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1997-29221-Ordinance No. 97-060 Recorded 8/14/1997REVIEWED AS TO FORM �)L- CODE REVIEW COMM. 9 REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending PL -20, the Deschutes County Comprehensive Plan, * = to Amend the Text of the Exception Statement of the Plan, and Declaring an Emergency. ORDINANCE NO. 97-060 _= ry WHEREAS, the Deschutes County Public Works Department applied for a conditional e permit and a quasi-judicial amendment to the County Comprehensive Plan to relocate the intersection of Burgess Road and Highway 97; and WHEREAS, such an application requires the County to adopt an Exception to Statewide Planning Goal 4, Forest Lands; and WHEREAS, the Exception to Statewide Planning Goal 4 requires the adoption of an exception statement and findings into the Comprehensive Plan; and WHEREAS, the County Hearings Officer has held an initial hearing on this application; and WHEREAS, the Hearings Officer found the Public Works Department has satisfied all applicable criteria for approval of the conditional use permit and the Exception; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. That PL -20, the Deschutes County Comprehensive Plan, as amended, is further amended by approving an Exception to Goal 4 for the land described in Exhibit "A," attached hereto and by this reference incorporated herein, and by amending the Exception Statement by adopting an exception statement for the subject land as set forth in Exhibit `B," attached hereto and by this reference incorporated herein. Section 2. FINAL DECISION. The adoption of this ordinance shall have the effect of finalizing CU -97-44, which is contingent upon adoption of the exception as set forth herein. The Board adopts the Decision of Deschutes County Hearings Officer on CU -97-44, attached hereto as Exhibit "C," at its own. PAGE 1 of 2 - ORDINANCE NO. 97-060 (8-13-97) 691 0162-21.65 Section 3. FINDINGS. In support of this ordinance, the Board adopts the Decision of Deschutes County Hearings Officer, attached as Exhibit "C," and by this reference incorporated herein. 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 13th day of August, 1997. ATTEST: Recording Secretary BOARD OF COUNTY COMMISSIONERS 7 OF ESCHUTES COUNTY, GON Y'A., J�� NANCY" SCHL GEN, Chair T L. NIPPER, INDA L. S WE GEN, Commissioner PAGE 2 of 2 - ORDINANCE NO. 97-060 (8-13-97) 0162-0,166 EXHIBIT "A" Legal Description Proposed Legal Description of New County Right -of -Way for the Re -alignment of Burgess Road at Wickiup Juntion A parcel of land located in the North 1/2 of Section 1, T. 22 S., R. 10 E., W.M., Deschutes County, Oregon being more particularly described as follows: Commencing at the 3 1/4" brass cap stamped "T21S 536, 1/4, T22S S1 R10E" monumenting the North 1/4 comer of said Section 1; thence along the north line of said Section 1 S89°45'40"W 242.72 feet to the Point of Beginning; thence leaving said north line S00027'45"E 88.27 feet; thence 37.08 feet along the arc of a 33.00 foot radius curve to the left, the long chord of which bears S32038'53"E 35.16 feet; thence S64050'01"E 196.51 feet; thence N70°09'59"E 63.64 feet; thence S64050'01"E 30.00 feet to the westerly 30.00 foot right-of- way line of the Dalles-California Highway as shown on the 1956 Oregon State Highway map "DRG. NO. 8B-3-29"; thence along said westerly right-of-way line 170.01 feet along the arc of a 5699.58 foot radius non -tangent curve to the right, the long chord of which bears S25009'59"W 170.00 feet; thence leaving said westerly right-of-way line N64°50'01"W 30.00 feet; thence N19°50'01"W 63.64 feet; thence N64050'01"W 418.04 feet; thence 425.82 feet along the arc of a 960.00 foot radius curve to the left, the long chord of which bears N77032'26"W 422.33 feet; thence N00°14'20"W 2.33 feet to the north line of said Section 1; thence along said north line N89°45'40"E 394.50 feet; thence leaving said north line 56.66 feet along the arc of a 1040.00 foot radius non - tangent curve to the right, the long chord of which bears S66023'40"E 56.66 feet; thence S64°50'01"E 75.49 feet; thence 46.42 feet along the arc of a 23.00 foot radius curve to the left, the long chord of which bears N57°21'07"E 38.93 feet; thence N0002714511W 34.42 feet to the north line of said Section 1; thence along said north line N89°45'40"E 80.00 feet to the Point of Beginning. Containing 66,716.66 S.F. (1.53 acres) more or less. PAGE 1 OF 1 - EXHIBIT "A" TO ORDINANCE 97-060 (8-13-97) ®162-21s, EXHIBIT `B" In conjunction with approval of CU -97-44, for the construction of a road improvement project at the intersection of Burgess Road with Highway 97, an exception to Statewide Planning Goal 4, Forest Lands, was taken to allow for the subject road improvement on forest land. Reasons justifying why the state policy embodied in Goal 4 should not apply in this situation are as set forth in Exhibit C to Ordinance 97-060, which findings are incorporated herein by reference. PAGE I OF I - EXHIBIT `B" TO ORDINANCE 97-060 (8-13-97) Exhibit Page of Ordinance _ '7-0(00 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: CU-97-44/PA-97-4 APPLICANT: Deschutes County 016'-2168 Department of Public Works 61550 SE 27th Street Bend, Oregon 97701 PROPERTY OWNER: United States of America Bureau of Land Management REQUEST: The applicant is requesting approval of a conditional use permit and a plan amendment to adopt an exception to Statewide Land Use Planning Goal 4, in order to relocate the intersection of Burgess Road and U.S. Highway 97 at Wickiup Junction. STAFF REVIEWER: Damian Syrnyk, Associate Planner HEARING DATE/ RECORD CLOSED: June 10, 1997 L APPLICABLE CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance: * Chapter 18.04, Title, Purpose and Definitions * Section 18.04.1050, Definition - Road and street project. * Chapter 18.36, Forest Use - F1 Zone: 89,07 7 *Section 18.36.030, Conditional Uses Permitted *Section 18.36.040, Limitations on Conditional Uses. . JUL 1997MALED * Chapter 18.60, Rural Residential Zone: DESCHtm cOUWTY *Section 18.60.020, Uses Permitted Outright. 'ac%f * Chapter 18.62, Rural Service Center - Wickiup Junction: _ zFZ *Section 18.62.020, Districts Permitted in the RSC-WJ Zone. *Chapter 18.116, Supplementary Provisions: *Section 18.116.230, Standards for Class I and H road projects. *Chapter 18.128, Conditional Uses: Deschutes County Public Works CU-97-44/PA-7-4 Page 1 11 �, h Exhibit _ Page z' of Ordinance ?7 - *Section 18.128.015, General Standards Governing Conditional Uses. B. Oregon Administrative Rules, Chapter 660: 01624 -2169 *Division 4, Interpretation of Goal 2 Exception Process: *OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals. *OAR 660-04-015, Inclusion as Part of the Plan. *OAR 660-04-018, Planning and Zoning for Exception Areas. *OAR 660-04-020, Goal 2, Part H(c), Exception Requirements. *OAR 660-04-022, Reasons Necessary to Justify an Exception under Goal 2, Part H(c). *OAR 660-04-030, Notice and Adoption of an exception. * Division 6, Forest Lands * OAR 660-06-025, Uses Authorized in Forest Zones *Division 12, Transportation Planning: *OAR 660-12-060, Plan and Land Use Regulation Amendments *OAR 660-12-065, Transportation Improvements on Rural Lands. *OAR 660-12-070, Exceptions for Transportation Improvements on Rural Lands. C. Title 22 of the Deschutes County Code, the County Development Procedures Ordinance IL FINDINGS OF FACT: A. LOCATION: The existing intersection of Burgess Road and U.S. Highway 97 is located at Wickiup Junction north of the La Pine downtown core area. The proposed relocation of the intersection will affect several parcels in the vicinity of Burgess Road, Antler Avenue, Skidgel Road and Highway 97. For purposes of this decision, the property address is considered located at 51805 Coach Road, La Pine. The property is further identified as Tax Lot 100 on Deschutes County Assessor's Map# 22-10-00. B. ZONING AND PLAN DESIGNATION: The site is located within several zoning districts. The portion of Tax Lot 100 that is the subject of this application is zoned F1, Forest Use 1, and is designated Forest Uses on the comprehensive plan map. The applicant proposes improvements in the rights-of-way of Burgess Road, Antler Road, and Skidgel Road. The proposed improvements and new road construction will be located on parcels in the RR -10, Rural Residential Zone, and in the RSC-WJ, Rural Service Center-Wickiup Junction Zone. These areas are designated Rural Residential Exception Area and Rural Service Center on the comprehensive plan map. The site also is located in two combining ?:ones, the Landscape Management (LM) Combining Zone and the Wildlife Area (WA) Combining Zone. The LM Zone Deschutes County Public Works CU-97-44/PA-7-4 Page 2 1l(ii 7"'� % Exhibit ge it 016 3 Of z .S Ordinance `�7 °�6 applies to the portion of the affected property located within one-quarter mile of Highway 97, a designated landscape management corridor and Goal 5 resource. The WA Zone applies to the portion of the affect property within a deer migration corridor identified in the comprehensive plan as a Goal 5 resource. The applicant does not propose new construction of buildings or structures subject to the development standards and criteria in either the LM or WA Zone. C. SITE DESCRIPTION: The existing Burgess Road/Highway 97 intersection is located 160 feet south of the Burlington Northern/Santa Fe at -grade railroad crossing, which is controlled by an automatic gate and flashing lights. Burgess Road currently intersects Highway 97 at a 68 -degree angle. The applicant proposes to relocate Burgess Road and its intersection with Highway 97 on a small portion of a 5,890 -acre parcel owned by the United States Bureau of Land Management (BLM). The BLM parcel contains vegetation consisting of scattered lodgepole and ponderosa pine trees, as well as bitterbrush and bunch grasses. The record indicates the trees on the subject property are not commercial species. The parcel is relatively level and includes an existing park-and-ride facility directly south of Burgess Road and west of Highway 97. The applicant also proposes improvements in the existing public rights-of-way of Burgess Road, Antler Avenue and Skidgel Road. The existing Burgess Road between Antler Avenue and Highway 97 has a 60 -foot right -of --way and is paved to a width of 28 feet with gravel shoulders at least four feet wide. The intersections of Antler Avenue and Skidgel Road with Burgess Road are paved and/or improved with a gravel surface to a width of 24 feet with gravel shoulders within a 60 -foot right-of-way. D. PROCEDURAL HISTORY: The record indicates a realignment of Burgess Road and the relocation of its intersection with Highway 97 were first proposed by ODOT in 1995. In 1996, the applicant conducted public informational meetings concerning the proposal and alternatives proposed and received significant public comment. The record contains letters from interested parties submitted in response to these public meetings and prior to the filing of the subject applications. The subject applications were submitted on April 23, 1997, and were accepted by the county as complete on May 23, 1997. Therefore, the 120 -day period for issuance of a final local land use decision under ORS 215.428 expires on September 23, 1997. As of the date of this decision, there remain 79 days within the 120 -day period. A public hearing on the application was set for May 27, 1997, and notice of the hearing was mailed on April 25, 1997. The public hearing was subsequently rescheduled to June 10, 1997, and a second notice of the hearing was mailed on May 15, 1997. The public hearing was held on June 10, 1997, and the record closed on that date. Prior to the public hearing, the Hearings Officer conducted a site visit, and reported her observations and impressions from that visit on the hearing record. E. PROPOSAL: The applicant proposes to relocate the intersection of Burgess Road and Highway 97 at Wickiup Junction to a new location 400 feet south of the current intersection. Burgess Road is designated a rural collector on the Deschutes County Transportation Plan Map. The purpose of the proposed relocation is to improve the safety and function of intersection by making it a 90 -degree intersection and moving it further away from the adjacent railroad crossing. Deschutes County Public Works CU-97-44/PA-7-4 Page 3 �c C tc Exhibit 0162-2j.. / l Page of z Ordinance 97-0(06 The segment of Burgess Road to be relocated begins at a point midway between Antler Avenue and Skidgel Road. The relocated segment will be constructed in a southeasterly direction until it intersects with Highway 97 approximately 400 south of the existing intersection. A total of 1,785 linear feet of new road will be constructed, approximately 1,400 feet of which will consist of the new segment of Burgess Road. The new segment will be paved to a width of 44 feet for two travel lanes within the 60 -foot right-of-way. All of the proposed relocated Burgess Road segment lies in the F1 Zone. The applicant also proposes improvements to Highway 97, consisting of a southbound deceleration lane north of the new intersection and a northbound left - turn lane south of the new intersection. Finally, the applicant proposes improvements to the existing Burgess Road, Antler Avenue, and Skidgel Road. These include paving a segment of Burgess Road between Doe Lane and Antler Lane, paving the approach of Antler Lane to its intersection with Burgess Road, and paving a segment of Burgess Road that intersects with Skidgel Road to provide several Wickiup Junction businesses with access to the new segment of Burgess Road. The applicant also proposes to install a barrier along the point where the existing Burgess Road intersects with Highway 97 and to request that the Board of County Commissioners vacate the easterly 250 of Burgess Road. F. SURROUNDING ZONING AND LAND USES: North: The area north of Burgess Road and west of Highway 97 is zoned RR -1.0 and RSC-WJ. It is developed with a gas station, grocery store and restaurant. The property north and west of this development is the Cagle Subdivision developed with residential lots. South: The property south of the existing Burgess Road/Highway 97 intersection to be bisected by the proposed new Burgess Road alignment is within several zones. The northeast corner of this property is zoned Fl. This property has been developed with a paved driveway and a park-and-ride facility. East: The area east of the existing Burgess Road/Highway 97 intersection, on the east side of Highway 97, is zoned RSC-WJ, RR -10 and F1. The properties east of Highway 97 and north of Burgess Road are zoned RSC-WJ or RR -10, and are developed with residential lots in the Sundown Park and La Pine Meadows North subdivisions. West: The area west of the intersection and north of Burgess Road is zoned RR - 10 and includes both vacant and developed residential lots in the Cagle Subdivision. G. PUBLIC/PRIVATE AGENCY COMMENTS: The Planning Division mailed written notice of the proposal to several public and private agencies and received responses from: the Deschutes County Assessor and Environmental Health Division; and the Oregon Department of Transportation (ODOT). These comments are set forth verbatim at page 6 of the Staff Report and are incorporated by reference herein. H. PUBLIC NOTICE AND COMMENTS: The Planning Division sent written notice of the public hearings in this matter on April 25 and May 15, 1997, to the owners of all property located within 500 feet of the subject property. In addition, Deschutes County Public Works CU-97-44/PA-7-4 Page 4 it it 6) Exhibit 016 Page of Z 5 Ordinance- �7—oco- notice of the public hearings was published in the "Bend Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the Planning Division had received no written comments in response to these notices.' However, several interested parties and neighboring property owners testified at the public hearing, and their comments are addressed in the findings below. L SOILS: United States Soil Conservation Service (SCS) Map 9143 shows the proposed relocation of Burgess Road would be located on soils identified as SCS Map Unit #115A, Shanahan Loamy Course Sand. The SCS description of Map Unit 115A indicates this soil is composed of 90% Shanahan soils and similar inclusions and 10% contrasting inclusions. The SCS indicates the Shanahan soils consist of excessively drained soils formed in ash over buried loamy materials. These soils occur on pumice plains. The SCS indicates the contrasting inclusions consist of Sunriver soils in low areas and Geiger soils south of La Pine. The soil interpretation record indicates the Shanahan Loamy Course Sand has an agricultural capability rating of 6E when not irrigated, with a rating of 1 being the highest and a rating of 8 being the lowest possible rating. The Shanahan Loamy Course Sand is not considered high-value farmland when irrigated. The SCS Soils Interpretation Record for this soil type also includes information on the woodland suitability for this soil. The Shanahan Loamy Course Sand is capable of producing 45 cubic feet of growth per acre per year. III. CONCLUSIONS OF LAW: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.36, Forest Use Zone (Fl) a. Section 18.36.030, Conditional Uses Permitted The following uses and their accessory uses may be allowed in the Forest Use Zone, subject to applicable provisions of the Comprehensive Plan, section 18.36.040 and other applicable sections of this title. T. Public road and highway projects as described in Oregon Revised Statutes 215.283(2)(p) through (2)(r) and 215.283(3). 1 As noted above, the planning process for the proposed road realignment and intersection relocation has been ongoing for approximately two years, and the record contains a number of letters and a petition from interested parties. However, these comments were not submitted in response to the specific application before the Hearings Officer and were not in response to the public notices of the proposal or the public hearing. Therefore, the Hearings Officer will confine her review to comments from interested parties made after the notice of this proposal up to the close of the record on June 10, 1997. Deschutes County Public Works CU-97-44/PA-7-4 Page 5 Exhibit e Page of z f:%.nq w Ordinance ` / 0(c o FINDINGS: The applicant proposes to relocate a segment o Muess Road and its intersection with Highway 97 to a point 400 feet south of its current location. ORS 215.283(2) lists certain road projects permitted as conditional uses in the Forest Zone. Subsections 215.283(2)(p) through (r) include construction of additional passing and travel lanes and construction or improvements of roadways in existing public rights-of- way. These use categories do not expressly provide for the realignment of public roads outside of existing rights-of-way. However, Subsection 215.283(3) provides that road and highway projects which do not fall within one of the use categories listed in ORS 215.283(2) nevertheless may be permitted subject to the adoption of an exception to the goal related to agricultural lands and to any other applicable goal with which the facility or improvement does not comply. Therefore, the Hearings Officer finds the transportation project proposed by the applicant is a use permitted conditionally in the F-1 Zone subject to the requirements described below.' The Hearings Officer finds the applicant is not required to obtain an exception to Statewide Land Use Planning Goal 3, Agricultural Lands, because the subject property has not been designated or zoned for agricultural uses. However, for the reasons set forth in detail in the findings below, I find an exception to Statewide Land Use Planning Goal 4, Forest Lands, is required because the subject property has been designated and zoned for forest uses and because the statutes and administrative rules implementing Goal 4 require the taking of a goal exception for a road realignment as proposed by theapplicant. Therefore, I find the applicant must demonstrate both the criteria in Section 18.36.040 of this chapter, relating to conditional uses in the F-1 Zone, and the general conditional use criteria in Chapter 18.128, have been met. In addition, the applicant must demonstrate compliance with the applicable exception criteria in OAR 660-04-020 and 660-04-022. b. Section 18.36.040, Limitations on Conditional Uses. A use authorized by section 18.36.030 of this title must meet the following requirements. These requirements are designed to make the use compatible with forest operations and agriculture and to conserve values found on forest lands. A. The proposed use will not force a significant change in, or significantly increase the cost of, accepted farming or forest practices on agricultural or forest lands. FINDINGS: The Hearings Officer finds that for the purpose of determining compliance with this criterion, the analysis should focus on the surrounding lands and land uses as described in the Findings of Fact, above. These lands include rural residences, commercial 2 The language of this ordinance provision is identical to and implements the language in OAR 660, Division 6, Forest Lands -- specifically OAR 660-06-025(4)(u), which provides the county may allow the following uses in forest zones subject to the review standards in OAR 660-06-025(5): "Public road and highway projects as described in ORS 215.213(2)(q) through (s), 215.213(10), 215.283(2)(p) through (r)and 215.283(3)." (Emphasis added.) The review standards in OAR 660-06-025(5) ar"et forth in Section 18.36.040 of the zoning ordinance. Deschutes County Public Works CU-97-44/PA-7-4 Page 6 +r� A Exhibit 6 .-2 f 4 Page -7 of z.� C- 0162,-2r, � Ordinance c�-7` 061Z) uses, and some forest lands to the east and the south of the site. The record indicates no farm practices are occurring on surrounding forest lands. The record indicates there are forest practices occurring on lands far to the west of the subject property, but not on or adjacent to the F-1 zoned property on which a portion of the proposed realignment is proposed. In any event, the Hearings Officer finds the proposed construction will not force a significant change in or significantly increase the cost of forest practices on adjacent or nearby forest lands. That is because the proposed road and intersection realignment will not occupy land currently engaged in forest practices and will not require the consumption of water or soil nutrients needed for forest tree species. In addition, while the realignment will take a small amount of land out of potential forest production, road construction will be limited to 1,785 linear feet. B. The proposed use will not significantly increase fire hazard or significantly increase fire suppression costs or significantly increase risks to fire suppression personnel. FINDINGS: The Hearings Officer finds the proposed road and intersection realignment will not significantly increase fire hazards because their operating characteristics will not generate impacts that can cause fires. That is because the realigned road and intersection will be cleared and improved with pavement widths and types required by state and county specifications, including 44 feet of pavement and a cleared 60 -foot right-of-way. While it is possible motorists may discard cigarettes onto the right-of-way or road shoulder, I concur with the applicant's assessment that this fire risk is equivalent to that already existing on Burgess Road and Highway 97. For these reasons, I find the applicant has met its burden of demonstrating compliance with this criterion. C. Prior to final approval of any use listed in section 18.36.030, the land owner shall sign and record in the County Clerk's Office a written statement recognizing the rights of adjacent and nearby land owners to conduct forest operations consistent with the Forest Practices Act and Rules. FINDINGS: The Hearings Officer finds that as a condition of approval the applicant will be required to submit to the Planning Division a copy of a recorded statement signed by a representative of the BLM as required by this criterion. This document shall be submitted to the Planning Division prior to the commencement of road construction. 2. Chapter 18.60, Rural Residential Zone (RR -10) and Chapter 18.62, Rural Service Center-Wickiup Junction. a. Section 18.100.020, Uses Permitted Outright. The following uses and their accessory uses are permitted outright. E. Class I and II road or street project subject to approval of as part of a land partition, subdivision, or subject to the standards and criteria established by section 18.116.230. b. Section 18.62.020, Districts Permitted in the RSC-WJ Zone. Deschutes County Public Works CU-97-44/PA-7-4 Page 7 0162-2175 The following districts shall be established: A. Commercial/Residential District. 0 Exhibit C Page of 2 Ordinance 1. Uses Permitted Outright. The following uses and their accessory use are permitted outright: e. Class I and H road or street project subject to approval as part of a land partition, subdivision or subject to the standards and the criteria established by Section 18.116.230. C. Section 18.04.1050, Definition - Road and street project. "Road and street project" means the construction and maintenance of the roadway, bicycle lane, sidewalk or other facility related to a road or street. Road and street projects shall be a Class I, Class H or Class III project. B. Class II Project. Land use permit required. "Class H Project" is a (1) modernization where a road or street is widened by more than one lane; (2) traffic safety or intersection improvement which changes local traffic patterns; (3) system change which has significant land use implications; or (4) the construction of a new county road or street where none existed before. FINDINGS: The Hearings Officer finds the applicant's proposal to realign Burgess Road, to relocate its intersection with Highway 97 and to construct related improvements to Antler Avenue and Skidgel Road constitute a "Class R Road Project" which is a use permitted outright in both the RR -10 and RSC-WJ Zones. That is because the purpose of the proposal is to improve the safety of the Burgess Road/Highway 97 intersection, and the realignment of Burgess Road will change local traffic patterns. d. Section 18.116.230, Standards for Class I and H Road Projects. Standards for Class I and H Road Projects. Class I and II road or street projects shall be reviewed against the applicable Comprehensive Plan Transportation Plan element, shall be consistent with the applicable road standards and shall meet the following criteria: FINDINGS: The Hearings Officer finds the comprehensive plan transportation element contains Transportation Policy No. 5, applicable to this proposal, and that this plan policy has been incorporated verbatim into the ordinance approval criteria set forth below. Therefore, I find the applicant can demonstrate consistency with this plan policy by demonstrating compliance with the standards in this section. As discussed in the findings below, I find the applicant has demonstrated compliance with these standards. a. Compatibility with existing land uses and social Deschutes County Public Works CU-97-44/PA-7-4 Page 8 N t I Exhibit C Page g of Ordinance 9 7—yO c3 patterns, including noise generation, safety hazards (e.g., children in a residential area) and zoning. �j� why 01 ,1-2a%d t i! FINDINGS: The Hearings Officer finds the proposal meets this criterion because the proposed improvements will be located within existing or new public rights-of-way. And, as discussed above, the proposal constitutes a use permitted conditionally in both the RR - 10 and RSC-WJ Zones. I further find the proposal will be compatible with existing land uses and social patterns because it will not result in increased traffic and will significantly improve traffic safety for motorists, businesses and residents in the Wickiup Junction area. b. Environmental impacts, including hazards imposed on and by wildlife (e.g., migration or water use patterns). . FINDINGS: The Hearings Officer finds the proposal meets this criterion because the proposed improvements have been designed to minimize environmental impacts. The proposed realignment of Burgess Road will be close to the existing alignment. It will impact only a small portion of the subject property, thus leaving the remaining acreage unaffected for deer migration. The proposal will require the removal of a minimum amount of vegetation. As discussed above, the proposal will not result in an increase in traffic that could impact air quality or wildlife habitat. C. Retention of scenic quality, including tree preservation. FINDINGS: The proposed realignment of Burgess Road and its intersection with Highway 97 will be close to the existing alignment, will impact only a small portion of the subject property, and will require the removal of a minimal number of trees and other vegetation. Based upon the Hearings Officer's site visit observations, I find the proposal will not adversely impact the scenic quality of the surrounding area. d. Means to improve the safety and function of the facility, including surrounding zoning, access control, and terrain modifications. FINDINGS: The record contains the following information regarding safety concerns with the existing Burgess Road/Highway 97 intersection. A. Traffic Data: The applicant's Burden of Proof summarizes traffic counts on Burgess Road taken at a point 0.15 miles west of Highway 97. (This point is the closest of four points on Burgess Road to Highway 97 used for traffic counting.) This information shows that traffic at this point has increased from 2,543 average daily trips (ADT's) in 1985 to 8,500 ADT's in 1995, an increase of 334 percent. B. Accident Data: The applicant's Burden of Proof summarizes accident data from several sources as follows. Fifteen accidents occurred at the Burgess Road/Highway 97 intersection between January 1, 1990 and August 8, 1996, classified as follows: 1. Northbound on Hwy 97, left onto Burgess Road - 5 accidents. 2. Southbound on Hwy 97, right onto Burgess Road - 3 accidents. 3. Burgess Road onto Hwy 97 - 5 accidents. The Burden of Proof further categorizes the accidents as follows: 1. Fatal Accidents - 2 Deschutes County Public Works CU-97-44/PA-7-4 Page 9 Exhibit Page of 2 -5 - Ordinance '72' QQ 0 2. Non-fatal accidents - 7 3. Property damage only - 6 4. People killed - 2 5. People injured - 11. 0162—c�1 w►-� F�t The Hearings Officer finds this evidence supports the applicant's conclusion that the existing Burgess Road/Highway 97 intersection creates a safety hazard and requires improvement. The applicant proposes to realign Burgess Road and to relocate its intersection with Highway 97 so that the intersection is at a 90 -degree angle and is located further away from the adjacent railroad crossing. I find these improvements will significantly improve the safety and function of this intersection, thus meeting this criterion. e. In the case of roadways where modification results in a change of traffic types or density, impacts on route safety, route land use patterns, and route motorized/pedestrian traffic. FINDINGS: The Hearings Officer concurs with staff's conclusion that the applicant's proposal will result in a change of traffic types -- i.e., separating local Wickiup Junction traffic from higher -speed Burgess Road and Highway 97 traffic -- thus implicating this approval criterion. I find the proposal meets this criterion because its design will not adversely impact route safety, land use patterns, or nonmotorized/pedestrian traffic. To the contrary, the proposal will preserve route safety by separating local traffic from the higher speed traffic. I further find the proposal will not adversely affect the existing land use pattern at Wickiup Junction because the applicant proposes to maintain access to the commercial development at the intersection, to take high-speed traffic pressure off the adjacent residential areas north of Burgess Road, and to disturb a minimal amount of forest -zoned property. f. Consideration of the potential development impact l by the fgcility. FINDINGS: The record indicates that throughout the planning process for the proposed realignment project, and at the public hearing in this matter, owners of commercial -zoned property in Wickiup Junction at or near the existing Burgess Road/Highway 97 intersection have expressed concern about the impact of the proposed realignment on access to their businesses as well as on the development of vacant commercial -zoned parcels to the north and west of the existing intersection. In response to these concerns, the applicant has proposed to vacate the most easterly 250 feet of Burgess west of Highway 97 and to provide certain improvements to the approach to the existing businesses so that access is maintained. In addition, the applicant has proposed to provide additional signage along Highway 97 advising motorists wishing to patronize Wickiup Junction businesses of the traffic pattern for access to these businesses. Based upon this evidence, the Hearings Officer finds the applicant's proposal meets this criterion. g. Cost-effectiveness. FINDINGS: The applicant's Burden of Proof states the proposed project will be funded with a $250,000 grant, and that the project has been designed to fit within that budget. In addition, as discussed in detail in the findings below, the applicant's Burden of Proof and supplemental material detail the cost analysis undertaken in reviewing potential alternatives to the proposed realignment. Based upon this evidence, the Hearings Officer Deschutes County Public Works CU-97-44/PA-7-4 Page 10 Exhibit Page —.L_ at z Ordinance q-7---1)fa.D finds the applicant's proposal has taken cost-effectiveness into account and represents the most cost-effective alternative that mitigates the traffic safety problems discussed above. Therefore, I find the proposal meets this criterion. 0162-2178 3. Chapter 18.128, Conditional Uses. a. Section 18.128.015, General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single- family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design, and operating characteristics of the use; FINDINGS: The applicant proposes to realign Burgess Road and to relocate its intersection with Highway 97 to improve the safety and function of the intersection. Therefore, the Hearings Officer finds that the location for the proposed project is necessary quite site-specific. I find the site chosen is suitable because it is located within a few hundred feet of the existing iiatersection on land that is relatively level and thus can accommodate the design of the proposed road construction. I further find the existing Burgess Road right-of-way is suitable for the improvements proposed by the applicant, including improving the intersections with Antler and Skidgel as well as the entrances to the commercial uses at the existing Burgess Road/Highway 97 intersection. 2. Adequacy of transportation access to the site; and FINDINGS: The applicant's proposal to realign Burgess Road and relocate its intersection with Highway 97 to a point approximately 400 feet south of the existing intersection is designed to provide better access to residences and businesses in Wickiup Junction by improving the safety and function of the intersection. For these reasons, the Hearings Officer finds the proposal is designed to have adequate access to affected roads. In addition, the proposed realignment will maintain adequate access to the existing park- and-ride facility south of Burgess Road. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDINGS: The subject property is relatively level and there is no evidence there are any natural hazards on the site. The record indicates the soils on the site are classified as Shanahan Loamy Sand soils which can accommodate construction of the proposed road inasmuch as other roads in the area, including Highway 97, are constructed on similar soils. The proposed realignment of Burgess Road and the relocation of the intersection Deschutes County Public Works CU-97-44/PA-7-4 Page 11 Exhibit Page of z Ordinance 9�— with Highway 97 will require the removal of a minimal number of trees and based upon the Hearings Officer's site visit observations I find this tree removal will not adversely affect any natural resource values on the site. For these reasons, I find the proposal meets this criterion. B. The proposed use shall be compatible wit C� egis�ii P ig projected uses on surrounding properties based on the factors listed in (A) above. FINDINGS: The Hearings Officer previously has found the applicant's proposal �o realign Burgess Road and to relocate its intersection with Highway 97 will be consistent with existing and potential development on surrounding lands by separating local Wickiup Junction traffic from the higher -speed Burgess Road and Highway 97 traffic and by providing continuing access to the existing residential and commercial uses and undeveloped commercial -zoned lots in the area. Those findings are incorporated by reference herein. For these reasons, I find the proposal meets this criterion. B. Oregon Administrative Rules, Chapter 660-04, Interpretation of Goal 2 Exception Process 1. OAR 660-004-010, Application of the Goal 2 Exception Process to Certain Goals. (1) The exceptions process is not applicable to Statewide Planning Goal 1 "Citizen Involvement" and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals which prescribe or restrict certain uses of resource land. These statewide goals include, but are not limited to: (b) Goal 4, "Forest Lands" FINDINGS: At the outset, although an application for an exception to Goal 4 has been submitted, the applicant argues no goal exception is required because language in the Transportation Planning Rule, OAR 660-12, expressly exempts road realignments from the requirement of taking an exception to Goal 4. This language and its interpretation are discussed in the findings below concerning the proposal's compliance with the transportation rule, which findings are incorporated by reference herein. For the reasons set forth below, the Hearings Officer finds an exception to Goal 4 is required, and that this section has been met because the applicant has proposed such an exception. 2. OAR 660-04-015, Inclusion as Part of the Plan. (1) A local government approving a proposed exception shall adopt as part of its comprehensive plan findings of fact and a statement of reasons which demonstrate that the standards for an exception have been met. The applicable standards are those in Goal 2, Part II(c), OAR -660-004-0020(2) and 660-004- 0022. The reasons and facts shall be supported by substantial evidence that the standard has been met. FINDINGS: The Hearings Officer finds the applicant has met this section by proposing an Deschutes County Public Works CU-97-44/PA-7-4 Page 12 Exhibit Page C; of z 5 Ordinance (bsD amendment to the comprehensive plan to adopt the exception to Statewide Planning Goal 4. As discussed in the findings below, I have found the applicant has demonstrated compliance with the criteria for such a goal exception, and I have recommended that such �j a plan amendment and goal exception be adopted by the Deschute" ., Bp6 Commis ssioners. 3. OAR 660-004-018, Planning and Zoning for Exception Areas. (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exception areas. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses or activities other than those recognized or justified by the applicable exception. (3) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660- 004-0020 through 660-004-0022, plan and zone designations must limit the uses and activities to only those uses and activities which are justified in the exception; FINDINGS: The applicant has proposed a "reasons" exception to Goal 4, Forest Lands, through this application for a plan amendment and conditional use permit to realign Burgess Road and its intersection with Highway 97. Where, as here, a transportation facility is the proposed use requiring the goal exception, the Transportation Planning Rule, OAR Chapter 660, Division 12, sets forth the applicable criteria. These criteria are discussed in the findings below and are incorporated by reference herein. 4. OAR 660-004-0020, Goal 2, Part Hc, Exception Requirements. (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource land for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. FINDINGS: OAR 660-04-022 sets forth the types of reasons that may be used to justify an exception under OAR 660-04-0020. These reasons include a demonstrated need for the proposed use and special features or qualities that necessitate a use being sited at or near the proposed location requiring an exception. The applicant has provided both types of reasons in support of the exception, discussed separately in the findings below. (2) The four factors in Goal 2 Part H(c) required to be addressed when taking an exception to a Goal are: (a) Reasons justify why the state policy embodied in the applicable goals should not apply. FINDINGS: The state policy embodied in Goal 4, from which the applicant seeks an exception, is to conserve forest lands and protect the state's forest economy by ensuring the continuing growth of forest tree species and economically efficient forest practices. Deschutes County Public Works CU-97-44/PA-7-4 Page 13 81 Exhibit Page 1 of Ordinance 97-0 La As discussed above, the subject property consists of a small portion of a parcel zoned F-1 that is several thousand acres in size. At the public hearing, Ron Wortman of the BLM testified the trees on the subject property are predominantly lodgepole pine -- not a commercial tree species. In addition, the record indicates there are no current forest uses on the affected segment of this property, and that the nearest forest practices are some distance to the west and southwest. The applicant's proposal to realign Burgess Road and to relocate its intersection with Highway 97 400 feet to the south of the existing intersection will require the removal of a small number of non-commercial trees and will take a small area of this very large parcel out of forest use. The part of the parcel on which the applicant proposes to construct the realigned Burgess Road already has been partially developed for a transportation facility -- i.e., a park-and-ride lot. The applicant has submitted evidence from several sources indicating the existing Burgess Road/Highway 97 intersection has been the site of rapidly increasing traffic and several serious vehicle accidents, some resulting in fatalities. The applicant proposes to improve the safety and function of this intersection by realigning Burgess and relocating the intersection so that it is a 90 -degree intersection that is further away from the adjacent railroad crossing. In addition, the applicant proposes to construct improvements to Highway 97 consisting of a southbound deceleration lane north of the new intersection, and a northbound left -turn lane south of the new intersection, to allow for safe exiting and turning maneuvers at Burgess Road. The record indicates the proposed location of the new intersection was chosen to allow sufficient space for the deceleration and left -turn lanes as well as adequate sight distance. The Hearings Officer finds these reasons justify not applying the state policy embodied in Goal 4 to conserve the small amount of forest -zoned land that will be impacted by the applicant's proposal. (b) Areas which do not require a new exception cannot reasonably accommodate the use. FINDINGS: The Hearings Ofc ° : previously has found that where, as here, the goal exception is being requested in order to realign and relocate existing transportation facilities, the location of the proposed realignment necessarily is very site-specific and must be close to the existing facility. The record indicates there are no areas not located within the F-1 Zone -- and requiring an exception to Goal 4 -- that could accommodate the proposed road realignment and intersection relocation. As discussed in detail in the findings below concerning the proposal's long-term consequences in relation to alternative locations, the applicant's Burden of Proof indicates three alternative locations, all within the F-1 Zone, were considered. The alternative chosen was deemed the best location that would move the intersection away from the railroad crossing and also provide sufficient distance north and south of the intersection to create a deceleration lane, left -turn lane and adequate site distance. The area north of the existing Burgess Road/Highway 97 intersection is zoned either RR - 10 or RSC-WJ. These areas would not require an exception to locate the applicant's proposed facility because road projects are permitted outright in these zones. However, the Hearings Officer finds there are no areas within these zones that would be suitable for the proposed road realignment because they already are developed with rural residences and businesses, and because the record indicates locating the new alignment north of Burgess Road will not provide the adequate sight distance or the required distance for deceleration and left -turn lanes. Deschutes County Public Works CU-97-44/PA-7-4 Page 14 Exhibit s��r2-2 82 Page - of z 5 Ordinance 4?77- r'00 Finally, the Hearings Officer finds the applicant has demonstrated the proposed realignment cannot reasonably be accommodated inside an urban growth boundary, as the nearest urban growth boundary is the Bend UGB approximately 15 miles to the north. For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated there are no areas not requiring an exception to Goal 4 that could reasonably accommodate the proposed transportation facility improvements. (c) The long-term environmental, economic, social, and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal Exception. The exception shall describe the characteristics of each alternative area considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include, but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts. FINDINGS: The Staff Report concludes the applicant's Burden of Proof does not adequately address this criterion by failing to fully discuss all the alternatives considered, why the alternatives were rejected, and the relative long-term consequences of each alternative compared to the chosen alternative. In response to stars concerns, at the public hearing the applicant submitted a supplemental memorandum dated June 9, 1997, addressing this criterion in detail. This submission includes maps and a narrative dise-dssion of following four alternatives considered: Deschutes County Public Works CU-97-44/PA-7-4 Page 15 1. 2. 4. 'd S3 Exhibit �( C Page 4 of 2� �� Alternative A. Existing Intersection (No -Build) Ordinance Alternative B. The proposed alternative, realigning Burgess Road to the southeast at Antler Lane and moving the Burgess Road/Highway 97 intersection 400 feet south of the existing intersection. Alternative C. Realigning Burgess Road to the southeast at Doe Lane and moving the Burgess Road/Highway 97 intersection 1,000 to 1,500 feet south of the existing intersection. Alternative D. Realigning Burgess Road due south at Skidgel Road with a four- way stop at the Burgess/Skidgel intersection, and moving the Burgess Road/Highway 97 intersection approximately 800 feet south of the existing intersection. The Hearings Officer concurs with the applicant's observation that this criterion is written so that the applicant must simply show the long-term consequences of chosen alternative "are not significantly more adverse" that the long-term consequences from the alternative locations rejected by the applicant. In other words, I find that if the applicant can demonstrate the predicted long-term consequences of the other alternative(s) are themselves more adverse than those of the chosen alternative, this standard is met. For the reasons that follow, I find the applicant has met this standard. 1. Alternative A. The Hearings Officer finds that the predicted long-term consequences of the "no -build" alternative are significantly more adverse than addressing the documented safety problems with the Burgess Road/Highway 97 intersection. Although this alternative would continue to provide direct access from Highway 97 to the Wickiup Junction businesses located at the existing intersection, I find this access has contributed to the traffic problems the applicant seeks to mitigate. Moreover, the applicant's proposal would provide continued, and safer, access to these businesses via Burgess Road and improved signage. 2. Alternative C. The applicant's supplemental memorandum concludes this alternative would provide improved safety at the Burgess Road/Highway 97 intersection equivalent to that provided by the chosen Alternative B, but would have significantly greater economic and social consequences because it would involve a much longer realigned road segment and would therefore create significantly more impact on the F-1 zoned BLM parcel. In addition, the applicant concludes this alternative would have significantly more negative social and economic consequences for the Wickiup Junction businesses at the existing Burgess Road/Highway 97 intersection because it would move the intersection much further from them. The Hearings Officer concurs with these conclusions. 3. Alternative D. The applicant's supplemental memorandum concludes this alternative would provide an improved intersection equivalent to that proposed and would still be relatively close to the Wickiup Junction businesses. However, the applicant concludes the economic, social and environmental consequences of this alternative would be significantly more adverse than those predicted for the chosen alternative because it would have a greater impact on the BLM parcel. More importantly, this alternative would create a four- way stop intersection at Burgess and Skidgel that is likely to produce more vehicle accidents and greater fuel consumption and air pollution. The Hearings Officer also concurs with these conclusions. Deschutes County Public Works CU-97-44/PA-7-4 Page 16 I Q�',-`'`1 c! Exhibit ,�s page 1-7 of Ordinance '?7—"06 For the foregoing reasons, the Hearings Officer finds the long-term environmental, economic, social and energy consequences of the selected alternative are not significantly more adverse than would typically result from the other three alternatives considered or from the areas described in the findings above that would not require a goal exception. (d) The proposed uses are compatible with other adjacent land uses or will be so rendered through measures designed to reduce adverse impacts. FINDINGS: The Hearings Officer previously has found the applicant's proposal will be compatible with existing and potential development in the surrounding area by: 1) minimizing the impact to F-1 zoned lands and deer migration corridors; 2) separating local traffic from the higher -speed traffic on Burgess Road and Highway 97; 3) providing safe and adequate access to the adjacent residential developments; 4) providing continued access to the existing park-and-ride lot; and 5) providing safer access and adequate signage for the existing and potential Wickiup Junction businesses. At the public hearing, owners of some of the existing Wickiup Junction businesses stated their support for the applicant's proposal but expressed concerns about the potential impact on their businesses and requested the applicant address those impacts with specific mitigation measures. The Hearings Officer finds the applicant's proposal will affect access to the residences and businesses currently located at or near Wickiup Junction. I further find that for the project to be compatible with these uses certain mitigation measures will be required. The following findings describe the mitigation measures requested by neighboring property owners and my findings regarding which measures will be required as conditions of approval. 1. Retain pavement on vacated Burgess Road segment. The applicant indicated the pavement would be retained, and the Hearings Officer finds this will be a condition of approval. 2. Re -grade existing margins of Burgess_ Road where it will be vacated to fill ditches. The applicant indicated the existing margins of Burgess Road would be re -graded as part of this project in order to level them, and the Hearings Officer finds this will be a condition of approval. 3. Landscaping at the eastern end of Burgess where it currently intersections Highway 97. The applicant stated the edge of Burgess would be blocked with a guardrail or similar feature and that the area would be cleaned up as part of this project. The Hearings Officer fords this will be a condition of approval. 4. Left turn lane and intersection should be illuminated with a flashing light. The applicant indicated illumination of the intersection and flashing traffic lights were not included in the county's project plan or budget, but that ODOT may be able to provide such illumination and that the applicant will discuss these features with ODOT. The Hearings Officer finds I cannot impose the requested lighting as a condition of approval as they affect a state highway subject to ODOT's jurisdiction. 5. Adequate signage be provtaea for access to anu a uyt Dulmob allu_ «IV IZ;AIOLM� I I L .µV Junction businesses. The applicant stated that any signage on Highway 97 advertising businesses would be within the jurisdiction of the state Tourism Council. The applicant indicated directional signs on Burgess and the approaches to Burgess would be provided by the applicant, and the Hearings Officer finds such signage will be a condition of Deschutes County Public Works CU-97-44/PA-7-4 Page 17 Exhibit Page > $ of 12 5 01 ���5 Ordinance `�7`6471 approval. 6. Construction on the project should start after Labor Dav in 1997. The applicant stated that the existing Burgess Road would be left open during construction of the realigned segment to assure adequate access to existing business. The Hearings Officer finds this will be a condition of approval. 7. If parcel of BLM land isolated by eal>gnea purgess noau is Cvo �)viu Vl 6, auvu. LLLI, Clairs who own several abutting businesses should have first right of refusal. Ron Wortman of the BLM stated no such condition legally could be agreed upon. The Hearings Officer finds I cannot impose such a requirement as a condition of approval. 8. The eastern 250 feet of Burgess Road west of Highway 97 should be vacated. The applicant stated it would recommend that the Board of County Commissioners undertake the legal process to vacate this portion of Burgess Road. However, the applicant's counsel stated at the hearing that no such condition should be imposed for the requested conditional use permit. The Hearings Officer finds I cannot impose as a condition of approval a requirement that the county vacate a portion of Burgess Road inasmuch as there is a separate legal process -for such actions. 9. The Burlington Northern/Santa Fe railroad crossing should be improved. The applicant stated that such improvements are not included in the county's project or budget but may be possible through cooperation between ODOT and the railroad. The Hearings Officer finds I cannot impose as a condition of approval the construction of improvements to the railroad crossing. 10. Burgess should have a 45 m.p.h. speed limit. The applicant did not address this request at the public hearing. The Hearings Officer is aware that there is a process for reviewing and determining the property speed limit for county roads. Therefore, I find that I cannot impose a particular speed limit as a condition of approval. 5. OAR 660-004-0030, Notice and Adoption of an Exception. (1) Goal 2 requires that each notice of a public hearing on a proposed exception shall specifically note that a goal exception is proposed and shall summarize the issues in an understandable manner. (2) A planning exception takes effect when the comprehensive plan or plan amendment is adopted by the city or county governing body. Adopted exceptions will be reviewed by the Commission when the comprehensive plan is reviewed for compliance with the goals, when a plan amendment is reviewed pursuant to OAR Chapter 660, Division 18, or when a periodic review is conducted pursuant to ORS 197.640. FINDINGS: The Hearings Officer finds these criteria were met by the mailed and published notice of the June 10, 1997, hearing which specifically stated that a goal exception was proposed. In addition, notice of the proposed plan amendment was mailed to the Department of Land Conservation and Development (DLCD) on May 16, 1997. C. Oregon Administrative Rules Chapter 660-12, Transportation Planning Deschutes County Public Works CU-97-44/PA-7-4 Page 18 Exhibit Page �`� of Z Ordinance 1. OAR 660-12-060, Plan and Land Use Regulation Amendments. (1) Amendments to functional plans, acknowledged compre e f plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility... (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: The Hearings Officer finds this rule is applicable to the subject application because the applicant is proposing to amend the acknowledged county comprehensive plan to take an exception to Goai for the realignment of Burgess Road and the relocation of the Burgess Road/Highway 97 intersection. I further find the applicant's proposal will not "significantly affect a transportation facility" because Burgess Road will remain a designated collector, there will be no changes to the standards affecting this facility, and the proposal will not change the types of land uses allowed or the level of service on Burgess Road. (3) Determinations under subsections (1) and (2) of this section shall be coordinated with affected transportation facility and service providers and other affected local governments. FINDINGS: The Hearings Officer finds that review of this proposal has been coordinated between the county and ODOT, which recommends its approval. I further find no other local governments are affected by the proposal. 2. OAR 660-12-065, Transportation Improvements on Rural Lands. (1) This rule identifies transportation facilities, services and improvements which may be permitted on rural lands consistent with Goals 3, 4,11 and 14 without a goal exception. (2) For the purposes of this rule, the following definitions apply: (f) "Realignment" means rebuilding an existing roadway on a new alignment where the new centerline shifts outside the existing=sight of way, and where the existing road surface is either removed, maintained as an access Deschutes County Public Works CU-97-44/PA-7-4 Page 19 Exhibit Page 20 of z - Ordinance 97- o 06 road or maintained as a connection between the realigned roadway and a road that intersects the original alignment. The realignment shall maintain the function of the existing road segment being realigned as specified in the acknowledged comprehensive plan. FINDINGS: The Hearings Officer finds the applicant's proposal to realign Burgess Road and to relocate its intersection with Highway 97 falls within this definition of "realignment." The proposal includes the rebuilding of Burgess Road outside of its existing right-of-way. In addition, the applicant proposes to maintain the existing Burgess Road right-of-way as an access road to several properties and to vacate portions of the existing right-of-way for the benefit of abutting property owners. Finally, the proposal maintains the function of Burgess Road as a rural collector as designated on the comprehensive plan transportation map. (3) The following transportation improvements are consistent with goals 3, 4, 11, and 14, and subject to the requirements of this rule: (a) Accessory transportation improvements for a use that is allowed or conditionally allowed by ORS 215.213, 215.283, or OAR 660, Division 6 (Forest Lands). (b) Transportation improvements that are allowed or conditionally allowed by ORS 215.213, 215.283, or OAR 660, Division 6 (Forest Lands); (d) Realignment of roads not otherwise allowed under subsection (a) or (b) of this section. (5) For transportation uses or improvements listed in subsection (3)(d) to (g) and (o) of this rule within a ... forest zone, a jurisdiction shall, in addition to demonstrating compliance with the requirements of ORS 215.296 [3]: (a) Identify such reasonable build design alternatives, such as alternative alignments, that are safe and can be constructed at a reasonable cost, not considering raw land costs, with available technology. Until adoption of a local TSP [Transportation System Plan] pursuant to the requirements of OAR 660-12-035, the jurisdiction shall consider design and operations alternatives within the project area that would not result in a substantial reduction in peak hour travel time for projects in the urban fringe that would significantly reduce peak hour travel time. A determination that a project will significantly reduce peak hour travel time is based on 3 ORS 215.296 provides a use allowed on forest -zoned land under ORS 215.213(2) or 215.283(2) are subject to a finding that the use will not force a significant change in accepted forest practices or significantly increase -tile cost of accepted forest practices on surrounding lands. Deschutes County Public Works CU-97-44/PA-7-4 Page 20 // C Exhibit Page Z t of s Ordinance 97-0e� OAR 660-12-035(10). The jurisdiction need not consider alternatives that are inconsistent with applicable standards or not approved by a registered Vro ion l� engineer. �_" ��"�� .1. (b) Assess the effects of the identified alternatives on farm and forest practices, considering the impacts to farm and forest lands, structures and facilities, considering the effects of traffic on the movement of farm and forest vehicles and equipment and considering the effects of access to parcels created on farm and forest lands; and (c) Select from the identified alternatives, the one, or combination of identified alternatives that has the least impact on lands in the immediate vicinity devoted to farm or forest use. FINDINGS: The applicant proposes a transportation improvement -- the realignment of a road -- that is not otherwise allowed under Subsections (3)(a) or (b) of this section. The improvements allowed under Subsection (3)(a) include roads constructed to serve a use allowed outright or conditionally on lands designated for forest uses. The Hearings Officer finds the proposed realignment does not fit within this category because it is intended to serve as a part of the county's transportation system. In addition, the new intersection is not proposed to serve a specific land use, such as a single family dwelling or a forest use. The proposed realignment does not fit within the uses listed in Subsection (3)(b) because the realignment of a public road is not allowed outright or conditionally on forest -zoned lands under ORS 215.213, ORS 215.283 or OAR 660, Division 6. Therefore, the proposal appears to qualify as a realignment under Subsection (3)(d) that does riot require a goal exception to be consistent with Goals 4, but that must comply with the review standards in Subsection (5)(a) through (c). However, this transportation rule language appears to conflict with the language in ORS 215.283 and OAR 660 Division 6, Forest Lands, both of which place the proposed road realignment in the category of uses permitted subject to a goal exception. At the public hearing, the applicant argued the transportation rule language authorizing realignments without a goal exception should control. However, the applicant also apparently argues the review standards in OAR 660-12-065(5)(a) through (c) nevertheless should not apply to the proposed realignment because they exceed the scope of the statutory review standards in ORS 215.296. To say this statutory and administrative rule scheme is complex and confusing would be an understatement. The Hearings Officer finds the question turns on a determination of which of goals -- Goal 4 (Forest Lands) or Goal 12 (Transportation) -- should control where they appear to conflict. I previously was presented with a similar question in two cases involving applications to realign roads in EFU Zones. In those two cases (CU -95- 62 and CU -96-66) I concluded the resource lands goal -- Goal 3 -- controlled. In my decision in CU -96-66, I explained my reasoning as follows: "In June of 1995, after the effective date of the amendments to ORS Chapter 215 described above [allowing road realignments on EFU-zoned lands subject to an exception to Goal 3], ... LCDC adopted an amendment to its administrative rule governing transpdrtation planning, OAR 660-12- 065. The amendment expressly permits the realignment of roadways ... Deschutes County Public Works CU-97-44/PA-7-4 Page 21 Exhibit Page o2Z Z� f Ordinance '37-0(40 without the need to take an exception to Goal 3... However, OAR 660- 12-065(1) provides as follows: "(1) This rule identifies transportation facilities, services and improvements which may be permitted on rural lands consistent with Goals 3, 4, 11 and 14 without a goal � � l89 exception." (Emphasis added.) Tn tli;e NParinac Officer's decision in File #CU -95-62, I concluded that LCDC's The Hearings Officer adheres to the above-described statute, rule and ordinance interpretations and will apply them in this case. Based upon those interpretations, the Hearings Officer finds that in order to gain approval the proposed facility, the applicants must demonstrate compliance with the criteria for an exception to Goal 3 in OAR Chapter 660, Division 4." (Emphasis added.) The Hearings Officer concludes that until the provisions of the administrative rules governing uses allowed on forest -zoned lands are amended to conform with the transportation rule amendments, (OAR 660, Division 6), a road realignment such as that p ;oposed by the applicant require: an exception to Goal 4. With respect to the review standards contained in OAR 660-12-065(5)(a) through (c), the Hearings Officer concurs with the applicant's observation that these standards exceed the review standards set forth in ORS 215.296 and are more onerous than those required to take a goal exception. The Staff Report concludes these review standards are applicable and that the applicant's analysis of the four alternatives discussed in the findings above meets or can meet these standards. I find these standards are not applicable to the subject application because the realignment proposed by the applicant requires a goal exception and therefore is subject to the separate goal exception criteria in OAR 660, Division 4, discussed in detail in the findings above. 3. OAR 660-012-0070, Exceptions for Transportation Improvements on Rural Land. (1) Transportation facilities and improvements which do not meet the requirements of OAR 660-012-065 require an exception to be sited on rural lands. (2) Where an exception to Goals 3, 4, 11, or 14 is required, the exception shall be taken- pursuant to ORS 197.732 1 c , Goal 2, OAR Chapter 660, Division 4, and this division. Deschutes County Public Works CU-97-44/PA-7-4 Page 22 Exhibit Page -Z73 of Ordinance !27'0(aD FINDINGS: The proposal's compliance with the administrative rules governing the taking of an exception to Goal 4 is discussed in detail in the findings abovel ar�,� incorporated by reference herein. �v 2 4 9 0 D. Oregon Administrative Rules Chapter 660-15, State -Wide Planning Goals and Guidelines. FINDINGS: The applicant proposes an amendment to the comprehensive plan in the form of a goal exception. Therefore, the Hearings Officer finds the applicant must demonstrate the proposal is consistent with applicable statewide planning goals. I make the following findings concerning compliance with the goals. Goal 1. Citizen Involvement. The proposal is consistent with this goal because two public hearings will be provided on this matter before a final decision is made. Property owners within 500 feet of this proposal have been notified of these hearings through individual mailed notice. Notice also has been provided through posted notice on the property and through publication in a newspaper of general circulation throughout Deschutes County. Goal 2, Land Use Planning. The proposal is consistent with this goal. As discussed in the findings above, the applicant has met its burden of proving compliance with all applicable approval criteria. Goal 3, Agricultural Lands. This goal is not applicable because the subject property is not planned or designated for agricultural uses. Goal 4, Forest Lands. The applicant has demonstrated compliance with the criteria for the taking of an exception to this goal. Goal 5 Open Spaces Scenic and Historic Areas and Natural Resources. The proposal is consistent with this goal because the applicant has demonstrated the proposed intersection will have minimal impacts on adjacent scenic and natural resources. The applicant has demonstrated through the proposed design of the facility that the facility will not impact the adjacent Goal 5 corridor, Hi�;rrway 97. The applicant has also designed the facility to minimize impacts on deer migration corridors protected through the Wildlife Area Combining Zone. Goal 6 Air Land and Water Oualhy. The proposal is consistent with this criterion because the design of the transportation facility will maintain the quality of the air and land resources of the state. The proposal does not affect water quality because no bodies of water exist near the proposed intersection or road realignment. The proposal maintains air quality by proposing to accommodate current traffic volumes on Burgess Road. The proposal maintains the quality of the land resources by incorporating a design for the realigned segment of Burgess Road that impacts the least amount of land planned for forest uses. Goal 7 Areas Subject to Natural Disasters and Hazards. The proposal is consistent with this goal because the applicant has not proposed to establish the transportation facility on areas subject to natural disasters and hazards. The applicant has not proposed to establish the facility in a location where life and property could be endangered by flooding, erosion, earthquakes, or landslides. Goal 8, Recreational Needs. This goal is _ nat applicable because the proposed transportation facility does not effect lands mapped for a destination resort. Deschutes County Public Works CU-97-44/PA-7-4 Page 23 // C it Exhibit Page --'4 Ordinance �' a Goal 9 Economic Development. This goal is not applicable because the proposal does not affect lands designated for commercial or industrial development in an urban growth boundary. 1 — bound �,, �' �`j� 211 9 Goal 10, Housing. This goal is not applicable because the proposal does not affect land devoted to meeting the housing needs of the state. Goal 11, Public Facilities and Services. The proposal is consistent with this goal because it includes improvements to an existing road and intersection that serve existing rural development. The proposal will serve as part of framework of public transportation facilities intended to serve the rural areas west of the intersection. Goal 12. Transportation. The proposal is consistent with this goal because the applicant has demonstrated the proposal is consistent with the Transportation Rule implementing this goal. The applicant has demonstrated the proposed locations for the road realignment and intersection relocation will have the least impacts on lands devoted to forest uses. Goal 13 Energy Conservation. The proposal is consistent with this goal because the applicant has demonstrated the proposal will have the least negative impacts on energy consumption of the alternative locations for the realignment and intersection relocation that address the need for the new facilities. Goal 14, Urbanization. This goal is not applicable because the proposal does not propose to and will not result in the conversion of rural lands to urban lands. This goal is also not applicable because the proposal will not interfere with the functioning of the closest urban growth boundary, the Bend Urban Growth Boundary located approximately 15 miles to the north. Goals 15 through 19. These goals are not applicable to this proposal because they address river, ocean, and marine resources not located near the subject property. IV. DECISION: Based upon the forgoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the plan amendment and exception to Goal 4, and APPROVES the conditional use permit SUBJECT TO THE FOLLOWING CONDITIONS: 1. The applicant shall not remove the pavement on the portion of Burgess Road that will be realigned. However, if that portion of Burgess Road ultimately is vacated by order of the Board of County Commissioners, the county shall have no further responsibility for maintaining that portion of Burgess Road. 2. The applicant shall re -grade the existing margins of the portion of Burgess Road that will be realigned so that the margins are at or near the same grade as the paved portion of the road. 3. The applicant shall block the eastern end of the segment of Burgess Road that will be realigned, where it meets Highway 97, with a guardrail or similar feature and shall improve the appearance of the vicinity of the blockade with landscaping, berm removal and/or similar methods. 4. The applicant shall provide directional signage on Burgess and its approaches from Skidgel and Antler to county standards and specifications. Deschutes County Public Works CU-97-44/PA-7-4 Page 24 i� C � t Exhibit Page --;,757 of 2-5- Ordinance SOrdinance - '-) -2--©V-6 5. The applicant shall keep the existing segment of Burgess Road to be realigned open to traffic until construction of the realigned segment is completed and it is connected to Highway 97. Dated this 7 day of July, 1997. C 16.2192 y da of Jul Mailed this Y Y, 1997. ��L Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TEN DAYS AFTER MAILING UNLESS TIMELY APPEALED. Deschutes County Public Works CU-97-44/PA-7-4 Page 25