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1996-22994-Resolution No. 96-084 Recorded 6/20/199696-22994 BEFORE THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES Resolution of Intent to Amend PL -20 by Changing Plan Map Designation and Adopting Exception Statement. REVIEWED LtruAI,r 0UNSLL QREGON 01511-4016 RESOLUTION NO. 96-084 WHEREAS, applicants Wilma Salmons et al. applied for a quasi- judicial amendment to the Deschutes County Comprehensive Plan to change the Plan Map designation for 9 tracts of land covering 105 acres (as more fully described in Exhibits A and B) from Agriculture to Rural Residential; and WHEREAS, such a plan amendment requires an Exception and adoption of an exception statement and findings into the Comprehensive Plan; and WHEREAS, the Hearing Officer recommended to the Board of County Commissioners that the subject application be approved with conditions; and WHEREAS, the Board of County Commissioners heard the application as required under state law for all plan map applications requiring an exception to the Goals and agreed that the application should be approved, as conditioned by the Hearing Officer; and WHEREAS, the Board determined that the plan map change should not become effective until the conditions were completed, but wishes to demonstrate now its committment to effect the required plan amendments at the time the conditions have been satisfied; now therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY, OREGON, as follows: Section 1. Subject to the conditions set forth in Section 2 herein, the Board of County Commissioners of Deschutes County hereby approves the application of Wilma Salmons et al. for the subject properties, as described in the legal description attached hereto as Exhibit A and by this reference incorporated herein and the map attached hereto as Exhibit B and by this reference incorporated herein to amend PL -20, the Deschutes County Comprehensive Plan, to (1) amend the text of the Exception Statement of the Plan by adopting an exception statement for the subject property, as set forth in Exhibit C attached hereto and by this reference incorporated herein and (2) to change the Plan Map designation for the subject properties from Agriculture to Rural Residential. Section 2. The Board shall adopt an ordinance amending PL -20, the Deschutes County Comprehensive Plan to (1) amend the text of the Plan by adopting an exception statement for the subject property, as set forth in Exhibit C attached hereto and by this reference incorporated herein and (2) to change the Plan Map designation for the subject PAGE 1 - RESOLUTION 96-084 (06-19-96) KEY CHED 141CROFiLMED 1996 -r;--1 JUN 2'7 1996 0154-251, properties from Agricultural to Rural Residential upon applicants causing the following conditions to be satisfied: Improvement of Hunnell Road along a segment extending from the end of the current segment that is improved to 20 feet width of gravel (at a point north of the intersection with Harris Road) to its intersection with tax lot 214 to a standard of 20 feet wide with aggregate or cinders to a depth of 5 inches within such right-of- way as designated by the Department of Public Works. Section 3. In support of its decision, the Board adopts the findings and decisions set forth in Exhibit D, attached hereto and by this reference incorporated herein. DATED this 19th day of June, 1996. ATTEST: ( )'. , " z 2: � I "",: Recording Secr tary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON NANCY POPE,SCIALANGEN, Chair r BARRY SLAbGHTER, Co4missioner ROPtRT L. NIPPER, C mmissioner PAGE 2 - RESOLUTION 96-084 (06-19-96) 0154-2518 Exhibit A to Resolution 96-084 Legal Description An area of land in Section 4 of Township 17 South, Range 4 East Willamette Meridian, Deschutes County, Oregon, described as follows: NW 1/4 NE 1/4; NE 1/4 NW 1/4; N 1/2 of the SW 1/4 NE1/4; and the E 1/2 of the NE 1/4 SE 1/4/ NW 1/4 containing approximately 105 acres. PAGE 3 - RESOLUTION 96-084 (06-19-96) o N z I N 0154-2519 t0 it l M 33S • IRE Z ► m 1 -,*%Y s. �d _ FI C 3 n: 1 a Lai r 3 s I CN N= t I n N - n « o o ME i X Lis SSS 5 F . - • n. N 1 LLJ e� d Cl ■ C •�•� _61019 - -- - -- CSG• o b C7 Y M O .. V ^ - Q LU N « . A LL.0 J 0 . J j .; o x VT 03 ^:: R ' I w h =■ i I �i } r I g Y90 it Lt dYM 33S 090 it [t dM 33S in s z bS 5r� g� g :� Wg 3 EXHIBIT ..._.-- _--._--._..._ Exhibit C to Resolution 96-084 An exception to Goal 3 was granted for a 105 -acre area off Hunnel road for an area described in Ordinance 96- for the reason that the area is irrevocably committed by surrounding development. Findings to support the exception are set forth in Ordinance 96- and are incorporated herein by this reference. PAGE 4 - RESOLUTION 96-084 (06-19-96) 0154-2521 BOARD OF COUNTY COMMISSIONERS, DESCHUTES COUNTY, OREGON In the Matter of the Plan Amendment ) and Zone Change and Exception from ) PA -95-7 Goal 3 for Certain Properties from ) ZC-95-7 Agriculture to Rural Residential ) FINDINGS AND DECISION BASIC FINDINGS: 1. APPLICANTS: John and Wilma Salmons Holland Park, III Lyle A. Lowe Robert and Erica Green Dick and Wanda Ruthven 2. REQUEST: Applicants are requesting a Comprehensive Plan Map amendment from Agriculture to Rural Residential Exception Area, and a zone change from EFU-TRB, Exclusive Farm Use - Tumalo/ Redmond/Bend subzone to MUA-10, Multiple Use Agriculture. The request encompasses approximately 95 acres and involves an exception to Statewide Planning Goal #3, Agricultural Land. 3. LOCATION: The subject properties are located near Hunnell Road north of Bend and they are identified on County Assessor's map 17-12-4, as tax lots 212, 213, 214, 217, 218, 219, 220, 221 and 223. 4. ZONING: The subject properties are zoned EFU-TRB, Exclusive Farm Use - Tumalo/Redmond/Bend subzone, and are designated Agriculture on the Deschutes County Comprehensive Plan. 5. PROCEDURAL HISTORY: This application was approved by the Hearing Officer, who adopted the staff report as the basis for his decision. The hearing officer recommended that the applications be approved through a resolution of intent to rezone. A hearing was held before the Board of County Commissioners on the applications, since resource lands were involved and an exception was required. The Board has determined that it would uphold the hearing officer's decision and approve the proposed plan amendment and zone change through a resolution of intent to rezone, conditioned on needed road improvements to Hunnell Road being completed by the applicant. The basis of this decision is primarily the staff report adopted by the hearing officer, with some changes to reflect issues that arose before the Board. The findings in this document are those of the Board, regardless of whether the findings in this decision are couched in terms of staff findings. 6. SUBJECT PROPERTY: The subject properties have a varied topography with level areas and higher rock outcrops, with a vegetative cover, of juniper trees and scrub brush. There is no farm use on any of the subject properties or on any of 0154-2522 the properties immediately adjacent to the subject properties. 7. SURROUNDING AREA: Land use in the area surrounding the subject properties is publicly owned State of Oregon land to the north and east. To the north, northwest, west and south is privately owned land with a few single-family dwellings. Land directly south, west and northwest of the subject properties is zoned MUA-10, Multiple Use Agriculture, and land to the north and east is zoned EFU, Exclusive Farm Use. The applicant is proposing plan and zone map amendments to amend the comprehensive plan and designate this area rural residential exception area and to rezone it MUA-10, Multiple Use Agriculture. The applicant has submitted a burden of proof statement that includes written responses to the criteria of Title 18 and the Oregon Administrative Rule, a map of the subject area, Assessors printouts of the properties in the area of the proposed change, a colored aerial photograph of the area, soils map and soils descriptions, and a small scale topographic map. 8. SOIL TYPES: The subject properties have the following three soil types: Soil #58C, Gosney Rock Outcrop-Deskamp Complex, 0 to 15 percent slopes. This soil type comprises approximately 50 percent of the overall property and has a soil capability rating of 6E, 7E and 8S (non -irrigated). This soil type is not designated high value by the State of Oregon. Soil #38B, Deskamp-Gosney Complex, 0 to 8 percent slopes. This soil type comprises approximately 40 percent of the property and has a capability rating of 6E and 7E (non- irrigated). This soil type is not designated high value by the State of Oregon. Soil #27A, Clovkamp Loamy Sand, 0 to 3 percent slopes. This soil type comprises the remaining 10 percent of the property and has a capability rating of 4S (non -irrigated). This soil type is designated high value when irrigated. 9. LOT OF RECORD STATUS: As indicated in the County zoning map books, tax lots 212, 217, 218, 219, 220 and 221 are all legal lots of record. Tax lots 213 and 214 appear to be one legal lot of record together. Tax lot 223 has not had a legal lot determination made as of this date. It appears from the map book record that most of these tax lots were created in 1971-72. STANDARDS AND APPLICABLE CRITERIA: A. Oregon Administrative Rules, Chapter 660, Division 4, Interpretation of Goal 2 Exception Process: 0154-25'3 660-04-028, Exception Requirements for Land Irrevocably Committed to Other Uses. 660-04-018, Planning and Zoning for Exception Areas. B. Deschutes County Year 2000 Comprehensive Plan. C. Title 18 of the Deschutes County Code, the Deschutes county Zoning ordinance: Chapter 18.16, Exclusive Farm Use zones. Chapter 18.32, MUA-10, Multiple Use Agriculture zone. Chapter 18.136, Amendments D. Oregon Administrative Rule 660-12-060, Plan and Land Use Regulation Amendments. CONCLUSIONS OF LAW: 1. Conformance with Oregon Administrative Rule 660-04-028: Exception Requirements for Land Irrevocably Committed to other Uses 66-04-028 (1) A local government may adopt an exception to a goal when the land subject to the exception is irrevocably committed to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable: (a) A "committed exception" is an exception taken in accordance with ORS 197.732(1)(b), Goal 2, Part II(b), and with the provisions of this rule. (b) For the purposes of this rule, an "exception area" is that area of land for which a "committed exception" is taken. (c) An "applicable goal" as used in this section, is a statewide planning goal or goal requirement that would apply to the exception area if an exception were not taken. (2) Whether land is irrevocably committed depends on the relationship between the exception area and the lands adjacent to it. The findings for a committed exception therefore must address the following: (a) The characteristics of the exception area; (b) The characteristics of the adjacent lands; (c) The relationship between the exception area and the lands adjacent to it; and (d) The other relevant factors set forth in OAR 660- 04-028(6). 0154-2524 Findings: The applicant addressed the above criteria on pages 7-10 of the written burden of proof statement submitted with the applications and in the supplemental proposed findings of fact submitted at the hearing before the Board of County Commissioners. The supplemental proposed findings were submitted after an issue arose at the hearing before the Board as to whether it was necessary to make findings that all uses, both outright permitted and conditionally permitted, under the existing zoning are impracticable. From Sandgren et al v. Clackamas County, 29 Or LUBA (LUBA No. 95-038), it is clear that applicants must prove that all uses allowed by the goals are impracticable due primarily to uses established on adjacent parcels. Characteristics of proposed exception area: There are no water rights associated with any of the properties proposed to be rezoned as part of the exception, as well as no farm use on any of the parcels. With no irrigated lands within the subject area, the soil capability rating for ninety percent of the property is Class VI, VII or VIII soils. These soils are considered marginal to poor for agricultural productivity. Class VI or higher soils are not suitable for crop production. The proposed exception area has topography and vegetation similar to many areas of the region, with scattered rock outcrops interspersed with some level areas, with a vegetative cover of juniper trees and scrub brush, as well as some patches of bunch grass. The soils within the proposed exception area having much surface rock. The proposed exception area currently has no residences located on any of the parcels. There is an existing outbuilding on tax lot 221. Access to the parcels is from Hunnell Road via an access easement. The easement road is a narrow, winding dirt road that will need to be upgraded to provided adequate access for future development of these parcels. This road does not appear to extend to tax lots 217-219, and it does not appear to follow the easement as shown on the tax map. This area is still relatively remote, with dwellings on some of the adjacent parcels. The exception area has lot sizes ranging from approximately 5 to 20 acres. Three of the parcels are 20 acres in size, three parcels are 10 acres, and three parcels are 5 acres in size. it appears that two of the 5 -acre tax lots form one legal lot only (213 and 214). The exception area has only one road serving the parcels (Hunnell Road). This road is narrow and rocky in the area of the subject property and needs to be improved in order to be found adequate for the intended use. 0154-2525 The subject property has water, phone and electric service available. These public facilities can be connected up to with the proper fees paid and construction completed. This property is served by the Bend Rural Fire District for fire protection and by the county Sheriff for police services. None of the tax lots within the proposed exception area are in farm use or receiving farm tax deferral. Staff finds that the proposed exception area is similar in lot size, vegetative cover and topography as the adjacent MUA-10 zoned exception areas. These tax lots were in existence at the time the county completed the comprehensive plan and zoning in 1979 and it appears that the subject area could have qualified as an irrevocably committed exception area based primarily on the lot sizes. It is not clear why the subject area was not zoned MUA-10, when a 40 -acre parcel and an 80 -acre parcel to the north were zoned MUA-10. Characteristics of adjacent lands: The lot sizes of adjacent lands includes both smaller lot sizes ranging from 1-10 acres for most of the exception areas to the large 80 -acre parcel one-quarter mile to the north zoned MUA-10. Staff has included more area in the one-half mile radius for review of adjacent lands than the applicant submitted in the burden of proof. Staff has included the east half of the east half of Section 5 of Township 17 South, Range 12 East, and the south half of the southeast quarter of Section 32 of Township 16 South, Range 12 East. Both of these areas are already zoned MUA-10. Of the 91 parcels within the area of review (generally within one-half mile of the subject area for the exception), there are 7 parcels zoned EFU or OS & C (Open Space and Conservation) and 84 parcels zoned MUA-10. Of the 84 parcels zoned MUA-10, 46 have existing dwellings and 38 are vacant. Four of the seven lots zoned other than MUA-10 within the area of review are owned by public entities (Deschutes County and the State of Oregon). The adjacent lands have similar soils, topography and vegetative cover as the proposed exception area. This is an area of scattered rock outcrops interspersed with somewhat level areas with rocky soils, and a vegetative cover of juniper trees and scrub brush. The land is primarily dry ground, with no water rights and little or no farming. There is no farming occurring within one-quarter mile of the proposed exception area. Staff finds that the area proposed for the exception is virtually the same as the other MUA-10 exception areas already established by the county. Only one of the 91 tax lots within the area of review is receiving farm tax deferral (16-12-33, 600). This parcel is 0154-25046 one-quarter mile from the closest point of the proposed exception area. The roads in the area include paved, cinder and dirt roads. Rogers Road, Tanglewood Road and Crosswind Road are all paved roads. Hunnell Road has only a short stretch of pavement near its intersection with Rogers Road, otherwise it is primarily a dirt and/or gravel road. Harris Way is a gravel road. some of the parcels in the area have limited access, generally through an access easement if they are not adjacent to the public roads in the area. The adjacent lands also have water from both Avion Water and private wells, along with electric and phone service from the same source as the proposed exception area. The adjacent lands will also be served by the Bend Rural Fire District and the County Sheriff. Relationship between the exception area and the lands adjacent to it. Staff finds that the relationship between the proposed exception area and the lands adjacent to it is one of similarities. It is primarily the same soil types, topography and vegetation, and is an area accessed from generally substandard roads, either gravel or dirt or cinder roads. There are paved roads in the area as well. As stated in a foregoing finding, the area is still relatively remote, with a few roads and some rugged areas to traverse. Hunnell Road serves the proposed exception area, and it continues both north and south to serve other land. The proposed exception area and the lands adjacent to it also have similar lot sizes. Within the area of review, there are many parcels with 10 acres or less and there are also some larger parcels, including an 80 -acre, 40.41 -acre, 40 -acre, 37.93 -acre and a 18.95 -acre parcel, all of which are zoned MUA-10. Other relevant factors set forth in OAR 660-04-028(6. (6) Findings of fact for a committed exception shall address the following factors: (a) Existing adjacent uses; Findings: Adjacent uses in the area include rural residential development on parcels of varying sizes, ranging from one to twelve acres. There is also much vacant land in the area, including the large acreage Deschutes County -owned parcels to the north and east, and the State of Oregon property to the east. There is no farm use on any of the adjacent parcels, including the publicly owned parcels mentioned above. The rezoning of the subject properties to 0154-2527 MUA-10 would not change the rural character of the area and would have no impact on any farm use in the area. (b) Existing public facilities and services (water and sewer lines,, etc.); Findings: The existing public facilities available to the property according to the applicant are Central Electric Coop for electric service, Avion Water for domestic water, individual on-site septic systems for dwellings, and access via a public road, Hunnell Road. Improvement of Hunnell Road to a minimum standard of a 20 -foot wide gravel or cinder road that is straightened out in the area of the subject property is needed for adequate access. Public services to the area include fire protection from Bend Rural Fire Protection District #2 and police protection from the County Sheriff. These public services appear adequate to serve any proposed dwellings within the proposed exception area. (c) Parcel size and ownership patterns of the exception area and adjacent lands: (A) Consideration of parcel size and ownership patterns under subsection (6)(c) of this rule shall include an analysis of how the existing development pattern came about and whether findings against the Goals were made at the time of partitioning or subdivision. Past land divisions made without application of the Goals do not in themselves demonstrate irrevocable commitment of the exception area. Only if development (e.g- physical improvements such as roads and underground facilities) on the resulting parcels or other factors make unsuitable their resource use or the resource use of nearby lands can the parcels be considered to be irrevocably committed. Resource and non -resource parcels created pursuant to the applicable goals shall not be used to justify a committed exception. For example, the presence of several parcels created for nonfarm dwellings or an intensive commercial agricultural operation under the provisions of an exclusive farm use zone cannot be used to justify a committed exception for land adjoining those parcels. (B) Existing parcel sizes and contiguous ownerships shall be considered together in relation to the land's actual use. For example, several contiguous undeveloped parcels (including parcels separated only by a road or highway) under one ownership shall be considered as one farm or forest operation. The mere fact that small parcels existing does not in itself constitute irrevocable commitment. Small parcels in separate ownerships are more likely to be irrevocably committed if the parcels are developed, clustered in a large 0154-2528 group or clustered around a road designed to serve these parcels. Small parcels in separate ownerships are not likely to be irrevocably committed if they stand along amidst larger farm or forest operations, or are buffered from such operations. Findings: As indicated in a foregoing finding, the parcels sizes in the exception area include three 20 -acre parcels, three 10 -acre parcels, and three 5 -acre parcels. It appears that tax lots 213 and 214 are one lot only, unless documentation can be submitted which demonstrates that these tax lots predated the adoption of PL -7, the County Land Partition ordinance in 1977. These parcel sizes are similar to the parcel sizes in the adjacent lands, as indicated in a foregoing finding. According to the Assessor's records, tax lots 217 and 218 are owned by John and Wilma Salmons, which is the same ownership, and tax lot 219 is owned by Marvin Gage and John and Wilma Salmons. The remaining tax lots in the exception area are all separately owned, including tax lots 213 and 214. It is not clear when tax lots 223 and 213 and 214 were created, according to the Assessor's records. Findings by staff members have indicated that tax lots 217, 218, 219, 220 and 221 were created in 1971 or 1972, prior to the adoption of the Statewide Planning Goals and County Zoning. There was no subdivision or partition completed to Staff's knowledge. The proposed exception area has no water rights associated with it, and it does not appear that this property has ever been irrigated. This exception area appears to be within the Swalley Irrigation District. There is also no existing farm use occurring within the exception area. It is Staff's opinion that farm use will not occur in the exception area, as no water rights exist, and they would have to be procured and land cleared and worked to provide any type of farming. Given the small parcel sizes, poor quality soils, lack of irrigation water, and the lack of any farming in the area, it is unlikely that any farm use would occur on the site. If any farming were to occur, it would be small-scale subsidized hobby farming on small patches of ground between the rock, outcrops on the site. The rocky soils on the site make even this use doubtful. The publicly owned large parcels in the area will not be farmed due to their being held by the County or the State of Oregon. There is no irrigation or farming occurring on these publicly owned parcels and the only potential for farm use would be a possible dry land grazing lease, which may or may not be allowed by the County. 0154-2529 The above criterion states that "Past land divisions made without application of the Goals do not in themselves demonstrate irrevocable commitment of the exception area. Only if development (e.g., physical improvements such as roads and underground facilities) on the resulting or other factors make unsuitable their resource use or the resource of nearby lands can the parcels be considered to irrevocably committed." The applicant has indicated that the soils on the property constitute "other factors" besides the division of the land as a means of irrevocable commitment. It appears there has been some physical improvements on the land. The Assessor's office indicates an accessory or outbuilding on tax lot 221. Staff has visited the site and there may be other structures on the land, which may or may not have had approval. No roads other than the several dirt roads that traverse the property have been constructed. It appears underground facilities exist given the structures on the property. An Avion water line also runs along Hunnell Road. Given the existing physical improvements and the poor soils on the property, Staff finds that the land can be considered irrevocably committed to non -resource use. On the site visit conducted by staff the observation was made that the soils appear to be of poor quality, with rock outcrops in numerous locations and surface rock apparent in many areas of the property. (d) Neighborhood and regional characteristics; Findings: The neighborhood characteristics have been addressed in foregoing findings. The area is generally rural residential in nature, with much open space between some of the dwellings. There is significant vacant land to the north, east and southeast, as the land is either publicly owned or is undeveloped. To the south and west are a number of dwellings,, all within areas zoned MUA-10. "Regional" is not defined under this chapter of the Rule. This could be construed to mean areas such as the entire county or portions of the county such as a localized area in which the subject property is located. If the latter is intended, the subject property is similar in character as the "region" in which it is located. Staff has used a one- half mile radius, similar to what is used for review of an application for a nonfarm dwelling by the Planning Division. Within this overall one mile area, much of the land is zoned MUA-10, with even more MUA-10 zoned land and additional EFU- zoned land beyond the one mile area. The "regional" characteristic of the area is rural residential development, with some hobby farming and much open space. Most of the farming that occurs in the area is relatively small pasture areas with some livestock grazing occurring on various properties. Staff finds that the proposed zone change will not change this rural residential and open space character. 0154-2530 (g) other relevant factors. Findings: Staff finds soils as another relevant factor necessary for the review of the proposed exception. The soils on these parcels are generally Class VI or higher soils, which have limited potential for farm use. With no irrigation water these soils cannot be used for any farming. As indicated in foregoing findings, the soils on the property not only have numerous rock outcrops, but also rocky soils exist on most areas of the property. Much surface rock is observable from the road. with the poor soils, agricultural use of the properties is unlikely at best. (4) A conclusion that an exception area is irrevocably committed shall be supported by findings of fact which address all applicable factors of section (6) of this rule and by a statement of reasons explaining why the facts support the conclusion that uses allowed by the applicable goal are impracticable in the exception area. (5) Findings of fact and a statement of reasons that land subject to an exception is irrevocably committed need not be prepared for each individual parcel in the exception area. Lands which are found to be irrevocably committed under this rule may include physically developed lands. (7) The evidence submitted to support any committed exception shall, at a minimum, include a current map, or aerial photograph which shows the exception area and adjoining lands, and any other means needed to convey information about the factors set forth in this rule. For example, a local government may use tables, charts, summaries or narratives to supplement the maps or photos. The applicable factors set forth in section (6) of this rule shall be shown on the map or aerial photograph. Findings: Section 6 of OAR 660-04-028 has been addressed above, and the findings have been directed at the entire proposed exception area, not each individual lot or parcel. The applicant has submitted both an aerial photograph and a copy of the County Assessor's map for the area. Staff has done additional work by adding an area for the review and transferring some of the Assessor's information to the map. Staff finds that of the 84 parcels zoned MUA-10, Multiple Use Agriculture, 48 of them or 57 percent have existing dwellings. Additionally, 84 of the 91 parcels in the area of review are zoned MUA-10. There are hundreds of acres of MUA-10 zoned land in the area, including all of Section 5 of Township 17 South, Range 12 East (640 acres). The soils on 0154-2531 the property are of poor quality as demonstrated by the SCS soils maps for the area and observed by staff on a site visit. Ninety percent of the soils on the property are of Class VI, VII or VIII. Also, as stated in a foregoing finding, staff observed on the site visit that the soils have much surface rock indicating that the depth of the soils is shallow. The poor soils combined with the small lot sizes and lack of irrigation water, make the land unsuitable for farm or agricultural use, and irrevocably committed to non -resource use. 2. Conformance with OAR 660-04-018 Applicant submitted proposed findings dated December 12, 1995 to address this criterion, which findings are adopted herein by reference. 3. Conformance with the Deschutes County Comprehensive Plan Staff finds the following Sections and Goals and Policies within those sections applicable to the proposed change of zoning and plan designation: Rural Development section (Goals): 1. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. 2. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. Findings: The change of zone and plan designation on the proposed exception area will not affect the open space, rural character, scenic values or natural resources of the county. The area is rural residential . n character and dwellings may be placed on each of the parcels with the existing zoning through approval of conditional use permits. The conditional use review requires a finding that adequate access exists, which may not be true with the poor condition of Hunnell Road. The land is not visible from any landscape management corridor and it is also not being farmed and has minimal capability for any farm use, given the small parcel size, lack of irrigation water and poor soils. It will remain as open space even with residences being placed on the parcels. Most of the land will remain unused and be left in its natural state. Electric and water service already existing to the site. No additional costs to the public for these services will be created by the change of zoning. No new 0154-2532 service boundaries will need to be created or enlarged to service the property. The only concern of staff is the status of Hunnell Road in this area. it is currently only a dirt road, with some rock outcrop areas jutting up into the road. Any consistent use of the road by residents may require some upgrade of this road. The upgrade of the road and the maintenance of the road will not be conducted or completed by the County. This will be left up to property owners in the area. Economy Section (Policies): 6. The County shall protect agricultural land to assure continued agricultural production and the benefits to tourism (see Agricultural chapter). 14. Publicly owned land is a community resource that should be used as trading stock and otherwise to implement this plan thereby assisting and meeting the community's future needs. Findings: As indicated in foregoing findings, the subject property has poor quality soils with much rock outcrop above the surface, and staff believes there is shallow soil depth on most of the property, as evidenced by the large areas of surface rock on the soils. Staff does not believe that this land is "agricultural land", as it has only limited potential for agricultural use. The County owned land in the area is currently not being used for any farm or agricultural use, and is not being irrigated or leased for dry pasture. Staff is unaware of any plans by the County to trade or sell this land to any party. Transportation Section (Goals): 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: As indicated in foregoing findings, the road that serves the subject property, Hunnell Road, is dirt road that has rock outcrop sticking up above the road surface in certain spots on the roadway. This road will need to be improved to allow consistent traffic to utilize it for access to points south. If the property were not rezoned, the separate property owners could apply for conditional use permits for nonfarm dwellings, but a finding would be required that adequate access is necessary. This access may not be adequate for residents or for emergency vehicles. The rezoning may 0154-2533 require road improvements, since the road is in poor shape as observed during a site visit by staff. If an increase in density is to occur with the zone change, it would be a total of three additional parcels. Tax lots 217, 218 and 219 all have potential to be divided, but the lack of roads in the area and the significant costs of constructing even a gravel road in the area may prevent this from ever happening. Public Facilities Section (Policies): 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based 14. Publicly owned land is a community resource that should be used as trading stock and otherwise to implement this plan thereby assisting and meeting the community's future needs. Findincrs: As indicated in foregoing findings, the subject property has poor quality soils with much rock outcrop above the surface, and staff believes there is shallow soil depth on most of the property, as evidenced by the large areas of surface rock on the soils. Staff does not believe that this land is "agricultural land", as it has only limited potential for agricultural use. The County owned land in the area is currently not being used for any farm or agricultural use, and is not being irrigated or leased for dry pasture. Staff is unaware of any plans by the County to trade or sell this land to any party. Transportation Section (Goals): 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: As indicated in foregoing findings, the road that serves the subject property, Hunnell Road, is a dirt road that has rock outcrop sticking up above the road surface in certain spots on the roadway. This road will need to be improved to allow consistent traffic to utilize it for access to points south. If the property were not rezoned, the separate property owners could apply for conditional use permits for nonfarm dwellings, but a finding would be required that adequate access is necessary. This access may not be adequate for residents or for emergency vehicles. The rezoning may require road improvements, since the road is in poor shape as observed during a site visit by staff. 0154-2534 If an increase in density is to occur with the zone change, it would be a total of three additional parcels. Tax lots 217, 218 and 219 all have potential to be divided, but the lack of roads in the area and the significant costs of constructing even a gravel road in the area may prevent this from ever happening. Public Facilities Section (Policies): 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. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. Findings: The subject property has electric and water service available, and staff believes that phone service is also available for prospective homeowners. The parcels in this area will have no more than a one dwelling per ten acre density with the proposed zone change, except for the 5 -acre parcel already existing. The carrying capacity of the land, air and water of this area will not be impacted by the proposed change. Staff's only concern, as stated previously, is the condition of Hunnell Road in this area. It is generally narrow road, with rock outcrop sticking out of the ground within the roadway. The road has several turns which are not dangerous, but which do not provide two-way traffic. Some improvements to the road may be needed in the future for residents in the area. The area now is relatively undeveloped in the worst part of the road. Natural Hazards Section (Policies): 13. For easy resident evacuation and ready access for fire and emergency equipment all new subdivision or other major land development shall provide at least two different ingress -egress routes. 16. All existing roads shall be maintained by either the appropriate public or private agency or by the 0154-2535 development residents unless an adequate alternative route is provided so as to not -deny access beyond the subdivision for firefighting equipment. Findings: The area has only Hunnell Road to obtain access to the subject property. There are numerous dirt roads that traverse the area, but it does not appear that there are easements for these roads that meander through rock outcrops in the area. If a fire were to occur in the area, it may be difficult or impossible for fire fighting equipment to access the fire. Hunnell Road is in poor shape in certain areas and the dirt roads in the area do not meet the 201 wide X 131611 high corridor required by the fire department. Agricultural Lands Section (Policies): 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm Use, unless an ,exception to State goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 5. Zones and minimum parcels sizes shall be established to assure the preservation of the existing commercial agricultural enterprise of the area. 8. In recognition that irrigated acres per farm unit is the key variable identifying commercial agricultural enterprises in the County, the County shall use the median number of irrigated acres per farm unit in the area or subzone as its principal standard for defining what size of tract constitutes a farm parcel. As an alternative to median irrigated acres as a standard, an assessed farm value equal to that of the median irrigated acres shall be used as a standard for establishing farm parcel size. The formula for the assessed farm value determination shall be as follows: the median number of irrigated acres per farm unit for the area or subzone x per acre farm use value of best irrigated land in subzone = dollar threshold for assessed land value alternative. 20. Farm and nonfarm uses in rural areas shall be consistent with the conservation of soil and water. Findings: The applicant is proposing an exception to Statewide Planning Goal 13 through the subject applications and is proposing MUA-10 zoning. The minimum lot size in the MUA-10 zone is 10 acres. Five of the subject parcels have been determined to be lots of record. Whether the three lots that are approximately 20 acres each can be partitioned if the property is rezoned is not clear. There are currently no public roads other than Hunnell Road which serve these parcels and the topography and expense of installing a required 20 -foot wide gravel road to serve the parcels,, as well as improving Hunnell Road, may prevent any future attempt 0154-2536 to divide these parcels. Any use of these parcels for residential use will be consistent with the conservation of soil and water. Open Space, Areas of Special Concern, and Environmental Quality Section (Policies): 10. As part of subdivision or other development review„ the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. Findings: The proposed zone change should have no impact on the air, water, scenic and natural resources of the County. The subject property has development potential either through the rezoning avenue or through the approval of nonfarm dwellings on the parcels. As indicated in foregoing findings, the ability to divide tax lots 217, 218 and 219 is questionable. There are no public roads leading into the subject.site, and Hunnell Road is in poor condition in spots adjacent to the property. This may preclude any division of the property, given the expense of upgrading Hunnell Road and creating a gravel road from Hunnell into the property to serve all of the parcels. There are no historic or cultural resources on the subject site and it is not within a wildlife area. 4. Conformance with Section 18.136.030 of Title 18. 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 consistency with the Deschutes County Comprehensive Plan is addressed in the foregoing findings. Staff has a concern with the status of Hunnell Road in this area, which is narrow and has rock outcrop sticking up into the road. This road may be inadequate for the intended use. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. 0154-253, Findings: The MUA-10 zone has the following intent or purpose: "The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the county while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic. resources; to maintain and improve the quality of the air, water and land resources of the county; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use." The proposed zone change to MUA-10 will preserve the rural character of this area of the county. Dwellings on the subject parcels are allowed outright in the MUA-10 zone and dwellings would be developed on the site. The natural resources of the property include the vegetation and topography, including the rock outcrop, which will not be adversely affected by allowing dwellings outright on the property. The change of zoning will not change the limited potential for any agricultural use on the property. There are no forest ands on the subject property. The open spaces in the area will not be affected by the zone change, as the restriction would still be one dwelling per lot on each parcel. The air, water and land resources of the county will not be impacted by the proposed change of zone. As stated previously, the land can be developed with one dwelling per lot either in the MUA-10 or EFU-TRB zoning. Some dust particulate will be created through any use of the land, as there will likely never be paved roads to and through the property. C. That changing the zoning will presently serve the public health, safety and welfare considering the availability and efficiency of providing necessary public facilities and services. Impacts on surrounding land use associated with the change in zone must also be found to be consistent with the specific goals and policies contained within the - Comprehensive Plan. Findings: As indicated in foregoing findings, there is electric and water service available to the subject property. Staff also believes that phone service is available as evidenced by the existing dwellings in the area. Fire and police protection is available through Bend Rural Fire Protection District #2 and the County Sheriff. 0154-2538 As also stated in foregoing findings, Staff has a concern with the status of Hunnell Road in the area, as it is narrow and has rock outcrop sticking up into the road above the travel surface. This status does not lend itself to ease of use by residents. The rock outcrop can damage tires and other parts of vehicles that may come into contact with the rock. This can create a potential safety problem. Also, the narrowness of the road does not allow for two-way traffic. In addition this road may not provide adequate access for emergency vehicles, such as fire and ambulance. Upgrade of this road to and through the property may be necessary to effectuate the zone change. If the property is not rezoned, and the property owners apply for conditional use permits for individual dwellings, staff may not be able to find that adequate access exists, either for residents or for emergency vehicles. Staff finds that the impacts to surrounding land use will be minimal, as the area to the west, south and north is rural residential in character, and the publicly owned land to the east and north will not be impacted by the zone change. Consistency with the goals in the County Comprehensive Plan has been addressed in foregoing findings. 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: It is Staff' s opinion that there have been no change of circumstances since the original zoning was established by the County in 1979. A lengthy process was used to establish new zoning throughout the county in 1979, which lead to the adoption of the Comprehensive Plan and zoning maps in November of 1979. Staff does find that there appears to have been a mistake in the zoning of the subject property in 1979. The proposed exception area had the same tax lot configuration as is shown on the current map. The small lot sizes, combined with the poor soils on the property, should have been zoned MUA-10. It is unclear why the larger parcels near the proposed exception area, such as the 80 -acre, 40.41 -acre, 40 -acre, 37.93 -acre and 18.95 -acre parcels were all zoned MUA-10, while the subject property, with generally smaller lot sizes was zoned EFU. All of these larger parcels listed above are currently vacant, so there could not have been a developed exception established in 1979. How these lands were irrevocably committed in 1979 is unclear. The rezoning of the proposed exception area to MUA-10 would be the first to occur, according to staff's knowledge, of a rezone from Agriculture land to a rural residential exception area that has occurred since some EFU land was rezoned to MUA- 10 for one year following the adoption of the Plan and zoning in 1979. Staff does not want to see any sort of precedent set 0154-2539 by this decision, but believes that the subject property does in fact meet the standards for an exception. 5. Conformance with OAR 660-12-060, Plan and Land Use Regulation Amendments. (1) Amendments to functional plans, acknowledged comprehensive 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 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 classification 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. (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. (4) The presence of a transportation facility or improvement shall not be a basis for an exception to allow residential, commercial, institutional or industrial development on rural lands under this division OAR 660- 04-022 and 028. 0154-2540 Findings: As indicated in foregoing findings, Hunnell Road has rough spots where rock outcrop sticks out above the roadway surface and the road is narrow and does not provide for two- way traffic. Staff is concerned that if the zone change is approved without an upgrade of this road, the road will remain in its unimproved state, and additional dwellings will be constructed without benefit of having adequate road access, specifically for emergency vehicles and two-way traffic. Hunnell Road is designated a local road on the County's transportation plan. The proposed plan amendment and zone change will not change this function nor the level of service. Hunnell Road does need to be improved, and when it is 'improved', it can then accommodate the dwellings that will occur on these parcels. 6. Section 18.135.030 of Title 18 establishes the following provisions: 18.135.030 Resolution of Intent to Rezone A. If from the facts presented and findings and the report and recommendations of the Hearing officer, as required by this Section, the County Commission determines that the public health, safety, welfare and convenience will be best served by a proposed change of zone, the County Commission may indicate its general approval in principal]L of the proposed rezoning by the adoption of a "resolution of intent to rezone." This resolution shall include any conditions, stipulations or limitations which the County Commission may feel necessary to require in the public interest as a prerequisite to final action, including those provisions that the County Commission may feel necessary to prevent speculative holding of property after rezoning. Such a resolution shall not be used to justify "spot zoning" or to create unauthorized zoning categories by excluding uses otherwise permitted in the proposed zoning. B. The fulfillment of all conditions, stipulations and limitations contained in the resolution on the part of the applicant shall make such a resolution a binding commitment on the Board of County Commissioners. Upon completion of the compliance action by the applicant, the Board shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any or all conditions, stipulations or limitations contained in a resolution of intent, including any time limit placed in the resolution, shall render the resolution null and void automatically and without notice., unless an extension is granted by the Board. Findings: Staff believes that with the current status of Hunnell Road in the location of the subject properties, to a ®154-2541 point to the south where it is improved to a minimum 20 -foot wide gravel or cinder standard, make approval of the plan amendment and zone change impossible. This road does not provide adequate access for either residents in the area or for emergency vehicles serving the area. Without the improvement to and upgrade of this road, approval of the plan amendment and zone change cannot proceed. Staff finds that the applicant has two possible alternatives to proceed. One would be for the resolution of intent to rezone listed above, where the Board of County Commissioners could adopt the resolution with the stipulation that the road be improved or a Local Improvement District for the road be established with assurances of the road being improved. When the road is improved, the rezone could take place. The other alternative for the applicant would be to complete the road improvements as needed, with design and construction approval necessary from the County Public Works Department. These improvements would have to be completed prior adoption of the ordinances effectuating the plan amendment and zone change. An issue arose at the hearing before the Board about whether the applicants could be forced to make the necessary road improvements under the Dolan v. City of Tigard exactions case. The Board finds that the applicants have volunteered to make the needed road improvements and have also supplied findings detailing why they believe the Dolan standard for exactions is met. The Board will adopt the findings proposed by applicants in their submittals of December 7, 1995 and December 12, 1995 as its own to justify a requirement that Hunnell Road be improved. In approving the request for plan amendment and zone change, the Board is acting in reliance upon the analysis provided by applicants.