Loading...
2005-1265-Minutes for Meeting November 01,2005 Recorded 11/4/2005DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 11104/2005 03:48:30 PM 11 JillII-Ili�� 1111111111 IIIIII 2 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. Document Reproduces Poorly (Archived) Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, NOVEMBER 1, 2005 Commissioners' Meeting Room - Administration Building - 1130 NW Harriman St., Bend Present were Commissioners Dennis R. Luke and Michael M. Daly. Commissioner Tom DeWolf was out of the office. Also present were Laurie Craghead, Legal Counsel; Catherine Morrow, Steve Jorgensen, Kevin Harrison and Cathy White, Community Development Department; George Kolb, Road Department; Attorney Nancy Craven and Thomas Walker of W & H Pacific for the applicants; and seven other citizens. No representatives of the media were present. The purpose of the meeting was to conduct a de novo public hearing regarding an appeal of the Deschutes County Hearings Officer's decision denying a 34 -lot subdivision located west of Bend in the UAR-10 zone. The file numbers are A-05-9 (CU -05-17 and TP -05-958) and the applicant is Tumalo Creek Development, LLC. Vice Chair Mike Daly opened the meeting at 2: 00 p.m. Vice Chair Daly read the opening statement (a copy is attached as Exhibit A). Commissioner Luke stated he has known the applicants for a number of years, but has had no pre -hearing contacts regarding this issue and feels there is no conflict of interest. Commissioner Daly said that he also has known the applicants for a long time, but has had no pre -hearing contacts with them regarding this issue. There were no challenges from the audience as to bias, personal interest or prejudgment from the public. Cathy White gave an overview of the history of the application and appeal. (A copy of the staff report is attached as Exhibit B) She summarized the four issues on appeal. She said that Steve Jorgensen, Senior Transportation Planner and Catherine Morrow, Planner Director, would also testify. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 1 of 9 Pages Ms. White referred to oversized maps of the properties, explaining to the Board where the parcels are located. The urban growth boundary the Bend City limits are adjacent; and in fact one parcel appears to be within the City limits. She pointed out where subdivisions, schools and parks are located. The Hearings Officer denied the approval because part of the property is located within the City and she has no authority over that decision. One proposal is to do a lot line adjustment to correct this problem. The applicant appealed the denial and has asked that there be an assignment of error to correct this situation. Bend Metro Parks & Recreation District has agreed to participate in the lot line adjustment process. They will in turn receive a donation of a portion of the property for park purposes, and that parcel will no longer be a part of the subdivision proposal. Concerning the building envelope, the purpose of urban area reserve zone is to make sure that adequate property is held in reserve for future development. Also, the proposed subdivision needs to comply the land use of the area and areas of special interest. Eventually the property will be annexed into the City. The property does have an area of special interest running between two lots. The Hearings Officer found that for orderly development each lot should have a building envelope. The applicant disagrees with this interpretation, and maintains that the intent was not to have all of the lots within a building envelope, but just specific lots, especially those that face Shevlin Park and to preserve areas of special interest. Commissioner Luke stated that the likelihood of Shevlin Park ever being developed by anyone is extremely remote. He asked why there should be building envelopes on the lots that fact the Park. Ms. White replied that this is for the protection of impacts to the Park. This was part of the applicant's discussions with Bend Metro Park & Recreation District, and the applicant agreed it was appropriate to keep those lots at ten acres with building envelopes. Commissioner Daly asked if the ten -acre minimum will go away when the City annexes the property. Laurie Craghead indicated that there will likely be deed restrictions on specific lots that would prevent this from happening. Ms. White explained that by removing the envelopes, there is no guarantee for the County to know if the area will be available for future development. If there is no restriction on where the buyer can build on the property, 75% of the open space the applicant is to provide could be lost. However, the City could allow a higher density once the area is annexed. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 2 of 9 Pages Commissioner Luke asked if everything the Hearings Officer is requiring in part of the Code. Ms. Craghead replied she has not checked everything yet. Ms. White stated that the third assignment of error is the Skyline Ranch Road dedication. The Hearings Officer wants the dedication to be 40 feet. It would be a planned collector for the southeast side of the subdivision. An additional 800 feet needs to be built. Steve Jorgensen indicated where the road is located and what areas are served by the road. The road ends at the City limits at this point. Ms. White explained that this would be a secondary access. The primary access would be located at the northern section off Plain Drive, which is a public road that needs to be improved. It connects to Shevlin Park Road. The southern access point is located in the southeast corner. There are three alternatives: Skyline Ranch Road, which is not yet built; a road in Northwest Crossing to the east; or a road connection to the Miller Tree Farm property to the south. Also, there is a proposed emergency access located at the north end between lots 32 and 33, through the Three Pines subdivision. The Hearings Officer states they need to dedicate Skyline Ranch Road before issuing building permits. That is linked to a rural fire protection standard, which is up to 25 dwelling units for a single access; any more than that requires an additional access point. The phases show this dedication at the last phase, which would be more than 25 lots. This raises questions regarding the secondary access. The fourth assignment of error is that each dwelling unit is to have a residential fire extinguishing system. The Hearings Officer imposed this condition to be added to the CC&R's. W&H Pacific and the applicant have worked with the Fire Marshal to add the property to Deschutes County Rural Fire Protection District No. 2. Therefore, the applicant feels this requirement should be removed. Commissioner Luke observed that sprinkler systems in residential buildings are not required per the State Building Code. He added that he does not feel this should be a condition of approval. Ms. White said she asked the Fire Marshal to comment on this requirement, and his memo is attached to the staff report. He is not requiring it, although he said these systems can provide some benefits. Steve Jorgensen then testified. He said that he has worked with the Planning Director and the Road Department to analyze the road situation more closely. They looked at connectivity of local and future roads, and what this means to the project once it has been urbanized. There is also a question about the forty feet of dedication for Skyline Ranch Road and whether it will ever be built. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 3 of 9 Pages (He referred to oversized maps and aerial photos showing existing and planned roads) The current road runs behind Summit High School. Northwest Crossing has approved plans for roads that meet up with the property. Nothing is shown for the Miller property to the south. The other property that is not connected by a road has a physical barrier, probably a rock outcropping. Mr. Jorgensen said that he would like to see the applicant work to identify whether Skyline Ranch Road can be built in the alignment shown. Extensive cut and fill work would be necessary due to the slope and grade. It perhaps could work but this is not detailed in the applicant's burden of proof. It does not say who would built it and how it will be built and connected. They need to take advantage of the terrain as much as possible. The biggest problem is a canyon. Also, the local road that is to connect to it also has development problems and will need to be realigned. The other question is the one of orderly development. Shadow plat maps show it connecting to Three Pines subdivision for emergency access. The main entrance would be through McClain Road. There could be a future connection to Northwest Crossing, but nothing has been identified from the south. It the area becomes urbanized, it is uncertain how this would happen. Commissioner Luke asked if the City of Bend looked at this situation since it is in the urban reserve area. Ms. Craghead said that in Robin Lewis' memo, she raised some of the same points. This is contained in the staff report. Mr. Jorgensen explained that the Hearings Officer's requirements gave an and/or kind of idea. He would like to see all of these things conditioned, not just one or two. There really needs to be a realistic Skyline Ranch Road connection, and some connectivity to the Miller property. Commissioner Luke asked George Kolb, engineer with the Road Department, if he had any comments. He did not. Commissioner Daly asked Mr. Kolb if he had looked at the property's right of way. He said he had not, and that the topographical maps show much of the information. Commissioner Daly noted that some adjacent properties are already developed with stubbed streets. Ms. Craghead clarified that these are not actually requirements since the Hearings Officer denied the application, but are suggestions for the Board to consider. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 4 of 9 Pages Ms. White stated tax lot 101 was the subject of a possible lot line adjustment. The initial application was found to be incomplete, so a lot of record verification was done. Approval was not conditioned on this basis. Nancy Craven, attorney for the applicant, and Thomas Walker of W&H Pacific then testified. They present information to the Board at this time (these are attached as Exhibits C and D). They indicated Scott Carlson, the CFO of Hooker Creek Company, and Matt Day, the owner. She said there are four issues to be addressed at this time that were raised in the appeal. These are the lot line adjustment, building envelopes, Skyline Ranch Road and the fire sprinkler systems. Regarding the lot line adjustment, the applicant worked extensively with the Park District. This situation has been addressed and is now part of the record. A small parcel of land was dedicated to the Park District, and this addresses the Hearings Officer's concerns. The development was designed for ten -acre lots, consistent with UAR zoning. After meeting with the Park District and other individuals, it was decided that the lots located along the boundary of Shevlin Park were to be delineated with building envelopes. The setbacks greatly exceed those that are required in the zone. This insures there will be no further subdivision of those lots, even if the property is annexed into the City. These building envelopes will be a buffer between the Park and urban development, and will be identified in the CCR's. The overall intent is to have the lots located closer to the City smaller, then larger as they go away from the City. In the memo that was just submitted, the building envelopes were addressed. They are proposed on lots 2 through 6 and in areas of special interest. The developer does not feel building envelopes are necessary on the remaining lots, and the Hearings Officer did not indicate they are needed for orderly development. The exact locations of the buildings on the lots are not relevant to the orderly development of the overall pattern. The Hearings Officer has found this in other decisions. The developer would like to see the building envelopes required where appropriate. Ms. Craven suggested that the Commissioners look at the memo and compare it with the Hearings Officer's decision; this will show that the developer made a good case that the building envelopes in other than the two locations are not necessary to address future development concerns. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November I, 2005 Page 5 of 9 Pages Commissioner Luke said that there has been a lot of talk in the past about developments around Portland, with concerns that if houses are in the wrong configuration the city will not be able to make the best use of the land at a later time. Ms. Craven stated her memo addresses this concern; she added she does not believe the exact location of the building envelope within a ten -acre lot is relevant. Tom Walker then testified. He said Skyline Ranch Road is a dedicated collector in the City's urban growth boundary. The Hearings Officer found that a condition of approval requiring improvements to that road is proper. However, it would not connect anything or go anywhere. The Hearings Officer also found that portions of the road might be difficult to construct due to the terrain. Engineers should determine the most feasible location for the road. The Hearings Officer also indicated this should be addressed at the final approval point. Commissioner Luke asked if there would be a problem if the property does not sell that quickly, and the property located to the south comes into the City and develops but no alignment has been established. Mr. Walker replied that that is always a potential problem, as you cannot always know when an adjacent property will develop. Commissioner Luke asked if the secondary road is not planned until the 27t'' lot. Mr. Walker replied that it would be the 30'h lot, and that the Hearings Officer found that the roadways in the southeast corner should be designed with the County's transportation planner. The topography, which includes ridges and deep canyons, complicates the design of the road. He said Steve Jorgensen raised some issues regarding grid connections. Three Pines subdivision stubbed out a road at the property at the north boundary. Three Pines streets are private, and a private/public connection is not possible. This location would provide only an emergency access, which complies with requirements. A fire gate would be in place. He said Mr. Jorgensen talked about Anderson Ranch Road to the east. Their roads are also private. But with steep topography along the eastern boundary, a connection is not feasible. A street connection to Northwest Crossing was identified. Several things have happened. One road provides access to Ridgetop, which was originally a cul-de- sac. This can only occur when Northwest Crossing develops it. On the south boundary the owner of Miller Tree Farm has reached an agreement regarding connectivity. They worked with the Road Department and believe they have reached what is required by staff. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 6 of 9 Pages There are conflicting standards of the City and County. Collector streets are a City standard. This property is under County jurisdiction now, but because it is in urban area reserve, City issues have to be addressed. Another issue in this regard is the City's system development charges. When the property comes into the City, SDC's will be paid. Mr. Walker proposed that a right of way be identified to accommodate a future road to be built to County road standards, but one that can accommodate a City collector in the future. The SDC's provide a mechanism to do this. Approval conditions have been proposed to address these issues. He proposed resubmitting the tentative plan, identifying an alignment for Skyline Ranch Road taking into account the terrain, to address the concerns raised. Skyline Ranch Road was initially constructed to a local standard to provide access to a private lot. Ms. Craghead said that this is an impermissible delegation outside of this process. Connectivity needs to be shown now and cannot be deferred to a later date; there needs to be another public process to run this through. Mr. Walker replied that this is just a refinement of the discussion today. A resubmittal to the Road Department would refine it. The Hearings Officer imposed a requirement for a future emergency access, and this is the same kind of logic. Ms. Craghead stated that the conditions imposed are much more open-ended than those of the Hearings Officer. She said she would have to look at this further. Ms. Craven stated that this would be a revision to the alignment of Skyline Ranch Road, and not a significant change to the tentative plat that was already submitted. She added that there should be a way to resolve these questions, either with a clarification of the findings or a submittal. Commissioner Luke stated that since these documents were just received, Counsel and staff need time to analyze and clarify the information. He added that he does not want to have the County's road engineer making a decision that could be appealed on that basis later. Commissioner Daly indicated the lot line adjustment is appropriate. He disagrees with the Hearings Officer regarding the building envelopes. The road dedication seems to be the biggest issue. The last issue is the requirement for residential fire sprinklers. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 7 of 9 Pages Mr. Walker said that he talked with Gary Marshall, the Fire Marshal, and there appear to be no issues with the requirement for sprinklers. The Hearings Officer recommended this, but does not know what kind of homes might be built. Initially there will not be an urban water distribution system. There are a number of ways to address this issue to conform to the rules of the Fire Protection District. All the developer wants is the flexibility to work within the standard, which does not necessarily include fire sprinkler systems. According to the Fire Marshal, there are a number of options available. Ms. Craven added that the annexation to the Rural Fire Protection District occurred after the Hearings Officer heard the issue. Commissioner Luke noted that the Fire Marshal's Association on a national level has been trying to have residential sprinkler systems required for a long time, but have not been able to make their case. In colder climates these systems are not always practical. The Project Wildfire Committee works with developers and the County Forester to develop wildfire management plans. If this applicant would work with the Forester to develop an appropriate plan, it would be helpful. This was done voluntarily with Cascade Highlands. It benefits the area and the development. Commissioner Daly agreed that there should be more flexibility to pick the best option. Vice Chair Daly asked if anyone else wished to speak on behalf of the applicant. No testimony was offered. He asked if anyone wished to testify in opposition. None was offered. He asked if staff had any closing comments. Cathy White said the staff report contains a list of specific suggestions provide by Bend Fire Department. Those comments came in prior to the hearing. Specific conditions were noted, as shown on page 8 of the staff report. She said she is uncertain whether those are appropriate now that the property is within the Rural Fire Protection District. Steve Jorgensen pointed out there is a willingness to address the conditions, and he wants to go over the applicant's suggestions. He said the construction of Skyline Ranch Road is not required, but needs to be dedicated in a logical location. The standard would have to be reviewed, as there is a big difference between a local street and a collector street standard. Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 8 of 9 Pages Vice Chair Daly continued the hearing until the Wednesday, November 9, 10:00 a.m. Board meeting, at which time this will be addressed further. DATED this 1St Day of November 2005 for the Deschutes County Board of Commissioners. ATTEST: (&a,m� 6X11 Recording Secretary Tom DeWolf, Chair i ael M. Daly, ommissioner Dennis R. Luke, Commissioner Attachment Exhibit A: Preliminary statement (3 pages) Exhibit B: Staff report dated November 1, 2005 (14 pages) Exhibit C: Statement in Support of Appeal of Hearings Officer's Decision (4 pages) Exhibit D: Memorandum dated November 1, 2005 from W&H Pacific (10 pages) Public Hearing regarding Tumalo Creek Development, LLC Appeal Tuesday, November 1, 2005 Page 9 of 9 Pages PRELIMINARY STATEMENT IN APPEALS BEFORE THE BOARD I. INTRODUCTION A. This is a de novo hearing on an appeal of the Deschutes County Hearings Officer's decision denying a 34 -lot subdivision located west of Bend in the UAR-10 zone. File numbers: A-05-9 (CU -05-17 & TP -05-958) B. In the application, the applicant proposes to establish a 34 -lot subdivision to be called "Tumalo Creek Estates" on a 376 -acre parcel in which each lot would be at least 10 acres in size and served by public roads. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicant has the burden of proving that they are entitled to the land use approval sought. B. The standards applicable to the application before us are listed on pages 1 and 2 of the Hearings Officer's decision dated August 29, 2005 and are posted on the wall. C. Testimony and evidence at this hearing must be directed toward the criteria set forth in the decision of the Hearings Officer report, the staff report as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes applies to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Page 1 of 3 -Chair's Opening Statement for Land Use Hearings File: A-05-9 (CU -05-17, TP -05-958) Date of Hearing: 11/01/05 Exhibit — Page �_ of -21, 1* III_ "" $ ARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the appeal will then be given a chance to testify and present evidence. When all other proponents have testified, opponents to the appeal will then be given a chance to testify and present evidence. 4. After both proponents and opponents have testified, the applicants will be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, Page 2 of 3 -Chair's Opening Statement for Land Use Hearings File: A-05-9 (CU -05-17, TP -05-958) Date of Hearing: 11/01/05 Exhibit_ -A Page 2 of that person may also direct the question to the Chair after all other witnesses have testified but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances 1. The grant of a continuance or record extension shall be at the discretion of the Board. V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS 1. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. 2. Does any party wish to challenge any Commissioner based on ex - parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) Page 3 of 3 -Chair's Opening Statement for Land Use Hearings File: A-05-9 (CU -05-17, TP -05-958) Date of Hearing: 11/01/05 Exhibit P� Page _S of NN r c� w2� Community Development Department P p ent Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ Memorandum To: Board of County Commissioners From: Steve Jorgensen, Senior Transportation Planner CC: Catherine Morrow, Planning Director and Kevin Harrison, Principal Planner Date: 11/1/05 Re: File No.: A-05-9 (CU -05-17 & TP -05-958) Appeal of the Hearings Officer's Decision Denying a 34 -lot Subdivision located west of Bend in the UAR-10 zone (Tumalo Creek Estates) Appellant & applicant: Tumalo Creek Development, LLC On September 26, 2005, the Board issued an order accepting to hear the applicant's appeal of the Hearings Officer's decision denying the applicant's 34 -lot subdivision located west of Bend in the UAR-10 zone. The purpose of this memorandum is to provide the BOCC with my transportation - related comments that apply to the Hearing Officer's findings and may be considered by the BOCC as part of the official record for this appeal. I. Background On August 29, 2005, the Hearings Officer issued a decision denying the applicant's request to establish a 34 -lot residential subdivision to be called "Tumalo Creek Estates" in which each lot would be at least 10 acres in size and served by public roads (see attached Hearings Officer's decision). The proposal is located on the western edge of the Bend city limits and zoned Urban Area Reserve (UAR-10) with a Destination Resort (DR) overlay (tax lots 17-11-00-6000, an ots 17-11-26-101 and 400, see attached location map and tentative plat. II. Transportation Issues Raised On Appeal The appellant raised the following transportation -related assignment of error on appeal relativetb the Hearings Officers recommended conditions of approval. 11 b. Third Assignment of Error Skyline Ranch Road Dedication The proposed subdivision will take primary access from a public road with a northem outlet between Lots 29 and 34 and a southern outlet between lots 20 and 21. The northern outlet would connect the subdivision road with McClain Drive and thereafter with Shevlin Park Road (see attached Tentative Plat). The southern outlet would connect the subdivision road with either the future Skyline Ranch Road, also a designated collector, or a future local street in the adjacent Northwest Crossing development. Quality Services Performed with Pride Exhibit �Z Page —),--Of The Hearings Officer recommended the following two conditions of approval relative to the dedication of Skyline Ranch Road: PRIOR TO ISSUANCE OF A BUILDING PERMIT FOR THE TWENTY-SIXTH (26"') SUBDIVISION DWELLING: 22. The applicantlowner shall dedicate 40 feet of right-of-way for the abutting segment of Skyline Ranch Road. 23. The applicantlowner shall construct a southem subdivision access to the county's standards for rural local roads. This road shall consist of a connection from the main subdivision road to: a) Skyline Ranch Road if at the time of connection it is improved and connects to either Shevlin Park Road or Skyliners Road; b) a dedicated and improved public street within the Northwest Crossing development; or c) the Miller Tree Farm property to the south if this connection is available at the time the building permit for the 26th dwelling is requested and before the access described in (a) above can be constructed. The appellant believes the Hearings Officer's suggested conditions of approval are inconsistent with her findings as stated below: The inconsistency seems to derive from the fact that the Hearings Officer concluded that a secondary access should be provided prior to issuance of a building permit for the 2e dwelling within the subdivision. (Hearings Officer's Decision, p. 32). This is due to a Rural Fire Protection Standard allowing up to 25 homesites in a single access subdivision. However, the right-of-way dedication for Skyline Ranch Road is not necessary to provide the secondary access. Rather, as recognized by the Hearings Officer in Condition 23, the Applicant has several options to provide secondary access, and only one of the three options would require the dedication and construction of Skyline Ranch Road. Therefore, the Applicant requests that the Board remove Condition 22 from the heading "PRIOR TO ISSUANCE OF A BUILDING PERMIT FOR THE TWENTY-SIXTH (26T") SUBDIVISION DWELLING," and place it under a new heading that reads: "PRIOR TO FINAL PLAT APPROVAL FOR PHASE 8." III. Comments The appellant is requesting to add a new heading and place Condition 22 under the new heading. The timing of dedication of the 40 -feet of right-of-way for the abutting segment of Skyline Ranch Road could be accomplished with the last phase, Phase 8 of the subdivision, or before, as stated by the Hearings Officer on page 24 of the decision.' I believe the issues are more complex than simply changing headings. ' Page 24 of the Hearings Officer decision states: Accordingly, I find I cannot constitutionally require the applicant to improve the abutting segment of Skyline Ranch Road. However, l find that if the subdivision is approved it should be conditioned on a requirement that the applicant dedicate 40 feet of right-of-way for the abutting segment of Skyline Ranch Road with Phase 8 of the subdivision.18 Footnote 18 of the Hearings Officer's decision on page 24 states "the applicant may elect to dedicate this right- of-way prior to Phase 8 to facilitate the provision of a required southern access." Page 2 of 6 Exhibit Page _9 of In light of the Hearings Officer decision to defer the Skyline Ranch Road right-of-way (ROW) dedication and provide three options for secondary access, there appear to be several transportation issues that should be addressed directly such as how orderly development (including shadow platting) is addressed, the dedication and construction of Skyline Ranch Road and connectivity to adjacent existing and planned developments. From the applicant's burden of proof- The roof The Applicant proposes to design the subdivision in a manner that carefully integrates development into existing landscape. The Applicant's plan will preserve rock outcroppings, ravines, meadows and forested areas as part of the overall scheme to maintain significant open space, as required by the lot size standards for the UAR 10 zone. Consistent with the purpose of the UAR-10 zone, the Applicant has also produced several alternative "shadow plats" to demonstrate how portions of the site could be developed at a higher density if the property is included in the Bend Urban Growth Boundary at a future date (Exhibit 5). The proposed subdivision is designed to achieve orderly growth by developing desirable low density residential options while creating an appropriate transition area from higher density development within the Bend UGB to the less developed open space, forest, and rural residential lands to the west. To implement the purpose of the UAR-10 zone, the low-density subdivision will meet the ten -acre minimum lot size, and the majority of each lot will remain in open space. As depicted on the draft "shadow plats," depending upon the timing of sale and construction of lots within the subdivision, there are a variety of options for future redevelopment of the property to accommodate "orderly growth" in the future if the site is ultimately selected for inclusion in the Urban Growth Boundary, as contemplated by the UAR-10 purpose statement. (Exhibit 5). The Applicant has designed the southeastern corner of the subdivision to accommodate a portion of the right-of-way for the extension of Skyline Ranch Road, the future collector proposed on the Bend Urban Area Transportation Plan. Although this north -south connector is not necessary to accommodate the proposed subdivision, the subdivision has been designed to connect to the road when it is constructed to support additional development on the west side of Bend. This sequence of development contributes to the orderly pattern of growth in the Urban Area Reserve west of Bend. A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. The proposed subdivision is designed to facilitate orderly growth and development by creating a transition area between the existing dense residential areas within the Bend UGB and the rural residential, open space and the forest lands to the west. Given the denser residential development to the east, the proposed low-density development will provide an appropriate transition into the undeveloped OS&C and F-1 lands to the west because approximately 76 percent of the project will be left as open space and appropriately vegetated to blend with and complement the surrounding areas. The proposal also contributes to the urban goals of accommodating future higher density residential development by accommodating future urban densities when appropriate, as depicted on the Shadow Plats. (Exhibit 5). Page 3 of 6 Exhibit Page J-�> of _ Local Street Connectivity The applicant correctly states that the nature of the UAR-10 Zone is as a holding zone until urban level development is appropriate. The applicant also acknowledges that the proposal addresses the urban goals of the City of Bend via shadow platting, which is why the applicant had submitted seven (7) different shadow plats. However, the local street patterns shown in the various shadow plats do not align with the proposed private local roads shown within the submitted tentative plan, and do not connect with exiting platted or constructed local roads adjacent to the property. Specifically, this application (and the shadow plats as well) does not identify street connections: • south to the Miller UAR-10 property • north to a stubbed street ROW at the Three Pines subdivision • east to a platted right of way adjacent to Phase 4, or • east to an approved local street for the Northwest Crossing development To comply with orderly development and adjacent land use patterns, rather than having a single local road connection be one of three options as conditioned by the Hearings Officer, the applicant should be conditioned to construct local streets to connect to the planned and platted local street network to the north, south and east. Local street connections should be dedicated and constructed to assure connectivity to meet Bend Urban maximum block length standards (600 feet in residential subdivisions according to Bend Land Division Code Section 6.030). Transportation System Plan Collector Street (Skyline Ranch Road) Both City and County Transportation System Plans (TSP) identify the same generalized alignment for a future extension of Skyline Ranch Road as a future north -south collector road linking Shevlin Park Road and Skyliner Road. The City TSP specifically states that: "The circulation plan designates a system of major streets that are necessary to move people and goods safely and conveniently within the urban area. The system is depicted on the Roadway System Plan Map as expressways, principal arterials, major and minor arterials, and major collector streets. In many instances, the alignments depict a -generalized corridor, and precise alignments of future streets will be determined after further study and engineering analysis, or during the development of vacant properties. The road system is based generally on a spacing of one mile for arterials and one-half mile for collectors. The precise alignment for new streets must be defined as development occurs. In some areas, additional collector or arterial streets beyond those shown on the plan map may need to be established as the community grows. The City would establish the location of additional streets as part of the land development process and Street System Plan amendments made as necessary. It is extremely important that adequate rights-of-way are secured as development or redevelopment occurs along these designated corridors to protect these future roadways." What this points out is that typically, some alignments on the TSP will be generalized to show regional connectivity and be subject to engineering evaluation when developments are proposed that impact or require access to such future roads. An example is the southern extension of Skyline Ranch Road from Skyliner Road to Century Drive which has been partially completed, and will be completely built as a result of already approved County land use permits. This portion of Skyline Ranch Road was also a generalized alignment on both TSPs, then as development was proposed, the applicant's engineers worked with topography to route the new road through their development to its ultimate connection with Century Drive. Page 4 of 6 Exhibit 7) Page _L-�_ of �— Based on the County Road Department's evaluation (memo attached) of the proposed alignment, the burden of proof does not provide findings to demonstrate that the proposed Skyline Ranch Road is located in such a way that it can actually be built and logically connect to the north and south of this property, and contribute to the required orderly development. Using the tentative plan map submitted with the application, I found that the local road connection includes grades ranging from 18 to 36 percent just before it connects with the proposed Skyline Ranch collector. The section of Skyline Ranch Road shown includes grades ranging from 13 to 24 percent. Both of these proposed roads exceed the acceptable level of allowed slope (not to mention sight distance requirements), with no mitigation in terms of fill and removal or slope easements identified. The applicant has not located the future collector ROW, or the private road connection to it, in an area that meets grade requirements identified in Table A of DCC Title 17. Those maximum grade requirements are 12 percent (12%) for private roads and eight percent (8%) for collectors. Because TSPs are part of adopted Comprehensive Plans, the application would not meet the intent of DCC 17.16.100: 17.16.100. Required findings for approval. A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of DCC Title 17 and DCC Title 18 through 21, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use pa ems in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and for lands and other natural resources. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. The Hearings Officer's Condition #22 does not assure that any ROW for Skyline Ranch Road will be dedicated (for instance if the applicant chooses to only plat 25 lots), let alone be built. If in fact this property is brought into the Bend UGB and urbanized as suggested in the City Comprehensive Plan, there are no assurances that the City's grid street policy will be followed as well. Additionally, the 40 - foot ROW dedication shown on the plat does not completely line up with the previous dedication to the north, thus putting the burden for completing the needed ROW dedication, and presumably construction as well, on the West Bend Properties, Ltd. Development to the east (Northwest Crossing). The application relies on dedication of ROW along what was clearly a generalized alignment in the TSP. If the proposed 40 -foot ROW dedication as shown is not practible due to cost and topography, it may be necessary to request that the applicant dedicate the full 80 -feet of ROW on their property. The County clearly needs to see how the entire length of Skyline Ranch Road from Shevlin Park Road to Skyliners Road can be properly aligned with respect to topography and existing and future developments, including all local road connections to it in the proposed tentative plan. If road ROW is to be dedicated as a condition of approval (per the Hearings Officer Decision), the County has a responsibility to have reasonable assurances that the future collector road is constructible. As shown on the tentative plat, the alignment of Skyline Ranch Road (straight along the section line) could be physically built, but at greater cost than other nearby alignment choices, and it would require slope easements from adjacent private lots. No slope easements are identified in this application. In addition, the County does not have transportation System Development Charges to help offset the construction of this road, and if given the choice, the City and County would both choose to relocate the ROW from that shown on the plat if we had to build it. At a minimum, the applicant should be Page 5 of 6 Exhibit Page f�'_ of L4 conditioned to dedicate the necessary ROW (in a proper location) and bond for their portion of the construction of Skyline Ranch Road. If the BOCC accepts the appeal and approves the tentative plan as submitted, the possibility exists that lots will be platted that effectively preclude a realistic future alignment of a collector roadway shown on the County and City TSPs. Once the proposed lots in Phases 1 through 8 are platted, the opportunities for proper collector and local ROW dedication may be lost. A likely recourse could be for the City and County TSPs to be amended to move the proposed Skyline Ranch Road west beyond the Urban Area Reserve lands or delete it altogether. IV. Summary Based on the foregoing, we believe the BOCC has three courses of action regarding the appeal relative to local street connectivity and Skyline Ranch Road based on the criteria in DCC 17.16.100, "contributing to orderly development and land use patterns in the area" and in DCC 17.36.020 Design Standards for Streets: 1. Uphold the appeal, but delete conditions 22 and 23 and replace them with the following conditions: • Dedicate right of way and construct a local road meeting county standards to be stubbed out at the southern edge of the property in Phase 7. • Construct the local road to the east edge of Phase 8 so that it connects to the local street shown on the Northwest Crossing Street Type Plan adopted by City of Bend Ordinance NS1968. • Dedicate right of way and construct a local road meeting county standards between lots 32 and 33 to connect to the stubbed out right of way in the Three Pines subdivision to the north • Dedicate 80 feet of right of way for Skyline Ranch Road in Phase 8 in a location that can reasonably be constructed considering topography and connection to properties to the north and south, or demonstrate prior to final plat approval for Phase 8 that Skyline Ranch Road can reasonably be constructed at the eastern edge of the property as identified on the tentative plat. 2. Uphold the appeal and accept the recommended amendments to language suggested by the applicant to Hearings Officer Condition #22. With this option, there is no guarantee that the Skyline Ranch Road collector will be built or relocated to a more appropriate location, future urban densities will be accommodated, or local road connectivity will be achieved to the north, east or the south to assure orderly development and future land use patterns in the area. 3. Deny the appeal based on non-compliance with DCC 17.16.100 and DCC 17.36.020. Attachments: 1) City of Bend Memo from Robin Lewis 2) County Road Dept. Memo from George Kolb 3) Northwest Crossing Approved Street Type Plan Map 4) Location Map with TSP Road Classifications Page 6 of 6 Exhibit Page—vl� Memorandum To: Steve Jorgensen From: Robin Lewis Subject: CU -05-07, TP -05-598 Date: October 28, 2005 cc: file Thank you for the opportunity to have the City provide further input on this land use proposal. The City really is concerned about two items - grid/connectivity, and Skyline Ranch Road. With regards to grid/ connectivity, the City of Bend, in accordance to Bend Code 10-13.6, Section 6.020, Streets, Sidewalks and Bikeways and 6.030, Blocks, would like to permit satisfactory future division of adjoining land. There are two issues with grid and connectivity pertaining to the Day land use. First, there are adjoining properties that have already developed within the City that were required to provide the Day property with stub streets. The applicant is not showing connections to these already stubbed rights of way, and should be required to do so. Second, the Day application is not proposing to continue the grid/ connectivity pattern of development onto undeveloped adjoining properties. Block lengths within the City of Bend is 600 feet for residential properties. Stubbed streets should be provided to all redevelopable properties adjoining the Day property. This would include Northwest Crossing to the east and the parcels to the west and to the south. With regards to Skyline Ranch Road: On May 23, 2005, City provided the following comments regarding Skyline Ranch Road; The applicant has proposed a dedication of 80 feet (should read 40') along the property's eastern boundary for the future alignment of Skyline Ranch Road. This road is designated as an urban collector road on the Bend Urban Area Roadway System Plan. The plan map shows a straight north -south alignment of this road that would cross the eastern boundary of proposed Lots 20 and 21. We S:\CDD\planning\Long Range\Land Use Comments\Skyline Ranch Road City Comments.doc Exhibit n Page ---I of �`� believe that the topography in this area may require a meandering alignment similar to that of Mt. Washington Drive. We also believe that the applicant's engineer may have completed some preliminary work on this meandering alignment for Northwest Crossing." The roadway in question, Skyline Ranch Road, is shown on the City's TSP map as a secondary ring road extending over 5 miles in a general north -south alignment, roughly parallel to Mt. Washington Drive. Skyline Ranch Road has been planned to create a strong grid system tying important east -west roadways on the west side of Bend, including Century Drive, Skyliner Road, and Shevlin Park Road. The roadway alignment contained within this land use action TP -05- 598 is critical as it could potentially create a barrier in roughly the middle of the Skyline Ranch ring road. If the location of the right-of- way dedication, as proposed by the applicant, is accepted, there is a strong possibility that the City would not be able to overcome the topographic and slope easement constraints presented by this alignment, effectively forever creating a disconnect in the ring road. Furthermore, the land in question is located in Urban Area Reserve, which when developed to RS densities will create thousands of new homes. The applicant's impact alone, even when developed as 10 acre lots, is projected to add over 300 new vehicle trips to the transportation system. These homes, being far from the urban core, will not have much opportunity for walking and biking trip reduction. Reliance on the automobile necessitates the ring road. The City in their earlier comments pointed out the necessity to meander the road. The need for the meandering was not, however, considered by the Hearings Officer. Furthermore, it is not clear in the Decision whether the right-of-way is even required at all. It appears that if the applicant applies for a building permit on a 26th lot, then the 40' right-of-way, located along the eastern property line, would be required. The applicant may never apply for a building permit on the 26th lot. The 26th lot does not correspond to Lot 20 or Lot 21 of the applicant's tentative site plan. These lots may be owned privately at the time of the building permit request for a 26th lot. This is an extremely tenuous requirement for such an important ring road to the future transportation system. The Bend Urban Area Roadway System Plan map includes the following comment regarding proposed roadway alignments: "The proposed roadway alignments shown on this map are general in nature. Precise roadway alignments will need to comply with city of Bend street standards, and other engineering and design work that will be conducted as part of the land development process." S:\CDD\planning\Long Range\Land Use Comments\Skyline Ranch Road City Comments.doc Exhibit Page �_ of _L4_ Furthermore, the City's Transportation System Plan document, Section 6.5 states, "The precise alignment for new streets must be defined as development occurs...It is extremely important that adequate rights-of-way are secured as development or redevelopment occurs along these designated corridors to protect these future roadways." We believe the time for this engineering and design work is now - in conjunction with this land development process. The applicant has shown that a roadway along their proposed alignment cannot be constructed to proper engineering standards within the 80 foot right of way due to the topographic constraints. After having an opportunity to review with the County Engineer the potential vertical curvature, and the required cut and fill necessary to construct Skyline Ranch Road in a straight north -south alignment, the City is convinced that the roadway cannot be constructed in an 80' right-of-way due in this direct north -south alignment due to the extensive cuts and fills and their requisite slope easements. The cuts and fills would be on the order of 25' to 30' high/deep in order to achieve a safe roadway design (adequate sight distance along the roadway as well as for cross -streets). Safe roadway design parameters are provided in the AASHTO Greenbook (a.k.a. American Association of State Highway and Transportation Officials Policy on Geometric Design of Highways and Streets, 2004 Edition). In order to have recoverable side slopes, the roadway should have a 3:1 to 4:1 side slope which leads to extremely wide slope easements (75' to 120') on private property. Attached is a conceptual plan and profile of the roadway if placed in the proposed straight alignment. This preliminary alignment shows the magnitude and extent of potential impact associated with a straight road at the property line. This shows a 100' slope easement to either side of the right of way line that would be necessary to lay back the cuts and fills so that sight lines as well as roadside safety are achieved. A far safer and less expensive design (nominal cuts and fills), that achieves AASHTO standards, requires that the ROW for Skyline Ranch Road be meandered as the City suggested in our May 23, 2005 comments. Therefore, it is the City's request that an 80' right-of-wau be dedicated bu the applicant along the top of the ridge (between the 3,790' contours). This requires that the entire 80' right of wau be dedicated by this applicant from their northern propertu line to their southern provertu line in a meandering fashion trending northeast to southwest varallel to the ridge line somewhere on Lots 20 and 21. The City of Bend feels that this is in compliance with the City's Transportation System Plan and is in the best interest of the citizens of Bend. S:\CDD\planning\Long Range\Land Use Comments\Skyline Ranch Road City Comments.doc Exhibit Z) Page Q of _\LY— The City would also request that the applicant be made responsible for designing and constructing Skyline Ranch Road to County and AASHTO standards as it would be a connecting road within their subdivision, providing access to Lots 20 and 21. In the event the City's request cannot be accommodated, we request that the applicant dedicate 40' along their eastern property boundary, Plus 100' of slope easement (or as necessary for an approved design), plus design of the roadway to meet County and AASHTO standards. Consideration should also be given to requiring the applicant to pay a proportionate share of the cost of this roadway given that a roadway in this location will have increased costs due to the cut and fill needed. S:\CDD\planning\Long Range\Land Use Comments\Skyline Ranch Road City Comments.doc Exhibit Page \ C, -L of _L� I "A', UN, MEMORANDUM TO: STEVE JORGENSEN, SENIOR PLANNER FROM: GEORGE, KOL,B, COUNTY ENGINEER SUBJECT: T'UMALO CREEK DEVELOPMENT DATE: 10/31/2005 CC: FILE Steve; This memo concerns the location of the proposed 80 foot right-of-way for the future collector, Skyline Ranch Road, which the Road Department addressed in the comments dated May 26, 2005. The initial comments stated that Skyline Ranch Road right-of-way would be dedicated on the eastern boundary of the property and that the road would be constructed by the applicant. After further review of the right-of- way location with yourself and the City of Bend on Wednesday, October 26`h, It appears that the hearings officer decision indicates that the applicant will only be responsible for dedication of the right-of-way but not the construction of the road itself. What this means is that eventually either Deschutes County or the City of Bend will be responsible for the construction of this road. After review of the topographic contours and also the plan/profile sheets provided by the applicant's engineers, I feel the location shown on the tentative plat is not a good location as far as constructability and the right-of-way should be realigned to take advantage of the flat area between the two draws. The original alignment, going north - south along the east boundary would be an expensive road to build based on the following: ♦ There is a fill of over 20 feet in depth at station 37+18.42. This fill would necessitate slope easements on the adjoining properties to allow construction of the fill slopes. Guardrail would also have to be installed along the higher portions of the fill per AASHTO standards. ♦ The vertical curve at station 43+93.47 has cuts of up to 15 feet so there my have to be slope easements here also from adjoining property owners. ♦ Sight distance to access onto this road will be limited by the cuts. An alignment that utilizes the flat area between the two draws would be a much less expensive road to build based on less earthwork and easier constructability. It would also have better access for side roads from adjacent subdivisions. It appears the road could be built within the 80 foot right-of-way without the need for slope easements. Exhibit--E)- Page xhibitE)Page \2 of \L4_ �Mwn�Wmnmmm I% psi►: -, ■ M U www • Solwd N T P 05-598 geCwMEa C WiI $ Atirpr Medal Forest High—, F— Collector E Expressway Reposed kt a Menial %ml M F— Local R enial oad Expressway Unca Conslnrction Major Caledo, Future Menial Pot -b.1 ReaRgnnlenI — Rinopal Menial .... •� Proposetl Major COMetler —Rural Colette � Panels Major Madel Frontage Road Urban Collector - DesclUm Riva Reposed Major Mahal P I—ry Medal O city Lind ® lkEan Reserve Exhibit---t)-- Page -ILA- xhibit_Page_ of -L i # i Creative Solutions ... Superior Service PACIFIC W ESuite C 100 Be MEMORANDUM Bend,,Oregongon 9 97702 TO: Deschutes County Commission / FROM: Thomas A. Walker, P.E. G'G� DATE: ll/l/2005 CC: FILE #: 30655.1000 RE: Tumalo Creek Development, LLC Deschutes County File TP -05-958 Appeal of Hearings Officer's Decision Skyline Ranch Road On August 29, 2005, the Deschutes County Hearings Officer denied the application by Tumalo Creek Development, LLC (Applicant) for a tentative plan for a 34 lot subdivision immediately west of the City of Bend. The Applicant's appeal will be heard today by the Deschutes County Board of Commissioners. The City of Bend and Deschutes County staff have raised a number of questions and provided recommendations on the future Skyline Ranch Road, generally located on the easterly boundary of the subject property. The future Skyline Ranch Road collector street deserves your careful assessment. HISTORY: Skyline Ranch Road is a designated collector street on the City of Bend Transportation System Plan. Between Shevlin Park Road and Skyliners Road, the collector street is typically shown in a tangent alignment on the section line, at the City's Urban Growth Boundary. The City's Transportation System Plan does provide flexibility to refine the alignment during final design. The Hearings Officer in her review of the Tumalo Creek Development, LLC proposal addressed the collector street issue with the following findings: "the Hearings Officer finds imposition of a condition of approval requiring the applicant to improve the abutting section of Skyline Ranch Road would not have a nexus with, or be roughly proportional to, the anticipated traffic impacts from the subdivision, as required" "the staff report notes that portions of the main subdivision road may be difficult to create near the southeast corner of the property due to the steep topography associated with the ASI. The applicant responds that prior to submitting the final plat for phases 7 and 8 of the subdivision, the applicant's engineers will determined the most feasible alignment for this segment of the subdivision road that will allow it to be constructed to meet the County's road CADocuments and Settings\Smith.0\Local Settings\Temporary Internet Files\OLK3\I 10105 TAW Memo to Deschutes County Commissioners (2).doc Exhibit Page -- �— of _�— • Memorandum - continued • Page 2 standards, and therefore its exact alignment is not critical at the point of tentative plan approval" "I concur with the applicant that it is not unusual for street alignments to be revised once ground work has commenced and actual conditions can be determined. Therefore, I find the proposed subdivision satisfies this approval criteria to the extent it is required to do so for tentative subdivision plan approval" Generally, the Hearings Officer concluded that roadways in the southeast corner of the property, including Skyline Ranch Road, should be designed in cooperation with the City or County Engineering Departments, based upon the best information available at the time of final design, when detailed topography is available and the plans for adjacent development are better known. The Applicant concurs with the Hearings Officer. TOPOGRAPHY: Natural topography along the west boundary of the City's Urban Growth Boundary is shown on the tentative plan (Exhibit 1 to the original application) and on a vicinity map (original Exhibit 6). Natural topography includes a series of steep canyons and ridges in the southeast corner of the Applicant's property. The natural topography is further complicated by an Area of Special Interest (ASI) designation by Deschutes County. The natural topography complicates new road design and construction, connection of roadways from adjacent developments, and complicates access and development options within the Applicant's subdivision. Again, the final alignment for subdivision streets, including the Skyline Ranch right-of-way, are best accommodated with Phase 8 development with final design, in cooperation with Deschutes County or the City of Bend Engineering Department. GRID CONNECTIONS: As noted, natural topography limits the feasibility of connecting all roadways on adjacent properties. Grid connections are also prohibited by private streets on adjacent developments. In Mr. Jorgensen's memorandum to the Board of County Commissioners on 11/1/05, a number of local street connections were discussed. For example, a stubbed street right-of-way at the Three Pine subdivision was noted at the north boundary of the proposed subdivision. The Three Pines roadway however is private and is not compatible with the public roadways proposed in the Applicant's subdivision. Regardless, the Applicant will provide an emergency only access between lots 32 and 33 to provide connectivity to Three Pines, without violating the private/public roadway rights of the two neighborhoods. The emergency access is shown on the original tentative plan and the situation is addressed in the Hearings Officer's proposed Condition of Approval #13. Similarly, Mr. Jorgensen identifies Anderson Ranch Road as a possible point of connection. Again, Anderson Ranch Road is a private roadway and is not compatible with the proposed public roadways in the Applicant's subdivision. Further, the severe topography at the eastern edge of lot 27 prohibits a reasonable street connection. This situation was addressed at length in the Applicant's original application. The street connection easterly to Northwest Crossing was also identified. The Northwest Crossing plan however is conceptual and subject to change with final land use and design. Further complications are imposed by natural topography. The Hearings Officer concluded in the Applicant's decision that C: Documents and Settings\Smith.(" Local Settings, temporary tntennet 1'il s`.OLKV 110105 TAW Memo to Deschutes County Commissioners (Z).doc Exhibit C Page Q— of H • Memorandum -continued • Page 3 connections to Northwest Crossing will ultimately be provided. For example, a street connection to Northwest Celilo Lane, in the northwest corner of Northwest Crossing would occur on the ridge top, providing the grid connection between public streets on compatible terrain. Again, the Hearings Officer anticipated the connection in her decision. Further, the Applicant has reached an agreement with Miller Tree Farm, LLC, the property owner to the south, for a mutually beneficial access between the properties. ROADWAY STANDARDS: The Skyline Ranch collector street is complicated and potentially jeopardized by conflicts and standards between the City of Bend and Deschutes County. The collector street designation is intended by the City of Bend to serve urban area development. Under City jurisdiction, the collector street can serve abutting lots directly. A collector street under County jurisdiction would not serve lots directly. Without direct lot access, the collector street will parallel a local street, consuming right-of-way, impacting lots, and creating a wasteful redundancy of infrastructure. Design speeds and other criteria are similarly conflicting. The Applicant is caught between conflicting standards. Currently, the Applicant's property is under Deschutes County jurisdiction and a local County roadway standard is applicable. The Applicant's urban area reserve property may be annexed into the City and it would then be subject to City collector standards, including a wider right-of-way. To resolve these potential conflicting standards, the Applicant has proposed a condition of approval that provides an 80 foot right-of-way, an alignment that follows appropriate terrain, a roadway standard that allows direct driveway access, and generally a plan that accommodates both short term and long term needs of the community. Further, the City of Bend imposes System Development Charges (SDCs) to pay for collector streets. Deschutes County has no applicable street SDC program. Urban development of the Applicant's UAR lands will provide the SDC payments to fund future collector street upgrades as needed. ALIGNMENT: As noted, natural topography imposes restrictions on a reasonable alignment for Skyline Ranch Road. The Applicant agrees with Mr. George Kolb, P.E., of the Deschutes County Road Department. Skyline Ranch Road should follow the flatter ridge area across lots 20 and 21 in the southeast corner of the subject property. The alignment should be fixed in final design when that phase of development occurs, so that the best available design information is utilized and both the short term and long term needs of the community are addressed. PROPOSED APPROVAL CONDITION: The Applicant proposes the following approval condition to address Skyline Ranch Road. The intent of the following approval condition is to establish the best alignment during final design when detailed design information is available, address the short term needs of a Deschutes County 10 acre subdivision, address the longer term needs of the City of Bend for a collector street in an urban development, and provide a practical resolution of conflicting City and County standards for the roadway. Qt Documents and Settings`Smith.Cd ocal SetdngseTemporary Internet Files\OLKII 110105 TAW Memo to Deschutes County ('ownmissioners Exhibit C. Page _-,� of _4 • Memorandum -continued • Page 4 The following condition is considered to be in agreement with the recommendations of Mr. George Kolb, P.E., Ms. Robin Lewis, and Mr. Steve Jorgensen. Your review and consideration of the following proposed approval condition is respectfully requested. Within 60 days of the date this decision becomes final, the Applicant shall submit a revised tentative plan. A revised Skyline Ranch Road alignment shall be prepared and submitted to the Deschutes County Road Department for review and approval with the tentative plan, together with anticipated local street connections in the vicinity. The revised alignment should be more compatible with existing terrain, and to the extent possible, shall avoid the steep canyon at the southeast corner of the subject property. Skyline Ranch Road may be incorporated into the subdivision to provide direct lot access and shall conform to Deschutes County local road standards, except that the right-of-way shall be 80 feet wide to accommodate a future City of Bend collector street. CnDocuments and Settings%Smith.0\Local Settings\Temporary Internet Files`OLK3•, 110105 TAW Memo to Deschutes County Commissioners (2).doc Exhibit Page — LA-_ of ► _ Appellant/ Property Owner: Appellant's Representative: Appellant's Engineer: Property: Request: L INTRODUCTION STATEMENT IN SUPPORT OF APPEAL OF HEARINGS OFFICER'S DECISION Tumalo Creek Development, LLC 63101 Nels Anderson Road Bend, OR 97701 541-389-0981 Nancy Craven Kristin Udvari Ball Janik LLP 101 SW Main Street, Suite 1100 Portland, OR 97204 503-228-2525 W&H Pacific Thomas A. Walker, P.E. 920 SW Emkay Drive, Suite C-100 Bend, OR 97702 Tax Lots 17-11-00-6000 and 17-1 1-26-101 & 400 Appeal of Hearings Officer's Decision to Deny Tentative Subdivision Plan for 34 single-family residences. On August 29, 2005, the Deschutes County Hearings Officer denied the application by Tumalo Creek Development, LLC (the "Applicant" or "Appellant") for a tentative plan for a 34 -lot subdivision immediately west of the City of Bend. The property is within the Bend Urban Reserve Area and is located south of Shevlin Park Road, east of Tumalo Creek, north of Skyliners Road, and west of the proposed Skyline Ranch Road. As the applicant in the subject case, Tumalo Creek Development, LLC is entitled to appeal the Hearings Officer's decision pursuant to DCC 22.32.010(A)(1). The Hearings Officer denied the application based upon one issue: the Hearings Officer found that a small portion of the site is located within the City limits and therefore she concluded that she did not have jurisdiction to approve a subdivision affecting land within the City of Bend. The Hearings Officer rejected the Applicant's proposal to impose a condition of approval requiring the Applicant to obtain a lot line adjustment to add any land within City limits to the adjacent park land owned by Bend Metro Parks and Recreation District ("BMPRD"). The Hearings Officer stated that she could not approve the tentative plan based upon a condition mandating the lot line adjustment because she found no evidence that the adjoining property owner, the Bend Metro Parks and Recreation District ("BMPRD"), would support the lot line adjustment application. However, the Hearings Officer acknowledged that the Applicant would :ODM AWDOCSTORTLA N D\496325\ I Exhibit___y:> Page _I_ of �_ likely appeal the decision and therefore she included the following draft condition (along with a full set of conditions and findings addressing the remainder of the application): "PRIOR TO SUBMITTING THE FIRST FINAL PLAT FOR APPROVAL: 3. If the Board of County Commissioners finds from the evidence in the record on appeal that the Bend Metro Park and Recreation District is willing to join the applicant in a request for a lot line adjustment for Tax Lot 101, the applicant/owner shall submit to the Deschutes County Planning Division written documentation that Tax Lot 101 and the portion of Tax Lot 6000 within the Bend city limits according to the Bend Area Zoning Ordinance Map are either located outside the city limits, or have been added to adjacent lots located within the city limits through lot line adjustment approved by the county and/or city." The Appellant requests that the Board overturn the Hearings Officer's denial and adopt a condition of approval to govern the lot line adjustment issue, as discussed in more detail below. In addition, the Appellant concurs with all of the other suggested conditions of approval, with the exception of the building envelope conditions (Conditions 10 and 19-21), which are contradictory and should be revised for consistency, as discussed below. The Appellant also requests a minor change to the heading governing the timing of the right-of-way dedication required by Condition 22 to render the condition consistent with the findings and evidence in the record, and a revision to Condition 10(c) to address the options available to comply with fire protection standards. It. ADDITIONAL ARGUMENTS IN SUPPORT OF ASSIGNMENTS OF ERROR A. First Assignment of Error: The Hearings Officer Erred in Concludinp, that a Condition Requiring a Lot Line Adjustment for Tax Lot 101 Was Not Feasible. The two legal lots subject to this application are comprised of three tax lots: Tax Lot 101, 17-11- 26, and Tax Lot 6000, 17-11-00, are one legal lot, and Tax Lot 400, 17-11-26, is the second legal lot. As detailed in the Notice of Appeal, Planning Staff questioned whether Tax Lot 101 (approximately 0.27 acres), and a portion of Tax Lot 6000 were inside the City limits and therefore outside of the County's land use jurisdiction. In response, the Applicant proposed a condition of approval to ensure that the issue was resolved prior to final plat approval, thereby ensuring that the County would not be in the position of recording a final plat that included land within the city limits. Specifically, the proposed condition required the Applicant to either demonstrate that the tax lots were outside of the city limits, or process a lot line adjustment prior to final plat approval to remove any land in the city limits from the legal lot subject to the proposed subdivision. The Applicant volunteered to donate the adjusted acreage of Tax Lot 101 to BMPRD. Thus, the condition mandated that the land be added to the adjacent lot owned by BMPRD and donated to BMPRD for park land. - 2 :ODM A\PCrO 'aPnsS_I_aNDi4-9bZ2S\1 Exhibit Page of �� However, the Hearings Officer found that she did not have the authority to impose a condition requiring the lot line adjustment because she concluded that there was no evidence showing that BMPRD would cooperate in the lot line adjustment. As part of this de novo appeal, the Appellant submitted evidence of a lot line adjustment application signed by BMPRD and submitted to the City. The Staff Report finds that the signed application "demonstrates the Park Districts' commitment to join the proposed lot line adjustment." (Staff Report, p. 3). However, the Staff Report expresses concern regarding the Appellant's proposed Condition No. 3, which reads: "3. Prior to final plat approval for Phase I, the applicant/owner shall demonstrate that Tax Lot 101 and all of Tax Lot 6000 are outside of the Bend city limits. If any portion of the subject lots is within the city limits, the Applicant shall gain approval for a lot line adjustment to ensure that the property subject to the final subdivision plat is entirely outside of the city limits. The acreage outside of the city limits shall be donated to the adjacent property owner, Bend Metro Parks and Recreation District." In response to the proposed condition, the Staff Report questions whether the Board has the authority to require the Appellant to donate the referenced acreage to BMPRD and suggests that the Board consult with legal counsel on this issue. For the following reasons, the donation issue is immaterial should not stop the Board from approving the application and adopting the revised condition. First, the Board is authorized to reference the donation in the condition because the property owner volunteered the donation and proposed the condition of approval. Thus. because it is a voluntary donation and not an exaction, the Board would not run afoul of a constitutional takings analysis. Second, the Appellant placed the referenced text in the condition simply to reflect the Appellant's intentions. However, regardless of whether the Board places the donation language in the condition or not, the Appellant will donate the 0.27 acres to BMPRD following the adjustment. The key issue in this case is not whether or how the land is donated. Rather, the key issue is simply that the tentative plan decision contain a condition requiring any land within the city limits to be removed from the legal lot subject to the subdivision application prior to final plat approval. The lot line adjustment accomplishes this. Thus, if the Board remains uncomfortable with the Appellant's language regarding the voluntary donation to BMPRD, the Board can remove it from the condition. B. Second Assignment of Error: The Building Envelope Conditions Proposed by the Hearings Officer are Contradictory and Inconsistent with the Findings. As noted in the Staff Report, the Hearings Officer anticipated this appeal and proposed conditions of approval in the event that the Board chose to approval the Application. If the Board chooses to approve this application, the Applicant requests that the Board revise the conditions proposed by the Hearings Officer regarding building envelopes. ::ODM A\PC DOCSTORTLAN D\496325\ l Exhibit__ Page 2_ of I L The Applicant showed potential building envelopes on the proposed plat. However, the envelopes were shown for purposes of illustration only (building envelopes cannot be recorded on a final plat), and, with the exception of the envelopes on Lots 2 through 6, the envelopes are not necessary to meet any of the approval criteria. Lots 2 through 6 abut Shevlin Park and the Applicant worked diligently with BMPRD to craft envelope locations and proposed conditions to minimize impacts on the park. The conditions agreed upon by BMPRD were submitted to the Hearings Officer with the Applicant's June 24 submittal. The proposed conditions read, in relevant part: "1 I. With the exception of Lots 2 through 6, any development restrictions on the individual lots within the subdivision shall be tied to the UAR zoning and shall not preclude future division or development in the event the UAR zoning is changed to a higher density zoning designation. To minimize impacts on Shevlin Park, Lots 2 through 6 shall not be further subdivided. Copies of the CC&R's or other development restrictions shall be submitted to County Legal Counsel to verify consistency with this condition prior to final plat approval. 12. Building envelopes shall be established for Lots 2 through 6 to prohibit future partitioning or subdividing of Lots 2 through 6, and to minimize views of any proposed structures from within Shevlin Park, as shown on the Tentative Plat. No development of any kind shall occur outside of the building envelopes, and only one single-family dwelling, plus accessory structures, may be constructed within each building envelope. a. The building envelopes shall conform to the following rear yard scaled setbacks: Lot Rim Setback Property Line Setback 115' 200' 3 120' 260' 4 120' 270' 5 130' 280' 6 70' (NW Corner) 320' b. The building envelopes shall be mandated through the project CC&Rs. The CC&Rs shall require the consent of the Bend Metro Parks and Recreation District prior to any modification of the building envelopes for Lots 2 through 6, and prior to any 4 ::ODM A\PCD0CS\PORTLAND\496325\ l Exhibit D— Page1- _ of �t� modification of Conditions I I and 12 of this Decision. Copies of the CC&R's or other development restrictions shal l be submitted to County Legal Counsel to verify consistency with this condition prior to final plat approval." The Hearings Officer did not suggest these conditions in her decision. Rather, the Hearings Officer suggested a different set of conditions that are internally contradictory and inconsistent with the findings in the Decision. (See Hearings Officer's Decision, pp. 38-39, Conditions 10, 19, 20, and 21). First, the Hearings Officer's conditions require the establishment of'building envelopes on all lot within the subdivision, not just Lots 2 through 6. On page 17 of the Hearings Officer's Decision, the Hearings Officer discusses the "Area of Special Interest" ("ASI") that runs through the subject property per Chapter 2 of the Bend Area General Plan. It appears that the ASI includes the steep rocky canyon in the southeasterly corner of the subject property. The Hearings Officer concluded that the approval criterion in DCC 17.16.100(A) requiring the "preservation of natural features and resources" requires the Applicant to "retain the visual character and quality" of the AS[, but does not prohibit development within the ASI. The Hearings Officer then concluded that the Applicant could retain the visual character and quality of the area by establishing building envelopes for "the affected lots." On the previous page, the Hearings Officer notes that although it is difficult to determine the exact ASI boundaries from the County maps, the affected lots appear to be Lots 19 and 22. However. the Hearings Officer concludes her findings on the ASI issue by stating that the Applicant shall establish building envelopes on "all lots," not just Lots 19 and 22, and her conditions do the same. (Decision, pp. 17, 38-39). The Hearings Officer provides no justification for imposing building envelopes on any lots other than those within the ASI area (Lots 19 and 22) and those adjacent to Shevlin Park (Lots 2 through 6). In the Staff Report to the Board, Staff suggests that the Hearings Officer imposed the building envelope condition because "without the building envelopes, the appellant has not met their burden to ensure the proposed subdivision will serve as a holding category consistent with the purposes of the UAR-10 zone and contribute to the orderly development and land use patterns in the area." (Staff Report, p. 5). However, these are Staff s words, not the Hearings Officer's. To support her conclusion, Staff references pages 10 and 14 of the Decision and includes a quote from page 14. However, neither referenced pages nor the quote include any language stating that the building envelopes are necessary to maintain compliance with the UAR-10 zone. The quote reads: "The Hearings Officer concurs with the applicant that developing the subject property to the maximum residential density allowed in the UAR-10 Zone will create a transition area between the existing urban -density residential subdivisions located in the Bend city limits east and south of the subject property, and Shevlin Park and forest -zoned property to the west. The applicant's burden of proof notes the proposed subdivision plat shows approximately 76 percent of subdivision land will `be.left as open space.' And as 5 ::ODM ATMOCSTORTLA N D\496325\ I Exhibit Page G" of discussed in the Findings of Fact above, the applicant has included as Exhibit 5 to its Burden of Proof "shadow plats" demonstrating the proposed subdivision could be developed at urban density in the future when the subject property is annexed into the Bend city limits and UGB." (Decision, p. 14). Neither this quote, nor any text on pages 10 or 14 of the Decision state that the Hearings Officer found the building envelopes to be key to consistency with the purpose the UAR-10 zone. To the contrary, in the discussion on pages 10-1 1, the Hearings Officer notes that the building envelopes proposed in a similar UAR-10 subdivision to the south actually raised the opposite concern (that the envelopes would preclude future redevelopment outside of each envelope, thereby rendering the project inconsistent with the purpose of the UAR-10 zone). Thus, the Hearings Officer noted that any such development restrictions must be tied to the period during which the property is zoned UAR-10 and removed if the property is upzoned and brought into the UGB. (Decision, p. 1 1). Put simply, the UAR-10 zoning restrictions themselves create the 76% open space referenced by the Applicant and the Hearings Officer. Per the zone, each lot must be 10 acres in size, and only one dwelling may be sited on each lot, plus accessory structures such as a detached garage or shed. A building envelope would simply guide where the dwelling and accessory structures were located within the lot, but it has no role in preserving the overall percentage of open space. Rather, the open space is preserved by virtue of the zoning restrictions of the UAR-10 zone. Thus, contrary to Staffs interpretation of the Hearings Officer's findings, the building envelopes are not necessary to comply with the UAR-10 zone. Therefore, the Appellant requests that the Board revise the proposed conditions to remove the requirement to establish building envelopes on all lots. In addition, the Board could add a condition to address the AS[ lots only. The suggested revised conditions were attached to the Notice of Appeal and read as follows (new text is underlined, text to be removed is seek): "l0. The applicant/owner shall create a homeowners' association and shall submit to Deschutes County Legal Counsel for review and approval the associations' bylaws and covenants, conditions and restrictions (CC&R's). The CC&R's shall address, at a minimum for each dwelling: a) required compliance with "building eavelepes"an setbacks established in this decision; b) required compliance with speeial setb eke and buildingfestr-ieti "building envelopes" and land division restrictions for Lots 2 through 6 to minimize impacts on ShevIm Park; c) reqUiFed installation of Fesidential fiFessp4nk4ei--s-�,�,req uired compliance with "building envelopes" for Lots 19 and 22 to minimize impacts on the Area of Special Interest; and d) a statement that with the exception of Lots 2 through 6 which shall not be further divided, the development restrictions in the CC&R's shall not preclude future urban density subdivision or development when the subdivision is annexed into the Bend UGB." 6 ::ODM A\PC'DOCS'\,PORTLAN D\496325\ I Exhibit L) Page —(V_ of D N19. The applicant/owner shall establish "building envelopes" include in ti `ieptlons for Lots 2 through 6 su bdivision an these lots. to minimize views of any proposed structures from within Shevlin Park. No development of any kind shall occur outside of the building envelopes and only one single-family dwelling plus accessory structures, may be constructed within each building envelope. a. The "building envelopes" for Lots 2 through 6 shall conform to the following rear yard scaled setbacks: Lot Rim Setback Western Property Line Setback 2 115 feet 200 feet 3 120 feet 260 feet 4 120 feet 270 feet 5 130 feet 280 feet 6 70 feet (nw corner) 320 feet b. The building envelopes shall be mandated through the project CC&Rs The CC&Rs shall require the consent of the Bend Metro Parks and Recreation District prior to any modification of the building envelopes for Lots 2 through 6 and prior to any modification of this condition 24- c. To assure compliance with the requirements of Condition of Approval 20 this condition, the applicant/owner shall mark with a permanent monument for each lot for Lots 2 through 6 the four property corners and the point on the rim from which the rim setback shall be measured. 21. The applicant/owner shall establish building envelopes for Lots 19 and 22 to minimize impacts on the character and visual quality of the rocky canes identified as an Area of Special Interest in the Bend Urban Area General Plan (Chapter 2 and the Bend Urban Area General Plan Map) The building envelopes shall be mandated through the project CC&Rs " The revised conditions will limit the building envelope requirement to only those lots required to have such restrictions to meet code standards. If the Appellant wishes to establish building envelopes for other lots it may do so, but the revised conditions will not mandate compliance with the preliminary envelopes that were shown on the tentative plan for illustration purposes only. In addition, the revised conditions will reflect the language requested by BMPRD during negotiations while the application was pending. Finally, the revised conditions will ensure that the property is not subject to deed restrictions that would ultimately conflict with the standards of the UAR-10 Zone or Condition 10, which prohibit the applicant/owner from precluding "future 7 ::ODM A\PCDOCS\PORTLA N D\496325\ Exhibit Page —I of urban density subdivision or development when the subdivision is annexed into the Bend UGB." This is necessary to ensure compliance with the UAR-10 purpose statement and approval criteria, which require the UAR-10 Zone to be used as a "holding /.one" for future urban development. C. Third Assignment of Error: The Condition Proposed by the Hearings Officer to Govern the Timing of Dedication of Skyline Ranch Road is Inconsistent with the Findings. As explained in the Notice of Appeal, Condition 22 governs the dedication of right-of-way for Skyline Ranch Road. In her findings on page 24, the Hearings Officer concurred with the Applicant that the right-of-way for Skyline Ranch Road should be dedicated prior to Phase 8 of the subdivision. In a footnote, she also states that the Applicant may "elect" to dedicate the right-of-way prior to Phase 8 to facilitate the provision of a southern access. However, the heading attached to Condition 22 requires the right-of-way to be dedicated prior to the issuance of a building permit for the 26`I' dwelling within the subdivision. Thus, the condition is inconsistent with the findings. The inconsistency seems to derive from the fact that the Hearings Officer concluded that a secondary access should be provided prior to issuance of a building permit for the 26`h dwelling within the subdivision. (Decision, p. 32). This is due to a Rural Fire Protection Standard allowing up to 25 homesites in a single access subdivision. However, the right-of-way dedication for Skyline Ranch Road is not necessary to provide the secondary access. Rather, as recognized by the Hearings Officer in Condition 23, the Applicant has several options to provide secondary access, and only one of the three options would require the dedication and construction of Skyline Ranch Road. Therefore, the Applicant requests that the Board remove Condition 22 from the heading "PRIOR TO ISSUANCE OF A BUILDING PERMIT FOR THE TWENTY-SIXTH (26TH) SUBDIVISION DWELLING," and place it under a new heading that reads: "PRIOR TO FINAL PLAT APPROVAL FOR PHASE 8." As confirmed by the Staff Report to the Board (page 6), the Appellant's appeal of this condition concerns only the issue of whether the timing set forth in the heading governing Conditions 22 and 23 is consistent with the Hearings Officer's findings and the evidence in the record. This assignment of error does not raise any other issues regarding Skyline Ranch Road. For example, this assignment does not raise any issues regarding the width of the dedication nor the location of the dedication. However, at 4:00 PM on October 31, one day before the Board hearing on this matter, the Appellant received extensive comments from the City and County attempting to reopen a variety of issues regarding grid/connectivity concerns posed by the City and questions about the proper alignment and width of Skyline Ranch Road. The comments also request that the Board require the Appellant to construct the entire segment of Skyline Ranch Road adjacent to the property, even though the Hearings Officer clearly found that such an exaction could not be constitutionally imposed because the traffic study demonstrated that "McLain Road and Shevlin Park Road can handle subdivision -generated traffic and therefore a connection to 1 Phase 8 of the subdivision includes the final three lots of the 34 -lot subdivision, located in the southeast corner of the subdivision. Two of these lots (20 and 2 1 ) include the area that will actually be dedicated for the right-of-way. (See Tentative Plan Map). 8 ::ODM ATC DOCSTORTLAN D\496325\ 1 Exhibit_ Page __S of JAZ Skyline Ranch Road is not warranted," and "it would not have a nexus with, or be roughly proportional to, the anticipated traffic impacts from the subdivision, as required by Dolan 1% Citi: of Tigard, 512 US 374 (1994) and its progeny." (Decision, p. 24). The City and County had ample opportunity to submit these comments during the tentative plan proceedings before the Hearings Officer. The Hearings Officer considered a variety of comments on the road issues, as evidence by her findings on pages 22-25 of the Decision. This appeal is not an opportunity to submit new comments on the Tentative Plan generally. Rather, it is an opportunity to address only those assignments of error raised in the Appellant's appeal. The Board may accept new evidence on the assignments of error, but, as stated in the Staff Report, the actual issues on appeal are limited to those raised by the Appellant. Those issues are summarized in the Staff Report, which contains no reference to the new Skyline Ranch Road issues raised by the road departments. In summary, contrary to the comments submitted by the County and City Road Departments, the assignment of error submitted by the Appellant on Condition 22 is very narrow and concerns only the timing issue set forth in the heading. Therefore, the Appellant respectfully requests that the Board disregard the memoranda from the City and County Road Departments on issues that are not subject to this appeal. Otherwise, the Board will set a precedent by which every de novo appeal accepted by the Board will turn into a complete rehearing of any issue that an appellant, public citizen, or public agency wishes to discuss. Just as the Board would not allow an appellant to raise new issues that were not set forth in the Notice of Appeal, the Board should also prohibit County and City agencies from doing the same. D. Fourth Assignment of Error: The Condition Proposed by the Hearings Officer to Mandate Fire Sprinkler Systems in Each Dwelling is Not Required by Code Standards or Supported by the Evidence in the Record The Hearings Officer's proposed Condition 10(c), also discussed above in the context of the building envelope issue, requires the installation of residential fire sprinkler systems. The findings related to the internal fire sprinkler systems are set forth on page 18 of Hearings Officer's Decision. Based upon W&H Pacific meeting notes dated June 14, 2005, the Hearings Officer concluded that internal fire sprinkler systems may be required. The meeting notes appear to have been misunderstood. The meeting notes are attached as Exhibit D. The notes indicate that International Fire Code Regulation NFPA 1142 would become applicable once the subject property was annexed into the Rural Fire Protection District. The referenced regulation provides multiple alternatives for fire protection systems, depending upon a number of factors, including the ultimate size of the residential structure. The meeting notes also state that internal fire protection sprinklers were recommended by the Bend Fire Marshal, but not required under the applicable regulations. At this time, the size of future structures within the proposed subdivision is unknown, the type of construction is unknown, and the exposure to wildfire hazards is unknown. Fire protection requirements should be established in the future, when building plans are available and all the needed details of construction are known. It is neither prudent nor necessary to establish fire protection requirements at this time. The requirement for internal fire sprinkler systems may be appropriate for a very large home, but could be a significant burden for a standard residence. 9 ::ODM A`PCDOCSTORTLAND\496325\1 Exhibit Page _ of1 — Fire sprinkler systems can represent a financial burden, as well as an aesthetic burden if exposed sprinkler heads are imposed. The subject property has now been annexed by the Deschutes County Rural Fire Protection District No. 2. The Appellant has no intent to avoid fire protection requirements. Rather, the Appellant proposes that all future residents and buildings conform to applicable fire protection standards in effect at the time of construction, when all the necessary details regarding each dwelling are available to establish the proper fire protection needs. Thus, as shown in Exhibit C to the Notice of Appeal, the Appellant requests that the Board delete subsection (c) of Condition 10 and that the Board impose a condition requiring the applicant to comply with the requirements of the Rural Five Protection District. III.CONCLUSION The Appellant respectfully requests that the Board overturn the Hearings Officer's denial of the Tentative Plan, and revise the proposed conditions as described above. All other findings and conditions proposed by the Hearings Officer are not subject to this appeal and should be adopted as dratted. 10 ::ODM ATC DOC STO RTLA N D\496325\ I Exhibit Page of t