2006-914-Ordinance No. 2006-025 Recorded 9/18/2006REVIEWED
L GAL COUNSEL
REVIEWED
CODE REVIEW COMMITTEE
DESCHUTES COUNTY OFFICIAL
NANCY BLANKENSHIP, COUNTY
COMMISSIONERS' JOURNAL
111111111 11JI111111111111 III III
2006-l3
RECORDS
CLERK
09/18/2006
CJ 7006.914
03;27;58 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An 6rdinance Amending Title 23,-the Deschutes
County Comprehensive Plan, to Adopt an Exception * ORDINANCE NO. 2006-025
to Goal 3 and To Change the Plan Designation for
Certain Property From Agricultural to Rural
Residential Exception Area.
WHEREAS, the Bend Metro Park and Recreation District has proposed a Goal Exception to Goal 3 and
a Plan Amendment to Title 23.120 of the Deschutes County Code (DCC), Goal Exception Statement, to change
the zoning designation of certain property from Agricultural to Rural Residential Exception Area; and
WHEREAS, the Board of County Commissioners (Board) after reviewing all the evidence presented at
the public hearing, agrees with the findings of the Hearings Officer, and
WHEREAS, the Board, after review conducted in accordance with applicable law, approved the Goal
Exception to Goal 3, change the zoning designation from Agricultural to Rural Residential Exception area; and,
WHEREAS, Deschutes County Ordinance 2000-017 ordained the Plan Map to be a component of Title
23 and, therefore, any amendment to the Plan Map is an amendment to Title 23; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. ADDING. DCC Chapter 23.120.250, Bend Metro Park and Recreation District Properties,
is added to read as shown in Exhibit "A" attached to this ordinance and by reference incorporated herein, to
adopt an exception statement for certain property as described in Exhibit "B."
Section 2. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan Map is hereby
amended to change the plan designation for certain property described in Exhibit "B" and depicted on the map
set forth as Exhibit "C," and by this reference incorporated herein, from Agricultural to Rural Residential
Exception Area.
PAGE 1 OF 2 - ORDINANCE NO. 2006-026 (08/30/06)
Section 3. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the
Hearings Officer, attached hereto as Exhibit "D," and by this reference incorporated herein.
Dated this 4-6 of , 2006
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
D NNIS R. L HAIR j etawltl-14~
A BEV ARNO, VICE CHAIR
HA DAL , OMMISSIONER
Date of I S` Reading: day of 2006.
Date of 2°d Reading: /-day of zv~y~-, 2006.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Dennis R. Luke L
Bev Clarno v
Michael M. Daly J~
7"
Effective date: day of , 2006.
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2006-025 (08/30/06)
EXHIBIT "A"
Chapter 23.120. GOAL EXCEPTION STATEMENT
23.120.010. Introduction.
23.120.020. Methodology.
23.120.030. Agricultural lands.
23.120.040. Forest lands.
23.120.050. Exceptions analysis.
23.120.060. Exception Area Plan.
23.120.070. Bend Municipal Airport Exceptions Statement.
23.120.080. La Pine UUC Boundary.
23.120.090. Spring River Rural Service Center.
23.120.100. Burgess Road and Highway 97.
23.120.110. Rural Industrial Zone.
23.120.120. Prineville Railway.
23.120.130. Resort Communities.
23.124.140. Barclay Meadows Business Park.
23.120.150. Sisters School District #6.
23.120.160. Sisters Organization of Activities and Recreation
and Sisters School District #6.
23.120.170. Oregon Water Wonderland Unit 2 Sewer District.
23.120.180.2004 City of Bend Urban Growth Boundary Amendment (Juniper Ridge).
23.120.190. Joyce Coats Revocable Trust Johnson Road and Tumalo Reservoir Road Properties.
23.120.200. Watson/Generations Development Inc.
23.120.210. Oregon Department of Transportation.
23.120.220. Conklin / Eady Property.
23.120.230. City of Sisters Property.
23.120.240. McKenize Meadows Property.
23.120.250. Bend Metro Park and Recreation District Properties
23.120.250. Bend Metro Park and Recreation District Properties
In conjunction with approval of PA-05-8/ZC-05-3 a "reasons" exception to Statewide Planning Goal 3
Agricultural Lands was taken to include a portion of certain property zoned Exclusive Farm Use
Tumalo/RedmondBend Subzone (EFU-TRB) Reasons iusti ing_why the state policy embodied in Goal 3
should not apply in this situation are set forth in Exhibit "D" to Ordinance 2006-025, which findings are
mcomorated herein by reference
(Ord 2006-025 § 1, 2006)
Page 1 of 1, Exhibit "A" to Ordinance 2006-025 (08/30/06)
Zone. Change Parcel
From: EFU to RR-10
PROPERTY DESCRIPTION
Section 8: The East One-Half of the Southwest One-Quarter (E1/2 SW1/4)
Section 17: The East One-Half of the Northwest One-Quarter (El/2 NWl/4)
All located in Township 18 South, Range 13 East, Willamette Meridian, Deschutes County,
Oregon
See drawing attached hereto and hereby incorporated by reference. .
REGISTERED
PROFESSIONAL
AND SURVEYOR
OREGON
JULY 19, 1994
DAVID R. WILLIAMS
2686
RENEWAL DATE: 06/30/08
C:5/:,a C;', 6
S:\Land Projects\060202C- EASTGATE\Doc's\Zone Change Parcel efu-rrl0.doc
Exhibit
_T Pag _a
Ordinanea ?6& Y 0 02
Exhibit
Page a f ID -
Ordinance ~jH - S'
Plan
Amendment
From
Agriculture
(AG) to Rural
Residential
Exception
Area (RREA)
Comprehensive Plan Designations
Agriculture (AG)
Rural Residential Exception Area (RREA)
=Property Subject to Plan Amendment
COMPREHENSIVE PLAN MAP
File No. PA-05-08
Exhibit "C"
to Ordinance 2006-025
0 0.125 025 0.5
Miles
July 25, 2006
BOARD OF C9101-0f COMMISSIONERS
OFDESCH COUNTY, REGON
n' Luke, CI
v Cla o, vice- heir
77 7
1001-/1
el M. ly, ommissio r
ATTEST: Recording Secretary
Dated this L day of September, 2006
Effective Date: December -L?-,20m
RECOMMENDATION OF THE DESCHUTES COUNTY
HEARINGS OFFICER
FILE NUMBERS:
HEARING DATE:
APPLICANT/
OWNER
PA-05-8, ZC-05-3
Tuesday, March 28, 2006 at 6:30 P.M. in the Barnes and Sawyer
rooms of the Deschutes Services Building located at 1300 NW Wall
Street in Bend.
Bend Metro Park and Recreation District
200 NW Pacific Park Lane
Bend, Oregon 97701
,2.,324252
~N M A V nnna l d
ATTORNEY: Sharon Smith
Bryant, Lovlien & Jarvis P.C.
P.O. Box 1151
Bend, Oregon 97709-1151
REQUEST:
STAFF CONTACT:
RECORD CLOSING
Mo-?a ED
DESChUTES I
s COUNTY
The applicant is requesting approval of a plan amendment from
Agricultural to Rural Residential Exception Area, including a goal
exception to Statewide Planning Goal 3, Agricultural Lands, and a
zone change from Exclusive Farm Use (EFU) to Rural Residential
(RR-10) on 160 acres located east of Bend along Gosney Road.
Catharine White, Associate Planner
DATE: April 18, 2006--Deadline for written testimony and evidence
April 25, 2006--Deadline for rebuttal comments from applicant
May 2, 2006--Deadline for final written legal argument from applicant
in accordance with ORS 197.763(6)(e)
1. APPLICABLE STANDARDS AND CRITERIA:
A. Oregon Administrative Rules
Chapter 660, Division 4, Interpretation of Goal 2 Exception Process:
OAR 660-004005, 0010, 0018, 0020, 0022
Chapter 660, Division 12, Transportation Planning
OAR 660-12-060, Plan & Land Use Regulation Amendments
Chapter 660-15, Statewide Planning Goals and Guidelines
Goal 1, Citizen Involvement
Goal 2, Land Use Planning - Part II, Exceptions
Goal 3, Agricultural Lands
B. Title 23, the Deschutes County Comprehensive Plan.
Chapters 23.24, 23.52, 23.60, 23.68, 23.80, 23.88, 23.96
Exhibit -P
Page I of Z3
Ordinance 20r)6
-
C. Title 18 of the Deschutes County Zoning Ordinance:
Chapter 18.16, Exclusive Farm Use zones.
Chapter 18.60, RR-10, Rural Residential zone.
Chapter 18.136, Amendments
11. FINDINGS OF FACT:
A. Location: The property is identified on the County Assessor's tax map as a part of 18-
13-08-800 (E1/2, NE1/4 of Sec. 8) and 18-13-17-2300 (E1/2, NW1/4 of Section 17)
[Located west of Gosney Road and north and south of Ward Road.]
B. Lot of Record: The subject tax lots are separate legal lots of record as determined by
Lot of Record Verbcations LR-03-15 and LR-03-18.
C. Zoning and Plan Designation: The property subject to the zone change is zoned
Exclusive Farm Use-Tumalo/Redmond/Bend subzone (EFU-TRB). The
Comprehensive Plan designates the property as Agriculture.
D. Site Description: The property subject to the zone change includes 160 acres, is
rectangular in shape, and unirrigated. The area is bisected by Ward Road and fronts
Gosney Road along its eastern border. Topography of the property varies-it is
relatively level in some areas, gently undulating in others, or mildly slopes. Vegetation is
juniper woodland, grasses, and brush. The property, while vacant and undeveloped for
any particular use, provides open space and limited recreational uses in the form of
hiking and equestrian trails.
E. Soils: The applicant submitted a soils map that shows the subject property consists of
the following two soil mapping units as classified by the Natural Resources Conservation
Service (NRCS):
38B - Deskamp-Gosnev Complex 0 to 8% slopes
This soil type is comprised of 50% Deskamp soils and similar inclusions and 35%
Gosney soil and similar inclusions and 15% contrasting inclusions. Deskamp
soils are somewhat excessively drained with rapid permeability. The available
water capacity is about 3 inches. Gosney soils are somewhat excessively
drained with rapid permeability and available water capacity of about one inch.
Major uses for this soil type are livestock grazing and irrigated cropland. The
land capability classes when irrigated is III for the Deskamp soils and IV for the
Gosney soils and nonirrigated is VI for the Deskamp soils and VII for the Gosney
soils. The majority of the subject property consists of 38B soil type, except for a
small pocket of 58C located in the northwest corner of the subject property. This
soil type is not considered a high-value soil when irrigated.
58C. Gosnev-Rock Outcrop-DeskamD complex, 0 to 15% slopes.
This soil type is comprised of 50% Gosney soil and similar inclusions, 25% rock
outcrop, 20% Deskamp soil and similar inclusions, and 5% contrasting
inclusions. Gosney soils are somewhat excessively drained with rapid
permeability. The available water capacity is about 1 inch. Deskamp soils are
somewhat excessively drained with rapid permeability. Available water capacity
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 2 of 23
Exhibit
Page Of3
Ordinance ~~C~ z
is about 3 inches. Major use for this soil type is livestock grazing. The land
capability classes when nonirrigated (there is no land capability for irrigated)
ranges from VI (Deskamp) to VIII (rock outcrop). A small pocket in the northwest
comer is comprised of 58C. This soil type is not considered a high-value soil
when irrigated.
F. Surrounding Land Use: Surrounding land uses are a mixture of farm and rural
residential uses and include both Rural Residential (RR-10) and EFU zones.
Specifically, the adjacent lands to the north and northwest of the subject property are
zoned RR-10, range from 15 to 30 acres in size, and are either vacant (tax lot 603) or
developed with a dwelling. East of the subject property is Gosney Road and east of
Gosney Road and north of Ward Road are three large-sized (44 to 72-acres) EFU-zoned
parcels owned by the same owner (Raney) and are part of a larger tract of land engaged
in irrigated hay or alfalfa farm use and receiving farm tax deferral. One of the three
parcels, tax lot 900 is developed with a dwelling and several outbuildings. Those
properties east of Gosney Road and south of Ward Road are zoned RR-10 and most are
developed with residences. South and west of the subject property, the surrounding
properties are zoned EFU. The abutting parcels to the south and southwest are
privately owned properties that range in size from 2.15 acres to 20 acres and are
developed with a dwelling and several are partially irrigated and receiving farm tax
deferral. Abutting land to the west is unirrigated vacant land owned by the applicant.
G. Proposal: The applicant is requesting approval of a goal exception to the Statewide
Planning Goal 3, Agricultural Lands, a plan amendment from Agriculture to Rural
Residential Exception Area, and a zone change from Exclusive Farm Use (EFU) to Rural
Residential (RR-10) on the 160-acre property. The applicant has filed the plan
amendment and zone change in conjunction with another plan amendment and zone
change (file numbers PA-05-9, ZC-05-4) to change the zoning of 160-acres of property
also owned by the applicant within the same tract from RR-10 to EFU.
While no use of the property is proposed in conjunction with the zone change, according
to the Burden of Proof, the proposal would allow the applicant to divide and sell the land
for development pursuant to the RR-10 zone and use the proceeds from that sale to
purchase and develop additional park land for the benefit of the community, including the
Pine Nursery property.
Background: The Burden of Proof includes the following background statement
regarding the proposed plan amendments and zone changes:
"Bend Metropolitan Parks and Recreation Department (the "Park District') is the
owner of several connected properties in this area totaling 760 acres known as
the Eastgate Property. The Eastgate Property is primarily zoned Exclusive Farm
Use Tumalo/Redmond/Bend (EFU-TRB), but there are two portions within the
Eastgate Property zoned RR-10 which total about 160 acres.
"The Eastgate Property is located beyond the current boundaries of the park
District. It does provide open space and limited recreational uses in the form of
hiking and equestrian trails. However, the lands are not currently in the Park
District master plan for development. Initially, the Park District wanted to sell all
or a portion of the Eastgate Property in order to fund park development goals.
Many of the neighbors objected to the sale and raised concerns about the impact
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District),
Page 3 of 23
- Exhibit
Page I of
Ordinance ~
5
on their open space and recreational opportunities. The Park District met with
the neighbors to develop a plan that would accommodate both the neighborhood
goals of preservation of open space and the Park District's goals of funding other
park development. As part of that. settlement proposal, a Memorandum of
Understanding (the "MOU') was developed, a copy of which is included in this
application. That MOU contemplated the proposed actions herein.
"Additionally, in order to facilitate the release and transfer of the existing
reversionary interests held by the County, an Intergovernmental Agreement (the
"/GA') was entered into between the County and the Park District a copy of
which is also attached hereto. That IGA does not bind the County's actions with
respect to approval or disapproval of this land use application. It does provide for
a mechanism for the release and exchange of the reversionary interest to the
remaining block of EFU property if this application is successful."
H. Public/Private Agency Comments: The Planning Division mailed notice to several
agencies and as of the date of this Staff Report has received the following comments:
Deschutes County Environmental Health: Will require a site evaluation approval for
each residential lot proposed.
Deschutes County Address Coordinator: No address has been assigned to this
property. If this application is approved the applicants shall contact Property Address
Coordinator for a new address.
Arnold Irrigation District: In response to the above request, Arnold Irrigation District
does not have any facilities or water rights at this location.'
Bend Fire Department:
X Water Supply - 2004 Oregon IFC Section 508
An approved water supply capable of supplying the required fire flow for fire protection
shall be provided to premises upon which facilities, buildings or portions of buildings are
hereafter constructed or moved into or within the jurisdiction. See the City of Bend Fire
Marshal for approval of firefighting water supply.
X Premises Identification - 2004 Oregon IFC 505.1
Approved numbers or addresses shall be placed on all new and existing buildings in
such a position as to be plainly visible and legible from the street or road fronting the
property. Said numbers shall contrast with their background and visible at night.
Dwellings and Foster Homes that are located off of street frontage shall post a visible
approved reflective address sign at the entrance to their driveway. (Signs are available
at local Fire Stations)
X Street or Road Signs - 2004 Oregon IFC 505.2
' Staff notes the zoning map submitted by the applicant that has an aerial photograph shows an irrigation
canal that bisects the lower southeast corner of the property. Evidence and testimony submitted during
the public hearing process shows that the irrigation canal is under the control of the Arnold Irrigation
District and is located within an irrigation easement.
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District) 1
Page 4 of 23 Exhibit
Rage - of a1,
-oZ~
Ordinance ?,eY-OL
Streets and roads shall be identified with approved signs. Signs shall be of an approved
size and weather resistive construction.
X Key Boxes - 2004 Oregon IFC Section 506
Key Box (Knox Box) for Fire Department access is required to be installed
at -any gates_ An application for the Knox Box is available by calling the Fire
Prevention office at (541) 322-6309.
X Additional Comments: No further comments on request for plan amendment and
zone change.
The following agencies had no comments or did not respond to the request for
comments: Deschutes County Assessor, Deschutes County Road Department,
Deschutes County Transportation Planner, PG&E Gas Transmission, DLCD,
Watermaster- District 11, Central Electric Coop., Pacific Power and Light, Qwest, Dept.
of Fish and Wildlife, Oregon Department of Transportation.
J. Public Notice and Comments: The Planning Division mailed written notice of the
applicant's proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
was published in the "Bend Bulletin" newspaper on February 26, 2006, and the subject
property was posted with a notice of proposed land use action sign on February 10,
2006 on Gosney Road. As of the date of the Staff Report, the Planning Division
received no written public comments on the subject application.
At the public hearing, the applicant's representatives and two other persons spoke in
favor of the applications. Elaine Fulkerson submitted a letter in favor of the proposal.
Vern Bishop noted that the proposed zone change would need to address the Arnold
Irrigation District's lateral line, and that the proposal may change the traffic patterns in
the area. Isa Taylor, writing on behalf of John True, commented that the proposal would
shift residential development to the west side of Gosney Road, and that additional
driveways along Gosney Road would result in additional traffic hazards. Ms. Taylor
suggested that a condition of approval be imposed to limit potential new curb cuts. Ms.
Taylor also stated that she did not believe that the applicant had adequately
demonstrated that the proposed zone change qualifies for a reasons exception. Elaine
Green and Robin Brown submitted a letter in opposition, stating that they had purchased
their property on Gosney Road in part because of its proximity to a future park area, and
that additional residential development would undermine their property values.
K. Review Period: The applicant submitted the application on December 15, 2005. In a
January 24, 2006 letter, the applicant extended the processing time by 7 days to allow
the public hearing to be scheduled on March 28, 2006 instead of March 21, 2006.
Because the application is for a plan amendment, goal exception and related zone
change, the 150-day period for issuance of a final decision under ORS 215.427 does not
apply to this application.
The applicant has also complied with the posted notice requirements of Section
22.23.030(6) of Title 22. The applicant submitted a Land Use Action Sign Affidavit dated
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 5 of 23 Exhibit
Page 4 of 23
Ordinance 7~P6,
February 10, 2006 that indicates that the applicant posted notice of the land use action
on February 10, 2006.
At the request of the applicant, the Hearings Officer held the record open for written
comments until April 18, 2006. The Hearings Officer has considered all testimony and
evidence presented prior to the close of the record on May 2, 2006.
Ill. CONCLUSIONS OF LAW:
GOAL EXCEPTION
1. Conformance with Oregon Administrative Rule 660-004-0020.
Goal 2, Part II(c), Exception Requirements
(1) If a jurisdiction determines there are reasons consistent with OAR 660-004-
0022 to use resource lands for uses not allowed by the applicable Goal or to allow
public facilities or services not allowed by the applicable Goal, the justification
shall be set forth in the comprehensive plan as an exception.
(2) The four factors in Goal 2 Part II(c) required to be addressed when taking an
exception to a Goal are:
(a) "Reasons justify why the state policy embodied in the applicable goals should
not apply The exception shall set forth the facts and assumptions used as the
basis for determining that a state policy embodied in a goal should not apply to
specific properties or situations including the amount of land for the use being
planned and why the use requires a location on resource land;
FINDINGS: The applicant is requesting a "reasons" exception to Goal 3. The Burden of Proof
sets forth the facts and assumptions used in its argument to justify why the state policy
embodied in Goal 3 should not apply to the subject property. The applicant believes the County
has acknowledged that RR-10 lands comply with statewide planning goals, "considering the
County included RR-10 zoned property in this area in the Comprehensive Plan. After noting
that the County determined that having RR-10 lands in this area is justified, Applicant believes
that the goals of the county and state would be better served by granting the proposed zone
trade." The applicant further adds:
• Consolidating the RR-10 lands would decrease the need for new roads through EFU
land and would require no expansion of roads and minimal expansion of utilities.
• Increase in the market value of the RR-10 lands facilitating the purchase and
development of park property, which the applicant claims is a benefit for the whole
community, and decrease costs and maximize the value for the applicant, while
preserving the EFU land in a large block providing better protection and preservation of
the land for potential agriculture or other allowable uses.
• Consolidation of the EFU lands will result in several benefits including: benefiting wildlife
by reducing the impact of construction and development, preserving the scenic value of
the land allowing for an interrupted view of the property, and allowing uninterrupted
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 6 of 23 S~
Exhibit
Page of 3
Ordinance 1-62n6
public access to the EFU property (rather than requiring access through developments
to get to the three separate EFU areas).
Uses in the RR-10 zone include various permitted uses, such as a single-family dwelling, utility
facilities, and even agricultural use; and conditional uses, such as public parks, golf courses,
planned and cluster developments, landfills, and churches (reference DCC 18.60). The
dimensional standards also change and result in an increase in density in the RR-10 zone: in
the EFU zone, the minimum lot size for a nonirrigated land division is 80 acres and in the RR-10
zone, the minimum lot size is 10 acres. The proposal does not include a proposed use of the
property. However, the Terms of Agreement in the MOU between the applicant and the
neighbors identifies the 160-acre property would likely be subdivided in the future into 16 lots
(two 8-lot subdivisions). Approval of the zone change would allow the applicant to sell a portion
of land'for development and use the proceeds from the sale to purchase and develop additional
park land.
(b) "Areas which do not require a new exception cannot reasonably accommodate
the use
(A) The exception shall indicate on a map or otherwise describe the location of
possible alternative areas considered for the use, -which do not require a new
exception. The area for which the exception is taken shaft be identified;
FINDINGS: The applicant provided a map that depicts the two 80 acre parcels
proposed to be rezoned from RR-10 to EFU and alternative areas in a nine-mile area
that includes RR-10 zoned land that is not owned by the District. The nine sections
include properties south of Bear Creek Road, north of Rickard Road, east of Ward Road.
This nine square mile area includes the following sections: 18-13-06, 18-13-05, 18-13-
04, 18-13-07,18-13-08,18-13 09, 18-13-18, 18-13-17, and 18-3-16.
This standard is satisfied.
(B) To show why the particular site is justified, it is necessary to discuss why
other areas which do not require a new exception cannot reasonably
accommodate the proposed use. Economic factors can be considered along with
other relevant factors in determining that the use cannot reasonably be
accommodated in other areas. Under the alternative factor the following questions
shall be addressed.
(i) Can the proposed use be reasonably accommodated on nonresource land that
would not require an exception, including increasing the density of uses on
nonresource land? If not, why not?
FINDINGS: In response to this criterion the applicant provided the following reasons justifying
the current RR-10 property could not reasonably accommodate the proposed use:
• Developing the RR-10 property described in PA-05-9, ZC-05-4, would have
greater adverse impacts (impacts identified include wildlife, scenic values, rural
character of the land, as well as increased development costs) to the surrounding
EFU land because it would require more roads, utilities and traffic, both due to
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 7 of 23
Exhibit ~
Page of 2-3
-aZ
Ordinance
one of the parcels' distance from a main road and the separation of the parcels
currently zoned RR-10.
• The other RRA 0 zoned property within the surrounding area is not owned by the
Park District, and would defeat the main purpose of the proposal, which is to
allow the sale of the proposed exception area to generate money for the
acquisition and development of parks, including the Pine Nursery Property.
• The RR-10 properties in the surrounding area have already been parcelized and
developed with rural residences with a few exceptions. The vast majority of the
surrounding area parcels are already at or below the minimum lot size in the RR-
10 zone and have been developed with rural residences.
The location of the proposed RR-10 lands is more conducive to the division of the property to
allow a higher density than the District property proposed to be zoned EFU. Road frontage is
available along Gosney Road and Ward Road and minimal expansion of utilities would be
required. The existing RR-10 lands described in PA-05-9, ZC-05-4 could reasonably
accommodate residential use and possibly a partition or an eight lot subdivision (for each 80-
acre part) if a partition or subdivision were pursued in the future. However, economic factors
can be considered in this criterion and staff agrees with the applicant, that the proposed RR-10
property would be more attractive to a developer as the proposed 160-acre RR-10 property
could be sold as one large tract and is more conducive for development due to its proximity to
public roads (Gosney and Ward Roads), services, and utilities. Since the applicant owns the
property and the main intent of the zone change is to sell the property and generate funds for
the acquisition and development of parks, including the Bend Pine Nursery Property, staff
believes the economic factor supports the applicant's argument that the non-resource land (i.e.
the applicant's existing RR-10 land) cannot reasonably accommodate the proposed residential
use.
The Hearings Officer agrees with the applicant's and staff analysis. In addition, the Hearings
Officer finds that the proposed RR-10 zoned property is better suited for rural residential uses
than the District property that is the subject of PA 05-9/ZC 05-4 in that less resource land will be
used to support the rural residential development.
The Hearings Officer concludes that this criterion is satisfied.
(ii) Can the proposed use be reasonably accommodated on resource land that is
already irrevocably committed to nonresource uses, not allowed by the
applicable Goal, including resource land in existing rural centers, or by
increasing the density of uses on committed lands? If not, why not?
FINDINGS: The Burden of Proof states there is no resource land that is already irrevocably
committed in the surrounding area. Staff agrees with the applicant that the immediate
surrounding EFU land is either being farmed or in rural residential use with some hobby farming.
The nearest existing rural service center is the Alfalfa Rural Service Center which is about 10
miles northeast in Alfalfa. The applicant neither owns property in the Alfalfa Rural Service
Center nor is the rural service area conducive to a large development of rural residential uses
as rural service centers typically provide services, such as commercial services (grocery store,
post office, etc.) to serve and support the local communities. The applicant did not address
whether it owns other EFU zoned property in the surrounding that may qualify as being
"irrevocably committed," such as the Big Sky Park located on Hamby and Neff Roads (tax lot
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 8 of 23
Exhibit _J)
Page of 23
Ordinance ?240(_ - a 7-
5'
17-12-25-200), which is already developed for park purposes and would unlikely be available to
create a large residential development. Further, both the Alfalfa Rural Service Center and the
Big Sky Park are outside the applicant's "Surrounding Area" identified by the applicant in the
prior criterion.
The Hearings Officer concludes that existing RR-10 property in the area is either developed or
would require use of EFU zoned land for access. Therefore, the Hearings Officer concludes that
the applicant has adequately demonstrated that the proposed uses cannot be reasonably
accommodated on land that is already irrevocably committed to nonresource use.
(iii) Can the proposed use be reasonably accommodated inside an urban growth
boundary? If not, why not?
FINDINGS: The applicant provided the following response to the criterion:
One of the reasons that the proposed use cannot be accommodated inside the urban
growth boundary is that doing so would not allow for the purchase and development of
additional park property. Also, by its definition, rural residential development cannot be
accommodated inside an Urban Growth Boundary. The demand for rural housing is
partially due to a desire to live outside the urban growth boundary, where one can live on
a larger parcel of land farther from the city and closer to natural lands.
Assuming residential use of the proposed RR-10 property, staff believes residential use can be
reasonably accommodated inside an urban growth boundary (UGB). The question is, can rural
residential use be reasonably accommodated inside the urban growth boundary? The applicant
states above "by its definition, rural residential development cannot be accommodated inside an
Urban Growth Boundary," but did not provide a definition for rural residential development. The
County zoning ordinance also does not define rural residential development. OAR 660-004-
0040(2) and (5)(a) describes a rural residential zone as being outside of a UGB with a lot or
parcel size of at least two acres. However, if rural residential development assumes a 10-acre
minimum lot size outside the UGB "where one can live on a larger parcel of land farther from the
city and closer to natural lands" then staff agrees with the applicant, that rural residential
development cannot be accommodated inside the UGB.
Goal 10 provides that a local government must accommodate a range of housing types and
price ranges to address a population's needs. Cities tend to provide for most housing needs, as
cities have a greater range of urban services to accommodate residents. However, the
statewide planning goals have recognized that rural residential housing, such as dwellings on
large lots, serve a need and are a legitimate use when they are appropriately located. The
Hearings Officer concludes that while it is possible to accommodate large lot sizes within UGBs,
most cities discourage them, as they result in higher costs of services overall. For example, the
Bend Zoning Ordinance provides that in the Low Density Residential Zone, the maximum lot
size is 40,000 square feet. The minimum density for Standard Density Residential lots is 2.0
units per gross acre.
The applicant has demonstrated that rural residential development at the levels allowed in the
RR-10 zone, are not accommodated within the Bend UGB. Therefore, this standard is met.
(iv) Can the proposed use be reasonably accommodated without the provision of a
proposed public facility or service? If not, why not?
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 9 of 23 EXhlbit
rage q _of,7 3
Ordinance '7-066 - -0 L
FINDINGS: The applicant does not propose a public facility or service as part of the proposed
application. Public facilities and services are currently provided in the nearby area as evidenced
by existing rural residential development in the nearby and adjacent areas. Lane Knolls Estates
subdivision to the west and other nearby rural residential development, for example, are
presently served by power, telephone, and septic, fire and police protection. The applicant
provided "willing to serve" letters from the Deschutes County Rural Fire Protection District #2,
Central Electric Co-op, and Avion Water Company.
The Hearings Officer concludes that the applicant has demonstrated that the proposed uses can
be reasonably accommodated by existing service providers..
(C) This alternative areas standard can be met by a broad review of similar types of areas
rather than a review of specific alternative sites. Initially, a local government adopting an
exception need assess only whether those similar types of areas in the vicinity could not
reasonably accommodate the proposed use. Site specific comparisons are not required
of a local government taking an exception, unless another party to the local proceeding
can describe why there are specific sites that can more reasonably accommodate the
proposed use. A detailed evaluation of specific alternative sites is thus not required
unless such sites are specifically described with facts to support the assertion that the
sites are more reasonable by another party during the local exceptions proceeding.
(c) The long-term environmental, economic, social and energy consequences resulting
from the use at the proposed site with measures designed to reduce adverse impacts are
not significantly more adverse than would typically result from the same proposal being
located in other areas requiring a Goal exception. The exception shall describe the
characteristics of each alternative areas considered by the jurisdiction for which an
exception might be taken, the typical advantages and disadvantages of using the area for
a use not allowed by the Goal, and the typical positive and negative consequences
resulting from the use at the proposed site with measures designed to reduce adverse
impacts. A detailed evaluation of speck alternative sites is not required unless such
sites are specifically described with facts to support the assertion that the sites have
significantly fewer adverse impacts during the local exceptions proceeding. The
exception shall include the reasons why the consequences of the use at the chosen site
are not significantly more adverse than would typically result from the same proposal
being located in areas requiring a goal exception -other than the proposed site. Such
reasons shall include but are not limited to, the facts used to determine which resource
land is least productive; the ability to sustain resource uses near the proposed use; and
the long-term economic impact on the general area caused by irreversible removal of the
land from the resource base. Other possible impacts include the effects of the proposed
use on the water table, on the costs of improving roads and on the costs to special
service districts;
FINDINGS: The applicant provided the following response to this criterion:
"The long term environmental, economic, social, and energy consequences have been
addressed in the response to Goal 2, Part ll. The primary alternative area is the land
currently owned by the Applicant zoned EFU. As explained above, one of the primary
goals in the proposed zone [change] is to consolidate the EFU properties. By proposing
the RR-10 zone trade for other properties owned by the District that are zoned EFU, this
goal would not be achieved. The other EFU lands that could be proposed for the land
zone trade are not served by public facilities. The negative environmental effects of
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 10 of 23 Exhibit
Page of 2-3
Ordinance 1-ffi(o --02,5'
proposing a zone trade on any of these EFU lands would include unnecessary
expansion of public facilities such as roads and utilities onto EFU land and various
negative impacts on the wildlife in the area.
"The other EFU lands owned by the District would cost more to develop than the
proposed area. The sale or development of these lands would result in substantially
less net revenue for the Applicant to purchase and develop park property.
"The social consequences of developing the other EFU property would include making
the land less desirable for many social activities, such as hiking and mountain biking,
because it would allow rural residential development in the middle of a block of EFU
property.
"The energy consequences would be greater because the RR-90 panels would be
farther away from existing utilities. The extension of utilities and roads would be
required. "
Staff believes the proposed use, assuming a 16-lot subdivision on 160 acres on the proposed
RR-10 zone land where each lot would be 10 acres, would not be significantly more adverse
than if the residential development occurred on the two separate 80-acre properties currently
zoned RR-10. Staff agrees with the applicant, the proximity of the proposed RR-10 zoned
property along Gosney and Ward Roads are better served by existing public roads and
electrical services as the proposed RR-10 zoned property would have frontage along Gosney
and Ward Roads and electrical services are available as observed on a site visit. Economically
and socially, approval of the zone change would allow the applicant to sell the property and use
the proceeds to purchase additional park land, including the Pine Nursery project, for the future
benefit of the community. In addition, the MOU with the neighbors suggest that social impacts
are less on the proposed property than the existing RR-10 property. Staff is unaware of any
environmental resources on the property-the property is not in the County's Wildlife Area (WA)
Combining zone and the 10-acre lot sizes and one dwelling per legal lot restriction in the RR-10
zone, in staffs opinion, would aid in preserving open space for wildlife passage.
Both the current RR-10 land and proposed RR-10 land are unirrigated (no water rights are
allocated to the Park District's property), consist of the same non-high value soil types (38B and
58C), are not currently engaged in farm use and, based on the dense juniper vegetation, appear
to never have been farmed. Further, since the applicant concurrently applied for a plan
amendment and zone change (PA-5-9 and ZC-05-4) to change the zone of 160 acres of RR-10
land to EFU, staff believes there will be no irreversible removal of EFU land.
During the public hearing process, two parties testified that the existing RR-10 zoned Eastgate
parcels are more suitable for rural residential uses. Their arguments are based on three
premises: (1) that the proposed areas for rural residential zoning would result in numerous
driveway accesses onto Gosney Road, resulting in additional traffic and traffic safety hazards;
(2) that the proposed areas for residential development include land that is transversed by an
irrigation ditch, and owners who are not engaged in agricultural activities may interfere with the
conveyance of irrigation water through the ditch; and (3) the proposed zone change would result
in residential development in area where the property owners assumed park development would
occur.
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 11 of 23
Exhibit
Page of _73
Ordinance 2 Wr„ -r, a.!~-
While the question is a close one, the Hearings Officer concludes that the subject parcels are
better suited for rural residential development than the internal parcels currently zoned for rural
residential uses. The existing RR-10 zoned parcels are interior parcels, and while they would
not expand RR-10 development to the east as the proposed parcels would, development of the
RR-10 parcels would require new roads and service lines, some of which would have to cross
EFU zoned lands. If the proposed parcels are redesignated for rural residential uses, roads
could be constructed on the RR-10 zoned land that would connect to existing collector roads,
thus preserving resource land. Second, the proposed land swap would not result in more traffic
impact, as the net effect of the swap is to have the same number of resource acres in the area
as there are RR-10 zoned acres. Thus, overall, the greater benefit results from consolidated the
resource uses along the interior or the Eastgate property, and developing along the exterior, as
is proposed.
No other property was identified as an alternative, and for the above reasons, the Hearings
Officer concludes these criteria are satisfied.
(cQ The proposed uses are compatible with other adjacent uses or will be so rendered
through measures designed to reduce adverse impacts. The exception shall describe
how the proposed use will be rendered compatible with adjacent land uses. The
exception shall demonstrate that the proposed use is situated in such a manner as to be
compatible with surrounding natural resources and resource management or production
practices. Compatible is not intended as an absolute term meaning no interference or
adverse impacts of any type with adjacent uses.
FINDINGS: Assuming residential use of the proposed RR-10 zone property, staff agrees with
the applicant's response below, that the residential use would be compatible with the adjacent
mixed farm and rural residential uses and character of the area:
The County has already determined that the surrounding EFU zoning on the
Eastgate Property is compatible with RR-10 in its County Comprehensive Plan.
The EFU land owned by the District [will be] retained and could be used for open
space and limited recreational uses.
The proposed area to be redesignated RR-10 will be surrounded by a mix of EFU
and RR-10 zoned property. Similarly, the currently zoned RR-10 property will be
surrounding by a mix of EFU and RR-10 zoned property. The current
surrounding area combinations would not be significantly different under the
proposed zone trade. There would be new areas for RR-10 land and EFU land
abutting one another. However, because of the 10 acre minimum in the RR 10
zones there is adequate room for setbacks to provide buffering and reduce any
potential adverse impacts of rural residential development and any surrounding
agricultural uses.
No detailed evaluation of specific alternative sites is currently necessary because
no sites have been specifically described with facts to support the assertion that
the sites have significantly fewer adverse impacts.
In addition, staff also believes the MOU between the neighbors and the applicant support the
applicant's assertion that the proposed zone change and future residential use of the proposed
RR-10 property would be compatible with the existing residential uses.
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 12 of 23
Exhibit
Page 19 of L3
Ordinance AZ 6 -0 7-4;'
With respect to the potential adverse impact on the irrigation easement the Hearings Officer
concludes that the irrigation ditch is adequately protected by the existing easement. The
easement provides that no development occur within 25 feet of the ditch, and that no
interference with the conveyance of water be allowed. Further development on the property will
be subject to that easement.
With respect to additional driveway entrances onto Gosney Road, the Hearings Officer
concludes that development standards for subdivisions will adequately address those concerns.
The applicant has submitted evidence that the additional traffic that is likely to be generated by
the proposed zoning will not exceed road capacity and, indeed, the net effect of the proposal will
result in approximately the same number of trips being generated as would be allowed under
the existing zoning pattern.
OAR 660-004-0022
Reasons Necessary to Justify an Exception Under Goal 2, Part II(c)
An exception Under Goal 2, Part ll(c) can be taken for any use not allowed by the
applicable goal(s) or for a use authorized by a statewide planning goal that cannot
comply with the approval standards for that type of use. The types of reasons that
may or may not be used to justify certain types of uses not allowed on resource
lands are set forth in the following sections of this rule.
2) Rural Residential Development. For rural residential development the
reasons cannot be based on market demand for housing, except as
provided for in this section of this rule, assumed continuation of past
urban and rural population distributions, or housing types and cost
characteristics. A county must show why, based on the economic analysis
in the plan, there are reasons for the type and density of housing planned
which require this particular location on resource lands. A jurisdiction
could justify an exception to allow residential development on resource
land outside an urban growth boundary by determining that the rural
location of the proposed residential development is necessary to satisfy
the market demand for housing generated by existing or planned rural
industrial, commercial, or other economic activity in the area.
FINDINGS: Assuming the "plan" referenced in the above criterion refers to the County's
Comprehensive Plan, staff believes the following sections of the Comprehensive Plan apply:
Chapter 23.56. Housing:
23.66.020. Goals.
1. To provide adequate number of housing units at price ranges and rent levels
commensurate with the financial capabilities of local households.
2. To allow flexibility of housing location, type and density in Deschutes County.
The applicant did not address the housing chapter of the Comprehensive Plan. Staff believes
the applicant's proposed use, assuming a 16-lot subdivision would add to the number of
housing units in the County (the plan does not define what an "adequate number of housing
units" would be, but does state that "that except for mobile homes serious housing shortages
exist locally.") However, there is no evidence in the record demonstrating price ranges of the
homes and whether they would be commensurate with the "financial capabilities of local
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 13 of 23
Exhibit
Page I of -Z-3
Ordinance r~ n
households." In addition, staff believes the 10-acre sized lots would provide flexibility in housing
location, type, and density by providing a rural lifestyle on large lots outside an urban growth
boundary.
The applicant addresses Chapter 23.52, Economy, of the Comprehensive Plan as stated below:
Chapter 23.52 of the County Comprehensive Plan addresses the County's economy,
and states the county's economic goals include:
1. "To diversify and improve the economy of the area.
2. To enhance and maintain the existing natural resource, commercial and
industrial segments of the local economy."
"In the discussion of these goals, a significant portion of the focus is on tourism,
recreation and loss of scenic attractiveness due to development, while also noting the
importance of the construction industry to the local economy. Approving this zone trade
will enhance recreational opportunities for the community. First, because it will
consolidate the remaining EFU properties in a large block as described above. Second,
it will enable the District to acquire and develop additional park properties. At the same
time it will enable the development of already existing rural residential properties,
positively impacting the local economy and satisfying the demand for rural housing.
"This zone trade would ensure that no development would occur in the middle of the
Eastgate Property, thereby consolidating the EFU lands and protecting against loss of
scenic attractiveness due to development. These sorts of safeguards are necessary to
shield the attractions that drive the tourism industry in Central Oregon. Granting the
proposal would also stimulate the local economy because the building of new homes on
the proposed lots would require construction, and these new homes would satisfy a
portion of the market demand for rural housing."
Residential development of the property would contribute to enhancing and maintaining the
economy by stimulating construction-related employment, the sale and purchase of real estate,
and commercial businesses that support local commercial segments of the economy. Staff
believes the potential residential use of the property will have minimal affect on the natural
resources and industrial segments of the economy. The proposed zone change does maintain
the status quo in this area in terms of land zoned EFU and land zoned RR-10, since it provides
no new or additional housing density and results in no net loss of resource land.
OAR 660-004-0018(1) and (4) Planning and Zoning for Exception Areas
(1) Purpose. This rule explains the requirements for adoption of plan and zone
designations for exceptions. Exceptions to one goal or a portion of one goal do
not relieve a jurisdiction from remaining goat requirements and do not authorize
uses, densities, public facilities and services, or activities other than those
recognized or justified by the applicable exception. * * * Adoption of plan and
zoning provisions that would allow changes in existing types of uses, densities,
or services requires the application of the standards outlined in this rule.
(4) "Reasons" Exceptions:
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 14 of 23
Exhibit
Page of
Ordinance
(a) When a local government takes an exception under the "Reasons" section of
ORS 197.732(1)(c) and OAR 660-004-0020 through 660-004-0022, plan and zone
designations must limit the uses, density, public facilities and services, and
activities to only those that are justified in the exception;
(b) When a local government changes the types or intensities of uses or public
facilities and services within an area approved as a "Reasons" exception, a new
"Reasons" exception is required;
FINDING: The proposed zoning is consistent with the purpose of the exception requested-rural
residential development. It permits land that is currently zoned EFU to be rezoned to RR-10, a
rural residential designation that is common in the area, and will allow only the types of densities
and uses that are typical in a rural area. The applicant does not anticipate that rezoning the
subject property to RR-10 will result in a need for additional or special facilities and services for
the subject property.
B. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule2
a. OAR 660-012-060, Plan and Land Use Regulation Amendments.
(1) Where an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation would significantly affect
an existing or planned transportation facility, the local government shall
put in place measures as provided in section (2) of this rule to assure
that allowed land uses are consistent with the identified function,
capacity, and performance standards (e.g. level of service, volume to
capacity ratio, etc.) of the facility. A plan or land use regulation
amendment significantly affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan);
(b) Change standards implementing a functional classification system;
or
(c) As measured at the end of the planning period identified in the
adopted transportation system plan:
(A) Allow land uses or levels of development that would result in types
or levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
2 The version of the Transportation Planning Rule cited in the Staff Report has been superseded. The
current version is set out above.
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 15 of 23
Exhibit
Page / of
~
Ordinance Z"(O
(B) Reduce the performance of an existing or planned transportation
facility below the minimum acceptable performance standard
identified in the TSP or comprehensive plan; or
(C) Worsen the performance of an existing or planned transportation
facility that is otherwise projected to perform below the minimum
acceptable performance standard identified in the TSP or
comprehensive plan.
(2) Amendments to functional plan, acknowledged comprehensive plans,
and land use regulations which significantly affect a transportation
facility shall assure that allowed land uses are consistent with the
identified function, capacity, and level of service of the facility. This
shall be accomplished by either:
(a) Limiting allowed land uses to be consistent with the planned
function, capacity and level of service of the transportation facility;
(b) Amending the TSP to provide transportation facilities
adequate to support the proposed land uses consistent with the
requirements of this division; or
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel and meet travel
needs through other modes.
FINDING: If approved, the proposed RR-10 land may be developed as a 16-lot residential
subdivision, where each lot would consist of 10 acres, with frontage along both Gosney and
Ward Roads. According to evidence provided by Steve Jorgensen, Deschutes County Senior
Transportation Planner, the trip generation for a 16-lot subdivision would range from 154 to 192
new trips per day. Mr. Jorgensen concluded that there is existing capacity on Gosney and Ward
Roads to support the additional traffic load.
The Hearings Officer concludes that the proposed zoning will not "significantly affect" a
transportation facility" within the meaning of OAR 660-012-0060(1).
CONCLUSION: The Hearings Officer concludes that the applicant has demonstrated that
a reasons exception to Goal 3 is appropriate in this case, where the net result would be
the designation of the same number and quality of acres for resource uses, and
substitutes the proposed area for an area that is less suitable for rural residential uses.
PLAN AMENDMENT
2. Conformance with the Deschutes County Comprehensive Plan
A Plan Amendment to the Comprehensive Plan is required for the proposed zone change of the
EFU property to change the plan from Agriculture to Rural Residential Exception Area (RREA).
Staff believes the following Sections and Goals and Policies within those sections apply to the
proposed plan amendment:
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 16 of 23
Exhibit
Page 1(a- of 23-
Ordinance 700 c--DZSs-
1. Chapter 23.24, Rural Development
a. Section 23.24.020, Goals
A. To preserve and enhance the open spaces, rural character, scenic
values and natural resources of the County.
B. To guide the location and design of rural development so as to
minimize the public costs of facilities and services, to avoid
unnecessary expansion of service boundaries and to preserve and
enhance the safety and viability of rural land uses.
Findings: The applicant proposes a Plan Amendment from Agriculture to Rural Residential
Exception Area (RREA) for the 160-acre subject property. The application is submitted in
conjunction with another plan amendment and zone change (PA-05-9 and ZC-05-4) to change
160-acres on the same tract owned by the applicant from RR-10 to EFU. Staff agrees with the
applicant's statement below:
"Natural resources, open spaces and scenic values are all protected by this zone
trade, resulting in preservation of the rural character of the land. Overall, the
land would change very little, and the changes that are made help to protect the
rural character of the land. The consolidation of the EFU lands ensures that
development would not occur in the middle of the Eastgate Property, which
would have adverse impacts on rural character of the land. The development
potential of the zone trade is the same, 16 lots. It would just be in a more suitable
location."
In addition, staff believes the proposed plan amendment from Agriculture to RREA would not
adversely affect open space, rural character, scenic values or natural resources of the County.
Approval of the Plan Amendment would potentially allow the property to be developed in a 16-
lot subdivision with each lot at 10 acres in size consistent with the RR-10 zone. The 10-acre
size of each lot would preserve the open space, rural character, and natural resources of the
County. Scenic values will be preserved and possibly enhanced as the proposed RR-10 zone
property will be relocated along collector roads and not in the current locations in the north and
southwest areas of the property. Because the property is near and adjacent to other residential
development in the area that is currently served with power, telephone, on-site sewage disposal
and fire and emergency services, and because the subject property would abut and have
access from two paved and County-maintained rural collector roads, Gosney Road and Ward
Road, staff believes the proposed re-designation from Agriculture to RREA would minimize
public costs for facilities and services.
2. Chapter 23.52, Economy
a. Section 23.52.030, Policies
6. The County shall protect agricultural land to assure continued agricultural
production and the benefits to tourism.
Findings: Approval of the proposed plan amendment affecting 160 acres of Agriculture land to
RREA is being sought in conjunction with another plan amendment affecting 160 acres of the
land owned by the applicant on the same tract from RREA to Agriculture. The Hearings Officer
agrees with the applicant's statement below that the proposal will protect agricultural land:
Filer PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 17 of 23
Exhibit 3 ,
Page of
Ordinance s
"This goal would be furthered because the proposal for rezoninVp/an
amendment/goal exception would preserve the same amount of EFU land as
currently exists. Currently, the proposed zone trade areas are very similar with
regard to soil quality and agricultural potential, so there would be no net loss of
this type of agricultural land. Additionally, granting the proposal would keep all of
the potential development land together, as opposed to the way the RR-10 land
currently exists, which is important because the proposal would mean that there
would not need to be roads or utilities on the agricultural land as a development
in the currently zoned RR-10 land would require. The absence of roads and
utilities on the agricultural land is an important factor to consider when analyzing
the requirements for proper maintenance of agricultural land."
3. Chapter 23.68, Public Facilities
a. Section 23.68.020, Policies [as applicable.]
1. Public facilities and services shall be provided at levels and in areas
appropriate for such uses based upon the carrying capacity of the land,
air and water, as well as the important distinction that must be made
between urban and rural services. In this way public services may
guide development while remaining in concert with the public's needs:
3. Future development shall depend on the availability of adequate local
services in close proximity to the proposed site. Higher densities may
permit the construction of more adequate services than might
otherwise be. true. Cluster and planned development shall be
encouraged.
9. New development shall not be located so as to overload existing or
planned facilities, and developers or purchasers should be made aware
of potentially Inadequate power facilities in rural areas.
FINDINGS: Public facilities and services are currently provided in the nearby area as
evidenced by existing rural residential development in the nearby and adjacent areas. Lane
Knolls Estates subdivision to the west and other nearby rural residential development are
presently served by power, telephone, and septic, fire and police protection. The property
adjoins County-maintained rural collector roads, Gosney Road and Ward Road. The applicant
has provided "willing to serve" letters from service providers, and testimony from a county
transportation planner supports the applicant's assertion that there are adequate road facilities
in place to serve residential development on the subject properties. The evidence supports a
conclusion that the proposed map amendment will not result in development that exceeds the
carrying capacity of the land, water or air.
5. Chapter 23.88, Agricultural Lands
a. Section 23.88.030, Zoning Policies
1. All lands meeting the definition of agricultural lands shall be
zoned Exclusive Farm Use, unless an exception to Statewide
Goal 3 is obtained so that the zoning may be Multiple Use
Agriculture or Rural Residential.
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 18 of 23
Exhibit
Page -I--- of 2
Ordinance ZA() -~S"
FINDINGS: Staff believes the issue regarding this plan amendment criterion is whether the
proposed EFU property qualifies as agricultural land as that term is defined in the Oregon's
Statewide Planning Goals & Guidelines, Goal 3. Agricultural Lands. Goal 3 defines Agricultural
Lands as follows:
Agricultural Land - in western Oregon is land of predominantly Class 1, 11, Ill
and IV soils and in eastern Oregon is land of predominantly Class 1, N, lll, IV, V
and V1 soils as identified in the Soil Capability Classification System of the United
States Soil Conservation Service, and other lands which are suitable for farm use
taking into consideration soil fertility, suitability for grazing, climatic conditions,
existing and future availability of water for farm irrigation purposes, existing land
use patterns, technological and energy inputs required, or accepted farming
practices. Lands in other classes which are necessary to permit farm practices
to be undertaken on adjacent or nearby lands, shall be included as agricultural
land in any event.
More detailed soil data to define agricultural land may be utilized by local
governments if such data permits achievement of this goal.
Agricultural land does not include land within acknowledged urban growth
boundaries or land within acknowledged exceptions to Goals 3 and 4.
As previously discussed, the soils map submitted by the applicant shows the subject 160-acre
property consisting predominantly of soil mapping unit, 38B - Deskamp-Gosney Complex (a
small pocket in the northwest comer is comprised of 58C). The land capability classes for 38B
when irrigated is III for the Deskamp soils and IV for the Gosney soils and nonirrigated is VI for
the Deskamp soils and VII for the Gosney soils. Since the property is unirrigated, the property
consists predominantly of class VI or class VII soils, according to the NRCS soils classification
data. Since the applicant did not provide a specific on-site soils analysis of the property to
demonstrate that the predominant soil classification is Class VII, the soils on the property are
presumed to be agricultural soils, albeit marginal ones. Therefore, an exception to Goal 3 must
be approved before the property may be rezoned for rural residential use.
CONCLUSION: Based on the evidence in the record and conclusions of law set forth above,
the Hearings Officer concludes that the applicant has demonstrated that the proposed plan map
amendment satisfies applicable criteria.
ZONE CHANGE
TITLE 18, DESCHUTES COUNTY ZONING ORDINANCE
A. Chapter 18.136, Amendments
Section 18.136.020. Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to be
demonstrated by the applicant are:
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 19 of 23
Exhibit
Page -I ~ of L
Ordinance :2 M62 LS--
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory
statement and goals.
FINDING: As discussed in the findings above, the subject property currently is designated
Agriculture on the County's Comprehensive Plan Map. Rezoning the property to RR-10 would
be consistent with the findings above, which conclude that the proposal satisfies reasons
exception and plan amendment criteria.
In addition, in a prior Hearings Officer's decision involving a plan amendment and goal
exception to Goal 3 ("committed" exception) and zone change from Surface Mining to Multiple
Use Agricultural (MUA-10, file numbers PA-04-4, ZC-04-2), the Hearings Officer made the
following finding relative to the subject criterion:
I further find the plans goals and policies do not constitute mandatory approval
criteria for the proposed zone change, but rather are implemented through the
zoning ordinance. Therefore, if the proposed zone change is consistent with the
applicable provisions of the zoning ordinance it also will be consistent with the
plan.
Even if the goals and policies of the Comprehensive Plan provide applicable approval criteria,
the Hearings Officer concludes that the applicant has demonstrated that the proposal, including
the land swap, is consistent with Comprehensive Plan policies and goals.
Staff has addressed the proposed zone. change criteria below.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDING: The applicant is proposing a zone change from Exclusive Farm Use (EFU-TRB) to
Rural Residential (RR-10). The purpose of the RRA 0 zone is stated below:
18.60.010. Purposes.
The purposes of the Rural Residential Zone are to provide rural residential living
environments; to provide standards for rural land use and development
consistent with desired rural character and the capability of the land and natural
resources; to manage the extension of public services; to provide for public
review of nonresidential uses, and to balance the public's interest in the
management of community growth with the protection of individual property rights
through review procedures and standards.
In response to this criterion, the applicant's Burden of Proof states:
"The proposed zone trade will maintain the previously established inventory of
RR-10 lands on the Eastgate Property by rezoning the land currently RR-10 to
EFU. The subject property is ideally located in the proposed area because it
consolidates all of the EFU land into one contiguous region, rather than having it
divided into three separate areas as it currently exists. This will help to preserve
land resources and will create more physical isolation, which will help to protect
the rural character of the area. "
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 20 of 23
Exhibit
Page of 2--3
Ordinance
~~iJ -~'Z5~
Staff agrees with the applicant, that taken in conjunction with the other plan amendment and
zone change proposed, PA-05-9, ZC-05-4, the proposed zone change will provide rural
residential living environments (assuming a 16-lot subdivision where each lot is 10 acres in
size). The standards for the RR-10 are developed within the RR-10 zoning language and
provide for rural land use and development consistent with desired rural character and the
capability of the land and natural resources; to manage the extension of 'public services; to
provide for public review of nonresidential uses; and to balance the public's interest in the
management of community growth with the protection of individual property rights through
review procedures and standards. The use of the property, assuming a 16-lot residential
subdivision where each lot would consist of 10 acres, would be consistent with the purpose and
intent of the proposed RR-10 zoning.
Based on the above findings, the Hearings Officer concludes that this standard has been
satisfied.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
1. The availability and efficiency of providing necessary
public services and facilities.
FINDING: The availability of necessary public services and facilities was previously addressed
under the Goal Exception criteria. The Hearings Officer concludes that the evidence supports a
finding that adequate public facilities are available to serve the subject property. In addition,
while the applicant has not provided septic evaluations for each potential lot, the Hearings
Officer concludes that the soils are similar to other soils in the area where rural residential
development has occurred, and that no dwellings will be permitted unless adequate subsurface
sewage facilities can be installed. Therefore, this standard is met.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDING: Surrounding land uses were addressed in the Goal Exception criteria and include a
mixture of uses, including rural residential, farm, and open space and recreation. Rezoning the
property to RR-10 will not adversely impact surrounding property because residential use is
consistent the surrounding area. Relocating the RR-10 property along public roads will also
provide direct access and public services of the property onto a public road thereby, minimizing
impacts to existing farm uses and preserving open space and recreational uses.
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the zoning
of the property in question.
FINDING: Staff believes the subject property's original EFU zoning was not a mistake. The
applicant argues the zone change from EFU to RR-10 is justified by a change in circumstances
since the property was last zoned as stated below:
"There has been a change in circumstances justifying the proposed zone trade.
The District acquired a large portion of the Eastgate Property from the County.
When the property was owned by the County it was likely not an issue as to how
the property was designated or zoned. Since acquiring the property from the
County, the Park District has updated its comprehensive park plan and has
acquired the Pine Nursery Property from the federal government. In the current
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 21 of 23
Exhibit
Page -C-. of Z-3
Ordinance 2mo
park plan, the Eastgate Property is not scheduled for park development. This is
so, in part, because the properties are located beyond the Park District's
boundaries. Also, there is no identified need for a park development in this rural
area. The best utilization of the Eastgate Property is through maximization of the
value so as to fund other park acquisition and development, including the Pine
Nursery Property. In addition, under the proposed plan, 600 acres of the
property will be retained for open space and recreational uses by the surrounding
area neighbors as well as Park District residents.
Moreover, since the property was originally zoned, there has been substantial
residential development in the surrounding area. Much of that development has
taken access off of Ward Road, which has now become developed with public
services, including water and power, as well as road infrastructure. This
development pattern has not occurred in the Current RR-10 Property.. Therefore,
re-locating the RR-10 zoned property as proposed is more consistent with the
Comprehensive Plan policies for rural residential development that it was when
originally zoned.
The phrase "a change in circumstances since the property was last zoned" can be broadly
interpreted. The above criterion does not define the parameters as to what constitutes °a
change in circumstances." The property has been zoned EFU since the County adopted PL-15
in 1979. The change in circumstances identified in the applicant's Burden of Proof includes the
Park District's update of their comprehensive park plan to include the Pine Nursery Property and
exclude the proposed RR-10 property. While the Burden of Proof does not state when the
applicant acquired the property, the acquisition of the Pine Nursery Property and its
incorporation of the proposed park development into the Park District's comprehensive park
plan appear to have occurred after the subject property was acquired by the Park District. The
proposal to rezone the property from EFU to. RR-10 would allow the applicant to sell the
property and generate funds for the Pine Nursery property, which once improved for park
purposes, would serve the public health, safety and welfare by providing a community asset in
the form of a public park. In addition, the types of residential development that has occurred in
the area has resulted in the RR-10 zoned Eastgate parcels being separated from county roads
and, consequently, less suitable for residential development than when they were originally
included in the RR-10 exception areas. Based on this information, the Hearings Officer
concludes the applicant has demonstrated the proposed zone change is justified by a change of
circumstance.
TITLE 22, DEVELOPMENT PROCEDURES ORDINANCE
Section 22.28.030. Decision on plan amendments and zone changes.
A. Except as set forth herein, the Hearings Officer or the Planning
Commission when acting as the Hearings Body shall have authority
to make decisions on all quasi-judicial zone changes and plan
amendments. Prior to becoming effective, all quasi-judicial plan
amendments and zone changes shall be adopted by the Board of
County Commissioners.
B. In considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the Hearings Officer has
authority to make a decision, the Board of County Commissioners
shall, in the absence of an appeal or review initiated by the Board,
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 22 of 23
Exhibit
Page 2,;Z-- a# 23
Ordinance Zao <o - QZ
adopt the Hearings Officer's decision. No argument or further
testimony will be taken by the Board.
C. Plan amendments and zone changes requiring an exception to the
goals or concerning lands designated for forest or agricultural use
shall be heard de novo before the Board of County Commissioners
without the necessity of riling an appeal, regardless of the
determination of the Hearings Officer or Planning Commission.
Such hearing before the Board shall otherwise be subject to the
same procedures as an appeal to the Board under DCC Title 22.
FINDING: The County's Procedure's Ordinance, Chapter 22, establishes the procedures for
decisions on plan amendments and zone changes. The subject proposal involves a plan
amendment, goal exception, and zone change, which requires a de novo hearing before the
Board.
IV. CONCLUSION AND RECOMMENDATION:
The Hearings Officer concludes that the District has demonstrated that all applicable criteria
have been satisfied. Accordingly, the Hearings Officer recommends that the Board of County
Commissioners take an exception to Goal 3 pursuant to OAR 660-0040020 and 0022 to allow
the proposed re-designation. Further, the Hearings Officer recommends that the Deschutes
County Board of County Commissioners APPROVE the District's application to amend the
county comprehensive plan map for the subject property from EFU-TRB to RREA and to rezone
the property from EFU to RRA 0.
-Dated this 23rd day of May, 2006.
Mailed this c- day of May, 2006.
Anne Corcoran Briggs
Hearings Officer
File: PA-05-8, ZC-05-3 (Bend Metro Park and Recreation District)
Page 23 of 23
Exhibit
Page - 2Z of 13
Ordinance ?hr,(--
ZONE CHANGE
ORDINANCE 2006-026