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1996-25077-Ordinance No. 96-052 Recorded 7/10/199696-250'7'7 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES An Ordinance Amending PL -20, * f, Deschutes County Comprehensive Plan Map, Changing the Plan Designation, for certain property adopting an Exception Statement, and Declaring an Emergency. * , ORDINANCE NO. 96-052 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 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 Board of County Commissioners approved the application on the condition that certain improvements be made to Hunnell Road and a Resolution of Intent to Change Plan Designation (Resolution No. 96-084) to that effect; WHEREAS, the required improvements to Hunnell Road have been completed and approved by the County Public Works Department; now therefore THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS as follows: Section 1. That PL -20, the Deschutes County Comprehensive Plan Map, as amended, is further amended to: (1) Amend the text of the Exception Statement of the Plan by adopting an exception statement for the subject 105 acres, as set forth in Exhibit C attached hereto; and (2) Change the Plan Map designation for the subject 105 acres from Agriculture to Rural Residential; as set forth in Exhibits "A" and "B" attached hereto and by this reference incorporated herein. Section 2. In support of this ordinance, the Board adopts the findings and decision of the County, attached as Exhibit "D", which are incorporated herein by reference. Section 3. 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under such ordinance, unless a provision of the amending ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such duty, condition,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 "Id KE(pUN riEQ 1 - ORDINANCE NO. 96-052 `+1I"OFL' McD /7— JUL 1 JUL 1 `( 1996 JUL 11996 0155-0293 ,punishment of the person or persons who previously violated the repealed ordinance. Section 4. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this % day of 1996. BOARD OF COUNTY COMMISSIONERS ATTEST: Rec i g Secretary 2 - ORDINANCE NO. 96-052 1 BARRY H. SLAUGHTER, Commissioner 1 fZ ROB AZT L. NIPPER, Com sioner o155 -G294 Exhibit A to Ordinances 96-052 and 96-053 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. o 0155-0 95 CO it (t dM 33S S�x���Sa I� — ^ �� f \ M•iY 1 - •�•*+•++•••� —•-7rsr—•— —t�Rrr •-ate• 1 "''" — �^ V C WY r C14nL `s` 1 O �C) to WMCC v W43 cn LLJ = p O ..i I.L� R tl • • •�.�. 1 K 1 ULai 1iWJ .. • • e w J R. N 1 Y Y y 1 y y S �.: Y Y Y Z Y Z Y L Taw— — -� Q"a v Q C= Y ori if o .. ' LL a—CC y Y r LU N WLL JO �Y g Y Y •A e Y a a I u LI no it it do 33S mo it Ll m 33S HY 4g4 6 8 EXHlBiT_L___—� Page_.___.___--------------------- . Exhibit C to Ordinance 96-052 An exception to Go Hunnell road for an ar reason that the area development. Findings Ordinance 96-052 and are al 3 was granted for a 1 are described in Ordinance Ls irrevocably committed to support the exception incorporated herein by t 0155-0296 05 -acre area off 96-052 for the by surrounding are set forth in his reference. �XLit b 0155-0297 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 0155-0298 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 books, tax lots 212, 217, 218, 219, legal lots of record. Tax lots 213 legal lot of record together. Tax legal lot determination made as of from the map book record that most created in 1971-72. STANDARDS AND APPLICABLE CRITERIA: in the County zoning map 220 and 221 are all and 214 appear to be one lot 223 has not had a this date. It appears of these tax lots were A. Oregon Administrative Rules, Chapter 660, Division 4, Interpretation of Goal 2 Exception Process: 0155-0299 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). 0155-0300 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 Countv, 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. 0155-0301 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 0155- 0 02 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 660-04-02961. (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 0155-0303 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 0155-0004 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.