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2003-824-Ordinance No. 2003-010 Recorded 5/6/2003REVIEWED LEGAL COUNSEL REVIEWED Q' a^ CODE REVIEW COMMITTEE DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL 1111111111111111111111111111111111 2003-000824 RECO CLERKS U 1003.814 05/06/2003 03:31:45 PM For Recording zmanip ...,,,y BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 21, the Sisters Urban Area Zoning Ordinance, of the Deschutes County Code, to Amend the Official Zoning Map by Changing the Zone for Certain Property from Exclusive Farm Use-Sisters/Cloverdale subzone (EFU-SC) to Light Industrial (IL), and Declaring an Emergency. * ORDINANCE NO. 2003-010 WHEREAS, Barclay Meadows Business Park, L.L.C. applied for a quasi-judicial plan amendment to include certain property within the City of Sisters Urban Growth Boundary (UGB), change the County Comprehensive Plan Designation from Agriculture to Industrial, and change the zoning of the property from Exclusive Farm Use (EFU) to Light Industrial (IL). The request proposed the County adopt an exception to Goal 3 (Agricultural Lands); and WHEREAS, the justification for said Zone Change requires that the subject property be rezoned to Light Industrial (IL); and WHEREAS, public hearings were held on August 17, 1999 and August 24, 1999, after notice was given in accordance with applicable law, before the County Hearings Officer; and WHEREAS, the Hearings officer recommended denial of the proposed amendment; and WHEREAS, a de novo public hearing was held on January 26, 2000, after notice was given in accordance with applicable law, before the Board of County Commissioners; and WHEREAS, the Board of County Commissioners approved the change in zoning from EFU to IL, and amended the City of Sisters Urban Growth Boundary to include the property, through issuance of their decision dated December 27, 2000; and WHEREAS, the Board's decision was appealed to the State Land Use Board of Appeals (LUBA) and then remanded by LUBA with instructions that the County adopt adequate findings addressing OAR 660-012- 0060(2)(c); and WHEREAS, a limited de novo public hearing was held on March 27, 2002, after notice was given in accordance with applicable law, before the Board of County Commissioners; and WHEREAS, the Board of County Commissioners issued a decision, dated April 10, 2002, with findings that the applicant's proposal will not significantly affect a transportation facility under OAR 660-012- 0060(2)(c), approving the applications; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: PAGE 1 OF 2 - ORDINANCE NO. 2003-010 (5/7/03) Section 1. AMENDMENT. The official zoning map for Title 21, the Sisters Urban Area Zoning Ordinance, as amended, is further amended by zoning certain land, as described in Exhibit "A" and depicted on Exhibit `B", as Light Industrial (IL), attached hereto and by this reference incorporated herein. Section 2. FINDINGS. In support of this ordinance, the Board adopts its decisions for file ZC-99-1, dated December 27, 2000 and April 10, 2002, attached hereto as Exhibits "C" and "D" respectively, and by this reference incorporated herein. Section 3. 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 . 5� day of , 2003. BOARD OF COUNTY COMMISSIONERS OF DESCI U S COUNTY, OREGON i NNIS R. LUK Chair A n6 TOM DEWOLF, Commissioner MIC A L M. DALY, Co issioner Date of 1St Reading: 5 day of '2003. Date of 2nd Reading: J l�) day of y , 2003. Record of Adoption Vote Commissioner Yes No Abstained Excused Dennis R. Luke t-- /Tom TomDeWolf r/ Michael M. Daly Effective date: day of , 2003. ATTEST: ✓'��ii�t� Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2003-010 (5/7/03) �AKeL-,4y r�0PEKT� A Parcel of land situated in the Northwest Quarter (NW '/0 of Section 4, Township 15 South, Range 10, East of the Willamette Meridian, Deschutes County, Oregon being more particularly described as follows: Beginning at a 5/8" iron rod on the West line of said Section 4, which bean N00003'45"W, 75.00 feet from the West Quarter comer of said section; Thence N00°3'45"W, on said West line, 916.21 feet to a 5/8" iron rod at the Southwest comer of "Trapper Point, First Addition" a subdivision of record; Thence N89°55'57" E, on the South line of said "Trapper Point, First Addition", 1319.52 feet to a 5/8" iron rod; Thence S00105'577E, 988.49 feet to a 5/8" iron rod at the Center -West Sixteenth comer of said Section 4; Thence S89°49' 17"W, 1026.45 feet to a 5/8" iron rod; Thence N00007'58"W, 75.00 feet to a 5/8" iron rod; Thence S89°47'28"W, 293.62 feet to the point of Beginning. i _xhibit Fuge I Of Ordinance 2003 - 0 10 Print Map SUBJECT SITE N Tax Lot 103, Assessor's Map #15-10-04 35.34 Acres File Numbers PA -99-4 and ZC-99-1 Exhibit Q ' P - Oroi tante . 20©3-'d ID • ':[V1 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON FINDINGS AND DECISION FILE NUMBERS: PA-99-4/ZC-99-1 APPLICANT/ Barclay Meadows Business Park, L.L.C. PROPERTY OWNER: P. O. Box 587 Bend, Oregon 97709 ATTORNEY: Tia M. Lewis Merrill O'Sullivan, LLP 1070 NW Bond St., Suite 303 Bend, Oregon 97701 Attorney for Applicant i )NSEL REQUEST: The applicant is requesting approval to change the plan designation and zoning of the subject property from Agriculture to Industrial and from EFU-SC to IL, respectively, and approval of an exception to Statewide Planning Goal 3 to include the subject property within the Sisters Urban Growth Boundary. STAFF REVIEWER: Chris Schmoyer, Associate Planner HEARING DATE: January 26, 1999 RECORD CLOSED: March 31, 2000 I. APPLICABLE STANDARDS AND CRITERIA: A. PL -16, the City of Sisters Urban Area Comprehensive Plan Board of Commissioners Decision, PA-99-4/ZC-99-1 Page 1 Exhibit C Page 1 Of Ordinance 2403 O 1 o • B. Title 21 of the Deschutes County Code, the City of Sisters Urban Area Zoning Ordinance 1. Chapter 21.72, Amendments * Section 21.72.010, Amendments * Section 21.72.020, Standards for Zone Change C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.28, Land Use Action Decisions * Section 22.28.030, Decision on Plan Amendments and Zone Changes D. Oregon Revised Statutes (ORS) 197.298, Priority of Land To Be Included Within Urban Growth Boundary E. Oregon Administrative Rules, Chapter 660 1. Division 4, Interpretation of Goal 2 Exception Process • * OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals * OAR 660-04-015, Inclusion as Part of the Plan * OAR 660-04-018, Planning and Zoning for Exception Areas * OAR 660-04-020, Goal 2, Part II(c), Exception Requirements * OAR 660-04-022, Reasons Necessary to Justify an Exception under Goal 2, Part II(c) * OAR 660-04-030, Notice and Adoption of An Exception 2. Division 12, Transportation Planning Rule * OAR 660-12-060, Plan and Land Use Regulation Amendments 3. Division 15, Statewide Planning Goals and Guidelines Exhibit C. Page A — of A/6 Ordinance -24D3-D//) Board of Commissioners Decision, PA-994/ZC-99-1 Page 2 • 0 II. FINDINGS OF FACT: A. Location: The subject property does not have an assigned address. It is located on the west side of Camp Polk Road north of Barclay Drive and is further identified as Tax Lot 103 on Deschutes County Assessor's Map 15-10-04. B. Zoning and Plan Designation: The subject property is designated Agriculture on the Deschutes County Comprehensive Plan Map and is zoned Exclusive Farm Use Sisters/Cloverdale Subzone (EFU-SC). A portion of the property is within the Airport Height Combining Zone and zoned Airport Overlay (AO). C. Site Description: The subject property is 35 acres in size, roughly rectangular in shape, relatively level and has a vegetative cover of unirrigated pasture grass. A row of large ponderosa pine trees sit just to the north of the northern property boundary. The property is undeveloped except for an old barn and several outbuildings. The property has no irrigation water rights and is not currently engaged in farm use. D. Soils: According to Natural Resources Conservation Service (MRCS) maps of the area, the subject property is composed of Lundgren sandy loam, mapping unit No. 85A, 0-3 percent slopes. The NRCS rates this soil as 6e when not irrigated. No classification rating is provided for irrigated soils. This soil is well drained with the composition being 90% inclusions and 10% contrasting inclusions. Permeability is moderately rapid with available water capacity of about 5 inches. The major management limitations are identified as climate, low fertility, susceptibility of compaction, surface texture and permeability. Unit 85A is typically used for irrigated cropland and livestock grazing. However, grazing and accessibility for livestock is limited due to the presence of rock outcrops. This soil type is not considered high value soil with or without irrigation. E. Surrounding Land Use: The subject property abuts the northern boundary of the Sisters City limits and Urban Growth Boundary (UGB) at the property's southwest corner. Further to the southwest is land located within the City limits, zoned IL and developed with an industrial park. To the west is land zoned EFU-SC and owned by the Sisters School District (hereafter "school district property"). To the north is property zoned Rural Residential (RR -10) and developed with the Trapper Point Subdivision. To the east is Camp Polk Road. Further to the east is the Sisters Airport. To the south are two parcels zoned EFU-SC. Further to the south are parcels zoned IL and CG, General Commercial. F. Procedural History: The applicant submitted the subject goal exception, plan amendment and zone change applications on May 14, 1999. Subsequently, the county advised the applicant that the application was incomplete and that additional information was needed to address statewide planning goals. The applicant supplied the additional information and the application was accepted by the county as complete on August 12, 1999. Because the applications include a request for a plan amendment, and the proposed zone change cannot be approved without the plan amendment, the applications are not Exhibit Page_ of Board of Commissioners Decision, PA-99-4/ZC-99-1 Ordinance a3LY53 00 Page 3 rl • subject to the 150 -day period for issuance of a final local land use decision under ORS 215.428. Hearings were held before the Deschutes County Hearings Officer on August 17, 1999 and August 24, 1999. The record before the Hearings Officer closed on September 28, 1999. At those hearings the subject applications were considered at the same time as similar applications for the adjacent school district property (PA-99-5/ZC-99-3). On November 16, 1999, the Hearings Officer issued her Findings and Decision,' concluding that the subject proposal met all of the applicable criteria except those relating to compatibility and traffic. Pursuant to Section 22.28.030 of the Deschutes County Development Procedures Ordinance (DCDPO), the Board heard this matter de novo. A public hearing before the Board was held at the Sisters Fire Hall on January 26, 1999. Again, these applications were heard at the same time as similar applications on the school district prooerty. At this hearing, the entire record for the school district applications (PA-99-5/ZC-99-3) was incorporated into the record for the subject applications and vice versa. A subsequent hearing was held before the Board at which the Board took testimony from the Mayor of Sisters and members of Sisters City Council only. Additional evidence and argument was submitted by the applicant and members of the public. The record before the Board closed on March 31, 2000. • G. Proposal: The applicant requests approval of a plan amendment from Agriculture to Industrial and a zone change from EFU-SC to IL. The applicant also requests approval of an exception to Statewide Planning Goal 3, Agricultural Lands, to include the EFU-zoned subject property within the Sisters UGB. The property would be developed with industrial uses in an industrial park served by City water and by either on-site sewage disposal systems or by connection to a future municipal sewer system. H. Public/Private Agency Comments: The Planning Division mailed notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Road Department, Environmental Health Division, Property Address Coordinator and Transportation Planner; the Oregon Department of Transportation (ODOT); the City of Sisters; the Sisters School District; the Oregon Department of Water Resources, Watermaster-District 11; and the Oregon Aeronautics Division (Aeronautics). These comments are set forth verbatim at pages 3-7 of the Staff Report and are addressed in the findings below. The following agencies either had no comment or did not respond to the notices: the Deschutes County Assessor's Office; the Oregon Department of Land Conservation and Development (DLCD); the City of Sisters Fire Department; and the USFS Sisters Ranger District. 'Section 22.28.030 of the Deschutes County Development Procedures Ordinance requires all plan amendment/zone change applications involving goal exceptions or resource property to be heard de novo by this Board. Thus, while . the Hearings Officer's "decision" is entitled "Findings and Decision," it is essentially a recommendation. Exhibit C _ Board of Commissioners Decision, PA-994/ZC-99-1 Page 04 Page 4 Ord inanc0�;"C /l1 0\ • I. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 500 feet of the subject property. In addition, notice of the public hearings �- was published in the "Bend Bulletin" newspaper and the subject property was posted with a notice of proposed land use action sign. III. CONCLUSIONS OF LAW: A. SUMMARY: Since the Sisters Urban Area Comprehensive Plan was adopted in 1979 the population of the Sisters area has grown dramatically. This growth has occurred primarily outside the Sisters' City limits because of the lack of a municipal sewer system. The draft Sisters 1997-2017 Comprehensive Plan identifies the need for approximately 250 acres of additional land to accommodate projected continued growth in the area, including 67 acres of industrial land for economic development and employment. The applicant's proposal would add the subject property's 35 acres to the City's industrial land inventory and bring it within the City's UGB. The applicant must satisfy a number of complex approval standards, including: the criteria for an exception to Statewide Planning Goal 3; the criteria for a plan amendment and zone change; as well as the Statewide Land Use Planning Goals and their implementing administrative rules. The Hearings Officer found that the applicant's proposal satisfied all approval criteria, except those related to traffic impacts and compatibility with the rural residential uses to the north. The Hearings Officer specifically identified measures which could bring the proposal into compliance with the applicable criteria. Because our review of this matter is de novo, both the applicant and all interested or affected parties were allowed to submit new evidence. The applicant submitted new evidence in the form of a modified proposal, incorporating some Hearings Officer's suggestions including restricting the level of development, planning for and funding traffic improvements, prohibiting heavier industrial uses and providing increased setbacks from the northern property line. Based on the evidence in the record, the Board is satisfied, as discussed in detail in the findings below, that the proposal complies with all applicable approval criteria. UGB EXPANSION/GOAL EXCEPTION B. OAR Chapter 660, Division 4, Interpretation of Goal 2 Exception Process 1. OAR 660-004-010, Application of the Goal 2 Exception Process to Certain Goals. (1) The exceptions process is not applicable to Statewide Planning Goal 1 "Citizen Involvement" and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals which prescribe or restrict certain uses of resource land. These statewide goals include, but are n!Ajisile10 . Page Ar of Ordinanceo7�l2��2 Board of Commissioners Decision, PA-994/ZC-99-1 Page 5 • (a) Goal 3, "Agricultural Lands," however, an exception to Goal 3 is not required for any of the farm or nonfarm uses permitted in an exclusive farm use (EFU) zone under ORS Chapter 215; FINDINGS: Industrial uses are not permitted outright or conditionally in the EFU Zones under ORS Chapter 215. Therefore, the applicant's proposal requires an exception to Goal 3. (b) Goal 141 "Urbanization," except as provided for in paragraphs (1)(c)(A) and (B) of this rule, and OAR 660-14-000 through 660-14-040: (B) When a local government changes an established urban growth boundary it shall follow the procedures and requirements set forth in Goal 2, "Land Use Planning," Part II, Exceptions. An established urban growth boundary is one which has been acknowledged by the [Land Conservation and Development] Commission under ORS 197.251. Revised findings and reasons in support of an amendment to an established urban growth boundary shall demonstrate compliance with the seven factors of Goal 14 and demonstrate that the following standards are met: • FINDINGS: The record indicates the Sisters UGB has been acknowledged by LCDC. Therefore, the applicant's proposal to change the existing UGB to include the subject property must comply with the exception criteria in Goal 2 and the seven factors in Goal 14, discussed in detail in the findings below. (a) Reasons justify why the state policy embodied in the applicable goals should not apply. (This factor can be satisfied by compliance with the seven factors in of Goal 14); FINDINGS: The state policy embodied in Goal 3 is to preserve and maintain agricultural land for farm use. The applicant argues this state policy should not apply to the subject property for three reasons: 1) the property is not suitable for farm use; 2) there is a need for additional industrial -zoned land in the Sisters UGB; and 3) the property is suitable for industrial development. 1. Unsuitability for Farm Use. The subject property does not have irrigation. In fact, the record shows that the applicant and several other property owners in the area transferred the water rights back to Squaw Creek for instream use because of the inability of the property owners to make efficient or economical use of the water for irrigation purposes. The record also shows that all easements for the transfer of that water to the subject property were abandoned. The property currently is not engaged in farm use although the record indicates it is receiving farm tax deferral . and is included on the list of commercial farms in the comprehensive plan agricultural lands Exhibit C Board of Commissioners Decision, PA-994/ZC-99-1 Page _ a Of Page 6 Ordinance t ;1 • resource element.' The property includes one soil type -- Lundgren sand ]o No. 85 -- which is not considered high value soil with or without irrigation.y' ssoilmapping unit NRCS capability rating of VIe without irrigation. This soil has an OAR 660 Division 33, the administrative rules implementing Goal 3 and Chapter 18.16 of the Deschutes County Code, EFU Zones, establish suitability standards for Purposes of creating land divisions and for siting dwellings. The Board finds these s useful in determining the subject roe EFU-zoned land for exception to Goal 3. Under the pstandards sfor flarm ity fdivifarm o s use for u standards are 18.16.065(B), each proposed parcel in the EFU-SC Zone m Purposes of the proposed to Sections minimum .16.055(B) and commercial farm in the subzone -- 63 irrigated acres or at 9911 assessed farm use vas for a $14,931. The subject property is 35 acres in size and has no irrigation. use value of indicates the property had a 1991 assessed value for farm use of $6,920. g The Assessor's data Therefore, the Board finds the property's size, lack of irrigation and low assessed value for farm of meeting the minimum standards for a farm parcel in the EFU-SC Subzoneuse place it far short Under the standards for siting non-farm dwellings in Section 18.16.050 Presumed to be suitable for farm use if it is composed predominantly of Class I-V subject pro (G), a lot or parcel is perry has soils classified We I soils. The suitability can be overcome b -- t•e minimally suitable. The Production a farm products or livestock ue to terrain, ng that the property is generally u presumption of and flooding, vegetation, location or size. Section 1 y unsuitable for the adverse soil or land conditions, drainage ,Waccording to the NRCS the subject property's8.16.050(G)(1)(a)(iii). The Board finds that sed only for dryland livestock grazing with significant limitations e is so oor that without irrigation it can be support only very few livestock on dryland forage. Accordingly, due on �o the tinherertt the soils, the Board finds the property unsuitable for crop production. y � I e�' It will soils alone do not make the property unsuitable for nature of Property de render it unsuitable. For example,it the ' p tion. Furthermore, whole the grazing, the other characteristics of the of the property alone makes it unsuitable for a grazing onerationnnt�pthe record shows that the size 2 cows. Likewise, the location makes the property generally unsuitable for farm indicates the subject property's proximity to the Sisters Airport may render i use. agricultural uses. The record The record shows that seven acres of the property are located linthe Aie for rport "Runway Protection Zone" (RpZ) in which no structures of any kind are all indicates the remaining 28 acres are located within the "Transitional Surface" 'Port which is subject to building height and use restrictions Wed The record development. The record includes a chart from Aeronautics of Sisters Airport but does not preclude industrial entitled "Compatible Land Uses per 2 The applicant argues that the commercial farms list was developed as a resource tool by the the county in developing the standards for the subzones in the EFU zone throughout the conn and w to be used to establish a particular roe county solely to assist or f us that the list was not Prepared with notice to,the public or affec ed land or productivi fwners nor were the ry as not intended landowners provided with the opportunity to comment because the list was intended The applicant further argues Because of the limited purpose for which the commercial farms list was developed, the Board find that affected odeveloped as a mechanism for determining a roe for use as a resource tool only. g property's rty's suitability for farm use. finds that the list was rd of Commissioners Decision, PA-99-4/ZC-99-1 C Page 7 Exhibit Page -7- -- of Ordmance6&4--� -12 12- FAR [Federal Aviation Regulations] Part 77 Surfaces and FAA [Federal Aviation • Administration] Safety Zone." The chart identifies the types of land uses that are incompatible with the various "imaginary surfaces" the FAA recognizes around airports. The chart indicates any agricultural activity that attracts birds or creates smoke is considered incompatible with airport operations. According to the chart, livestock grazing may be incompatible with airport operations. Opponent ARLU-DeCo argues the subject property's suitability for farm use should be determined based upon the production of llamas because such "specialty livestock" represent a large percentage of the county's agricultural production and because the nearby Patterson Llama Ranch has the same soil type as the subject property. The Board disagrees. The Board finds that evaluating the productivity of the subject property based upon llama production is not appropriate because of the wide variations in market conditions and prices that can affect llamas and other "exotic" species. This volatility was verified by the testimony in the record of Mark Higham. Mr. Higham, who is a partner in the applicant's business, stated he operated a successful llama ranch on 27 acres east of Bend until 1996 when the market price for llamas dropped and the overall contribution of llamas to the county's agricultural economy declined dramatically -- from $11 million to $3 million per year. Moreover, the Board finds comparison with the Patterson Llama Ranch is not appropriate because the ranch has irrigation end irrigated pasture is many times more productive for grazing than dryland grazing on Lundgr:.-3i sandy loam soil. Furthermore, the ranch is not bordered on one side by the airport and on another by the existing industrial park. For the foregoing reasons, the Board finds the subject property is not suitable for farm use due to its location, poor quality soil and lack of irrigation. Therefore, the Board finds the public policy embodied in Goal 3 should not apply to require that the subject property be retained as agricultural land for farm use. 2. Need for Additional Industrial -Zoned Land. The applicant's Burden of Proof states there are 45 existing industrial -zoned lots within the Sisters UGB -- 28 lots in the Sisters Industrial Park and 17 lots in the adjacent Mountain View Industrial Park. The applicant states only eight of these lots are vacant and/or large enough to allow redevelopment with additional industrial uses and they total only 5.94 acres. Goal 9, Economic Development, requires that a city's comprehensive plan "[p]rovide for at least an adequate supply of sites of suitable sizes, types, locations, and service levels for a variety of industrial and commercial uses consistent with plan policies." The City of Sisters recently completed a multi-year process to update its Comprehensive Plan in order to provide a planning document for the next 20 years and to assure compliance with Goal 9. The City's draft 1997- 2017 Comprehensive Plan includes analyses of population growth and the resulting need for additional lands within the Sisters UGB. The portions of the draft plan addressing these issues are included in the record as Exhibit "C" to the applicant's initial Burden of Proof. The draft plan identifies a need for an additional 250 acres of land, including 142 acres for residential development, 42 acres for commercial development and 67 acres for industrial development. The Board of Commissioners Decision, PA-99-4/ZC-99-1 Page 8 Fags o #Q�_ ()f j173=i�1t�e plan includes a recommendation that the subject property and the adjacent school district property be brought into the UGB and redesignated industrial to meet that need. The record indicates the draft Comprehensive Plan has not yet been adopted by the City and therefore is not binding on these applications. However, the Board finds the draft plan is relevant insofar as it reflects the City's identified need for 67 additional acres of industrial -zoned land, the methodology and data used to support that need and the City's intent that the subject property be redesignated to meet that need. The Board also notes that the City's draft plan was prepared prior to the subject applications being submitted and was initiated by the City. The applicant also undertook its own comprehensive industrial land need analysis in conjunction with the school district. The analysis uses population, income, employment and economic forecasts based on information from the Center for Population Research and Census at Portland State University, the Oregon Employment Department, the Oregon Office of Economic Analysis, the U.S. Department of Housing and Urban Development, Deschutes County and the City of Sisters. This analysis can be summarized as follows. The population within the Sisters City limits increased by 20 percent between 1990 and 1998 (from 708 to 850) -- an average growth rate of approximately 2.2 percent per year. During the same period the population of Deschutes County increased by nearly 40 percent (from 74,958 to 104,900) -- an average growth rate of approximately 4.4 percent per year. Using the county's historic growth rate and including all land within the Sisters UGB, the population in the UGB is projected to increase by over 100 percent by the year 2020, to approximately 1,710.3 The manufacturing employment base in Deschutes County has shifted dramatically from lumber and wood products to other types of manufacturing. Since 1986, there has been a 30 percent decline in wood products jobs, a 96 percent increase in other manufacturing jobs and increases of approximately 68, 57, 90 and 104 percent, respectively, in construction, transportation, trade and services jobs -- the types of employment typically located on industrial -zoned land. This shift is anticipated to continue into the future due to the continuing decline of the wood products industry. In 1998, persons employed in Sisters represented approximately 2.5 percent of the total employment in Deschutes County. In 1998, approximately 40 percent of persons working in Sisters were employed in manufacturing, construction, transportation, trade and services jobs and approximately 60 percent of these jobs were located on industrial -zoned lands, resulting in a ratio of approximately 5 employees per acre of industrial land. Future employment growth in Sisters will be proportionate with its growing percentage of overall county employment. The school district projected that the percentage of jobs in manufacturing, construction, transportation, trade and services located on industrial -zoned land would increase to approximately 7 employees per acre during the next 20 years as industrial land is occupied with more high-technology businesses and as the City develops a municipal sewer system allowing for denser industrial development. However, the applicant asserts the 5 -employee -per -acre rate should be used because the availability of sewer will not increase the density of industrial 3 The county ordinance adopting this population figure, as required by ORS 195.025(1), is Ordinance No. 98-084. . Board of Commissioners Decision, PA-99-4/ZC-99-1 Page 9 Exhibit - Page --9— of Ordinance - I7 , j development due to the large minimum lot size landscaping, parking, and other infrastructure typically required for industrial uses. Based upon the above evidence, the applicant has predicted the amount of industrial -zoned land needed during the next 20 -year planning period based on two separate calculation methods: the historic absorption rate for industrial -zoned land in the Sisters UGB and an employee -per -acre forecast analysis recommended by DLCD. The record indicates that until 1995 the historic industrial land absorption rate was approximately 2.9 acres per year. Based on this figure, the Sisters draft Comprehensive Plan predicts that an additional 67 acres of industrial land will be needed (20 years x 2.9 less existing industrial land inventory of 5.84 acres plus 25% for roads, utilities, churches, schools and parks). However, the applicant argues 2.9-acre/year absorption rate is too low because the historic absorption rate data is several years old. Using more current data as obtained from the City over a longer time frame, the applicant has submitted evidence supporting a historic absorption rate of 3.3 acres per year. Based upon this rate, the applicant calculates the City's industrial land need at an additional 83.85 acres (3.3 x 20 less existing industrial land inventory of 5.84 plus 25%). The Board finds the evidence submitted by the applicant in support of the 3.3 acre per year absorption rate is both credible and reliable. This evidence includes the same data used by the City but supplements that data with additional data from more recent years. The use of a longer time period to establish the absorption rate will produce more reliable data because of the ability to capture periods of both slow growth and rapid growth. Accordingly, the Board finds that the absorption rate methodology establishes a need for 84 acres of industrial land. The applicant submitted the need calculations based on the employee -per -acre forecast method 10 because it was recommended by LCDC. However, the applicant argues the employee -per -acre forecast method is not as reliable as the historic absorption method because it is based on assumptions rather than on historic data. In addition, the applicant takes issue with the school district's conclusion that in applying the employee -per -acre method the City's share of the county employment pool is approximately 2.5 percent." The applicant argues a more accurate figure would be 7.13 percent, based upon the .21% -per -year rate of increase in the City's share of county employment from 1990 to 1998. Using this rate, the applicant predicts that at least an additional 328 persons will be employed in manufacturing, construction, transportation, trade and service jobs on Sisters industrial -zoned land by the year 2020, requiring an additional 82 acres of industrial land based on 5 employees per acre (65.6 acres plus 25%). See Applicant's Second Supplemental Burden of Proof Statement, pp. 4-10. The Board finds that, based on the evidence submitted by the applicant showing Sisters' steady increase in the percentage of the county employment pool from 1990 to 1998, it is reasonable to conclude that this percentage will continue to increase at the same rate to result in Sisters having 7.13% of the county employment pool by 2020. See, Applicant's Second Supplemental Burden of Proof Statement, pp. 4-10. In its burden of proof materials in support of its application (PA-99-5/ZC-99-3), the school district calculated Sisters' current share of the County employment pool to be 2.48% (1,264 employees in the City of Sisters in 1999 is 2.48% of 51,090, which is the total projected employees in Deschutes County in 2000). The school district then used the 2.48% to calculate the need to be 38.04 acres under the employee -per -acre methodology. • Board of Commissioners Decision, PA-994/ZC-99-1,:llbll t✓ Page 10 page -Jb-. of Ordinance AA&L-40 15 Using this figure, the Board finds that the employee -per -acre methodology establishes a need of • 82 acres of industrial land. Because the two methodologies produce almost the same result (absorption rate shows need of 84 acres, employee -per -acre shows need of 82 acres), the Board need not decide which methodology is more accurate. Based on the evidence in the record, the Board finds that the applicant has shown that the City of Sisters needs at least 82 acres of industrial land to meet its Goal 9 requirements. With respect to population projections, opponent Howard Paine cites provisions of the current Comprehensive Plan stating the original UGB was based on a projected 20 -year population growth from 810 to 2,135. He argues that because the current population in the Sisters' City limits is 910 there is no basis to expand the UGB for any purpose. The Board disagrees. Goal 14 factors 1 and 2 are referred to as the "need" factors. See Benjamin Franklin Development v. Metro Service District 17 Or LUBA 30,37 (1988), affd 95 Or App 22 (1989). In City of La Grande v. Union County, 25 Or LUBA 52(1993) LUBA explained that, to satisfy the requirements of Goal 14 Factors 1 and 2, a proposed amendment to expand the UGB must demonstrate a need for such change based upon either (1) increasing projected populations, (2) amending the assumptions applied to those population figures in originally justifying the UGB or both. The applicant here bases its request on both prongs of the analysis. First, it seeks to amend the assumptions that were applied in the City of Sisters 1979 Comprehensive Plan to the relationships between population, population growth and the need for industrial lands generated by population and growth. This amendment of the assumptions justifies increasing the UGB to add additional industrial lands to the City. Second, the applicant also demonstrates projected population growth that even alone justifies expansion of the UGB. The City of Sisters' 1979 Comprehensive Plan noted the 1978 population of the City of Sisters to be 810 persons. The plan projected the City's population figure for the year 2000 to be 2,135, a near tripling of the 1978 figure. The record demonstrates this level of population growth within the City limits has not occurred. Indeed, the population within the City of Sisters grew to only 850 persons by 1998 according to the Center for Population Research, Portland State University, and 910 in 2000. However, the Board finds that the level of population growth from 1978 to 1998 alone is not the determining factor. Rather, it is the "assumptions" applied to the population and projected growth, in 1979 and presently, as well as the now projected growth that are significant. Both of these factors demonstrate on this record the required justification for a plan amendment expanding the City of Sisters UGB. The 1979 Sisters Comprehensive Plan "assumptions" about the population growth and the need for industrial lands were both general and specific. Generally, the plan reflected that, at that time, the economic character of the Sisters area was dominated by the timber industry, agriculture and recreation (See, 1979 Sisters Urban Area Comprehensive Plan, p. 34.). The plan stated that "Logging, timber management, and other forest activities account for the principal payroll of the • Board of Commissioners Decision, PA-994/ZC-99-1 Exhibit C Page 11 Page Z— of. Ordinance01 3 -UW . I Sisters general area." Id. The plan further identified the Sisters area as a supplier of the raw • material for wood product manufacturing, but not as a location for manufacturing itself. Indeed, the plan contained a generally pessimistic view of the City's future role in area manufacturing and other industrial activity by concluding that "local industrial development prospects of major industry appear dim due to limited resources," Id. at 37, and that the "established locations for the lumber and wood products industries can be expected to remain in Bend and Redmond." Id. Thus, assumptions in the 1979 Sisters Comprehensive Plan with regard to the area economy, in general, were that it would not generate substantial need or opportunity for industrial growth in Sisters. Those assumptions, in turn, led to a specific finding that "There are ample sites located within the Sisters Industrial Park to accommodate these needs. Id. at 44. The record demonstrates that this assumption proved true by 1998, but only half so. While there were sufficient industrial lands available during these two decades, the 1979 assumption concerning the relationship between population growth and need for industrial lands proved to be grossly inaccurate. The assumption that the City of Sisters would grow to a population of 2,135 by the year 2000, and that it would have sufficient industrial lands to accommodate the needs of that population completely underestimated or failed to consider the increase in the need for industrial lands that would occur during the 20 year plan period -despite limited population growth within the City limits. In fact, the City "used up" all of its industrial lands during this 20 year period with a total population growth of less than 10%. The record demonstrates this pattern in detail. The record also demonstrates that, starting with the present as a "baseline," now projected population growth in the City of Sisters will further increase the demand for industrial • lands in the City's very immediate future. Furthermore, the record indicates the Sisters UGB was established in 1983 with lands sufficient to provide for a projected 20 year need. From 1983 to 1990 very little residential, commercial or industrial development occurred within the UGB. In 1990, Deschutes County and the Sisters area began to grow dramatically. However, the population within the Sisters City limits and UGB could not grow as dramatically as the county's population because the City lacks a municipal sewer system. Therefore, growth occurred in outlying areas in the rural subdivisions that dot the landscape around Sisters. The applicant's Burden of Proof states that the school district boundary is actually the service area for the City of Sisters and that the population within the school district boundaries is approximately 9,000. Opponents have not challenged this argument or population figure. In fact, this population compelled construction of a new high school in 1991. In addition, the record indicates Sisters voters approved a bond measure to fund construction of a municipal sewer system and the City is in the process of acquiring land on which to site a sewage treatment plant. While the timing of a future municipal sewer system is not known, it is clear that once it is in place development within the City limits and the UGB will increase to more typical urban density. Finally, the Deschutes County Hearings Officer previously approved a plan amendment, zone change and development permits for a 51 -acre parcel on the western edge of the Sisters UGB (Pine Meadow Ranch, PA-95-15/ZC-95-12/TP-98-896/CU-98-64) to allow a 127 -lot planned unit development. At buildout, this development has the potential to increase the so Board of Commissioners Decision, PA-99-4/ZC-99-1 Exhibit Page 12 Page — Cf Ordinance i population in the UGB by approximately 320 persons (assuming 2.5 persons per dwelling unit), • which is one-third of the existing population. Considering all of these factors, the Board finds the applicant's needs analysis, as detailed in its initial Burden of Proof Statement and its Supplemental Burden of Proof Statements, provide a credible basis on which to calculate the need for additional industrial land. Based on the evidence in the record, the Board finds that Sisters needs at least 82 acres of industrial land to meet its obligations under Goal 9 and provide an adequate supply of industrial land. 3. Suitabilitv for Industrial Designation and Zoning. The applicant argues the subject property is suitable for industrial zoning and development for the following reasons: a. The property is located close to the City's existing industrial parks on land zoned IL and adjacent to the school district property which also is proposed for industrial designation. b. Placing new industrial uses near or adjacent to the existing industrial parks will allow more efficient provision of public facilities and services such as a looped water system and connection to a future municipal sewer system. c. The property is adjacent to Camp Polk Road, a designated collector street that provides a direct connection to Highway 20. d. At 35 acres, the property is of adequate size to accommodate in one location a variety of uses permitted in the IL Zone, including those which require large land areas. The Board concurs that these factors make the subject property generally suitable for industrial development. Opponents argue two factors make the subject property unsuitable for industrial development -- its proximity to low-density residential development in the Trapper Point Subdivision to the north and its location near Sisters Airport. The proposal's compatibility with adjacent residential development is discussed in detail in the findings below concerning the proposal's compliance with the goal exception criteria. With respect to airport proximity, the record shows that 7 acres of the subject property cannot be developed because it lies within the RPZ. The applicant has indicated an intention to explore park dedication for a portion of the 7 acres which cannot be developed. In its comments on the applicant's proposal, Aeronautics recommended that the subject property remain in an agricultural designation because of the RPZ and because Aeronautics believes agricultural zoning will more effectively limit the number of people congregating near the airport. Aeronautics provided no comments addressing the fact that its own chart on compatible land uses identifies various agricultural activities, including grazing, as possibly being incompatible with the airport operations. The Board finds Aeronautics' concerns are legitimate. Operation of . Board of Commissioners Decision, PA-994/ZC-99-1 Exhibit Page 13 Page 1.�L_ of Ordinance 1� light aircraft over populated areas can create safety hazards for persons on the ground. However, the Board is aware that industrial uses typically are sited near airports because of the relatively 0 lower numbers of people present at industrial sites and because property in the vicinity of airports is not considered suitable or desirable for commercial or residential uses due to conflicts and the potential congregation of people. Examples of industrial development in proximity to airports exist in Deschutes County -- the airport industrial park west of Roberts Field in Redmond and the large Lancair aircraft manufacturing plant located just east of the Bend Airport runway. Moreover, Clifford Clemens, owner of Sisters Airport, testified in support of the applicant's proposal, stating he believes industrial development can be compatible with the airport. Considering all of these factors, the Board finds the 28 acres of the subject property not located within the RPZ is suitable for industrial development despite its proximity to the RPZ and the airport. • For the foregoing reasons and as further addressed in the findings herein, incorporated by reference, the Board finds the applicant has demonstrated "reasons [that] justify why the state policy embodied in ... [Goal 3] should not apply." (b) Areas which do not require a new exception cannot reasonably accommodate the use; FINDINGS: The Board finds this criterion requires an alternative area analysis to determine whether there is land not requiring a goal exception that reasonably could accommodate industrial development without having to expand the Sisters UGB. The Board finds such an analysis should include vacant and underdeveloped land within the UGB and nonresource land -- i.e., exception areas -- outside the 1:iGB. The Board further finds that the phrase "cannot reasonably accommodate the use" requires a determination of whether the alternative sites are suitable for industrial development considering: 1) the typical operating characteristics and site and locational requirements of industrial uses; 2) the need to locate industrial uses so that adequate infrastructure can be provided; and 3) the location of potential conflicting uses. 1. Vacant and Underdeveloped Land Within the UGB. The record before the Hearings Officer included a detailed analysis of the inventory of buildable land within the Sisters UGB developed by the applicant in conjunction with the school district. The analysis examined available data from the Deschutes County Assessor's Office and Community Development Department including zoning and tax maps and development permits. In addition, the record indicates the applicant conducted on -the -ground inspections of each parcel. Based on this analysis vacant land within the Sisters UGB was categorized as either "gross fully vacant land," "partially vacant land" or "redevelopable land." Land was excluded from the inventory of buildable lands if it was located in the 100 -year flood plain or floodway, had slopes over 25% or other hazards, or was protected from development under a Goal 5 resource plan. In addition, 25% of the gross buildable acreage for road rights-of-way, utilities and non -industrial uses was subtracted from the buildable land inventory. Board of Commissioners Decision, PA-99-4/ZC-99-1 Page 14 Exhibit C Page -- of rOnance I Based upon the above-described data and analysis the buildable land inventory' includes a total of 170.09 net buildable acres distributed within the UGB as follows: Zones Net Buildable Acres RS (Standard Density Residential) 71.01 RH (High Density Residential) 15.47 CG (General Commercial) 17.0 CH (Highway Commercial) 6.22 IL (Light Industrial) 4.28 UAR 2.5 (Urban Area Reserve) 4.26 UAR 10 (Urban Area Reserve) 51.85 In addition, the applicant submitted maps labeled Exhibits "H" and "I" showing the location and zoning of all land on the buildable land inventory. The Board finds lands on the inventory zoned RS and RH cannot reasonably accommodate the need for land suitable to locate a variety of industrial uses considering the factors discussed above. First, the inventory shows most of these residential lots are five acres or smaller in size. Many of these lots are too small to accommodate the types of industrial uses requiring large buildings and truck parking and loading areas." Second, these residential -zoned parcels are scattered throughout developed residential areas presenting the potential for significant conflicts with existing residences. Third, it is not reasonable to spread industrial uses throughout the UGB rather than consolidating them in industrial parks where they can be more efficiently served with infrastructure. Finally, the Sisters UGB is expected to experience significant population growth 'opponents ARLU-DeCo and Paine argue the buildable land inventory should include land now devoted to on-site septic systems because the city eventually will have a municipal sewer system allowing those areas with septic systems to be redeveloped. ARLU-DeCo's September 21, 1999, letter indicates there are a total of 44 lots devoted to septic drainfields and 77 residential -zoned lots one-half acre or larger in size that it believes could be redeveloped once the municipal sewer system is in place. In response, the applicant noted the buildable land inventory already takes such land into account in the "gross fully vacant land" and "partially vacant land" categories where the existence and location of on-site septic systems could be verified from available data. Nevertheless, the applicant supplemented the record before the Board to include another detailed analysis of buildable lands currently devoted to on-site septic systems. The details of this study are discussed in the findings below. "For example, the record shows that a mini -storage facility developed on the subject property would require 2.1 acres. The City cannot provide the "adequate supply of sites of suitable sizes, types, locations and service levels" for a variety of industrial uses, as required by Goal 9, with parcels that can only accommodate I or 2 industrial uses, scattered throughout residential areas. . Board of Commissioners Decision, PA-99-4/ZC-99-1 Exhibit C Page 15 Page 6 of V_'_2 Ordinanceaf-3_Ql471 • requiring 142 acres of additional residential land. Converting residential -zoned lands to industrial uses will cause a shortage in available residential lands to meet the City's housing needs. The Board finds that for the same reasons the vacant and underdeveloped commercial -zoned land also cannot reasonably accommodate industrial use. The inventory shows there are no vacant commercial lots and those commercial lots that could be redeveloped average only approximately 11,000 square feet in size in the CG Zone and only approximately 5 acres in size in the CH Zone. Many of these lots are simply not large enough to accommodate many types of industrial uses. In addition, the commercial -zoned parcels are located adjacent to existing commercial retail uses with which industrial uses and their traffic impacts likely would conflict. And removal of commercial lands from the inventory by converting them to industrial uses is not reasonable because it is likely to result in the City having to expand the UGB to provide for additional commercial land to meet projected needs. Finally, with respect to existing industrial - zoned land, as discussed in the findings above less than 6 acres of industrial -zoned land remain in the Sisters UGB -- an amount not nearly sufficient to meet projected 20 -year need for 82 acres of industrial land. The remaining land on the net buildable lands inventory consists of approximately 56 acres of land zoned UAR-2.5 and UAR-10. The 4.26 acres of UAR 2.5 -zoned land consist of some or all of 12 parcels. Many of these properties have access from Highway 126, a designated scenic highway the record indicates already is very congested. The Board finds this land cannot reasonably accommodate industrial use because the parcels are too small, the parcels are located in areas throughout the UGB that include developed subdivisions, churches and other potentially incompatible uses, and many parcels would take access from Highway 126. The 51.85 acres of UAR-10-zoned land consist of five vacant parcels, five developed parcels larger than one acre and one partially -developed parcel, described in detail in the findings below. a. Vacant UAR-10 Zoned Land. Of the five vacant parcels, three are 3 acres or less in size. For the reasons set forth above, the Board finds these parcels are not of sufficient size to accommodate industrial uses requiring larger buildings and loading areas. The remaining two vacant parcels are 14.61 acres and 43.66 acres in size. The buildable land inventory indicates the larger parcel is adjacent to the Pines Manufactured Home Park. The inventory indicates 10 acres of this parcel are committed to a community septic system for the park which will be needed until the municipal sewer system is in place, and the remainder of the site is planned for expansion of the park Finally, the record shows that the City has targeted this property for residential zoning to help meet its projected need of 142 acres of residential land. For these reasons, and because this parcel is located adjacent to relatively high-density residential development with which industrial uses likely would conflict, the Board finds this parcel cannot reasonably accommodate industrial uses. The record indicates the 14.61 -acre parcel is located adjacent to existing industrial development. However, the record indicates this parcel was annexed by the City in September of 1997 and rezoned to RH and CG to meet projected needs for residential and commercial land during the Board of Commissioners Decision PA-99-4/ZC-99-1 ' Exhibit C -.--- Page 16 Page 12— of, Ordinance z 1179) ,Z next twenty years.' For these reasons, the Board finds this parcel cannot reasonably accommodate industrial development. Furthermore, this parcel is too small to supply the 82 • acres of industrial land needed. For the foregoing reasons, the Board finds the vacant UAR-10-zoned parcels cannot reasonably accommodate industrial uses. b. Partially -Developed UAR-10 Parcels. Of the six parcels in this category three are 5 acres or smaller in size. The Board finds the 1.44 -acre parcel is too small to accommodate many industrial uses. The 5 -acre parcel is occupied by a church -- a use incompatible with most industrial development. The 2.84 -acre parcel is developed with residential cabins, another use incompatible with industry. The remaining three parcels in this category are a 23.32 -acre parcel occupied by the Pines Manufactured Home Park, a 39.56 -acre parcel occupied by Sisters High School, and a 77.02 -acre parcel occupied by the USFS Sisters Ranger District compound. The Board finds that none of these three parcels reasonably can accommodate industrial uses. The undeveloped portions of the parcels occupied by the manufactured home park and the high school cannot reasonably accommodate industrial uses because of the inherent incompatibility between such uses and the existing uses on these parcels. It is not expected that these uses will change within the 20 -year planning period. With respect to the USFS parcel, the applicant states approximately two-thirds is committed to existing buildings, parking and landscaping for the Sisters Ranger District compound and/or is unbuildable because it is located within the Landscape Management Combining (LM) Zone along Highway 20 which would preclude industrial development. Thus, approximately one-third • of the parcel -- 25 acres -- is potentially "available" for industrial development. However, the Board concurs with the applicant that this parcel cannot reasonably accommodate industrial uses because it is owned by the federal government and therefore is not subject to local land use planning under the Supremacy Clause of the United States Constitution. The City lacks authority to rezone the parcel for industrial use without the consent of the USFS. And the record indicates Bill Anthony, Sisters District Ranger, has stated the USFS has no intention of removing this parcel from Forest Service use.' Opponents ARLU-DeCo and Paine nevertheless argue the USFS parcel reasonably can accommodate industrial uses because the City could purchase it through the Townsite Act (Public Law 85-569). The applicant responds that even if the USFS were willing to sell the parcel, which it is not, the Townsite Act requires a showing that the need for the USFS parcel cannot be accommodated by other means -- e.g., on other available land. As discussed in the findings above, the Sisters City Council and the voters of Sisters have found the subject property is suitable for industrial use. Therefore, the Board finds it highly unlikely the City could make ' The record indicates that because the county has not received notification of these approved zone changes, the Sisters Urban Area zoning map does not yet reflect these changes. ' At the second public hearing before the Hearings Officer, Leslee Bangs, agent for the school district, testified the Sisters Ranger District has expressed interest in having its property removed from the city's planning designation and zoning altogether. . Board of Commissioners Decision, PA-99-4/ZC-99-1 Exhibit Page 17 Page .LZ_ of 46_6� OrdinancesQLD 2� the type of showing required for acquisition of the USFS parcel under the Townsite Act. For the foregoing reasons, the Board finds the vacant and underdeveloped parcels located within the Sisters UGB cannot reasonably accommodate industrial uses. c. Impact of Sewer on Buildable Land Inventory. In response to concerns raised by the opponents that the installation of a sewer would free up drainfield areas within the UGB resulting in an increase in the buildable lands inventory, the applicant and the school district undertook another comprehensive study, based on county environmental health and building department records, DEQ records, county planning documents and on the ground inspection of every tax lot within the City limits, to determine the increase in the amount of buildable lands once the sewer is fully functioning and all lots are hooked up. The data gathered, together with the summary and conclusions of the study, are found in the applicant's Third Supplemental Burden of Proof Statement and Exhibit "D" thereto. Opponents did not challenge this evidence other than with the conclusory statement that the sewer would make additional lands available for development within the City limits. Based on the detailed evidence submitted by the applicant, the Board concludes that the installation of a sewer system will have no impact on the amount of industrial land available and the applicant's needs analysis showing a need of at least 82 acres remains valid even with the addition of sewer to the City. 2. Nonresource Land Located Outside the UGB. Opponent ARLU-DeCo has identified as suitable for industrial development a vacant 36.02 -acre parcel zoned RR -10 abutting the Sisters UGB southeast of the subject property (hereafter "Tax Lot 1202"). This tax lot is located east across Camp Polk Road from parcels to the south of the subject property zoned CG and UAR-10, abuts RR- l 0 -zoned land on the north and east and abuts developed RS -zoned land on the south. ARLU-DeCo argues that under ORS 197.298, the RR -10 -zoned parcel is a higher priority for 40 inclusion within the Sisters UGB than the EFU-zoned subject property. ORS 197.298 provides in pertinent part: (1) In addition to any requirements established by rule addressing urbanization, land may not be included within an urban growth boundary except under the following priorities: (a) First priority is land that is designated urban reserve land under ORS 195.145, rule or metropolitan service district action plan. (b) If land under paragraph (a) of this subsection is inadequate to accommodate the amount of land needed, second priority is land adjacent to an urban growth boundary that is identified in an acknowledged comprehensive plan as an exception area or nonresource land. Second priority may include resource land that is completely surrounded by exception areas unless such resource land is high-value farmland as described in ORS 215.710. . Board of Commissioners Decision, PA-99-4/ZC-99-1 --Mbit G Page 18 page _18 Of Ordinanceam (c) if land under paragraphs (a) and (b) of this subsection is inadequate • to accommodate the amount of land needed, third priority is land designated as marginal land pursuant to ORS 197.247 (1991 Edition)' (d) If land under paragraphs (a) to (c) of this subsection is inadequate to accommodate the amount of land needed, fourth priority is land designated in an acknowledged comprehensive plan for agriculture or forestry, or both. (3) Land of lower priority under subsection (1) of this section may be included in an urban growth boundary if land of higher priority is found to be inadequate to accommodate the amount of land estimated in subsection (1) of this section for one or more of the following reasons: (a) Specific types of identified land needs cannot be reasonably accommodated on higher priority lands; (b) Future urban services could not reasonably be provided to the higher priority [lands] due to topographical or other physical constraints; or (c) Maximum efficiency of land uses within a proposed urban growth boundary requires inclusion of lower priority lands in order to include or to provide services to higher priority lands. The applicant argues the subject property is a higher priority for inclusion in the Sisters UGB than Tax Lot 1202 because: (1) Tax Lot 1202 is zoned residential and is not adequate to accommodate the identified need for industrial -zoned land; (2) Tax Lot 1202 is surrounded by residential uses; (3) Tax Lot 1202 floods regularly; and 4) Tax Lot 1202 does not have adequate access for industrial use because it shares access with adjacent residential development. The opponents have offered no evidence refuting these facts or arguments. The Board agrees that these factors make the subject property a higher priority than Tax Lot 1202. The record indicates the City has targeted this property for residential zoning in the future and, given the City's identified need for an additional 142 acres of residential land, it is not reasonable to remove lands from the potential residential supply. The Board also finds that locating a new industrial park so far from existing industrial uses would not result in the maximum efficiency of land uses and the orderly provision of services. For the foregoing reasons, the Board finds the applicant has demonstrated there are no alternative lands that do not require a new goal exception that can reasonably accommodate needed industrial uses. 9 Deschutes County has not designated "marginal lands." Board of Commissioners Decision, PA-99-4/ZC-99-1 Page 19 Exhibit , Page -,LCL of . . Ordinance A03 214 (c) The long-term environmental, economic, social • and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. FINDINGS: In a previous decision approving a proposed plan amendment and goal exception to construct a road on forest -zoned land (Deschutes County Public Works, PA-97-4/CU-97-44) the county held this criterion means the applicant has to demonstrate the long-term consequences of its chosen alternative are not "significantly more adverse" than the long-term consequences from alternative locations requiring a goal exception -- i.e., resource land. Applying this interpretation to the subject proposal, the Board finds the applicant must demonstrate that including the subject property within the Sisters UGB will not create environmental, social, economic and energy ("ESEE") consequences that are significantly more adverse than those that would typically result from including other land zoned EFU or Forest in the Sisters UGB for industrial use. The record indicates there is other resource land abutting the Sisters UGB on the west and south.10 To the southwest is the Patterson Llama Ranch zoned EFU and engaged in commercial farm use. The Board finds that including this land within the Sisters UGB would convert productive farm land to industrial uses, creating significantly more adverse ESEE consequences than converting the unproductive subject property to industrial use. To the southeast are other parcels zoned EFU. The Board is aware that these parcels are engaged in farm use consisting of livestock grazing on irrigated pasture. Therefore, the Board finds that converting these parcels to industrial use also would have significantly more adverse ESEE consequences than would result from the applicant's proposal. Finally, to the northwest and south are parcels zoned for forest use. Nothing in the record suggests that these parcels have been or are being harvested for timber. However, we take note of the fact that no commercial timber cutting is currently taking place in or immediately adjacent to the City of Sisters. In any event, based on the evidence in the record, the Board finds that converting the subject property to industrial use would not create significantly more adverse ESEE consequences than converting forest -zoned land to such use. (d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. FINDINGS: The Board finds this criterion requires a determination as to: 1) the nature of the uses adjacent to the subject property; 2) the nature of uses permitted under the proposal; 3) whether the permitted uses are compatible with existing uses on adjacent lands; and 4) whether the permitted uses can be rendered compatible with adjacent uses "with measures designed to reduce adverse impacts." 10 The rest of the UGB abuts land zoned RR -10. iBoard of Commissioners Decision, PA-99-4/ZC-99-1 P`�&gge of Page 20 Ordinencc �h 1. Uses In Surrounding Area. The area surrounding the subject property has a mixture of zoning districts and uses. To the south is land zoned EFU-SC. The record does not indicate whether this property currently is engaged in farm use. To the west is the school district property. The record indicates this property has the same soil type as the subject property, also lacks irrigation and is not currently engaged in farm use. Further to the west is Pine Street and the USFS Sisters Ranger District compound on land zoned UAR-10. To the east is Camp Polk Road and Sisters Airport. To the north is land zoned RR -10 and developed with the Trapper Point Subdivision. 2. Permitted Uses. This application presently involves a request to expand the Sisters' UGB to include the subject property together with a plan amendment and zone change to change the property designation from Agricultural to Industrial and to change the zoning from EFU to Light Industrial. The applicants have applied to the City for annexation and have received voter approval for the annexation. The record shows that the Sisters City Council also supports annexation but has taken the position that it cannot finalize the annexation until the present application is approved and the property is brought within the UGB. In concluding that the impacts from specific heavier industrial uses permitted outright in the IL Zone of the Sisters Urban Area Zoning Ordinance could not be effectively mitigated, the Hearings Officer relied on the uses identified in the IL Zone of the Urban Area ordinance rather 40 than the IL Zone of the City of Sisters ordinance. A comparison of the two ordinances is useful for'the purpose of this analysis and is set forth in the following chart: . 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E C O Q y N m E a) N a) U 7L._ CL y m Ow O)C CC Cp .�D p Cd C v=2 0 ICO 7'j CLC N 0 0' U C V 3 N A� cc ++O�c�m-oocmmocoo L) .2 '0 ESE �i 1'O>'y €com 5•.0 O EcLMON=H �Cm dy N 0m O 7 7ya> C1. C 'E m y 07y O0O O, QLE U mprn O m m m N dLLL O a D O LL. O N rNf`7 -iN a7 SOD Of — N N As illustrated above, the heavier industrial uses allowed outright in the Urban Area IL Zone identified by the Hearings Officer, including asphalt and concrete batch plants, wrecking and junk yards, boat building and fuel oil distributors, are either not allowed at all in the City IL Zone (i.e. asphalt and concrete batch plants, junk yards not allowed at all) or allowed only subject to a conditional use permit (i.e. boat building, wrecking yards and fuel oil distributors allowed conditionally). The Hearings Officer concluded that the proposal did not satisfy the criterion related to compatibility with the adjacent rural residential land uses because she concluded that the typical mitigation measures authorized through site plan review for uses allowed outright would not effectively mitigate all of the impacts from some of the heavier industrial uses, which are allowed outright in the Urban Area IL Zone. However, because the Board has conditioned, through a Resolution of Intent to Rezone, approval of the rezone upon annexation to the City and zone change approval to City zoning, as set forth in the findings below and incorporated by reference herein, the Board finds that the City IL Zone is the appropriate ordinance for purposes of analyzing the permitted uses and their compatibility with adjacent uses. As illustrated and discussed above, the only heavier -type industrial uses allowed in the City IL Zone are boat building, fuel oil distributors and wrecking yards. These uses are allowed in the City IL Zone only if they meet the City's conditional use criteria, 15.02.210(03), which authorize approval only after a hearing and upon a showing that the following criteria are met: 1. That the location, size, design and operating characteristics of the proposed use are such that it will have minimal adverse impact on the • livability, value, or permissible development of abutting properties and the surrounding area. 2. That the site planning of the proposed uses will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting. 3. If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to an area where it is permitted outright. 4. That the proposed use will be consistent with the purposes of this ordinance, the Comprehensive Plan, Statewide Goals, and any other statutes, ordinances, or policies that may be applicable. 5. The establishment, maintenance or operation of the use applied for will not, under circumstances of the particular case, be detrimental to the health, safety or general welfare of persons residing or working in the neighborhood or to the general welfare of the Urban Area. . Exhibit C Page Z9 of :Z. Ordinance'G� Board of Commissioners Decision PA-994/ZC-99-1 Page 23 In addition to the above general conditional use criteria, there are specific use standards designed to further mitigate impacts from specific conditional uses. 15.02.210(08). As shown in the criteria set forth above, the City is required to deny approval of these heavier industrial uses if those uses do not meet the criteria set forth above. 3. Compatibility of Uses Permitted on IL -Zoned Land With Adiacent Uses. The Board finds the uses permitted in the City IL Zone will be compatible with the industrial uses existing and permitted in the nearby IL -zoned industrial parks to the southwest. The Board finds that the uses also will be compatible with the USFS compound across Pine Street to the west because this use has the characteristics of industrial and commercial uses -- i.e., offices, shops and equipment storage and parking areas. The Board finds that the uses permitted in the City IL Zone will be compatible with the vacant school district property since it is not engaged in farm use and historically was used for industry -- the Lundgren sawmill. The Board also finds that the uses permitted in the IL Zone will be compatible with the industrial uses proposed for the school district property. With respect to the other adjacent EFU-zoned parcels, the Board finds that they are relatively small and therefore are not likely to be productive considering the minimum standards for a commercial farm in the EFU-SC subzone. Therefore, the Board finds industrial uses on the subject property are not likely to be incompatible with uses on these parcels. • With regard to the adjacent rural residential uses, the applicant argues industrial uses on the subject property will be compatible with adjacent rural residential parcels in the Trapper Point Subdivision because industrial properties often are less occupied than residential parcels and because the City ordinance site plan approval and conditional use criteria include measures to reduce adverse impacts from such uses. The applicant further agreed to impose voluntary restrictions, as discussed below, to ensure compatibility. Opponents who are residents of the Trapper Point Subdivision argue the applicant's proposal will not be compatible with their rural residences because it will reduce their privacy and property values, will negatively impact their mountain and pasture views and will place incompatible uses in close proximity to their homes. They expressed particular concern about the breadth of uses permitted in the IL Zone." Although the residents of Trapper Point do not have a guarantee that their mountain and pasture views will never be affected by development on the subject property, their concerns are legitimate. However, the Board finds that the provisions of the City ordinances are adequate to protect these residents and ensure that the uses allowed on the subject property will be compatible with the adjacent residential uses. As illustrated in the chart of the City IL Zone, the City IL Zone does not allow asphalt or concrete batch plants or junk yards either outright or conditionally. The City IL Zone does permit boat building, wrecking yards and fuel oil distributors subject to a conditional use permit, the approval criteria for which prohibit approval unless the applicant demonstrates minimal adverse impact on livability, value or permissible � � Again, the focus of the Hearings Officer and consequently the Trapper Point residents was on the uses allowed in • the Urban Area IL Zone not the City IL Zone. 'Exhibit Board of Commissioners Decision PA-994/ZC-99-1 Page -&— of Page 24 Ordinance d ,� • development of surrounding area; substantial reason for locating in the zone if permitted outright in another zone; consistency with the Comprehensive Plan, Statewide Goals and other applicable ordinances, statutes or policies; and no detrimental effect to health, safety or welfare of area or general welfare of urban area. The Board finds that these conditional use approval criteria will ensure that any heavier industrial uses which could be permitted conditionally under the City IL zoning will be compatible with adjacent uses, can be rendered so with the mitigation measures authorized through conditional use approval or can be denied based on failure to meet the conditional use criteria. Because we find that the uses authorized under the City IL Zone will be compatible with the adjacent uses, can be rendered so through mitigation measures or can be denied, this should end our inquiry. However, in response to the concerns of the Trapper Point residents, the applicant voluntarily agreed to prohibit the heavier industrial uses on the property through the imposition of a Limited Use Combing Zone 12 and through use restrictions contained in a Development Agreement, authorized by state statute. The applicant has further voluntarily agreed, through the Development Agreement, to increase the setbacks from the northern property line to 50 feet for buildings up to 20 feet in height and 100 feet for buildings over 20 feet in height. Based on the above, the Board finds that the site plan and conditional use approval criteria in the City Zoning Ordinance are adequate to ensure that any uses allowed on the subject property will be compatible with the adjacent uses, including the residential uses to the north, will be rendered so through mitigation measures or conditions of approval or will be denied. Nevertheless, pursuant to the applicant's request, the Board agrees, through the Resolution of Intent to Rezone adopted herewith, that approval of this rezone is conditioned upon annexation to the City and rezone to the City IL -Limited Use Combing Zone discussed herein. For these reasons, the Board finds that the proposal satisfies this criteria. 3. If the exception involves more than one area for which reasons and circumstances are the same, the areas may be considered as a group. Each of the areas shall be identified on a map, or their location otherwise described, and keyed to the appropriate findings. FINDINGS: As discussed above, the subject applications were considered at public hearings at which similar proposals for the adjacent school district property were considered. In some respects the reasons and circumstances presented in support of both applications are similar. However, the Board finds this rule provision does not apply to authorize combined consideration of the two applications because the rule refers to "the exception" (emphasis added) -- i.e., one exception application. The Board finds this section applies only where a single exception application includes non-contiguous parcels and does not apply to the circumstances presented here where there are two separate goal exception applications for contiguous property. . 12 The Limited Use Combining Zone proposed by the applicant would contain all of the same provisions as the City IL Zone, set forth in the chart above, except the following uses would be eliminated from the list of uses permitted conditionally: boat building and associated sales and service, fuel oil distributors, and wrecking yards. Exhibit CL_—__ a6 Of Page � }�.. Board of Commissioners Decision PA-99-4/ZC-99-1 Page Of 3' Page 25 • C7 2. OAR 660-04-015, Inclusion as Part of the Plan. (1) A local government approving a proposed exception shall adopt as part of its comprehensive plan findings of fact and a statement of reasons which demonstrate that the standards for an exception have been met. The applicable standards are those in Goal 2, Part II(c), OAR -660-004-0020(2) and 660-004-0022. The reasons and facts shall be supported by substantial evidence that the standard has been met. FINDINGS: In conjunction with the present decision, the Board has set forth findings of fact and a statement of reasons consistent with the above requirement and will adopt it as part of its Comprehensive Plan contemporaneously with this decision. 3. OAR 660-004-018, Planning and Zoning for Exception Areas. (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exception areas. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses or activities other than those recognized or justified by the applicable exception. (3) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660-004- 0020 through 660-004-0022, plan and zone designations must limit the uses and activities to only those uses and activities which are justified in the exception; FINDINGS: As discussed in the findings herein, the Board finds that the applicant has satisfied all applicable criteria for a "reasons" exception to Goal 3 for an industrial designation and City IL zoning on the subject property. The plan and zone designations will limit the uses on the subject property to only those uses which are justified in the exception. 13 4. OAR 660-004-0020, Goal 2, Part IIc, Exception Requirements. (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource land for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. 13 As previously indicated, our finding that the uses allowed under the IL Zoning will be compatible with adjacent residential uses to the north is based on the uses allowed either outright or conditionally in the Cit ++ IL Zone. We have therefore conditioned our rezone approval, through a Resolution of Intent to Rezone adopted herewith, on annexation to the City and rezone to the City IL Zone, with a Limited Use Combining Zone prohibiting boat building, fuel oil distributors and wrecking yards. ;oxil 111 i Page "2-&— of , Board of Commissioners Decision PA-994/ZC-99-1 Ordinance �D Page 26 3l FINDINGS: The Board finds that the findings of fact and conclusions of law in this decision will provide the basis for justification for the exception to be included in the Comprehensive Plan. (2) The four factors in Goal 2 Part II(c) required to be addressed when taking an exception to a Goal are: (a) Reasons justify why the state policy embodied in the applicable goals should not apply. FINDINGS: The Board has addressed this factor in the findings above, which are incorporated by reference herein. (b) Areas which do not require a new exception cannot reasonably accommodate the use. FINDINGS: The Board has addressed this factor in the findings above, which are incorporated by reference herein. (c) The long-term environmental, economic, social, and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal Exception. The exception • shall describe the characteristics of each alternative area considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include, but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts. Exhibit ._..___ C Page_ of Board of Commissioners Decision PA-99-4/ZC-99-1 Ordinance Page 27 J2— • FINDINGS: The Board has addressed this factor in the findings above, which are incorporated by reference herein. However, the Board makes the following additional findings addressing specific aspects of this criterion. The findings above address all of the alternative areas within and outside the Sisters UGB that were considered by the applicant and opponents for industrial designation and zoning. Those include findings that the subject property is not suitable for farm use due to its poor soils, lack of irrigation and location and that because of its unsuitability there will not be adverse economic impacts from permanently removing the property from the agricultural resource base. The Board finds that the adjacent school district property, which the record indicates has the same soil type as the subject property, also lacks irrigation water and has not been farmed, is similarly unsuitable for farm use. Therefore, the applicant's proposal will not interfere with the ability to sustain resource uses on the school district property. There are no other resource uses or EFU- or forest -zoned properties near the subject property. • 10 The Board finds there is no evidence in the record that the applicant's proposal will have any impacts on the water table. The record indicates development on the subject property would be served by the City's municipal water system and sewer system, when available. In addition, the applicable site plan approval criteria regulate on-site drainage for all industrial -zoned property and provide a mechanism to assure runoff from industrial uses on the subject property will not contaminate the water table. The record indicates there are no special service districts that would be affected by the applicant's proposal. Furthermore and as specifically discussed in the findings below, the applicant's Development Agreement with the City of Sisters and the County, with ODOT's approval, under which the applicant agrees to contribute $152,295 to fund traffic improvements, exclusive of any traffic -related SDC and other traffic -related charges, and to restrict the level of development of the subject property to ensure the v/c ratios identified in the Oregon Highway Plan (OHP) for all affected intersections would not be exceeded,14 ensures that the ESEE consequences are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. (d) The proposed uses are compatible with other adjacent land uses or will be so rendered through measures designed to reduce adverse impacts. FINDINGS: The Board has addressed this factor in the findings above, which are incorporated by reference herein. 5. OAR 660-004-0030, Notice and Adoption of an Exception. (1) Goal 2 requires that each notice of a public hearing on a proposed exception shall specifically note that a goal exception is proposed and shall summarize the issues in an understandable manner. (2) A planning exception takes effect when the comprehensive plan or plan amendment is adopted by the city or county governing body. Adopted exceptions will be reviewed by the Commission when the comprehensive plan is reviewed for compliance with 14 The dollar contributions and the percentage restriction on development contained in the Development Agreement are based on a detailed traffic study prepared in conjunction with the school district by David Evans and Associates. The record shows that these dollar figures, trip generation calculations, the estimated worst-case traffic impacts, proposed transportation facilities and cost estimates were developed with the support of ODOT and the City of Sisters. Board of Commissioners Decision PA-994/ZC-99-1 Page 28 Exhibit - Page a26-- Of Ordinance�DJ- ` QZa • the goals, when a plan amendment is reviewed pursuant to OAR Chapter 660, Division 18, or when a periodic review is conducted pursuant to ORS 197.640. FINDINGS: The Board finds the criteria in paragraph (1) were met by the mailed and published notice of the public hearings which specifically stated that a goal exception was proposed. In addition, the record indicates notice of the proposed plan amendment was mailed to DLCD. PLAN AMENDMENT C. PL -16, the Sisters Urban Area Comprehensive Plan15 1. Part VI. Implementation Programs and Policies Comprehensive Plan Review Adoption, Amendments ... Any changes should be consistent with the goals, objectives, policies and statements of intent of the plan or these guidelines should first be changed or amended to reflect the new policies. This should be true of both changes resulting from periodic Planning Commission review and from individual petitions. Hearings on plan amendments shall follow the amendment procedures set forth in the ordinance adopting the Plan. (Plan, page 108.) FINDINGS: The applicant has identified several plan policies as applicable to the proposed plan amendment. However, at the outset, the Board finds it is necessary to determine to what extent the plan policies identified by the applicant constitute mandatory approval criteria for this quasi- judicial plan amendment application. Whether a plan policy constitutes such a criterion depends not only on the language of the policy but also on the function the plan assigns to the policy. Von Lubken v. Hood River County, 104 Or App 683, 689, 803 P2d 750 (1990), adhered to 106 Or App 226, rev den 311 Or 349 (1991). Schellenburp, v. Polk County, 21 Or LUBA 425 (1991). The Sisters Urban Area Comprehensive Plan includes the following language describing its purpose: The comprehensive plan provides the foundation for the planning process by establishing long-range goals and objectives and by providing, through its various elements, an integrated view of future public and private development patterns in the community. It is not the last word, nor is it the first... The comprehensive plan is not the zoning plan... The plan recommends appropriate uses for various areas and attempts to provide a maximum range of choice in the urban area within the limits of community living. (Plan, page 2; emphasis added.) 13 The Board finds that it is the Sisters Urban Area Comprehensive Plan, not the Deschutes County Year 2000 Comprehensive Plan, which contains the applicable approval criteria because the applicant proposes to include the . subject property within the Sisters UGB. Exhibit C Page .0_ & Board of Commissioners Decision PA-994/ZC-99-1 Ordinance l Page 29 • ri The plan must be implemented if it is to be of value to the community. It requires... the administration of appropriate codes and ordinances which influence development ... The Comprehensive Plan provides basic guidelines with which the community can chart a course for change .... (Plan, page 3; emphasis added.) The Comprehensive Plan policies are based on the established general goals and objectives described in Part III and are supported by adequate findings ... The Plan maps and text are intended as a statement of public policy_ encompassing development objectives of and for the urbanizing area of Sisters.... (Plan, Page 56; emphasis added.) The Board finds the above -underscored language suggests the plan and its policies were intended only to be recommendations and statements of broad public policy rather than to establish mandatory approval criteria for quasi-judicial land use applications. Nevertheless, some plan policies are written in mandatory terms, suggesting they were intended to be more than mere recommendations or statements of policy. In the absence of a clear statement in the plan that its policies are not intended to apply to quasi-judicial plan amendment applications, the Board finds that it must examine each plan policy identified by the applicant to determine its applicability. Urbanization (Plan, page 93.) 1. The urban growth boundary shall be used as the official area for which to plan all public facilities, annexations, and future land use for the year 2000. 2. The urban growth boundary shall not be considered for amendment unless it is determined that the carrying capacity of the current UGB has reached its maximum with adequate findings of fact. FINDINGS: The parties have treated these two plan policies as approval criteria. The Board finds Policy 1, although written in mandatory terms, addresses the area within which to "plan," suggesting it is directed at the City and county and is not an approval criterion for individual plan and UGB amendment applications. Policy 2, on the other hand, expressly addresses UGB amendments and is written in mandatory terms. Therefore, the Board finds it does constitute an approval criterion for the proposed plan amendment and UGB expansion. As discussed in the findings above, the City of Sisters has developed a draft 1997-2017 Comprehensive Plan which recommends that the subject property be included within the Sisters UGB and designated industrial in order to provide adequate industrial -zoned land during that planning period. The draft plan has not been formally adopted and therefore the current Comprehensive Plan controls. Opponents Paine and ARLU-DeCo argue these two plan policies, read together, mean the existing UGB is frozen because of the reference in Policy 1 to the year 2000. They also argue the carrying capacity of the UGB has not yet reached its maximum because once a municipal sewer system is in place the City limits and UGB can be developed at greater density, thus accommodating any need for additional lands for development. Exhibit �° , �_ . Page _�--ofi � . Board of Commissioners Decision PA-994/ZC-99-1 Ordinance Page 30 35 The Board finds opponents' reading of these two provisions would render Policy 2 meaningless. To give effect to Policy 2, it must be interpreted to authorize UGB amendments before the year 2000 if the applicant demonstrates with adequate findings of fact that the UGB's "carrying capacity" has "reached its maximum" -- i.e., it no longer is large enough to accommodate planned and anticipated growth. As discussed in detail in the findings above, incorporated by reference herein, the Board has found the applicant has demonstrated the City's projected need for industrial land cannot reasonably be accommodated by the approximately six acres of IL - zoned land remaining in the UGB or other available land within and outside the UGB. The applicant has demonstrated with reliable, credible evidence that at least 82 additional acres of industrial land are needed to accommodate population and economic growth during the next twenty years. Therefore, the Board finds the applicant's proposal is consistent with Urbanization Policy 2. 3. In order to assure the economic provision and utilization of future public facilities and services, the present city shall develop to 75% capacity before expanding into the "urban reserve" areas. FINDINGS: This policy is written in mandatory terms. However, the Board finds it is not applicable to the proposed plan amendment because it addresses expansion of the City limits into the UGB rather than expansion of the existing UGB into rural lands as proposed by the applicant. Even if this policy is applicable, the Board finds it has been satisfied. In a previous decision (PMR, PA-95-15/ZC-95-12), the County held the term "present city" means the Sisters City limits as they existed in 1979 when the Comprehensive Plan was adopted. The County further held the applicant in that case had demonstrated through a 1995 developed lands study that the City had developed to 75% capacity. At the first public hearing, the applicant's attorney testified that the applicant conducted an updated developed lands study which indicates that 82.2 percent of the City now is built out. This updated study was submitted into the record and opponents did not submit any evidence to challenge it. The Board finds this study to be credible and adheres to the County decision in PMR. ZONE CHANGE D. Title 21 of the Deschutes County Code, the Sisters Urban Area Zoning Ordinance 1. Chapter 21.72, Amendments This title may be amended by changing the boundaries of districts, or by changing any other provisions thereof as set forth in this chapter. . a. Section 21.72.020, Standards for Zone Change The burden of proof is upon the applicant. The applicant shall in all cases establish: Exhibit Page —.:L of Ordinance - Board of Commissioners Decision PA-99-4/ZC-99-1 Page 31 • 1. Conformance with the Comprehensive Plan. FINDINGS: As discussed in the findings above, incorporated by reference herein, the Board has found the applicant's proposal is consistent wirh all applicable comprehensive plan policies. Therefore, the Board finds the applicant's propos,--d zone change satisfies this approval criterion. 2. Conformance with all applicable statutes. FINDINGS: As discussed above, the Board has found the applicant's proposal is consistent with the provisions of ORS 197.298 governing the priorities for inclusion of land within a UGB. Based on those findings, incorporated by reference herein, the Board finds the applicant's proposal satisfies this zone change approval criterion. 3. Conformance with Statewide Planning goals wherever they are determined to be applicable. FINDINGS: As discussed herein, the Board has found that the proposal is consistent with all applicable statewide planning Goals. Based on those findings, incorporated by reference herein, the Board finds the applicant's proposal satisfied this zone change approval criterion. 4. That there is a public need for a change of the kind in question. • FINDINGS: As discussed in detail in the findings above, the Board has found the applicant has demonstrated a need for at least 82 additional acres of industrial land within the Sisters UGB to accommodate anticipated growth during the next twenty years. Based. upon these findings, incorporated by reference herein, the Board finds the applicant has demonstrated a public need for the proposed zone change satisfying this approval criterion. 5. That the need will be best served by changing the classification of the particular piece of property in question as compared with other available property. FINDINGS: As discussed in detail in the findings above, the Board has found the applicant's alternative areas analysis indicates there are no other vacant or underdeveloped lands within the Sisters UGB, or other nonresource land outside the UGB, that reasonably could accommodate the proposed industrial uses. The Board finds that for purposes of this zone change approval criterion "other available property" means the alternative lands analyzed by the applicant and discussed in the findings above. For the reasons set forth in those findings, incorporated by reference herein, the Board finds the applicant has demonstrated the need for additional industrial land within the Sisters UGB will best be served by rezoning the subject property rather than other available land within and outside the UGB. 6. That there is proof of a change of circumstances or a mistake in the original zoning. Exhibit _. Page - __ of ._ . Board of Commissioners Decision PA-99-4/ZC-99-1 Ordinance -gs _'_Q --b, 3 Page 32 • FINDINGS: 1. Mistake. The Board finds there was no mistake in the original EFU zoning of the subject property. As discussed above, it is located outside the Sisters UGB, is composed of Class VI soils and no exception to the Statewide Planning Goals previously was taken for the property to remove it from its resource designation. 2. Change of Circumstances. The Board finds the applicant has demonstrated a change of circumstances since the subject property's original EFU zoning consisting of the almost complete absorption of industrial land within the Sisters UGB. As discussed in the findings above, incorporated by reference herein, the applicant has demonstrated that only approximately six acres of IL -zoned land remain in the UGB and that an additional 82 acres of industrial land are needed to accommodate projected population and employment growth in the Sisters area in the next twenty years. The applicant also has demonstrated that other available land (vacant and underdeveloped land within the UGB and nonresource land abutting the UGB) cannot reasonably accommodate industrial uses. The record indicates the updated comprehensive plan recommends the subject property be redesignated industrial in order to address this need. For these reasons, the Board finds the applicant's proposal satisfies this zone change criterion. 7. That annexation to the City of Sisters will accompany the zone change. 40 FINDINGS: The record indicates a ballot measure proposing to annex the subject property into the Sisters UGB was approved by the voters at the November 2, 1999, election. The record also indicates that the Sisters' City Council approved the annexation but has taken the position, pursuant to directions from LCDC and the AG's office, that it cannot finalize the annexation until the property is included within the UGB. Opponent ARLU-DeCo argues this zone change approval requirement cannot be satisfied by annexation that precedes the approval of a UGB expansion, plan amendment and zone change. The Board finds this criterion could be read to require that the City take simultaneous action to grant the zone change and annex the property. The record contains testimony from Neal Thompson, Sisters Planning Director, that the City has concluded that the requirement of this section must be met by the applicant executing a consent to annexation agreement as a condition of approval for a plan amendment and zone change. Requiring simultaneous annexation ignores the fact that under current Sisters law annexation requires approval by the voters through a ballot measure. Therefore, it simply may not be possible for the City to synchronize annexation of a given piece of property with land use approval considering the time required for placing an annexation measure on the ballot and the uncertainty of the eventual outcome of either the land use application or the vote. In any event, the Board has resolved this issue by including a provision in its Resolution of Intent to Rezone requiring annexation to be completed before the zone change becomes final. For these reasons, the Board finds that the proposal satisfies this zone change criterion. . Exhibit C Page_ of Ordinance r Q Board of Commissioners Decision PA-99-4/ZC-99-1 Page 33 0 F. OAR 660-012 Transportation Planning Rule 1. OAR 660-12-060, Plan and Land Use Regulation Amendments FINDINGS: The Board finds this administrative rule is applicable because the applicant proposes a plan amendment and zone change from EFU to IL. (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 [Transportation System Plan] to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. 2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional classification of an existing or planned Transportation facility; (b) Changes standards implementing a functional classification system; (c) Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or (d) Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. FINDINGS: Although the proposed plan amendment and zone change, in and of themselves, will not affect transportation facilities, if approved they would allow industrial development on the subject property that will generate traffic creating impacts on such facilities in the future. However, the Board finds the applicant's proposal will not change either the functional Exhibit --- Page -3�1-- of -,665. Board of Commissioners Decision PA-994/ZC-99-1 Ordinance"-ofO Page 34 3 classification or standards implementing the functional classification of any affected transportation facilities. The subject property abuts Camp Polk Road, a designated collector street. The classification of this street and the standards relating to collector streets will not be affected by the applicant's proposal. The record also indicates an arterial street is planned to run east -west between Highway 20 and Camp Polk Road in the vicinity of the subject property's southern boundary. The Board finds the applicant's proposal also will not affect the classification of or standards affecting this planned arterial street. The applicant's proposal would allow industrial development generating traffic affecting three intersections on Highway 20. The record indicates Highway 20 is classified by ODOT as a state highway. The Board finds the applicant's proposal also will not change the classification of or standards affecting this highway. Thus, the Board finds that the application does not "significantly affect" a transportation facility pursuant to subsections (a), (b), and (c) above. Our inquiry under subsection (d) is more complicated. Subsection (d) focuses on the impact of the proposed plan amendment and zone change, on the actual function of affected transportation facilities. The record indicates that the City of Sisters has not adopted a TSP, and adoption may be as much as two years away. Thus, the question arises as to what standards apply in the absence of a TSP. As discussed in more detail below, we find that there is no TSP under this subsection of the rule. We are first guided by Oregon case law which on this subject suggests that, where there is no adopted TSP there is, quite simply, no TSP. ONRC v. City of Seaside, 29 OR LUBA 39, 62-63 (1995); Bicycle Transportation Alliance v. Washington County, 26 Or LUBA 265 (1993). In fact, this was the conclusion of the City of Bend Hearings Officer in the recent decision in Clabaugh, City of Bend File 99-118, a copy of which is contained in the record. There, the Hearings Officer concluded that, unless the political subdivision has adopted a TSP, subsection (2)(d) of OAR 660-012-0060 - the "level of service in the TSP" provision - does not apply. Clabaugh @ 41. Applying that conclusion here, and since we have concluded that subsections (2)(a) -(c) of the TPR are not implicated in this application, there is no legal basis on this record to deny the application for failure to comply with any applicable TSP. Second, the TPR itself provides at OAR 660-012-055 that: (3) By November 8, 1993 affected cities and counties shall, for non -MPO urban areas of 25,000 or more, adopt land use and subdivision ordinances or amendments required by OAR 660-012-045(3), (4)(a) -(f) and (5)(d). By May 8, 1994 affected cities and counties within MPO areas shall adopt land use and subdivision ordinances or amendments required by OAR 660-012-045(3), (4)(a) -(e) and (5)(d). Affected cities and counties which do not have acknowledged ordinances addressing the requirements of this section by the deadlines listed above shall apply OAR 660-012-045(3), (4)(a) -(f) and (5)(d) directly to all land use decisions and all limited land use decisions. (4)(b) Affected cities and counties that do not have acknowledged plans and land use regulations as provided in subsection (a) of this section, shall apply relevant . Exhibit Board of Commissioners Decision PA-99-4/ZC-99-1 Page 25_ of -,/M Ordinance ' Page 35 IN sections of this rule to land use decisions and limited land use decisions until land • use regulations complying with this amended rule have been adopted. OAR 660-012-055. Since the City of Sisters did not have an adopted TSP by the regulatory deadline, and still does not, the cited section of the TPR itself becomes the functional standard to be applied to an application. The question turns, therefore, to whether the TPR cor tains substantive standards which we should or could apply to the traffic analysis in this application. It does not. The TPR simply does not contain any separate, regulatory performance standards against which to measure this application. The only such standard anywhere in the TPR is that set out in OAR 660-012-060(2)(d) cited above which, in turn, relies on the existence of a TSP to establish an "acceptable level" of performance. Again, the circular analysis leads to only one conclusion; the TPR does not contain a level of performance standard which we can apply. Absent such a standard, let alone one that is "clear and objective", we may not deny or condition this application based on the TPR. Although we conclude here as a legal matter that there is no TSP, or alternative standard, to apply under OAR 660-12-060, the Board is not unmindful that the future development of applicant's property would, without mitigation steps agreed to by the applicant, influence the Sister's traffic facilities. There is substantial evidence in the record detailing the traffic impacts of such future development. Based upon this record we specifically find that, even if a TSP standard existed which was dictated by or based upon the OHP, as suggested by the Hearings Officer and Opponents below16, the applicant has bound itself through a Development • Agreement entered into pursuant to ORS 94.504 through 94.528 to mitigation steps that satisfy OAR 660-12-060(1). This conclusion is supported by the evidence in the record as summarized and analyzed below. 1. Kittleson Traffic Study. In support of its proposal before the Hearings Officer, the applicant submitted a traffic impact study dated August 3, 1999, prepared by Beth Wemple of Kittleson & Associates. In addition, Ms. Wemple submitted a supplemental traffic analysis dated August 24, 1999. This study analyzed the impact on streets and intersections from traffic generated by industrial development on the subject property. The study was based on the following assumptions: a) only 28 acres of the property could be developed because of the restrictions on development in the RPZ; b) the property would be developed with a lumber yard, a mini -storage facility; "general light 161n her recommendation, the Hearings Officer used the performance standards (v/c ratios) contained in the Oregon Highway Plan (OHP) to conclude that the applicant's proposal "significantly affects" a transportation facility under OAR 660-012-060(2)(d) because it would reduce the level of service of affected intersections below the minimum acceptable level identified in the OHP. The Hearings Officer cited no authority for her substitution of the OHP for the TSP as that term is used in OAR 660-012-060(2)(d). The Board is not aware of any authority for such a substitution and, in fact, finds it to be inappropriate. The TPR contains a detailed description of the elements of a TSP. See, OAR 660-012-0020. The OHP simply does not contain many of those elements and the Board finds no authority for substituting the OHP for a TSP in this case. a -99-i Exhibit -C ------- Board of Commissioners Decision PA -99 4/ZC Page A&_— of Page 36 014121.�/� Ordinance � I industrial" and "light manufacturing" uses; c) these uses would generate traffic levels as • predicted by the Institute of Transportation Engineers Trip Generation Manual (ITE Manual); d) the primary access to the property would be from Camp Polk Road. The study contained traffic counts and impacts if the school district property were not developed and if the school district property were developed with industrial uses. This Kittleson study was criticized by the Hearings Officer as underestimating the amount of traffic generated by the proposal, particularly when compared to the traffic study submitted by the school district in support of its similar applications on the adjacent parcel. In an effort to reconcile the traffic impact estimates and because the applications were being processed simultaneously, the applicant joined with the school district and hired David Evans & Associates, who prepared a January 2000 Update to the June 1999 Transportation Impact Study." It is this January 2000 Update, as discussed below, which ODOT and the City support and the Board finds to be credible and reliable. It is this study upon which the Board relies to support its conclusion that the applicant has satisfied all applicable criteria related to traffic impacts. 2. January 2000 Update. The January 2000 Update was prepared by David Evans & Associates on behalf of both the school district and the applicant. This study details the traffic impacts from industrial development on both the school district property and the subject property, offers suggested mitigation measures, appropriate transportation improvements and estimates the costs of those improvements. The analysis assumes full industrial buildout of both the school district and the • subject property, predicts failure dates for the affected intersections and develops numbers for a proposed development restriction on the traffic trips per PM peak hour which would not exceed the v/c ratio found in the OHP for the affected intersections. The SIGCAP analysis of potential signalized intersections in 2015 was developed to represent the actual operation of the three key intersection. The results show that a signal at the Cascade Street -Locust Street intersection will operate at a v/c ratio of 0.72 in 2015 without the rezoning. Adding traffic from the rezoning will degrade v/c to 0.91 and result in queue storage requirement of over 500 feet. A signal at the Cascade Street -Pine Street intersection will operate at a v/c ratio of 0.80 in 2015 without the rezoning and 0.83 with the rezoning. A signal at the Highway 20 - McKinney Butte Road/New Arterial intersection will operate at a v/c ration of 0.79 in 2015 without the rezoning and 0.81 with the rezoning. The following table shows the volume -to -capacity ratio (v/c) for the intersections of Highway 20 and Locust Street, Pine Street and McKinney Butte Road. The v/c is based on SIGCAP analysis for signalized intersections. Although the intersections will not be signalized in the year 2000, 17 The June 1999 Transportation Impact Study prepared by David Evans was for the school district property only. This study was originally submitted into the record for the school district file and not for the subject file. However, the parties joined forces after the Hearings Officer's recommendation, incorporated the records for each file into the other, and participated jointly in the January 2000 traffic impact analysis and subsequent submissions related to traffic and compatibility impacts. Exhibit • Page Of Board of Commissioners Decision PA-994/ZC-99-1 Ordinance old Page 37 -�Z_ the year 2000 analysis is based on the assumption that a signal is in place so that a comparison • can be made with the year 2015 conditions with traffic signals. (Capacity analysis for signalized intersections is significantly different than capacity analysis for unsignalized intersections, so the results of the two are not directly comparable.) • 0 Volume -to -Capacity Ratio (v/c) for Highway 20 Intersections Based on Signalized Intersection Capacity Year 2000 Intersection No Build Year 2005 No Build Year 2015 No Build Year 2015 Build Locust Street 0.54 0.72 0.91 Pine Street 0.59 ---- 0.80 0.83 McKinney Butte Rd -- 0.66 0.79 0.81 Note: The capacity analysis for McKinney Butte road was calculated for the year 2005 because the proposed fourth leg of that intersection will not be constructed by the year 2000. 3. Proposed Traffic Mitigation. To address these impacts, and while not waiving its position that there is no TPR standard to apply to this application, the applicant developed and entered into a Development Agreement with the City of Sisters and the County, as approved by ODOT, that satisfies the mitigation provisions set out at OAR 660-012-060 that will be binding on development of its property. Because the Locust Street - Highway 20 intersection will exceed the v/c ratio of .85 by the year 2015, or at a maximum 413 PM peak hour trips, the applicant agreed to restrict industrial development on the subject property (210 PM peak hour trips generated by uses on the Sisters School District property and 203 PM peak hour trips generated by uses on the Barclay Meadows) so that traffic generated will not reduce the level of service of affected intersections below the minimum acceptable level identified in the OHP. OAR 660-012-060 provides the four means cited above for mitigation of development that "significantly affects" a traffic facility when there is a TSP standard to apply. Again, those four means are: a. Limit land uses to be consistent with the function, capacity and level of service of the facility; b. Amend the TSP to provide transportation facilities adequate to support the proposed uses; C. Alter land use designations, densities or design requirements to reduce demand for automobile travel and meet travel needs through other modes; or d. Amend the TSP to modify the planned function, capacity or performance standards. Since there is no TSP to amend, and alternative transportation modes are not practical for industrial development, the applicant has focused its mitigation efforts on the subsection (a) provision as well as on dollar contributions to fund a specific percentage of the total dollar cost Board of Commissioners Decision PA-99-4/ZC-99-1 Page 38 Exhibit C Page .�30-- of Ordinance OW of future system -wide transportation improvements. There is no dispute that the intersections which will be affected by any development of the properties will be Locust Street -Highway. 20, Pine St. -Highway 20 and the future McKinney Butte - Highway 20. ODOT anticipates that traffic signals, if ultimately approved through the City of Sisters's adoption of a TSP, at the future McKinney Butte - Highway 20, Pine Street- Highway 20 and Locust Street - Highway 20 intersection will cost $150,000 each and that the future McKinney Butte collector will cost $700,000 to construct. These cost estimates and the applicant's proposed contributions have been incorporated into a binding Development Agreement and include the following contributions: Improvement Cost Sisters School District Share % Cost Barclay Meadows Share % Cost Locust Street Signal $ 150,000 33.9% $ 50,850 32.9% $ 49,350 McKinney Butte Signal $ 150,000 6.3% $ 9,450 6.3% $ 9,450 Pine Street Signal $ 150,000 13.3% $ 19,950 12.5% $ 18,750 McKinney Butte Collector $ 700,000 9.1% $ 63,700 8.7% $ 60,900 Subtotal $ 143,395 $138,450 10% Contingency 11 14,395 $ 13,845 TOTAL $158,345 $152,295 Cost Per PM Peak Hour Tri $ 754 $ 754 As shown above and set forth in detail in the attached Development Agreement, the applicant agrees to pay fees to the City to be used to fund the future McKinney Butte collector, a traffic signal at each of the intersections of Highway -Locust Street, Highway 20 -Pine Street and Highway 20 -McKinney Butte. If the future adopted City of Sisters TSP does not identify the transportation facility improvements referenced above as part of the TSP, the applicant agrees that its contributions will be put toward whatever transportation facility improvements are identified in the City's TSP. 4. Conclusion. Based on the evidence in the record and the support of both ODOT and the City, the Board finds that the applicant has fully satisfied the most that could be required even if the proposal were found to "significantly affect" a transportation facility within the meaning of the TPR. The Board finds the applicant's suggested mitigation measures contained in the Development Agreement are adequate for the following reasons. The applicant voluntarily offers to restrict allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility. The Agreement addresses the transportation impacts of both the School District's project as well as Barclay Meadows project by estimating the number of trips which would be generated from both properties under a maximum, worst case development scenario, planning for the traffic facilities necessary to accommodate these worst case scenario trips, restricting development of the subject properties to 68% of these worst case scenario trips and . exhibit C21 Page 3'7 of Board of Commissioners Decision PA-99-4/ZC-99-1 Ordinance' D�? Page 39 1 � providing for developer contributions (exclusive of any traffic SDCs or other traffic -related charges) to fund the facility improvements. For the foregoing reasons, the Board of Commissioners finds the applicant's proposal is in conformance with the TPR. (3) Determinations under section (1) and (2) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. FINDINGS: As discussed in the findings above, the City, county and ODOT commented with approval on the applicant's proposal, traffic study, and Development Agreement. Therefore, the Board finds this portion of the TPR has been satisfied. G. OAR 660-015, Statewide Planning Goals FINDINGS: The applicant proposes an amendment to the comprehensive plan. Therefore, the Board finds the applicant must demonstrate the proposal is consistent with applicable statewide planning goals. The Board makes the following findings concerning compliance with the goals. 1. Goal 1, Citizen Involvement FINDINGS: The Board finds the applicant's proposal is consistent with this goal because the City and county have provided numerous opportunities for public comment and involvement. The City appointed a Citizen's Advisory Committee in 1990 to prepare a draft revised comprehensive plan that was considered by the planning commission and city council through public workshops, work sessions and public hearings. The comprehensive plan recommended that the subject property be redesignated industrial and included in the UGB. In addition, two public hearings before the Hearings Officer were held on the subject applications and a public hearing before the Deschutes County Board of Commissioners was held. Owners of record of property located within 500 feet of the subject property received individual written notice of the proposal and the initial public hearing, and the public hearing also was noticed through publication in the "Bend Bulletin" newspaper and by posting the subject property. 2. Goal 2, Land Use Planning FINDINGS: The Board finds the applicant's proposal is consistent with this goal because it has been reviewed under the Sisters Urban Area comprehensive plan and zoning ordinance and public hearings have been conducted in accordance with the county's procedures ordinance. 3. Goal 3, Agricultural Lands FINDINGS: The applicant has requested approval of an exception to Goal 3 to include the EFU- zoned subject property within the Sisters UGB. For the reasons set forth in the findings above, incorporated by reference herein, the Board finds the policies in Goal 3 should not apply to the subject property due to its unsuitability for farm use, the demonstrated need for at least 82 acres . Exhibit Board of Commissioners Decision PA-994/ZC-99-1 Page d of Page 40 Ordinance & —_ D2 l-��j • • • of industrial land and the evidence demonstrating that the subject property is the most suitable to meet that need. 4. Goal 4, Forest Lands FINDINGS: The Board finds this goal is not applicable because the subject property is not zoned Forest and does not abut or impact forest lands. 5. Goal 5, Open Spaces, Scenic and Historic Area and Natural Resources FINDINGS: This goal requires the county to inventory and protect significant scenic, historic and natural resources. The record indicates the subject property does not include any inventoried Goal 5 resources. Therefore, the Board finds the proposal is consistent with this goal. 6. Goal 6, Air, Water and Land Resources Quality FINDINGS: Goal 6 requires that the county protect air and water quality. The Board finds the applicant's proposal is consistent with this goal. The property has been approved for annexation to the City and consequently any industrial development will be subject to the City's regulations for connection to municipal water as well as state standards for air and water quality and sewage disposal. In addition, the proposal will not affect water quality because no bodies of water exist on or near the subject property. 7. Goal 7, Areas Subject to Natural Disasters and Hazards FINDINGS: The record indicates there are no identified natural disasters or hazards on the subject property. Therefore, the Board finds this goal is not applicable. 8. Goal 8, Recreational Needs FINDINGS: The Board finds this goal is not applicable because the applicant does not propose to use the subject property for a destination resort or other recreational uses and there are no existing or planned destination resorts near the property. 9. Goal 9, Economic Development FINDINGS: This goal requires the county and City to provide adequate opportunities for a variety of economic activities, including providing an adequate supply of industrial -zoned land within the Sisters UGB. As discussed in detail in the findings above, incorporated by reference herein, the Board has found the applicant has demonstrated a need for at least 82 acres of industrial -zoned land to meet the City's needs during the next twenty years. The applicant's proposal would address this need by allowing 28 acres of the subject property to be developed with industrial uses and therefore is consistent with this goal. Board of Commissioners Decision PA-99-4/ZC-99-1 Page 41 Exhibit C Page _Y.Z of . Ordinance 4� D , M • 10. Goal 10, Housing FINDINGS: The Board finds this goal is not applicable because the applicant's proposal would neither remove nor add the subject property to the City's inventory of residential lands. 11. Goal 11, Public Facilities and Services FINDINGS: This goal requires the City and county to plan and develop an orderly arrangement of public facilities and services for urban and rural development. In addition, as discussed in the findings above and below, Factor 3 of Goal 14 requires that changes to an urban growth boundary be justified on the basis of demonstrated adequacy of public facilities and services. The subject property, when included in the Sisters UGB, will be served with municipal water, on-site drainfields and ultimately City sewer service when available. The record shows that both water and sewer service, when available, will be adequate to serve the development. The record further shows that the applicant proposes extensive traffic mitigation measures, through a Development Agreement described herein, with the support of ODOT and the City which will ensure that the traffic facilities are adequate to accommodate the traffic generated by the proposal. Based on this evidence and the findings set forth above and incorporated by reference herein, the Board finds the proposal is consistent with this goal. 12. Goal 12, Transportation FINDINGS: This goal is implemented through the TPR, discussed in detail in the findings above. For the reasons set forth in those findings, incorporated by reference herein, the Board finds the applicant's proposal is consistent with the rule and therefore satisfies Goal 12. 13. Goal 13, Energy Conservation FINDINGS: This goal requires the City and county to give priority in land use planning to the efficient utilization of energy. The Board finds the applicant's proposal is consistent with this goal because it would allow the subject property to be developed with industrial uses like those on adjacent industrial -zoned land, providing opportunities for more efficient transportation and energy utilization for such uses. 14. Goal 14, Urbanization FINDINGS: This goal requires the City and county to assure their land use planning will provide for the orderly and efficient transition from rural to urban land uses. This goal is applicable because the applicant's proposal would result in bringing rural land into the Sisters UGB for urban industrial development. The goal provides in pertinent part: 40 Board of Commissioners Decision PA-994/ZC-99-1 Page 42 Exhibit Page 4-A of.. Ordinance 1 q-7 Urban growth boundaries shall be established to identify and separate urbanizable land from rural land. Establishment and change of the boundaries shall be based upon consideration of the following factors: 1. Demonstrated need to accommodate long-range urban population growth requirements consistent with LCDC goals; 2. Need for housing, employment opportunities, and livability; FINDINGS: As discussed in detail in the findings above, the Board has found the applicant has demonstrated a need for at least 82 acres of additional industrial -zoned land to meet the City's projected employment and economic development needs for the next twenty years. The applicant also has demonstrated the subject property generally is suitable for conversion from unproductive farmland to industrial land. For the reasons set forth in the findings above, incorporated by reference herein, the Board finds the applicant's proposal satisfies these two Goal 14 factors. 3. Orderly and economic provision for public facilities and services; FINDINGS: As discussed above, once annexed into the Sisters UGB the subject property would be served by municipal water and a municipal sewer system when available. Until the municipal sewer system is available to this property, industrial uses would be served by on-site septic systems approved by the county as meeting the requirements of the Department of Environmental Quality. The record indicates development on the property would be served by the Sisters -Camp Sherman Rural Fire Department and the Deschutes County Sheriff's department. The subject property has access to Camp Polk Road, a designated collector street. The intersections which will be affected by the ultimate development of the property include Highway 20/Locust Street, Highway 20/Pine Street and the future intersection of Highway 20/McKinney Butte. The evidence in the record shows that the applicant has restricted the level of development on the subject property and provided funding for traffic improvements to ensure that the affected transportation facilities continue to function at the level identified to be acceptable in the OHP. Based on the evidence in the record together with the applicant's obligations under the Development Agreement, discussed in detail in the findings above and incorporated by reference herein, the Board finds that the proposal satisfies this factor. 4. Maximum efficiency of land uses within and on the fringe of the existing urban areas; FINDINGS: The Board finds the applicant's proposal is consistent with this Goal 14 factor because it will allow the subject property to be developed with industrial uses similar to those already existing on adjacent industrial -zoned land within the Sisters UGB. As discussed in the findings above and incorporated by reference herein, the subject property and the adjacent school district property are the two parcels most suitable to provide the industrial land supply required by Goal 9. Public facilities and services are available and adequate to serve the proposed development. The location is the only logical area for industrial use and the acreage is sufficient • Exhibit C Board of Commissioners Decision PA-99-4/ZC-99-1 Page of_, Ordinance,a,M3Ql0 Page 43 y8 to provide the City with an industrial land supply of suitable sizes, locations and services to meet • a variety of industrial needs. For these reasons and as further supported by the findings above, incorporated by reference herein, the Board finds the proposal satisfies this Goal 14 factor. 5. Environmental, energy, economic and social consequences; FINDINGS: Compliance with this factor is discussed in detail in the findings above which are incorporated by reference herein. The Board has found that the applicant's proposal will have no greater ESEE consequences than would industrial zoning of any other resource land in the vicinity. The Board has also found that the City needs at least 82 acres of industrial land and that industrial zoning on the subject property will have positive ESEE consequences by concentrating industrial development in one area of the City, providing increased economic opportunities, allowing for the maximum efficiency of land uses and the orderly provision of services. Therefore, the Board finds that the applicant's proposal satisfies this factor. 6. Retention of agricultural land as defined, with Class I being the highest priority for retention and Class VI the lowest priority; and, FINDINGS: As discussed in detail in the findings, incorporated by reference herein, the Board has found the subject property is classified as Class VI without irrigation, the lowest priority in the preservation of agricultural lands. The subject property has no irrigation, does not have high- value soils and is significantly smaller than the minimum size the Comprehensive Plan indicates is typical for a commercial farm, falls far below the assessed value for the subzone and is Class VI, which is the lowest priority for retention of agricultural land. Based upon these findings, the Board finds the proposal is consistent with this Goal 14 factor.. 7. Compatibility of the proposed urban uses with nearby agricultural activities. FINDINGS: The record indicates there are no agricultural uses near the subject property. The adjacent school district property, although zoned EFU-SC, is not and has not been engaged in farm use. The closest farm use on EFU-zoned land is the Patterson Llama Ranch which is located approximately one mile from the subject property. The nearest farm use on non-EFU- zoned land is on RR -10 -zoned land approximately one-half mile from the subject property. And as discussed in the findings above, incorporated by reference herein, the Board has found the applicant's proposal is consistent with the priorities for land to be included in an urban growth boundary under ORS 197.298. For these reasons, the Board finds the applicant's proposal will have no effect on nearby agricultural activities and therefore is consistent with this Goal 14 factor. In addition to the seven factors listed above, Goal 14 requires that any changes to an urban growth boundary satisfy the requirements of Goal 2, Part II, for goal exceptions. As discussed in the findings above concerning the proposal's compliance with those Goal 2 requirements, incorporated by reference herein, the Board has found the applicant's proposal satisfies all Goal 2 exception requirements. Exhibit _ C Page 1W of �. Board of Commissioners Decision PA-99-4/ZC-99-1 OrdinanceL'.. Page 44 I Goals 15 through 19 '10 FINDINGS: The Board finds these goals are not applicable to this proposal because they address river. ocean. and marine resources not located near the subject property. IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law. the Board 'hereby :APPROVES the applicant's proposal to expand the Sisters UGB to include the subject property: to change its plan designation from Agricultural to Industrial; and. to charnye its zone. subject to the Resolution of intent to Rezone adopted herewith, from EFU-SC to IL -LU. Lt' , Dated this day of December. 2000. Mailed this e — day of December. 2000. DESCHUTES COU�`TY BOARD OF COMMISSIONERS Tom Dewolf, Commissioner inda Swearingen, Dennis Luke. Commissioner Board of Commissioners Decision PA-994'/ZC-99-1 Page 45 Exhibit Page 41_ of Ordinance, / 3, D/i7 REVIEWED LEGAL COUNSEL APPLICANT: For Recording Stamp Only FINDINGS AND DECISION OF DESCHUTES COUNTY BOARD OF COMMISSIONERS PROPERTY OWNER: Barclay Meadows Business Park, LLC P.O. Box 587 Bend, OR 97709 Barclay Meadows Business Park, LLC P.O. Box 587 Bend, OR 97709 REQUEST: The applicant requests approval to change the plan designation and zoning of the subject property from Agriculture to Industrial and from EFU-SC to IL, respectively, and approval of an exception to Statewide Planning Goal 3 to include the subject property within the Sisters Urban Growth Boundary. FILE NUMBER: PA-99-4/ZC-99-1 STAFF REVIEWER: Chris Schmoyer, Associate Planner HEARING DATE: March 27, 2002 I. APPLICABLE ORDINANCES: A. Title 22 of the County Code, Uniform Land Use Procedures Ordinance Chapter 22.34, Proceedings on Remand B. Oregon Administrative Rules (OAR), Chapter 660, Division 12, Transportation Planning Rule OAR 660-012-0060, Plan and Land Use Regulation Amendments Page 1 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S:U.ega1\B000 Decisionsk=DBarclay Meadows Remand Decision.doc Exhibit Q Page of 14 Ordinance '2003 - 010 II. FINDINGS OF FACT: A. Procedural History The Board adopts the procedural history set forth in its December 27, 2000 decision, with the following additions. On December 27, 2000, the Board issued a decision approving the applicant's request to redesignate and rezone the subject property to bring it into the Sisters Urban Growth Boundary. The Board's decision was subsequently appealed to LUBA. LUBA remanded the decision to the Board for the adoption of additional findings demonstrating compliance with OAR 660-012-0060(2)(c). LUBA's decision was appealed to the Court of Appeals. The Court affirmed LUBA's decision without opinion. Pursuant to Section 22.34 of the Deschutes County Uniform Land Use Procedures Ordinance, the Board held a limited de novo hearing on March 27, 2002 to allow written and oral testimony on the issue of compliance with OAR 660-012-0060(2)(c). The Board held the record open until April 3, 2002 for the submission of additional testimony and evidence by persons commenting on the applications, and April 10, 2002 for the submission of additional testimony and evidence by the applicants. The applicants filed their final testimony on April 5, 2002 and submitted draft findings on April 8, 2002. The Board voted on April 10, 2002 to approve the applications and to adopt the findings set forth herein to demonstrate compliance with the Transportation Planning Rule, OAR 660-012-0060(2)(e). B. Location, Zoning and Plan Designation, Site Description, Soils, Surrounding Land Uses The Board adopts the description of the location, zoning and plan designation, site description, soils, and surrounding land uses set forth in its December 27, 2000 decision. These factual findings were not challenged before LUBA and are not the subject of the remand proceedings. C. Public/Private Agency Comments The Board received a letter from Peter Russell of ODOT on April 5a' and dated April 4a' that was included at part of the applicant's submittal. D. Public Notice and Comments Pursuant to 22.34.030(A), the Planning Division mailed individual written notice of the applicant's proposal and the public hearing to parties to the proceedings below. In addition, notice was published in the "Bend Bulletin" newspaper. Comments were received Page 2 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALega1\B0CC DecisioasUOMBarclay Meadows Remand Decisiondoc Exhibit Page— of Ordinance 2W3 - d/ from Mr. Howard Paine and Mr. William Boyer on behalf of the Alliance for Responsible Land Use in Deschutes County (ARLU DeCo). The Friends of Trapper Point (Marilyn Ebner, Denny Ebner, Jerome Forster, Janet Forster, Roy Schulke, Toni Schulke, and Richie Langfield) submitted written testimony incorporating ARLU DeCo's testimony by reference. The substance of those comments is discussed below. However, as a preliminary matter, the Board notes that Mr. Richie Langfield did not participate in the proceedings below and was not a member of Friends of Trapper Point for purposes of the LUBA appeals. Therefore, pursuant to DCC 22.24.030(A), Mr. Langfield is prohibited from testifying during the remand proceedings. III. CONCLUSIONS OF LAW A. Summary Based on LUBA's order in Case Nos. 2001-027 and 2001-028, this case is now before the Board for the adoption of new findings in support of OAR 660-012-0060(2)(c). LUBA consolidated the appeal of this case with the appeal of the Board's decision in File No. PA-99-5/ZC-99-3 and issued a single order remanding both decisions to the Board for additional findings regarding OAR 660-012-0060(2)(c). (See LUBA Order, Case Nos. 2001-027 and 2001-028.) All other elements of the Board's prior decisions were either unchallenged or upheld by LUBA on appeal. Therefore, this decision, and the Board's related decision in File No. PA-99-4/ZC-99-1, is limited to findings addressing OAR 660-012-0060(2)(c). LUBA remanded this case to the Board with instructions that the County adopt adequate findings addressing OAR 660-012-0060(2)(c). This administrative rule is an element of the Transportation Planning Rule (the "TPR"). The TPR is the administrative rule implementing Statewide Planning Goal 12. The TPR regulates comprehensive plan and zoning map amendments that "significantly affect" a transportation facility, and any applicant for a quasi-judicial comprehensive plan or zoning map amendment must demonstrate consistency with the rule. Under OAR 660-012-0060(2), an amendment "significantly affects" a transportation facility if it: (a) Changes the functional classification of an existing or planned transportation facility; (b) Changes standards implementing a functional classification system; (c) Allows levels or types of land uses which would result in levels of travel or access which are inconsistent with the firnctional classification of a transportation facility, or (d) Would reduce the performance standards of the facility below the minimum acceptable level identified in the TSP. The highlighted element is the subject of the remand. If, pursuant to one of the four standards quoted above, an amendment would significantly affect a facility, the amendment may proceed so long as the applicant assures that the allowed land uses will be consistent with Page 3 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALcpRBOCC Decisions0002\Bmlay Meadows Remand Decision.doc Exhibit D Page —3 of . Ordinance qb103 (L the identified function, capacity, and performance standards of the facility by employing one of the four mitigation methods set forth in OAR 660-012-0060(l). In its decisions approving the Barclay Meadows and School District applications, the Board of Commissioners addressed the TPR, but the findings in support of the approvals addressed subsection (c) in conjunction with subsections (a) and (b). LUBA found that the findings inappropriately combined the three subsections without directly addressing the requirement set forth in subsection (c). (LUBA Order, pp. 30-32.) Therefore, LUBA directed the Board to issue new findings explaining how the proposal complies with subsection (c). Subsection (c) requires a showing that the comprehensive plan and zoning map amendments will not allow "levels or types of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility." A functional classification is the designation applied to a particular road: i.e. highway, collector, arterial, etc. The Board finds that there are three potential methods to analyze compliance with OAR 660-012-0060(2)(c), and each method leads to a conclusion that the applicant's proposal does not significantly affect a transportation facility and is therefore consistent with the TPR. First, the Board analyzed whether the levels of travel and access likely to result from the applicant's proposal are consistent with the descriptions of the purpose of the functional classifications applicable to the roads impacted by the proposal. As described in detail below, the Board finds that the proposal is consistent with the functional classifications because the classification of each affected facility generally contemplates the types of travel and access likely to be created by the comprehensive plan and zoning map amendments. Under the second method, the Board analyzed whether the proposal would comply with OAR 660-012-0060(2)(c) if numerical performance standards governing intersection mobility were applicable to a determination under subsection (c). The Board then concluded that the law of this case is that there are no performance standards applicable to a determination of compliance with the TPR due to the date of filing of the application (the application was filed prior to the adoption of the City of Sisters Transportation System Plan). Therefore, the Board found that compliance or noncompliance with the performance standards could not impact a finding of consistency with subsection (c). Finally, under the third method of analysis, the Board analyzed whether the proposal would comply with OAR 660-012-0060(2)(c) if performance standards were relevant to a determination under subsection (c) and if the law of the case did not preclude the application of the performance standards from the OHP. This approach also results in a finding that the proposal does not significantly affect a transportation facility because the applicant's traffic impact analysis, supplemented by the March 19, 2002 and April 5, 2002 memoranda from David Evans and Associates, confirms that the affected intersections will maintain acceptable levels of service throughout the 20 -year planning period with the improvements contemplated by the City's TSP and the Development Agreements executed by the City, the County, the applicant, and the Sisters School District (the "Development Agreements"). (County Records, Vol. 2001, Page 21130; Vol. 2001, Page 21131). Each approach is discussed separately below. Page 4 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S:UAga1\B0CC Decisions1200213arclay Meadows Remand Decision.doc Exhibit Page // of Ordinance �a 3- N B. Compliance with OAR 660-012-0060(2)(c): Travel and Access Contemplated by Functional Classifications The Board finds that noncompliance with the performance standard applicable to an affected intersection (i.e. the numerical level of service standard governing the performance of an intersection) demonstrates that a proposal is inconsistent with subsection (d) of the TPR, but it does not automatically demonstrate inconsistency with a functional classification under subsection (c). It is a basic principle of statutory construction that one should not interpret one element of a statute so as to render another element superfluous., If inconsistency with a performance standard automatically resulted in a conclusion that an application would violate subsection (c) of the TPR, then subsection (d) would be superfluous. As LUBA has previously emphasized in Melton v. City of Cottage Grove, 28 Or LUBA 1, 9 n. 6 (1994), the only reference to impacts on "levels of service" in the TPR is in subsection (d), and LUBA has referenced. subsections (c) and (d) as setting forth separate standards.2 Therefore, under basic principles of statutory construction, we must assume that the four subsections of the TPR set forth unique and different standards. Thus, the levels of service at the intersections affected by the applicant's proposal, if relevant at all, cannot be the sole factor governing the Board's determination under subsection (c), and the language of subsection (c) suggests that it requires a qualitative rather than quantitative analysis of the types of travel and access generally contemplated by the functional classifications applied to each affected roadway. Subsection (c) requires the Board to focus on the general function and purpose of a road, not merely the levels of service at intersections along a road. In this case, the affected roadways are classified as a statewide highway (Highway 20) and collectors (Locust Street, Pine Street, and the future Barclay Drive). The Board finds that the Sisters Comprehensive Plan, the Deschutes County Comprehensive Plan, the Oregon Highway Plan, and the newly -adopted Sisters Transportation System Plan (TSP) provide the descriptions of each functional classification relevant to this analysis.3 The OHP Policy Element classifies the highway system into five categories and establishes primary and secondary functions for each type of highway. The OHP also sets forth goals and policies that govern the highway system. According to the OHP, statewide highways are intended to provide inter -urban and inter -regional mobility between cities and regions that are not directly served by interstate highways. The secondary function is to provide connections for intra -urban and intra -regional trips. The management objective is to provide safe and efficient, high-speed, continuous flow operation. Inside Special Transportation Areas ("STAW), Keller v. SAIF, 175 Or.App. 78, 82 (2001) (referencing ORS 174.010, which states: "In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.") See Citizens for Florence v. City of Florence, 35 Or LUBA 255 (1998): an amendment significantly affects a facility if it "allows types of levels of land uses that result in travel inconsistent with the functional classification of the facility or reduces the level of service below the minimum acceptable level identified in the city's TSP." (Emphasis added). Although the TSP was adopted after the applicant submitted its application and therefore does set forth the relevant approval criteria for this case, the Board finds that it may take judicial notice of the adopted plan for purposes of obtaining factual information relevant to the characteristics of each functional classification. Page 5 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S:\LtgaRB0CC Decisions12002\Barclay Meadows Remand Decision.doc Page __5__ of 4 Ordinance local access may be a priority. The portion of Highway 20 running through the City of Sisters is slated to be designated as an STA prior to June, 2006 pursuant to the City's newly -adopted TSP. The Deschutes County Comprehensive Plan and the Sisters Comprehensive Plan classify state highways as principal arterials and describe this classification as carrying the "major portion of trips entering and leaving the urban area and outlying rural and recreation areas." The Board finds that the types of travel and access created by the Barclay Meadows and School District proposals4 will be consistent with the stated functions of Highway 20. The highway will provide connections for intra -urban and inter -regional trips from outlying areas to the industrial areas within the City of Sisters. The highway will also accommodate intra -urban and intra -regional trips by employees and customers of the industrial uses established on the subject properties. Because the segment of Highway 20 running through the city center will be designated as an STA pursuant to the City's TSP, local access to.the industrial sites via Pine Street, Locust Street, and Barclay Drive may be a priority. In oral and written testimony, ARLU DeCo urged the Board to consider additional policies governing state highways. Specifically, ARLU DeCo cited Policy 1G and Goal 3. Policy 1 G is the OHP Major Improvements policy. The policy reads as follows: It is the policy of the State of Oregon to maintain highway performance and improve safety by improving system efficiency and management before adding capacity. ODOT will work in partnership with regional and local governments to address h igh way perform an ce and safety needs Action 1 G.1 implements tivs policy by setting forth a priority system to be used by local jurisdictions when drafting transportation plans. Action LG1 reads as follows: Use the following priorities for developing corridor plans, transportation system plans, the Statewide Transportation Improvement Program, and project plans to respond to highway needs. Implement higher priority measures first unless a lower priority measure is clearly more cost-effective or unless it clearly better supports safety, growth management, or other livability and economic viability considerations. Plans inust document the findings which support using lowerpriority measures before higher priority measures. 1. Protect the existing system. The highest priority is to preserve the functionality of the existing highway system by means such as access management, local comprehensive plans, transportation demand management, improved traffic operations, and alternative modes of transportation. 4 The applicant's traffic study analyzes the impacts of the applicant's proposal in conjunction with the School District proposal. Therefore, the Board also analyzes the impacts of the proposals together. Page 6 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALegaM0CC Decisions120020arclay Meadows Remand Decision.doc Exhibit _ 17 Page G o Ordinance ;�-:3 -00 Z Improve efficiency and capacity of existing highway facilities. The second priority is to make minor improvements to existing highway facilities such as widening highway shoulders or adding auxiliary lanes, providing better access for alternative modes (e.g., bike lanes, sidewalks, bus shelters), extending or connecting local streets, and making other off -system improvements. 3. Add capacity to the existing system. The third priority is to make major roadway improvements to existing highway facilities such as adding general purpose lanes and making alignment corrections to accommodate legal size vehicles. 4. Add new facilities to the system. The lowest priority is to add new transportation facilities such as a new highway or bypass. The Board finds that this policy and the implementing action guide the development of corridor plans, transportation system plans, the Statewide Transportation Improvement Program, and project plans. Pursuant to Action 1G.1, local jurisdictions must follow the above -quoted priority system when developing such plans. Local governments must then implement higher priority measures first. Consistent with the priority system, the Sisters TSP sets forth a list of prioritized improvements, and the TSP lists the STA designation and the intersection improvements relevant to the subject applications as high priorities. (TSP, Tables 6- 1 and 7-6). Pursuant to Action 1 G.1, these improvements are listed as higher priorities than the development of new facilities such as a new highway couplet or bypass. The Board finds that the intersections improvements do not constitute "new facilities" as that term is used in Action 1 G.1. ARLU DeCo commented that the applications propose new facilities (Priority #4) prior to higher priority improvements. The Board finds that the term "new facilities" in this context refers to facilities such as a new highway or bypass. Consistent with Action 1G.A, such facilities are listed as low priority items in the Sisters TSP, and the subject applications do not propose the construction of any low priority items to ensure compliance with the Transportation Planning Rule. The improvements necessary to ensure that the Barclay Meadows and School District applications will not significantly affect a transportation facility are high priority items (the intersection improvements and STA designation) and therefore the Board finds that it is appropriate to implement these items prior to the lower priority improvements. As required by Policy I G, the proposed improvements will improve the efficiency and capacity of existing highway facilities prior to the construction of new facilities. OHP Policy 3A, Access Management, and Action 3A.3, also cited by ARLU DeCo, read as follows: Policy 3A: It is the policy of the State of Oregon to manage the location, spacing and type of road and street intersections and approach roads on state highways to assure the safe and efficient Page 7 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALegahBOCC Decisions120021Barclay Meadows Remand Decision.doc Exhibit Fags _ of operation of state highways consistent with the classification of the highways. Action 3A.3: All signals niustprovide for adequate vehicle storage that does not encroach on the operation of adjacent lanes and signalized intersections In the March 27, 2002 written comments from Mr. Howard Paine, ARLU DeCo states that the spacing standard for a statewide highway in an urban business area is 520 feet and questions whether the proposed Locust Street/Highway 20 intersection will meet the vehicle storage requirement of Action 3A.3. The Board finds that Highway 20 within Sisters is not an Urban Business Area and therefore the spacing standard cited by ARLU DeCo does not apply. The Board further finds that, pursuant to the OHP and the Sisters TSP, the spacing standards within an STA are equal to the existing city block spacing (approximately 300 feet). Finally, the Board finds that the applicants' traffic impact analysis demonstrates that the proposed signals at the Highway 20/Pine Street and Highway 20/Locust Street intersections are approximately one- half mile (2,640 feet) apart and will be located at existing intersections. Under the Year 2015 analysis with traffic generated by the subject properties, the maximum queues on Highway 20 at Pine and Larch Street are less than 500 feet. Therefore, the queues will not extend to the upstream traffic signal at either intersection. Thus, the Board finds that the applications are consistent with the functional classification of Highway 20 as expressed by Goal 3 of the OHP. With respect to the affected collectors (Pine Street, Locust Street, and Barclay Drive), these roads are classified as collectors by the Transportation Element of the Sisters Comprehensive Plan and the newly -adopted TSP, and are considered "local interest roads" by the OHP. The OHP states that local interest roads are to provide for safe and efficient, low to moderate speed traffic flow and for pedestrian and bicycle movement. Inside STA's, local access is a priority. Pursuant to the Transportation Element of the City of Sisters Comprehensive Plan, collector streets provide service and traffic circulation between residential neighborhoods and the arterial street system with limited access. Finally, pursuant to the City's TSP, collector streets connect neighborhoods with the arterial system, and property access is generally a higher priority for collectors than arterials. The TSP further emphasizes that collectors are designed to carry local traffic, including limited through traffic, at design speeds of 25 to 35 mph. The Board finds that the types of travel and access created by the Barclay Meadows and School District proposals will be consistent with the stated purposes of the collectors and local interest roads. Pine Street, Locust Street, and Barclay Drive will provide local access to the industrial properties for vehicles, pedestrians, and bicycles. The streets will generally carry local traffic to the City's industrial area at the speeds designated by the City's TSP by connecting the industrial area with nearby residential neighborhoods and the arterial and highway system. Consistent with the proposed STA designation, the collectors will provide the necessary local access routes from Highway 20 to the industrial area. Because the proposed functions are consistent with the classifications set forth in the OHP and the TSP, the Board finds that the proposals will not "significantly affect" a transportation facility under OAR 660-012-0060(2)(c). Page 8 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALega11BOCC Decisions\20021Ban:lay Meadows Remand Decision.doc Page of inanceaIM—a- 11D C. Compliance with OAR 660-012-0060(2)(c): Performance Standards Not Applicable Pursuant to the Law of the Case Doctrine As explained above, the Board finds that the applicant's proposal will not allow levels or types of land uses which would result in levels of travel or access which are inconsistent with the purpose of each functional classification described in the local comprehensive plans and the OHP. To further support this conclusion, the Board finds that it is necessary to adopt findings detailing why performance standards are not relevant to this determination in this case. During the original proceedings, the Board determined that there were no performance standards applicable to a determination of compliance with the TPR because the City had not yet adopted a TSP setting forth such standards. (Decision PA-99-4/ZC-99-1, pp. 34-36.) The Board found that the performance standards referenced in the TPR are those set forth in a local TSP, not the Oregon Highway Plan. Consequently, the Board concluded that, in the absence of a local TSP, there are simply no performance standards applicable to the TPR analysis. The Board based this conclusion upon LUBA case law as well as a recent decision by the County Hearings Officer. As confirmed by LUBA, these findings were not challenged in the proceedings below or before LUBA. (LUBA Order, p. 33 n. 24.) Therefore, these findings stand as the law of this case and may not now be disturbed or challenged. Under the law of the case doctrine, when a case is reopened after remand from LUBA, the County should not revisit issues that were previously decided on the merits by the Board. Beck v. Tillamook County, 313 Or 148, 153 (1992). Resolved issues which may not be considered in the proceedings on remand include (1) issues presented in the first appeal and rejected by LUBA, and (2) issues which could have been, but were not, raised in the first appeal. Louisiana Pacific v. Umatilla County, 28 Or LUBA 32, 35 (1994). Therefore, the Board concludes that even if numerical performance standards were relevant to a determination of compliance with subsection (c), there are no standards to apply in this particular case. However, in the event that such standards are relevant to compliance with OAR 660-012-0060(c)(2), the Board has analyzed and addressed the OHP performance standards below. D. Compliance with OAR 660-012-0060(2)(c): If Performance Standards Were Applicable, The Applicant's Traffic Studies Show That Acceptable Levels of Service Will be Maintained Finally, the Board also finds that, if the law of the case doctrine did not preclude the application of OHP performance standards in this case, the applicant's traffic impact analysis, supplemented by the memoranda from David Evans and Associates dated March 19, 2002 and April 5, 2002, confirm that the affected intersections will maintain acceptable levels of service throughout the 20 -year planning period with the improvements contemplated by the City's TSP and the Development Agreements. Therefore, if performance standards are relevant 5 Under ORS 215.427(3), approval or denial of a land use application must be based on the standards or criteria in effect at the time the application was first submitted. Page 9 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALegaI\BOCC Decisions\2002\Barclay Meadows Remand Decisioo.doc Exhibit D Page —2_ of Ordinance to the Board's findings under subsection (c) and are reviewable under the law of this case, the Board finds that they support a finding of compliance for the reasons detailed below. Performance standards are expressed as a volume to capacity ratio ("v/c" ratio). The OHP specifies that the v/c ratio applicable to the Pine/Highway 20 and Locust/Highway 20 intersections is 0.85 if the portion of Highway 20 running through the city center is designated as an STA. 6 An STA is a designation that may be applied to a highway segment where a downtown, business district, or community center straddles the state highway. The primary management objective of the STA is to provide access to community activities, businesses, and residences along and across the highway, thereby managing the highway segment as a main street rather than a highway. An STA allows reduced performance standards in order to address downtown characteristics, recognizing the need to balance through traffic with local access and encouraging slower vehicle movement and improved pedestrian crossings. The City's TSP defines the downtown core of Sisters as the strip from Locust to Pine Streets and recommends an STA designation to define and protect the core of the city (Sisters TSP, p. 6-14). The TSP designates the STA as a "high" priority. (Sisters TSP, pp. 6-15, 6-32). High priority is defined as a task that will be implemented in 0 to 5 years. (Sisters TSP, p. 6-33). City Resolution 2002-03, adopted March 14, 2002, confirms that the City will pursue the implementation of the STA within the recommended timeframe and will define the STA boundaries to include the portion of Highway 20 from Pine to Locust Street, as contemplated in the TSP. Based on the designation of the STA as a high priority improvement in the City's TSP, the Board finds that the 0.85 v/c ratio would be the relevant performance standard for the Pine/Highway 20 and Locust/Highway 20 intersections if the OHP performance standard were applicable to this case. Because the Barclay Drive/Highway 20 intersection will be outside of the STA, the relevant performance standard would be 0.75. As emphasized in the March 19, 2002 memorandum from David Evans and Associates, the three affected intersections will maintain acceptable levels of service throughout the planning period with the improvements contemplated in the TSP and the Development Agreements. Specifically, the following improvements, which are anticipated by the TSP and/or the Development Agreements, will maintain levels of service below 0.85 (Locust and Pine) and 0.75 (Barclay) through the planning period: (l) installation of traffic signals at each intersection, (2) the extension of Barclay Drive to complete the McKinney Butte intersection (also referenced as the McKinney Butte Collector), (3) designation of the STA, and (4) a 68% maximum density limitation on the subject properties. Pursuant to the Development Agreements, the applicant and Barclay Meadows have committed to pay fees to the City to finance the construction of the contemplated improvements. (See Decision PA-99-4/ZC-99-1, p. 39). As stated in the March 19, 2002 memorandum from David Evans and Associates, with the above -referenced improvements, the Locust and Pine intersections will not exceed 0.85 6 The affected intersections are the intersections of Highway 20 with Locust Street, Pine Street, and the future McKinney Butte Collector (also referenced as Barclay Drive). The Barclay/Highway 20 intersection is outside of the STA area. Therefore the relevant performance standard would be 0.75. Page 10 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 SALega1\B0CC Decisions\2002\Bamlay Meadows Remand Decision.doc Exhibit Page /10 of Ordinance during the planning period, and the Barclay Drive intersection will not exceed 0.75 within the planning period. In addition, the supplemental memorandum shows when the Locust and Pine intersections will reach 0.75 (Locust by 2009, Pine by 2010). This statistic is useful because it supports the Board's conclusion that the intersections will function consistently with applicable performance standards because the STA will be implemented during the "high priority" time frame (0-5 years from the date of adoption of the TSP), well before the intersections reach the 0.75 v/c ratio applicable to a non -STA intersection. Therefore, the 0.85 v/c ratio applicable within STA's will apply before the intersections reach or exceed 0.75, thereby ensuring that the intersections operate at acceptable levels of service throughout the planning period. The Board finds that it may rely upon the STA designation to support a finding of compliance with the TPR because the STA designation is anticipated by the TSP and confirmed by Resolution No. 2002-03. Under Oregon Dept. of Transportation v. City of Klamath Falls, 39 Or LUBA 641, 652 (2001) and Craig v. City of Woodburn, 39 Or LUBA 384, 389-390 (2001), the TPR analysis proceeds as follows when the applicable TSP anticipates improvements to affected facilities within the relevant planning period: The city must first determine whether the city's existing transportation facilities are adequate to handle, throughout the relevant planning period, any additional traffic that the proposed amendment will generate. If the answer to that question is yes, then the proposed amendment will not significantly affect a transportation facility for the purposes of OAR 660-012-0060(1), and no further analysis is necessary. If the answer is no, then the city must consider whether any new and improved facilities anticipated by the TSP will generate sufficient additional capacity, and will be built or improved on a schedule that will accommodate the additional traffic that will be generated by the proposed amendment. If the answer to that question is yes, then, again, the proposal will not significantly affect a transportation facility. If, however, the answer is no, then the city must adopt one or more of the strategies set out in OAR 660-012-0060(1) to make the proposed amendment consistent with "the identified function, capacity and level of service of the [affected] facility. (Emphasis added.) Pursuant to Craig and ODOT v. Klamath Falls, the Board finds that it may consider whether any improvements contemplated by the City of Sisters TSP will accommodate the additional traffic generated by the proposed amendment. As emphasized in ODOT v. Klamath Falls, such reliance on future improvements is acceptable because "improvements anticipated by the TSP or other applicable planning documents have a planning basis and some probability of being constructed within the relevant time frame." 39 Or LUBA at 654. Thus, because the STA designation will maintain acceptable levels of service, the Board may rely on this to find that the amendments are consistent with the TPR. Similarly, the improvements mandated by the Development Agreements also have the same level of probability of being constructed within the relevant timeframe because the Development Agreements adopted by the City and County function as planning documents, mandating the funding and construction of the Page 11 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S!\1-ega11B0CC Decisions'2002\Barclay Meadows Remand Decision.doc Page of Ordinance facilities to serve the new development. The Agreements assign funding responsibility proportionate to the impacts of the amendments on the affected transportation facilities. In written and oral comments, ARLU DeCo questioned the projected traffic growth rate and the background traffic data used in the applicants' traffic studies. The 2.5% growth rate used by the applicants is the average future growth rate for the Elm Street/Highway 20 intersection. ARLU DeCo stated that the projected growth rate for the traffic studies should be 4.1 % rather than 2.5% and that the studies failed to consider specific background traffic from planned subdivisions and elementary school traffic. ARLU DeCo also questioned whether the traffic studies should have analyzed additional travel lanes at the Pine and Barclay intersections. In addition, ARLU DeCo argues that the applicants' studies are flawed because they analyze the traffic likely to be generated by 57 rather than the total 58 acres subject to the comprehensive plan amendment and zone change applications. ARLU DeCo's concern regarding the appropriate growth rate is based upon a letter from Mr. Stephen Wilson of ODOT, who suggested that a 4.1 % annual growth rate could be used to project future traffic volumes for the.City of Sisters. However, the applicants revealed that Mr. Wilson's annual growth rate calculation was an average of the growth rates for all of the intersections in Sisters based upon data from ODOT's Annual Traffic Volume Tables rather than the Future Traffic Volume Tables. A letter from Mr. Peter Russell of ODOT, the regional ODOT representative who reviewed all of the traffic studies in the School District and Barclay Meadows cases, clarified that projected growth rates should be derived from the Future Traffic Volume Tables because the Future tables are derived from actual counts only while the Annual Traffic Volume Tables are derived from both observed and estimated counts. Mr. Russell confirmed that the 2.5% growth rate used by the applicants at ODOT's suggestion was appropriate because it was derived from the appropriate ODOT data. Mr. Russell also confirmed that the Elm Street/Highway 20 intersection is the appropriate traffic barometer due to its central location between the junctions of OR 242/US 20 and US 20/OR 126. Therefore, the Board finds that the applicants' traffic studies are based upon the proper estimated growth rate of 2.5%. With respect to the estimation of background traffic, the Board finds that the 2.5% growth rate employed in the applicants' traffic studies adequately predicts the traffic that may result from the future development anticipated by ARLU DeCo (proposed residential subdivisions and a new motel). With respect to future traffic on Locust Street (named Camp Polk Road outside the city limits), the traffic studies predict an increase in the existing traffic on Camp Polk Road by 2.5% per year, from 346 vehicles per hour (vph) in the PM peak hour in the year 2000 to 502 vph in the PM peak hour in the year 2015. Traffic from existing developments, including residential development north of the proposed industrial park, was counted by the applicants' traffic engineer during traffic counts conducted in 1999. The Board finds that ARLU DeCo's suggestion that traffic count data from the Deschutes County Traffic Engineer shows that traffic volumes on Locust Street will increase at a higher rate fails to undermine the applicants' traffic studies because ARLU DeCo miscalculated the growth rate that could be derived from the referenced data. The Board also finds that the applicants' traffic engineer properly relied upon ODOT traffic volume data spanning a 22 -year period (compared to the referenced County data spanning a 15 -year period) and background traffic counts collected at the time the applications were submitted to estimate the volumes on Locust Street. As detailed Page 12 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S.'d.egaMOCC Decisions\2002\Bamlay Meadows Remand Decision.doc 'age --A_ of_, Ordinance AWL- j o N above, the future volumes were properly predicted based on the 2.5% growth rate recommended by ODOT and derived from the ODOT Future Traffic Volume Tables. The Board also finds that the applicants' traffic studies properly accounted for traffic from the Sisters Elementary school, including traffic generated by parents transporting children, by counting traffic generated by the elementary school as part of the traffic counts conducted in 1999 to determine the existing traffic volumes (June 1999 Traffic Study, p. 7). With respect to the potential for additional travel lanes at the Pine and Barclay intersections, the Board finds that the applicants' studies properly considered additional travel lanes at the Barclay Drive/McKinney Butte Extension/Highway 20 intersection because ODOT's current plans for the Highway 20/McKinney Butte Road/Barclay Drive intersection include widening the Highway 20 approaches to three lanes (two through lanes and one left turn lane on each approach) as reflected in the April 18, 2001 ODOT interoffice memo included as Exhibit I to the applicants' March 19 submittal. ARLU DeCo provided no contrary evidence to lead the Board to conclude that road widening is "unlikely." Similarly, the Board funds that the applicants also demonstrated that the issue of additional lanes at the Pine Street intersection is irrelevant because the 68% development restriction mandated by the Development Agreements eliminates the need for additional travel lanes on Highway 20. (January 2000 Traffic Study, p. 7; LUBA Rec. 027, p. 392). The traffic studies originally stated that additional lanes would be necessary to meet the 0.75 v/c ratio applicable outside of an STA. However, the applicants have demonstrated that the STA designation is likely to occur before the intersection reaches 0.75, and the 68% development limitation will ensure that the intersection meets the 0.85 v/c ratio applicable inside an STA without the need for additional travel lanes on Highway 20. Finally, regarding the acreage analyzed in the traffic studies, the Board finds that the applicants' studies did exclude one acre of the School District site from consideration for future industrial development because the subject acre was sold to an adjacent landowner for use as an expanded parking lot and storage area for an existing business (Metabolic Maintenance, a vitamin manufacturer). The one acre discrepancy represents a 1.7% reduction in the total land analyzed in the traffic study (30 acres owned by the Sisters School District and 28 developable acres owned by Barclay Meadows). The Board finds that any traffic growth resulting from the potential expansion of the referenced business was properly accounted for through the use of the 2.5% projected growth rate, and the impact on the percentage of traffic attributable to the entire 58 acres subject to the comprehensive plan and zone change is so minimal that it could not cause the applications to significantly affect a transportation facility under OAR 660-012-0060(2)(c). Therefore, the Board finds that it may rely upon the applicants' traffic studies to conclude that all affected intersections will be consistent with applicable performance standards throughout the 20 -year planning period because the studies are based upon accurate data supported by ODOT. The studies show that, if performance standards are relevant to compliance with OAR 660-012-0060(2)(c), the proposals will not significantly affect a transportation facility. Page 13 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S:U.ega1\B0CC Decisions\2002U3arclay Meadows Remand Decision.doc Fxhibit Page —1 of _ l� Ordinanceojl2 —Q IV. RESOLUTION OF INTENT TO REZONE In the prior decision issued in File No. PA-99-4/ZC-99-1, due to the timing of the decision and the City's annexation proceedings, the Board conditioned the rezone through a Resolution of Intent to Rezone requiring annexation to be completed before the zone change became final. The Board recognizes that the annexation and City zone change have become final (City Ordinance No. 321), and therefore the Resolution of Intent to Rezone is no longer necessary to ensure compliance with the rezoning criteria. V. CONCLUSION In summary, based on the evidence in the record and the additional information set forth in the March 19, 2002 David Evans and Associates memorandum, the Board finds that the applicant's proposal will not significantly affect a transportation facility under OAR 660- 012-0060(2)(c). therefore, the Board reaffirms its prior decision to approve the applicant's proposal to expand the Sisters UGB to include the subject property, to change its plan designation from Agricultural to Industrial, and to change its zone to EFU-SC to IL. The Board also amends its prior to decision to reflect the subsequent decision by the City of Sisters (City Ordinance No. 32 1) to annex and rezone the subject property from EFU to IL. Based on this ordinance, it is not longer necessary to condition this approval upon the execution a Resolution of Intent to Rezone. Dated this of w '2002 BOARD OF COUNTY TOM ATTEST: R. LUKE, COMMISSIONER k MICHAEL M. DALY, COMMISSIONER Recording Secretary Page 14 of 14 — FINDINGS AND DECISION, CDD FILE NO. PA-99-4/ZC-99-1 S:1Legal\BCCC Decisions\2002Uhrclay Meadows Remand Decision.doc rp- arJ �_1 2&3-420 3 L „