2005-1041-Ordinance No. 2005-033 Recorded 9/12/2005REVIEWED
LEGALIC�EL
REVIEWED
d&A--
CODE REVIEW COMMITTEE
DESCHUTES COUNTY OFFICIAL
NANCY4LANKENSHIP, COUNTY
COMMISSIONERS' JOURNAL
VIII IIIIIIIIIIIIIIIIIIIIII
III
200 —3041
CLERKS CJ 2005.1041
09/12/2005 03;29;52 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending the Bend Area General Plan
to Change the Plan Designation for Certain Property * ORDINANCE NO. 2005-033
From Industrial Reserve to Urban Reserve Area and
Declaring an Emergency.
WHEREAS, Miller Tree Farm, LLC, has proposed a Plan Map Amendment to the Bend Area General
Plan to change the designation of certain property from Industrial Reserve to Urban Reserve Area in order to
change the zoning from Surface Mining to Urban Area Reserve (UAR-10) zone; and
WHEREAS, a public hearing was held on February 1, 2005, after notice was given in accordance with
applicable law before the Deschutes County Hearings Officer; and
WHEREAS, the Deschutes County Hearings officer, after review conducted in accordance with
applicable law, approved the proposed Plan Amendment from Industrial Reserve to Urban Reserve Area; and
WHEREAS, the Hearings Officer's decision was not appealed; and
WHEREAS, the Deschutes County Code 22.28.030(B) requires the Board to adopt the Hearings
Officer's decision without further argument or testimony; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. The Bend Area General Plan is hereby amended to change the plan
designation for certain property described by the legal description attached hereto as Exhibit "A," and the map
set forth as Exhibit "B" and by this reference incorporated herein from Industrial Reserve to Urban Reserve
Area.
Section 2. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of
the Hearings Officer, attached hereto as Exhibit "C," and by this reference incorporated herein.
PAGE 1 OF 2 - ORDINANCE NO. 2005-033 (09/07/05)
Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage.
DATED this - f- day of 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNT OREGON
TO DEWOLF, Chair
MICHAEIL4WDALY, C,6mmissi
R. LUKE, Commissioner
Date of I" Reading:
4 �
day of � , 2005.
Date of 2"d Reading:
day of , 2005.
Record of Adoption Vote
Commissioner
Yes No Abstained Excused
Dennis R. Luke
t/
Tom DeWolf
Michael M. Daly
Effective date:
-ZA
day of , 2005.
ATTEST:
(f� (116 4�
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2005-033 (09/07/05)
Exhibit "A"
• Legal Description
For the Deschutes County Comprehensive Plan Amendment
Approved under File PA -04-9 in June 2005.
The East Half of the Southeast Quarter (E I/2 SE 1/4) of Section Thirty—five (35), Township
Seventeen (17) South, Range Eleven (11) East, of the Willamette Meridian, Deschutes
County, Oregon.
Except that portion lying South of Skyliners Road.
REGISTERED
PROFESSIONAL
LAND SURVEYOR
OREGON
JULY 2e. 1088
LYNN J. BRUNO
2335
RENEWAL DATE. 17-1.5 / DS
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PROPOSED COMPREHENSIVE PLAN MAP
File No. PA -04-09
Exhibit B
to Ordinance 2005-033
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BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Tom DeWolf, Chair
Michael M. Daly, Commissioner
Dennis R. Luke, Commissioner
ATTEST. Recording Secretary
Dated this _ day of September, 2005
Effective Date: September _, 2005
N.4utlwmCoun�tnYi�2COb _ _ a
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
APPLICANT/
PROPERTY OWNER:
APPLICANT'S AGENT:
PA -04-9 and ZC-04-7
Miller Tree Farm, LLC
110 N.E. Greenwood Avenue
Bend, Oregon 97701
Jon Skidmore
W&H Pacific, Inc.
920 S.W. Emkay Drive
Suite C-100
Bend, Oregon 97702
REQUEST: The applicant is requesting approval of a plan amendment from
Industrial Reserve to Urban Reserve Area and a zone change
from Surface Mining to Urban Area Reserve for a 133 -acre
parcel located west of Bend.
STAFF REVIEWER: Catharine White, Associate Planner
HEARING DATE: March 29, 2005
RECORD CLOSED: March 30, 2005
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance
1. Chapter 19.12, Urban Area Reserve (UAR-10) Zone
* Section 19.12.010, Purpose
2. Chapter 19.16, Surface Mining Zone (SM)
3. Chapter 19.116, Amendment, Appeals, and Procedures
* Section 19.116.010, Amendments
* Section 19.116.020, Standards for Zone Change
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.28, Land Use Action Decisions
* Section 22.28.030, Decisions on Plan Amendments and Zone Changes
Miller Tree Farm C
PA -04-9, ZC-04-7 Exhibit /
i page ___—
Ordinance 3
C. Bend Area General Plan
D. Oregon Administrative Rules, Chapter 660
1. Division 12, Transportation Planning
* OAR 660-012-060, Plan and Land Use Regulation Amendments
2. Division 15, Statewide Planning Goals and Guidelines
* OAR 660-015-0000, Statewide Planning Goals and Guidelines 1 through
20
3. Division 23, Procedures and Requirements for Complying with Goal 5
* OAR 660-023-0180, Mineral and Aggregate Resources
H. FINDINGS OF FACT:
A. Location: The subject property is located at 19100 Skyliners Road, Bend, and is further
identified as Tax Lot 6201 on Deschutes County Assessor's Map 17-11-00. The subject
property also is known as Surface Mining Site 302.
B. Zoning and Plan Designation: The entire subject property is zoned Surface Mining
(SM). The Bend Area General Plan designates the approximate eastern half of the
property as Industrial Reserve and the western half as Urban Reserve Area.
C. Site Description: The subject property is approximately 132.77 acres in size and square
in shape. The record indicates the property was used as a pumice mine from around
1950 to the early 1980s. As a result of mining and reclamation activity, the property's
topography varies from relatively level areas where no mining occurred and depressions
where the property was mined and reclaimed. Vegetation consists of a mixture of
scattered mature pine trees, shrubs, and grasses outside of the mined area and grasses in
the mined area. The property is undeveloped except for a fenced -in equipment yard near
the north end of the mined area and abandoned dirt roads. The property abuts Skyliners
Road on the south.
D. Surrounding Zoning and Land Uses: To the east of the subject property are the City
of Bend Urban Growth Boundary (UGB) and city limits. Abutting land uses within the
city include Summit High School on a parcel zoned Public Facilities, and a vacant 26 -
acre parcel that is part of the "Northwest Crossing" mixed use development, zoned
Industrial Park, and subject to a pending application for a 13 -lot industrial subdivision.
Adjacent parcels to the north, west, and south are outside the city limits but within the
city's Urban Reserve Area. They include the following uses: to the north and west are
large tracts of vacant land owned by the applicant and receiving forest tax deferral; and
Miller Tree Farm
PA -04-9, ZC-04-7
2
Exhibit C
Page _ 9- of
Ordinance 100 5- 03 3
to the south are Skyliners Road and residential development consisting of 10 -acre lots
in "The Highlands at Broken Top" planned unit development.
E. Procedural History: In April 1997 a county hearings officer approved a quasi-judicial
plan amendment and zone change (PA-97-2/ZC-97-2) affecting three tax lots owned by
the applicant including the subject property. The decision amended the plan to place
these tax lots in the Urban Reserve and to change their plan designation to Urban
Reserve. The record indicates that in September 1997 the applicant requested that the
effective date of the plan amendment be delayed until the location of Mt. Washington
Drive right-of-way was established as it related to the applicant's property. The
applicant's burden of proof states these plan amendment applications eventually were
withdrawn and the plan designation changes were not implemented.
In 1998, the county and the City of Bend engaged in a joint legislative effort to update
the Bend Area General Plan and related maps, effected at the county by Ordinance 98-
074. As a result of this ordinance, the subject property was shown on the 1998 Bend
General Plan Map as having an Industrial Reserve plan designation.'
The applicant submitted the subject plan amendment and zone change applications on
November 29, 2004. On December 21, 2004 the Planning Division advised the
applicant that the application was incomplete and requested that the applicant submit
the missing information. The applicant submitted the information on January 4, 2005
and the county accepted the application as complete on that date. On January 27, 2005
the Planning Division mailed notice of the proposed plan amendment to the Department
of Land Conservation and Development (LCDC). A public hearing on the applications
was held on March 29, 2005. At the hearing, the Hearings Officer received testimony
and evidence and left the written evidentiary record open through March 30, 2005, and
the applicant waived its right to submit final argument pursuant to ORS 197.763.
Because the applicant is requesting a plan amendment and related zone change, the 150 -
day period for issuance of a final local land use decision under ORS 215.427 is not
applicable.
F. Proposal: The applicant is requesting approval of a plan amendment from Industrial
Reserve to Urban Reserve Area for the eastern half of the subject property and a zone
change from Surface Mining (SM) to Urban Area Reserve (UAR-10) Zone for the
entire subject property. The applicant does not propose any property development at
this time.
G. Public/Private Agency Notice and Comments: The Planning Division sent written
' The Staff Report notes that in September 1991 the county adopted Ordinance 91-031 amending the
Bend Area General Plan Transportation Element to adjust the location of Mt. Washington Drive and to
relocate some of the Industrial Park comprehensive plan designation to land owned by Cascade
Highlands located south of Skylines Road. The Staff Report indicates this relocated Industrial Park
designation did not include the subject property.
Miller Tree Farm
PA -04-9, ZC-04-7
3 Exhibit
Page Of ?`--
Qrrlinonno1c5 — 33
notice of the applicant's proposal to a number of public and private agencies and
received responses from: the Deschutes County Property Address Coordinator, and the
City of Bend Planning and Fire Departments. Those comments are set forth at pages 3-4
of the Staff Report. The following agencies either had no comment or did not respond to
the notice: the Deschutes County Assessor, Road Department, Transportation Planner,
Building Safety Division, and Environmental Health Division; the Bend Metropolitan
Parks and Recreation District; the Oregon Department of Water Resources,
Watermaster-District 11; the Oregon Departments of Fish and Wildlife and Geology
and Mineral Industries (DOGAMI); and the U.S. Forest Service, Bend -Fort Rock
District Ranger.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's proposal and the public hearing to the owners of record of all property
located within 250 feet of the subject property. In addition, notice of the public hearing
was published in the Bend "Bulletin" newspaper and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received one letter from the public in response to these notices.
No members of the public testified at the public hearing.
I. Lot of Record: The Staff Report states the county considers the subject property to be a
legal lot of record because of prior land use actions.
III. CONCLUSIONS OF LAW:
A. Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance
1. Chapter 19.116, Amendment, Appeals and Procedures
a. Section 19.116.010, Amendments
DCC Title 19 may be amended by changing the boundaries of zones
or by changing any other provisions thereof subject to the provisions
of DCC 19.116.
A. Text changes and legislative map changes may be proposed
by the Board of County Commissioners on its own motion, by
the motion of the Planning Commission, upon payment of a
fee, by the application of a member of the public. Such
changes shall be made pursuant to DCC 22.12 and ORS
215.110 and 215.060.
B. Any proposed quasi-judicial map amendment or change shall
be handled in accordance with the applicable provisions of
DCC Title 22.
Miller Tree Farm
PA -04-9, ZC-04-7 Exhibit L-
4 Page 14_ of
Ordinance 2-005'0 3 3
FINDINGS: The applicant is requesting approval of a quasi-judicial map amendment from
Industrial Reserve to Urban Reserve Area, and a quasi-judicial zone change from SM to UAR-
10. The record indicates the applicant submitted its application on a form provided by the
county and accompanied by the required application fee. The applicant's proposal is being
processed pursuant to the provisions of Title 22 of the Deschutes County Code, the
Development Procedures Ordinance. Therefore, the Hearings Officer finds the applicant's
proposal satisfies the criteria in this section.
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.28, Land Use Action Decisions
a. Section 22.28.030, Decisions on Plan Amendments and Zone
Changes
A. Except as set forth herein, the Hearings Officer or the
Planning Commission when acting as the Hearings Body shall
have authority to make decisions on all quasi-judicial zone
changes and plan amendments. Prior to becoming effective,
all quasi-judicial plan amendments and zone changes shall be
adopted by the Board of County Commissioners.
B. In considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the Hearings
Officer has authority to make a decision, the Board of County
Commissioners shall, in the absence of an appeal or review
initiated by the Board, adopt the Hearings Officer's decision.
No argument or further testimony will be taken by the Board.
FINDINGS: The plan amendment and zone change approved in this decision will be
considered by the Board of County Commissioners before becoming effective, therefore
satisfying these standards.
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 without the necessity of filing an
appeal, regardless of the determination of the Hearings
Officer or Planning Commission. Such hearing before the
Board shall otherwise be subject to the same procedures as an
appeal to the Board under DCC Title 22.
FINDINGS: The Hearings Officer finds the proposed plan amendment does not require an
exception to any statewide planning goal because it does not involve land designated for forest
or agricultural use. In addition, the Bend Area General Plan states at Page 1-4:
Miller Tree Farm
PA -04-9, ZC-04-7 Exhibit C--
5 Page of
Ordinance 5005-033
When the General Plan was "acknowledged" by the state in 1981, the Urban
Reserve Area was recognized as an "exception area" to long-term farm or forest
uses under statewide planning Goals 3 and 4, and therefore available for urban
development.
For these reasons, I find the applicant's proposal satisfies this standard.
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(0), 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 above, the applicant's proposed plan amendment does not involve a
goal exception and therefore need not be considered at a de novo hearing before the Board of
County Commissioners.
PLANAMENDMENT
C. Bend Area General Plan
FINDINGS: The applicant is requesting approval of a plan amendment to change the
designation of the eastern half of the subject property (approximately 65 acres) from Industrial
Reserve to Urban Reserve Area. As discussed above, the western half of the property already is
designated Urban Reserve Area. The Hearings Officer finds the following provisions of the
Bend Area General Plan are applicable to the proposed plan amendment. Compliance with
these plan provisions is discussed in detail in the findings below.
Future Plan updates (Page P-6)
The General Plan is a document that changes over time to reflect new information
and new directions for the future. Amendments or additions to the General Plan
text, exhibits, and policies go through a public hearing and review process before
being adopted by the governing bodies. Changes and updates can be generated in
at least six ways:
Changes proposed by individuals or other agencies. At any time an
individual, corporation, or public agency can propose a change to the Plan
text, land use map, other exhibits, or policies. A person or agency proposing
Miller Tree Farm
PA -04-9, ZC-04-7
6 Exhibit
Page .-- of
Ordinance 2-5706w331
a change has the burden to demonstrate a public need and benefit for the
change. (Emphasis added.)
FINDINGS: The applicant is proposing the plan map change and therefore has the burden to
demonstrate a public need for and benefit from the change.
1. Public Need.
The applicant argues the proposed plan amendment from Industrial Reserve or Urban Area
Reserve serves a public need because the Industrial Reserve designation is no longer needed
due to the city's recent annexation of 550 acres of land into its UGB for industrial uses
("Juniper Ridge"). The applicant also argues the proposed plan amendment is justified to meet
a need for buildable residential lands. The applicant asserts that the subject property was
included in the city's analysis of suitable industrial lands in its "Economic Lands Study" but
ultimately was not included in the city's industrial lands inventory. The applicant's burden of
proof explains the city's reasoning as follows:
"The [residential lands] study evaluated 14 different sites to determine the
suitability of those lands for inclusion in the Urban Growth Boundary to provide
needed industrial lands. The subject property is a small portion of one area
evaluated as part of this study. The study referred to that property as 'Miller
West.' Each area evaluated was ranked according to nine (9) suitability factors.
The Miller West property received a score of 45 out of 90 possible points and
ranked 9`h on the list of 14. The property was not considered as a viable
candidate for UGB expansion to meet the City's industrial land needs. "
In addition, the applicant argues the subject property no longer is suitable for industrial use
because: a) such use is not compatible with surrounding uses; b) the property is isolated from
other lands designated and zoned for industrial use; and c) the property does not have adequate
access to a transportation network designed for industrial traffic, but rather is surrounded by a
street system serving residential zoning districts including two-lane bridge crossings.
Finally, the applicant relies on preliminary conclusions from the city's residential lands study
which identify two methods by which the city could obtain additional buildable residential
lands: a) rezoning lands that are presently within the UGB to residential zones; and b)
expanding the UGB to include lands that are the most suitable for residential development
based on a ranking system. Based on this method of analysis, the applicant argues the subject
property likely would be ranked high for residential development because the property:
is surrounded on three sides by residentially zoned properties;
2. is near property south of Skyliners Road that is currently developed and developing
with residential uses;
3. is near property to the east and northeast that is developed with a high school and an
Miller Tree Farm
PA -04-9, ZC-04-7
7 Exhibit .®-
Page 3— of SO
Ordinance2oc5-D'� 3
elementary school;
4. is in close proximity to numerous residential developments including Broken Top,
Northwest Crossing, and Skyliners Summit; and
5. has topography suited to residential development.
The Staff Report states, and the Hearings Officer concurs, that the most compelling argument
that the applicant's proposed plan amendment will meet a public need is the city's
determination not to include the subject property in its recently adopted industrial lands
inventory. I also concur with the applicant that given the type of development that has occurred
on surrounding lands, industrial use of the subject property no longer is appropriate.
The Staff Report questions whether the applicant's reliance on the city's "Residential Lands
Study" is misplaced inasmuch as the study is not completed. The record includes a copy of two
status reports on this study that indicate the city has completed its inventory of currently
buildable residential lands but has not yet identified the future need for buildable residential
lands. Nevertheless, the Hearings Officer concurs with the applicant that the subject property
appears a likely candidate for future inclusion in the residential lands inventory — assuming the
city concludes its current supply is not adequate to meet its 20 -year need. That is because of the
property's location virtually surrounded by land zoned and/or designated for future residential
development as well as the available urban facilities and services in the surrounding area
including schools, utilities, and transportation facilities. The proposed Urban Reserve
designation would allow such development at the time the property is annexed into the city's
UGB.
For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated the
proposed plan amendment from Industrial Reserve to Urban Area Reserve for the eastern half
of the subject property would meet a public need.
2. Public Benefit.
FINDINGS: The applicant argues the proposed plan amendment would confer a public benefit
because: a) it would promote efficient and orderly growth by providing buildable residential
lands adjacent to the city's UGB that could meet the city's future housing needs; b) there is no
benefit to retaining the subject property for industrial uses given the surrounding residential
development and the annexation into the UGB and the city's industrial land inventory the
"Juniper Ridge" land north of Bend; and c) development of the subject property for residential
uses can be accomplished efficiently because of its location adjacent to existing and planned
residential development and necessary infrastructure.
As discussed above, the Staff Report suggests the Hearings Officer should not rely on the city's
residential lands study as a basis for approving the proposed plan amendment because the study
has not yet been completed and the city has not yet determined whether it has a sufficient
supply of buildable residential lands. Nevertheless, the Staff Report states, and I agree, that in
Miller Tree Farm
PA -04-9, ZC-04-7
8
Exhibit _C
Page -!--- Of 2Z 33 3
Ordinance —
light of the designation and zoning of the surrounding land, and the city's annexation of the
550 -acre "Juniper Ridge" property to satisfy its industrial lands needs, it is difficult to imagine
that the city would conclude the subject property should be held for industrial development and
should not be available for residential development.
For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated the
proposed plan amendment from Industrial Reserve to Urban Area Reserve for the eastern half
of the subject property would confer a public benefit. Therefore, I find the applicant has met its
burden of proving the proposed plan amendment from Industrial Reserve to Urban Area
Reserve for the western half of the property satisfies the plan amendment requirements of the
Bend Area General Plan.
ZONE CHANGE
D. Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance
1. Chapter 19.116, Amendments, Appeals and Procedures
a. Section 19.116.020, Standards for Zone Change
The burden of proof is upon the applicant. The applicant shall in all
cases establish:
A. That the change conforms with the Comprehensive Plan.
Specifically, the change is consistent with the plan's intent to
promote an orderly pattern and sequence of growth.
FINDINGS: The Hearings Officer finds this approval criterion includes three separate
requirements: 1) conformance with the comprehensive plan map; 2) conformance with the
comprehensive plan text; and 3) consistency with the plan's intent to promote "an orderly
pattern and sequence of growth." Each of these requirements is discussed below.
1. Conformance With the Comprehensive Plan Man.
As discussed in the Findings of Fact above, the Bend Urban Area General Plan Map shows the
eastern 65 acres of the subject property is designated Industrial Reserve, and the western half of
the property is designated Urban Reserve Area. The applicant proposes a zone change for the
entire subject property from SM to UAR-10. That proposal is consistent with the plan
designation of Urban Area Reserve for the western half of the property. And as discussed
above, the applicant has proposed a plan amendment from Industrial Reserve to Urban Area
Reserve for the eastern half of the property. For the reasons discussed in the findings above, the
Hearings Officer has found the applicant has met its burden of proving the proposed plan
amendment satisfies the requirements of the Bend Urban Area General Plan. Therefore, I find
the applicant's proposed zone change to UAR-10 is consistent with the General Plan Map as
amended by my decision.
Miller Tree Farm
PA -04-9, ZC-04-7
9
Exhibit C'
Page _q - of -ZAP
Ordinance 2-005-03,43
2. Conformance With the Comprehensive Plan Text.
The Bend Area General Plan includes the following language at page P-4:
At the end of each chapter [of the plan] are policies that address issues discussed in
the chapter. The policies in the General Plan are statements of public policy, and
are used to evaluate any proposed changes to the General Plan. Often these
statements are expressed in mandatory fashion using the word "shall." These
statements of policy shall be interpreted to recognize that the actual
implementation of the policies will be accomplished by land use regulations such as
the city's zoning ordinance, subdivision ordinance and the like. The realization of
these policies is subject to the practical constraints of the city such as availability of
funds and compliance of [sic] all applicable federal and state laws, rules and
regulations, and constitutional limitations. (Emphasis added.)
In a previous decision approving a zone change from SM to UAR-10 (Shevlin Heights, ZC-00-
5, TP -00-916, CU -00-112), this Hearings Officer made the following findings concerning the
applicability of the comprehensive plan to applications for quasi-judicial zone changes:
"In previous city zone change decisions (e.g., Clabaugh, City file 99-118) the
Hearings Officer has held the underscored language signifies comprehensive
plan policies are not approval criteria for quasi-judicial land use applications.
Rather, they provide guidance in interpreting and applying the provisions of the
zoning ordinance. I adhere to and apply this holding in this county application
because my review is governed by Title 19, the Bend Urban Area Zoning
Ordinance, which is the same ordinance applicable in the city. Therefore, I find
the applicant is not required to demonstrate the proposed zone change complies
with individual plan policies. "
Once again, the Hearings Officer adheres to these findings and concludes the text of the Bend
Area General Plan — including plan policies -- is not applicable to the proposed zone change.
3. Consistency with the Plan's Intent to Promote An Orderly Pattern and Sequence of Growth.
In the same zone change decision cited above, this Hearings Officer made the following
findings concerning the meaning of the phrase "orderly pattern and sequence of growth:"
`In previous city zone change decisions the Hearings Officer has held the
phrase 'orderly pattern and sequence of growth' in this approval criterion
contemplates consideration of both the location and timing of development. I
have held an orderly pattern of growth is one that promotes compatible physical
relationships between zoning districts and uses, while an orderly sequence of
growth promotes development concurrent with the provision of adequate
services.
Again, the Hearings Officer adheres to these findings in considering whether the applicant's
Miller Tree Farm
PA -04-9, ZC-04-7
l0 Exhibit
Page
Ordinance 00 - 0 3 3
proposal satisfies this requirement.
a. Orderly Pattern of Growth. The applicant argues the proposed zone change would
contribute to the overall orderly pattern of growth in the city by allowing future residential "in-
fill" development consistent with the type and density of development on surrounding lands
within the city limits and UGB. As discussed in the findings above, the subject property is
surrounded by and in the city limits developed with residential uses and schools, as well as land
outside the city limits zoned UAR-10 and thereby identified for future urban development
when annexed into the city. As discussed in detail in the findings below, the Hearings Officer
has found the current SM zoning for the subject property no longer is warranted because the
mineral and aggregate resource has been depleted. And as discussed above, I have concluded
the city's decision not to include the subject property in its inventory of buildable industrial
lands signals the city's determination that industrial development of the property is no longer
appropriate because it would not be compatible with surrounding zoning and uses. For these
reasons, I find the proposed zone change will promote an orderly pattern of growth by
promoting compatible physical relationships between zoning districts and uses.
b. Orderly Sequence of Growth. The record indicates the subject property currently is located
outside the boundaries of the Bend Rural Fire Protection District #2. However, the Hearings
Officer is aware the fire district will consider district annexation petitions from the owners of
property abutting the district's boundaries, therefore making possible future fire protection for
the subject property. In addition, the subject property is served by Skyliners Road, a designated
city arterial street inside the UGB and a designated Forest Highway/Major Collector outside the
UGB. I am aware both arterial and major collector streets are designed to handle large volumes
of traffic. The Staff Report assumes, and I concur, that other public facilities and services such
as water and sewer service, police protection, electricity and telephone would be available to
the subject property once annexed into the city since such services currently are provided to
adjacent properties within the city limits. Moreover, as the Staff Report notes, the subject
property could be developed with residential uses while zoned UAR-10 by using on-site
sewage disposal systems and individual private wells. For these reasons, I find the proposed
zone change will promote an orderly sequence of growth by promoting development concurrent
with the provision of adequate services.
B. That the change will not interfere with existing development,
development potential or value of other land in the vicinity of
the proposed action.
FINDINGS: The Hearings Officer concurs with staff s finding that the proposed zone change
from SM to UAR-10 will not interfere with the existing residential, school, and industrial uses
in the vicinity of the subject property, and that it likely would enhance the value of other
nearby land by permanently abandoning conflicting surface mining use of the property. This is
particularly true inasmuch as the record indicates the subject property has not been mined since
the 1980s, long before the adjacent lands were annexed into the city's UGB and developed with
residential and school uses.
Miller Tree Farm
PA -04-9, ZC-04-7
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Exhibit C -
Page _I I of 20
Ordinance 2005-033
C. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 19.12. 010 states the purpose of the UAR-10 Zone is:
To serve as a holding category and to provide opportunity for tax differentials as
urban growth takes place elsewhere in the planning area, and to be preserved as
long as possible as useful open space until needed for orderly growth.
The Hearings Officer finds the proposed zone change from SM to UAR-10 is consistent with
the purpose of the UAR-10 Zone because it will allow the subject property to be held in reserve
for future urban development if and when the property is annexed into the Bend UGB.
D. That the change will result in the orderly and efficient
extension or provision of public services. Also, that the
change is consistent with the county's policy for provision of
public facilities.
FINDINGS: The Hearings Officer finds the proposed zone change in and of itself will not
result in any extension of public services. However, I concur with the applicant that if the
property is annexed into the city's UGB or developed pursuant to the UAR-10 Zone, the
property will be "well positioned for orderly and efficient extension of public services
including sewer and water, public safety, and transportation.
E. That there is a proof of a change of circumstances or a mistake
in the original zoning.
FINDINGS:
1. Mistake. The applicant does not argue there was a mistake in the original SM zoning of the
subject property and the Hearings Officer finds there was none. The record indicates the subject
property was included in the county's Goal 5 inventory of significant mineral and aggregate
resources -- even though it was located within the city's Urban Reserve Area — to reflect the
historic use of the property for surface mining and the presence of a significant pumice
resource.
2. Change of Circumstances. The applicant argues, and the Hearings Officer concurs, that there
has been a change of circumstances justifying the proposed zone change from SM to UAR-10 —
i. e., depletion of the identified pumice resource since the property was zoned SM. The
applicant's burden of proof includes a January 4, 2005 letter from Charley Miller, co -manager
of the Miller Tree Farm, stating that mining the subject property no longer is economically
feasible because "the costs to extract the limited remaining resource will exceed the prices the
pumice will demand in the marketplace." The applicant also argues, and I concur, that
development of the surrounding area with predominantly residential uses has signaled a
Miller Tree Farm
PA -04-9, ZC-04-7 C-
12
12 xFiiblt
Fuge 12— of 2-0
Ordinance ?P05_033
dramatic change in the character of this part of the Bend area from resource extraction (forestry
and surface mining) to more urban uses, making continued surface mining of the subject
property incompatible. For these reasons, I find the SM zoning of the subject property no
longer is warranted.
For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated the
proposed zone change satisfies the approval criteria in Section 19.116.020.
2. Chapter 19.16, Surface Mining Zone (SM)
a. Section 19.16.010, Purpose
The purpose of the Surface Mining Zone is to allow the extraction of
surface mining materials needed by the community while protecting
the health and safety of adjoining residents and uses.
b. Section 19.16.020, Uses Permitted Outright
In the SM Zone, the following uses and their accessory uses are
permitted outright subject to the provisions of this chapter:
A. Extraction of all minerals, sand, gravel, rock, cinders,
pumice, topsoil, fill material (including select fill) and any
other mineral or aggregate material.
FINDINGS: As discussed above, the subject property is designated Industrial Reserve and
Urban Area Reserve. The property's status in the county's Goal 5 inventory of significant
mineral and aggregate resources is unclear. The record indicates the county adopted its Goal 5
mineral and aggregate inventory in July 1990 through Ordinance 90-0025. However, SM Site
302 was identified as located within the Bend UGB and was included as "Exhibit A" to the
ordinance. Findings in the ordinance state in pertinent part:
"Sites Within Urban Growth Boundaries
19. The County's preliminary list and the inventory adopted by the Board in
December 1988 include sites that fall within the Urban Growth
Boundaries of the Cities of Bend and Redmond The Board finds that
adopted by this process. However, the quantities and qualities of
minerals, if any, identified at those sites are included in the overall
calculations of quantities of available mineral resources. " (Emphasis
added.)
The Hearings Officer is aware that at the time Ordinance No. 90-0025 was adopted the county
and the City of Bend recognized two UGBs — the "inner UGB" and the "outer UGB." The
former was acknowledged by the Land Conservation and Development Commission and was
annexed into the Bend city limits in 1998. The latter consisted of urban reserve areas that
remained within the county's jurisdiction following the 1998 annexation. The portion of SM
Site 302 that consists of the subject property was not annexed by the city, was designated
Miller Tree Farm
PA -04-9, ZC-04-7
13
Exhibit (21-
Page
2iPage l3 of
Ordinanceo�5—a33
reserve land, was zoned SM and is subject to the provisions of Title 19 of the Deschutes
County Code.
Sections 19.16.010 and 19.16.020 authorize the preservation and extraction of mineral and
aggregate resources "needed by the community." The applicant has requested approval of a
plan amendment and zone change for the subject property for the reason that the mineral and
aggregate resource (pumice) has been depleted. The Hearings Officer understands this
argument to mean the applicant believes the pumice resource on the subject property no longer
is a "significant" resource requiring protection under Goal 5. Given the above -quoted language
from the findings in Ordinance No. 90-0025, it is not clear whether the county identified Site
302 or the subject property as a "significant" resource. In this Hearings Officer's previous
decision in Shevlin Heights (ZC-00-5), I made the following findings:
"* * * [T]he Hearings Officer concurs with the applicant that because the
county's inventory of mineral and aggregate sites did not include quantity and
quality for Site 301, it was not considered a 'significant' site and therefore it is
not necessary for the county to undertake another Goal S analysis to determine if
a 'significant' resource remains on the property."
The Hearings Officer finds a similar conclusion could be reached in this case inasmuch as it
appears the county did not intend to include the subject property or the rest of SM Site 302 on
its inventory of significant mineral and aggregate resources. Moreover, although the county
zoned the subject property SM — suggesting the county considered the site to be "significant"
and to require Goal 5 protection -- I find it is more likely the subject property was zoned SM to
reflect its historic use for surface mining rather than a determination that the site had a
significant resource.2
Based on the foregoing discussion, the Hearings Officer finds the unusual status of SM Site 302
likely negates any need to undertake a Goal S analysis to determine if the SM zoning of the
subject property should be terminated. However, assuming for purposes of discussion that such
an analysis is required, I include the following findings.
Unlike the SM Zone provisions in Title 18, the county's zoning ordinance, Title 19 has no
provisions addressing the procedures or standards for termination of surface mining zoning.3 In
other words, Title 19 does not identify at what point a surface mining site can be removed from
that inventory because it is no longer "significant." The Oregon Administrative Rules, Division
660, Chapter 23, govern post -acknowledgment plan amendments (PAPAS) affecting
inventoried Goal 5 resources. These rules are addressed in the findings below.
E. Oregon Administrative Rules, Chapter 660
1. Division 23, Procedures and Requirements for Complying with Goal 5
a. OAR 660-023-0180, Mineral and Aggregate Resources
2 The record indicates mining on Site 302 began in the 1950's, long before county zoning.
' See 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact
Area Combining Zone.
Miller Tree Farm
PA -04-9, ZC-04-7 C,
14 Exhibit
Page of _20
Ordinance 1-0 5-0 3 3
This rule has seven subsections. Subsection (1) sets forth definitions. Subsection (2) describes
the procedures and standards for inventorying mineral and aggregate resources. Subsection (3)
establishes standards for determining if a site is "significant." Subsection (4) describes the
process for identifying conflicting uses. Subsection (5) requires the county to conduct an ESEE
(economic, social, environmental and energy) consequences analysis to determine whether or
not an inventoried site should be mined. Subsection (6) establishes standards for determining
whether information about a site is adequate for the required analyses. And subsection (7)
describes the applicability of the rules to post -acknowledgment plan amendments (PAPAS) as
follows:
Local governments shall amend the comprehensive plan and land use regulations
to include procedures and requirements consistent with this rule for the
consideration of PAPAs concerning aggregate resources. Until such local
regulations are adopted, the procedures and requirements of this rule shall be
directly applied to local government consideration of a PAPA concerning minim
sites, provided:
(a) Such regulations were acknowledged subsequent to 1989; and
(b) Such regulations shall be amended to conform to the requirements of this
rule at the next scheduled periodic review, except as provided under OAR
660-023-0250(7). (Emphasis added.)
The county has not amended the Bend Area General Plan or Title 19 to incorporate this Goal 5
rule. Therefore, the Hearings Officer finds this rule is directly applicable to the subject plan
amendment.
In a previous decision concerning a proposed plan amendment and zone change for a site zoned
SM (Stott, PA-98-12/ZC-98-6), this Hearings Officer found OAR 660-023-0180 contains no
provisions expressly addressing the removal of a site from an adopted inventory. However, I
made the following findings:
"* * * [I]t would not be reasonable to conclude the new Goal S rules exclude
PAPAs to remove sites from an adopted inventory. That is because the analysis
for determining whether a Goal S resource site is significant necessarily is the
same for any inventory decision — whether that decision is to add a site to the
inventory, to leave it off the inventory or to remove it from the inventory. For
these reasons, I find the new Goal S rules in general, and the provisions of OAR
660-023-0180 in particular, apply to the subject application to the extent they
reasonably can be applied to a decision to remove a site from the adopted
inventory. "
I adhere to those findings here, and analyze the applicant's proposed plan amendment under
this rule.
Subsection (3)(a) of OAR 660-023-0180 establishes standards for determining whether a site is
"significant." Title 19 does not define "significant" for purposes of mineral and aggregate
resources. Therefore, the Hearings Officer will rely on the standards in the administrative rule.
Subsection (3)(a) provides in pertinent part:
Miller Tree Farm
PA -04-9, ZC-04-7
15
(Exhibit r✓
Wage —5 of ?),
Ordinance Zoe 5 —033
(3) An aggregate resource shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section ... :
(a) A representative set of samples of aggregate material in the deposit
on the site meets Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and
sodium sulfate soundness, and the estimated amount of material is
more than 2,000,000 tons in the Willamette Valley, or 100,000 tons
outside the Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
(c) The aggregate site is on an inventory of significant aggregate sites in
an acknowledged plan on the applicable date of this rule. (Emphasis
added.)
The record indicates the county's inventory of significant mineral and aggregate resources was
acknowledged prior to the effective date of this Goal 5 administrative rule. Therefore, I find the
subject property falls within the "significant" standard in paragraph (c). Arguably, if the subject
property were indeed included in the county's inventory of "significant" mineral and aggregate
resources, the resource on the subject property is considered "significant" since it meets one of
these three criteria. However, as discussed above, it is far from clear whether the subject
property was included in the county's Goal 5 mineral and aggregate inventory. And in any
case, in the aforementioned Stott decision I found that interpreting OAR 660-023-0025(3)(c) to
mean any site on the county's inventory is by definition "significant" would create a "Catch-
22" where, as in Stott and here, the applicant seeks to remove a site from the inventory as no
longer "significant." Consequently, I find the "significant" standard in paragraph (c) should not
be applied to PAPAS requesting removal of a site from an acknowledged inventory.
As discussed above, the county has not adopted a significance standard in either Title 19 or the
Bend Area General Plan. While the inventory and supporting findings in Ordinance No. 90-025
reflect what standards the county initially used in including and excluding sites from the
adopted inventory, the Hearings Officer found in Stott that these documents cannot reasonably
be considered "standards" adopting a lower significance threshold for purposes of this
paragraph. I adhere to those findings here and find the subject property is not "significant"
under paragraph (b).
Thus, for the subject property to be considered to have a "significant" resource it must meet the
criterion in paragraph (a) requiring that the resource consist of at least 100,000 tons of material
meeting Oregon Department of Transportation (ODOT) specifications for road construction
base rock. Exhibit A to Ordinance No. 90-0025, which lists the mineral and aggregate sites
located in the Bend UGB, describes SM Site 302 as having 100,000 cubic yards of "good
quality" pumice. At the outset, the Hearings Officer finds pumice is not an aggregate material
that can be used as base rock. The record indicates pumice is used primarily for construction
materials. Therefore, I find SM Site 302 and the subject property do not constitute a
"significant" resource as defined in OAR 660-023-0180(3)(a). And even if pumice could be
considered such a resource, the applicant submitted credible evidence that the subject property
no longer contains a significant pumice resource. This evidence consists of a 1996 letter and a
1998 memo from Ben Mundie, Mined Land Reclamationist for DOGAMI, stating that portions
Miller Tree Farm
PA -04-9, ZC-04-7
16
Exhibit (21
Page -I a of ?.a
Ordinance 2-QQ5 -033
of the SM site have been fully mined and reclaimed, and a letter dated January 4, 2005 from
Charley Miller, the applicant's co -manager, stating that Site 302 was depleted of pumice
resource in the early 1980s. In addition, the record includes several documents indicating that
the portion of SM Site 302 that produced pumice resource was the parcel abutting the subject
property on the west that is now occupied by Summit High School, and that the subject
property was used to dry and stockpile the pumice resource removed from the portion of SM
Site 302 that is now the high school site.
For the foregoing reasons, the Hearings Officer finds that to the degree the provisions of OAR
660-023-0025 apply to the applicant's proposed plan amendment and zone change, the
applicant has demonstrated the subject property no longer contains a "significant" mineral and
aggregate resource requiring preservation and protection through Goal 5.
F. Oregon Administrative Rules
1. OAR 660, Division 129 Transportation Planning Rule
a.
Miller Tree Farm
PA -04-9, ZC-04-7
17
OAR 660-012-060, Plan and Land Use Regulation Amendments.
(1) Amendments to functional plan, acknowledged
comprehensive plans, and land use regulations which
significantly affect a transportation facility shall assure that
allowed land uses are consistent with the identified function,
capacity, and level of service of the facility. This shall be
accomplished by either:
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the
transportation facility;
(b) Amending the TSP [Transportation System Plan] to
provide transportation facilities adequate to support
the proposed land uses consistent with the
requirements of this division;
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel
and meet travel needs through other modes.
(2) A plan or land use regulation amendment significantly affects
a transportation facility if it:
(a) Changes the functional classification of an existing or
planned transportation facility;
(b) Changes standards implementing a functional
Oxhlbit e
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NdInance ?.�0 5 —113 3
classification system;
(c) Allows types or levels of land uses which would result
in levels of travel or access which are inconsistent with
the functional classification of a transportation
facility; or
(d) Would reduce the level of service of the facility below
the minimum acceptable level identified in the TSP.
FINDINGS: The applicant argues the proposed plan amendment and zone change will not
"significantly affect" a transportation facility because:
• the applicant is not proposing any development of the subject property at this time;
• surface mining operations have ceased on the property; and
• future development of the subject property with urban uses (following annexation into the
city's UGB) can be served by extension of the transportation system serving adjacent urban
lands, including Skyliners Road which is a designated city arterial and rural collector
street.
In support of its argument, the applicant submitted into the record information on traffic
impacts included in a traffic study prepared by Kittelson and Associates for the proposed
Cascade Highlands Destination Resort on property south of subject property across Skyliners
Road. That information indicates Skyliners Road currently operates at Level of Service (LOS)
A during the p.m. peak hour (4:00 to 6:00 p.m.). The applicant argues that the addition of
traffic generated by residential development of thirteen 10 -acre lots under UAR-10 zoning of
the 132 -acre property would have minimal if any effect on the function of Skyliners Road.4 The
traffic study states in pertinent part:
"According to the City of Bend's Transportation System Plan (TSP) the
projected daily traffic for a Major Collector is 1500 — 9000 trips per day. The
projected daily trips for a Minor Arterial are 5000 —18, 000 trips per day.
Based on this evidence, the Hearings Officer finds the minimal traffic that would be generated
by residential development on the subject property with UAR-10 zoning will not significantly
affect a transportation facility.
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS: The Hearings Officer makes the following findings concerning the proposal's
4 The Hearings Officer is aware that the Institute of Transportation Engineers Trip Generation Manual
predicts each single-family dwelling will generate approximately 10 trips per day, and that an estimated
ten percent of daily vehicle trips are generated during the p.m. peak hour. Therefore, thirteen residential
lots would generate approximately 130 daily vehicular trips and approximately 13 p.m. peak hour trips.
Miller Tree Farm
PA -04-9, ZC-04-7
18 Exhibit C
page —LS--- of
Ordinance 6-=-033
compliance with the applicable statewide land use planning goals:
Goal 1, Citizen Involvement. The Hearings Officer finds this goal is met because the county
provided notice of proposed plan amendment and zone change to the public through individual
notice to affected property owners, posting of the subject property with a notice of proposed
land use action sign, and notice of the public hearing in the "Bend Bulletin" newspaper. In
addition, a public hearing was held on the proposed plan amendment before the Hearings
Officer. The Hearings Officer's decision and the staff report provide the public with
information concerning the proposed plan amendment.
Goal 2, Land Use Planning. The Hearings Officer finds this goal is met because at least one
public hearing has been held on the proposed plan amendment and zone change.
Goal 3, Agricultural Lands. The Hearings Officer finds this goal is not applicable because the
subject property is not zoned or designated for agriculture.
Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable because the
subject property is not zoned or designated for forest use.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant's
proposal would remove the subject site from the county's Goal 5 inventory of significant
mineral and aggregate resource sites. As discussed in detail in the findings above, the Hearings
Officer has found the subject site no longer contains a resource meeting the minimum threshold
for significance in the new Goal 5 administrative rules. Therefore, I find the applicant's
proposal is consistent with Goal 5.
Goal 6, Air, Water and Land Resources Quality. The Hearings Officer finds this goal is not
applicable because none of these resources will be impacted by the proposed plan amendment
or zone change.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this
goal is not applicable because the subject property is not located in a known natural disaster or
hazard area.
Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the
proposed plan amendment and zone change do not reduce or eliminate any opportunities for
recreational facilities either on the subject property or in the impact area.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. The Hearings Officer finds this goal is met because
the proposed plan amendment and zone change would allow the subject property to be
managed developed with needed housing while in the Urban Reserve Area and after annexation
into the Bend UGB and city limits.
Goal 10, Housing. The Hearings Officer finds the proposed plan amendment and zone change
Miller Tree Farm
PA -04-9, ZC-04-7
19 Exhibit _
Page of 20
Ordinance 7005-03,5
are consistent with this goal because the applicant's proposed plan amendment and zone
change will allow the subject property to be developed with needed housing while in the Urban
Area Reserve and after annexation into the Bend UGB and city limits.
Goal 11, Public Facilities and Services. The Hearings Officer finds the applicant's proposed
plan amendment and zone change, in and of themselves, will have no effect on the provision of
public facilities and services to the subject site.
Goal 12, Transportation. The Hearings Officer finds the proposed plan amendment and zone
change are consistent with this goal because the applicant has demonstrated the potential traffic
impacts from redesignating the subject property to Urban Area Reserve and rezoning the
property to UAR-10 will not generate traffic significantly impacting a transportation facility.
Goal 13, Energy Conservation. The Hearings Officer finds the applicant's proposal will have
no effect on energy use or conservation because redesignating and rezoning the subject
property will not have an energy impact.
Goal 14, Urbanization. The Hearings Officer finds this goal is not applicable because the
applicant's proposal does not affect property within an urban growth boundary and does not
promote the urbanization of rural land.
Goals 15 through 19. The Hearings Officer finds these goals, which address river, ocean, and
estuarine resources, are not applicable because the subject property is not located in or adjacent
to any such areas or resources.
IV. DECISION•
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's proposed plan amendment from Industrial Reserve to Urban Area
Reserve for that portion of the subject property designated Industrial Reserve, and the
applicant's proposed zone change from Surface Mining to Urban Area Reserve (UAR-10) for
the entire subject property.
Dated this -/3�/—day of June, 2005.
Mailed this day of June, 2005.
Karen H. Green, Hearings Officer
Miller Tree Farm
PA -04-9, ZC-04-7
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Exhibit
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Ordinance ?.c�a5 �