zone change pro- posal is barred by the 1993 denial of the applicant's previous plan amendment/ zone change/tentative plan proposal. The Hearings Officer disagrees. The subject application differs from the 1993 application in three material respects: 1) it in- volves less acreage (21 vs. 30 acres); 2) it does not include any acreage on the west side of Boyd Acres Road; and 3) it does not include a specific subdivision approval application. Because the proposals are materially different, the 1993 denial does not constitute a precedent binding upon this Hearings Officer, and the applicant is not legally precluded from making the subject application. 31 0150-03'74 Opponents' argument relies in particular on Hearings Officer Fitch's statement that any increase in residential density in the vicinity of the subject property should await the straightening of and other improvements to Boyd Acres Road. However, this Hearings Officer finds that Mr. Fitch's statement was dicta -- that is, an expression of his opinion not required to render a decision. In any event, I find that the issue of whether or not this application meets the plan amendment and zone change approval criteria must be determined by this Hearings Officer based upon the facts in this record and independently from the 1993 decision. 6. Legislative vs Quasi -Judicial Plan Amendment/Zone Change. Opponents argue that no further redesignation and rezoning of lands in the Bend UGB from RL to RS should be permitted until the county undertakes a legislative UGB-wide process to examine the appropriate zoning for all such lands. Regardless of whether opponents' argument represents good public policy, both the Bend Area General Plan and Chapter 19.116 of the Bend Urban Area Zoning Ordinance expressly permit quasi-judicial plan amendment and zone change applications. The applicant is not required to wait until legislative action is taken to submit a plan amendment/zone change proposal. 7. PlanAmendment/Zone Change vs. Subdivision Proposal. Much of opponents' testimony and argument in this matter focuses on concerns about the potential im- pacts from a particular subdivision proposal on the subject property. This focus -- while understandable given the history of land use applications on the subject property, the applicant's acknowledged intent to develop the property at standard residential density, and the applicant's lot marketing activity 1-- is misdirected. The Hearings Officer finds that the issue in this matter is not how the subject pro- perty ultimately will be developed, such as the number of and size of lots, the number and locations of street access, off-site improvements to streets and other infrastructure, etc. Rather, the issue is whether the subject property should be allowed to develop at standard residential density rather than at the current low density zoning based upon the factors to be considered under the comprehensive plan and zoning ordinance. 1 There has been considerable testimony concerning the applicant's lot marketing activities. Opponents claim the applicant has been unlawfully marketing lots in a future subdivision, and rely upon a sign posted on the subject property showing more lots than were approved in the Phoenix Park PUD. The applicant counters that he has been legally marketing only approved PUD lots, and that the sign in question -- which does show subdivision lots as proposed in 1993 -- was altered by the applicant to show only the PUD lots and was later tampered with to show the additional unapproved subdivision lots. The Hearings Officer finds that none of this evidence is relevant to the issue in this case, which is whether or not the proposed plan amendment and zone change meet the applicable approval criteria. 7 B. Plan Amendment Criteria 0150--03 15 1. The Bend Area General Plan changes shall be consistent with the goals, objectives, policies and statements of intent of the plan, or these guidelines shall be first changed or amended to reflect new policies. An individual re- questing a change shall demonstrate that the change is warranted due to changed conditions, a mistake or other specific facts that demonstrate a public need and benefit for the change. (Page 69) FINDINGS: The proposal's compliance with the goals, objectives, policies and statements of intent in the plan is discussed in the findings below. Discussion of the proposal's compliance with the other criteria in this policy follows. 1. Mistake The Hearings Officer finds that there was no mistake in the original plan designation or zoning of the subject property for low-density residential development. The record indicates that the subject property was so zoned because at the time the Bend Area General Plan was adopted in 1979, the City of Bend had no intention of providing public sewer service to the area. Without public sewer service available, larger lot sizes and less dense development were required in order to provide adequate area for the construction of on-site sewage disposal systems. 2. Changed Conditions. The Hearings Officer finds that changed conditions on and in the vicinity of the subject property warrant a change in the plan designation to standard density residential.2 The part of the Bend Urban Area in which the subject property is located has undergone a number of significant changes since the plan was adopted. These changes include: 1) the extension of city sewer service to the area to serve the new Lava Ridge Elementary School; 2) the construction and opening of the school; 3) revisions to Title 19 prohibiting subdivision development in the UGB without connection to city sewer; 4) the subsequent development and/or development approval of lands in the area for greater density residential development than was possible without sewer (e.g., Wishing Well and Majestic Village); and 5) improvements to local transportation facilities, including the construction of 18th Street, a new arterial, and the installation of a traffic signal at the intersection of Cooley Road and Highway 97. Most of these changed conditions were not contemplated 2 Opponents argue that there have been no changed conditions since the hearings officer denied the applicant's previous plan amendment/zone change proposal in 1993. This argument misses the mark. The issue under this plan provision and the comparable provision in Section 19.116.030(E) of the zoning ordinance, discussed in the findings below, is whether there has been a change of conditions since the original plan and zoning designation. 8 0150-03'76 when the comprehensive plan was adopted inasmuch as the city did not intend at that time to provide sewer and water service to the entire UGB. In addition, there have been changed conditions on the subject property itself pursuant to the previous approval for the Phoenix Park PUD. These include the installation of sewer and water lines and underground utilities, the construction of streets, curbs and sidewalks within the subject property, and the extension of Ranch Village Drive and Egypt Drive providing access to two nearby arterials, Cooley Road and 18th Street. The extension of sewer and urban transportation facilities in this part of the Bend Urban Area, and the revisions to Title 19 requiring subdivisions to connect to sewer, have made development of vacant lands in the UGB at greater densities than contemplated in 1979 both possible and more economical and efficient from a practical standpoint by reducing the cost per lot for public facilities. As the applicant points out, there are fixed costs to the developer in constructing and providing urban services to a subdivision of a given size, including streets, curbs, sidewalks and storm drainage, and the installation of underground sewer and water facilities and utilities. Spreading these costs over a larger number of lots in an urban density development will result in lowers costs per lot compared to a smaller number of lower -density lots. Evidence in the record bears out that these "economies of scale" have already affected subdivision development in the Bend UGB. The record indicates that since the City of Bend announced its intention to provide sewer service to the entire UGB, only two RL -type, low-density subdivisions -- including the Phoenix Park PUD on the subject property -- have been approved, while several RS -type, standard density subdivisions have been approved and/or developed with connection to sewer. Moreover, the Hearings Officer concurs with the applicant's assertion that the historic residential development pattern in the Bend UGB at lower -than -allowed density, while originally driven in large part by the lack of public sewer service, is not consistent with the intent of either the Bend Area General Plan or the statewide planning goals that urban areas develop at urban densities with full urban services. Two documents submitted into the record by the applicant support this conclusion. The 1990 Bend Case Study, Urban Growth Management Study, produced by the Department of Land Conservation and Development (DLCD), concluded that continuing the pattern of low-density subdivision development in the Bend Urban Area could result a shortage of housing within, and the need to expand, the UGB onto resource lands. The Bend Urban Area Single Family Lands Report, prepared by the City of Bend in 1995, also projected a shortage of available lands for single-family housing in the Bend UGB based upon historic low-density subdivision development consuming large parts of the urban area at less -than -urban densities. 3. Public Need and Benefit. The applicant and opponents disagree about what type of need/benefit analysis must be undertaken under this provision. Opponents' analysis focuses on whether or not there is a need for additional housing in the Bend UGB. They have submitted evidence to the effect that there is an abundance of RS -zoned land in the UGB, as well as available building lots and homes in RS -zoned subdivisions, in order to meet W housing needs in the Bend Urban Area until a legislative plan amendment/zone change process for RL -zoned lands is completed. The applicant argues that the public need/benefit analysis should be directed at the larger issue of whether vacant lands in the Bend Urban Area should be allowed to continue developing at low density, particularly in light of the availability of urban services such as city water and sewer to these lands. He contends that both the statewide planning goals and the Bend Area General Plan provisions concerning urban development embody a strong public policy against low-density urban residential development in order to prevent "urban sprawl" and the necessity for expansion of the UGB, as well as to assure the efficient and economical provision of urban services made possible by spreading the costs of urban facilities and services over a larger number of lots. He points to the testimony of several opponents concerning the poor condition of Ranch Village Drive through the Ranch Village subdivision as evidence that the development of low-density subdivisions in the Bend UGB without the requirement of full urban services to each lot has resulted in the provision of inadequate urban facilities. The Hearings Officer concurs with the applicant's analysis, and finds that the proposal will provide a public benefit and will meet a public need by allowing the development of lands in the Bend UGB at urban densities where public urban services are now available and can be extended efficiently and economically. The Hearings Officer finds that the proposed plan amendment and zone change also are warranted by changed conditions since the original plan designation and zoning. FINDINGS: The Hearings Officer finds that the following plan goals, objectives, policies and statements of intent apply to the subject plan amendment proposal. 1. Urban development shall be encouraged in areas where urban services can be provided and in a manner which will minimize tag costs related to necessary urban services such as schools, parks, highways, police, garbage disposal, fire protection, libraries, and other facilities and services. (Page 5) FINDINGS: The Hearings Officer finds that the proposed plan amendment and zone change are consistent with this policy because urban services are available to the subject property. In addition, I concur with staffs conclusion that increasing density as proposed by the applicant will minimize tax costs for all available urban services and facilities. I find that this decrease in cost and the increase in efficiency of urban service delivery with greater density is one of the fundamental principles underlying the plan and statewide goals policies encouraging development at urban densities within the UGB. 1. Streets. The subject property borders on Boyd Acres Road on most of its western boundary. In addition, the record indicates that the applicant has constructed two street extensions connecting to arterials: Ranch Village Drive to Cooley Road, and Egypt Drive to 18th Street approximately one block to the east. 10 0150-0378 Opponents question whether the streets in the vicinity of the subject property are adequate to provide "urban services" to a potential standard density subdivision based upon a number of factors, including: 1) the condition of Boyd Acres Road and Ranch Village Drive; 2) the intersection of Ranch Village Drive and Cooley Road; 3) the function of the traffic signal at Cooley and Highway 97; and 4) the location of 18th Street. The street capacity issues are discussed in detail in the findings on zoning ordinance compliance below. However, the Hearings Officer finds that the proposal meets this plan policy because the subject property has direct access to three streets, two of which are designated urban arterials. 2. Water. The record indicates that water is available to the subject property from the Avion Water Company. Water lines have been installed on a portion of the subject property. Opponents have expressed concern about whether sufficient water can be delivered to the subject property to assure adequate water pressure and fire flows. The Hearings Officer finds that the adequacy of water supply and pressure must be demonstrated by the applicant at the time of any subdivision development proposal. 3. Sewer. The record indicates that the city sewer system has been extended to the vicinity of the subject property, and that sewer has been connected to the subject property and sewer lines installed on a portion of the property. 4. School. The subject property lies within the Bend-LaPine School District and abuts the new Lava Ridge Elementary School. Opponents argue the proposal will unduly burden an already overtaxed school system. The issue of school capacity as it relates to this proposal is discussed in detail in the findings below on zoning ordinance compliance. However, the Hearings Officer finds that the proposal complies with this policy by allowing development which will concentrate denser residential development near schools, thereby reducing the cost of student transportation as elementary students may walk to school. In addition, I concur with staffs findings that denser urban development will reduce the tax burden for new schools on individual properties by spreading the costs of new bonds and operating levies for schools over a greater number of properties. 5. Perks.. There has not been park development in the northeast part of the Bend Urban Growth Boundary. The Bend Metro Parks and Recreation District (hereafter "district") has a park master plan in place as well as systems development charges for urban park acquisition and development. The district's levy, which passed in May of 1995, will be spread across property within district boundaries. As discussed in the findings above concerning schools, spreading the tax burden of that levy over a greater number of properties developed through denser urban development will reduce the tax burden for parks on each individual property. In addition, the record indicates that the subject property abuts on its eastern boundary an undeveloped park parcel owned by the district. The Hearings Officer finds that the proximity of this park land to the subject property, as well as the requirement in the 11 0150-05'T9 county's subdivision ordinance that subdividers either dedicate park land or pay an "in lieu" fee, assure that the subject property will be served by urban parks. 6. Fire Protection. The Bend Fire Department's written comments in response to notice of this proposal indicate that it is able to provide fire protection to the subject property, and recommends that certain conditions of approval relating to fire protection be imposed upon any future development of the property. 7. Police Protection. The record indicates that police protection initially will be provided to the subject property by the Deschutes County Sheriffs Department until the property is developed and annexed into the City of Bend, and which time the city will provide police services. 8. Libraries. The Deschutes County Library bond measure which received voter approval last year will allow the construction of new library facilities. As discussed in the findings above, greater density of development will result in a reduction in the tax burden from this bond measure on individual properties. 3. Future development and local development standards shall recognize and respect the character of existing areas. Maxi- mum flexibility in development should be encouraged in un- developed areas. (Page 5) FINDINGS: Much testimony and argument in this matter has been directed to the character of the area surrounding the subject property, and whether the proposal will respect that character. The Hearings Officer notes that in the 1993 decision approving the Phoenix Park PUD, Hearings Officer Liz Fancher found that the area surrounding the subject property "has no real established character." I find, on the basis of both testimony and my own site visit, that the area surrounding the subject property has not changed significantly since the 1993 PUD decision, and does not have an distinctive, identifiable character like that in established residential neighborhoods. Rather, the area is in transition, reflecting a broad mixture of undeveloped lands, older low-density and newer standard -density residential development, and the new Lava Ridge School campus. With the extension of city sewer services to the northeast Bend area, and the construction of the new school and improvements to urban streets, this area has begun to develop at higher density. An example is the Wishing Well Subdivision to the south of the subject property, which was platted after sewer became available. The Hearings Officer concurs with the staffs conclusion that, with the extension of sewer service to this area and the requirement in Title 19 that new subdivision development be connected to city sewer, additional low-density residential development such as that allowed in the RL Zone generally will not occur. As discussed above, only two RL -type subdivisions have been approved and developed in the Bend Urban Area in the last several years. That is because urban services -- including sewer, water and utilities -- can be provided more efficiently and economically to denser development. The Hearings Officer 12 0150-0080 also concurs with the applicant's observation that development of the subject property at higher density will provide greater opportunities to fund necessary infrastructure improvements. This can be accomplished both by the imposition of systems development charges on a greater number of lots, and by the imposition of requirements on the developer for both on- and off-site infrastructure improvements. Notwithstanding the significant change in potential density of development resulting from the extension of city sewer to this part of the Bend Urban Area, the Hearings Officer finds that future development of the subject property must still recognize both the variety of densities in the surrounding area as well as the topography and natural features of the subject property. That recognition may take the form of requirements that lots developed on the outer portions of the subject property be larger than those in the interior, that the boundary of the development have significant landscaping or other buffering, and other similar measures which may be imposed to increase the compatibility of development on the subject property with the vacant and low-density residential development abutting it. For the foregoing reasons, the Hearings Officer finds that the subject property can be developed at the proposed standard density residential and still respect the varied character of the surrounding area. 4. Residential developments should be located so that they are convenient to places of employment and shopping facilities, and they should be developed in ways which are consistent with the character of the topography and soils on the site. (Page 5) FINDINGS: The Hearings Officer finds that development of the subject property at standard residential density will be convenient with respect to both employment and shopping opportunities. The subject property currently has access to two arterials, Cooley Road to the north and 18th Street to the east. The intersection of Cooley Road and Highway 97, now signalized and relatively close to the subject property, provides access to the Highway 97 corridor where many shopping facilities and employers are located. The connection to 18th Street provides access to the east part of Bend, including St. Charles Medical Center and surrounding professional office development and the commercial developments east of Pilot Butte. When Empire Avenue is extended and connected to 18th Street, there will be easy access to the northeast industrial area in which several of Bend's largest employers are located. As discussed above, the subject property is relatively level. Soils on the property are not particularly critical to development of the site inasmuch as lots will be required to connect to sewer. The Hearings Officer concurs with stars conclusion that the subject property can be developed at standard residential density and be consistent with the topography and soils on the site. 13 01J0-s05S1 5. Residential areas should offer a wide variety of housing types in locations best suited to each, and shall be developed in a way which will not create health or erosion hazards. Den - sites recommended on the plan shall be recognized in order to maintain property relationships between proposed public facilities and services and population distribution. (Page 5) FINDINGS: The proposed plan amendment and zone change would allow the subject property to be developed at greater density, offering housing on smaller lots in a potentially more affordable price range than typically characterizes housing on larger lots. The Hearings Officer finds that development of the subject property can be accomplished without creating health or erosion hazards through conditioning at the time of subdivision approval. Opponents argue that the proposal will not offer lower cost housing based upon the applicant's own lot marketing information, which they claim indicates the applicant will sell lots at higher costs than many currently available lots. They also argue, based their submitted Exhibits 1 A through 1 C which show residential lots and houses listed for sale in the Bend area, that there already exists sufficient lower-cost housing to make the additional housing proposed by the applicant unnecessary. The applicant responds that the data in Opponents' Exh. IA shows the median price of available lots (over $79,000) is substantially higher than the median price for existing Phoenix Park lots ($55,000), and considerably higher than smaller, standard density residential lots would sell for. The Hearings Officer notes that opponents' housing supply conclusion from the data included in their Exhibits 1A through 1C is at odds with the conclusion reached by the City of Bend in its 1995 Single -Family Lands Study, discussed in the findings above. Moreover, I am aware that there are a number of factors and market forces driving both demand and the price of housing in Bend. These include supply, as well as views, proximity to schools and services, quality of the neighborhood, the reputation of the builder and the buyer's preference of locations. In individual cases, smaller lots and houses in a desirable location with high amenities may be more expensive than lower density housing on larger lots in less desirable locations and without similar amenities. I find that the purpose of this plan policy is to provide potential buyers with a variety of choices in housing types and locations so that market forces can come into play. Consequently, I find the proposed plan amendment and zone change to standard residential density will allow the subject property to be developed with potentially lower-cost housing offering an alternative to the generally higher -priced low-density housing in the area. The existing density shown on the Bend Area General Plan is lower than the one proposed. The original plan density designation was established based on the fact that at the time the plan was adopted, the City of Bend had no plans to provide sewer service to this part of the Bend Urban Area. The Hearings Officer finds that with the provision of city sewer service to this area and the restriction on subdivision development without sewer connection, the proper relationship between public facilities and population 14 0150-038 distribution will be better maintained by development at the greater densities that make public facility extension and connection financially feasible. Urbanization Policies (Pages 12-13) Within the IUGB, the following policies will apply to the conversion of urbanizable land to urban land. Assumptions: (Page 13) 1. New development should bear the burden of paying for costs of the development. FINDINGS: The Hearings Officer finds that the developer of the subject property will be required to pay the costs of any connections to and construction of public or private utilities on the subject property. In addition, I find that the developer will be required to pay the costs of off-site improvements which may be found to be necessitated by the impacts of the development, including potential off-site improvements to streets serving any future development. 2. New development shall locate in areas where facilities are available or can be provided at least cost. FINDINGS: As discussed above, urban facilities and services are available to the subject property, including water, sewer, streets and utilities. The Hearings Officer finds that the proposed plan amendment and zone change will allow the subject property to be developed at greater density, thus reducing costs of providing urban services to each lot. 3. New development can occur anywhere in the IUGB, provided that it pays for necessary facilities. 4. Developments must pay the full cost of urban services if they occur on developable lands prior to the city's or county's planned capital improvements. FINDINGS: As discussed above, the Hearings Officer finds that the developer of the subject property will be required to bear all costs of constructing and connecting to urban services and facilities on the subject property, and may be required to pay for off-site facilities improvements. Timing: (Page 13) 1. Within the IUGB, vacant lands passed over by development shall be encouraged to develop prior to other lands within the boundary. 15 015©-036`3 FINDINGS: The Hearings Officer finds that the proposed plan amendment and zone change will allow the subject property to be developed at an appropriate time with respect to the provision of public services. Although the record indicates that there are vacant RL - and RS -zoned lands within the Bend UGB located closer to the Bend city limits and the center of town, the record (specifically information provided by Wendy Robinson of the City of Bend and included in the record as an attachment to Mr. Sercombe's 2-17-96 letter) also indicates that urban services, such as sewer and streets, may not be available to them at this time or may be located at distances making the cost of connection to them prohibitive. Inasmuch as these public services are now constructed and available for connection to the subject property, development of this property at standard urban density will be more systematic and orderly than requiring that it wait for development of closer -in properties currently without economic urban services. 2. Growth in the Bend Area shall be managed through the cooperative efforts of the City of Bend and Deschutes County, and shall be in accordance with the plans, timing, phasing, and financing of public facilities and services. FINDINGS: The Hearings Officer finds that development of the subject property will be subject to joint oversight by the city and county. The developer will be required to meet all applicable city and county development standards. Development of the subject property at urban standard density with connection to city sewer is consistent with the City of Bend's master plans for sewer facilities, as well as with the development restrictions in Title 19 of the Deschutes County Code that all new development of three or more lots must connect to the city sewer system in order to assure adequate, safe and efficient sewage disposal. 3. Future urban development shall be contained within the geographic limits of the IUGB. FINDINGS: The Hearings Officer finds that the subject property is located within the IUGB. 4. All parties shall work toward the most efficient and economical method for providing specific urban services to the area within the IUGB. In the long run, the city is the logical provider of such services. FINDINGS: As indicated in the findings above, the proposed plan amendment and zone change will allow the subject property to be developed at a greater density which will allow more efficient and economic provision of public services to the property. The Hearings Officer finds that the cost of extending sewer, water, roads and utilities to more densely developed land is more economical and efficient than extending such urban services to land developed at RL -type densities. It is this notion of "economies of scale" that underpins plan policies encouraging urban -density development within the UGB. 16 0.50--0384 5. The plan shall encourage the development of vacant lands that have urban services before the extension of services beyond presently served areas. FINDINGS: As discussed in the findings above, the subject property now has full urban services, including improved roads, sewer, water, police and fire protection. The Hearings Officer finds that the proposal is consistent with this plan policy. 8. No new service districts shall be created within the IUGB to provide sewer or water service without the concurrence of the City and County. FINDINGS: No new service districts are proposed as part of this plan amendment and zone change. No new service district shall be allowed as part of any development of the subject property. Residential Areas -- Statements of Intent of the Plan (Pages 32-34) 1. The basic and most important single development criteria for residential areas is housing density. 2. Residential densities indicated on the general plan shall be respected and reflected in city and county codes, ordinances, and development policies. The intent of the plan is to indicate housing density rather than type of building construction per- mitted within various density areas. 3. All new housing developments shall conform with the desig- nated housing density, regardless of building type, site size, or timing as related to other developments. FINDINGS: As discussed in the findings above, the subject property was designated on the General Plan for less dense development than that proposed, based on the fact that at that time the plan was adopted the City of Bend had no intention of providing public sewer service to the area. Without public sewer available, larger lot sizes and less dense development were required in order to provide adequate area to allow the construction of on-site sewage disposal systems and reserve areas. With the availability of sewer to the area of Bend in which the subject property is located, the rationale for low-density residential designation no longer exists. The record indicates that even with the low-density designation the subject property may not be fully developable without sewer. Portions of the subject property have been found unsuitable for the siting of any type of on-site sewage disposal system, and other portions may be suitable only for the most expensive types of systems, which may exceed the per - lot cost of extending city sewer services. The Hearings Officer finds that demonstrated 17 060 0150-6 difficulty in siting on-site sewage disposal systems in parts of the Bend UGB is one of several considerations underlying the city's decision to provide sewer to entire urban area and the county's decision to restrict subdivision development until property is connected to city sewer. I further find that the proposed plan amendment and zone change, which will allow the subject property to be developed at a greater density with connection to city sewer, is entirely consistent with the plan policies that encourage urban -density development where public facilities and services can be provided economically and efficiently. 4. All residential developments shall respect the physical characteristics of the site relating to soils, slope, geology, erosion, flooding, and natural vegetation. FINDINGS: As discussed above, the subject property is relatively level, thus minimizing potential erosion and related problems. In addition, the soil characteristics of the site are not particularly critical to its development since any subdivision lots must now be served by city sewer. The Hearings Officer finds that the physical characteristics of the site will allow it to be developed at standard residential density, and that any development shall be subject to conditions assuring respect for the site's characteristics. 6. All residential areas shall be provided with community water and sewer service. FINDINGS: As discussed in the findings above, the record indicates that the subject property is served by the Avion Water Company, and that city sewer service is available to the property. 8. Residential development standards within the urban growth boundary shall be the same for areas of similar densities or topographic conditions, both inside and outside the city. FINDINGS: The Hearings Officer finds that future development of the property will be subject to the same subdivision development standards as apply to subdivisions within the Bend city limits. 9. New developments in existing residential areas shall respect the character and quality of the areas in which they locate. 10. New developments in areas without an established character or quality shall be permitted maximum flexibility in design and housing type consistent with densities and goals and objectives of the general plan. FINDINGS: As discussed in the findings above, the area of northeast Bend in which the subject property is located does not have a distinctive established character. Rather, the 18 0150-0366 character of the area is in transition with the availability of city sewer service. What was previously a largely undeveloped area with some large -lot residential areas can no longer be efficiently or economically developed at such low density. As discussed above, RL -type subdivisions will likely no longer occur in the Bend Urban Area since vacant land cannot now be subdivided without connection to city sewer facilities. As a result, the area in which the subject property is located now contains a mixture of vacant land, large -lot subdivisions, smaller -lot subdivisions in areas that have been rezoned to RS, and the new elementary school campus. The proposed plan amendment and zone change will allow the subject property to develop at greater density than contemplated in the RL Zone. In light of the varied character of the surrounding area and the resulting mixture of low- and higher -density residential developments and vacant lands, the Hearings Officer finds that any development of the subject property will need to respect both the mixed nature of the surrounding area and the specific topographic features of the site. As discussed above, in order to assure compatibility with the surrounding area, subdivision development on the subject property may be required to include features such as larger lots and buffering on the perimeter of the property where it abuts undeveloped lands and low-density residences. 30. Schools and parks should be distributed throughout the residential sections of the community, and every dwelling unit in the area should be within walking distance of a school or park. 31. Because schools can encourage or direct residential development, their locations shall be subject to the approval of the city or county. FINDINGS: As discussed above, the subject property is adjacent to both the new Lava Ridge Elementary School campus and to a vacant parcel owned by the parks district. As a result, residents of any development on the subject property will be within walking distance of both of these facilities. The Board's findings in support of Ordinance No. 93-009, which expanded the Bend UGB to include the Lava Ridge School site, indicate that the school district selected this school site because it is centrally located within the proposed school attendance area. The Board's findings also state that siting of the school in this location "will facilitate development within the IUGB on the undeveloped parcels at urban densities, as contemplated in the urban area p1m." (Emphasis added.) The district's comments in response to the proposed plan amendment and zone change indicate their policy to site and construct schools in response to and in anticipation of growth. The Hearings Officer finds from these Board findings and the district's stated policy that the district's choice of the Lava Ridge site was driven in large part by anticipated urban density residential growth in the surrounding area. 19 The Hearings Officer finds that the siting of the Lava Ridge school and the future park adjacent to the subject property, as well as the plan's policies to encourage that dwellings be within walking distance of schools and parks, make the proposed rezoning of the subject property to standard density residential entirely consistent with the plan's intent by increasing the number of persons who will live in close proximity to these public facilities. C. Zone Change Criteria 1. Section 19.116.030. Standards for Zone Change. The burden of proof is upon the one seeking change. The degree of that burden increases proportionately with the degree of impact of the change which is sought. The applicant shall in all cases establish: A. That the change conforms with the Comprehensive Plan. Specifically, the change is consistent with the plan's intent to promote an orderly pattern and se- quence of growth. FINDINGS: Conformance with the Bend Area General Plan has been addressed in the findings above. The Hearings Officer has found that the proposed zone change from RL to RS is consistent with the plan's intent to promote orderly growth. As discussed above, the extension of city sewer service to this part of the Bend Urban Area, as well as the construction of the new elementary school and 18th Street, have contributed to the transition of this area from vacant lands and low-density residential development to urban density development. The proposed plan amendment and zone change will allow the subject property to be developed at a greater density, allowing for more efficient and economic provision of urban public services than could be provided to large -lot, low- density development. In addition, the proposed rezoning of the subject property will allow denser development adjacent to a school and park, which is consistent with the plan's intent to facilitate easy pedestrian access to such facilities by area residents. The subject property has access to two nearby urban arterials, Cooley Road and 18th Street. Opponents argue that the proposal does not promote orderly development in two significant respects -- street and school capacity. These issues are discussed in detail in the findings below. B. That the change will not interfere with existing development, development potential or value of other land in the vicinity of the proposed action. FINDINGS: As discussed in the findings above, the part of the Bend Urban Area in which the subject property is located is undergoing significant change as a result of several factors. These changes can have both positive and negative impacts on surrounding properties. On one hand, the extension of sewer and urban transportation facilities in this 0 part of the Bend Urban Area makes development of the vacant lands at greater e sities possible, thus significantly increasing the development potential and thereby the value of those vacant and partially -developed lands. On the other hand, residents of the existing, low-density residential developments in the area argue that the encroachment of more dense urban development in their neighborhood negatively affects the livability and value of their property. A number of opponents offered their lay opinions that the proposed zone change will reduce the value of their properties (e.g.: 1-9-96 letter from Allen Kallel; 2-13-96 letter from Joyce and Bill Voelpel). One opponent, Thomas Fitzpatrick, testified that the value of properties on Ranch Village Drive has recently declined, citing the decrease in his property tax valuation from the 94-95 tax year to the 95-96 tax year. However, Mr. Fitzpatrick offered no evidence of the reason for the reduction in value. In response to opponents' testimony on property valuation, the applicant submitted letters from two property appraisers, Dana L. Bratton and Michael J. Caba. These letters state the appraisers' professional opinions that property valuation is based upon a number of factors, and that there is little, if any, evidence that property values are negatively affected by adjacent land uses. The Hearings Officer finds that the testimony from the certified appraisers is more persuasive on the question of property valuation than the lay opinions expressed by neighboring property owners.3 The Hearings Officer concurs with the opinions of the applicant's experts that there are a number of factors affecting property valuation, some of which can be highly subjective. Those can include, for example, the appearance and construction quality of an existing house or the view from a lot. The Hearings Officer understands opponents' concerns about the value of their properties. However, I believe that the real or perceived potential negative impacts on their properties from increases in density of development have more to do with the significant changes in local government policies on development within the Bend UGB than with the proposed zone change. The City of Bend's decision to provide public sewer service to the entire urban area, followed by the county's amendment of the Title 19 to prohibit subdivisions in the UGB without sewer, have precipitated significant changes in density and the nature of development in many of the outlying urban areas historically developed at lower densities. The owners of vacant, urban parcels can no longer legally or economically subdivide them at RL densities since it is neither practical nor economical to extend sewer and water to individual lots with the minimum 20,000 square foot RL lot size. While I understand opponents' desire to live a more "rural" lifestyle rather unique to the Bend area, their properties lie within the Bend UGB, which signifies that these lands ultimately will be developed at urban densities. 3 The applicant correctly points out through the letter from Dana L. Bratton that state law presumes lay persons are not qualified to give opinions on real property valuation or issues relating to it except in the limited context of tax assessment proceedings. 21 For the foregoing reasons, the Hearings Officer finds that the proposed zone change complies with this approval criterion. C. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: Section 19.28.010 provides in pertinent part: "Purpose. The RS Zone is intended to provide for the most common urban residential densities in places where community sewer services are or will be available and to encourage, accommodate, maintain and protect a suitable environment for family living." The proposed zone change from RL to RS will allow the subject property to be developed at standard urban density and to connect to city sewer which is now available and connected to serve the property. The location of the subject property and its connection to two urban arterials will afford residents of any future subdivision on the property easy access to commercial uses, potential employers and school facilities. Based on the foregoing, the Hearings Officer finds that the proposal meets this criterion. D. That the change will result in the orderly and efficient extension or provision of public services. Also, that the change is consistent with the County's policy for the provision of public facilities. FINDINGS: As discussed in detail in the findings above, urban public services are now available to serve the subject property, including city sewer, Avion water, police and fire services, an adjacent elementary school and park property, and two nearby urban arterial streets. The proposed zone change will allow the subject property to be developed for denser residential uses, thereby improving the economy and efficiency of providing public services to individual residential lots. The proposal is consistent with both the City of Bend master plan for sewer and water service, and the county's policy -- reflected in the provisions of Title 19 -- that no new subdivisions in the Bend UGB shall be developed without connection to city sewer. Opponents argue that with regard to two urban services -- schools and streets -- the proposal will not assure orderly and efficient development. Each of these issues is addressed below. 1. Schools. Opponents argue that the urban density development which would be allowed under the proposed zone change would unduly burden a school system nearly at capacity. In support of their argument, opponents rely primarily on the documents contained in their Exhibit 5, which can be summarized as follows. The maximum capacity of Lava Ridge School is 650 students. The school district projects an annual growth rate of 4.5 percent. 22 0150`0390 (Unsigned letter dated 1-30-96). The current enrollment is 616 (543 students plus 73 students attending at a separate location). (1-26-96 memo from Gary Bruner, Lava Ridge Principal, to Sonja Gregory.) The district does not plan to build additional elementary schools. (1-24-96 Bend Bulletin article.) The Lava Ridge Principal does not anticipate a boundary change for his school. (1-26-96 Gary Bruner memo). The applicant responds by arguing that under both the statewide planning goals and comprehensive plan provisions concerning urban development, adequate school capacity is not a specific criterion for allowing a plan amendment/zone change facilitating denser development, although it is a factor to be considered in making planning decisions. (2-17- 96 letter from Timothy Sercombe, pages 3-7.) The applicant further argues that even if adequate school capacity is a relevant criterion, the proposal will not overburden either the Lava Ridge School or the district as a whole. In support of his argument, the applicant relies on both the official transmittal from the school district, set forth verbatim at pages four and five of the staff report, and on the documents in opponents' Exh. 5. The school district's transmittal can be summarized as follows. The district as a whole will exceed student capacity in the fall of 1996. The district anticipates several measures to accommodate projected growth, including building additional permanent and modular facilities, adjusting boundaries, busing students, increasing class sizes and double -shifting schools. For purposes of facility planning, the district estimates that each single-family dwelling in the $90,000 to $150,000 price range will produce .4 students per dwelling. The applicant also argues that Opponents' Exh. 5 does not support their argument that Lava Ridge will exceed its capacity in the next year or two, since its total enrollment includes 73 students housed in a different location. He argues that using the district's student/housing ratio formula, the standard density residential development allowable under the proposed plan amendment/zone change would, at buildout -- which could be several years after subdivision approval -- produce a total of only about 31 additional students in the entire district (77 lots x .4). He further argues that it is not possible to determine how many of those students would attend Lava Ridge Elementary School but that it is reasonable to assume it would be less than thirty. Finally, he argues that school demand and capacity are subject to wide fluctuations dependent upon a number of demographic variables making predictions of school capacities at the time of buildout on any development on the subject property problematic. The Hearings Officer concurs with the applicant's legal analysis that the statewide planning goals and comprehensive plan provisions concerning urbanization appear to place less emphasis on school capacity than other urban services in making planning decisions about proper densities. Moreover, Title 19 does not contain definitions of "urban services" or "public services" indicating that schools were intended to be included within those terms. Nevertheless, I find that school capacity is a relevant issue in determining the impact of particular zone change proposal on the orderly provision of public services. And I find from this record that the proposed zone change will contribute to the orderly provision of school services. As discussed in the findings above, it is clear from the relevant plan policies, the school district's siting policies and the Board's findings in support of 23 0150-0351 expanding the Bend UGB to include the Lava Ridge School that there is strong public policy in favor of siting schools within walking distance of residential development. In addition, I find that the potential addition of something less than 30 elementary school students to the system from urban standard density residential development of the subject property at buildout will not cause the Lava Ridge Elementary School to exceed its design capacity. 2. Streets. As discussed above, the subject property has direct access to two urban arterials -- Cooley Road on the north via Ranch Village Drive, and 18th Street to the east via Egypt Drive. Ranch Village and Egypt Drives were extended by the applicant and connected to these arterials in conjunction with development of the subject property for the Phoenix Park PUD. The PUD did not include access on Boyd Acres Road to the west. However, the 1993 plan amendment/zone change/tentative subdivision plan proposal, which included land on both the west and east sides of Boyd Acres, did contemplate access directly onto that street. The applicant has stated in support of this application that in contrast to the previous proposal, under the current proposal the subject property can be developed without any access onto Boyd Acres Road since it now has direct access to Cooley and 18th Street. As was the case in 1993, opponents argue that the proposed plan amendment and zone change will allow a density of development inconsistent with the capacity of Boyd Acres Road. They point to the applicant's previous proposal as an indication that the applicant in fact contemplates developing the property with access onto Boyd Acres. They also argue that even if the subject property were to develop without Boyd Acres access, many residents would nevertheless use Boyd Acres rather than Cooley and Highway 97 or 18th Street for ingress and egress, causing safety hazards due to increased traffic. There is conflicting evidence and opinion concerning the capacity of Boyd Acres Road to handle the daily traffic generated by existing development. The Deschutes County Public Works Department recommended approval of the applicant's proposal, stating: "The street system in the area, Boyd Acres Road, Ranch Village Drive and Egypt Drive, can easily handle the traffic generated by a standard urban single family home subdivision. The recent construction of 18th Street, extension of Cooley Road and traffic signal at Cooley Road and Highway 97 all provide better access to and from this general area... Public Works will, if the request is approved, require a number of road improvements within and adjacent to the proposed subdivision to meet local urban road standards. Such improvements will included paved streets with curbs and sidewalks...." Several opponents testified that they believe it is unsafe to drive, walk or ride a bicycle on Boyd Acres due to its narrow width and lack of adequate shoulders. They supported their opinions with anecdotal accounts of accidents and "near misses" on Boyd Acres. In contrast, several neighbors who support the applicant's proposal testified that they do not believe Boyd Acres is unsafe for either vehicles or pedestrians. One supporter testified that 24 0150-0392 he was aware of only one accident on Boyd Acres, involving a young driver and icy conditions. The applicant submitted into the record several documents in support of his argument that his proposal will result in the orderly provision and extension of transportation services. One is the April, 1993 Lancaster traffic impact study which was prepared for the previous plan amendment/zone change/tentative subdivision plat application. That study concluded that Boyd Acres Road was adequate to handle the traffic that would be generated by the previously -proposed 105 -lot Sunbird Subdivision involving lots on both sides of Boyd Acres. It also concluded that Boyd Acres Road in its current configuration does not present a safety hazard, and that the intersections of Boyd Acres with Cooley Road and Empire Avenue would continue to function at service level A -- the highest level -- with traffic from the Sunbird development. The study also noted that with planned improvements to the local road network, and in particular the stop sign now installed on Boyd Acres and Morningstar, Boyd Acres would become less attractive as a through route and traffic on it would decrease. Opponents question the validity of the study's conclusions since it is now nearly three years old and has not been updated for the current proposal. However, the Hearings Officer finds that the study's conclusions still have relevance inasmuch as the subject proposal is likely to generate less traffic than that anticipated from the Sunbird development, the subject property can be developed without any access onto Boyd Acres Road, and many of the future road system improvements discussed in the study have now been made. The applicant also submitted county accident data for both Cooley and Boyd Acres Roads. This data indicates that during the years 1992 through 1995, there have been no reported accidents on Cooley Road in the immediate vicinity of the subject property, one reported accident on Boyd Acres Road involving icy road conditions, and eleven reported accidents on Cooley Road at its intersections with Highway 97 and Highway 20 to the west. However, the record indicates that the accidents at the Cooley/Highway 97 intersection predate the installation of the traffic signal there. There is no dispute that Boyd Acres Road in the vicinity of the subject property is not improved to full urban standards and will require improvements to handle additional traffic generated by development in the area. It has a narrow paved surface with no curbs or sidewalks and in places has narrow shoulders. It has a number of tight curves requiring a significant reduction in vehicle speeds. However, I find that installation of the stop sign on Boyd Acres at Morningstar Drive has served to slow traffic on Boyd Acres. Looking at the record as a whole, the Hearings Officer finds that the evidence does not support opponents' claims that the local road system will not handle traffic generated by standard residential development on the subject property. I find that the opinion of the Public Works Department, coupled with the Lancaster traffic study conclusions and the county's accident data, are persuasive evidence that the local road system will adequately handle this additional traffic. 25 0150-6-3 The Hearings Officer shares opponents' concerns about the potential impacts from additional future traffic on Boyd Acres Road. However, I find that the proposed plan amendment/zone change will not, in and of itself, cause the local transportation facilities to fail or increase hazards to motorists and pedestrians. It is clear that unlike the applicant's 1993 proposal, the current proposal -- involving only the 21 acres to the east of Boyd Acres Road -- can, and may be required to, be developed without any access onto Boyd Acres. In addition, I find that if the subject property is developed without direct Boyd Acres access, the traffic from the subject property that does use Boyd Acres will be substantially reduced. Moreover, I find that development of the subject property to standard residential density can in fact contribute to the orderly and efficient provision and extension of transportation facilities through the payment of systems development charges upon the development of each lot, and by the imposition of on- and off-site transportation improvement requirements in subdivision approval conditions. These improvements could take the form of off-site improvements to Ranch Village and Egypt Drives and to the portions of Boyd Acres and Cooley Roads that would be impacted by traffic generated by development on the subject property. For the foregoing reasons, the Hearings Officer finds that the proposed plan amendment and zone change will result in the orderly and efficient extension and provision of public services and facilities. E. That there is proof of a change of circumstance or a mistake in the original zoning. FINDINGS: The Hearings Officer finds that there was no mistake in the original RL zoning of the subject property. However, the Hearings Officer finds that the applicant has demonstrated a significant change of circumstances justifying the proposed zone change. As discussed in detail in the findings above, the part of the Bend Urban Area in which the subject property is located has undergone a number of significant changes in the last few years. These changes include: 1) the extension of city sewer service to the area to serve the new school; 2) the revisions to Title 19 prohibiting subdivision development without connection to sewer; 3) the subsequent development of some of the land in the area for greater density residential development than previously was possible without sewer facilities; and 4) the construction of 18th Street and the installation of a traffic signal at the intersection of Cooley Road and Highway 97. Most of these changed conditions were not contemplated when the comprehensive plan was adopted inasmuch as the city did not intend at that time to provide sewer and water service to the entire UGB. Opponents argue that the applicant has failed to meet his burden of proving changed circumstances because in their opinion nothing has changed since the 1993 denial of the applicant's previous proposal for a plan amendment/zone change/tentative subdivision plan approval. However, as discussed in the findings above, the 1993 proposal and the subject proposal are materially different, and the 1993 denial therefore does not set a precedent 26 0150-0304 for this matter. In any event, the issue in this proceeding is whether there have been changed circumstances since the comprehensive plan was adopted in 1979, and not since the 1993 denial. D. Conformance with Oregon Administrative Rules Chapter 660-12, Transportation Planning 1. OAR 660-12-060, Plan and Land Use Regulation Amendments (1) Amendments to functional plans, acknowledged compre- hensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility. This shall be accomplished by either: (a) Limiting allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility; (b) Amending the TSP [Transportation System Plan] to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional classification of an existing or planned transportation facility; (b) Changes standards implementing a functional classi- fication system; (c) Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or (d) Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. 041 0150-GA (3) Determinations under subsections (1) and (2) of this section shall be coordinated with affected transportation facility and service providers and other affected local governments. FINDINGS: The Hearings Officer finds that this administrative rule applies here because the applicant's proposal is for a plan amendment and zone change. However, the Hearings Officer finds that the proposal would not "significantly affect a transportation facility," as contemplated in the rule. The proposed plan amendment/zone change will not change the functional classification of any existing transportation facilities, nor will it change the standards applicable to such facilities. The proposed plan amendment and zone change will allow development of the subject property in a manner that will allow the existing transportation facilities to function at an acceptable level of service. Although the county and the City of Bend do not yet have a Transportation System Plan complying with the transportation planning rule, the Bend Area General Plan designates both Cooley Road and 18th Street as urban arterials. The proposed plan amendment and zone change will not alter either that designation or the standards applicable to these urban arterials. The transportation element of the general plan indicates that an urban arterial is designed for a capacity of 12,000 vehicle trips per day. The ITE Manual indicates that each single family residence is anticipated to generate an average of 9.55 vehicle trips per day. At the density of development informally proposed by the applicant for the subject property -- potentially 74 total residential lots -- the proposed plan amendment and zone change could result in an average addition of approximately 706 additional vehicle trips per day, or well within the design capacity and minimum level of service for Cooley Road and 18th Street. In addition, as discussed in the findings above, both the Deschutes County Public Works Department and the 1993 Lancaster traffic study concluded that the local road system is adequate to accommodate the traffic that would be generated by urban standard residential density development of the subject property. In addition, the record indicates that review of the proposed plan amendment and zone change has been coordinated between the Deschutes County Public Works Department and the City of Bend Planning and Public Works Departments. Based upon the foregoing, the Hearings Officer finds that the proposed plan amendment and zone change comply with the administrative rule. E. Oregon Statewide Land Use Planning Goals FINDINGS: The Hearings Officer concurs with, and incorporates by reference herein, the applicant's recommended findings with respect to his proposal's compliance with the applicable statewide land use planning goals, set forth at pages 23-25 of the applicant's amended Burden of Proof. 28 10150-03)06 IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the proposed plan amendment and zone change. The applicant shall submit a legal description of the subject property for attachment to the ordinance implementing the plan amendment and zone change. Mailed this day of`1 C '1�1996. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL 10 DAYS AFTER MAILING, UNLESS APPEALED. 29 0 APPENDIX "A" Letters in the Record Name mages Raft 1. Myer Avedovich 77 1-9-96 12 2-16-96 2. Jim Lee 13 1-6-96 3. John & Judith Barton 5 1-9-96 4. Judy and Ingemar Thorgiersson 2 1-20-96 3. Stan & Judy Brown 1 2-10-96 5. Suzanne MacLeod 2 1-29-96 6. Norman MacLeod 3 1-23-96 7. Jen Fitzpatrick 3 2-1-96 3 2-19-96 8. Thomas Fitzpatrick 3 1-9-96 21 2-2-96 9. Brent & Karen Wallace 11 2-1-96 5 2-5-96 10. Stewart & Lucille Bennett 3 1-29-96 11. Michael & Diane Jantze John & Jo Bubendorf 2 2-1-96 12. Nathaniel & Lucinda Palmer 1 2-4-96 13. Awbrey & Lucille Blake 2 2-5-96 14. Helen Harbin 2 2-5-96 15. Dave & Lorene Houston 2 2-5-96 16. Allen Kallel 4 1-9-96 17. Joyce & Bill Voelpel 2 2-6-96 1 2-13-96 18. Ben Gregory 9 2-6-96 19. Sonya Gregory 4 2-6-96 20. Peter & Tana Hatton 1 2-6-96 21. John & Judy Barton 2 2-1-96 1 2-1-96 1. Timothy Sercombe 5 2-6-96 24 2-17-96 3 2-19-96 7 2-27-96 2. Arlo Haupt 1 1-15-96 3. Stan & Judy Brown 1 1-19-96 30 1 i X150 -G 2 2-8-96 4. Don Carnes 3 2-7-96 5. T.M. Pete 4 2-12-96 6. Michael Hagen (sp?) 2 2-20-96 7. Kathryn Lykins 2 2-20-96 8. Dano Saarinen 2 2-20-96 Neutral 1. Brent Lake 2 2-1-96 31