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1998-27180-Ordinance No. 98-039 Recorded 6/11/1998REp�V VIEWE' IEWEb AS TO FOAM w --_— 168 0284 �FFRQi rn4 �ni5r� _.... 98~27AW 0009 FIEVI W COMM, BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending PL -20, the Deschutes County Comprehensive Plan, * ' '_ H: to Amend the site-specific ESEE analysis CGU' FY CL ERN for the sage grouse sites designated as DE 0998-01 and DE 0998-02, and Declaring an Emergency. ORDINANCENO.98-039 WHEREAS, Charles and Janet Nash applied for a conditional use permit and a quasi- judicial amendment to the County Comprehensive Plan to establish a farm dwelling within one- quarter mile of two sensitive habitat areas; and WHEREAS, the County Hearings Officer has held an initial hearing on this application; and WHEREAS, the Hearings Officer found that Charles and Janet Nash have satisfied all applicable criteria for approval of the conditional use permit and the quasi-judicial plan amendment; 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 the amended site-specific ESEE analysis for the land described in Exhibit "A," attached hereto and by this reference incorporated herein, and by amending the ESEE findings and decision 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 -98-16, which is contingent upon adoption of the amendment to the site-specific ESEE analysis as set forth herein. The Board adopts the Decision of Deschutes County Hearings Officer on CU -98-16, 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. MICRoWE® KEYPU ' . 'E0 PAGE 1 of - ORDINANCE NO. 98-039 (6/10/98) JUL 0 11998 JUIN 99+3 168 m 0285 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 day o 91998. BOARD OF COUNTY COMMISSIONERS ATTEST: Recording Secretary OF DESCHUTES COUNTY, OREGON PAGE 2 of 2 - ORDINANCE NO. 98-039 (6/10/98) U X1.68 0286 Exhibit "A" The S1/2 of the NI/2 of Section 2; the SI/2 of the NEIA, and the W1/2 of the SE1/4 of Section 3; the W1/2 of Section 10; the SEI/4 of the NEI/4, and the EI/2 of the SEI/4 of Section 12, all in Township Twenty (20) South, Range Fourtean (14) East of the Willamette Meridian, Deschutes County, Oregon. The NW1/4 of the NEI/4, the S1/2 of the NEI/4, and the S1/2 of Section 19; the SWI/4 of the NW1/4, the NEI/4 of the SWI/4, the NI/2 of the SEI/4, and the SEI/4 of the SEI/4 of Section 20; the S1/2 of the SWI/4 of Section 21; the S1/2 of the SWIA, the NEI/4 of the SEI/4, and the SI/2 of the SEI/4 of Section 22; the NWI/4 of the NEI/4 of Section 27; the NWI/4, and the N1/2 of the SWI/4 of Section 28; the NEI/4 of Section 29, all in Township Nineteen (19) South, Range Fourteen (14) East of the Willamette Meridian, Deschutes County, Oregon. The SWI/4, and the SWI/4 of the SEI/4 of Section 17; the NEI/4 of the SE1/4 of Section 18; the N1/2 of the NEI/4 of Section 20, all in Township Nineteen (19) South, Range Fifteen (15) East of the Willamette Meridian, Deschutes County, Oregon. Exhibit A Page -L_ of _ I Ordinance 48 -0-59 EXHIBIT B ESEE FINDINGS AND DECISION SAGE GROUSE SITE DE 0998-01 — Evans Well DE 0998-02 — Evans Well Satellite Inventory. 168 - 0287 The Oregon Department of Fish and Wildlife (ODFW) has identified two sage grouse leks in Township 20S, Range 14E, Section 10 NE NW (map number 20-14-00-400). The ODFW identifiers for the leks are DE 0998-01 and DE 0998-02. The sites are knows as Evans Well. The sensitive habitat area includes the area within a % mile radius of each lek site. The quarter mile sensitive habitat area is necessary to buffer the lek site and protect the habitat used by the birds for day roosting and cover during the mating season. The habitat site and sensitive habitat area are designated on a map attached as Exhibit 1. Sage grouse inhabit the sagebrush -grass areas in the eastern portion of the County. The population of sage grouse has shown considerable fluctuation over the years. The Bureau of Land Management estimates that the current population of adult birds in Deschutes County is 275. The Oregon Department of Fish and Wildlife in a 1992 report estimated the population as 775. Areas of particular concern for the sage grouse are the strutting grounds, known as leks. Strutting grounds are flat areas with vegetation less than six inches high on which the males exhibit a breeding display called strutting to attract the females. 2. Site Characteristics. The lek site is used by the sage grouse for strutting display and mating grouse from February 1 through April 30, with the peak of activity in March and April. The lek is located on a private 320 acre parcel zoned Exclusive Farm Use — Horse Ridge Subzone (EFU-HR) and Wildlife Area Combining Zone (WA). The wildlife combining zone is for antelope habitat. The minimum lot size for the area Horse Ridge Subzone is 320 acres. There are two other tax lots partially within the sensitive habitat area which are Bureau of Land Management (BLM) property. 3. Conflicts Identification. Potentially Conflicting Uses with Habitat Site Zone Use Permitted Outright Conditional Use EFU Farm use Single-family dwelling Forest use Residential homes Exploration for minerals Private park, campground Some road construction Personal use airstrip Home occupation Process forest products Solid waste disposal site Church or ESEE Findings and Decision — DE 0998-01/DE 0998-02 Exhibit Z Page 1 Page i of _ 5 Ordinance 91�-C'39 EXHIBIT 168 - 0288 Sage grouse depend on large areas of undeveloped rangeland habitat. Conflicts with sage grouse habitat area reduced by the limitations on uses in the exclusive farm use zone, by the 320 acre minimum lot size, and by the predominance of Bureau of Land Management land throughout their range. However, because of their sensitivity and importance, the sage grouse leks or strutting grounds need additional protection. Uses conflicting with the leks are any activities or development that would interfere with the lek during the breeding season, disturb or occupy the ground in the lek area which could displace the birds, or destroy the vegetation that the birds use for roosting and cover within the sensitive habitat area. These activities could include road construction, surface mining, or any construction activity, structural development and associated use of structures within 1320 feet of the lek. Surface mining is not a conflicting use as none of the sensitive habitat area is zoned for surface mining. New road construction through the habitat area is unlikely as the roads in the area are established public or ranch roads with no anticipated need for relocation or expansion. Because the lek and sensitive habitat area are remote, it is unlikely that a church or school would be sited within the sensitive habitat area. Additional structural development on the ranch could occur outside of the sensitive habitat area on the ranch and would not be a conflict. Agriculture is a permitted use in the exclusive farm use zone. Grazing is the principal agricultural use in the sensitive habitat area. Grazing during the mating season can disrupt the breeding cycle. The Bureau of Land Management works with the grazing permitees to minimize the grazing conflicts with the sage grouse leks during the breeding season. Another potential conflicting use is recreational off-road vehicle use because it fragments habitat and can disrupt the birds during the breeding season. However, ODFW reports that, at this time, there is not a problem with off-road vehicle use at this site. The Bureau of Land Management has a seasonal off-road vehicle closure from March 15 through September 1 south of Highway 20. A private park or campground would be a conflicting use because it would attract people and vehicles and alter the landscape. 4. Economic Social Environmental and Energy Consequences Analysis. (A) Economic Consequences Construction costs could increase if building activity is restricted during the breeding season. Restricting structural development within one_quarter mile of the lek would have a negligible economic effect because there is land available outside of the sensitive habitat area for residences or other structural development. However, structural development within the one-quarter mile boundary would be more cost-effective than building elsewhere on the subject Property by reducing transportation costs for travel between the house and the existing buildings. ESEE Findings and Decision - DE 0998-01/DE 0998-02 Exhibit '8 Page 2 Page _2- of 5 Ordinance R8 -D3 EXHIBIT B 168 0289 Mitigation measures to protect the leks will involve some economic consequences but will increase the protection for sage grouse on the subject Property over what currently is provided. The Evans Well sites are unique in Deschutes County as they are the only leks existing next to established buildings. These buildings have been in place for the entire period that ODFW and BLM have been counting sage grouse. During most years ranch hands or previous owners have resided at the home that previously existed near the leks BLM and ODFW contacted the owners and employees to make them aware of the lek sites and the timing of the breeding season. The historical dwelling location, while within the designated one-quarter mile sensitive area is between existing buildings and in an area that sage grouse do not use for travelling into or away from the leks. This location is farther from the leks than the other existing buildings. Use of the historical dwelling site for a new dwelling should not affect the use of the lek by sage grouse if mitigation measures are required as part of the approval for any dwelling established on the site. Limiting the development of parks or campgrounds would have a negligible economic consequence as there are numerous private and public recreational facilities throughout the county. Maintaining the lek site and sensitive habitat area sites will help assure that the species does not become a federally threatened and endangered species. Should this happen, the protection criteria would be much more restrictive around the remaining lek sites. (B) Social Consequences The social consequence of allowing unregulated conflicting uses Gould be include the Possible abandonment of the lek site which would in turn be be a loss to the segment of society that enjoys viewing wildlife. The positive social consequences of limiting conflicting uses would be continuing opportunities for naturalists and bird watchers to study and enjoy the birds. However, because the site is on private land, opportunity for public access may be limited. Structural development within the sensitive habitat area could be prohibited with little social consequence as owners have the potential to develop their properties outside of the quarter mile sensitive habitat area. However, a positive consequence of allowing structural development consisting of a single-family dwelling within the one-quarter mile sensitive habitat area would be the year- round presence of residents could discourage trespassing vandalism and other illegal activity in the area of the leks. On the other hand construction of a single- family dwelling outside the one-quarter mile sensitive habitat area would result in development on and disruption of other habitat (antelope range) in either the southern or eastern portion of the property. The development of a vegetative buffer between existing and new structures on the property could create an aesthetically pleasing barrier between the lek designated DE 0998-02 and the farm buildings and human activity. ESEE Findings and Decision — DE 0998-01/DE 0998-02 Exhibit e Page 3 Page 3 of f Ordinance - -03 EXHIBIT 168 ® 0290 (C) Environmental Consequences The environmental consequences of allowing unregulated conflicting uses could be the destruction of the characteristics wh*Gh that make the lek desirable to the birds Whirh and could cause abandonment of the site and failure of breeding and reduction in the sage grouse population. There are no negative environmental consequences of prohibiting conflicting uses. However, allowing a new single- family dwelling within the quarter -mile sensitive habitat area in the location where the dwelling on the property historically was located can minimized the impact to sage grouse habitat by concentrating the development on the subject property in one area rather than spreading it into other habitat areas. ODFW believes that with added restrictions, sage grouse protection on the property can be increased over what is currently provided. (D) Energy Consequences There are no identified significant energy consequences from either permitting or limiting conflicting uses. However, allowing a new single-family dwelling within the quarter -mile sensitive habitat area could create energy savings by minimizing vehicle trips between the existing farm buildings and the homesite. 5. Program to Meet Goal 5. The Board of County Commissioners finds that, based on the ESEE consequences, both the resource site and the conflicting uses are important compared to each other, and t#at, based on the ESEE analysis, the conflicting uses should be bakaRsed to allowed in a limited way that protects the resource site to a desired extent (OAR 660-46 23-0-440(35)0. In order to protect both the leks and the sensitive habitat area and allow limited conflicting uses, the following restrictions shall apply: Site plan review under the Sensitive Bird and Mammal Habitat Combining Zone shall be required for all land uses within the sensitive habitat area requiring a conditional use permit. 2. New structural development within the quarter mile sensitive habitat area shall be limited to one single-family dwelling constructed within or adjacent to the foundation footprint of the dwelling that historically existed on the site. 3. Existing structures may be repaired and maintained or, in the event of loss, replaced with the same type of building within the same footprint. 4. Partitions creating an additional residential building site within the sensitive habitat area shall be prohibited. 5. Livestock shall not be fed on or within 300 feet of the leks from February 15 to May 1. Exhibit � ESEE Findings and Decision - DE 0998-01/DE 0998-02 ExExa of 5 Page 4 9 Ordinance If - 039 EXHIBIT B 168 - 0291 6. Dogs shall be confined between the hours of 5:00 a.m. and 9.00 a.m. from February 15 to May 1. 7. All construction activity on the subiect property shall be limited to the period from May 1 to January 31. 8. Human activity within 300 feet of the leks shall be minimized during the hours of 5:00 a.m. to 9:00 a.m., from February 15 to May 1. 9. A vegetative buffer shall be planted and maintained between the lek designated as DE 0998-02 and the farm buildings. The vegetation in the buffer shall consist of one or more species listed below and planted at 2.5 —foot intervals along the southern fence between the ranch buildings and the sage grouse lek Recommended shrubs and trees include: Chokecherry Carragan Russian Olive, Silver Buffaloberry, Autumn Olive, and Multiflora Rose. 10. Access to water shall be provided for wildlife summering on the property by keeping water in the existing livestock troughs throughout the summer months Exhibit ESEE Findings and Decision — DE 0998-01/DE 0998-02 Page 5 Of S Page 5 g Ordinance a � -0b°I 168 DECISION OF DESCHUTES COUNTY HEARLNGS OFFICER FILE NUMBERS: APPLICANTS/ PROPERTY OWNERS: PA -98-1 Charles and Janet Nash 25700 Spencer Wells Road Bend, Oregon 97701 0292 REQUEST: The applicants are requesting app. -oval of an amendment to the Deschutes County Year 2000 Comprehensive Plan to allow the construction of a single-family dwelling within one-quarter mile of two identified sage grouse leks, and approval of a conditional use permit for a dwelling in conjunction with a farm use on a 320 -acre parcel in the EFU-HR, WA and SBM Zones. STAFF REVIEWER: Barbara J. Rich, Assistant Planner 13A415 ;S 7j� HEARING DATE: April 7, 1998 N RECORD CLOSED: April 14, 1998 HaY 1998 N MAILEDHUTES w L APPLICABLE STANDARDS AND CRITERIA: , DEC SC A. Title 18 of the Deschutes County Code, County Zoning:`�1Ea£G-ZS-6 1. Chapter 18.16, Exclusive Farm Use Zones * Section 18.16.030, Conditional uses permitted * Section 18.15.050, Standards for dwellings in the EFU zones * Section 18.16.067, Farm Management plans * Section 18.16.070, Yards 2. Chapter 18.88, Wildlife Area Combining Zone * Section 18.88.060, Siting Standards * Section 18.88.070, Fencing Standards 3. Chapter 18.90, Sensitive Bird and Mammal Habitat Combining Zone * Section 18.90.060, Site plan review criteria B. Deschutes County Year 2000 Comprehensive Plan Nash PA-98-1/CU-98-16 Exhibit Page 1 Page Of ?� Ordinance g6-020 166 w 0293 1. Fish and Wildlife Policies 2. Resource Element, ESEE Findings and Decision, DE 0998-01, Evans Well and DE 0998-02, Evans Well Satellite C. Oregon Administrative Rules 1. OAR 660-12-060, Plan and Land Use Regulation Amendments 2. OAR 660-015-000, Statewide Land Use Planning Goals and Guidelines IL FINDINGS OF FACT: A. Location: The subject property is located at 25700 Spencer Wells Road and is further identified as Tax Lot 400 on Deschutes County Assessors Map # 20-14. The property is approximately four miles southwest ofMillican and U.S. Highway 20. B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use — Horse Ridge Subzone (EFU-HR). The property also is located within a Wildlife Area Combining Zone (WA) for protection of antelope range and a Sensitive Bird and Mammal Habitat Combining Zone (SBM) for protection of sage grouse leks on the property.' C. Site Description: The subject property is 320 acres in size. The majority of the property consists of dry pasture. The northwest corner is developed with a barn, pump house, shop buildings, corrals and the foundation of a dwelling that burned down in the early 1980's. The sage grouse leks are located very close to the existing buildings. D. Surrounding Land Uses and Zoning: The subject property is located in an area of large tracts of land zoned EFU-HR in private and public ownership. Livestock grazing is the typical land use in the area. E. Soils: According to the United States Soil Conservation Service (SCS) maps of the area, there is one soil mapping unit found on the subject property. This is #54C, Gardone sand, moist, 3-20% slopes. This soil type is rated as 6-E without irrigation. No irrigated production estimates are provided. The major use of this soil type is livestock grazing. F. Procedural History: The applicants purchased the subject property in 1996. In August of 1996 they submitted an application for a conditional use permit for a dwelling. That application was withdrawn after planning staff recommended denial due to a comprehensive plan provision expressly prohibiting a dwelling in the location proposed by the applicants. The subject plan amendment and conditional use permit applications were submitted on February 24, 1998, and were accepted as complete on March 24, 1998. The Hearings Officer finds 150 -day time period for issuance of a local land use decision under ORS 215.428 does not apply to the subject plan amendment application. I also find the 150 -day time limit does not apply to the conditional use permit application because this ' "Leks" or strutting grounds are described as "flat areas with vegetation less than six inches high on which the males exhibit a breeding display called strutting to attract the females." Nash PA-98-1/CU-98-16 Exhibit Ci Page 2 Page Of Ordinance 9 21 168 - 0294 application is entirely dependent upon approval of the pro:osed plan amendment -- that is, the farm dwelling cannot be approved in the proposed loc :tion without the amendment to the comprehensive plan proposed by the applicants. G. Proposal: The applicants are proposing to construct a si-;le-family farm dwelling on the subject property within one-quarter mile of two sage grcuse leks protected by the SBM Zone. The dwelling would be located approximately 5C feet from the foundation of a house that burned down in the early 1980's and between t e existing shop and barn. All of these buildings are located very close to the leks. In orcer to establish the dwelling, the applicants have submitted applications for a plan amendment and a conditional use permit. The proposed plan amendment would amend the Resource Element of the Deschutes County Year 2000 Comprehensive Plan (hereafter "comprehensive plan") to remove from the site-specific Economic, Social, Environmental and Energy (ESEE) findings for the two leks the prohibition on placement of a dwelling within one-quarter mile of the leks. It also would add specific mitigation measures to minimize the impact of the dwelling on the leks. The conditional use permit would allow the dwelling in conjunction with farm use on the property. H. Public/Private Agency Comments: The Planning Division sent written notice of the applications to a number of public and private agencies and received responses from: the Deschutes County Road Department and Property Address Coordinator, the Oregon Department of Fish and Wildlife (ODFW); the Bend Fire Department and US West Communications. These comments are set forth verbatim at pages 2-3 of the Staff Report. The following agencies did not comment on the applications: the Deschutes County Building Safety Division and Assessor; the Oregon Water Resources Department, Watermaster — District 11; Pacific Power and Light;, Oregon Department of Land Conservation and Development: Division of State Lands: Oregon Department of Transportation: and the United States Bureau of Land Management (BLM). However, a letter from the BLM concerning the applicants' proposal is included in the record. I. Public Notice and Comments: The Planning Division sent individual mailed notice of the public hearing in this matter to the owners of record of all property located within 500 feet of the subject property. In addition, notice of the public hearing 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 closed in this matter, the Planning Division had received no comments from the public in response to these notices. M. CONCLUSIONS OF LAW: PLAN AMENDMENT A. The Deschutes County Year 2000 Comprehensive Plan FINDINGS: The applicants propose to amend the comprehensive plan by amending the site- specific ESEE findings for two inventoried Goal 5 resources consisting of sage grouse leks Nash PA-98-1/CU-98-16 Page 3 Exhibit C Page of Ordinance - g8 -02q il 168 w 0295 located on the subject property.2 The amendment would remove he prohibition on placement of dwelling within one-quarter mile of the leks. The comprehensive :Ian does not contain standards for reviewing plan amendment applications.3 However, some guizance on the review standards is provided in statutes. ORS 197.175(2) describes the county's planring responsibilities as including: to ". . . amend and revise comprehensive plans in complianc; with goals approved by the commission [Land Conservation and Development Commission (iCDC)]." (Emphasis added.) In addition, ORS 197.610 requires the county to give prior notice to the Department of Land Conservation and Development (DLCD) of any comprehensive plan amendment to which the statewide land use planning goals appear to apply. Finally, ORS 215.416(4) provides that the county shall not approve a land use application if it is "found to be in conflict with the comprehensive plan ... or other applicable land use regulations or ordinance provisions." Based upon these provisions, the Hearings Officer finds the standard for reviewing a plan amendment application is to determine whether the proposed amendment is consistent with the applicable statewide land use planning goals and comprehensive plan provisions. Therefore, I find I must evaluate the proposed plan amendment for consistency with Goal 5 and with the provisions of the comprehensive plan implementing the goal. The administrative rules implementing Goal 5, found in OAR Chapter 660, Division 16, require the county to: 1) inventory Goal 5 resources in the county deserving of protection; 2) identify uses that may conflict with protecting the inventoried resources; and 3) develop a program to achieve the goal. That program can consist of. 1) fully protecting the resource by prohibiting all conflicting uses; 2) fully allowing conflicting uses fully regardless of their impact on the resource; or 3) allowing conflicting uses to a limited degree while protecting the resource to a limited degree. The county included the two sage grouse leks on the subject property in its inventory of Goal 5 resources. The county also adopted ESEE findings for the sites, discussed in detail in the findings below, through which the program to achieve the goal for these sites is implemented. Finally, the county adopted comprehensive plan policies and the SBM Zone to carry out Goal 5 and to protect specific inventoried resources. The Hearings Officer finds the following plan policies are relevant to the proposed plan amendment: Fish and Wildlife Policies 7. Sensitive bird habitat sites (bald eagle, golden eagle, osprey, great grey owl, prairie falcon nests, great blue heron rookeries, and sage grouse leks) and mammal habitat site (Townsend's big -eared bat hibernating and nesting caves) identified in the Resource Element of this plan shall be protected by a z Statewide land use planning Goal 5 is: "To conserve open space and protect natural and scenic resources." The goal applies to resources including: "Fish and wildlife areas and habitats." 'Compare Section 18.136.020 which establishes several standards for zone changes. Nash PA-98-1/CU-98-16 Exhibit Page 4 Page of Ordinance 0I13"°3`� 71 168 - 0296 Sensitive Bird and Mammal Overlay Zone. A protection program acceptable to the Oregon Department of Fish and Wildlife for the nests or sites shall be submitted by the applicant for a development or land use permit and uses implemented during and after construction of the development. The ESEE findings adopted for the inventoried sage grouse leks on the subject property include the following provisions: 5. Program to Meet Goal 5 The Board of County Commissioners finds that, based on the ESEE consequences, both the resource site and the conflicting uses are important relative to each other and that the ESEE consequences should be balanced to allow conflicting uses in a limited way (OAR 660-16-010(3)). In order to protect both the lek and the sensitive habitat area and allow limited conflicting uses, the following restrictions shall apply: 1. Site plan review under the Sensitive Bird and Mammal Habitat Combining zone shall be required for all land uses within the sensitive habitat area requiring a conditional use permit. 2. New structural development within the quarter mile sensitive habitat area shall be prohibited because there are alternative locations for structures outside of the sensitive habitat area. 3. Existing structures may be repaired and maintained. 4. Partitions creating a residential building site within the sensitive habitat area shall be prohibited. In addition, the Bureau of Land Management is working with private property owners to develop grazing management plans to minimize grazing conflict with the lek site. (Emphasis added.) The applicants propose to amend the ESEE findings specifically to eliminate the underscored prohibition of new structures within one-quarter mile of the leks and to require mitigation measures to protect the leks. The record includes a letter dated January 5, 1997, from Paul Schmidt, Wildlife Biologist for the BLM, describing the leks and their history in pertinent part as follows: ". . . ODFW and the ... BLM have been counting numbers of sage grouse using the Evans Well Lek ... since 1982. Number of birds using the lek site varies from Nash PA-98-1/CU-98-16 Exhibit Page 5 Page S of Zi o Ordinance 168 m 0297 year to year, as does the actual location of the strutting area. Sage grouse have used the Evans Well Lek every year since 1982, with the -ghest count of 34 birds in 1982 to a low count of 4 birds in 1997. Historic use of this area by grouse before 1982 is not well known. I can only speculate that t:s area has been used by grouse for many decades and probably longer due to reasonably good habitat and a long history of sage grouse in the surrounding areas. . . . Sage grouse numbers have been declining statewide :or many years and there is concern that grouse are reaching critical low numbers in western fringe of their habitat which includes the Evans Well and Millican area. From 1988 to 1993, the numbers of grouse in the Millican area declined 62 percent. Since 1993, the numbers have slowly increased (20 percent) but are still below historic numbers. The BLM and ODFW have been working on habitat improvement projects that will hopefully aid in recovery of this mostly local population. . . . The proposed new home site at Evans Well does raise some concerns for sage grouse, but this particular lek site is unique from other leks in the area. The current established buildings at Evans Well have been in place during the entire period that ODFW and BLM have been counting grouse. During most years, ranch hands or previous owners have resided at the established home near the lek. These persons were contacted by BLM and ODFW and were made aware of the lek site and the timing of breeding season by grouse. The grouse use the lek from approximately the end of February to the first week in May. There have been very few conflicts between human use of the Evans Well and the sage grouse." Mr. Schmidt concluded his letter by recommending mitigation measures and stating he believes the proposed dwelling and the leks could co -exist. In their burden of proof statement, the applicants explained their reasoning for the proposed plan amendment and homesite location as follows: "It is our proposal to place a single family dwelling at the site of the original ranch house that burned. The site is located between the existing shop and barn and would form a compact and concise ranch headquarters. It would be tucked in amongst existing development and have the least impact on the land. It is, however, within the 1,320 foot radius of the usual lek location. It is in our opinion the best site for the dwelling. To go outside the 1320 boundary would cause more disturbance for the lek. The alternate building sites we have identified would both entail driving through the lek a minimum of four times a day, probably much more, for we'd be driving a vehicle back to the barn, shop, pump house, corrals, etc. The development of water and power lines would mean the disturbance of new ground, plus greater cost. Development outside the 1320 foot buffer would mean greater destruction of habitat, not only by increased vehicle use, but as we replicated structures already in existence: another barn for horses, more parking areas, more Nash PA-98-1/CU-98-16 Page 6 Exhibit C- Page-- of Ordinance 98-03 168 - 0298 fences, more alteration of landscapes. If we were to built a quarter mil away, the original buildings would still require some kind of live in €:ard... Some mitigation on our part will probably be required ...." The applicants proposed the following mitigation measures: "l. Feeding of livestock shall not occur on or within :00 feet of the lek from February 15 to May 1. 2. Dogs shall be confined during peak strutting activity from 5:00 a.m. to 9:00 a.m., February 15 to May 1. 3. All construction activity shall take place during the period between May 2 and January 31. 4. Human activity within 300 feet of the lek shall be limited during peak strutting activity, from 5:00 a.m. to 9:00 a.m., February 15 to May 1. A vegetative buffer shall be planted and maintained between the lek site DE 0998-02 and the farm buildings, including any new residential building. 6. Access to water shall be provided for wildlife summering on the subject property." The record indicates the above -quoted mitigation proposals were developed in consultation with the BLM and ODFW. In addition to the above -quoted letter from Paul Schmidt of the BLM which includes recommended mitigation measures, the record includes written and oral testimony from Steven George, ODFW Deschutes District Wildlife Biologist. commenting on the applicants' proposal. In a letter dated January 30, 1998, Mr. George stated in pertinent part: "Both of these sensitive bird sites constitute the Evans Well sage grouse lek site. Site DE0998-01 has not been used for the last three years and if not used this year we will ask the County to remove it from their Sensitive Bird Site inventory.... Currently the lek site has no protection from human disturbances. Historically this site has had human activity on almost a daily basis. This includes many ranch type operations including livestock feeding, dogs, equipment operation, etc." Mr. George made the following observations about human impact on the leks: "This particular lek site seems to tolerate more human activity than some of the others. In the past several years, from my observations, most of the human activity has occurred on the periphery of the site. This would be the area associated with the farm buildings. It is extremely difficult to impossible to predict how much disturbance it would take to cause the birds to no longer use this lek. If vehicles or Nash PA-98-1/CU-98-16 Page 7 Exhibit C Page 4- of Ordinance 019-0-59 168 - 0299 people were traversing this site to a large extent (daily) tbm I feel it would be safe to assume that this site would be abandoned in the near future. Just how much disturbance from the adjoining land the birds would tolerzte is unknown. Normal ranching activities without a ranch house may eventua_y cause this site to be abandoned. On the other hand these birds have tolerated ranching activities adjacent to it for over 10 years without any apparent prob'::ms." Finally, Mr. George made specific mitigation measure reconanendations, stating they "will actually provide more protection than current exists at the ste." (Emphasis added.) These recommendations are reflected in the applicants' proposed mitigation measures set forth above. The Staff Report recommends the applicants' proposed amendments to the ESEE be adopted, but questions whether measures 5 and 6 are sufficiently clear and objective to be implemented. In response to these concerns, Mr. George testified at the public hearing that using the existing livestock water troughs on the property would provide adequate access to water for the sage grouse if the troughs are kept full during the summer. In addition, in a letter dated April 14, 1998, Mr. George recommended the following specific measures as a substitute for the language in mitigation measure 5: cc. a vegetative buffer consisting of one or more species of the following shrub/tree list be planted at 2.5 foot intervals along the southern fence between the ranch buildings and the sage grouse lek (distance?). Recommended shrubs and trees: Chokecherry, Carragan, Russian Olive, Silver Buffaloberry, Autumn Olive, and Multiflora Rose." The comprehensive plan requires protection of the leks on the subject property. I further find there is evidence in the record -- in Mr. George's and Mr. Schmidt's comments -- indicating human activity in proximity to the leks may cause them to be abandoned. Likely for this reason the ESEE findings prohibited the placement of any new structures within one-quarter mile of the leks in order to minimize human disturbance. However, this same evidence also indicates the leks have experienced regular human activity in conjunction with ranching on the subject property and that they have tolerated this activity for over 10 years without any apparent problems. In addition, Mr. George observed the leks currently have "no protection from human disturbance" and that the recommended mitigation measures would provide protection. The applicants propose to site the farm dwelling in roughly the same location as the site of the historic dwelling, and within the area where the existing ranch buildings are located. They have argued, and the Hearings Officer concurs, that placing the proposed dwelling outside of the one- quarter -mile protection area could actually increase human disturbance of the leks because it would require additional ground disturbance and vehicle trips and would not be as well -screened from the leks as would be a dwelling sited among the existing ranch buildings. It is clear from this record that the applicants' proposed mitigation measures are believed by both ODFW and the BLM to provide substantial protection for the leks during the critical spring breeding season. Nash PA-98-1/CU-98-16 Exhibit Page 8 Page 6 of Z6 Ordinance qa -D3 • 16� 0300 Based upon the above evidence, the Hearings Officer finds the wplicants' proposal will provide more protection for the leks than that contemplated by the easting ESEE findings. That is because the proposed dwelling will be located in roughly the Same area as the historic ranch dwelling and clustered with the other ranch buildings, thus minirrrrzzing visual impacts and vehicle trips. In addition, I find the mitigation measures proposed :v the applicants will provide significant protection of the leks during the critical spring breeding season by minimizing all human and ranch activity during that period. The proposed mtigation measures will provide additional vegetative screening between the leks and the human activity. The proposed mitigation measures also will provide protection for the birds during the dry summer months through summer watering opportunities. For these reasons, I find the applicants' proposal is consistent with Goal 5 and with the comprehensive plan provisions implementing the goal. I find the ESEE findings for the Evans Well leks shall be amended as depicted on the amended ESEE findings and decision attached to this decision as Exhibit "A." 10. The county shall notify the Oregon Department of Fish and Wildlife of all land use applications for lands located in the WA Combining Zone or the Sensitive Bird and Mammal Overlay Zone. FINDINGS: As discussed in the Findings of Fact above, the Planning Division mailed notice of this application to and received comments from ODFW. B. Oregon Administrative Rules 1. Chapter 660, Division 12, Transportation Planning Rule a. Section 660-12-060, Plan and Land Use Regulation Amendments (1) Amendments to functional plans, 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 land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. Nash PA-98-1/CU-98-16 Exhibit C Page 9 page °I Of 2�6 Ordinance Ofb-b3°I 168 ® 0301 (2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional dassification of an existing or planned transportation facility; (b) Changes standards implementing a functional classification plan; (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: In its comments on the applicants' proposal, the Deschutes County Road Department noted that Spencer Wells Road is a county -maintained rural local road with a pavement width of approximately 24 feet. The Road Department characterizes Spencer Wells Road as in good condition, having been recently paved. The Road Department's comments indicate Spencer Wells Road provides a connection between Highway 20 to the north and Deschutes National Forest lands to the south. The Road Department has no recent traffic counts for Spencer Wells Road but notes the road experiences very little traffic. Based upon this information, the Hearings Officer finds Spencer Wells Road is adequate to handle the traffic anticipated to be generated by the proposed single-family dwelling. The Hearings Officer finds the applicants' proposed plan amendment is consistent with this administrative rule because it would merely permit the establishment of a single-family dwelling in the same approximate area on which a dwelling previously was located on the subject property. As such, the proposal will not significantly affect Spencer Wells Road. The proposed amendment will not increase the number of dwellings permitted or alter the type of development allowed on the subject property. Neither will it change the identified function, capacity or level of service of either Spencer Wells Road or Highway 20. 2. Chapter 660, Division 15, Statewide Planning Goals FINDINGS: The Hearings Officer makes the following findings concerning the proposed plan amendment's consistency with the statewide planning goals: Goal 1, Citizen Involvement. The Hearings Officer finds this goal will be met because notice of the applicants' proposal was provided to surrounding property owners as well as to the general public by mailed notice, posting of the subject property and publication of the public hearing date. In addition, at least one public hearing will be held on the proposed plan amendment. Finally, the Nash PA=98-1/CU-98-16 Page 10 Exhibit C Page I D Of 2.6 Ordinance 99-0219 168 - 0302 Staff Report as well as this decision provide information _oncerning the proposed plan amendment. Goal 2, Land Use Planning. The Hearings Officer finds this goa will be met because at least one public hearing will be held prior to adoption of the proposed corn- rehensive plan amendment. The Hearings Officer has found the proposed plan amendment is consistent with the comprehensive plan. Goal 3, Agricultural Lands. The Hearings Officer finds this gcal is met because the proposed plan amendment will not remove any of the subject property from farm production inasmuch as the proposed farm dwelling would be placed on a site near the location of an historic dwelling. In addition, as discussed in the findings below, the Hearings Officer has found the applicants' proposed farm dwelling meets the criteria for farm dwelling approval in the zoning ordinance. Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable because the subject property is not designated or zoned for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Hearings Officer finds this goal is met because, as discussed in detail in the findings above, I have found the proposed amendment to the site-specific ESEE for the sage grouse leks on the subject property will provide more protection for the leks than is provided by the current ESEE findings by placing the dwelling within the cluster of existing ranch dwellings and near the location of an historic dwelling, and by providing additional mitigation measures to screen and minimize human activities. Goal 6, Air, Water and Land Resources Quality. The Hearings Officer finds this goal will be met because the proposed plan amendment and conditional use permit will not create any new impacts to the quality of air, water and land resources. Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal does not apply because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. The Hearings Officer finds this goal does not apply because the subject property is not planned for future park or recreational use and is not being proposed for destination resort use. Goal 9, Economic Development. The Hearings Officer finds this goal is not applicable because the proposal is for a single-family farm dwelling and not for commercial or industrial zoning. Goal 10, Housing. The Hearings Officer finds this goal is met because the applicants are proposing to site a single-family farm dwelling on the subject property. Goal 11, Public Facilities and Services. The Hearings Officer finds this goal is met because, as discussed in the findings below, the affected transportation facilities are adequate to serve the Nash PA-98-1/CU-98-16 Exhibit Page 11 Page _1L_._ of Ordinance 01$ -PM 168 ® 0303 proposed dwelling. The proposed dwelling will be served by th-- Deschutes County Sheriff but otherwise will not benefit from public facilities and services. Goal 12, Transportation. The Hearings Officer finds this goal rill be met because the affected transportation facilities will be adequate to serve the proposed SMgle-family dwelling and I have previously found the proposed plan amendment is consistent i rth the Transportation Planning Rule. Goal 13, Energy Conservation. The Hearings Officer finds this Foal is met because the proposed plan amendment will allow the applicants to establish a farm dweEng adjacent to the existing farm structures on the site and thereby will minimize vehicle trips and energy consumption on the property. Goal 14, Urbanization. The Hearings Officer finds this goal does not apply because the subject property is not located in or near an urban growth boundary and is not planned for urban development. Goals 15 through 19. The Hearings Officer finds these goals are not applicable because the subject property is not located in or near the Willamette Greenway, estuarine or coastal areas, beaches or dunes or the ocean. CONDITIONAL USE PERMIT C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.16, Exclusive Farm Use a. Section 18.16.020, Uses permitted outright. A. Farm use as defined in this title. FINDINGS: "Farm use" is defined in Section 18.04.410 as "[t]he current employment of the land for the primary purpose of obtaining a profit in money by ... the feeding, breeding, management and sale of, or the produce of, livestock...." The record indicates the subject property currently is employed in farm use consisting of a cattle ranch, an activity included in the definition of "farm use." The applicants proposed to site a farm dwelling on the subject property within the cluster of existing ranch buildings and near the site of an historic dwelling. Therefore, the Hearings Officer finds the applicants' proposal constitutes a use permitted outright in the EFU-HR Zone. b. Section 18.16.030, Conditional uses permitted - High value and non - high value farmland. The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or non -high value farmland subject to Nash C PA-98-1/CU-98-16 Exhibit Page 12 Page _lT� of 2-40 Ordinance q B -03 168 0304 applicable provisions of the Comprehensive Plan, section 18.16.040 and 18.16.050 and other applicable sections of this title. A. Dwellings customarily provided in conjunction with farm use (farm -related dwellings). FINDINGS: The applicant is proposing to establish a single -fanny farm dwelling in conjunction with the existing farm use on the subject property. The proposal's compliance with the approval criteria for a farm dwelling is discussed in detail in the findings b6ow. C. Section 18.16.050, Standards for dwellings in the EFU zones. Dwellings listed in section 18.16.030 may be allowed under the conditions set forth below for each kind of dwelling: A. Farm -Related Dwellings on Non -high Value Farmland. A dwelling customarily provided in conjunction with farm use, as listed at 18.16.030(A) of this chapter, may be approved if it satisfies any of the alternative tests set forth below: 1. Acreage Test. a. On land not identified as high-value farmland, a dwelling, including a manufactured home in accordance with Section 18.116.070, is considered to be customarily provided in conjunction with farm use if: L The parcel on which the dwelling will be located is at least: a. One hundred sixty acres and not in the Horse Ridge East Subzone; or b. Three hundred twenty acres in the Horse Ridge East Subzone; FINDINGS: As noted in the Findings of Fact, above, the SCS soils information indicates the subject property has soils that are rated 6E without irrigation and thus are not considered high value soils. The subject property is located in the Horse Ridge Subzone and is 320 acres in size. Therefore, the Hearings Officer finds the applicants' proposal meets this criterion. Nash PA-98-1/CU-98-16 Exhibit Page 13 Page � ofi ..Z_ Ordinance aa_CI3 168 m 0305 ii. The subject tract is currently employed for farm use, as evidenced by a farm management plan; FINDINGS: The record indicates the subject property is c-.:rrently employed in farm use consisting of a cattle ranch conducted on 64,000 acres, including- the 320 -acre subject property and adjoining lands owned by the U.S. Forest Service and the BLM on which the applicants have grazing permits. The record indicates the cattle ranch currently hs 400 head (200 cow/calf pairs) of beef cattle. The applicants' burden of proof indicates they intend to use the subject property as a base from which to manage and maintain the ranch. The appE=ts' farm management plan is discussed in detail in the findings below. Based upon those findings, the Hearings Officer finds the applicants' proposal meets this criterion. iii. The dwelling will be occupied by a person or persons who will be principally engaged in tate farm use of the land, such as planting, harvesting, marketing or caring for livestock, at a commercial scale; FINDINGS: As discussed in the findings above, the applicants propose to live in the farm dwelling and to use it as the base from which to manage their 64,000 -acre cattle ranch on which they raise 400 head of cattle. The Hearings Officer finds this is a commercial -scale cattle ranch and therefore the applicants' proposal meets this criterion. iv. There is no other dwelling on the subject tract; and FINDINGS: The record indicates that the only structures on the subject property are a barn, shop and pump house. There are no dwellings on the subject property although the foundation from an historic dwelling is located within the cluster of ranch buildings. Therefore, the Hearings Officer finds the applicants' proposal meets this criterion. V. The dwelling will be located on the least productive part of the parcel. FINDINGS: The applicants propose to locate the farm dwelling near the existing barn, shop and pump house and near the location of the foundation for an historic dwelling. As noted above, the soils throughout the subject property are rated 6E without irrigation. The subject property has not irrigation. Therefore, the Hearings Officer finds the soils on the subject property are minimally productive. The record indicates the area on which the applicants propose to place the dwelling is even less productive because it already has disturbed soils due to significant human activity in this area. Based upon this evidence, I find the applicants' proposal meets this criterion. Nash PA-98-1/CU-98-16 Exhibit Page 14 Page __L`i_ of. - o Ordinance of - 039 168 - 0306 d. Section 18.16.067, Farm management plrins. A. Contents. A farm management plan shall consist of the following components: 1. A written description of existing and/or proposed farm uses, including type of crops or livestock, size and location of areas for each use, and land or soil preparation required. FINDINGS: As discussed above, the applicants' burden of proof indicates they currently operate a 64,000 -acre cattle ranch on the subject property and adjacent publicly -owned lands on which they have grazing permits. The ranching operation currently grazes 400 head of cattle. The burden of proof indicates the applicants graze the cattle on natural forage and rotate the cattle throughout the entire ranch, with the cattle being brought to the subject 320 -acre parcel twice a year for one to two weeks at a time. The burden of proof indicates the subjecz property has been employed in this manner for at least six of the last ten years. The applicants also submitted a business plan detailing the costs, materials and income generated by the grazing operation. The Hearings Officer finds the information submitted by the applicants satisfies this portion of the farm management plan requirements. 2. An assessment of the soils. climate and irrigation on the parcel demonstrating that the parcel is suitable for the current or proposed use outlined in section A(1). FINDINGS: As discussed above, the soils on the subject property are rated Class 6E without irrigation, signifying minimally productive soils. However, the record indicates the subject property historically has been used as part of a large cattle ranch in combination with surrounding publicly -owned lands with grazing permits. The applicants currently graze 400 head of cattle on the ranch, supporting them with natural forage on the entire 64,000 acres available. The applicants' burden of proof indicates, and the Hearings Officer is aware, that several large cattle ranches of similar size are conducted in the surrounding area. Based upon the existing cattle ranches in the area and the historic use of the subject property, I find the property is suitable for the current and proposed cattle grazing operation. 3. A business plan, including a demonstration that markets exist for the product; estimates of gross sales or actual gross sales figures; estimated or actual figures concerning necessary expenditures; and a list of capital expenditures .incurred or projected to be incurred in establishing the farm use on the parcel. FINDINGS: As noted above, the applicants submitted a business plan. The applicants' burden of proof states the market for beef cattle is well established in Central Oregon. The following Nash PA-98-1/CU-98-16 Page 15 Exhibit C, Page is of Ordinance q8 - 039 16� Go 030? projected figures are supported by details in the applicant's bursen of proof statement and the Application Form for a Farm Dwelling in an EFU Zone: *Sale of 125 calves at '96 average (S435/head) $54,375 *Expenses — Feed, medical, replacement (Does not include real estate or depreciation) (26 000 Net Income $28,375 The Hearings Officer finds the information submitted by the applicants satisfies the requirements for a business plan. 4. A written description of the farm uses in the area, including acreage, size and type of crop or livestock raised showing that the proposed plan is representative of similar farm uses, if any, in the area and will not conflict with the existing agriculture types. FINDINGS: As noted above, the applicants' burden of proof states the existing farm uses in the area consists of large dry land ranches of similar size and character to the subject property, as well as dwellings on some smaller parcels and the Millican rural service center. While the latter uses could potentially conflict with the applicants' cattle ranch, the Hearings Officer finds such conflict unlikely given the substantial distance between Millican and the subject property. The record indicates that property owners within 500 feet of the subject property did not comment on the applicants' proposal. Therefore, the Hearings Officer finds the applicants' proposal meets this criterion. 5. For farm uses not currently practiced in the area, an analysis showing that the plan is representative of the type of agriculture proposed. FINDINGS: The Hearings Officer finds this criterion is not applicable because the record indicates the farm use currently taking place on the subject property is practiced in the general area. e. Section 18.16.070, Yards A. The front yard shall be 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector and 100 feet from a property line fronting on an arterial. B. Each side yard shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with side yards Nash PA-98-1/CU-98-16 Exhibit �- Page 16 Page _.l b of zoo Ordinance 99 -DI 168 m 0308 adjacent to a property currently employed in farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with rear yards adjacent to property currently employed in farm use, the rear yard shall be a minimum of 100 feet. FINDINGS: The applicant's burden of proof indicates the setbacks for the farm dwelling will be a minimum of 100 feet from all property boundaries. The Hearings Officer finds the size of the subject property and the location of the existing ranch dwellings adjacent to which the proposed farm dwelling would be sited assure the required setbacks will be met, thus meeting this criterion. 2. Chapter 18.88, Wildlife Area Combining Zone (WA) a. Section 18.84.060, Siting Standards A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined. B. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 ...: FINDINGS: The record indicates the proposed dwelling will be located within 300 feet of Spencer Wells Road, therefore meeting this criterion. b. Section 18.88.070, Fencing Standards A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. Nash PA-98-1/CU-98-16 Exhibit Page 17 Page ._..14 of 2. o Ordinance 8--02 168 - 0309 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discoura:ed. B. Exemptions: 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. FINDINGS: The applicants' burden of proof states that no new fences are planned as part of their proposal. The Hearings Officer finds any new fences will be subject to these criteria. 3. Chapter 18.90, Sensitive Bird and Mammal Habitat Combining Zone (SBM) a. Section 18.90.060, Site plan review criteria A. Approval of site plan shill be based on the following criteria: 1. The site plan shall consider the biology of the identified sensitive species, nesting trees, critical nesting periods, roosting sites and buffer area. Based on the biology of the species and the characteristics of the site, the site plan shall provide protection that will prevent destruction of the subject nesting site, lek, hibernation site or rookery and will, to a reasonable certainty, avoid causing the site to be abandoned. FINDINGS: The applicant proposes to place the farm dwelling in an area covered by two SBM Zones to protect the two inventoried sage grouse leks. As discussed in detail in the findings above concerning the applicants' proposed plan amendment, incorporated by reference herein, the applicants are proposing to amend the site-specific ESEE findings for these leks be eliminating the prohibition against new structures within one-quarter mile of the leks and establishing mitigation measures designed to provide additional protection to the leks, including screening and minimizing human activity during the critical spring breeding season and providing watering opportunities for the birds during the dry summer months. Based on these findings, the Hearings Officer finds the applicants' proposal satisfies this criterion. Nash PA-98-1/CU-98-16 Exhibit Page 18 Page _J8 of Zb Ordinance 01 -C'3 16& - 0310 2. Development activities, including grading and till, mining, construction, or activities generating noise or dust within the sensitive habitat area shall be prohibited during the nesting, strutting or hibernation season identified in the site specific ESEE analysis and decision for each habitat site. An exception to this standard may be made if the Oregon Department of Fish and Wildlife determines in writing that the nest, lek or rookery is not active and will not become active during the proposed construction period or if the sensitive birds have fledged. Construction activities within an enclosed structure may be conducted during the nesting, strutting or hibernation season. Construction activities necessary to repair a structure Jestroyed or damaged by fire or other natural causes may be conducted during the nesting, strutting or hibernation season. FINDINGS: As discussed in the findings above concerning the proposed plan amendment, incorporated by reference herein, the applicants propose that no construction or development activities will take place during the critical spring breeding season Based upon these findings, the Hearings Officer finds the applicants' proposal satisfies this criterion. 3. New roads, driveways or public trails shall be located at the greatest distance possible from the nest, lek, rookery or hibernation site unless topographic or vegetation or structural features will provide greater visual and/or noise buffer from the nest, lek, rookery or hibernation site. FINDINGS: As discussed above, in findings incorporated by reference herein, the applicants propose to site the farm dwelling in an existing cluster of ranch buildings, utilizing the existing driveway onto the property. The applicants propose to add vegetation to provide visual screening of the dwelling from the leks and to minimize human activity during the critical spring breeding season. For these reasons, the Hearings Officer finds the applicants' proposal satisfies this criterion. 4. Existing vegetation or other landscape features which are located on the subject property and which obscure the view of the nest, rookery, lek or hibernation site from the proposed development, shall be preserved and maintained. Nash PA-98-1/CU-98-16 Exhibit Page 19 Page -- t�._ of 0-& Ordinance q�gTa� 168 - 0311 A restrictive covenant to preserve and maintain vegetation shall be required when specified in the ESEE for the site. FINDINGS: As discussed above, the applicants propose to add : egetative screening between the proposed farm dwelling and the leks. For this reason, the Hearings Officer finds the applicants' proposal satisfies this criterion. 5. No partitions or subdivisions shall be permitted which would force location of a dwelling or other structure, not otherwise permitted by the site specific ESEE, within the designated sensitive habitat area. FINDINGS: The Hearings Officer finds this criterion is not applicable as the applicant does not propose a partition or subdivision. 6. All exterior lighting, including security lighting shall be sited and shielded so that the light is directed downward and does not shine on the subject nest, rookery, lek or hibernation site. FINDINGS: The applicants' burden of proof indicates they proposes two covered porch lights on the farm dwelling. The Hearings Officer finds that as a condition of approval the applicants will be required to install exterior light fixtures that are shielded and dov6mcast so that no light from them shines on the leks. 7. The site plan shall conform with the requirements of the ESEE decision for the subject sensitive bird or mammal site contained in the Resource Element of the Deschutes County Comprehensive plan. FINDINGS: As discussed in detail in the findings above, the Hearings Officer has approved the applicants' proposal to amend the site-specific ESEE for the two inventoried sage grouse leks on the subject property. The amendment would eliminate the prohibition on additional structures within one-quarter mile of the leks and would add specific mitigation measures to screen and minimize human activity during the critical breeding season and to provide water for the birds during the dry summer months. With approval of the amended ESEE findings and decision depicted in Exhibit "A" attached to this decision, the Hearings Officer finds the proposed site plan meets this criterion. Nash PA-98-1/CU-98-16 Exhibit Page 20 Page �W_ of ?� Ordinance a9)-oal 168 - 0312 IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicants' proposed plan amendment as deplaed in Exhibit "A" attached to this decision, as well as the proposed conditional use permit and site plan, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. Approval is based upon the submitted burden of proof, site plan and proposed amended ESEE findings. Any substantial change shall require new land use applications and approvals. 2. The applicants shall comply with the mitigation measures set forth in the amended ESEE findings attached to this decision as Exhibit "A." 3. The applicants shall sign, notarize and record with the Deschutes County Clerk a conditions of approval agreement. The agreement shall contain the mitigation measures set forth in the amended ESEE findings, attached hereto as Exhibit "A." The applicants shall submit a copy of the recorded agreement to the Planning Division prior to issuance of building permits. 4. The applicants shall obtain a permit for an on-site sewage disposal system from the Deschutes County Environmental Health Division prior to installation. 5. The applicants shall obtain a building permit for the dwelling from the Deschutes County Building Safety Division prior to beginning construction. However, no building permit shall be issued until the Deschutes County Board of Commmissioners has given final approval to the plan amendment approved by this decision. 6. The applicants shall obtain an access permit from the Deschutes County Road Department for access to Spencer Wells Road prior to issuance of building permits. Dated this / 4 day of May, 1998. Mailed this -- — day of May, 1998. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TEN DAYS AFTER MAILING UNLESS TIMELY APPEALED. Nash PA-98-1/CU-98-16 Page 21 Exhibit 1✓ Page ?-L_ of ?b Ordinance g9-039 Additions — Bold EXHIBIT `A' 1 6 8 0313 Deletions - st-rikegh 1. 2. 3 ESEE FINDINGS AND DECISION SAGE GROUSE SITE DE 0998-01— Evans Well DE 0998-02 — Evans Well Satellik Inventory. The Oregon Department of Fish and Wildlife (ODFW) has, identified two sage grouse leks in Township 20S, Range 14E, Section 10 NE NW (map number 20-14-00-400). The ODFW identifiers for the leks are DE 0998-01 and DE G998-02. The sites are known as Evans Well. The sensitive habitat area includes the area within a '/a mile radius of each lek site. The quarter mile sensitive habitat area is necessary to buffer the lek site and protect the habitat used by the birds for day roosting and cover during the mating season. The habitat site and sensitive habitat area are designated on a map attached as Exhibit 1. Sage grouse inhabit the sagebrush -grass areas in the eastern portion of the County. The population of sage grouse has shown considerable fluctuation over the years. The Bureau of Land Management estimates that the current population of adult birds in Deschutes County is 275. The Oregon Department of Fish and Wildlife in a 1992 report estimated the population as 775. Areas of particular concern for the sage grouse are the strutting grounds, known as leks. Strutting grounds are flat area with vegetation less than six inches high on which the males exhibit a breeding display called strutting to attract the females. Site Characteristics. The lek site is used by the sage grouse for strutting display and mating from February 1 through April 30, with the peak of activity in March and April. The lek is located on a private 320 acre parcel zoned Exclusive Farm Use — Horse Ridge Subzone (EFU-HR) and Wildlife Area Combining Zone (WA). The wildlife combining zone is for antelope habitat. The minimum lot size for the area Horse Ridge Subzone is 320 acres. There are two other tax lots partially within the sensitive habitat area which are Bureau of Land Management (BLM) property. Conflicts Identification. Potentially Conflicting Uses with Habitat Site Zone Use Permitted Outright Conditional Use EFU Farm use Single-family dwelling Forest use Residential homes Exploration for minerals Private park, campground Some road construction Personal use airstrip Home occupation Process forest products ESEE Findings and Decision — DE 0998-01/DE 0998-02 Exhibit L Page 1 Page Z.71- of 7-b Ordinance A$-o'�fl d Additions – Bold Deletions - sttilorthr-eugh 4. 168 - 0314 Solid waste Es osal site Storage, cruciin , processing of aggregate Church or sc--ool Certain road -2ro'ects Bed and breast Sage grouse depend on large areas of undeveloped rangeand habitat. Conflicts with sage grouse habitat are reduced by the limitations on uses in the exclusive farm use zone, by the 320 acre minimum lot size, and by the predominance of Bureau of Land Management land throughout their range. However, because of their sensitivity and importance, the sage grouse leks or strutting grounds need additional protection. Uses conflicting with the leks are any activities or development that would interfere with the lek during the breeding season, disturb or occupy the ground in the lek area which could displace the birds, or destroy the vegetation that the birds use for roosting and cover within the sensitive habitat area. These activities could include road construction, surface mining, or any construction activity, structural development and associated use of structures within 1320 feet of the lek. Surface mining is not a conflicting use as none of the sensitive habitat area is zoned for surface mining. New road construction through the habitat area is unlikely as the roads in the area are established public or ranch roads with no anticipated need for relocation or expansion. Because the lek and sensitive habitat area are remote, it is unlikely that a church or school would be sited within the sensitive habitat area. Additional structural development on the ranch could occur outside of the sensitive habitat area on the ranch and would not be a conflict. Agriculture is a permitted use in the exclusive farm use zone. Grazing is the principal agricultural use in the sensitive habitat area. Grazing during the mating season can disrupt the breeding cycle. The Bureau of Land Management works with the grazing permitees to minimize the grazing conflicts with the sage grouse leks during the breeding season. Another potential conflicting use is recreational off-road vehicle use because it fragments habitat and can disrupt the birds during the breeding season. However, ODFW reports that, at this time, there is not a problem with off-road vehicle use at this site. The Bureau of Land Management has a seasonal off-road vehicle closure from ,March 15 through September 1 south of Highway 20. A private park or campground would be a conflicting use because it would attract people and vehicles and alter the landscape. Economic. Social. Environmental and Energy Consequences Analysis. ESEE Findings and Decision – DE 0998-01/DE 0998-02 Exhibit Page 2 Page 1 — of 7-1t, Ordinance 019 -OST A t i ,Additions - Bold 168 0315 Deletions - str-il -eugh (A) Economic Consequences Construction costs could increase if building a.-tivity is restricted during the breeding season. Restricting structural developme^t within one quarter mile of the lek would have a negligible effect because there is land available outside of the sensitive habitat area for residences or other strsctural development. However, structural development within the one-quarter mile boundary would be more cost-effective than building elsewhere on the subject property by reducing transportation costs for travel between the house and the existing buildings. Mitigation measures to protect the leks will involve some economic consequences but will increase the protection for sage grouse on the subject property over what currently is provided. The Evans Well sites are unique in Deschutes County as they are the only leks existing neat to established buildings. These buildings have been in place for the entire period that ODFW and BLM have been counting sage grouse. During most years, ranch hands or previous owners have resided at the home that previously existed near the leks. BLM and ODFW contacted the owners and employees to make them aware of the lek sites and the timing of the breeding season. The historical dwelling location, while within the designated one-quarter mile sensitive area, is between existing buildings and in an area that sage grouse do not use for traveling into or away from the leks. This location is further from the leks than the other existing buildings. Use of the historic dwelling site for a new dwelling should not affect the use of the lek by sage grouse if mitigation measures are required as part of the approval for any dwelling established on the site. Limiting the development of parks or campgrounds would have a negligible economic consequence as there are numerous private and public recreational facilities throughout the county. Maintaining the lek site and sensitive habitat area sites will help assure that the species does not become a federally threatened and endangered species. Should this happen, the protection criteria would be much more restrictive around the remaining lek sites. (B) Social Consequences The social consequence of allowing unregulated conflicting uses eeuld-be include the possible abandonment of the lek site which would in turn be a loss to the segment of society that enjoys viewing wildlife. The positive social consequences of limiting conflicting uses would be continuing opportunities for naturalists and bird watchers to study and enjoy the birds. However, because the site is on private land, opportunity for public access may be limited. ESEE Findings and Decision - DE 0998-011DE 0998-02 Exhibit Page 3 Page -2=4— of Ordinance _ -03 ;1 1t • ,Additions — Bold Deletions - striluethfetgh 108 a 0316 Structural development within the sensitive habit=- area could be prohibited with little social consequence as owners have the potential to develop their properties outside of the quarter mile sensitive habitat area. However, a positive consequence of allowing structural development consisting of a single-family dwelling within the one-quarter mile sensitive habitat area would be the year-round presence of residents who could discourage trespassing, vandalism and other illegal activity in the area of the leks. On the other hand, construction of a single-family dwelling outside the one-quarter mile sensitive habitat area would result in development on and disruption of other habitat (antelope range) in either the southern or eastern portion of the property. The development of a vegetative buffer between existing and new structures on the property could create an aesthetically pleasing barrier between the lek designated DE 0998-02 and the farm buildings and human activity. (C) Environmental Consequences The environmental consequences of allowing unregulated conflicting uses could be the destruction of the characteristics whieh that make the lek desirable to the birds whish and could cause abandonment of the site and failure of breeding and reduction in the sage grouse population. There are no negative environmental consequences of prohibiting conflicting uses. However, allowing a new single- family dwelling within the quarter -mile sensitive habitat area in the location where the dwelling on the property historically was located can minimize the impact to sage grouse habitat by concentrating the development on the subject property in one area rather than spreading it into other habitat areas. ODFW believes that with added restrictions, sage grouse protection on the property can be increased over what currently is provided. (D) Energy Consequences There are no identified significant energy consequences from either permitting or limiting conflicting uses. However, allowing a new single-family dwelling within the quarter -mile sensitive habitat area could create energy savings by minimizing vehicle trips between the existing farm buildings and the homesite. 5. Program to Meet Goal 5. The Board of County Commissioners finds that, based on the ESEE consequences, both the resource site and the conflicting uses are important compared to each other, and that, based on the ESEE eensequenees-analysis, the conflicting uses should be meed -fie allowed in a limited way that protects the resource site to a desired extent (OAR 660- 4-6 23-0-1.40(3 5)(b)). ESEE Findings and Decision — DE 0998-01/DE 0998-02 Exhibit ____ Page 4 Page of 2.(o Ordinance Fi rrc J _ Additions — Bold Deletions - strilethreugh 168 © 0317 In order to protect both the leks and the sensitive habitat L -ea and allow limited conflicting uses, the following restrictions shall apply: 1. Site plan review under the Sensitive Bird and M.:mmal Habitat Combining Zone shall be required for all land uses within the sensitive habitat area requiring a conditional use permit. 2. New structural development within the quarter rrEe sensitive habitat area shall be pFe bited beeause .here are atter..atiye 1,,ea fit.... F„F_ A.,..+,,,Few utside of the sensitive habitat area limited to one single-family dwelling constructed within or adjacent to the foundation footprint of the dwelling that historically existed on the site. 3. Existing structures may be repaired and maintained or, in the event of loss, replaced with the same type of building within the same footprint. 4. Partitions creating an additional residential building site within the sensitive habitat area shall be prohibited. 5. Livestock shall not be fed on or within 300 feet of the leks from February 15 to May 1. 6. Dogs shall be confined between the hours of 5:00 a.m. and 9:00 a.m. from February 15 to May 1. 7. All construction activity on the subject property shall be limited to the period from May 1 to January 31. 8. Human activity within 300 feet of the leks shall be minimized during the hours of 5:00 a.m. to 9:00 a.m. from February 15 to May 1. 9. A vegetative buffer shall be planted and maintained between the lek designated as DE 0998-02 and the farm buildings. This buffer shall consist of one or more species listed below and planted at 2.5 -foot intervals along the southern fence between the ranch buildings and the sage grouse hdL Recommended shrubs and trees include: Chokecherry, Carragan, Russian Olive, Silver Buffaloberry, Autumn Olive, and Multiflora Rose. 10. Access to water shall be provided for wildlife summering on the property by keeping water in the existing livestock troughs throughout the summer months. n�i�� :.i i�ry�ii w:��:n:•i�s�:�ii� nnv� ESEE Findings and Decision — DE 0998-01/DE 0998-02 Exhibit C Page 5 Page Z-lz_ of � Ordinance 0& -°3cl