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2016-17-Minutes for Meeting January 04,2016 Recorded 1/20/2016 DESCHUTES COUNTY OFFICIAL RECORDS CJ 2016.17 NANCY BLANKENSHIP, COUNTY CLERK vu y y COMMISSIONERS' JOURNAL 01/20/2016 08;13:19 AM �� ES j1IIIII 1111111 I liiI 0 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JANUARY 4, 2016 Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; Dave Doyle, County Counsel; and,for a portion of the meeting, Nathan Garibay, Sheri.�'s Office; Nick Lelack, Matt Martin and Will Groves, Community Development; Whitney Malkin, Communications; and seven other citizens. No representatives of the media were in attendance. Chair Unger opened the meeting at 1:30 p.m. 1. Discussion of Application for Lower Bridge Planned Unit Development. Will Groves gave an overview of the item, which is subject to a public hearing on January 6. He provided a staff report and a matrix. Lower Bridge Road LLC has filed an appeal in response to a Hearings Officer's denial of a subdivision. The property was historically mined and in 2008, the property owners said they were done with mining and asked it become zoned for residential use. There were some issues to overcome, such as blowing dust that creates problems in the area. The area was seeded and is better, but the neighbors say blowing dust is still an issue. Minutes of Board of Commissioners' Work Session Monday,January 4,2016 Page 1 of 11 The Board was asked to rezone the entire area but was not comfortable with this. There are questions about what remains in the old mining areas. The Board stated it was okay with rezoning some of the property but not all. This would provide an economic engine for the owner to allow funds to deal with the rest of the property. This appeal is concerning the east side subdivision. The biggest topic is the Hearings Officer feels they have asked for too many lots. There has to be a certain level of open space. Code is not clear as to what land can count towards the density requirements. They want to take into account those lots in the flood plain. A code amendment was suggested. The flood plain would not be built upon in any case. Mr. Groves referred to the matrix at this point, with the various issues addressed individually. The applicant removed the EFU land from the application. Commissioner DeBone asked if there are any overlays. Mr. Groves stated that these are base zones. He provided an oversized map showing the area and the property being discussed. The applicant has asked for the boundary of the flood plain to be identified. At times, the FEMA lines are high up a cliff and are not subject to flooding. FEMA provides methodology and the County cannot just guess at where the flood plain ends. The main reason is whether it puts anyone at risk, but there would be no structures on this land. If the proposed lots were developable, the setbacks need to be established to allow for septic systems and wells. Staff recommended a survey to make sure there is not too much of given lots in the rimrock area. Tom Anderson asked if there has been a soils study done regarding septic systems. Mr. Groves said that what type of system is yet to be determined. An outright use would be 15 lots of ten acres each. They would like four additional lots. Staff has questions regarding the merits of some of the PUD being conditional and some not. The applicant would like the PUD criteria modified. The modification means waiving the time, which has been done. There have been some requests removed so there will be fewer issues to address. Staff does not feel additional notice is necessary for this. Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 2 of 11 One question is whether the Hearings Officer went back to old decisions and tried to undermine any of these. The applicant feels that this has been done based on a previous Board decision that the site was suitable for residential development. Staff feels there are new criteria in this regard. The Hearings Officer found that environmental issues can be determined in various ways. There is a question regarding what hazardous material might exist, and the applicant went into a voluntary compliance to have this investigated. The Hearings Officer found that this should be part of the conditions. The agencies have said that nothing was found to date that needs to be alleviated in this regard. Chair Unger asked if this is being remediated to a residential standard. Mr. Groves replied that OHA and DEQ will be at the hearing and can respond to this issue. At this point, they seem to think this can reach a manageable outcome. The presumption is it would be suitable for residential use, including the open space. On the west side, there is material that should present no risk if it cannot get to the other properties. What might migrate is through groundwater or carried by the wind. There are wells and a spring that have been monitored and show no problems. Dust control is a more serious issue. Commissioner Baney said that Representative Whisnant had a document that said that the dust could be hazardous at the time. Mr. Groves said the dust has historically blown but the level of complaints has lessened. Chair Unger asked if the property is owned by one entity. Mr. Groves stated there is one owner who can exert some control over the entire property. The question is whether some of the hazardous material is on the surface and whether it blows to other areas. The Hearings Officer found the biggest environmental issue is the potential dust. The applicant says it is entirely controlled but others might disagree. Commissioner Baney stated that there are many areas in the County where dust is a problem. It is a dry region. Mr. Groves said that the Hearings Officer felt this was a loose piece and was concerned that the use of the property is not established at this point, and it is not known if or when changes might occur. It might be stable now, but one question is whether someday more mining might occur. Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 3 of 11 Without some kind of binding dust management plan for the entire property, there will be risk. This is especially true if part of the overall property is sold to someone else. The Hearings Officer felt there should be a bond or other binding agreement in place; something well thought out with funds behind it. Chair Unger was hoping for a plan for this property so it could be properly utilized. Mr. Groves indicated that without some kind of dust management plan, even disturbing the crust to develop could affect people in the area. There was another question about the roads. The applicant does not want to have to widen and pave the local roads. The traffic load would increase by about one-third and this should be proportionate. There is a question of timing, and whether the applicant should pay into a fund over which the time the property is developed. Staff feels that this is resolvable. The applicant feels that the Hearings Officer's denial is a taking, eliminating any feasible economic way to handle the property. Staff feels that with fewer lots or a different arrangement, this is feasible, along with other potential uses. Staff feels that this taking claim is not valid. Mr. Groves indicated that there are other issues pointed out in the staff report and will likely be testimony on these. Chair Unger asked if they have set precedence anywhere else regarding properties near rimrock. Mr. Groves said that in most places on the Deschutes there is a defined area, so that someone on the river cannot see structures. New homes are generally placed where they cannot be seen from below. What is unusual here is there is no rocky buttress and the surface is undulating. There are mounds of dirt in places due to previous mining activity. New structures have to be somewhat screened from the river. The Hearings Officer asked about this and the applicant responded with a survey description. They will not get down into the slope. Staff is not sure of what setbacks they might propose. Chair Unger stated that maybe they can make a determination of this from the river for each lot. Mr. Groves would like to see a line on the plat that shows the rim with exact measurements. It would be reasonable to ask the applicant for this. Mr. Groves will try to come up with a suitable map. Minutes of Board of Commissioners' Work Session Monday, January 4,2016 Page 4 of 11 Some of the difficulties come out of the 2008 process, when the applicant felt they had entered into an agreement per the Board's decision and are now proceeding accordingly. The plan was to develop part of the property so it is economically feasible to take care of the rest of the property. They are trying to execute a plan that will comply with the zoning through lot line adjustments and text amendments. They have been consistent that the need is for twenty lots, perhaps based on investigations and infrastructure costs. They are down to 19 now that they lost one that is zoned EFU. If the flood plain is not considered, it would be more like 15 lots. They could do ten-acre lots or a PUD more densely together. Chair Unger would like to review the main factors from the 2008 decision. Mr. Groves stated that at the end of a mine's life, it is meant to be something else, and usually it is turned into residential use. Commissioner Baney noted that there is an opportunity to have this owner clean up a site and meet the needs of the community. This site needs to have something done with it eventually. Mr. Groves said there is concern regarding wildlife and visual impacts. However, the Hearings Officer did not feel this is valid. Some views from other properties might be impacted, but there is nothing in Code to protect this. Also, it is a section of river with wildlife values, but if everything is above the rim, it would not impact wildlife significantly. Chair Unger asked about the big mining site that could potentially be opened up again. He asked who would be responsible if there is a future issue affecting the new residents. David Doyle said that the buyers will sign off on this, but anyone can sue for anything. Commissioner Baney noted that there is also a significant risk if the County does nothing. Chair Unger said they look to the DEQ and Health Authority to note hazards. Commissioner Baney asked about other potential contaminants on the site. Mr. Groves said that DEQ and others will be at the hearing. He has not seen the results of any study at this point. The DEQ knows how to do this and what they find should be defendable. The Hearings Officer indicated that if water concerns are under control and there are methods through the State to address other issues, the only big issue remaining is the dust. If there is a DEQ approved report listing what is actually there, it would help a lot. Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 5 of 11 Commissioner DeBone would like to do a site visit if this is possible. Mr. Groves stated that they should make this visit during the open record portion and make a written statement of where and when they visited. Chair Unger asked about the EFU portion being taken out and this triggering the 150-day clock. Mr. Groves stated that the clock was held previously, but the applicants are now ready to proceed. He does not feel an additional hearing date or notice is required because nothing was added; instead, something was deleted, which would essentially lessen impacts. Chair Unger said that some conditions are purported as errors by the applicant. Some of these are based on federal law. Mr. Groves replied that some of this is based on a `takings' claim. The applicant feels that some of this should be placeholders in case the decision goes badly for them. They are preserving their rights, but this is nothing that can be addressed through land use. Commissioner Baney said she hopes the individuals from DEQ and the Health Authority are able to definitively answer questions in regard to their processes. Mr. Groves replied that they are the same people involved since 2008. Commissioner Baney noted that in the past some documents were vague and not helpful. Mr. Gro ves is h o p in g t hat if one attorney is working f o r several parties, that they can combine their testimony to be consistent, so as to not take up more than 45 minutes total. Chair Unger said written testimony would also be appreciated. 2. Other Items. Sgt. Nathan Garibay presented a grant application from Homeland Security, which would provide funding for three projects related to local emergency support services. (A copy of the information is attached for reference.) DEBONE: Move Chair signature of the document. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 6 of 11 Discussion occurred regarding a letter of support for a wood innovations funding opportunity grant. (A copy is attached for reference.) DEBONE: Move signature of the letter. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. It was agreed that Jimm Burton would be appointed as the new Budget Committee member. Mr. Anderson will advise the other applicants and Mr. Burton. Mr. Anderson said the Board agreed to expand the Fair Board membership, so an open have indicated an en recruitment will begin. There are a couple of people who hav P g P interest. Commissioners Baney would like more geographical representation if possible. Mr. Anderson asked what the Board would like to discuss regarding next week's joint meeting with the La Pine and Sunriver Chambers of Commerce on January 15. The 9-1-1 ballot measure is a key issue. Steve Reinke may be able to be there. There will be a public hearing on Goal 11 in La Pine on January 6. The Board decided to eliminate this topic until they have a date set for deliberations. Regarding the Five for Five Series, Part II, Commissioner DeBone said there will be discussions regarding basin water issues and a follow up on what was discussed last year. This could be a concluding slide. Sheriff Shane Nelson is supposed to speak. Commissioner DeBone said one citizen has asked if south County is getting its share of law enforcement help. He feels the Sheriff and 9-1-1 should present together. South County Capital Projects: These are road projects, such as Huntington Road and US Highway 97 at Wickiup Junction. Chair Unger thought that perhaps ODOT might want to provide an update on their road projects, if they are on schedule. Chris Doty should also take part in this regarding County projects. Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 7 of 11 Deschutes Public Library Update. Commissioner Baney asked if this is what they want to end with, to stay with people as they leave. It is a different entity from the County. Chair Unger said that perhaps a handout might be sufficient with `what's new' at the Library. It was decided that this should be the first topic to allow for a clean separation. They can also talk about the County Centennial and show the new logo. Other topics that may come up are marijuana issues, Harper Bridge and homeless problems. It was asked if they should allow for questions after each topic. Commissioner Unger stated that they need to stick to a timeframe, so it depends on how the presentations go. Nick Lelack and Matt Martin discussed the formation of a marijuana task force to address a variety of issues. There have been a lot of inquiries from citizens and the media. Mr. Lelack asked what the response should be to these inquiries. Commissioner DeBone said people want to know if there is a way to get from the medical grows to the recreational grows and define regulations that way. An outcome is whether they repeal the opt out, or let it proceed. Commissioner Baney feels people have already picked their sides on this. Commissioner DeBone said it leaves the question as to whether it should be just up to the Board. He wants to get past the `no to drugs' message. They need to know whether to justify appealing the opt out. It is not a simple issue. A knee-jerk reaction cannot be part of it. Chair Unger said the main issue right now is medical grows, or at least some of them. There is also issues regarding the right to farm and EFU land, and there is no path forward on this yet. He feels that the courts might say all EFU is okay without control. Some people are going to be upset either way. Mr. Lelack stated that the opt out did not address the regulation of existing medical marijuana grow sites. The committee could address this. Another issue is if the opt out is not rescinded, perhaps part of it could be repealed, like medical marijuana processing without permits, to be handled separately. This could be phased, and by then maybe they can see what has happened in other counties. There should be something that can be refined regarding odor, noise, etc., perhaps through other agencies or a local land use decision, by this summer. Some pieces could be addressed separately. Minutes of Board of Commissioners' Work Session Monday, January 4,2016 Page 8 of 11 Chair DeBone likes the ninety-day concept, and feels there are things that can be addressed during this timeframe. Commissioner Baney said that a past District Attorney indicated they have no regulatory control of any of it. David Doyle said that as of March 1, the County can impose `reasonable' regulations on existing medical marijuana operations. Commissioner Baney does not want Deschutes County to be the marijuana capital of Oregon, and there needs to be one standard to match those of the local cities. Mr. Anderson asked if the legislature does not combine the licensing for medical or recreational, whether a grower be both. Mr. Martin said he believes they could. operate as both, but the uses would have to be physically separated within the licensed property. Mr. Anderson thinks that a lot of medical growers plan to expand into recreational. Perhaps the committee can address this. Chair Unger noted that the biggest issue seems to be the odor. Commissioner Baney feels that those growing medical marijuana will want to jump on the gravy train of recreational. The biggest issues seem to be with medical grows. There r now to be one set of rules for all. If you have an overage o w as a medical grower, you can sell it as recreational, at least until March 1. So that could mean that a medical marijuana grower could have just one card-holding customer and sell the rest for recreational use. Commissioner DeBone said that some are building up their expectations in this way. There is all kinds of potentially inaccurate information out there and a lot of unknowns. Commissioner Baney does not feel that anyone knows what `seed. to sale' means, either. Mr. Lelack said a permit is required to process medical marijuana, and this is supposed to include training. Commissioner Baney stated that people are doing a lot of things with little recourse. Mr. Lelack said that at this point, code enforcement is the only way, if someone complains. Some uses require permits. Mr. Anderson said there are small grows and have been for some time, but he wonders who is actually monitoring what they have. Commissioner DeBone is concerned about what would be allowed if the voters pass the measure. There might be no restrictions. At that point, it would be very hard to impose them. Minutes of Board of Commissioners' Work Session Monday,January 4, 2016 Page 9 of 11 The Board would like people on the committee who will listen to the views of others. Some are very much on one side or the other. The question is how to get some balance so that everyone wins something and understands that there are already some things in place that are not going to change. Mr. Lelack explained they could use an applicant form similar to that used by the City of Bend for its committee, and staff could meet individually with Commissioners on what the discussion points might be. Ninety days should be a checkpoint. Commissioner DeBone wants to get something of value in place before summer. Mr. Lelack said that once a committee is established, meeting once every couple of weeks, with a well-defined agenda, he feels they can make good progress on at least a few critical issues. Commissioner Baney stated they are hearing a lot from people who live in the cities. Those on the committee should be from the unincorporated areas since that is where the land use impacts are felt. Commissioner DeBone said that most people he has spoken with are from outside the cities. Chair Unger feels that this should focus on impacts to the unincorporated areas and those who live there. There should be residents from the various geographical areas of the County as well. He also thinks that the legislature appears to be ignoring this issue but should be advised that it is important, especially in regard to this being a crop and subject to right to farm laws per Measure 3400. He would like to see a copy of the right to farm law in writing as a handout. Mr. Lelack hopes to meet with the Commissioners individually to hear their specific concerns and what they want addressed, and then come together at another work session in a couple of weeks with a plan to proceed with the formation of a committee. 3. Adjourn. Being no further discussion, the meeting was adjourned at 3:45 p.m. Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 10 of 11 DATED this Day of 2016 for the Deschutes County Board of Commissioners Alan Unger, Chair 0111Alq / 2 Tammy Baney, ice Chair ATTEST: 4 (6-514A'\j--' Anthony DeBone, Commissioner Recording Secretary Minutes of Board of Commissioners' Work Session Monday, January 4, 2016 Page 11 of 11 g v v tl dd E _.= c: 0 ra \ J �fi ' c d —* 4J', � i � P 1 . '' a �r N �I h q ca , 4 2.) 4?_./ <,...,,,,,,, ,:,.. CD° C../ c-N, -•-a. ""1 3,.., 0 c.) ..,.., V)'' Li U � O m ay, .---:-, W E cr- ;°) �,mo I w �' Y c0 •O C J ___S\ --r- 0Q � 0) i E v 0 o v, o, al —z kr)1 O Tti vv w bo Community Development Department Manning Division euikJrng War Division n*onmenwri Soil Division y jt P 0 Box 6005 117 NW Lafayette Avenue Bend,Oregon 9770005 (541)388-6575 FAX(541)385-1764 — http://www code hutes.or,us/cddll MEMORANDUM DATE: January 4, 2016 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Hearing on 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. By Order 2015-467, dated October 19, 2015, the BOCC initiated review of this application under DCC 22.28.050 through a de novo hearing. 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 applicable regulations. On September 23, 2015 Lower Bridge Road, LLC appealed the decision to the BOCC. 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. Staff has also included selected quotes from the HO decision addressing the error at 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: "The applicant proposes to include the EFU-zoned area as part of PUD open space Tract B. Quality Services Performed with Pride The Hearings Officer finds subdivisions and PUDs are not uses permitted outright or conditionally in the EFU Zone. The applicant appears to argue that because the EFU-zoned area will be included in an open space tract and may be engaged in agricultural use, it can be included in the PUD. I disagree. While agricultural use is consistent with this area's zoning, including it within a subdivision is not." 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: "Neither"cluster development" nor"planned development" is a use permitted outright or conditionally in the FP Zone. The Hearings Officer finds the text and context of the provisions of Title 18 defining and governing the three types of subdivisions make clear they have different characteristics and are intended to be reviewed and approved under different substantive standards. While it may seem counterintuitive not to permit use of FP-zoned land for open space within a planned development where such use would protect these areas consistent with the purpose of the FP Zone, I find the plain language of the FP Zone does not allow such development." 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: "The property is approximately 157 acres in size. The applicant's density calculation does not include the 10.4 acres of EFU-zoned land, leaving 146.6 developable acres and resulting in a density of one dwelling per 7.7 acres, less than the maximum density allowed by this paragraph. However, as discussed in the findings above under the FP Zone, the Hearings Officer has found the proposed PUD is not a use permitted outright or conditionally in that zone. Therefore, I find the approximately 30 acres of FP- zoned land included in the subject property cannot be included in the density calculation, leaving approximately 116 acres of developable land for the PUD." 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. The Hearings Officer finds that although "open space" is listed as an outright permitted use in the FP Zone, and the proposed CC&Rs provide protection for such areas consistent with the purpose of the FP Zone, the applicant's proposed open space is not a stand-alone use. Rather, it consists of open space lots and uses within a PUD which is not a use permitted outright in the FP Zone." File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 2 of 8 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, Staff note: The Hearings Officer did not specifically address this point. The flood plain in the project vicinity is an "unnumbered A zone", meaning that flood areas were designated without detailed flood calculations or detailed local topographic information, due to the low density of development in the area. This issue arises nation wide and FEMA has a technical bulletin directing how to refine the flood plain in this case. The applicant was provided with this information in a pre-application meeting and declined to use any of the FEMA accepted methodologies for refining flood plain boundaries. 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. "The Hearings Officer finds that without the lot-specific rimrock survey recommended by staff, the applicant has not demonstrated that each lot can be developed with a dwelling, on-site septic system and individual well in a manner that assures the dwelling is at least 50 feet from any rimrock, and that all other yard and setback requirements in the LM Zone can be met." 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. "The applicant did not propose dwellings concurrent with its PUD application, and did not submit an application for LM site plan review. However, staff concluded, and the Hearings Officer agrees, that review of the proposed PUD should include findings as to whether the location, size and configuration of the PUD residential lots will permit the future siting of dwellings in compliance with LM site plan approval criteria." 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. Staff note: Staff believes the applicant misreads the Hearings Officer's decision on this issue. Staff believes the Hearings Officer did not preclude rimrock exceptions (see proposed condition of approval #34) but, rather, found that creation of new lots that could only be developed under a rimrock setback exception was unsuitable, when alternate subdivisions layouts were feasible. The Hearings Officer only required that the File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 3 of 8 applicant demonstrate the lots could be developed without a rimrock exception. 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. "The Hearings Officer finds the general conditional use approval criteria apply because the applicant's proposal is for a PUD and not for an individual single-family dwelling." Staff note: The proposed use, PUD, is a conditional use in the zone. Because some other similar use (non-clustered subdivision) is allowed outright in the zone does not make some portion of the proposed conditional use not conditional. All of the proposed lots are designed and sited in a manner only allowed under the PUD standards. 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. "...the applicant has proposed "special setbacks"for dwellings that the Hearings Officer has found are not adequate to assure each proposed dwelling would meet the 50-foot rimrock setback, or that each residential lot is large enough, or has the configuration necessary, to permit the future siting of a dwelling, on-site septic system and individual well and still comply with all yard and setback requirements." Staff note: Staff believes a building envelope figure showing the developable area of each lot, considering these factors, may help to demonstrate compliance with the relevant criteria. 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. Staff note: The Hearings Officer found all aspects of the PUD were part of the conditional use. The Applicant erroneously assumes residential use of the property is allowed outright. It is not. The outright use is one single family dwelling. Also, because some other similar use (non-clustered subdivision) is allowed outright in the zone does not make some portion of the proposed conditional use not conditional. All of the proposed lots are designed and sited in a manner only allowed under the PUD standards. File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 4 015 12. The Hearings Officer erred when she collaterally attacked the BOCC's prior decision and found the BOCC improperly substituted a condition of approval for the necessary findings of compliance in the prior zone change decision. H.O. Decision, p. 47. "The record for this PUD application includes conflicting evidence, some of it quite technical, concerning whether the subject property is suitable for residential development considering environmental impacts from previous mining and hazardous materials storage. The Hearings Officer finds that under Rhyne, I do 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." Staff note: Staff believes the Hearings Officer's decision is not a collateral attack' on the plan amendment/zone change (ZC/PA). While the Hearings Officer found that BOCC's approach to deferring findings of environmental safety was likely impermissible under existing case law, no change to the ZC/PA was imposed. Nothing precludes the Hearings Officer or BOCC from imposing additional restrictions, beyond those in the ZC/PA, on the proposed PUD. 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. "Although the applicant states its dust control measures on SM Site 461 "were successful," the Hearings Officer's site visit observations indicate the opposite. I observed that on much of SM Site 461 the introduced vegetation has not taken hold, and as a result large areas of diatomaceous earth remain exposed." 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 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. "... because both SM Sites 322 and 461 are zoned SM and remain on the county's inventory of significant mineral and aggregate sites, the Hearings Officer finds projected uses on these parcels include potential future surface mining. ' Collateral Attack-An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it. http://leoal- dictionary.thefreedictionarv.com/Collateral+Attack, File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 5 of 8 ...the Hearings Officer has found the applicant has failed to demonstrate the subject property is suitable for the proposed PUD considering potential human health impacts on PUD residences from exposure to blowing DE dust from SM Site 461 and the portion of the subject property located west of Lower Bridge Way, both in their current condition and with future mining activity. ...the proposed PUD will not be compatible with the current and future use of SM Site 461." 17. 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. "I find that in the absence of any requirement in the board's 2008 decision that the applicant complete and pay for such remediation, and any commitment on the applicant's part to do so in as part of this application, I find it is appropriate to require the applicant to post a bond or other form of security acceptable to Deschutes County to assure the DE dust issues on SM Site 461 and the subject property are fully remediated before any dwellings are constructed on the subject property." ...Unfortunately, there is no evidence in this record as to the potential cost of remediating the DE Dust on these properties. However, as discussed above, the June 22, 2015 Wallace Group geotechnical report discussed in the findings above memo recommended dust control measures including spraying the ground surface with water prior to site grading and road building, and/or covering the diatomite with three to six inches of sand and gravel. The Hearings Officer finds it is feasible to arrive at a reasonable cost estimate for covering exposed DE on SM Site 461, and spraying and covering DE on the subject property. Therefore, I find that if the proposed PUD is approved on appeal, it should be subject to a condition of approval requiring the applicant to provide cash or a performance bond in favor of Deschutes County, and acceptable to Deschutes County Legal Counsel, for the cost of remediating DE dust on SM Site 461 and the subject property, in an amount to be identified by the applicant and approved by the board, prior to any grading or construction on the subject property. The bond shall be redeemable by the county if the applicant fails to complete the DE remediation identified as necessary for SM Site 461 and the subject property by the Wallace Group report." 18. 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. "The applicant's burden of proof states "sufficient funding is available to complete the development as proposed within four File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 6 of 8 years of approval." However, the applicant did not submit any evidence supporting this statement. The Hearings Officer finds a simple conclusory statement does not constitute sufficient evidence to demonstrate compliance with this conditional use approval criterion." 19. 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. Staff Note: This conclusion is a consequence of findings in the FP and EFU zones, discussed above, and will be sustained, modified, or revered based on the BOCC's findings on those issues. 20. 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. Staff Note: Applicant and Staff are working on a partial funding option that plainly complies with Nollan/Dolan. 21. 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. Staff note: Staff concurs with the applicant on this issue. The criterion requires that street planting, if proposed, be approved by the planning director. It does not require street tree planning. 22. 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. Staff note: The Hearings Officer's decision did not directly address this issue. Staff believes the Hearings Officer's reliance on zone boundary maps that were adopted in 1988 (and have been in place continually since then) required no interpretation and that this map plainly applied to the subject property. The 1988 adoption of the Flood Plain zoning maps cannot be collaterally attacked under this PUD application. Staff believes the applicant appears to actually contest the FEMA flood hazard maps that provided the basis for this zone boundary. While the FEMA provided maps are known to have limited accuracy, they are the best available information. FEMA provides guidance on how to refine these maps. The applicant was File Nos.247-15-000194-CU,247-15-000195-TP(247-15-000521-A) Page 7 of 8 informed of the process to refine the existing maps at a pre- application meeting and declined to undertake the required study and mapping project. If the applicant wants to correct the Flood Plan zone boundary, a study following FEMA methodology followed by a zone change is the proper process. 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. Staff note: The applicant has been denied by the Hearings Officer for a PUD. The applicant has not applied for the approximately 15-lot, non-clustered subdivision on the property that is an outright (non-conditional) use. The applicant has also not also applied for the single dwelling allowed on the property without conditional use or subdivision approval. Only one use, a PUD, has been presently denied on the property. Staff notes that the present denial primarily rests on the applicant designing a PUD that exceeds the number of lots in the allowed in the zone, voluntarily configuring those lots as to make them undevelopable without special exceptions, and asking for residential approvals prior to completion of environmental investigations of the property. Nothing in the present denial indicates that a properly designed PUD application could not be approved on the property. As such, the applicant's claims the property has no viable economic as a consequence of this denial use are unsubstantiated. Attachments 1. Hearing Officer's decision 2. 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Iu1;I N p 'O•U.0 b= Q-a3E A tp 6 ci • E N m co u1 77 N• N Q Y+ C O C•d-p V 0 q N W N O N Q 0 o S U• -_a o a L 0 C_ d m 13 $ to W b) 3 C O a) O-o 0 0 O▪a p E C o `O m is w o.-o m 3 U C Q .E ° C 7 ur Q' N.'v.. ._ C o_y O q N @ p N m O C 0 ° j@ 3 N y•( j E Y L.j ry N d N aO a 0) t O N C N N E N _ N W O y d N O c"O m U tl m tl 2 N z, 81 m a o) C m T - a, m ° m m P` co U E'al 0 U 72a s� '! -0 �° " m m. r r a)5 - o ..ro •a .. 0_..,-• `O 0 :0"v C C C O C O o C Q N 01 U p 0 9..- O U o.ja2pC 6o" 0 0•C 0 c = N g N J t Q • = Q = = Q 2 r.m a m 'an) e _ ` '0 3 e ' i E o = N ca— n a L•- � O m rn N- a1 C O O C1 O U N 73''OO m G r Rci m- di m i G1 G Q p_ N C A n Y N o a ` 07< Q _ a« 0v (U __.. o ...... of .- M 0 ,gym... \ w �+ l10.,,:,...0 / 'AF-&i4tts o Board of County Commissioners P.O.Box 6005•Bend,OR 97708-6005 �'" __ 1300 NW Wall St.Suite 206•Bend,OR 97703-1960 �h µ � TEL[541)388-6570•FAX(541]385-3202 `'' www.deschutes.orq board(]deschutes.orq Alan linger January 12, 2016 Tammy Baney Anthony DeBone USDA Forest Service 1 Pacific Northwest Region 6 1220 SW 3rd Avenue Portland, OR 97204 Re:Wood Innovations Funding Opportunity Grant Dear Mr. Saranich: Deschutes County enthusiastically supports Oregon State University's Cascades Campus (OSU-CC) in their application for the Wood Innovations Funding Opportunity grant.This grant would allow OSU Cascades to investigate utilizing biomass as a heat energy source as part of their campus Master Planning process in Bend, Oregon.The final project would heat up to one million square feet of academic, research, residential, and associated building space on the new campus, utilizing a 14 million BTU/hour boiler and consuming 5,462 green tons of low-value wood chips from Deschutes National forest restoration projects. The OSU Cascades project will provide the following benefits: • A market for low-value biomass material, which will help reduce the cost of forest restoration and supporting restoration jobs and income. 1 • Demonstrate the benefits of sustainable, high-efficiency, appropriate technology biomass heating systems in Central Oregon. • Provide valuable biomass energy learning opportunities for forestry and engineering students. We greatly appreciate your consideration of this grant proposal. Sincerely, Alan Unger, Chair Tammy Baney,Vice Chair Anthony DeBone,Commissioner Enhancing the Lives of Citizens by Delivering Quality Services in a Cost-Effective Manner 1/4/2016 La Pine & Sunriver Chambers JOINT MEETING Presentation 1,J eo �' z� January 15, 2016 9-- 1 - 1 MAY BALLOT MEASURE ► The 9-1 -1 Service District is working to support a radio system that will allow responders to communicate in places where they can't today. ► The district can pay cash for its new system but lacks funds to maintain and eventually replace it. ► The district wants to change its permanent levy rate to 42.5 cents, 6.32 cents higher than current levy rates. ��svEs oGZ N/A -+ 1 1/4/2016 UPDATE ON GOAL 1 1 HEARING ► Public hearing held in La Pine on Jan. 6 ► Next steps: FIVE ON FIVE SERIES, PART II : 4 2 1/4/2016 SHERIFF SHANE NELSON: 5 SOUTH COUNTY CAPITAL PROJECTS ■ Huntington Road Project ■ U.S. 97 @ Wickiup Junction 3 1/4/2016 DESCHUTES PUBLIC LIBRARY UPDATE ■ Todd Dunkelberg to provide content. QUESTIONS? 7 " fl 4 �JTES c thc' Z 01 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 WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., MONDAY, JANUARY 4, 2016 Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. 1. Discussion of Application for Lower Bridge Planned Unit Development — Will Groves 2. Other Items These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting,pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Meeting dates,times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners'meeting rooms at 1.300 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)330-4640, or email anna.johnson(a�deschutes.orq. Board of Commissioners' Work Session Agenda Monday,January 4, 2016 Page 1 of 2 Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. 3. Adjourn 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)330-4640, or email anna.iohnson(a�deschutes.orq. Board of Commissioners' Work Session Agenda Monday,January 4, 2016 Page 2 of 2