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2012-1814-Minutes for Meeting September 24,2012 Recorded 10/18/2012DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL IIIIIIIIIIIIIII IIII IIIIIIIIIII~ 2012-1814 RECORDS CJ 7012.1814 CLERK 1011812012 08;03;48 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, SEPTEMBER 24, 2012 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Anthony DeBone, Alan Unger and Tammy Baney. Also present were Erik Kropp, Interim County Administrator, Laurie Craghead, County Counsel; Tom Anderson, Nick Lelack and Paul Blikstad, Community Development; and five other citizens. Chair DeBone opened the meeting at 10:00 a.m. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT 3. Before the Board was a Public Hearing on Applications for a Plan Amendment and Zone Change on 380 Acres, Changing the Comprehensive Plan Designation from Agricultural to Rural Residential Exception Area and Rezone from EFU to Multiple Use Agricultural (Applicant: Oregon Department of State Lands). Chair DeBone opened the hearing and read the opening statement (a copy of which is attached for reference). In regard to pre-hearing contacts, bias or conflicts of interest, the Commissioners acknowledged there was a public work session on this issue and a representative of the applicant was present. He was asked only about the location of the pipeline going through the property. Paul Blikstad presented a PowerPoint presentation (a copy of which is attached for reference). He referred to an oversize map of the property as well. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 1 of 13 Chair DeBone asked about the rural residential exception area and the densest possibilities. Mr. Blikstad said it is next to the City's urban growth boundary, so they could conceivable go from one dwelling on ten acres to one on five acres, in a planned unit development type of scenario. Laurie Craghead stated that in the case of a planned unit development, more open space has to be left elsewhere, as 65% of the property has to be left open. Commissioner Baney said this is the zoning piece, and they don't have to consider about the development part now. Ms. Craghead indicated it has to be in compliance with the comprehensive plan later and any potential impacts. Mr. Blikstad said that staff agrees with the Hearings Officer on this issue. Doug Parker, Asset Planner with the applicant (the Oregon Department of State Lands), gave an overview of the land use application. It was considered acceptable to CDD staff, as it was with the Hearings Officer who responded to specific concerns from opposition. No neighbors, regional groups or environmental groups have indicated concerns; just an attorney who owns property miles from the subject property. The burden of proof and supplements demonstrate this is not agricultural, and that the zoning request is appropriate. It meets all legal requirements, or staff and the Hearings Officer would not have recommended approval. The reason for the plan and zone change is to prepare for the future, if the City of Bend decides to bring in the property. It will be eligible only if rezoned. They have no immediate plans for this property. They acknowledge the site abuts urban infrastructure, and there are various public facilities in direct proximity of the site. They identified what is in the record to date. He presented the State Land Board's documents for review, showing the conceptual master plan to assure compatibility of this property with others. They have worked with the County to make sure these changes would not interfere or conflict with adjacent users. Following the natural gas pipeline would result in a very uniform boundary area. It is not agricultural soil and has no irrigation available. They request the Board affirm the Hearings Officer's findings. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 2of13 Commissioner Baney asked if they are engaged in the Bend UGB process, which has been delayed for some time. Mr. Parker stated that they have not been invited to participate in this process yet. Mr. Kropp said the State needs to acknowledge the natural gas to energy project planned at the landfill. Mr. Parker stated they are aware of this and are supportive of the project. Liz Fancher, representing the opponent, Newland Real Estate Group, provided a handout at this time. Newland wanted to raise concerns. They also want to file a land use application under a non-agricultural lands designation. They feel this should be included in the comprehensive plan. They don't want to come before the Board and be told that it does not work for them, when their land is similar. There is no attempt to have this happen under a Goal exception. They want to be sure this is a solid decision and justified. There was a previous case that the DSL relied upon. There is new language in the Comprehensive Plan regarding rural residential exception area, but includes language on the Goals. They are asking for a label saying this is an exception. This was not applied to this case by the Hearings Officer. They agree no Goal exception should be needed for non-agricultural land. She pointed out that it is going to be confusing to have rural residential exception areas with different rules. All documents, including the comprehensive plan, call for a ten-acre minimum. It will be confusing if it is not in the comprehensive plan. However, the State seems to be comfortable with this change. She asked questions in her submission relating to these concerns. She stated that Mr. Blikstad indicated this is one legal lot of record; she fees it is two and that the smaller parcel was obtained by the County from the federal government for landfill uses. (The lower left-hand corner of the portion on the map is shown as DSL property.) The County may have some potential liability for material left on the site. The State intends to sell the property and this could be a problem. There is a question about the density of the property. Code allows one residence per five acres or two-acre lots with appropriate open space. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 3 of 13 The Bend UGB map was submitted into the record. However, the map was remanded and is no longer applicable. The City has put this on hold while the State revises the UGB process. Also, regarding utilities being available, the City's plan shows an intersection but the general understanding is that this would have to serve this property. She agreed with the soil designation not being agricultural, but the Hearings Office relied upon the soil types. They should rely on the percentage of the type. Half was said to be class 7 and not suitable, but some was not examined. If half is type 6, the whole property should be classified as class 6. She said that they show a soil complex of class 7. There are classes 6, 7 and 8. But all is considered a 7 because the one type is felt to be predominate. There is information on the entire property that is different from what the NSR says about the soil. The report needs to be reviewed by the LCDC. Tim Elliott, representing a property on the opposite side of the City, Anderson Ranch, then spoke. The ultimate result by the State and others that follow are efforts to bring this land into the UGB. There is an interesting dichotomy, when both want to come into the UGB. The reason for the opposition by Newland is due to the application perhaps not being substantial enough. They want to do the same type of application but want clarification to avoid errors or information not supported thus far. He feels that the Hearings Officer erred. He disagrees that Newland may be able to come into the UGB. They participated in the UGB process previously but nothing much is happening with this process right now. There are no findings from the Hearings Officer considering the effect of asbestos. Finding all this information is difficult. He pointed out that it is required by law to determine if this land is suitable for this type of use. The applicant's summary states that the most likely exposure concerns are direct contact to asbestos. Two samples indicate a high risk on future development of the property. Ms. Fancher testified that a portion used as a landfill may be larger than what was designated. All of the parties in the chain could potentially be liable. He asked where is the asbestos, how much of it is there, and should this be excluded from the application in general. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 4of13 Mr. Elliott did not agree that this application could be approved as it is. His client appeared at hearings in prior proceedings. If the Newland application comes up, he will oppose it. He pointed out the language used by the Hearings Officer indicates that the DSL has a history of protecting large lots of agricultural lands. It is implemented through OARs and statute, to preserve the maximum amount of agricultural lands in large lots, to protect the agricultural economy of the State. The Hearings Officer found that the soil service is sufficient to determine the type of soils as 7 and 8; and that no DLCD review is required. The Hearings Office decided that this has class 7 and 8 soil; the NRCS takes a 50% approach. That is what is adopted. A certain portion of the land is not identified at all (15%), and a decision was made that 50% is class 6 soil. He does not think that having some 7 and 8 is supported by the record. If there is 50% class 6 soils, the NRCS would assume the whole property is class 6. His recollection is that there were conditions of approval proposed, but these were not addressed in the Hearings Officer's findings. It may be that DLCD declined to participate due to the conditions of approval. The State won't develop it; it will sell it. Mr. Elliott asked if what happens would apply to Newland. There is no designation for the property; is it one house per five or ten acres. Newland wants the same thing as the State but is not sure it can be done. He indicated that he feels the decision at this point should be denial, based on a lack of information on some pivotal and important issues such as asbestos. Mr. Parker, for the applicant, came forward to offer rebuttal. He said that the information from Ms. Fancher's material was from the DEQ approved study that the State did of the former landfill that is posted on the State's website. There is no toxic gas or concerns; there was buried asbestos from household uses and some broken glass. They put an additional cap over the area and posted what is there. The master plan as submitted identifies this area as open space, and the posted DEQ study says that a decision will be made when the property is developed how this will be handled: encapsulated or remove any asbestos. These are development issues. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 5of13 There was information on Section 11 as being an important block of farmland. Unlike the Newland properties, it has never been actively farmed and cannot sustain farming. It has never had irrigation rights. Regarding the soils evaluation of the site, the NRCS is the gold standard. If an individual goes to this site and maps it out, there is no option to choose which type of soils. This is mapped according to what the NRCS has already had in place. It cannot be manipulated. Roger Borreen is the preeminent soils expert in this part of the world. Newland hired him as well. Mr. Boreen has found it is not agricultural land. The survey shows it is not. Most important, DLCD said there is no need for this to be reviewed if NRCS says it is not agricultural land. The Newland properties conflict with the NRCS survey. The people who created the rules and created the maps say the subject property is not agricultural land. Staff and experts agree with these professional findings. It is noteworthy staff has found no conflict; and the Hearings Officer and staff consistently have different interpretations of the comprehensive plan policies than the opponents. There just has to be a set-aside of the right acreage. Showing the prior UGB expansion plans from the City is not to trick anyone into what is going to happen, but to show how the City is approaching this process. Finally, he said they appreciate the Newland's concerns about appropriately addressing this application. We believe it is consistent with the requirements of law. John Russell, Asset Manager of DSL, commented that the County does not own the old landfill. There might have been a permitted use it but not ownership. There are attempts occurring to tie things up. The best soils scientist around has been hired. Their ultimate objective is urbanization of the land, as it makes sense in the Bend UGB. They are monitoring the property and do not participate in the UGB process. Mr. Parker noted that the County wanted another classification of land. The DLCD and State agencies have met regarding this and DLCD feels the County will act upon this in good faith, and that this is not a pivotal issue in this case. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 6of13 Ms. Craghead asked about Roger Boreen, and the parceling out of different types of soils. She asked if this is on the map, what is 6, 7 or 8. Mr. Parker said that NRCS maps the soils; this is not being manipulated. The record shows that the NRCS feels it is non-agricultural. There is a complete soils investigation in the record, one for the entire 620 acre site, and another of the sub-set of 180 acres. Ms. Craghead said the comprehensive plan says they need to go through the exception process. Mr. Parker said it has been demonstrated that it is not agricultural and there is nothing to take exception to. The Hearings Officer looked at the historic pattern and this is the designation that should be assigned to this site. This designation is the only one available to respond to this. He agrees with the Hearings Officer and staff. Ms. Craghead asked about the map showing the landfill areas as open space. Mr. Parker said there is a master conceptual plan for proposed land use types which identifies this area as open space. That was done voluntarily for the DEQ and the findings of the study are to put a cap on parts of the property. At time of development it will be determined how this will be handled. Mr. Russell said it will be appropriately mitigated at the time of development. Mr. Parker stated they would not know where the roads and utilities will go until then. There are a number of caves and bats on site, and those areas will remain part of the open space as well. Commissioner Baney said that she sees from the master plan that it shows residential in that area. She is concerned that this does not reflect the same thing. Mr. Parker stated that there is a buffer to the County property. Commissioner Baney noted that some is shown as commercial and residential. Mr. Parker replied that it is conceptual. Commissioner Baney asked if they would be willing to allow conditions to mediate this at time of rezone. Mr. Parker said that the question was regarding the past landfill area. Mr. Russell added that when one develops this land, there are different levels of mitigation depending on the use. All will be taken into account at the time. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 7of13 Commissioner Baney stated that the County is not unfamiliar with remediation. It is important to discuss how this looks in the future. Mr. Parker said the DEQ study does not identify that the site is not appropriate for the approved uses. This should not be an impediment to the plan. Ms. Craghead said a condition of approval might be having DEQ approval of any proposed use. Mr. Russell said this would be acceptable since they probably won't own it. Ms. Craghead said it could go with the land. Mr. Blikstad stated that there is talk about the new comprehensive plan with verbiage regarding rural residential exception areas. The comprehensive plan language was written by Teri Hansen Payne, who looked at the language referring to future zone changes. This was background text that was not intended to set new policies. Also, regarding legal lot of record, this was from prior staff records. Ms. Craghead said the language is not in the policies but in background material. Mr. Lelack stated that it is not clear regarding the comprehensive plan. They want to conduct a non-resource land review in the work plan. DSL and DLCD see this as a priority, but it will be the Board's decision. The DSL knows that the work program could take a year or longer. Even if the Board wants them to start this now, there won't be immediate answers. Mr. Lelack added that the second issue is the Bend UGB. There are a number of moving parts. For County purposes, they need to view this property as being anywhere, and that being next to the City has no bearing on this review. Also, they worked closely with the farm and forest specialist of the DLCD, Catherine Daniels. She did not feel the State would need to review the soils issue but could rely on her expertise. Commissioner Unger said Deschutes County has a lot of public lands. In his opinion, when BLM land was designated, it was either EFU or mining. All else was forest. Not a lot of thought was given to this process at the time. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 8of13 Mr. Lelack said that is his understanding. It was the default zoning and some property owners did this for the tax break and supported it. The County designated a lot as EFU and forest in the late 70's, and a window of opportunity was allowed for some. Other lands in public ownership were not identified. This should be reviewed at some point, but they are under the current code, comprehensive plan and State laws now. Commissioner Baney asked for the best way to proceed and what happens with other applications. Mr. Lelack said staff interprets that the rural residential designation is the catch-all for non-resource lands. This could end up at LUBA. Based on the outcome of this application, it could open the door for others to be in this catch-all designation if appropriate. If not, the current application won't set precedence. Mr. Blikstad said Rose & Associates submitted the same application at one point, and the same Hearing Officer recommended denial. This has not come before the Board. The difference is that the Rose property has some farm use with pivot irrigation and cattle. The DSL lands obviously were never farmed. Ms. Craghead asked if Catherine Daniels said this did not have to be considered. Looking at ORS, it seems to imply it should go to DLCD. Mr. Blikstad said he would have to look at the record. Ms. Craghead stated that this addresses nonagricultural land. Chair DeBone asked if all that is EFU now, should be a rural residential exception area. RR-10 and MUA-10 are the others. He asked if RREA is a land use designation. Ms. Craghead said one is a comprehensive plan designation and another is zoning. Mr. Blikstad said there were three choices for Deschutes County when this was all being laid out in the late 1970's: farm, forest or an exception area which includes rural service areas. Deschutes County had a unique history, with thousands of parcels plotted in the past, most of which were RR-10, and some had larger sized platted lots from two to ten acres. These were determined to be MUA, large enough for a hobby farm and a home. From a planning standpoint, MUA-10 and RR-10 were exception areas. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 9 of 13 Ms. Craghead said that under a comprehensive plan, a city will put a main category and underneath that will be the uses. Commissioner Baney asked for direction on the asbestos issue. There were not a lot of comments from the Hearings Officer's findings. She would not have extracted that it was a big consideration. It is more around the actual use at some point. Mr. Blikstad said conditions of approval could have a deed restriction addressing this. He does not remember any specific discussion during the hearing. Commissioner Baney stated that a soils issue was raised in another case and wants to make sure this is not overlooked. Mr. Lelack said that it can be required to be remediated to DEQ standards but not restricting future end uses. Commissioner Baney does not want to tie the hands of developers but this needs to be on the record. Mr. Blikstad stated there was no opposition from any neighbors to this zone change. Ms. Craghead asked how long the record should remain open. Liz Fancher asked if the record could remain open for a couple of weeks. John Russell asked for the same amount of time for rebuttal. UNGER: Move the oral record be closed; the written record will remain open until 5:00 p.m. on October 10, with the rebuttal period open until 5:00 p.m. on October 26, 2012. BANEY: Second. VOTE: UNGER: Yes. BANEY: Yes. DEBONE: Chair votes yes. Before the Board was Consideration of Approval of the Consent Agenda. BANEY: Move approval of the consent agenda with the exception of the minutes of Sept. 7 and August 30 minutes. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. DEBONE: Chair votes yes. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 10 of 13 Consent Agenda Items 4. Signature of Resolution No. 2012-112, Appropriating a New Grant in the Public Health Fund (LAUNCH Program) 5. Signature of Resolution No. 2012-113, Appropriating a New Grant in the Public Health Fund (Health Educator) 6. Signature of Resolution No. 2012-114, Appropriating a New Grant in the Public Health Fund (Critical Care) 7. Signature of Resolution No. 2012-115, Appropriating a New Grant in the Public Health Fund (My Future, My Choice) 8. Signature of Resolution No. 2012-116, Appropriating a New Grant in the Public Health Fund (Tobacco Program) 9. Signature of Resolution No. 2012-117, Transferring Appropriations in the County School Fund 10. Signature of Resolution No. 2012-119, Transferring Appropriations in the Sheriff's Office Fund 11. Approval of Business Development Forgivable Loan Grant (Job Creation) Consumer Cellular. - $50,000 12. Approval of Minutes: Board Meeting of September 12, 2012 Work Sessions of August 20, and September 5, 7, 11 and 12 (two) Joint Meeting of County and Bend City Council, August 30, 2012 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 13. Before the Board was Consideration of Signature of Resolution No. 2012- 118, Transferring Appropriations in the Deschutes County 911 County Service District Fund. UNGER: Move signature. BANEY: Second. VOTE: UNGER: Yes. BANEY: Yes. DEBONE: Chair votes yes. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 11 of 13 14. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $9,961.66. BANEY: Move approval, subject to review. UNGER: Second. VOTE: BANEY: UNGER: DEBONE Yes. Yes. Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 15. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $1,304.34. BANEY: Move approval, subject to review. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. DEBONE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 16. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $942,187.59. UNGER: Move approval, subject to review. BANEY: Second. VOTE: UNGER: Yes. BANEY: Yes. DEBONE: Chair votes yes. Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 12 of 13 17. ADDITIONS TO THE AGENDA None were offered. Being no further items discussed, the meeting adjourned at 11:55 a.m. DATED this Day of CC7(~ 2012 for the Deschutes County Board of Commissioners. ATTEST: &q~~ 50)~ Recording Secretary Anthony DeBone, Chair 04'..X- L&~ Alan Unger, Vice Chair Tammy B ey, Com i ioner Minuets of Board of Commissioners' Business Meeting Monday, September 24, 2012 Page 13 of 13 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, SEPTEMBER 24, 2012 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. PLEDGE OF ALLEGIANCE 2. 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. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when 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 official record of that hearing. 3. A PUBLIC HEARING on Applications for a Plan Amendment and Zone Change on 380 Acres, Changing the Comprehensive Plan Designation from Agricultural to Rural Residential Exception Area and Rezone from EFU to Multiple Use Agricultural (Applicant: Oregon Department of State Lands) - Paul Blikstad, Community Development Suggested Actions: Open hearing; take testimony. CONSENT AGENDA 4. Signature of Resolution No. 2012-112, Appropriating a New Grant in the Public Health Fund (LAUNCH Program) 5. Signature of Resolution No. 2012-113, Appropriating a New Grant in the Public Health Fund (Health Educator) 6. Signature of Resolution No. 2012-114, Appropriating a New Grant in the Public Health Fund (Critical Care) Board of Commissioners' Business Meeting Agenda Monday, September 24, 2012 Page 1 of 6 7. Signature of Resolution No. 2012-115, Appropriating a New Grant in the Public Health Fund (My Future, My Choice) 8. Signature of Resolution No. 2012-116, Appropriating a New Grant in the Public Health Fund (Tobacco Program) 9. Signature of Resolution No. 2012-117, Transferring Appropriations in the County School Fund 10. Signature of Resolution No. 2012-119, Transferring Appropriations in the Sheriff's Office Fund 11. Approval of Business Development Forgivable Loan Grant (Job Creation) Consumer Cellular. - $501,000 12. Approval of Minutes: Board Meeting of September 12, 2012 Work Sessions of August 20, and September 5, 7, 11 and 12 (two) Joint Meeting of County and Bend City Council, August 30, 2012 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 13. CONSIDERATION of Signature of Resolution No. 2012-118, Transferring Appropriations in the Deschutes County 911 County Service District Fund 14. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 15. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 16. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County Board of Commissioners' Business Meeting Agenda Monday, September 24, 2012 Page 2 of 6 17. 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; ORS 192.660(2) (b), personnel issues; or other executive session items. 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, September 24 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, Sqptember 26 1:30 p.m. Administrative Work Session - could include executive session(s) Saturday, September 29 3:00 p.m. Forest Restoration Event - Skyliner Lodge Monday, October 1 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Public Safety Coordinating Council Meeting Wednesday, October 3 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, October 4 8:00 a.m. Regular Meeting with the Sisters City Council, Sisters City Hall Board of Commissioners' Business Meeting Agenda Monday, September 24, 2012 Page 3 of 6 Wednesday, October 10 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, October 15 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, October 18 8:30 a.m. (Tentative) Tobacco Survey Results Discussion Monday, October 22 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, October 24 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, October 29 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, October 31 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, November 5 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Public Safety Coordinating Council Meeting Board of Commissioners' Business Meeting Agenda Monday, September 24, 2012 Page 4of6 Wednesday, November 7 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, November 12 Most County Offices Closed to Observe Veterans' Day Holiday November 13 through 16 Association of Oregon Counties Conference Monday, November 19 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) November 22 & 23 Most County Offices Closed to Observe Thanksgiving (November 23 Unpaid Furlough) Monday, November 26 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, November 228 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, December 5 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Public Safety Coordinating Council Meeting Wednesday, December 7 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, September 24, 2012 Page 5 of 6 Wednesday, December 12 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, December 17 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 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; ORS 192.660(2) (b), personnel issues; or other executive session items. Board of Commissioners' Business Meeting Agenda Monday, September 24, 2012 Page 6 of 6 J~ES C u`~ a BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK / V- 0 Date !X41 ~l Z Agenda Item of Interest cam' ~S`-• 17ga&_ ~n rl L ~ e4A,'r, Name Y~ Address AS G Phone #s~ 46 E-mail address GHQ 1 S• f A r K-Q r I C S VA. (~l S. _Vj In Favor ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No ..RTES o o BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest Date /_21I Name -_y C t Address" Phone #s E-mail address ❑ In Favor Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No 0 2 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest G Date -7/,'2 Name Address seAj ^j Phone #s q- 1 3 9Z-::, 3-) S E-mail address In Favor i"Submitting written documents as part of testimony? F~ Yes EJ-No . NeutralMndecided Opposed Introduction This is a public hearing on applications for a Plan Amendment and Zone Change, to amend the comprehensive plan designation on 380 acres from agriculture to Rural Residential Exception Area, and a Zone Change from Exclusive Farm Use to Multiple Use Agricultural (PA-11-7, ZC-11-2) submitted by the Oregon Department of State Lands. These applications were previously considered and recommended for approval by the Deschutes County Hearings Officer in the written decision dated July 10, 2012. Deschutes County Code 22.28.030 requires that for lands which are designated farm or forest use, a de novo hearing shall be conducted by the Board of County Commissioners. This hearing constitutes the required de novo hearing. Burden of proof and Applicable criteria The applicant has the burden of proving that they are entitled to the land use approval sought. The standards applicable to the applications are listed in the previously issued Hearings Officer's decision. Failure on the part of any person to raise an issue, with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes, appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Hearings Procedure The procedures applicable to this hearing provide that the Board of County Commissioners will hear testimony, receive evidence and consider the testimony, evidence and information submitted into the record, and will be the basis for their decision. The record as developed to this point is available for public review at this hearing. Order of Presentation The hearing will be conducted in the following order. The staff will give a staff report of the prior proceedings. The applicant will then have an opportunity to make a presentation and offer testimony and evidence. All others will then be given a chance to testify. After both proponents and opponents have testified, the applicant will be allowed to present rebuttal testimony, but may not present new evidence. At the Board's discretion, if the applicant presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness, may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified, but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. Continuances: The grant of a continuance or record extension shall be at the discretion of the Board. If the Board grants a continuance or record extension, it shall continue the public hearing or leave the written record open to a date certain. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the Board shall establish the time period for submittal of new written evidence or testimony and for additional for response to the evidence received while the record was held open. If the hearing is continued or the record left open, the applicant shall also be allowed time after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. Pre-hearing Contacts, Biases, Conflicts of Interests Do any of the Commissioners have any ex-parte contacts, prior hearing observations, biases, or conflicts of interest to declare? If so, please state the nature and extent of those. Does any party wish to challenge any Commissioner based on ex-parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) 14 ,T a_ Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: TO: FROM: RE: July 27, 2012 Board of County Commissioners Paul Blikstad, Senior Planner Board review of the Plan Amendment/Zone Change applications submitted by the Oregon Department of State Lands (File Nos. PA-11-7, ZC-11-2) BACKGROUND: The Oregon Department of State Lands (DSL) applied for a Plan Amendment and Zone Change to amend the comprehensive plan and zoning on approximately 380 acres'. The plan amendment is from agriculture to rural residential exception area, and a zone change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-10). These applications went before the Deschutes County Hearings Officer. The Hearings Officer recommended approval of the requested changes in a decision mailed out on July 10, 2012. Deschutes County Code (DCC) 22.28.030(C) states: "Plan amendments and zone changes requiring an exception to the goals or concerning lands designated for forest or agricultural use shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer or Planning Commission. Such hearing before the Board shall otherwise be subject to the same procedures as an appeal to the Board under DCC Title 22." The proposed plan amendment/zone change does involve land designated agriculture, and consequently a de novo hearing before the Board is required. Staff has scheduled this de novo hearing before the Board for Monday, September 24, 2012. ISSUES: New Comprensive Plan applies: The Hearings Officer found that, based on the Court of Appeals findings in Setniker v. Polk County, the comprehensive plan adopted by Deschutes County after the DSL applications were submitted applies. The Hearings Officer also determined that the proposed applications were consistent with the new comprehensive plan policies and language. Additionally, the proposed changes were found to be consistent with the purposes of the MUA-10 zone. ' The DSL land holding is approximately 610 acres (18-12, tax lots 1700 and 1800). They have requested that the proposed changes be limited to 380 acres, located from the east boundary of the natural gas pipeline easement west to 27'' Street. Twelve (I2) acres of the DSL land holding is already located within the Bend urban growth boundary. Quality Services Performed with Pride 1 Exception Area: As stated in the Hearings Officer's decision, if the land proposed for the plan amendment/zone change is determined to not be agricultural land, no goal exception is required for the change. The Hearings Officer found that the 380 acres was not agricultural land, based on the fact that it was predominantly class 7 and 8 soils (class 1-6 soils are considered agricultural land under state law). The proposed change did not require an exception to Statewide Planning Goal 3, Agricultural Land. The Hearings Officer found that although the County's comprehensive plan lists a "rural residential exception area" as one of seven possible land designations, the proposed change does not constitute an exception area. The Hearings Officer found, on page 12 of the decision, the following: "As demonstrated by reference to the Pagel decision discussed above, there appears to be instances in which rural residential zoning has been applied without the underlying land necessarily being identified as exception area. This makes the title of the "Rural Residential Exception Area" designation confusing, and in some cases inaccurate, because no exception is associated with the underlying land in question. However, it is understandable that since this designation is the only one that will allow rural residential development, that is has become a catchall designation for land types that are authorized for rural residential zoning. That is the case with the current proposal, and again, for the same reasons set forth in Hearings Officer Green's decision in Pagel, I cannot find a reason why the County would be prohibited from this practice." The Hearings Officer's decision also found, that under Section 3.3 Rural Housing, the paragraph in this section labeled "Rural Residential Exception Area," did not apply to the present applications, as the subject 380 acres is not agricultural land. 10-acre minimum lot size: The Hearings Officer found that the 10-acre minimum lot size under OAR 660-004-0040(7)(i)(a) does not apply to the proposed change, as it would not be officially considered an exception area. Soils Information: The Hearings Officer determined that the soils on the site (380 acres) did not constitute agricultural land. Page 18 contains the following findings: "Here, the record contains three sets of corroborating data which all appear to indicate that at least 50 percent, and as much as 70 percent, of the subject property is composed of Class VII and VIII soils. The primary data is the information submitted by the applicant in its April 18, 2012 letter which contains the NRCS Soil Survey. The supplemental data includes the Borine report, and calculations submitted by Staff which were initially identified in a March 20, 2012 e-mail from Tim Berg to Paul Blikstad, and then refined and submitted during the open record period as a table showing that the subject property is composed of at least 51 percent Class VII and VIII soils. Taken together, this information is sufficient to demonstrate that the subject property is not predominantly agricultural land as defined in administrative rule. While the Borine report is helpful in confirming the base soil survey data, the application is not solely dependent on the report, and the Hearings Officer would consider it unreasonable to expect the applicant to seek and obtain an additional DLCD review of the report when other reliable data adequately serves the same purpose." Recommendation and Schedule: Staff recommends that the Board affirm the Hearings Officer's recommendation and approve the plan amendment/zone change applications. BOCC Memo Page 2 PA-11-7, ZC-11-2 I Attached for your review is a copy of the decision on PA-1 1-7/ZC-1 1-2. All of the file/submitted materials and comments are available for review, either in LAVA or if requested, I can get you paper copies. There is a somewhat extensive record for this matter. I have scheduled a work session with the Board for the Wednesday, August 22"d, and a public hearing before the Board on Monday, September 24, 2012. If you should have any questions, feel free to contact me at your convenience. BOCC Memo PA-11-7, ZC-11-2 Page 3 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a Public Hearing on Monday, September 24, 2012 at 10:00 P.M. in the Barnes and Sawyer Rooms of the Deschutes County Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBERS: PA-1 1-7/ZC-1 1-2 SUBJECT: Applications for a Plan Amendment to change the comprehensive plan designation of certain property from Agriculture to Rural Residential Exception Area, and a Zone Change from Exclusive Farm Use to Multiple Use Agriculture (MUA-10). A total of 380 acres is proposed to be rezoned. This is a de novo hearing as required under DCC 22.28.030. APPLICANT: Oregon Department of State Lands LOCATION: County Assessor's Map 18-12, tax lots 1700 and 1800 ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE. Recipients of this notice may request a copy of the Hearings Officer's decision (25 cents a page). Any person submitting written comment or who presents testimony at the hearing will receive a copy of the decision. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to afford the decision-maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. Quality Services Performed with Pride STANDARDS AND APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.136, Amendments Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan Chapter 1, Comprehensive Planning Chapter 2, Resource Management Chapter 23.64, Transportation System Plan Chapter 3, Rural Growth Management Oregon Administrative Rules, Chapter 660 Division 12, Transportation Planning OAR 660-012-0060, Plan and Land Use Regulation Amendments Division 15, Statewide Planning Goals and Guidelines NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. 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HEARING DATE: February 21, 2012 and March 20, 2012 RECORD CLOSED: May 18, 2012 STAFF CONTACT: Paul Blikstad, Senior Planner 1. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.136, Amendments Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan Chapter 2, Resource Management Chapter 23.64, Transportation System Plan Oregon Administrative Rules, Chapter 660 Division 12, Transportation Planning OAR 660-012-0060, Plan and Land Use Regulation Amendments Division 15, Statewide Planning Goals and Guidelines II. FINDINGS OF FACT: A. LOCATION: The DSL holding contains two tax lots (18-12, 1700 and 1800). It is located immediately adjacent to SE 27`h Street and Stevens Road, to the west and north, respectively. B. LOT OF RECORD: The Planning Division has previously determined under application No. CU-97-132 that tax lots 1700 and 1800 together form one legal lot of record. C. ZONING AND PLAN DESIGNATION: The Deschutes County Comprehensive Plan map designates the subject property as Agriculture. In addition, the subject property is zoned Exclusive Farm Use - Tumalo/Redmond/Bend subzone (EFU-TRB). D. SITE DESCRIPTION: The DSL holding consists of approximately 640 acres, and has a varied topography of level areas, interspersed with some rock outcrop. The undisturbed portions of the site have a vegetative cover of juniper trees, and an understory of scrub brush and grasses. A very small number of ponderosa pine trees also exist on the property. Formal access to the site appears to exist only in the immediate area of the natural gas pipeline adjacent to Stevens Road. The property has several dirt trails widely scattered throughout the property. The property is undeveloped, except for the underground Pacific Gas Transmission pipeline running south to north through the property. The gas transmission line area has been cleared of trees and the vegetation in the pipeline area is primarily all scrub brush. The record indicates there are small cave sites on the property. The approximately 12-acre portion of the property northwest of Stevens Road is not included in the property, as this portion is already located within the Bend city limits. The NRCS identifies the soil mapping units on the subject property as 58C, Gosney-Rock outcrop-Deskmap complex, 0 to 15 percent slopes; 38B, Deskamp- Gosney complex 0 to 8 percent slopes; 27A, Clovkamp loamy sand, 0 to 3 percent slopes; and 157C, Wanoga-Fremkle-Rock outcrop complex, 0 to 15 percent slopes. The 58C, 38B, and 157C soils cover approximately 97% of the subject property. The 58C, 38B, and 157C soil mapping units are nonhigh value soils. The 27A soil is considered high value when irrigated. Because the subject property is in public ownership, there are no taxes paid on the property. It is listed as "Non-Assessable" on the County Assessor's records. It does not appear to have ever been farmed, nor does it contain any water rights. The applicant states on page 2 of the burden of proof statement the following: "The 12 acres located in the northwest corner of the SRT1, north of Stevens Road, are already annexed into Bend city limits and include a Central Oregon Irrigation District (COID) water conveyance canal." This 12-acre portion of tax lot 1800 is not a part of the request, as it is already located within the Bend city limits. The applicant lists "SRT" in many places in the burden of proof statement. SRT stands for Stevens Road Tract, which is the applicant's reference for the subject property. 2 E. SURROUNDING LAND USES: Surrounding land uses include privately owned properties developed with residential uses, including land within the Bend urban growth boundary directly west and northwest of the property. There are also rural residential properties located to the north and east. The surrounding area includes a few parcels that Staff would consider as hobby farms, with small areas of irrigation, mainly in the form of pasture. Additionally, the surrounding area includes the Deschutes County Knott Landfill site (18-12-14, 100/500/503), County Road Department/County Surveyor complex and office (18-12-14, 100); Humane Society (18-12-14, 104), as well as a Central Electric Cooperative electric substation (18-12-14, 502), and office facility (18-12-14, 102). Also in the surrounding area is the High Desert Middle School (18-12-14, 101), a veterinary clinic (18-12-15, 1901) and a dog kennel business (18-12-15, 200). Zoning in the area includes Multiple Use Agricultural land directly east and north, Exclusive Farm Use land to the northeast and southeast, Surface Mining to the south (Knott Landfill and the Rose & Associates mining site), and Residential zoning and Public Facility zoning within the Bend urban growth boundary to the west, northwest and southwest. F. PROPOSAL: The applicant is requesting approval of a plan amendment to change the designation on approximately 380 acres of the overall holding ("subject property") from Agriculture to Rural Residential Exception-Area, and a zone change from Exclusive Farm Use (Tumalo/Redmond/Bend subzone) to the Multiple Use Agricultural (MUA-10) zone. The applicant is not requesting a goal exception to Statewide Planning Goal 3, Agricultural Land. The applicant is instead relying on the premise that the portion of the subject property west of the east boundary of the gas pipeline easement is predominantly not agricultural land, based on a soils data from the MRCS Soil Survey and a report provided by Roger Borine. The applicant has submitted the following as part of the plan amendment/zone change request: • Burden of proof statement addressing the applicable criteria in County Code and State law • BLM Land Patent recorded at 2001-27360 • Soils investigation (report) prepared by Sage West, LLC • Soils investigation (report) amendment to reduce the acreage to 380 acres • Traffic study for subject property prepared by Kittelson & Associates, Inc. • Stevens Road Tract Conceptual Master Plan • Traffic study addendum submitted by Kittelson & Associates on behalf of the applicant G. PUBLIC/PRIVATE AGENCY COMMENTS: The Planning Division mailed notice to several agencies and Staff report states that the following comments were received into the record: Bureau of Land Management: In response to application number PA117- 1812000001700, request for a Plan Amendment from Agriculture to Rural Residential Exception Area for 380 acres, in Township 18 South, Range 12 East, Section 11, Willamette Meridian, Oregon, involving land along 27`h Street, just southeast of Bend, I have the following comments: Although there is no BLM nearby, this is a parcel that BLM transferred out of BLM ownership to DSL in 1997, after completing an environmental analysis (EA) #DOI-BLM-P060-1195-0090, Section I 1 State-in-lieu selection. The 1997 Decision Record says: • Six caves found on Section 11 are significant under regulations pursuant to the Federal Cave Resources Protection Act. • The transfer of land ownership will be subject to valid existing rights and mutually developed conditions. • The State of Oregon does covenant and agree to the following: Cave resources, as generally depicted on Exhibit A, shall be secured and conserved. • No significant adverse or cumulative effects have been identified resulting from the transfer of the property, as mitigated, to the State of Oregon. Attachment A states: As a condition to clear listing of the above lands, and by acceptance into their ownership, the State of Oregon does covenant and agree to the following: Cave resources, as generally depicted on Exhibit A, shall be secured and conserved in a manner consistent with a management plan designed to maintain, and to the extent practical, the significant biological, geologic, recreational and educational resource values present. Exhibit A depicts the cave management zone. The cave management zone includes lands not more than 350 feet from a cave passage and shall be the maximum area subject to the cave management plan. The State of Oregon or its successor in interest shall be subject to the conditions described in the management plan. Should lands with cave resources pass to a successor in ownership to the State of Oregon, the State of Oregon shall monitor the cave resources. Should the area subject to the management plan revert to inactive cave use, the management plan will be suspended. Please see the attached map depicting the caves. 4 Deschutes County Transportation Planner: I have reviewed the submitted materials for the Department of State Lands (DSL) holding on the east side of 27th Street, which is also known as Section 11 (18-12-00, TL 1700). The land use is to rezone a 380-acre portion from Exclusive Farm Use (EFU) to Multiple Use Agricultural, 10-acre minimum (MUA-10), east of 27 h between Stevens and Ferguson Roads. Staff tentatively agrees with the traffic study's conclusions that no significant affect would result from this land use, but needs further documentation from the applicant regarding Table 3. Staff agrees with the 280 trips generated from the proposed MUA-10, it is the 100 daily trips generated from the existing EFU that seems high. Staff believes the 100 trips from the existing EFU is high for four reasons. First, the applicant bases the 100 trips on three potential uses distributed across two parcels. Second, a farm stand is a seasonal trip generator and that operational aspect needs to be factored in. Third, a church generates the bulk of its trips on the day of worship unless there is a school attached. Fourth, a rural fire station also does not have consistent trip generation as the trips are tied to both Staffing and number of calls to which the station responds. Table 3 could also include 10 trips a day from a home which is allowed under EFU. Table 3 of the traffic study indicates the plan amendment/rezone could result in 28 single-family homes and 28 p.m. peak hour trips. Ultimately, the applicant will be assessed transportation system development charges (SDC's) during the building permit process. Currently, the SDC rate is $3,528 per p.m. peak hour trip for an estimated SDC of $98,784 (28 trips x $3,528 per trip). Planning Division Staff informed the County Transportation Planner that with a cluster or planned development scenario, the density of development on the subject property could essentially be doubled, based on the density bonus allowed under DCC 18.32.040(A). With that information, the Transportation Planner submitted the following additional comments: "To answer the question definitively, the applicant's traffic analyst would have to redo the TIA and re-examine all studied intersections. Without that, I have made a first-magnitude estimate below of the effect of the density bonus. The TIA showed the 28 units would generate 28 trips in the p.m. peak. This is an increase of 18 trips more than the current EFU zoning would allow. Adding the density bonus (site is within one mile of the Bend UGB) would increase the number of potential units to 56. These 28 additional units would result in 28 more trips for a total of 46 more p.m. peak hour trips than would occur under existing zoning. Figure 4 of the TIA displays the performance of the studied intersections. All have adequate capacity by varying margins. I doubt the addition of 28 more peak hour trips will cause the intersections to fail." The Transportation Planner responded to the addendum submitted by Kittelson & Associates by stating. "I have reviewed the Jan. 10, 2012 memo by Kittelson on the transportation impacts of the Section 11 rezone proposed under ZC-I1-7. This additional analysis is to address the "density bonus " of an MUA-10 site being located within a mile of the UGB. I agree with the KAI report's methodology, conclusion, and recommendation. " County Road Department: No comments concerning the zone change. The Road Department will have comments concerning access and road improvements when development of parcels occurs. 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: The Fire Department submitted a 1-page list of fire code requirements, which would apply should the property be developed in the future. Pacific Power and Light: No comment response. The following agencies did not respond to.the request for comments: Central Oregon Irrigation District, Bend Metro Parks and Recreation, Watermaster, Cascade Natural Gas, Central Electric Cooperative, Qwest. Bend-La Pine School District, Oregon Department of Transportation, City of Bend Engineering, P G & E Transmission. H. PROCEDURAL HISTORY: The subject property (tax lot 1800) was approved for three previous land use applications as follows: CU-97-132, A conditional use permit to establish a mainline valve and blowdown assembly for an existing natural gas pipeline. This application was approved in January of 1998, mailed out on January 26, 1998. The applicant was Pacific Gas Transmission Company. CU-04-21, A conditional use permit to establish a utility facility consisting of an electric substation. The applicant was Central Electric Cooperative2. PS-094, Department of State Lands sign-off for a renewal of Central Electric Cooperative's power line easement across State lands. The applicant was Central Electric Cooperative. z This electric substation was never constructed. The subject property remains undeveloped. 6 The initial hearing on the subject applications was originally scheduled for Tuesday, January 16, 2012. The applicant requested a continuance of that hearing to February 21, 2012, and that request was granted by the Hearings Officer. The continued hearing was conducted on Tuesday, February 21, 2012. Evidence and testimony were submitted at the hearing. The Hearings Officer again continued the hearing to Tuesday, March 20, 2012. At the March 20, 2012 hearing, Attorney Liz Fancher representing Newland, an entity with similarly zoned lands located elsewhere in the County requested that the written record remain open until April 20, 2012 to provide additional testimony. The applicant requested an additional month thereafter to file a final response. The Hearings Officer granted both requests. T During the open record period the applicant submitted an April 18, 2012 letter with an attached letter from DLCD dated April 3, 2012. Newland submitted four separate memoranda before the April 20, 2012 deadline expired. Those documents are discussed in more detail below. III. CONCLUSIONS OF LAW: Chapter 18.136, Amendments 1. Section 18.136.010, Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDING: The applicant has requested a quasi-judicial plan amendment, and filed the applications for a plan amendment and zone change. The Hearings Officer agrees with Staff that the procedures of DCC Title 22 apply. 2. 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: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. 7 Applicable Law At the February 21, 2012 public hearing, Newland raised the question of whether the County's newly adopted Comprehensive Plan provisions regarding Agricultural Land Policies (Section 2.2) and Rural Housing Policies (Section 2.3) should apply to the application. Those policies were adopted by the Board of County Commissioners on November 9, 2011, after the consolidated application was filed on October 31, 2011. Ordinarily, a quasi-judicial land-use application which was found to be complete prior to any amendments in the local development code would be reviewed under the code provisions in place at the time the application was deemed complete. ORS 215.427. Newland argued that this rule does not apply to intervening Comprehensive Plan amendments. Newland cites a fairly recent Court of Appeals opinion Setniker v. Folk County, 244 Or App 618 (2011) which found that such intervening Comprehensive Plan amendments do apply to consolidated Comprehensive Plan map and zone change applications. As Staff noted in the supplemental Staff report, the County Counsel's Office reviewed the case and tentatively agreed recommending: My formal opinion for the record is that, while it may create a hardship for applicants because it will be a moving target for Comprehensive Plan amendment applications filed prior to a statutory or rule change, whether coupled with -a zone change or not, there is nothing in the statute or rules that were the subject of Setniker or in the case itself that limits the applicability of Setniker to the TPR. Although the applicant initially argued that following the Setniker rule could subject an applicant to a potentially endless chain of Comprehensive Plan amendments, removing certainty from the application process, the record appears to demonstrate that the applicant eventually conceded to Newland's position. Having reviewed the case, the Hearings Officer agrees with Staff and the County Counsel's Office that the November 9, 2011 amendments to the County Comprehensive Plan apply to this application. Those policies are discussed in more detail below. Chapter 2, Resource Management Section 2.2, Agricultural Lands Policies 2.2.2 Exclusive Farm Use sub-zones shall remain as described in the 1992 Farm Study shown in the table below, unless adequate legal findings for amending the sub-zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. 2.2.3 Allow Comprehensive Plan and zoning map amendments for individual EFU parcels as allowed by State Statute, Administrative Rules and this Comprehensive Plan. FINDING: As Staff correctly states, the applicant is proposing to rezone the subject property from the EFU to the MUA-10 zone. The applicant has applied for a plan amendment to support this zone change which would identify the approximately 380 acres as Rural Residential Exception Area rather than Agricultural land. Rather than pursuing an exception to Goal 3, which would ordinarily be the method of effectuating such a change, the applicant is attempted to demonstrate that the subject property does not meet the state definition of "agricultural land." Staff is correct that the Land Use Board of Appeals allowed this approach in Wetherell v. Douglas County, _Or LUBA , (LUBA No. 2006-122, October 9, 2006). The Hearings Officer also accepted this method in PA-10-5 (Rose & Associates). The facts pertinent to the subject property are sufficiently similar to those in PA-10-5 to allow the applicant to attempt to show that the subject property is not agricultural land, rather than seeking an exception to Goal 3 under state law. 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how EFU parcels can be converted to other designations. FINDING: Newland has raised questions about whether the County must adopt a nonagricultural land designation in the Comprehensive Plan, and perhaps an.associated zone under the development code before the application can be approved. Those concerns appeared to be most closely associated with this policy. Staff appears to be unsure whether this policy mandates the creation of such designations prior to acting upon the applicant's request for a Comprehensive Plan amendment. Staff also notes that DLCD has encouraged the County to create such a Comprehensive Plan designation because in its opinion such a designation would enhance the planning process in the County for lands which are demonstrated to be non-resource lands. Of course, the record shows that no such Comprehensive Plan designation or zone exists currently. The recently adopted policy acknowledges this fact and provides a general directive that requires the County to at least consider such a Comprehensive Plan designation at some point in the future. The policy sets no deadline for doing so. The policy also does not dictate any consequences for failing to do so. More specifically, from a statutory construction perspective, the policy does not state that quasi-judicial Comprehensive Plan amendment applications cannot be processed and approved until such a non-resource designation is established. To read this requirement into the policy would violate the most basic rule of construction which is to not add words or phrases which have been omitted from the text. ORS 174.010. This being the case, the Hearings Officer finds that the current application presents essentially the same facts as were present in PA-07-1 (Pagel) in which Hearings Officer Karen Green found that a proposal to amend land from "Agriculture" to "Rural Residential Exception Area" could be allowed regardless of the fact that the applicant 9 was not seeking a Goal 3 exception, and that no non-resource Comprehensive Plan designation existed to accommodate land that was determined to be nonagricultural. I find that the current circumstances with regard to the requirements of the Comprehensive Plan are essentially the same as when Hearings Officer Green reached her decision in 2007. Although the above policy indicates the desired direction for the County, that work has not yet been accomplished, and there is no indication that the BOCC intended to impose a moratorium on the type of quasi-judicial Comprehensive Plan amendment applications such as the one currently proposed. Section 2.5 Water Resource Policies 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant land uses or developments. FINDING: Staff found, and the Hearings Officer agrees, that any proposed water use for the development of the subject property would be reviewed under any necessary land use process for the site (i.e. conditional use, tentative plat). Section 3.3 Rural Housing Rural Residential Exception Areas "In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. `In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. " FINDING: Staff is concerned that while the above language is not a policy, it may indicate that new rural residential exception areas could require an exception to the applicable Statewide Planning Goal. Newland also raises questions about the applicability of this section in both its February 21, 2012 submission and their submission received on April 20, 2012. Newland essentially argues that the language quoted above stating that "any new rural residential exception areas need to be justified through taking 10 exceptions" is a clear directive that the applicant in this instance must seek an exception in order to gain approval of the Comprehensive Plan amendment and zone change. As noted in the record, the above quoted language is not a policy itself, but rather an explanation of how the County desires to handle future conversion of, in this case agricultural land, to a designation and zoning which allows rural residential development. Despite the fact that the quoted language does not represent policy, I agree with Newland that it represents a confusing directive in the context of the present application. However, for the reasons discussed below I do not find that the quoted language presents a bar to the proposed Comprehensive Plan amendment and zone change. Section 3.3 of the 2011 Comprehensive Plan provides some historical context for how the County initially identified areas suitable for rural residential development. Similar to many other counties at the time prior to initial acknowledgment, local jurisdictions were allowed to identify lands which would otherwise qualify as an agricultural lands by soil type but which were already developed at rural residential densities. These areas could be identified as exception areas even though a formal exception under ORS 197.732 had not been undertaken. Regardless of their value as farmland, for example, these areas were allowed to remain in rural residential use because they were already developed or committed in some way to nonagricultural use. The subject property in this application was not initially identified in 1979 as qualifying as a de facto exception area prior to initial acknowledgment of the County's Comprehensive Plan. However, as explained above, the applicant is seeking to demonstrate that the land does not meet the definition of agricultural land, and therefore should never have been designated as agricultural land under the Comprehensive Plan or zoned for exclusive farm use. For reasons discussed more fully below, the Hearings Officer believes that the applicant is successful in doing so. To the extent that the quoted language above represents a policy, it appears to be directed at a fundamentally different situation than the one presented in this application. The quoted language addresses conversions of "farm" or "forest' 'land to rural residential use. In those cases, the language indicates that some type of exception under state statute and DLCD rules will be required in order to support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division 004. That is not what this application seeks to do. The findings below explain that the applicant has been successful in demonstrating that the subject property is composed predominantly of nonagricultural soil types. Therefore, it is permissible to conclude that the property is not "farmland" as defined under state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the application does not seek to convert "agricultural land" to rural residential use. If the land is demonstrated to not be composed of agricultural soils, then there is no "exception" to be taken. There is no reason that the applicant should be made to demonstrate a reasons, developed or committed exception under state law because the subject property is not composed of the type of preferred land which the exceptions process was designed to protect. For all these reasons, the Hearings Officer concludes that the applicant is not required to obtain an exception to Goal 3. 11 There is one additional related matter which warrants discussion in connection with this issue. It appears that part of Staff s hesitation and caution on the issue of whether an exception might be required is rooted in the title of the Comprehensive Plan designation that would ultimately apply to the subject property - which is "Rural Residential Exception Area." There appears to be seven countywide Comprehensive Plan designations as identified in the plan itself. These include "Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations, only Rural Residential Exception Area provides for associated zoning that will allow rural residential development. As demonstrated by reference to the Pagel decision discussed above, there appears to be instances in which rural residential zoning has been applied without the underlying land necessarily being identified as an exception area. This makes the title of the "Rural Residential Exception Area" designation confusing, and in some cases inaccurate, because no exception is associated with the underlying land in question. However, it is understandable that since this designation is the only one that will allow rural residential development, that it has become a catchall designation for land types that are authorized for rural residential zoning. That is the case with the current proposal, and again, for the same reasons set forth in Hearings Officer Green's decision in Pagel, I cannot find a reason why the County would be prohibited from this practice. Chapter 23.60, Transportation Section:23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDING: Staff correctly notes that the transportation section of the Comprehensive Plan has not yet been amended. The current transportation section is applicable. Access to the subject property is proposed to be from either SE 27`h Street or Stevens Road, or possibly from both roads. Staff found that if the property were to be rezoned and if a development proposal is made, there could be road improvements that may be necessary to accommodate the development. SE 27`h Street is an arterial street and Stevens Road is a collector street. Staff concluded that these two roads would have the capacity necessary to accommodate the number of new dwellings that could occur in the MUA-10 zone. Prior to the February 16, 2012 public hearing, questions were raised about the potential impact to the transportation system if the density bonus allowed for planned or cluster 12 developments were allowed in the future when a development plan is submitted for the subject property. A January 10, 2012 memorandum from Kittelson and Associates addresses this issue and finds that even with the potential for increased rural housing densities that there will be no "unmitigated significant effect on the transportation system." The record shows that Senior Transportation Planner, Peter Russell, reviewed the Kittelson memo and essentially concurred. This provision can be met. Ten acre minimum lot size for new rural residential areas. FINDING: On related topic, Newland questions whether the proposed MUA-10 zoning would be consistent with the requirements of OAR 660-004-0040(7)(i)(A) which states that for rural residential areas designated after October 4, 2000, "any new lot or parcel have an area of at least ten acres." Staff responded that the proposed MUA-10 zoning designation for the subject property will have a 10-acre minimum lot size, and concluded that OAR 660-004-0040(7)(i) does not prevent the possibility of a density bonus for planned or cluster developments. Staff found that the 10-acre minimum lot size would apply outside of any request for a planned or cluster development. Newland argues that Staffs approach will not satisfy OAR 660-004-0040(7)(i)(A) because the MUA-10 zone allows for lots as small as 2 acres for such planned and cluster developments. Newland argues that for this reason the MUA-10 zone cannot be applied to the subject property as part of this application. Newland asserts that the County will be unable to enforce a 10 acre minimum lot size on the subject property at the time of development because the zone will allow smaller lot sizes as of right. Newland is also concerned that this issue must be raised and resolved at the time of this Comprehensive Plan amendment and zone change in order to properly preserve the argument, instead of leaving that discussion for some point in the future when an actual development proposal is poised for review. Newland argues that once the current proposal is approved, and if unappealed becomes acknowledged, MUA-10 zone will allow smaller lot sizes and as a result OAR 660-004-0040(7)(i)(A) will be thwarted. The Hearings Officer finds that Newland has taken OAR 660-004-0040(7)(i)(A) out of its intended context. OAR 660-004-0000 states that "[t]he purpose of this division is to interpret the requirements of Goal 2 and ORS 197.732 regarding exceptions." This division discusses rules that apply specifically to three different types of exceptions allowed under ORS 197.732 - "Physically Developed, Irrevocably Committed, and Reasons." The section identified by Newland, OAR 660-004-0040 only applies once such an exception has already been taken by the local government. The purpose of this section is "[t]o specify how Goal 14 "Urbanization" applies to rural lands in acknowledged exception areas planned for residential uses." Once again, that is not what the present application seeks to accomplish. While the 10 acre minimum lot size may apply to lands already identified as exception areas and zoned for rural residential use, the rule by its own terms does not apply to lands which are not exception areas. The Hearings Officer finds that there is no intent under this rule to apply a 10 acre minimum 13 lot size to lands which were never identified as exception areas, and if proven to be nonagricultural lands, would never require an exception in order to be zoned and developed to rural residential standards. For these reasons, the Hearings Officer finds that OAR 660-004-0040(7)(i)(A) does not prohibit the County from applying the MUA-10 zone to the subject property. Chapter 23.68, Public Facilities Section 23.68.020, Policies 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: The Staff report states that the applicant submitted letters from various service providers that indicated that services could be made available for residential use of the subject property if rezoned. Newland appears to dispute this finding by arguing that ultimately the lots that may result from an eventual development plan may rely on on-site wells for water, and that no factual analysis of the adequacy of the city sewer or infrastructure has been conducted to support the application. The record shows that some service providers have been contacted and have indicated an ability to serve the subject property, or have not objected to this Comprehensive Plan amendment and zone change. The policies identified above do not require the applicant to demonstrate at the time of the Comprehensive Plan amendment or zone change that water, sewer, storm water or other public utilities are currently sufficient to support the maximum buildout that may ultimately be allowed by the approved zoning. Here, Newland does not present evidence or argument that supports the position that rezoning the subject property to a density of approximately 38 10-acre lots is so intensive that it would "overload existing or planned facilities." For these reasons, the Hearings Officer 14 finds that the record is sufficient to demonstrate that the proposal can comply with the identified public facilities policies. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDING: Staff found, and the Hearings Officer agrees, that this policy is not applicable as the applicant is not seeking subdivision or development review at this time. The proposed rezone should have minimal impact on the air and water resources of the County. The record shows that water can be provided by either private wells, or by Avion Water Company. A. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDING: The purpose of the MUA-10 zone is listed under DCC 18.32.010 as follows: The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full- time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use. The applicant responded to this provision in the Burden of Proof. The Hearings Officer finds that the proposal is consistent with the purpose of the MUA-10 zone. B. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 15 1. The availability and efficiency of providing necessary public services and facilities. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDING: The applicant has obtained letters from relevant service agencies and providers. Those letters are in the record. The foregoing findings for Public Facilities are incorporated here by reference. This criterion is met. C. 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: As an initial matter, Staff found that there was not a mistake made in the County's original decision to designate the property as agriculture, and in zoning the property for exclusive farm use. The land holding was large, and this site would likely not have qualified for a rural residential exception area, based on its development pattern or lack thereof, at the time. Nor was the subject property committed to any development proposal at the time (1979) it was zoned for farm use. The fact that it was in federal ownership may have been a small factor in its being zoned EFU, but the parcel size and lack of development probably played a much larger role in its current zoning designation. The applicant has addressed this criterion on pages 16-17 of the Burden of Proof. Other than the applicant's statement about federal ownership being the main reason for its current zoning, Staff agreed with the applicant's arguments on this criterion. Staff found that there have been several changes of circumstances since it was zoned for farm use in November of 1979, as outlined in the applicant's Burden of Proof statement, one of the most significant being the urbanization of the adjacent portion of the City of Bend. As argued in the record, the rural residential Comprehensive Plan designation and MUA-10 zone would be consistent with providing a transition between the urban uses in the City if Bend and the lands to the east of the subject property. OAR 660-033-0020 The applicant is arguing that the zone change is justified because the soils on the subject property are predominantly Class VII and VIII. Staff reviewed that assertion under this section and for ease of comparing the Staff report to this decision I will do so as well. The question here is whether the 380 subject property acres meets the state definition of "agricultural land." OAR 660-033-0020(1)(a) provides the definition of "agricultural land" which includes the three following categories: (A) Lands classified by the U.S. Natural Resources Conservation Service (MRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon; 16 (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2), 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; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands OAR 660-033-0020(1)(a)(A) In response to this portion of the definition, the applicant submitted a soil investigative report, prepared by Roger Borine. In short, that report concludes that the subject property is composed predominantly of Class VII and VIII soils which do not meet the definition set forth in this administrative rule. Newland argued at both the March 20, 2012 public hearing and in written submissions that in order for the County to rely on the applicant's soils report, the recently adopted Oregon statute at ORS 215.211 and DLCD rules at OAR 660-033-0030 and 0045 must be applied to this application. Newland argued that these administrative rules, adopted on October 1, 2011, clearly apply to the application. This does not appear to be disputed. Newland then argued that a specific provision, OAR 660-033-0030(5)(b), which essentially mimics the statute, triggered a required review by DLCD of the Borine report. Newland argued that the County was prohibited by both the statute and DLCD rule from relying on the report until the DLCD had conducted a review under the rigorous provisions of OAR 660-033-0045. The applicant and DLCD disagreed with Newland. Specifically, the applicant provided an April 3, 2012 letter from DLCD representative Katherine Daniels in which she argues that OAR 660-033-0030(5)(b) is only triggered where an applicant and the local government desired to rely upon a soils report, such as the Borine report, to challenge or contradict the NRCS Soil Survey, which is considered to be the primary source of soils information for the state. OAR 660-033-0030(5)(b) states: "If a person concludes that more detailed soils information than that contained in the Internet soil survey of soil data and information produced by the National Cooperative Soil Survey operated by the NRCS of the USDA has of January 2, 2012, would assist a county to make a better determination of whether land qualifies as agricultural land, the person must request that the department arrange for an assessment of the capability of the land by a professional soil classifier who is chosen by the person, using the process described in OAR 660-033-0045." Newland argued, and the Hearings Officer agrees, that this provision may be applicable in the context of a request to change the zoning of EFU land to a non-resource zone. 17 OAR 660-033-0030(5)(c). However, the Hearings Officer disagrees with Newland that a DLCD analysis is necessary as part of the current application. I also disagree with Ms. Daniels's interpretation of OAR 660-033-0030(5)(b), because it reads too much into the administrative rule and probably grants the department more discretion than the statute intends, but my disagreement is not relevant to the review of this application. In this case, Newland reads the administrative rule far more strictly than the actual language of the rule indicates. The rule does not require that any time an applicant submits a soils report in support of an application to rezone EFU land to a non-resource zone that the report must be vetted by DLCD. That analysis is only triggered when the report "would assist a county to make a better determination of whether land qualifies as agricultural land." Where the NRCS Soils Survey itself is sufficient to demonstrate that the land in question is predominantly Class VII and VIII soils, and a supplemental soils report merely confirms that data, the rule is not necessarily triggered. Here, the record contains three sets of corroborating data which all appear to indicate that at least 50 percent, and as much as 70 percent, of the subject property is composed of Class VII and VIII soils. The primary data is the information submitted by the applicant in its April 18, 2012 letter which contains the NRCS Soil Survey. The supplemental data includes the Borine report, and calculations submitted by Staff which were initially identified in a March 20, 2012 e-mail from Tim Berg to Paul Blikstad, and then refined and submitted during the open record period as a table showing that the subject property is composed of at least 51 percent Class VII and VIII soils. Taken together, this information is sufficient to demonstrate that the subject property is not predominantly agricultural land as defined in administrative rule. While the Borine report is helpful in confirming the base soil survey data, the application is not solely dependent on the report, and the Hearings Officer would consider it unreasonable to expect the applicant to seek and obtain an additional DLCD review of the report when other reliable data adequately serves the same purpose. Newland submitted criticism of the Borine report in one of its April 20, 2012 submissions arguing that the report does not adequately explain a distinction between Class VI and Class VII components of some of the Deskamp-Gosney soils on the property. The Hearings Officer does not find these arguments persuasive. Newland's criticisms appear to be adequately answered by the applicant submission of the NRCS Soils Survey and Staff calculations of Class VII and VIII soil types on the subject property. The Hearings Officer would also note that while Newland is careful to confine its criticism to the Borine report, to be successful in demonstrating that the subject property is predominantly composed of Class I-VI soils, and therefore not eligible to be rezoned from EFU zoning, Newland might be required to prove that the NRCS Soils Survey for the subject property is incorrect. Such a challenge would appear to require a soils report that would "assist a county to make a better determination" about whether the subject property qualifies as agricultural land, and would likely trigger the DLCD review required by OAR 660-033-0030(5)(b). In other words, the "person" identified in ORS 18 215.211 and OAR 660-033-0030(5)(b) could be the applicant or any opponents of an application as well. OAR 660-033-0020(1)(a)(B) OAR 660-033-0020(1)(a)(B) requires that the applicant demonstrate that even though the subject property may be composed of soil Classes VII and VIII, the property is also not "suitable for farm use." The state administrative rules implementing Goal 3 explain how local governments are to determine whether land is suitable for farm use. OAR 660-003-0030(2) * * * whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the consideration of conditions existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands." A determination that a lot or parcel is not agricultural land requires findings supported by substantial evidence that addresses each of the factors set forth in OAR 660-033- 0020(1). (3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or parcel. Thus, OAR 660-033-0030(2) requires a review of. 1) fertility, 2) suitability for grazing, 3) climatic conditions, 4) existing and future availability of water for farm irrigation purposes, 5) existing land use patterns, 6) technological and energy inputs required, 7) and accepted farming practices. In addition to addressing these seven factors, the Land Use Board of Appeals has recently explained that these two provisions read in conjunction with Oar 660-033-0020(1)(a)(B) allow a local government to consider whether "a reasonable farmer" would be motivated to put the land to agricultural use. Wetherell v. Douglas County, _Or LUBA_, LUBA No. 2010-052, September 16, 2010. LUBA has also held that where the question of whether the land can be used for grazing has been raised in the local proceedings that OAR 660-033-0030(3) requires that the local government consider whether the subject property can be used in conjunction with adjoining or nearby agricultural or grazing operations. Wetherell v. Douglas County (Garden Valley Estates), 58 Or LUBA 101, 116 (2008). 19 On this topic, Staff found: "The use of the subject property for farm use in conjunction with adjacent lands is not possible. There is no farm use on the adjacent properties. It would not be combined with any other adjacent land for farming to occur. The property is not adjacent to, or intermingled with, lands in class I-VI soils. A small portion of the subject property (approximately 12 acres) is already located within the Bend urban growth boundary." These findings appear to be supported by the Burden of Proof, and the Hearings Officer cannot find any substantial disagreement from participants in this proceeding including Newland. After reviewing the record, the Hearings Officer agrees with the findings of Staff. OAR 660-033-0020(l)(a)(C) This rule addresses whether retaining the subject property as agricultural land is necessary to allow adjacent properties to continue to function as agricultural land. For the same reasons discussed in the findings for OAR 660-033-0020(1)(a)(B), I find that the application is consistent with OAR 660-033-0020(1)(a)(C). OAR 660, Division 12, Transportation Planning Rule OAR 660-012-060, Plan and Land Use Regulation Amendments. (1) Amendments to functional plans, acknowledged Comprehensive Plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. This shall be accomplished by either: (a) Limiting allowed land uses to be consistent with the planned function, capacity and performance standards of the transportation facility; (b) Amending the TSP to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes; or (a) Amending the TSP to modify the planned function, capacity and performance standards, as needed, to accept greater motor vehicle congestion to promote mixed use, pedestrian friendly development where multimodal travel choices are provided. (2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional classification of an existing or planned transportation facility; 20 (b) Changes standards implementing a functional classification system; (c) Allows types or levels or land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or (d) Would reduce the performance standards of the facility below the minimum level identified in the TSP. (3) Determinations under subsections (1) and (2) of this section shall be coordinated with affected transportation facility and service providers and other affected local governments. FINDING: Staff found, and the Hearings Officer agrees, that the above language is applicable to the applicant's proposal because it involves an amendment to an acknowledged plan. The applicant is not proposing any land use development of the property at this time and has indicated that future development may include rural residential uses. The applicant submitted a transportation impact analysis (TIA) with the application and this analysis was later supplemented by the January 10, 2012 Kittelson memorandum noted in the findings above. Staff found that the TIA, with the additional analysis to include the density bonus, demonstrates that the transportation facilities in the area will not be impacted to the point of changing the functional classification of any road, or affecting the performance standards of the TSP. The Hearings Officer agrees. The record shows that Staff sent (notice) of the proposed plan amendment and zone change to a total of 16 different public agencies, including the City of Bend Engineering, Bend Fire Department, Central Electric Cooperative, Pacific Power and Light, Oregon Department of Transportation, Bend-La Pine School District, County Road Department, Bend Metro Parks and Recreation District, Arnold Irrigation District, Central Oregon Irrigation District, Watermaster, Bureau of Land Management, PG & Gas Transmission, Qwest). The submitted responses are listed in the foregoing Public Agency comments. Staff found, and the Hearings Officer agrees, that this notice complies with the "shall be coordinated with affected transportation facility and service providers" as listed above. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDING: Findings regarding the Statewide Planning Goals and Guidelines are provided below: Goal 1, Citizen Involvement. The Planning Division has provided notice of the proposed plan amendment and zone change to the public through individual notice to affected property owners, the applicant will be posting a "proposed land use action sign," and notice of the public hearing will be in the "Bend Bulletin" newspaper. In addition, a public hearing will be held on the proposed plan amendment/zone change. Goal 2, Land Use Planning. Goals, policies and processes related to zone change applications are included in the Deschutes County Comprehensive Plan, and Title 18 of 21 the Deschutes County Code. The application of the processes and policies/regulations are documented within this Staff report. Goal 3, Agricultural Lands. Based on the evidence and argument in this proceeding, the applicant has successfully demonstrated that the subject property is no agricultural land. Goal 3 does not apply. Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands that are zoned for, or that support, forest uses. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the submitted information, the site has caves that are required by the agreement between the applicant and the Bureau of Land Management to preserve and protect the existing caves on this property area. The applicant has committed that this will occur. Goal 6, Air, Water and Land Resources Quality. The applicant does not propose a specific use for the property at this time. Rezoning the property to MUA-10 will not impact the quality of the air, water, and land resources. Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. The proposed plan amendment and zone change do not affect recreational needs. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. The proposal will not adversely impact economic activities of the state or area. Goal 10, Housing. Since the applicant is not proposing a housing development at this time, this goal is not applicable and the applicant's zone and plan changes will not affect the supply of needed housing. Goal 11, Public Facilities and Services. The applicant's proposal will have no adverse effect on the provision of public facilities and services to the subject site. Goal 12, Transportation. The above findings on the Transportation component of the Comprehensive Plan and TPR demonstrate that rezoning the property to MUA-10 will not adversely impact transportation facilities. Goal 13, Energy Conservation. Since no specific development is associated with the proposed plan amendment and zone change, the proposal will not have an effect on energy use or conservation. 22 Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not affect property within an urban growth boundary and does not promote the urbanization of rural land. Goals 15 through 19. These goals do not apply. IV. CONCLUSION: Based on the record and the Findings of Fact and Conclusions of Law set forth above, the Hearing Officer recommends that the application be APPROVED. Adoofbe& 06. *-k Kenneth D. Helm, Hearings Officer A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12) DAYS AFTER THE DATE OF MAILING, UNLESS APPEALED BY A PARTY OF INTEREST. Dated this l Wh day of July, 2012 Mailed this I Wh day of July, 2012. 23 Oregon Department of State Lands (DSL) Testimony to the Deschutes County Board of County Commissioners on Sept. 24, 2012 Deschutes County File Nos. PA-11-7 & ZC-11-2 Stevens Road Tract (SRT) Plan Amendment and Zone Change Review of Plan & Zone Change request and why-- -380 acres; to have a Plan designation such that if the City of Bend aspires to bring the SRT into its UGB, that the Plan designation and Zoning assignment are supportive- as a result of requested Plan and Zone change, the SRT would become an eligible exception area rather than the current, least eligible statutory priority status for inclusion [of Agricultural Lands] in a UGB. SE Bend residents need a walkable, multi-purpose nodal center as described in the Conceptual Master Plan. 2. Review of the Record: DSL submitted Burden of Proof; Borine Soils Investigation; NRCS Internet Soil Survey; Kittelson TPR Analysis and Supplement; Staff Report and recommendation; DLCD correspondence; testimony and rebuttal from Newland Community's attorney; testimony and rebuttal from DSL (as applicant land owner); Supplemental Staff Report, and the Decision of the Hearings Officer including findings and a recommendation of approval of the request. 3. Review of SRT Conceptual MP and concurrent Deschutes County Tract MP- These Plans were concurrently prepared by the same consultant team in order to assure compatibility between adjacent Plans, properties and development aspirations/visions/strategies. Recently reviewed that planning process with Timm Schimke, County Sanitarian, as well as Jim Owens, lead consultant on both projects and received confirmation from both that the intentions of the concurrent planning effort was to assure compatibility of adjacent properties. 4. Aerial Photography [8131/061 showing surrounding urban development to west, south and north and hobby farms to the east-no commercial agriculture in vicinity and evidence the SRT has never been farmed. 5. Bend UGB expansion proposal [12/12/081-smooth the edge ri n ee n t u r 1 / ■ w~ 'Town Cuter • f:' ~~r 3+ fI llr~~ =lex Emp yment I . • +,I - w-~M roan Nig Densit} ; . try - 'F ' 1. 1 . _ w w w j Elementary School/ _ ' Open Neighborhood Park _ • '4,•` Space r ♦ r~ ♦ !i I - -may - - • f. f 41, Future j~ • IF, • IZ evelopm it f strained rea - _ - - - - 7" 77, II L-LOnT 1E] Stevens Road Tract Conceptual Master Plan Adopted June, 2007 Adopted by: THE STATE LAND BOARD Ted Kulongoski - Governor Bill Bradbury -Secretary of State Randall Edwards -State Treasurer Prepared by: OREGON DEPARTMENT OF STATE LANDS ASSET MANAGEMENT SECTION LAND MANAGEMENT DIVISION Louise Solliday - Director In Conjunction with: Cogan Owens Cogan, LLC SERA Architects, Inc. Century West Engineering TABLE OF CONTENTS Introduction 1 Opportunities & Constraints 3 Design Principles & Overall Objectives 4 Major Plan Elements 5 Housing 7 Employment 7 Parks & Open Space _ g School & Other Community Facilities 10 Transportation & Site Access 10 Energy Production _ 13 Sustainable Design & Development 13 Public Facilities and Services _ 14 Water & Wastewater Facilities _ 14 Stormwater Drainage Facilities 15 Power & Other Utilities 16 Site Remediation 16 Land Use Compatability _ 16 Conformance with Asset Management Plan- 17 Implementation 17 UGB Recommendations - 17 Refined Site Planning & Development - - 17 For More Information _ 18 Figures Vicinity Map i Master Plan 6 Road System _ 12 Stevens Road Tract - vicinity Map Stevens Road Tract: Regional Context II M;,es page 1 Introduction In 1997, the Oregon Department of State Lands (DSL) completed a Master Plan for a 640-acre tract near Bend (Deschutes County). The property is known as the "Stevens Road Tract," as it is located at the intersection of Stevens Road and 27th Street in Section 11, Township 18 South, Range 12 East. The 1997 Conceptual Master Plan identified potential long-term uses of the property to include school sites, civic buildings, residential and commercial uses, and parks and open space. The Stevens Road Tract is one of many properties throughout the state which are managed by the State Land Board (through DSL) to benefit the state's Common School Fund (CSF), with revenues dedicated to the support of K-12 education in Oregon. The property was acquired from the federal Bureau of Land Management (BLM) in the 1990's to satisfy a 1991 court decision that the State of Oregon was owed approximately 5,200 acres of public domain lands from admission into the Union. CSF lands are managed by the State Land Board as a "trust" to maximize short- and long- term revenues consistent with sound stewardship and business management principles. As the trustee, the State Land Board has a duty to maximize the value of, and revenue from, CSF lands over the long term. Specific management direction for the Stevens Road Tract is provided by DSOs 2006-2016 Asset Management Plan: Complete and implement a revised Master Plan for the Stevens Road Tract, secure a development partner, and work with the City of Bend and Deschutes County to pursue an Urban Growth Boundary amendment. Since the 1997 Master Plan was completed, the Stevens Road Tract has remained undeveloped. Currently, 12 easements and rights-of-way are authorized on the property, including utility easements. There are no leased uses of the Tract. Overnight camping, discharge of firearms, dumping of waste and motor vehicle use are not allowed. DSL enforces these restrictions in response to complaints from the public and/ or neighboring landowners. The Tract is surrounded by urban, semi- urban and rural land uses. Except for a 12.49- acre portion at its northwest corner, the Tract is currently outside the Bend urban growth Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 2 boundary (UGB) and zoned by Deschutes County for Exclusive Farm Use (EFU). This small portion of the Tract is within the Bend city limits and zoned for residential use. When DSL prepared the initial Master Plan in 1997, the agency did not expect to develop the property for urban uses for a significant period of time, given that it was not in the City of Bend's UGB and was not expected to come into the boundary for more than a decade. However, the pace of growth in the Bend area has increased significantly during the past 10 years, increasing the likelihood that the property may be eligible for inclusion in the UGB sooner than initially expected. To ensure that it is prepared for that possibility, DSL has updated its Conceptual Master Plan to identify current proposals for future use of the property once it is eligible for inclusion in the UGB and annexation to the City of Bend. Deschutes County owns a large tract of land directly south of the DSL site. The master planning process also addressed a portion of that property so that DSL and the County could plan for the two areas in an integrated manner. A proposed concept plan for that property is described in a March, 2006 Deschutes County Tract Master Plan. In preparing this Conceptual Master Plan, DSL and their consultants (Cogan Owens Cogan, SERA Architects and Century West Engineers), conducted the following activities: ❖ Reviewed the existing master plan and other relevant materials, including land use planning, park, transportation and planning documents prepared by the BLM, City of Bend, Deschutes County, the Oregon Department of Environmental Quality (DEQ) and the Bend Metro Park and Recreation District (BMPR). ❖ Contracted a March, 2005 appraisal of the Tract. ❖ Conducted an opportunities and constraints analysis. ❖ Convened a meeting of state and local agency representatives to discuss future land needs, opportunities and constraints associated with the site in June, 2005. ❖ Conducted follow-up meetings with County and City officials to discuss plans to accommodate future growth in the Bend area. ❖ Prepared preliminary design concepts and reviewed and refined them in consultation with DSL staff, including a design charrette conducted on September 14, 2005. ❖ Conducted and summarized a meeting on November 8, 2005 with state and local agency representatives to further review, discuss and refine preliminary design concepts. ❖ Followed up with agency representatives to discuss specific topics raised during the Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 3 November 8 meeting. Circulated a December, 2005 Preliminary Draft Master Plan for agency review. ❖ Consulted with the Oregon High Desert Grotto of the National Speleological Society on cave locations and protection measures. ❖ Reviewed and commented on Bend's updated Collection System Master Plan. ❖ Monitored Bend's residential land needs study and UGB amendment process, as well as Deschutes County's urban area reserve (UAR) process. ❖ Prepared an April, 2007 Draft Conceptual Master Plan for public review and posted it on the DSL web site. ❖ Conducted a May 8, 2007 public meeting to obtain input on the Conceptual Master Plan. (A meeting summary is attached as an appendix.) ❖ Presented a Draft Conceptual Master Plan for adoption by the State Land Board at its June 12, 2007 meeting. Opportunities & Constraints ❖ Generation of revenues from development of the site to benefit public schools statewide through the Oregon Common School Fund. Ability to helpmeet a variety of community needs for housing, including affordable housing opportunities, employment, parks, open space, and other community facilities. ❖ A single, large, vacant parcel, with relatively few environmental constraints. ❖ Ability to meet the housing, shopping, recreational and employment needs of future residents of this site and to some degree, the surrounding area. ❖ A location directly adjacent to the City's existing urban growth boundary (UGB) and to existing developed areas; a portion of the property is already located within the Bend UGB. 4+ Access to existing sewer and water lines and a major roadway with capacity for additional traffic. ❖ Relatively flat topography and outstanding views of the Cascades to the west and other mountains to the south. ❖ The adjacent County property represents an opportunity to buffer future urban uses on the DSL property from existing and future operations at the County's solid waste facilities to the south. As previously noted, the Stevens Road Tract is currently undeveloped. It is a relatively flat property, with few constraints to development. Key constraints include: The Stevens Road Tract represents a unique set of opportunities for the state, the City of Bend, Deschutes County and the community: ❖ Presence of a number of caves and collapsed lava tubes, with a sensitive bat species known to inhabit at least some of the caves. Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 a page 4 Historic disposal of solid and liquid waste on approximately 40 acres of the Tract. Irrigation canal running diagonally across the Tract's northwest corner. ❖ Natural gas transmission line, with a 600- foot buffer, running north/south through approximately the center of the property. ❖ Perpetual easement for electrical substation on approximately two acres at the northeast corner of the Tract. Design Principles & Overall Objectives DSL envisions development of a "complete community" on this site, with opportunities for residents to live, work, shop and play in the same area, reducing transportation and other public facility needs. This overall approach to a self- sustaining development will be coupled with sustainable development design and construction techniques to create a unique neighborhood within the City. Master Plan objectives and principles include: ❖ Develop a mixture of uses that creates opportunities for living, working, recreating and shopping within the development, reduces the need for automobile travel, and increases opportunities for bicycling and walking. ❖ Maximize revenues for the Oregon Common School Fund through a public-private partnership for development in accordance with this Master Plan. Coordinate with the City of Bend, Deschutes County, other public agencies and citizens to ensure that future development is consistent ~r and integrated with overall goals for community- wide growth and development. ❖ Create a mixture of housing types that meet the needs of households with a range of incomes, including affordable housing needs. + Coordinate development of the Stevens Road Tract and potential uses on the County property with long-term use of the adjacent County- owned solid waste facilities and associated property. ❖ Helpmeet short and long-term community needs and objectives for land use, housing, and economic development. ❖ Protect sensitive environmental features and resources from the impacts of development. + Incorporate sustainable development and design principles and practices, including but not limited to the following: Energy efficient building materials and building construction practices (e.g., energy Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 5 efficient windows, building orientation, high-efficiency heating and cooling systems, recycled building materials, etc.) Alternative energy sources, including solar power. Native vegetation and other landscaping practices that minimize irrigation needs. Natural drainage facilities and practices (e.g., bio-swales, detention ponds, rolled curbs) Permeable or semi-permeable surfaces for low impact areas such as driveways, bike paths or similar areas. Major Plan Elements The Conceptual Master Plan incorporates the following key features: ❖ A wide range of housing types adequate to accommodate approximately 2,600 dwellings (6,300 people, based on a projected average household size for the Bend area), including single-family attached and detached homes, duplexes, tri-plexes, multi-family dwellings and mixed use residential/commercial development (homes over businesses). ❖ A comprehensive system of parks and open spaces, sw - with three neighborhood ~V parks and an interconnected adjacent to a new high school. A commercial mixed-use center at the northwest corner of the site within the existing UGB, including a small complex of offices, as well as a mix of retail commercial shops and housing, flanking a diagonal main street. This would serve this property, as well as the surrounding area. ❖ A village center primarily serving residents in this area, and located in approximately the center of the Tract. It could include public buildings such as a branch library or community center, a neighborhood park and possibly an elementary school, as well as a modest amount of neighborhood commercial development. ❖ A flexible amount of land zoned for employment use adjacent to 27th Avenue (e.g., light industrial, tech/flex or office use) intended to meet long or short-term economic needs, and located adjacent to available transportation, water and sewer services. ❖ Solar energy generation or storage facilities in the southwest portion of the site that could provide or store power for or from homes on site, with linkages to opportunities for passive solar production and use. system of trails and passive open in space, including a significant trail a corridor parallel to the gas pipeline. i The County-owned site to the south includes a proposed community park Each of these elements is described in more detail on the following pages. Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 6 Stevens Road Tract - Conceptual Master Plan ~ ~ E. ma aarv&xa ~ fp~~~~ t. ;~tY3+fiIXW "ak t t ,.r G r r r • r w F r FUr C c~.rr,rr.-CY 'V" ~ fJf ~ryJtMxl+oa.: tYi MO'JVr Far Ctlr xJ ~.TiN _ ! rt til{b I 1 . x , itI o'°~ n k aWM t / ' •e•~ Wuen lac'~!t7xrrx tr Generotroo / _ _ } .p+ r....+• ....nn'~rwra.ttl~•'YWr'W~alrw~v mr► +r.r~rwrr-.rw -Mhn. _ LEGEND + LAND USE ~ Scn«„ ' Clfrcutti+ntty Pdtt;s Op" sP.n/Park \ _ Res4nnbai urban SRF Uer-4W R-4"Va7 Urban Wdtum Uansizy 1 EwjODVm t Urban H*h Derssidy Nc•,grbr r,ootf iyfixed Use ~ ~ fY rr~~CS >r(+tiYf, Pro{ecd A148 ~ TRA%SPORTATION wry,,..,R-d C-~ P e . canxu Una Aere to sew Fccr Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 7 r ~ Housing A significant portion of the Tract is proposed to be 1 F1 devoted to housing RON (approximately 400 acres or 62.5 percent). This land could accommodate approximately 2,630 housing units, assuming an average density of about 6.6 units per acre. This is slightly higher than the target density identified in the City of Bend's residential land and housing needs analysis. Housing is expected to include a mix and range of housing types, including higher density and multi-family housing that can help meet overall community needs for affordable housing. It also would be expected to meet the needs of a variety of different types of people or households, including families, seniors and others. As a state agency landowner, DSL is in a unique position to help meet these community needs through partnering with other governmental agencies, affordable housing developers and others to help meet affordable housing needs for low and moderate income families, seniors and others who face an increasing shortage of affordable housing. Approximately 15 to 25 percent of residential acres are targeted towards higher density residential development (duplexes, tri-plexes, four-plexes and apartments). Given the relatively higher densities of these types of housing, that would translate into potentially 40 percent or more of the total number of housing units. This exceeds projected needs identified by the City of Bend in its current residential land and housing needs analysis. Different housing types are proposed to be distributed throughout the Tract. Integrating single-family detached and other housing units can help reduce concentrations of multi-family housing and/or lower-income households. At the same time, some multi- family or higher-density housing is proposed to be concentrated near commercial development and potential future transit corridors to help support future transit services and commercial businesses. Single family housing would be located on a range of lot sizes, though most lots would be 5,000 to 6,000 square feet or less, consistent with Bend's development code and in an effort to reduce land prices associated with housing, and to meet the projected needs of future residents. Employment Recognizing that other areas within the community are planned to accommodate much of the City's long-term employment growth (e.g., the downtown/Central Bend area and Juniper Ridge), employment uses are allocated to a relatively modest proportion of the Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 8 Tract (approximately 5 to 12 percent and 35 to 85 acres). About half of this area would be devoted to neighborhood commercial or mixed use residential/ commercial uses in four different areas within the access and proximity to these services and amenities. ❖ Two additional, small neighborhood commercial areas are identified in the eastern site. These would include: ❖ A commercial hub is proposed at the northwest corner of the Tract. This area would serve residents within and outside the Stevens Road Tract. It would include commercial and office uses, possibly incorporating a state office complex. This would help accommodate a growing demand for state office space, create opportunities for centralized services and help jumpstart development of commercial services and housing on the Tract. This area also would include a main street area, with commercial and mixed use development area radiating to the southeast. Neighborhood commercial uses would provide opportunities for pedestrian and bicycle travel for residents within 1/a to 1/2 mile or more from this area. ❖ A village center, located approximately in the center of the Tract, would include a modest amount of commercial development to serve residents within the Stevens Road Tract. This area also would include an elementary school, park and other civic uses. It would be adjacent half of the site and likely to occur in later stages of development. They also would primarily serve residents within this area and possibly some neighbors to the east. In total, neighborhood commercial and mixed use areas would account for approximately 15 to 25 acres, with the potential for 500 to 750 jobs, assuming an average of 30 employees per acre. Schools proposed for the Tract also would also generate employment. A typical elementary school includes just over 40 full time employees, while a high school includes about 110 workers. Flexible employment areas are proposed in the northwest and southwest corners of the Tract. These areas could be zoned for a mix of tech-flex, office, light industrial or other, similar uses to meet short-term and long-term land needs for these types of uses. A portion of these areas also could function to promote live/work opportunities and accommodate the needs of public agencies that need larger sites to store vehicles and equipment. They are located in areas that will be easiest to develop in the short term and have the best access to roads (i.e., 27th Avenue) and sewer and water lines. Approximately 20 to 60 acres (3 to 12 percent of the site) are designated for this type of use. This area could be expanded or reduced, depending on needs for this type of land identified by the City as it updates its estimates of future employment land needs. This could translate to approximately 600 to the gas line bicycle/pedestrian corridor and to 3,000 jobs, assuming 30 to 50 jobs per acre bordered by higher density housing to improve (average employment density for a mix of office Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 9 and tech/flex employment or less dense types of employment). These uses would serve this Tract and to some degree the entire community. They also represent opportunities to generate long-term revenue for the Common School Fund. Parks & Open Space A significant portion of the site is proposed to be dedicated to a mix of passive and active recreation and open space, including paths and trails, neighborhood parks and passive open space associated with environmentally sensitive areas. Trails will provide both recreational opportunities for residents, as well as routes between community uses within and outside the Stevens Road Tract, including parks, schools, residential and neighborhood commercial areas. Specific facilities are proposed to include the following: ❖ Passive open space. About 160 acres of the Tract are identified for open space, in large part to protect caves and associated bat species located on the property. These areas would be managed to protect these sensitive resources, while allowing some use for passive open space enjoyment, where feasible. DSL will prepare a cave management plan per its commitment to protect sensitive bat species. Conditions of that plan will apply to any future owners of the property. ❖ Comprehensive trail network. A system of trails is proposed to include a major diagonal north/south trail along the gas transmission line which would provide access through the area between the centrally located civic center and with connections to proposed neighborhood parks and schools within the Stevens Road Tract. It also would link these areas to a community park proposed for the County-owned site to the south and an adjacent new high school. The open space and trail network also would connect residents within the area to an existing middle school site to the southwest and to possible future trail corridors along the canal that runs through the northwest corner of the DSL Tract. Although this canal may be moved underground in the future, the Parks District would still expect to create a trail easement adjacent to it. ❖ Neighborhood parks. Three neighborhood parks, totaling approximately 12 to 15 acres, are proposed, consistent with expected residential development within the area and level of service standards adopted by BMPR. At least one of these parks would be co-located with a new elementary school, providing opportunities for shared use of school and park district recreational facilities and potentially reducing overall land needs for them. One of the other parks would be located within the Village Center, in close proximity to other community facilities that could be located in that area (e.g., a library, fire station, etc.). ❖ Community park. A community park of approximately 25 acres in size is proposed on the County-owned property to the south. This park could have a broad range of facilities and uses, possibly including but not limited Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 10 to playing fields, picnic shelters, paths and walkways, play equipment, and natural areas or open space. Location, design and development of this and other parks would be consistent with BMPR goals, policies and identified facility needs. The community park would help meet park needs for the Tract _ and buffer the County's - ~L landfill to the south from residential ands, commercial development t: on the Stevens Road Tract. It also would be co-located next to a proposed high school, also on the County-owned property, that would serve the DSL and County-owned properties, as well as the larger surrounding area. The park would be located to avoid potential impacts on surrounding properties from lighting or other activities. The amount of land devoted to parks and open space would impact BMPR in terms of future operation and maintenance needs. Detailed planning for parks and open space will need to be closely coordinated with BMPR to address these issues and identify adequate means and funding sources to operate and maintain facilities developed on this Tract. Schools & Other Community Facilities Development of the Stevens Road Tract will drive the need for additional elementary schools and possibly a middle school. Approximately 10 acres have been identified for development of an elementary school, based on typical standards for school sizes, the proportion of school age children, and goals for 1 y pxJ r i , i efficient land use and development. One school could be located within the village center area, along with other possible community facilities to serve residents (e.g., a library, fire station, and/or small community center). Schools would be accessible by all modes of transportation, including the open space and trail network proposed for the site. A high school is proposed for the County-owned property to the south. As noted above, it would serve the DSL and County-owned properties, as well as the larger surrounding area. No middle school sites are incorporated in the Plan, given the close proximity to the existing middle school site to the southwest. Transportation & Site Access The Stevens Road Tract is adjacent to 27th Street and Reed Market Road, which are major arterial streets serving this part of Bend. Future planned improvements to street infrastructure include straightening of Stevens Road to connect to Reed Market Road, and widening of Reed Market Road, which will improve traffic circulation to the west. Ultimately, 27th Street may also be widened to a five- lane configuration, which would improve circulation to the north and south. Traffic signalization improvements along 27th Street also could be needed. The location and type of improvements Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 11 would be identified during future, more detailed planning phases. Future connections to 27th will need to be planned in a way that ensure adequate connectivity to the Stevens Road site, while minimizing impacts on congestion along 27th 5-10' 5' 20-30'20' r55' ,,$^'~.^f 5-10' rmntYad Sde~+Ok Vall% Si la; irwaclane aAUr t fwnf Master Plan development also would require construction of an internal road system of arterial, collector and local roads, as illustrated in the map that follows. The road system would include the following elements and attributes: ❖ Provide circulation within and through the Tract, with adequate connections to adjacent roads such as 27th Avenue, Stevens Road and Ferguson Road. The layout and orientation of the road network would promote connectivity and mobility. ❖ Create adequate east-west and north- south through streets within the Tract to ensure connectivity through the Tract and to surrounding areas. ❖ Enhance opportunities for use of alternative modes of transportation, including bicycling, walking and transit use. This would include construction of bicycle lanes and sidewalks on all major roads within the Tract, as well as the connected system of pathways described previously. It also would entail designation of transit routes and stops to serve residents and workers, particularly in higher density residential and mixed use portions of the Tract. ❖ Use a boulevard design for major roads, such as the north/south diagonal road, that provides 50-60' R.O.W. access to the village center and possibly along a portion of 27th Avenue, adjacent to proposed residential development. ❖ Design and build local neighborhood streets that calm traffic, encourage bicycle and pedestrian use and improve safety. ❖ Create street orientations that allow for and enhance opportunities for solar power generation and use. ❖ Use roundabouts, where feasible. These could provide possible locations for transit stops and improve mobility. ❖ Consider and address the impacts of transit, pedestrian, bike and auto traffic from adjacent areas to the Stevens Road Tract. Interior roads would connect to adjacent roads using a combination of stop signs and signals, where warranted to manage and control traffic at intersections. The Master Plan shows the approximate location and orientation of major roads and an example of a local street pattern. Street designs and layouts would be refined during detailed design and development of the site, consistent with land use patterns, traffic analysis and City road standards. 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L~ I Sao Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 13 Energy Production As well as supporting the overall goal of environmental sustainability, solar energy's economic benefits are continually increasing with advances in technology and institutional practices. The Stevens Road Tract offers a number of unique opportunities to employ leading-edge solar energy production and utilization practices to enhance environmental sustainability and create revenue- generation opportunities. These could include concentrated solar power generation, distributed solar power generation, and passive solar design. To effectively implement these strategies, discussions with power utilities should occur early in the planning and site development process. A portion of the Tract (about three to 10 acres) along the southern boundary is proposed to be used for production of solar and possibly other alternative energy sources (e.g., methane or other solid waste facility by-products). A significant amount of energy could be produced within a relatively modest area and used to support other proposed development. Passive solar design concepts also should be included in the overall planning process for the development and design of individual homes. This would require proper orientation of the streets from east to west as the plan indicates. It also would entail orienting house lots north to south, to optimize solar access and reduce shading. Additionally, individual homes should incorporate passive solar architectural concepts, such as day-lighting, solar gain, thermal mass and natural ventilation. Sustainable Design & Development A variety of sustainability principals are proposed to be used as the Tract is planned and designed in more detail and developed. They include, but would not be limited to: ❖ An overall mix of uses that balances jobs and housing to the greatest extent possible, consistent with the City's residential and employment land needs and goals, and that allows people to live, work, shop and play within the area, with a minimal need to drive. In addition to exploring opportunities for solar energy generation or use, DSL will explore use of other potential alternative energy sources. Consultation with the Energy Trust or similar organizations will occur to further investigate these issues. In addition to a concentrated solar energy generation facility, the homes could be built with the option of incorporating distributed solar power generation capabilities into roofs, possibly using integrated solar roof tiles. ❖ Multi-modal transportation facilities that encourage people to walk, bicycle and use transit. ❖ Residential densities that support transit use within, to and from the site. ❖ Energy-efficient building materials and construction practices (e.g., energy-efficient windows, building orientation, high-efficiency heating and cooling systems, recycled building materials, and other similar practices). ❖ Power generation from alternative energy Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 14 sources, including solar power. ❖ Use of distributed solar power generation from individual homes. ❖ Incorporation of solar energy principles in design of street layouts, building orientation, and building design during the early planning and ❖ Reducing impacts on municipal infrastructure. ❖ Supporting Bend's long-term goals for implementation of a transit system. ❖ Improving residents' quality of life by reducing the amount of time needed to travel and allowing more time to pursue other activities. design stages. d• Native vegetation and other landscaping practices that minimize irrigation needs. •2 Natural and other drainage facilities and practices that retain stormwater within the site and minimize drainage impacts (e.g., bio-swales, detention ponds, rolled curbs). ❖ Permeable or semi-permeable surfaces for low impact areas such as driveways, bike paths or similar areas. ❖ Creating potential revenue opportunities for DSL (e.g., through solar energy production). Public Facilities & Services In addition to the transportation facilities previously described, the proposed Master Plan would require construction of water, wastewater and stormwater facilities on site, as well as improvements to storage and distribution facilities off-site. Following is a summary of needed improvements. ❖ Irrigation using "gray" water for landscaping or other feasible uses. ❖ Possible development of a "living machine" on the County-owned site to the south, using biological processes to treat wastewater produced on the DSL and County properties. These practices would benefit the community in a variety of ways and could result in a model for self-sufficient and sustainable design practices, Water & Wastewater Facilities Average flows for water and wastewater have been calculated based on the types of development and the approximate flows typically observed for various land uses in Bend. Resulting needed improvements to existing or new facilities are described below. The need for some improvements may be reduced by incorporating sustainable design and development principles, which is an important objective of this project. including: ❖ Reducing impacts on the natural environment. ❖ Enhancing the physical health of residents. 6• Reducing longterm energy, public facility and other costs of developing and maintaining homes, businesses and public facilities. An estimated approximately 0.81 million gallons per day (Mgd) would be generated at full build-out. Existing sewer facilities in the vicinity of the site include a 6-inch force main in 27th Street. This force main discharges to an 8-inch gravity sewer between the site and the intersection of Highway 20. At Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 15 Highway 20, the 8-inch sewer discharges to a 12- inch sewer. The current sewer collection master plan for the City of Bend forecasts that these sewers will be at capacity when the area within the urban growth boundary (UGB) is fully built out. The current master plan did not consider areas outside the UGB. Therefore additional sewer infrastructure will be required before development of this Tract can take place to construction of or use of a new trunkline, it may be possible to provide wastewater service through the "Living Machine" proposed for the site. Construction would be subject to review and approval by DEQ. Water demand is projected to be 2.48 million gallons per day (Mgd). This assumes that the open spaces would be seeded with turf and irrigated. If alternative landscaping is used, as proposed and consistent with sustainable design principles, less water would be needed. However, the City currently is in the process of updating its sewer master plan and is considering areas outside the UGB, including the Stevens Road Tract. Improvements under consideration in the Collection System Master Plan include a major trunkline named the Southeast Interceptor that will follow the canal alignment at the NW corner of the property. This trunkline will have sufficient capacity to accept wastewater generated at the site. Any required additions to the City's wastewater treatment plant capacity would be funded through system development charges paid to the City. No timeframe has been given by the City for the construction of this trunkline. As an alternative The areas adjacent to the Tract are currently served by Avion Water Company, a private water supplier. Avion would be the likely supplier of water service for the Tract, and has considered its development in their long-range planning. Based on their data and the flow volumes calculated above, the following improvements to their distribution system would be required: Three acres for a reservoir and pumping facility. 40- A 5 Mgd reservoir. A booster pump station. A new transmission line to the site, with approximately 1,500 feet of 24-inch pipe anticipated. Stormwater Drainage Facilities The primary means for treatment and disposal of stormwater in Bend is onsite disposal through the use of drainage swales, ponds, filters, and drywells. Historically, drywells have been used most frequently; however, due to increasing scrutiny by DEQ, these structures are becoming more difficult to install. Drywells may still be installed for disposal of Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 16 roof drainage, and may be used in residential areas and open spaces. In all other areas, the preferred methods for site drainage are the use of ponds, swales, and filters, eco-roofs, porous pavement and being conducted. Depending on this investigation, it may become necessary to perform additional investigations before proceeding with site cleanup operations. Site cleanup, if needed, will be other sustainable stormwater treatment techniques. coordinated with DEQ. Power & Other Utilities Adequate facilities are available to provide electrical power, gas, telephone and cable television service to the site. Trans-Canada GTN operates a gas transmission line that crosses the site, including a 36-inch pipeline and a 42-inch pipeline within an 80-foot right-of-way (ROW). Trans-Canada typically allows perpendicular crossings of their ROW for streets and utilities, although they prefer to minimize the number of crossings when possible. Planning for the Tract reflects this condition. Land Use Compatibility Pursuant to DSUs 2006 State Agency Coordination Program, the following findings and conclusions are made regarding the compatibility of this Conceptual Master Plan with the comprehensive plans and land use ordinances for the City of Bend and Deschutes County: ❖ A small portion of the Tract (12.49 acres) is zoned by the City of Bend for residential use (RS-Standard Density Residential). This portion of the Tract is within the UGB and Bend city limits and could be developed for urban uses A trail along the length of the ROW would be located so that it is not directly above either pipeline. This will allow Trans-Canada to expose their pipeline without excavating through the pathway. Site Remediation In the past, a portion of the site currently proposed for use as open space was used for disposal of municipal solid and liquid waste. A more detailed assessment of the site is needed to determine the extent of municipal waste remaining and appropriate remediation. The first step to determine what remediation is needed is to perform a Phase 1 Environmental Site Assessment. This assessment is currently at this time. However, the Conceptual Master Plan proposes that this area be developed for mixed uses in conjunction with the remainder of the Tract, rather than independently. Any zone changes needed to accommodate Conceptual Master Plan uses for this portion of the Tract would be requested by DSL as part of approval of a Master Plan development for the entire Tract and/or refinement plans for specific portions of the Tract. ❖ The remainder of the Tract (627.51 acres) is zoned by Deschutes County for Exclusive Farm Use (EFU), and has a minimum lot size of 80 acres. This area has not historically nor is currently used for agriculture. The EFU zoning was applied because of its past federal Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 17 ownership. Conceptual Master Plan uses would not be in compliance with current EFU zoning and could not be pursued without inclusion of the property within the Bend UGB and city limits. •3 While the Conceptual Master Plan is not in compliance with current City and County zoning, development is not being proposed at this time and would not be pursued in the future under current zoning. Upon inclusion within the Bend UGB and city limits, DSL would seek approval by the City of Bend of Comprehensive Plan designations and zoning needed to accommodate Conceptual Master Plan uses, based upon a Master Plan development for the entire Tract and/or refinement plans for specific portions of the Tract. Conformance with Asset Management Plan (AMP) The Stevens Road Tract is classified as Industrial/ Commercial/Residential (ICR) land in the Board's 2006-2016 Asset Management Plan and managed under an `active' management strategy. The AMP calls for the Tract to be managed for urban development potential; directs the development of an updated Master Plan along with inclusion in the Bend UGB or UAR; allows for investments in improvements to increase value; and promotes seeking a partner (e.g., master lessee) to develop the site at urban densities. This Master Plan fully implements the management strategy stated in the AMP. Implementation UGB Recommendations DSL staff and its consulting team will conduct the following tasks to implement a strategy for inclusion of all or a portion of the Tract in the Bend UGB: ❖ Monitor and participate in the Bend and Deschutes County UGB and UAR amendment processes. ❖ Pursue inclusion of the Tract within the Bend UGB, based on results of the City's UGB amendment study and consultation with local officials; assist in preparing findings that support the proposed UGB amendment strategy. ❖ Present information about proposed DSL and County plans to City, County and other officials, when appropriate (e.g., the Technical Advisory Committee for the residential lands study or its subcommittees, members of the City Council, as well as the City Planning Commission, the Deschutes County Board of Commissioners, BMPR Board and others). Refined Site Planning & Development Following adoption of the Plan, DSL will undertake a variety of actions to further implement the Plan, including but not limited to: Work with the Oregon Department of Administrative Services and other state agencies to define regional state facility needs that could be met at this site. Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 page 18 ❖ Complete a Phase 1 Environmental Assessment of former waste disposal areas and develop a state's waterways. Wetlands conservation and management also is a key responsibility of DSL. remediation plan, as needed. ❖ Develop a cave management plan, with protection of habitat for sensitive bat species; secure cave entrances as needed. ❖ Explore partnerships to develop affordable housing, while generating revenues for the Common School Fund (e.g., through ground- leasing of multi-family housing developments). DSL also acts as a trustee for unclaimed property, administers estates with no known heirs, manages the South Slough National Estuarine Research Reserve (near Coos Bay), and provides support to the Oregon Natural Heritage Advisory Council. Moreover, DSL also maintains historical records on all state land transactions. Contact our Salem office for further information ❖ Coordinate further with the Bend School District about this Plan or any of the other services and BMPR to assess, locate and design schools, DSL provides. You may also access the Plan parks and recreation lands and facilities. on the Department's Web site: http://www. oregonstatelands. us. ❖ Explore options for development of the Tract, such as agreement with a master developer(s) to conduct detailed planning and development of the site upon its inclusion in the UGB. ❖ Continue to coordinate with the County on the compatibility of Stevens Road Tract development with land uses on the adjacent County property. ❖ Coordinate planning with DSUs 2006-2016 Asset Management Plan. For More Information In addition to managing Common School Fund lands, the Department of State Lands provides some direct services to the public and regulates certain aspects of the protection of Oregon's waterways. DSL administers Oregon's Removal- Fill Law, which requires a permit to remove, fill, or alter more than 50 cubic yards of material in the Oregon Department of State Lands 775 Summer Street, NE Suite 100 Salem, Oregon 97301-1279 503-986-5200 503-378-4844 FAX John Lilly Manager, Asset Management Section Land Management Division 503-986-5281 Other DSL Offices South Slough National Estuarine Research Reserve RO. Box 5417 Seven Devils Road Charleston, OR 97420 541-888-5558 541-888-5559 FAX DSL Eastern Region 1645 NE Forbes Road, Suite 112 Bend, OR 97701 541-388-6112 541-388-6480 FAX Stevens Road Tract Conceptual Master Plan ■ Department of State Lands Adopted June, 2007 APPENDIX A: Public Meeting Summary Stevens Road Tract Master Plan Public Meeting High Desert Middle School, Bend Tuesday, May 8, 2006; 6:00 pm - 8:00 pm Introduction and Meeting Objectives The Department of State Lands (DSL) conducted a public meeting on May 8, 2007 to present and obtain input on the Draft Stevens Road Tract Master Plan (April, 2007). Approximately 25 persons attended. Representing DSL were John Lilly, Clara Taylor, and Julie Curtis; and Jim Owens, Cogan Owens Cogan, representing the planning firm hired to assist in updating the Master Plan for the Stevens Road property. Representing Deschutes County were Timm Schimke and Peter Gutowsky. The Stevens Road Tract Master Plan will guide the use and development for the next 20 - 30 years of the 640-acre tract bordered by 27th Street and Stevens Road at the southeast edge of the Bend Urban Growth Boundary. The Stevens Road Tract is Common School Fund Trust land that is to be managed to maximize revenues to support K-12 education in Oregon. Also presented at the meeting was a Draft Deschutes County Tract Master Plan (April, 2007) that addresses 137 acres managed by the Deschutes County Department of Solid Waste directly to the south of the Stevens Road Tract. Public Notice Notice of the public meeting was provided through publication in The Bulletin and through direct notice to neighbors and other interested parties. The Bulletin ran a front-page story on the meeting and plan on May 9. Meeting Format and Comment Opportunities Following welcoming remarks and introductions, a PowerPoint presentation on the Draft Master Plan was provided. This was then followed by a question/answer session and the opportunity for attendees to provide recorded statements on the record. Information was provided on Opportunities and Constraints, Design Principles and Overall Objectives, and Key Plan Elements. Comment opportunities included: • Questionnaire posted on the DSL Web site and distributed at the public meeting. • Flip charts at the public meeting stations. • Recorded public statements at the public meeting. • Via Web, e-mail and written formats. Summary of Comments Written Correspondence • Concerns about traffic safety at Ferguson and 27th Street. • Request for short-term right-of-entry. • Recommendations for cave protection and management. Public Meeting Comments • Concerns about trespass onto adjacent eastside properties. • Infrastructure needs will be significant. Sewer - eventually the city will want the adjacent (east-side) property owners to hook up to the city sewer. What is the projected timing; will sewer lines be extended down 27th. • What are the "first-phase" elements? What happens if the entire property doesn't come into the UGB? • County landfill seems very close to proposed housing. Will it be moved? (County answered that the landfill will be in place until 2025 at the very latest, and may be moved sooner. The transfer station will remain. The buffer is % mile.) • The "urban and semi-urban" description does not apply to the north and east sides of the property which are primarily rural-agricultural. • Intersection of Ferguson Road and 27th Street is problematic due to lack of sight distance. There have been a number of accidents in this area. • Consider having a "volunteer center" within the village center. • Concerns about a north-south arterial along the east side of the property. • Cul-de-sacs might be a good solution for quieter neighborhoods, especially those adjacent to the east-side properties. • Stevens Road will need to be significantly improved to handle increased traffic volumes. • Road improvements should occur prior to development. • A buffer zone along the eastern border would transition adjacent land uses. Station Comments • The Central Oregon Irrigation District canal may be viewed as a "constraint" but it also provides a unique opportunity for a trail connection all the way northwest to the Deschutes River and northeast to BLM and park lands. • This tract of land is the "Sheviin Park" of southeast Bend. There are few parks and open space in the southeast. The Senior Center is not safely accessible for young families. If the parkland could stay connected via canals and rural trails, people will feel it's a better use of the area. Is the open space requirement currently being met in the southeast if this is developed? • Teenage boys need dirt bike trails. • People need areas for dog walking. Natural areas needed for peace of mind. • The pipeline is the ugliest part of the land; how will this be improved? Oregon Department of State Lands 775 Summer Street, NE Ste 100 Salem, Oregon 97301-1279 (503) 986-5200 www.oregonstatelands.us County Public Works Dept Humane Society Central Oregon Electric Cooperative T 3 t }drool f. I f r r r r. ..R. -w.-.. ..--..Kw----- ! + ♦ future Community Park I High School C site ~ ~y,wrr rte. 1e r~r~•~.. r - - - MJ t Soler Energy Generation Light Industrial ♦ ri 1 ! t County Soild Waste Facilities ! tt ! Deschutes County Tract Master Plan April, 2007 Prepared for the Deschutes County Department of Solid Waste ~G~J-r ~s eo`2 ~ a Q { L: through Agreement with Oregon Department of State Lands Prepared by: Cogan Owens Cogan, LLC SERA Architects, Inc. Century West Engineers TABLE OF CONTENTS Introduction 1 Site Description 1 Opportunities & Constraints 2 Concept Plan 2 Purpose of the Concept Plan 2 Concept Planning Process 3 Design Principles & Objectives 3 Concept Plan 3 Recommendations 9 Figures Site Location 1 Deschutes County Tract: Scenario A 5 Deschutes County Tract: Scenario B 7 Deschutes County Tract: Scenario C 9 page 1 Introduction This Concept Plan provides recommended short and long-term direction for management of a 137-acre tract of Deschutes County property managed by the County's Department of Solid Waste (Department). This property is located to the southeast of the City of Bend and directly adjacent to the City's urban growth boundary (UGB). It is bordered on the north by state lands managed by the Oregon Department of State Lands (DSL), on the west by the County's Public Works Department administrative offices and yard, on the southwest by the County's solid waste facilities, and on the east and southeast by rural residential development (Figure 1). m ana • so r lr 'i a Yn+r~ ~oa1' Figure 1. Site Location Planning for the County Tract is being undertaken by the Department to ensure the compatibility of current and future uses of the site with those being planned by DSL on the adjacent Stevens Road Tract, as well as with other surrounding uses. DSL is updating a 1997 master plan for the 640-acre Stevens Road Tract directly to the north to reflect current conditions and expected future trends in the area, including demand for specific land uses; DSL goals to enhance the Common School Fund; and City objectives to meet future community needs. DSL also is evaluating the feasibility of bringing the Stevens Road property into the Bend UGB. DSL envisions development of a "complete community" on this site, with opportunities for residents to live, work, shop and play in the same area, reducing transportation and other public facility needs. This overall approach to a self-sustaining development will be coupled with sustainable development design and construction techniques to create a unique neighborhood within the City. Site Description The County Tract is undeveloped, with current uses limited to hiking and horseback riding. The property is relatively landlocked and there are no developed external access points and no formal road or trail systems. Most users access the site from DSUs Stevens Road Tract or from McGilvary Road to the east. County staff has ready access from the Public Works Department yards via informal roads. There are no known sensitive environmental or cultural resources present. The property is zoned Exclusive Farm Use (EFU) by Deschutes County and is within an area being evaluated by the City of Bend for expansion of its UGB and designation of urban reserves. Deschutes County Tract Master Plan ■ Department of Solid Waste April, 2007 page 2 The solid waste transfer station and facilities on adjacent properties are expected to be in operation for the longterm and the County Public Works Department has indicated that it has adequate land within its adjacent properties to meet future needs, including future landfill and transfer station needs. Specifically, the County landfill is expected to have a capacity of about 20 more years. Opportunities & Constraints Through consultation with Department staff and other state and local agencies, the following opportunities and constraints have been identified for consideration in conceptual planning for the County Tract. Opportunities •S A single, large, vacant parcel, with no known environmental constraints. Taken together, the Department and DSL tracts represent over 775 acres of undeveloped land, with relatively few environmental constraints. ❖ Ability to help meet the needs of future residents of the Stevens Road Tract and the surrounding area for schools, parks, open space, and other community facilities. ❖ Opportunity to buffer future urban uses on the DSL property to the north from existing and future operations at the County's solid waste facilities. ❖ A location directly adjacent to the City's existing UGB and in close proximity to existing developed areas. ❖ Access to existing sewer and water lines. ❖ Relatively flat topography and views of the Cascades to the west and other mountains to the south. Constraints ❖ Presence of collapsed lava tubes on a portion of the site. ❖ Natural gas transmission line that separates the property from County-owned land to the west. d• Current and future use of adjacent County property for solid waste disposal and transfer operations. Lack of developed access. Concept Plan Purpose of the Concept Plan The County has undertaken conceptual planning for this site in conjunction with planning for the Stevens Road Tract to the north to ensure the compatibility of current and future uses on its property with future uses on the southern portion of the DSL property. The purpose of this Concept Plan is to identify and assess recommended short and long-term uses of the County property. In addition, the Plan includes recommendations on: Pros and cons of inclusion in the City of Bend UGB; Deschutes County Tract Master Plan ■ Department of Solid Waste April, 2007 page 3 ❖ Disposition of Tax Lot 100; ❖ Continued County ownership; ❖ Zoning in the context of the recommended Concept Plan; and •3 Access. Concept Planning Process In preparing this Concept Plan, the County and their consultants (Cogan Owens Cogan, SERA Architects and Century West Engineers), conducted the following activities: ❖ Reviewed the existing Stevens Road Tract master plan and other relevant materials, including planning, land use, park, transportation and planning documents prepared by the City of Bend, Deschutes County, the Oregon Department of Environmental Quality (DEQ) and the Bend Metro Park and Recreation District (BMPR). ❖ Convened a meeting of state and local agency representatives to discuss future land needs, opportunities and constraints associated with the County and Stevens Road tracts in June, 2005. to discuss specific topics raised during the November 8 meeting. ❖ Monitored Bend's residential land needs study and UGB amendment process. ❖ Prepared this Concept Plan, incorporating the results of all previous tasks. As noted above, a variety of state and local agencies have been involved in the concept planning process, including: Deschutes County - Road Department, Department of Community Development, Department of Solid Waste; Bend Long Range Planning; Oregon Department of State Lands; Oregon Water Resources Department; Oregon Department of Land Conservation and Development; Oregon Department of Environmental Quality; Oregon Department of Housing and Community Services; Bend Metro Parks and Recreation District; and Bend-La Pine School District. Specific interest groups participating include Bend Little League and the Humane Society of Central Oregon. Design Principles & Objectives The following design principles and objectives have been applied in preparation of this Concept Plan: ❖ Conducted follow-up meetings with County and City officials to discuss plans to accommodate future growth in the Bend area. ❖ Prepared preliminary design concepts and reviewed and refined them in consultation with County and DSL staff, including a design charrette conducted on September 14, 2005 ❖ Conducted and summarized a meeting on November 8, 2005 with state and local agency representatives to further review, discuss and refine preliminary design concepts. ❖ Followed up with agency representatives ❖ Buffer ongoing operations at the County's solid waste facilities from future urban uses on the Stevens Road Tract. ❖ Provide a mix of land uses that is integrated and compatible with those proposed for the Stevens Road Tract. ❖ Ensure that future development is consistent and integrated with overall goals for community- wide growth and development. ❖ Helpmeet short and long-term community needs and objectives for public facilities, recreation, and economic development. Deschutes CountyTract Master Plan ■ Department of Solid Waste April, 2007 page 4 ❖ Coordinate with DSL on opportunities to generate power from alternative sources. Incorporate sustainable development and design principles and practices. Concept Plan In planning for the County Tract, it is recognized that both short and long-term uses are highly dependent upon: (1) development of the Stevens Road Tract; and (2) inclusion of the County Tract within the Bend UGB in the short-term, i.e., as part of the City's current UGB amendment process. Consequently, this proposed Concept Plan includes several scenarios: ❖ Scenario A: Neither the Stevens Road Tract nor the County Tract is brought into the UGB. ❖ Scenario B: The Stevens Road Tract is brought into the UGB but the County Tract is not. ❖ Scenario C: Both the County Tract and the Stevens Road Tract are brought into the UGB. Scenario A In this scenario, neither the Stevens Road nor County tracts I' (II are brought into the UGB in the short term. Based upon the assumption that the County Tract remains outside the UGB, only a limited number of (non-urban) uses can be accommodated based on County zoning (EFU) and state planning requirements. In this scenario, the Tract would continue to be used as passive open space, with uses limited to the current hiking and horseback riding. Scenario B This scenario assumes that urban development occurs on the Stevens Road Tract, but that the County Tract is not brought into the UGB at this time. Proposed Concept Plan elements are predicated on land uses that complement Stevens Road Tract development and serve as a buffer to that development. They include: Community Park A community park of approximately 25 acres in size is proposed on the northern portion of the County-owned property. This park would border the Stevens Road Tract and serve as a buffer between the County's solid waste facilities and long-term urban development of the Stevens Road Tract. The community park could have a broad range of facilities and uses, possibly including but not limited to playing fields, picnic shelters, paths and walkways, play equipment, and natural areas or open space. Location, design and development of this and other parks would be consistent with BMPR goals, policies and identified facility needs. The community park would help meet developed - recreation needs resulting both from Stevens Road development and other development in the southeastern portion of the g= , = Bend metro area. The park should be sited for long-term co- location with a high school (see 1 Scenario C) to serve the DSL ' - and County-owned properties, as well as the larger surrounding area. In addition, the park should be located to avoid potential impacts on surrounding properties from lighting or other activities. Deschutes County Tract Master Plan ■ Department of Solid Waste April, 2007 page 5 Deschutes CountyTract Master Plan ■ Department of Solid Waste April, 2007 Figure 2. Deschutes County Tract: Scenario A page 6 Trails and Open Space The majority (at least half) of the County Tract would be expected to remain passive open space. A limited trail system is proposed in conjunction with park development, with connections to the trail system wastewater. A "living machine" would use biological processes to treat wastewater produced on the Stevens Road and County properties. Such on-site processing would reduce demand on the City's sewer system. developed for the western portion of the Stevens Road Tract. The key feature of the trail system would Transportation and Site Access be a diagonal north/south trail along the GTN gas transmission line that would provide connections to the proposed community park, to trails and open space within the Stevens Road Tract, and to the middle school Creation of a community park in particular will necessitate development of road access across the northern portion of the County Tract. Options include a west-east extension of and Snowline Park located west of 27th Street. In the longterm, it also would link these areas to a new high school proposed for the County Tract (Scenario C). Energy Production The Stevens Road Tract Master Plan proposes development of solar or other alternative energy production on a portion of that site along its southern boundary (directly north of the Public Works Department). Production facilities could be expanded from the DSL site to incorporate portions of the County property. There also may be opportunities for a joint venture between the County and DSL to generate energy from alternative sources and/or generation of methane on the County site. A significant amount of energy could be produced within a relatively modest area and used to support other proposed development. Living Machine Demonstration Site_ During preparation of the Stevens Road Tract Master Plan, DSL and County representatives identified the potential for a "living machine" demonstration project to process storm water and possibly Ferguson Road and/or a new east-west connector from Ward Road. Development of north- south road access through the southern half (open space portion) of the Tract is not envisioned. Public Facilities and Services In addition to the transportation facilities described above, water, wastewater and stormwater facilities likely will be required for development of a community park, depending on the nature of amenities created at the park. It is assumed that wastewater treatment will occur on site or through the proposed "living machine." Avion Water Company, a private water supplier, would be the likely supplier of water service. It is assumed that Avion would be able to serve the park through a booster pump station and a new transmission line. Alternatively, the City of Bend could provide water service if it were to successfully negotiate a transfer of service areas with Avion. It is also assumed that stormwater would be treated onsite through the use of drainage swales, ponds, filters, and drywells. Adequate facilities are available to provide electrical power, gas and telephone service. Deschutes County Tract Master Plan ■ Department of Solid Waste April, 2007 page 7 ~•k'?' „ mn,inmrro~.o.v r'' ~ 1 ct«ec ~-1 I I:lacel {atfal ~`MK 1..1.. . ' I11'wwil' cC-- ~1e0?yvaW I &~cY L*bIVT Sot DI-4v <<"stw..I(.K .Af{O.,D4 YLY t r • - 1 i A ~•;R l•!W~NY7'PF'6!t ~ dM•ki1~1 MrM/ • 1 r I iRAta5S'DHi,4THJ~t " ' ft _W" E x Figure 3. Deschutes County Tract: Scenario B f M DN' Deschutes CountyTract Master Plan ■ Department of Solid Waste April, 2007 page 8 Scenario C Inclusion within the UGB allows for a broader range of uses to be considered for the County Tract. In the long-term, urban uses could include light industrial, institutional or other uses. Additional transportation facilities likely would be needed to connect this site to provide internally and to adjacent properties to the north and west. Scenario C includes all of the facilities described above for Scenario B, as well as the following additional elements: High School A high school is proposed for co-location with the community park. It would serve the residential uses proposed for the Stevens Road Tract, as well as the larger surrounding area. An additional approximately 20 - 25 acres are proposed for school facilities, with athletic facilities co-located on the park site. Light Industrial Light industrial or small office uses could be sited in the southeastern quadrant of the Tract (to the south of the high school and community park), both to buffer solid waste facilities further to the south and to provide employment opportunities in the long term. Approximately 30 - 40 acres would be devoted to employment uses. This could translate to approximately 450 -1,200 jobs, assuming 15 - 30 jobs per acre (average employment density for light industrial and small office commercial employment). Such industrial or commercial uses could generate tax revenues to the County to help offset the effects of other non-tax generating uses. Among the light industrial opportunities to explore are: ❖ Relocation of ODOT's Bend maintenance facility to this site, possibly near the existing Road Department facility. ❖ The Oregon Fish and Wildlife Department may need additional land for equipment storage and related uses. The County Tract could be a candidate for these types of uses in the future. Trails and Open Space The trails system would be similar to that in Scenario B, except that there would be additional trail connections to the high school site from the open space/trails system on the eastern half of the Stevens Road Tract and from the community park. Open space needs would be met through the community park and "living machine" site. In this scenario, the southeastern quadrant would be developed for light industrial uses, with smaller open spaces serving as a buffer to ongoing solid waste disposal activities. Transportation and Site Access As in Scenario B, a new access road across the northern portion of the County Tract would be needed to access the proposed high school and community park. In addition, north-south circulation through the site and connections to Ward and McGilvray roads would be needed in conjunction with light industrial development. Public Facilities and Services In addition to the transportation facilities described above, the proposed development scenario would require construction of water, wastewater and stormwater facilities on site, as well as improvements to storage and distribution facilities off-site. Additional sewer infrastructure will be required before the high school and light industrial development can take place. As an alternative to construction of or use of a new trunkline to the site, it may be possible to provide wastewater service through the proposed "Living Machine." Deschutes GountyTract Master Plan ■ Department of Solid Waste April, 2007 page 9 J ~r jz j Gars Ads Waa10w~ ` % ~ • . . ' f I ~ 1Gpi ktrod w IIEGENC • _ ~ r I iANDVS4'. K~ariFoOMtr i ~ k;.. { 1 6'cn,t~un ty PrF.i ~ J, Dow OrrweoR 1. upt0"www tra F-, , , a rc.« 'O.aKtCOMoaasa 1 i t 'I kkW. SNP vomtj 06A. N~tw Cn'+ro!R 4voann~p.r EuagY i~iil tiAMM , I 1 h no#woaMawslb® ~ • i. UbitYe:9¢%G'J.PfP iTayrtSE Mtvt _ ~ TitB!rti6~!*+!nt{{~y ~ r, r a~ !krr tc* S&ssn Figure 4. Deschutes County Tract: Scenario C r~ Deschutes County Tract Master Plan ■ Department of Solid Waste April, 2007 page 10 Avion Water Company would be the likely supplier of water service for the site unless the City of Bend were to negotiate assumption of service as described previously. Proposed high school and light industrial development would require several improvements to Avion's system, including a new reservoir and pumping facility, a booster pump station and anew transmission line. Depending on the types of improvements made to the City's system to accommodate development in other areas, development of this site also could necessitate improvements to the City's system if it were to provide service. The primary means for treatment and disposal of stormwater in Bend is onsite disposal through the use of drainage swales, ponds, filters, and drywells. Drywells may be installed for disposal of roof drainage, and may be used in residential areas and open spaces. In all other areas, the preferred methods for site drainage are ponds, swales, and filters, eco-roofs, porous pavement and other sustainable stormwater treatment techniques. (further south) from potential impacts related to development of the Stevens Road Tract and to ensure compatibility between the Stevens Road Tract and the adjacent County property. Those goals can be readily met through the types of land uses proposed in this Concept Plan, irrespective of the property's inclusion or exclusion within the UGB. The open space, park, school and light industrial uses proposed would be expected to be adequate buffers to ongoing operation of landfill, transfer station, and other public works operations. The key factors affecting whether or not to pursue UGB inclusion are (1) the level of revenues to be generated from use of the Tract; (2) the desirability to locate public uses (e.g., school, park, and open space) on public property; and (3) the potential likelihood of inclusion, given preliminary progress on the UGB alternatives evaluation. Arguments for inclusion within the UGB include: + Inclusion within the UGB allows for consideration Adequate facilities are available to provide electrical power, gas, telephone and cable television service to the Tract. Recommendations In addition to developing a recommended Concept Plan, the County's consultants were asked to provide recommendations on several specific questions. Pros and Cons of UGB Inclusion In considering the question of whether to pursue inclusion of the County Tract within the Bend UGB, Department staff indicated that the County's primary goals for its property are to buffer the County landfill of a broader range of land uses. ❖ Inclusion of both the DSL and County properties within the UGB presents a unique opportunity for over 750 acres of planned development to respond to a variety of long and short-term community needs for housing, employment, open space, developed recreation, and public facilities. While either of the two sites can be independently developed, combined they represent a greater opportunity to respond to these needs in a coordinated and cost-effective manner. ❖ Inclusion within the UGB provides an opportunity for light industrial and other compatible land uses to help offset the loss of tax revenues Deschutes County Tract Master Plan ■ Department of Solid Waste April, 2007 page 11 resulting from the public uses proposed in this Concept Plan. assessing the feasibility of leasing or selling its Stevens Road Tract to a private developer, taking a role as master developer, and other options. Arguments against pursuing inclusion of the County Tract within the UGB in the short and medium terms include: ❖ While adding the County property to those sites under consideration for UGB inclusion on Bend's southeast quadrant would create certain efficiencies of scale, it would also increase the competition for the limited amount of land expected to be included. ❖ Depending upon Bend's long-term land use needs, urban uses, such as light industrial, could compete or conflict with the siting of such uses on DSL property. ❖ The County, as a decision-maker in the UGB amendment process, could be perceived by private property owners to have an unfair advantage. Disposition of Tax Lot 100 (i.e., Should Solid Waste and Public Works be on Separate Tax Lots?) From a Concept Planning perspective, it is immaterial whether Tax Lot 100 is divided to separate the solid waste facilities and Public Works administrative offices/yard from its undeveloped portions. From a long-term administrative perspective, such a separation is recommended. Continued County Ownership Prior to inclusion of the County Tract within the UGB, there is no obvious reason to dispose of the property. However, if the County and Stevens Road tracts are included in the UGB, it is recommended that a decision to retain or dispose of the property be made in conjunction with DSL. DSL will be Applying a common approach to the County and state properties could result in a number of efficiencies and cost savings. It is also recommended that those portions of the site proposed for school and park uses be sold or traded to the school and park districts, respectively. Recommended Zoning Zoning will be contingent upon UGB inclusion and will need to reflect the land uses pursued. In the short term (until such time as UGB inclusion), the current EFU zoning adequately reflects the recommended land uses. With UGB inclusion, rezoning pursuant to the City's standards and process will be required to accommodate proposed land uses. For example, Public Special District zoning will be needed for the proposed community park and high school; Light Industrial zoning will be needed for the proposed light industrial/small office uses. Access Improvements to non-vehicular access would be provided through the proposed trails and open space. Proposed transportation system improvements include road extensions across the northern portion of the Tract and north-south connections through the eastern portion to serve light industrial uses. These improvements will need to be designed to avoid or minimize conflicts with ongoing use of adjacent County property for solid waste disposal and transfer operations. Deschutes GountyTract Master Plan ■ Department of Solid Waste April, 2007 O l Y CD CD 13 N FI Bend Urban Area Proposed General Plan Map 12/12/2008 O PA 11 Q 6 I I Master Plan Area 3 4 Area 1 Commercial 42 Industrial 21 Residential 451 TOTAL 514 Area 2 Commercial 24 Industrial 26 Residential 270 Surface Mining 280 TOTAL 600 Area 3 Commercial 20 Industrial 55 Residential 218 TOTAL 293 Area 4 Commercial 31 Industrial 31 Residential 338 TOTAL 400 Area 5 Commercial 226 Industrial 57 Residential 67 TOTAL 350 Area 6 Commercial 13 Residential 136 TOTAL 149 (These areas are anticipated to be master planned and would provide a relative mix of uses as depicted in the tables below. The numbers represent approximate gross available acres for each use. Acres listed as Residential may include commercial convenience, institutional, and additional schools, parks,or public facilities uses.) Q 5 6 H 0 BACK mi 1 0.5 0 1 2 Miles Map prepared by the City of Bend, 12/12/2008. General Plan Designation Urban Reserve Residential Urban Reserve Commercial - Urban Reserve Industrial Surface Mining - Public Facilities Q Existing UGB Park Site Q Proposed UGB (Alt 4A) School Site * In additional to residential uses, Urban Reserve Residential may include commercial convenience uses, institutional uses, and additional schools, parks, or other public facility uses. RD R LIZ FANCHEIR, ArroRNEY Liz Fancher Sue Stinson, Paralegal September 24, 2012 BOARD OF COUNTY COMMISSIONERS DESCHUTES COUNTY 1300 NW WALL STREET, SUITE 200 BEND, OREGON 97701 Re: PA-11-7 and ZC-11-2; Plan Amendment and Zone Change for Department of State Lands I am writing to submit comments in the record for the above-referenced land use application on behalf of Newland Real Estate Group, LLC and NNP IV- NCR, LLC (referred to, collectively, as "Newland"). Former Landfill A significant part of the DSL property was used as a dump by Deschutes County. DSL's environmental consultant determined that environmental hazards exist at the site and determined that these hazards should be remediated before the land is used as proposed by DSL's master plan. This fact should have been considered by the hearings officer when determining whether the change of zoning proposed by DSL will meet the purpose of the MUA zoning district to provide for rural residential development as it was raised by Newland and is relevant to making a finding of compliance with DCC 18.136.020(B). Newland submitted a DSL-commissioned Initial Site Assessment prepared in April 2009. The assessment shows that the DSL property contains asbestos that may make the site hazardous to future residents. According to the DSL summary of the report attached as Exhibit A of this letter, "[s]uspected asbestos containing material (ACM) was observed in about half of the test pits at depths as shallow as 2.5 feet." The summary concludes that "[t]he presence of asbestos in several tests [sic] pit locations is a long-term risk if the material is disturbed or reaches the surface where it can deteriorate and small particles become airborne. The [asbestos] material was found at a shallow depth and is considered a potential direct exposure concern. Additional measures will be required to insure this material is not disturbed." The DSL summary of the Initial Site Assessment also states that "[t]he most likely current and future potential exposure concerns are direct contact (ingestion, inhalation, dermal) with the contaminants [found in the landfill]." Two samples contained contaminants that "could exceed a long-term risk level under the most conservative assumption. These are likely to be handled by removal of the debris in specific locations, use of engineering controls or placing conditions on 644 NW BROADWAY STREET BEND, OREGON • 97701 PHONE: 541-385-3067 FAX: 541-385-3076 -2- September 24, 2012 future development." None of these actions has been undertaken or required as a condition of approval of the plan amendment and zone change. The summary says that its environmental expert recommended debris removal from areas that would be developed with roads and buildings and that DSL should obtain "approval from the Department of Environmental Quality (DEQ) that the remaining debris does not pose a long-term risk to human health or the environment for the future anticipated uses of the Tract." Deschutes County should withhold approval of a rural residential plan designation and zone until DEQ determines that the debris on the site does not pose a long-term risk to human health or to the environment. Rural Residential Plan Designation/Administrative Rules Newland agrees with the County's hearings officer that if the DSL land is found to be nonagricultural land, that a plan designation other than "Agriculture" may be applied to the property. Newland believes, however, that the County should adopt and apply a nonagricultural plan designation. If Deschutes County approves the DSL application, Newland believes it must or should resolve the following issues: 1. May the "Rural Residential Exceptions Area" plan designation (RREA) be applied to land to nonagricultural land that does not qualify as an exceptions area? Comment: Newland asks Deschutes County to adopt a nonagricultural land plan designation and, if appropriate, apply it to the DSL property. Different State laws and rules apply to Rural Residential Exceptions Areas and to nonagricultural lands. The use of a single label will create confusion and may result in misapplication of the law. 2. If so, what provisions of the Deschutes County comprehensive plan and State law allow Deschutes County to apply an RREA plan designation to land that is not an RREA? Comment: The legal basis for the hearings officer's determination that an RREA plan designation may be applied to nonagricultural land that is not in an RREA is that hearings officer Karen Green approved a similar application in 2007 in PA-07-1 (Pagel). Since 2007, Deschutes County has adopted a new comprehensive plan. The Pagel decision, therefore, fails to address the question whether such an action is permitted by the current and applicable version of the Deschutes County comprehensive plan or by State law. That question must be answered correctly and in DSL's favor in order for the County to approve the DSL application. 3. Does Deschutes County Comprehensive Plan Policy 2.2.4 which directs the county to "[d]evelop comprehensive policy criteria and code to provide clarity on when and how EFU parcels be converted to other designations" require that Deschutes County undertake -3- September 24, 2012 that effort prior to applying and changing the zoning and plan designation of the DSL property based on a land classification not contained in its comprehensive plan? Comment: The hearings officer's answer to this question was based on the Pagel decision. The Pagel decision is not determinative because it is based on a repealed version of the Deschutes County comprehensive plan. The County must find a basis in the current comprehensive plan to answer this question. 4. May Deschutes County apply an RREA plan designation to nonagricultural land in face of the statement in Section 3.3 Rural Housing of the comprehensive plan that "[a]s of 2010 any new Rural Residential Exception Areas need to be justified through taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR" despite the fact that no such exception is being taken by DSL? Comment: The hearings officer found that Section 3.3 is a plan policy. The hearings found that the language of the policy is limited to conversions of agricultural land to rural residential lands. The DSL property is being converted from an Agricultural land plan designation to a RREA designation. 5. Is it appropriate to limit the scope of Section 3.3 Rural Housing to "conversions" of farm and forest land despite the fact that there is no language in Section 3.3, quoted above, that supports that limitation? What part of the comprehensive plan supports that reading? Comment: The plan language says it applies to "aM new Rural Residential Exceptions Area." DSL is requesting a new RREA designation. 6. Is the hearings officer correct that OAR 660-004-0040(7)(i)(A) is inapplicable to a request to apply an exceptions area plan designation to land that is nonagricultural land? If land is found to be nonagricultural, does that fact make all limits on the development of rural residential exceptions areas inapplicable even though the land is a plan-designated RREA? Comment: The hearings officer says that the administrative rules that apply to RREAs will not apply to the DSL property even though it will be designated as being a RREA. Does the Board agree? How can land be classified an RREA and not be subject to the rules that apply to these areas? Won't this create confusion in future land use applications as most persons would believe that the area is an exceptions area because it has that plan designation? 7. If State laws and regulations that apply to RREAs apply, does the MUA-10 zoning district assure compliance with those rules including OAR 660-004-0040(7)(i)(A) that requires that any zoning district applied to land in a new RREA limit lot sizes to a 10-acre minimum? -4- September 24, 2012 Comment: The MUA-10 zone allows lots as small as 2 acres and an average density of about one dwelling per five acres)? State law requires that new rural residential exceptions areas impose a minimum lot size of ten acres. 8. The hearings officer's decision does not discuss the conditions of approval that DSL said would be applied to its property and that DSL argued help establish compliance with relevant approval criteria. Will the Board of Commissioners be applying these conditions? If so, what will be required and it will the conditions adequately respond to issues raised in the course of the hearing. Soils Analysis The hearings officer erred in finding that NRCS soils survey and its interpretation by County staff and DSL staff shows that the DSL property is nonagricultural land comprised of at least 50% Land Capability Class 7 and 8 soils. The soils surveys show that the area of the DSL property being rezoned is at least 50% Class VI soils when not irrigated. As a result, it does not support approval of the application. The record contains two maps that show the NRCS soils classifications for the DSL property proposed for rezoning. They are: • April 9, 2012 map entitled "Steven Road Tract" prepared by Dan Antonson of DSL • March 16, 2012 map obtained from the Web Soil Survey by Newland Deschutes County staff also made assertions about the NRCS soil types found on the DSL property. In all cases, the data shows that about 55% of the DSL property is comprised of 38B Deschutes-Gosney complex soil. The correct land capability class (LCC) of all land mapped 38B soil is Class 6. When a soil is a complex, the rating of the predominant soil type is the correct class of all areas mapped with the same soil type (38B). See Exhibit B.' DSL's land use application followed the same approach when addressing the Deschutes Gosney complex soil identified by its soils expert.2 All land mapped Deschutes Gosney complex was rated Class 6. In addition, this is how DSL's soils expert addressed the issue on Table 2 of the Sage West, LLC report (page 8 of Soil Investigation for Stevens Road Tract). According to Goal 3, Class 6 soil is agricultural soil. Soil of this type should be designated Agriculture on the comprehensive plan and zoned EFU. ' Exhibit B is e-mail correspondence between Newland's attorney and Roger Borine of Sage West, LLC, a certified soils examiner. 2On page 7, the DSL application discusses the soil classes found on the DSL property by the Sage West, LLC Soils Investigation Report. The table on page 7 and the narrative shows that all of the Deschutes-Gosney complex soil was given an LCC 6 rating. This is the rating of the predominant Deschutes soil that is a part of this complex. The Gosney part of the complex is a Class 7 soil but is given an LLC rating of Class 6 because Deschutes is the predominant soil in the complex. -5- September 24, 2012 County staff and the hearings officer erred in concluding that NRCS data shows that the soils are not agricultural soils because both misinterpreted the data provided by the NRCS soils survey. Staff failed to apply the predominant soil type to all soils found in a soils "complex" (a soil type with a mix of soil types) as would be done by a soils professional. This fact is evident from the information submitted to the County by "staff." See Exhibit C. Instead, the County applied the Class 6 rating to just half of the land mapped 38B resulting in reaching the erroneous conclusion that less than one half of the DSL property contains soils rated Class 6 by the NRCS. Finally, the hearings officer erred in finding that the analysis of soils contained in the DSL application supported the conclusion that 50% of the DSL land being rezoned consists of soils classified Class 7. The DSL application relied on the Sage West, LLC soils analysis and a July 26, 2011 analysis by Sage West, LLC. The soils reviews provide information that is different than that provided by the NRCS maps as explained in prior submittals by Newland. A soils study of this type cannot be relied on by the County because it has not been reviewed and approved by LCDC, as required by State law. This position is fully supported in materials filed with the County during the hearings officer's review. Issues Not Addressed by Hearings Officer The hearings officer failed to address all issues raised by Newland, including issues related to the DSL traffic impact analysis. Newland request that Deschutes County address all issues it raised below in the County's final decision in this matter. Thank you for your anticipated consideration of these issues. Sincerely, Liz Fancher Attorney for Newland Enc. - 3 Oregon Department of State Lands Stevens Road Tract Initial Site Assessment of Abandoned Landfill Area Summary Information Stevens Road Tract is a Common School Fund Asset The 640-acre Stevens Road Tract is an asset of the Common School Fund managed by the Department of State Lands (DSL) to produce revenue from urban development from its sale or lease. The Fund is a trust created at statehood to support Oregon's K-12 schools. The Tract lies partially within the Bend city limits (12 acres) but is mostly adjacent to and outside the city limits. It was acquired by DSL from the Bureau of Land Management (BLM) in 1997 to partially fulfill the federal government's obligation of additional acreage due to the state since statehood. Before DSL's acquisition, the BLM leased a 40-acre tract on the southwestern quadrant of the property to Deschutes County for a landfill and sewage disposal site from the mid-1950s to 1972. The actual area of use for the landfill was approximately 20 acres and the sewage disposal area was about 1.5 acres. In 1972 and in accordance with all applicable regulations, the landfill was officially closed. The Landfill Studv DSL hired a Bend-area environmental consultant to perform an °Initial Site Assessment" (ISA) with the following objectives: • Provide an assessment of the location and extent of landfill and sludge waste. • Assess the landfill debris and adjacent soil for environmental contaminants. • Monitor soil gas in the landfill area for the presence of landfill gas vapors. • Evaluate the results based on the potential future use of the property. • Provide recommendations regarding current uses and future development of the site. The assessment was conducted by PBS Engineering + Environmental (PBS) during December 2008 and January 2009. Surface geophysical, subsurface exploration and gas vapor monitoring techniques were utilized to characterize the nature and extent of waste debris. All work was coordinated with DSL and the Deschutes County Solid Waste Department, who provided labor and equipment assistance with the project. Geophysical Survey The magnetic and seismic surveys provided an initial approximation of the size and depth of the landfill debris. Areas interpreted as having debris present also had grassy areas with less developed vegetation. Surveys were conducted over the EXHIBIT A disturbed areas of the site to estimate the limits of the disposal area and debris thickness. Subsurface Exploration Forty-five test pits were excavated. Debris was found as shallow as one foot below ground surface and to depths of 4 to greater than17 feet. The landfill material was mostly household and building debris, with lesser amounts of automotive-related and ranching-related debris. The condition of the waste material suggested very little leaching (by precipitation) or degradation of the material had occurred since it was buried over 35 years ago. The locations of the reported sewage disposal areas could not be definitely confirmed during the investigation. Fifty-eight (58) soil samples were field screened; the only field detections were minor. Forty-three (43) soil samples were collected for laboratory analysis; samples were from above and below the landfill debris. Nine samples detected total petroleum hydrocarbons (TPH). A few selected samples detected the following contaminants: polynuclear aromatic hydrocarbons (PAHs), trace metals, and polychlorinated biphenyls (PCBs). No volatile organic compounds (VOCs) or organochlorine pesticides (OCPs) were detected in any of the soil samples. Suspected asbestos-containing material (ACM) was observed in about half of the test pits at depths as shallow as 2.5 feet. Bulk samples of various types of building materials identified asbestos containing material (ACM) in sheet floor coverings, cement asbestos board (CAB), felt paper insulation, air cell insulation, thermal board liner and roofing material. Landfill Gas Monitoring Five landfill gas vapor probes were installed within the landfill debris area and were monitored weekly for a period of four consecutive weeks. No significant measurable accumulations of methane were detected in any of the probes or at the entrances of the four 'caves' within the landfill debris area. Evaluation of Results A conceptual site model was generated that identifies the current land uses and those planned in the future including residential, occupational and recreational land use scenarios. Groundwater near the Tract is greater than 500 feet deep and used for drinking water. The significant depth to groundwater, minimal leaching potential, and the lack of evidence of industrial and septic waste encountered in the debris area, suggest groundwater is unlikely to be impacted by the landfill debris. Furthermore, a private community water supply is available to the surrounding area and would likely be used for drinking water when the Tract is developed instead of using many individual wells. The most likely current and future potential exposure concerns are direct contact (ingestion, inhalation, dermal) with the contaminants. Results Show Low Risk: Asbestos May Be a Long-Term Concern Considering the likely future land uses with the test results, only two individual samples contained contaminants that could exceed a long-term risk level under the most conservative assumptions. These are likely to be handled by removal of the debris in specific locations, use of engineering controls or placing conditions on future development. The presence of asbestos in several tests pit locations is a long-term risk if the material is disturbed or reaches the surface where it can deteriorate and small particles become airborne. The material was found at a shallow depth and is considered a potential direct exposure concern. Additional measures will be required to insure this material is not disturbed. Recommendations Short Term: Under the current uses of the site, PBS recommends: • Place additional soil cover in areas where there is minimal cover over the debris • Conduct periodic monitoring of the landfill debris area for the presence of visible asbestos material to verify this material is not present at the surface. • Conduct additional monitoring of the gas vapor probes to verify the initial results. • Restrict access to caves in the landfill area to minimize direct contact with debris and potential physical safety issues. Long Term: Considering the conceptual master plan for the site, PBS recommends: • Perform a cost-benefit analysis of removing debris compared with designing, implementing and monitoring long-term engineering and institutional controls. • Develop and implement a plan to remove debris from areas that will be redeveloped with load bearing structures (i.e roadways, buildings). • Obtain approval from Department of Environmental Quality (DEQ) that the remaining debris does not pose a long-term risk to human health or the environment for the future anticipated uses of the Tract. • Obtain authorization from DEQ to implement any engineering or institutional controls to maintain protective conditions over the Tract's remaining landfill area. For more information, please contact Nancy Pustis, Eastern Region Manager, (541) 388-6112 or Clara Taylor, Project Manager (503) 886-5276. Liz Fancher From: Roger Borine [rborine@bendbroadband.com] Sent: Friday, August 31, 2012 10:47 AM To: Liz Fancher Cc: mruby@newlandco.com Subject: RE: Interpretation of NRCS Soil Type Ratings EXHIBIT B Attachments: NIRR_LCC.pdf; IRR_LCCpdf.pdf Liz, Note my brief answers to the questions in your text. Now an explanation: A soil mapping unit is defined as a phase of a soil series + inclusions. Ex. Deskamp (series) loamy sand, 0-3% slopes (phase) plus inclusions of Gosney equals the map unit. A soil phase is assigned a LCC. The mapping unit is assigned a LCC based on the dominant component of the mapping unit. A map unit is a polygon on the landscape and within that polygon you should expect to find approximately what the MU description states throughout the extent of the soil survey in a recurring pattern at the scale of mapping (defined in the soil survey's MOU at the planning stage). The Deschutes survey was 1:24,000 and the same as a USGS quad. When you try to interpret at a different scale (larger) and a different landform (tax lot) the accuracy is reduced. From the NCR report: "Soil Surveys seldom contain detailed site specific information and are not designed to be used as primary regulatory tools in permitting or citing decisions, but may be used as reference sources. NRCS maps soils at the landscape level. Land use issues in Oregon are addressed by tax lots. Consequently, NRCS soil maps may be perfectly correct at the landscape level while a tax lot may be, in part or entirely, a contrasting inclusion. An Order 1 soil survey is prudent to accurately define soils, mapping units, and miscellaneous areas and accurately locate their boundaries." The perplexing problem is that DLCD considers a detailed evaluation a "challenge" to the survey, when in fact it is a new survey based upon a different scale and landscape (tax lot). They are not using the survey as designed. DLCD and the counties are now entering into an arena of trying to separate LCC 6 vs LCC 7 soils in a complex for land use decisions at the 1:24 scale without more detailed on-site work. In the 58C mapping unit you have a complex and in the MU description each component has a LCC assigned. Unfortunately, there used to be a LCC assigned to the MU in the description, no longer. However, (see attached) are the printed maps from the web soil survey for non-irrigated and irrigated LCC for NCR and you will see the dominant component is the assigned LCC for the MU. When discussing, "based on NRCS mapping only" this information will hold true. I hope this helps, don't hesitate to ask. Roger From: Liz Fancher [mailto:Liz(?Dlizfancher.coml Sent: Thursday, August 30, 2012 8:55 AM To: Roger Borine Cc: mrubyCabnewlandco.com Subject: Interpretation of NRCS Soil Type Ratings Roger I am writing to ask how soils scientist classify soils, based on NRCS mapping only, when the soil is a complex. It has been my understanding that the LCC (soil class) for a soil is set by its predominant soil type when NRCS maps are used to determine the percentage of a property that fits within a soil classification. Is that correct? YES Is the 58C Gosney-Rock outcrop-Deskamp complex soil is an LCC Class 7 soil because 50% of the soil is listed as Gosney and rock outcrop is 25% and Deskamp 20%? YES Or, must I calculate the approximate amount of the area mapped as LCC Class 6 Deskamp and to determine the percentage of the property that is Class VI? NO In other words, is it correct for me to say that 57.4% of the property is LCC Soil Class 6 if I am referring to data derived from the NRCS map YES or should 20% of the area mapped Soil Type 58C be assumed to be Class 6 soil and be added to the 57.4% LCC 6 soils to determine what percent of the property belongs in LCC 6? NO Would the answer change if the majority of the soil or predominant soil type is Class 6 and the rest is Class 7 and 8? NO Would you be able to break out the Class 7 and 8 soils that constitute less than 50% of the soil complex and say that they are nonagricultural soils that help determine whether land is nonagricultural land NO or would you apply the LCC of the predominant soil type to the entire area mapped as containing the complex? YES Thank you, Liz Fancher 541-385-3067 (telephone) Paul Blikstad From: Sent: To: Subject: Paul, Here are the numbers: 36A - 2.06 Acres, .6% 38B - 203.83 Acres, 56.1% 58C -153.13 Acres, 42.2% 157C - 3.98 Acres, 1.1% Total - 363 Acres Tim Tim Berg Tuesday, March 20, 2012 12:07 PM Paul Blikstad RE: Need a big favor asap EXHIBIT C 34/x" 4~- 3gR." -----Original Message----- From: Paul Blikstad Sent: Tuesday, March 20, 2012 8:54 AM To: Tim Berg Subject: Need a big favor asap Tim, I have a hearing tonight on the DSL PA/ZC applications. I need area calculations for the soil types on 18-12, 1700, 1800 for that portion of these tax lots that extend from the eastern boundary of the underground gas pipeline to the west property line, and also excluding that part of t 1800 that is north of Stevens Road (it's in the VGB). And I need it for tonight's hearing. Paul ~Ft~ G /mss ~ so~'ls 16 G lQ 5 S 38 8 pis _c, lass ~ - 35 G°S ~o alas s 7 G 6os ~y - 5 ~ ~ •ro ~ ru ~ 070 >cs ~ ~~ka~ P ~n GlG`.$6 t*O t,~aNOJa S r ~~`S g dos ~J.q 71.W 3g. ~ g 3d, ~ 2 7q Soil No. Soil type area Class 6 soils Class 7 soils Class 8 soils %Class 7/8 36A 2.06 acres 2.06 acres 0% 38B 203.83 acres 101.91 acres 71.34 acres 35% 58C 153.13 acres 30.62 acres 76.56 acres 38.28 acres 75% 157C 3.98 acres 2.58 acres .79 acre .02% 363 acres 137.17 acres 147.9 acres 39.07 acres 51.5% These calculations do not take into account the "contrasting inclusions, as there is no way to determine what percentages of them there are. As calculated above, more than 50% of the property (exclusive of contrasting inclusions) is class 7 and 8 soils. SubM~~ by SCANNED MAY 2K 2017