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2013-1055-Minutes for Meeting June 03,2013 Recorded 6/28/2013COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS COMMISSIONERS' JOURNAL 111(l)[1111JI1111111IAIIVIn 20 0OU01013 10;34;37 Rn Do not remove this page from original document. Deschutes County Clerk Certificate Page Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JUNE 39 2013 Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; and, for a portion of the meeting, Laurie Craghead, County Counsel; Nick Lelack, Paul Blikstad and Peter Russell, Community Development; Chris Doty, Road Department; Dan Despotopulos, Fair & Expo Center, Anna Johnson, Communications; members of the Fair Board; and approximately a dozen other citizens. Chair Unger opened the meeting at 1:35 p.m. 1. Discussion of the Upcoming Public Hearing on the Alfalfa Cell Tower Appeal. Paul Blikstad gave an overview of the item. He said there are a couple of things in the appeal that staff feels should be determined by the Board. He addressed the search ring, only a few of which are contained within EFU zoned land. The Oregon Department of State Lands owns about 80 acres that might be suitable per the opponents. It does have some topographic differences with higher locations on a pressure ridge, or on the dirt close to Three Mile Road. The applicant has considered other sites with less visual impact, and indicates that they are not suitable. The Hearings Officer feels there needs to be more of a search of alternative sites or for co-location. The applicant submitted a co- location study for other towers. The Hearings Officer found that the applicant did not consider using the electric transmission lines along Elk Lane. He believes they cross through the DSL property. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 1 of 13 Chair Unger asked who they plan to serve with this tower. Mr. Blikstad said local users and travelers along Highway 20. They feel there is a gap in service; however, there may be coverage through other providers. The applicant did not respond adequately to a request to investigate placement on the DSL land, which could be a viable alternative. Negative visual impacts are largely unavoidable and would be experienced by many neighbors. Code and State law require looking at other areas, then EFU land. The applicant feels that if they cannot locate on RR-10 land, is there justification to site on EFU land. The Hearings Officer felt that they should have more adequately investigated RR-10 land opportunities. EFU is the last choice per State law. Regarding the second criterion, it was pointed out by staff that there is not much vegetative screening in the area; mostly topographical. The Hearings Officer said that this has never been a criterion but Mr. Blikstad stated that this has happened when no one complained. There is no real history of interpreting this specific criterion. This is not in State law, just Deschutes County Code, and it is hard to interpret. This criterion has been inconsistently interpreted and applied, and there has never been a Board ruling on this. The wording in the criterion is not consistent, per the Hearings Officer. The screening has to be effective, and it was felt none of it in this area would meaningfully screen the tower. Commissioner DeBone asked if there was a written submittal from the applicant prior to the hearing. Mr. Blikstad said he thought there is one, but it has not yet been received. He expects another submittal and their presence at the hearing. Chair Unger stated in the past they sited towers that are higher than the vegetation on Cline Buttes. Ms. Craghead noted that they need to show the gap in service and then sites where there is no other available property. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 2 of 13 Mr. Blikstad said that when he asked about them not considering the DSL land, he was told it takes much longer to do that process. Moreover, the State might plan to sell it down the road. Commissioner Baney stated that the Board cannot presuppose that they might be able to use DSL land. Ms. Craghead added that they have to have a willing property owner in any case. Commissioner DeBone said that they need to stay focused on the two narrow issues. Mr. Blikstad emphasized that the Board's interpretation will be important. Commissioner Baney agreed that this will not be the last of this kind of application or appeal, so it is important to set it up properly now. 2. Discussion of Tetherow SDC Issues. Chris Doty said the residential portion of the resort feels there should be an exemption to the SDC's for the remaining 400+ units. There is an appeal process, but it does not work well with this kind of request. As far as timeline regarding dual payments and the City of Bend, it is summed up in the staff memo with recommendations. Regarding exempting Tetherow, it would set precedence. There are many such developments and others may feel they should have not been charged (Eagle Crest and Sunriver for example). There was a right time and place to bring this forward, and that was in 2008. They are into five years of implementation. Regarding a point of context, there are bundled SDC requirements of the City's water and sewer infrastructure agreement. It needs to be viewed as the total cost to the City. The original developer probably did not differentiate the systems. There is a variety of ways to serve a development. The Road Department capital programs budget is suffering, and it is important to have viable SDC funding. Chair Unger asked what steps should be taken before the Board meeting. Mr. Doty replied that he can gather more information if needed. If the Resolution is going to be changed, it has to be soon since this is on the Board business meeting of Wednesday, June 5. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 3 of 13 Mr. Anderson noted that this is not a land use issue nor a fee waiver, but an SDC Ordinance. Commissioner Baney stated that they used Sunriver and Eagle Crest as examples, but they are not paying City SDC's. Mr. Doty noted that they made a big investment in development prior to the SDC's, and currently pays them. Commissioner Baney feels this is a very unique situation. Mr. Anderson said that it is tough to absorb this into the land use system. Peter Russell added that they have to look at the overall scope of the system. Commissioner Baney stated that this is a unique situation that requires more than a yes or no. She has seen some suggestions and recognizes that they could have made this case. However, in 2008 things were very different. Mr. Doty said the original agreements were entered into in 2005, with SDC's coming in 2007. Commissioner DeBone stated that this has been out there for a while. Chair Unger noted that if they are in the County, they need to pay County costs. Mr. Doty said they want a 100% discount, and he is proposing 20%. But, this would have to be for everyone to be fair. 3. Joint Meeting with the Fair Board. Fair Board members Dan Despotopulos, Bev Clarno, Mike Shiel, Jim Morrill and Cheryl Davidson came before the Board. Mr. Despotopulos said that proposed changes to the budget allocation to the Central Oregon Visitors Association were a surprise to him. He met with Tom O'Shea and Commissioners Baney and Unger. They have had several meetings and some good dialogue with resorts and COVA. Most support the future of the Fair & Expo Center and realize money is needed to protect this investment. He referred to a PowerPoint presentation at this time. There was information on the community, discounted services to groups, and the impact of the Fair & Expo Center on the area. He talked about the economic impacts of events held there, but also emphasized the free or discounted services such as 4-H, graduations and other community events. This is time and space they cannot charge other entities for, and it amounts to about $500,000 a year for the community. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 4 of 13 Regarding the annual fair, it includes concerts, bus rides and much more. A lot of it is at no charge except general admission. (He referred to an aerial photo of the area.) Adjacent land would add millions to the value of the Fair & Expo. There would be more parking for the bigger events such as the Family Motor Coach Association and others. The event center is too far away from general parking. Acquiring adjacent land is important for the future. They went through a process regarding land use and potential exchanges with the DSL. He would like to get this conversation open again. It has been years and might be quite different now. Commissioner Baney said that given the importance of the land, she asked if the Fair & Expo Board has discussed coming to the table with ideas and funding. The DSL wanted everything and then some, plus cash. Mr. Despotopulos replied that they have been through their budget process, and there is not a lot that can be spent on land. Perhaps there should be some long- term ideas. Mr. Shiel noted that they need to have adequate reserve funds. Mr. Despotopulos said that a room tax increase could help market the facility more. A lot of relationships are already been established. The room tax would help with marketing, to bring in more events, and also helps with local lodging and other services. Perhaps some could be generated to go towards the land. Bev Clarno stated they need to close the door on this. They have a fiduciary obligation to get something done. This process has remained in limbo for a long time. There was no room for negotiations in the past, and everyone was put off by the attitude of the DSL. But the DSL land is very important to the County's future and investment. The original appraisal is outdated but showed the highest and best use for a projected zone, making it nebulous. This needs to start from another place. Opportunities are not set in concrete. Commissioner Baney noted that they cannot use the highest and best use if not in place already; this may never happen. It should be appraised as-is. Chair Unger added that the DSL said the County offered land for trade, but most of it was EFU. They wanted a lot, and the County did not have that much to trade. Jim Morrill said that before he came on board, the RV park came in. Within a year, it was making money. It is the only RV park for miles. It is a great facility, but limited. More land to the south offers expansion potential. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 5 of 13 Mr. Shiel stated that one main reason for these ideas is the dream when the facility was proposed, when the old facility was found to be very inadequate; and this dream was able to grow. That additional land is essential for the future. He is having a hard time accepting that they might get just a small part of it. The airport also affects what can be put there. Cheryl Davidson added that it is not adequate as-is; they need an option for growth. Ms. Clarno said that she attended a meeting of the DSL and staff from the Governor's Office, and Mike Hollern chairs this advisory committee. Their number one goal is the university. The Fair & Expo should be number two. They could maybe mediate this issue with the DSL. Between this group, the Board and others, they might be able to get somewhere. Chair Unger stated he is on the steering committee of the collaboration group, which is the third iteration of the community solutions team. A Redmond collaborative group was formed regarding the extension of 19`'' Street. This group still exists. Ms. Clarno said they need someone with a close relationship with the Governor, and that could be Mike Hollern. But they would need to know what the property could be used for and an appraised amount. John Russell of the DSL said they thought they had a cut and dried deal with the County and the military. Chair Unger noted that Mr. Hollern does not usually meet in the problem solving stage. Mr. Anderson said that he met with the Fair Board and heard their passion; and met with the DSL since then. The biggest difference now is that the land is in line for the regional economic opportunity analysis process. There are only two large lot landholders with candidate sites: the County and DSL. There is room for negotiations on that piece of land, but now the stakes are higher. It is viable in terms of large lot industrial use. Both the DSL and the City have submitted applications to analyze the infrastructure. Considering the layout of the 900 acres, the corner by the Fairgrounds is the closest to utilities. It is likely that is where the industrial use would expand into. This ratchets up the stakes. The County also has a lot invested in its land. He knows how the DSL operates, and regardless of who you talk to, it is all about the school fund. That is their mindset. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 6of13 This also involves the City of Redmond since as part of an annexation through the Regional Economic Opportunity Analysis, they are looking for job creation and benefits to the City. Under the process, they get special consideration if there is a large lot industrial use committed. Mike Sheil said the infrastructure stops at the Fair & Expo Center. He asked what would happen if it was expanded south. Mr. Anderson replied that the difficulty with this process is that the land has to abut the UGB. They can't leapfrog to a different use. They have to dedicate all land to some kind of industrial use, although he is not sure what those uses might include. Mr. Despotopulos said the if the County got the 70 acres, it then would still be industrial. Chair Unger noted that it would have to be rezoned for Fair use. Mr. Anderson emphasized that it can't be rezoned if it is brought in under the REOA. Nick Lelack said that they would have to amend the Fairgrounds master plan and go through a process. Potentially it could all be done at one time. Mr. Anderson said this would not happen immediately as the REOA might. Chair Unger asked about having the REOA to the east instead. Commissioner Baney said they have 216 acres within the City limits, and this might be a bargaining chip. The County has as much to gain to work with them. Mr. Anderson stated that the co-owned land is not there; the other candidate land would be under the REOA. It is probably more viable than this location. Chair Unger asked if the regional solutions group might want to discuss this. Commissioner DeBone said that this may not be a big problem for this group. Ms. Clarno asked about going to the City of Redmond. Chair Unger stated that the City wants to have the water park property near the Fairgrounds, and wants to do other things to enhance the Fairgrounds. Mr. Anderson said that he believes a deal could be structured, but there is a financial detriment to having the County do it, like purchasing land outright and giving up the return on land elsewhere. Timing is an issue for the DSL and the REOA. The County would lose the REOA use. Commissioner Baney stated that if they sold the 216 acres to pay off jail debt, this would reduce the ability to sell the rest. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 7 of 13 Mr. Despotopulos said that because of the lack of space, they lost one big event. There was too much red tape. They lost $60,000 plus a lot of area hotel rooms. Commissioner Baney asked about the cost of paving the additional land. Mr. Despotopulos said the previous paving's true cost was about $1 million. Commissioner Baney said that in any case, they need long-term funding. They could ask for an operations levy for capital reserves. But if there is also a transient lodging tax increase, there would be two taxes involved. Mr. Despotopulos stated that the room tax money should not be used for operations, but for marketing. They also want the Visitors Association to do more as well. The operations levy would go towards maintenance. Commissioner Baney said that it would take a year to prepare for an operations levy. If they start dipping into the TLT and then go for a levy, there will be issues. Mr. Despotopulos pointed out that the Board controls where the TLT goes, and room tax allocations can always be adjusted. Mr. Shiel noted that they don't benefit from the room tax. The major players, the cities and County should want to protect this investment. Commissioner Baney said this is a gravy train for the cities and they should want it to be successful. There will be a window of opportunity when the debt service expires. Ms. Clarno stated that there is deferred maintenance, and not enough in reserves. Commissioner Baney noted they are at a crossroads. The City of Bend will ask the Board to co-sponsor a TLT increase. This increase would be in essence forever. She wondered about negotiating the carve-out. Mr. Despotopulos said that it would be much harder to do this afterwards. Maybe they should go for 1 % in year one, followed by another; maybe phase it in. perhaps they could consider a different split. Chair Unger stated that the industry is willing to work at this and be at the table. They have to talk with key collectors, who handle different amounts and allocations, and bring in the cities. They can be more successful overall, but can't just rely on the providers. Mr. Despotopulos said at 2% it would generate about $700,000. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 8 of 13 Commissioner Baney stated that the City of Bend meets this month on the TLT. They will get some pressure from the County and COVA. They will need to maximize the dollars in a campaign, and this requires teamwork. Chair Unger said that the City of Bend needs to be asked how much of this will go to the County to help the Fair & Expo. Mr. Despotopulos noted that most voters live in the City of Bend. The City of Redmond does not have to go to a vote. Commissioner DeBone said there are two ways to get this on the ballot. Commissioner Baney stated she prefers a coordinator effort of COVA, the City and the County, including a long-term plan for the Fair & Expo. Mr. DeBone said that what resorts can get is market-driven. He wondered if taxing visitors is the way to go. He suggested they diversify the economy by bringing in new businesses. Alana Hughson of COVA stated that there is a proven history that this does both. Chair Unger asked what 2% means to the lodging industry. He wants them to be successful. The Fair Board should advocate to both cities how important the Fair & Expo Center is. They need to help with this. And regarding the DSL land, the Fair & Expo needs a master plan. No one is clear on what the use of this land could be. Mr. Shiel stated that they need the land before they will discuss this. Chair Unger asked what the Fair Board wants: to support a hotel or conference center in the Fairgrounds, or what. Commissioner DeBone said that this might be a good conversation with the City of Redmond. He asked what a 500-room convention center look like. Mr. Shiel stated they could move the barns south and use that land for other things. They can't go any other way because of the airport. Mr. Anderson stated a master plan is a good idea. In terms of immediate direction, should DSL acquire a chunk of the land or negotiate an exchange for actions of the County, a sequence of events and development of the REOA. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 9of13 Chair Unger said he is not sure how to move forward. It is complicated when dealing with the UGB, zoning and the DSL. Commissioner Baney noted they need to make a decision. They will lose an opportunity or someone will figure it out for the County. Dan Despotopulos pointed out that the DSL wants this land for a reason, and it would be smart for the County to acquire it for whatever reasons. Commissioned Baney said that it would be useless for the DSL if the County gets the REOA first elsewhere. Chair Unger stated that he always thought the County should have that land. Mr. Despotopulos said they would talk more about the TLT and get back to the Board. The Fair Board and other citizens left the meeting at this time. 4. Other Items. The group discussed the Heritage Farm HB 3536 at this time. Mr. Lelack advised there is a hearing on June 5 at 3 PM, and AOC has asked for comments. The Heritage Farm Bill was reintroduced this year and was dead until last week when it was rolled into HB 3536. It created a transfer development opportunity that was mostly for the coast and Jefferson County. Ms. Craghead noted that it was amended in 2011 to add rural lands. It takes this concept and blends it with a transfer development opportunity and can site a small-scale recreational opportunity. It allows them to utilize the amenities that are already there, at Aspen Lakes. It could include a heritage guest ranch, restaurants, a conference center, recreation facilities, up to 480 residential units plus overnight units, plus 100 spaces for RV's. It would require 25% overnight lodging. The residential units are not to be over 1800 square feet. Commissioner Baney pointed out that deed-restricted properties can't get financing. They want to build a hotel. They already have some recreational facilities through the golf course. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 10 of 13 Mr. Lelack stated that this is tied to the Metolius, which is protected. The Board could ask Jefferson County if they are comfortable transferring Jefferson County resort development opportunities to Deschutes County. Ms. Craghead said that most are on the coast. Mr. Lelack explained that this allows for small-scale recreational communities as an outright permitted use, as a heritage farm. He suggested the Board treat those as any other and make it a conditional use. It would have to follow a process and there would be conditions to meet. The bill supersedes transportation impacts. It also waives a lot of the requirements of the County's comprehensive Plan and transportation plan. Mr. Anderson said the Board could submit testimony on this, either for, against or neutral. Commissioner Baney stated that she thinks the Cyrus' have been good stewards of their land and the community. She would like to see a path that marries closely with the Comprehensive Plan. They need to mitigate the transportation part. She does not see any negatives in overnight stays. The market will determine how things go, but the County needs a say in it. Chair Unger added that he always wanted the Cyrus' to be successful, but doesn't like the idea they could possibly now do whatever they want. They want outright approval without interference from 1,000 Friends or Central Oregon LandWatch. This bill cuts through the process, and is an awfully big reach all at once. Commissioner Baney noted that there could be safety issues tied to transportation. Mr. Lelack said that they wanted to have the County waive its procedure ordinances, which the Board would have to approve. The Board remained neutral in the past since appeals might come before them. She would like to convey the concerns through Mr. Lelack. She wants them to have a path, but they need to consider the big picture. Mr. Anderson said they need to follow all the rules for destination resorts. Mr. Lelack was instructed to draft a letter expressing these concerns, for Chair signature. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 11 of 13 Commissioner Baney updated the group on the OEM grant closeouts. The Director is now on administrative leave. She is waiting for a Department of Justice response. Until this is resolved, they can't move forward on the 2010 grant. She will keep everyone informed. Chair Unger stated there is a meet and greet at the County tomorrow with the U.S. Forest Service and others, primarily to discuss emergency preparedness issues. Commissioner DeBone indicated he would be attending an Eastern Oregon Counties meeting tomorrow. Mr. Anderson asked about the status of a community plan for Deschutes River Woods. John Skidmore, Assistant City Manager for the City of Bend said the City is doing transportation planning on the demo landfill and Boise Cascade site. They want a letter of support from the County for their TGM grant application. The project cost is $250,000 and the grant for the entire region is just $150,000. They want the County to contribute a hard match for part of the balance if they get the grant. It is awkward to submit a letter of support and then submit the County's own application. The County's would be for the DRW plan and would use about $80,000. Mr. Russell stated they could do most of this in-house. However, the homeowners' association was told that the County would go out for the grant. Commissioner Baney asked if it would benefit the County if the City chose not to use it on that property; would it be a win for only the City and college. Mr. Anderson said that they'd say it benefits everyone. Commissioner Baney said she wants to see the university, but should this application be examined before being submitted. Mr. Lelack stated he could ask the City to create an overlay zone for OSU Cascades, using existing buildings in Mill Point, but needs to know if they would do the overlay and analysis on the County land. Commissioner Baney asked what happens if the Mill Point properties work for ten years. That could hold up the County. Mr. Lelack said this could come to the legislature as early as 2015. Their goal is to kick it off quickly. Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 12 of 13 Chair Unger added that he wants to see a win-win. The City has historically ignored this property. There is an opportunity to utilize it as a university or have the City buy it for a use of some type. Mr. Anderson said they did not ask for $100,000. It may be for $50,000 or a smaller amount. They were not specific. Mr. Lelack stated that the EPA grant could be kicked in for site assessment. Mr. Russell asked about the DRW grant. The intent to apply has already been submitted. Chair Unger suggested that they look at the following year for DRW. Mr. Anderson supports the City's efforts. Financial assistance could be the brownfields process, or lottery money, which is clearly for economic development. Commissioner Baney said that if the scope is right, $50,000 is cheap. But it needs to be specific for OSU. Mr. Anderson stated the County should offer nothing up front, but instead let them ask. Being no further items addressed, the work session ended at 5:20 p.m. DATED this ? ( Day of - 2013 for the Deschutes County Board of Commissioners. a4, Y:~t Alan Unger, Chair C . V1 Tammy Baney, Vic hair ATTEST: fy?k4~ &4t1t_ Anthony DeBone, Commissioner Recording Secretary Minutes of Board of Commissioners' Work Session Monday, June 3, 2013 Page 13 of 13 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.oEg WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., MONDAY, JUNE 3, 2013 1. Discussion of Public Hearing on the Alfalfa Cell Tower Appeal - Paul Blikstad 2. Discussion of Tetherow SDC Issues - Chris Doty, Peter Russell, Nick Lelack and Others 3. Joint Meeting with the Fair Board 4. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; or ORS 192.660(2) (b), personnel issues. Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. lfyou have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. M O N M Ql C A G O c .0 vrs N 0 y ~I N ~ II ti I Y ~ v 1 ~ r o. fi I ~ I "t'1 . Y1 I I it I i V I ~ u IIQ ate, a Q 4n III EE Z I ~ II I IZN z ~r ~f ~I •s' _r r r r cJ ~ II'i ~ II M "K:1 I l r J:l ~ Cs- 17 r "~•r~, o" 3 ~ Ili ~ ~r. ~ II I I,I II I~j I I III h ~ ~ III 41 t III ~ ~I ~ i ~ I a► J I i I Lo ~'II I N 14 r~ 7 -GI r _ w. PCI I ~ TES c0 Community Development Department w ~ Planning Division Building Sahty Division Environmental Soils Division P.O. Box 8005 117 NW Lafayette Avenue Bend, Oregon 97708-8005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes County Board of Commissioners From: Paul Blikstad, Senior Planner Kevin Harrison, Principal Planner Date: May 23, 2013 Re: Appeal of cell tower decision The following is designed to help the Board in their review of the Hearings Officer's denial of CU-12-15. The Hearings Officer found that the applicant failed to meet the following approval criteria for the reasons indicated in bullet points. DCC 18.128.340(B)(2). The applicant has considered other sites in its search are that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co-locate its antennas on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co- location with the area to be served. • The Hearings Officer found, based on review of the language and prior Hearings Officer's decisions, that this criterion requires both a search for co-location opportunities and a search for alternative sites that "would have less visual impact as viewed from nearby residences than the site proposed." This criterion requires an applicant to consider alternatives suggested by opponents. • The Hearings Officer found that the applicant did not consider the alternative of utilizing the existing transmission lines along Elk Lane. • The applicant did not respond to opponents' suggestion that the tower might be located on nearby DSL property in a way that only incrementally impacts views from nearby residences which are already impacted by the transmission lines. • The applicant's dismissal of the DSL property did not adequately respond to the opponents' reasons for suggesting that property as an alternative. The argument submitted by the applicant did not demonstrate a serious attempt to find a location on the DSL property that both satisfies the RF needs and mitigates impacts on scenic views. Opponents identified locations both on the west side and the east side of the Quality Services Performed with Pride DSL property that might represent lesser visual impacts to the surrounding residences, but the applicant did not seriously respond to those suggestions. In circumstances such as this one where the record shows that negative visual impacts of a proposed tower, including impacts to scenic views protected by the code, are largely unavoidable and likely to be experienced by a significant number of nearby residences, a larger search ring including EFU lands should be considered. The Hearings Officer found that demonstrated negative visual impacts on surrounding properties can render urban and non-resource lands (i.e., RR-10 and MUA-10 zoned properties) "unavailable" for a proposed telecommunications facility under DCC 18.16.038(A)(3). The Hearings Officer could not find that the applicant has established that the DSL property and potential locations along Elk Lane are not "available" because they represent negative visual impacts, including impacts on protected scenic views. 2. DCC 18.128.340(6)(5). In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. • The Hearings Officer found that this criterion has never been the central focus of a telecommunications facility decision. In reviewing past hearings officer's decisions, this criterion has been somewhat inconsistently interpreted and applied. Therefore, the question presented by this application has not been directly addressed in prior hearings officer's decisions, nor has LUBA or the Court of Appeals previously reviewed this provision. Staff notes that, to our knowledge, the Board has never ruled directly on this provision. • The Hearings Officer found that this criterion is directed at "scenic views" and that all applications ("in all cases") are obligated to "minimize impacts" on scenic views. • The Hearings Officer concluded that this section is only triggered where "scenic views" are present and will be interfered with by the presence of the telecommunications facility. • The Hearings Officer identified the scenic views present in this area as those of the open desert plateau, the Cascade Mountains, Horse Ridge, Pine Mountain and the Paulina Mountains. • The Hearings Officer found that the second sentence in the criterion modifies the first sentence such that where, as here, scenic views are present, the siting of a telecommunications tower shall be disallowed where there is no vegetation, structures or terrain to meaningfully screen the facility. In other words, the "screening" must actually be effective at screening a proposed tower. The Hearings Officer found that neither the vegetation, structures nor topographic features will meaningfully screen the proposed tower. Staff is anticipating a supplemental written submission from the applicant prior to the appeal hearing. As soon as that comes in, we will forward it to the Board. Just a reminder that the appeal hearing is scheduled for Thursday, June 13m at 6:00 p.m., and is to be held at the Alfalfa Community Building, which is located near the Alfalfa Store. 17-- a~ 0 ~d v rA m a> ^C7 Cl) 0 0 w a~ 0 a~ i2) T 1(2) I - ' U -mu U 'a r~ I 4--~ - J ~ c ,M1 M i ~M1 ~n: fa\ ` y ^J I+1 a a m ' Lu o ~ o X ~ 2 . r ✓T -7 !n ~ a W G t~ i s 1 1zc i ~ LL G~ N o ~ - c S] O he i b~,Nayt+a~ `r / tY6 J3rr/b 89 Fx 771 ag ! X N ss N v-. v y C f cd O x r~ O E 0 f w V C x o a N d b C F n ~ J e Z` qa 3 u. V ~ ~ v v ~z h Q 5 ca i v= C u U L;3 e.. p nJ y t yy7~12ti i yr ` 1~ls~It;q~}~e~~~ .l'~~ ~ t 41 ~ F e '1v l1•~1.k r, +tib'+< X u ~ ~y w• aye' r t "i ~ ~ {l~i'4 uot~eanT J i E 1 p. a a. v 3 a N 3 c~ a W ~ vrl t } Ate . i f - ,tiw~ s ~ -1. ~ 1 Ay t .r ••~~a w e lJ's11 ~ + 3~~ i7 ~A#~FS ~ ! d , ,A`ttldT`* AyY~T m .,,~~RY3 ♦ 1 YCy~ is`f~ ~ t _ A f_Yy UOlj P.90'j, ~I F c fo, a. Co d Y- II J~eyl' G 2[ y.. V ryjy~j lj LL. 41 O t , .1 1 It ILI iA a C? k h t ~1 r ~ few 1~ S ' ~ ► ~ ' /l+~' V Y, 3 t a 14 It f t + r.4y Let s >r yfb t 1 a ~ G 'y r d1i, 'fbl~~!r @ i i's IKI to l 1~++' + s it i t yA 1 2 b } a A'tt ~~w+ , k tt+, ~ + ~ w,~ . _ w v. 1 y m), abt q{~1 ~I t itt ~ i a }S ;~y y~y` y q {y~ t it, t t t tai.}i y t } + ~r t yy 4 OV4 ~6 It } } •l z z ~ r 'rt \ k , i < Road Dopartmont all 50 SE 27th St. • Bend, Oregon 97702 (541) 388-6581 • FAX (541) 388-2719 MEMORANDUM Date: May 28, 2013 To: Board of County Commissioners Through: Tom Anderson, County Administrator From: Chris Doty, Road Department Director RE: Tetherow SDC Discussion In early 2013, representatives of the various ownership entities of the Tetherow Resort approached Deschutes County staff with a request to evaluate the potential for System Development Charge credit or relief in light of the fact that Tetherow pays both the Deschutes County Transportation SDC as well as the City of Bend Transportation SDC (residential uses only). The purpose of this memorandum is to apprise the BOCC of discussions staff has held with Tetherow as well as provide a staff recommendation for BOCC consideration with regard to the issue. Background/Timeline: Spring 2005: Tetherow Resort originally approved as Cascade Highlands Resort. Fall 2005: Cascade Highlands and the City of Bend enter into a Water and Sewer Service Agreement in which the City agrees to provide water and sewer service to the development. Within the agreement, Cascade Highlands agrees to: 1. Pay all City of Bend Water and Sewer SDCs (with surcharge). 2. Pay all City of Bend Transportation SDCs (residential uses only). 3. Dedicate right-of-way for future roundabout construction at Century Drive/Skyline Ranch Road (specifically in lieu of Transportation SDC payment for non-residential uses). 4. Construct Skyline Ranch Road and Metolius Drive through the development (including a roundabout at their intersection) and forego any potential SDC reimbursement of these facilities. 5. Pay all future City of Bend SDCs for any SDC established after implementation of the agreement. 6. Consent to annex when deemed appropriate by the City. Fall 2008: After a lengthy public process, Deschutes County implements Resolution 2008-059 establishing a County Transportation SDC. February 27, 2013: Staff meets with the legal counsel of the now numerous individual and separate development entities of the prior Cascade Highlands project (now Tetherow). Staff learns of the existence of the Water/Sewer Agreement as the mechanism requiring payment of City SDCs. Staff suggests a joint meeting with City staff to similarly discuss the potential of SDC relief from the City. April 9, 2013: City and County staff meet with the legal counsel of the Tetherow entities, to discuss the SDC issue. City staff indicates that the City has significant debt that is bonded against Transportation SDC revenue from west side development, including the Tetherow entities. Given the City's bonded debt against future SDC revenue, it is clear that the City will not consider SDC relief for the Tetherow entities. Note: The above timeline briefly summarizes staff's perspective of the key points relating to Tetherow and the request for SDC relief. The history of the development, negotiation of additional Westside Consortium related projects, impact of the recession, and the subdivision of development components all factor into the discussion, but with lesser degrees of relevance. Staff Recommendation: It is quite uncommon for development projects to pay both City and County SDCs. There is no land use mechanism or development requirement which would impose such a condition; it could only occur through mutual agreement. The City of Bend/Cascade Highlands (Tetherow) Water/Sewer Agreement is a mutually beneficial agreement. The City of Bend leveraged its water and sewer capacity to direct investment into its bonded transportation system improvements. The original developers of Tetherow willfully agreed to pay the City's Transportation SDC and most likely factored the additional cost of the Transportation SDC into their decision whether to utilize the City's water/sewer service or privately construct other water/sewer systems similar to those provided in other resort communities. Staff appreciates the argument that residential development within Tetherow is unfairly assessed dual transportation SDCs and that the dual SDC places Tetherow's residential development at a competitive disadvantage. From staffs perspective, this argument ignores the self-imposed action which created the dual payment requirement as well as the quid pro quo context in which the City provided highly valued utility capacity to the development in exchange for additional revenue to fund needed west side transportation system improvements. Any SDC relief or credit provided to the Tetherow entities would set a precedent whereby other developments, specifically destination resorts, could request credit for infrastructure constructed prior to establishment of the County SDC resolution. If SDC relief or credit were provided to the Tetherow entities, other resorts or developments could also argue that they would now be placed at a competitive disadvantage. After review of the circumstances surrounding the dual SDC payment issue, staff recommends foregoing any consideration of SDC relief or credit to the Tetherow entities. Other outlets available to the Tetherow entities include renegotiation of their agreement with the City of Bend, or annexation to the City of Bend whereby they would no longer be required to pay the County's Transportation SDC. Additional Information to Consider: In contemplation of the Tetherow request, the BOCC is invited to consider the following additional information: e The County's residential Transportation SDC is proposed to be reduced from $3,673 to $3,044 - a 20% reduction per draft Resolution 2013-020 (June 5, 2013 public hearing). e While benefitting from City infrastructure systems, current Tetherow property owners (County) pay significantly less property tax. Most developed residential lots within Tetherow will recover the County's SDC in less than five years due to a lower property tax rate within the County. Similarly, Deschutes County's transient lodging tax is 2% less than the City of Bend transient lodging tax. e Skyliners Road is a proposed SDC eligible project on the County's Capital Improvement Plan. Skyliners Road is approximately one mile north of Tetherow. e Skyline Ranch Road (collector) and Metolius Drive (collector) - the streets bifurcating and providing direct access to Tetherow - are Deschutes County facilities and are maintained and operated by the Deschutes County Road Department. e A $3,044 Transportation SDC is less than one-half of one percent (<0.5%) of the cost of a $750,000 home. e A waiver of the County's Transportation SDC (residential only) for Tetherow properties will result in a loss of potential revenue exceeding $1,000,000 - which equates to more than 5% of the anticipated SDC revenue for the entire unincorporated County area. e The proposed 20% residential Transportation SDC reduction (per Resolution 2013-020) will reduce Tetherow's SDC liability by over $250,000. e The City of Bend's Water, Wastewater, and Transportation SDCs, paid by Tetherow, total approximately $12,000 per residential dwelling unit. This upfront cost - which purchases Tetherow the ability to connect to the City's water and sewer system - is comparable to the construction cost of a modern septic/drainfield system. If the City's municipal utility services were not made available to Tetherow, equivalent private or on-site water/sewer systems would cost substantially more than $12,000 per dwelling unit. Attachment: Water and Sewer Service Agreement between the City of Bend and Cascade Highlands Limited Partnership Y LICENSE AND WATER AND SEWER SERVICE AGREEMENT BETWEEN CITY OF BEND AND CASCADE HIGHLANDS LIMITED PARTNERSHIP The CITY OF BEND, an Oregon municipal corporation, hereinafter referred to as "CITY" and CASCADE HIGHLANDS LIMITED PARTNERSHIP, hereinafter referred to as "USER" agree as follows: GENERAL CONDITIONS 1. USER has received, read and understands CITY's Water and Sewer Policies. The terms used in this Agreement have the meanings assigned to them by CITY's Water and Sewer Policies unless specifically provided otherwise in this Agreement. The provisions of CITY's Water and Sewer Policies and CITY's Standards and Specifications are incorporated into this Agreement by reference. 1.1 USER has received land use approval from Deschutes County to construct a destination resort on USER's real property (County File Nos. CU-04-94/RC-05-01, attached hereto as Exhibit A; hereinafter referred to as the "Destination Resort Decisions'). USER's real property is described on Exhibit B (hereinafter referred to as the "Property"), which is attached hereto and made part of this Agreement USER desires CITY water and sewer service to USER's Property. 1.2 CITY agrees to provide water and sewer service to USER's Property to serve all phases of the development approved in the Destination Resort Decisions. With the exception of the improvements specified in this Agreement, CITY agrees that it shall not require USER to construct any source, storage, or transmission improvements in exchange for the provision of water and sewer service to the development approved in the Destination Resort Decisions, except to the extent that such source, storage or transmission improvements may be eligible for SDC reimbursement by CITY, and then, only to a maximum cost equivalent to the total water SDC's collected from the USER's Property. City further agrees that it shall not require USER to construct source, storage or transmission facilities on Forest Service lands or require USER to construct source or storage improvements on USER's Property. CTIY water and sewer service shall include potable water for standard domestic use and fire protection, including residential irrigation, and wastewater systems to treat potable water. USER agrees that it will provide all golf irrigation water, golf irrigation water facilities, common area water and common area water facilities adjacent to the golf course(s). In common areas not adjacent to a golf course where it is impractical to irrigate with USER's golf course irrigation water, irrigation may be provided through metered CITY water, with advance approval of the City Engineer. 1.3 USER understands that CITY's service to USER's Property is conditioned upon USER consenting to annexation because USER's Property is outside of the CITY limits. (1) USER hereby consents to the annexation of USER's Property when annexation shall be deemed appropriate by the CITY. WATER AND SEWER SERVICE AGREEMENT Page 1 Cascade Highlands Destination Resort After recording return to: 62 pages ps ep City of Bend Engineering PO Box 431, Bend OR 97709 DESCHUM COLW f OFFICIAL AECONOS 13i1D4 NANCY BLASOMNIF, COUNTY CLW ~ I I I IIVIIII~ 10/27/2O5 11:08:14 All D-At Cntal SW4 SURBO $310.00 sw oo slo.oo SB.oo (2) USER shall also provide CITY with a separate consent on a form prepared by CITY and signed by USER (the "Consent to Annexation"). The Consent to Annexation shall contain a statement that USER waives the one-year provision of ORS 222.173. The Consent to Annexation shall be recorded with the Deschutes County Clerk and shall be a condition and covenant that shall run with USER's Property. It is the intent of the parties that the provisions of the Consent to Annexation shall be binding upon USER and upon USER's successors, heirs, executors, administrators, and assigns, and any other party deriving any right, title or interest in or to USER's Property, including any person who holds such interest as security for the payment of any obligation, including a mortgagee, or other secured party in actual possession of USER's Property by foreclosure or otherwise or any person taking title from such security holder. Receipt of CITY water service by the purchaser of any lot within USER's destination resort shall be deemed to be a continuing Consent to Annexation as a condition of that property owner's right to continue receiving water service from CITY. This Consent to Annexation provided by the owner of any lot within USER's destination resort as a continuing condition of receiving water service shall be deemed to waive the one year provisions of ORS 222.173. If the owner of any lot within USER's destination resort objects to annexation or otherwise attempts to defeat annexation, then CITY may, at its option, and upon written notice, discontinue water service to that owner. (3) CITY agrees that the Destination Resort Decisions and any subsequent land use approvals, building permits, or other entitlements necessary for construction of USER's destination resort, shall continue to apply to the development of USER's Property following annexation. (4) CITY agrees that any new zoning and/or comprehensive plan provisions adopted to govern USER's Property following annexation shall allow USER to develop and modify USER's destination resort consistent with: (a) Title 19 of the Deschutes County Code ("DCC"); (b) The Destination Resort Decisions; and (c) Any subsequent land use approvals, building permits, or other entitlements necessary for construction of USER's destination resort. (5) CITY agrees that any new zoning and/or comprehensive plan provisions adopted to govern USER's Property following annexation shall be consistent with the provisions of DCC Title 19 to the maximum extent practicable under existing laws. (5) CITY agrees that USER's destination resort shall not become a Nonconforming Use, as that term is defined in DCC Section 19.04.040 and Bend Code Section 10-10.4, following annexation. WATER AND SEWER SERVICE AGREEMENT Page 2 1.4 USER and CITY intend that all provisions of this Agreement shall constitute a covenant running with the land, binding on the USER and the USER's heirs, successors, or assigns, including purchasers of individual lots, including residential lots. 1.5 USER agrees to pay applicable water and sewer System Development Charges ("SDCs") in accordance with CITY laws, rules and regulations. If CITY adopts additional SDCs, including a storm water SDC, USER agrees to pay such additional SDCs when the SDCs become effective for all structures built after the effective date. USER further agrees to pay a water SDC surcharge in the amount of $375 (three hundred seventy five dollars) per equivalent single family dwelling for costs incurred by CITY for developing new groundwater water rights necessary to expand the capacity of CITY's water system to serve USER's Property. CITY and USER agree to review the water SDC surcharge each year on the anniversary of the date of execution of this Agreement. If CITY's actual cost of groundwater rights has changed during the year, then future water SDC surcharge amounts will be adjusted accordingly as to any property paying the SDC in the future. There shall be no obligation by either party to pay retroactive adjustments for the water SDC surcharge as to properties that have previously paid the surcharge. CITY shall collect all applicable SDC's at the time water meters are installed. Water meters shall only be installed by the CITY upon payment of all SDCs and other fees established by CITY resolution. No water or sewer service shall be provided by CITY until a CITY water meter is installed by CITY or a licensed contractor approved by the City for the installation of CITY water meters. Prior to annexation by CITY, water and sewer SDCs shall be collected as a condition of commencement of water and sewer service. Subsequent to annexation by CITY, water and sewer SDCs shall be collected as provided by then-existing CITY policies and procedures. 1.6 USER agrees to pay applicable transportation SDCs, in accordance with CITY laws, rules, and regulations, as follows: (1) USER shall pay transportation SDCs at a rate of 100% of the maximum allowable SDC for all individually-owned single-family dwellings, townhomes, and cottages, both attached and detached. (2) In lieu of paying transportation SDCs for all residential units qualifying as Overnight Lodging Units as that term is defined by DCC Section 19.04.040, and for all resort-related commercial and recreational facilities, including golf course facilities, USER agrees to the following terms: (a) Per Section 1.6(1) of this Agreement, USER agrees to pay 100% of the maximum allowable SDC for all individually-owned single- family dwellings, townhomes, and cottages, both attached and detached. This constitutes a 20% increase over the standard SDC rate for single-family dwellings set forth in the SDC ordinances and policies in effect as of the date of adoption of this Agreement. (b) USER agrees to dedicate up to 100,000 square feet of USER's Property to the public to enable CITY to construct a roundabout at the intersection of Century Drive and Skyline Ranch Road. USER WATER AND SEWER SERVICE AGREEMENT Page 3 and CITY agree to cooperate in good faith to finalize a roundabout design that is generally centered on the existing right-of-way of Century Drive and that is consistent with USER's design for the main entrance roadway alignment to the destination resort. Per USER's Destination Resort Decisions, any portion of USER's property at the intersection of Skyline Ranch Road and Century Drive that is not dedicated to CITY for the roundabout shall remain in open space, as defined by the Destination Resort Decisions and DCC Title 19. USER agrees to grant CITY appropriate easements necessary for utilities associated with the roundabout on its property near the intersection of Skyline Ranch Road and Century Drive. (c) USER agrees to construct Skyline Ranch Road and Metolius Drive to the standards specified in Exhibit C. Although USER would be eligible for SDC reimbursement for up to 80% of the cost of construction of these Qualified Public Improvements, USER agrees to forego SDC reimbursement for the construction of Skyline Ranch Road and Metolius Drive. (d) USER agrees to construct a roundabout at the intersection of Skyline Ranch Road and Metolius Drive. Although USER would be eligible for SDC reimbursement for up to 80% of the cost of construction of this Qualified Public Improvement, USER agrees to forego SDC reimbursement for the construction of the roundabout. 1.7 USER shall be eligible for SDC reimbursement for Qualified Public Improvements, as defined in ORS 223.304(3), in accordance with CITY laws, rules and regulations and on the same terms as all other CITY users, subject to the exclusions set forth in Section 1.6 of this Agreement. USER shall be eligible for SDC reimbursement prior to annexation of USER's Property. PROVISION OF WATER AND SEWER SERVICES 2. Services shall be supplied only through facilities constructed and installed to CITY Standards and Specifications and owned by CITY, except that USER's service connections shall not be owned by CITY. All facilities except USER's service connection lines shall be installed within public rights-of-way or CITY easements. USER shall dedicate standard easements and rights-of-way to CITY over USER's Property for all water and sewer facilities, except USER's service lines. All easements and rights-of-way shall be granted to CITY free and clear of all liens and encumbrances, according to CITY's policies, standards and specifications for easements and rights-of-way. 2.1 USER shall not connect to CITY's facilities until CITY accepts any facilities installed by USER in writing. CITY's acceptance shall not be unreasonably withheld. With the exception of fire hydrants, standpipes, and related facilities necessary to enable USER to WATER AND SEWER SERVICE AGREEMENT Page 4 commence construction of the destination resort prior to completion of all water and sewer facilities, CITY cannot accept facilities unless paved access and sufficient turnarounds are provided for CITY maintenance vehicles so that maintenance vehicles have access to all parts of the water and wastewater system. USER shall provide all plans for all facilities covered by this Agreement to the City Engineer for approval prior to construction. Such plans shall demonstrate that USER will provide paved access and turnarounds for CITY maintenance vehicles. CITY's approval of such facilities is a condition precedent to CITY's obligation to provide water and sewer service. 2.2 USER shall promptly pay all charges for CITY water and sewer services when due. Charges shall be as prescribed by the appropriate schedule and may be changed from time to time. 2.3 USER hereby grants CITY a license to enter and remain upon USER's land for the purpose of inspecting construction of USER's water and sewer facilities that are subject to this Agreement, and for the purpose of enforcing collection of water and sewer bills according to CITY's standard policy for termination of service on unpaid accounts, and as otherwise provided herein. 2.4 No other use of CITY services or CITY facilities shall be permitted without express written consent of the CITY. 2.5 USER shall comply with all applicable governmental laws, rules and regulations including but not limited to CITY ordinances, resolutions and the provisions of CITY water and sewer policies as they now exist and as they may be changed from time to time; provided, however such policies treat all CITY users uniformly. 2.6 Compliance with CITY ordinances and water and sewer policies shall include, but not be limited to, compliance with CITY design review standards for sewer, irrigation systems which deliver CITY water, and water facilities. USER shall submit to CITY whatever information is required by CITY to determine that design review standards for the USER constructed portion of the water and sewer facilities will be met by the USER. USER shall also demonstrate that USER has obtained site plan approval for any commercial buildings to be constructed on USER's Property from Deschutes County consistent with DCC Title 19, or from the appropriate local jurisdiction per any subsequent zoning ordinance. EXTENSION OF WATER AND SEWER FACILITIES 3. USER shall comply with the following conditions if service to USER's Property requires extension of water or sewer facilities. 3.1 Except for water meters which will be provided by CITY, USER agrees to supply all of the materials, and perform all work necessary for the construction of water and sewer facilities required for development of USER's Property (the "Work") at USER's sole expense and in accordance with the CITY's Standards and Specifications. This excludes source, storage, and transmission improvements to be financed by CITY with funds generated by SDCs, per CITY's Water and Sewer Policies and CITY's SDC Ordinance and Resolution. USER will construct the Work in phases, as and when reasonably necessary to provide water and sewer WATER AND SEWER SERVICE AGREEMENT Page 5 services to the phases of its development. USER agrees that the Work shall include installation of water service limes with meters and housings, as required by applicable law and/or CITY policies. All water meters shall be provided by CITY personnel upon payment of all applicable fees and charges established by CITY resolution, including, but not limited to SDCs, as provided in Section 1.5. 3.2 The person, firm or corporation hired by USER to perform the Work shall have construction liability coverage. Coverage shall be in the amount of a one million dollar combined single limit for bodily injury and property damage. CITY shall be named an additional insured on the policy, and a certificate of insurance shall be provided to CITY. The insurance may not be cancelled except upon 30 days' written notice to CITY. USER shall hold CITY harmless and indemnify CITY from any liability of any kind in connection with activities resulting from this Agreement, except to the extent the same arises out of the negligence or willful misconduct of CITY, its employees and agents. 3.3 USER agrees to submit to the CITY a statement of all costs incurred on the Work upon completion of the Work. 3.4 CITY will charge its standard rates and fees, pursuant to the rate and fee schedule and resolution applicable to water and sewer service users located outside the Bend Urban Growth Boundary. In addition to rates and fees applicable to ongoing water and sewer service, USER will pay all applicable SDCs, including the water SDC surcharge in addition to CITY's standard water SDC, as provided in Sections 1.5 and 1.6. 3.5 USER shall obtain any necessary Oregon State Highway, CITY or County street cut permit prior to any construction of the Work in right of ways. Upon request by USER, CITY shall cooperate with USER in obtaining the same. 3.6 Upon request of the CITY, USER agrees to deliver to CITY "As Built" reproducible drawings of the completed Work, signed by an Oregon professional engineer prior to acceptance of the Work by CITY. 3.7 Commencing upon full execution of this Agreement and during the terms of this Agreement, USER shall pay CITY inspection charges and plan review fees as applicable in accordance with CITY city-wide policies in effect from time to time. 3.8 CITY may terminate water service to the owner of any lot within USER's destination resort for a material breach of this Agreement. In the event of such breach, CITY shall provide such owner with a written 30-day notice to cure the breach. If the breach is not cured following the 30-day period, CITY may terminate water service without further notice or hearing. 3.9 Nothing in this agreement shall relieve USER of any obligation under its conditions s of approval in the Deschutes County "Destination Resort Decisions." DATED this day of 12005. WATER AND SEWER SERVICE AGREEMENT Page 6 CASCADE HIGHLANDS L7TED LIABILITY COMPANY _ BY: Title: STATE OF OREGON ) ) sS. County of Deschutes ) This instrument was acknowledged before me on they day of , 'A v 2005 bye B. anu on behalf of CASCADE HIGHLANDS LIMITED LIABILITY COMPANY. OFFICIAL SEAL LjCOMMISSIONOTARY pUeLIC-OREGON 10 COMMISSIpN Np, 376231 O ARY PUBLIC F REGON My Commission Expires: SUSAN L. GADOTTI N EXPIRES FEBRUARY 23, 20D8 WATER AND SEWER SERVICE AGREEMENT Page 7 CITY OF BEND BY: Larold A. Anderson CITY Manager STATE OF OREGON ) ) ss. County of Deschutes ) This instrument was acknowledged before me on the day of ouC , 2005 by U ~ ~ kj~~ as the City Manager for the CITY OF BEND, an Oregon municipal corporation. OTARY PUBLIC FOR O GON My Commission Expires: OFFICIAL SEAL KIM PARSONS NOTARY PUBLIC-OREGON COMMISSION NO. 375857 MY COMMISSION EXPIRES JAN. 6, 2008 WATER AND SEWER SERVICE AGREEMENT Page 8 EXHIBIT B Cascade Highlands Destination Resort Legal Description October 17, 2005 All that portion of Tract `C' of Highlands at Broken Top, Phase 2 as per plat recorded July 23, 2004 in Volume 2004, page 43477, Deschutes County Official Records, located in Sections 1, 2, 11, and 12, Township 18 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, lying southerly of the following described line: Commencing at the southeast corner of a right-of-way dedication for Skyline Ranch Road per dedication deed recorded in Volume 2004, page 02655, official records, Deschutes County, said corner also being on the west line of said Tract `C'; Thence northerly along the east right-of-way of said Skyline Ranch Road, and the west line of said Tract `C', along the are of a 715.00 foot radius curve to the left, through a central angle of 8°31'32", an arc length of 106.39 feet to the Point of Beginning; Thence leaving said right-of-way and west line of said Tract `C', North 89°59'56" East, 23.73 feet; Thence along the are of a non-tangent 635.01 foot radius curve to the left, through a central angle of 68°00'08", an arc length of 753.66 feet, the chord of which bears South 38°42'51" East, 710.20 feet; Thence North 17°17'05" East, 140.00 feet; Thence along the arc of a non-tangent 495.01 foot radius curve to the left, through a central angle of 40°59'47", an arc length of 354.19 feet, the chord of which bears North 86°47' 12" East, 346.68 feet to the west boundary of Skyliner Summit at Broken Top - Phase 11. Excepting therefrom : All that portion of said Tract `C' lying within Highlands at Broken Top, Phase 3, as per the plat thereof recorded August 4, 2005, in Volume 2005, Page 51036, Official Records of said Deschutes County; Also Excepting therefrom: All that portion of said Tract `C' lying within proposed Highlands at Broken Top, Phase 4, described as follows: Beginning at the southeast coiner of lot 47 of Highlands at Broken Top, Phase 3, said corner being on the south line of the southeast quarter of said Section 2; 1APrajmAa\AM,*Wd UerelapammU1393 CH Dmdnation Rewn\OM=\WordWaydmAg~umtHxbb"10170$.dm Thence North 88°54'45" East 613.34 feet along said south line of the southeast quarter of said Section 2, and the boundary of said Tract `C' of Highlands at Broken Top, Phase 2; Thence leaving said south line and boundary, North 10°12'48" East 514.94 feet; Thence South 88°37'49" East 50.14 feet; Thence North 1 °02'41" West 403.55 feet; Thence North 65°59'00" East 1374.61 feet; Thence North 56°19'06" East 80.00 feet; Thence northerly along the are of a 2946.00 foot radius non-tangent curve to the right, through a central angle of 14°22'21", an are length of 739.00 feet, the chord of which bears North 26°29'43" West 737.06 feet to a point of reverse curvature; Thence continuing northerly along the are of a 2080.00 foot radius curve to the left, through a central angle of 19°23'29", an arc length of 703.96 feet, the chord of which bears North 29°00'1T' West 700.61 feet; Thence south 49°36'57" west, 495.68 feet; Thence along the arc of a 970.00 foot radius curve to the left, through a central angle of 25°42'21 an arc length of 435.19 feet (the chord of which bears south 36°4547" west, 431.55 feet) to a point of reverse curvature; Thence along the arc of a 780.00 foot radius curve to the right, through a central angle of 63°55'50", an are length of 870.32 feet (the chord of which bears south 55°52'31" west, 825.87 feet); Thence south 44°50'51 west, 27.28 feet; Thence south 01°51'17" west, 346.49 feet; Thence along the are of a 703.00 foot radius curve to the right, through a central angle of 62°01'58", an arc length of 761.12 feet (the chord of which bears south 32°52'16" west, 724.49 feet); Thence south 26°l 7'47" east, 772.54 feet to the south line of the southeast quarter of said section 2 and the point of beginning. Y REGIS T ERE® iROFESSIONAL S RV L6 Q Q_ 4L'J~a& OREGON JUF•3~ I. I GY99 KEITH S. DAGOSTINO •7,4~, MHvjecL&Wro.ood Developnxm\31398 CH Degination R=DrtWgfcdAWwdWUydenVe&TemFxhibilA101705.49C M&WAL F:Iz-3i-a.%' DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER CU-04-94 HEARING DATE: November 16, 2004 6:30 P.M. Barnes and Sawyer rooms of the Deschutes Services Building 1300 NW Wall Street Bend, Oregon 97701 APPLICANT/ Cascade Highlands L.L.C. (CHI-LC) OWNER: c!o Williams S Dame Development Co., Inc. - 1325 N.W. Flanders 891a1r y~r Portland, Oregon 97209 ~ 3 , T~ APPLICANTS Ball Janik LLP N r REPRESENTATIVE: Nancy Craven j 1 {ox" co Kristin Udvari 101 SW Main Street, Suite 1100 ti DUI V Portland, OR 97204 APPLICANTS W&H Pacific V1 ENGINEER: Thomas Walker Keith Dagostino 920 SW Emkay Drive #C-100 Bend, OR 97702.1042 REQUEST: Applicant is requesting approval of a Conditional Use Permit for a Destination Resort Conceptual Master Plan (CMP) that would allow a 706-acre Destination Resort. STAFF REVIEWER: Matthew Martin, Associate Planner RECORD CLOSED: December 9, 2004 1. APPLICABLE STA NDARDS AND CRITERIA: Title 19 of the Deschutes County Code, the Bend Urban Growth Boundary Ordinance: - Chapter 19. 12, Urban Area Reserve Zone - Chapter 19.100, Conditional Use Permits - Chapter 19.106, Destination Resorts Title 22, the Deschutes County Land Use Procedures Ordinance. Title 23, The Deschutes County Comprehensive Plan. Oregon Revised Statute (ORS) Chapter 197.435 to 197.467 CU-04-94 Hearings OfficerDedsion (11412005) Page 1 of 42 L x t- f- I 11. BASIC FIN INGS: 1. LOCATION: The subject property is located west of Bend and has an assigned address of 19200 Century Drive, Bend. The subject property is identified on County Assessor's Index map 18-11 as tax lot 100. 2. ZONING: The subject property Is zoned Urban Area Reserve (UAR-10). The subject property is also mapped as part of the Destination Resort (DR) overlay zone for Deschutes County. 3. SITE DESCRIPTION: The 706-acre resort site is located within an approximately 905- acre parcel. The site is bordered to the south by Century Drive. The Braebum subdivision and the Best Western Entrada Lodge are located south of Century Drive. The resort site is bordered on the east by the City of Bend Urban Growth Boundary. Along this boundary is an undeveloped 14-acre parcel owned by the Bend Metro Parks and Recreation District, the First on the Hill Subdivision, and the Broken Top planned unit development (PUD). To the north is The Highlands at Broken Top PUD. The resort is bordered on the west by undeveloped lands owned by the United States Forest Service (USFS). The resort site is characterized by rolling terrain with minimal vegetation. Prior to the Awbrey Hall fire of 1990, the site contained stands of mature ponderosa pine and junipers. In clearings, the landscape consisted of manzanita, sagebrush, rabbit brush and bunch grass. The fire burned an area that extends from the Broken Top community on the east to the USFS lands on the west. As a result, the site is now covered by relatively dense growth of manzanita, sagebrush, rabbit brush and bunch grass. There are a few small ponderosa pine trees scattered across the property. The Cascade Highlands Resort is proposed to be developed in multiple phases consisting of the following elements: 379 single-family-dwelling units, 210 multi-family units, a 300- room resort hotel, and approximately 15,000 square foot of commercial and specialty retail. The recreational amenities will include an 18-hole golf course. Access to the resort will be provided via a extension of Skyline Ranch Road between Skylines Road and Century Drive, a gated access at Hosmer Lake Drive, and the extension of Metolius Drive west from. the..Broken Top._PUD. These-roads. will. be dedicated to. the .public. Other internal roads will be private and will be maintained by a homeowners association established by the developer. 4. EXISTING USESISTRUCTURES: The project site is currently undeveloped. The current use of the property is for undeveloped recreational purposes such as hiking and mountain biking along established trails. 5. AGENCY RESPONSES: The Planning Division mailed notice of the proposed land use to numerous affected agencies. The following comments have been received: A. The Deschutes County Road Department response stated, In relevant part: 'The applicant is to meet the following conditions if this land use application is approved: CU-o4-94 Hearings Officer Decision (1/4/2005) Page 2 of 42 1. The developer will design and construct the road system in accordance with section 17 of the Deschutes County Code (DCC). Road improvement plans shall be approved by the Road Department prior to construction. 2. Skyline Ranch Road and Metolius Drive shall be designed and constructed to Collector Standards in accordance with Table "A" of DCC 17.48. Design speed shall be at least 35MPH. 3. If a round-about is used at the intersection of Skyline Ranch Road and Metolius Drive it shall be designed and constructed according to ODOT standards. 4. A Traffic Impact Study shall be prepared that includes the intersections of Skyliners Road / Skyline Ranch Road, Metolius Drive / Skyline Ranch Road, and Century Drive / Skyline Ranch Road. Any traffic impacts created by this development shall be mitigated. 5. Lots shall not have direct access from Skyline Ranch Road or Metolius Drive. S. The internal road system shall be improved to standards for private roads. 7. The applicant shall construct all road improvements under the inspection and approval of the Director of the Deschutes County Road Department The Director may accept certification of improvements by a professional engineer consistent with ORS 92.097. 8. The surveyor or engineer submitting the plat shall submit information showing the location of the existing road In relationship to the road right-of-way, on behalf of the applicant, to the County Road Department. This information can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated right-oPways. In no case shall a road improvement be located outside of a dedicated road right-of-way. If research reveals that inadequate right-of-way exists or that the existing roadway is outside of the legally established or dedicated right-of-way, additional right-of-way will be dedicated as directed by the Deschutes County Road Department to meet current County standards." B. Joe Studer - Deschutes County Forester, submitted the following comments: "I have reviewed the proposed development of Cascade Highlands and have some initial concerns that the plans for wildiand fire protection fail short of providing adequate protection of both new and existing residences. Specifically the plans should address the below listed Deschutes County Codes: "Chapter 15.04 Building and Construction Code Chapter 15.04.085 Wildfire Hazard Zones Deschutes County has been declared a Wildfire Hazard Zone by the Deschutes County Commissioners in 2001, which invokes Section 326 of the 1998 "international one-and-two Family Dwelling Code, and provisions of ORS 93.270(4). Cu-04-94 Hearings Officer Decision (1/42005) Page 3 of 42 OCC 18.36.070 and 080. 'As a 'overall' requirement, Deschutes County should require this new development adopt CCRs which result in this new community having 'Firewise Community' status, [as outlined at www.freWse.org] from the beginning, and additionally requiring the maintenance of hazardous fuels and all future building to maintain this status. This is the last chance we have on the west side to prevent catastrophic wildiand fire in the urban interface and this location Is strategically positioned to prevent such loss if we plan it correctly. Firewise Community status has well established criteria and I would be more than willing to assist the project developer with this endeavor." C. The response from the Oregon Department of Fish and Widlife stated in relevant part: "The property associated with this application is adjacent to the Deschutes County adopted Tumalo Mule Deer Winter Range. Additionally the property includes habitat that is important for shrub step dependant wildlife species. "The ODFW has been working with the applicant to develop an acceptable wildlife report with mitigation measures that we feel will be adequate to protect the wildlife resources impacted by this project. The report is not yet completed but we feet that the applicant will be able to develop an acceptable program to mitigate the impacts. "We would like the County to consider, as a condition of approval, that the applicant provide an acceptable wildlife plan that the applicant, County, and ODFW agree with.' On November 5, 2004, the applicant submitted a revised Cascade Highlands Wildlife Evaluation that reflects comments made by ODFW. D. Bend Fire Department: "No comments on conditional use permit only. Any development of the property shall be approved by the fire marshal. E. USFS: The applicant submitted an October 27, 2004 letter from Nancy Craven, applicant's representative, to the USFS, summarizing a conversation the applicant's representatives had with USFS, and asking that the USFS sign the letter, showing the USFS agree to the proposed development buffer from the subject property's boundary with the USFS lands. The letter was signed by Walt Schloer, Jr., Distract Ranger, USFS on October 27, 2004. to o " VVIKermemer - U15ulca. 1 1, vlk u1 oa1RJ - 0-501 In vc a1u11W41% leer Metro Parks and Recreation District, Deschutes County S ' s Office. BendALa Pine School District, Oregon Department of Forestry, and Oregon Department of Transportation. CU-0494 Hearings Officer Decision (114/2005) Page 4 of 42 6. LEGAL LOT: The subject property is a legal lot via the previous issuance of numerous County permits. 7. REVIEW PERIOD: This application was deemed complete and accepted for review on November 3, 2004. 8. PREVIOUS LAND USE APPLICATIONS: The sub'sd property has previously received several land use approvals. These are m a to the development of the Broken Top and The Highlands at Broken Top PUDs and related facilities. 111. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Chapter 22.24 Administrative Hearing Procedures 1. QQC g2.24-030 Noce o Hearin' * The subject property is located outside of the Bend Urban Growth Boundary, in an urban reserve area. DCC 22.24.030(A)(b)(2) provides, in relevant part, that written notice of the application must be provided to persons who reside within 250 feet of the subject property, 'except where greater notice is required under DCC 22.24.030(A)(4) for structures proposed to exceed 30 feet." DCC 22.24.030(A)(4) provides: "For structures proposed to exceed 30 feet in height that are located outside of an urban growth boundary, the (notice) area * * * shall expand outward by a distance equal to the distance of the initial notice area boundary for every 30 foot height increment or portion thereof." FINDINGS: Prior decision makers have interpreted DCC 22.24.030(A)(4) to require additional notice only when particular 'structures' will exceed 30 feet. In its initial application, the applicant requested approval for a 5U-foot height limitation for certain areas on the southern portion of the subject property. However, this request was submitted as part of a conceptual master plan approval and does not, as a result of this approval, seek to construct any structures that exceed 30 feet in height Therefore, the notice area is- limited. to the properties located within 250 feet of the. subject property. Notice has been provided to property owners within that radius. The county has satisfied the relevant notice provisions of the C. David and Marika Smiley, who own property located approximately 550 feet east of the subject property, testified that they did not receive written notice of the November 19, 2004 hearing. The Smileys contended that, as property owners affected by the proposed development, they expected to receive notice of the application. The Hearings Officer finds that the Smileys were not provided notice of the application or the hearing. However, the Hearings officer finds that such notice was not required to be provided by the code. The Hearings Officer also finds that the Smileys were not prejudiced by the failure to receive notice; they appeared at the November 16, 2004 hearing, and the record was held open until November 29, 2004 to allow for additional testimony, which the Smileys provided. Camille Scheewe Radich commented in an email that the timing of the hearing (near the Thanksgiving holiday) and the inadequate notice provided to residents of First on the Hill Subdivision warrants an extension of time and a second public hearing to allow for greater public involvement The Hearings Officer finds that by holding the record open for an additional 10 days, after the hearing, adequate time was provided to parties to identify issues and submit em into the record. CU-0&94 Hearings Officer Decision (1/4/2005) Page 5 of 42 Other persons testified that they wished that more or better notice would have been provided of the subject and time and place of the hearing. None of the parties advocating for additional notice and/or hearing have cited to a standard that requires the applicant or the county to provide more notice than was given. The Hearings Officer concludes that the county and applicant have satisfied the county's notice requirements. B. Chapter 19.12, Urban Area Reserve Zone UAR-10 S coon 19.12.Q30, Cond i n l u s. 0. Destination resort, where mapped In the Bend Area General plan destination resort map, subloot to DCC 19.106. FINDING: The subject 706-acres are mapped for destination resorts as identified on the Bend Area General Plan destination resort map. Therefore, conditional use approval for conceptual master plan development of a destination resort is allowed for this site. C. Chapter 19.106, Destination Resorts 1. Se ion 19106.050. Recuirements for conditional use permit alA conceptual master plan (C MP) applicat12ns. The CUP provides the framework for development of the destination resort and Is Intended to ensure that the destination resort meets the requirements of DCC 19106. The CUP application shall include the following information: A. Illustrations and graphics to scaler identifying: 1. The location and total number of acres to be developed as a planned destination resort; FINDING: The applicant supplied a set of master plan maps as Exhibit A to its application. As depicted thereon, the resort site includes approximately 706 acres and is located just west of the Bend Urban-Growth Boundary, within an -approximately 905-acre parcel zoned Urban Area Reserve (UAR-10) and within the Destination Resort overlay zone. 2. The subject area and all land uses a4acent to the subject area; FINDING: The applicant supplied a vicinity map as Exhibit B to its application. As depicted thereon, the site is surrounded by the following properties and uses: a. The site is bordered to the south by Century Drive. The Braebum subdivision and the Best Western Entrada Lodge are located south of Century Drive. b. The site Is bordered on the east by the City of Bend Urban Growth Boundary. Along this boundary is an undeveloped 14-acre parcel owned by the Bend Metro Parks and Recreation District. Development bordering the subject property on the east include the First on the Hill subdivision, which is being developed with single family dwellings, and the Broken Top PUD. C. The site is bordered on the north by The Highlands at Broken Top PUD. d. The resort is bordered on the west by undeveloped lands owned by the USF8. GU-04-94 Hearings Officer Decision (1/4/2005) Page 6 of 42 I The topographic character of die site; FINDING: The master plan maps included in Exhibit A illustrate the topography of the site. As shown thereon, the resort site is characterized by rolling terrain with minimal vegetation. The highest portion of the site is located on the southwest comer, with an elevation of approximately 3,960 feet. The southern boundary of the resort property has an elevation of approximately 3,820 feet. From there, it rises upward from Century Drive to form a ridge, which crests at approximately 3,920 feet. The property then slopes down from the ridge in a northerly direction, with the lowest elevation being approximately 3,750 feet. Typas and general locadon of proposed development uses, including residendal and commercial uses; FINDING: The master plan maps included in Exhibit A show the areas proposed to be developed with residential and cone resort amenities, as well as the adjacent open space areas. The conceptual locations of the golf course holes are also shown. As depicted in the Exhibit A maps, the resort is divided into 26 "Areas." On the Conceptual Master Phasing Plan, the applicant has grouped the areas together to depict potential phases. However, the applicant stated that some of the larger phases may later be broken down into multiple sub- phases within the depicted Area boundaries. The timing and sequencing of development will ultimately be determined by market conditions. As depicted on the maps, visitor-oriented lodging, meeting and eating facilities, and commercial uses designed to serve the resort guests, as well as the core recreational facilities (resort clubhouse, pool, tennis courts, and similar potential recreational uses), will generally be concentrated within the southern portion of the resort, in Areas 1 through 8. 5. Major geographic features; FINDING: There are no major geographic features within the site. As explained above, the topography is depicted on the maps included in Exhibit A. The most notable topographic feature.is the rimrock ridge that runs along the southern boundary of the property, adjacent to Century Drive. There are no natural lakes or watercourses, and the site is currently criss- crossed by unimproved trails leading from the urban area to the-USES lands. Vegetation on the site is minimal due to the Awbrey Hail fire of 1990. The site is now covered by relatively dense growth of manzanita, sagebrush, rabbit brush and bunch grass. There are a few small clusters of ponderosa pine trees scattered across the property. 6. Proposed methods of access to the development; idenfifying the main vehicular cir+culatyon system within die resort and an indication of whether stivets will be public or private; FINDING: The proposed vehicular access system is depicted on Exhibit A. Exhibit A shows that access to the resort will be provided via the extension of Skyline Ranch Road between Skyliners Road and Century Drive, a gated access at Hosmer Lake Drive, and an extension of Metolius Drive west from the Broken Top PUD. There will be two public roads running through the site: Skyline Ranch Road and Metolius Drive. The remainder of the internal roads will be private. The °Eastem Local Loop Road" (likely to be renamed in the future) is the only private road currently shown on the master plan maps. The applicant indicates the additional private roads will be located and designed during preliminary plat review, as each residential phase is developed. OU-04-a4 Hearings Officer Decision (1/4!2005) Page 7 of 42 As noted on the maps, the applicant proposes 'a series of cross-sections for the public roadways within the resort boundaries- The differing cross sections are noted as "Proposed Collector Road Sections A,, B, and Co on the maps. Exhibit V provides a description and further detail on the design of each section. 7. Major pedestrian, equestrian and bicycle trail systems; FINDING: The major pedestrian and bicycle trail systems are depicted on the Conceptual Master Trails Map, Exhibit A-2. The maps depict a 10-foot wide, hard-surface multi-use path to be constructed along one side of Skyline Ranch Road (between Broken Top Drive and Century Drive), Metolius Drive (between the eastern property boundary and Skyline Ranch Road), and the entirety of the Eastern Local Loop Road. The path will meander along the roadways and periodically cross the roadways to accommodate the most pedestrians with the least amount of roadway crossings. The trail may also be attached to the roadways at isolated locations, particularly in steeper terrain to avoid excessive cuts, fills, and disruptions. In addition, the applicant indicates that it has also worked with the Bend Metro Parks and Recreation District (BMPRD') and the Central Oregon Trails Alliance (°COTK) to design soft-surface trails to connect BMPRD park facilities and the Bend urban area to the USFS lands to the west The main soft-surface trail will run along the ridge located at the southern end of the property, from the BMPRD park parcel to the USFS lands. COTA will construct the trail with funding from thep Applicant. The additional soft surface trails shown on the maps are designed to connect BMPRD facilities to the hand-surface, multi--use trails within the resort, and to conned the hand-surface trail along Skyline Ranch Road to the USFS lands. As noted in the letters from BMPRD and COTA (Exhibits W and X), both entities support the current resort proposal with the proposed trails. 8. Important natural features of the site, including habkat of threatened or endangered species, streams, rivers, wedands and riparian vegetation within 200 feet of streams, rivers and wetlands. FINDING: There are no natural streams, watercourses, or wetlands on the property. Generally, the site does not include many significant natural features. As noted above, the site is characterized by rolling terrain with minimal vegetation. Prior to the Awbrey Hall fire of 190, the site contained stands of mature ponderosa pine and junipers. In clearings, the landscape consisted of marzanita, sagebrush, rabbit brush and bunch grass. The fire burned an area that extends from the Broken Top community on the east to the USFS lands on the west As a result the site is now covered by relatively dense growth of manzanita, sagebrush, rabbit brush and bunch grass. There are a few small dusters of ponderosa pine trees scattered across the property. There are no threatened, endangered, or designated Goal 5 habitat areas on the site, as explained in the Wildlife Evaluation. 9. The locadon and number of acres reserved as open space, buffer area or common area. Areas designated as "open space," "buffer area" or "common area" should be dearly illustrated and labeled as such; CU-04-94 Hearings Officer Decision (1/.4/2005) Page 8 of 42 FINDING: Areas designated as open space are shaded green on the Exhibit A maps. As noted in the map key, open space acreage, including the proposed golf course fairways and greens, hiking and biking trails; lakes and ponds, and picnic or park areas, will equal at least 50% of the gross project acreage at all times (approximately 353 acres of the total 706-2cre project). The proposed Open Space Management Plan describes the applicant's mission statement for maintaining the required open space areas. 10. All proposed recreational amenities; FINDING: The main recreational amenity is the 18-hole golf course. Additional recreational amenities will likely be concentrated within the resort core, in Areas 1 through 8. The exact location and nature of such amenities (pools, tennis courts, golf clubhouse, etc.) will be determined during future site plan and preliminary plat reviews. 11. Proposed overall density. FINDING: The key to the Exhibit A map notes that the overall resort density is expected to be approximately 1.3 dwelling units per ace, including overnight lodging units. As explained above, the Cascade Highlands Resort is proposed to include a maximum of 379 single-family dwelling units, 210 multi-family homes, a 300-room resort hotel, and approximately 15,000 square feet of commercial and specialty retail. The general locations of the single family areas and the visitor-oriented accommodations are depicted on the map included in Exhibit A. Exact density within each phase will be determined over the course of build-out of the resort, during each preliminary plat review. B. Further information as follows: 1. A description of the natural cheracterisdcs of the site and surroundyng areas, including a description of resources and the effect of the destination resort on the resources, methods employed to mitigate adverse impacts on resources, analysis of how the overall values of the natural features of the site will be preserved, enhanced or utilized In the design concept for the destination resort; and a proposed resource protection plan to ensure that important natural features will be protected and maintained. Factors to be addressed include: a. Compatibility of soil composition for proposed development(s) and potential erosion hazard; b. Geology, including areas of potential instability, c. Slope and general topography; d. Areas subject to flooding, e. Other hazards or development constraints; f. Vegetation; g. Water areas, lnclucffng streams, lakes, ponds and wedands; h. Important natural features; F IlVfidlife. CU-04-94 Hearings Officer Decision (1142DQ5) Page 9 of 42 FINDING. The resort property is located at the west edge of the City of Bend. The property is designated as Urban Area Reserve, immediately west of the City's Urban Growth Boundary. The 7Wacre resort site is flanked on each side by the Broken Top golf course community and USFS lands. In 1990, the Awbrey Hall wildfire burned through the subject property and killed nearly all of the trees. The site, formerly covered by pine trees, now has only scattered clumps or isolated trees throughout the resort area. The proposed resort location is essentially void of trees and appears as a brushy open expanse between existing homes and the USFS timbered lands. The property is primarily vegetated with a dense stand of bitter brush and chaparral, two to six feet high. Small ponderosa pine trees are scattered across the property. Numerous ponderosa pine snags also remain, providing a reminder of the intense Awbrey Hall fire. The rolling terrain, void of trees, offers views of the Cascade Mountains to the wrest. The undulating terrain includes a series of ridges, canyons, and plateaus. Slopes typically range from nearly flat to grades in excess of 25%. The steepest sections are often relatively narrow bands on canyon walls or below rims. The steeper sections will often be preserved in open spaces, reducing the potential for disruption and associated erosion. There are no ponds, streams, or any other type of surface water on the subject property. There are no significant rock outcroppings, no volcanic peaks, and no special or unique terrain features. Evidence of prior cinder and pumice mining or exploration is apparent on the subject property. However, the site is not zoned SM or included in the Counts inventory of aggregate resources. According to previous wildlife studies, there are no rare or endangered wildlife species on the subject property, and there are no significant big game wildlife overlays. Deer, varmints, birds of prey, occasional elk, reptiles, and many species of birds inhabit the subject property, and the impacts of the resort on the wildlife habitat for these species will be mitigated per the submitted Wildlife Evaluation. 2. A traffic study which addresses (a) impacts on affected county, city_ and stage road systems; and (b) transportation improvements necessary to midgate any such impacts. The study shall be submitted to the affected road authority at the same time as the conceptual master plan and shall be prepared by a licensed traffic engineer to the minimum standards of the road authorities. FINDING: The applicant submitted a traffic study prepared by Kittelson S Associates, a traffic engineering firm. As referenced therein, the applicants predecessor in interest, CHLP, was a member of the West Bend Traffic Consortium, a gawp of property owners who developed a solution to the system-wide transportation failure identified on the west side of the City of Bend in 1999. The consortium, the City, and the County produced development agreements designed to provide funds for improvements to public transportation facilities serving the west side of Bend. CHLP entered into a Development Agreement with Deschutes County and the City of Bend on November 29, 2000 Cthe Development Agreement"). The Development Agreement was adopted by the County as Ordinance No. 2000-034 and by the City as Ordinance No. NS-1757. CU-04-94 Hearings Officer Dedsion (1/48005) Page 10 of 42 The results of the traffic study are discussed in more detail below in response to the appropriate approval criterion. 3. A description of how the proposed destination resort will satisfy the standards and criteria of DCC 19.106.060 and 19.106.070. FINDING: Compliance with the standards and criteria of DCC 19.106.060 and .070 is addressed below. d. Design guidelines and development standards cleaning visual and aestFietic parameters for. a. Building character; b. Landscapo character, c. Preservation of existing topography and vegetation; d. Siting of buDcUngs; and e. Proposed standards for minimum lot area, width, frontage, lot coverage, setbacks and building heights. FINDDNG: Submitted as Exhibit I are the proposed Design Guidelines for the Cascade Highlands Resort. 5. An open space management plan which Includes: a. An explanation of how the open space management plan meets the minimum standards of DCC 19.106 for each phase of the development; b. An Inventory of the important natural features identified In the open space areas and any other open space and natural values present In the open space, c. A set of management prescriptions that will operate to maintain and conserve in perpetuity any identified Important natural features and other natural or open space values present in the open space; d. Deed restrictions that will assure that the open space areas are maintained as open space In perpetuity. FINDING: The applicant submitted an Open Space Management Plan as Exhibit J of its application. 6. An explanation of public use of facilities and amenities on the site. FINDING: The Applicant proposes to allow the public to use the resort facilities, such as the trails and mull-use paths, various recreational amenities, and the golf course, described above and depicted on the master plan maps. However, the applicant will review market analyses and maintain the flexibility to respond to the needs and desires of resort homeowners and guests throughout the life of the resort. In 1999, CHLP (CHLLC's predecessor in interest) entered into a Memorandum of Understanding CMOU") with River Bend Limited Partnership ("RBLP") and the Bend Metro CU-0494 Hearings Officer Decision (1/412005) Page 11 of 42 Parks and Recreation District CBMPRD) to effect a land exchange. As a result of the MOU, CHLP acquired an approximately 130-acre parcel located within the southern half of the resort site (the Westgate Parpel). CHLP then partitioned off an approximately 14-acre parcel (the "Set Aside Parcel") and conveyed the parcel to BMPRD for use as a park and natural open space. CHLP also donated $75,000 to BMPRD to defray the costs of constructing and installing park improvements. Pursuant to MOU, the proposed park is to be constructed concurrently with the resort. The park will include a 5-acre improved park area and a 9-acre natural open space area with a trail system and trailhead parking. (See Exhibits A and D to the Declaration of Covenants). In addition, pursuant to the Declaration of Covenants, CHLP also agreed to reserve a 10- acre area north of the Westgate Parcel for the creation of a public park (generally in the area depicted on Exhibit A to the Declaration). The Applicant has met with BMPRD to finalize the location of this park in the eastern comer of the tract, south of Metolius Drive and west of "The parks, residential development (as depicted on the Conceptual Master Plan, Exhibit A). As explained in Exhibit W, BMPRD supports the proposed resort plan with the proposed location for the 10-acre park, and has tentatively agreed to pursue discussions with the Applicant regarding the potential for joint development of the 10-acre park Finally, pursuant to the MOU and associated declarations, CHLP also dedicated $60,000 toward the purchase of Tax Lots 1100 and 2400, situated at the edge of the First on the Hill subdivision. This money is available for use by a non-profit corporation formed by First on the Hill owners to purchase the lots for an additional neighborhood park. These new parks and trails will provide additional public amenities associated with the resort development. However, the residents of the First on the Hill subdivision have declined to set aside Tax Lob 1100 and 2400 for park uses; those lots are currently available and are being developed for residential use. y A description of the proposed method of providing all udlity systems, Including the location and sizing of the utility systems; FINDING: The Water Master Plan and Sewer Master Plan detail the estimated resort water and sewer needs and the proposed methods of meeting those needs; -including the location and sizing of utility lines and facilities. The Water and Sewer Plans are discussed in more detail below in response to the applicable approval criteria. Power, telephone service, natural gas, and cable will be provided to the resort via the service provider letters submitted as Exhibit N. All utility system operations, including the sewage system, the water supply system, power, telephone service, and television cable will be regulated by the City of Bend or the State of Oregon. All domestic water facilities must be reviewed and approved by the City of Bend and in certain situations by the Oregon Water Resources Department and the Oregon Health Division. All sewage collection and disposal systems must be reviewed and approved by the City of Bend. The Public Utility Commission regulates power and telephone service. B. A description of the proposed order and schedule for phasing, if any, of all development including an explanation of when facilities will be provided and how CU-04-94 Hearings Officer Decision (1/412005) Page 12 of 42 they will be secured if not completed prior to closure of sale of individual lots or units; FINDING: The Cascade Highlands Resort will be developed in multiple phases. The pods of residential areas likely to constitute each phase are delineated on the Conceptual Master Phasing Plan, Exhibit A. 'Phase I' will include the golf course and the visitor-oriented accommodations in the resort core area (Areas 2 through 5), plus some single-family residential development in Areas 9 through 12, and 15. At this stage, the phasing depictions are conceptual only. The actual order of phasing will be determined as the resort develops, based upon market conditions. It Is also likely that the phases depicted on the master plan maps will be broken down into smaller phases, to be reviewed and approved independently during future preliminary plat reviews. As required by Title 19, the applicant will either construct or provide financial assurance for the minimum required visitor-oriented accommodations, overnight lodging units, and recreational facilities prior to the closure of sale of lots in the first phase of single-family dwelling development. ORS 197.445(4)(b)(B) requires that at least 50 units of the identified overnight lodging must be constructed prior to the closure of sale of individual residential lots. Amenities, visitor accommodations and overnight lodging units will be located in the general areas depicted on the master plan maps (the golf course is shown schematically throughout the resort site, and the additional recreational facilities, lodging, multi family, and commercial areas are likely to be concentrated in the southern portion of the site, within Areas 1 through 8). 9. An explanation of how the destination resort has been sited or designed to avoid or minimize adverse effects or conflicts on adjacent lands. The application shall identify the surrounding uses and potential conflicts between the destination resort and aclacent uses within 660 feet of the boundaries of the parcel or parcels upon which the resort is to be developed. The application shall explain how any proposed buffer area will avoid or minimize adverse effects or conflicts; FINDING: The properties to the north, east, and south of the resort are zoned for residential use (UAR-10, RS, and RM). These properties are developed with The Highlands at Broken Top PUD, the Broken Top PUD and its associated golf course, clubhouse, swimming pool, and tennis courts, the First on the Hill subdivision, and the Braebum subdivision. One parcel immediately south of Century Drive and west of the Braebum subdivision is zoned Limited Commercial and is developed with the Best Western Entrada Lodge. The applicant submitted documentation explaining why it believes the proposed development is compatible with these adjacent uses. (pages 12 through 14 of its burden of proof statement.) According to the applicant, the established and allowed uses on the adjacent parcels (dwellings, and for the CL zone, general commercial uses such as the hotel, retail, banks, grocery stores, etc.) are similar to and compatible with the uses that will be sited within the resort. Furthermore, the applicant contends that the density of residential development permitted within the resort is comparable to the densities allowed and already present on the adjacent residential-zoned properties. CU-0494 Hearings Off w Decision (1142005) Page 13 of 42 The applicant proposes to minimize impacts on the residential lands to the east by implementing the measures set forth in the Westgate Parcel MOU described above. Pursuant to the MOU and associated Declaration of Covenants, all structures within the areas depicted on Exhibit C to the Declaration of Covenants will be limited to 30 feet in height to preserve view corridors for the dwellings to the east of the resort. According to the applicant, the Set Aside Parcel conveyed to BMPRD will also provide a buffer between the Resort and the First on the Hill subdivision. As depicted in Exhibit D to the Declaration, the 5-acre neighborhood park and associated 9 acres of natural open space areas will be located along a portion of the eastern property line, providing a 300-foot buffer between the western boundary of the First on the Hill subdivision and the portion of the resort likely to contain the majority of the overnight lodging units and core recreational facilities development. The applicant has also proposed additional setbacks between the park boundary and resort development. Finally, Exhibit E to the Declaration also depicts a 1,250- foot collector road setback to provide sufficient distance between the First on the Hill subdivision and Skyline Ranch Road. The applicant proposes to construct eastbound left tum and westbound right turn lanes to maintain safety at the Skyline Ranch Road intersection, as described in the Traffic Impact Analysis. In addition, because the resort parcel slopes dramatically up from Century Drive, the natural topography of the area will create a significant buffer between the resort structures and the development on the south side of the road. With respect to the undeveloped USFS land to the west, the Applicant proposes to impose mandatory building envelopes for the lots located along the western boundary of the resort The envelopes will be designed to concentrate development within the eastern portions of the lots, and the undeveloped western portion of each lot will be planted with grass and irrigated. Low-lying shrubs and other potential fire fuels will be removed. The setbacks imposed by the building envelopes will be 100 feet in width along the majority of the western boundary, narrowing to 50 feet adjacent to Area 1. Typically, the county requires a 100-foot setback for most development adjacent to, or within, resource zones (farm or forest), as is present along this western boundary. According to the applicant, the USFS has agreed to a lesser setback for a portion of the western boundary. The applicant will impose the restrictions-regarding the building envelopes and the treatment of the natural areas to the west of the building envelopes through the resort's Codes, Covenants, and Restrictions ("CC&Rs"). This buffer mandated by the CC&Rs will provide a transition between the resort and the USFS lands. The Applicant has met with the USFS, and the District is supportive of this buffering proposal. ODFW also urged the creation of the proposed buffer as a means to protect big game habitat on the adjacent USFS property. The applicant also asserts that proposed layout of the north-south collector will result in the majority of the care resort development being concentrated on the east side of the collector, away from the USFS lands, providing an additional, albeit more limited buffer. Additionally, because the main use of the USFS lands is recreational, the applicant proposes to provide the trails required by the Westgate Parcel documents to ensure continued access between the Bend urban area and the trails on the USFS property. 10. A description of the proposed method for providing emergency mecOcal facilities and services and public safety facilities and services inclucling fire and police protection; CU-04-94 Hearings Officer Decision (1142005) Page 14 of 42 FINDING: Police protection will be provided by the Deschutes County Sheriff's office. Fire protection will be provided by the Deschutes County Rural Fire Protection District #2. The nearest emergency facility is the City of Bend Simpson Street Fire Department, approximately 2.5 miles from the resort site. 11. Unless the destinadon resort is proposing to utilize municipal water, the application shall Include a study prepared by a hydrologist, engineering geologist or similar professional certified in the State of Oregon describing: a. An estimate of water demands (other than municipal water) for the destination resort at maximum buildout, Including a breakdown of estimated demand by category of consumption, including but not limited to, residential, commercial, golf courses and irrigated common areas; b. Availability of water (other than municipal watery for estimated demands at the desdnadon resort, Including (1) identification of the proposed source; (2) identification of all available Information on ground and surface waters relevant to the determination of adequacy of water supply for the destination resort (3) idendf cation of the area that may be measurably impacted by the water used by the destination resort (water impact area) and an analysis supporting the delineadon of the impact area; and (4) a statistically valid sampling of domestic and other wells within the impact area; C. A water conservation plan including an analysis of available measures which are commonly used to reduce water consumption. This shall include a f ustificadon of the chosen water conservation plan. The water conservation plan shall include a waste water disposal plan uditzing beneficial use of reclaimed water to the maximum extent practicable unless the destination resort proposes to utilize city sewer services. For the purposes, of DCC,19.106.050, beneficial uses shall include, but are not limited to: 1. Irrigation of golf courses and greenways; U. Establishment of artificial wetlands for wildlife habitation. d. A water service agreement with the city of Bend, if municipal water is proposed for the destination resort FINDING: The Water Master Plan details the projected water needs of all aspects of the resort and the proposed methods to meet the demand. The plan also includes a water conservation component. The master plan describes an extension of City of Bend waterlines for domestic and fire protection services and private groundwater wells for golf course irrigation. The applicant will need to submit an approved agreement with the City of Bend for the proposed use and extension of municipal water. The applicant submitted a letter indicating the City's commitment to provide such services. (Exhibit P). f2. An erosion control plan for all disturbed land as required by ORS Chapter 4688. This plan shall Include CU-04-94 Hearings Officer Decision (114/2005) Page 15 of 42 storm and melt water erosion control to be implemented during all phases of construction and permanent facilities or practices for the continuing treatment of these waters. This plan shall also explain how the water shall be used for beneficial use or why It cannot be used as such; FINDING: Protecting native soils from erosion is addressed in detail in the Erosion Control Plan (Exhibit O). The undulating terrain, soil, and geology for the Cascade Highlands Resort site are typical for Central Oregon. Volcanic ash soils consist of sand, pumice, welded tuff, and other typical ash formations. Surface soils are typically permeable, with an underlying volcanic ash or welded tuff subsoil The soil profile is therefore much less subject to erosion, as compared to silt or day soils. Slopes vary widely across the site, from relatively fiat to grades in excess of 25%. The steepest sections are often relatively narrow bands on canyon walls or below rims. The steeper sections will often be preserved in open spaces, reducing the potential for disruption and associated erosion. In developed areas, the applicant proposes to enhance erosion control through the design criteria set forth in the CMP (Exhibit 1). 13. A description of proposed sewage disposal methods or a sewer service agreement with the city of Bend; FINDING: The Sewer Master Plan explains the applicant proposes to connect to the City of Bend's sewer system. A letter from the City committing to serve the resort is included in Exhibit P. 14, Wild0re prevention, control and evacuation plans; FINDING: The Wildfire Management Plan explains the majority of the resort parcel was previously annexed into the Deschutes County Rural Fire Protection District. The Applicant recently applied to annex the Westgate Parcel. The Board of County Commissioners approved the Petition for annexation into the District on September 8, 2004. The Applicant proposes the installation of an on-site domestic and fire protection water supply system. Based upon similar projects in Central Oregon, a minimum fire protection flow rate of 1,500 gallons per minute is projected. The applicant is working with the City of Bend to execute a water agreement with the City to obtain the domestic and fire protection water supplies. In addition to securing the services of the Deschutes County Rural Fire Protection District and ensuring an adequate on-site water supply for fire protection, the applicant will also prevent wildfires by constructing the 18-hole golf course throughout the resort site. This large area of turf (approximately 20% of the total resort area) will meander throughout the project providing a fire break In addition, as discussed above, the applicant also proposes to mandate a 100-foot buffer along the majority of the western boundary, narrowing to 50 feet adjacent to Area 1. The buffer will be enforced through the use of building envelopes for the lots immediately adjacent to the USFS lands to the west. The budding envelopes will concentrate development on the east side of the lots, outside of the mandated buffer, and the portions of the lots within the buffer area will be maintained as irrigated grass. Shrubs and other fire fuels will be prohibited within the buffer area. CU-04-94 Hearings Officer Decision (114/2005) Page 16 of 42 In addition to strictly regulating development adjacent to the USFS lands, the applicant will also generally encourage sound fire protection measures around all structures within the resort, by encouraging the use of fire resistant roofing materials, elimination of ladder fuels, and the provision of clear zones. At the November 16, 2004 hearing, the applicant's representative, Nancy Craven, indicated that the applicant would be willing to work with the County Forester to adopt CURS and other development standards that will minimize the risk of wildland fires. Ms. Craven indicated that the applicant had not fully reviewed the "Firewise Community' standards and therefore is not prepared to respond to the County Forester's recommendation that the applicant comply with those standards. However, Ms. Craven stated that the applicant was willing to consider using the "Frewise Community' standards as a template for development in the proposed destination resort community. In Its December 9, 2004 rebuttal response, the applicant indicated that it would accept a condition of approval that requires the approval of the County Forester for all final design standards to insure that fire risks are minimized. I& A description of interim development including temporary structures related to sales and development FINDDNG: The applicant anticipates use of temporary structures on an interim basis to support sales and construction. The type and location of such structures will be determined during future site plan and plat reviews. 16. Plans for owners' associadons and related transition of responsibilities and transfer of property; FINDING: The Applicant proposes to create a Homeowners Association that will assume control of various common areas of the resort, including the open space areas, pursuant to the draft CC&Rs, included in Exhibit I. 17. A description of the methods of ensuring that all facilities and common areas within each phase will be established and wiH be maintained in perpetuity; FINDING: A plan to ensure the transfer and maintenance of common areas is set forth in the proposed CC&Rs (Exhibit 1). With the recording of each plat, a supplemental declaration will be recorded annexing the property included in each plat. The applicant proposes to designate areas on the plat for residential lots, living units, common areas and other land use designations as provided in the Declaration. In the Declaration and each supplemental declaration, all streets will be designated "common area" as defined in the Declaration. Additional designated "common areas" may include open space lots and trails. 18. A survey of housing availability for employees based upon Income level and commuting distance; FINDING: A survey of housing availability for employees (Exhibit R), shows the average rent and number of units available in the Central Oregon Rental Owners Association's rental pool In a variety of configurations. The survey reflects an approximately 10% vacancy rate overall. Over the past decade, a 4% to 5% vacancy rate has been typical through Central CU-04-94 Hearings officer Decision (1/4/2005) Page 17 of 42 Oregon. The 10% vacancy rate suggests that lower income employees can find housing in both the local and surrounding communities. (Higher income employees will typically purchase rather than rent housing). The survey also shows that much of the resort's expected seasonal work force will be high school or college age students who reside with family members. To meet a portion of the employees' rental housing needs, the applicant proposes to provide on-site employee housing. The location and exact number of units will be determined as the Master Plan is refined. 19 An economic impact and feasibility analysis of the proposed development prepared by a quallfled professional economists) or Rnancial analyst(s) shag be provided which includes: a. An analysis which addresses the'economic viability of the proposed development; b. Fiscal Impacts of the project; including changes In employment, increased tax revenue, demands for new or Increased levels of public services, housing for employs" and the effects of loss of resource lands during the life of the project: FINDING: The applicant submitted Exhibit S, an Economic Impact and Feasibility Analysis prepared by Economics Research Associates (ERA), an international consulting firm that assists private developers and public agencies in assessing the future economics and outcomes of real estate projects and economic development plans. 20. A solid waste management plan; FINDING: The applicant expects to contract for solid waste collection and disposal with an authorized Deschutes County franchise hauler. 21. A.__dos rlptloR of the systortr. to be_used.for ffie. management of any individually owned units that will be used for overnight lodging and how it will be Implemented, including proposed rental contract provisions to assure that any fnaiMdually-owned lodging facilities will be available for overnight rental use by the general public for at least 45 weeks per calendar year through a central reservation and check In service; FINDING: All individually-owned units used for overnight lodging will be managed through a central reservation and chec k4n service operated by the resort management. The rental procedure will assure that any individually-owned units included in the calculation for overnight lodging will be available for rental to the public for 45 weeks per calendar year. The CCSRs, submitted as Exhibit I, will govern the rental of overnight lodging units. 22. A survey of historic and cultural resources Inventoried on an acknowledged Goal 5 inventory; OLW4-94 Hearings Officer Decision (1142005) Page 18 of 42 FINDING: The County's acknowledged Goal 5 inventory does not include any historic or cultural resources within the resort site. 23. Other /nfarmation as may reasonably be required by the Planning Director to address the effect of the proposed development as related to the requirements of this ordinance. FINDING: No additional information has been requested at this time. 2. Section 106.060, Standards f2r i sorts. A. The destination resort shall, in the first phase, provide for and Include as part of the CUP the following minimum requirements: 1. At least 150 separate rentable units for visitor-orlented lodging; FINDING: The applicant has indicated it will construct or financially guarantee the constriction of at least 150 separate rentable lodging units in Phase I of the resort. This will consist of at least a 300-room hotel. A condition of approval is imposed to assure compliance with this criterion. 2. Visitor-oderrted eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons; FINDING: The applicant has indicated it will construct or financially guarantee the construction of meeting and eating facilities for at least 100 persons in Phase I of the resort. The Applicant expects that those facilities will be located primarily within the core recreational and lodging area, located within the southern portion of the parcel. A condition of approval is imposed to assure compliance with this criterion. 3. At least $7 million- shall be spent on improvements for on4ite developed recreatlonal facithles and visitor- oriented accommodations exclusive of costs for land, sewer and water facilities and roads. Not less than one- third of this amount shall be spent on developed recreational facilities. The spending minimums provided for are stated in 1993 dollars; FINDING: Using the Consumer Price Index Inflation Calculator, $7 million in 1993 dollars equals $9,073,356.40 in 2004. The applicant proposes to meet the minimum spending requirement for recreational facilities and visitor-orlented accommodations by constructing or financially guaranteeing the construction of the minimum required visitor-oriented accommodations and the 18-hole golf course in Phase I. The applicant has indicated that the estimated cost of the golf course improvements will be between $7 and 8 million (2004 dollars). (December 8, 2004 memorandum from W&H Pacific to Nancy Craven.) There is no evidence that undermines this testimony. Therefore, the Hearings Officer finds the golf course improvements will exceed the $3,012,452.10 minimum spending requirement for recreational facilities (1/3 of the total required $9,073,356.40). A condition of approval is CU-04-94 Hearings Officer Decision (114/2005) Page 19 of 42 adopted to ensure the minimum investment is made and that at least one-third of the improvements will be spent on developed recreational facilities. 4. The facilities and accommodations required by this DCC i9106.060 must be physically provided or financially assured pursuant to OCC 19.106.110 prior to closure of sales, rental or lease of any residential dwellings or lots. FINDING: The applicant has indicated it will physically construct or financially assure the facilities prior to the closure of sale on residential lots. As previously indicated, ORS 197.445(4)(b)(B) requires that at least 50 units of overnight lodging must be constructed prior to the closure of sale of individual lots. A condition of approval is adopted to ensure that at least 50 transient rentable units will be constructed prior to the sale, lease or long- term rental of individual residential lots or units. A condition of approval is imposed that will require that the remaining facilities and accommodations required by DCC 19.106.060 will be developed or financially assured prior to the sale, lease or long-term rental of individual residential lots. B. All destination resorts shall have a minimum of 160 contiguous acres of land. Acreage split by public roads or rivers or streams shall count toward the acreage limit, provided that the CUP demonstrates that the Isolated acreage will be operated or managed In a manner that will be integral to the remainder of the resort FINDING: The proposed resort site includes approximately 706 contiguous acres of land that will be bisected by Skyline Ranch Road and Metolius Drive, both new roads that will be established as part of the resort It is clear on the conceptual master plan that these roads will not isolate any of the acreage. Rather, they will provide access to additional areas of the property. This criterion is met. C. All destination resorts shall have d6rect access onto a state, county, or city arterial or collector roadway, as designated by the Bend Urban Ares General Plan. FINDING: The resort will have direct access onto Century Drive (a minor arterial) and Skyliners Road (a major collector outside of the UGB and a minor arterial inside of the UGB) via Skyline Ranch Road, a planned collector. The resort will also have access onto Metolius Drive (a collector). This criterion Is met. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 1. The resort shall have a minimum of 50 percent of the total acreage of the development dedicated to permanent open space, excludfing yards, streets and parking areas. Portions ofindvldual residential lots and landscape area requirements for developed recreational facilities, visitor- oriented accommodations or multFfamily or commercial uses established by DCC 1176.080 shall not be considered open space; and CU-04-94 Hearings Of kw Decision (1142005) Page 20 of 42 FINDING: The proposed Open Space Management Plan explains how the resort proposes to maintain open space within the resort. Uses proposed in these open space areas are the golf course, natural common areas, parks and picnic areas, trail network, and exterior setbacks, all of which will be consistent with DCC 19.106. General note #5 of the conceptual master development plan map (Exhibit A-1) indicates the open space acreage will equal at least 50% of the gross project acreage or approximately 353 acres. The applicant has demonstrated that it is feasible to meet this criterion. A condition of approval is adopted to ensure that each preliminary plat submitted for review pursuant to this CMP maintains the 50% open space ratio for the development overall. 2. Individually-owned residential units shall not exceed two such units for each unit of visitor-odented overnight lodging~ Ind(vidually.owned units shall be considered visitor-oriented lodging !f they are available for overnight rental use by the general public f+or at least 45 weeks per calendar year through one or more central reservation and check-ln service(s). FINDING: The applicant has indicated it will maintain the required 2:1 ratio of individually- owned residential units and visitor-oriented overnight lodging. As explained above, the applicant expects to construct 379 single family homes, 210 multi-family homes, and a 300- unit resort hotel, which equals a ratio of 1.96 individually-awned units to each visitor-oriented overnight lodging unti. Thus, the number of overnight lodging units within the hotel will allow the single and multi-family homes to be individually-owned residential dwellings, if the market demands such units. As noted above, if any of the individually-owned units are dedicated to visitor-oriented overnight lodging, they will be available for rental for at least 45 weeks per calendar year through a resort check-in service. The proposed CC&Rs will govem the rental of overnight lodging units. A condition of approval is imposed to insure that the development will not exceed the 2:1 ratio. E. Phasing. A destination resort authorized pursuant to DCC 19.106.060 maybe developed In phases. If a proposed resort is to be developed in phases, each phase shall be as described in the CMP. -Each-individual phase shall meet-the following requirements: 1. Each phase, together with previously completed phases, if any, shall be capable of operating in a manner consistent with the intent and purpose of DCC 19.106 and Goal 8; 2 The first phase and each subsequent phase of the destination resort shall cumulatively most the minimum requirements of DCC 19.-106.060 and DCC 19 76.070, and; 3. Each phase may include two or more distinct non- contiguous areas within the destination resat FINDING: The applicant proposes to develop the resort in multiple phases. The minimum required meeting and eating rooms, 150 units of overnight lodging, and the minimum recreational facilities, previously outlined, will be developed or guaranteed as part of Phase I, thereby ensuring that the resort will operate consistent with the intent and purpose of DCC 19.106 and Goal 8 as each phase develops. Each subsequent phase will maintain the CU-0494 Hearings Officer Decision (1/42005) Page 21 of 42 required percentage of open space and the 2:1 ratio of dwelling units to overnight lodging units. A Dimensional standards: 1. The minimum lot area, width, lot coverage, frontage and yard requirements and building heights otherwise applying to structures in underlying zones and the provisions of DCC 19.88 210 relating to solar access shall not apply within a destination resort. These standards shall be determined by the Planning Director or Hearings Body at the time of the CUP. In detennining these standards, the Planning Director or Hearings Body shall find that the minimum specified in the CUP are adequate to satisfy the intent of the Bend Urban Area General Plan relating to solar access, fire protection, vehicle access, and to protect resources Identit3ed by LCDC Goal 5 which are Identll9ed in the Bend Urban Area General Plan. At a minimum, a 100 foot setback shall be maintained from all streams and rivers. No lot for a single-family residence shall exceed an overall project average of 22,000 square feet in she. FINDING: Since there are no rivers or rimrocks within or adjacent to the proposed expansion area, river and rimrock setbacks are not applicable. There are no Goal 5 resources identified on the Comprehensive Plan in the area of the destination resort. There are no wildlife resources in this area identified in the Comprehensive Plan. The applicant has requested that all uses be exempt from the requirements of solar access. The Hearings Officer finds that the proposed development will be enhanced by assuring solar access; however, the other amenities provided for in the CMP will allow for adequate solar access for residents and visitors and satisfy the intent of the Bend Urban Area . General. Plan-Therefore, -the .Hearings._Officer concludes-that- the.. CMP..need_ not._ comply with the specific solar access standards set out in the DCC or other implementing ordinances. The proposed dimensional and setback standards are set forth in submitted Exhibit T, as amended by the applicant on November 12; 2004 and December 9, 2004. As outlined in Exhibit T, these standards vary for single-family residential, multi-family residential, and commercial and recreational uses. These standards are similar to existing standards for the unincorporated communities throughout Deschutes County. All future subdivision plats within the resort will comply with these, minimum dimensional standards, as amended by the two supplements. To ensure continued compliance as dwellings are constructed, the final standards will be incorporated into the Design Guidelines. 2. Exterior setbacks and buffers. a. A destination resort shall provide for the establishment and maintenance of buffers between the resort and acfacent land uses, includYng natural vegetation and where appropriate, fences, berms, landscaped areas, and other similar types of buffers. CU-04-94 Hearings Officer Decision (1/412005) Page 22 of 42 b, Exterior setbacks shall also be provided to ensure that improvements and activities are located to minimize adverse effects of the resort on uses on surrounding lands. FINDING: The applicant proposes the following exterior setbacks for all structures, including site-obscuring fences greater than three feet in height, to minimize potential adverse effects on adjacent uses. The setbacks shall restrict structures only, and roads and trails shall be permitted within the setback areas. Along the southern resort boundary, adjacent to Century Drive, the structural setback will be 300 feet. However, within this setback area only, the Applicant requests that the CMP approval specify that this setback does not apply to resort signage or gatehouse structures. This will enable the Applicant to dearly mark the main resort entrance along Century Drive. A condition of approval is imposed to allow for no more than three (3) signs advertising the resort, as otherwise allowed under the DCC, and no more than one gatehouse within the resort area near the intersection with Century Drive. Directional and traffic safety signage is allowed. Along the portion of the southern resort boundary adjacent to the USES property (rather than Century Drive), the applicant has proposed a 50-foot structural setback. This setback will wrap around to the western boundary of the resort, along the boundary adjacent to Area 1. Just north of Area 1, the setback will transition to 100 feet along the remainder of the USFS lands. The structural setback (not including roads and trails) will be 50 feet from the northeast comer of the subject property's border with USFS lands to Hosmer Lake Drive. From Hosmer Lake Drive south approximately 750 feet, the applicant proposes an approximately 100-175-foot "no structure" buffer zone along its eastern boundary. For the remainder of its common border with the Broken Top PUD, the applicant proposes a minimum 100 foot building setback (excluding decks) from the eastern resort property line adjacent to the Broken Top golf course. In addition, the applicant proposes building height, second story footage and massing limitations in its design guidelines to better blend with development within the Broken Top PUD. South..o( the.,proposed extension of Metolius Drive, the applicant proposes a 10-acre park and 50-foot building setback that will run along the property's border with the Parks at Broken Top. With respect to the First on the Hill subdivision, the applicant proposes a 50- foot setback along the north boundary of the subdivision. The applicant proposes a 10-foot building setback from the Set-Aside parcel, plus building height limitations in Areas 5 and a to protect western views. Some residents of the First on the Hill subdivision requested that additional setbacks be established between the subdivision and the proposed resort development. The Hearings officer agrees with the applicant that there are adequate topographical and open space buffers between the subject property and the First on the Hill subdivision to render additional setbacks unnecessary. The hearings officer concludes that the proposed external setbacks, and design guidelines outlined above are adequate to minimize the adverse impacts of the resort on uses on surrounding lands. G. Floodplain requirements. The Flood Plain Zone (FP) requirements of DCC 19.71 shall apply to all developed CU-04-94 Hearings Officer Decision (142005) Page 23 of 42 portions of a destination resort in an FP Zone in addition to any applicable criteria of DCC 19.106... FINDING: There is not identified Flood Plain with the proposed resort area. Therefore, this criterion does not apply. H. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland shall be a separate conditional use subject to all pertinent requirements of DCC Title 19. FINDING: There are no streams, rivers, or wetlands within the resort area. Therefore, this criterion does not apply. 1. Time share units not included in the overnight lodging calculations shall be subject to approval under the conditional use criteria set forth In DCC 19.100. lime share units identified as part of the destination resort's overnight lodging units shall not be subject to the time share conditional use criteria of DCC 19.100. FINDING: The applicant has indicated any time share units constructed within the resort will be included in the overnight lodging calculation, but has not specified if any are proposed or where they would tie located. Staff assumed none are proposed at this time and are not included in the calculation of overnight lodging calculations previously identified. This criterion is met. 3. Section 19:1_06.070. Aaoroval Criteria, A. The subject proposal is a destination resort as defined in DCC 1104.040. "Destination resort" means a self-contained development that pr Mdes - for visitor-orleni~ed. .accommodations - and develop recreational facilities in a setting with high natural amenities. To qualify as a "large destination resort" under Goal 6, a proposed development must meet the following standarals: A. The resort Is located on a site of 160 or more acres; B. At least 50 percent of the site is dedicated to permanent open space, excluding yards, streets, and parking areas; C. A least $7 million (In 1993 dollars) shall be spent on improvements for on-site developed recreational facilities and visitor-oriented accommodations exclusive of casts for land, sewer and wafter facilities and roads. Not less than one-third of this amount shall be spent on developed recreational facilities, and; D. Vlsitor-odented accommodations are provided, including meeBng rooms, restaurants with seating for 100 persons and 150 separate rentable units for overnight lodgings. Accommodations available for residential use shall not exceed two such units for each unit of CU-04-94 Hearings Officer Decision (1142005) Page 24 of 42 overnight lodging. However, the rentable units may be phased In as follows: 1. A total of 150 units of overnight lodging shall be provided as follows: a. At least 75 units of overnight lodging, not including any individually owned homes, lots or units shall be constructed or guaranteed through surety bonding or equivalent financial assurance prior to the closure of sale of individual lots or units, and; b. The remainder of the overnight lodging units shall be provided as individually owned lots or units subject to deed restrictions that limit their use to overnight lodging units. The deed restrictions may be rescinded when the resort has constructed 150 units of permanent overnight lodging as required by DCC 19.04.040. 2. The number of units approved for residential sale shall be not more than two units far each unit of permanent overnight lodging provided under DCC 19.04 040(D)(1)(a), and, 3. The development approval shall provide far the construction of other required overnightlodging units within five years of the initlal lot sales. E. Commercial uses allowed are limited to those types and levels necessary to meet the needs of visitors to the development industrial uses of any kind are not permitted FINDING: The Hearings Officer relies on the findings for DCC 19.106.060(A), (B), (D) and (E), above, to conclude that the proposal meets the definition of destination resort set out in DCC 19.04.040(A) - (D). The Hearings Officer finds that a condition of approval that requires site plan review for all commercial uses on the property will assure that those uses are limited to the types and levels necessary to meet the needs of visitors and residents of the development. The applicant does not propose any industrial uses, and no industrial uses-are-approved-as a result of this decision. This criterion is met. B. All standards established by DCC 19.106.060 are or will be met FINDING: Compliance with DCC 19.106.060 is addressed above. As stated, the applicant has demonstrated that the standards set forth in DCC 19.106.060 can be met. The Hearings Officer finds that the standards are met, or can be assured by conditions of approval that assure compliance with the relevant standards. C. The economic analysis demonstrates that: 1. The necessary financial resources are available for the applicant to undertake the development consistent with the minimum investment requirements established by DCC 19.106; 2. Appropriate assurance has been submitted by lending institutions or other financial amides that the developer has CU-04-94 Hearings Officer Decision (11412005) Page 25 of 42 or can reasonably obtain adequate fiinenclal support for the proposal once approved; 3. The destination resort will provide a substantial flnencial contribution which positively benefits the local economy throughout the life of the entire project, considering changes in employment; demands for new or increased levels of public service, arousing for employees and the effects of loss of resource land, and; 4. The natural amenities of the site considered together with the identiffed developed recreation facilities to be provided with the resort will constitute a primary attraction to visitors, based on the economic feasibility analysis. FINDING: The applicant provided substantial, uncontroverted evidence in the form of an Economic Feasibility Analysis prepared by Economics Research Associates (ERA), letters from Callan Accounting Services, Bank of America, and Intervest Mortgage Investment Company, that demonstrate the owner, CHLLC, and the developer, Atwood Development, have the necessary financial resources to meet the minimum development and investment standards of DCC 19.106. In addition, the ERA report sets out the financial contributions that the resort will make to the local economy, including the contributions to the construction industry, the employee base, payroll and benefits package, the property tax, and transient room tax revenues for Deschutes County. The Hearings Officer conches that resort will positively benefit the local economy by providing employee housing within the resort boundaries. Finally, the ERA Report demonstrates that visitors will be attracted to the resort based upon the high-quality of the proposed recreational facilities that include an 18-hole golf course and the exceptional scenic vistas will constitute the primary attraction to the visitors. This criterion is met. D. The destination resort incorporates design components, setbacks, and buffers to protect designated wildlife areas. FINDING: The applicant submitted a Wildlife Evaluation. as. Exhibit _D to its application,- At the November 16, 2004 hearing, the applicant submitted a revised wildlife plan and indicated that the revised plan, dated November 2004, is satisfactory to ODFW staff. The revised wildlife plan shows the resort has been designed to protect and supplement the wildlife habitat within the resort boundaries, particularly within the designated 50% open space areas. As detailed in the Wildlife Evaluation, the resort property does not currently provide significant wildlife habitat due to the impacts of the Awbrey Hall fire and the lack of any natural surface water. In addition, the site does not contain any inventoried Goal 5 resources, nor is it within a wildlife overlay. The resort development will actually create wildlife habitat by installing water features and irrigated turf areas, and maintaining 50% open space at all times. As explained above, the Applicant also proposes to provide an irrigated, grass buffer between the dwellings to the immediate west of Skyline Ranch Road and the USFS boundary. The buffer will be 100 feet along the majority of the western boundary, narrowing to 50 feet adjacent to Area 1. The building envelopes and landscaping requirements imposed by the CC&Rs will maintain this buffer along the western half of the lots adjacent to the buffer. This buffer will provide a transition to the undeveloped USFS lands, thereby maintaining existing wildlife habitat on the USFS property. The additional CU-04-94 Hearings Officer Decision (1/4/2005) Page 26 of 42 mitigation measures to be imposed throughout the property are detailed in the chart set forth in the Wildlife Evaluation. These measures will protect and enhance wildlife areas, consistent with this criterion. Conditions of approval are imposed to require that all development be consistent with the revised wildlife plan and that the applicant provide evidence that ODFW supports the mitigation outlined in the applicant's November 2004 wildlife plan . E. Important natural features, including but not limited to, significant wetands, riparian habitat and landscape management corridors will be maintained Riparian vegetation within 100 feet of streams, rivers and significant wetlands will be maintained. Alterations to important natural features, Including placement of structures, is allowed $o long as the overall values of the feature are maintained. FINDING: There are no known or identified °important natural features' within the proposed resort boundaries. However, there are many natural rock outcrop features and rock formations which have been incorporated into the design of the resort, as shown on the submitted site plan, Exhibit A. In addition, the proposed golf course will include several water features, which will create riparian habitat. in addition, the sonic vistas of the Cascade Mountain from existing dwellings and parcels have been taken into consideration in the design and orientation of facilities, open space buffers, and other specific height limitations. To the extent this criterion is an applicable approval standard, the Hearings Officer finds that the proposed CMP will allow for the preservation of natural features on the prWperty. A The development will not force a significant change in accepted farm or forest practices or significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. FINDING: The proposed resort does not abut any active farming operations. Although the resort borders USFS land to the west and south, the subject USFS property is not actively employed for intensive forest practices, and the applicant states it is unlikely that active logging will resume due to the proximity of the USFS property to the Bend Urban Area Reserve. Therefore, the applicant asserts the proposed development will not force a significant change in or significantly increase the cost of accepted farm or forest practices on surrounding lands. The applicant has indicated it met with the District representative for the USFS, who expressed support for the proposed resort and did not express any concerns regarding potential impacts on forest practices on the USFS lands. Staff did not receive comments from the USFS in response to the mailed request for comment. The Hearings Officer finds that the proposed development wlli not force a significant change in accepted forest practices or significantly increase the cost of accepted forest practices, due to the limited nature of those practices in the area. G. Destination resort developments that signN/candy affect a transportation facility shall assure that the development Is consistent with the identified function, capacity and level of service of the facllity. This shall be accomplished by either. CU-04-94 Hearings Officer Decision (11412005) Page 27 of 42 1. Limiting the development to be consistent with the planned function, capacity and level of service of the transportation facility. 2. Providing transportation facilities adequate to support the proposed development consistent with OAR Chapter 660, Division 12; or 3. Altering land use densities, design requirements or using other methods to reduce demand for automobile travel and to meet travel needs through other modes. - A destination resort significantly affects a transportation facility if it would result in levels of travel or access that are inconsistent with the functional classification of a facility or would reduce the level of service of the faclllty below the minimum acceptable level Idendfied In the relevant transportation system plan. a. Where the option of providing transportation facllldes is chosen, the applicant shall be required to improve impacted roads to the full standards of the affected authority as a condition of approval. TIming of such improvements shall be based upon the dining of the Impacts created by the development as determined by the traffic study or the recommendations of the affected road authority. b. Access within the project shall be adequate to serve the project in a safe and efficient manner for each phase of the project: FINDING: During the November 16, 2004 hearing, several persons testified that they believed that the Swarens Avenue/Century Drive intersection poses a potential traffic safety hazard. Some of the commentors suggested that Swarens Avenue, Century Drive and the proposed Skyline Ranch Road be reconfigured as a round-about The applicant responded that Swarens Avenue is not part of the subject property, and that local and state transportation agencies had considered the concept of a round-about for Swarens Avenue, but concluded that the round-about configuration would not resolve traffic safety issues, nor improve accessibility in the area. The applicant added that, while it would consider joining group to study alternatives to improve traffic conditions on Century Drive, it believed that its traffic study demonstrated that the proposed development is consistent with prior development agreements that set out the necessary off-site transportation improvements that must be in place prior to the approval of a destination resort development on the subject property and at the time the development is fully built out. Other persons testified that while they were not opposed to the proposed development, they feared that the proposed extension of Metolius Drive would result in greater volumes of traffic and increases in traffic speed on the existing segment of Metolius Drive. These persons requested that the applicant be required to install a round-about at the intersection of Metolius Drive and Washington Drive, and that speed bumps or other traffic calming devices be installed to slow vehicles as they travel through residential areas. As explained above, the proposed resort is within the maximum density authorized by the Westside Consortium Development Agreement (included in the application as Exhibit F). The findings adopted in support of the Development Agreement specifically address this approval criterion: CU-04-94 Hearings Officer Decision (1142005) Page 28 of 42 * * [A]s a result of the improvements to the transportation infrastructure provided for pursuant to the Development Agreement, Cascade Highlands has satisfied its obligations to provide off-site transportation mitigation within the City of Bend in connection with the Proposed Development, as required by Section 19.106.107(G) of the destination resort provisions of the Bend Urban Growth Area Zoning Ordinance (DCC Title 19). * * That conclusion was not challenged at the time the development agreement was approved by the county, and may not be collaterally attacked now. The Traffic Impact Analysis from Kittelson & Associations demonstrates that the resort will be consistent with the identified function, capacity and level of service of all 'on-site' transportation facilities, with the proposed mitigation measures. As documented by the traffic study, the proposed development Is within the Maximum Density and the authorized number of vehicle trips authorized by the Development Agreement and associated West Bend Traffic Study. The proposed resort, combined with the traffic associated with The Highlands subdivision in the northwest comer of the CHLLC tract, will generate 25 fewer p.m. peak hour trips than the total trips approved as part of the Development. Therefore, no further 'off-site' analysis is necessary, and the traffic impact mitigation required by the Development Agreement is sufficient to demonstrate compliance with this approval criterion with respect to impacts on the off-site City of Bend transportation facilities. The traffic study concludes that all of the intersections will operate acceptably in 2020, with full buildout of the resort, with the exception of eastbound turns at the Metolius DriveWashington Drive intersection. The applicant has indicated it will construct following intersection improvements to maintain safety and functionality. • Eastbound left turn and westbound right turn lanes on Century Drive at the Century Drive/Skyline Ranch Road Intersection. • A roundabout at the Metolius Drive/Skyline Ranch Road intersection. • Widening of the eastbound lane at the Metolius Drive/Mt. Washington Drive intersection. • Maintenance of landscaping at all intersections to maintain adequate sight distance. Proposed street and pedestrian path standards for the resort are described and justified in the submitted vehicle and pedestrian access plan identified as Exhibit V. The internal road improvements, as specified in the comments received from the County Road Department are included as conditions of approval. The Hearings Officer finds that the proposed CMP is consistent with the identified function, capacity and level of service of the affected facilities, and that the proposed development will not significantly affect any transportation facility within the meaning of DCC 19.106.060(G). No further off-site mitigation is required. H. The development will not create the potential for natural hazards Identftled In the Bend Urban Area General Plan. No structure will be located on slopes exceeding 25 percent A wildfire management plan will be implemented to CU-04-94 Hearings Officer Decision (114/2005) Page 29 of 42 ensure that wildfire hazards are minimized to the greatest extent practical and allow for safe evacuation. FINDING: The steepest slope on the site is 25 percent. No structures will be placed on slopes exceeding 25 percent, and this prohibit= has been incorporated into the Design Guidelines. The Hearings Officer finds this standard can be met by imposing a condition of approval requiring County Forester acceptance of any Wildfire Mitigation Plan that does not conform to the Firewise Community standards referred to in the County Forester's initial comments regarding the application. 1. Adequate public safety protection will be available through existing fire districts or will be provided on-site accorcling to the specification of the state fire marshal. If the resort is located outside of an existing fire district, the developer will provide for staffed structural fire protection services or contract with or annex to the existing district: Adequate public facilities to provide for necessary safety services such as police and fire will be available to serve the proposed development` FINDING: As explained above, fire protection will be provided by the Deschutes County Rural Fire Protection District #2, and police protection will be provided by the Deschutes County Sheriff. In addition, with the roads constructed to County standards and water supplied by the City's water system, adequate public facilities will be provided for necessary safety services. In addition, the applicant has committed to minimizing wildfire hazards by incorporating building design standards that will prohibit construction of structures and landscaping that will add fire fuel to the area. The Hearings Officerfinds that the proposed safety measures, site design and existing public services will assure that adequate public facilities and services are available to serve the development. J. Streams and drainage. Unless otherwise agreed to In writing by the adjoining property owner(s), existing natural drainages on the site will not be changed in any manner which Interferes with drainage patterns on adjoining property. All surface water drainage changes created by the development will be contained on-site in a manner which meets all standards of the Oregon State Department of Environmental Quality (DEQ). The erosion control plan for the subject development will meet all standards of ORS Chapter 4688. FINDING: The proposed Erosion Control Plan, submitted Exhibit O, documents that surface drainage will be controlled on-site. Drainage within roadways will be contained by curbs, asphaltic concrete thickened edges, or roadside swales in densely developed areas with high stormwater contributions, or steep areas with high erosion potential. Drainage from streets will be directed to natural drainage channels or constructed swales with a vegetated or rip-rap lined flow channel. Alternatively, excess drainage can be directed to standard dryweils, constructed and registered under the DEQ Quality Underground Injection Control Device program. CU-04-94 Hearings Dicer Decision (1142005) Page 30 of 42 The resort will encourage single-family homes to control drainage within their own lots or adjacent common property. Rooftop and driveway drainage will typically be directed to landscaped areas or adjacent natural open spaces for surface infiltration. High-density residential or commercial developments will accommodate all runoff from rooftops, parking areas, and impervious surfaces on the lot or a developer-approved off-site area. This runoff may be collected using drywells or by piping stormwater to off-site retention basins, golf course water features, or natural areas for surface infittration. The Hearings Officer finds that it is feasible to meet this criterion by imposing conditions of approval to assure compliance. X Adequate water will be available for all proposed uses at the desdnadon resort; based upon the water study, a water service agreement with the city of Bend or a proposed water conservation plan as "required by DCC 19.106.050. Water use will not reduce the availability of water In the water Impact areas identified in the water study considering existing uses and potential development previously approved in the affected area. Water sources Idendfled in the water plan shall not include any perched water table. Water shall only be taken from the regional aquifer. Where a perched water table is pierced to access the regional aquifer, the well must be sealed off from the perched water table. FINDING: The proposed Water Master Plan and the letter of commitment from the City of Bend demonstrate that adequate domestic water will be available from the City's water system. The applicant indicates it currently possesses adequate irrigation rights to meet the irrigation needs of the 180-acres golf course and landscaped common areas, which will require approximately 1.45 million gallons a day during peak consumption. The Plan further demonstrates that the resort's water use will not reduce the availability of water in the impact area. As noted in the letter from the City, the applicant has submitted a formal application for a water and sewer service agreement, and it is expect this agreement will be executed prior to Final Master Plan approval for the resort. This criterion is satisfied. L Unless a sewer service agreement exists, the waste water disposal plan includes beneficial use to the maximum extent practicable. Approval of the CUP shall be conditioned on applicants making appikadon to DEG for a Water Pollution Control Facility (WPC19 permit consistent with such an approved waste water disposal plan. Approval shall also be conditioned upon applicant's compliance with applicable Oregon Administratfve Rules regarding beneficial use of waste water, as determined by DEQ. Applicant shall recelve approval of a WPCF permit consistent with this provision prior to applying for approval for its final master plan under DCC 19.106. FINDING: The proposed Sewer Master Plan states the applicant proposes to provide sewer service to the resort via an agreement with the City of Bend. As explained in the letter of commitment from the City, the City is prepared to serve the resort, and the applicant expects to execute a sewer service agreement with the City prior to Final Master Plan approval. CLL04-94 Hearings Officer Decision (1142005) Page 31. of 42 During the November 16, 2004 hearing, a resident of First on the Hill subdivision requested that the sewer connections between the city and the proposed resort be designed to allow for eventual connection by residents of lots located at the north of the First on the Hill subdivision. According to the testimony, currently property owners of those northern lots have septic systems, and an opportunity for access to sewers in the future should be considered to ensure public safety. The applicant does not oppose working with the city to design such a system; however, the applicant does not want such a concession to run afoul of the requirements of Goal 8. The Hearings Officer finds that system design should be coordinated with the City, however, the Hearings Officer does not require that such design coordination be made a condition of approval for the resort. M. The resort will miflgate any demands it creates on publicly owned recreational facilities on public lands in the surrounding area. FINDING: The Westgate Parcel exchange resulted in the creation of the Set-Aside parcel, located between the resort site and the Fast on the Hill subdivision. Pursuant to the Agreement Regarding Contribution and Use of Parcel, BMPRD will construct a '-acre park with picnic facilities, a parking area, a playground, natural meadows, and trails within the Set-Aside Parcel. The remaining 9 acres of the Set-Aside Parcel will be dedicated to natural open space, trails, and a trailhead parking area off of West Campbell Road. CHLP provided a payment bond in the amount of $75,000 to defray the costs of construction of the park improvements. In addition, pursuant to the Declaration of Covenants associated with the Westgate Parcel exchange, the Applicant has also reserved acreage for a 10-acre public park within the resort boundaries, north of the Westgate parcel, and the resort will also maintain and construct trails within the resort parcel to connect the urban area to the east with the recreational trails on the USFS lands to the west To the extent the proposed resort will create additional demands on publicly owned recreational facilities In the area, the Hearings Officer finds that the proposed internal trail connections and the-contribution of land and money to develop a total park to the southeast are adequate to mitigate those additional demands. This criterion is satisfied. N. Site improvements will be located and designed to avoid or minimize adverse effects of the resort on the surrounding land uses. Measures to accomplish this may include establishment and maintenance of buffers between the resort and at#acent land uses, including natural vegetation and appropriate fences, berms, landscaped areas and similar types of buffers, and setback of structures and other developments from acfacent land uses. FINDING: As described above, the applicant proposes to minimize impacts on the residential lands to the east by Implementing the measures set forth in the Westgate Parcel exchange documents. Pursuant to the MOU and associated Declaration of Covenants, all structures within the 'height restriction areas' depicted in submitted Exhibit C to the Declaration of Covenants will be limited to 30 feet in height to preserve view corridors for the dwellings to the east of the resort, As depicted in Exhibit D to the Declaration, the CU-04-94 Hearings Officer Decision (114/2005) Page 32 of 42 neighborhood park and associated natural open space areas to be constructed on the BMPRD °Set Aside Parcer will provide a minimum of a 300-foot buffer between the western boundary of the First on the Hill subdivision and the core resort facilities. Finally, Exhibit E to the Declaration also depicts a 1,250-foot collector road setback to provide sufficient distance between the First on the Hill subdivision and Skyline Ranch Road. The Conceptual Master Plan implements these measures. To provide additional parkland for the benefit of the community, including the First on the Hill subdivision, the applicant has also designated a 10-acre area for a future public park north of the Westgate Parcel, in the location depicted on the Conceptual Master Plan map. With respect to the Braebum subdivision and Entrada Lodge to the south, the applicant proposes to construct the intersection improvements on Century Drive, as described in the traffic study (eastbound left-turn and westbound right-turn lanes at the intersection of Century Drive and Skyline Ranch Road). This will serve to maintain safety at the proposed intersection and will calm traffic adjacent to the subdivision. Furthermore, due to the dramatic rise in the topography within the resort parcel, starting at Century Drive and moving north, the resort structures will be significantly separated from the development on the south side of Century Drive. With respect to the undeveloped USFS land to the west, the applicant proposes to maintain a 100-foot buffer along the majority of the USFS boundary, and a 50-foot buffer adjacent to Area 1. This buffer is depicted on the Conceptual Setback Plan, submitted Exhibit A-4. The resort CCBRs will mandate building envelopes for the lots between the USFS boundary and Skyline Ranch Road. All development within these lots will be confined to the envelopes, and the areas west of the envelopes, adjacent to the USFS land, will be maintained as irrigated grass. Shrubs and fire fuels will be removed. This buffer will provide a transition between the resort and the USFS lands. Furthermore, due to the proposed layout of the north-south collector, the majority of the core resort development will be concentrated on the east side of the collector, away from the USFS lands. Additionally, because the main use of the USFS lands is recreational, the applicant will install the trails required by the Westgate Parcel exchange documents to provide continued access between the Bend urban area and the trails on the USFS property. The area proposed to be subject to the 304oot building height limitation is depicted on a map included in Exhibit K A property description of the area is included on the page following the map. The Hearings Officer finds that the proposed 30-foot building height limitation encompasses portions of Areas 5, 6, and 8. Areas 5 and 6 are proposed for townhouse development. Area 8 is proposed for muld4amily rental housing. In the portions of Areas 5, B and 8 that lie outside of the 30-foot height limitation area, the applicant proposed a 50-foot height limitation for non-single family residential development (see Exhibit T, pages 1 and 2). At the November 16, 2004 hearing, residents of the First on the Hill Subdivision expressed concern that the proposed maximum building height will impede their views of Mt. Bachelor. In written testimony submitted on November 29, 2004, David Smiley and Marika Smiley stated that they believed that 50-foot high multi-family and townhouse structures would create a "monolithic" effect. The Smileys recommend that the height limits of structures should be graduated, so that buildings with lower heights are located nearer to the First on the Hill Subdivision, and that higher buildings, to the extent they may be permitted at all, should be located farther west, and at lower elevations. The Smileys testified that they believed building heights within Areas 5, 8 and 8 should not CU-04-94 Hearings Officer Decision (1/4/2005) Page 33 of 42 exceed 35 feet under any circumstances. Other written testimony from residents of First on the Hill echo these sentiments. The Smileys and other property owners within First on the Hill also testified that they believed the proposed townhouses and multi-family housing themselves are not compatible with the high-end single family dwellings located within the First on the Hill Subdivision. The Smileys conceded that townhouses are located within the Broken Top PUD, but argue that the proposed locations of the multi-family housing and townhouses are not compatible with the nearest dwellings located within the First on the Hill Subdivision. The Smileys suggested that if multi--family and townhouse development is located within the central portion of the subject property, the proposed destination resort would be more compatible with adjacent development Other residents of the First on the Hill Subdivision also make that request. In addition, residents of the Broken Top PUD testified that the proposed setback for their properties was not what they were promised when they were first approached regarding the proposed development Some of the residents of the Broken Top PUD testified that they understood that the residential setback from their western property lines would be no less than 75 feet. In response to the above testimony by neighboring property owners, the applicant expanded its proposed setbacks with the Broken Top PUD to a range of 90 to 120 feet from their common property boundary. In response to the comments from the First on the Hilt residents, the applicant purposes to limit building heights for the north portion of Area 5 and that portion of Area 8 located outside of the building height limitation area to 35 feet. For the southern portion of Area 5, the applicant proposes a 39-foot height limit These areas are more specifically depicted in Applicant Response Memo Ex. A-fi. The Hearings Officer finds that as modified, the proposed building height limitations, design standards and setbacks are will limit the impact the proposed development has on property located to the east. In addition, as more fully explained below, the location of the proposed multi-family and townhouse development will not adversely affect the surrounding land uses. This criterion is met 0. The resort will be served by an on-site sewage system approved by DEG and a water system approved by the Oregon State Health Division, or by municipal sewer and water as allowed by the Bend Urban Area General Plan. FINDING: As detailed in the Sewer and Water Master Plans, the applicant asserts the resort will be served by municipal sewer and water service, as allowed by the Bend Urban Area General Plan_ The applicant has applied for a water and sewer service agreement with the City and experts to have an executed agreement prior to Final Master Plan approval. The letter of commitment from the City demonstrates the availability of City services to the resort This criterion is satisfied. P. The destination resort will not alter the character of the surrounding area in a manner that substantially limits, impairs or prevents permitted or condMonal uses of surrounding properties. CU-04-94 Hearings Ofticer Decision (1/4/2005) Page 34 of 42 FINDING: The properties to the north, east, and south of the,resort are zoned for residential use (UAR-10, RS, and RM). These properties are developed with the Broken Top PUD and the associated golf course, clubhouse, swimming pool, and tennis courts, the First on the Hill Subdivision, and the Braebum subdivision. In addition, one parcel immediately south of Century Drive and west of the Braebum subdivision is zoned Limited Commercial and developed with the Best Western Entrada Lodge. As noted above, residents of the First on the Hill Subdivision testified that they believed that the proposed development will alter the character of the surrounding area, as it will include transient multi-family and townhouse development, and the proposed 50-foot building height for development in the southeast portion of the property will impede views. The Hearings Officer concludes that the standard is not intended to require an applicant to ensure that the proposed development is compatible in all respects to adjacent development. Rather, the standard requires that a proposed development viewed in total not alter the character of the surrounding area to such an extent that the development will substantially limit, impair or prevent the establishment or continuation of permitted or conditional uses of surrounding properties. The opponents have not established that the proposed destination resort Itself will substantially limit, impair or prevent residential development on properties located to the east of the subject property, and the Hearings Officer finds no such limitation. However there is substantial evidence to find that a 50-foot binding height in Areas 5 and 8 will substantially impair the view from permitted residential development in the First on the Hill Subdivision. The Hearings Officer concludes that if the maximum building height for structures located within Areas 5 and 8 is limited as Is proposed by the applicant in its Response Memo A-6, the proposed development will not alter the character of the surrounding area or impair permitted uses. The density of the proposed development and the proposed setbacks for the commercial, townhouse and multi-family units are sufficient to ensure that the overall residential character of the surrounding area will be maintained. The established and allowed uses on these parcels (dwellings, and for the CL zone, general commercial uses such as the hotel, retail, banks, grocery stores, etc.) are similar to and compatible with the uses that will be sited within the resort. Furthermore, the density of residential development permitted within the resort is comparable to the densities allowed and already present on the adjacent residential-zoned properties. Because 50% of the resort is required to be maintained as open space at all times, the resort as a whole will actually be less dense than adjacent properties. With respect to the land to the west, which is zoned F-1, the resort will not limit the types of forestry uses likely to continue on the USFS property, including open space preservation, recreational trails, wildlife habitat, and low intensity forest maintenance activities. As noted above, the applicant ensures continued access to the USFS lands for recreational purposes by installing trails to conned the urban area with the USFS property pursuant to the Westgate Parcel exchange documents. In addition, following consultation with the USFS prior to submittal of this application, the applicant has proposed a 100-foot setback along the majority of the USFS lands, narrowing to 50 feet adjacent to Area. The buffer will be enforced through the use of building envelopes for the lots between the USFS lands and Skyline Ranch Road. The resort CC&Rs will mandate development within these envelopes and will require the lot areas outside of the envelopes and within the buffer to be maintained as irrigated grass. This will concentrate development towards the road rather than the USFS boundary, and will maintain an irrigated buffer for the benefit of wildlife and wildfire protection. CU-04-94 Hearings Officer Decision (1142005) Page 35 of 42 For these reasons, the Hearings Officer concludes that provided the maximum building height for structures located in Areas 5 and 8 is limited as outlined above, the proposed development will not alter the character of the surrounding area in a manner that substantially limits, impairs or prevents permitted or conditional uses of surrounding properties. The Hearings Officer acknowledges the concern that property owners to the east have expressed about the establishment of housing types that do not exist on abutting properties, but concludes that multi-family and townhouse type buildings will not result in substantial limitations on permitted or conditional uses with in the meaning of this standard. Q. The commercial uses developed as part of the resort will be contained within the project and not oriented to pubic highways aclacent to the property. The commercial uses permitted in the destination resort wig be limited in type and levels of use necessary to meet the needs of resort visitors. A commercial use is necessary to serve the needs of visitors ff., 1. its primary purpose is to provide goods or services that are typically provided to overnight or other short-term visitors to resorts, or the use Is necessary for operation, maintenance or promotion of the destination resort, and 2. The use is oriented to the resort and Is located away from or screened from highways or other major through roadways. FINDING: The commercial uses will Iikely be limited to Areas 2, 3 and 4, as noted on the Master Plan Map, submitted Exhibit A-1. As shown thereon and on the Conceptual Setback Plan, Areas 2, 3, and 4 are set back over 300 feet from Century Drive. In addition, due to the topography of the southern portion of the site, Areas 2, 3 and 4 are approximately 100 feet higher than Century Drive. These Areas are also located on the north side of the Eastern Local Loop Road and Skyline Ranch Road. The Hearings Officer notes that, as proposed, the height of buildings within the commercial areas may reach up to 50 feet from grade. From the topographic map included in the application, the commercial areas will be visible from Century Drive, because they will be located on elevations between 10 and 15 feet below the highest elevation of the ridge that rises from Century Drive. The Hearings Officer concludes that in order to better screen the commercial uses from Century Drive, the maximum allowable building height for commercial uses should be no more than 40 feet. With the reduction in maximum building height from the requested 50 feet to 40 feet, the Hearings Officer finds commercial uses in these areas will be accessible from, but oriented away from, Century Drive. Orientation to Skyline Ranch Road will be reviewed at the time of future site plan review for each commercial use. At that time, the applicant has indicated it will also demonstrate that the primary purpose of each proposed use is to provide goods or services that are typically provided to overnight or other short-term visitors to resort, or are necessary for the operation, maintenance or promotion of the resort. A condition of approval is imposed to assure compliance with this criterion. R. A plan exists to ensure a transfer of common areas, facilities such as sewer, water, streets and responsibility for police and fire protection to owners' associations or similar groups if contemplated. ff such transfer is not contemplated, the owner or responsible party shall be clearly designated. CU-04-94 Hearings Ofker Decision (1/4/2DDS) Page 36 of 42 Adequate open space, facility maintenance and police and fire protection shall be ensured In perpetuity in a manner acceptable to the County. FINDING: The plan to ensure the transfer and maintenance of common areas is set forth in the proposed CC&Rs. - S. Temporary structures will not be allowed unless approved as part of the CMP. Temporary structures will not be allowed for more don 18 months and will be subject to all use and site plan standards of DCC Tltie 19. FINDING: The applicant has requested approval to establish temporary structures for sales and construction purposes. The nature of each structure will be sub'ect to review by the County during future site plan or plat reviews. As required gy this section, no temporary structure will be allowed for more than 18 months, and will be subject to all use and site plan standards. A condition of approval is imposed to assure compliance with this standard. T. The open space management plan Is sufficient to protect In perpetuity identified open space values. FINDING: The CC&Rs, set out in Exhibit 1, require that the developer and its successors in interest (a homeowners' association and property owners within the resort) maintain at least 50 percent of the property as open space. The CC&Rs allow for conversion or sale of open space property, if it is excess property (that is, the sale or conversion will not result in less than 50 percent of the property being left as open space) and at least 75 percent of the property owners agree to the sale or conversion. Don Pedersen and Darcey Pedersen requested that a condition of approval be imposed to ensure that all. trails that will be constructed to link the USFS with other properties in the area be retained as public trails. The applicant does not oppose such a condition of approval. The Hearings Officer agrees that a condition requiring that trail access remain open to the public at large will be a reasonable assurance that the trails remain available for persons to enjoy open space values on and near the subject property. The Hearings Officer finds that the Open Space plan, the CC&Rs and the condition of approval are adequate to assure that the open space values are protected. U. A mechanism to ensure that Individually-owned units counting toward the overnight lodging total remain available for rent for at least 45 weeks per calendar year through a central reservation and check-in service. Such a mechanism shall Include all of the following: 1. Designation on the plat of which individually owned units are to be considered to be overnight lodging as used In DCC 19.106; 2. Deed restrictions limiting use of such identired premises to overnight lodging purposes under DCC 19.106 for at least 45 weeks each rear; 3. Inclusion in the CCARIs of an Irrevocable provision enforceable by the County limiting use of such identified CU-04-94 Hearings Officer Decision (1/4/2005) Page 37 of 42 units to overnight lodging purposes under DCC 19.106 for at least 45 weeks each year, 4. inclusion of language In any rental contract between the owner of the unit and any central reservation and check In service requiring that such units be made available as overnight lodging facilities under DCC 19106 for at least 45 weeks each year, and & A requirement that each such unit be registered and a report be filed on each such unit yearly by the owner or central booking agent on January 1 with the Planning Division as to the following Information: a. Who the owner or owners have been over the last year; b. How many nights out of the year the unit was available for rent through the central reservation and check-in service, and c. How many nights out of the year the unit was rented out as an overnight lodging faclllty under DCC 19.106. FINDING: The proposed CC&Rs include the necessary text to ensure that any single and multi-family dwellings used as overnight lodging units are available for rental 45 weeks per year. As noted above, the proposed number of hotel rooms will allow the resort to preserve the single and mufti-family dwellings for individual ownership if the market demands and the hotel alone will provide the minimum number of rental units on a year- round basis. 1. Section 19.1 .030 Conditional Use Criteria Because a destination resort is permitted as a conditional use in the UAR-10 zone, it is necessary to demonstrate compliance with the general conditional use criteria of Title 19. A. That the location, she, design and operating characteristics of the proposed use are such that it will have minimal adverse Impact on the property value, livability and permissible development of the surroundIng area. Consideration shall be given to compatibility in terms of scale, coverage and density with the alteration of trait pattems and the capacity ofsurrounding streets and to any other relevant impact of the proposed use. FINDING: The potential impacts of the resort on the adjacent properties, and the proposed mitigation measures, are addressed above and incorporated herein by reference. In addition, the submitted traffic study and discussed above demonstrates that, with the traffic mitigation proposed, the traffic patterns created by the resort will not reduce the capacity of the surrounding streets in a manner that would negatively impact adjacent uses. This criterion is satisfied. B. That the site planning of the proposed use will, as far as reasonably possible, provide an aesthedcally pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting. CU-04-94 Hearings Officer Decision (1/4/2005) Page 38 of 42 FINDING: The applicant has designed the proposed resort to provide an aesthetically pleasing and functional environment for resort owners, guests, and the surrounding community. The design highlights existing topographical features and integrates the residential and recreational facilities into the existing high desert environment. As a result of the Westgate Parcel exchange, construction of the resort will result in the creation of a 14 acre park adjacent to the First on the Hill subdivision, a 10-acre park north of the Westgate Parcel, trails connecting the urban area to the USFS property, and view corridors to preserve views of the mountains from properties to the east. These additional public amenities will contribute to an aesthetically pleasing and functional development. C. That N the use Is permitted outright in another zone, there is substantial reason for locating the use in an area where it is only condftiona/ly allowed, as opposed to an area whom it Is permitted outright. FINDING: Destination resorts are permitted only as conditional uses on properties within the DR overlay zone. D. That the proposed use will be consistent with the purposes of DCC Tide 19, the Comprehensive Plan, Statewide Goals and any other applicable statutes, ordinances or policies. FINDING: As detailed above, the proposed resort is consistent with the purposes and standards of Title 19, the Comprehensive Plan, and all applicable Goals, particularly Goal S. There are no Plan policies or Statewide Goals that are directly applicable to the CMP application. Rather, the applicable policies and goals are implemented by DCC Title 19, the provisions of which are addressed above. IV. DECISION: Based on the above findings of fad and conclusions of law, the Hearings Officer hereby APPROVES VWTH CONDITIONS the application. The conditions of approval are as follows. 1. All development in the resort shall require tentative plat approval through Title 17 of the County Code, the County Subdivision/Partition Ordinance, and/or Site Plan Review through Title 19 of the County Code, the Bend Urban Growth Boundary Ordinance. 2. The applicant shall provide a signed formal agreement with the City of Bend for connection to the City of Bend sewage treatment plant. A copy of the signed contract with the City of Bend shall be submitted with the Final Master Plan application. 3. As specified by the County Road Department: a. The developer will design and construct the road system in accordance with section 17 of the Deschutes County Code (DCC). Road improvement plans shall be approved by the Road Department prior to construction. CU-04-94 Hearings Officer Decision (114/2005) Page 39 of 42 b. Skyline Ranch Road and Metolius Drive shall be designed and constructed to Collector Standards in accordance with Table `A" of DCC 17.48. Design speed shall less than 35MPH. c. The round-about proposed for the intersection of Skyline Ranch Road and Metolius Drive shall be designed and constructed according to ODOT standards. d. Lots within the resort shall not have direct access from Skyline Ranch Road or Metolius Drive. e. The internal road system shall be improved to standards for private roads. 4. The applicant shall submit a formal signed agreement with the City of Bend for water service to the resort as part of the F'MP application. 5. The applicant shall designate the location of all utility lines and easements that burden the property on the FMP. 6. All portions of the proposed resort must be managed and operated in an integrated manner. Failure to comply with this standard will void resort approval. 7. During all phases of the development, the developer and/or its successors in interest shall ensure that individually-owned residential units shall not exceed two such units for each unit of visitor-oriented overnight lodging. Individually-owned units shall be considered visitor-oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in service(s). a. Commercial, cultural, entertainment or accessory uses provided as part of the destination resort shall comply with the requirements and limitations of Section 19.106.070(0). Specific determination of compliance with this condition shall be made initially at the time of FMP approval and finally at the time of site plan approval for each individual commercial component of the FMP. 9. Commercial, cultural, entertainment or accessory uses provided as part of the destination resort shall be contained within the development and shall not be oriented to public roadways. Commercial, cultural and entertainment uses allowed within the destination resort shall be incidental to the resort itself. As such, these ancillary uses shall be permitted only at a scale suited to serve visitors to the resort. Compliance with this requirement shall also be inducted as a condition of FMP approval. The maximum building height for commercial, cultural and entertainment uses shall be 40 feet. 10. The a0ppplicant and its successors shag guarantee that all open space used to meet the addition, all trails curfenntly depicted on the conceptual O((pla and 19.106.060(D). In blic trails" shall remain open and available to the public. 11. The applicant and its successors in interest shall guarantee that all development will comply with the financial commitment and minimum development requirements set out in DCC 19.106.060(A). Guarantees shall be in the form satisfactory to the county to ensure that the development will be completed consistent with this approval, and may include bonds, certificates of participation, and deed restrictions to ensure compliance with open space and developed recreation standards. Failure to comply with these requirements will void the resort approval. CU-04-94 Hearings Officer Decision (11412005) Page 40 of 42 12. All single-family dwellings, multi-family units, commercial structures, and other resort facilities are exempted from the requirements of meeting the solar setback standards 13. The applicant shall specify all recreational facilities within the proposed resort as part of the FMP submittal. 14. The FMP shall not be approved until such time as the applicant has either completely mitigated all resort impacts on wildlife or has assured that such impacts will be mitigated after FMP approval by the imposition of enforceable conditions of approval, inclusion of wildlife protection obligations in covenants and restrictions that will burden the expansion area, ado "on of wildlife regulations by the resort owners association, and by the execution of development agreements where appropriate. The applicant shall prepare and file a comprehensive wildlife mitigation master plan that explains how each mitigation measure will be or has been assured, prior to FMP approval. This explanation must be supported by documentation of consent by all landowners whose property will be used to meet the mitigation measures. 15. All temporary structures shall be limited to a maximum of 18 months on the resort site. 16. All development within the proposed resort shall meet all fire protection requirements of the Bend Fire Department 17. No development shall be allowed on slopes of 25% or more on the site. 16. This development shall adopt CCRs that afford the development "Firewise Community' status by the time Phase I is approved, and shall provide the county proof that such status has be conferred on it by the Firewise organization. (See standards set out at www.firewise.o In lieu of "Firewise Community" status, the applicant may submit development design standards for approval by the county forester prior to FMP approval. 19. Any timeshare units not included on the FMP or on individual plats shall be subject to approval under the conditional use criteria set forth in Chapter 19.100 of Title 19 of the County Code. 20. Documentation of ODFW s support of the applicant's November 2004 Wildlife Evaluation and mitigation plan shall be submitted to the planning division prior to FMP approval. 21. Proposed drywells shall be approved by the Department of Environmental Quality (DEQ). 22. Building heights and setbacks shall conform to the limits set forth in this decision and shall be incorporated into the Design Guidelines for the resort. 23. The final CC&Rs adopted by the developer and any amendments thereto shall conform in all material respects to this decision and the requirements of the DCC. 24. The applicant is allowed to install no more than three on-premises signs that advertise the resort and its amenities on Century Drive. This limitation does not apply to directional and traffic safety signage. The on-premises signs shall conform to any applicable provisions of the DCC or state law at the time of installation, including setback, vision clearance areas and maximum square footage. CU-04-94 Hearings Officer Decision (1142005) Page 41 of 42 25. A single gatehouse is permitted at the Century Drive entrance. Qt-4-X- ray.060 & 4~s_ Arne Corcoran Briggs, Heari Officer Dated this 5th day of January, 2005. Mailed this Lo-!Nay of January, 2005. THIS DECISION BECOMES FINAL IF NOT APPEALED WITHIN 12 DAYS OF THE DATE OF THIS DECISION. Cu-04-s4 Hearings Officer Decision (1/4/2005) Page 42 of 42 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER DECISION ON RECONSIDERATION FILE NUMBER: RC-0S-01 (CU-04-94) APPLICANT/ Cascade Highlands L.L.C. (CHLLC) OWNER: c/o William & Dame Development Co., inc. 1325 N.W. Flanders Portland, Oregon 97209 APPLICANT'S REPRESENTATIVE: APPucmrs ENGINEER: Sal Janik LLP Nancy Craven Kristin Udvad 101 SW Main Street, Suite 1100 Portland, OR 97204 W&H Pacific Thomas Walker Keith Dagostino 920 SW Emkay Drive #C-100 Bend, OR 97702-1042 ~ Rern en ~ D COUNTY ti ZiLLOLSSL$~ REQUEST: The Applicant is requesting reconsideration of a the Hearings Officer's decision to approve a Cond'dional Use Permit for a Destination Resort Conceptual Master Plan (CMP) with conditions in order to clarify findings and a condition of approval pertaining to overnight accommodations. STAFF REVIEWER: Matthew Martin, Associate Planner DATE OF ORIGINAL DECISION: January 5, 2005; mailed to parties on January 10, 2005. DATE OF RECONSIDERATION REQUEST: January 20, 2005 1. APPLICABLE STANDARDS AND CRITERIA: Tittle 19 of the Deschutes County Code, the Bend Urban Growth Boundary Ordinance: - Chapter 19.106, Destination Resorts Title 22, the Deschutes County Land Use Procedures Ordinance. -Chapter 22.30 Reconsideration RC-05-01 (Reconsideration of CU-04-94) Hearings OiflcarDecislon (2/22!2005) Page 1 of a P I IL DMIC FINPINGS. 1. LOCATION: The subject proerty is located west of Bend and has an assigned address of 19200 Century Drive, Bend. The subject property is idenEifred on County Assessor's Index map 18-11 as tax lot 100. 2. ZONING: The subject property is zoned Urban Area Reserve (UAR-10). The subject property is also mapped as part of the Destination Resort (DR) overlay zone for Deschutes County. 3. SITE DESCRIPTION: The 706-acre resort site is located within an approximately 905- acre parcel. The site is bordered to the south by Century Drive. The Braebum subdivision and the Best Western Entrada Lodge are located south of Century Drive. The resod site is bordered on the east by the City of Bend Urban Growth Boundary. Along this boundary is an undeveloped 14-ace parcel owned by the Bend Metro Parks and Recreation District, the Fast on the Hip Subdivision, and the Broken Top planned unit development (PUD). To the north is The Highlands at Broken Top PUD. The resort Is bordered on the west by undeveloped lands owned by the United States Forest Service (USES). The resod site is characterized by rolling terrain with minimal vegetation. Prior to the Awbrey Hap fire of 1990, the site contained stands of mature ponderosa pine and junipers. In clearings, the landscape consisted of manxanits, sagebrush, rabbit brush and bunch grass. The tiro burned an area that extends from the Broken Top community on the east to the USFS lands on the west. As a resat, the site is now covered by relatively dense growth of manzanita. sagebrush. rabbit brush and bunch grass. There are a few smap ponderosa pine trees scattered across the property. The Cascade Highlands Resort is proposed to be developed In multiple phases consisting of the following elements: 379 single-family-dwelling units, 210 multi-family units, a 300- room resort hotel, and approximately 15,000 square foot of commercial and specialty retail. The recreational amenities will tndude an 18-hole golf course. Access to the resort will be provided via a extension of Skyline Ranch Road between Skyliners Road and Century Drive, a gated access at Hosmer Lake Drive, and the extension of Metolius Drive west from the Broken Top PUD. These roads will be dedicated to the public. Other internal roads will be private and will be maintained by a homeowners association established by the developer. 4. E)(ISTING USES/STRUCTURES:. The project site is currently undeveloped The current use of the property is for undeveloped recreations purposes such as hiking and mountain king along established trails. 111. REQUEST FOR RECONSIDERATION Background: As stated shave, the applicarht requests reconsideration of the portions of the Hearings Officer's decision pertaining to the fmanaa! guarenthe for overnight lodging prior to the sale of residerrtial late. The applicant Hates that the of (SRS 197.447 pertaining to the number of overnight unts that must provisions b of or financially guaranteed were amended in 2003. The amendment reduced the required financial usrantee for avemigtrt dwelling units from 150 to 50 units (Senate Bill 911 (2003)). However, the county has not yet opted amendments to its code provisions to implement Senate Will 911. Therefore, the applicant requests that the Hearings Officer CU4)4-94 Hearings Otcer Decision on Reconsideration (2x122005) Page 2 of 6 modift the decision approving the destination resort to reflect the cement applicable proviswns of the DOC. Specifically, the is requesting that the finding addressing DCC 19.106. 4) be modified to that the applicant construct or fnanaaNy assure the coon of 150 overnight units prior to the closure of sales, rental or base of any residential dwallinp or Iota The applicant also requests that a condition of approval be added to the decision to reflect this requirement. Three findings of the January S. 2005 decision pertain to financial guarantees for overnight accommodations. Those findings are set out below. 7DGC 19.108.0 BL. A description of the proposed order and schedule for phasing, if any, of ag development inducling an explanation of when fircigfslies wgl be provided and how they WIN be secured if not completed prior to closure of safe of lncalfvi kW lots or units; "FINDING: * * * 'As required by Title 19, the applicant will either construct or provide financial assurance for the minimum required visitor-oriented accommodations, overnight lodging units, and .recreational facilities prior to the closure of sale of lots in the fast phase of single-family dwelling development. ORS 197.445(4)(b)(S) requires that at least 50 units of the Identified overnight lodging must be constructed prior to the closure of sale of individual residential lots. Amenities, visitor accommodations and overnight lodging units will be located in the general areas depicted on the master plan maps (the golf course is shown schematically throughout the resort site, and the additional recreational facilities. lodging, multifamily, and commercial areas are likely to be concentrated in the southem portion of the site, within Areas 1 through 8).' Pages 12-13 of January S. 2005 decision." "2. SectM 19.1-06-OW,- Standards for destination resorts. A. The destination resort shall, in the first phase, provide for and include as part of the CUP doe following minimum requirements: 1. At least 130 separate rentable units for visitor-oriented lodging; FINDING: The applicant has indicated it will construct or financially guarantee the construdion'of at least 150 separate rentable lodging units in Phase I of the resort. This will consist of at least, a 300-room hotel. A condition of approval is imposed to assure compliance with this criterion. r***** 114. The factlides and accommodations regdlred by dtls DCC 19.106.060 must be physically provided or financially assured pursuant to DCC 19106110 prior to closure of sales, rental or lease of any nwidentlal dwelgngs or IOtL FINDING: The applicant has indicated it will physically construct or financially assure the facilities prior to the closure of sale on real lots. As previously indicated, ORS 197.445(4)(b)(S) requires that at least 50 units of overnight lodging must be constructed CU-04-94 Hearings Officer Decision on Reconsideration (2822005) Page 3 of 6 F prior to the closure of sale of Individual lots. A condition of approval is adopted to ensure that at least 50 transient rentable units will be constructed prior to the sale, lease or long- term rental .df individual residential lots or units. A cation of approval Is Imposed that wig require that the remaining facilities and accommodations requirad by DCC 19.105.060 will be developed or financially assured prior to the sale, lease or long-term rental of individual residential lots.' [Pages 19 and 20 of the January 5, 2005 decision.] The Hearings Officer adopted the following condition of approval to address the standards set out in DCC 22.106.060(A): '11. The applicant and its successors in interest shall guarantee that all development will comply with the financial commitment and minimum development requi wnwts set at in DCC 19.106.0B0(A). Guarantees shall be in the form satisfactory to the county to ensure that the development will be completed consistent with this approval, and may include bonds, certificates of partic:Ipation, and-deed restrictions to ensure compliance with open space and developed recreation standards. Failure to comply with these requirements will void the resort approval.' [Page 40 of the January 5, 2005 declsion.] IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW A DCC 2230.020 Procedure for Reconsideration provides: 'A A request for reconsideration shag be filed with the Planning Director within 10 days of the date the decision was mailed. The request shag identify the alleged error in the Hearings Officers decision and shag specify how the applicant would be adversely affected If the alleged error were to remain uncorrected. 08. Upon receipt of a request for reconsideration, the Planning Director shag forward the request for reconsideration to the Hearings Officer and notify the other parties to the proceeding of the request and allow for a 10-day comment period on the request. At the end of the comment period, the Hearings Officer shag determine whether the request for reconsideration has merit." FINDING: The Hearings Officer's decision was rendered on January 5, 2005, and was mailed to the parties on January 10, 2005. The request for reconsideration was filed with Deschutes county on January 20, 2005, within 10 days of the date the Hearings Officer's decision was mailed to the parties. The request for reconsideration sets out the error the applicant believes was made in the decision, and explains why the applicant believes it will be adversely affected if the error is riot corrected. DCC 22.30.020(A) is met. Notice of the request for nx*nsideration was mailed to the parties to the decision on January 27, 2005. Parties were given until February 7, 2005 to comment on the request for consideration. No comments were received within that time period. DCC 22.30.020(8) Is satisfied. CU-04-94 Hearings Oflicar Decision on Reconsideration (==WS) Page 4 of 8 B. DOG 22.30.010(B) permits reconsideration of a decision where 'an alleged error substantially affects the rights of the applicant: 1. Correction of an error in a condition established by the Hearings Officer where the condition is not supported by the record or is not supported by law; "2. Correction of errors that are technical or clerical in nature.' FINDING., The findings quoted in Section III above can be read two ways. They can be read to require either that the applicant construct or provide financial assurances for the construction of 50 units (as is required by ORS 197.445(4)(b)(B)(2003)) or 150 units (as is required by DCC 19.106.060(4)). The ambiguity is not entirely rectified by Condition 11, which merely refers to the financial requirements of DCC 19.106.060. The Hearings Officer concludes that the error is technical in nature, in that there Is no contention that the provisions of DCC 19.106.061 (4) do not apply, and clarification of the findinwand condition of approval wifi ensure consistency In the application of the conditions of approval. V. DECISION The January 5. 2005 decision approving CU-04-94, with conditions, is modified as follows: The findings for DCC 19.106.050(B)(6) and 19.106.060(Ax4) are amended. [Words added are bolded; words deleted are sbusk ski.] The finding for DCC 19.106.050(Bx6) shall read: "As required by Title 19, the applicant will either construct or provide financial assurance for the minimum required visitor-oriented accommodations, overnight lodging units, and recreational farJtities prior to the closure of sale of lots in the first phase of s"rnglo4amily dwelling development. QRS 107.446(4)(b)(13) Feslukes that at least 50 units of the i1donMed lelrr Amenities, visitor accommodations and overnight lodging units will be located in the general areas depicted on the master plan maps (the golf course is shown schematically throughout the resort site, and the additional recreational facilities, lodging, multifamily, and commercial areas are likely to be concentrated in the southern portion of the site, within Areas 1 through B).' The finding for DOC 19.106.060(A)(4) shall read: The applicant has indicated it will physically construct or financially assure the construction of 150 ovemight lodging units prior to the closure of sale on residential lots. AS PFOviaUGIV m;-~- GO 9-1111- Q-91 A SRSMFO 0131 at least 60 L%aRSiOFA FORW619 UFkb AAAB be GOR-- lo the sale, lease o A condition of approval is imposed that will require that the FemalAing facilities and accommodations required by DCC 19.106.060 will be developed or financially assured prior to the sale, lease or long-term rental of individual residential lots.' (Condition 11.) CU-04-94 Hearings Oft w Decision on Reconsideration (2I W005) Page 5 of 6 r Condition II is modified as follows: 'The applicant shall physically construct or financially assure the facilities and accommodations required by DCC 19.106.060(A) prior to closure of sales, rental or lease of any residential dwellings or lots. developmerA F9qmi;eFn9Fft Got 064 iR DGG 194. -mmphm- -his" be In the fa . Failure to comply with the minimum facility requirenwnts ast out in DCC 19.106.060(A) these-rsquimmems YAP void the resort approval. Except as modH'ied above, all other provisions of the January 5, 2005 decision are retained. e Corcoran Briggs, Hearing Dated this 22nd day of February, 2005. AU . Mailed thisay of February, 2005. THIS DECISION BECOMES FINAL. IF NOT APPEALED WITHIN 12 DAYS OF THE DATE OF THIS DECISION. (DCC 22.30.020(E)) CU-0a-94 Hearings Officer Deasion on Reconsideration (2/22/2005) Page 6 of 8 MY ~ J' LI Tw T AT am TOP PKA tMRN~ ® - mM. oNT~, rMaAUMf r-M►ApMf MNIAM snve,nn~rrwAS~anumaae~wNM+nN~aw~neTarrr,sveuu aNMIORPIf~1Tp1a7YY1WY~lOC4i®NMM7W0lYRgl~l►A1N~It ♦ALL$fi W I.MONLMVWV LIAfNMSUMIRM MO wM/MXM A OM WIOWI M M MLM &MMAMOd@MIITMMORMKOPL AWOWO" AMAMM,v,L~w KMLMCMaM/iTwMrrw.OL•MAW I MMM►O~MIM. M ALATLaw•NOwMMOIeCRfNMIi►AL7MLOfORAPIIIDIMN7<r7OAL11Y anwwrmawnanewrasacassnrwAnwa~mwier,sw~aLMOwNr~ Y. AGS IIAa6wRR/OL41NfIN1aRMMlM* s. 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J 5 U is OW[ Q~ !x F- X 11CW (V L7 La zz Np w~ ~o w a V) o~ U~ w~ O~ V Q U~ O aU W FU4 z W N t- W oore Oy m D~ ~ q a OLD O ~ Qao L~ ~ x iv w ~ ~j Q $ N LIJ w 4i ❑ ~n g~ w Cl) w w O it Q o~ C❑ 0- 1 ` q w Co C, w ¢ ~ 4 o t0.ri ~ 7 V ~ Q W Lf Z~w iz U. wLn g Z~in ~w z w rr ~ O66: 20 uvi V) w Cc CL ~4 Lu ~ U'1 ti pae[ ~ W ngg Vz w4V0¢ La Lo yWCZ'J Lilq~N fX Q LL+1O4 to iL, a W$ Z o wto wa 0 cc ¢ ~ ao ¢w¢ wwz ~w W0X D W0 ~ W, LAW HO . - Q ~ tr p W U h f. "'~cnw w zEl:U ti _5 W U z ZLY j ¢~L, o 0 U z~ M wWo all N O aa a ao z 63 U to DELdSD BY. CIffpCED BY: MAMW BY. "~°"ED Br: CASCADE HIGHLANDS Lasr cmr: Awv1spow nor PAM, D /naLO+ TYPICAL PUBLIC COLLECTOR DSI Br RFv WCK pCn ~a G ROAD SECTION 'A' OREGON .net° dENO 50+I,7ES CR PI2D,.ECY NO. WA wrNG FILE NAVE: _ C'I.ASHEEi ]~1 nwl~ Part of Exhibit A Destination Resort Decision and Exhibit C of the Agreement L. 2; F-0 w R L ~ Nw~ w~ rX w a N D ~"Sx F. a0. O ~ woa U_ ~ u:l N O~LwcI ~v,z w'`- I cc DMONEC By,, DRAWN SY: LAST MT.' wW ~cl)~ I S W N z 4Z wo a wx ~z w D: ww in w, 6 ww -I z N. m 2 7: x~ ~a tD a 4~ ~k m a~ ~ W U S in cc a i3 x Qw ~a CV ~ U C ~Z W C9 ix ~Q z co W I~al V Lu a~ ¢Q N +t SIN W co F- ~ -Lu Q o QUX ~ LLI U E.D ~j bc J U~ J Q 0.v ~''w^^ c+J U❑ 0 Z L+.1 Q c.~ 0 N W 3 a w ~ CO 72 b ~x ~ Q X U N 3U a O ~ Q2 0 x U NW Xw wJ Q w ~ a W N ~ 4 q;EZ 4 V, H~ Lu rx L uJ Q? ~La ~RI• Y oa aMC)Q ww ~toRW Q o~ ►i U LA' ~ w U DW m W Q La Lu 4 LL, aw x Q a z x ~ a v y W U ~QVwa a tw i C? 2w ~ ~ Vp Qv) U O~Qa v5 ti ~ Qj ~z Z w~UZ~ Ww u)Oz m Z. § cc 4'+apLL, . ~W Wa nO ~-i X w tfi W Lj j L, w z m r, w La L a O Q ! F- ED ~ n uj ~ 4- ~4"' L1 ~tnz, ~ U~ x a N?=q¢4 Ln a x U¢ ~ Ln U2~i' ti aWW u ww0 Q: EL 0 S a y~Z N wig 4C4~ F- L,w V U) CHECKED APPROVED By., CASCADE HIGHLANDS PLDT DATE. M/pA/b1 w¢~ ~D TYPICAL PUBLIC COLLECTOR ROAD SECTION 'B' MOON- mu Ttw :ES M .-scALE.- -PJ?g4:T NO. MAWINC FILE NAME =y nsNlET Part of Exhibit A Destination Resort Decision and Exhibit C of the Agreement azW Lxu E) Lu~z F~ k fn I a ~ I a Q L7 I 0 _I A Q1~ 4 w a 0o w o Lu ~r N aw aw LL, w ww nx tp U Q EILI w " vi zm x w wy ~ W~ N~ aa. ~ ~ s r N N ~ _J N eko X Lu ~o NV zz V! k~ W (9 0 XU U~ U jJ co :D J i UD ao Cr 0 W a a z Ui o ~ a ~o (n u ."a 6 U.~= b Qw m om E4 0z 6 ¢ u. DESIGNCD BT: CF cav try., DRAYM Br *VMR ED ar. CASCADE HIGHLANDS LAST EWT'' PLOT DAM DATE BY A ftEKspew TYPICAL PUBLIC COLLECTOR togs. C ~ ROAD SECTION V Mr . nu~..~. .......n_. _ oen..rtrr n.n _ . _hDA,WIrIC F16.C-.NeuF_•.. _ ...SMi•Ci f Part of Exhibit A Destination Resort Decision and Exhibit C of the Agreement