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2015-472-Minutes for Meeting October 05,2015 Recorded 10/29/2015 COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERK U�1 20150112 TES COMMISSIONERS' JOURNAL p � , ;.�o z io�xs�xai5 01:16:07 PM - ►, 201 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 206, Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, OCTOBER 5, 2015 Present were Commissioners Anthony DeBone, and Alan Unger. Commissioner Tammy Baney was absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; Dave Doyle, County Counsel, Whitney Malkin, Public Information Officer. For a portion of the meeting Nick Lelack, Will Groves, Peter Gutowsky, Chris Schmoyer, Community Development; and John Laherty Assistant County Counsel. Chair DeBone opened the meeting at 1;30 p.m. 1. Appeals Relating to the Solar Photovoltaic Array (Solar Farms) Proposals east of Bend: Chris Schmoyer, Community Development Department reported there are three appeals relating to the solar photovoltaic array (solar farm) proposals east of Bend. The appeals are submitted in response to Deschutes County Hearings Officer's decision. The appellants contend that the proposed solar voltaic arrays do not comply with all applicable regulations. The appellants request the BOCC formally consider reversing the decisions and hearing the matters de novo. Mr. Schmoyer noted the Board can either accept or deny the review of the hearing officer's decision and the Board decided to go with de novo. The BOCC WORK SESSION Monday, October 5, 2015 Page 1 of 4 appeals will be consolidated into one hearing that will be held on October 19, 2015. UNGER: Move approval of ORDER NO. 2015-046 Accepting Review Of Hearings Officer's Decision in File Nos. 247-15-000170- CU/171-SP/172-LM DEBONE: Second. VOTE: UNGER: Yes DEBONE: Yes, Chair votes yes UNGER: Move approval of ORDER NO. 2015-046 Accepting Review of Hearings Officer's Decision in File Nos. 247-15-000168- CU/169-CU/169-SP DEBONE: Second. VOTE: UNGER: Yes DEBONE: Yes, Chair votes yes 2. Consideration of Whether to hear the Lower Bridge Road, LLC Appeal of a Hearing's Officers Decision. File Nos. 247-15-000194-CU, 247-15-000195- TP (247-15-00052 1-A): Will Groves, Community Development Department reported the appeal filed by Lower Bridge Road, LLC was submitted in response to a Deschutes County Hearings Officer's decision that a proposed Planned Unit Development subdivision does not comply with all applicable regulations. The appellant requests the BOCC formally consider the decision. The Hearings Officer issued a decision on September 11 finding that the proposal does not comply with all applicable regulations. Commissioner Baney was not able to attend this meeting but had sent County Administrator Anderson an email indicating her feelings and she is leaning towards a decision of no hearing. She will support the decision made by Commissioners Unger and DeBone. UNGER: Move approval ORDER NO. 2015-051 Denying Review of Hearings Officer's Decision in File Nos. 247-15-000194-CU, 247-15-000195-TP (247-15-00521-A) DEBONE: Second. VOTE: UNGER: Yes DEBONE: Yes, Chair votes yes BOCC WORK SESSION Monday, October 5, 2015 Page 2 of 4 OTHER ITEMS 3. Joint Meeting with Redmond City Council: County Administrator Anderson asked for confirmation of attendance for the meeting on Tuesday, November 10th with the Redmond City Council. District Attorney John Hummel will also be in attendance for a presentation. Topics for discussion will be an update for changes with airport leadership, the Evergreen remodel, sports complex update, update on the Design Center. The meeting is scheduled for 6:30 p.m. at Redmond City Hall. 4. Miller Tree Farm Decisions: County Administrator Anderson asked the Commissioners if the Miller Tree Farm decisions should be on the regular or consent agenda. Discussion held on a possible recap since items on the consent agenda are not read during the meetings. Decision to be pulled from consent agenda and placed on regular agenda. A revised agenda will be sent out. 5. Umpqua Community College Incident: Deschutes County Critical Incident Response Team, Sheriff's Office, and Victim's Assistance program sent advocates to Roseburg in response to the shooting incident at Umpqua Community College. County Administrator Anderson will place information in the Friday update. 6. Oregon Forest Resource Institute Tour: Commissioners DeBone and Unger went on the OFRI tour on Tuesday. They commented it was very interesting to see the effects of restoration work in the forest. Funding is being sought through the federal government. 7. 9-1-1 Grant Request: Steve Reinke reported he is looking for approval for a grant request through the Central Oregon Interoperability Project grant. This grant award would be in the amount of$278,500 and would be used to add equipment to allow a frequency to allow interoperability channels which would allow better communications for emergency response involving responding agencies. UNGER:Move approval to submit grant application for the Central Oregon Interoperability Project DEBONE: Second VOTE: UNGER: Yes DEBONE: Yes, Chair votes yes. BOCC WORK SESSION Monday, October 5, 2015 Page 3 of 4 8. 9-1-1 Long Term Funding Considerations: The information will be presented at the 9-1-1 user board meeting tomorrow. The presentation will let the user board know how the levy rate is set each year. It is not an automatic increase but is an annual decision. Proposed levy rate is 2.5%. The goal is to replace the end of service life law enforcement radio system with digital technology and future sets which support enhanced inter- operability between police, fire, and EMS as well as with partner agencies. In addition, when needing to replace the CAD system it would be very expensive and that expense should be considered. There are three levy cost components: PSAP Operations, Radio System M & 0, and Equipment Replacement Reserve. Discussion held on recommendation for a BOCC resolution for a ballot measure with deadlines of December for the May 2016 election. Being no other items discussed, the meeting was adjourned at 2:35 p.m. DATED this --24, Day of (DCA b e.r 2015 for the Deschutes County Board of Commissioners. Anthony DeBone, Chair Alan Unger, Vice hair ATTEST: 1 a Tammy Baney, C issioner Recording Secretary BOCC WORK SESSION Monday, October 5, 2015 Page 4 of 4 rip 010, 0 O'er ' Deschutes County Board of Commissioners 1300 NW Wall St., Suite 206, Bend, OR 97703-1960 ✓' (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., MONDAY, OCTOBER 5, 2015 1. Appeals Relating to the Solar Photovoltaic Array (Solar Farms) Proposals east of Bend— Chris Schmoyer 2. Consideration of Whether to hear the Lower Bridge Road, LLC appeal of a Hearing's Officers decision. File Nos. 247-15-000194-CU, 247-15-000195-TP (247-15-000521-A) — Will Groves, John Laherty 3. 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;or other issues under ORS 192.660(2),executive session. 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. If you have questions regarding a meeting,please call 388-6572. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541)617-4747, or email ken.harmsc deschutes.orq. 1 1 1 1 . .5I 1 /50 .---• 1 7t) Zi. 0 1 pz e3, 21/4- 3 ro c Iv ___... --, 0 ' 1..‘ i\C ■5: (2 •..... = -a i"--• w c a) z. 1 _ r -.--___ ----- ------ 9 (-- n P ;- ,--- x e,, I 1 _ ,, , 1 %..s 3.s _ ___.. az, -, , 13- ., • 11 - - - Ni ro 1 — Let I --f— I -r—roz, 1 •i , N"-. e.„..„:..- - 4 ".- 'n'• b tz.._ 0 0. c,2;' ---- C— ■ ......._ i (..... .---- 1 V P r: r ,z, ,fb c- __a , < I --7 , .. . -_,- __.,---4-1 -,-- ----, ' ._ — -,‘ Cs , 1 IJ \ Z. _... --3 c' -C) ) .)0 K \- Cv- 1 ZA c6' Zk‘ --Z, --° g , N. I --,., (7): \ -c — (I) -., -- l AI b W qk r- G- -R ,-. . ---C ) __(-. Z LAJ 1:-C ;--C -- 1 12i?, ' _ _.... . .T.:. ■ -p ‘t:::,—_, \-7' r----, l■t c40 I 75 c-N• N■ . c7"-, E.a. 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Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: October 1, 2015 TO: Board of County Commissioners FROM: Chris Schmoyer, Associate Planner RE: Whether to hear appeals of two Hearings Officer's decisions: 1) File Nos. 247-15-000168-CU/169-SP (247-15-000539-A); and, 2) File Nos. 247-15-000170-CU/171-SP/172-LM (247-15-000534 and 540-A) Before the Board of County Commissioners (BOCC) are three appeals relating to the solar photovoltaic array (solar farms) proposals east of Bend. • Cathy Jensen appealed the Deschutes County Hearings Officer's decision on Application Nos. 247-15-000168-CU/169-SP (NorWest Energy 2, LLC). • Peter Caine and Cathy Jensen separately appealed the Deschutes County Hearings Officer's decision on Application Nos. 247-15-000170-CU/171-SP/172-LM (Oregon Solar Land Holdings, LLC). The appeals are submitted in response to Deschutes County Hearings Officer's decisions of approval. The appellants contend that the proposed solar voltaic arrays do not comply with all applicable regulations. The appellants request the BOCC formally consider reversing the decisions and hearing the matters de novo. Background File Nos. 247-15-000168-CU/169-SP The applicant, Norwest Energy 2, LLC, requested conditional use and site plan approval to allow the development of a solar voltaic array (solar farm) on a portion of property zoned Exclusive Farm Use-Tumalo/Redmond/Bend. The subject property is approximately 118.71 acres. The Hearings Officer issued a decision on September 18, 2015 finding that the proposal complies with all applicable regulations (Attachment 1). On September 30, 2015, Cathy Jensen appealed the decision to the BOCC. Quality Services Performed with Pride File Nos. 247-15-000170-CU/171-SP/172-LM The applicant, Oregon Solar Land Holdings, requested conditional use, site plan, and landscape management site plan approval to allow the development of a solar voltaic array (solar farm) on a portion of property zoned Exclusive Farm Use-Tumalo/Redmond/Bend. The subject property is approximately 156.84 acres. The Hearings Officer issued a decision on September 18, 2015 finding that the proposal complies with all applicable regulations (Attachment 2). On September 29 and 30, 2015 respectively, Peter Caine and Cathy Jensen appealed the decision to the BOCC. 150-day Issuance of a Final Local Decision The 150-day period for issuance of a final local decision for both applications under Oregon Revised Statute 215 expires on November 7, 2015. The applicant has not offered to toll the 150-day clock. Without the toll, if the BOCC wishes to hear this matter they will have to do so in an extremely compressed schedule as shown below: October 5 Work session October 14 Appellants required to submit a transcript of hearing (5 days before hearing) October 19 Public Hearings (allows for 10-day notice to everyone who has standing). Both hearings opened and then closed. Applicant afforded under Statute, seven days for final legal argument (October 26)2 November 2 BOCC deliberations November 4 BOCC decisions November 7 150 day deadline Appeals The notices of appeal describe several assignment of error(Attachments 3, 4 and 5). File Nos. 247-15-000168-CU/169-SP Cathy Jensen requests de novo review for two issues: 1. The application of the policies set forth in ORS 197.012 and specifically the policy implications of permitting 160 contiguous acres for the first utility-scale industrial solar farm in the County. 1 Highway 20 is the landscape management feature recognized in the Comprehensive Plan. 2 If the BOCC hears the appeals, Staff recommends at the hearing that they be conducted jointly for testimony purposes. Staff can alert the public at the hearing that if someone's testimony exclusively applies to just one of the applications to make it known to the BOCC(and staff)for record keeping. File Nos.247-15-000168-CU/169-SP(247-15-000539-A);and, File Nos.247-15-000170-CU/171-SP/172-LM(247-15-000534 and 540-A) Page 2 of 4 2. The suitability of the site for the proposed uses under DCC 18.128.015, including impacts on property values. File Nos. 247-15-000170-CU/171-SP/172-LM Peter Caine identifies fourteen (14) errors and requests de novo review. Cathy Jensen requests de novo review for two issues: 1. The application of the policies set forth in ORS 197.012 and specifically the policy implications of permitting 160 contiguous acres for the first utility-scale industrial solar farm in the County. 2. The suitability of the site for the proposed uses under DCC 18.128.015, including impacts on property values. In deciding whether to hear an appeal, the BOCC may consider only the notice of appeal, the record of the proceedings below and any staff recommendations. DCC 22.32.035(D). No additional comments from the parties are allowed. If the BOCC decides to hear the appeal, the review shall be on the record unless the BOCC decides to hear the appeal de novo. The BOCC may hear this matter de novo if it finds the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review. The BOCC may also choose as de novo review when, in its sole judgment, a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action. DCC 22.32.027(B)(2)(c) and (d). The BOCC may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal. DCC 22.32.027(B)(4). Declining Review If the BOCC decides that the Hearings Officer's decision shall be the final decision of the county, then the BOCC shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the BOCC's decision to decline review. DCC 22.32.035(B). In determining whether to hear an appeal, the BOCC may consider only: 1. The record developed before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of Staff. DCC 22.32.035(B) and (D) Board Options Reasons to hear: 1. Thee BOCC may want to take testimony and make interpretative issues relating to the solar photovoltaic array. LUBA will be obligated to defer to BOCC's interpretation if they File Nos.247-15-000168-CU/169-SP(247-15-000539-A);and, File Nos.247-15-000170-CU/171-SP/172-LM(247-15-000534 and 540-A) Page 3 of 4 are at least plausible. The BOCC may want to reinforce or refute some or all of the Hearing Officer's findings/interpretations prior to LUBA review. However, matters of State statute, e.g. EFU zoning, are not matters to which the Board will be given deference by LUBA. Reasons not to hear: 1. The hearings officer decisions are reasoned and well written and could be supported, as the record exists today on appeal. 2. The appellants may challenge the Hearings Officer's approvals at LUBA. Attachments 1. Hearing Officer's decision for File Nos. 247-15-000168-CU/169-SP 2. Hearing Officer's decision for File Nos. 247-15-000170-CU/171-SP/172-LM 3. Notice of Intent to Appeal - 247-15-000168-CU/169-SP 4. Notices of Intent to Appeal - File Nos. 247-15-000170-CU/171-SP/172-LM File Nos.247-15-000168-CU/169-SP(247-15-000539-A);and, File Nos.247-15-000170-CU/171-SP/172-LM(247-15-000534 and 540-A) Page 4 of 4 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying Review of Hearings Officer's * Decisions in File Nos. 247-15-000170-CU/171- * ORDER NO. 2015-047 SP/172-LM WHEREAS, Peter Caine and Cathy Jensen separately appealed the Deschutes County Hearings Officer's Decision on Application Nos. 247-15-000170-CU/171-SP/172-LM; and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners("Board")discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now,therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. That it will not hear on appeal 247-15-000534-A and 247-15-000540-A pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. Pursuant to DCC 22.32.015, there shall be a refund of each appeal in the amount of $2,612.05. Dated this of ,2015 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, Chair ALAN UNGER,Vice Chair ATTEST: Recording Secretary TAMMY BANEY, Commissioner PAGE 1 OF 1-ORDER No.2015-047 0 Community Development Department ® ✓ Planning Division Building Safety Division Environmental Soils Division u��\N;"i l \i�\�JR`'u\\?N`N\\i ti a P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: October 5, 2015 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Whether to hear the Lower Bridge Road, LLC appeal of a Hearings Officer's decision. File Nos. 247-15-000194-CU, 247-15-000195-TP (247-15-000521-A) Before the Board of County Commissioners (BOCC) is an appeal filed by Lower Bridge Road, LLC. The appeal is submitted in response to a Deschutes County Hearings Officer's decision that a proposed Planned Unit Development subdivision does not comply with all applicable regulations. The appellant requests the BOCC formally consider the decision. BACKGROUND The applicant, Lower Bridge Road, LLC, requested conditional use, tentative subdivision plan, and SMIA site plan approval to establish a 19-lot residential planned development on three parcels totaling 157 acres, zoned RR-10, EFU, FP, LM, and SMIA, and located between the Deschutes River and Lower Bridge Way west of Terrebonne. The Hearings Officer issued a decision on September 11, 2015 finding that the proposal does not comply with all a pp licable regulations. On September 23, 2015 Lower Bridg e Road, LLC appealed the decision to the BOCC. The 150-day period for issuance of a final local decision under ORS 215 expires on November 12, 2015. The applicant has offered to toll the 150-day clock for sufficient time for the Board to hear this matter and issue a decision. APPEAL The notice of appeal describes several assignment of error. These are summarized below, with references to those pages within the decision where the Hearings Officer addressed the issue. 1. The Hearings Officer erred when she concluded the provisions of the EFU zone in Chapter 18.16 preclude the proposed subdivision. H.O. Decision, pp. 10-13. 2. The Hearings Officer erred when she concluded the provisions of the FP zone in Chapter 18.96 preclude the proposed subdivision. H.O. Decision, pp.13-21. Quality Services Performed with Pride 3. The Hearings Officer erred when she concluded the FP zoned property could not be included in the overall acreage calculation for the proposed subdivision. H.O. Decision, pp. 13-21. 4. The Hearings Officer erred when she concluded the open space as a part of the proposed subdivision was not allowed in the FP zone. H.O. Decision, pp. 14-16. 5. The Hearings Officer erred in imposing the FP zone boundary on this property because the map the County uses to establish the boundary is grossly inaccurate, was not established by the Flood Insurance Study for Deschutes County, and is in fact, not based on any base flood elevation data or other detailed or scientific method of study. 6. The Hearings Officer erred when she concluded the applicant failed to demonstrate it was feasible to construct a dwelling, septic and well without the need for a rimrock setback exception or that it is feasible to qualify for future rimrock setback exceptions. H.O. Decision, p.39. 7. The Hearings Officer erred in interpreting the Code to require the applicant to demonstrate compliance with LM review criteria at the subdivision stage when no structures are proposed. H.O. Decision, pp.32-39. 8. The Hearings Officer erred in concluding the properly should not be eligible for any rimrock setback exceptions in the future. H.O. Decision, p. 40. 9. The Hearings Officer erred in failing to apply the conditional use criteria to the only portion of the development that is conditional, which is not the residential use but instead the difference between 15 homesites and 19 homesites, or essentially 4 additional homesites. H.O. Decision, pp. 41-70. 10. The Hearings Officer erred when she concluded the proposal did not meet the conditional use criteria at 18.128.015 and 18.128.210 and the subdivision criteria at 17.36.170 because the applicant failed to demonstrate the proposed lots are of adequate size and dimensions to accommodate a dwelling, septic and well while complying with all setbacks. H.O. Decision, pp. 43, 62, 87. 11. The Hearings Officer erred in interpreting the suitability criteria for a conditional use and the planned development criteria to apply to residential use, rather than the 4 additional homesites which constitute the conditional part of the use. H.O. Decision, pp.47-70. 12. The Hearings Officer erred when she collaterally attacked the Board's prior decision and found the Board improperly substituted a condition of approval for the necessary findings of compliance in the prior zone change decision. H.O. Decision, p. 47. 13. The Hearings Officer erred when she concluded the revegetating efforts had not been successful in securing the blowing DE dust. H.O. Decision, pp. 52-54. 14. The Hearings Officer erred in concluding the proposal was not compatible with the current and future use of SM Site 461. H.O. Decision, p. 61. 15. The Hearings Officer erred in concluding the proposal was not in harmony with the surrounding area its potential future use based on conflicts between existing and potential conditions and uses on SM Site 461. H.O. Decision, p. 67. 16. The Hearings Officer erred in concluding it is appropriate to require the applicant to post a bond or other form of security to assure the DE dust issues on SM Site 461 and the subject property are fully remediated before any dwellings are constructed H.O. Decision, p. 68. 17. The Hearings Officer erred in concluding there was not sufficient evidence of financing to assure the proposed development will be substantially completed within 4 years of approval. H.O. Decision, p.69. File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 2 of 5 18. The Hearings Officer erred in concluding the proposal did not comply with DCC 17.16.100(3)(c) because she incorrectly concluded the proposal was not permitted in the EFU and FP zones. H.O. Decision, pp. 78-79. 19. The Hearings Officer erred in concluding the applicant should be required to improve the abutting segment of Lower Bridge Way to County standards. The impacts of the proposal to add traffic associated with 19 residential lots is not roughly proportional to the cost of the required improvement of approximately 3,000 lineal feet of abutting roadway, with possible relocation of power lines. The applicant is dedicating the Lower Bridge right-of-way but any additional improvements are not warranted and in violation of the Oregon Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution. 20. The Hearings Officer erred in interpreting DCC 17.36.270 to require the applicant to submit a street tree plan. H.O. Decision, p. 91. 21. The Hearings Officer erred in her interpretation and application of a flood zone map to the subject property which was clearly and absolutely wrong, was arbitrary and capricious and violated the substantive due process protections of the Fourteenth Amendment to the U.S. Constitution. 22. The Hearings Officer's decision alone or combined with any one or more of the errors alleged above, were in error and so burdened applicant's right to just compensation that the result violates the doctrine of unconstitutional conditions under the Fifth and Fourteenth Amendments to the U.S. Constitution. 23. The Hearings Officer's decision alone or combined with any one or more of the errors alleged above, leaves applicant with no viable economic use of the properly and constitutes the taking of it and entitles applicant to just compensation under Article 1, Section 18 of the Oregon Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution, as well as the right to attorney's fees under ORS 20.080 and 42 U.S.C. 1983. 24. If the Hearings Officer's decision is the final County decision in this matter, it will cause substantial delay and damages and notice is hereby given the applicant intends to pursue all available legal remedies it has in Court. This would include an inverse condemnation claim for just compensation and attorney's fees and also a money damage claim under 42 U.S.C. 1983 for lost profits caused by delay. The appellant requests de novo review. In deciding whether to hear an appeal, the BOCC may consider only the notice of appeal, the record of the proceedings below, and any staff recommendations. DCC 22.32.035(D). No additional comments from the parties are allowed. If the BOCC decides to hear the appeal, the review shall be on the record unless the BOCC decides to hear the appeal de novo. The BOCC may hear this matter de novo if it finds the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review. The BOCC may also choose as de novo review when, in its sole judgment, a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action. DCC 22.32.027(B)(2)(c) and (d). The BOCC may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal. DCC 22.32.027(B)(4). File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 3 of 5 DECLINING REVIEW If the BOCC decides that the Hearings Officer's decision shall be the final decision of the county, then the BOCC shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the BOCC's decision to decline review. DCC 22.32.035(B). In determining whether to hear an appeal, the BOCC may consider only: 1. The record developed before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of Staff. DCC 22.32.035 (D). STAFF RECOMMENDATION Reasons to hear: 1) There are a number of significant code interpretation issues. LUBA will be obligated to defer to BOCC's interpretations if they are at least plausible. The BOCC may want to reinforce or refute some or all of the Hearing Officer's findings/interpretations prior to LUBA review. However, staff notes that matters of state statute, e.g. EFU zone issues, are not matters to which the Board will be given deference by LUBA. Reasons not to hear: 1) CDD Staff and Legal believes the hearings officer decision is well reasoned and well written and could be supported as-is on appeal. 2) The applicant may challenge the denial at LUBA as a remedy to the Hearing Y 9 Y g Officer's denial. 3) The Hearings Officer found that dust suppression efforts had not succeeded on the adjacent former mining site (H.O. Decision, p. 51), making the subject property an unsuitable location for a subdivision and that the record does, "...not support a finding that blowing DE dust does not and will not present a health hazard to future PUD residents -- or that it is feasible to assure no health hazard from blowing DE dust will occur in the future through imposition of conditions of approval." (H.O. Decision, pp. 51-52) Moreover, the hearings Officer found, "...that under Rhyne (Rhyne v. Multnomah County, 23 Or LUBA 442 (1992)), [she does] not have the option of deferring findings of compliance with the "suitability" conditional use approval criterion to final plat approval as suggested by the applicant. That is because final plat approval is not required to, and does not, provide public notice or hearing." (H.O. Decision, p. 49) 4) Staff and Legal notified the applicant in a pre-application meeting that this proposal did not appear to comply with Deschutes County Code and might be denied by the Hearings Officer. The applicant was advised that the following preliminary actions would significantly improve the likelihood of approval: File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 4 of 5 a. Complete a property line adjustment to match zone boundaries with legal lots. This would remove many or all of the split zoning issues, as well as the EFU issues. b. Initiate a text amendment to explicitly allow the use of floodplain zoned lands as open space in a PUD. This would clearly allow the applicant to receive additional homesites in return for preserving flood plain areas as open space. c. Complete a study to refine the flood plain boundary in accordance with FEMA standards', if the applicant wished to improve the accuracy of the existing map. The applicant did not take any of these recommended actions prior to submitting its application. For the above reasons, Staff recommends that BOCC decline to hear the appeal. Attachments 1. Hearing Officer's decision 2. Notice of Intent to Appeal ' http://www.fema.gov/zone-manual-managing-floodplain-development-approximate-zone-areas File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 5 of 5 u-1 rl 0 (-NI Lo Q O O O O O O O O O O O O C Cl) O O O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O s O s O Q O O O O O O O C 'S O U O O Lrl ul ul O O O 0 0 - a) ,.— N N M N1 00 N ,--I - n CO th mr Cl) Q N a a Q N C' 0 O c Cl.) C C a o — O �_► *= CD -0 d i2 o Q O 0 0 im Q CO Yi v cn v 4 .2 E a) .1 u § 3 W .. a c� u E o 2 .p .1..r _ _ ) v u 0 a v w Et O L N C CD o E 3 z c v .v v ° ce Cl) 0 .11 � E Q 2 o . E ° c L le — 'E Q b, aE o a ovuN � ova, _ o V a aa) 0 ' .� O 0 > E _ u2 o �. 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