1996-42890-Ordinance No. 96-049 Recorded 11/19/19969F-42890
REVIEWED
W�
LEGAL CHNSEL _.
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending PL -20, the Deschutes * ,_0
County Comprehensive Plan as amended, changing
the Plan Map Designation for Certain Property
and Declaring an Emergency.
ORDINANCE NO. 96-049
WHEREAS, Deschutes County has initiated a Plan Amendment to change the Plarri`Desig Ation on
five acres of a 120 -acre parcel from Surface Mining to Forest; and
WHEREAS, the owner of the property, the Oregon Department of Transportation, supports the
proposed change in designation; and
WHEREAS, the proposed Plan Amendment will not reduce the quantity of aggregate resource
material protected under Goal 5 on the subject property; and
WHEREAS, the proposed amendment will facilitate the development of a public water system for
the La Pine Community, now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. Adoption of Map Amendment. PL -20, the Deschutes County Comprehensive
Plan, as amended, is further amended to redesignate a 5 -acre area, described in the attached Exhibit A
and shown on Exhibit B, attached hereto and by this reference incorporated herein, from Surface Mining
to Forest Use.
Section Findings. To adopt as its decision and findings the Findings and Decision of the
County Hearings Office dated June 13, 1996, relating to Plan Amendment application PA -96-4 and Zone
Change application AC -96-5, marked as Exhibit C, attached hereto and by this reference incorporated
herein.
Section 3. Repeal of Ordinances as Affecting Existing Liabilities. The repeal, express or
implied, of any ordinance, ordinance provision, code section, or any map or any line on a map
incorporated therein by reference, by this amending ordinance shall not release or extinguish any duty,
condition, penalty, forfeiture, or liability previously incurred or that may hereafter be incurred under such
ordinance, unless a provision of this amending ordinance shall so expressly provide, and such ordinance
repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or
prosecution for the enforcement of such duty, condition, penalty, forfeiture, or liability, and for the
purpose of authorizing the prosecution, conviction and punishment of the person or p rsons who
previously violated the repealed ordinance. UM
PAGE 1 - ORDINANCE NO. 96-049 (November 18, 1996) 14-CROFJ�p 1996
NOV 2 1996
0156-0402
Section 4. 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 1 $ day of /' /T. , 1996.
ATTEST:
/"")- , r� , z2r�-
Recording Secretary
OF COUNTY COMMISSIONERS
COUNTY, OREGON
N
BAI&V H. SLAUGHTER, Commissioner
ROAERT L. NIPPER, CAmInissioner
PAGE 2 - ORDINANCE NO. 96-049 (November 18, 1996)
Ord�na re. tJo. 96 -oy 9 1.11 _ t1��
TYE ENGINEERING &SURVEYING, INC.
725 NW Hill, Bend, Oregon 97701 (541) 389-6959 • Fax (541) 385-INW =
LBOAL DESCRIPTION
A tract of land located in the Southeast one-quarter of Section 18,
Township 22 South, Range 11 Eant of the Willamette Meridian,
Deschutes County, Oregon, more particularly described as follows:
Beginning at a 2-1/2 inch iron pipe with a 2-1/2 inch diameter
brass cap for the South one -sixteenth on the east line of said
Section 181 thence North 89"50*47K Went along the east -went -
centerline of the southeast one-quarter of said Section 18 a
distance of 1073.88 feet to the TRDB POINT OP DMIN TING for the
tract of land to be herein described: thence continuing along said
east -west centerline North 89.50,147" West a distance of 1000.00
feet; thence leaving said centerline at right angles North 0 09'13"
Bast a distance of 217.80 feet; thence parallel to the said east -
want centerline of the southeast one-quarter South 89*50047" East
a distance of 1000.00 feet; thence at right angles South 0609.13"
Went a distance of 217.80 feet to the TROE POINT or
BEGINNING and
terminus of this description.
Containing 8.00 acres.
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BEFORE THE DESCHUTES HEARINGS OFFICER
FILE NUMBERS:
APPLICANT:
PA -96-4 & ZC-96-5
Deschutes County
PROPERTY OWNER: Oregon Department of Transportation
P.O. Box 5309
Bend, Oregon 97708-5309
14 7
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REQUEST: Deschutes County is requesting a plan amendment and zone
change from Surface Mining (SM) to Forest (FI) for five acres
of a 120 -acre parcel.
STAFF REVIEWER: David B. Leslie, Associate Planner
HEARING DATE: June 4, 1996
RECORD CLOSED: June 11, 1996
L APPLICABLE CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning
Ordinance
" Chapter 18.16, Surface Mining Zone - SM
" Chapter 18.36, Forest (Fl) Zone.
* Chapter 18.136, Rezoning Standards.
B. Title 22 of the Deschutes County Code, the Development Procedures
Ordinance
C. The Deschutes County Year 2000 Comprehensive Plan
D. Oregon Administrative Rules, Chapter 660, Division 12, Transportation
Planning.
E. Statewide Planning Goals
II. FINDINGS OF FACT:
A. LOCATION: The subject property is located to the north of Finley Butte Road,
about 2 miles east of La Pine. The property is identified as Tax Lot 300 on
Deschutes County Assessor's Map #22-11. The proposed plan amendment/zone
change affects five acres of the subject property located on the southern boundary.
B. ZONING AND PLAN DESIGNATION: The entire parcel„is designated on the
comprehensive plan map and zoning map for Surface Mining (SM). This parcel is
also identified as Surface Mining Site No. 529 on the County's Goal 5 inventory of
aggregate resource sites.
C. SITE DESCRIPTION: The entire parcel encompasses 120 acres. The north -
south dimension is approximately one-quarter mile and the east -west distance is
PA -96-4 & ZC-6-5
Page 1
approximately 4,060 feet in length. The specific area of proposed change has not
been surveyed or legally described for the purposes of creating a separate legal
parcel, but will encompass five acres in the north half of the southeast quarter
(N1/2, SEIA). The entire 120 -acre parcel is identified on Attachment A to the
Staff Report, and the five -acre parcel proposed for the zone change and plan map
amendment is shown on Attachment B to the Staff Report. These exhibits are
incorporated by reference herein.
The subject property is identifiable on topographic maps as a generally level area
along the southern boundary, near the center of the southern property line.
Natural forest vegetation occurs throughout the property and a BPA power line
crosses the parcel near the eastern boundary.
SM Site #529 includes an active mining operation conducted by the Oregon
Department of Transportation (ODOT.) The material excavated includes gravels
from the interior portion of the parcel. This material was deposited within a
topographically lower part of the parcel that forms a gully which runs the length of
the parcel in an east -west direction. The area used for ming operations, including
excavation, processing and stockpiling, extends for nearly one half mile in an east -
west direction, but the southern and northern borders of the parcel have been left
in their natural state.
D. SURROUNDING LAND USE: The lands surrounding this parcel are located in
the Deschutes National Forest. The nearest private lands include a surface mining
site on Finley Butte about 1.5 miles southeast, and the La Pine Rural Industrial
Park approximately 1.25 miles to the west.
E. PROPOSAL: This application is for a plan amendment and zone change for five
acres out of the total 120 -acre parcel. If the plan map and zone changes proposed
from Surface Mning to Forest are approved, ODOT intends to convey ownership
of the five acres in question as a separate legal parcel to a private party to develop
several wells as a source of ground water for the community of La Pine. (To create
a legal parcel a partition will also have to be approved. In addition, a conditional
use permit and site plan review will be required for development of the property.)
F. PUBLIC AGENCY/PUBLIC COMMENTS: The Planning Division sent written
notice of the proposed plan amendment and zone change to several public
agencies. The Planning Division also sent written notice of the proposal to the
owners of all property located within 250 feet of the subject properly. As all of the
surrounding property is within the Deschutes Nation Forest, this notice was sent
only to the USFS. The record indicates that comments were received in response
to these notices from ODOT and the Deschutes County Transportation Planner.
III. CONCLUSIONS OF LAW:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning
Ordinance
1. Chapter 18.16, Surface Mining Zone - SM
a. Section 19.16.020, Uses Permitted Outright
b. Section 19.16.030, Conditional Uses Permitted
PA -96-4 & ZC-6-5
Page 2
2. Chapter 18.36, Forest Use - F-1 Zone.
r-, o
a. Section 18.36.030, Conditional Uses Permitted.
M. Water intake facilities, related treatment facilities, pumping
stations and distribution lines.
FINDINGS: The record indicates the intended use of the five acre portion of the subject
property is a source of groundwater for the La Pine community. The Hearings Officer
finds this use is not permitted outright or conditionally in the SM Zone, but clearly falls
within the uses permitted conditionally in the F-1 Zone. Therefore, the proposed
amendments to the comprehensive plan and zoning maps from SM to Forest are consistent
with the ultimate use intended for this property.
2. 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 introductory statement to the comprehensive plan recognizes that
unincorporated rural areas such as La Pine will serve as population centers for Deschutes
County residents wishing to live in a more rural area. The plan recognizes that allowing
this growth pattern is efficient with respect to providing public facilities. Goal 2 in the
Rural Development chapter of the plan indicates that minimizing the cost of public
facilities is appropriate.
The record indicates the comprehensive plan was recently amended by Ordinance No. 96-
002 to designate La Pine as an Urban Unincorporated Community (UUC), in compliance
with Statewide Planning Goals 11 and 14. Exhibit B to this ordinance indicates that there
are 22 non -community water systems with 146 connections serving 1837 people in the
UUC area (formerly known as the La Pine Rural Service Center). The plan was amended
at the same time to recognize that the county is proceeding with a feasibility study for a
community water system because of the high risk of contamination of groundwater in La
Pine. Furthermore, the plan states, "Development of a municipal water system is necessary
to provide long-term assurance to the community that there will be an abundant supply of
quality drinking water. The issue of a quality water supply is a main concern for the
community."
The record indicates the proposed zone map change is intended to allow the development
of a public water system for the La Pine Community. This system would provide water for
domestic, industrial, commercial and safety (fire suppression) purposes. Policy #39 in the
plan, as amended, states that "The County shall support the La Pine Special Sewer Board
creating a water district." The proposed plan amendment and zone change will facilitate
the process of creating a community wide public water supply system.
Based on the foregoing information, the Hearings Officer finds the proposed zone change
is consistent with this criterion.
PA -96-4 & ZC-6-5
Page 3
01
,j '-063
(B) That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: As discussed in the findings above, the F-1 Zone allows for water intake and
distribution facilities as a conditional use. Uses permitted conditionally in this zone have
been determined to be consistent with the intent and purpose of the zone. Therefore, the
Hearings Officer finds the change to F-1 zoning for the subject property is consistent with
this criterion.
(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.
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 finds that for the reasons set forth below, this
application is consistent with this criterion.
The record indicates the La Pine basin is known for having a shallow groundwater table
with a high potential for contamination to the shallow aquifer underlying this region. The
Department of Environmental Quality (DEQ) and the Deschutes County Environmental
Health Division have documented on-going problems with regard to water quality. The
proposed re -zoning of the subject property to allow the development of a community
water system can provide substantial benefits to public health, safety and welfare of the La
Pine community.
The record indicates that the community water system to be developed on the subject
property will have its own distribution pipeline. Electricity is available from a Mid -State
Electric Cooperative line adjacent to Finley Butte Road. The water pipe would share the
easement in which this electric line exists. Access to the property may be provided by an
easement currently used by BPA to its power line or a separate easement dedicated to the
water facility area. Since Finley Butte Road is only about 250 feet south of the southern
boundary of the subject property the cost of developing access should be minimal.
Prior to development, the water intake and distribution facilities will need to be reviewed
under specific conditional use and site plan applications. However, the impacts anticipated
to be created by the proposed community water facility would be primarily visual after
construction of the facilities is completed. The record indicates that the groundwater wells
themselves will not be visible above ground, except for piping needed to convey water to
storage tanks. The record also indicates there would be very little activity on the property
since the facility will be fully automated. The storage tanks could be 60 to 80 feet high if
pressure is gained only from the "head" of the water being stored. However, the Staff
Report states, and the Hearings Officer concurs, that native trees are likely to significantly
screen this facility from nearby lands.
The record indicates that the five -acre parcel subject to this plan amendment/zone change
proposal does not contain any aggregate materials and was included within Surface
Mining Site #529 because the entire Tax Lot 300 was included within the site. The record
indicates the community water facility to be developed on the subject property will not
PA -96-4 & ZC-6-5
Page 4
156 -al, '16,
alter or interfere with the mining activity on the remainder of the property retained by
ODOT nor would any activity on adjacent Forest Service lands need to be altered in
manner to accommodate the proposed community water facility.
(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.
1. Mistake. The record indicates the subject property was originally zoned for forest use.
It was zoned for surface mining in 1990 as part of a county -wide process to identify and
zone mineral and aggregate sites under Statewide Land Use Planning Goal 5, discussed in
detail in the findings below. The record indicates the entire 120 -acre parcel, all of Tax Lot
300, was zoned for surface mining rather than identifying the particular portion of the tax
lot on which the aggregate resources were located. The "ESEE analysis" for Surface
Mining Site #529, of which the five -acre parcel subject to this application is a part, as well
as mining activity on the site, indicates there are no aggregate materials located in the
subject five -acre parcel.
The Hearings Officer finds the rezoning of the subject property to SM was not a mistake.
However, as discussed in the findings below, I find the mining of the 120 -acre parcel of
which the subject five -acre parcel is a part has demonstrated a change of circumstances
justifying the proposed rezoning.
2. Change of Circumstances. In addition to the circumstances discussed above, since the
subject property was rezoned to SM in 1990 the comprehensive plan has been amended to
recognize the La Pine WC. Plan policies support the establishment of a water supply
system which can deliver high quality water to residents in this region of the county.
Finally, state environmental quality agencies, the county and residents of the area are more
knowledgeable now than when the plan was adopted and the subject property was zoned
for surface mining about problems with groundwater quality in wells located in the La
Pine basin. In addition to information which has come to fight regarding the contamination
of groundwater wells in the La Pine area, the record indicates exploration wells drilled by
the La Pine Water Company, formed as a public utility to explore for and develop a
suitable water supply for the proposed Huntington Meadows subdivision, have shown that
the groundwater beneath the subject property can provide a reliable source of very high
quality water. (See Attachment C to the Staff Report). The Hearings Officer finds that the
above facts demonstrate a change in circumstances justifying the proposed zone change.
B. Oregon Administrative Rules, Chapter 660, Division 12, Transportation
Planning.
1. OAR 660-12-060, Plan and Land Use Regulation Amendments.
(1) Amendments to functional plan, acknowledged comprehensive
plans, and land use regulations which significantly affect a
transportation facility shall assure that allowed land uses are consis-
tent with the identified function, capacity, and level of service of the
facility This shall be accomplished by either:
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the
transportation facility;
PA -96-4 & ZC-6-5
Page 5
0156-0410
(b) Amending the TSP to provide transportation facilities
adequate to support the proposed land uses consistent with the
requirements of this division; or
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel and meet
travel needs through other modes.
(2) A plan or land use regulation amendment significantly affects a
transportation facility if it:
(a) Changes the functional classification of an existing or
planned transportation facility;
(b) Changes standards implementing a functional classification
system;
(c) Allows types or levels of land uses which would result in
levels of travel or access which are inconsistent with the
functional classification of a transportation facility; or
(d) Would reduce the level of service of the facility below the
minimum acceptable level identified in the TSP.
FINDINGS: As discussed in the findings above, the purpose of the proposed plan
amendment and zone change is to accommodate the construction of a water intake and
distribution facility on a portion of the subject parcel. The record indicates development of
the facility will require construction of wells, storage tanks and distribution lines. The
system will be fully automated after construction and water will be delivered via either a
pressurized or gravity distribution pipe. The record indicates there will not be an ongoing
need to access this site on a regular basis and the public will not have access to the site.
The proposed community water facility will impact only one transportation facility --
Finley Butte Road. The record indicates the only additional traffic on Finley Butte Road
will be generated by routine maintenance activities for the proposed community water
facility. Finley Butte Road is designated collector street on the county's transportation
plan with a design capacity of several thousand vehicle trips per day. Thus, this
transportation facility is capable of handling much more traffic than occurs at present
before reaching the capacity of a collector. For this reason, the Hearings Officer finds the
proposed amendment will not "significantly affect a transportation facility" -- i.e., Finley
Butte Road. Having made that finding, I find it is not necessary to make findings regarding
the factors under paragraphs (1)(a), (b) and (c) of the administrative rule.
As indicated in the Findings of Fact, above, MOT is the property owner. The record
indicates MOT regional staff have reviewed this application and have expressed no
concern regarding adverse impacts from the proposed plan amendment and zone change
on existing transportation facilities. In addition, the record indicates the county's
transportation planner was consulted concerning the proposal and agreed with the
assessment described in this finding.
For the foregoing reasons, the Hearings Officer finds the proposed plan amendment/zone
change is consistent with the administrative rule.
PA -96-4 & ZC-6-5
Page 6
C. Statewide Land Use Planning Goals.
FINDINGS: The Hearings Officer finds Goals 2, 4, 5, and 11 are applicable to the
proposed plan amendment and zone change.
1. Goal 2, Land Use Planning. To establish a land use planning process
and policy framework as a basis for all decisions and actions related to
use of land and to assure an adequate factual base for such decisions
and actions.
FINDINGS: The county's comprehensive plan has been acknowledged by the Department
of Land Conservation and Development (DLCD). The implementing ordinances, for which
findings regarding this application have been made elsewhere in this decision, have been
through acknowledgment and periodic review to be consistent with the plan. This decision
includes the factual information necessary to make a decision on this application since the
future use of the subject property has been identified and described as a water intake and
distribution facility for the La Pine UUC. For these reasons, the Hearings Officer finds the
proposal is consistent with Goal 2.
2. Goal 4, Forest Lands. To conserve forest lands by maintaining the
forest land base and to protect the state's forest economy by making
possible economically efficient forest practices that assure the
continuous growing and harvesting of forest tree species as the leading
use on forest land consistent with sound management of soil, air,
water, and fish and wildlife resources and to provide for recreational
opportunities and agriculture.
FINDINGS: The record indicates the subject property will be developed with a water
intake and distribution system if all required land use approvals are granted, including this
application for a change in plan and zoning map designation from SM to F-1. The lands
surrounding the subject parcel are all under the management of the US Forest Service.
The Hearings Officer finds the proposed community water facility will have no affect on
forestry activities on surrounding lands which, with the exception of the remainder of the
subject parcel, are zoned F1 and designated Forest on the comprehensive plan.
In addition, as discussed in the findings above, the five -acre portion of the subject property
for which the plan amendment and zone change are sought contains no aggregate
materials. The proposal will not prevent the remainder of the subject property from being
used as a surface mining site. Therefore, the Hearings Officer finds the change from
surface mining to forest designation will not alter the pattern of land use in this area or on
the subject property other than to ultimately allow for the development of the water
intake/distribution facility. This type of facility is listed as a conditional use in the Forest
Zone and has been found to be compatible with forest practices.
Based on the foregoing, the Hearings Officer finds this application is consistent with Goal
4.
3. Goal 5, Open Spaces, Scenic and Historic Areas, and Natural
Resources. To conserve open space and protect +natural and scenic
resources.
FINDINGS: As discussed in the findings above, the subject parcel, including the property
identified for the proposed plan and zoning map revision, is zoned for surface mining. The
county's inventory of surface mining sites indicates that 30,000 cubic yards of aggregate
PA -96-4 & ZC-6-5
Page 7
resources exist at this site -- Site #529. The Goal 5 "ESEE analysis" previously adopted
by the county as part of the comprehensive plan, as well as the maps submitted to the
county with this application. indicate the mineral and aggregate resource on this site exists
only in the lower portion of the property within the east -west gully which runs the length
of the property. No aggregate resources are identified in the subject area where the water
intake/distribution facility is proposed to be developed. Therefore, the Hearings Officer
finds there will be no loss of available aggregate resources if this application is approved.
The "ESEE analysis" for this site, as amended, also indicates there are no significant Goal
5 open space or scenic resources on the subject parcel or surrounding lands. Therefore, I
find this application is consistent with Goal 5.
4. Goal 11, Public Facilities and Services. To plan and develop a timely,
orderly and efficient arrangement of public facilities and services to
serve as a framework for urban and rural development.
FINDINGS: The proposed plan amendment/zone change will enable a water intake and
distribution facility for the La Pine community to be developed on the ,,,subject five -acre
parcel. The water facility, if approved and constructed, will provide a reliable source of
high quality water to the residents in the La Pine UUC. The record indicates problems
with the supply and quality of water are known to occur in the La Pine UUC. Therefore,
the Hearings Officer finds this application, if approved, would be consistent with Goal 11
by providing an opportunity to develop an efficient water distribution system.
D. Title 22 of the County Code, the Development Procedures Ordinance.
FINDINGS: This proposal constitutes a quasi-judicial plan amendment and zone change
application. Pursuant to Chapter 22.12 of the development procedures ordinance notice of
this application was published in the "Bend Bulletin" and the adjacent property owner was
notified of the proposal prior to the public hearing. Under Chapter 22.28 of the
procedures ordinance, the Hearings Officer's decision must be adopted by the Deschutes
County Board of Commissioners in order to become effective. The Hearings Officer finds
that all required procedures have been or will be completed prior to this decision taking
effect.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer
hereby APPROVES the proposal to rezone the subject five -acre parcel from Surface
Mining (SM) to Forest Zone, F-1, and to amend the comprehensive plan designation from
Surface Mining to Forest, SUBJECT TO THE FOLLOWING CONDITION:
1. The applicant shall submit a map and legal description of the subject property for
attachment to the ordinances adopting the approved plan amendment and zone change.
Dated this 3 day of 1996.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL 10 DAYS AFTER MAILING, UNLESS
APPEALED.
PA -96-4 & ZC-6-5
Page 8
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