2004-871-Ordinance No. 2004-015 Recorded 6/23/2004I,
REVIEWED
LEGAL COUNSEL
REVIEWED
'uyQ-�
CODE REVIEW COMMITTEE
COUNTY OFFICIAL
NANCYUTES BLANKENSHIP, COUNTY CLERKDS C 20ON71
COMMISSIONERS' JOURNAL ,
971�riiuma�i
06/93/4004 04 , 40 , 49 PM
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Title 18, the Deschutes
County Zoning Map of the Deschutes County Code, * ORDINANCE NO. 2004-015
to Change the Zone Designation on Certain Property
from Terrebonne Residential District to Terrebonne
Commercial District, and Declaring an Emergency.
WHEREAS, Kristin and Ian Yurdin have proposed a Zone Change to Title 18, the Deschutes County
Zoning Map, to rezone certain property from Terrebonne Residential District (TeR), to Terrebonne Commercial
District (TeC); and
WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with
applicable law, approved the proposed change to the County Zoning Map; and
WHEREAS, the Hearings Officer's decision was not appealed, and pursuant to section 22.28.030 of the
Deschutes County Code, the Board of County Commissioners shall in the absence of an appeal, adopt the
Hearings Officer's decision; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. Pursuant to Chapter 18.12 of the Deschutes County Code, the Deschutes
County Zoning Map is hereby amended to change the zone designation of the subject property, described as tax
lot 102 in Section 16DD of Township 14 South, Range 13 East, Willamette Meridian, and as further described
by the legal description attached hereto as Exhibit "A" and the map set forth as Exhibit `B," and by this
reference incorporated herein, from Terrebonne Residential District (TeR) to Terrebonne Commercial District
(TeC) within the Terrebonne Rural Community.
Section 2. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision of
the Deschutes County Hearings Officer, attached as Exhibit "C," and by this reference incorporated herein.
PAGE 1 OF 2 - ORDINANCE NO. 2004-015 (06/23/04)
Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declated to exist, and this Ordinance takes effect on its passage.
DATED this L3 Y day of June, 2004
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
MICHAEL M. DALY, Chaiq
TOM DE)kQLF, Commissioner
R. LUKE, Commissioner
Date of 15` Reading:D� day of June, 2004.
Date of 2nd Reading::; —day of June, 2004.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Michael M. Daly T/
Tom DeWolf
Dennis R. Luke
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2004-015 (06/23/04)
' t 0fdW NO, 70664*7344
Repesas
EhdnBfl't "A'
Real property in the County of DescInft, State of Oregon, described as follows:
Pared 01427 OT
The Westerly 100.0 feet of The Burlington Northern and Santa Fe Railway Company's (formerly Onion
')unk Ra" Company) 300) foot wkie Station Ground property at T&mbonne, OrMon, being 100.0
feet wide on the East ly side and 200) wide on the Westerly side of said. Rahway Company's Main Track
eentwih% as now locatedand constructed upon, over and across the South Half of the Southeast
Quarter (S1/2 SEI/4) of Section 16, MWNSHIP 14SOUTH, RANGE 13 EAST OF THE WILLAMETTE
MERIDIAN. Oesc wft eou ft Orem " between two Nnes drawn parallel with and distan{;,
respectively, 100.0 feet and 200.0 feet Westerly, as measured at right angles from said Maki Track
centwft bounded on tot; North by the Eadety aftsWon of the South Ine of sea Avenue, and bounded
on the South by the Easteriy extension of the North line of "A" Avenue, aooadirng to the recorded plat of
Tett
Pared 01428 NOM0
That portion of The Burlington Nortlwn and Santa Fe Railway Oornhpanys (brmery Oregon Trunk
Railway Company) 300.0 foot wide Statlon QvxW property at Terre wm% Oregon, being 100.0 feet
wide on the Easterly side and 200.0 feet wide on the Westerly side of said Railway f omp n "s Main Track
centerline, as now located and constructed upon, over and across the South Half of the Southeast
Quarte' (Sl/2 SW4) of Section 16, TOWNSHIP 14 SOUTH, RANGE 13 EAST OF THE WRLAME1TE
MERIDIAN, Deschutes County, Oregon, described as follows, W -v&
. 8egi nning at the intersection of the Easterly a t rasion of the South line of"t3" Avenue, aomrding to the
recorded plat of Twrrebonne, Oregon with a line drawn parallel with and distant 100.0 feet Westery, as
measured at. right angles from said Main Trade eentedine; thenoa Southerly parallelwith sald•MainTradc
oantedlne to the Intersection with the Easterly ex nylon of the North line of •A" Avenue; thence Easterly
at right angles to said Main Track centerline 77 fkxk more or less, to the btersecton with a Nne drawn
- —�- parM with -and distant 9.0 fed Westerly; as -mem used at Hgfnt-angks-iiom -said Rapvvey - most Westerly raddng track eenterft as now located and constructed; thane Northerly along the last*
described Wald kne to the heron with the Easterly extension of the South line of Ir Avenue;
thence Wes" along said Easterly extension to the Point of Beglrming.
Tax Pared Number. 196656
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DECISION OF DESCHUTES COUNTY HEARINGS
FILE NUMBER:
APPLICANT:
PROPERTY OWNER:
ZC-04-1
Kristin and Ian Yurdin
1777 S.W. Troon Street
Bend, Oregon 97702
Deryl J. Ferguson
P.O. Box 156
Terrebonne, Oregon 97760
24, 2526?�2a2`9
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REQUEST The applicant is requesting approval of a zone change from
Terrebonne Residential District (TeR) to Terrebonne Commercial
District (TeC) for a 1.49 -acre parcel located within the Terrebonne
Rural Community.
STAFF REVIEWER: Paul Blikstad, Associate Planner
HEARING DATE: April 14, 2004
RECORD CLOSED: April 30, 2004
L APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the County Zoning Ordinance
1. Chapter 18.66, Terrebonne Rural Community Zoning Districts
* Section 18.66.020, Residential (TeR) District
* Section 18.66.040, Commercial (TeC) District
2. Chapter 18.136, Amendments
* Section 18.136.030, Resolution of Intent to Rezone
B. 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
C. Title 23 of the Deschutes County Code, the Comprehensive Plan
2. Chapter 23.28, Terrebonne Rural Community
* Section 23.28.010, Terrebonne Rural Community
C. Oregon Administrative Rules (OAR) Chapter 660, Division 12
1. OAR 660-012-0060, Plan and Land Use Regulation Amendments
Yurdin
ZC-04-1
1
�x hi b i � C 4rr�i�►ance
aOOq-015 C(,-;2-3-0 15 Pr9es
IL FINDINGS OF FACT:
A. Location: The subject property is located at 400 N.W. Smith Rock Way,: Terrebonne,
and is further identified as Tax Lot 102 on Deschutes County Assessor's,Map 14-13-
16DD.
B. Zoning and Plan Designation: The subject property is zoned Terrebonne Residential
District (TeR) and is designated Commercial Expansion Area on the comprehensive plan
map.
C. Site Description: The subject property is approximately 1.49 acres in size, has varied
topography consisting of level areas and some rock outcrops, and has little vegetation. It
is developed with the historic Oregon Trunk Railroad Depot located adjacent to the
existing railroad tracks. The depot was moved onto the property from an adjacent parcel
about 50 years ago. The property abuts Smith Rock Way on the south and takes access
from this road via a dirt driveway.
D. Surrounding Zoning and Land Use: The subject property is surrounded by land zoned
TeR and developed with single-family dwellings. Further to the west is land zoned TeC
developed with commercial uses and U.S. Highway 97. To the. east and south is land
located outside the Terrebonne Rural Community boundary, zoned Exclusive Farm Use-
Terrebonne Subzone (EFU-TE), and engaged in farm use. Further to.the east is Smith
Rock State Park. The Terrebonne Commercial Expansion Area designated on the
comprehensive plan map extends west of the subject property to the existing commercial
zone.
E. Procedural History: The applicants submitted the subject zone change application on
February 20, 2004, and the county accepted the application as complete. on March 22,
2004. Therefore, the 150 -day period for issuance of a final local land use decision under
ORS 215.427 would have expired on August 19, 2004. A public hearing on the
application was held on April 14, 2004. At the hearing,, the Hearings Officer received
testimony and evidence and closed the evidentiary record. The applicants waived their
right to submit final argument pursuant to ORS 197.763, and the record closed on April
14, 2004. By letter dated April 20, 2004, the applicants requested that the Hearings.
Officer reopen and extend the written record for seven days to allow them to address an
issue raised by staff at the public hearing that was not raised in the Staff Report. The
applicants agreed to toll the 150 -day period during the period of the record extension. By.
order dated April 21, 2004, the Hearings Officer reopened and extended the written
record to April 30, 2004. The record closed on that date. The 150 -day period now expires
on August 26, 2004. As of the date of this decision there remain 93 days in the 150 -day
period.
F. Proposal: The applicants are requesting approval to change the zoning of the subject
property from TeR to TeC to allow them to develop the property with commercial uses.
The applicant's burden of proof indicates their current plans are to convert the existing
historic railroad depot into a restaurant.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicant's
proposal to a number of public and private agencies and received responses from: the
Deschutes County Property Address Coordinator, Assessor, Road Department, Historic
Planner, and Environmental Health Division; the Redmond Fire Department; the
Redmond School District; the Oregon Health Division; the Central Oregon Irrigation
District (COID); and Pacific Power and Light. These comments are set forth verbatim at
pages 2-3 of the Staff Report. The following agencies did not respond to the county's
Yurdin
ZC-04-1
2
request for comments: the Deschutes County Building Division; the Oregon Departments
of Environmental Quality and Transportation; the Terrebonne Domestic Water District;
Qwest; and Central Electric Cooperative.
H. 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 250 feet of the subject property. In addition, notice of the public hearing
was published in the "Bend Bulletin" newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received two letters from the public in response to these notices. In
addition, two members of the public testified at the public hearing.
L Lot of Record: The Staff Report states the county recognizes the subject property as a
legal lot of record because it is comprised of Lots 1-15, 18 and 19 in Block 143 of the
Hillman (Terrebonne) Town Plat as well as a portion of land sold to the Oregon Trunk
Railway by deeds dated December, 1909 and January, 1910.
IIL CONCLUSIONS OF LAW:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.66, Terrebonne Rural Community Zoning Districts
a. Section 18.66.020, Residential (TeR) District
b. Section 18.66.040, Commercial (TeC) District
The Terrebonne Commercial District is intended to allow a range of
commercial and limited industrial uses to serve the community and
surrounding rural area.
FINDINGS: The TeR District does not allow commercial uses except for home occupations
carried on entirely within a dwelling. The TeC District allows a wide variety of commercial uses.
- some permitted outright, some permitted subject to site plan review, and some permitted
conditionally. As discussed in the Findings of Fact above, the applicants' burden of proof states
their current plans are to convert the historic depot building into a restaurant. Section
18.66.040(B)(1)(b) allows an "eating and drinking establishment" with less than 4,000 square
feet of floor space as a use permitted outright subject to site plan review. The applicants.
submitted testimony and evidence to the effect that a restaurant would . be the best commercial
use in the depot building because it would allow preservation of the high ceilings and the
"cavernous" feeling. As discussed in the findings below, the applicants' burden of proof includes
an estimate of traffic generated by a restaurant use and asserts this level of traffic would not
exceed the capacity of Smith Rock Way.
Based on the applicants' representations in their burden of proof concerning the planned use of
the subject property as a restaurant, at the public hearing Associate Planner Paul Blikstad
recommended that the requested zone change to TeC be conditioned on the subject property
being developed with a restaurant. The applicants did not object to that recommendation at the
hearing.. However, in a letter submitted after the evidentiary record closed, the applicants
requested that the record be reopened to allow them to respond to staffs recommendation. In a
letter dated April 28, 2004, the applicants stated in pertinent part:
,Our intent is to restore the building and use it for Commercial use. Once the
Yurdin
ZC-04-1
3
building is restored it will be able to accommodate may commercial uses that
are permitted outright or with a Site Plan Review in the Terrebonne Commercial
Zone. * * * The applicants are bearing the financial burden of this project and
would be at greater financial risk if they were limited to only. restaurant use
within the building. "
In a post -hearing memorandum dated April 21, 2004 Mr. Blikstad stated in pertinent part:
"* * * [S]taff believes that the proposed zone change should not be subject to a
requirement that the railroad depot has to be converted to a restaurant .in order to
obtain the zone change. It is clear to staff, in reviewing the burden of proof, that
some form of commercial use is intended for the site, and that a restaurant is the
applicants' first choice. The fact that their first choice for the site is a restaurant
us does not mandate, in our opinion that the only use of the site has to be a
restaurant.
The applicant [sic] has addressed the criterion for justifying a zone change
(Policy no. 3 under section 23.28. 101 (B) (3) (d) in the burden of proof. Their stated
intent is to restore the historic railroad depot into a commercial use, with 'a
restaurant as the preferred use. Limitations on septic system approval may
preclude the use of the site as a restaurant. If that is the case, the railroad depot
building would have to be used for some other use. Leaving this option open
makes sense, and limiting the zone change to a restaurant use (or any single. use)
in staff's opinion is not the intent of this policy. " (Emphasis added.)
The Hearings Officer concurs with staff and the applicants. I find that nothing in the
comprehensive plan or zoning ordinance affecting the Terrebonne Rural Community authorizes
or requires me to limit a zone change to TeC for property designated commercial to a particular
commercial use. Therefore, I find I must review the proposed zone change assuming the subject
property could be developed with any commercial use allowed outright or conditionally in the
TeC District.
B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
1. Chapter 23.28, Terrebonne Rural Community
a. Section 23.28.010, Terrebonne Rural Community
B. Land Use Planning
2. Comprehensive Plan Designations
The Deschutes County 'Comprehensive Plan for the
Terrebonne Rural Community has the following five
comprehensive plan designations:
a. Residential. The land designated Residential on
the Terrebonne comprehensive plan map
includes the highest density area of Terrebonne,
corresponding with the boundary of the old
Hillman Plat. It is intended to accommodate
higher density residential uses, served by
Yurdin
ZC-04-1
4
community water.
* a s
d. Commercial Expansion Area. The ,Commercial
Expansion Area designates the only area for
future expansion, of the. Commercial plan
designation and Commercial zoning district. The
Commercial Expansion Area is intended for
future expansion of the Terrebonne commercial
center with a connected road network and good
pedestrian access, directed away from the
highway, to discourage highway strip-.
commercial development.
FINDINGS: The subject property is designated Commercial Expansion Area and is. located on
the eastern boundary of this area. Access to the subject property is from Smith Rock Way which
is designated a rural minor arterial road on the county's transportation plan map and which
connects to U.S. Highway 97 and other Terrebonne streets. The record indicates Smith Rock
Way in the vicinity of the subject property is improved with a paved surface 23 feet wide with.
gavel shoulders but no sidewalks. In its comments on the applicants' proposal, the road
department stated the design capacity of Smith Rock Way is 8,000 vehicle trips per day, and
current traffic counts are about 2,000 vehicle trips per day, or approximately 25% of the road's
capacity.' Therefore, the Hearings Officer finds that although the subject property has a good
road connection to the rest of the Terrebonne commercial area, it does not have good pedestrian
access. The Staff Report states, and I concur, that -the applicants will be required to improve
Smith Rock Way adjacent to the subject property. And as discussed in detail in the findings
below, I have found that the applicants will be required to construct these improvements at the
time of site plan and/or conditional use approval.
3.. Land Use Policies
a. General land use policies.
2. County plans and land use regulations
shall ensure that new uses authorized
within the Terrebonne Rural Community
do not adversely affect agricultural uses
in the surrounding Exclusive Farm Use
(EFU) zones. Zoning regulations shall
require any new structure on land
contiguous to EFU-zoned land which is
receiving special assessment for farm use
to set back 100 feet from the common
property line.
4. The county shall encourage the
' In its comments on the applicants' proposal, the road department noted that in general the design
capacity for a rural minor arterial is 9,600 daily vehicle trips, but that the proximity of the railroad tracks
to the segment of Smith Rock Way abutting the subject. property reduces its capacity to 8,000 daily
vehicle trips.
Yurdin
ZC-04-1
5
preservation of historical structures in the .
Terrebonne Rural Community, such as
the Ladies Pioneer Club (1911), the
Grange Hall (1925) and the Oregon
Trunk Railroad Depot (1911).
FINDINGS: The applicants do not propose any new buildings on the subject properly. Rather,
they propose to preserve and restore the existing railroad depot building according to state and
county standards for historic preservation. The record indicates the depot is located more than
100 feet from. any land zoned EFU. Therefore, the Hearings Officer finds the applicants'
proposal satisfies this, criterion.
C. Commercial area policies.
1. Allow small-scale, low -impact commercial
and industrial uses in conformance with
the requirements of . OAR Chapter 660,
Division 22, and larger commercial uses,
if such uses are intended to serve the
community and the surrounding rural
area or the travel needs of the people
passing through the area.
3. Design standards in the commercial
districts should encourage new
development that is compatible with the
rural character of the commercial
district.
4. Where there is a choice to use a road
other than 97 for access, access shall not
be taken from Highway 97.
7. Stand-alone residential uses or residences
in conjunction with uses listed in the
commercial districts shall be allowed, but
they are not intended to predominate or
set the development standards for other
uses in the area.
S. Land divisions or replatting for
residential purposes shall not be allowed
in the commercial districts.
9. Livestock shall not be permitted in the
commercial districts.
FINDINGS: The applicants are proposing to restore the railroad depot so that it may be
converted to a commercial use. As discussed above, the applicants' burden of proof states their
preferred use for the building is a restaurant that would have approximately 2,200 square feet of
floor space. The Hearings Officer finds the property's location on Smith Rock Way between
Highway 97 and Smith Rock State Park will allow a commercial use such as a restaurant to serve
Yurdin
ZC-04-1
6
both residents of the Terrebonne community and visitors to the park. I concur with staff that the
proposed preservation of the depot will be consistent with the character of the area. Access to the
property will be from Smith Rock Way, a designated rural minor arterial road. The applicants are
not proposing any residential uses, land divisions, replatting, or livestock. For these reasons, I
find the applicants' proposal satisfies these criteria.
d. . Commercial expansion area policies.
1. The Commercial or Commercial -Rural
plan designations shall not expand on the
west side of Highway 97.
2. The area designated Commercial shall
only expand to the designated
Commercial Expansion Area on the
Terrebonne comprehensive plan map (See
Map Bl). No expansion of the
Commercial Expansion Area shall be
considered until neat periodic review.
3. Rezoning the Commercial. Expansion
Area from Residential District to.
Commercial District shall be allowed only
if no land currently zoned Commercial
District can reasonably accommodate the
proposed use.
FINDINGS: The subject property is east of Highway 97. The applicants are not proposing to
expand the designated Commercial Expansion Area. The applicants' burden of proof asserts no
land currently zoned TeC reasonably can accommodate the proposed use because it consists of
restoring the existing railroad depot and converting it to a commercial use. The Staff Report
notes that the depot building theoretically could be moved to other commercial -zoned property.
However, the Hearings Officer concurs with staff and the applicants that not only would such a
move involve considerable expense and potential damage to the building, it would remove its
"historic" character which comes from its location adjacent to the railroad tracks. Moreover, in
their comments on the applicants' proposal, both the county's historic planner. Pat Kliewer and
the vice -chair of the Deschutes County Landmarks Commission Derek Stevens stated that
converting the depot building to a commercial use such as a restaurant will prevent demolition of
the building and preserve its "cavernous" feeling. For. these reasons, I find the applicants'
proposal satisfies these criteria.
4. Rezoning .the Commercial Expansion
from Residential District to Commercial
District may be done without a Plan
Amendment and shall be allowed only if
the Terrebonne Domestic Water District
facilities provide, or will provide,
adequate water quantity and pressure for
commercial or domestic use to serve the
area being rezoned; and the road rights of
way serving the area being rezoned have
been, or will be, improved to applicable
county right of way standards for the
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Terrebonne Rural Community. An .
applicant for a. zone change must be able.
to demonstrate that:
L Road right of way improvements
and public water facilities to the
property are in place or will be in
place when the development
occurs; or
ii., Road right of way improvements
and public water facilities to the
property are under construction
when a permit is issued; or
iii. Road right of way improvements
and public water facilities to the
property have been in a local
government or special district
budget.
These standards shall apply in place of
the county standards for rezoning
contained in Title 18, section 18.136.020
of the Deschutes County Code.
FINDINGS: The record includes a copy of a document entitled "Verification of Domestic Water
Source for Properties in Water Districts signed by the manager of the Terrebonne Domestic
Water District and included in the record as Exhibit 4 to the applicants' burden of proof. The
certification states: "I certify that the property referenced above is within the District * * * and
that the District has the capacity and facilities to serve the proposed building." The record
indicates Smith Rock Way is a county -maintained road. As discussed above, the road currently is
improved with 23 feet of pavement within a 60 -foot right-of-way. The county's improvement-
standards
mprovementstandards for a rural minor arterial road require 34 feet of pavement width including a 5 -foot -
wide paved shoulder and a 5 -foot -wide sidewalk where required. The standards also require an
8 -foot -wide drainage swale.
This section requires the applicants to demonstrate that water and road facilities "are in place or
will be in place when the development occurs." The Staff Report recommends that to assure this
criterion is satisfied the Hearings Officer should recommend to the Board of County
Commissioners that approval of the proposed zone change be conditioned on adoption of a
resolution of intent to rezone requiring that road improvements and water facilities be in place
before the commercial zone change takes effect. The applicants responded in their April 28, 2004
letter that they should not be required to provide the necessary, infrastructure until the time of
development — i.e., at site plan review.
Section 18.136.030 authorizes the use .of a resolution of intent to rezone as follows:
A. If from the facts presented and findings and the report and
recommendations of the Hearings Officer, as required by DCC 18.136.030,
the County Commission determines that the public health, safety, welfare
and convenience will be best served by a proposed change of zone, the
County Commission may indicate its general approval in principal of the
proposed rezoning by the adoption of a "resolution of intent to rezone." This
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resolution shall include any conditions, stipulations or limitations which the
County Commission may feel necessary to require in the public interest as a
prerequisite to final action, including those provisions that the County
Commission may feel necessary to prevent speculative holding of property
after rezoning.*
B. The fulfillment of all conditions, stipulations and limitations contained in the
resolution on the part of the applicant shall make such a resolution a binding
commitment on the Board of County Commissioners. Upon completion of
compliance action by the applicant, the Board shall, by ordinance, effect such
rezoning. The failure of the applicant to substantially meet any or all
conditions, stipulations or limitations contained in a resolution of intent,
including any time limit placed in the resolution, shall render the resolution
null and void automatically and without notice, unless an extension is
granted by the Board.
The question before the Hearings Officer is whether the circumstances presented by the
applicants' proposal justify the use of a resolution of intent to rezone rather than imposition of a
condition of site plan and/or conditional use approval requiring construction of necessary
infrastructure at the time of commercial development. Clearly the subject property cannot
support commercial development until these facilities. are in place. However, the property is
designated commercial, the water district has indicated it has the capacity to serve commercial
development on the property, and as discussed in the findings below Smith Rock Way appears to
have ample capacity to handle additional traffic generated by commercial development on the
property. Moreover, the relatively small size of the subject property and the presence of the
historic railroad depot building create significant limitations on the types of commercial uses that
are feasible. Consequently, I find approving the proposed commercial zone change will not
create the "speculative holding" of commercial property intended to be addressed by a resolution
of intent to . rezone. For these reasons, I find it more appropriate to require construction of
necessary infrastructure as a condition of site plan and/or conditional use approval than to
condition approval of the zone change on such construction or on the adoption of a resolution of
intent to rezone subject to such construction.
C. Public Facility Planning
2. Public facility policies.
* * *
b. Water facility policies.
* * *
2. The county shall support improvement of
the community water system . to meet
health and safety needs.
* * *
4. New uses or expansion of existing uses
requiring land use approval in the
Terrebonne Domestic Water District
service area shall be approved only upon
confirmation from the District that the
District can provide .water for domestic or
commercial uses to the property.
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FINDINGS: As discussed above, the record includes a certification from the Terrebonne Water
District that it has the ability to provide water to the subject property. for the proposed
commercial use. The Hearings Officer has found the applicants will be required, as a condition of
site plan and/or conditional use approval to construct water facilities to the water district's
specifications before commercial development of the subject property can take place.
c. Sewer facility policies.
1. Only uses and densities that can be served
by a DEQ approved on-site sewage
disposal system shall be allowed in the
Terrebonne Rural Community until such
time as a community sewer system is
available.
FINDINGS: In its comments on the applicants' proposal, the Environmental Health Division
stated the subject property had received an approved septic site evaluation from the Department
of Environmental Quality (DEQ) in September of 2003, but that the applicants would need to
apply to DEQ for a Water Pollution Control Facility (WPCF) permit for wastewater disposal for
a restaurant. The record includes a letter dated December 1, 2003, from DEQ, included in the
record as Exhibit 4 to the applicants' burden of proof, confirming the requirement of a WPCF
permit. The Hearings Officer finds that the applicants will be required as a condition of site plan
and/or conditional use approval to obtain a WPCF permit for any commercial use of the subject
property requiring such a permit.
D. Transportation Planning
4. Transportation policies.
a. Road network policies.
1. Roads.
V. Existing road rights of way shall
be preserved.
viii. Commercial uses that generate
more than 20 vehicle trips to and
from the premises, including
automobiles, truck -trailers and
other heavy equipment, during the
peak hour of the day, shall
demonstrate that the affected
roads are adequate to . serve the
proposed use, considering the
function, capacity and level of
service of those roads.
FINDINGS: As discussed above, the record indicates the existing right-of-way for Smith Rock
Way is 60 feet and therefore no additional right-of-way dedication is required. The applicants'
burden of proof states they anticipate 180 to 270 persons would patronize a restaurant on the
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subject property each day, generating an estimated 72 to 108 vehicle trips per day based on a
formula of 2.5 persons per vehicle. The applicants did not submit a traffic analysis predicting
how many of these, daily vehicle trips would occur during the p.m. peak hour, or how many
vehicle trips might be generated by other commercial uses permitted in the TeC District. The
Hearings Officer has reviewed the uses permitted outright and conditionally in the TeC District
and finds that several of them have the potential to generate high levels of traffic — e.g., retail
businesses, restaurants, motels, churches, schools, child care centers, and. medical centers.
However, I find the relatively small size of the subject property and the presence of the historic
railroad depot significantly limit the types and intensities of commercial uses that could be
developed on the subject property.
Because the applicants have not submitted a traffic analysis that identifies which commercial
uses might generate more than 20 p.m. peak hour vehicle trips, the Hearings Officer finds they
have the burden of proving Smith Rock Way has the capacity to handle additional traffic
generated by more intense commercial uses such as a restaurant. As discussed above, the record
indicates Smith Rock Way has a design capacity of 8,000 daily vehicle trips and currently
handles about 2,000 daily vehicle trips, or approximately 25% of its design capacity. I find the
addition of as many as several hundred additional daily vehicle trips will not exceed the road's
design capacity. However,. because Smith Rock Way currently is not improved to the. county's
standards for a rural minor arterial, and the subject property is adjacent to an at -grade railroad
crossing, I find the road's actual capacity is more limited and more likely to be affected by the
addition of hundreds of additional daily vehicle trips. Nevertheless, I find that given the current
"excess" capacity on Smith Rock Way, and the fact that the applicants will be required to
improve the abutting segment of the road to the county's standards as a condition of commercial
development, it is reasonable to conclude Smith Rock Way will be adequate to serve the
commercial uses permitted on the subject property.
2. Sidewalks and bicycle facility policies.
L Provide functional, cost effective
sidewalks that are in keeping with
the rural character of the.
community.
ii. Provide sidewalks where they are
warranted for pedestrian safety, as
set forth in Map D3. .
iii. Where sidewalks are specified
along county public roads, they
shall be constructed without curbs
and gutters, set back from the
road surface behind a drainage
swale at a distance from property
lines to allow room for utilities.
iv. Sidewalks identified on Map D3
shall be constructed either at the
time of development, subject to site
plan review, or later through
formation of a local improvement
district (LID). Applicants for
conditional use permits or site plan
approval electing to defer.
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constructing sidewalks, shall be
required to . submit and have
recorded in the County Clerk's
office a waiver of remonstrance,
signed by the land owner. The.
waiver shall. waive. the -land
owner's right to have his/her
objection count against the
formation of an LID.
FINDINGS: The record indicates the sidewalk plan on Map. D3 does not include the segment of
Smith Rock Way abutting the subject property. However, the Hearings Officer concurs with.
staff's conclusion that a sidewalk abutting the subject property may be necessary to assure
adequate pedestrian safety and connectivity with the remainder of the TeC District. I find the
issue of whether or not a sidewalk will be required should be addressed at the time of site plan
review.
b. Road development standards policies.
2. The county shall implement road
development standards for the
Terrebonne community that minimize
pavement width and are consistent with
the operational needs . of the
transportation facility.
3. Specific road, bicycle and pedestrian
facility improvement projects for the
Terrebonne community are listed in
Tables D2, D3 and D4 respectively. The
projects are ranked high, medium and
low priority based on perceived need.
These priorities shall be flexible to take
advantage of development opportunities
and funding.
FINDINGS: The road standards for Terrebonne are listed on Table 18.66-A of Title 18. In
addition, Map D3 lists the areas proposed for sidewalks, and map D4 lists the areas proposed for
shoulders along roads. As discussed above, the Hearings Officer has found the applicants will be
required as a condition of site plan and/or conditional use approval to improve the abutting
segment of Smith Rock Way to county standards for rural minor arterial roads.
C. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule
a.OAR 660-012-060, Plan and Land Use Regulation Amendments
(1) Amendments to functional plans, acknowledged
comprehensive plans, and land use regulations which
significantly affect a transportation facility shall assure that
allowed land uses are consistent with the identified function,
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accomplished by either:
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the
transportation facility;
(b) Amending the TSP to provide transportation facilities
adequate to support theproposed 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.
(3) Determinations under subsections (1) and (2) of this section
shall be coordinated with affected transportation facility and
service providers and other affected local governments.
FINDINGS: The Hearings Officer finds this administrative rule is applicable to the proposed
zone change because it constitutes an amendment to a land use regulation — i.e., the county's
zoning snap which under Section 18.12.030 is a part of the zoning ordinance. The applicants are
proposing to rezone the subject property from residential to commercial and to develop the
subject property with a commercial use such as a restaurant. As discussed in the findings above,
the Hearings Officer has found the additional traffic generated by a restaurant on the subject
property will not exceed the .capacity of Smith Rock Way when it is improved to the county's
standards for a Waal minor arterial. For this reason, I find the proposed zone change will not
change the functional classification of Smith Rock Way as a rural minor arterial, or change the
standards applicable to such a classification, -or allow a land uses that would result in levels of
traffic inconsistent with the road's functional classification.
The record indicates the county's transportation system plan (TSP) identifies the acceptable level
of service (LOS) for county arterial roads as LOS D. The Hearings Officer is aware that
transportation engineers recognize six levels of service from "A" to "F," with LOS A being the
highest level of function and LOS D and F being the lowest levels, signifying a near "failing" or
failing transportation facility, respectively. As discussed above, the applicants did not submit a
traffic impact analysis for commercial uses on the subject property. Nevertheless, I find that
because Smith Rock Way currently is operating well below its design capacity, and the
applicants will be required as a condition of site plan and/or conditional use approval to improve
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the abutting segment of Smith Rock Way to county standards, the proposed zone change will not
reduce the LOS of Smith. Rock Way below LOS "D."
For the foregoing reasons, the Hearings Officer finds the proposed zone change, is consistent
with this administrative rule.
2. OAR 660, Division 15, Statewide Planning'Goals and Guidelines
FINDINGS: The applicants' burden of proof did not include information addressing the
statewide land use planning goals. The Staff Report included an analysis of the goals. Under
Section 23.28.010(3)(4)(4), discussed in the findings above, the zone change standards in Section
18.136.020 do not apply to proposed commercial 'zone changes in the Terrebonne Rural
Community. Those standards include conformity between the proposed zone change and the
county's comprehensive plan, and make no reference to the statewide land use planning goals.
For these reasons, the Hearings Officer finds compliance with the goals is not an approval
criterion for the proposed quasi-judicial zone change.
D. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.28, Land Use Action Decisions
a. Section 22.28.030, Decision on Plan Amendments and Zone Changes
A. Except as set forth herein, the Hearings Officer or the
Planning Commission' when acting as the Hearings Body shall
have authority to make decisions on all quasi-judicial zone
changes and plan amendments. Prior to becoming effective, all
quasi-judicial plan amendments and zone changes shall be
adopted by the Board of County Commissioners.
B. In considering all quasi-judicial zone changes and those quasi-
judicial plan amendments .on which the Hearings Officer has
authority to make a decision, the Board of : County
Commissioners shall, in the absence of an appeal or review
initiated by the Board, adopt the Hearings Officer's decision.
No argument or further testimony will be taken by the Board.
FINDINGS: The Hearings Officer finds that under this section the zone change from TeR to
TeC for the subject property approved by this decision shall not take effect unless and until the
Board of County Commissioners adopts the change by ordinance. However, my decision is
subject to appeal.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby.
APPROVES the proposed zone change from TeR to TeC for the subject property, SUBJECT
TO THE FOLLOWING CONDITION OF APPROVAL:
1.. The applicants/owners will be required as conditions of approval for a site plan and/or
conditional use permit for a commercial use on the subject property to improve the
abutting segment of Smith Rock Way to the county's standards for rural minor arterials,
to construct water facilities to the standards and specifications of the Terrebonne Water
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District, and to obtain a WPCF permit from DEQ for any commercial use requiring such
a permit.
Dated this oel day of May 2004.
Mailed this 7 `� day of May, 2004.
Karen H. Green, Hearings Officer
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