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42-758-Ordinance No. 82-025 Recorded 6/16/1982t VOL 42 ,AcE 758, BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Ordi- nance No. PL-11, Bend Urban * r Growth Boundary Zoning Ordi- nance, Rezoning Certain Property from Urban Area * 'J ~ Reserve (UAR-10) Zone to * UN 19 Highway Commercial (CH) Zone, ROSFM 82 and Declaring an Emergency. * 46SCHIJ S CY P Tr~RSpN ORDINANCE NO. 82-025 NTY Q~K WHEREAS, Clausen, Moyer, Backstrom, Ray, Dickey, Instant Homes, and Memorial Gardens, Inc. proposed the rezoning of certain property within the Bend Urban Area Growth Boundary from Urban Area Reserve (UAR-10) Zone to Highway Commercial (CH) Zone; and and WHEREAS, notice of hearing was given in accordance with law; WHEREAS, the Hearings Officer held hearings on the proposed zone change on November 10, December 8, and December 22, 1981, and on January 13 and February 2, 1982; and WHEREAS, the Hearings Officer recommended that the property be rezoned from Urban Area Reserve (UAR-10) Zone to Highway Commercial (CH) Zone by decision dated March 9, 1982; and WHEREAS, the decision of the Hearings Officer has not been appealed to the Deschutes County Planning Commission; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. To amend Ordinance No. PL-11, Bend Urban Area Growth Boundary Zoning Ordinance, to change the zoning from Urban Area Reserve (UAR) Zone to Highway Commercial (CH) Zone for the parcel of real property described as: Tax Lots 1600, 1100, 902, 901, 1200, 1304, and 1301, Section Nine (9), Township Seventeen (17) South, Range Twelve (12) East, Willamette Meridian, Deschutes County, Oregon; and depicted on the map marked Exhibit "A", attached hereto and by this reference incorporated herein. 1 - ORDINANCE NO. 82-025 vot -P 42 RCE 759 Section 2. To adopt as the Board of County Commissioners' findings and conclusions, the findings and decisions of the Hearings officer dated March 9, 1982, relating to Zone Change Application Number Z-81-22, marked Exhibit "B", attached hereto and by this reference incorporated herein. Section 3. This Ordinance being necessary for the immediate preservation of public peace, health and safety, an emergency is declared to exist, and t is Ordinance takes effect on its passage. DATED this the day of vtna , 1982. BOARD OF COUNTY COMMISSIONERS OF DESCH ES COUNTY, O OIL CLAY C. SHARD, Chaifman ALBE&T A. YOUNG,,,-Commiss,14!~6er C. PA SON, JR., om ioner ATTEST: SUSAN T NEMAN Recor ing Secretary 2 - ORDINANCE NO. 82-025 Z/611 X • Ty ,140„ 16 00 1500 603 _•w"nQ~ o ~ ~r c I D.4 C~..14V~. yY ~ t Y fY q•~ 6 0 S e ro ° \ ~I~~d C r e a _ s 6, ~i ~tf Y ± 4, ^y ,405 ' f a > ty F; 7Z!Z ti ~ AI fir, ii t -i.~~ T ?~4.'. lUMAD8Ak)V i yy - ~ ~ - 1. ~~3'`r^~`_ 301 _ # i F Lt t! X a. r j -1200 r: 1= si f s ~C Fy a W, 3'~,, r- sr Lev. 217' ,a! t' a:`~• •4~.y ~1T~ I {x ~rcp~ rt } -77 ~rw f f.'~ .It aY~1l}}~ K •~Fr -rY ,L- ~ J- ~A /r i 1V" cil 11 EXHIBIT "B" HEARINGS OFFICER VOL DESCHUTES COUNTY COURTHOUSE ANNEX BEND, OREGON 97701 ~11, TELEPHONE (503) 388.6626 r FINDINGS AND DECISION 4 MAR 1982 MAILED IDCou*n s FILE NO: Z-81-22 APPLICANT: Clausen, Moyer, Backstrom, Ray, Dickey, Instant Homes, and Memorial Gardens, Inc. REQUEST: An application for a zone change from UAR-10, Urban Area Reserve to CH, Highway Commercial. PLANNING STAFF REPRESENTATIVE: George Read PUBLIC HEARING: The public hearing was held in room 106, Deschutes County Courthouse Annex, Bend, Oregon on the following -dates: November 10, 1981, December 8, 1981„December 22, 1981', January 13, 1982,-and February 2, 1982. BURDEN OF PROOF: In `order to receive approval of this request the applicant must meet the criteria set forth in Section 33 of the Urban Area Zoning Ordinance PL-11, as well as the Urban Area Comprehensive Plan. In addition, the burden is on the applicant , who has challenged the standing of those in opposition that they do not have standing as provided by Deschutes County Procedural Ordinance PL-9. The Hearings Officer finds, based upon the documents exhibited by the applicant, specifically exhibit #39, which is a map of the property involved in the application. This property is approximately 42 acres in size and has approxi- mately .5 frontage on North Highway 97. The property is within the Bend Urban Growth Boundary and is zoned Urban Area Reserve 10, UAR-10, the majority of the property under consideration is zoned Commercial on the Comprehensive Plan for the Bend Urban Area. The remainder of the property is designated Urban Area Reserve. Q ~l Z-81-22 - PAGE 1 0. S VOL 42 FAcK 761 The property has a level to rolling topography with some road cuts along the highway up to twenty feet along the road grade. There is a moderate covering of juniper trees and sagebrush. t The applicant has proposed to provide ~,ater and sewage by individual wells and septic tanks and drainfields. Fire protection will be provided by the Bend Rural Fire District #2. The only existing development on the property is a mobile home sales lot, that occupies approximately two acres. The land surrounding the proposal is primarily vacant. There is an existing cemetery located to the north, a few houses on large parcels located to the west,-and a mobile home and recrea- tional vehicle park to the south. The Hearings Officer finds as substantiated--by exhibit #43 submitted by the applicant's attorney, Mr. Robert Lovlien, that the applicant, Mr. Robert A. Dickey has withdrawn from this matter. This withdrawal was filed on Janaury 27, 1982 for Mr. Dickey by Mr. Robert Lovlien and affects Tax Lot 1200, Township 7, Range 2, Section 9. The Hearings Officer further finds,,based on a memo dated. February 4, 1982 from the Hearings Office to Mr.•..Qeorg,e,.Read, Assistant Planner, exhibit #58, that-part of the proposed subject property of this application is not designated as Commercial on the Comprehensive Plan map of the Bend Urban Area Plan, but in fact, is Urban Area Reserve. From the evi- dence submitted, it appears that the commercial line was intended to be drawn along the east boun- dary of the northeast quarter of the southwest quarter of Section 9. CONCLUSIONS: 1. The first issue to be addressed is the challenge to standing of the following parties: Ranch Village Corporation Pat Gesler Wagners Square Nor Cal Theaters Leon Lazarini Garden Management Company 2. On January 13, 1982 a evidentiary hearing was held to determine granting of standing to the above listed parties. Z-81-22 - PAGE 2 . ti VO .r 42 FACE 763, 1 3. The Hearings officer finds that the above listed parties, represented by Mr. Daniel Van Vactor, Attorney at Law who appeared at the time of all hearings, do have standing. This is based upon the case of Merrill vs Van Volkinburg, 54 OR.app.873 (1981), also on 1,000 Friends vs Multnomah County, 39 OR.app.917 (1978), Duddles vs West Linn, 21 OR.app.310 (1975), Clark vs Dagg 38 OR.app.71 (1979), and in addition Deschutes County Procedural Ordinance PL-9, Section 8.000 (4), which states "Any person within reasonably close proximity to the property that is the subject of a hearing who demonstrates to the Hearings Body that he could sustain substantial economic or aesthetic injury as a result of the proposed land use action.", shall be granted standing. 4. Deschutes County Procedural Ordinance, PL-9 was adopted on October 19, 1977 by the Board of County Commissioners. The Hearings officer finds that there was sufficient evidence introduced at the hearing, based upon the liberal language contained in the County's Procedural Ordinance to grant standing to the above listed parties. Primary testimony was received from Leon Lazarini, president of Nor Cal Theaters. He established that he would suffer economic harm, should this application be approved. As dictum, the Hearings officer would indicate that if it had not been for the liberal language contained in Deschutes County Procedural Ordinance Pl-9, a more serious question of standing would be raised as to some of the applicants, namely: Nor Cal Theaters, Leon Lazarini, and Wagners Square. 5. The Hearings Officer finds,,that a portion of,property not designated Highway'Commercial, or Commercial on the Bend Urban Area Plan, which is the northeast quarter of the southwest quarter of Section 9, cannot be considered as part of this appli- cation, since it was designated in the Comprehensive Plan as Urban Area Reserve, the only way that could be considered is for a plan amendment.to cover that section of property. The Hearings Officer finds that section of property is not properly before him. This decision will not affect that portion of property unless a Comprehensive Plan amendment is made along with an ap- propriate zone change, that property will remain Urban Area Reserve, as indicated both in the Comprehensive Plan and in the Zoning Ordinance. Both zoning ordinance and comprehensive plan being in agreement, the Hearings Officer feels that the case of Baker vs Milwaukie 533P.2D772 (1975) would apply. The proper application would have to be made for a change and the appropr- iate criteria met as to the timing of that change. All property but that mentioned above will be the subject of the remainder of this decision. 6. The Hearings Officer takes notice and makes part of this record the fact that Deschutes County Comprehensive Plan and the Deschutes County Zoning Ordinance were acknowledged On April 30, Z-81-22 - PAGE 3 I. I, VOL 42 PAGE 764 . 1981 of by the Land Conservation Development Commission. The Bend Urban Area Comprehensive Plan and Zoning Ordinance were acknowledged by the. LCDC on June 25, 1981. 7. Based upon this acknowledgement, and the recent decision of Ochocho Construction Company, Inc. vs D.L.C.D.,(Department of Lan .Conservation an Development), w is was decided on February 22, 1982 by the Court of Appeals, the Hearings officer rules that there is no need for the applicant to address statewide goals. The burden is on the applicant to show conformance with the local Comprehensive Plan. Any challenge to this application based upon violation of goals, must be done as a challenge through the local acknowledged Comprehensive Plan. In this case the Hearings officer relies upon the the staff report, information supplied by the applicant, as well as, information supplied by Mr. Van Vactor on behalf of those in opposition, that the majority of this pro- perty is designated Commercial on the Comprehensive Plan. There is no dispute as to the actual Comprehensive Plan designation of the property. It is further found, based upon the zoning maps that this parcel of property is currently zoned Urban Area Reserve. 8. Based upon information supplied by the applicant, namely exhibit #41, page 2, and testimony at the time of the public hearing for receiving general evidence on February 2, 1982, the Hearings officer finds that Avion Water is currently prepared.to make water available to the property which is at the urban level of service. 9. As to the issue.,o,f..sewer, the Hearings Officer finds, based upon evidence contained in'exhibit #41, that a Phase' II Sewer.-Boundary is not now, nor ever has been approved for the Bend Urban Area. Neither the City of Bend, or Deschutes County have a water or sewer facility plan that indicates the time the City water or sewer services will be available to property in the Bend Urban Area Boundary. It is the Hearings Officer's opinion that until such time as a Phase II sewer boundary has been established and City facilities planned and adopted with respect to water.and sewer that any development within the Bend Urban Growth as it re- lates to water and sewer would be under the applicable rules of the Department of Environmental Quality. 10. The opposition, as represented by Mr. Van Vactor, has raised questions as to whether or not public facilities are available to the subject property and that there are other parcels of property that have public facilities currently available that have a com- mercial designation. The applicants have addressed the issue, but indicate there is no plan, therefore, there is no criteria to determine whether or not there is other designated land that has or will have said public facilities. The burden, in the Hearings Officer's opinion, reverts to the opposition to establish that there is public sewer and water facilites available in the Urban Boundary or that there is a Phase II sewer plan for the Urban Boundary Area, either adopted by the City of Bend, and/or Deschutes County. The Hearings officer further finds that this Z-81-22 - PAGE 4 t VOL 'r ` 2 FACE 765 has not been done, and that the applicants have sustained the burden of showing that there is not a Phase II sewer boundary, nor are there any plans by the City of Bend or Deschutes County that indicate when sewer and water facilities will be available to properties within the Urban Growth Boundary. Therefore, it is an impossible burden placed the applicant to do more than what has currently been done to satisfy the public facilities question in this matter. 11. The main question to be determined in approving this application is, whether or not the the applicant must address all timing elements which include public need, best available property, or that there has been a change in circumstances or a mistake in the original zoning (Section 33 of the Urban Area Zoning Ordinance PL-11). Or if the only issue the applicant must establish is that they have provided access to the property through a system of frontage roads, rather than direct access onto Highway 97 as contained in Subsection 16, on page 39 in the Bend Urban Area General Plan. 12. The Hearings Officer finds, based upon the following, that the only issue for the applicant to address is the creation of an adequate frontage road system to provide access to the property and reduce the number of direct access onto Highway 97. 13. The Hearings Officer finds through submitted evidence and oral testimony that in 1977, 1978 and early 1979, Mr. Robert Hyde, a member of American Institute of Architects, Bob Lammert from the State Highway Division, and property owners; Syd McGill, Bea Clausen, Herb Althoyse, Allen Bruckner,,and Carl Backstrom attended meetings with the Board of County Commissioners and the members of the Deschutes County Planning Commission in relation to this particular section of road. In 1975, the subject pro- perty was designated commercial on the plan and zoning ordinance of Bend Urban Area. As Deschutes County was adopting a new Com- prehensive Plan under the guise of Senate Bill #k100, the land use bill for the State of Oregon, it became apparent that this pro- perty would be down-zoned to Urban Area Reserve 10. It became apparent that there was an oral agreement and understanding between the property owners and the Board of County Commission- ers, that at the time when an adequate frontage road or system was developed to alleviate direct access from this property onto Highway 97, the property would be available for re-zoning to Highway Commercial. The Hearings officer further finds, that the tapes from these meetings with the Board of County Commissioners are no longer in physical existence. Mr. Robert Lovlien, an attorney for the applicants established through conversations and research of the Commissioners' files that the Board of County Commissioners have a policy of destroying all tapes of all meetings eighteen (18) months after the date of the meeting. Z-81-22 - PAGE 5 . VOL 42 FACE 766 14. The Hearings Officer finds that this particular situation is unique, in the co-operation that evolved between the private land owners and the State Highway Department. Through many months of negotiations between the State Highway Department, and the owners of the property north of Cooley Road and adjacent to Highway 97, agreed in principal to an exchange of land owned by the State of Oregon in return for an expansion of the rights-of-way of Highway 97 on the west side of the Highway. The group of applicants were advised by Mr. Dale Allen, Regional Engineer for the State High- way Department, that funds had been allocated to regions for con- struction of certain projects as a part of the area's six year plan. Included within that project is a proposal to widen North Highway 97 in Bend to three lanes from the new Mt.' View Mall to Deschutes Memorial Gardens, which has had a significant impact upon these property owners. 15. These applicants, in the interest of facilitating the projected improvements on North Highway 97, and based upon projected con- struction costs of aproximately $300,000.00, agreed to contribute $150,000.00 towards the cost of said highway improvements-i--with the condition that the commitment was good as long as the pro- jected widening. of the highway was completed within the first two years of the six year plan for region four. This program was later adopted by the property owners and the State Highway Department. 16. In addition, a proposed internal frontage road system was part of the plan that was submitted to the State Highway Division, Deschutes County Board of Commissioners, and the.Deschutes.County Planning Department., staff: - Said proposed .road is, best ,se.en, in the applicant's exhibit #39. 17. The Hearings Officer finds, based upon the testimony of the indi- viduals listed above, particularly, Mr. Syd McGill, Herb Althouse, Allen Bruckner and Mr. Carl Backstrom that the legisla- tive history or the intent behind Subsection 16 on page 39 of the Bend Urban Area General Plan as it relates to Commercial po- licies of the plan was tied solely and only to the provision of providing a safe frontage road system. The Hearings officer feels that the evidence submitted by the applicants is clear that this is the intent and purpose behind the provision in the Bend Urban Area General Plan. There was no evidence submitted by the opposition to show there was any legislative history other than was previously mentioned in these findings. The Hearings officer accepts and acknowledges that there was no written contract or agreement between the Board of County Commissioners and the property owners, who are the applicants in this case. However, the legislative history and intent behind this subsection of Highway Commercial designation on the Comprehensive Plan is clear, and in the Hearings Officer's opinion, is controlling. Z-81-22 - PAGE 6 R • , VOL if 42 FAGS 767 18. The Hearings Officer was asked to take judicial notice of the" Land Conservation Development Commission staff reports as it relates to the Bend Area General plan. The Hearings Officer has not had access to said L.C.D.C. staff reports, and does not take judicial notice of said staff reports. 19. Exhibit #49 and other such exhibits, newspaper articles have been given no weight by the Hearings Officer. The Hearings Officer has reveiwed the number of traffic studies for the highway improvement, including exhibit A, E, G, J, and K and finds that they are valid and indicate a need for improved conditions. 20. The Hearings officer further finds, based upon the testimony of Mr. Syd McGill at the February 2, 1982 hearing, that the number of direct access points onto Highway 97 between Mt. View Mall and Deschutes Memorial Gardens has been reduced from twelve to five. Based on the traffic study reports, this will be a tremendous improvement on the safety of access onto North Highway 97. 21. The Hearings Officer finds the testimony and exhibits entered and submitted as that relating to the agreements between the appli- cants and the State Highway Department for the improvements of Highway 97 and the eventual construction of the frontage road as proposed. The Hearings Officer feels that exhibit #4 through #11 and other such as exhibit #20 establishes the fact the applicants did rely upon information supplied by the Board of County Commis- sioners and thus proceeded to accomplish the goal of providing an adequate secondary accesq to the property. 22. In addition, the Hearings Officer finds that some of the proposed frontage road runs through a portion of property that is cur- rently designated as Urban Area Reserve on both the Comprehensive Plan and Zoning Ordinance and is located in Section 9. The Hearings Officer finds specifically that a road running through a portion of land desginated as Urban Area is not detrimental to the proposal or to the application as long as the appropriate approvals of the land owners are obtained. It simply means that a portion of land will remain zoned as UAR-10 as indicated in the Comprehensive Plan until some future date when an application for a Comprehensive Plan change and a zone change have been filed and approved. 23. At the February 2,1982 hearing most of testimony by witnesses and the arguments by Mr. Robert Lovlien, the attorney for the appli- cants centered around the amount of financial committment made by the applicants and their reliance upon the up-zoning of this par- ticular piece of property. The Hearings Officer finds that financial committments, although a factor to be considered, pre- sent very little evidence or weight in a legal manner for a basis of approval for a zone change. There is no question in the Z-81-22 - PAGE 7 4. Y vol. IF 42 FACE 768 a Hearings Officer's mind that the financial committment made by the applicants was based upon their understanding of a committ- ment by the Board of County Commissioners. However, that com- mittment can be no more than a moral committment, as the Board entered into no written contract or agreement with the property owners regarding up-zoning based upon financial committment. 24. The Bend Urban Area Comprehensive Plan has a number of policies that relate to commercial areas. Those policies commence on page 34. One of the goals, which establishes a frame-work for the commercial section of the general plan, indicates that all new commercial areas and outlying sections shall be developed as centers rather than as strips along major arterials, (page 34, Bend Area General Plan). The Hearings Officer finds that the proposal with the 40 acres involved has the potential of being developed as a center rather than strip commercial, as the length of the property abutting the north-south section of High- way 97 is a distance of only .5 mile. 25. Further on that same page, the plan indicates that it is no-t the intent of the general plan to limit commercial activity, but rithi:r to uirect it into areas where it can develop harmoniously with the rest of the community. Since this particular area has some commercial developments in the immediate area; namely the Mt. View Mall, the Bend Cinemas, the KOA Campgrounds, the Instant Homes Mobile Homes Sales, a repair shop and Deschutes Memorial Gardens, this is filling in a section of that property to the outer limits of the Urban Growth Boundary as indicated in_the Comprehensive Plan-and fits with this policy of that plan. 26. Another policy indicates,that improving the appearances of the area of Highway 97 shall be a major community objective. This does not deal with specific developments. However, providing a frontage road within the development, will provide an opportunity the County Planning staff to work closely with those whowish to develop the commercial activity in the most aesthetically pleasing manner possible, thus improving that area as required by the plan. 27. The plan indicates on pages 37 and 38, statements of intent for commercial areas. This section generally indicates that special consideration should be taken for street frontages and landscaped areas, softening of appearances of existing commercial develop- ments, and better channalize turning movement on North Highway 97. In addition, care should be taken to control the size of the development so that excessive zoning does not require the addi- tion of other kinds of uses that would generate traffic from well beyond the service area. Z-81-22 - PAGE 8 C VOL ,A-42 FAGS ! W 28. The plan on page 39 specifically deals with the subject property: " North of Cooley Road on the west side of Highway 97 is an area designated for Highway Commercial, currently zoned UAR-20. This area should not be re-zoned until a system of frontage roads is created that will provide access to the properties rather than direct access onto Highway 97. The property owners of this area have suggested such a plan. A copy of these plans is available and the Bend Urban Area Advisory Committee minutes. Further, development in this area will necessitate highway improvements, that should be bourne by the area." 29. The applicants, which are the owners of the property north of Cooley Road on the west side of Highway 97, have accomplished a frontage road plan that has been approved by the State Highway Department in conjunction with a widening of North Highway 97. The improvements provide for two lanes of travel and a left turn lane with deceleration lanes provided for each access point, as established by testimony of Mr. Lammert, the documentation and testimony of Mr. Lovlien, the exhibits of agreements of of #2 and #3, #19 and letters from Dale Allen, Regional Engineer, Highway Division of Transportion, dated February 2, 1982, exhibits #52 and #53. 30. The 'Urban Growth Boundary was modified, prior to its adoption by the County, to take into account the subject property of this application. When the statement of intent included a specific reference to this property, the Hearings officer finds it reason- able to assume that the legislative body intended to re-zone the property upon completion of the improvements, which have been made. 31. If the County had intended that this property be tied to not only highway improvement but also to significant population growth, public facilities, and the timing elements mentioned in the plan and zoning ordinance, the Hearings officer finds that it would have been logical for those statements to have been made specifi- cally with respect to the property north of Cooley Road. The Hearings Officer finds that the issue of timing was sufficiently modified by the specific statement of intent contained in the Bend Urban Area General Plan, Year 2000 Plan contained on page 39. That statement came after other general statements have been made regarding requirements for development of commercial activity along the highway. 32. Based upon the above, the Hearings Officer finds that the appli- cants have carried the burden and established that the only element for re-zoning or up-zoning of this property to its pre- vious zone is that of an adequate access and frontage road sy- stem, which has been accomplished. Z-81-22 - PAGE 9 i vu -42 PAE 770 DECISION: APPROVAL DATED this 97/ day of March, 1982. This decision becomes final fifteen (15) days after the date mailed, unless appealed to the Planning Commission by a party of interest: Avedo ec l i` FEARINGS 74 OFFICER MA:ch cc: file Planning Commission Planning Department Robert Lovelien Daniel Van Vactor Z-81-22 - PAGE 10 r r.