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2011-2952-Minutes for Meeting June 27,2011 Recorded 7/11/2011DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL 111111111111111 1111111111111III 2011-20'52 CLERKS w 2011.2952 07/11/201111:30:50 AM Do not remove this page from original document. Deschutes County Clerk Certificate Page 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 BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JUNE 279 2011 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney and Alan Unger; and, by conference call, Commissioner Anthony DeBone. Also present were Dave Kanner, County Administrator, Laurie Craghead, County Counsel; Tom Anderson, George Read, Nick Lelack, William Groves, Peter Gutowsky, and five other citizens. No representatives of the media were in attendance. Chair Baney opened the meeting at 10:02 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-014, Amending Code to Change Comprehensive Plan Designation of Certain Property from Surface Mining and Agricultural to Rural Residential Exception Area. Will Groves gave a brief overview of the item, and indicated there have been no changes since the first reading. UNGER: Move second reading by title only of Ordinance No. 2011-014. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the second reading by title only at this time. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 1 of 9 Pages UNGER: Move adoption of Ordinance No. 2011-014. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 3. Before the Board was Consideration of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-015, Amending Code to Change Zoning Designation of Certain Property from Surface Mining and Exclusive Farm Use to Rural Residential. UNGER: Move second reading by title only of Ordinance No. 2011-015. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the second reading by title only at this time. UNGER: Move adoption of Ordinance No. 2011-015. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 4. Before the Board was Consideration of First and Second Readings, by Title Only, and Adoption by Emergency of Ordinance No. 2011-019, Amending the Comprehensive Plan Map Designation for Certain Property from Urban Reserve Area to Public Facilities. Nick Lelack explained the item and referred to an oversized map of the subject property and area. He said the City of Bend has already taken action and their decisions will be effective on July 15. It is being requested by emergency since the U.S. Forest Service has a new headquarters under construction. The City of Bend will not extend sewer services until the property is within the Urban Reserve Area. Due to Federal sovereignty, the Forest Service was not required to go through a land use process, but chose to do so. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 2 of 9 Pages UNGER: Move first and second readings of Ordinance No. 2011-019 by title only, declaring an emergency. DEBONE: Second. VOTE: LINGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first and second readings by title only at this time, declaring an emergency. UNGER: Move adoption of Ordinance No. 2011-019. DEBONE: Second. VOTE: UNGER: DEBONE: BANEY: Yes. Yes. Chair votes yes. 5. Before the Board was Consideration of First and Second Readings, by Title Only, and Adoption by Emergency of Ordinance No. 2011-020, Amending the Deschutes County Zoning Map to Change the Zone Designation for Certain Property from Urban Area Reserve to Public Facilities. UNGER: Move first and second readings of Ordinance No. 2011-020 by title only, declaring an emergency. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first and second readings by title only at this time, declaring an emergency. UNGER: Move adoption of Ordinance No. 2011-020. DEBONE: Second. VOTE: UNGER: DEBONE: BANEY: Yes. Yes. Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 3 of 9 Pages 6. Before the Board was Consideration of First and Second Readings, by Title Only, and Adoption by Emergency of Ordinance No. 2011-021, Amending the Comprehensive Plan Map to Expand the City of Bend Urban Growth Boundary. UNGER: Move first and second readings of Ordinance No. 2011-021 by title only, declaring an emergency. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first and second readings by title only at this time, declaring an emergency. UNGER: Move adoption of Ordinance No. 2011-021. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 7. Before the Board was a Public Hearing (continued from May 23) and Consideration of First Reading, by Title Only, of Ordinance No. 2011-009, Creating Zoning Regulations for Small Wind Energy Systems. Peter Gutowsky entered the entire record at this time, and a letter from Paul Dewey of Central Oregon Landwatch, noting their concerns regarding the Ordinance. He included track change modifications of the Ordinance and a final version as well, for review. Laurie Craghead advised that if the Board is comfortable moving forward today, any modifications would have to be read into the record. Chair Baney said that point #2 in the letter from Mr. Dewey has to do with views, and asked if this is appropriate. Laurie Craghead said other than LM, rim rock and wild and scenic area zones, there does not seem any other scenic protection verbiage for view shed. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 4 of 9 Pages Mr. Gutowsky said Mr. Dewey wants to add this wording, but it is hard to define the language "not adversely impacting" and "existing nearby structures". This would create challenges since this would go away from a clear and objective standard to one that has to be defined, and is subjective. Mr. Dewey is also asking for site plan review. If this kind of language is included, it may result in legal challenges and appeals. Central Oregon Landwatch does not want towers higher than 30 feet. There are few that are that low to the ground because they cannot catch enough wind to operate without going higher. Central Oregon Landwatch is taking issue with all aspects, including height, noise and lighting. It is up to the Board as to how these challenges should be handled. Ms. Craghead stated that the comprehensive plan has to be a part of this and no direction was given in this regard. Chair Baney noted there were excellent points made, regarding measurements. Mr. Gutowsky said that if adds clarity, this is what they want. They asked that the highest point of the structure is used to define the measurement, which would be the top of the turbine blade. Ms. Craghead said this muddies the language because one may argue that the structure is just the pole and not the blade. Commissioner Unger stated that there were some interesting points made. Scenic views are always a concern but this is not the appropriate time or issue to address this. He does not see that many wind generation units coming about anyway due to the overall cost. Mr. Gutowsky said the definition of a small system is up to 100 kW, per the State. Anything above that is a commercial system. Small systems can be regulated at the local level. You cannot add more energy to the grid than what normally would be produced at that location. This applies to solar as well. The amount of energy going back to the grid is capped by the utility. Commissioner DeBone said he is motivated to go forward on this, but asked about the removal of the unit at the end of a year if not in use. Commissioner Unger explained that there is a proposal regarding certification and a removal clause in the one version. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 5 of 9 Pages Commissioner DeBone has asked about modifying the approach on some aspects of the Ordinance, in particular the certification requirement language. (Approved Wind Energy generator: Wind turbines must have been approved by Oregon Department of Energy or any other wind energy certification programs recognized by the American Wind Energy Association) Commissioner Unger would like to leave the certification language in so that certainty and safety can be addressed. Commissioner DeBone asked if there are other references to associations in County Code, although he will go forward with the change as written. Mr. Gutowsky said these references are unlikely in other areas, but he was not certain. Ms. Craghead feels that the broadened language is appropriate. If the unit is not tied into the grid, the utility company will not be involved. Chair Baney opened the meeting for public testimony. None was offered, so the hearing was closed. Commissioner DeBone would like to leave in the language about the structure being laid down, out of sight, if not in use for a period of time. Ms. Craghead stated that the changes would have to be read into the record if the Board wants to move forward with the first reading at this time. UNGER: Move first reading of Ordinance No. 2011-009, with the appropriate changes to be read into the record. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading of the Ordinance by title only, with the following language change: 8. Prior to issuance of a building permit, the property owner shall record against the property a "Condition of Approval Agreement" that certifies the wind energy system will either be removed from the property or laid down on the ground, horizontally, at the property owner's sole expense, when use has been discontinued from operating for more than one (1) year. The second reading will be conducted no sooner than July 13, 2011. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 6 of 9 Pages 8. Before the Board was a Public Hearing (continued from May 23) and Consideration of First Reading, by Title Only, of Ordinance No. 2011-001, Modifying the Comprehensive Plan Map regarding Areas Eligible for the Destination Resort Overlay. 9. Before the Board was a Public Hearing (continued from May 23) and Consideration of First Reading, by Title Only, of Ordinance No. 2011-002, Modifying the Zoning Map regarding Areas Eligible for the Destination Resort Overlay. Chair Baney stated that the hearings are again open. Peter Gutowsky entered the case file into the record for Ordinance No. 2011- 001 and Ordinance No. 2011-002. He submitted additional testimony submitted by various parties within the allotted time. (The documents were provided for the record at this time) He said that one thing the Board may want to consider is to keep the hearing open for a period of time. It will allow more information to be submitted and time for review. The Oregon Court of Appeals is reviewing a decision by LUBA on County Ordinances that adopted criteria and procedures of the destination resort mapping process. Mr. Dewey appealed the LUBA decision to the Court of Appeals, so it may be better to let this process occur first before completing this issue. It should probably be continued to sometime in September. Steven Hultberg of Pine Forest Development said he concurs with the timing issue. There has not been time to review Mr. Dewey's documents and it would be better for all parties to continue the hearing. He stated that a traffic analysis was prepared by Kittleston & Associates on the various properties, considering how much traffic impact there might be. The result was that if the properties are developed at full potential, certain restrictions could be imposed to mitigate, or a new traffic study can take place at such time the resorts are ready to be developed. At this point, it is not known how many units will be built and when. Commissioner Unger stated they are just doing the map, and these other aspects would have more to do with siting criteria. He asked how this fits. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 7 of 9 Pages Mr. Hultberg said that the transportation plan and zoning map need to include this information. It is prudent to do so, although nothing is going to happen at this point and these things are best addressed more fully at the site approval process. However, LUBA looks at this differently. Ms. Craghead stated that the transportation planning rule is under Goal 12, and at some point this has to be considered. Mr. Hultberg wants to finalize the transportation findings, and the DSL land is also being analyzed by Kittleston. Liz Fancher testified on behalf of Belveron Real Estate LLC. She agreed that this should be set over for a significant amount of time to be able to know where the Court of Appeals is going on the issue. It may make a difference in the viability of whether her clients can continue the process with one property or with both. The decision may allow for more clear direction. She also wants time to review the newly submitted documents. She would like to work with Pine Forest and the County to determine a method for meeting conditions of approval through the map and zone change documents. The County could also decide to take a different tact regarding the destination resort overlay. The other issue raised by Mr. Dewey was related to fire risk, and this can be addressed as well. Also, with the proposed adoption of the land owned by the Forest Service into the UGB Reserve as addressed today, this will change some of her reference materials. She submitted a packet of information to back up findings and suggesting changes. Ms. Fancher asked that Mr. Dewey be invited to address mapping questions that he raised regarding the identification of parcels and ownership on the maps. Mr. Gutowsky stated that this appeared to be a general statement, and has already provided Mr. Dewey with a spreadsheet of the parcels. There is also an exhibit to the Ordinances. There are some grandfathered properties, and others who requested inclusion. Ms. Craghead stated that the maps and description are available on line for review as well. Kameron Delashmutt said he is in favor of postponing the process. He noted that Kittleston is in the process of completing some other traffic analyses in the area, too. Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 8 of 9 Pages Commissioner Unger asked what the next steps will be after continuance. Mr. Gutowsky suggested that the hearing remain open until the continuance date so that all information can be submitted and discussed. Nick Lelack said that a September date could be the last date for oral testimony if the Board so chooses. The Commissioners continued the hearing to September 19, 2011 at 10:00 a.m. 10. ADDITIONS TO THE AGENDA Being no further items addressed, the meeting adjourned at 11:05 a.m. DATED this to' Day of Deschutes County Board of ATTEST: (bwv,~ Recording Secretary Tammy 2011 for the Anthony DeBone, Vice Chair a,ea,,.,- 4nj~~ Alan Unger, Commissioner Minutes of Board of Commissioners' Business Meeting Monday, June 27, 2011 Page 9 of 9 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, JUNE 27, 2011 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. CONSIDERATION of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-014, Amending Code to Change Comprehensive Plan Designation of Certain Property from Surface Mining and Agricultural to Rural Residential Exception Area - Will Groves, Community Development Suggested Motions: • Conduct Second Reading by Title Only of Ordinance No. 2011-014, Amending Comprehensive Plan Designation of Certain Property from Surface Mining and Agricultural to Rural Residential Exception Area • Move Adoption of Ordinance No. 2011-014. 3. CONSIDERATION of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-015, Amending Code to Change Zoning Designation of Certain Property from Surface Mining and Exclusive Farm Use to Rural Residential - Will Groves, Community Development Suggested Motions: • Conduct Second Reading by Title Only of Ordinance No. 2011-015, Amending Zoning Designation of Certain Property from Surface Mining and EFU to Rural Residential. • Move Adoption of Ordinance No. 2011-015. Board of Commissioners' Business Meeting Agenda Monday, June 27, 2011 Page 1 of 6 Pages 4. CONSIDERATION of First and Second Readings, by Title Only, and Adoption by Emergency of Ordinance No. 2011-019, Amending the Comprehensive Plan Map Designation for Certain Property from Urban Reserve Area to Public Facilities - Nick Lelack, Community Development Department Suggested Motions: • Move First and Second Readings of Ordinance No. 2011-019 by title only, declaring an emergency. • Move Adoption of Ordinance No. 2011-019. 5. CONSIDERATION of First and Second Readings, by Title Only, and Adoption by Emergency of Ordinance No. 2011-020, Amending the Deschutes County Zoning Map to Change the Zone Designation for Certain Property from Urban Area Reserve to Public Facilities - Nick Lelack, Community Development Department Suggested Motions: • Move First and Second Readings of Ordinance No. 2011-020 by title only, declaring an emergency. • Move Adoption of Ordinance No. 2011-020.. 6. CONSIDERATION of First and Second Readings, by Title Only, and Adoption by Emergency of Ordinance No. 2011-021, Amending the Comprehensive Plan Map to Expand the City of Bend Urban Growth Boundary - Nick Lelack, Community Development Department Suggested Motions: • Move First and Second Readings of Ordinance No. 2011-021 by title only, declaring an emergency. • Move Adoption of Ordinance No. 2011-021. 7. A PUBLIC HEARING (continued from May 23) and Consideration of First Reading, by Title Only, of Ordinance No. 2011-009, Creating Zoning Regulations for Small Wind Energy Systems - Peter Gutowsky, Community Development Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-009, Creating Zoning Regulations for Small Wind Energy Systems. Board of Commissioners' Business Meeting Agenda Monday, June 27, 2011 Page 2 of 6 Pages 8. A PUBLIC HEARING (continued from May 23) and Consideration of First Reading, by Title Only, of Ordinance No. 2011-001, Modifying the Comprehensive Plan Map regarding Areas Eligible for the Destination Resort Overlay - Peter Gutowsky, Community Development Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-001, Modifying the Comprehensive Plan Map for the Destination Resort Overlay. 9. A PUBLIC HEARING (continued from May 23) and Consideration of First Reading, by Title Only, of Ordinance No. 2011-002, Modifying the Zoning Map regarding Areas Eligible for the Destination Resort Overlay - Peter Gutowsky, Community Development Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-002, Modifying the Zoning Map for the Destination Resort Overlay. 10. ADDITIONS TO THE AGENDA PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; or ORS 192.660(2) (b), personnel issues. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572) Monday, June 27 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 27, 2011 Page 3 of 6 Pages Wednesday, June 29 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, July 4 Most County Offices will be closed to observe Independence Day Wednesday, July 6 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July? 8:00 a.m. Regular Meeting with Sisters City Councilors - Sisters City Hall Monday, July 11 3:30 p.m. Public Safety Coordinating Council Meeting Wednesday, July 13 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July 14 7:00 a.m. Regular Meeting with the City of Redmond Council, Redmond City Hall Friday 15 - Tuesday, July 19 National Association of Counties Conference, Portland Thursday, July 21 4:00 p.m. Bend Metropolitan Planning Organization Meeting Board of Commissioners' Business Meeting Agenda Monday, June 27, 2011 Page 4 of 6 Pages Monday, July 25 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, July 27 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monda August I 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Public Safety Coordinating Council Meeting Wednesday, August 3 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 8 - Tuesday, August 9 Association of Oregon Counties Regional Summit - Silverton Wednesday, August 10 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 10:00 a.m. Board of Commissioners' Meeting 12 noon Commissioners' Meting with Department Heads 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, August 18 4:00 p.m. Bend Metropolitan Planning Organization Meeting Board of Commissioners' Business Meeting Agenda Monday, June 27, 2011 Page 5 of 6 Pages Monday, August 22 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 24 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 29 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 31 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Business Meeting Agenda Monday, June 27, 2011 Page 6 of 6 Pages A0-res cam` BOARD OF COMMISSIONERS' MEETING o < REQUEST TO SPEAK 7 Agenda Item of Interest: '1 Date: 6/2 1 i Name Address Phone #s ~7_3. E-mail address In Favor Neutral/Undecided ~ Opposed Submitting written documents as part of testimony? ❑ Yes F-] No If so, please give a copy to the Recording Secretary for the record. Gov-res co` BOARD OF COMMISSIONERS' MEETING o < REQUEST TO SPEAK Agenda Item of Interest: 1~1 Date: Z1 Name L Zap Address (4-f Qua CA2__~ 1_1 -111 Phone #s S6 t - sels_-" 3C~("V E-mail address In Favor F1 Neutral/Undecided ~ Opposed Submitting written documents as part of testimony? *rthe es No If so, please give a copy to the Recording Secretary record. U~J-ces COC. BOARD OF COMMISSIONERS' MEETING o < REQUEST TO SPEAK Agenda Item of Interest: 201/ ) Lao Date: Name Address Phone #s ' E-mail address A~M L, In Favor Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. Peter Gutowsky From: Paul Dewey <pdewey@bendcable.com> Sent: Thursday, June 23, 2011 4:05 PM To: Board Cc: Peter Gutowsky; 'Charlie Ringo'; 'Catherine Morrow; 'toby bayard'; 'Brenda Pace'; 'Karen Lillebo; 'Michel Bayard'; 'KELLY and KAREN SMITH'; 'April Streeter' Subject: Wind System Ordinance hearing on Monday June 27, 2011 Attachments: LandWatch wind ordin. DC Board of Commissioners Itr 062311 (3).doc Hello Commissioners: At the last hearing on this subject, where I expressed concerns about possible visual and noise impacts of the wind systems on nearby properties, Chair Baney invited me to proposed alternative language. Please see the attached letter where 1 express the concerns of LandWatch in more detail and also suggest corrective language. I am emailing this to you because I will be out of town and unable to attend the Board hearing on the 27th. Otherwise, I would have been glad to answer any questions you might have over the language. Note that I did testify before the Planning Commission with similar concerns, though I did not have this proposed language. I hope that you will be open to these changes, as they are presented in the spirit of wanting the small wind systems to work. We want them to generate electricity, not controversy, and after decades of land use work I can attest to noise and visual impacts from unexpected sources as being major sources of conflicts for people. It is a basic understanding out among the public that 30 feet is the height limit for things. I am sure you are also aware of the controversies surrounding siting of cell towers. I also hope that you won't think that these suggestions are "too late" since they were not presented to the planning commission or staff before now. I recently encountered that argument at a Bend City Council hearing. While being able to testify sooner about something is obviously preferable, sometimes people do not have the time to get up to speed on a subject earlier, and there is certainly no legal requirement to testify first before a planning commission before being able to testify to the Board on a legislative matter such as this. In the context of legislative hearings before the Board, it should never be too late for anyone to raise an issue since the Board is THE decision-maker on legislative matters. Thank you for your consideration, Paul Paul Dewey Attorney at Law 1539 NW Vicksburg Ave. Bend, OR 97701 541-317-1993 pdewey()bendcable.com IMPORTANT NOTICE: This message is intended for the use of the person or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this information is STRICTLY PROHIBITED. If you have received this message by error, please notify us immediately and destroy the related message. Thank you. Pa u I D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 fax (541) 383-3470 pdewey_CCa)bendcable.com June 23, 2011 Board of County Commissioners Deschutes County 1300 NW Wall St. Bend, OR 97701 Re: Zoning Regulations for Small Wind Energy Systems Dear Commissioners: I am writing on behalf of Central Oregon LandWatch to follow up on comments I made at your last hearing on this subject. As I said at that time, LandWatch is very much supportive of the development of wind energy and wishes to see such development "work." Our concern with the currently proposed regulations is that we believe they will needlessly invite controversy due to visual and noise impacts that could otherwise be avoided. Placement of wind energy systems should be flexible enough to protect adjoining landowners and not impair the livability (visual and noise impacts) of neighboring properties. At the last hearing on this subject, Chair Baney suggested that I come up with alternative language to achieve what LandWatch believes to be preferable. Accordingly, we would like to propose the following: 1. The County's proposed DCC 18.116.300(B), with our suggested deletions in brackets and additions underlined, would provide: "For purposes of this section, all tower height measurements are to be taken from the ground to the top of the [turbine blade] highest point of the structure." Though it is to be expected that the top height of a wind energy system will be the top of the turbine blade in most situations, we believe it would probably be safer to define the tallest height as simply the highest point of the structure. 2. Proposed DCC 18.116.300(C) provides that wind energy systems up to 36 feet in height or which generate less than 15 kW of electricity may be outright permitted uses in all zones. We have two primary concerns with this current draft. First of all, for all of these wind systems there should be this basic protection for nearby residences: "Any proposed height greater than 30' will not adversely impact scenic views from existing nearby structures." June 23, 2011 Page 2 Similar language is found in DCC 18.120.040(C)(4) and reflects the Plan's and Code's policies for a 30' height limit, with exceptions for rare situations. Second, subsection (2) includes no height limit on a wind system generating up to 15 kW of electricity. While most systems up to 15 kW of electricity may not normally exceed 36 feet in height, it would be unsightly and unfortunate to have an extremely tall tower allowed simply because it generates 15 kW of electricity. Accordingly, we propose the following changes in the current draft of DCC 18.116.300(C): "Outright Permitted in All Zones, subject to the applicable provisions in this section: 1. A wind energy system that is accessory to the primary use of the property, consisting of only one tower, and is no higher than thirty-six (36) feet in height. 2. A wind energy system that is accessory to the primary use of the property generating 0 to 15 kW of electricity[, greater than thirty-six (36) feet in height] and is no higher than thirty-six (36) feet." 3. Proposed DCC 18.116.300(E) controls setbacks. We believe that the setbacks are inadequate, the allowed height being "unlimited" is inappropriate and that the draft should be changed in the following ways: 441. 0 to 100 kW wind energy systems for which the tower is 36 feet in height or less must, for all parts of the wind energy system, meet the setback requirements for accessory structures based on the underlying zoning or the height of the tower, whichever is greater. [2. 0 to 100 kW wind energy systems for which the tower is greater than 36 feet in height shall not allow any part of the wind energy system structure to extend closer than one times the height of the tower from the installation site to the nearest property boundaries.]" We are concerned that proposed DCC 18.116.300(E)(2) includes no height limitation on these wind energy systems. It is possible that someone may have a tower as tall as 100 feet. Again, though the bulk of these systems will not have exceedingly tall towers, there is no reason to allow excessively tall towers to occur in the first place. 4. The proposed DCC 18.116.300(F)(1)(a) would provide: "Wind energy systems shall not exceed [60] 30 decibels, as measured at the nearest property boundaries." June 23, 2011 Page 3 The noise level of 60 decibels is actually quite audible and in a rural environment would be particularly so. There is also no reason to allow such a high level of noise, as recognized by the wind industry representative who testified at the last hearing. 5. Proposed DCC 18.166.300(F)(2) concerns lighting on towers and would provide: "Lighting: A wind tower or wind energy system shall not be allowed where it would need to be artificially lighted as required by FAA. [artificially lighted unless such lighting is required by the FAA.]" We believe that it would be more appropriate to provide that a wind tower or wind energy system shall not be allowed where it would need to be artificially lighted as required by the FAA. The impact of such lighting should not be underestimated. This lighting can affect numerous properties and the visual experience of rural settings. 6. Throughout proposed DCC 18.116.300 there is a reference to "non-commercial" wind energy systems, but the term "non-commercial" is not defined. If the intention is to identify "non-commercial" wind energy systems as those which generate less than 100 kW of electricity, that should be specified. 7. Additionally, LandWatch is not sure of the intended amendment of DCC 18.120.040 which would add "non-commercial wind energy systems, generating less than 100 kW of electricity" to the list of structures which may receive exceptions to the building height limitations of DCC Title 18. If the purpose is to allow towers greater than 36 feet and to require that such towers comply with site plan approvals, it seems confusing where DCC 18.120.040(C) provides exceptions "(up to 36 feet)." Perhaps it is intended that DCC 18.120.040(C) is not meant to apply to these wind energy systems. If so, that would be unfortunate because DCC 18.120.040(C)(4) provide this important limitation: "The proposed additional height will not adversely impact scenic views from existing nearby residences." The problem with the Site Plan Review criteria of DCC 18.124.060 is that they do not include such restrictive language and merely require: "All above-ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties." This site plan review criterion is far more permissive of impacts and only requires that impacts be "minimized," while DCC 18.120.040(C)(4) actually protects views by stating that the additional height "will not adversely impact scenic views from existing nearby residences." 8. Furthermore, proposed changes to DCC 18.124.030 concerning required approvals for site plan review adds that this section shall apply to: June 23, 2011 Page 4 "T Non-commercial wind energy system generating greater than 15 to 100 kW of electricity." Site plan review, then, would only apply to systems where greater than 100 kW of electricity are generated. It is LandWatch's belief that systems from 15 to 100 kW electricity should be controlled by site plan review and that systems which will generate greater than 100 kW of electricity would fall under conditional use approval. While LandWatch again is supportive of expanding development of wind energy systems, it believes that the proposed code changes undercut the comprehensive plan and zone code policies of restricting heights and preserving visual resources. Very truly yours, PAUL DEWEY PD:ao cc: Board Page 1 of Bonnie Baker From: Paul Dewey [pdewey@bendcable.com] Sent: Thursday, June 23, 2011 4:05 PM To: Board Cc: Peter Gutowsky; 'Charlie Ringo'; 'Catherine Morrow'; 'toby bayard'; 'Brenda Pace; 'Karen Lillebo; 'Michel Bayard'; 'KELLY and KAREN SMITH'; 'April Streeter' Subject: Wind System Ordinance hearing on Monday June 27, 2011 Attachments: LandWatch wind ordin. DC Board of Commissioners Itr 062311 (3).doc cello Commissioners: \t the last hearing on this subject, where I expressed concerns about possible visual and noise impacts of the wind systems on iearby properties, Chair Baney invited me to proposed alternative language. Please see the attached letter where I express the :oncerns of LandWatch in more detail and also suggest corrective language. am emailing this to you because I will be out of town and unable to attend the Board hearing on the 27th. Otherwise, I would have )een glad to answer any questions you might have over the language. Note that I did testify before the Planning Commission with ;imilar concerns, though 1 did not have this proposed language. I hope that you will be open to these changes, as they are )resented in the spirit of wanting the small wind systems to work. We want them to generate electricity, not controversy, and after lecades of land use work I can attest to noise and visual impacts from unexpected sources as being major sources of conflicts for )eople. It is a basic understanding out among the public that 30 feet is the height limit for things. I am sure you are also aware of he controversies surrounding siting of cell towers. also hope that you won't think that these suggestions are "too late" since they were not presented to the planning commission or ;taff before now. I recently encountered that argument at a Bend City Council hearing. While being able to testify sooner about ;omething is obviously preferable, sometimes people do not have the time to get up to speed on a subject earlier, and there is :ertainly no legal requirement to testify first before a planning commission before being able to testify to the Board on a legislative natter such as this. In the context of legislative hearings before the Board, it should never be too late for anyone to raise an issue ;ince the Board is THE decision-maker on legislative matters. -hank you for your consideration, 'aul 'aul Dewey Attorney at Law 539 NW Vicksburg Ave. 3end, OR 97701 i41-317-1993 )dewey@bendcab_le.com MPORTANT NOTICE: This message is intended for the use of the person or entity to which it is addressed and may contain ,iformation that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the ,itended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any lissemination, distribution or copying of this information is STRICTLY PROHIBITED. If you have received this message by error, )lease notify us immediately and destroy the related message. Thank you. 5/24/2011 Chapter 18.116. SUPPLEMENTARY PROVISIONS 18.116.300. Wind Energy Systems that Generate Less than 100 kW A. DCC 18.116.300 applies only to non-commercial wind energy systems generating less than 100 kW of electricity. B. For purposes of this section, all tower height measurements are to be taken from the ground to the top of the turbine blade. C. Outright Permitted in All Zones, subject to the applicable provisions in this section: 1. A wind energy system that is accessory to the primary use of the property and is no higher than thirty-six (36) feet in height. 2. A wind energy system that is accessory to the primary use of the property generating 0 to 15 kW of electricity, greater than thirty-six (36) feet in height. D. Site Plan Review: A wind energy system that generates greater than 15 to 100 kW of electricity shall be permitted in all zoning classifications where accessory structures are permitted, subject to DCC Chapter, 18.124, Site Plan Review. E. Setback: 1. 0 to 100 kW wind energy systems for which the tower is 36 feet in height or less must, for all parts of the wind energy system, meet the setback requirements for accessory structures based on the underlying zoning. 2. 0 to 100 kW wind energy systems for which the tower is greater than 36 feet in height shall not allow any part of the wind energy system structure to extend closer than one times the height of the tower from the installation site to the nearest property boundaries. F. All wind energy systems subject to DCC 18.116.300(A) are also subject to the following: 1. Noise: a. Wind energy systems shall not exceed 60 decibels, as measured at the nearest property boundaries. b. The noise level may be exceeded during short-term events such as utility outages and/or severe storms. 2. Lighting: A wind tower or wind energy system shall not be artificially lighted unless such lighting is required by the FAA. 3. Signs: All signs, both temporary and permanent are prohibited, except as follows: a. Manufacturer's or installer's identification on the wind generator; or, b. Appropriate warning signs and placards. 4. Appfeved. Wind Energy genefaten Wind turbines must have been approved by Oregen DepaFtment of Efier-gy ef an), ether wind enefn, eeftifieation pfegfams r-eeegftized by the Amedean Wind Energy Asseeiatien. 4-5. State Code Compliance: a. All wind energy systems shall comply with the currently adopted edition of the Oregon Structural Specialty Code, or if accessory to a single family dwelling, the Oregon Residential Specialty Code. b. Compliance with the National Electrical Code: Electrical permit applications shall be accompanied by a one-line diagram showing the system components and size and type of equipment in sufficient detail to demonstrate compliance with the current edition of the National Electrical Code. 65. Compliance with FAA Regulations: Wind energy systems must comply with applicable FAA regulations, including any necessary approvals for installations close to airports. 76. Utility Notification: a. Wind energy systems shall not be installed until evidence has been given to the Planning Division that the utility company has been informed of the customer's intent to install an interconnected customer-owned generator. PAGE 1 of 2 - EXHIBIT "B" to ORDINANCE 2011-009 b. A wind energy system that supplies sufficient energy such that all uses on the property upon which the wind energy system is located are self-sufficient and completely independent of any other public or private energy utility shall be exempt from this requirement. 97. The color of the wind energy system shall be either an unobtrusive stock color form the manufacturer or pained in a non-reflective, unobtrusive color that blends in with the surrounding environment. 98. Prior to issuance of a building permit, the property owner shall record against the property a "Condition of Approval Agreement" that certifies the wind energy system will either be removed from the property or laid down on the ground, horizontally, at the property owner's sole expense, when use has been discontinued from operating for more than one (1) year. (Ord. 2011-009 § 1, 2011) PAGE 2 of 2 - EXHIBIT "B" to ORDINANCE 2011-009 Peter Gutowsky From: Nick Lelack Sent: Thursday, May 26, 20114:30 PM To: 'William Kuhn' Cc: Merry Ann Moore; Peter Gutowsky; Kevin Harrison Subject: RE: ORS 215.412 Hi Bill, Kevin is out until next Thursday, June 2. ORS 215.412 is addressed in DCC Chapter 22 Procedures. We will enter your email into the record. You are welcome to testify before the Board on this matter. Thank you. Nick Lelack, AICP, Planning Director Deschutes County Community Development Dept. 117 NW Lafayette, Bend, OR 97701 Office: 541.385.1708 / Cell: 541.639.5585 / Fax: 541.385.1764 www.deschutes.org/cdd From: William Kuhn [mailto:william@riskfactor.com] Sent: Thursday, May 26, 20119:06 AM To: Kevin Harrison Cc: Merry Ann Moore; Nick Lelack; Tammy Baney; Alan Unger; Tony DeBone; Peter Gutowsky Subject: ORS 215.412 Hi Kevin, Can you please direct me to where in DesCo Code ORS 215.412 is addressed? 215.412 Adoption of hearin , procedure and rules. (1) The governing body of a county by ordinance or order shall adopt one or more procedures for the conduct of hearings. (2) The goy crnirng hody ol'a county by ordinance or order shall adopt rules statin( th~it Lill decisions tnmule by the governing body will be based on factual `information, including adopted' comprehensive plans and land use regulations. [ 1973 c.552- § 14; 1977 c.766 § 11; 1997 c.452 §2] In Merry Ann Moore's communications to Deschutes County regarding the resort remapping ordinances several issues have been raised which have not be responded to by staff. In my opinion, when there are conflicting ordinances there needs to be a response to the issues raised prior to the decision by the Planning Commission and certainly prior to passage by the Board of County Commissioners. It is important for Deschutes County citizens to know and understand which criteria/ordinances will be used to enforce and which will be ignored by the enforcers of the ordinance. Or, is it the intent of Deschutes County to create ordinances that have deliberate holes in them as to cause the ordinance to be, in fact, unenforceable? In your response, please Cc: Merry Ann Moore. Thank you, Bill William Kuhn INVEST/O - Registered Investment Advisors PO Box 5996 Bend, OR 97708-5996 541 389 3676 Williarn@RiskFactor.com "First, they ignore you, Then they laugh at you. Then they fight you. Then you win." Mahatma Gandhi Peter Gutowsky From: Merry Ann Moore <merryannmoore@gmail.com> Sent: Monday, May 23, 2011 10:11 AM To: Nick Lelack; Tammy Baney; Alan Unger; Tony DeBone; Peter Gutowsky Subject: Resort remapping ordinances under consideration today Attachments: Testimony 11-18-10 PC Hearing on remapping ordinances.doc Please include the attached comments, previously submitted to the Planning Commission--but ignored--in November 2010. I request a written response from the Board of County Commissioners to the policy questions raised in my letter. Sincerely, Merry Ann Moore for Sierra Club Juniper Group Merry Ann Moore Moore Creative merryannmoore@gmail.com 69225 Hawksffight Dr. Sisters, OR 97759 541.549.2468 www.mer!yannmoQre.com. profiles: "Lt.:_ Latest tweet: Ck out my latest Herd-of-Mouth blog post: PR & Social Media Case Examples--Old & New School hqp://t.co/gTkgHfQ Follow 1,~%MctryArmMoore `"IRepl t-,XRetweet 12:19 Mary-17 Get this email app! Signature povvered by WiseStamp 1 DATE: 11/18/10 SIERRA. TO: Deschutes County Planning Commission FR: Merry Ann Moore, Sierra Club Juniper Group i CLUB RE: Hearing testimony, resort remapping ordinances 2011-001 and 002 Dear Planning Commissioners: Thank you for your service to the County. The ordinances which the Deschutes County Planning Commission crafted and which have been approved by the Board of County Commissioners are so deeply flawed they should be repealed, and the process begun over. There are seven major problems with these ordinances. 1. First, the ordinances do not do what the County says they will: create a map that "accurately depicts where resorts can truly be located." This just doesn't pass the straight face test. If things proceed as they are now, we could have hundreds of property owners with small parcels that don't meet resort standards still in the map. The outcome is predictable: people will believe they can some day apply for a resort despite not meeting resort criteria. There will be continued disputes between landowners who have different views of what the ordinances mean. There will be a continued, long-term drain on county planning staff, and costly appeals to LUBA. 2. The second problem is that the ordinances contradict themselves or other state or county resort statutes. They are just plain confusing. a. On the one hand, the new statutes say no subdivisions will remain in the resort map. And the state Dept. of Land Development & Conservation has stated a subdivision cannot become a resort. On the other hand, the county has contorted the ordinances to create an exception allowing Aspen Lakes Golf Estates, a cluster development housing subdivision, to stay in the map. b. On the one hand, the statutes say no parcels under 160 can stay in the map. On the other, they allow any landowner whose property is currently in the map to stay in the map EVEN IF THE LAND DOESN'T MEET COUNTY OR STATE RESORT CRITERIA, regardless of the size of their parcel. 3. Third, the recently completed University of Oregon resort study recommends that the county take some basic steps to create better resort policy. For example, find out a. how many resort lodging units and houses have actually been built or are approved/in the pipeline, b. how well are Goal 8 resorts meeting the stated intent of Goal 8, c. the future market demand for destination resorts in Central Oregon, d. how to revise the current entitlement review process for destination resorts, and e. how to monitor and enforce approved resort land use decisions. Shouldn't you have this information before you finalize the resort map? Wouldn't it be useful know if the County really needs any more resorts to fill future demand? 4. Fourth, the County has spent several years' worth of taxpayer money working to revise the resort map. All this while the recession has called into question the very viability of the Goal 8 resort model, made financial zombies of many of the new and planned resorts, and resulted in little to no tourist lodging built. a. Earlier this year Aspen Lakes defaulted on about $4.5 million in loans for its golf course and clubhouse, and went into foreclosure. b. According to the Bend Bulletin, lots in resorts like Brasada Ranch and Caldera Springs, adjacent to Sunriver, were selling at the peak of the market between 2005 and much of 2008 for $300,000 to $350,000. They plunged to a low of around $72,000 during the first eight months of 2010. A break-even point would be about $175,000. c. Brasada, Eagle Crest and Running Y have been put up for sale as Jeld-Wen looks for an exit strategy from the Oregon destination resort business. d. One investor in Tetherow has threatened to sue the county if the county actually decides to enforce the rules on building overnight lodging, by drawing on the letter of credit put aside by the developer for the building of the tourist lodging. So no overnight lodging there yet, and the threat of a lawsuit against the county if the county dares to take action to enforce the rules. 5. Fifth, the ordinances reflect a continuing bias towards those who want to develop their land against those who do not. Don't all private landowners have equal property rights? These county remapping policies illustrate clearly that in Deschutes County, the property rights of those with better legal teams, political connections, or property with higher dollar value trump their neighbors' property rights. a. Here's an example of this bias. The county, at your commission's recommendation, has given two opportunities for land owners who want to be on the resort map to get in. One is the so-called grandfathering clause which essentially means anybody in the map now can choose not to comply with the new resort map ordinances. If you want to stay in the map, all you have to do is ask. The other is the provision allowing land owners of smaller parcels to cobble together 160-acre parcels under multiple ownership and get added to the map. This could result in neighbors who haven't been in the resort map and don't want to be being surrounded on several sides by a resort, since the definition of "contiguous land" means the acreage only needs to touch in one corner. b. Now here's how those of us without priority property rights get treated in this process. The pink Notice of a Proposed Land Use Regulation sent out by the county stated that the county has "adopted rules explaining how to add and REMOVE land from its resort map so that it accurately depicts where resorts can truly be located." But this notice wasn't even sent to property owners who are being forced to remain in the map against their wishes. And it doesn't tell land owners how to get their lands REMOVED from the map even if they want to. 6. Sixth, the ordinances contradict the preponderance of public testimony gathered in county listening sessions and hearings over several years, by allowing significant NEW lands to be added to the map. 7. And last, the ordinances are proving to be, and they will continue forever to be, a highly controversial, poorly conceived, costly administrative black hole where taxpayer money gets sucked up never to be seen again. a. You've received over 300 requests from people wanting to be in the map. How much staff time is this taking away when Deschutes County could be planning for far more realistic and less risky forms of smart growth and economic development? When short staffing and furlough days suggest the County should be closely ordering its planning priorities? b. LUBA is currently hearing an appeal against these ordinances, and in all likelihood the agency will find that the proposed ordinances do not comply with state statutes on resorts. Why is the county spending so much time and money implementing these ordinances before a decision is made on whether they actually comply with state statutes? In closing, I urge you to no longer ignore the preponderance of public testimony on resorts. I urge you to revisit the original recommendations of the career planning professionals at the county. I urge you to ask that the BOCC repeal the remapping ordinances and restart the process to create clear, decisive mapping criteria that comply with county and state statutes. Failing that, I request that the Planning Commission respect ALL Deschutes County property owners by sending out a notice to all stating how they can voluntarily remove their property from the resort map. Thank you for considering my views. Sincerely, Merry Ann Moore Executive Committee, Juniper Group Sierra Club P.O. Box 6376 Bend, Oregon 97708 541.549.2468 Appendix I - Recommendations by the University of Oregon Community Planning Workshop to Deschutes County • Direct staff to gather baseline information on approved resorts. This should include documenting build out capacity and documenting the characteristics of resort residents, users and employees. Existing data sources including the upcoming Census, the longitudinal employee household dynamics database, continued reports from the Oregon employment department, and other readily available secondary data sources could be used. • Conduct an evaluation of how well Goal 8 resorts are meeting the stated intent of Goal 8. This effort would attempt to answer the question of whether destination resorts are achieving stated outcomes. • Conduct a study/literature review to better understand future market demand for destination resorts in Central Oregon. This is important in the overall policy context of whether to permit additional resorts. Such a review should include an evaluation of the relative market for large (in the Oregon context, Goal 8) versus small resorts. • Work with local stakeholders to strategically revise the current entitlement review process for destination resorts. This process could identify the many concerns identified by stakeholders about the impacts of destination resorts. • Monitor/enforce approved resort land use decisions as a part of this process. The current system appears to overlook key impacts that stakeholders are concerned about. Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 fax (541) 383-3470 pdeweyAbendcable.com June 24, 2011 Deschutes County Board of Commissioners 1300 NW Wall St. Bend, OR 97701 Re: Deschutes County Destination Resort Mapping; EA10-6/ZC10-4, PA10-7/ZC10-5, PA10-8/ZC10-6, and PA10-9/ZC10-7 Dear Commissioners: I am writing on behalf of Central Oregon LandWatch in opposition to the County's proposed destination resort map amendments in Ordinance No. 2011-001 and -002 which would add properties of the Pine Forest Development, Belveron Partners, Vandevert Road and Oregon DSL to the destination resort map and which would approve certain "grandfather clause" parcels to "remain eligibile" on the map. The County's proposed decision violates Goal 5 and Goal 12 and fails to adequately address the requirements of ORS 197.455 with an adequate Goal 2 factual base and the requirements for a minimum site size of 160 acres. Each tract must be individually assessed for mapping and be of sufficient size to meet the 160- acre size requirement. It is also not appropriate for separate tracts to be combined in a proposal for mapping. This applies to both the Belveron/Vandevert and DSL applications. Further, not all of the DSL parcels are contiguous (not just tax lot 5101), and must be assessed separately for each tract that is not contiguous. The tax lot 5200 parcel also does not meet the 160-acre standard. The County's approach to compliance with Goal 12, which is that the mere addition of an overlay zone does not add trips and that traffic impacts can be addressed at the time of an application, is the kind of deferral the Court of Appeals found impermissible in the Willamette Oaks case. In addition, Central Oregon LandWatch does not believe the County has made a proper determination that the "grandfather clause" properties "remain eligible." Such a determination of eligibility requires a showing of compliance with all the eligibility criteria and with an adequate factual base under Goal 2. The Exhibit A map to Ordinances 2011-001 and -002 is not of an adequate scale to show that the parcels meet the criteria in Ordinance 2010-024. For example, there is no identification of which June 24, 2011 Page 2 lands meet the eligibility criteria of DCC 23.84.030(3)(d)(4)-(6). There is also an inadequate factual base under Goal 2 to make such a determination. Further, there is no identification of which parcels are on the map due to the "grandfather clause." Some parcels on the County's list of "grandfather clause" properties appear to be missing from the map and some parcels shown on the map do not appear on the "grandfather clause" list. Attached are materials relevant to the above issues. Most of the materials are identified in your proposed Findings but they are apparently not yet included in the Record. If I am wrong in that assumption and if Staff is going to be including the materials referenced in the proposed Findings, then much of what I am submitting need not be included in the Record after all. Please inform me when the County reaches a decision on this matter. Very truly yours, PAUL DEWEY PD:ao Attachments cc: Client EXHIBITS 1. Excerpt of County Brief to LUBA in Case No. 2010-075 and -076 2. Excerpt of County Brief to Court of Appeals in Case No. A148199 3. DCC 22.23.010 4. Excerpt of Findings for Ordinance 2010-024 and -025 5. Excerpts of Board of Commissioners' Decision on Thornburgh Destination Resort 6. Excerpts of Schwabe Williamson Legal Memo on Thornburgh Destination Resort 7. DCC Chapter 18.113 8. DCC Chapter 17.16 9. Technical Memo No. 3 10. Technical Memo No. 4 11. County Map of Wildlife Overlay Area with location of Belveron and Pine Forest Properties 12. Zone Map of Overlays in Sunriver Area 13. Ordinance No. 2001-018 14. CWPP for Upper Deschutes River 15. CWPP for Greater Sisters Country 16. List of Grandfather Clause Properties 17. Map of Sisters Area 18. Map of Metolius ACSC 19. Property Information for Tax Lot 140922B000100 (Black Butte Area) 20. Map of Wildlife Priority Area South of Sunriver 21. Zone Map of Land in T21 S, R10E, Section 3 22. Property Information for Tax Lot 211003A010200 (South of Sunriver) 23. Property Information for Tax Lot 1712280001700 (Bend) 24. Map of Aspen Lakes Area and 1992 Destination Resort Zone 25. Property Information for Tax Lot 151001B000300 (Aspen Lakes) 26. Tax Map for NE'/, Sec. 1, T15S, R10E 27. Tax Map for Section 34, T14S, R10E 28. Property Information for Tax Lot 1410340000800 29. USDA Soils Map of Prime Soils in Cloverdale Area 30. USDA List of Prime Farmland 31. Excerpts of County Resource Element of Comprehensive Plan