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2005-744-Ordinance No. 2005-015 Recorded 5/26/2005REVIEWED LEGAL COUNSEL REVIEWED &-41�1 CODE REWLWCOMMITTEE DESCHUTES COUNTY OFFZCZAL RECORDS NANCY BLANKENSNZP, COUNTY CLERK Q 2005,74 COMISSZONERS' JOURNAL !q 1111 11 05/26/2005 03:57:02 PM BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23, the Deschutes County Comprehensive Plan, of the Deschutes County Code, to establish an exception to Statewide Planning Goal 3, Agricultural Lands, to include a portion of a certain property, zoned Exclusive Farm Use Tumalo/Redmond/Bend Subzone (EFU- TRB). ORDINANCE NO. 2005-015 WHEREAS, the Deschutes County Hearings Officer approved the Comprehensive Plan exception requested in Deschutes County Land Use Files CU-04-97/RC-05-2, on February 15, 2005, incorporated herein as Exhibit "B"; and WHEREAS, pursuant to Deschutes County Code ("DCC"), Chapter 22, Section 22.28.030(A) the Deschutes County Hearings Officer has authority to render a decision on all quasi-judicial plan amendments; and WHEREAS, the Plan Amendment (Goal Exception) approval in Files CU-04-97/RC-05-2 requires a revision to the County's Comprehensive Plan map to establish an exception to Goal 3 for property zoned Exclusive Farm Use Tumalo/Redmond/Bend Subzone(EFU-TRB); and WHEREAS, DCC 22.28.030(A) requires all quasi-judicial Plan Amendments to be adopted by the Deschutes County Board of County Commissioners ("Board") to become effective; and WHEREAS, DCC 22.28.030(B) requires the Board to adopt the Hearings Officer's decision in the absence of an appeal or review initiated by the Board; and WHEREAS, no appeal was filed and the Board did not initiate review of the Hearings Officer's decision; and WHEREAS, on May—, 2005, the Board convened a public meeting regarding Deschutes County File Nos. CU-04-97/RC-05-2; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Page I of 2 — ORDINANCE NO. 2005-015 (MAY 4,2005) Section 1. AMENDMENT. DCC 23.120 is amended, as shown on Exhibit "A," attached hereto and incorporated herein, Section 2. FINDINGS. The Board adopts the Decision of the Deschutes County Hearings Officer in CU-04-97/RC-05-2, attached and incorporated by reference as Exhibit "B," Pages 1-28, as amended by Hearings Officer's Decision on Reconsideration, attached and incorporated by reference as Exhibit "B," page 29-37. DATED thize-�- day of —yK-#-tj 2005. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUN OREGON TOM DEWOLF, Chair Date of I" Reading: day of_ 2005. Date of 2 nd Reading: 4:1�3 �----aay of YKAI,-v , 2005. Record of Adoption Vote 0 Commissioner Yes No Abstained Excused Dennis R. Luke Tom DeWolf Michael M. Daly Effective date: day of 71LUX�, 2005. ATTEST: Recording Secretary Page 2 of 2 — ORDINANCE NO. 2005-015 (MAY 4,2005) EXHIBIT "A" 23.120.190. Watson/Generations Development Inc. In coniunction with gpproval of CU-04-97/RC-05-2, an exception to Statewide Planning Goal 3, Agricultural Lands, was taken to include a portion of a certain pLopejjy zoned Exclusive Farm Use Tumalo/Redmond/Bend Subzone (EFU-TRB). Reasons Justifying why the state poligy embodied in Goal 3 should not gpRly in this situation are set forth in Exhibit "B" to Ordinance 2005-015, which findings are incoMorated herein by reference. (Ord 2005-015 § 1, 2005) Page 1 of 1 - ORDINANCE NO. 2005-015 (MAY 4, 2005) Exhibit Of Page Ordinance DECISION OF DESCHUTES COUNTY HEARINGS OMCER FILE NUMBER: . CU -04-97 APPLICANT: HII�t Inc. Mark Vukanovich 2464 S.W. Glacier Place, Suite #I 10 Redmond, Oregon 97756 PROPERTY OWNERS: ATTORNEY: Hayden H. Watson P. 0. Box 42354 Portland, Oregon 97242 Generation Development Inc. P.O. Box 42354 Portland, Oregon 97242 Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97701 SURVEYOR: Randy Povey and Bill Bahrke Povey and Associates -Land Surveyors P.O. Box 131 338 S.W. 7th Street Redmond, Oregon 97756 ENGINEER: George Franklet, PE Anderson Engineering & Surveying, Inc. P.O. Box 419 852 S.W. l5th Street Redmond, Oregon 97756 3 14 IS NQ 00 to LO 6Z S -Z REQUEST: The applicant isrequesting approval of a conditional use permit and an exception to Goal 3 to extend S.W. 35th Street in Redmond, Oregon, from S.W. Obsidian Avenue to the existing southern terminus of S.W. 35th Street on land zoned &U-TRB. STAFF REVIEWER: Devin L. Hearing, Associate Planner HEARING DATE RECORD CLOSED: December 14, 2004 L APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Watson CU -04-97 I Exhibit Page of 2-7 I i Ordinance 1. Chapter 18.16, Exclusive Farm Use Zone * Section 18.16.030, Conditional Uses Permitted - High Value and Non - high Value Farmland 2. Chapter 18.116, Supplementary Provisions * Section 18.116.230, Standards for Class I and 11 Road Projects I 3. Chapter 18.128, Conditional Uses Section 18.128.015, General Standards Governing Conditional Uses B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Transportation Policy No. 5 C. Oregon Administrative Rules, Chapter 660 1. Division 4, Interpretation of Goal 2 Exception Process * Section 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals • Section 660-004-0015, Inclusion as Pail of the Plan • Section 660-04-018, Planning and Zoning for Exception Areas • Section 660-04-020, Goal 2, Part 13(c), Exception Requirements • Section 660-04-022, Reasons Necessary to Justify an Exception Under Goal 2, Part D(c) * Section 660-04-030, Notice and Adoption of an Exception 2. Division 12, Transportation Planning • Section 660-12-060, Plan and Land Use Regulation Amendments • Section 660-12-070, Exceptions for Transportation Improvements on Rural Lands D. Title 22 of the 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 IL FINDINGS OF FACT: A. Location: The subject property does not have an assigned address. It is identified as Watson CU -04-97 2 Tax Lot 2912 on Deschutes County Assessor's Map 15-13-17. The applicant proposes to dedicate and improve an extension of the existing S.W. 35thStrw in Redmond Oregon, on a portion of the subject property. The extension would -connectS.W. 351 Street from S.W. Obsidian Avenue to the existing southern terminus of S.W. 35th Street. The proposed road extension is listed in the City of Redmond Transportation System Plan (TSP) and would divide Tax Lot 2912 along the City of Redmond Urban Growth Boundary (UGB). The applicant is proposing that pail of the road extension be located outside but adjacent to the UGB to existing electric transmission lines and poles and so the south part of the road will align -with the existing portion of S.W. 35th Street located south of S.W. Obsidian Avenue. B. Zoning and Plan Designation: The subject parcel is in two zoning districts, one in Deschutes County and one in the City of Redmond. The western portion of the property is located outside the Redmond UGB and is zoned Exclusive Farm Use- Tumalo/Redmond/Bend Subzone (EFU-TRB). The eastern portion of the property is located within the Redmond city limits and is zoned General Residential - R4. The property also is zoned Airport Safety Combining Zone (AS) due to its proximity to the Redmond Airport. C. Site Desciiption: The entire subject property is 12 acres in size, irregular in shape, has relatively level topography and sparse vegetation, and is undeveloped except for an existing electric transmission facility including lines and poles owned by Central Electric Cooperative that generally runs along the boundary between the two zoning districts. A line ofjuniper trees runs roughly parallel to and east of the power lines. The property has no irrigation water rights. The eastern portion of the property zoned R4 has been approved by the City of Redmond for the development of a 74 -lot subdivision to be called "Obsidian Meadows." The western portion of the property zoned EFU-TRB is covered with sparse vegetation including scattered juniper trees and native brush and grasses. The property abuts S.W. Obsidian Avenue on the south. The existing intersection between S.W. Obsidian Avenue and S.W. 35h Streo is a thsee-way intersection located outside but adjacent to the Redmond UGB on land zoned EFU- TRB. The existing right-of-way for S.W. 35,h Street south of S.W. Obsidian Avenue is centered on the UGB fine. The record indicates this location was established through the city's previous approval of a subdivision located south of S.W. Obsidian Avenue. Both S.W. 35ffi Street and S.W. Obsidian Avenue are designated collector -streets on the county's and city's TSPs. D. Soils: According to the National Resource Conservation Service (NRCS) soil data in the record� the portion of the subject property on which the extended Street is proposed to be dedicated and improved consists entirely of Soil Unit 65A, Houstake'Sandy Lown, 0 to 3 percent slopes. This soil type is composed of 85% Houstake soils and similar inclusions, and 15% contrasting inclusions consisting of Stukel soils -on ridges, Redmond and Statz soils in swales, and rock outcrops. The Houstake -soil is well drained with a moderate permeability and an available water capacity of about 7 inches. This soil unit has a capability classification of III when irrigated and Vis when not irrigated, and is considered high value soil when irrigated. Watson CU -04-97 3 Exhibit Page of 37 Ordinance WO 0 Tax Lot 2912 on Deschutes County Assessor's Map 15-13-17. The applicant proposes to dedicate and improve an extension of the existing S.W. 35thStrw in Redmond Oregon, on a portion of the subject property. The extension would -connectS.W. 351 Street from S.W. Obsidian Avenue to the existing southern terminus of S.W. 35th Street. The proposed road extension is listed in the City of Redmond Transportation System Plan (TSP) and would divide Tax Lot 2912 along the City of Redmond Urban Growth Boundary (UGB). The applicant is proposing that pail of the road extension be located outside but adjacent to the UGB to existing electric transmission lines and poles and so the south part of the road will align -with the existing portion of S.W. 35th Street located south of S.W. Obsidian Avenue. B. Zoning and Plan Designation: The subject parcel is in two zoning districts, one in Deschutes County and one in the City of Redmond. The western portion of the property is located outside the Redmond UGB and is zoned Exclusive Farm Use- Tumalo/Redmond/Bend Subzone (EFU-TRB). The eastern portion of the property is located within the Redmond city limits and is zoned General Residential - R4. The property also is zoned Airport Safety Combining Zone (AS) due to its proximity to the Redmond Airport. C. Site Desciiption: The entire subject property is 12 acres in size, irregular in shape, has relatively level topography and sparse vegetation, and is undeveloped except for an existing electric transmission facility including lines and poles owned by Central Electric Cooperative that generally runs along the boundary between the two zoning districts. A line ofjuniper trees runs roughly parallel to and east of the power lines. The property has no irrigation water rights. The eastern portion of the property zoned R4 has been approved by the City of Redmond for the development of a 74 -lot subdivision to be called "Obsidian Meadows." The western portion of the property zoned EFU-TRB is covered with sparse vegetation including scattered juniper trees and native brush and grasses. The property abuts S.W. Obsidian Avenue on the south. The existing intersection between S.W. Obsidian Avenue and S.W. 35h Streo is a thsee-way intersection located outside but adjacent to the Redmond UGB on land zoned EFU- TRB. The existing right-of-way for S.W. 35,h Street south of S.W. Obsidian Avenue is centered on the UGB fine. The record indicates this location was established through the city's previous approval of a subdivision located south of S.W. Obsidian Avenue. Both S.W. 35ffi Street and S.W. Obsidian Avenue are designated collector -streets on the county's and city's TSPs. D. Soils: According to the National Resource Conservation Service (NRCS) soil data in the record� the portion of the subject property on which the extended Street is proposed to be dedicated and improved consists entirely of Soil Unit 65A, Houstake'Sandy Lown, 0 to 3 percent slopes. This soil type is composed of 85% Houstake soils and similar inclusions, and 15% contrasting inclusions consisting of Stukel soils -on ridges, Redmond and Statz soils in swales, and rock outcrops. The Houstake -soil is well drained with a moderate permeability and an available water capacity of about 7 inches. This soil unit has a capability classification of III when irrigated and Vis when not irrigated, and is considered high value soil when irrigated. Watson CU -04-97 3 .... .. ..... Exhibit 13' of 3-7 Page Ordinance Z-00-,51 D J E. Surrounding Zoning and Land Uses: Surrounding property to the north, east and southeast is located within the Redmond city limits, zoned R4, and developed with residences. Property to the west and southwest is outside the city limits and Redmond UGB, is zoned EFU-TRB, designated Agriculture on the county's comprehensive plan map, and is undeveloped. The eastern portion of the subject property zoned R4 has received tentative subdivision plat approval for a 74 -lot residential subdivision. The applicant's burden of proof states that because the entire subject property, including the portion zoned EFU-TRB, is a single legal parcel, both the city and the county must approve the final subdivision plat. F. Procedural History: This application was subm�itted on October 5, 2004 and was accepted by the county as complete on October 13, 2004. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 expires on March 14 2005. A public hearing on the application was held on December 14, 2004. At the hewing, the Hearings Officer received testimony and evidence and closed the evidentiary record. The applicant waived its right to submit final argument under ORS 197.763. As of the date of this decision there remain 28 days in the 150 -day period. G. Proposal: The applicant received approval of a tentative subdivision plat for the "Obsidian Meadows Subdivision" to be developed on the eastern portion of the subject property located within the Redmond City Limits and the R4 Zone. The new subdivision lots would be served by an extension of S.W. 35 Ib Street that would connect the existing segments of S.W. 35'h Street north and south of the subject property. These segments do not align with one another. Subdivision approval was conditioned on the applicant dedicating and improving the extension of S.W. 35th Street in a manner that aligns both ends of the existing S.W. 35th Street. Because the right-of-way for S.W. 351b Street south of S.W. Obsidian Avenue is located entirely outside the Redmond UGB, and because the existing CEC electric transmission facility is located within this existing right-of-way, the applicant proposes to adjust the road right-of-way and improve the road so that it avoids the power lines. The applicant included four alternative alignments for the extension of S.W. 35 Ih Street as attachments to the traffic impact study submitted to the City of Redmond in support of its application for tentative subdivision plat approval. The traffic study and diagrams of these alignments are included. in this record as Exhibit J to the applicant's burden of proof The applicant's engineer recommended that Alternative 3 be selected because it aligns the segments of S.W. 35d' Street, creates a properly aligned intersection between S.W. 35" Street and S.W. Obsidian Avenue, and it occupies the smallest amount of EFU-zoned land. H. Public/Private Agency Comments: The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and did not receive responses from any of these agencies. L 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 Watson CU -04-97 4 Exhibit Page Of Ordinance 2,205-0/1' located within 750 feet of the subject property for property located outside the Redmond UGB and zoned EFU, and within 250 feet of the subject property for property located within the Redmond UGB. The record indicates these notices were sent to 89 property owners. In addition, notice of the public hearing was published in the 'Tend 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 no letters from the public in response to these notices. In addition� no members of the public testified at the public hearing. I Lot of Record: The Staff Report states the subject property is a legal lot of record having been created as Parcel I of Partition Plat No. 1996-40 approved by the county in 1996. IIL CONCLUSIONS OF LAW: A. Title 18 of the Deschutes County Code, the Deschutes County Z . oning Ordinance 1. Chapter 18.16, Exclusive Farm Use Zones a. Section 18.16-030, Conditional Uses Permitted - High Value and Non -High Value Farmland The following uses may be allowed in the Exclusive Farm Use zones on either high value or non -high value farmland subject to applicable provisions of the Comprehensive Plan, Sections 18.16.040 and 18.16.050, and other applicable sections of this title: W. Roads, highways and other transportation facilities, and improvements not otherwise allowed under DCC 18.16, if an exception to Goal 3, Agricultural Lands, and to any other applicable goal is first granted under State law. Transportation uses and improvements may be authorized under conditions and standards as set forth in OAR 660- 012-0035 and OAR -012-0065. MDINGS: The applicant applied for conditional use approval under this paragraph. The Staff Report states, and the Hearings Officer agrees, that because the proposed street extension is a new road, it is not otherwise allowed in the EFU-TRB Zone. The applicant also submitted an application for an exception to Statewide Planning Goal 3. b. Section 18.16.040, Limitations on Conditional Uses A. Conditional uses permitted by DCC 18.16.030(F) through (DD) may be established subject to applicable provisions in Watson CU -04-97 5 Exhibit Page & of Ordinance DCC 18.128 and upon a finding by the Planning Director or Hearings Body that the proposed use: 1. Will not force a significant change in accepted farm or forest practices as defined in ORS 215.203(2)(c) on adjacent lands devoted to farm or forest uses; and 2. Will not significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use; and FINDINGS: As discussed in the Findings of Fact above, property to the north, east and south of the subject property is located within the Redmond city limits and is developed with urban residential uses. Adjacent property to the west is the part of the subject property and is zoned EFU-TRB. The record indicates this land is neither irrigated nor engaged in farm or forest uses. Therefore, the Hearings Officer concurs with staffs conclusion that there are no accepted farm or forest practices on adjacent lands devoted to farm use, and therefore the applicant's proposal satisfies these criteria. 3. That the actual site on which the use is to be located is the least suitable for the production of farm crops or livestock. FINDINGS: As discussed in the Findings of Fact above, the subject property does not have irrigation water rights, and without irrigation the predominant soil type on the subject property — Soil Unit 65A -- has a soil capability rating of Class V1. The soil information in the record indicates thatwithout irrigation this soil can be used only for limited dry land livestock grazing. The portion of the subject property proposed for the extension of S.W. 35h Street is adjacent to the Redmond city limits and is dominated by the existing CEC electric transmission lines and poles. The record indicates CEC's power line easements aflow it use this portion of the subject property for transmission as well as for maintenance vehicle traffic. The proposed extension of S.W. 35'h Street will follow roughly the same alignment as the maintenance road. For these reasons, the Hearings Officer finds the site proposed for the street extension is the least suitable portion of the subject property for the production of farm crops and livestock, and therefore the applicant's proposal.satisfies this criterion. 2. Chapter 18.116, Supplementary Provisions a. Section 18.116.230, Standards for Class I and 19 Road Projects Class I and 11 street projects shall be reviewed against the applicable comprehensive plan meet the following criteria: Transportation Plan element, shall be consistent with applicable road standards and shall meet the following criteria: Watson CU -04-97 6 Exhibit 8 ---- Page of ' 2 Ordinance LDO!�- 0/ A. Compatibility with existing land use and social patterns, including noise generation, safety, safety hazards (eg., children in a residential area) and zoning. FINDINGS: The proposed extension of S.W. 35h Street will provide access to the approved Obsidian Meadows Subdivision, will allow the existing segments of the street north and south of the subject property to properly AM and will implement the street grid pattern for this part of Redmond identified on the county's and city's TSPs. The proposed alignment also will avoid CEC's electric transmission facility. As a condition of approval the applicant will be required to dedicate and improve the street extension in compliance with the city's standards and specifications for a major collector street — the designation of S.W. 35h Street in this area. Those specifications call for 60 feet of right-of-way, 36 feet of paved surface, and curbs and sidewalks on both sides of the street. For these reasons, the Hearings Officer finds, the proposed street project will be compatible with the existing land use and social patterns and will not cause safety hazards. I further find the proposed street project will be compatible with surrounding zoning because it will be adjacent to urban residential zoning and, as discussed in the findings below, the applicant has demonstrated the proposed street extension satisfies the criteria for an exception to Goal 3. Therefore, I find the applicant's proposal satis"fies this criterion. B. Environmental impacts, including hazards imposed on and by wildlife (eg., migration or water use patterns). FINDINGS: The record indicates the subject property has not been identified on the county's comprehensive plan or zoning ordinance as protected wrildlife habitat or migration corridor. As discussed above, the proposed street extension would create an extension, of S.W. 35th Street identified on both the county's and city's TSPs. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. C. Retention of scenic quality, including tree preservation. FINDINGS: The record indicates there is a line of juniper trees running parallel to the existing electric transmission line that must be removed to construct the proposed street extension. However, the Hearings Officer finds that given the impact of the existing transmission facility itself on scenic values, the removal of these trees will not have a significant impact on the scenic quality of the area, and therefore this criterion is satisfied. D. Means to improve the safety and function of the facility, including surrounding zoning, access control, and terrain modifications. FINDINGS: The proposed street extension would connect and properly a4n two existing 1 Although the proposed street extension will be located outside the Redmond city limits and UGB, the applicant's burden of proof states the street will be built to the city's street standards and specifications. The burden of proof states the city's standards exceed the county's standards for -such facilities. Watson CU -04-97 7 Exhibit 13 of -3 7 Page Ordinance street segments, provide access to the approved Obsidian Meadows Subdivision, and provide transportation connectivity in this part of Redmond. Therefore, the very purpose of the street project is to improve the safety and function of the street. For this reason, the Hearings Officer finds the applicant's proposal satisfies this criterion. E. In the case of roadways where modification results in a change of traffic types or density, impacts on route safety, land use patterns, and nonmotorized/pedestrian trafric. FINDINGS: The proposed street extension is identified on both the county's and city's TSPs. The record indicates S.W. 35th Street is a designated collector street in this area. Therefore, the street is intended to handle moderately heavy traffic and its construction will not change or increase traffic types or density. The proposal will provide street connectivity -as well as access to the adjacent Obsidian Meadows Subdivision. As discussed above, the applicant will be required to dedicate and improve the street extension to the city's standards and specifications for major collector streets including sidewalks for pedestrians. For these reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. F. Consideration of the potential development impact created by the facility. FINDINGS: The proposed street extension is identified on both the county's andcity's TSPs. The record indicates S.W. 35'h Street is a designated collector street in this area. Therefore, the proposed street project will facilitate the orderly development of both the city's and county's road systems, as well as urban residential development within the city. The proposed extension of S.W. 356 Street %ill not allow urban development outside the Redmond city limits or UGB. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. G. Cost-effectiveness. FINDINGS: The applicant has proposed to construct the extension of S.W. 35'h Street at a location that avoids interference with the existing CEC electric transmission facility while still aligning the existing segments of the street located north and south of the sub ect property. The record indicates the transmission facility is located within permanent easements over which neither the city nor county has control. The applicant's burden of proof contains inconsistent statements concerning the applicant's authority to relocate the power poles and lines within the easements. Footnote I on page 5 of the bur -den of proof states the applicant can move the power poles and lines within the easement without CEC's permission. However, on page 10 the burden of proof states: "Yhe applicant has been advised that CEC is unwilling to move these lines. As the lines are located in easements, the applicant cannot require CEC 10 move the lines. #0 The Hearings Officer finds it is highly unlikely CECs easements on the subject property Watson CU -04-97 8 Exhibit 8 Page �L�_o�f Ordinance )S,- 0 would allow the applicant to move this transmission facility without CEC's approval. And in any case, there is no question the cost of relocating the transmJission facility would be prohibitive. In addition, moving the street alignment further to the east would r-equire acquisition of right-of-way within existing residential development which would be both costly and disruptive. For these reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. 3. Chapter 18.128, Conditional Uses a. Section 18.128.015, General Standards Governing Conditional Uses Except for those conditional uses permitting individuil single- family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of this Chapter. - A. The site under consideration shall be determined to be suitable for the proposed use bated on the following factors: 1. Site, design and operating characteristics of the use: FINDINGS: The Hearings Officer finds this section applies to the applicant's proposal because it does not involve a conditional use permit for a single-family dwelling. The purposes of the proposed street extension are to provide access to the Obsidian Meadows Subdivision, to align the two existing segments of S.W. 35h 'Stmet, and to provide street connectivity in this part of Redmond, all without disrupting the -existing electric transmission facility or existing and approved urban residential development. The nature of the proposal requires a specific location to provide for proper design and safe operation of the proposed street extension and connecting streets. The record indicates S.W. 351h 'Street is a designated collector street in this area. A collector street is designed to handle moderately heavy traffic, and therefore the proper alignment of unconnected segments iscritical to its safe function. For these reasons, the Hearings Officer finds the site for the proposed street extension is suitable considering the site, design and operating characteristics of the project. 2. Adequacy of transportation access to the site; and FINDINGS: The purpose of the proposed street extension is to provide adequate access to the Obsidian Meadows Subdivision and street connectivity in this part of Redmond. The applicant's proposal would create the safest and most efficient alignment at the intersection of S.W. 35th Street and S.W. Obsidian Avenue. Therefore, the Hearings Officer finds the site proposed for the street extension is suitable considering the adequacy of transportation aems. 3. The natural and physical features of the site, including, but not limited to, -general topography, natural hazards and natural resource values. Watson CU -04-97 9 11xhibit 13 Page /0 of Ordinance ZW�5- 0 /-5 FINDINGS: The record indicates there are not natural hazards on the subject property or the site proposed for the street extension. The record also indicates the proposed street alignment has relatively level topography. There are no natural resource values requiring protection other than the property's value for agricultural production, which, as discussed above, is quite limited due to the lack of irrigation water rights and the poor capability of the soil on the property without irrigation. The proposed alignment would place the street extension as close as possible to the adjacent urban residential development, thus occupying the minimum amount of EFU-zoned land. For these reasons, the Hearings Officer finds the site proposed for the street extension is suitable considering the natural and physical features of the site. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in (A) above. FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the proposed street extension will be compatible with the existing and approved urban residential development to the east. In fact, the street extension is required to facilitate this development. The proposal also will be compatible with adjacent EFU-zoned land because it currently is not engaged in farm use, and without irrigation can only be put to low -intensity agricultural use consisting of dry land grazing. Therefore, the Hearings Officer finds the proposed street extension satisfies this criterion. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDINGS: As discussed in the findings below, the Hearings Officer has found approval of the conditional use permit will be subject to conditions of approval calculated to assure that the street extension is dedicated and improved in the alignment approved by the City of Redmond and to the city's standards and specifications for major collector streets. B. Oregon Administrative Rules, Chapter 660 Division 4 - Interpretation of Goal 2 Exception Process: OAR 660-04-010, Application of the Goal 2 Process to Certain Goals; (1) The exceptions process is not applicable to Statewide Goal I and Goal 2. 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 not limited to: (a) Goal 3 "Agricultural Lands," however, an exception to Goal 3 "Agricultural Lands" is not required for Watson CU -04-97 10 13 Exhibit of 7 Page Ordinance any of the farm or nonfarm uses permitted in an exclusive farm use (EFU) zone under ORS 215. FINDINGS: The applicant is seeking approval of an exception to Goal 3 to allow the construction of a public street on land zoned EFU-TRB- The proposed street is not a nonfarm use specifically allowed by ORS Chapter 215. b. OAR 660-004-0015, 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 11(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: The Hearings Officer finds this decision includes the required findings and statement of reasons demonstrating the standards for the requested goal exception have been met. These findings and reasons will be adopted as part of the county's comprehensive plan. C. OAR 660-004-0018, Planning andZoning for Exception Areas (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exceptions. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses, densities, public facilities and services, or activities other than those recognized or justified by the applicable exception. Physically developed or irrevocably committed exceptions under OAR 660-004-0025 and 660-004-0028 are intended to recognize and allow continuation of existing types of development in the exception area. Adoption of plan and zoning provisions that would allow changes in existing types of uses, densities, or services requires the application of the standards outlined in this rule. FINDINGS: The Staff Report states this section of the administrative rules does not apply to the applicant's proposed goal exception because the proposed street extension does not require a plan amendment. The Hearings Officer concurs. Because the stireet extension is included in the city's and county's TSPs, the proposed exception will implement the plan. Moreover, the exception will not change the plan designation or zoning of the subject property. It will continue to be zoned EFU-TRB. However, an amendment to the plan is necessary to incorporate in the plan the findings and statement of reasons supporting the approved exception for the new street segment on EFU-zoned land. Watson CU -04-97 I I Exhibit 12- -2 7 Page of Ordinance Z005- 0�5 d. OAR 660-004-0020, Goal 2, Part 11(c), Exception Requirements (1) If a jurisdiction determines there are reasons consistent with OAR 660-004-0022 to use resource lands for uses not allowed by the applicable Goal or to allow public facilities or services not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. FINDINGS: As discussed above, the applicant's proposed exception to Goal 3 for a street extension on EFU-zoned land will be reflected in the county's comprehensive plan. (2) The four factors in Goal 2 Part 11(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:" The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land; FINDING: The purpose of Goal 3 is "to preserve and maintain agricultural lands." Certain non-agricultural uses are permitted on EFU-zoned land under ORS 215.283, such as improvement or reconstruction of an existing road or the construction of additional lanes. However, under ORS 215.283(3), new roads may be established only with an exception to Goal 3. As discussed above, the proposed street extension -is identified for future development in both the county's and city's TSPs, but must be constructed on EFU-zoned land to avoid displacing the existing CEC electric transmission facility. In addition, the city required the applicant to construct the proposed extension of S.W. 351 Street in order to serve the Obsidian Meadows Subdivision, to properly align the existing segments of the street, and to provide street connectivity in this part of Redmond. The Hearings Officer finds the proposed alignment for the street extension is location specific because of the existing street alignments and existing and platted urban residential development in the area. As discussed above, the subject property does not have irrigation water rights and is not engaged in farm use. It consists primarily of a single soil type that without irrigation has a low agricultural capability. The proposed street extension would be located on the extreme eastern side of the EFU-zoned portion of the subject property, placed as close as possible to the Redmond city limits and UGB in order to avoid the existing electric transmission facility and to occupy as little resource land as possible. As also discussed above, the Hearings Officer has found it would be prohibitively expensive, as well as disruptive, either to relocate the transmission facility or to construct the S.W. 35h Street extension within the city limits and UGB on land already developed or platted for urban residences. Watson CU -04-97 12 Exhibit Page 13 of 32 Ordinance 2-2-95- 01 For the foregoing reasons, the Hearings Officer finds the reasons for constructing the proposed street extension on the proposed alignment on EFU-zoned land, coupled With the low agricultural productivity of the subject property and the lack of farm use, justify not applying the policy in Goal 3 to the portion of the subject property on which the street extension would be built. (b) "Areas which do not require a new exception cannot reasonably accommodate the use:" FINDINGS: As discussed above, the Hearings Officer has found the proposed street extension is location specific because it must connect the existing segments of S.W. 35' Street to the north and south and provide access to the Obsidian Meadows SubdiVision. The Hearings Officer finds that while the street extension theoretically could be constructed on land within the Redmond city limits and UGB that does not require an exception, that land cannot "reasonably accommodate" the street extension. That is because it is already platted or developed for urban residential development, requiring the purchase or condemnation of land for the street. In addition, the land already is developed with an existing electric transmission facility that also cannot reasonably be relocated. Finally, I concur with stafrs conclusion that it also would not be reasonable to accommodate the extension of S.W.35th Street within the city limits by rerouting existing S.W. 35th Street traffic onto S.W. 34th Street. The record indicates S.W. 34h Street is classified as a local street, and therefore routing collector street traffic onto S.W. 34'h Street would violate the city's and county's TSF`s by effectively converting a local street to a collector street and by failing to provide a properly aligned four- way intersection between S.W. 35th Street and S.W. Obsidian Avenue. (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified; FINDINGS: Attached to the applicant's burden of proof statement as Exhibits 0 and P are two drawings showing two options that do not require an exception. These alternatives are: 1) alignment of S.W. 35th Street along the route of the existing electric transmission facility, creating an off -set intersection alignment with S.W. Obsidian Avenue; and 2) funneling traffic onto S.W. 34th Street in violation of the TSPs. For the reasons set forth in the findings above, incorporated by reference herein, the Hearings Officer finds these alternatives are not reasonable, and there are in fact no reasonable alternatives for the proposed street extension. (B) To show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining Watson CU -04-97 13 Exhibit Page of Ordinance that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresourcc uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? (iv) Can the proposed use be reasonably accommodated without the provision of a proposed public facility or service? If not, why not? FINDINGS: As discussed in the findings above, incorporated by reference herein, the proposed street extension is locationally dependent. It cannot reasonably be accommodated on lands either inside or outside the UGB that are not in close proximity to the existing sections of S.W. 35'h Street nonh and south of the subject property. The alignment proposed by the applicant is dictated by the following considerations: 1) the city's subdivision approval condition requiring the extension of S.W. 35th Street to serve the Obsidian Meadows Subdivision; 2) the city's requirement that the existing segments of S.W. 35d' Street be aligned with one another; 3) the city's requirement that S.W. 35h Street and S.W. Obsidian Avenue intersect at a properly aligned intersection; 4) avoiding interference with or relocation of the existing CEC electric transmission facility; and 5) avoiding condemning already platted or developed urban residential lots to accommodate the street extension. The record indicates there are no irrevocably committed exception lands or lands within the UGB on which the street extension could be built that address these considerations. Finally, the proposed use is a public facility and does not require the provision of additional public facilities or services. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. Watson CU -04-97 14 Exhibit Page of Ordinance (C) Ibis alternative areas standard can be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there arc specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites arc specifically described with facts to support the assertion that the sites are more reason ' able by another party during the local exceptions proceeding. FINDINGS: No sites within the Redmond UGB other than those identified by the applicant and discussed above could accommodate an extension of S.W. 35thStreet that would properly align the street segments and the intersection with S.W. Obsidian Avenue. As discussed in the findings below, incorporated by reference herein, the Hearings Officer has found there also are no alternatives on other resource lands that can reasonably accommodate the applicant's proposal. Therefore, I find the applicant's proposal satisfies thiscriterion. 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 areas 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 Watson CU -04-97 15 Exhibit Page of Ordinance 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; I FINDINGS: As discussed in the findings above, incorporated by reference herein, there are no alternate locations for the proposed street extension that would requ . ire a -goal exception that would accommodate the use. The applicant's proposed alignment would not disturb the existing electric transmission facility or the platted and developed urban residential uses in the adjacent subdivisions, and would occupy the minimum amount of EFU-zoned land. Moreover, the EFU-zoned portion of the subject property on which the applicant proposes to site the street extension has no irrigation water and low agricultural soil capability, which is undoubtedly why the property is not engaged in farm use. The only potential farm use of this unirrigated soil is limited dry land grazing. For these reasons, the Hearings Officer finds extending S.W. 35'h Street on the applicant's proposed alignment will have significantly less adverse impacts than would typically result from the street extension being located on other areas requiring a goal exception. Therefore, I find the applicant's proposal satisfies this criterion. d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resources and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. FINDINGS: As discussed in the findings above, the proposed street extension alignment is located along the boundary of the Redmond UGB and would provide street access and connectivity to existing urban residential development that has been platted and developed on adjacent property to the north, east and southeast. The proposed street extension is included on both the city's and county's TSPs. Therefore, the Hearings Officer finds the applicant's Watson CU -04-97 16 LXhibit 13 Page of 3 7 Ordinance proposal will be compatible with adjacent urban development. The Staff Report states, and I concur, that the street extension also will act as a buffer between urban and rural agricultural lands and uses along the UGB. However, as also discussed above, the EFU-zoned portion of the subject property is not engaged in farm use, has low capability for agricultural production, and without irrigation water could only be used for limited dry land grazing. Therefore, I find the proposed street extension along the extreme eastern boundary of the EFU-zoned land also will be compatible with existing and potential uses on the adjacent EFU-zoned land. (3) If the exception involves more than one area for which the 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, ind keyed to the appropriate findings. FINDINGS: The Hearings Officer finds this criterion does not apply because the applicant proposes only one exception area. (4) For the expansion of an unincorporated community defined under OAR 660-022-0010, or for an urban unincorporated community pursuant to OAR 660-022-0040(2), The exception requirements of subsections (2)(b), (c) and (d) of this rule are modified to also include the following: FINDINGS: The Hearings Officer finds this criterion does not apply because the applicant is not proposing to expand an unincorporated community or urban unincorporated community. e. OAR 660-04-022, Goal 2, Part B(c), Exception Requirements An exception under Goal 2, Part B(c) can be taken for any use not allowed by the applicable goal(s). The types of reasons that may or may not be used to justify certain types of uses not allowed on resource lands are set forth in the following sections of this rule: (1) For uses not specifically provided for in subsequent sections of this rule or OAR 660, Division 14, the reasons shall justify why the state policy embodied in the applicable goals should not apply, Such reasons include but are not limited to the following: (a) There is a demonstrated need for the proposed use or activity, based on one or more of the requirements of Statewide Goals 3 to 19; and either FINDINGS: The Hearings Officer finds the applicant has met its burden of demonstrating a need for the proposed street extension from: 1) the provisions the city's andcounty's TSPs that identify the need for the proposed extension of S.W. 35th Street to establish a well Watson CU -04-97 17 3 Exhibit Page Z 9 of 3 7 Ordinance Z001, integrated and safe street grid network; and 2) the city's inclusion in its approval of the Obsidian Meadows Subdivision of a condition requiring the applicant to construct the extension of S.W. 35th Street to provide subdivision access and connectivity with the surrounding street network- The city's and county's TSPs implement Goal 12, the purpose of which is "to provide and encourage a safe, convenient and economic transportation system. - In addition, the applicant's proposal is consistent with the following Goal 12 guidelines: A. Planning 2. Transportation systems, to the fullest extent possible, should be planned to utilize existing facilities and right-of-way within the state provided that use is not inconsistent with the environmental, energy, land -use, economic or social policies of the state. 3. No major transportation facility should be planned or developed outside urban boundaries on Class I or 11 agricultural land, as dcrined by the US Soil Conservation Service unless no feasible alternative exists. 4. Major transportation facilities should avoid dividing existing economic farm units and urban social units unless no feasible alternative exists. Approval of the goal exception will allow for safe, continued use of the existing S.W. 35th Street right-of-way and its logical extension. In addition, as discussed above, the subject property does not have irrigation water rights, its soil is classified as Class VI, and it is not engaged in farm use. Therefore, the proposed street extension will not divide an existing economic farm unit. Finally, the proposed street extension will avoid division of urban social units by being located outside the UGB rather than 'within existing urban residential development. For these reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. (b) A resource upon which the proposed use or activity is dependent can be reasonably obtained only at the proposed exception site and the use or activity requires a location near the resource. An exception based on this subsection must include an analysis of the market area to be served by the proposed use or activity. That analysis must demonstrate that the proposed exception site� is the only one within that market area at which the resource depended can reasonably be obtained; or FINDINGS: The Hearings Officer finds this criterion does not apply because the proposed street extension is neither resource dependent nor a market-based activity. Watson CU -04-97 is Exhibit Page of 3 7 Ordinance 0/.!� (c) The proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site. FINDINGS: As discussed in the findings above, the proposed street extension is locationafly dependent because its purpose is to connect existmig segments of S.W. 35h Street, to provide a properly aligned intersection between S.W. 35'h Street and S.W. Obsidian Avenue, and to avoid the existing CEC electric transmission facility. The proposed S.W. 35th Street extension is identified in the city's and county's TSPs. The street is classified as a collector street in this area. The city's and county's TSPs identify specific locations within the overall transportation plan for collectors so that they can most effectively achieve a functional street network and the proper flow of traffic within the urban area. For these reasons, the Heajings Oifficer finds the applicant's proposal satisfies this criterion. 2. OAR 660, Division 12, Transportation Planning Rule a. OAR 660-12-060, Plan and Land Use Regulation Amendments (1) Amendments to functional plans, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. This shall be accomplished by either. (a) Limiting allowed land uses to be consistent with the planned function, capacity, and performance standards of the transportation facility; (b) Amending the TSP to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes; or (d) Amending the TSP to modify the planned function, capacity and performance standards, as needed, to accept -greater motor vehicle congestion to promote mixed use, Watson CU -04-97 19 Exhibit /3 Page -ZX) of -?7 Ordinance 24,005- 0/47 pedestrian friendly development where multimodal travel choices are provided. (2) A plan or land use regulati on amendment significantly affects a transportation ficility if it: (a) Changes the functional classification of an existing or planned transportation facility; (b) Changes standards implenienting 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 Performance standards of the facility'below the minimum acceptable level identified in the TSP. FINDINGS: Although the applicant is not applying for a plan amendment, the Hearings Officer finds the requested goal exception, if approved, constitutes an amendment to the county's comprehensive plan. Therefore, I find this administrative rule applies to the applicant's proposal. The Staff Report states, and I concur, that proposed goal exception will not significantly affect a transportation facility. That is because the proposed exception is to allow the construction of a street extension that will implement the city's and county's TSPs by constructing a missing segment of planned collector street. The proposed alignment will not change the functional classification of the existing or planned facility. The functional classification of S.W. 35th Street mill remain a collector. No changes to functional classification standards are proposed in this application. The proposed goal exception will not increase the level of travel or access to S.W. 35th Street beyond that contemplated in the TSPs. Finally, the proposed goal exception will not reduce performance standards of the collector street below the minimum acceptable level identified in the TSPs. The street extension will be constructed to the city's standards and specifications for major collectors which are designed to handle moderately heavy traffic. (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 record indicates the applicant's conditional use permit and goal exception applications have been reviewed through coordination between the county and the City of Redmond, therefore satisfying this criterion. Watson CU -04-97 20 Ex hibit 13 Page Z-/ of 3 7 Ordinance A b. OAR 660-12-070, Exceptions for Transportation Improvements on Rural Land (1) Transportation facilities and improvements which do not meet the requirements of OAR 660-012-0065 require an exception to be sited on rural lands. FINDINGS: OAR -660-012-0065 describes the categories of transportation improvements on rural land that.do not require a goal exception. The Hearings Officer finds the applicant's proposal does not fall within any of these categories. Therefore an exception to Goal 3 is required. (2) Where an exception to Goals 3, 4, 11, or 14 is required, in addressing Goal 2, Part U(c), the exception shall be taken pursuant to ORS 197.732(l)(c), Goal 2, OAR chapter 660, division 4 and this division. ' FINDINGS: The proposal's compliance with Goal 2 and its administrative rules is discussed in detail in the findings above. The proposal's compliance with ORS 197.732(l)(c) is discussed in the findings below. 3) An exception adopted as part of a TSP or refinement plan shall, at a minimum, decide need, mode, function and general location for the proposed facility or improvement: FINDINGS: The applicant's proposed exception is not being adopted as part of the city's or county's TSP. As discussed above, the proposed extension of S.W. 35hStreet is included in the TSPs. The proposed exception will allow this transportation facility to be constructed as planned in the TSPs. (4) To address Goal 2, Part 11(c)(1) the exception shall provide reasons justifying why the state policy in the applicable goals should not apply. Further, the exception shall demonstrate that there is a transportation need identified consistent with the requirements of OAR 660-012-0030 which cannot reasonably be accommodated through one or a combination of the following measures not requiring an exception: (a) Alternative modes of transportation; (b) Traffic management measures; and (c) Improvements to existing transportation facilities. FINDINGS: The city's TSP identifies a need to construct S.W. 35th Street as 8 COMMOT Watson CU -04-97 21 Exhibit 13 Page z Z- of 37 DAD Ordinance 24 0 J-5 street and to connect the existing segments of the street through the proposed extension. Therefore, the proposed alignment was anticipated and planned in the TSP * To achieve correct street alignment where S.W. 35h Street crosses S.W. Obsidian Avenue, to connect the existing segments of S.W. 35h Street, and to avoid relocating the existing CEC electric transmission facility, the applicant has proposed to construct the street extension just outside the Redmond UGB on a small amount of EFU-zoned land. As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found the proposed street extension, and the need it addresses, are locationally dependent and therefore cannot be accommodated within the UGB or on other lands that do not require a goal exception. Moreover, I find alternative modes of transportation, traffic management measures or improvements to existing transportation facilities cannot meet the identified need for the construction of S.W. 35th Street, a designated collector and an essential component of the city's street network. For these reasons, I find the applicant's proposal satisfies this,criterion. (5) To address Goal 2, Part 11(c)(2) the exception shafl demonstrate that non -exception locations cannot reasonably accommodate the proposed transportation improvement or facility. FINDINGS: As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant has met its burden of demonstrating that locations that do not require an exception cannot reasonably accommodate the proposed transportation improvement. Therefore, I find the applicant's proposal satisfies this criterion. (6) To determine the reasonableness of alternatives to an exception under sections (4) and (5) of this rule, cost, operational feasibility, economic dislocation and other relevant factors shall be addressed. The thresholds chosen to judge whether an alternative method or location cannot reasonably accommodate the proposed transportation need or facility must be justified in the exception. FINDINGS: As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found there are no alternatives that reasonably can accommodate the proposed street extension. Each of the individual evaluation factors identified in this section is addressed again in the findings below. 1. Cost. The Hearings Officer finds the cost of constructing the extension of S.W. 35th Street on lands that do not require a goal exception would be prohibitive. As discussed in the findings above, an afignment within the UGB would require acquisition of right-of-way that is already occupied either by the existing CEC electric transmission facility, or by platted or developed urban residential development. Moreover, moving the alignment into the UGB would create an offset intersection that does not comply with the city's or county's TSPs and would result in a less safe intersection, potentially increasing costs to the public. Approval of the proposed exception would avoid these costs. Watson CU -04-97 22 Exhibit Page 03 of Ordinance 2. Economic Dislocation. Placing the extension of S.W. 35h 'Street within the Redmond UGB would create significant economic dislocation, either through the required relocation of the existing CEC electric transmission facility or through the dislocation of residents in developed subdivisions whose property must be acquired or condemned for right-of-way. Approval of the goal exception would avoid this dislocation. 3. Operational Feasibility. Placing the S.W. 356 Street extension within the UGB would negatively affect the operational feasibility of the street by creating an offset intersection at S.W. Obsidian Avenue not complying with the city's and county's TSP. The applicant's proposed exception would allow an aligned intersection. 4. Saft. Placing the S.W. 35h Street extension within the UGB also would �ose sa&ty hazards by creating an offset intersection. The Hearings Officer finds the applicant's proposed alignment provides the safest alternative for connecting the street segments and aligning the intersection of S.W. 35h Street and S.W. Obsidian Avenue. For these reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. (7) To address Goal 2, Part H(c)(3), the exception shall: (a) Compare the economic, social, environmental and energy consequences of the proposed location and other alternative locations requiring exceptions; (b) Determine whether the net adverse impacts associated with the proposed exception site are significantly more adverse than the net impacts from other locations which would also require an exception. A proposed exception location would fail to meet this requirement only if the affected local government concludes that the impacts associated with it arc significantly more adverse than the other identified exception sites; (c) The evaluation of the consequences of general locations or corridors need not be site-spccific, but may be generalized consistent with the requirements of section (3) of this rule. FINDINGS: As discussed above, the Hearings Officer has found there are no alternatives requiring an exception that can meet the identified need for an extension of S.W. 35 1b 'Street and that would connect all street segments and provides a properly aligned intersection with S.W. Obsidian Avenue. Therefore, I find I need not conduct an ESEE analysis of alternatives, or evaluate the relative adverse impacts between the proposed extension and alternatives. (8) To address Goal 2, Part B(c)(4), the exception shall: Watson CU -04-97 23 Exhibit Page of 3 7 o Ordinance Z, (a) '" Descri , be 'the' adiers'C cffects that the proposed transportation improvement is likely to have on the surrounding rural lands and land uses, including increased traffic and pressure for nonfarm or highway oriented development on areas made more accessible by the transportation improvement; FINDINGS: As discussed in the findings above, land adjoininig the proposed street extension alignment is the EFU-zoned part of the subject property. It does not have irrigation water, is composed of a soil type that has low agricultural capability without irrigation, and is not engaged in farm use. The record indicates the nearest EFU-zoned land beyond the subject property is located to the southwest across S.W. Obsidian Avenue. For these reasons, the Hearings Officer finds the proposed street extension will not have adverse effects on agriculture on surrounding lands. I concur with stafrs conclusion that the proposed street extension in fact will provide a buffer between urban residential and rural and agricultural uses. While the proposed street extension will make certain areas within the city more accessible, that is the purpose of the proposed facility. And in any case, I find construction of the proposed street extension will not increase traffic or pressure for nonfarm or highway oriented development. That is because S.W. 35h Street is a designated collector street designed to handle moderately heavy traffic, the proposed exception is for roadway purposes only and will not result in a rezoning of EFU-zoned land to another zone, and consequently nonfarm uses will not be created or encouraged by the proposed exception. For these reasons, I find the applicant's proposal satisfies this criterion. (b) Demonstrate how the proposed transportation improvement is compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts; FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the proposed street extension will be compatible with adjacent urban residential and rural uses. The proposed extension will connect existing segments of S.W. 35h Street, a designated collector identified on the city's and county's TSPs as necessary to provide a functioning street grid system in this part of Redmond. In addition, construction of this street extension was required by the city as a condition of approval for the Obsidian Meadows Subdivision. With respect to adjacent rural land outside the Redmond UGB, I have found the proposed street extension will not interfere with agricultural uses on surrounding land, and will provide a buffer between urban residential and rural agricultural lands should the subject property ever be engaged in low -intensity farm use. For these reasons, I find the applicant's proposal satisfies this criterion. (c) Adopt as part of the exception, facility design and land use measures which minimize accessibility of rural lands from the proposed transportation facility or improvement and support continued rural use of surrounding lands. Watson CU -04-97 24 Exhibit 13 Page of 3 7 Ordinance Z -M -l - FINDINGS: The record indicates that in general the county limits access to collector streets, and specifically controls access to collector streets through the issuance of access permits. Therefore the county can exercise control over access to S.W. 35 1h Street from adjacent EFU- zoned land. The Staff Report states, and the Hearings Officer concurs, that the access permit process wfll adequately minimize access to adjacent EFU-zoned property from the proposed street extension. C. Oregon Revised Statutes 1. ORS Chapter 197, Comprehensive Land Use Planning Coordination 2. ORS 197.732, Goal exceptions; criteria; rules; review. (1) A local government may adopt an exception to a goal if. - (a) The land subject to * the exception is physically developed to the extent that it is no longer available for uses allowed by the applicable goal; (b) The land subject * to the exception is irrevocably committed as descnibed by Land Conservation and Development Commission rule to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable; or (c) The following standards are met: (A) Reasons justify why the state policy embodied in the applicable goals should not apply; (B) Areas which do not require a new exception cannot reasonably accommodate the use; (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 areas requiring a goal exception other than the proposed site; and (D) The proposed uses arc compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. Watson CU -04-97 25 Exhibit Page z/- of 3 7 Ordinance Z -025--04S (2) "Compatible," as used in subsection (1)(c)(D) of this section, is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. (3) The commission shall adopt rules establishing: (a) Under what circumstances particular reasons way or may not be used to justify an exception under subsection (1)(c)(A) of this section; and (b) Which uses allowed by the applicable goal must be found impracticable under subsection (1) of this section. I FINDINGS: The applicant has proposed an exception to Goal 3 under the "reasone' standard. As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant has demonstrated compliance with the criteria. in the administrative rules implementing the statutory "reasons" exception standard. Therefore, I find the applicant also has demonstrated compliance with the provisions of this statute. (4) A local government approving or denying a proposed exception shall set forth findings of fact and a statement of reasons which demonstrate that the standards of subsection (1) of this section have or have not been met. FINDINGS: The Hearings Officer finds that if the Board of County Commissioners (13oard) follows my recommendation to approve the proposed exception, it Will adopt findings of fact and a statement of reasons justifying the approval, therefore satisfying this requirement. (5) 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. FINDINGS: The record indicates the public hearing notice specifically identified the applicant's request for an exception to Goal 3, therefore satisfying this requirement. (6) Upon review of a decision approving or denying an exception: (a) The board or the commission shall be bound by any finding of fact for which there is substantial evidence in the record of the local government proceedings resulting in approval or denial of the exception; (b) The board upon petition, or the commission, shall determine whether the local -government's findings Watson CU -04-97 26 Exhibit Page of 37 Ordinance and reasons demonstrate that the standards of subsection (1) of this section have or have not been met; and (c) The board or commission shall adopt a clear statement of reasons which sets forth the basis for the determination that the standards of subsection (1) of this section have or have not been met. FINDINGS: These sections establish procedures applicable to review of this decision. 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 Amendment and Zone Change (C) Plan amendments and zone changes requiring an exception to the goals or concerning lands designated for forest or agricultural use shall be heard de novo before the Board of County Commissioners i without the necessity of filing an appeal, regardless of the determination of the Hearings Officer of Planning Commission. Such hearing before the Board shall otherwise be subject to the same procedures as an appeal to the Board under DCC Tide 22. (D) Notwithstanding DCC 22.28.030(C), when a plan amendment subject to a DCC 22.28.030(C) hearing before the Board of County Commissioners has been consolidated for hearing before the Hearings Officer with a zone change or other permit application not requiring a hearing before the Board under DCC 22.28.030(C), any party wishing to obtain review of the Hearings Officer's decision on any of those other applications shall file an appeal. The plan amendment shall be heard by the Board consolidated with the appeal of those other applications. FINDINGS: As discussed in the findings above, although the applicant did not submit an application for a plan amendment, the proposed exception to Goal 3 will amend the plan concerning land designated for agricultural use. Therefore, the Hearings Officer finds the Board is required to consider the proposed goal exception at a de novo hearing. However, in the absence of an appeal from my approval of the conditional use permit, the Board is not required to review the conditional use permit. Watson CU -04-97 27 Exhibit 1! Page of 72 Ordinance Z4a 95--n I IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby RECOMM[ENDS APPROVAL OF the applicant's proposed exception to Statewide Land Use Planning Goal 3 to extend S.W. 35th Street in Redmond, Oregon, from S.W. Obsidian Avenue to the existing southern terminus of S.W. 35th Street on land zoned EFU-TRB, SUBJECT TO THE FOLLOWING CONDITION OF APPROVAL: The applicant/owner shall submit to the Deschutes County Planning Division a legal description of the approved street extension alignment before commencing construction of the street. This description shall conform, to alignment Alternative 3 attached to the applicant's burden of proof as part of Exhibit J. Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's request for a conditional use permit for the extension of S.W. 35* Street, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 2. The applicant/owner shall not dedicate or improve the extension of S.W. 35d' Street depicted in Alternative 3 unless and until the Deschutes County Board of Commissioners approves an exception to Goal 3 for this street extension. The applicant/owner shall dedicate to Deschutes County 60 (sixty) feet of rigbt-of-way for S.W. 35h Street, and shall improve the dedicated right-of-way to the city's standards for major collector streets, including 36 (thirty-six) feet of paved surface, and curbs and sidewalks on both sides of the street. Dated this day of February, 2005. Mailed this ay of February, 2005. Karen H. Grc�� Hearings Officer THE DECISION APPROVING T19E CONDITIONAL USE PERMT BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Watson CU -04-97 28 Exhibit Page of 3 7 Ordinance BEFORE THE DESCHUTES COUNTY HEARINGS OMCER DECISION ON RECONSIDERATION FILE NUMBER: RC -04-2 (CU -04-9-1) APPLICANT: HLM, Inc. Mark Vukanovich 2464 S.W. Glacier Place, Suite #110 Redmond, Oregon 97756 k$ 101 79 PROPERTY OWNERS: Hayden H. Watson P. 0. Box 42354 10) Portland, Oregon 97242 �710 cry �Iop COUIV14 Generation Development Inc. 6 �cl P.O. Box 42354 6s�� Portland, Oregon 97242 ATTORNEY: Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97701 SURVEYOR:- Randy Povey and Bill Bahrke Povey and Associates -Land Surveyors P.O. Box 131 338 S.W. 7th Street Redmond, Oregon 97756 ENGINEER: George Franklet, PE Anderson Engineering & Surveying, Inc. P.O. Box 419 852 S.W. 15th Street Redmond, Oregon 97756 REQUEST: The applicant is requesting reconsideration of a condition of approval in the Hearings Officer's decision approving a conditional use permit and an exception to Goal 3 to extend S.W. 35th Street in Redmond, Oregon, from S.W. Obsidian Avenue to the existing southern terminus of S.W. 35th Street on land zoned EFU-TRB. STAFF REVIEWER. DECISION MAILED: HLM/Watson RC-04-2/CU-04-97 Decision on Reconsideration I Devin L. Hearing, Associate Planner February 15, 2005 Exhibit Page 30 of 7 7 Ordinance 2-X 5 L APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.116, Supplementary Provisions * Section 18.116.230, Standards for Class I and H Road Projects B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.30, Reconsideration • Section 22.30.010, Reconsideration • Section 22.30.020, Procedure • Section 22.30.030, Limitation on Reconsideration K FINDINGS OF FAC : A. Location: The subject property does not have an assigned address. It is identified as Tax Lot 2912 on Deschutes County Assessor's Map 15-13-17. The applicant proposes to dedicate and improve an extension of the existing S.W. 35th Street in Redmon Oregon, on a portion of the subject property. The extension would connect S.W. 3 5 Street from S.W. Obsidian Avenue to the existing southern terminus of S.W. 35th Street. The proposed road extension is listed in the City of Redmond Transportation System Plan (TSP) and would divide Tax Lot 2912 along the City of Redmond Urban Growth Boundary (UGB). The applicant is proposing that part of the road extension be located outside but adjacent to the UGB to existing electric transmission lines and poles and so the south part of the road will align with the existing portion of S.W. 35th Street located south of S.W. Obsidian Avenue. B. Zoning and Plan Designation: The subject parcel is in two zoning districts, one in Deschutes County and one in the City of Redmond. The western portion of the property is located outside the Redmond UGB and is zoned Exclusive Farm Use- Tumalo/Redmond/Bend Subzone (EFU-TRB). The eastern portion of the property is located within the Redmond city limits and is zoned General Residential - R4. The property also is zoned Airport Safety Combining Zone (AS) due to its proximity to the Redmond Airport. C. Site Description: The entire subject property is 12 acres in size, irregular in shape, has relatively level topography and sparse vegetation, and is undeveloped except for an existing electric transmission facility including lines and poles owned by Central Electric Cooperative that generally runs along the boundary between the two zoning districts. A line ofjuniper trees runs roughly parallel to and east of the power lines. The property has no irrigation water rights. The eastern portion of the property zoned R-4 has been approved by the City of Redmond for the development of a 74 -lot subdivision BLM/Watson RC-04-2/CU-04-97 Decision on Reconsideration 2 Exhibit 13 3 1 of '7 Page Ordinance to be called "Obsidian Meadows." The western portion of the property zoned EFU-TRB is covered with sparse vegetation including scattered juniper trees and native brush and grasses. The property abuts S.W. Obsidian Avenue on the south. The existing intersection between S.W. Obsidian Avenue and S.W. 35h Street is a three-way intersection located outside but adjacent to the Redmond UGB on land zoned EFU- TRB. The existing right-of-way for S.W. 35th Street south of S.W. Obsidian Avenue is centered on the UGB line. The record indicates this location was established through the C s previous approval of a subdivision located south of S.W. Obsidian Avenue. Both ity, S.W. 35d' Street and S.W. Obsidian Avenue are designated collector streets on the county's and city's TSPs. D. Soils: According to the National Resource Conservation Service (NRCS) soil data in the record, the portion of the subject property on which the extended street is proposed to be dedicated and improved consists entirely of Soil Unit 65A, Houstake Sandy Loam, 0 to 3 percent slopes. This soil type is composed of 85% Houstake soils and similar inclusions, and 15% contrasting inclusions consisting of Stukel soils on ridges, Redmond and Statz sods in swales, and rock outcrops. The Houstake soil is well drained with a moderate permeability and an available water capacity of about 7 inches. This soil unit has a capability classification of M when irrigated and VIs when not irrigated, and is considered high value soil when irrigated. E. Surrounding Zoning and Land Uses: Surrounding property to the north, east and southeast is located within the Redmond city limits, zoned R4, and developed with residences. Property to the west and southwest is outside the city limits and Redmond UGB, is zoned EFU-TRB, designated Agriculture on the county's comprehensive plan map, and is undeveloped. The eastern portion of the subject property zoned R-4 has received tentative subdivision plat approval for a 74 -lot residential subdivision. The applicant's burden of proof states that because the entire subject property, including the portion zoned EFU-TRB, is a single legal parcel, both the city and the county must approve the final subdivision plat. F. Procedural History: The original conditional use and Goal 3 exception applications were submitted on October 5, 2004 and were accepted by the county as complete on October 13, 2004. Because the applications include a request for a goal exception, the 150 -day period for issuance of a final local land use decision under ORS 215.427 does not apply. A public hearing on the application was held on December 14, 2004. At the hearing, the Hearings Officer received testimony and evidence and closed the evidentiary record. The applicant waived its right to submit final argument under ORS 197.763. On February 15, 2005 the Planning Division mailed the Hearings Officer's decision approving the proposed conditional use permit and exception to Goal 3 subject to three conditions of approval. On February 25, 2005, the applicant submitted a request for reconsideration of the decision to reconsider and modify Condition of Approval 3. On March 2, 2005 the Planning Division mailed notice of the request for reconsideration, and allowed comments on the request through March 15, 2005. The record on reconsideration closed on that date. HLM/Watson RC-04-2/CU-04-97 Decision on Reconsideration 3 Exhibit -3 Page 3z- of 37 Ordinance 7-005`01:� G. Proposal: The applicant received approval of a tentative subdivision plat for the "Obsidian Meadows Subdivisiorf' to be developed on the eastern portion of the subject property located within the Redmond City Limits and the R-4 Zone. The new subdivision lots would be served by an extension of S.W. 3 5d' Street that would connect the existing segments of S.W. 35h Street north and south of the subject property. These segments do not align with one another. Subdivision approval was conditioned on the applicant dedicating and improving the extension of S.W. 35th Street in a manner that aligns both ends of the existing S.W. 35th Street. Because the right-of-way for S.W. 35P Street south of S.W. Obsidian Avenue is located entirely outside the Redmond UGB, and because the existing CEC electric transmission facility is located within this existing right-of-way, the applicant proposes to adjust the road right-of-way and improve the road to avoid the power lines. The applicant included four alternative alignments for the extension of S.W. 3 5d' Street as attachments to the traffic impact study submitted to the City of Redmond in support of its application for tentative subdivision plat approval. The traffic study and diagrams of these alignments are included in this record as Exhibit J to the applicant's burden of proof The applicant's engineer recommended that Alternative 3 be selected because it aligns the segments of S.W. 35h Street, creates a properly aligned intersection between S.W. 35th Street and S.W. Obsidian Avenue, and it occupies the smallest amount of EFU-zoned land. The Hearings Officer's decision approving the requested conditional use approval and exception to Goal 3 to allow the applicant to dedicate and improve the extension of S.W. 35'h Street in accordance with Alternative 3 was subject to three conditions of approval. Condition 3 provided: "Ihe applicantlowner shall dedicate to Deschutes County 60 (sixty) feet of right-of-way for S. W 35"' Street, and shall improve the dedicated right-of-way to the city's standards for major collector streets, inclu&ng 36 (thirty-six) feet of paved surface, and curbs and sidewalks on both sides of the street " The applicant's request for reconsideration asks that the Hearings Officer reconsider and modify this condition to require that the road be dedicated to both Deschutes County and the City of Redmond, and that sidewalks and curbs be required only on the east side of the street. By letter dated March 4, 2005, the applicant's attorney clarified that the applicant intends to install curbs on both sides of the street but requests that the condition be modified to require a sidewalk on only the east side of the street. H. Public/Private Agency Comments: The Planning Division sent notice of the applicant's original proposal to a number of public and private agencies and did not receive responses from any of these agencies. L Public Notice and Comments: The Planning Division mailed individual written notice HLM/Watson RC-04-2/CU-04-97 Decision on Reconsideration 4 Exhibit -- -7 Page 3 3 of 3 Ordinance of the applicant's original proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property for property located outside the Redmond UGB and zoned EFU, and within 250 feet of the subject property for property located within the Redmond UGB. The record indicates these notices were sent to 89 property owners. 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. No letters were received from the public in response to these notices, and no members of the public testified at the public hearing. On March 2, 2005 the Planning Division mailed individual written notice of the request for reconsideration to all parties to the original application, and allowed the parties to comment on the reconsideration request through March 15, 2005. The record on reconsideration closed on that date. As of the date the comment period closed the county had received no comments on the reconsideration request. I Lot of Record: The Staff Report states the subject property is a legal lot of record having been created as Parcel I of Partition Plat No. 1996-40 approved by the county in 1996. M. CONCLUSIONS OF LAW: A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.30, Reconsideration a. Section 22.30.010, Reconsideration A. An applicant may request that the Hearings Officer's decision be reconsidered as set forth herein. A request for reconsideration shall be accompanied by a fee established by the County and by applicant's written consent that the 150 -day time dock will not run during the period of reconsideration. B. Grounds for reconsideration are limited to the following instances where an alleged error substantially affects the rights of the applicant: 1. Correction of an error in a condition established by the Hearings Officer where the condition is not supported by the record or is not supported by law; 2. Correction of errors that are technical or clerical in nature. BLNWatson RC-04-2/CU-04-97 Decision on Reconsideration 5 I P Exl-,'ibit 1� 3q of -3 7 Page Ordinance b. Section 22.30.020, Procedure A. A request for reconsideration shall be riled with the Planning Director within 10 days of the date the decision was mailed. The request shall identify the alleged error in the Hearings Officer's decision and shall specify how the applicant would be adversely affected if the alleged error were to remain uncorrected. B. Upon receipt of a request for reconsideration, the Planning Director shall forward the request for reconsideration to the Hearings Officer and notify the other parties to the proceeding of the request and allow for a 10 -day comment period on the request. At the end of the comment period, the Hearings Officer shall determine whether the request for reconsideration has merit. C. The Hearings Officer shall modify the decision upon a determination that the request has merit and the alleged error substantially affects the applicant Notice of the modification shall be sent to all parties to the proceeding. If the Hearings Officer determines that no modification is warranted, a determination shall issue to that effect D. Filing a request for reconsideration shall not be a precondition for appealing a decision. E. Filing a request for reconsideration stays the deadline for any party to rile an appeal of the Hearings Officer's decision. The appeal period for all parties to the proceeding shall commence upon mailing of a modification or upon mailing a determination that a modification is not warranted. If an opponent files an appeal and an applicant has requested reconsideration, the opponent's appeal shall be stayed pending disposition of the request for modification. If the decision is not modified, the appeal will be processed in accordance with the procedures set forth in DCC 22.32. If the decision is modified, the appellant must within 12 days of the mailing of the modified decision rile in writing a statement that its appeal be activated. C. Section 22.30.030, Limitation on Reconsideration No decision shall be reconsidered more than once. BLMtWatson RC-04-2/CU-04-97 Decision on Reconsideration 6 Exhibit -13 Page -35 of 3 7 Ordinance a95-cW5' FINDINGS: As discussed in the Findings of Fact above, the Hearings Officer's decision was mailed on February 15, 2005. The applicant submitted its request for reconsideration, accompanied by the required county fee, on February 25, 2005, within twelve days of the date the decision was mailed.' On March 2, 2005 the Planning Division mailed written notice of the request for reconsideration to all parties to the proceeding stating that the comment period 2 would expire on March 15, 2005. The county did not receive any written comments on the request for reconsideration. For these reasons, the Hearings Officer finds the request for reconsideration was timely filed. The applicant's request for reconsideration asks that the Hearings Officer reconsider and modify Condition of Approval 3 of the decision. This condition provides: .ty "7he aPPlicantlOwner shall dedicate 10 Deschutes County 60 (sh ) feet of right-of-wayfor S W 3P Street, and shall improve the dedicated right-of-way 10 the City's standardsfOr major collector streets, including 36 (thirty-six) feet OfPaved surface, and curbs and sidewalhs on both sides of the street. " The applicant's request for reconsideration argues this condition should be modified for the following reasons: ".The applicant is requesting this change as the City of Rehnond Planning Commission has determined that their street standards do not require the construction of a sidewalk on the west side of 35h Street, or any part of 35m Street, including the part located inside the Recbnond urban growth boundary. An electronic copy of the decision by the Planning Commission provided to the applicant's attorney by the City of Rechnond Planning Division is included with this application. [Footnote omitted.] The applicant is also requesting this change as it appears that the Hearings Officer may not have recalled, when she wrote the decision, that the applicant amended ity s1reet improvement proposal at the hearing in December 2004 to exclude a sidewalk on the west side of 35h Street The applicant and the County staff (Devin Hearing) believed this change was acceptable to the Hearings OW"cer. 7herefOre, it appears that the sidewalk on both sides of the street requirement may have been imposed in error. The removal of a sidewalk on the west side of the street will help reduce 1 The request for reconsideration did not include an agreement to toll the running of the 150 -day period under ORS 215.427 because the applicant's proposal includes a request for a goal exception that is not subject to the 150 -day period. 2 Because the I Ob day following the mailing of the notice of reconsidemtion fell on Saturday, March 12'h, under Section 22.08.070 the parties had until Monday, March 14, 2005 to submit written comments on the request for reconsideration. The county's notice extended that comment period by one day to March 15, 2005. HLMIWatson RC-04-2/CU-04-97 Decision on Reconsideration 7 Exhibil- Page 3A _ of Ordinance potential conflicts between urban and rural uses by confining urban pedestrian activity to the s7de of the street that is, for the most part, located with the urban growth boundary of Redmond 7he applicant has also requested that Condition 3 be corrected to rej7ect the fact that the right-of-way to be dedicated will not be afull 60feet in width for its entire length in Deschutes County. 7he right-of-way will be located, in part, in the City ofRed-nond " The applicant argues that the requested modification to Condition of Approval 3 is justified as both an error where the condition is not supported by the record and an error of a technical or clerical nature. The applicant also argues it will be adversely affected by the alleged effor in Condition 3 because: 1) it will cost approximately $20,000 to construct the sidewalk on the west side of S.W. 35h Street; and 2) the applicant cannot fully comply with the condition of approval if the applicant is not required to dedicate right-of-way to both the county and the City of Redmond. In its request for reconsideration, the applicant recommended that Condition 3 be modified to add the City of Redmond to the dedication requirement, and to replace the phrase "both sides of the street" with the phrase "the east side of the street" with respect to both the curb and sidewalk requirements. As discussed in the Findings of Fact above, on March 4, 2005 the applicant's attorney submitted a letter clarifying that the applicant intends to install curbs on both sides of the street, and seeks merely to remove the requirement of a sidewalk on the west side of the street. The Hearings Officer finds that both bases for reconsideration presented by the applicant qualify as grounds for reconsideration as either errors of a technical or clerical nature or error where the condition is not supported by the record. I have reviewed the record of this application and my notes fi7om the public hearing. Based on that review, I concur with the applicant that Condition of Approval 3 contains the errors identified by the applicant. I also find the applicant has demonstrated it will be adversely affected by the errors. Therefore, I find the applicant's request for reconsideration has merit, and Condition 3 should be modified substantially as proposed in the applicant's March 4, 2005 letter. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby finds that THE APPLICANT'S REQUEST FOR RECONSIDERATION HAS MERIT, MODIFICATION TO CONDIT10N OF APPROVAL 3 IS WARRANTED, AND CONDITION 3 IS MODIFIED TO READ AS FOLLOWS: 3. The applicant/owner shall dedicate to Deschutes County and the City of Redmond a total of 60 (sixty) feet of right-of-way for S.W. 35 th Street, and shall improve the dedicated right-of-way to the city's standards for major collector streets, including 36 BLM/Watson RC-04-2/CU-04-97 Decision on Reconsideration 8 Exhibit /3 Page :3 -7 of '3 7 OrdinanceZ-005 , 0/ (thirty-six) feet of paved surface, curbs on both sides of the street, and a sidewalk on the east side of the street. Dated this j��day of March, 2005. ,q Mailed this 11L -k of March, 2005. Karen H. Green, Hearings Officer HLM/Watson RC-04-2/CU-04-97 Decision on Reconsideration 9