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1996-24361-Ordinance No. 96-045 Recorded 7/3/199696-24361 REVIEWED BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES 'R An Ordinance Amending PL -20, *15,5-C'2`2 the Deschutes County Comprehensive Plan, Changing the List of Permitted Uses in a Rural Service * �...- Center Through an Exception to Statewide Land Use Planning Goal * E Fourteen (14) and Declaring an Emergency. ORDINANCE NO. 96-045 c.7 WHEREAS, by Ordinances 90-009 and 90-010 the Board of County Commissioners approved a plan amendment and zone change to create the Spring River Rural Service Center (Rural Service Center) and took an exception from Goal 14; and WHEREAS, the establishment of the Rural Service Center was subject to certain use restrictions to assure compliance with Goal 14, which restrictions were effected by use of as Limited Use Combining Zone; and WHEREAS, the approval for the Limited Use Combining Zone for the Rural Service Center set out a list of uses allowed within the Rural Service Center; and WHEREAS, the list of uses allowed in the Rural Service Center was amended through Ordinances 96-022 and 96-023 to include an additional use; and WHEREAS, James and Gail Smith propose to add an additional use to the list of uses allowed in the Rural Service Center; and WHEREAS, the addition of new uses to the Rural Service Center/Limited Use Combining Zone requires the adoption of a plan amendment and reasons exception from Goal 14; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, has approved the proposed Plan Amendment to PL -20, the Deschutes County Comprehensive Plan and has forwarded the approval as a recommendation; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS as follows: Section 1. AMENDMENT TO RURAL DEVELOPMENT CHAPTER. Policy number 55 of the Rural Service Center section of the Rural Development Section of the Deschutes County Comprehensive Plan, is amended to read as set forth in Exhibit A, attached hereto and by this reference incorporated herein with new text set forth in bold. ,VACROFILMED 1 - ORDINANCE NO.96-045 � UL 1°�'����� �?�� 996 ,, r, rb flaar-f-10100 10U42 Section 2. AMENDMENT TO EXCEPTION STATEMENT. The text of PL -20, as amended, is further amended to read as set forth in Exhibit B, attached hereto and by this reference incorporated herein with new text set forth in bold. Section 3. EXCEPTION TO GOAL 14. Adoption of this ordinance shall have the effect of taking an exception from Goal 14 for the purposes and reasons stated in the Hearings Officer's decision and in the text adopted by Section 2, above. Section 4. FINDINGS. This ordinance is supported by the decision of the Hearings Officer dated May 28, 1996 attached hereto as Exhibit C. Section 5. SEVERABILITY. The provisions of this ordinance are severable. If any, section, sentence, clause or phrase of this ordinance is ajudged to be invalid by a court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of this ordinance. Section 6. CODIFICATION. County Legal Counsel shall have the authority to format the provisions contained herein in a manner that will integrate them into the County Code consistent with the Deschutes County Form and Style Manual for Board Documents. Such codification shall include the authority to make changes in numbering systems and to make such numbering changes consistent with interrelated code sections. In addition, as part of codification of these ordinances, County Legal Counsel may insert appropriate legislative history references. Any legislative history references included herein are not adopted as part of the substance of this ordinance, but are included for administrative convenience and as a reference. They may be changed to correct errors and to conform to proper style without action of the Board of County Commissioners. Section 7. REPEAL OF ORDINANCES AS AFFECTING EXISTING LIABILITIES. The repeal, express or implied, of any ordinance, ordinance provision, code section, or any map or any line on a map incorporated therein by reference, by this amending ordinance shall not release or extinguish any duty, condition, penalty, forfeiture, or liability previously incurred under such ordinance, unless a provision of the amending ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such duty, condition, penalty, forfeiture, or liability, and for the purpose of authorizing the prosecution, conviction and punishment of the person or persons who previously violated the repealed ordinance. 2 - ORDINANCE NO. 96-045 Section 8. EMERGENCY. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this ordinance takes effect on its passage. DATED this _� day of , 1996. BOARD OF COUNTY COMMISSIONERS OF ESCHUTES COUNTY, OREGON 3 / NANCY PQV S LANGEN, Chai 9A ATTEST: BARRY H. SLAUGHTFA, Commissioner A Recording Secreta ROBWT L. NIPPER, Commissioner 3 - ORDINANCE NO. 96-045 Exhibit A to Ordinance 96-045 POLICIES: 01��� 55. To ensure that uses in the Spring River Rural Service Center will be limited to uses that will serve the residents of nearby subdivisions and not the needs of the public generally, the rural service center zoning shall be subject to a Limited Use Combining Zone, which shall have the effect of limiting uses in the Spring River Rural Service Center to the following uses: (a) Fishing supplies and equipment; (b) Snowmobiling accessories; (c) Marine accessories; (d) General Store; (e) Hardware store; (f) Convenience store with gas pumps; (g) Full service gas station with automobile repair services; (h) Welding shop; (i) Fast food restaurant, cafe or coffee shop; (j) Recreational rental equipment store; (k) Excavation business; (1) Landscaping business/service; and (m) Health care service. These uses may be further defined in the County Zoning Ordinance. Exhibit B to Ordinance 96-045 Spring River Rural Service Center A reasons exception was taken from Goal 14 to allow for the establishment of the Spring River Rural Service Center on residential -designated lands for which and exception had already been taken from Goals 3 and 4. The rural service center was approved because the Board of County Commissioners found that it would primarily serve the needs of the residents of nearby subdivisions, such as Deschutes Recreational Homesites. Findings to support the reasons exception to Goal 14 were made in paragraph 7 of the Board of County Commissioners' decision (attached to Ordinances 90-009 and 90-010) and those findings are incorporated by reference herein. Findings to support the reasons exception accompanying Ordinance 96-022 were made on pages 12 - 18 of the Hearings Officer's findings supporting that decision and those findings are incorporated herein by reference. To ensure that uses in the rural service center would be limited in a manner to comply with Goal 14 exception, a limited use combining zone was imposed, by which the allowed uses were limited to a list of specific uses. Those uses are listed in the Rural Development Chapter of this Comprehensive Plan in conjunction with a description of the Spring River Rural Service Center and also the zoning ordinance. Additional uses were added to the zone by Ordinances 96-022 and 96-045. Findings to support the reasons exception accompanying Ordinance 96-045 were made on pages 12 - 18 of the Hearings Officer's findings supporting that decision and those findings are incorporated herein by reference. 4�-, X111.& T G 01 � 5-C" J DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: APPLICANT/ PROPERTY OWNER: PA -96-1 /ZC-96-1 James and Gail Smith 17138 Bakersfield Road Bend, Oregon 97701 REQUEST: The applicants are requesting approval of a comprehensive plan amendment/goal exception and zoning ordinance text amendment to add "health care service including physical therapy and counseling" to the permitted uses in the Spring River Rural Service Center/Limited Use Combining Zone. STAFF REVIEWER: HEARING DATE: RECORD CLOSED: James J. Lewis, Assistant Planner May 7, 1996 May 14, 1996 28 240 � MACFIU�TE8 COUNTY L APPLICABLE STANDARDS AND CRITERIA: l9�Sl�£t A. Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance " Chapter 18.64, Rural Service Center (RSC) Zone " Chapter 18.112, Limited Use (LU) Combining Zone * Chapter 18.136, Amendments B. Title 22 of the Deschutes County Code, Development Procedures Ordinance C. The Deschutes County Year 2000 Comprehensive Plan D. Oregon Administrative Rules * Chapter 660, Division 4, Interpretation of Goal 2 Exception Process; * Chapter 660, Division 15, Statewide Planning Goals, Goal 14, Urbanization IL FINDINGS OF FACT: A. Location: The subject property is described as the Spring Ptiver Rural Service Center/Limited Use Combining Zone (RSC/LU) and is further described as Tax Lots 100 and 103-120 on Deschutes County Assessor's Map # 20-11-7B. 1 B. Zoning: The subject property is zoned RSC/LU and is designated rural service center on the Deschutes County Year 2000 Comprehensive Plan Map. The subject property also is within the Landscape Management Combining Zone (LM) and the Wildlife Area Combining; Zone (WA). C. Site Description: The Spring River RSC/LU is comprised of 19 separate tax lots, each approximately one-half acre in size. Most of these parcels have been partially or entirely cleared of vegetation in conjunction with existing or proposed develop- ment. The existing development in the RSC/LU includes: an excavation business, retail thrift store, real estate office, a multi-purpose commercial building which will house a welding business, a snowmobiling accessory store, a convenience store, restaurant, recreational equipment rental store and landscaping business. The Spring River RSC/LU is bounded by Spring River Road on the north, Azusa Road on the south, Lunar Drive on the east and residential lots on the west. The Deschutes River lies approximately 300 feet to the east. D. Surrounding Land Use: Land uses in the vicinity of the subject property include properties which are developed or proposed for development with single-family residential uses. North and east of the RSC/LU is Sunriver Resort, a planned community comprised of residential, commercial and recreational uses. The Crosswater residential/golf community lies to the east and south across the Deschutes River. Beyond the residential and resort developments are larger parcels which are zoned for forest uses, many of them within the Deschutes National Forest. The majority of the surrounding residential properties outside the RSC/LU have retained most of their native vegetation in conjunction with development. The primary roads providing access to the surrounding area are Spring River Road and South Century Drive. Local streets provide additional access in the surroun- ding community. Surrounding properties are zoned Rural Residential (RR -10) and Flood Plain (FP) on riverfront properties. Sunriver Resort is zoned Planned Community (PC). F. Procedural History: The Spring River RSC/LU was carved out of the existing Spring River exception area zoned RR -10 in 1990 by Ordinances No. 90-009 and 90-010. The LU Zone limited the uses allowed in the RSC to the following: 1. fishing supplies and equipment; 2. snowmobiling accessories; 3. marine accessories; 4. general store; 5. hardware store: �. 6. convenience store with gas pumps; 7. full service gas station with automobile repair services; 8. welding shop; 9. fast food restaurant, cafe or coffee shop; N 10. recreational equipment rental store; and 11. excavation business. In February of 1996, in File #PA95-13/ZC-95-10, this Hearings Officer approved a plan amendment/goal exception and zoning ordinance text amendment requested by Robert Klaver to add "landscaping business" to the list of uses permitted in the Spring River RSC/LU Zone. On March 20, 1996, the Board of County Commis- sioners adopted this plan amendment/zone change by Ordinances Nos. 96-022 and 96-023. The applicants purchased the subject property in December of 1995 and began operating a physical therapy clinic and counseling practice there in January of 1996. Subsequently, they were advised by the county that these uses were not permitted in the Spring River RSC/LU Zone and that a plan amendment/goal exceptionlzoning text amendment would be necessary. On March 6, 1996, the applicants submitted the subject application. At the public hearing on May 7, 1996, the Hearings Officer left the written record open until May 14, 1996. G. Proposal: The applicants are proposing a plan amendment/goal exception/ zoning text amendment to add "health care service including physical therapy and counseling" to the list of uses permitted in the Spring River RSC/LU in order to legally conduct their existing businesses on the site. H. Public Agency Comments: The Planning Division sent notice of the proposed plan amendment/zone change text amendment and goal exception to several public agencies, and received responses from the Deschutes County Public Works Department and Environmental Health Division. These responses are set forth at page three of the Staff Report, and are incorporated by reference herein. I. Public Notice and Comments: The Planning Division also sent written notice of the public hearing in this matter to owners of all property located within the RSC/LU, as well as owners of all property located within 250 feet of the subject property. The Planning Division also published notice of the public hearing in the Bend "Bulletin." At the time the record closed in this matter, the Planning Division had received ten letters in support of the application. L Legal Lot: The lots located within the Spring River RSC/LU were created through a legal subdivision, the Deschutes River Recreation Homesites, Extension to Unit One. III. CONCLUSIONS OF LAW: A. Title 18 of the Deschutes County Zoning Ordinance 1. Chapter 18.64, Rural Service Center (RSC) Zone 3 V �vI%r\J a. Section 18.64.010, Purpose. The purpose of the Rural Service Center Zone is to provide standards and review procedures for concentrations of local commercial services to meet the needs of rural residents, as well as limited tourist com- mercial services consistent with the maintenance of the rural character of the area. FINDINGS: The Spring River RSC/LU was adopted by Ordinances Nos. 90-009 and 90- 010 as a plan amendment and zone change. The Findings and Decision supporting the ordinance states that the new zone was established by taking a "reasons" exception to Goal 14, the Urbanization Goal, as required by Section 18.112.010(c) of the Deschutes County Code and pursuant to Oregon Administrative Rules (OAR) 660-04-020. Ordinances Nos. 90-009 and 90-010 established a list of permitted uses for all parcels in the Spring River RSC/LU zone, set forth in the Findings of Fact above. This list of uses supersedes the uses permitted in the RSC Zone under Chapter 18.64. However, the Hearings Officer concurs with staffs conclusion that the applicant's proposed addition of "health care service including physical therapy and counseling" is a use that would otherwise be permitted outright in the underlying RSC Zone as a "service establishment" under Section 18.64.020(C). 2.. Chapter 18.112, Limited Use Combining LU Zone. In any Limited Use Combining Zone (LU), the requirements and standards of this section shall apply in addition to those specified in this title for the underlying zone and any other applicable combining zones. In the event of a conflict between the requirements and standards of this section and those of the underlying zone or other applicable combining zones, the provisions of this section shall govern. (a) Section 18.112.010, Purpose. (1) The purpose of the LU Zone is to limit the list of permitted uses and general activities allowed in the underlying zone, when a plan amendment and zone change rezones a parcel to that underlying zone through the taking of an exception to a statewide land use planning goal under ORS 197.732. (2) The LU Zone is an overlay zone wjiich may be applied, where appropriate, to plan amendments/zone changes effected by either a "physically developed" exception under ORS 197.732(1)(b), or a "reasons" exception under ORS 197.732(1)(c). 4 (3) The LU Zone, when adopted, shall carry out the re- quirements of Oregon Administrative Rule 660-04-018 that where a goal exception is taken, permitted uses shall be limited to those uses justified by the exception statement. (b) Section 18.112.020, Combining Zone Requirements. When the LU Zone is applied, the uses permitted in the underlying zone shall be limited to those uses and general activities specifically set forth in the ordinance adopting the underlying zone and the LU Zone. Any change in those uses and general activities must be made through the plan/land use regulation amendment process. FINDINGS: Ordinances Nos. 90-009 and 90-010, which created the Spring River RSC/LU, limited the uses permitted in the LU Zone to those set forth in the Findings of Fact above. Ordinances Nos. 96-022 and 96-023 added "landscaping business/service." The applicants' proposed uses -- "health care service including physical therapy and counseling" -- are not included in the list of uses permitted in the Spring River RSC/LU. Section 18.112.010(3) provides that in an LU "permitted uses shall be limited to those uses justified by the exception statement." (Emphasis added.) Paragraph (2) of that section provides that an LU Zone can be created either for a "physically developed" or "reasons" exception under ORS 197.732. As discussed in the findings below, the county took a "reasons" exception to Goals 3 and 4 when the Spring River RSC/LU was created. The "reasons" reasons for the exception were the historic and growing rural residential development in the Spring River/Sunriver area and the commercial uses in the Spring River area that had developed to serve the area's rural residents. There is no evidence in the record that when the Spring River RSC/LU was created there were or had been health care providers in the area. However, the applicants argue such uses can be added to the RSC/LU, and that there is no legal limitation to the uses that may be added, as long as they are of the type designed to serve the local rural residents. The applicants point to a number of factors in support of their arguments, and in particular rely upon the fact that the county took a "reasons" exception to create the RSC/LU. They note that the other two allowable exceptions -- for "physically developed" and "irrevocably committed" lands (OAR 660-04-018(2)) -- are based upon and limited to the preservation of existing non -resource uses, whereas a "reasons" exception (OAR 660-04-018(3)) is much broader and is based upon factors such as need. The Hearings Officer concurs with the applicants' analysis. Although I have found no caselaw or other authority providing guidance on this particular question, I am persuaded that limiting uses in the Spring River RSC/LU to those that were included or subsumed in the original list of permitted uses in Ordinances No. 90-009 and 90-010 would be inconsistent with the purpose for which the "reasons" exception was taken for that zone. As discussed in the findings below, that purpose was to allow the provision of commercial uses designed specifically to serve the rural residents of the area. At the public hearing in this matter, the Hearings Officer expressed concern about whether continued amendments to the Spring River RSC LU would have the effect of nullifying the LU Zone and creating a de facto RSC with no LU overlay zone. However, I am persuaded that this concern is unfounded. That is because at least some of the uses permitted in the underlying RSC Zone could not be allowed in the Spring River RSC/LU under the "reasons exception" as they clearly are not designed to serve the area's rural residents.1 For the foregoing reasons, I find the applicants' proposal to add "health care service including physical therapy and counseling" to the list of permitted uses in the Spring River RSC LU is consistent with the purpose of the LU Zone. 3. Chapter 18.136, Amendments a. Section 18.136.010, Authorization to Initiate Amendments. An amendment to the teat of this title or to a zoning map may be initiated by ... application of a property owner. The request by a property owner for an amendment shall be accomplished by filing an application on forms provided by the Planning Department. b. Section 18.136.020, Procedure for Zoning Amendments. Action on proposed zoning teat or map amendments shall proceed according to the terms of Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. The Planning Director or Hearings Body shall conduct the initial hearing on ... quasi-judicial rezonings. c. Section 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 are: 1 For example, Section 18.64.020 permits "television or radio station, transmitter or tower" as an outright use, and Section 18.64.030 conditionally permits "tourist or travelers' accommodations." D ' A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone change classification. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: a. The availability and efficiency of providing neces- sary public services and facilities. b. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: In the Klaver case cited above (File #PA-95-13/ZC-95-10), this Hearings Officer concluded that the standards in this section applied to amendments to the list of uses in the Spring River RSC/LU Zone because they constitute a zoning ordinance text amendment. However, the record indicates that when the Klaver matter went to the Deschutes County Board of Commissioners for approval, Deschutes County Legal Counsel advised the Board that in his opinion such text amendments are not subject to the standards for a zone change set forth in Section 18.136.030. The findings accompanying Ordinances Nos. 96-022 and 96-023, adopting the Klaver amendment, do not contain an explanation of counsel's opinion. However, the staff report states in pertinent part: "[A] zone change was found to be the inappropriate process for the applicant's proposal. A zone change connotates [sic] a change in the zoning map and zoning designation for an area of land... In this instance, the applicant is not intending to change the zoning map designation for the Rural Service Center/Limited Use Combining Zone. Rather, the intent is to change the text of the zoning ordinance to add the proposed uses to the list of uses already permitted in the RSC/LU." The Hearings Officer concurs that the applicants' proposal does not involve a zoning map amendment or a change in the zoning ordinance or comprehensive plan designation of the subject property. The property will continue to be zoned and designated RSC/LU. While I find the question of whether zone change standards apply to the type of text amendment at issue here is a close one, the county's interpretation of its zoning ordinance provisions is 7 V �► V Ci A;A; entitled to deference unless it is inconsistent with the express language or its apparent purpose or policy. Clark v. Jackson County_ 313 Or 508, 836 P 2d 710 (1992). I find the term "quasi-judicial rezoning" in Section 18.136.030 is subject to interpretation and that county counsel's interpretation is one of several that are reasonable and consistent with the context. Therefore, I find it is entitled to deference and that this application is not subject to the zone change standards in Section 18.136.030. The Staff Report goes on to state that although the zone change standards in Section 18.136.030 do not apply to the applicants' proposal: " ... the applicant must still show compliance and compatibility with the goals and policies contained in the Deschutes County Comprehensive Plan ... [and] must demonstrate a need for the proposed uses in the area surrounding the RSC/LU." The Hearings Officer concurs that the applicants' proposal, which includes a plan amendment, must comply with the comprehensive plan goals and policies. The proposal's plan compliance is discussed in the findings below. B. Deschutes County Year 2000 Comprehensive Plan FINDINGS: The Hearings Officer finds the following plan goals, policies and statements of intent apply to this application. 1. Rural Development (Pages 35-40) Goals: 1. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The record indicates that the Spring River area is surrounded by a large amount of open space located outside of the RSC/LU -- primarily in the Deschutes National Forest. However, as discussed above, due to the historic parcelization and development, the Spring River area has developed in a more urban than rural character. Nevertheless, the Hearings Officer finds the addition of the proposed "health care service including physical therapy and counseling" to the permitted uses in the RSC/LU will be consistent with this goal. Any development in the RSC/LU is subject to site plan review. In addition, it is subject to the special siting requirements in the WA Zone, which are designed to preserve scenic values and natural resources. 2. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. 8 0155-0233 FINDINGS: As discussed above, the Spring River RSC/LU was created in order to provide for the convenient and efficient delivery of commercial products and services to area residents and businesses. The Hearings Officer finds that allowing limited health care services, including physical therapy and counseling in the RSC/LU will minimize the cost of such services to the area's population. It will not require expansion of the RSC/LU boundary, nor will it require expansion of public facilities and services in the zone. 3. To provide for the possible long term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The Hearings Officer finds that allowing the proposed health care service uses in the Spring River RSC/LU will have little, if any, effect on possible long-term expansion of the RSC. In addition, by being located within the RSC, the proposed uses will continue the distinction between urban and rural lands created with the establishment of the RSC. Policies: (pages 37-40) Rural Service Centers 13. Because there is a need to accommodate some rural residential development and to provide necessary commercial services to existing rural residents, the County shall designate the following Rural Service Centers in order to provide a more efficient pattern of development and energy use, as well as provision of public services: Alfalfa, Brothers, Hampton, La Pine, Millican, Terrebonne, Tumalo, Whistle Stop, Wickiup Junction, Deschutes Junction and Wild Hunt. In addition, other sites, such as the Fall River/Spring River area, may be approved in the future as dictated by needs of existing rural residents. 14. Each Rural Service Center shall have a compact com- mercial area to serve the convenience -commercial, agricultural and repair service needs of the surrounding rural lands. In addition, larger Rural Service Centers along major highways, where public facilities such as schools already exist, shall have a residential area designated (see individual RSC maps and policies). The size and uses of rural service centers shall be such as to maintain the rural character of the area. ►1 0155-0234 FINDINGS: The record indicates the spring River RSC/LU was established to provide necessary commercial services for the area's residents and businesses. The uses permitted in the zone include the types of convenience commercial and repair services contemplated in this plan policy. The Hearings Officer finds that the proposed health care services are also the types of services that will serve the needs of area residents. The record indicates that since applicant Gail Smith opened her physical therapy business in January of 1996, she has developed fifty clients and during the month of April, 1996, had seventy-three office visits. In addition, the record contains a number of letters from Gail Smith's clients indicating their need for such services near their rural Spring River area homes. For these reasons, I find the applicants' proposal is consistent with these plan policies. 2. Transportation (Pages 79-92) 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: The record indicates that the Spring River RSC/LU abuts Spring River Road on the east -- a designated collector -- and Lunar Drive on the south and Azusa Drive on the east -- both designated local streets. This is the local transportation system which was in existence when the Spring River RSC/LU was established in 1990. Collector streets are designed to accommodate relatively high volumes of traffic in a safe and efficient manner. Local streets are designed to funnel local traffic onto collectors. The record also indicates that any access onto any of the county roads in the area from adjacent property requires an access permit from the Deschutes County Public Works Department. The access permit process will allow the county to regulate the impact of vehicular traffic generated from uses in the RSC/LU onto county roads. For these reasons, the Hearings Officer finds that the addition of the proposed health care services to the uses permitted in the Spring River RSC/LU and the required access permit will assure consistency with these comprehensive plan goals. 3. Public Facilities (Pages 93-100) Goals: 1. To plan and develop a timely, orderly and efficient arrange- ment of public facilities and services to serve as framework for urban and rural development, and thereby a system or plan that coordinates the type, location and delivery of public facilities and services in a manner that best supports the 10 0155-0235 existing and proposed land uses. FINDINGS: As discussed above, the Spring River RSC/LU was created in 1990 to reflect the historic and existing urban -type development in the area and to provide a commercial service center for area residents. The RSC/LU is served by three county roads, including a county collector -- Spring River Road. The Hearings Officer finds that the addition of the proposed health care services to the permitted uses in the RSC/LU will not require an increase in or undue burden on existing public facilities in the area, and is therefore consistent with this plan goal. Policies: 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way, public services may guide development while remaining in concert with the public's needs. 2. While clear distinctions are not always possible between urban and rural services, those facilities such as sewage treatment plants, water systems, schools and fire stations, which are necessary to serve concentrations of people shall be know as key facilities and shall be located in urban areas or in Rural Service Centers, if necessary, to meet the needs of existing rural residents. Key facilities shall be built to encourage additional development. Rural Service Centers are a logical location for future key facilities so that services may be used and constructed in as efficient a manner as possible (see Rural Development chapter). Key facilities outside urban areas or Rural Service Centers shall be discouraged unless the facility is needed to serve existing development, is at the most efficient and economic location and is consistent with capabilities of the land and planned growth of the County. FINDINGS: As discussed above, the Spring River RSC/LU was created in 1990 to provide a location for the commercial services needed by Spring River area residents. Public facilities and services available in the RSC/LU will not be expanded or unduly burdened by the addition of the proposed health care services to the uses permitted in the RSC/LU. Consequently, the Hearings Officer finds that the proposal is consistent with these plan policies. For the foregoing reasons, the Hearings Officer finds that the applicants' proposal is consistent with the comprehensive plan. 11 0155-0236 C. Oregon Administrative Rules Chapter 660, Division 4, Interpretation of Goal 2 Exception Process. 1. OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals (1) The exception process is not applicable to Statewide Goal 1 "Citizen Involvement" and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals which prescribe or restrict certain uses of resource land. These statewide goals include but are not limited to: (a) Goal 3 "Agricultural Lands," however an exception to Goal 3 "Agricultural Lands" is not required for any of the farm or nonfarm uses permitted in an exclusive farm use (EFU) zone under ORS Chapter 215; (b) Goal 4 "Forest Lands"; (c) Goal 14 "Urbanization" except as provided for in para- graphs (1)(c)(A) and (B) of this rule, and OAR 660-14-000 through 660-14-040 [relating to city incorporation and urban growth boundaries]: .. . FINDINGS: The Hearings Officer finds that because the Spring River RSC/LU was created by the taking of an exception to Goals 3, 4 and 14, the applicants' proposal also requires a goal exception. 2. OAR 660-04-018, Planning and Zoning for Exception Areas (3) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-04-020 through 660-04-022, plan and zone designations must limit the uses and activities to only those uses and activities which are justified in the exception. (b) When a local government changes the types or intensities of uses within an exception area approved as a "Reasons" exception, a new "Reasons" exception is required. 12 0155-023'7 FINDINGS: The applicant proposes to change the types of uses allowed within the Spring River RSC/LU by adding "health care service including physical therapy and counseling." Therefore, the Hearings Officer finds that a new "reasons" goal exception is required under OAR 660-04-018(3)(b) to justify that change. 2. OAR 660-04-020, Goal 2, Part II(c), Exception Requirements. (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the compre- hensive plan as an exception. (2) The four factors in Goal 2, Part H(c) required to be addressed when taking an exception to a Goal are: (a)"Reasons justify why the state policy embodied in the applicable goals should not apply." The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land. FINDINGS: The record indicates that when the county's comprehensive plan was originally acknowledged by the Land Conservation and Development Commission (LCDC) in 1979, the area in which the subject property is located was excepted from the surrounding resource zones -- i.e., the farm and forest zones required to be preserved and protected by Goals 3 and 4 respectively -- based upon a finding that it was already committed to non -resource uses, primarily residential parcelization and uses. Consequently, it was originally designated and zoned Rural Residential -- a non -resource classification. As discussed in the findings above, the comprehensive plan also recognized the potential need for a rural service center in this location to serve the needs of nearby rural residences. The Board's Findings and Decision in support of Ordinances Nos. 90-009 and 90-010, which created the Spring River RSC/L'ed that the Spring River area had become increasingly committed to non-reso c s, including commercial uses serving nearby residences. The decision found that the creation of the RSC/LU with the listed permitted uses met all the criteria for a "committed" exception to Goals 3 and 4, met the criteria for an exception to Goal 14, Urbanization, met all other applicable statewide land use planning goals and met the criteria for a plan amendment and zone change. The Hearings Officer finds that the reasons for an exception to Goals 3 and 4 contained in the Board's 1990 Findings and Decision -- for example, in Conclusion of Law #4 -- are equally applicable to the exception proposed here, and are incorporated by reference herein. The Hearings Officer also finds that the reasons for an exception to Goal 14 13 0155-0238 contained in the 1990 Findings and Decision -- specifically Conclusion of Law #7 -- are equally applicable to the subject proposal, and are also incorporated by reference herein. The Hearings Officer makes the following additional findings in support of an exception to Goal 14. The purpose of the goal is "[t]o provide for an orderly and efficient transition from rural to urban use." The record indicates that the Spring River area and much of the surrounding lands were divided into small parcels (generally less than one acre in size) prior to the adoption of the statewide land use planning goals and the county's comprehensive plan and zoning ordinance. The record indicates that there are 5,000 of these lots within a five -mile radius of the Spring River RSC/LU. Since these lots were platted, many of them have been developed with both residential and commercial uses. Thus, the Spring River area -- lying outside any urban growth boundary and a considerable distance from both Bend and La Pine -- has historically developed with a more "urban" than "rural" character. The 1990 RSC -LU designation specifically recognized that this particular part of the Spring River area has in fact developed with the types of commercial uses and services typically required by the surrounding residents. The Hearings Officer therefore finds that the Spring River RSC/LU already has made the "orderly and efficient transition from rural to urban land use" required by Goal 14. The Hearings Officer further finds that the addition of "health care service including physical therapy and counseling" to the list of uses permitted in the RSC/LU Zone will further the purpose of Goal 14. By definition, the RSC Zone must be located near the population it is to serve in order to efficiently provide the products and services contemplated in that zone. The Hearings Officer is aware that physical therapy and counseling services exist in both the Bend and La Pine areas. In fact, applicant Gail Smith operates a physical therapy office in La Pine. However, at more than fifteen miles away, these services are at a distance making them inconvenient and uneconomical for the residents of the Spring River area. The record indicates that many Spring River area residents are retired and living on fixed incomes or are elderly and consequently would find it difficult to travel to Bend or La Pine, particularly during winter months, to get physical therapy services in those cities. In addition, the record indicates that these services could be sited in the commercial district in nearby Sunriver, as medical/dental clinics and offices are outright permitted uses. However, such uses may be uneconomical to site in the commercial district in the nearby Sunriver planned community in view of the land and lease prices in Sunriver which the record indicates are considerably higher than in the Spring River RSC/LU. In addition, applicant Gail Smith testified that many of her rural physical therapy clients are not comfortable doing business in Sunriver due to the tourist -related and "high-end" character of its businesses. For the foregoing reasons, the Hearings Officer finds that the addition of "health care service including physical therapy and counseling" to the permitted uses in the Spring River RSC/LU will further the "orderly transition from rural to urban use" in the Spring River area under Goal 14. 14 0155-0239 (b) Areas which do not require a new exception cannot reasonably accommodate the use: (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified. (B) fio show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception can- not reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, in- cluding increasing the density of uses on nonresource land? If not, why not? (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to non - resource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? (C) This alternative areas standard can be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types on areas in the vicinity could not reason- ably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support the assertion that the sites are more reasonable by another party during the local excep- tions proceeding. 15 0155-0240 FINDINGS: The "alternative areas" factor for a goal exception requires an analysis of whether there are alternative areas not requiring a goal exception which could reasonably accommodate the proposed use. The Hearings Officer finds that the proposed physical therapy and counseling services could be located in Bend or La Pine, or possibly in the Sunriver planned community, without requiring a goal exception. However, the Hearings Officer finds that none of these locations would "reasonably accommodate" the proposed use. As discussed in the findings above, both Bend and La Pine are located more than 15 miles from the Spring River area, making it difficult and expensive for rural residents in the Spring River area to reach them -- particularly in winter when severe weather makes travel on U.S. Highway 97 treacherous. In addition, the record indicates that even if sites were available in Sunriver's commercial district, the land and lease prices there likely would make the siting of health care services such as those proposed by the applicants prohibitively expensive, and at least some of the rural Spring River residents would choose not to do business in Sunriver. The purpose of the RSC/LU is to allow the provision of products and services demanded by surrounding residents at a location close and convenient to those residents. The record indicates there are currently no physical therapy or counseling services in Sunriver, although there is a general medical facility there. As discussed in the findings above, the record also indicates that since applicant Gail Smith opened her physical therapy practice in Spring River she has treated fifty patients and that she had seventy-three office visits in April of 1996 alone. A number of Gail Smith's physical therapy clients submitted letters indicating that it would be difficult or impossible for them to travel to Bend or La Pine for physical therapy. For the foregoing reasons, the Hearings Officer finds that there are no areas not requiring a goal exception that could reasonably accommodate the proposed health care services intended to serve Spring River residents. (c) The long-term environmental, economic, social and energy con- sequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas [sic] considered by the jurisdiction for which an exception might be taken, the typical advan- tages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall 16 0155-0241 include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts. FINDINGS: This factor states that for a goal exception to be allowed for the proposed addition of "health care service including physical therapy and counseling" in the Spring River RSC/LU rather than alternative sites: " [t]he long-term environmental, economic, social and energy consequences resul- ting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception." As discussed above, the only available alternative sites for the proposed health care services that do not require a goal exception are in commercial -zoned areas in Bend, La Pine and Sunriver. Thus, the issue is whether the ESEE consequences of allowing the proposed use in the Spring River RSC/LU are not significantly more adverse than would result if the use were located in any of these other areas. The Hearings Officer finds that they are not. The Hearings Officer finds that the environmental, social, economic and energy consequences of locating the proposed services in Bend or La Pine -- over fifteen miles from the Spring River area -- would be significant compared to locating the uses close to the populations they are designed to serve. Service to Spring River area residents from a physical therapy or counseling business located in Bend or La Pine would be less convenient and economical for clients. In addition, it would require the consumption of additional energy resources in the form of gasoline, and would consequently create greater air pollution. As discussed above, while the Sunriver commercial areas are located relatively close to the Spring River area, no physical therapy or counseling services currently are located there, and because of the high cost of purchasing or leasing land in Sunriver and the tourist - oriented nature of most of its commercial businesses, it is unlikely the proposed services could be located there. The Hearings Officer finds that locating the proposed physical therapy and counseling services in the existing RSC/LU will assure their compatibility with the surrounding area and will serve to reduce potential environmental and social impacts. For these reasons, the 17 0155-0242 Hearings Officer finds the ESEE consequences of locating of the proposed health care services in the Spring River RSC/LU would not be significantly more adverse than those arising from locating these uses in available sites in Bend, La Pine or Sunriver, and in fact would be significantly less adverse. (d) "The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts." The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resources and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. FINDINGS: The Hearings Officer finds that many of the commercial uses permitted in the RSC/LU are considerably more intense uses than the health care services proposed by the applicants. For example, these uses include excavating, welding and gas/service station. In addition, the RSC/LU is located close to a number of residential lots which could be affected by any nearby commercial uses. I find that because the proposed health care services are relatively low -impact, they are compatible with both the uses permitted in the RSC/LU Zone and with surrounding residential development. Under Section 18.124.030 of the Deschutes County Code, all uses within the RSC/LU are subject to site plan review, which is a process designed to assure compatibility with surrounding uses. In addition, the subject property lies within the LM Zone, which establishes additional siting requirements. The Hearings Officer finds that the application of these provisions to the proposed health care service businesses will assure that they are sited and operated in a manner compatible with surrounding properties in the Spring River area. IV. CONCLUSIONARY FINDINGS: The Hearings Officer finds that the applicant's proposal to add "health care service including physical therapy and counseling" to the list of uses permitted in the Spring River RSC/LU meets the criteria for a plan amendment, zone change/text amendment and goal exception. However, the Hearings Officer finds that in order to provide clarity for future uses within the zone, the uses to be added shall be defined so as to assure they are consistent with the "reasons" exception taken to create the Spring River RSC/LU and the purpose of the LU Zone, and compatible with other uses permitted in that zone and in the surrounding zones. 18 0155-0243 IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's proposed plan amendment, zone change/text amendment and goal exception. The Hearings Officer finds that the list of uses permitted in the Spring River RSC/LU Zone shall be amended to include "health care service," defined as follows: "Health care service: a business providing the diagnosis, treatment and care of physical and/or mental disease, injury and/or disability, but not including a hospital facility or a nursing home as defined in Chapter 18.04 of Title 18." Mailed this �� day of 1996. N Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL 10 DAYS AFTER MAILING, UNLESS APPEALED. ILS