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1998-14145-Ordinance No. 98-001 Recorded 4/3/1998REVIEWED AS TO FORM { L CODE PEVIEW COMM. 98_141,15 REVIEWED Ir L Cts 'I"15EL 1I -4d BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON 88';? An Ordinance Amending PL -20, the Deschutes County Comprehensive Plan, * �f Y to Amend the Text of the Exception * ��_f t Y CI C f Statement of the Plan, and Declaring an Emergency. ORDINANCE NO. 98-001 WHEREAS, Deschutes County adopted amendments to PL -20, the Deschutes County Year 2000 Comprehensive Plan, for the La Pine Urban Unincorporated Community (UUC), File No. TA -95-8, to comply with OAR Chapter 660, Division 22; and WHEREAS, Mid State Electric Co-op, Inc., to correct an inadvertent error, applied for a plan amendment and zone change for 4.35 -acres of EFU-zoned land, in order to include the exception area in the La Pine UUC boundary and plan and zone the land for commercial use; and WHEREAS, such an application requires the County to adopt an exception to Statewide Planning Goals 3, Agricultural Land, Goal 11, Public Facilities and Services and Goal 14, Urbanization; and WHEREAS, the goal exception 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 that Mid State Electric Co-op, Inc., has satisfied all applicable criteria for approval of the plan amendment and zone change and the exception; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. PL -20, the Deschutes County Comprehensive Plan, is further amended by approving an exception to Goals 3, 11 and 14 for the land described in Exhibit "A," attached hereto and by this reference incorporated herein, and by amending the exceptions 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 PA -97-8 and ZC-97-4, which are contingent upon adoption of the exception set forth PAGE 1 of 2 - ORDINANCE NO. 98-001 (3/25/98) MICROFILMED ? Pp I.s 1998 0164-29D herein. The Board adopts the Decision of Deschutes County Hearings Officer on PA -97-8 / ZC-97- 4, attached hereto as Exhibit "C," as its own. 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 ,,,9,5 day of)q' riu1 1998. BOARD OF COUNTY COM OF,DESCHUTES-COUNTY EN, Chair ATTEST: ROFRT L. NIPPER, Commis§i&ner Recording Secretary LIN'IYA L. SWEARINGEN, Commissioner PAGE 2 of 2 - ORDINANCE NO. 98-001 (3/25/98) f1�i,6 X.0 "14 EXHIBIT "A" Legal Description PORTION OF 2=15DATAX LOT 300 TO BE REZONED PROPERTY DESCRIPTION A parcel of land coritaining 7.1'5 acres, mora or less, located in a portion of the Northeast One -Quarter of the Southeast One -Quarter (NE1/4 SE1/4) of Section 15, Township 22 South, Range 10 East, Willamette Meridian, Deschutes County, Oregon, being more particularly described as follows: Beginning at a 5/8' iron rod with plastic cap marked 'CWEC' marking. the southeast comer of the .parcel surveyed in Record of Survey for Midstate Electric Cooperative (CS# 1127.0. as tied. on October 21, 199Z in.the office of the Deschutes County Surveyor); thence along the east line of said parcel North 0009'11' East, 483.64 feet to the northeast comer of said parcel; thence leaving said east line and along the north line of said parcel North 78°56'37' West, 55(.68 feet to a point on the easterly. 50.00 foot right-of-way line of the Dallas -California Highway, said point being the northwest comer of said parcel; thence leaving said north line and along said right-of-way line South 30026'56" West, 274.12 feet to a point on the edge of an e)asting wetland; thence, leaving said right-of- way line and along the edge of said wetland the following eighteen courses: South 53049'4T East, 43.11 feet; South 37°22'14' East, 12.75 feet; South 23056'39" East, 51.92 feet; South 2704146' East, 39.61 feet; South 28011'09' East, 23.37 feet; REGISTERED South 51012'13' East. 13.17 feet; PROFESSIONAL South 78013'13" East, 18.96 feet; D SURVEYOR South 79°33'10' East, 18.57 feet; South 64056"22* East, 11.34 feet; i South 101146' East,.24.34 feet; South 35°01'32" East, 6.04 feet; JULY South 6°52'53' East, 51.22 feet~ PETER A. MA'•.LEY is 1, South 37°2673 East, 17.37 feet; South 22°5T54' East, 31.46 feet; South 34°08'57" East, 38.83 feet; South 47033'07' East, 26.52 feet; South 39°33'33' East, 26.48 feet; South 68032'32" East. 8.92 feet to a point on -the south line of said parcel; PAGE 1 OF 3 — EXHIBIT "A" TO ORDINANCE NO. 98-001 (3/25/98) thence leaving the edge of no wetlands and along said south line North 89°52'08' East, 437.25 feet to the point of beginning, the tonydnus of this description. SUBJECT TO: All easements, restrictions, and rights -of -ways of record and those common and apparent on the land. The record data as shown on above CSO 11270 was held to establish the boundaries of tha parcel shown on said survey. The tines delineating the wetlands area were surveyed in the field. REGISTMED PROFESSIONAL hD SURVEYOR 3-/N -m ALY 1. lope PETER A. MANLEY 2214 �/4f 1277 JOB # Z901", oASE_3- PAGE 2 OF 3 — EXHIBIT "A" TO ORDINANCE NO. 98-001 (3/25/98) 016 2:;4`2 oczlLOS* —0VW3U ,*sTe► 3.l 1,60.00N g r ' O _H z. N 28!� .r S 1 • O �S H Z � �•5Z V� W �i o 8 • � ��5 �, Li W 1— � O� fin - �` °ydo / r� 0 kia ZLU z D W¢� �5> Q� U) :3 ,Zi N W cc � Q cu w C4 0 W Isr �~ a 'PAGE 3 O - TO ORDINANCE NO. 98-001 (3/25/98) vW W= W r.. s t^ a • p� gg N��:-M1 O rp. _ O_ 4l'r'• rNrv- In P �{�ppO lq N f�/f Of tN/1 N Uf //O! N r-7—; tiff N W J N m ~ C7 tl^9� nNM~ Nnl'. � Meg � _ J r41 cd _11 Z J-121 Jj� -1155a1 -111515101 J J J J J J J J J N 28!� .r S 1 • O �S H Z � �•5Z V� W �i o 8 • � ��5 �, Li W 1— � O� fin - �` °ydo / r� 0 kia ZLU z D W¢� �5> Q� U) :3 ,Zi N W cc � Q cu w C4 0 W Isr �~ a 'PAGE 3 O - TO ORDINANCE NO. 98-001 (3/25/98) 664-4923 EXHIBIT `B" Exceptions Statement In conjunction with approval of PA -97-8 and ZC-97-4, a plan amendment and zone change for an area of land zoned exclusive farm use and physically developed with the Mid State Electric Co-op, Inc. facility, exceptions to Statewide Planning Goal 3, Agricultural Land, Goal 11, Public Facilities and Services and Goal 14, Urbanization was taken. The goal exceptions allowed the subject land to be included in the La Pine UUC boundary and be planned and zoned for commercial use. Findings to support the goal exceptions for this land are set forth in Exhibit "C" to Ordinance 98-001, incorporated herein by reference. PAGE 1 OF 1 — EXHIBIT `B" TO ORDINANCE NO. 98-001 (3/25/98) 0164-2924 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA-97-8/ZC-97-4 IN C,,34 HEARING DATE: January 20, 1998 APPLICANT/: Mid -State Electric Co-op, Inc.Co OWNER:APPLICANT'S Bob Lovlien ATTORNEYS: Bryant Lovlien & Jarvis PC REQUESTS: Applications for a plan amendment & zone change to include a 4.35 -acre portion of applicant's property within the La Pine Unincorporated Community Boundary. STAFF : Tracy Allen, Assistant Planner I. APPLICABLE CRITERIA: A. Title 22, the Deschutes County Procedures Ordinance of the DCC. 1. Chapter 22.20, Review of Land Use Applications. B. Oregon's Statewide Planning Goals 1. Goal 1, Citizen Involvement. 2. Goal 2, Land Use Planning — Part II, Exceptions. 3. Goal 3, Agricultural Lands. 4. Goal 11, Public Facilities and Services. 5. Goal 14, Urbanization. C. Oregon Revised Statutes Chapter 197 1. 197.732, Goal Exceptions: Goal exceptions; criteria; rules; review. D. Oregon Administrative Rules (OAR) 1. Oregon Administrative Rules, Chapter 660, Division 4 a. Purpose. b. Application of the Goal 2 Process to Certain Goals. c. Planning and Zoning for Exception Areas. d. Exception Requirements for Land Physically Developed to Other Uses. 2. OAR 660 Division 12 — Transportation Planning Rule. a. Plan and Land Use Regulation Amendments. 3. OAR 660, Division 22 — Unincorporated Communities Rule a. Designations of Community Areas; OAR 660-22-020. 1 - (PA-97-8/ZC-97-4) Exhibit Page 4 of 77 Ordinance I&'1°// 0164-2925 b. Planning and Zoning of Unincorporated Communities; OAR -660-22-030 E. The Deschutes County Year 2000 Comprehensive Plan for La Pine. F. Title 18, the Deschutes County Zoning Ordinance of the DCC. 1. Chapter 18.136, Amendments. 2. Chapter 18.61, Urban Unincorporated Community Zone — La Pine. II. BASIC FINDINGS A. LOCATION: The applicant's property is located at 51340 Highway 97 in La Pine and is comprised of two tax lots, 300 and 400 on County Assessor's map number 22- 10-15DA. B. SITE DESCRIPTION: The property is bounded on the west by US Hwy. 97, on the east by Huntington Road, on the south by the undeveloped 9th Street right-of-way and on the north by privately owned commercial properties. Tax lot 400 is north of the vacated 8th Street right-of-way and is developed with the applicant's office and vehicle storage building on 2.55 acres that is within the La Pine Urban Unincorporated Community (UUC) boundary. Tax lot 300 is mostly south of the 8th Street right-of-way and is developed with an equipment maintenance and repair building, paved employee parking, a paved and fenced storage yard and a heliport on about 4.35 acres of land. About 1.9 acres in the southwest corner of tax lot 300 are undeveloped and contain delineated wetlands. Most of tax lot 300 is outside the La Pine UUC boundary. The portion of tax lot 300 which is outside of the UUC, other than the delineated wetlands, is the subject of these applications. C. SURROUNDING LAND USES: The surrounding land to the north and east of the subject property is within the La Pine UUC boundary. Land uses to the north along US 97 include a grocery store, a bank, a drug store, a gas station, real estate offices, a motel and other commercial uses. Land uses to the east across Huntington Road are residential, including several single-family dwellings and two manufactured home parks. The surrounding lands to the west and south are outside the La Pine UUC boundary and are used for livestock pasture. D. SITE HISTORY: The Mid -State Electric facility was first established in its present location in 1951. That year, Mid -State acquired property north of the 8th Street right-of-way. In 1971, Mid -State purchased the remainder of the property from the Stearns family. At that time the 8th Street right-of-way was vacated. Over the next three years, in the early 1970s, a portion of the land south of the vacated 8th Street right-of-way was filled, graded and paved. The equipment shed was built and the site was fenced. Most of the Mid -State property has been physically developed and in use since the early 1970s. The developed 4.35 acres south of the vacated 8th Street right- of-way has been used continually for storing poles, transformers, electrical equipment and for employee parking. A 1976 aerial photograph in the county collection confirms 2 - (PA-97-8/ZC-97-4) Exhibit C Page — of / �4 Ordinance 9T-00 / 0164-2926 tax lots 300 and 400 have been substantially developed as the applicant's Burden of Proof describes since the 1970s (See Exhibit C). In 1985, Mid -State built a vehicle and transformer maintenance shops on the 4.35 acres south of the vacated 8th Street right-of-way. In 1990, Mid -State continued developing this area by filling and grading to pave additional parking and install a heliport. The applicant states that this was accomplished with county approval. However, this cannot be confirmed based on county land use permit records. EXISTING ZONING: Mid -State's land north of the vacated 8th Street right-of-way is zoned La Pine Commercial District (LPCD) and designated Commercial on the county Plan map. This land includes all of tax lot 400 (2.29 acres) and a small portion (0.26 acres) of tax lot 300 that lies north of 8th Street. Most of tax lot 300 (6.48 acres) lies south of the vacated 8th Street right-of-way. There are 4.35 acres of this land zoned Exclusive Farm Use -La Pine (EFU-LA) Subzone and also in the Landscape Management (LM) and Wildlife Area (WA) Combining Zones. There are 1.9 acres in the southwest corner that are zoned Flood Plain and contain delineated wetlands. The wetland is also in the WA zone. G. LEGISLATIVE HISTORY: Physical development of the Mid -State property began before the county had adopted a zoning ordinance. Mid -State purchased the south portion of its property and developed it in the early 1970s. At about that time, 1972-73, the county adopted its first countywide zoning ordinance, Public Law -5 (PL -5). As a result, the portion of land north of the 8th Street right-of-way was zoned commercial (C-2) and the south portion was zoned agriculture (A-1). The zone boundaries are shown on the county zoning map, ZM-5 for La Pine, adopted in June 1973 (Exhibit D). The A-1 zone allowed outright public and semi-public uses, which arguably by definition included utility facilities such as the Mid -State Electric Cooperative headquarters. In 1979, Deschutes County amended the Comprehensive Plan and adopted a new Zoning Ordinance, Public Law 15 ( PL -15), to comply with the Oregon statewide planning goals. The split zoning of the Mid -State property was carried through in the 1979 plan and zoning amendments. The land north of the 8th Street right-of-way was zoned Rural Service Center (RSC) and designated Rural Residential Exception Area on the County Comprehensive Plan. About 4 acres of Mid -State land south of 8th Street was zoned Exclusive Farm Use (EFU) and designated Agriculture on the Plan map. It has been planned and zoned for exclusive farm use for nineteen years (1979 - present). Apparently, in the early days of the EFU zone, the county considered Mid -State's operation a "utility facility," a use allowed by Goal 3. As such, the county allowed its expansion, as evidenced by county land use and building permit records. Later, the county determined that the statutory requirements of Goal 3 excluded an electric power 3 - (PA -97-82C-97-4) Exhibit C Page .--- of i Ordinance .00 dog 0164-292'7 utility from the list of uses allowed in an EFU zone. Therefore, the Mid -State maintenance shops and storage yard on EFU-zoned land became a nonconforming use. This meant that Mid -State could not expand its facility onto this land. In 1996, as part of periodic review, Deschutes County updated the county Plan and Zoning Ordinance for La Pine to comply with OAR 660-22, the Unincorporated Communities rule. This legislative planning process is documented in File No. TA -95- 8. The county adopted a series of ordinances to amend the county Plan and Zoning Ordinance for La Pine, establishing the La Pine UUC boundary. These ordinances are listed below: - Ordinance No. 96-002: An ordinance amending the Growth Management Chapter, Rural Development section of the Deschutes County Comprehensive Plan and to add policies, findings and a public facilities plan for the La Pine Unincorporated Community. - Ordinance No. 96-003: An ordinance amending the Deschutes County Code Title 18 to add zoning districts for the La Pine Unincorporated Community. - Ordinance No. 96-004: An ordinance amending the Deschutes County Comprehensive Plan map for the La Pine Unincorporated Community. - Ordinance No. 96-005: An ordinance amending the Deschutes County Code Title 18 Zoning map for the La Pine Unincorporated Community. As a result of the community planning process, the 2.55 acres of the Mid -State property north of the vacated 8th Street right-of-way was included in the La Pine UUC boundary and planned and zoned for commercial uses. The 6.25 acres south of 8th Street was not included in the La Pine UUC and the zoning was not changed (Exhibit E). Some months after the county adopted the La Pine amending ordinances, the applicant became aware that the portion of their land lying south of the vacated 8th Street right- of-way was excluded from the La Pine UUC boundary. The applicant contends that the county erred when it applied split -zoning to the Mid - State property in 1979 and again, more recently, when the southern portion of their land was excluded from the La Pine UUC boundary. The county acknowledged an element of error. In 1979, the county could have more carefully studied the land use and ownership patterns, particularly at the margins of the La Pine RSC when it drew the 1979 zone boundaries and also in 1996 when it drew the La Pine UUC boundary. However, the applicant also had the opportunity to participate in the 1979 and 1996 planning processes. In the summer of 1997, the applicant convened a pre -application meeting with Planning Division staff and Brent Lake of the Department of Land Conservation and Development to discuss this matter. Rather than address the UUC boundary expansion requirements contained in OAR 660-22-040, the group decided that this 4 - (PA-97-8/ZC-97-4) Exhibit C Page 4- of /2-' Ordinance 98'-00/ 0164-2928 situation called for processing a Comprehensive Plan and Zoning Ordinance amendment to correct an error. These amendments would involve taking an exception to Goals 3 and14, and possibly Goal 11. The applicant proposes to include the southern portion of its property, excluding the delineated wetlands, within the UUC boundary. In light of the parties stipulation regarding the applicable criteria, the Hearings Officer will not address OAR 660-22-040. H. PROPOSAL: The applicant is proposing the following ordinances to amend the Deschutes County Comprehensive Plan and Zoning Ordinance: - Ordinance No. 98-001: 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. 98.002: An ordinance amending PL -20, the Deschutes County Comprehensive Plan map to expand the La Pine UUC Boundary to include land inadvertently excluded in File No. TA -95-8. - Ordinance No. 98-003. An ordinance amending Title 18, the Deschutes County Zoning Ordinance map to expand the La Pine UUC Boundary to include land inadvertently excluded in File No. TA -95-8. As a result these amendments the La Pine UUC boundary would be expanded as shown on Exhibit F. The land subject to the proposed amendments is defined as the 4.35 acres of land identified as the part of tax lot 300 south of the vacated 8th Street right-of-way that is not in the Flood Plain as shown on Exhibit G. The remaining 1.9 acres of the Mid -State property south of the vacated 8th Street right-of-way has not been physically developed. It is zoned Flood Plain, and is not proposed to be included in the exception site (Exhibit H). I. PUBLIC NOTICE AND COMMENTS: The Deschutes County Planning Division mailed notice to affected public agencies and surrounding property owners and received the comments set forth in the Staff Report. J. PROCEDURAL HISTORY: Pursuant to Title 18, section 22.20.040(D), applications for quasi-judicial Comprehensive Plan amendments are exempt from the 120/150 day time limit. The record was left open at the end of the public hearing until 5:00 p.m. on January 27, 1998. III. CONCLUSIONARY FINDINGS A. Oregon's Statewide Planning Goals 1. Goal 1, Citizen Involvement. 5 - (PA-97-8/ZC-97-4) Exhibit C Page .-4: of Ordinance ?1'' O° 0164-2929 To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process. FINDING: The proposed goal exception was processed in accordance with Title 22, the County's Development Procedures Ordinance. Title 22 requires public notice to be mailed to all property owners within 500 feet, published in a paper of general circulation (the Bend Bulletin), and physically posted on the property. One public hearing was held before the Hearings Officer and another public hearing will be held before the Board of County Commissioners. The opportunity for appeal is also provided to all parties. Goal 1 will be satisfied by adherence to the County's land use procedures as established in Title 22. 2. Goal 2: Land Use Planning; Part II, Exceptions. A local government may adopt an exception to a goal when the land subject to the exception is physically developed to the extent that it is no longer available for uses allowed by the applicable goal; FINDING: The applicant is requesting an exception to Goal 3, Agricultural Lands, on the basis that the subject 4.35 acres of land is physically developed to the extent that it is no longer suitable for agricultural uses. In addition, the applicant is proposing exceptions to Goal 11, Public Facilities and Services, and Goal 14, Urbanization, in order to plan and zone the subject EFU-zoned land for commercial uses and include it in the La Pine UUC boundary. 3. Goal 3: Agricultural Lands. To preserve and maintain agricultural lands. FINDING: As noted, the subject 4.35 acres of the Mid -State property is currently planned and zoned for agricultural uses. The land has been under one ownership and developed as a single use since the early 1970s. Since then, the subject 4.35 acres has been developed with a maintenance shop and storage yard and used continually by Mid -State to store and maintain transformers and electrical equipment and for employee parking. An aerial photograph in the county's collection, dated October 5, 1976, confirms that the subject 4.35 acres was developed before the 1979 EFU zoning was applied. The applicant stated that the subject 4.35 acres is both physically developed and irrevocably committed to use as a public utility maintenance compound, such that uses allowed by Goal 3 would be impracticable. 4. Goal 11: Public Facilities. 6 - (PA-97-8/ZC-97-4) Exhibit c Page G of Ordinance I -'L � 0164-2930 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.... Counties shall not allow the establishment of new sewer systems outside urban growth boundaries or unincorporated communities boundaries, or allow new extensions of sewer lines from within urban growth boundaries or unincorporated community boundaries to land outside those boundaries. FINDING: Mid -State desires to expand its facility in a way that sewer would need to be extended to the subject 4.35 acres that is currently outside the La Pine UUC boundary. Therefore, the applicant is proposing an exception to Goal 11. In this application, the applicant proposes code amendments that would include the subject 4.35 acres in the La Pine UUC boundary. If the 4.35 acres were included the UUC boundary, the sewer could be efficiently extended in accordance with Goal 11. 5. Goal 14: Urbanization. To provide for an orderly and efficient transition from rural to urban land use. In unincorporated communities outside urban growth boundaries counties may approve uses, public facilities and services more intensive than allowed on rural lands by Goal 11 and 14, either by exception to those goals, or as provided by commission rules which ensure such uses do not adversely affect agricultural and forest operations. FINDING: The applicant's proposal to include the subject 4.35 acres of developed land. in the La Pine UUC and rezone it for commercial uses would not adversely affect the agricultural use of the site or farm operations on surrounding land. The subject land has never been employed in agricultural uses. It has been owned and developed as part of the Mid -State Electric facility since the early 1970s. It has been filled, graded and paved and used continually as a maintenance and storage yard. It would not be practicable to return this land to a condition that would allow agricultural uses. The agricultural lands adjacent to the south and to the west across US Hwy. 97 are used for livestock grazing. This land is actually zoned Flood Plain (FP). While it is possible to graze livestock, the high water table limits the range of suitable farm uses. Activities associated with livestock grazing include dust, manure odor, flies, cattle noises, livestock escape and property damage and interference with vehicular traffic on local roads. The livestock grazing operations on adjacent lands have apparently coexisted without adverse affect in the presence of the Mid -State Electric facility for over 25 years. US Hwy. 97 to the west and the site topography and the 9th Street right-of-way to the south provide buffers between the livestock grazing operations and any future development on the Mid -State property. (2) interfere with the efficient functioning of urban growth boundaries. FINDING: The La Pine UUC is located about 30 miles south of the City of Bend's urban growth boundary (UGB). This is the closest UGB. The proposed amendments 7 - (PA-97-8/ZC-97-4) Exhibit 01--- Page __ of / �4 Ordinance U-004- 0164-2931 would have no affect on the functioning of the Bend UGB. The Mid -State Electric Co- op serves the La Pine area. Mid -State intends to serve the growing population of the La Pine UUC and the surrounding rural area. It would be necessary for the subject 4.35 acres to be included in the La Pine UUC in order for the utility to expand. If it expanded its facility it could construct and maintain more power lines and serve the area more efficiently. Such an expansion may create a few jobs, but would not create significant new housing demand. C. Oregon Revised Statutes Chapter 197 ORS 197.732, Goal Exceptions. Goal exceptions; criteria; rules; review. FINDING: The language contained in ORS 197.732 is identical to the requirements for goal exceptions provided in Goal 2, Part II, which has been addressed above. D. Oregon Administrative Rules (OAR) Chapter 660, Division 4 - Interpretation of Goal 2 Exception Process a. Purpose. The purpose of this rule is to explain the three types of exceptions set forth in Goal 2 "Land Use Planning, Part ii, Exceptions". Except as provided for in OAR Chapter 660, Division 4, "Application of Statewide Planning goals to the incorporation of New Cities" this Division interprets the exception process as it applies to statewide Goals 3 to 19. (2) An exception is a decision to exclude certain land from the requirements of one or more applicable statewide goals in accordance with the process specified in Goal 2, Part II, Exceptions. The documentation for an exception must be set forth in a local government's comprehensive plan. Such documentation must support a conclusion that the standards for an exception have been met. The conclusion shall be based on findings of fact supported by substantial evidence in the record of the local proceeding and by a statement of reasons, which explains why the proposed use not allowed by the applicable goal should be provided for. The exceptions process is not to be used to indicate that a jurisdiction disagrees with a goal. FINDING: The proposed exception site would exclude 4.35 acres of the Mid -State Electric property from the requirements of Goals 3, 11 and 14. The documentation for these exceptions shall be set forth in the Deschutes County Comprehensive Plan. The standards for an exception pursuant to Goal 2, Part Il, Exceptions are addressed below under the findings for OAR 660-04-010. In accordance with the exception criteria, county staff and the Hearings Officer analyzed the evidence provided in the applicant's burden of proof and county records, made findings and drew conclusions that are consistent with Oregon Administrative Rules. b. Application of the Goal 2 Process to Certain Goals. 8 - (PA-97-8/ZC-97-4) Exhibit G - Page of ..— Ordinance 211`04� 0164-2932 660-04-010 FINDING: The Goal 2 exceptions process applies to Goals 3, 11 and 14. C. Planning and Zoning for Exception Areas. 660 04-018(1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exception areas. Exceptions to one goal or a portion or 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. Physically developed and irrevocably committed exceptions under OAR 660-04-025 and 660-04-028 are intended to recognize and allow continuation of existing types of development in the exception area. Adoption of plan and zoning provisions, which would allow changes in existing types of uses, requires application of standards outlined in this rule. (2) "Physically Developed" and "Irrevocably Committed" Exceptions to goals other than Goals 11 and 14. Plan and zone designations shall limit uses to: (a) Uses which are the same as the existing types of land uses on the exception site. FINDING: A "physically developed" exception to Goal 3 is intended to recognize and allow the existing types of development in the exception area to continue. As noted, the proposed 4.35 -acre exception site has been developed as part of the Mid -State Electric's headquarters since the early 1970s. It appears that the proposed 4.35 -acre exception site was inadvertently excluded from the La Pine UUC boundary when it was originally acknowledged. The existing Mid -State Electric facility is a commercial development. The proposed commercial plan designation and LPCD zoning would limit potential uses to commercial uses that are the same type and intensity as the existing Mid -State development. The LPCD zoning would allow Mid -State to expand on the exception site or allow it to be redeveloped with similar commercial types of uses. LPCD zoning would not allow industrial types of uses. Under these circumstances, it is logical and consistent with the "physically developed" exception criteria for the proposed exception site to be included in the La Pine UUC, designated for commercial uses and zoned LPCD. d. Exception Requirements for Land Physically Developed to Other Uses. 660-040-025 (1) A local government may adopt an exception to a goal when the land subject to the exception is physically developed to the extent that it is no longer available for uses allowed by the applicable goal. (2) Whether land has been physically developed with uses not allowed by an applicable Goal, will depend on the situation at the site of the exception. The exact nature and extent of the areas found to be physically developed shall be clearly set 9 - (PA-97-8/ZC-97-4) Exhibit G Page of Ordinance 117 0164-2933 forth in the justification for the exception. The specific area(s) must be shown on a map or otherwise described and keyed to the appropriate findings of fact. The findings of fact shall identify the extent and location of the existing physical development on the land and can include information on structures, roads, sewer and water facilities, and utility facilities. Uses allowed by the applicable goal(s) to which an exception is being taken shall not be used to justify a physically developed exception. FINDING: For all intents and purposes, the existing development precludes any agricultural use of the 4.35 acres. The facts in the record document that the subject 4.35 acres has historically been developed and used as part of Mid -State Electric's maintenance and storage yard. Thus, this subject land satisfies the "physically developed" requirements for exceptions to Goals 3, 11 and 14. 2. OAR 660, Division 22 — Unincorporated Communities Rule a. Designations of Community Areas. OAR 660-22-020(3) The boundaries of unincorporated communities shall be shown on the county comprehensive plan map at a scale sufficient to determine accurately which properties are included. Only land meeting the following criteria may included within an unincorporated community: (a) Land, which has been acknowledged as an exception area and, historically, considered to be part of the community; (b) Land planned and zoned for farm or forest use which is contiguous to the community area and contains public uses considered to be part of the community, provided such land remains planned and zoned under Goal 3 or 4. FINDING: The Rural Communities Rule provides that the boundaries of unincorporated communities be designated and shown on the county Comprehensive Plan map at a scale sufficient to determine which properties are included. The rule limits and guides the land that is eligible for inclusion in a community boundary. Land that has been acknowledged as an exception area and historically considered to be part of the community may be included in the boundary. As discussed, the subject 4.35 acres of the Mid -State property satisfies the requirements to be acknowledged as an exception area and has been developed as part of the La Pine community since the early 1970s. The applicant proposes an amendment to the Deschutes County Comprehensive Plan for La Pine UUC that would expand the La Pine UUC boundary as shown in Exhibit F to include the subject 4.35 acres. b. Planning and Zoning of Unincorporated Communities. OAR -22-030(1) For rural communities, resort communities and urban unincorporated communities, counties shall adopt individual pan and zone designations reflecting the projected use for each property (e.g., residential, commercial, industrial, public) for all land in each community. Changes in plan and zone designations shall follow the 10 - (PA -97-82C-97-4) Exhibit % Page --2-- of Ordinance 98— 0164-2934 requirements to the applicable post acknowledgment provisions of ORS 197.610 through 197.625. FINDING: Having established that the subject land qualifies for designation in the La Pine UUC boundary, the county is required to adopt plan and zone designations reflecting the projected use for each property. The applicant is proposing that the subject 4.35 acres be designated commercial on the county Plan map and zoned La Pine Commercial District (LPCD). It is logical that the south 4.35 acres be designated for commercial uses and zoned LPCD the same as the northern portion of the Mid - State property. The LPCD zoning would allow the land to be redeveloped for any use allowed in the LPCD. The existing Mid -State facility is the same type and intensity of use allowed by the proposed LPCD zone. (4) County plans and land use regulations may authorize only the following new commercial uses in unincorporated communities: (a) Uses authorized under Goals 3 and 4; (b) Small-scale, low impact uses; (c) Uses intended to serve the community and surrounding rural area or the travel needs of people passing through the area. FINDING: The LPCD zone developed during the La Pine community planning process documented in File No. TA -95-8, complies with this provision of the Unincorporated Communities Rule. No changes to text of the LPCD zone are proposed with this application. Therefore, this provision is not applicable to this application. 3. OAR 660 Division 12 — Transportation Planning Rule. a. 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 consistent 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: (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 the land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. FINDING: The applicant is proposing an amendment to an acknowledged comprehensive plan that may affect US Hwy. 97. US 97 fronts the west boundary of the Mid -State property. It is designated as a principal arterial on the Deschutes County Transportation Plan. The applicant is proposing a plan and zoning amendment that 11 - (PA-97-8/ZC-97-4) Exhibit — Page of OrdinanceZL-&o 0164-2935 would up -zone the land from exclusive farm use to commercial use in the La Pine UUC. It is true that the uses allowed in the LPCD zone are more intense than those allowed in the EFU zone. However, the Mid -State property is already developed with a commercial use that is similar in kind and intensity to the uses allowed in the LPCD. In this instance, the proposed plan and zoning amendments would not significantly affect US 97. E. Title 18, the Deschutes County Zoning Ordinance of the DCC. Chapter 18.136, Amendments. a. Section 18.136.020, 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 to the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. FINDING: The applicant is proposing to amend the Deschutes County Comprehensive Plan and Zoning ordinance for the La Pine UUC by expanding the La Pine UUC boundary to include the subject 4.35 acres and to plan and zone the land for commercial uses. The findings under OAR 660-22 establish that the applicant's proposal is consistent with the requirements of the Unincorporated Communities Rule. In 1996, as part of periodic review, Deschutes County updated the county Plan and Zoning Ordinance for La Pine to comply with OAR 660-22 (File No. TA -95-8). Since the applicant's proposal is consistent with OAR 660-22, it is also consistent with the recent amendments to the county plan and zoning ordinance for La Pine. Relevant La Pine Plan polices include: - 6. Develop the commercial area with uses intended to serve the community and surrounding rural area or the travel needs of people passing through the area. The surrounding rural area includes the area South of La Pine State Park Road to Klamath County Line that is zoned Rural Residential, Forest, and Exclusive Farm Use; and - 8. Develop community infrastructure including sewer, water, streets, sidewalks and transportation. The Mid -State Electric Co-op is a use that is intended to the serve the community and the surrounding rural area. It provides the community with needed infrastructure. Planning and zoning the subject 4.35 acres of the Mid -State property for commercial uses is consistent with the county plan policies for La Pine. 12 - (PA-97-8/ZC-97-4) Exhibit Page /a-' of 1.. Ordinance 9V'Oai 0164-2936 B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDING: The proposed change in plan designation and zoning classification for the subject 4.35 acres is consistent with the purpose and intent of the proposed zone classification. Based on the findings under OAR 660-04, the applicant's proposal satisfies the requirements for "physically developed" goal exceptions. Based on the findings under OAR 660-22, the applicant's proposal qualifies for designation in the La Pine UUC boundary. As such it can be planned and zoned for uses in the La Pine Commercial District (LPCD). The LPCD classification permits a public use, office and service establishment subject to site plan review. The existing or expanded Mid -State Electric facility would fit into one or more of these use categories. C. That changing the zoning will presently serve the public health, safety and welfare of providing the following factors: 1. The availability and efficiency of providing necessary public services and facilities. FINDING: The proposed amendments would increase the availability and efficiency of providing public services and facilities. As noted in the findings under Statewide Planning Goal 14, Mid -State Electric intends to serve the growing population of the La Pine UUC and the surrounding rural area. It would be necessary for the subject 4.35 acres to be included in the La Pine UUC in order for the electricity provider to expand. If it expanded, it could construct and maintain more power lines and serve the area more efficiently. 2. The impacts on the surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDING: The Deschutes County Comprehensive Plan for La Pine designates the La Pine UUC boundary and plans the community for urban uses. The applicant's proposal merely applies an appropriate commercial plan designation and zone classification to 4.35 acres that have been developed with a commercial use since the 1970s. The surrounding land uses are described in Basic Findings B. The Mid -State Electric facility has co -existed with these uses for over 20 years. The county zoning ordinance implements the Comprehensive Plan. Expansion of the Mid -State facility would be subject to land use review and approval to assure conformance with the applicable approval criteria. 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. 13 - (PA-97-8/ZC-97-4) Exhibit C Page -1— of Ordinance V '"I 0164-2931 FINDING: As discussed, it is apparent that a mistake was made when the county applied the 1979 EFU-zone to the subject 4.35 acres, and again in 1996 when this land was excluded from the La Pine UUC boundary. F. The Deschutes County Year 2000 Comprehensive Plan for La Pine. The applicant proposes the following amendment to the Exceptions Statement of the Deschutes County Year 2000 Comprehensive Plan: "In conjunction with approval of File No. PA -97-8 / ZC-97-4, for an amendment to the Deschutes County Comprehensive Plan and Zoning Ordinance for the La Pine UUC, a "physically developed" exception to Goals 3: Agricultural Lands, 11: Public Facilities, and 14: Urbanization, was taken to allow 4.35 acres of land owned by Mid -State Electric Co-op, Inc., to be included in the La Pine UUC boundary and planned and zoned for commercial uses. Findings documenting why the state policy embodied in Goals 3, 11 and 14 should not apply in this case are set forth in Exhibit _ to Ordinance No. 98-001." IV. Decision The applicant's proposal meets the criteria for an exception to Statewide Planning Goals 3, 11 and 14 and the criteria for a plan amendment and zone change set forth in chapter 18.136 of the DCC. Therefore, the applications are APPROVED. Dated: February 5, 1998. Christ, er C. Eck, Hearings Officer Mailed: February �0 , 1998. THIS DECISION BECOMES FINAL TEN DAYS AFTER MAILING, UNLESS TIMELY APPEALED. 14 - (PA-97-8/ZC-97-4) Exhibit G Page � Of �- Ordinance