1996-40496-Ordinance No. 96-070 Recorded 10/17/1996_ REVIE,WEED
9C-10496 A,0
`BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUIMT N _.
An Ordinance Amending the Text of the Sunriver * 960"T 17 AN 9:49
Master Plan in Order to More Clearly Define the *
Uses Permitted in an Area Identified as RM -12 fef 1 r ,
Within the Sunriver Planned Community, and
Declaring an Emergency.
ORDINANCE NO. 96-070
WHEREAS, the Planned Community Zone was created by Ordinance No. 82-043 and applies to
the area generally known as the Sunriver Planned Community; and,
WHEREAS, the Sunriver Master Plan, adopted by Ordinance No. 82-043, further restricts land
uses within the boundaries of the Sunriver Planned Community; and,
WHEREAS, the text of the Sunriver Master Plan specific to the uses permitted in the area
identified as RM -12 is not clear; and,
WHEREAS, the amendment set forth herein is intended to more clearly define the uses permitted
in the area identified as RM -12 in the Sunriver Master Plan; and,
WHEREAS, Section 18.108.060 of the County Code, Planned Community Zone, Amendment of
a Development Plan, sets forth the procedure for amending an approved development plan within a PC
Zone and states that the criteria shall be the same as for a change of zone; and,
WHEREAS, the proposed amendment is a quasi-judicial zone change as it affects a single property
owner and involves the application of existing policy to a factual setting; and,
WHEREAS, Section 22.20.010(C) of the County Code, Action on Land Use Applications, states
that zone change applications shall be referred to a hearing before the Hearings Body and the Hearings
Body for a quasi-judicial zone change is the County Hearings Officer; and,
WHEREAS, the Board of County Commissioners has considered the Hearings Officer's approval
of the proposed amendment in accordance with applicable law; now, therefore
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. Amendment. The text of the Sunriver Master Plan is amended as set forth in
Exhibit A attached hereto and incorporated herein, with new language set out in red -line and language
to be deleted in strike -out.
Section 2. Findings. The Deschutes County Hearings Officer after review in a public hearing
on July 23, 1996, has issued a written findings and decision as set forth in Exhibit B which supports the
approval of the Text Amendment to the Sunriver Master Plan.
IL,'CR0F; ;,QED
PAGE 1 - ORDINANCE NO. 96-070 (October 16, 1996) NOV 2 V IH6 '4
Section 3. Severability. The provisions of this ordinan(QJ6§-eve f any section,
sentence, clause or phrase of this ordinance is adjudged to be invalid by a court'of compent jurisdiction,
that decision shall not affect the validity of the remaining portions of this ordinance.
Section 4. Codification. County Legal Counsel shall have the authority to format the
provisions contained herein in a manner that will integrate them into the County Code consistent with the
Deschutes County Form and Style Manual for Board Documents. Such codification shall include the
authority to make such changes, to make changes in numbering systems and to make such numbering
changes consistent with interrelated code sections. In addition, as part of codification of these ordinances,
County Legal Counsel may insert appropriate legislative history reference. 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 5. Repeal of Ordinances as Affecting Existing Liabilities. The repeal, express or
implied, of any ordinance, ordinance provision, code section, or any map or any line on a map
incorporated therein by reference, by this amending ordinance shall not release or extinguish any duty,
condition, penalty, forfeiture, or liability previously incurred or that may hereafter be incurred under such
ordinance, unless a provision of this amending ordinance shall so expressly provide, and such ordinance
repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or
prosecution for the enforcement of such duty, condition, penalty, forfeiture, or liability, and for the
purpose of authorizing the prosecution, conviction and punishment of the person or persons who
previously violated the repealed ordinance.
Section 6. 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 16th day of October, 1996.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
Off' DESCHUTZ� COUNW, OREGON
, Chair
U
ARR H. SLAUGHTER, Commissioner
RO ERT L. NIPPER, MmInissioner
PAGE 2 - ORDINANCE NO. 96-070 (October 16, 1996)
EXHIBIT A 0155-2906
ORDINANCE 96-070
PAGE 3 - ORDINANCE NO. 96-070 (October 16, 1996)
�xHJ.B/T �v y
0155-29Oi
BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER
10g 10111? ��
FILE NUMBER: TA -96-7
APPLICANT/ ry SEP6
PROPERTY OWNER: Aspen Powder L.L.C. j MAXW
869 N.W. Wall Street, Suite 9204 DESCHUM
Bend, OR 97701 g,� COUNTY
ATTORNEY: Liz Fancher�gZvto
The Law Offices of James T. Massey
P.O. Box 1689
Sisters, Or 97759
REQUEST: The applicant seeks a text amendment to the Sunriver
Master Plan to allow the development of condominiums units
in the RM -12 District not limited to rental by Sunriver
employees.
STAFF REVIEWER: James J. Lewis, Assistant Planner
HEARING DATE: July 23, 1996
RECORD CLOSED: August 6, 1996
L APPLICABLE CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning
Ordinance
• Chapter 18.108, Planned Community - PC Zone
• Chapter 18.1369 Amendments
*Section 18.136.030, Rezoning Standards
C. The Deschutes County Year 2000 Comprehensive Plan
D. The Sunriver Master Plan
E. Title 22 of the Deschutes County Code, the Deschutes County Development
Procedures Ordinance
1. FINDINGS OF FACT:
A. LOCATION: The subject property is located at 56856 Enterprise Drive, Sunriver,
and is further identified as Tax Lot 490000 on Deschutes County Tax Assessors
Map 420-11-05D. (The previous Tax Lot number was 1900.)
TA -96-7
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0155-2908
B. ZONING: The subject property -is within the Multiple Family Residential District of
the Sunriver Planned Community Zone (PC -RM), and is designated Planned
Community on the Deschutes County Comprehensive Plan. The property is further
identified in the Sunriver Master Plan as the "RM(12)" area.
C. SITE DESCRIPTION: The subject property consists of approximately four acres
and is relatively level. It is partially developed with 56 condominium units, parking
areas, landscaped areas and other amenities. The undeveloped southern portion of
the subject property contains mainly native vegetation. The property is bounded by
Enterprise Drive on the north, vacant forest land on the south and industrially -
designated properties on the east and west. The subject property is located within
the Sunriver Business Park.
D. SURROUNDING LAND USE: Within the Sunriver Business Park are RM -
designated lands, a parcel to the north designated Community Property (CP) and
developed with a school, and a number of parcels designated Industrial (1). The
Business Park has few typically industrial uses. The majority of the park has
developed in a more commercial manner. Businesses include restaurants, real estate
offices, convenience stores, a gas station and a recreational equipment store.
To the north and west of the Business Park is the Sunriver Resort developed with a
mixture of single-family and multi -family residential uses, commercial uses and
resort amenities (e.g., golf course, tennis courts, bike trails). Sunriver Resort is
zoned Planned Community (PC). Specific areas (districts) within the PC are
designated for various types of uses.
The Crosswater residential/golf community lies to the west and south of the subject
property across the Deschutes River. Beyond the residential and resort
developments are larger parcels which are zoned for forest uses. Much of the
outlying area is within the Deschutes National Forest. The primary roads providing
access to the surrounding area are Highway 97, Spring River Road and South
Century Drive.
E. PROPOSAL: The Sunriver Master Plan describes the subject property as follows:
'RM -(12): Contains 4 acres and is located along the south boundary if
the business park. This area is to be for apartment houses and is to take
the place of the Abbot House apartments which had been adjacent to the
Country Mall. The density of this area shall not exceed that of the density
allowed in the `RM' District of the `PC' zone. This area is designated for
apartment dwellings for employees of Sunriver."
The applicant is requesting two amendments to this paragraph to allow the
development of condominiums which may be sold and/or rented to persons other
than Sunriver employees. Specifically, the applicant seeks to remove the language
that restricts the area to "apartment houses," and to substitute language providing
that the area may include "multi -family dwellings, including condominiums
developed as multi -family dwellings." In addition, the applicant seeks to remove the
language that "designates" the RM(12) area for apartment dwellings for employees
TA -96-7
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0155-2909
of Sunriver, and to substitute language stating this area "will assist in meeting the
need" for apartment dwellings for employees of Sunriver.'
F. PUBLICIPRIVATE AGENCY NOTICE: The Planning Division sent notice of
the proposed text amendment to a number of public and private agencies and
received responses from the Deschutes County Public Works Department and
Property Address Coordinator and from the Sunriver Owners Association (SROA).
These comments are set forth verbatim at pages 3-4 of the Staff Report and are
incorporated by reference herein.
G. PUBLIC NOTICE AND COMMENTS: The Planning Division mailed written
notice of the proposed text amendment to the owners of property located within 250
feet of the subject property. Additionally, notice of this proposal was published in
the newspaper (The Bulletin) on Sunday, June 23, 1996.
H. PROCEDURAL HISTORY: The subject property has had several previous land
use actions:
1. File #SP -89-35, an approval of a site plan to construct 56 apartment units
and associated parking areas. These units are the 56 existing units on the
subject property.
2. File #SP -91-38, an approval to construct 32 additional apartment units.
This permit approval was extended and ultimately the permits expired. The
units were never constructed. Completion of these units would have resulted
in 88 units which is the maximum density that would be permitted on the
subject property.
3. File #SP -93-1, a second approval to construct 32 additional units on the
subject property. This permit also expired and the units were not
constructed.
4. File #SP -95-16 and #FPA -95-34, an approval to convert the 56 apartment
units to condominium ownership.
5. File #SP -95-52, an approval of a site plan to construct a pool, spa, laundry
facility and associated amenities on the subject property.
1 Ordinance No. 82-043, which originally adopted the PC Zone and the Sunriver Master
Plan, includes the following finding:
"15. Amendment of a Development Plan:... The comprehensive plan designation
for Sunriver is `planned community.' It would not be appropriate to require an
amendment to a development plan for Sunriver to be a comprehensive plan change.
Rather, it should be in the nature of a zone change. Therefore, the Board finds that
the appropriate criteria for considering an amendment of development plan would be
criteria for a zone change rather than criteria for a comprehensive plan change.'
Consequently, the applicant has proposed a zone change/text amendment.
TA -96-7
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L LEGAL LOT: The subject property is a legal Lot of Record created through a
partition (File 4MP-83-2).
III. CONCLUSIONS OF LAW:
A. Preliminary Issues:
Effect of Previous Condominium Conversion Approval.
FINDINGS: The applicant questions whether the proposed zone change/text amendment
to the Sunriver Master Plan is necessary in light of the county's previous approval in SP -95-
16 of a condominium conversion for the entire subject property, including the portion of the
property on which the applicant proposes to construct 32 additional condominium units.
The applicant argues this approval had the effect of authorizing the development of these
additional condominium units. However, the applicant's Burden of Proof states the subject
zone change/text amendment application was submitted because:
"[wJhen the Applicant conferred with the Deschutes County Planning Division
about its plans, the applicant was advised by the county that `the 1995 approval of
the condominium conversion was in error and that it was the County's position that
the Sunriver Master Plan would prevent the Applicant from building 32 additional
condominium apartment units on the subject property.
In response, staff argues the condominium conversion approval, although it covered the
entire subject property, was limited to approving the conversion to condominium ownership
of the 56 existing units, and that no additional development on the vacant portions of the
property was approved. The decision approving the condominium conversion specifically
states "[n]o additional construction or physical changes to the site are proposed as part of
this application." 2
Condominium conversions are governed by ORS Chapter 100: as well as Chapter 17.32 of
the county's subdivision ordinance. However, a condominium is a form of ownership -- not
a land use. Probably for this reason the subdivision ordinance establishes no substantive
standards for the county's approval of a proposed condominium conversion. Rather, it
merely sets forth the circumstances under which the chapter is applicable and the
procedures for submitting an application.
The condominium conversion application in SP -95-16 included a condominium plat
showing the entire subject property and a condominium declaration identifying the portions
of the subject property ("Nonwithdrawable Variable Property Y and Z") as areas intended
for future development of additional condominiums. It is on these areas that the applicant
proposes to develop 32 new condominium units. However, the Hearings Officer concurs
with staff that the county's approval of the condominium conversion with these "reserve"
areas did not approve any proposed future development of them. Rather, it simply approved
a change of ownership of the entire subject property, signifying that: 1) the existing 56 units
were converted to condominium ownership; and 2) that any future development of the
"reserve" portions would be subject to the condominium form of ownership.3
2 The county's file for SP -95-16 is included as a part of this record.
3 No appeal was filed from the county's decision approving the condominium conversion
of the subject property in SP -95-16. Neither the Sunriver Owners Association or any other
interested party challenged the conversion of the existing rental units to condominium
ownership on the basis of the Sunriver Master Plan provisions at issue here.
TA -96-7
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For the foregoing reasons, the Hearings Officer agrees with staff that there is nothing in the
county's approval of the condominium conversion for the subject property that approved
the applicant's proposed development of 32 additional condominium units on the "reserve"
areas.
2. Timingof f Proposed Zone C;hangel ext An
FINDINGS: Sunriver Resort Limited Partnership (hereafter "Sunriver Resort') objects to
the applicant's proposal on the grounds that any amendment to the Sunriver Master Plan
should be addressed when the entire master plan is reviewed and revised in accordance with
the Unincorporated Communities Rule recently adopted by the Land Conservation and
Development Commission (LCDC). In a letter dated July 23, 1996, from James E. Pavisha,
Director of Development, and submitted into the record, Sunriver Resort asserts the county
has agreed to require implementation of this new rule before "any project is proposed that is
inconsistent with the current Sunriver Master Plan." (Emphasis added.)
The Hearings Officer finds Sunriver Resort's objection is without merit. In the first place,
whether the applicant's proposal is inconsistent with the Sunriver Master Plan has not been
established and is the question before me in this matter. Second, the record indicates the
Unincorporated Communities Rule does not require the county to submit a new plan for
Sunriver until January 1, 1998. Finally, there is nothing in Title 18 or in Title 22, the
procedures ordinance, which permits me to deny the applicant's request simply because the
Sunriver Master Plan may be revised at a future date.
3. Nature of Sunriver Master Plan Language Concerning RK12) Provertv.
The principal issue presented in this matter is whether the applicant's proposal to construct
32 additional condominium units that may be sold or rented to persons other than Sunriver
employees is prohibited by the Sunriver Master Plan "RM(12)" designation of the property.
Ordinance No. 82-043, by which the Deschutes County Board of Commissioners adopted
the Sunriver Master Plan and the PC Zone, contains the following findings concerning the
RM(12) property:
"RM 12 : RM(12) is located adjacent to the Business park I and contains four
acres. The Board finds that this area is suitable for apartment houses to take the
place of the Abbott House Apartments which are adjacent to the Country Mall.
This area would be appropriate for those persons who work in Sunriver and
especially those persons that are employed as part of the resort operation. The
Board finds that the density of development should not exceed that allowed in
the RM District of the PC zone which is one unit per 2,000 square feet." (Emphasis
added.)
The emphasized language states the Board's finding that the RM(12) area is "suitable" and
"appropriate" for apartments for persons who work in Sunriver, but does not find it
necessary to restrict the use of this property for such apartments.
In contrast, the Sunriver Master Plan language adopted simultaneously with the Board's
findings provides:
"RM -(12): Contains 4 acres and is located along the south boundary of the business
park. This area is to be for apartment houses and is to take the place of the Abbot
[sic] House apartments which had been adjacent to the Country Mall. The density
TA -96-7
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of this area shall not exceed that of the density allowed in the `RM' District of the
`PC' zone. This area is designated for apartment dwellings for employees of
Sunriver." (Emphasis added.)
The above -emphasized language apparently has been read by staff, the applicant and the
SROA to actually restrict use of the RM(12) area for apartment dwellings for Sunriver
employees. However, neither staff nor the applicant has presented any legislative history
explaining the difference between the Board's findings concerning this area and the
language adopted in the Sunriver Master Plan. In its objection to the applicant's proposal,
the SROA submitted the following comments:
"SROA knows that the zoning ordinance allows condominiums within the RM
District. However, the purpose of the Master Plan is to further restrict the use of
particular parcels and this is one of those parcels. Since there are no apartments
anthin
Sunriver, this site was so designated to provide housing needs for employees
within the Sunriver area. It was never intended to allow housing other than
apartments within the RM -12 parcel." (Emphasis added.)
The Hearings Officer fins these comments indicate the intent of the master plan language
concerning the RM(12) area was: 1) to provide for the housing needs of Sunriver
employees; and 2) to restrict the type of housing to apartments. Therefore, I find the
applicant's proposal to construct 32 additional condominium units on the subject property is
entirely consistent with the Sunriver Master Plan language concerning the RM(12) area and
its apparent intent.
As discussed in detail in the findings below, the Hearings Officer finds there is nothing in the
comprehensive plan, the Sunriver Master Plan or the zoning ordinance that prohibits
apartments from being held in condominium ownership. In addition, I find the applicant has
demonstrated its proposal will provide for the housing needs of persons employed in
Sunriver by creating affordable housing that may be purchased or rented by persons with
incomes in the range of those earned by Sunriver employees.
For the foregoing reasons, and based upon the findings below, the Hearings Officer finds
the applicant's proposed zone change/text amendment to the Sunriver Master Plan is not
required for the applicant to construct 32 additional condominiums on the subject property.
However, I find the proposed amendment will serve to clarify what was intended by the
master plan language concerning the RM(12) area and to demonstrate its consistency with
the comprehensive plan and the zoning ordinance.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning
Ordinance
1. Chapter 18.108, Planned Community - PC Zone
a. Section 18.108.020, Districts Permitted in a PC Zone. In a PC
Zone, the following districts shall be established subject to the
terms of the Master Plan.
B. Multiple Family Residential - RM District.
a. Permitted Uses. The following uses and their
accessory uses are permitted outright:
2. Multiple -family dwellings, apartment houses
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and dwelling groups including townhouses and
condominiums.
2. Chapter 18.04, Title, Purpose and Definitions
a. Section 18.04, Definitions. As used in this title, the following
words and phrases shall mean:
Apartment. See Dwelling, multiple -family.
Condominium. A type of ownership defined by state statute
as the land, if any, whether leasehold or in fee simple, and
whether contiguous or not contiguous; and buildings, im-
provements and structures on the property; and any ease-
ments, rights and appurtenances belonging to the property
which are submitted to the provisions of ORS 100.050 to
100.625.
Dwelling, Multi -Family. A building or portion thereof designed
for occupancy by three or more families living independently
of each other.
FINDINGS: As discussed above, the applicant has requested a zone changeltext
amendment to revise the Sunriver Master Plan text governing development within the
RM(12) area to remove the term "apartment houses" and to substitute the phrase "multi-
family dwellings, including condominiums developed as multi -family dwellings." The
applicant argues that under the above -quoted zoning ordinance definitions this amendment
is actually unnecessary because the additional proposed condominiums meet the definition
"apartment" underllnecessarily the definition of ementa
ouses" in
the Sunnier MasteryTherefore, he applicantargues, hee s structures are permitted
use on the subject property. The Hearings Officer agrees.
In Kaady v City of Cannon Beach, 28 Or LUBA 509 (1995), the petitioner challenged the
city's determination that the Tolovana Inn condominiums are a "motel" exempt from the
city's short-term rental regulations. LUBA upheld the city's determination that there was
nothing in the city's zoning code preventing a structure held in condominium ownership
from being a motel if it otherwise meets the definition of a motel. Similarly, the Hearings
Officer finds there is nothing in Title 18 or in he Sunriver Master Plan that prohibits
structures in condominium ownership from meeting the definition of a multi -family
dwelling. Consequently, I find the applicant's proposal to substitute the phrase "multi -family
dwellings, including condominiums developed as multi -family dwellings" for the term
"apartment houses" will clarify what is already permitted in the RlA(12) area. However, I
agree with the applicant that this change is unnecessary inasmuch as multi -family dwellings
are a permitted use in the RM Distriv ind there is nothing in the text of the Sunnier Master
Plan that indicates "apartment houses cannot be held in condominium ownership.
The issue of whether the applicant's proposal to develop apartments in condominium
ownership that may be sold or rented to persons other than Sunnier employees is consistent
with the Sunriver Master Plan is discussed in the findings below.
3. Chapter 18.108, Planned Community - PC Zone
a. Section 18.108.060, Amendment of a Development Plan.
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C. Standards for Approval. Any amended development plan
shall be in conformance with this section, the existing sub-
division ordinances of the county and the concept of the
planned community for which change is being requested.
FINDINGS: The Hearings Officer finds that review of the proposed zone change/text
amendment has been based upon the applicable criteria set forth in this section and
discussed in detail in the findings below.
4. Chapter 18.136, Amendments.
a. Section 18.136.030, Rezoning Standards.
The applicant for a quasi-judicial rezoning must establish that
the public interest is best served by rezoning the property.
Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan
and the change is consistent with the Plan's introductory
statement and goals.
FINDINGS: The applicant correctly notes that not all plan policies constitute approval
criteria for a plan amendment or zone change. Even those plan policies written in terms of
directives to local governments do not necessarily apply to quasi-judicial land use decisions
such as the applicant's proposal unless the plan language indicates an intent to apply the
policies to a particular type of land use decision. Friend of Indian Ford v. Deschutes
Coun LUBA No. 95-247 (May 30, 1996). In fact, most plan policies are simply
aspirational statements intended to be guidelines for development rather than criteria
applicable to individual land use applications.
Nevertheless, this zone change approval criterion requires the Hearings Officer to determine
that the applicant's proposal is "consistent with" the plans' goals. Therefore, I make the
following findings concerning the proposal's consistency with plan provisions that appear to
be applicable to the proposed text amendment:
GOALS AND POLICIES
Rural Development
Goals:
1. To preserve and enhance the open spaces, rural character, scenic
values and natural resources of the County.
FINDINGS: Although the Sunriver Planned Community is in many ways an urban
development, nevertheless it is located outside the urban growth boundary of any
incorporated city in Deschutes County, and therefore for purposes of the comprehensive
plan is considered "rural development." The RM district within the Sunriver PC zone
provides for a variety of housing types permitted outright. As discussed in the findings
above, the applicant's proposal would clarify that multi -family dwellings such as "apartment
houses' in condominium ownership are a type of housing permitted under the master pian.
Approval of the applicant's proposal will not result in development of property that is
presently serving as or is intended to remain as open space. Therefore, the Hearings Officer
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finds the rural character, scenic values and natural resources of the county will be preserved
by the applicant's proposal.
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: As discussed above, the subject property is located within the Sunriver
Planned Community. As such, the applicant's proposed text amendment will not result in
additional development over and above that which was anticipated for the affected area.
That is because the master plan provides that the maximum density for the subject property
is 88 units whether developed as apartment units or condominium units. A portion of the
subject property is already developed. The record indicates that facilities and services to
support the applicant's proposed development are already in place. The record also
indicates the Sunriver Business Park is served by the Sunriver community water and sewer
systems, therefore requiring no expansion of those service boundaries. For these reasons,
the Hearings Officer finds the applicant's proposal is consistent with this plan policy.
3. To provide for the possible long term expansion of urban areas
while protecting the distinction between urban (urbanizing)
lands and rural lands.
FINDINGS: The applicant's proposed text amendment would simply clarify that multi-
family dwellings, including apartment houses, in condominium ownership are permitted in
the RM District and in the RM(12) area. In addition, it would clarify that condominiums
existing and developed on the subject property may be sold or rented to persons other than
Sunriver employees. As such, the applicant's proposal does not include any plans for
expanding urban areas within Deschutes County and is consistent with the Sunriver PC
Zone designation of the subject property for residential development. Consequently, the
Hearings Officer finds the applicant's proposal, by clarifying that multi -family dwelling units
in condominium ownership are allowed in the RM District and in the RM(12) area, will
contribute to meeting the need for rural residential development, thus maintaining the
distinction between urban levels of development and rural lands.
Policies:
Rural development policies are meant to pertain to all non -urban areas
(areas outside urban growth boundaries) and are the basic policies to
be followed in guiding rural growth.
FINDINGS: The Hearings Officer finds the applicant's proposal to allow condominium
development will allow a housing type which is permitted outright under the zoning
ordinance. The proposal will not create new parcels, increase densities in rural areas or
allow any other type of development that is contrary to the policies of this section.
Economy
FINDINGS: The Hearings Officer concurs with staffs finding that most of the specific
goals in the "Economy" section of the plan are not directly applicable to the applicant's
request. I also agree that the following policy does apply:
Policy:
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2. Private commercial activities consistent with other County
policies which enhance tourism shall be encouraged by the
County.
FINDINGS: The applicant's proposed text amendment would permit the development of
condominium units that could be sold or rented to persons including, but not limited to,
Sunriver employees. I concur with staffs conclusion that the proposal therefore is a
commercial endeavor that is linked to the housing component of the plan. That is because,
as is the case in many resort communities, condominiums are often owned by persons from
out of the area who use the residence as a "vacation home." Thus, by offering housing
options such as this, the portion of the housing economy that relies on tourism is further
fueled.
Notwithstanding this fact, the record indicates that many condominium units are rented on a
long term basis by their owners and function more in the manner of what is considered a
typical apartment. Many renters of these "condominium apartments" are the seasonal
employees who also contribute to the tourist economy of the county. Therefore, the
Hearings Officer finds approval of the applicant's proposal will result in continued sales of
individual condominium units, thus fulfilling the intent of this policy while not limiting the
available housing options to seasonal employees.
Housing
Goals:
1. To provide adequate number of housing units at price ranges
and rent levels commensurate with the financial capabilities of
local households.
2. To allow flexibility in housing location, type and density in
Deschutes County.
FINDINGS: The applicant argues this goal is not relevant to review of its proposed zone
change/text amendment under Stewart v City of Brookings, LUBA No. 96-001 (June 27,
1996). In that case, LUBA determined that a city comprehensive plan policy worded
similarly to the above -quoted Deschutes County comprehensive plan goal was merely an
"aspirational declaration" and not an approval criterion applicable to review of an
application to convert a single-family residence into a public kindergarten. The Hearings
Officer concurs with the applicant's analysis that Deschutes County's housing goal language
is the functional equivalent of the Brookings provisions at issue in Stewart. Therefore, I find
this goal cannot be read to prohibit the applicant's zone change/text amendment proposal.
In any event, the Hearings Officer finds the applicant's proposal is consistent with this
comprehensive plan goal. The applicant's supplemental Burden of Proof materials provide
extensive information concerning the need for and availability of affordable housing in the
Sunriver area. The applicant's evidence indicates the existing condominium units on the
subject property are selling at prices ranging from $34,500 to $52,500 per unit, that the
proposed additional 32 units would be sold for prices in a slightly higher but similar range,
and that the lower-priced units likely would rent for approximately $400 per month. The
applicant's evidence also indicates the average annual wage for Sunriver employees is
approximately $17,000 and that this wage is comparable to the average tourist -industry
wage in Deschutes County. The applicant's evidence indicates there is a shortage of housing
units in the Sunriver area (including the Sunriver, Spring River, and La Pine areas) priced
under $80,000, as well as a shortage of rental units priced at below $400 per month.
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0155`2917
Based upon the applicant's evidence, the Hearings Officer finds approval of the applicant's
proposal will allow the provision of additional dwelling units at price ranges that are within
the financial capabilities of local households -- and in particular tourist -industry employees
of Sunriver.
Public Facilities
Goal:
1. To pian and develop a timely, orderly and efficient arrangement
of public facilities and services to serve as a 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 existing and
proposed land uses.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the
applicant's proposal will not result in the need to expand existing public facilities or services
or any new public facilities or services. Additionally, the applicant's proposal will not cause
a reduction in the level of service of such facilities to surrounding properties. The record
indicates all existing services and methods of providing such services are available and
adequate to serve the proposed use.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: The purpose of the Planned Community Zone is set forth in Section
18.108.010 as follows:
"Purpose of the Planned Community Zone is to provide standards and review
procedures for the development of Planned Communities in Deschutes County.
The Hearings Officer finds the applicant's proposed change in the Sunriver Master Plan
language is consistent with the purpose and intent of the Planned Community Zone because
the proposal will allow multi -family dwellings in condominium ownership in the RM -12 area
in which the subject property is located. And, as discussed in the findings above, I find the
applicant's proposal also is consistent with the master plan designation of the subject
property by providing condominium apartments at price/rent ranges that will provide for the
housing needs of persons employed in Sunriver.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following
factors:
a. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: As discussed in the findings above, the subject property is in an area planned
for multi -family development and with a maximum density on the subject property of 88
units. All necessary public facilities and services are available and provided to the site.
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0155-2918
b. The impacts on surrounding land use will be consistent
with the specific goals and policies contained within the
Comprehensive Plan.
FINDINGS: The Hearings Officer has previously found the applicant's proposal is
consistent with the applicable goals and policies of the comprehensive plan. In addition, as
discussed in the findings above, the subject property is planned for a maximum density of 88
units. Therefore, the applicant's proposal is consistent with the density and impact planned
for the subject property. Moreover, n development additional
sdcondominium
the property will be subject to lareview to assure hepropocondominiums are
compatible with the surrounding area.
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:
1. Mistake. The applicant argues the inclusion of language in the Sunriver Master Plan
apparently limiting development of the RM(12) area to apartments for Sunriver employees
was a mistake because -- in hindsight -- it could result in discrimination against persons
protected by the Fair Housing Act. The Hearings Officer is not persuaded that a mistake in
current zoning can be established by the subsequent adoption of a law that may prohibit
zoning restrictions. However, as discussed below, I find the original master plan language
may have been a mistake for other reasons.
The Board of County Commissioners' findings in Ordinance No. 82-043 adopting the
Sunriver Master Plan and the PC Zone do not elaborate on the perceived need for employee
housing in the Business Park. However, the Hearings Officer believes the Board and other
interested parties were concerned that without the RM(12) designation for employee
housing the Sunriver Resort -- which in 1982 already had been substantially developed as a
destination resort with many "high-end" houses -- Sunriver would not have any affordable
housing for its employees at a reasonable distance from their workplaces.
Notwithstanding the Board's and Sunriver Resort's legitimate concerns about the adequacy
of affordable employee housing, the Hearings Officer finds it was a mistake to adopt the
restrictive language contained in the RM(12) provisions. I concur with staff's analysis that
as a matter of public policy it is not appropriate for a local government to use
comprehensive plans and zoning ordinances to restrict housing in a particular area to a
particular class of people. Rather, it is appropriate to require, as Statewide Land Use
planning Goal 10 mandates, that local government plans and zoning ordinances assure the
provision of a variety of housing types and costs within in the community.
2. Chane of Circumstances. The applicant argues there have been several changes in
circumstances justifying the proposed zone change/text amendment. Each of these
circumstances is discussed in the findings below.
a The county's previous approval of the condominium conversion for the subject property
in S_
The applicant argues the county's condominium conversion approval, which commits the
entire subject property to condominium ownership, justifies the proposed zone change/text
amendment for the following reasons:
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0155-02,919
.[T]he change of the apartment dwellings to condominiums will affect the
function of the apartments... As a result of that approval and State Real Estate
Commissioner approval, the Applicant irrevocably committed the apartments and
the lot upon which the apartments sit to condominium use. At this time, the only
development that may occur on the subject property is the construction of up to
32 condominium apartment units. In such a setting, it is irrelevant what the affor-
dability or function of a condominium is as compared to an apartment dwelling
because no apartment dwellings can or will be built under any circumstances ...
Without approval to build new units in the reserve area, the area will become
common property owned by all of the condominium owners, and no new units
will be available for use as rentals." (Emphasis in original.)
The Hearings Officer agrees with the applicant's analysis. In particular, I find the legal
effect of the condominium conversion is to preclude the development of anything but
condominium units, which under Oregon law may be sold individually and which sale
cannot legally be limited to any particular class of persons. This change in ownership type
clearly was not contemplated when the Sunriver Master Plan was adopted, and likely makes
the challenged master plan language designating the subject property for employee
apartments unenforceable.
As discussed above, the applicant submitted evidence analyzing the supply of affordable
housing in Sunriver and surrounding areas. That evidence indicates there is a considerable
inventory of affordable housing in the communities surrounding Sunriver. The applicant's
evidence also indicates that even marketing the apartments to Sunriver employees, both the
present and former owners of the subject property have been unable to maintain sufficient
occupancy of the 56 existing apartment units throughout the year to break even financially.
The Hearings Officer concurs with the applicant that the high vacancy rate -- 13 to 34
percent -- for the existing 56 units is evidence of lack of demand for rental housing within
the Sunriver Business Park.
3. The ridening and im rovement of Hi hwa 97 between Bend and Sunriver.
The Hearings Officer concurs that the improvements to the section of Highway 97 between
Bend and Sunriver constitute a change in circumstances having an impact on the need for
employee housing in Sunriver. These improvements have made travel between Bend and
Sunriver considerably faster and safer during the winter months. The record indicates that
most permanent Sunriver employees live in housing in the area outside of Sunriver due to
the high cost of homes in Sunriver, but that most seasonal Sunriver employees live in Bend
and commute to Sunriver. I fine a fromBend improvements thus reducing �hehave
demandl for encouraged
seasonal employees to comm designated.
employee housing for which the RM(I2) area was g
4. The develoment of the Sunriver Business Park with few industrial uses
The applicant argues that since the Business Park has not developed as an industrial park as
planned -- with industrial uses requiring large numbers of employees needing housing -- but
rather as a commercial center. the need for Sunriver employee housing has diminished. The
Hearings Officer believes there may be some validity to this argument, but that the record
does not contain sufficient information for me to conclude that industrial uses would have
more employees needing local housing than commercial uses.
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01.5
5. The 1988 a)using Act to include protection from discrimination
against ersons with handicaps.
The applicant argues at length that if the Sunriver Master Plan provisions governing
development of the RM(12) area are read to limit development to apartments for Sunriver
employees, they may violate the Fair Housing Act to the extent such a limitation has the
effect of discriminating against persons with handicaps or who are in other protected
classes. The applicant argues the 1988 amendment to the Fair Housing Act to extend its
protection to persons with handicaps constitutes a change in circumstances since the
Sunriver Master Plan was adopted. The Hearings Officer concurs.
However, as discussed in the findings above, the Hearings Officer agrees with staff that
changes in the Fair Housing Act are of less significance in this case than the larger policy
issue presented by the master plan provisions governing development of the RM(12) area.
That issue is whether a local government's comprehensive plan and zoning ordinance
should ever be used to designate areas for housing particular classes of people -- as opposed
to requiring that housing of a variety of types and costs be provided. I find that the Sunnver
Master Plan's provisions apparently restricting development of the RM(12) area to Sunriver
employee rental housing was not appropriate and should be modified.
For the foregoing reasons, the Hearings Officer finds the applicant has met the burden of
proving one or more changes in circumstances justifying the proposed zone change/text
amendment.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer
hereby APPROVES the requested zone change/text amendment to the Sunriver Master
Plan, to read as follows:
"RM(12): Contains 4 acres and is located along the south boundary of
the business park. This area is to be for multi -family dwellings, including
condominiums developed as multi -family dwellings, and is to take the place
of the Abbott House apartments which had been adjacent to the Country
Mall. The density of this area shall not exceed that of the density allowed
in the `RM' District of the `PC' Zone. This area will assist in meeting the
need for apartment dwellings for employees of Sunriver."
Mailed this _f ri day of September, 1996.
1;�� 1741. 21_ +
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL 10 DAYS AFTER MAILING, UNLESS
APPEALED.
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